The Kickham Comment - Boston Criminal Attorney Blog
Striking down a city ordinance that I am sure was well-meaning and not malignant in its intent, the Massachusetts Supreme Judicial Court (SJC) yesterday ruled unconstitutional a city of Lowell ordinance making it a crime of youths under the age of 17 to be on city streets after 11:00 PM unless accompanied by an adult.
This case was a classic civil liberties challenge to government oversight of public conduct that, in itself, is benign. The municipal ordinance was passed by the city of Lowell in 1994, after that city was wracked by years of youthful violence and youth gang activity. Many such crimes involved Massachusetts drug offenses, including murder. In fact, only two months prior to passage of the ordinance, a 16-year-old was beaten to death in a gang-related slaying. The curfew banned persons under the age of 17 from being on the city’s streets unless accompanied by a parent or a guardian. The law provided several exceptions, including for youths who held night-time jobs, were on the sidewalk next to their homes, or were participating in certain recreational or religious activities. Individuals who were convicted of violating the curfew could be fined up to $300. They could also be deemed a delinquent and placed on probation. If they violated the terms of their probation, the law stated that they could be committed to the custody of the Department of Youth Services (DYS) until the age of 18.
For the years 1998 through 2002, city police arrested and arraigned an average of 60 juveniles a year for criminal violations of the curfew, according to statistics provided by the Asian American Legal Defense and Education Fund, an organization that helped support the legal challenge that overturned this law. That averages to about 12 arrests per year, or one per month. It should be noted that the Asian American Legal Defense and Education Fund became involved in this issue, due to the large concentration of Cambodian youths and families living in Lowell. Lowell Police have asserted for years that Cambodian youth gangs are numerous and dangerous in Lowell, and the facts have supported that claim. Cecilia Chen, a lawyer for the Asian American Legal Defense Fund, commented that the curfew upset Lowell’s large Cambodian community and claimed that police in that city engaged in racial profiling. “It assumes that youth are up to no good by simply being out at night,’‘ she said.
The problem is, a lot of youths out on the streets late at night, are up to no good. Incidents involving assault and battery , sexual assault and rape were not infrequent in that city (as is true with other crime-plagued communities in Massachusetts). Kenneth E. Lavallee, Lowell police superintendent, said taking away from police the power of arrest deprives officers of a critical tool, especially for suspicious or repeat violators. “This whole ordinance was enacted to protect children, to keep them safe and keep them out of an environment where harm could come to them,” he said. “This wasn’t done to infringe upon anybody’s rights.”
I believe him – and I believe that the intent behind this ordinance was entirely benign and laudable – to decrease violent crime in that violence-plagued city – crime that was visibly being committed by youthful offenders. However, as a Massachusetts criminal defense lawyer, I could have told the drafters of this ordinance that the problem was in the overbroad nature of the way the law was drafted. It simply went too far in criminalizing conduct that in and of itself was not criminal, and overreaching in restricting individual liberties; in this case, the right to walk on a public street.
Writing this opinion for the court, Justice Robert J. Cordy wrote, “The criminal processes and punishments provided in the ordinance . . . contradict well-established goals of rehabilitating, not incarcerating, juvenile offenders.” Essentially, the court found that the right to travel is a fundamental civil liberty, and any law that restricts that right must pass stringent constitutional tests, which this law did not. Importantly, however, the court left intact civil penalties for violators of that ordinance. Civil penalties impose fines, instead of subjecting the violator to arrest or detention. With some exceptions, the law will still allow police to fine juveniles who are found on the streets unaccompanied by an adult from 11 p.m. to 5 a.m. The fine for that violation is $50, and a written notice sent to the youth’s parents or guardians.
This ruling was important because, in an effort to battle youth crime committed at night, several Massachusetts cities and towns had enacted similar juvenile curfews, and this ruling is the first time a Massachusetts state court has ruled on whether such curfews are legal. (Other Massachusetts communities enacting curfews to curb crime, have included Lynn, Holyoke, and Chicopee).
Lawyers who successfully challenged this law plan to meet in the near future with Middlesex County District Attorney Gerard T. Leone Jr., as well as Lowell city lawyers, to discuss revising the statute. In my opinion as a Boston criminal defense attorney, they will re-write the ordinance to just keep the civil penalty – and I think that’s a good idea. I’d have only one recommendation: Put the fine at $100.00.