Request By:
Hon. Michael L. McInnis
Attorney at Law
8503 Turnside Drive
Louisville, Kentucky 40222
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of July 3 in which you as legal representative of the city of Plantation state that the city has been plagued in recent years with vandalism and other illegal acts during the early morning hours. Under the circumstances the city is considering adopting an ordinance imposing a curfew to control this problem. Your specific question is as follows:
"May a Fifth Class City enact an ordinance that imposes a curfew from midnight to six o'clock a.m. on all persons under the age of eighteen to facilitate vandalism mitigation based upon said City's "home rule" powers?"
There is no question concerning the city's right to enact so called curfew ordinances under its home rule provision, namely KRS 82.020. The real problem is enacting an ordinance that would be constitutionally sustainable under the 1st and 14th Amendment rights of the individual. Curfew ordinances have sometimes been upheld and in many other instances declared unconstitutional for the reason mentioned, and we therefore can only refer you to certain general principles involving curfew ordinances and those particularly relating to juveniles. Incidentally, there is little or no law in Kentucky that we can find dealing with this subject. However, initially referring to McQuillin, Mun. Corp., Vol. 5, Sec. 19.30 we quote the following excerpts taken from this section:
"Liberty of the person, secured against the federal government by the Fifth Amendment and against state governments including municipal corporations by the Fourteenth Amendment and by express provisions of state constitutions, includes liberty to be or go where one pleases, subject also to governmental restrictions constituting due process of law. Accordingly, an ordinance which results in restriction of movement must contain standards in order to be reasonable and prevent arbitrary enforcement.
"With reference to curfew laws and ordinances restricting minors from being in public places or on the streets at late hours unless in search of a physician, or unless with a parent or guardian, etc., such laws or ordinances both have been sustained and held not justified as an exercise of the police power to protect the peace and good morals of the community.
"But the imposition of curfew regulations can only be justified by a clear showing of emergent necessity, since such regulations drastically curb the individual's freedom."
One of the late cases dealing with juvenile curfew ordinances is Johnson v. City of Opelousas, 658 F.2d 1065 (1981), 488 F.Supp. 433. The curfew ordinance in this case involved minors under the age of 17 which forbid their appearance during specific hours on public streets, in parks and places of amusement and entertainment and other public places unless accompanied by an adult or where performing an emergency errand. This ordinance was declared constitutionally overbroad since it had the effect of negating paternal consent for such activities, forbid legitimate employment and interstate travel through the municipality, and further since it did not meet needs to protect the special vulnerability of minors. Thus the court declared that it violated the 1st Amendment rights of minors and their parents. The curfew in this ordinance extended from 11:00 p.m. to 4:00 a.m. except on Friday and Saturday nights when it did not take effect until 1:00 a.m.
On the other hand, the text in Matthews, Mun. Ord., Sec. 40.39 contains the following recommendation to avoid the invalidation of juvenile curfew ordinances for being overbroad:
"To avoid invalidation for overbreadth, a municipal juvenile curfew ordinance should contain all of the exceptions missing from the Opelousas enactment. First, the ordinance should permit minors subject to the curfew to return home from associated activities by a direct route within a reasonable time of their termination, e.g., 30 minutes or an hour. The ordinance should also except minors who are engaged in legitimate employment at night and can produce evidence of their employment. Finally, it should exempt minors in motor vehicles engaged in normal travel, particularly minors traveling through, to or from a municipality on interstate trips."
In view of the above, we can only say that the city can probably impose a curfew on juveniles but only under certain emergency conditions and provided it is not too vague and overbroad in its application. However, the real answer can only be determined by the courts when and if such an ordinance is enacted and tested.