Idaho appeals court throws out city’s curfew law

Wednesday, April 1, 2009

BOISE, Idaho — The Idaho Court of Appeals said yesterday that curfew rules in the town of Wendell violate the constitutional rights of kids.

In the unanimous ruling, the appellate court agreed with a teenage boy identified only as John Doe, who was ticketed for being out past curfew when he was a passenger in a vehicle stopped by police for a traffic violation.

Doe’s attorney, David Heida, argued before the court in January that the city rule barring youngsters under 18 from being out between 11 p.m. and 5 a.m. violates the First Amendment because it doesn’t allow an exception for free-speech activities, like midnight church services or attending late-running city council meetings.

Representing the south-central Idaho town, Idaho Deputy Attorney General Kenneth Jorgensen told the court that the appeal had no merit because Heida failed to offer any evidence that the teen was exercising his constitutional rights or had parental permission to be out after curfew when he was ticketed.

But the appellate court found that the city’s rule was simply too broad.

“There is a real and substantial risk that the ordinance will inhibit the speech of parties not before the court,” Judge Sergio A. Gutierrez wrote. “Therefore the Wendell curfew ordinance is void on its face.”

The ordinance’s three exceptions allow minors to be out after curfew if they have to run emergency errands, if they are accompanied by a parent or guardian, or if they are out on legitimate business authorized by a parent or the school.

“The Wendell curfew ordinance does not specifically target First Amendment activities; rather it aims to control certain conduct deemed harmful to the well-being of the city. However, by controlling conduct, the ordinance also controls expression,” Gutierrez wrote for the panel, which included Chief Judge Karen L. Lansing and Judge Darrel R. Perry. “If a minor wishes to attend a midnight church service, participate in a city council meeting, or join a protest voicing any number of social or political views, he must first weigh that desire against the possibility of being cited for violating the curfew ordinance.”

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