Opinion
Case No. 00-1065-JTM
August 25, 2000.
MEMORANDUM AND ORDER
Currently pending before the court is the plaintiffs' motion for a preliminary injunction. The City of Wichita ("City") has responded to the motion and seeks a pretrial ruling on whether the City's policy of taking minor curfew violators into temporary custody violates the Fourth Amendment. The court has carefully considered the parties' submissions and is prepared to rule. For the reasons set forth below, the court finds that the City's policy of taking curfew violators into temporary custody does not violate the Fourth Amendment and the plaintiffs' motion for a preliminary injunction should be denied.
I. Facts
The City has a curfew ordinance which makes it unlawful for minors to be in public places during certain times, subject to several exceptions. City Ord. § 5.52. The current version of the ordinance has been in effect since August 1997. Prior to that date, the City's curfew ordinance provided for municipal court prosecution and fines for curfew violators. However, efforts to minimize the victimization and/or criminal activities of juveniles during curfew hours had "overwhelmed Municipal Court and the Law Department." Aug. 19, 1997 Agenda Report, at 1. Therefore, through a community effort between the City and the Juvenile Intake and Assessment Center ("JIAC"), a plan of action was adopted to address the method of handling curfew violators. Under this plan, minors are no longer prosecuted in municipal court for curfew violations. Rather, police officers transport curfew violators to JIAC. A JIAC staff member notifies a parent or guardian to pick up the child. When the parent or guardian arrives at JIAC, a juvenile assessment officer serves them a notice of curfew violation. If the child is a repeat curfew violator, then JIAC staff serve a Uniform Criminal Complaint upon the parent or guardian. The parent is prosecuted in municipal court for the curfew violation. The necessary ordinance amendments were approved by the City Council and implemented by the Wichita Police Department.
The current ordinance prohibits minors ages fifteen and under from being in public places after 11:00 p.m. on week days and after 12:00 a.m. (midnight) on Fridays and Saturdays. Sixteen and seventeen year olds must be in by 12:00 a.m. (midnight) every day and by 1:00 a.m. on Fridays and Saturdays. The curfew ends at 6:00 a.m. each day. Minors do not violate the curfew ordinance if they are: (1) accompanied by their parents or someone else with legal custody; (2) running emergency errands; (3) attending or traveling to or from school, religious, or other recreational activities supervised by adults; (4) engaging in or traveling to or from employment; (5) on a sidewalk that abuts the minor's residence or a next-door neighbor's residence; (6) attending or traveling to or from First Amendment activities; or (7) traveling on an interstate highway through the City.
Minors who violate the curfew ordinance "shall be dealt with in accordance with juvenile court law and procedure." City Ord. § 5.52.030. "Any police officer finding a minor under the age of eighteen years violating the provisions of this chapter shall warn the child to desist from such violation and immediately return home and shall cause a written notice to be served upon the parent, guardian or person in charge of such child." Id. Thus, for first time violations, the parents of the minor receive only notice that the minor has violated the curfew ordinance. If a minor has a second violation, the parents are subject to a $50 minimum fine and a $500 maximum fine, plus costs. For subsequent offenses, the parents are subject to a $100 dollar minimum fine and a $500 dollar maximum fine, plus costs. As an alternative to making the parents pay a fine for second and subsequent offenses, minors can be ordered to perform community service.
The City has a written policy that directs police officers to take minors into custody if they violate the curfew ordinance. The policy provides in pertinent part as follows:
Before taking any enforcement action, an officer shall ask the offender's age and reason for being in the public place. The officer shall not take a minor into custody unless the officer reasonably believes that an offense has occurred and that, based on any response and other circumstances no defense . . . is present.
Once an officer determines that a minor is in violation of the City's Curfew Laws the officer will take the minor into custody. The officer will complete a Curfew Violation Report . . . and transport the minor to JIAC.
WPD Policy 305, §§ 305.27, 305.28.
Wichita Police Officers arrested Carly Peckman and Kirsten Firner for violating the curfew ordinance in the early morning hours of September 18, 1999. On September 17, Peckman and Firner went bowling with some friends. Afterward, they went to their friend Tiffany Johnson's house to spend the night. Sometime after 11:00 p.m., Firner called Cory Pronold, a twelve-year-old boy whom the girls knew and who lived a couple of blocks away. Pronold asked the girls over to his father's house. The girls asked Johnson's mom if they could visit Pronold. Johnson's mom replied that Johnson could not go, but she did not care if Peckman and Firner went.
Firner was initially named as a plaintiff in this case. She has since dismissed her claims.
Around midnight, Peckman and Firner walked to Pronold's house. After the girls arrived, they sat on Pronold's deck, which abuts a golf course. Jason Doeblin, another minor, also joined the children on the deck. At some point, Pronold's father came out to the deck, visited with the children, and then returned inside.
While the four children were visiting, four police officers came into Pronold's backyard and began questioning the children about whether they had been on the golf course. Apparently, some residents had complained that there had been some children with flashlights on the fairways. The officers asked the children how old they were and if their parents knew where they were. The girls told them that they were thirteen and that their parents knew that they were spending the night at Johnson's, but they did not know that they were at Pronold's house. The officers ultimately determined that the children had not been on the golf course, but they took them into custody for violating the curfew ordinance. A female police officer transported the girls to JIAC. At JIAC, the girls were photographed and asked questions, and their parents were called to pick them up.
In this action, plaintiffs seek damages, injunctive relief and declaratory relief against the City. They do not challenge the constitutionality of the curfew ordinance itself, but they claim the police department's policy requiring the arrest of curfew violators violates their Fourth Amendment rights. The City argues that its policy of taking curfew violators into temporary custody is reasonable under the Fourth Amendment.
II. Fourth Amendment
"Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74 (1976). Like adults, minors are "protected by the Constitution and possess constitutional rights." Id. (citing Breed v. Jones, 421 U.S. 519 (1975); Goss v. Lopez, 419 U.S. 565 (1975); Tinker v. Des Moines School Dist., 393 U.S. 503 (1969); In re Gault, 387 U.S. 1 (1967)). However, the Supreme Court "long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults." Id. at 74-75 (citing Prince v. Massachusetts, 321 U.S. 158, 170 (1944); Ginsberg v. New York, 390 U.S. 629 (1968)). Therefore, "children's rights are not coextensive with those of adults." Hutchins v. District of Columbia, 188 F.3d 531, 541 (D.C. Cir. 1999) (citing Prince, 321 U.S. at 169). "So `although children generally are protected by the same constitutional guarantees . . . as are adults, the State is entitled to adjust its legal system to account for children's vulnerability' by exercising broader authority over their activities." Id. (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)).
Because the State has broader authority to regulate children's activities, many curfew ordinances, similar to the one in this case, have withstood constitutional challenges. See, e.g.,Hutchins, 188 F.3d 531 (involving First, Fourth and Fourteenth Amendment claims); Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir. 1998), cert. denied, 526 U.S. 1018 (1999) (involving First Amendment challenges), Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993), cert. denied, 511 U.S. 1127 (1994) (involving Fourteenth Amendment challenges); Ramos v. Town of Vernon, 48 F. Supp.2d 176 (D.Conn. 1999) (involving First, Fourth and Fourteenth Amendment challenges). As previously mentioned, however, plaintiffs in this case are not challenging the constitutionality of the curfew ordinance; rather, they are challenging the constitutionality of the City's policy that requires violators to be taken into custody. They claim the City's policy infringes on their Fourth Amendment right to be free from unreasonable seizures.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. Amend. IV. The Fourth Amendment's reasonableness requirement is satisfied when a seizure is based upon probable cause. See Pino v. Higgs, 75 F.3d 1461, 1467 (10th Cir. 1996).
Generally, minors have been unsuccessful in their attempts to challenge provisions in curfew ordinances that permit violators to be taken into custody for violations. See Hutchins, 188 F.3d at 535, 548 (ordinance provided that "[i]f, after questioning an apparent offender to determine his age and reason for being in a public place, a police officer reasonably believes that an offense has occurred under the curfew law and that no defense exists, the minor will be detained by the police and then released into the custody of the minor's parent, guardian, or an adult acting in loco parentis."); Ramos, 48 F. Supp.2d at 179-80, 186 (ordinance provided that "[i]f a minor under sixteen fails to heed a warning or has been warned on a previous occasion, a police officer can take the minor to the Police Department and notify the parent, guardian or other adult person having the care and custody of the minor."); Schleifer v. City of Charlottesville, 963 F. Supp. 534, 550 (W.D.Va. 1997) (ordinance is enforced by warning first time offenders and taking them into custody for release to their parents or to a temporary care facility); Waters v. Barry, 711 F. Supp. 1125, 1137-38, 1142 (D.D.C. 1989) (ordinance required curfew violators to be detained at the nearest police headquarters and to be released into the custody of their parents or an adult person acting in loco parentis). Like the plaintiffs in this case, minors have argued that arresting them for curfew violations impinges on their Fourth Amendment rights.
For example, in Hutchins, the plaintiffs argued that the curfew violated the Fourth Amendment because it allowed police officers to arrest minors without probable cause. Specifically, the curfew provided that a police officer could not make an arrest "`unless the officer reasonably believes that an offense has occurred.'" 188 F.3d at 548 (quoting the curfew ordinance). The D.C. Circuit found that this formulation "is precisely how the Supreme Court has defined probable cause, see Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.E.2d 726 (1963), and the curfew therefore conforms to the requirements of the Fourth Amendment." Id.
In Waters, the court ultimately invalidated a curfew ordinance applicable to minors. However, it rejected similar arguments plaintiffs in this case make with regard to the Fourth Amendment claim. In doing so, Judge Richey provided an insightful and well-reasoned analysis of the Fourth Amendment as it pertains to juvenile curfew laws. He stated in pertinent part as follows:
The plaintiffs challenge on Fourth Amendment grounds those provisions of the [curfew law] which permit the arrest and detention of juveniles if they are unable to document: (1) that they are properly on the street during the curfew period, or (2) that they are older than 18 years of age. The plaintiffs contend that the [curfew law], by permitting such arrests and detentions, "repeals pro tanto the Fourth Amendment's protection of [juveniles], for ordinarily the police cannot constitutionally demand, on pain of arrest and detention, that a person whose behavior is in no way suspicious stop and provide identification." The plaintiffs argue that the Act "authorizes massive and utterly groundless seizures of young adults. . ."
The [c]ourt disagrees. The plaintiffs' argument reflects, in essence, an attempt to find in the Fourth Amendment an absolute right to be free from searches and seizures, a right that cannot be limited by the government's power to criminalize certain forms of behavior. The [c]ourt finds no such absolute right in the Fourth Amendment. Instead, as the very language of the Fourth Amendment provides, a right to be free from such intrusions exists only so long as there is not probable cause to believe that an offense has been committed.
Here, the [City] has attempted to criminalize the public presence of juveniles during the curfew hours. . . . [T]he proscriptions of the [curfew law] . . . provide . . . valid substantive references for determining the presence or absence of probable cause in a given case. Although the purported crime is utterly simple — nocturnal, public youth — that simplicity causes the type of proof required to justify a search or seizure to be similarly uncomplex. Thus, were a police officer to reasonably conclude that an individual looked "young" — that he or she looked like a minor — the officer would have "probable cause" to believe that the individual was engaged in an illegal act, i.e., being on the streets during the curfew period. If the individual could not prove that he or she was over 18, or that he or she fell within one of the [curfew law's] other exceptions, the officer would be entitled to place the individual under arrest. So long as the officer could reasonably have believed that the individual looked "young," the search, seizure or arrest would take place on the basis of probable cause and no Fourth Amendment violation would occur.
Id. at 1137-38 (footnotes omitted); see also Ramos, 48 F. Supp.2d at 186 (quoting portions of Waters and finding no Fourth Amendment violation); Schleifer, 963 F. Supp. at 550-51 (same).
The court is persuaded by Judge Richey's analysis and concludes that the City's policy of taking curfew violators into custody does not violate the Fourth Amendment. Like the ordinance at issue in Waters, the City's policy provides "valid substantive references for determining the presence or absence of probable cause in a given case." Waters, 711 F. Supp. at 1138. Specifically, "[b]efore taking any enforcement action, an officer shall ask the offender's age and reason for being in the public place." WPD Policy 305, § 305.27. A police officer is not permitted to take minors into custody "unless the officer reasonably believes that an offense has occurred and that, based on any response and other circumstances no defense . . . is present." Id. As the Hutchins court pointed out, this formulation is precisely how the Supreme Court has defined probable cause. Therefore, the City's policy conforms to the requirements of the Fourth Amendment.
Plaintiffs further argue that their arrests were not authorized by state law. The court must reject this argument. Plaintiffs bring their claims under 42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
"Section 1983 creates a federal cause of action to redress violations of federal statutory or constitutional rights by state officials acting under color of law." Schorfhaar v. McGinnis, 2000 WL 977310, at 3 (6th Cir. July 7, 2000). Because section 1983 is intended to redress violations of the federal constitution, the court looks to federal law, rather than state law, to determine whether a Fourth Amendment violation has occurred. See United States v. Le, 173 F.3d 1258, 1264-65 (10th Cir. 1999) ("It is, however, well established in this circuit that `in federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers.'") (quoting United States v. Miller, 452 F.2d 731, 733 (10th Cir. 1971)); see also Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 595 (10th Cir. 1999) (finding that the court does not look to state law in determining the scope of federal rights);United States v. Bell, 54 F.3d 502, 504 (8th Cir. 1995) ("[W]e do not think Fourth Amendment analysis requires reference to an arrest's legality under state law."). "An arrest by state officers is reasonable in the Fourth Amendment sense if it is based on probable cause." Id. In this case, the court has found that the plaintiffs' arrests were reasonable because they were based on probable cause. That is, the police are not authorized to take juveniles into custody unless they reasonably believe a curfew violation has occurred.
III. Preliminary Injunction
The Tenth Circuit summarized the rules relating to preliminary injunctions in SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) (citation omitted):
In order to obtain preliminary injunctive relief, the moving party must establish:
(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.
A preliminary injunction is an extraordinary remedy. See Federal Lands Legal Consortium ex. rel. Robart Estate v United States, 195 F.3d 1190, 1194 (10th Cir. 1999); Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 111 F.3d 1485, 1489 (10th Cir. 1997). Therefore, the right to relief must be clear and unequivocal. See Chemical Weapons, 111 F.3d at 1489.
Plaintiffs have failed to meet their burden in their attempt to obtain a preliminary injunction. First, in light of the court's finding that the City's arrest policy does not violate the Fourth Amendment, the likelihood of plaintiffs eventually prevailing on the merits is slight. Second, plaintiffs have not shown that they will suffer irreparable injury unless the court issues an injunction. They have invoked the jurisdiction of this court under 42 U.S.C. § 1983; therefore, they have a legal remedy available to them to redress any past constitutional violations. As for future injuries, plaintiffs do not allege that they intend to engage in conduct that would violate the curfew ordinance, making them susceptible to being arrested. Third, the harm to the City that would result from prohibiting it from taking curfew violators into custody outweighs any possible injury to plaintiffs. The City's goal in taking curfew violators to a centralized pick-up site is to protect juveniles from becoming victims of crime, to prevent juvenile involvement in crime, and to notify parents about their children's whereabouts. If police officers merely were to send children on their way, there would be no way of knowing whether the children returned safely to their homes. By taking curfew violators to JIAC, the City assures that children will be safely returned to the care of a responsible adult. In addition, by transporting the offenders to a centralized location, JIAC officials are able to identify repeat offenders and determine how they should be handled. Finally, the public interest is best served by denying a preliminary injunction. As previously mentioned, the City's policy helps to ensure juveniles are returned to a safe environment. If children are left on the streets to fend for themselves, they risk becoming the victims of crime or becoming involved in criminal activity.
In light of the court's finding that the city's policy is constitutional and its decision denying plaintiffs' request for a preliminary injunction, the parties are instructed to submit briefs on or before August 25, 2000, setting forth the remaining issues in this case.
IT IS THEREFORE ORDERED this _____ day of August, 2000, that plaintiffs' motion for a preliminary injunction (dkt. no. 5) is denied and that the parties shall submit briefs as indicated above