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2010-02-04T15:11:00.000-08:00

Agency fee.

2009-04-30T06:29:00.000-07:00

A strong union is important for public librarians. We are on the cutting edge of an amazing information revolution. Our job description has changed dramatically over the last 15 years. We must now be fluent with new tools of technology in addition to the traditional fluency in literature being accessed by that technology.

We are caught between extremely rapid advances in the manifestation of information, on the one hand, and, on the other hand, library administrators who lag behind even the general public in knowledge of technology - but who nevertheless make decisions affecting our day-to-day workplace situations.

Indeed, public libraries now see the need to redefine their very identity and mission. A strong union is not only important in helping librarians survive these difficult times. A strong union is also important for the general public by charting the way for the future of the public library in our society. What is more valuable in this regard than meaningful input by our front-line rank-and-file librarians?

Unfortunately, our union has not been up to this challenge. Instead of a strong union we have a union dominated by management - and unable to exert any real change in regard to systemwide decisions.

The Librarians Guild is the labor union representing librarians at the Los Angeles Public Library. The Guild is composed of both rank and file librarians and their supervisors. Far more significant is that LAPL supervisors sit on the Guild's Executive Board - making union decisions for rank-and-file employees. If you're thinking - "isn't that a "conflict of interest" or doesn't that constitute management domination of a union - you're thinking the same as I did for years.

Even in cases where supervisors could be members of a rank-and-file union they cannot hold office in the union. Where a member is promoted to supervisor and wants to keep his ". . . union membership as a form of job security or as a means of retaining union benefits, such persons may not be candidates for or hold office." (29 CFR 452.47).

Back in 1991 I filed a grievance regarding a workplace issue - not realizing that my supervisor (against whom it was filed) happened to be Vice-President of the union. I saw then - first hand - how the supervisors on the Executive Board stonewalled my grievance. And I realized then how the rights of individual rank-and-file employees cannot be protected in a situation where the people against whom a grievance is filed are the very same people who decide the fate of the grievance!

I quit the union in protest over this issue. And I resisted the imposition of agency fees as a non-member because of this.

What is "agency fee"? The union must represent every employee within the bargaining unit, whether or not the employee is a member of the union. Agency fees are intended to compensate for this work (so that the employee must pay his "fair share" and doesn't receive a "free ride" - to use the union's language). They are calculated by taking the union's costs of representation -- contract negotiations and other forms of representation -- and dividing those among all employees. They are generally less than member dues, and employees are generally required to either join the union and pay dues, or pay the lower "agency fee."

Although agency fee may seem reasonable for most unions it is not reasonable in the case of the Librarians Guild.

See my reasoning taken from the body of my challenge to the fee:

Date: April 30, 2009

Re: Challenges **************
re Notice to All Non-Member Employees Paying Agency Fees to Council 36, Deadline May 8, 2009

This is my response to "Notice to All Non-Member Employees Paying Agency Fees to Council 36, Deadline May 8, 2009" ("Notice") which I recently received from Council 36 of the American Federation of State, County and Municipal Employees (AFSCME).

The Notice sets forth a calculation by the union of my purported "fair share fee" (i.e., agency fee) as a non-member of Council 36 - described (at p. 5) as follows: " . . . 67.17% of the fair share fees deducted from nonmembers' payroll" are "fully chargeable".

The Notice includes procedures for objecting to or challenging the payment of - or to the calculation of - said fee and it states (at p. 7) that "All challengers will automatically be treated as objectors . . . ".

Challenges:

1) As a rank-and-file employee, I am not responsible for expenses of negotiating the Supervisory Librarians' Contract - nor for expenses of adjusting supervisory librarians' grievances.

Membership of the Librarians Guild, Local 2626 ("Guild") consists of both rank-and-file employees and their supervisors. The Notice fails to consider that the Guild negotiates on behalf of TWO different bargaining units. It negotiates BOTH of the following: a) a Rank & File Librarians' Contract, and, b) a Supervisory Librarians' Contract. Likewise, the Guild adjusts grievances both for supervisors and for those whom they supervise.

I am a rank and file librarian with the Los Angeles Public Library ("LAPL"). Supervisory librarians are part of a different bargaining unit.

Chicago Teachers Union v. Hudson (475 US 292, 1986) authorizes collection of agency fees ". . . to finance expenditures by the Union for collective-bargaining, contract-administration, and grievance-adjustment purposes". In this regard, it contemplates the collective bargaining, etc, to be only for the non-member's particular bargaining unit - not for other bargaining units.

In other words, whatever could be my share of expenses in negotiating the contract for my bargaining unit (in order not to have a "free ride"), I should not be responsible for the expenses of negotiating the supervisory librarians contract, etc. Therefore whatever - if anything - could be determined to be a total fair share percentage of bargaining, etc, expenses needs to be divided by two (AT THE VERY LEAST - see below).

2) Supervisors negotiating for - and supervisors adjusting grievances of - those whom they supervise is a conflict of interest which I should not be required to support.

Year after year, the Executive Board of the Guild is packed with supervisors. Currently the President of the Guild, the Secretary-Treasurer of the Guild and the Guild's publication editor (an at-large Board Member) are all branch managers. The Guild's Recording Secretary is a higher level manager. And two of the Guild's trustees are at nearly the highest levels of management.

This constitutes a conflict of interest because the Executive Board negotiates rank-and-file contracts and adjusts rank-and-file grievances.

"It takes no vivid imagination to see that, due to its closeness to management, the supervisory personnel might (and in many instances do) possess divided loyalty, rendering them ill-equipped to conduct labor negotiations and settle sensitive labor disputes from the standpoint of both the employer and the union. Recognizing the inevitable conflict of interest deriving from divided loyalty, the authorities and legal scholars go even further than the statute and either question the extension of representation rights to supervisory and managerial employees, or urge legislative amendment of the MMB Act to exclude supervisors from coverage by negotiated agreements." (United Clerical Employees, Local 2700 v. County of Contra Costa (76 CalApp 3d at p. 128).

The Guild negotiates two contracts for two different units whose interests directly conflict with each other - one for supervisors and one for those whom they supervise. Therefore, the Guild (which acts as exclusive negotiating representative for members of the bargaining units - just as a lawyer acts as exclusive representative for his clients) should receive ZERO compensation for negotiating where there is a conflict of interest - under the same principle that a lawyer is subject to denial or disgorgement of legal fees when involved in a conflict of interest.

Furthermore, I should not be forced to support an unfair labor practice (for supervisors to handle rank-and-file grievances).

Supervisory employees are on the Executive Board of the Guild which adjusts rank-and-file grievances. However, supervisory employees are precluded from voting on or otherwise handling, a grievance of a rank-and-file employee.

The Meyers-Milias-Brown Act (CAL.GOV.CODE §3500 et seq) is applicable to local government employees. It is silent on this issue. However, California state employee supervisors are prohibited from handling a rank-and-file grievance under CAL.GOV.CODE §3529(b). The case, Public Employees of Riverside County, Inc. v. County of Riverside(1977) 75 Cal.App.3d 882, holds that the Court should look to the state Employer-Employee Relations Act in analyzing the Meyers-Milias-Brown Act. Therefore, CAL.GOV.CODE §3529(b) also applies to local government employees

3) So long as management employees are members of the Guild, I should not be required to support an organization which is in violation of the City Employee Relations Ordinance.

Employee Relations Ordinance of the City of Los Angeles ( "ERO") Sec. 4.822(a)(7) states the following:
"(7) Management or confidential employees shall not be included in the same unit with other employees.".
Library Branch Managers (Senior Librarians) and even higher level Regional Managers (Principal Librarians) are members of the Guild.

Branch Managers fall within the definition of "Management Employee" which is defined by ERO Sec.4.801 as follows:

"An employee having significant responsibilities for formulating or administering City or departmental policies and programs".

LAPL Branch Managers do, in fact, have significant responsibilites for administering Library policies and programs.

Note that the law looks at the facts of what employees do - not to their job title in this regard:

" . . . the determination of "managerial" or "supervisory" is a matter of degree and depends on the authority actually exercised. (NLRB v. Bell Aerospace Co. (1974) 416 U.S. 267, . . . Whether an employee is a supervisor who possesses genuine management prerogatives and exercises independence of judgment is essentially a question of fact. (N.L.R.B. v. Bama Company (5th Cir. 1965) 353 F.2d 320, 322. . . The factual determination, however, does not depend solely on the job title, but rather on all the facts of the case." (United Clerical Employees v. County of Contra Costa, 76 Cal. App. 3d 119).

LAPL Branch Managers develop and administer the policies of their branch and they administer the policies of the Library Department. They have descretion to formulate programs and to determine what type of programs - and what specific programs - their branches offer to the public. The Branch Manager is also responsible for the nature and content of the library's collection (what will be available to the public). He/she is responsible for staff discipline, determines staff schedules, and regulates the flow of staff interaction with the public at his/her branch.

National Labor Relations Board has noted, "managerial status is not conferred upon rank and file workers or upon those who perform routinely, but rather it is reserved for those in executive type positions, those who are closely aligned with management as true representatives of management." Bell Aerospace (1975) 219 NLRB 384.

LAPL Branch Managers have the day-to-day responsibilities of managing their libraries. They are, indeed, in an executive type position - true representatives of management to the public and also to their own staff.

Therefore, so long as Branch Managers are members of the Guild, the Guild is in violation of ERO 4.822(a)(7) and I should not be required to support an organization which is operating contrary to the ordinance.

4) The Guild is both a "professional organization" as well as a labor union. Therefore, the Notice's data is based on an unfair comparison of different types of organizations.

The Guild purports to be more than a labor union. It purports to be a professional organization. The Guild web site (http://www.librariansguild.org/) states the following:

"The Librarians' Guild represents the professional librarians of the Los Angeles Public Library. It is Local 2626 of AFSCME (American Federation of State, County & Municipal Employees). It is a member of AFSCME District Council 36. The Librarians' Guild is both a labor union and an organization representing the professional concerns of librarians." (emphasis added).

One of the objectives of the Guild as stated in Article III of its constitution is:

"to uphold the highest standards of professional librarianship" (emphasis added).

Being a professional organization - in addition to its role as a labor union - it stands to reason that the time and resources spent by the Guild in negotiating labor contracts is clearly a smaller percentage of its total spent time and resources than it is for the vast majority of the AFSCME locals which are labor unions exclusively. However, the data upon which the "fair share fee" percentage is calculated is taken from a pool of locals which is most likely comprised of locals which are exclusively labor unions.

Furthermore, to the extent the Guild as a professional organization is a political or ideologically based organization I should not be required to make any contribution at all - based on First Amendment to the US Constitution freedom of association protections. Chicago Teachers Union is based on Abood v. Detroit Board of Education (431 US 209, 1977) and, in this regard, Abood states the following: ". . . .contributing to an organization for the purpose of spreading a political message is protected by the First Amendment.".

5) Most of the "categories" listed in the Notice are, in fact, not chargeable

Abood permits an agency fee ONLY ". . . to finance expenditures by the Union for collective-bargaining, contract-administration, and grievance-adjustment purposes" - not for other, unrelated, activities.

All of the categories listed in the Notice (e.g., "5. The public advertising of positions on the negotiation, . . .", "27. Social and recreational activities", etc.) are for other, unrelated activities, except for the following: "1", "2", "3", "4", "7", "9", "12", "14", and "15".

6) The information supplied by the Notice to support its calculations is insufficient to gauge the fee's propriety.

The Notice does not provide sufficient information to gauge the fee's propriety.
"In Hudson, a public-sector case in which limitations on the use of agency fees were prompted directly by the First Amendment, the Court held that unions and employers must provide three procedural protections for nonunion workers who object to the agency-fee calculation: sufficient information to gauge the fee's propriety, 475 U. S., at 306;. . ." (Miller at para 19 - emphasis added).
The data used to calculate the fee is based on other AFSCME Locals, an unknown number of which are not professional organizations and are not mixed supervisors/rank-and-file.

7) As per Miller, I reserve the right to amend, or to add to, the grounds stated in this Challenge.

". . . plaintiffs who challenge an agency-fee calculation are not required to state any grounds whatsoever for their challenge." (Airline Pilots Association v. Miller, 523 U.S. 866 (1998) at para 52). "We have held that "the nonunion employee has the burden of raising an objection, but that the union retains the burden of proof." Hudson, 475 U. S., at 306. And when pursuing the union's internal remedies, an objector may preserve the right to subsequent judicial relief without "indicat[ing] to the Union the specific expenditures to which he objects." Abood, 431 U. S., at 241 . . ." (Miller at para 53).

Furthermore, I do not agree to the arbitration procedure described in the Notice (see Miller at para 18).

____________________

Usury Laws

2009-03-31T16:35:00.000-07:00

According to an excellent article in Harper's Magazine (April 2009) - Infinite Debt by Thomas Geoghegan - the key to our current financial meltdown and economic crisis can be summed up in one word:

USURY.

Most analyses of the economic crisis focus on the housing meltdown and/or the lack of proper bank regulation. These are true - but not the whole truth.

Geoghehan goes to the heart of the matter and points the finger of blame for our current financial and economic crisis on the dismantling of usury laws which resulted from the 1978 Supreme Court decision in Marquette National Bank v. First Omaha Service Corp (national banks may charge the interest at the rate set by the state "where the bank is located" regardless of the laws in the state where the bank is actually lending money).

“We dismantled the most ancient of human laws, the law against usury, which had existed in some form in every civilization from the time of the Babylonian Empire to the end of Jimmy Carter’s term.”

Geoghegan traces how "with the collapse of anti-usury laws, we have also seen the deregulation of virtually everything else bankers do" and how our economy has since become based - not on manufacturing innovations but - on banking innovations (e.g. derivatives, etc) resulting in economic deterioration.

According to one authority (see http://www.alastairmcintosh.com/articles/1998_usury.htm )
regarding usury "[a]mong its most visible and vocal critics have been the religious institutions of Hinduism, Buddhism, Judaism, Islam and Christianity. To this list may be added ancient Western philosophers and politicians, as well as various modern socio-economic reformers.".

Could our society's violation of this "moral law" be the cause of our current economic crisis?

Articles:

Revive Usury Law

Senator proposes national usury rate

Road to ruin: Usury, greed and the paper economy

Democracy Now article

South Dakota eliminates usury laws to save Citibank

ITC v. LAPL Librarians: Is the tail wagging the dog?

2009-03-29T15:53:00.000-07:00

To what extent are the traditional responsibilities of the professional librarian being swallowed up by the new technology?

This question comes up due to the policy at LAPL whereby librarians are prohibited by ITC from downloading any programs to the reference desk computers - including reference tools like Google toolbar which reference librarians use to fill patron inquiries.

The following are some of the issues involved - as stated in grievance (and grievance appeal) papers that brought (and denied) regarding this issue:

__________

At LAPL, ITC computer staff - instead of librarians - decide what tools professional librarians should use in performing their public service mission

LAPL Information System Standards (ISS) conflicts with our public service mission. ISS states under "2.0 Usage Guideline" the following:

"Staff must not install or attach hardware or software on the Library Department's network or equipment without ITC Division approval.".

The purpose of ITC is only to support the professional librarians. However, here, technology has become the master rather than the servant of the professional librarians. ITC staff who are not even librarians, dictate what tools librarians can - or cannot - use in performing their public service mission. This is a classic case of the tail wagging the dog. ITC has usurped professional responsibilities of librarians.

And this situation also constitutes a form of censorship, something which the profession of librarianship has traditionally been vehemently opposed to (see, for example, American Library Association, Office for Intellectual Freedom). Software is a form of literature. Code is a natural language. Banning particular software from reference desk use is analogous to banning particular reference books from reference desk use.

. . . I spoke with ******, who heads ITC. He said that computers must be standardized because librarians inadvertently download malware when they download free programs to use on reference desk computers. Then ITC must spend time to come out and get rid of the malware. He suggested that librarians should use their own laptops which can have any configuration they want. However, it's my understanding that (some other) policy prohibits use of personal equipment, including laptops (and USB drives). The conflict in policies is confusing and requires clarification.
________________

The failure of LAPL to provide a necessary exception to the ITC policy (viz, for professional librarians using reference desk computers) denigrates the professionalism of all LAPL Librarians.

The reference desk computer is a major tool - if not the chief tool - used by LAPL Librarians to provide professional library service to the public. It is used hour after hour, day after day, as the librarian's chief reference tool. Yet LAPL deems its librarians too lacking in judgment and discretion to decide what software may or may not be installed on these machines to make them the most effective tools for public service. LAPL Librarians are dependent on downtown computer people (non-librarians) to tell them what software tools they may or may not use on the reference desk computers. Therefore LAPL Librarians are not considered by LAPL to be truly "professional" employees who consistently exercise discretion and judgment in serving the public at their local branches.

The US Labor Code 29 USC sec. 152, para 12, defines a "professional employee" as follows:

(12) The term "professional employee" means - (a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes . . . (emphasis added).

LAPL librarians should not have to go through a convoluted process to obtain approval from non-librarians in order to use the tools they need to accomplish the best possible professional service to the public. Who is serving whom in regard to the reference desk computers?

Granted that in regard to public computers ITC should have the last word. But the reference desk computers are the librarians' chief tools to serve the public. The burden should be on ITC to show that a particular program may be susceptible to malware intrusion and for them to request that it be removed if necessary. ITC's concerns are out of balance. The risk of malware inadvertently getting on the reference desk computer, and harming it, is greatly outweighed by the benefit to the public when librarians have the flexibility to install the tools they need to do their job.

The proof of this is the fact that at most LAPL branches the ITC policy is completely ignored at reference desk computers. Obviously LAPL librarians place service to the public above rigid adherence to the policy.

The reply suggests that there is a librarian downtown who is part of ITC. However, the fact that a librarian - no matter how well intentioned or knowledgeable - signs off on software decisions made by computer people is beside the point. The professional librarian should be considered to have the judgment to decide what tools to use to help the individual patron at that particular branch's reference desk. Being restricted to using only tools deemed appropriate by someone in a downtown office is an encroachment on the librarian's professionalism.

Another point of confusion is the apparent conflict of policies. As stated in the grievance, [the head of ITC] told me in our phone conversation that I should use my own personal laptop computer. This conflicts with instructions from [regional manager] (many months ago) that staff is not allowed to use personal computing equipment on the job. So what's the applicable rule?

Doctor's Note Conundrum

2009-03-27T19:35:00.000-07:00

Early this month I needed to use sick time for nearly a week due to symptoms of the common cold. I was told on the phone that a Doctor's note is required by LAPL in order to return to work when out sick for more than 3 days.

So the night before returning to work I went to Kaiser Hospital and got the required note. It took more than 2 1/2 hours of travel time, waiting time, and examination time. It cost me a Kaiser co-payment fee and Kaiser parking fees.

My question was this - was all this really necessary? - or was it based on a misunderstanding of the LAPL Doctor's Note Policy?

It's well known that there is "no cure for the common cold". For example, Wikipedia (s.v. "Common cold") states the following:

"Acute viral rhinopharyngitis, or acute coryza, usually known
as the common cold, is a highly contagious, viral infectious disease of the upper respiratory system, . . . Common symptoms are sore throat, runny nose, nasal congestion, sneezing and coughing; . . . The symptoms of a cold usually resolve after about one week, but can last up to two. . . . There are no antiviral drugs approved to treat or
cure the infection; all medications used are palliative and treat symptoms only. . . .".

Since there's no treatment for this - there's no reason to seek treatment for it.

No reasonable person - knowing in advance that the doctor will do nothing except tell him to "go home and rest" - would spend hours traveling, parking, sitting in waiting rooms and examination rooms, just to be told to "go home and rest". It would be better for everyone involved for an employee with a common cold to just stay home and rest. Therefore, in this case, the only reason for going to Kaiser is to satisfy the DNP.

LAPL Personnel Procedures Manual, sec. 13.522 ("Verification of Illness/Injury") is apparently the basis for the DNP. It states the following:

"Satisfactory and suitable proof, such as a doctor's
certificate, must be furnished for any period of personal illness longer than three consecutive working days . . .".

The purpose of the DNP is not to verify by a medical person that the employee is no longer contagious - a health threat to co-workers - and that it's therefore safe for him to return to work. It's to provide "proof" (evidence) that the employee was really sick.

The doctor's note is just one example given of "satisfactory and suitable proof" of this. But a medical degree isn't required to recognize that someone has a common cold. Indeed, my supervisor was witness to my illness when I left work early the day before calling in sick. What does the doctor's note add as far as "proof" that I was sick?

In California, a written declaration signed under penalty of perjury is considered adequate proof for a number of things (e.g., proof of service, declarations attached to ex parte motions, etc.). It stands as "proof" of the facts stated therein - unless rebutted by an opposing declaration.

A declaration (signed by myself and/or other witnesses) stating that I had particular medical symptons preventing me from coming to work should also be adequate for LAPL. Is this indeed adequate? And if not, why not?

The implication of the DNP is that the employee must go to the doctor while he is still sick (otherwise how does the doctor know that he was sick in the past?).

But how can the doctor give him a "back to work" (aka "return to work", "release to work") note if he is not yet ready to go back to work?

Does the employee need to go twice to the doctor (once to prove that he is sick and once again to prove that he is well enough to go back to work)? In other words, to what extent, if any, is the required note from the doctor a true "back to work" note?

Furthermore, from LAPL's point of view, a rigid interpretation of DNP may result in lost employee productivity as follows:

If, because of DNP, an employee must get out of his sick bed to go somewhere, he may as well go to the workplace - on the fourth day of illness - rather than to the doctor. He then saves sick time hours and saves the time and expense of going to the doctor. However, by doing this he exposes fellow employees to his "highly contagious" disease which, if other employees catch it, could result in a much higher total employee use of sick time and lost productivity. And it's not be morally worse for the sick employee to come to the workplace than to go to the hospital waiting room (to infect the innocent people there).

After returning to work I requested clarification - for the future - of the LAPL Doctor's Note Policy ("DNP"). But I never received it.

Friends of the Library

2009-01-05T12:45:00.000-08:00

Below is the bulk of the memo I sent on Jan. 5, 2009 suggesting some library fund raising possibilities:

MEMO

Suggestions for Friends of EXPO

At the last area meeting I learned that the San Pedro Branch, Friends of the Library, group takes in some $3,000 per month from its monthly book sales. That's impressive - especially with the current library budget problems. We should explore ways to improve Expo's financial situation. The following are some ideas along these lines:

We should create a Friends of Expo Group to function as a fund-raising arm of the library.

The Friends group could sponsor book sales (not too original!).
The Friends group could purchase a laser printer so that our many laptop computer users can print make printouts from their laptops. 25 cents per page from this growing segment of the population could add up (my Samsung printer costs me 3.5 cents per page for consumables).
Extending the above idea, a corner of our study room could be set aside for a public fax machine, a color printer, and a US Mail dropoff (three things we are often asked for).
Every Sunday Mr. Carter makes a few bucks for the chess club via donations for coffee & other refreshments. We could explore the possibility of having food vending machines permanently in the meeting room where people could take a break from study for refreshments.
Other libraries have successfully deployed food vending machines and other types of vending machines (the Inglewood Public Library has vending machines for pencils, erasers and small notebooks). For example, San Antonio Public Library:

"The Friends of the San Antonio Public Library operates the Book Cellar, a used book store in the basement of the Central Library. . . . Book sales are the main source of income for the Friends, and the profits are donated to support San Antonio Public Library activities and materials. The Book Cellar is managed by a salaried employee of the Friends and staffed by volunteers from Friends of the San Antonio Public Library. . . . The stock comes from books withdrawn from the library system and donations. Most books sell for 25 cents to $1.00. . . . .Vending Machines
The store sells soda and bottled water and has a snack vending machine available to the public. (from http://www.sanantonio.gov/Library/friends/cellar/?res=1024&ver=true).

Los Angeles Curfew Ordinance

2005-12-07T16:16:00.000-08:00

The following is my motion regarding the curfew law submitted while I was an elected member of the Mid City West Community Council:

_______________________

Constitutional Analysis of Los Angeles Curfew Ordinance submitted to Mid City West Community Council for discussion at July 12, 2005 Board Meeting (Agenda Item 9(e).

AGENDA ITEM 9(E): DISCUSSION OF CURFEW LAW

The Text of Los Angeles Municipal Code, sec. 45.03.

CHAPTER IV - PUBLIC WELFARE
ARTICLE 5 - MINORS
SEC. 45.03. CURFEW RESTRICTIONS FOR MINORS.
(Amended by Ord. No. 172,012, Eff. 6/19/98.)

It is unlawful for any minor under the age of eighteen years to be present in or upon any public street, avenue, highway, road, curb area, alley, park, playground, or other public ground, public place, or public building, place of amusement or eating place, vacant lot or unsupervised place between the hours of 10:00 p.m. on any day and sunrise of the immediately following day; provided, however, that the provisions of this section shall not apply:

(a) the minor is accompanied by his or her parent or parents, legal guardian or other adult person having the lawful care or custody of the minor, or by his or her spouse eighteen years of age or older;
(b) the minor is upon an errand directed by his or her parent or parents or legal guardian or other adult person having the legal care or custody of the minor, or by his or her spouse eighteen years of age or older;
(c) the minor is attending or going to or returning directly home from a public meeting, or a place of public environment, such as a movie, play, sporting event, dance or school activity; or
(d) the presence of such minor in said place or places is connected with or required with respect to a business, trade, procession or occupation in which said minor is lawfully; or
(e) the minor is involved in an emergency such as a fire, natural disaster, automobile accident, a situation requiring immediate action to prevent serious bodily injury or loss of life, or any unforeseen combination of circumstances or the resulting state which calls for immediate action; or
(f) the minor is in a motor vehicle involved in interstate travel ; or
(g) the minor is on a sidewalk abutting the minor’s residence.

Background:

Several of our MCWCC stakeholders brought the following cases to our attention:

CASE “1” -- Two 16 year old boys, one of whom lives a few blocks from the Grove shopping mall, went out for a walk Thursday evening (April 28, 2005) at about 10:30 pm to the Grove. They were on vacation from school (for the Passover Holiday) and had the specific permission and encouragement from the boy’s mother to go. They were doing nothing blameworthy or even suspicious. They were simply walking and talking to each other. However, they were stopped by the police in the valet parking area of the Grove. After learning their ages and that they were “out for a walk”, the police officers issued each of them a ticket for violation of the LA curfew law (Los Angeles Municipal Code 45.03). They were also forced to call the mother of one to come and pick them up. This, simply because they were under 18 years of age and were outside after 10 pm. Neither they nor their parents knew of the existence of the curfew law before this.

CASE “2” -- On, or about April 2, 2005 four teenage girls (15 and 16 years old) were walking at the Grove talking to each other at about 11:00 pm when policemen came up to them on foot and signaled them to stand in a line against the wall of Barnes and Noble bookstore. They did this with other groups of teens who were being added to the group by the police - so that there was a total of some 20 teens forced by the police to stand against the wall and submit to police interrogation. One girl says that none of these teens were doing anything either wrong or even suspicious. None of the original four girls got a ticket because an adult guardian of one of them came to pick them up - but other of the teens did get tickets (she estimates the police gave out at least 15 tickets at the Grove just at that one time).

All the stakeholders interviewed say that they don't know of people getting these tickets anywhere else in our neighborhood except at the Grove - and that they estimate the police have given out as many as 30 tickets a night there.

Why Should MCWCC care about the Curfew Law?

Police resources should be utilized to fight real crime instead of wasted on criminalizing innocent activities

On April 17, 2005 a murder took place a few blocks from the Grove. A Grove employee getting into his car was robbed and murdered. The murder suspect is an adult – not a teen. In other words, while the police are at the Grove handing out curfew tickets to unsuspecting teens doing nothing blameworthy whatsoever, real crimes are being committed in our neighborhood.

Our teen stakeholders deserve our protection

Three classes of MCWCC stakeholders require our protection – those under 18 years of age, parents of those under 18, and those over 18 who may look like they are under 18 (who may be stopped by police for “probable cause”). Sec. 45.03 is apparently being abused in the MCWCC district to harass our stakeholders for no beneficial purpose. Mid City West stakeholders are stopped and cited by the police for doing absolutely nothing blameworthy or even out of the ordinary - except for being in a public place. We, as Board Members - as public trustees - should do something for the protection of these stakeholders.
MCWCC should weigh in to oppose an ominous encroachment on personal freedoms caused by municipal curfew laws.

“The violent criminal behavior of a small proportion of juvenile offenders has created a public perception that serious violent crime by juveniles has reached epidemic proportions and, consequently, has prompted intense political rhetoric compelling action in order to "get tough on crime." . . . However, the statistics also reveal that juveniles are not responsible for a significant majority of the violent crimes and do not experience a majority of the violent victimizations. In fact, adults account for a significant amount of all violent crime arrests, yet it is a small proportion of juvenile offenders that is driving rapid and sweeping legislation aimed at curbing violent juvenile crime and victimization. . . . Juvenile curfews have gained recent popularity as a commonly-used tool to battle against violent juvenile crime and victimization by restraining minors and placing liability on parents. In other words, juvenile curfews are a mechanism of social control among the minor population. Although municipalities throughout the nation have had juvenile curfews for some time, such curfews are now being used as popular political salvos to "get tough on crime." For instance, President Clinton praised juvenile curfews and encouraged communities across the nation to implement them as early as 8:00 p.m. However, despite the immense political support juvenile curfews have recently gained, they are not without opponents. As one critic recognized, "Democrats are not immune to the political reality that you can score easy points by blaming crime on a class of citizens who don't vote." While juvenile curfews continue to be supported . . . , minors' and parents' constitutional rights are being overlooked. . . , . . .after the Ninth Circuit Court of Appeals' recent invalidation of a San Diego, California, ordinance, the future of juvenile curfews remains uncertain. ” (emphasis added)(19 J. Juv. L. 84).

As shown below, it’s very likely that sec. 45.03 would not pass constitutional muster if it were challenged in court. In the meantime we should take action to protect the basic freedoms of our teenage stakeholders.

Sec. 45.03 thwarts MCWCC’s efforts to increase public safety and reduce crime.
Relations between police and youth become antagonistic as a result of youth curfew laws. Teenagers grow up with lack of respect for police and the law.

On the one hand, we want to recruit stakeholders in the effort to reduce crime. Under MCWCC bylaws, our 16 year old stakeholders are eligible to vote in MCWCC elections and participate fully. On the other hand, sec. 45.03 creates new criminals out of innocent young people who are doing nothing blameworthy whatsoever. This situation doesn’t enhance public safety for our community. Teens are responsible enough to elect Board Members -- but they are not allowed out of their houses after 10 pm. Something is wrong.

Brief Analysis of Sec. 45.03
Introduction

"On weekdays, at 9:59 p.m. my son is an upstanding student. At 10:01 [p.m.] he is a criminal by virtue of being in public. Sound ludicrous? It's the law." (19 J. Juv. L. 84).

There is a large body of literature dealing with the constitutionality of curfew laws. These laws have recently been proliferating rapidly across the nation.

“In recent years, cities across the nation have imposed juvenile curfews at an alarming rate. For example, one study of juvenile curfews in America's 200 largest cities found that ninety-three (forty-seven percent) had juvenile curfews in effect on January 1, 1990. Interestingly, by the spring of 1995, this number soared to 146 (seventy-three percent); thus, nearly three-fourths of America's largest cities had juvenile curfews in effect in 1995.” . . ., with the proliferation of juvenile curfews comes considerable debate as to their effectiveness and constitutionality.” .” (19 J. Juv. L. 84).

No less than eleven pages of citations of cases and law review articles were generated by shephardizing just one of the cases cited below (i.e., searching for where the Nunez case is cited). That doesn’t include the literature in newspaper, magazine and internet articles also dealing with the curfew issue. As a layman (not a lawyer) I don’t have the research resources, the time or other resources necessary to immerse myself fully into this issue. However, sec. 45.03 is so offensive and so alarming for our community that I believe it’s worth the time and trouble to work towards eliminating it.

Sec. 45.03 is fundamentally worrisome. Curfew laws punish innocent activity. And - to the extent curfews are intended to protect teenagers from victimization – they have the effect of “punishing the victim” also. What greater perversion of justice than a law intended to “punish the victim”?

The proliferation of these laws also has ominous implications. The judicial philosophy behind curfew laws - a philosophy that accepts punishment of innocent activity - is dangerous. It should be remembered that curfews have historically been used as tools of oppression that lead to even greater oppressions in the future (once the public has got used to them). Curfew laws “. . . can either be to maintain public order (such as that after the 2003 North America blackout), or to suppress targeted groups (such as the one Adolf Hitler enacted on Jewish people in Nazi Germany). Curfews have long been directed at certain groups in many cities or states, such as Japanese-American university students on the West Coast during World War II, African-Americans in many towns during the time of Jim Crow laws, or people younger than 16, 17, 18, 19, 20, 21, or 22 years or another certain age in many towns of the U.S. since the 1980s. . . . ” (Wikipedia, s.v. “Curfew”).

There are essentially two rationales for juvenile curfew laws but the logic of each one is flawed. One rationale is to protect society from juvenile crime and the other rationale is to protect the juvenile him, or herself, from being victimized.

The logic of fighting juvenile crime by placing all juveniles under house arrest is about as reasonable as fighting the Mafia by placing all Italian-Americans under house arrest or putting all African-Americans or Latinos under house arrest if crime statistics show that a significant majority of crimes in a particular community are committed by one of those groups.
“In Nunez, the court expressed concern that "the relatively light penalties imposed by the curfew are a small deterrent to crime when compared to the penalties for the actual crimes that the curfew ostensibly seeks to thwart." Juvenile curfews assume that minors who venture into the nighttime hours do so to engage in criminal activity and will be deterred from doing so by the existence of a nocturnal curfew: "The naivete of such an assumption is striking." Therefore, since all the activities that juvenile curfews seek to curb are already illegal, and carry significantly more intrusive penalties, logic states that the only minors juvenile curfews will have any effect on are those already inclined to conform to the law.” (emphasis added)(19 J. Juv. L. 84).

The logic of protecting juveniles by placing them under house arrest is also flawed and ignores the fact that violence is ubiquitous, victimizing all persons. All persons -- both minors and adults -- are vulnerable to nocturnal crime.

"Obviously, if you lock everyone in their homes, they're not going to be exposed to danger," . . . . "We could prevent a lot of rapes by putting women under house arrest, but that's not what it means to be a free society." (Arthur B. Spitzer, legal director of the American Civil Liberties Union in the D.C. area).

Curfew laws sweep the problem of juvenile crime under the rug by imposing a restriction of movement on all youth instead of targeting those who commit crimes. Juveniles (who are not yet voters) are a convenient scapegoat for politicians whose crime-fighting policies have failed.

SUMMARY

Sec. 45.03 remains unconstitutionally vague in several respects. And, as far as equal protection issues, the 1998 amendments to sec. 45.03 did not revive the ordinance constitutionally. Unless the ordinance is rewritten to require the police to seek out exculpatory evidence at the time of stopping a teen, the curfew will continue to have a chilling effect on teens exercising their First Amendment rights and also their fundamental right to free movement. In addition, and no less conclusive, is that sec. 45.03 violates a parent’s fundamental right to rear children without undue governmental interference. And the ordinance is overbroad, having a chilling effect on the exercise of First Amendment rights. But overshadowing all other issues is the fatal due process problem of having a law that punishes innocent activity.

Nunez v. City of San Diego

The constitutional objections to Sec. 45.03 fall squarely within the rulings made by the Ninth Circuit Court of Appeals in the case Nunez v. City of San Diego 114 F.3d 935 (1997), a case analyzed by Jeff A. Beaumont, Comment, Journal of Juvenile Law 19 J.Juv. L. 84 (1998) (“Beaumont”).

Nunez held, regarding a similar San Diego curfew ordinance, that: (1) the ordinance was unconstitutionally vague; (2) the ordinance violated equal protection in that it was not narrowly tailored to promote the city's compelling interest in reducing juvenile crime and juvenile victimization; (3) the ordinance was unconstitutionally overbroad in that it restricted minors' legitimate exercise of First Amendment rights; and (4) the ordinance violated parents' fundamental right to rear children without undue governmental interference.

Numerous cases in a variety of jurisdictions cite Nunez in striking down curfew laws. There are also cases in other jurisdictions that do not follow Nunez. However Los Angeles is within Ninth Circuit jurisdiction and so Nunez is controlling authority for us.

Nunez struck down the San Diego Ordinance in 1997. Shortly thereafter (eff. 6/19/98) Los Angeles’s sec. 45.03 (which used language similar to San Diego's) was amended. Instead of being unlawful to "loiter, idle, wander, stroll or play in or upon the public streets, . . .etc" (San Diego's language) it is now unlawful just "to be present in or upon any public street . . .etc". Los Angeles tried to patch up the vagueness objections of Nunez. But as a result, Los Angeles made its curfew law even more draconian - and more overbroad and with a greater chilling effect on teens. The amended sec. 45.03 also included new exceptions (apparently in an attempt to comply with Nunez).

Hodgkins v. Peterson

The failure of Los Angeles’ attempt to patch up sec. 45.03 after Nunez, is underscored by reference to the case Hodgkins v. Peterson 355 F.3d 1048 (7th Cir. 2004) which struck down an Indiana curfew law - very similar to the current Los Angeles law - even after it had been amended to add a list of exceptions designed to meet a previous successful constitutional challenge to it. And Hodgkins did this employing a lesser standard of scrutiny than the “strict scrutiny” standard employed by Nunez.

In other words, as shown below, differences between the San Diego law that was ruled unconstitutional and the current Los Angeles law are not so substantial that Nunez should not also apply to the Los Angeles law, especially when viewed in light of Hodgkins.

Sec. 45.03 remains unconstitutionally vague even after having been amended

“To avoid unconstitutional vagueness, an ordinance must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner. Kolender v. Lawson, 461 U.S. 352, 357 (1983).” (Nunez at para 34).

The 1998 amendment to sec. 45.03 corrected language that was vague in the ordinance. However, as shown below, it also added new language that is vague so that ordinary people still cannot understand what conduct is prohibited.

Most importantly, as pointed out by Hodgkins, adding more and more exceptions just doesn’t help to “establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner”.

Language of sec. 45.03 REMAINS vague DESPITE BEING AMENDED

There is nothing vague about simply being present “in or upon any public street”. However sec. 45.03 remains vague - at least in regard to its exceptions. Ordinary people cannot understand whether an exception applies to them or not.

Sec. 45.03 states, in relevant part, the following:

“It is unlawful for any minor . . . to be present in or upon any public street, . . ., or other public ground, public place,. . . .[unless ? ]. . . ( c ) the minor is attending or going to or returning directly home from a public meeting, or a place of public environment, such as a movie, play, sporting event, dance or school activity; . .”.

But, a “place of public environment” is a public place.

In other words, under 45.03, a minor may not be in a public place unless he is attending a public place. This is meaningless dribble. It is obviously vague.

And Nunez points out that, “The need for definiteness is greater when the ordinance imposes criminal penalties on individual behavior or implicates constitutionally protected rights than when it regulates the economic behavior of businesses. . . . This greater need for definiteness is present in this case because the San Diego ordinance restricts individual freedom through criminal law.”. Although violation of the Los Angeles law (sec. 45.03) is an infraction instead of a misdemeanor (as it was under the San Diego law) this principle should also apply .

The language “upon an errand directed by his or her parent” is unconstitutionally vague.

City of Sumner v. Walsh

Section 45.03 does not itself define the word “errand”.
The Washington Supreme Court (En Banc) in City of Sumner v. Walsh, 61 P.3d 1111 (Wash. 2003) struck down a curfew ordinance of the City of Sumner, Washington, on grounds that it was unconstitutionally vague - and specifically that the word “errand” in that ordinance was vague.

Of course, a Washington State case is not controlling legal authority for California. However, what is conclusive here is the fact - evidenced by that published case - that five Justices of the Washington Supreme think that the word “errand” in the exemption for a juvenile who “is on an errand as directed by his or her parent” is vague. (That “errand” language of the Sumner ordinance is the same language as the Los Angeles ordinance.)

“To avoid unconstitutional vagueness, an ordinance must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; . . . ” according to the United States Supreme Court in Kolender v. Lawson, 461 U.S. 352, 357 (1983). The point is that - if five Justices of the Washington Supreme Court cannot understand what conduct is permitted or prohibited by the word “errand” - then ordinary people also cannot understand what conduct is permitted or prohibited by the ordinance.

Therefore, “sufficient definiteness that ordinary people can understand what conduct is prohibited” is not present in the Los Angeles Municipal Code, Sec. 45.03).

And sec. 45.03 is also vague in that it fails to provide sufficient notice of what conduct is prohibited or standards for police officers to enforce that conduct.

“To avoid unconstitutional vagueness, an ordinance must . . . (2) establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner” (Kolender v. Lawson).

“ . . . Walsh also contends that the Sumner ordinance is constitutionally infirm because it fails to provide police officers with sufficient guidance to determine whether a juvenile's presence in a public place during curfew hours falls under the 'errand' exemption. Pertinent to this case, we believe that the term 'errand' is also vague in that it fails to provide sufficient notice of what conduct is prohibited or standards for police officers to enforce that conduct. We can easily conceive of a situation where a parent sends his or her juvenile child to a neighbor's house during curfew hours in order to deliver a package. Because the ordinance fails to define what constitutes an 'errand,' a police officer is furnished with little guidance as to whether the juvenile engaged in such an activity is in violation of the ordinance. In this regard, the instant case is similar to . . . in which the court concluded that a juvenile curfew ordinance that exempted juveniles en route to or from 'an activity' was unconstitutionally vague. . . . That court reasoned that '{b}ecause the ordinance is unclear about what is and is not an exempted activity, {the ordinance} fails to provide explicit standards for enforcement.' . . . .

We recognize that it may be difficult for a city to draft a curfew ordinance that is not unconstitutionally vague. The primary reason for that, as we pointed out in Pullman, is that curfew ordinances attempt to make activities that are normally considered innocent, unlawful, i.e., walking, driving, going to the store. If a city chooses to establish a curfew that does not simply make it unlawful for a juvenile to be in a public place after curfew hours, with no exceptions, it must establish the line between conduct that does not fall under the ordinance and that which does in a way that the ordinance can be enforced in a non-arbitrary manner.” (emphasis added)(Sumner at para 46-47).

And Sumner notes here (at note “8”) that: “Although an ordinance that completely bans juveniles from being in public places after certain hours may survive a vagueness challenge, an ordinance might experience a more difficult time passing constitutional muster on the grounds Justice Chambers discusses in his concurring opinion, i.e., that the ordinance violates the constitutional right of a juvenile to move freely in public places. See Nunez, 114 F.3d at 943-44.”.

Sumner’s broader discussion of vagueness is also germane to sec. 45.03.

“ . . . it cannot be easily determined from the terms employed by the city whether and when a juvenile is engaged in an activity which runs afoul of the ordinance. For example, one can reasonably ask whether the ordinance is violated by a juvenile who travels on foot during curfew hours, from any activity, and slows his or her pace, or stops, for perfectly legitimate reasons (tying one's shoelaces for example). One might ask the same question about a juvenile who stops to purchase gasoline while traveling to his or her home by automobile from an exempted activity such as a school football game or concert. Does such conduct constitute lingering or staying in violation of the ordinance? Sumner’s ordinance simply does not provide sufficient guidance to answer these questions and many more and thereby prevents unconstitutionally arbitrary discretion by law enforcement. 'An ordinance that allows a person to stand on a public sidewalk only at the whim of a police officer is unconstitutional.' City of Seattle v. Drew, 70 Wn.2d 405, 411, 423 P.2d 522 (1967) (citing Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965)). In sum, an ordinance which affords a police officer broad discretion to determine if a juvenile is in violation when tying his or her shoe or pumping gas does not withstand a vagueness challenge.
Considering the discretion that police officers are accorded under the ordinance, one is left to wonder whether the practical effect of the ordinance is to simply make it unlawful for a juvenile to be present in a public place during curfew hours. The problem with the ordinance, in short, is that it does not provide 'ascertainable standards for locating the line between innocent and unlawful behavior' that this court requires. Pullman, 82 Wn.2d at 799. Our conclusion in that regard is buttressed by the Ninth Circuit's decision in Nunez that phraseology in a curfew ordinance which allows police officers to enforce the ordinance by penalizing juveniles for a narrower range of conduct other than mere 'presence' is unconstitutionally vague because it affords excessive discretion to the police. See Nunez, 114 F.3d at 943.” (Sumner at para 44-45).

Sec. 45.03 does not “establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner” and is therefore unconstitutionally vague in this respect.
Under sec. 45.03 a teenager is subject to being stopped on the way to or from a protected First Amendment activity.
“[J]uvenile curfews -- even with a First Amendment exception -- impermissibly prohibit innocent minors from exercising their First Amendment rights by placing unbridled discretion upon law enforcement officials:
An enforcement official confronted in a public place during curfew hours with a youth asserting a free speech exception will either believe the youth and allow her to continue, or disbelieve her and take enforcement action. If the officer believes every assertion of First Amendment activity, the exception will swallow the proscription. If the officer takes enforcement action against a free speech claim, he will in some notable number of cases err, placing a constitutionally intolerable restraint on the exercise of a First Amendment freedom.” (Beaumont, citing Tona Trollinger, The Juvenile Curfew: Unconstitutional Imprisonment, 4 WM. & MARY BILL RTS. J. 949, 964-65 (1996) (stating that juvenile curfews are politicians' efforts to appear tough on crime).
This was the point of Hodgkins v. Peterson 355 F.3d 1048 (7th Cir. 2004) which struck down an Indiana curfew law even after it had been amended to add a list of exceptions designed to meet a previous successful constitutional challenge to it - including the following exception “e”:
“. . . (E) an activity involving the exercise of the child's rights protected under the First Amendment to the United States Constitution or Article 1, Section 31 of the Constitution of the State of Indiana, or both, such as freedom of speech and the right of assembly; or. . . .”.
Although exception “e” seems to protect the minor’s First Amendment rights - not so - because “the curfew law requires them to subject themselves to arrest . . . and then prove at a later time that the activity they were engaging in fell within the affirmative defense for First Amendment activity.”.
“The Hodgkins maintain that the revisions to the curfew law have not cured the constitutional defect found in the previous version of the law which was struck down. . . The affirmative defenses added to the revised curfew law, they argue, do not adequately protect minors' First Amendment rights, as the curfew law requires them to subject themselves to arrest . . . and then prove at a later time that the activity they were engaging in fell within the affirmative defense for First Amendment activity. They assert that the consequences of violating the curfew law are so burdensome and intrusive that, rather than risk arrest, they will be discouraged from participating in expressive activity during curfew hours. In other words, the plaintiffs claim that the curfew regulation creates a "chill" that imposes on their First Amendment rights. The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights. City of Houston, Texas v. Hill, 482 U.S. 451, 459, n.7, . . . ; Steffel v. Thompson, 415 U.S. 452, 462, . . . ; Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, . . . ("When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.").

The scope of “probable cause” for a police stop is too broad under the curfew laws.

The police under the Indiana law (like the Los Angeles law) do not have to seek out exculpatory evidence.

“ . . . there is no reason to think that the minors whom the affirmative defense will shield from arrest represent most or even many of those who are at risk of being stopped by the police. A police officer has probable cause to arrest when "the facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 2632 (1979) (emphasis ours). . . . Once a police officer discovers sufficient facts to establish probable cause, she has no constitutional obligation to conduct any further investigation in the hope of discovering exculpatory evidence. Eversole v. Steele, 59 F.3d 710, 718 (7th Cir. 1995); see also Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998) (validity of affirmative defense is irrelevant to whether or not police officer sued for false arrest had probable cause to make arrest); . . . A police officer may not ignore conclusively established evidence of the existence of an affirmative defense, Estate of Deitrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999), but the officer has no duty to investigate the validity of any defense. Baker v. McCollan, 443 U.S. 137, 145-46, 99 S. Ct. 2689, 2695 (1979 . . . . . A legislature can draft a curfew law which specifies that a law enforcement official must look into whether an affirmative defense applies before making an arrest. See Hutchins v. District of Columbia, 188 F.3d 531, 535 (D.C. Cir. 1999) (en banc) . . .. . . The Indiana Legislature did not impose that requirement. Thus, a police officer who actually sees a sixteen-year-old leaving a late-night religious service or political rally could not properly arrest the youth for staying out past curfew. But, . . . , the statute's affirmative defenses do not compel the officer to look beyond what he already knows in order to decide whether one of the affirmative defenses applies. . . . Thus, if a police officer stops a seventeen-year-old on the road at 1:00 a.m., and the teen informs the officer that she is returning home from a midnight political rally, the officer need not take the teen at her word nor attempt to ascertain whether she is telling the truth. Lacking first-hand knowledge that the juvenile indeed has been participating in First Amendment activity, the officer is free to arrest her and leave assessment of the First Amendment or any other affirmative defense for a judicial officer. . . . , an officer observing a child who appears to be under the age of 18 out walking during curfew hours does not have to investigate the child's assertion that he is returning from or going to a religious or political activity. So, children who appear to be under the age of 18 who are out during curfew hours walking to the Governor's residence to protest an early morning execution might be arrested. This is because the officer might have to investigate whether the children are in fact walking to the Governor's residence to the protest, and the officer is not required to undertake such an investigation in determining probable cause . . . . Any juvenile who chooses to participate in a late-night religious or political activity thus runs the risk that he will be arrested if a police officer stops him en route to or from that activity and he cannot prove to the officer's satisfaction that he is out after hours in order to exercise his First Amendment rights. Consequently, because the defense imposes no duty of investigation on the arresting officer, as a practical matter it protects only those minors whom the officer has actually seen participating in protected activity. This strikes us as a small subset of minors participating in late-night First Amendment activities, and therefore we conclude that the statute reaches a substantial amount of protected conduct. Most religious and political events occurring during curfew hours are organized and attended by adults, so even assuming that police routinely monitor such events, they would have no reason to suspect that any particular juvenile taking part in one of these events is doing so unaccompanied by a parent or other responsible adult. Only when the minor is observed by himself or solely in the company of other minors would a police officer have reason to believe that he is in public after hours unaccompanied by a responsible adult. Indeed, if an unaccompanied minor comes to the attention of the police at all, it is much more likely that he will do so while traveling the relatively deserted public way to or from the late-night First Amendment activity, not in the midst of the activity itself.” (emphasis added)(Hodgkins para 65-69).

EQUAL PROTECTION OBJECTIONS TO SEC. 45.03

According to Nunez, in a challenge to the curfew ordinance under the Equal Protection Clause of the Fourteenth Amendment, “strict scrutiny should apply because the ordinance infringes on fundamental rights protected by the Constitution: the right of free movement and the right to travel, as well as First Amendment rights”. And Nunez adds, “In applying this standard, we are mindful that strict scrutiny in the context of minors may allow greater burdens on minors than would be permissible on adults as a result of the unique interests implicated in regulating minors. . . . .”.

“In order to survive strict scrutiny, the classification created by the juvenile curfew ordinance must be narrowly tailored to promote a compelling governmental interest. Plyler, 457 U.S. at 217. To be narrowly tailored, there must be a sufficient nexus between the stated government interest and the classification created by the ordinance. Id. at 216-17.” (Nunez at para 63).

Agreeing that the “City has a compelling interest in reducing juvenile crime and juvenile victimization. . . .”. Nunez then looks at “two reasons why the ordinance is not narrowly tailored: (1) the record reflects little statistical support for the efficacy of the curfew; and (2) the exceptions are too narrow to protect minors' fundamental rights.”.

Nunez accepts San Diego’s statistical support for the position that the curfew “will have a salutary effect on juvenile crime and victimization.”. (Note: since I haven’t received any statistical information regarding the Los Angeles ordinance I don’t concede this point in regard to sec. 45.03.)

However, a nipping-crime-in-the-bud approach is specifically rejected.

“On the other hand, we reject the City's further justification that the ordinance has the additional beneficial deterrent effect of permitting police officers to get juveniles off the streets before crimes are committed. The Supreme Court has sharply critiqued this type of rationale as overinclusive, at least with respect to adults. Papachristou, 405 U.S. at 171 ("The implicit presumption of these generalized vagrancy standards -- that crime is being nipped in the bud -- is too extravagant to deserve extended treatment."). Furthermore, the relatively light penalties imposed by the curfew are a small deterrent to crime when compared to the penalties for the actual crimes that the curfew ostensibly seeks to thwart.”.

Nunez then examines whether the ordinance is narrowly tailored in regard to the scope of the exceptions. “In order to be narrowly tailored, the ordinance must ensure that the broad curfew minimizes any burden on minors' fundamental rights, such as the right to free movement. Thus, we examine the ordinance's exceptions to determine whether they sufficiently exempt legitimate activities from the curfew.”.

Nunez then states that San Diego’s “present ordinance is problematic because it does not provide exceptions for many legitimate activities, with or without parental permission” and concludes “that the ordinance is not narrowly tailored to meet the City's compelling interests, as required by strict scrutiny” and that it is unconstitutional.

This appears to leave open the possibility of patching up a curfew law by amending it to include the necessary exceptions. However, as shown by Hodgkins, to meet the equal protection requirements it would have to include an exception which sec. 45.03 does not now have – a requirement for the police to carefully investigate if the teen is going to or from a protected activity - before issuing a citation.

The exceptions Los Angeles added by amendment (apparently in response to Nunez) fail to impart constitutionality to the law.
". . . it is what these curfews restrict, and not what they exempt, that matters most." (19 J.Juv. L. 84, citing Waters v. Berry, 711 F. Supp. 1125, 1136 (D.D.C. 1989)).

For example, exception “f” makes an exception for constitutionally protected interstate travel. While Nunez does indeed hold that the Federal Constitution guarantees a fundamental right to interstate travel, it also holds that Citizens have fundamental right of free movement. And this is not addressed by exception “f” to 45.03.

“Citizens have a fundamental right of free movement, "historically part of the amenities of life as we have known them." Papachristou, 405 U.S. at 164, 92 S.Ct. at 844; see also United States v. Wheeler, 254 U.S. 281, 293, 41 S.Ct. 133, 134, 65 L.Ed. 270 (1920) ("In all the [s]tates from the beginning down to the adoption of the Articles of Confederation the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective [s]tates, to move at will from place to place therein, and to have free ingress thereto and egress therefrom....").” (Nunez at para 54- emphasis added).

Freedom of movement is a basic, fundamental right.

“ . . . the fundamental right that juvenile curfews most significantly trample upon is freedom of movement. Although this liberty interest is not enumerated in the Constitution, the United States Supreme Court has acknowledged that freedom of movement is "basic in our scheme of values." The Court, while striking down a vagrancy statute, has also acknowledged that freedom of movement is akin to a fundamental right, encompassing walking, loafing, and strolling, all of which "are historically part of the amenities of life as we have known them." Similarly, in Bykofsky v. Borough of Middletown, Justice Marshall, joined by Justice Brennan, stated that the "freedom to leave one's house and move about at will is 'of the very essence of a scheme of ordered liberty . . . . . .”. .." (Journal of Juvenile Law Comment - 19 J. Juv. L. 84).

And the Constitution secures minors' fundamental right to free movement against the government acting without regard to the parents' wishes.
“The City and its amici contend that these are not fundamental rights for minors because minors are traditionally treated differently than adults. The City heavily relies on Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995), to show that "unemancipated minors lack some of the most fundamental rights of self-determination -- including even the right of liberty in its narrow sense, i.e., the right to come and go at will." Id. at 2391. The City takes Vernonia's statement out of context. In the next sentence the Court explains that children "are subject, even as to their physical freedom, to the control of their parents or guardians." Id. Because parental power is not subject to the constitutional constraints of state power, . . . minors' lack of rights vis-a-vis parents does not necessarily show that they lack those rights vis-a-vis the state. The Court emphasized the school district's "custodial and tutelary responsibility for children," noting that constitutional rights are different in public schools than elsewhere. Id. at 2392. See also Reno v. Flores, 507 U.S. 292, 302 (1993). We decline to extend Vernonia to establish that the Constitution does not secure minors' fundamental right to free movement against the government acting without regard to the parents' wishes. See Hutchins, 942 F. Supp. at 672 (similarly declining to extend Vernonia).” (Nunez at para 13 - emphasis added).

Overbroad and Due Process Objections to sec. 45.03

Nunez also concluded,“regarding plaintiff minors' fundamental First Amendment rights, which are incorporated against the states by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Thornhill v. Alabama, 310 U.S. 88, 95 (1940)“ that “the ordinance's restrictions on legitimate exercise of minors' First Amendment rights makes the ordinance unconstitutionally overbroad.”.
“The overbreadth doctrine allows a plaintiff "to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Thus, it serves to overcome what would otherwise be a plaintiff's lack of standing.” (Nunez at para 88).
Nunez holds that although it’s a “general regulation of conduct, not speech ”the ordinance nevertheless does restrict minors' ability to engage in many First Amendment activities during curfew hours.”. It “restricts access to any and all public forums”.

“For First Amendment purposes, the physical and psychological well-being of minors is a compelling government interest. Sable Communications, 492 U.S. at 126. Thus, the ordinance must be narrowly tailored to achieve that interest. We hold the ordinance is not narrowly tailored because it does not sufficiently exempt legitimate First Amendment activities from the curfew.” (Nunez at para 96).

And - especially viewed in light of Hodgkin’s reasoning - the Los Angeles ordinance also fails to do so (especially the coming and going to the activities).
The chief due process issue - the inescapable flaw of sec. 45.03 – whatever else is said about it – is that it criminalizes innocent activity.

“As one commentator concluded: Vesting in governmental instrumentalities the authority to deprive persons of freedom to engage in innocent conduct is a frightening proposition. The Due Process Clause should proscribe such a result. Once innocence can be the subject of arrest and criminal prosecution, the concept of due process evaporates. Arguably, therefore, the substantive due process component of the Due Process Clause makes even the most carefully drafted blanket law unconstitutional.” .” .." (Beaumont).

Sec. 45.03 violates parents' fundamental right to rear children without undue governmental interference.

This is an independent basis for Nunez striking down the San Diego ordinance.
The curfew rationale of preventing victimization of teens is inextricably bound with issues of parental control.

“The difficult issue in this case involves reconciling two conflicting interests: individual freedom to walk on public streets without fear of police intervention, see, e.g., Gomez v. Turner, 672 F.2d 134, 143 n. (D.C. Cir. 1982), and the authority of the state to act in the best interest of minors, see, e.g., Bellotti v. Baird, 443 U.S. 622, 633-34 (1979). . . This issue arises only if one recognizes a right at a sufficient degree of abstraction to connect with precedent in analogous areas.” (Hutchins v. District of Columbia, 188 F.3d 531 (1999), dissent).

Nunez rules that, with curfew laws, the state is usurping the parental functions.

“The curfew is, quite simply, an exercise of sweeping state control irrespective of parents' wishes. Without proper justification, it violates upon the fundamental right to rear children without undue interference. See Hodgson v. Minnesota, 497 U.S. 417, 446-47 (1990) ("The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to the American tradition."). The ordinance is not a permissible "supportive" law, but rather an undue, adverse interference by the state. Cf. Bellotti, 443 U.S. at 638-39 & n.18 (finding requirement for parental consultation before abortion is constitutional because, inter alia, it supports parents).” (Nunez at para 104 – emphasis added).

And this view of Nunez is followed by many cases in many jurisdictions:

“See Ramos v. Town of Vernon, 353 F.3d 171, 183 (2d Cir. 2003) ("[W]e cannot sit in judgment of a parental philosophy allowing late night activity, for 'between parents and judges, the parents should be the ones to choose whether to expose their children to certain people or ideas.'") (quoting Troxel v. Granville, 530 U.S. 57, 63 (2000)); Nunez v. City of San Diego, 114 F.3d 935, 952 (9th Cir. 1997) (characterizing juvenile curfew as "an exercise of sweeping state control irrespective of parents' wishes"); City of Sumner v. Walsh, 61 P.3d 1111, 1118 n.2 (Wash. 2003) (Chambers, J., concurring) ("If the ordinance is an unconstitutional infringement on the child's liberties, to enforce it against the parent would effectively allow the State to infringe by proxy what it could not infringe directly."); McCollester v. City of Keene, 586 F. Supp. 1381, 1386 (D.N.H. 1984) (finding curfew ordinance usurps "parental discretion in supervising a child's activities and imposing parental liability even where the parent exercised reasonable control or supervision"); Betancourt v. Town of West New York, 769 A.2d 1065, 1068 (N.J. Super. Ct. App. Div. 2001) (concluding that exceptions in juvenile curfew ordinance were "not broad enough to recognize the right of parents to permit their children to participate in many legitimate activities"); Ex parte McCarver, 46 S.W. 936, 937 (Tex. Crim. App. 1898) ("We regard this . . . [juvenile curfew ordinance] as an attempt to usurp the parental functions, and as unreasonable, and we therefore hold the ordinance in question as illegal and void.").” (State of Florida v. J.P., Supreme Court of Florida, No. SC02-2288 , Revised opinion issued May 5, 2005).