OPINIONS BELOW
The opinion of the court of appeals (R.26) and the opinion of the district court (R.17-24) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on October 17, 2004. The Court granted petitioner’s timely petition for Writ of Certiorari on December 8, 2004. The Court’s jurisdiction rests on 28 U.S.C. § 1254(1).
STATEMENT OF THE CASE
On Friday, July 25, 2003, at approximately 9:00 p.m., Petitioners Spencer McNeil (“McNeil”) and Juan Perez (“Perez”), two fifteen-year-olds, arrived at Respondent Amesville Playland (“Playland”), an amusement park and arcade in Amesville, Ames open until 2:00 a.m. on weekends. (R.9-10) With their parents’ permission to stay out past midnight on Friday nights during summer vacation, McNeil and Perez spent approximately three hours on rides and playing in Playland’s arcade. (R.10) At 12:15 a.m., they were approached by Playland’s owner, Stanley Yaznetz (“Yaznetz”), detained for almost an hour, and cited for violating the Ames Juvenile Curfew Act (“Curfew Act”). (R.10)
The Curfew Act
The Ames State Legislature passed the Curfew Act on October 17, 2001, by a five-vote margin in the Senate and a seven-vote margin in the House, and became effective on January 1, 2002. (R.9, 14) The Curfew Act makes it “unlawful for any minor to remain … in any public place or establishment in the State of Ames during curfew hours.” (R.13) The curfew begins at 11:00 p.m. on weeknights and 12:01 a.m. on weekends, and it ends at 5:00 a.m. each day. (R.12) The curfew applies uniformly across Ames’s 276 municipalities but allows that curfew hours may be extended by up to two hours when a locality determines that the curfew’s start time is later than is reasonable. (R.14)
Progressive penalties are imposed on youths and their parents for violations of the curfew, with a $250 fine, a $500 fine, and criminal charges against parents imposed after the first, second and any subsequent offenses, respectively. (R.14) The statute provides affirmative defenses for minors who are accompanied by a parent, who are participating, going to, or returning from designated activities, who are on the sidewalk abutting their own home or that of a neighbor, who are exercising First Amendment rights, or who are engaged in interstate or international travel between locations outside Ames. (R.13-14) Not until a law enforcement officer has asked the minor’s age and reason for being in the prohibited location, and not until the officer “reasonably believes” the curfew has been violated and the minor has no legal defense, can the officer “detain a minor, issue a citation, or take a minor into custody.” (R.14) The Curfew Act also burdens parents and private establishments, making it unlawful for parents to permit minors to violate the curfew and unlawful for establishments to “knowingly allow a minor to enter or remain upon the premises … during curfew hours.” (R.13) Upon probable cause, merchants “may … take reasonable steps to prevent minors from entering or remaining on the premises.” (R.13) Establishments face a $500 fine for each failure to enforce the curfew. (R.14)
Legislative History
The Curfew Act was enacted based on legislative findings that minors are “particularly vulnerable to the threat of injury and the lure of criminal behavior,” that crime involving minors as victims or perpetrators has increased in Ames, and that parents want elected officials to help them control their children. (R.12) The stated intention of the Curfew Act is to protect all its citizens from crime, “with particular emphasis on protecting the health and welfare of children.” (R.12) These legislative findings are based on mixed evidence presented to the Ames Senate Judiciary Committee on September 23, 2001. (See R.28-29) The Ames AARP executive director made anecdotal reference to “[g]angs of adolescents who slouch around street corners,” (R.28), and the Ames City police chief referred to the approximately 20% increase in both violent and property crimes committed by minors and the 32% proportion of crime committed during late night hours – though not necessarily by minors – in his city of over 300,000. (R.28-29, 15) At the same hearing, a children’s advocate noted that almost 60% of crimes against children do not occur during late night hours and that 64% of crimes against children do not occur in public places and a professor of criminology testified that in a study of fifteen other juvenile curfews, a majority did not have a significant impact on the crime rate. (R.28)
The statistical evidence provided by the Ames Attorney General indicates that Ames City, with a population of over 300,000, ranked first out of 276 localities in juvenile arrests in 2000. (R.15) Ames City’s combined violent crime, property crime, drug abuse and weapons arrests of juveniles totaled over 2,000, including 824 for violent crimes. (R.15) For the same period, Amesville ranked 259, with nineteen arrests, two of them for violent crime. (R.15) In a report by the Governor on statewide crime, statistics indicate that, since the enactment of the Curfew Act, juvenile arrests in Ames have decreased in certain categories (property crime arrests reduced from 1344 in 2000 to 825 in 2003), increased in certain categories (drug abuse arrests increased from 815 to 825) and remained the same in others (violent crime arrests moved from 311 to 312). (R.16)
McNeil and Perez’s Detention and Citation
On July 26, at 12:15 a.m., Yaznetz, the owner and operator of Playland, acted to enforce the curfew against McNeil and Perez. (R.10) He approached the youths and asked whether they were under eighteen years old. (R. 10) McNeil and Perez chose not to respond, and Yaznetz instructed them to leave. (R.10) McNeil and Perez indicated that they would like to use the tokens they had already purchased, but Yaznetz, and two Playland employees forced the youths into Yaznetz’s Playland office where Yaznetz called the Amesville police. (R.10) For almost an hour, Yaznetz detained the youths, denying their multiple requests to “call their parents, use the bathroom, and go home.” (R.4) Officer John Garrity, an Amesville police lieutenant, arrived at 1:15 a.m. and Yaznetz delivered the youths into his custody. (R.10) These events followed eight other such incidents involving the detention and delivery of minors to the Amesville police by Playland in the less than two years since enactment of the Curfew Act. (R.4) Garrity issued McNeil and Perez a citation instructing them to appear in Juvenile Court, based on his determination that they were minors within the definition of the Curfew Act. (R.10) The Juvenile Court subsequently fined each youth $250. (R.10)
The Appeal
On March 31, 2004, McNeil and Perez filed suit, through their parents Vanessa McNeil and Jose Perez, in United States District Court for the District of Ames, against Sam Lu, in his official capacity as Chief of Police of Amesville, Sarah Jackson, in her official capacity as Amesly County Prosecutor, and Playland. (R.1) McNeil and Perez sought relief against Lu and Jackson to challenge the constitutionality of the Curfew Act under the Fourteenth Amendment of the United States Constitution, and against Playland for damages and other relief appropriate under 42 U.S.C. § 1983 for violation of their civil rights under color of state law. (R.1) On July 27, 2004, the District Court granted the defendants’ motions for summary judgment, which were affirmed by the United States Court of Appeals for the Ames Circuit on October 17, 2004. (R.23-24, 26) On December 8, 2004, the Court granted the petition for Writ of Certiorari to review whether the Curfew Act violates McNeil and Perez’s rights under the Equal Protection Clause of the Fourteenth Amendment and whether Playland is a state actor under color of law for purposes of 42 U.S.C. § 1983. (R.27)
SUMMARY OF THE ARGUMENT
Equal Protection
The Curfew Act unreasonably burdens minors’ fundamental right of free
movement and violates their due process rights under the Equal Protection Clause of the Fourteenth Amendment. Freedom of movement is a fundamental right deeply rooted in our nation’s history, common law tradition, and early precedent. This right is also basic in our conception of personal liberty and instrumental to the exercise of the fundamental rights of expression and interstate travel. The Curfew Act strips minors of this fundamental right central to personal liberty, and minors have no lesser interests in free movement crucial to self-autonomy than do adults.
Minors’ fundamental right of free movement is coextensive with that of adults in the context of the Ames Curfew. Ames cannot justify differentiating minors’ and adults’ right of freedom of movement. Two considerations lead inexorably to the conclusion that the proper standard of review for the juvenile curfew is strict scrutiny: (1) Ames’s interest in regulating minors’ rights is lessened and counterbalanced in the context of full parental custody and; (2) Ames’s juvenile curfew fails to implicate concerns justifying more government regulation over minors.
The Curfew Act does not survive strict scrutiny because Ames has not shown that the Act is narrowly tailored to accomplish the State’s interest. The Curfew Act fails to survive because the nexus between Ames’s regulatory interest and the Act is inadequate and because a blanket curfew is not the least restrictive means available to accomplish the State’s goals.
State Action
Amesville Playland enforced the Ames curfew pursuant to a state statutory mandate and detained McNeil and Perez through joint action with the state. As a result, Playland “may be fairly said to be state actor” acting “under color of state law” for purposes of 42 U.S.C. § 1983. The fact-bound approach to the state action inquiry reveals a significant private-state nexus. The Court should reverse summary judgment.
The evidence shows that the Curfew Act coerces Playland to enforce the curfew, triggering Playland’s role as state actor. The statute coerces Playland by mandating that it enforce the curfew under penalty of fine. On July 26, 2003, Playland, through its owner Stanley Yaznetz, enforced the curfew against McNeil and Perez by detaining them and by involving the police. The Curfew Act pressures Playland to act for the state.
In addition to its coercive force, the Curfew Act prompts joint action between Playland and the Amesville police. Playland and the police acted in concert because Yaznetz forcibly detained McNeil and Perez and called for police assistance, because the police relied on Yazentz’s word instead of independently investigating the circumstances of the detention, and because the police and Yaznetz worked towards the same goal of curfew enforcement. In addition, Playland and the police had cooperated to detain curfew violators at least eight times before, and their support and reliance upon each other indicate a customary plan. By demonstrating concerted action and a customary plan, McNeil and Perez present sufficient evidence of joint action to raise an issue of material fact.
Viewed in totality, a reasonable jury could find Playland to be a state actor. A flexible approach based partly on normative judgments permeates the entire state action inquiry. Enforcing the curfew against McNeil and Perez involved a web of relationships between Playland and the police and resulted in Playland’s implementation of Ames’s public policy. A jury should be allowed to weigh the facts and vindicate McNeil and Perez’s liberties as § 1983 requires.
ARGUMENT
I. The Ames juvenile curfew act infringes ON minors’ fundamental right to free movement in violation of the equal protection clause.
The Fourteenth Amendment declares that no State may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Based on history and implicit concepts of liberty, certain freedoms rise to the level of fundamental rights and deserve heightened constitutional protection. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997). The Equal Protection Clause bars classifications that unduly burden a group’s exercise of a fundamental right unless they are narrowly tailored to serve a compelling government interest. See Zablocki v. Redhail, 434 U.S. 374, 388 (1978). Freedom of movement is a liberty interest at the core of Equal Protection, and the Curfew Act restricts minors’ exercise of this right without advancing Ames’s asserted interests in violation of the Fourteenth Amendment.
A. Ames’s Statewide Juvenile Curfew Unduly Burdens McNeil and Perez’s Fundamental Rights to Free Movement.
The fundamental rights analysis in this case begins with a “careful description” of the right at issue. Glucksberg, 521 U.S. at 721 (internal quotation marks omitted). Courts then decide if that right is fundamental based on tradition and implicit concepts of ordered liberty. See id. The freedom of movement in public is a fundamental right, and the Curfew Act impermissibly burdens this right.
1. The Constitution Protects a Carefully Described Right of Free Movement.
The right of free movement is a “carefully described” right. Courts define the relevant liberty interests implicated by juvenile curfews in different ways. For example, the Ninth Circuit described the liberty interest as the “right of free movement and the right to travel.” Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997). The “right of free movement” at issue in this case is a more careful description of the liberty interests involved than the rights at issue in Schleifer v. City of Charlottesville, 159 F.3d 843 (4th Cir. 1998). Id. at 846-47 (making a broad appeal to minors’ “constitutional liberties”). Defining the right in this way satisfies the “careful description” requirement in Glucksberg and circumscribes the analysis to a specific liberty interest deeply rooted in history.