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BYKOFSKY v. BOROUGH OF MIDDLETOWN

August 22, 1975

Jo-Ann BYKOFSKY, on her own behalf and on the behalf of her son, a minor, Shaw Bykofsky, as his guardian, Plaintiffs,
v.
The BOROUGH OF MIDDLETOWN et al., Defendants



The opinion of the court was delivered by: SHERIDAN

 This is the first federal case to adjudicate the constitutionality of a nocturnal juvenile curfew ordinance. Despite the widespread prevalence of juvenile curfew ordinances, there is a surprising paucity of legal authority dealing with the validity of such enactments, there being no federal cases and relatively few state cases. *fn1"

 In an earlier decision, the court denied defendants' motion to dismiss the complaint finding that this case presents a justiciable controversy under Article III of the Constitution which the plaintiffs have standing to litigate, and the court denied plaintiffs' motion for a preliminary injunction on the basis of the abstention doctrine. Bykofsky v. Borough of Middletown, M.D.Pa.1975, 389 F. Supp. 836. The court also noted in that decision that no relief would be granted with respect to one of the defendants -- the Borough of Middletown -- because the Borough is not a "person" within the meaning of 42 U.S.C.A. § 1983 and therefore not subject to suit under the Civil Rights Act.

 After the court denied plaintiffs' request for a preliminary injunction and defendants' motion to dismiss the action, the Borough of Middletown enacted a new juvenile curfew ordinance which replaced the one then in effect. Subsequently, plaintiffs filed a "motion for supplemental pleadings" pursuant to Rule 15(d) of the Federal Rules of Civil Procedure and a "motion for amended supplemental complaint" pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, both which the court granted, thereby enabling plaintiffs to challenge the new ordinance in this action.

 The court having previously decided that it should abstain from the issuance of preliminary and permanent injunctive relief, the case is presently before the court on plaintiffs' request for a declaratory judgment holding unconstitutional the new criminal ordinance of Middletown which imposes a curfew on minors under the age of eighteen. The trial on the merits was held on May 15, 1975, at which evidence was adduced with respect to the validity of the Borough's curfew.

 The curfew ordinance *fn2" prohibits any minor under the age of eighteen from being on or remaining in or upon the streets within the Borough of Middletown between the hours of 10:00 P.M. (minors under twelve years of age), 10:30 P.M. (minors twelve or thirteen years of age), or 11:00 P.M. (minors fourteen through seventeen years of age) and 6:00 A.M., unless the minor comes within one of the following exceptions:

 (a) The minor is accompanied by a parent (defined to include a legal guardian, a person who stands in loco parentis, or a person to whom legal custody has been given by court order);

 (b) The minor is accompanied by an adult authorized by the parent to take the parent's place in accompanying the minor for a designated period of time and specific purpose within a specified area;

 (c) The minor is exercising first amendment rights protected by the Constitution, such as free exercise of religion, freedom of speech, and the right of assembly, provided the minor first has given notice to the Mayor of the Borough by delivering to the communications center personnel at the Borough Municipal Building a written communication signed by the minor and countersigned if practicable by a parent of the minor which specifies when, where, in what manner, and for what first amendment purpose the minor will be on the streets at night during the curfew time period;

 (d) In a case of reasonable necessity but only after the minor's parent has communicated to the Middletown police station personnel "the facts establishing such reasonable necessity relating to specified streets at a designated time for a described purpose including points of origin and destination";

 (e) The minor is on the sidewalk of his residence, or on the sidewalk of either next-door neighbor, so long as the neighbor does not object to the minor's presence on his sidewalk;

 (f) The minor is returning home by a direct route from, and within thirty minutes of the termination of, a school activity or an activity of a religious or other voluntary association, provided prior notice of said activity and the place and probable time of termination has been given in writing to the Chief of Police or the officer assigned by him on duty at the police station;

 (g) The minor has been authorized, by special permit obtained from the Mayor, to be on the streets during the curfew hours for normal or necessary nighttime activities inadequately provided for by other exceptions in the ordinance;

 (h) The minor is a member of a group of minors permitted by a "regulation" issued by the Mayor to be on the streets during the curfew hours for normal or necessary nighttime activities inadequately provided for by other exceptions in the ordinance, there being too many persons involved for use of the individualized permit procedure of exception (g) above;

 (i) The minor carries a certified card of employment;

 (j) The minor is in a motor vehicle with parental consent for normal travel, with interstate travel through Middletown excepted in all cases from the curfew;

 (k) A minor is seventeen years of age and is excepted from the curfew by "formal rule" promulgated by the Mayor excepting designated minors, minors in a defined group or area, or all minors seventeen years of age.

 The ordinance further provides that it is unlawful for a parent having legal custody of a minor knowingly to permit or by inefficient control to allow such minor to be on or remain upon the street in violation of the curfew. "Knowingly" is defined as including knowledge which a parent should reasonably be expected to have concerning the whereabouts of a minor in his legal custody. When the police find a minor in prima facie violation of the curfew, the ordinance provides that the minor shall be taken to the police station, the parent called, and the parent and minor interrogated to determine the relevant facts, after which the minor is to be released to the parent's custody. If the parent cannot be located or fails to take charge of the minor, the juvenile is released to the juvenile authorities.

 The Mayor is authorized in the curfew ordinance to give advisory opinions, in writing, which are binding with respect to the interpretation of the ordinance. The ordinance states that a constitutional construction is intended and shall be given, and provides for continuing evaluation and updating of the enactment by the Borough council. Finally, the ordinance contains a very specific and detailed severability provision which states that severability is intended throughout and within the provisions of the ordinance.

 Plaintiffs contend that the curfew ordinance: (1) is unconstitutionally vague; (2) violates the substantive due process rights of minors, specifically, the right to freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others; (3) violates the first amendment guarantees of freedom of speech, freedom of association, and freedom of assembly; (4) violates the fundamental right of interstate travel; (5) violates the constitutional right of intrastate travel; (6) impermissibly encroaches on the constitutional right of parents to direct the upbringing of their children and violates the constitutional guarantee of family autonomy; and (7) is violative of the equal protection clause of the fourteenth amendment. Petitioners' contentions will be considered seriatim.

 VAGUENESS

 A legislative enactment which either forbids or requires the doing of an act in language so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law -- to wit, providing fair warning and notice of what is prohibited or required so that one may act accordingly. Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888; Coates v. City of Cincinnati, 1971, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L. Ed. 2d 214; Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110; Grayned v. City of Rockford, 1972, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222; Smith v. Goguen, 1974, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S. Ct. 618, 619, 83 L. Ed. 888. In addition, laws must provide reasonably clear standards for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement. Smith v. Goguen, supra; Grayned v. City of Rockford, supra; Papachristou v. City of Jacksonville, supra; Coates v. City of Cincinnati, supra; Interstate Circuit v. Dallas, 1968, 390 U.S. 676, 684-685, 88 S. Ct. 1298, 20 L. Ed. 2d 225; Shuttlesworth v. Birmingham, 1965, 382 U.S. 87, 90-91, 86 S. Ct. 211, 15 L. Ed. 2d 176. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, Grayned v. City of Rockford, 408 U.S. at 108-109, 92 S. Ct. 2294, and vague standards result in erratic and arbitrary application based on individual impressions and personal predilections, Interstate Circuit v. Dallas, 390 U.S. at 684-685, 88 S. Ct. 1298. Legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion. Legislation which is ambiguous, imprecise, and vague "does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat." Shuttlesworth v. City of Birmingham, 1965, 382 U.S. 87, 90, 86 S. Ct. 211, 213, 15 L. Ed. 2d 176.

 Mindful of these values which the void for vagueness doctrine is designed to protect, the court turns to plaintiffs' challenge to the provisions of the curfew ordinance. Plaintiffs' vagueness argument centers on the language contained in the exceptions that permit minors to be on the streets under certain circumstances during the curfew hours.

 Plaintiffs contend that Section 5(d) of the ordinance which allows a minor to be on the streets during the curfew time period in a case of "reasonable necessity" is unconstitutionally vague. In Cameron v. Johnson, 1968, 390 U.S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182, the Supreme Court upheld the constitutionality of a statute which prohibited "picketing . . . in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any . . . county . . . courthouses . . .." The Court stated:

 
". . . The terms 'obstruct' and 'unreasonably interfere' plainly require no guessing at their meaning.' Appellants focus on the word 'unreasonably.' It is a widely used and well understood word and clearly so when juxtaposed with 'obstruct' and 'interfere.' We conclude that the statute clearly and precisely delineates its reach in words of common understanding. . . ." (Footnotes omitted.)

 The word "unreasonable" seems to have been well understood by the framers of the Constitution when they used it in the fourth amendment, where it remains and is enforced to this day. A jury in a criminal case is instructed it must find the defendant guilty beyond a reasonable doubt, and the reasonableness standard pervades the law of torts. In Nash v. United States, 1913, 229 U.S. 373, 33 S. Ct. 780, 57 L. Ed. 1232, the Court, in an opinion by Justice Holmes, sustained as a sufficiently definite criminal standard the "rule of reason" of the Sherman Anti-Trust Act. In Edgar A. Levy Leasing Co. v. Siegel, 1922, 258 U.S. 242, 42 S. Ct. 289, 66 L. Ed. 595, the Court upheld in a civil context state rent control legislation which allowed as a defense to a landlord's action his tenant's showing that the rent charged was "unjust and unreasonable." In United States v. Ragen, 1942, 314 U.S. 513, 62 S. Ct. 374, 86 L. Ed. 383, the Court sustained a conviction for federal income tax evasion predicated upon the defendant having taken a deduction which violated the statutory mandate that only a "reasonable allowance for salaries" might be excluded from taxable income. "Reasonable" is juxtaposed with "necessity" in Section 5(d). "Necessity" is defined as the quality or state of fact of being in difficulties or in need, a condition arising out of circumstances that compels to a certain course of action. Webster's Third New International Dictionary (Unabridged)(1963). In United States v. Vuitch, 1971, 402 U.S. 62, 91 S. Ct. 1294, 28 L. Ed. 2d 601, the Court held that a statute which prohibited abortions except when "necessary for the preservation of the mother's life or health" was not unconstitutionally vague. This court concludes that the curfew exception for "reasonable necessity" is not impermissibly vague. Accord: People v. Walton, 1945, 70 Cal.App.2d Supp. 862, 161 P.2d 498. To strike down this exception would remove from the ordinance a desirable flexibility that enables the law to be applied in a rational manner to any given situation, including circumstances not now foreseeable. "Reasonable necessity" is a widely used and well understood phrase that constitutes an ascertainable, fixed standard.

 Plaintiffs also focus on the phrase "normal . . . night-time activities" as used in Section 5(g). The court agrees that the word "normal" in this context is unconstitutionally vague. "Normal" is defined as according to, constituting, or not deviating from an established norm, rule, or principle, as conforming to a type, standard, or regular pattern. Webster's Third New International Dictionary (Unabridged) (1963). The curfew ordinance fails to set forth any guidelines as to what is to be deemed "normal" nighttime activity for minors. Nightwalking simply for exercise or enjoyment is not abnormal, yet it is apparent the ordinance proscribes this conduct by the unaccompanied minor during the curfew hours. Thus, this exception to the curfew ordinance, with the inclusion of the word "normal," places almost unfettered discretion in the hands of the Mayor, who is given no guidance in the ordinance as to what constitutes "normal" nocturnal juvenile activity within the underlying purposes of the ordinance. See Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110. Therefore, the word "normal" is unconstitutionally vague.

 Likewise the court holds that the phrase "a minor well along the road to maturity" as used in Section 5(g) is impermissibly vague. The ordinance does not specify what indicia of maturity the Mayor is to use in applying this exception. Therefore, as with "normal" nighttime activities, the Mayor is left to his own personal predilections and beliefs.

 The ordinance has a severability clause which states that severability is intended throughout and within the provisions of the curfew ordinance. See Section 9. It also has another provision, Section 5(1), which reemphasizes severability with respect to the curfew exceptions, both internally and as regards the rest of the ordinance. Therefore, Section 5(g) with the deletion of the word "normal" and the phrase "particularly a minor well along the road to maturity" is constitutional. The exception contained in Section 5(g) will be limited to necessary nighttime activities with no consideration of the "maturity" of the minor by the Mayor in deciding whether to grant a special permit, although what is a necessary nighttime activity can still vary with the age of the minor.

 The court agrees with plaintiffs that the additional requirement set forth in Section 5(h) that the Mayor issue a regulation if ". . . consistent with the public interest . . ." is unconstitutionally vague. This confers upon the Mayor virtually unbridled discretion to deny requests for regulations and allows him to be guided by his own personal concept of "public interest" in deciding whether to promulgate a regulation since there are no standards embodied in the ordinance for guidance. See Shuttlesworth v. Birmingham, 1969, 394 U.S. 147, 89 S. Ct. 935, 22 L. Ed. 2d 162. Thus the court holds that the Mayor may not refuse to issue a regulation on the ground that it is inconsistent with the public welfare, although he may refuse to do so on the basis that the issuance of a regulation would be inconsistent with the purposes of the curfew ordinance, which are set forth in Section 2.

 With the deletion of "normal" nighttime activities and "consistent with the public interest," Section 5(h) as so modified, pursuant to the severability provisions of the ordinance, is constitutional.

 Plaintiffs next challenge the word "normal" as used in Section 5(j), which provides that a juvenile is excepted from the curfew "when the minor is, with parental consent, in a motor vehicle. This contemplates normal travel. . . . This clearly exempts bona fide interstate movement through Middletown, particularly on normal routes such as the Pennsylvania Turnpike, Route 230 (Main Street), Vine Street to connect with Route 283, Route 441 or at times Ann Street and the Wilson Street bridge." The court believes that in this context the word "normal" is not vague. "Normal travel" refers to travel otherwise permitted by an exception to the curfew which is undertaken by motor vehicle, to interstate travel beginning or ending in Middletown, or to interstate travel passing through Middletown. Likewise the phrase "normal routes," referring to normal routes of interstate travel, is clear in meaning in the context of Section 5(j). Thus the court holds that Section 5(j) clearly delineates its reach in words of common understanding and is not impermissibly vague.

 Plaintiffs argue that Section 5(k), which empowers the Mayor by "formal rule" to except designated minors, minors in a defined group or area, or all minors seventeen years of age from the curfew provisions, contains the following vague standards: (1) when it is in the "best interests of said minors and of the Borough," (2) makes a finding that the minors have attained "a sufficient degree of maturity," and (3) makes a finding "that the Curfew Ordinance should be relaxed as an incentive to and recognition of approaching maturity." The court agrees with plaintiffs that the latter two phrases pertaining to "a sufficient degree of maturity" and "as an incentive to and recognition of approaching maturity" are impermissibly vague for the same reasons stated previously with respect to Section 5(g): there is no indicia of maturity set forth in the ordinance for the Mayor to utilize and hence his personal predilections and values will govern instead of fixed standards. The court rejects, however, plaintiffs' assertion that "best interests of said minors and of the Borough" is impermissibly vague. While taken from its context the phrase may be meaningless, within the framework of the curfew ordinance and, specifically, the text of Section 5(k) it is obvious that the "best interests of said minors and of the Borough" is governed by and given meaning by the underlying purposes of the ordinance which have been set forth in Section 2 of the ordinance. In short, the Mayor is directed to promulgate a "formal rule" only if the purposes of the ordinance will be furthered. With the deletion of the aforementioned two phrases pertaining to "maturity," Section 5(k) is constitutional.

 Finally, plaintiffs challenge on the ground of vagueness one word used in the general text of the ordinance: they argue that the definition of "remain" set forth in Section 3(d) is ambiguous and hence the ordinance is vague. "Remain" is defined in Section 3(d) as "to stay behind, to tarry and to stay unnecessarily upon the streets, including the congregating of groups (or of interacting minors) totalling four or more persons in which any minor involved would not be using the streets for ordinary and serious purposes such as mere passage or going home." Section 3(d) then goes on to state that the word "remain" is used in a sense that makes the curfew ordinance the "remaining" type rather than "a mere prohibitory or presence type."

 First, the court notes that whether the statutory language of a curfew ordinance prohibits "remaining" or "being" on the streets is insignificant because "remain" and "to be" are generally given synonymous interpretations at the enforcement level for the obvious reason they have as a practical matter in the curfew context no intelligible difference in meaning, and a judicial determination on this ground as to the validity of an ordinance is mere semantics and untenable. See, Note, Curfew Ordinances And The Control Of Nocturnal Juvenile Crime, 107 University of Pennsylvania Law Review 66, 98-100 (1958). In short, this court apprehends no significant difference with respect to meaning or constitutional validity between a "prohibitory or presence" type curfew and a "remaining" type curfew. Attempts to define words in terms of one type of curfew or the other is meaningless and can be confusing.

 While the definition of "remain" set forth in Section 3(d) is cumbersome and more complex than need be, it is not unconstitutionally vague. Section 4 clearly states that it shall be unlawful for any person subject to the curfew ". . . to be or remain in or upon the streets within the Borough." Thus it is self-evident that a minor during the curfew hours must not be upon the streets of the Borough, unless he qualifies under one of the several exceptions set forth in the ordinance, and then he may be on the street only to the extent permitted by the exception. Therefore, the word "remain" as defined and used in the ordinance is not impermissibly vague.

 In summary, the court holds that the curfew ordinance, with the aforementioned word and phrase deletions from curfew exceptions contained in Sections 5(g), 5(h) and 5(k), is not unconstitutionally vague. The ordinance prohibits minors of specific age groups from being on the streets of the Borough during clearly specified hours unless they are accompanied by a parent or otherwise qualify under one of the numerous exceptions. The exceptions are necessarily couched in language which classify the types of activities and the kinds of circumstances which are outside the proscription of the ordinance, it being impossible to compile an all-inclusive list of every factual situation which would warrant a minor being present on the streets during the curfew hours. The ordinance clearly gives fair warning as to what is proscribed and through mayoral advisory opinions (see Section 9) provides a means for the citizenry to determine officially in any given factual situation what is prohibited. Cf. Cox v. Louisiana, 1965, 379 U.S. 559, 568-569, 85 S. Ct. 476, 13 L. Ed. 2d 487 ("near" the courthouse not impermissibly vague, particularly in light of on-the-spot administrative interpretation by officials charged with enforcing statute upon which demonstrators could rely). The ordinance contains no broad invitation to subjective or discriminatory enforcement and does not deposit unbridled or unlimited discretion in the hands of the law enforcement officials.

 The Constitution does not require impossible standards. United States v. Petrillo, 1947, 332 U.S. 1, 7-8, 67 S. Ct. 1538, 91 L. Ed. 1877; see Roth v. United States, 1957, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. A more precise articulation of what the curfew ordinance intends would be most difficult, if possible at all, and the values which the void for vagueness doctrine furthers are adequately protected by this ordinance. Indeed the precision seemingly demanded by plaintiffs with respect to this curfew ordinance would, if deemed constitutionally required, make it next to impossible to draft any curfew ordinance, or for that matter, any criminal statute. It will always be true that the fertile legal "imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question." American Communications Assn. v. Douds, 1950, 339 U.S. 382, 412, 70 S. Ct. 674, 691, 94 L. Ed. 925. Furthermore, as Justice Holmes observed, "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment . . .; he may incur the penalty of death." Nash v. United States, 1913, 229 U.S. 373, 377, 33 S. Ct. 780, 781, 57 L. Ed. 1232. In short, laws expressed in words of general applicability ultimately must be applied to specific factual circumstances. Thus, while there must be definiteness and ascertainable standards so that men of common intelligence can apprehend the meaning of the ordinance, perfect precision is neither possible nor constitutionally required. "Condemned to the use of words, we can never expect mathematical certainty from our language." Grayned v. City of Rockford, 408 U.S. at 110, 92 S. Ct. at 2300. The court holds that the Middletown curfew ordinance is not impermissibly vague.

 SUBSTANTIVE DUE PROCESS RIGHTS OF THE MINOR

 The Supreme Court has not yet articulated the special factors that determine how existing frameworks for analyzing the rights of adults are to be applied to minors. While the Court has recognized that minors are persons under the Constitution "possessed of fundamental rights which the State must respect," Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 511, 89 S. Ct. 733, 739, 21 L. Ed. 2d 731, it has dealt explicitly only with first amendment rights, Tinker v. Des Moines Independent Community School District, supra, (symbolic speech); West Virginia State Bd. of Education v. Barnette, 1943, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (mandatory flag salute), equal protection claims, Brown v. Board of Education, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (school desegregation), and procedural due process questions, Breed v. Jones, 1975, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (minor is put in jeopardy at juvenile court adjudicatory hearing and hence double jeopardy clause of fifth amendment prohibits his prosecution for same offense as an adult); Goss v. Lopez, 1975, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (right to notice and informal hearing before suspension or expulsion from school); McKeiver v. Pennsylvania, 1971, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (no right to jury trial in juvenile court proceedings); In re Winship, 1970, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (proof beyond reasonable doubt necessary for conviction of minors in juvenile proceedings); In re Gault, 1967, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (minors have right to notice, counsel, confrontation, cross-examination, and privilege against self-incrimination in juvenile court proceedings); Gallegos v. Colorado, 1962, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (inadmissibility of involuntary confessions against minors); Haley v. Ohio, 1948, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (same as Gallegos), all arising in the context of the educational system or juvenile court proceedings. The Court has refrained from analyzing the "totality of the relationship of the minor and the State." Ginsberg v. New York, 1968, 390 U.S. 629, 636, 88 S. Ct. 1274, 1279, 20 L. Ed. 2d 195, citing In re Gault, 1967, 387 U.S. 1, 13, 87 S. Ct. 1428, 18 L. Ed. 2d 527.

 However, it is apparent that the constitutional rights of adults and juveniles are not co-extensive. In McKeiver v. Pennsylvania, 1971, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647, the Court declined to impose the right to a jury trial on juvenile court proceedings thereby denying to minors a fundamental right of the adult criminal justice system. First amendment rights of minors are not "co-extensive with those of adults." Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. at 515, 89 S. Ct. at 741 (Stewart, J., concurring). "[A] state may permissibly determine that, at least in some precisely delineated areas, a child -- like someone in a captive audience -- is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees." Ginsberg v. New York, 1968, 390 U.S. at 649-650, 88 S. Ct. at 1286 (Stewart, J., concurring). In assessing whether a minor has the requisite capacity for individual choice the age of the minor is a significant factor. See Rowan v. Post Office Dept., 1970, 397 U.S. 728, 741, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (Brennan, J., concurring). "The state's authority over children's activities is broader than over like actions of adults" and ". . . the mere fact a state could not wholly prohibit this form of adult activity . . . does not mean it cannot do so for children"; ". . . with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms . . .." Prince v. Massachusetts, 1944, 321 U.S. 158, 168, 170, 64 S. Ct. 438, 443, 88 L. Ed. 645. Thus this court holds that the conduct of minors may be constitutionally regulated to a greater extent than those of adults.

 The rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others are basic values "implicit in the concept of ordered liberty" protected by the due process clause of the fourteenth amendment. United States v. Wheeler, 1920, 254 U.S. 281, 293, 41 S. Ct. 133, 65 L. Ed. 270; see Griswold v. Connecticut, 1965, 381 U.S. 479, 500, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (Harlan, J., concurring); Palmer v. City of Euclid, 1971, 402 U.S. 544, 546, 91 S. Ct. 1563, 29 L. Ed. 2d 98 (Stewart, J., concurring); cf. Cox v. Louisiana, 1965, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471; Coates v. City of Cincinnati, 1971, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214; Shuttlesworth v. City of Birmingham, 1965, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176; Cox v. Louisiana, 1968, 379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487; Cox v. New Hampshire, 1941, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049; Edwards v. California, 1941, 314 U.S. 160, 62 S. Ct. 164, 86 L. Ed. 119; Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 18 L. Ed. 745 (1867). One may be on the streets even though he is there merely for exercise, recreation, walking, standing, talking, socializing, or any other purpose that does not interfere with other persons' rights. As the Supreme Court stated in United States v. Wheeler, 1920, 254 U.S. 281, 293, 41 S. Ct. 133, 134, 65 L. Ed. 270:

 
"In all the states, from the beginning down to the adoption of the Articles of Confederation the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom, with a consequent authority in the States to forbid and punish violations of this fundamental right. Corfield v. Coryell, 4 Wash.C.C. 371, 380, 381, 6 F. Cas. 546, Fed. Cas.No.3,230; Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 76, 21 L. Ed. 394."

 No right is more sacred, or is more carefully guarded, by the liberty assurance of the due process clause than the right of every citizen to the possession and control of his own person, free from restraint or interference by the state. The makers of our Constitution conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man. Union Pacific Railway Company v. Botsford, 1891, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L. Ed. 734; Olmstead v. United States, 1928, 277 U.S. 438, 478, 48 S. Ct. 564, 72 L. Ed. 944 (Brandeis, J., dissenting). Uninhibited movement is essential to freedom. Baker v. Bindner, W.D.Ky.1967, 274 F. Supp. 658, 662; see Aptheker v. Secretary of State, 1964, 378 U.S. 500, 84 S. Ct. 1659, 12 L. Ed. 2d 992.

 However, personal freedoms are not absolute, and the liberty guaranteed by the due process clause implies absence of arbitrary interferences but not immunity from reasonable regulations. Gere v. Stanley, 3 Cir. 1971, 453 F.2d 205, aff'g M.D.Pa.1970, 320 F. Supp. 852; see Zeller v. ...


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