Walter Stahr to the City Council: “Curfew Ordinance”

Dear city council,

I believe Aaron Harp is incorrect when he suggests that the 365-day part of the new curfew ordinance is not much of a change to the city’s existing law.

The current curfew makes it illegal for those under the age of eighteen to “loiter or idle” in public places after 10 p.m. or before 6 a.m.

The new curfew makes it illegal for them to “be” in public places in those hours.

In other words it will suddenly become illegal for those under eighteen to walk, bicycle, run, or drive in public places after 10 p.m. or before 6 a.m.

There are some exceptions but many common activities are not covered by the exceptions.

For example, my hypothetical early morning runner could not I think fairly claim to come within the exception for traveling directly to or from his or her home. Almost by definition a runner takes a circuitous course.

A teenager who goes to another teenager’s house after 10 p.m. to discuss math homework could perhaps rely upon this exception. But if the two teenagers then went to a third teenager’s house, to continue their discussion, at least one of them would violate the curfew.

Several teenagers walking to look out over the ocean from a park and then heading home by a roundabout if pleasant route would clearly violate the new curfew—even though they would not violate the old curfew because they were not loitering or idling.

Hundreds of teenagers are going to violate the letter of the new curfew every night. Thousands of teenagers are going to violate the new 6 p.m. to 6 a.m. West Newport holiday curfew. After all it is broad daylight at 6 p.m. on Memorial Day, July Fourth, and Labor Day; teenagers are going to be out and about in public places. It is also daylight before 6 a.m. on July 5 and some teenagers will be up and around at that time as well. So the city council has passed a law that it knows will be broken hundreds and thousands of times.

I am reminded of the comments of William Howard Taft, former judge and former president, as the nation considered whether to enact national prohibition. Nothing, Taft warned, was as dangerous as passing laws which would not be enforced—for such laws encourage people to disrespect and violate all laws. Prohibition would prove Taft right—as millions of Americans violated the prohibition laws they also violated other laws.

There is no indication in the staff memo that there has been a serious legal analysis of the new curfew statute. I see two likely lines of attack.

The first is an attack on the curfew as an unjustified and unconstitutional infringement of the rights of minors to be “out and about” between the hours of 10 p.m. and 6 a.m. As the Ninth Circuit noted in a case about a San Diego juvenile curfew, Nunez v. City of San Diego, 114 F. 3d 935 (9th Cir. 1997), Americans have a fundamental right of free movement. The rights of teenagers are less extensive than those of adults but they too have rights including the right to move around after dark and in the early morning.

The second is an attack on the West Newport section of the curfew as a violation of the California Constitution and the Coastal Act. “Everyone has the right to enjoy the California coast,” the Coastal Commission website reminds us. “You might like to walk on the beach, have a picnic with family, play catch, make a sandcastle, surf, fish, or just relax and watch the waves.” The new curfew means that, unless accompanied by an adult, teenagers could not enjoy the West Newport Beach Coast, or the surrounding streets and sidewalks, on three national holidays after 6 p.m. I think it unlikely the Coastal Commission will allow this part of the new curfew to stand.

Walter Stahr