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Aug 09 2011

Philly Curfew Law Likely to Be Challenged

Due to an increase in violence caused by “flash teen mobs” Philadelphia Mayor Michael Nutter announced the passage of a strict curfew for minors on the streets of Philly. The current curfew on the books in Philadelphia is 10:00 p.m. for those under 13; 10:30 p.m. for those 13 to 17 years old Sunday through Thursday and 12:00 a.m. on Friday and Saturday. The Friday and Saturday time has now been reduced to 9p.m. As with most of today’s “protect the children” laws, this rule came about due to a high profile incident last week where a flash mob of 20-30 youths (some as young as 11) went on a rampage and attacked and injured two people. The mayor issued some fighting words:

So, if you want to be aggressive, we’re going to be aggressive. And let me just share this with you. We’ve got the biggest, baddest gang in town – a committed group of citizens and a committed government and we’re working together and we’re not going to have this nonsense anymore

The law however is likely to face a court challenge as being unconstitutional. I am already surprised that no one has challenged the present Philly curfew, since constitutional challenges to curfews have been a common occurrence. Curiously, however, the Third Circuit (which is the federal appeals court that covers the Philadelphia area) has apparently never ruled on the subject. So the question may be ripe for a decision from the Third Circuit, which could then ultimately result in the case going up to the Supreme Court as different Circuit Courts around the country have decided this issue in a variety of ways.

Not the kind of flash mob Mayor Nutter is worried about


The problem with curfew laws is that minors’ rights can be restricted more than adults’ rights. All courts agree that States have a compelling interest in protecting minors from harm. The controversy arises when you factor in the minors’ right to free travel and the parents’ rights to raise their children as they see fit as long as they are neither neglectful nor harmful. The split among the courts is in much scrutiny to apply to the curfew laws in reviewing their constitutionality. Because minors can be more regulated than adults, minors are not part of a “suspect class” (like classes based on race, gender, religion) so their classification would not be entitled to “strict scrutiny” – the highest level and the hardest for laws to pass. Also while the right to travel is an important liberty right, states have regularly been allowed to restrict travel in certain instances; this means that the “right” involved may not require a strict scrutiny analysis either. But because the right to travel freely is an important liberty interest, and because age has been viewed as a suspect class with respect to discrimination against older persons (especially in the workplace), courts do no apply the “rational basis” standard in reviewing curfews. This standard essentially says as long as the government can articulate a rational reason for enacting the law, it will stand.

Most courts have applied an mid-level of scrutiny which requires the State to show that the law has strong state interest behind it. The laws are looked at with skepticism and curfews that are tailored against particular conduct or geographical areas have a higher chance of passing muster. Courts apply this skeptical analysis in part because youth are not politically empowered and have difficulty obtaining access to courts and legislatures. Philly’s law which blanketly prohibits youths under 18 from being on the street after 9PM is very broad and sweeping. While a flash mob’s attack on two people is a horrible crime, the Mayor will have to show that rampant violence on the streets by youth is a regular occurrence that causes harm. Courts will look at crime statistics to determine if the State has a a sincere interest in restricting the travel of minors. Without the numbers to back up his claim that the curfew is an attempt to rein in lawlessness, Mayor Nutter’s curfew is not likely to pass the test should it be challenged.

I will leave it to others (or at least a later post) to discuss the appropriateness of the government deciding that a Philadelphian 17 year old should not be on the streets after 9pm, or whether that is a decision best left in the hands of a parent (or the 17 year old themselves). What other plans could the City have enacted to prevent the flash mob problem but not require high school students to be in their homes by 9pm on the weekend? More policing perhaps? Strict punishment for those engaging in acts of violence? Perhaps the City could have added the lateness of the hour as an aggravating factor to an assault case that would elevate the penalties for offenders. I think this one will have to play out in court, unless the citizens of Philly are happy with the curfew and do not challenge it.

7 comments

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  1. Rebecca Wall

    How can I get involved? I have a wonderful 16 (almost 17) year old son who has done nothing wrong and is being punished by this curfew. He is not wandering the streets but is going to a specific venue to spend time with friends playing games. How can I find other parents who feel the way I do about this and want to do something?

  2. Mimi

    Regarding the recent violent flash mobs in Phila.: Curfews place restrictions , just as martial law which other countries have experienced. (I believe this could happen in America one day) In any case, some measures needed to be taken. There are numerous, respectful,independant teens in Phila,coming from work at night to help their families, performing at concerts, and participating in worthwhile activities, etc . A native Philadelphian, I would appreciate some positve words from the Mayor.Commend before you offend. We have productive teenagers here, who are also suffering the consequences of the actions of unsupervised young people with a lack of self respect. No recess for all. You would have to live here to experience the mentality of the ignorant. Ignorance is UNIVERSAL.Teens of all races drinking, walking the streets in areas with well manicured lawns. Notice the mentality of many young people’s parents today. Placing the blame. Why did an action take so long? The problem is… when Flash mobs, droves of teenagers acted chaotically ,the LOCATION (POLITICAL/VOTES)(Business venues) became important.There are decent young people and indecenti People are attacked in Philly all the time. Lets be REAL RE ELECtion. The incident became a platform. Isn’t this all a part of the campaign for politicians. No one should ever have to experience bullies or assaults, solo or otherwise. In many countries people are portrayed as having to be monitored or “civlized”. We have wonderful children in Phila who would love not to have others putting them restriction. (PEER pressure) Whatever the tactic…socitey WORDWIDE makes wild street parties look inviting and cool. (Sports…Mardi Grais) Let our enthusiasm be directed positively. Young people do respond when they see wrongdoing. Its so sad when the streets become the BULLIES violent playground. To place limitations probably would upset any parent who is accustomed to having their child stay out at night irresponsibly(aaaahh), but what a shame for those who are calling to say Dad, Mom, Grandmom…I”m OK and I’m on my way home. Hopefully . In this economy…challenge requires who you know and resources. Politicians network. With all the divisiveness in the city…is networking an option? Look at all the families that abided by the “law”. Spending quality time with adults.Please post when the subject of a curfew is challenged in Phila. PS I agree that this is how “travel” restrictions get put into place. How much is GAS again? POLITICS

  3. Oscar Michelen

    Parents should contact their local branch of the ACLU to see if they are considering a challenge. The other option is along the lines of Mimi’s post which is organize parents who oppose the curfew (at PTA meetings and other venues) to petition and contact their local politicians to let them know that they oppose the curfew.

  4. Denise Long

    I am pissed off at this law right about now. I was just in court tonight and Philadelphia had at least 25 or more juveniles who were arrested for curfew. My son was one who happened to be with an adult but was not allowed to explain to the officers his situation. With all this being said, we don’t even live in Philadelphia. We are residents in NJ. I understand you have issues in your city , but to punish innocent children who may be visiting or touring the city is ridiculous not to mention, that this is on their record for the rest of their life unless someone like myself fights it! Furthermore the punishment is even more ridiculous. Court appearance which you are offered a trial, guilty plea, or a class which you can take more than once if you committed the offense for $200.00. The courts leave the parent no choice but to pay the $200.00 for the class because if they don’t, then their child who has never been in trouble….will be left with a record. I mean where does the responsibility come into play with the officers and this mayor. I am going to trial with my child to fight!!!! He has never been in trouble and again was with an adult who happened to be a few feet away from him and my son explained that to the officer. Shame because the same officer, saw them earlier that night and never said anything to my child and saw him with the adult. This is nothing but a rotten way to make money to pay for things Philadelphia. I mean it’s clear, that it’s not about the curfew or a crime because tonight I got to see that theft and curfew get the same punishment. Come on! What’s even more interesting is that if you commit more than once….you get the option of taking the $200.00 class more than once. Is that really teaching a real offender a lesson? No it isn’t! You parents need to start advocating for your children especially if they are good kids and have never been in trouble. Signed A Mom and Dad Who Care!!!

  5. Oscar Michelen

    Great comment and thanks for posting – I will take your comment and add a new post on this topic becaue I agree that this is a travesty

  6. Tyler S.

    I totally disagree with this law. However, I live in maryland and am going to philly for a concert. I’m also 13. Will I be affected by this law since im on vacation there and am only traveling to and from the concert or will i get thrown in the slammer also?

    1. Oscar Michelen

      I don’t think they are enforcing the law but if they did it would apply to all not just Philly residents.

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