ט Indianapolis Curfew Law Struck Down by the 7th Circuit; Hodgkins v. Peterson. The Seventh Circuit federal court has just said that curfew laws violate the First Amendment. According to the three-judge panel, state law cannot authorize a policeman to stop unaccompanied children out on the streets at 2 a.m. The Court's reasoning is that the kids might be on their way to speak at a political rally, and this violates Freedom of Speech.
Do you think I'm joking? No---this is a fair summary of their argument. Of course they flesh it out more. They explain that maybe it's actually Freedom of Assembly or Freedom of Religion that is being violated; that nobody has thought such curfews illegal for a couple of hundred years but that is irrelevant; that it is an undue hardship to require parents to accompany them to the midnight events; that even if the law contains explicit exceptions for attendance at 2 a.m. church services, a skeptical policeman might still stop the kids and put them to the trouble of proving that they were on their way to a church rather than a gang meeting or a burglary. After fleshing out the details, though, the judges' argument looks even stupider. That's what happens when you take claims by the Indiana Civil Liberties Union seriously.
One disadvantage to being someone who, like myself, admires law-and-econ scholars Richard Posner and Frank Easterbrook, now judges, is that whenever the newspapers announce a wacky opinion from the Seventh Circuit in Chicago, we must worry that their names are attached to it. I was relieved to see thatt his was not the case here. Rather, the opinion in Hodgkins v. Peterson was by Judges Wood, Coffey, and Rovner.
Let's do a bit of analysis. First, I'd like to point out a technical point, which while ultimately not important to the present case does show the hazy grasp the judges have of basic points in law. What Hodgkins wanted was a preliminary injunction, a command from the court to the Mayor Indianapolis to stop enforcing this law so that the courts would have time to think about whether it was constitutional. This is a common request, so one would hope that a judge would know the criteria for granting it. Here's what the court says:
Ordinarily, to succeed on a motion for a preliminary injunction, the party seeking the
injunction must make an initial showing (1) that her case has a likelihood of success on
the merits; (2) no adequate remedy at law exists; and (3) she will suffer irreparable
harm if the injunction is not granted. Foodcomm Int'l. v. Barry, 328 F.3d 300, 303 (7th
Cir. 2003). In this case, the only issue in play is the first -- that is, whether the
plaintiffs have adequately shown that they are likely to succeed on the merits of their
claim. The district court below found, and the government defendants do not dispute,
that the plaintiffs had successfully established all of the other elements required for
a preliminary injunction.
This sounded wrong to me, even apart from the gender-neutered language. What if points
(1) to (3) are all true, but the *other* party can also show all three? That, in fact,
is very common, and would apply in the present case. Hodgkins could show that he had a
reasonable chance of winning the case ultimately, that it would be hard to measure the
cost to children of having to obey the curfew during the period from now till the
ultimate decision, and the children could never get back the lost church services and
political rallies they were blocked from attending. On the other hand, Mayor Peterson
of Indianapolis could also show that he had a reasonable chance of winning, it would be
hard to measure the cost to the City of having children wander around at midnight during
the period from now till the ultimate decision, and the City could never repair the
extra crime and injury to children's moral development that resulted from lack of a
curfew law.
Obviously, the law should have a balancing test, not just a set of 3 things the party requesting the motion needs to show. And, in fact, the case cited by the Court says that! Take a look at the cited page in Foodcomm:
To prevail on a motion for a preliminary injunction, Foodcomm must show that (1) its
case has a likelihood of success on the merits; (2) no adequate remedy at law exists;
and (3) it will suffer irreparable harm if the injunction is not granted. Prometak
Industries, Ltd. v. Equitrac Corp., 300 F.3d 808, 811 (7th Cir. 2002); see also Abbott
Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). If these three conditions
are met, the court must balance the harm to Foodcomm if the injunction is not issued
against the harm to Barry and Leacy if it is issued. Storck, 14 F.3d at 314. This
balancing involves a sliding scale analysis: the greater Foodcomm's chances of success
on the merits, the less strong a showing it must make that the balance of harm is in
its favor. Id. Absent a clear error of fact or law, we defer to the district court's
weighing of the relevant factors. Abbott Labs., 971 F.2d at 13.
Recall that in the present case, the district court had ruled against Hodgkins. It may
be that the City of Indianapolis had an incompetent lawyer who preemptively surrendered
on the question of whether the City or Hodgkins would suffer more during the period
until the final disposition. Even that, however, would not excuse the Hodgkins Court
from correctly stating the law--after all, somebody might cite their opinion as a
precedent. The other side will then have to say, "Well, the Hodgkins case says there is
no balancing needed, but the Court just was confused." Which it was.
As it happens, this issue turned out not be relevant for the present case. The Hodgkins Court decided that the curfew law was so clearly illegal that no further trial was necessary to determine facts. That being the case, they told the district court to grant a permanent injunction, rather than a preliminary injunction to be followed by a new trial to figure out facts such as whether the curfew had greater benefits than costs.
Although this case is before us on the appeal of a denial of a motion for preliminary
injunction, given the manner in which the parties and district court agree that the
affirmative defenses will operate, the constitutional defect in this case is clear.
There is no need for further proceedings on this matter and judicial efficiency will
best be served with an instruction to the district court to permanently enjoin the
enforcement of the curfew law.
Was the court right that the curfew is obviously unconstitutional? I always recommend
starting by looking at the Constitution in a case like this. Courts try to avoid doing
that, because it makes them look silly. Instead, they go straight to decisions by
previous courts. This avoids drawing attention to the original incredible jump from
the Constitution what some judge claims is in the Constitution. But I want to draw
attention, so here's the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the government for a redress of
grievances.
The question before the Court was whether a law forbidding persons under age 18 from
being on the streets without their parents late at night violated the First Amendment.
Being on the streets at that hour might hinder the exercise of their religion or
peacable assemblies. It is not "Congress" doing this, but the State of Indiana, but
almost all courts ignore that, citing the "Incorporation Doctrine" and shutting their
eyes to what the Constitution says. Putting that aside, can a state ever restrict
people from speaking or assembling ? Well, yes--- they do it all the time. We do not
take the 1st Amendment to mean that the state cannot forbid trespassing, or copyright
violation, or noisy rallies at midnight, or speeding. And in fact we let parents
severely restrict what their children do, and even enshrine parental authority in law.
But what of the present case?
Everybody agrees that it is conceivable that a child might be engaged in an activity protected by the 1st Amendment at midnight. A federal law saying "Children will not be allowed to attend Lutheran church services after midnight, despite parental consent" would violate the First Amendment. And a general curfew law might have the same effect. One out of a million children on the streets at midnight might be going to a Lutheran service alone with his parents' consent, though I think that's probably an overestimate of the number. Note, however, that even if that did happen, we still don't have a violation of the child's rights. That would occur only if a policeman actually enforced the law against him. One of the biggest parts of a policeman's job is to exercise discretion as to when to enforce the law. The police frequently see people going 32 mph in a 30mph speed zone without arresting them, for example. So not only do we need the curfew law if Lutheran nightowls are to be oppressed; we need the policeman to decide to arrest the child. And if that ever happened, wouldn't the child have a remedy at law--- couldn't he go to court to say that his constitutional rights had been oppressed? It is not a law which oppresses someone, but the enforcement of a law. And the common law's good maxim was that courts should not decide on hypothetical violations of legal rights, but only actual violations.
The courts have fooled around with curfews before, though, so to stay out of trouble, the City of Indianapolis had already modified the curfew law by inserting an exemption for kids engaged in 1st Amendment activities. The City was happy to do this, I expect, knowing that (a) the number of such cases was zero or minute, and (b) the police wouldn't go after those kids anyway, and (c) the City didn't want to have those kids arrested anyway. So the Hodgkins Court had to say that *even with that exemption* the law was unconstitional.
Granted, Indiana's curfew does not forbid minors from exercising their First Amendment
rights during curfew hours, but it does forcefully discourage the exercise of those
rights. The First Amendment defense will shield a minor from conviction, assuming
that she can prove to the satisfaction of a judge that she was exercising her First
Amendment rights, but, as discussed, it will not shield her from arrest if the officer
who stops her has not actually seen her participating in a religious service, political
rally, or other First Amendment event.
and
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.
So--she *might* have been to a Saturday midnight church service, even though the
policeman couldn't find any evidence of it without doing an investigation. And the court
has the gall to say "this strikes us as a small subset of
minors participating in late-night First Amendment activities...". First of all, courts
are supposed to rely on evidence, not on what strikes them. Second, they're wrong.
Suppose a policeman comes upon a child late at night, and is trying to decide whether
to arrest him. If the child is formally dressed and carrying a Bible or a "Howard Dean
for President" sign, I bet the policeman won't arrest him "as a practical matter". If
the child is dressed in black, wearing a black mask, carrying a large sack, and
smelling of alchohol, the policeman probably will arrest him. This is both what a
public-interested policeman would do, and it accords with his private incentives. If he
arrests the Bible-carrier, his boss back at the station will think he's an idiot, and
the parents may well (a) complain to the mayor, and (b) sue.
The Court does make an effort not to go over the edge completely. The judges say at the end of the opinion that they do not rely on the argument of the Indiana Civil Liberties Union that curfew laws unfairly hinder parents in raising their children. This is the most audacious of all the arguments: so let me repeat it: a law allowing policemen to force kids wandering the streets at midnight is bad because it makes it harder for parents to raise their kids in the way the parents desire. The judges do, however, hint that if pressed they would make that argument too-- it just isn't necessary in the present case, and they are trying to exercise judicial restraint.
Why don't we impeach judges like these? They are violating the Constitution and, in effect, overthrowing the results of elections by erasing laws that the legislators pass but the judges don't like. We can't vote against the judges, but U.S. Congressmen and Senators can-- by their votes on the impeachment bills.
[ http://php.indiana.edu/~erasmuse/w/04.01.24a.htm . Erasmusen@yahoo.com. ]
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