Indiana curfew struck down by Seventh Circuit - for now.

Saying that an Indiana curfew statute "creates a chill that unconstitutionally imposes" on minors' First Amendment rights, the Seventh Circuit has over-turned a ruling that allowed the curfew to be enforced. (Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004).) But because the circuit's decision did not address the plaintiffs' additional arguments regarding parents' due process rights, legislators and civil rights activists are gearing up for another curfew showdown in the state.

In August 1999, 16-year-old Colin Hodgkins was arrested for violating a statewide, 11 p.m. curfew for minors after he left a restaurant with teenage friends a few minutes after the hour. Hodgkins and his family sued, claiming that the law infringed on protected First Amendment activities, such as attending political rallies or neighborhood association meetings. The law allowed exceptions to the curfew only when the child was accompanied by a parent or when he or she was going to or from a job or a religious or school-sanctioned event.

After a district court declared the law unconstitutional, the Indiana General Assembly passed an amended curfew law, which created an affirmative defense for protected activities, including those covered by the First Amendment. The new law, said Ken Falk, legal director of the Indiana Civil Liberties Union in Indianapolis and plaintiff lawyer, "meant that you could legitimately be arrested and then be required to prove down the line that you had justification [to be out past the curfew]. That certainly doesn't protect your First Amendment interests."

The plaintiffs sued again, alleging that the new law not only lacked First Amendment protection for minors, but also violated the Fourteenth Amendment by taking away parents' control over when their children maybe outside unaccompanied.

Writing for a unanimous three-judge panel, Judge Ilana Rovner said that the potential for minors engaged in protected First Amendment activities to be arrested, tested for drugs, and questioned about their activities--even with the affirmative defense of the amended law--represents "a substantial price for a minor to pay in order to take part in a late-night political or religions event." She also noted that adult accompaniment was not the answer: "To condition the exercise of First Amendment rights on the willingness of an adult to chaperone is to curtail them," Rovner wrote. Despite little research evaluating their efficacy as crime-fighting tools, curfew laws remain popular, particularly in law enforcement.

"It's a cop's dream to be able to stop anybody who they say appears to be a minor," said Martin Guggenheim, a New York University law professor who specializes in juvenile law. "A 23-year-old on a street corner at 2 a.m. can be stopped not because there is probable cause to believe the person is committing a crime. You only need probable cause to believe that the person is violating the juvenile curfew law. What's so interesting about the Seventh Circuit case is that the court got the system in trouble for doing what it really is about: Here the police admitted they arrest first and ask questions later."

The Seventh Circuit justices did not address the law's effect on parents' rights to make decisions about their children. However, the panel noted that the range of activities covered under the law's affirmative defense gives parents "greater flexibility to allow their children to stay out after hours and in that way minimize[s] interference with parental autonomy."

Such a qualified ruling, said Guggenheim, is typical in challenges to curfew laws. "Most courts have concluded that a nocturnal curfew with exceptions that permit parents to allow their children to do things in a variety of circumstances is consistent with parental rights," he said. "The broadest challenges to these laws have been unsuccessful. For the most part, challenges are brought on creative, narrow grounds of the sort that succeeded in the Seventh Circuit."

The appeals court said it would leave the parental due process claim "for another day"--and that day may be coming soon. The case is scheduled to return to federal court in Indianapolis for a ruling on a motion for an injunction at the same time that the general assembly is busy preparing the final draft of a new curfew statute.

That bill, said Falk, "attempts to address the Seventh Circuit's concerns but does not address the right of parents to allow their children to be out after curfew. If [the legislature] ends up with a statute that is not constitutional in our estimation, then we'll probably bring another case." The Hodgkins family, he said, "believes as do I that there has to be an exception for parental rights."