Rochester's curfew for teens ruled unconstitutional

Published on 10/11/2008 written by Michael Zeigler and Stephanie Veale, Staff writers

Although an appeals court ruled Friday that Rochester's nighttime curfew for children 16 and younger is unconstitutional, Mayor Robert J. Duffy vowed to appeal and continue enforcing the curfew.

In a 3-to-2 decision, justices from the Appellate Division of state Supreme Court ruled that the 2-year-old curfew violates the constitutions of New York and the United States.

Among those violations, the court said, were free-speech rights.

"The ordinance prohibits the presence of minors in any 'public place' for five or six hours each day ... and thereby restricts expression in all public forums for approximately one-fourth of each day," the majority wrote.

Duffy said the city intends to appeal to New York's highest court, the state Court of Appeals.

"The curfew has been established and enforced with the best interests of our youth in mind," Duffy said.

"The curfew has always been designed to protect our youth from being victims of crime or from becoming involved in crime," he said.

At a news conference Friday, Duffy said he'd heard no complaints from parents about the curfew, though he knows it'snot popular with many teens.

He believes the curfew helps some parents enforce the rules of their own homes.

"No good things happen on the street corner at 3 in the morning," Duffy said. "The curfew is about saving lives. ... It's not the answer to our problems, but it's a tool."

Although appeals to the Court of Appeals aren't automatic, the city could stand a better chance in convincing the high court to hear its case because of the split decision. The Court of Appeals has the final word on New York law.

The curfew was extended through December 2009 in a 5-to-3 City Council vote last month.

City Council member Carolee Conklin has consistently opposed the curfew since its inception two years ago.

"I have always felt it was an unconstitutional law targeting young people. I still feel that way," Conklin said, adding, "I don't fault the mayor for continuing on with a program that he supports until all appeals have been exhausted."

Conklin said she does not believe the curfew is the best use of funds when it comes to solving problems with city youth.

City Council initially approved the curfew in 2006, partly to lessen the chance of teenagers becoming victims or perpetrators of crime.

The curfew went into effect on Sept. 5, 2006, and required children 16 and younger to be at home from 11 p.m. to 5 a.m. Sundays through Thursdays, and from midnight to 5 a.m. on Fridays and Saturdays.

The ordinance establishing the curfew also gave six exceptions.

The exceptions included teens who were accompanied by a parent, guardian or "other responsible adult"; teens engaged in lawful employment; teens attending school or religious activities; and teens exercising fundamental rights of free speech under the state and federal constitutions.

Teens who violated the curfew could be arrested by police and charged with a violation — a noncriminal infraction in the state Penal Law.

Ifeyinwa Obieke, 17, was stopped by a police officer a year or two ago when she was walking from the store to her cousin's house after curfew.

She says the officer let her go because she was so close to her destination when he stopped her.

Obieke, a student at Franklin Global Media Arts High School, says she doesn't think the curfew is effective.

"If I'm going to do bodily harm to someone, I'm not going to wait until 11 p.m. to do it," Obieke said. "Young people are getting killed in the daytime, too. The curfew's not going to eliminate the homicides and the crime rate. It's a waste of money."

She added, "No 16-year-old should be in the streets after 11 o'clock ... (but) I still see kids out, and I feel like the money (the city) spent is not worth it. It's not making any progress. If we put that to education, into books, it would make progress."

After the curfew began, the father of a teenage boy, now 16, filed a lawsuit against the city, arguing that the curfew illegally restricted their rights.

In a decision in February 2007, state Supreme Court Justice Thomas Van Strydonck ruled that the curfew wasn't too broad when balanced against the city's intent to protect youths from becoming involved in illegal activity.

The judge, however, questioned the curfew's usefulness.

"Curfew laws are said to provide legislators with the ability to project an image of being for law-and-order and of being tough on crime," Van Strydonck wrote.

The teenager and his father appealed to the Appellate Division, which found that the city was superseding state laws — the Family Court Act and another part of the Penal Law — by allowing teens younger than 16 to be charged with a violation.

With the exception of some felonies, "the age of 16 is the minimum age for criminal responsibility," the court said in its majority decision, written by Associate Justice Samuel L. Green.

The minority dissent, written by Associate Justice Robert J. Lunn, agreed with the majority's ruling that teens under 16 can't be charged with violations.

But the minority held that the ordinance establishing the curfew "provides only for the temporary detention of curfew violators" by the police.

"...We conclude that the ordinance does not unconstitutionally restrict the rights of parents and all persons defined as minors under the ordinance and that it is consistent with New York State law as it applies to minors under the age of 16," Lunn wrote.