PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL SCHLEIFER, a minor by Barry

Schleifer, his father; WILLIAM

MCCUTCHEON, a minor by M.

Parthenia Monagan, his mother;

LISA BRIGGS, a minor by Anne

Briggs, her mother; NORA LALLYGRAVES, a minor by Mary Ann

Lally-Graves, her mother; JILL

LANDERS JACQUITH, a minor by

No. 97-1723

Harry James Landers, her father;

ANNE BRIGGS; HARRY JAMES

LANDERS; WALDO DAVID LANDERS

JAQUITH,

Plaintiffs-Appellants,

v.

CITY OF CHARLOTTESVILLE,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CA-97-21-C)

Argued: May 5, 1998

Decided: October 20, 1998

Before WILKINSON, Chief Judge, and ERVIN and

MICHAEL, Circuit Judges.

_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the

majority opinion, in which Judge Ervin joined. Judge Michael wrote

a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Mary Catherine Bauer, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for

Appellants. Lisa Robertson Kelley, OFFICE OF THE CITY ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Deborah

C. Wyatt, WYATT & CARTER, Charlottesville, Virginia, for Appellants. W. Clyde Gouldman, II, OFFICE OF THE CITY ATTORNEY,

Charlottesville, Virginia, for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

This appeal involves a challenge to the constitutionality of a juvenile nocturnal curfew ordinance enacted by the City of Charlottesville. The district court held that the ordinance did not violate the

constitutional rights of minors, their parents, or other affected parties

and declined to enjoin its enforcement. We agree that the ordinance

is constitutional and affirm the judgment of the district court.

I.

On December 16, 1996, the Charlottesville City Council, after several months of study and deliberation, amended Section 17-7 of the

City Code to enact a new juvenile nocturnal curfew ordinance. The

City Council designed the curfew ordinance to:

(i) promote the general welfare and protect the general public through the reduction of juvenile violence and crime

within the City;

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(ii) promote the safety and well-being of the City's youngest citizens, persons under the age of seventeen (17),

whose inexperience renders them particularly vulnerable to

becoming participants in unlawful activities, particularly

unlawful drug activities, and to being victimized by older

perpetrators of crime; and

(iii) foster and strengthen parental responsibility for children.

Charlottesville, Va., Code § 17-7, Intro.

Effective March 1, 1997, the ordinance generally prohibits minors,

defined as unemancipated persons under seventeen, from remaining

in any public place, motor vehicle, or establishment within city limits

during curfew hours. The curfew takes effect at 12:01 a.m. on Monday through Friday, at 1:00 a.m. on Saturday and Sunday, and lifts at

5:00 a.m. each morning.

The ordinance does not restrict minors' activities that fall under

one of its eight enumerated exceptions. Minors may participate in any

activity during curfew hours if they are accompanied by a parent; they

may run errands at a parent's direction provided that they possess a

signed note. The ordinance allows minors to undertake employment,

or attend supervised activities sponsored by school, civic, religious,

or other public organizations. The ordinance exempts minors who are

engaged in interstate travel, are on the sidewalk abutting their parents'

residence, or are involved in an emergency. Finally, the ordinance

does not affect minors who are "exercising First Amendment rights

protected by the United States Constitution, such as the free exercise

of religion, freedom of speech and the right of assembly." Id. § 17-

7(b)(8).

The ordinance sets forth a scheme of warnings and penalties for

minors who violate it. For a first violation, a minor receives a verbal

warning, followed by a written warning to the minor and the minor's

parents. For subsequent violations, the minor is charged with a Class

4 misdemeanor. The ordinance also makes it unlawful for certain

other individuals, including parents, knowingly to encourage a minor

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to violate the ordinance. The full text of the ordinance is included as

an appendix to the opinion.

Plaintiffs are five minors under age seventeen who are subject to

the ordinance, one eighteen-year-old, and two parents of minor children. The minors allege that, with their parents' permission, they

occasionally wish to engage in lawful activities which the curfew will

not permit. These activities include attending late movies; getting a

"bite to eat"; playing in a band; socializing with older siblings; and

attending concerts in Richmond, which would bring them back

through Charlottesville during curfew hours. The eighteen-year-old

plaintiff alleges that he has been deprived of opportunities to associate

with his younger friends by the ordinance. The parent plaintiffs allege

that the ordinance interferes with their decisions on which activities,

at what times, are appropriate for their children.

Plaintiffs brought this action for declaratory and injunctive relief,

alleging that the ordinance violates their rights under the First, Fourth,

Fifth and Fourteenth Amendments. At trial, plaintiffs dismissed their

Fourth Amendment claims. Following trial, by order dated May 20,

1997, the district court rejected plaintiffs' remaining claims and

denied their motion for a permanent injunction. Plaintiffs now appeal.

II.

Initially we must consider the level of scrutiny appropriate to this

case. Plaintiffs contend that the ordinance infringes minors' constitutional liberties and therefore should be subject to strict scrutiny. It is

true that "[a] child, merely on account of his minority, is not beyond

the protection of the Constitution." Bellotti v. Baird, 443 U.S. 622,

633 (1979) (plurality opinion) (Bellotti II). Minors enjoy some rights

under the First and Fourteenth Amendments before they attain adulthood. See, e.g., Planned Parenthood of Cent. Missouri v. Danforth,

428 U.S. 52, 74 (1976); Tinker v. Des Moines Indep. Community Sch.

Dist., 393 U.S. 503, 506 (1969). At the same time, the Supreme Court

has made abundantly clear that children's rights are not coextensive

with those of adults. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675, 682 (1986); Bellotti II, 443 U.S. at 634; Ginsberg v.

New York, 390 U.S. 629, 638 (1968); Prince v. Massachusetts, 321

U.S. 158, 168 (1944). "Traditionally at common law, and still today,

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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." Vernonia Sch. Dist. 47J

v. Acton, 515 U.S. 646, 654 (1995).

In recognition of these customary limitations, "[t]he state's authority over children's activities is broader than over like actions of

adults." Prince, 321 U.S. at 168. State laws do not permit children to

drive a car before they reach a certain age. E.g., Va. Code Ann.

§ 46.2-334. Compulsory attendance laws require children to attend

school. E.g., id. § 22.1-254; see also Prince, 321 U.S. at 166. Labor

laws limit the opportunities of children to engage in gainful employment. E.g., Va. Code Ann. § 40.1-78; see also Prince, 321 U.S. at

166. These types of laws reflect the state's "general interest in youth's

well being." Id.; see also City of Dallas v. Stanglin, 490 U.S. 19, 27

& n.4 (1989); Bykofsky v. Borough of Middletown , 401 F. Supp. 1242,

1256-57 (M.D. Pa. 1975), aff'd mem., 535 F.2d 1245 (3d Cir. 1976).

In light of the case law, two things seem clear. First, children do

possess at least qualified rights, so an ordinance which restricts their

liberty to the extent that this one does should be subject to more than

rational basis review. Second, because children do not possess the

same rights as adults, the ordinance should be subject to less than the

strictest level of scrutiny. See Carey v. Population Servs. Int'l, 431

U.S. 678, 693 n.15 (1977) (plurality opinion) (when minors are

involved the level of scrutiny "is apparently less rigorous than the

`compelling state interest' test applied to restrictions on the privacy

rights of adults"); Danforth, 428 U.S. at 75. We thus believe intermediate scrutiny to be the most appropriate level of review and must

determine whether the ordinance is "substantially related" to "important" governmental interests. See United States v. Virginia, 518 U.S.

515, 533 (1996) (quoting Mississippi University for Women v. Hogan,

458 U.S. 718, 724 (1982); Wengler v. Druggists Mutual Ins. Co., 446

U.S. 142, 150 (1980)). We also conclude, however, that the ordinance

survives constitutional attack under either a substantial or a compelling state interest standard. The narrow means chosen by the City in

the ordinance serve strong and indeed compelling public needs.

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III.

A.

The text of the Charlottesville curfew ordinance identifies three

legislative purposes: (1) to reduce juvenile violence and crime within

the city; (2) to protect juveniles themselves from being swept up in

unlawful drug activities and from becoming prey to older perpetrators

of crime; and (3) to strengthen parental responsibility for children.

These enumerated purposes represent important and compelling governmental interests.

In Schall v. Martin the Supreme Court recognized that "[t]he `legitimate and compelling state interest' in protecting the community from

crime cannot be doubted." 467 U.S. 253, 264 (1984) (quoting DeVeau

v. Braisted, 363 U.S. 144, 155 (1960)). Indeed it constitutes "a

weighty social objective." Brown v. Texas, 443 U.S. 47, 52 (1979). If

government cannot ensure the safety of its citizens, it has failed them

in the most fundamental sense. Schall further confirms that "this interest persists undiluted in the juvenile context," as the social costs of

crime are high no matter what the age of the perpetrator. 467 U.S. at

264-65.

The City contends that its curfew ordinance was passed to combat

the marked growth in the rate of juvenile crime both nationwide and

within Virginia. During the preliminary injunction hearing Dr. William Ruefle, a criminologist expert in juvenile curfews, testified that

these state and national growth trends were reflected in Charlottesville. In fact, the City produced evidence of a twenty-five percent

increase in the delinquency caseload of Charlottesville's Juvenile and

Domestic Relations Court between 1991 and 1996. Given the projected increase in the nation's juvenile population between 1995 and

2005, the problem of juvenile crime was unlikely to abate.

In addition, the City has documented two troubling features of the

juvenile crime phenomenon. First, the City's evidence on nationwide

trends indicated a high rate of recidivism among juveniles and a correlation between juvenile delinquency and adult criminal activity.

Thus reducing juvenile crime was a pressing first step in reducing the

overall impact of crime on the community. Second, Charlottesville's

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City Council was concerned about the marked increase in the violence

associated with juvenile crime. As the City's expert Dr. Ruefle stated

in an affidavit submitted to the district court,"[j]uveniles in Virginia

now commit serious property crimes at twice the rate of those 18

years of age and older, and since 1990, they also commit serious violent crimes at a higher rate than adults." In light of this evidence,

Charlottesville's first stated purpose is undeniably compelling.

Likewise, the City's strong interest in fostering the welfare of children and protecting the youngest members of society from harm is

well-established. See, e.g., Santosky v. Kramer, 455 U.S. 745, 766

(1982); Ginsberg, 390 U.S. at 640; Prince, 321 U.S. at 166-67. Courts

have recognized "the peculiar vulnerability of children," Bellotti II,

443 U.S. at 634, and the Supreme Court long ago observed that

"streets afford dangers for [children] not affecting adults." Prince, 321

U.S. at 169. Those dangers have not disappeared; they simply have

assumed a different and more insidious form today. Each unsuspecting child risks becoming another victim of the assaults, violent

crimes, and drug wars that plague America's cities. Given the realities

of urban life, it is not surprising that courts have acknowledged the

special vulnerability of children to the dangers of the streets. Nunez

v. San Diego, 114 F.3d 935, 947 (9th Cir. 1997); In Re Appeal in

Maricopa County, Juvenile Action No. JT9065297, 887 P.2d 599, 606

(Ariz. Ct. App. 1994) (Maricopa County); In Re J.M., 768 P.2d 219,

223 (Colo. 1989) (en banc); see also Bykofsky , 401 F. Supp. at 1257.

Charlottesville, unfortunately, has not escaped these troubling realities. Two experienced City police officers confirmed to the district

court that the children they observe on the streets after midnight are

at special risk of harm.

Charlottesville's third purpose -- strengthening parental responsibility for children -- is also a significant interest. The City shares

with parents and guardians a responsibility to protect children. Prince,

321 U.S. at 165-66; Pierce v. Society of Sisters , 268 U.S. 510, 535

(1925). State authority complements parental supervision, and "the

guiding role of parents in the upbringing of their children justifies

limitations on the freedoms of minors." Bellotti II, 443 U.S. at 637.

The Supreme Court has acknowledged "the special interest of the

State" in encouraging minors to seek parental advice in making

important decisions. Id. at 639. And the Court has confirmed that the

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state is appropriately concerned with the integrity of the family unit.

Trimble v. Gordon, 430 U.S. 762, 769 (1977). Therefore, like the

City's two preceding interests in reducing the incidence of juvenile

crime and juvenile victimization, the City's third aim constitutes an

important governmental purpose.

B.

Conceding for the sake of argument that the curfew's stated ends

are sufficiently compelling, plaintiffs train their attack on the means

by which the ordinance seeks to achieve its goals.

We agree with plaintiffs that the curfew must be shown to be a

meaningful step towards solving a real, not fanciful problem. As the

Supreme Court has said in the First Amendment context, the government "must do more than simply `posit the existence of the disease

sought to be cured.' It must demonstrate that the recited harms are

real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broad. Sys., Inc.

v. FCC, 512 U.S. 622, 664 (1994) (citations omitted). This standard,

however, has never required scientific or statistical "proof" of the wisdom of the legislature's chosen course. Cf. Ginsberg, 390 U.S. at 642-

43 ("We do not demand of legislatures `scientifically certain criteria

of legislation.'") (quoting Noble State Bank v. Haskell, 219 U.S. 104,

110 (1911)). The Supreme Court has recognized that"[i]t is unrealistic to expect either members of the judiciary or state officials to be

well versed in the rigors of experimental or statistical technique. But

this merely illustrates that proving broad sociological propositions by

statistics is a dubious business." Craig v. Boren, 429 U.S. 190, 204

(1976). This uncertain nature of remedial legislation is no reason for

courts to fashion their own cures or to scuttle those the legislature has

provided. In fact, "[f]ederal courts have always been reluctant to

question the potential effectiveness of legislative remedies designed

to address societal problems." Qutb v. Strauss, 11 F.3d 488, 493 n.7

(5th Cir. 1993).

Charlottesville was constitutionally justified in believing that its

curfew would materially assist its first stated interest -- that of reducing juvenile violence and crime. The City Council acted on the basis

of information from many sources, including records from Charlottes-

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ville's police department, a survey of public opinion, news reports,

data from the United States Department of Justice, national crime

reports, and police reports from other localities. On the basis of such

evidence, elected bodies are entitled to conclude that keeping unsupervised juveniles off the streets late at night will make for a safer

community. The same streets may have a more volatile and less

wholesome character at night than during the day. Alone on the

streets at night children face a series of dangerous and potentially lifeshaping decisions. Drug dealers may lure them to use narcotics or aid

in their sale. Gangs may pressure them into membership or participation in violence. "[D]uring the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment

to recognize and avoid choices that could be detrimental to them."

Bellotti II, 443 U.S. at 635; see also Nunez , 114 F.3d at 947;

Maricopa County, 887 P.2d at 606-07; In Re J.M., 768 P.2d at 223.

Those who succumb to these criminal influences at an early age may

persist in their criminal conduct as adults. Whether we as judges subscribe to these theories is beside the point. Those elected officials

with their finger on the pulse of their home community clearly did.

In attempting to reduce through its curfew the opportunities for children to come into contact with criminal influences, the City was

directly advancing its first objective of reducing juvenile violence and

crime.

Plaintiffs contend that the exclusion of seventeen-year-olds from

the curfew is a fatal flaw in the ordinance. They argue that this group

is responsible for one-third of all crimes committed by juveniles

nationwide and that excluding seventeen-year-olds from the curfew

thus renders the ordinance impermissibly underinclusive. However,

the City's evidence documents a serious problem of crime among

younger juveniles. In Charlottesville in 1995 eighty percent of juvenile arrests for the most serious crimes were of children aged ten to

sixteen, and in 1996 eighty-five percent of such crimes were committed by this group. Furthermore, the City's decision to exclude

seventeen-year-olds from coverage under the curfew is a legislative

judgment that we are loath to second-guess. "[I]t is not the function

of a court `to hypothesize independently on the desirability or feasibility of any possible alternative[s]' to the statutory scheme.. .. .. .

`These matters of practical judgment and empirical calculation are for

[the State].'" Lalli v. Lalli, 439 U.S. 259, 274 (1978) (quoting

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Matthews v. Lucas, 427 U.S. 495, 515 (1976)) (alterations in original). In exercising its legislative judgment, the City was forced to balance the law enforcement benefit of subjecting seventeen-year-olds to

the curfew against the greater law enforcement burden of doing so.

Weighing benefits and burdens is what legislatures are about.

Plaintiffs also dispute the effectiveness of the curfew in reducing

juvenile crime. They say that the real problem of juvenile crime is not

at night, but in the after school hours. Plaintiffs make much of a

report entitled Juvenile Offenders and Victims: 1996 Update on

Violence, Office of Juvenile Justice and Delinquency Prevention, U.S.

Dep't of Justice 27 (1996), which asserts that only seventeen percent

of violent juvenile crime occurs during typical curfew hours, while

twenty-two percent happens between 2:00 p.m. and 6:00 p.m. on

school days. The City responds that the lower rate of late-night crime

may reflect the fact that several of the South Carolina cities in the

study actually had late-night curfews in effect. And with respect to

conditions in Charlottesville before the curfew, City police officers

and Charlottesville's Commonwealth's Attorney confirmed that the

most serious crimes committed by juveniles occurred during curfew

hours. Further, the City Council considered evidence that juvenile

offenses occurring in Charlottesville between 11:00 p.m. and 6:00

a.m. increased by thirty-eight percent during 1995 and a further ten

percent during 1996. Thus the City had reason to believe that, in both

volume and severity, nighttime juvenile crime was a serious, growing

problem in Charlottesville.

Charlottesville's City Council concluded that a nighttime curfew

might help curb this rising trend of juvenile crime. In making this

decision, the City relied on the experience of cities like Lexington,

Kentucky, where eight months of enforcing a nighttime juvenile curfew effected an almost ten percent decrease in juvenile arrests for the

serious crimes of homicide, assault, robbery, rape, burglary, larceny,

auto theft and arson. And the district court heard testimony that a curfew has the greatest chance of reducing juvenile crime in a smaller

city like Charlottesville, where juvenile crime, though a serious problem, has not yet become totally uncontrollable. Fundamentally, however, this dispute about the desirability or ultimate efficacy of a

curfew is a political debate, not a judicial one. If local communities

conclude that curfews are ineffective in reducing crime, too onerous

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to enforce, or too intrusive on the liberties of minors, then they are

free to discontinue them. Yet local legislative bodies are entitled to

draw their conclusions in light of experience with a curfew's operation, and not have their efforts at reducing juvenile violence shut

down by a court before they even have a chance to make a difference.

Plaintiffs also dispute that the curfew will contribute much, if anything, to protecting juveniles from crime, the City's second objective.

They deny that the streets are a particularly dangerous place for children at night, contending that the majority of crimes committed

against children are committed by family members or acquaintances

rather than by strangers on the street. The fact that children may be

at risk at home or during the day means only that the curfew will not,

unfortunately, protect juveniles from all crime. It does nothing to

undermine the City's evidence that children remain at risk of crime

in the street -- in fact, the City points out that in 1991 thirty-three

percent of the violent crimes reported by juvenile victims nationwide

occurred on the street. Juvenile Offenders & Victims: A National

Report, Office of Juvenile Justice and Delinquency Prevention, U.S.

Dep't of Justice 22 (1995). The Constitution certainly does not put

legislatures to the choice of solving the entirety of a social problem

or no part of it at all. Plyler v. Doe, 457 U.S. 202, 216 (1982).

Further, the evidence presented by the City identified several special dangers of the nighttime hours: a vigorous street-level drug trade

that flourishes during the late evening and early morning hours and

that routinely uses children to facilitate drug transactions, thereby

exposing them to a high degree of danger; the difficulties of apprehending perpetrators of crime at night, as criminal activity is less visible and less subject to monitoring by concerned neighbors and

passers-by; and the increased degree of violence and seriousness of

the crimes that are committed at night. The record documents that in

Charlottesville in 1996 aggravated assaults were almost one and onehalf times as likely to occur during curfew hours as non-curfew hours,

robberies more than twice as likely to occur at these times, forcible

rapes more than three times as likely during curfew hours, and incidents of drunk driving more than five times more likely to occur during curfew hours, trends that continued into the first months of 1997.

By keeping children off the streets a few hours each night, the curfew

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reduces the exposure of children to these well-known, and welldocumented harms.

Finally, plaintiffs dispute the City's claim that the curfew will support the parental role in child-rearing, its third stated goal. They focus

exclusively on the testimony of the parent plaintiffs, who clearly do

not appreciate the curfew and do not welcome it as an enhancement

of their authority. The City was entitled to believe, however, that a

nocturnal curfew would promote parental involvement in a child's

upbringing. A curfew aids the efforts of parents who desire to protect

their children from the perils of the street but are unable to control the

nocturnal behavior of those children. And a curfew encourages parents who ignore their children's nighttime activities to take a more

active role in their children's lives. See Bykofsky, 401 F. Supp. at

1255; In Re J.M., 768 P.2d at 223. Finally, the curfew assists the

efforts of parents who prefer their children to spend time on their

studies rather than on the streets. City law enforcement officers

related anecdotal evidence that some parents actively welcome the

support of the authorities in establishing baselines for their children

and in enforcing reasonable limits on the freedom of their children to

wander the streets in the middle of the night. And the City Council

acted on the basis of surveys and testimony at public hearings reflecting widespread approval of the curfew and the support it offers to parents' efforts to discipline their children.

C.

The Charlottesville curfew is not only "substantially related" to its

stated purposes. The limited scope of the curfew and its numerous

exceptions would satisfy even the strict scrutiny requirement of narrow tailoring. See Bernal v. Fainter, 467 U.S. 216, 219 (1984) (narrow tailoring requires that the government use the least restrictive

means to advance its goals). Plaintiffs urge, however, that we follow

the lead of the Ninth Circuit, which held that San Diego's curfew

ordinance failed strict scrutiny review because the exceptions to the

ordinance were not sufficiently detailed and comprehensive to make

the curfew the least restrictive means of serving San Diego's compelling ends. Nunez, 114 F.3d at 948-49.

The San Diego curfew applied to all minors under the age of eighteen, began at 10:00 p.m., and extended until "daylight immediately

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following." Id. at 938. It contained four exceptions: (1) when a minor

is accompanied by a parent or other qualified adult; (2) when a minor

is on an emergency errand for his parent; (3) when a minor is returning from a school-sponsored activity; and (4) when a minor is

engaged in employment. See San Diego, Cal., Municipal Code Art.

8, § 58.01, quoted in Nunez, 114 F.3d at 938-39.

By contrast, Charlottesville's curfew applies only to minors less

than seventeen years of age, does not begin until midnight on weekdays and 1:00 a.m. on weekends, lifts at 5:00 a.m. each morning, and

contains no fewer than eight detailed exceptions. Under Charlottesville's curfew, minors are allowed, inter alia , to remain on the sidewalk directly abutting their residences; to attend supervised activities

sponsored by school, religious, public, civic or other similar organizations; to run errands for their parents; to undertake interstate travel;

and to engage freely in any activity protected by the First Amendment.

The Charlottesville ordinance carefully mirrors the Dallas curfew

ordinance that the Fifth Circuit found to satisfy strict scrutiny in Qutb,

11 F.3d at 490. Like the Charlottesville ordinance, the Dallas curfew

covered fewer hours than San Diego's and affected minors under the

age of seventeen, not eighteen. In addition to exceptions for employment and emergencies and when a minor is in the presence of a parent

or guardian, the curfew at issue in Qutb included a broad exception

for sponsored activities, a First Amendment exception, an exception

for being outside on the sidewalk adjacent to the minor's home, and

an exception for interstate travel. Id. Charlottesville's curfew is in fact

even narrower in scope than the Dallas ordinance, as it affects fewer

hours each night -- the Dallas curfew extended from 11:00 p.m. until

6:00 a.m. on weeknights and from 12:00 midnight to 6:00 a.m. on

weekends, one hour more each day than the Charlottesville ordinance.

This curfew, with its narrow scope and comprehensive list of exceptions, represents the least restrictive means to advance Charlottesville's compelling interests. Thus, it would survive even strict

scrutiny if that were the appropriate standard of review.

IV.

We next address plaintiffs' claims that the Charlottesville ordinance violates the constitutional rights of parents. Plaintiffs assert that

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parents have a constitutionally protected right to direct their children's upbringing without undue government interference. They urge

that this right includes decisions whether to allow their children to

engage in activities after the curfew takes effect. The ordinance interferes with this right, they conclude, by prohibiting children's activities that have the parents' full approval but do not fall under one of

the ordinance's eight exceptions.

Not every state restriction of a child's freedom derivatively

abridges the fundamental rights of parents. The Supreme Court has

rejected the view that parents possess an unqualified right to raise

children that trumps any government regulation of their children's

conduct. In Prince, the Court recognized"that the state has a wide

range of power for limiting parental freedom and authority in things

affecting the child's welfare." 321 U.S. at 167; see also Jehovah's

Witnesses in Wash. v. King County Hosp. Unit No. 1 (Harbor-View),

390 U.S. 598 (1968) (per curiam), aff'g 278 F. Supp. 488 (W.D.

Wash. 1967); Bykofsky, 401 F. Supp. at 1262. Furthermore, were we

to accept plaintiffs' argument, future litigants could simply artfully

plead violations of parental rights to avoid the Supreme Court's determination that children do not possess all the freedoms of adults. Arguments based on minors' rights to engage in particular conduct would

be routinely recast as arguments based on parents' rights to allow

their children to engage in precisely the same conduct.

We are mindful that the Supreme Court has suggested in other contexts that parents may possess a fundamental right against undue,

adverse interference by the state. See Wisconsin v. Yoder, 406 U.S.

205, 231 (1972) (state compulsory high school attendance law interfered with "traditional concepts of parental control over the religious

upbringing and education of their minor children"); Stanley v. Illinois,

405 U.S. 645, 651 (1972) (state presumption that unmarried father

was unfit parent undermined "the interest of a parent in the companionship, care, custody, and management" of child); Meyer v.

Nebraska, 262 U.S. 390, 400 (1923) (state prohibition against teaching of foreign languages frustrated "the natural duty of the parent to

give his children education suitable to their station in life"). We do

not believe, however, that cases involving a parent's custodial rights

or authority to direct a child's education support plaintiffs' claim. The

Charlottesville ordinance, prohibiting young children from remaining

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unaccompanied on the streets late at night, simply does not implicate

the kinds of intimate family decisions considered in the above cases.

Finally, several of the exceptions to the Charlottesville curfew do

accommodate the rights of parents. See Qutb, 11 F.3d at 496. These

include the exception for minors accompanied by a parent and the

exception for minors running an errand at the direction of a parent.

In general, the same reasons that lead us to reject the constitutional

challenges of the minor plaintiffs even under strict scrutiny apply to

the claims of the parent plaintiffs. Cf. Bykofsky, 401 F. Supp. at 1264.

The limited curtailment of juvenile liberty in the ordinance violates

neither a minor's nor a parent's rights.

V.

Finally, we consider plaintiffs' claims that various exceptions to

the ordinance are unconstitutionally vague. A law is not void for

vagueness so long as it "(1) establishes `minimal guidelines to govern

law enforcement,' and (2) gives reasonable notice of the proscribed

conduct." Elliott v. Administrator, Animal and Plant Health Inspection Serv., 990 F.2d 140, 145 (4th Cir. 1993) (citation omitted). In

statutes imposing criminal penalties, "the standard of certainty is

higher." Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983). Yet clarity even in a criminal code can be a receding mirage. Thus the vagueness doctrine cannot "convert into a constitutional dilemma the

practical difficulties in drawing criminal statutes both general enough

to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Colten v. Kentucky, 407 U.S. 104, 110 (1972).

Striking down ordinances (or exceptions to the same) as facially

void for vagueness is a disfavored judicial exercise. Nullification of

a law in the abstract involves a far more aggressive use of judicial

power than striking down a discrete and particularized application of

it. Of course there will be hard cases under any law. And of course

all the particular applications of any general standard will not be

immediately apparent. That is no reason, however, for courts to scrap

altogether the efforts of the legislative branch. It is preferable for

courts to demonstrate restraint by entertaining challenges to applications of a law as those challenges arise.

 15
The Charlottesville ordinance provides an exception for those

minors who are "exercising First Amendment rights protected by the

United States Constitution, such as the free exercise of religion, freedom of speech and the right of assembly." Charlottesville, Va., Code

§ 17-7(b)(8). Plaintiffs insist that this exception accords standardless

discretion to law enforcement officers to decide whether or not the

exception applies. According to plaintiffs, it also forces citizens to

learn a complex body of constitutional law in order to comprehend its

scope.

We decline to punish the City for its laudable effort to respect the

First Amendment. See CISPES (Committee in Solidarity with the People of El Salvador) v. FBI, 770 F.2d 468, 474 (5th Cir. 1985). A broad

exception from the curfew for such activities fortifies, rather than

weakens, First Amendment values. Plaintiffs basically attempt to

place city councils between a rock and a hard place. If councils draft

an ordinance with exceptions, those exceptions are subject to a vagueness challenge. If they neglect to provide exceptions, then the ordinance is attacked for not adequately protecting First Amendment

freedoms. It hardly seems fitting, however, for courts to chastise

elected bodies for protecting expressive activity. The Charlottesville

ordinance is constitutionally stronger with that protection than without.*

The First Amendment exception also does not accord unfettered

discretion to law enforcement officials. Every criminal law, of course,

reposes some discretion in those who must enforce it. The mere possibility that such discretion might be abused hardly entitles courts to

strike a law down. Police Chief Wolford's deposition, relied on by

plaintiffs, does not indicate an actual risk of arbitrary enforcement. In

response to a question from plaintiffs' counsel about whether a late

_________________________________________________________________

*The dissenting opinion suggests that the First Amendment exception

would be improved if it included a scienter element. See post at 52. A

scienter requirement might serve a beneficial narrowing function if § 17-

7(b)(8) imposed criminal liability. The provision, however, provides an

exception from liability for persons who otherwise would be in violation

of the curfew. It is not clear why the dissent would want to narrow this

safe haven by requiring minors to satisfy an additional state-of-mind

requirement.

 16
night conversation about politics between two fifteen-year-olds in a

coffee house fell within the exception for First Amendment activities,

he stated: "You're indoors, it's a public location, I, I think technically

under the ordinance it may be a violation. I doubt whether we would

deal with it." Such hedged deposition testimony about a speculative

hypothetical does not demonstrate that police will enforce the curfew

arbitrarily. See Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 503 (1982).

The First Amendment exception provides adequate notice to citizens. It is perfectly clear that core First Amendment activities such as

political protest and religious worship after midnight would be protected. It is equally clear that rollerblading would not. Between these

poles may lie marginal cases, which can be taken as they come. Id.

at 503 n.21.

The ordinance also provides an exception for activities sponsored

by civic organizations. Plaintiffs argue that the Supreme Court found

the term "civic" to be vague when it struck down an ordinance that

required permits for door-to-door solicitation but exempted several

groups, including "Borough Civic Groups and Organizations." Hynes

v. Mayor of Oradell, 425 U.S. 610, 621 (1976). We do not read Hynes

to stand for the broad proposition that any use of the term civic is per

se vague. The Court in Hynes found several of the terms used to

describe the exempted groups, including "Borough Civic Groups and

Organizations," to be unclear. Id. Here the language of the exception

is clearer and includes activities sponsored by school and religious

organizations in addition to civic organizations. Considered in this

context, we believe that the City intended to give civic its ordinary

meaning: "concerned with or contributory to general welfare and the

betterment of life for the citizenry of a community or enhancement of

its facilities." Webster's Third New International Dictionary

(Unabridged) 412 (1961). We decline to find this everyday use of the

term civic to suffer an ambiguity of constitutional magnitude. See

Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).

The ordinance also creates an exception in cases where a minor is

involved in an emergency. Without citation to authority, plaintiffs

pose a variety of hypothetical situations in which this exception may

or may not apply. For example, they wonder whether the exception

 17
would include the need to go to a store to purchase cough medicine

or a thermometer. Once again, the existence of questions at the margins does not justify striking down the exception altogether. A brief

review of the exception illuminates many situations to which it

plainly applies. The ordinance specifically defines emergency as "refer[ring] to unforeseen circumstances, or the status or condition

resulting therefrom, requiring immediate action to safeguard life, limb

or property." Charlottesville, Va. Code § 17-7(a). It further details

that "[t]he term includes, but is not limited to, fires, natural disasters,

automobile accidents, or other similar circumstances." Id. While

"[t]here is little doubt that imagination can conjure up hypothetical

cases" to test the meaning of emergency, these speculative musings

do not render this term unconstitutionally vague. American Communications Ass'n v. Douds, 339 U.S. 382, 412 (1950).

Plaintiffs' vagueness claims threaten to make the drafting of a curfew ordinance an impossible task. The practical exceptions to the

City's curfew shall not provide the cause of its demise.

VI.

Our dissenting colleague insists that the Charlottesville ordinance

must satisfy strict scrutiny, that it is not narrowly tailored, and that it

is void for vagueness. Under the dissent's stringent application of

these standards, however, no curfew ever would pass constitutional

muster. In particular, no ordinance would survive the dissent's version of strict scrutiny, which disregards the Supreme Court's recognition that such inquiry should not be "strict in theory, but fatal in fact."

See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995)

(internal quotation marks omitted). Any locality in the nation that

chose to enact a curfew would ultimately see it picked to death in the

courts. A brief look at the dissent's analysis indicates why this is so.

To begin with, the dissent downplays the interests of the community, namely Charlottesville's goals of promoting the well-being of its

youngest citizens and of fostering parental responsibility. The dissent's suggestion that these interests are compelling only when the

state proceeds in a manner "supportive of the parental role," post at

41, is not consistent with the prevalence of legislative measures (such

as age limitations on drinking and on driving) that may, on occasion,

 18
frustrate the desires of individual parents. Moreover, by granting a citizen's veto to every parent in the community, the dissent would convert the compelling interest requirement into a rule of unanimity. This

high a constitutional bar is antithetical to the values of democratic

innovation.

The same disablement of democratic authority is evident in the dissent's strict reading of means. The dissent does agree that Charlottesville's interest in reducing juvenile crime is compelling, but then

subjects the curfew to an impossibly narrow tailoring standard. Tellingly, the dissent fails to point to less restrictive means that the City

might have employed. Forbidding preventive measures such as curfews propels localities to the harshest of alternatives -- waiting for

juveniles actually to commit criminal offenses and then apprehending,

prosecuting, and punishing them. Neither minors nor the City would

gain from this result.

Finally, no ordinance could ever meet the precision envisioned by

the dissent's "strict vagueness standard." Post at 49. The dissent

argues that the labyrinthine nature of First Amendment doctrine

requires a curfew exception drawn in labyrinthine detail. Forcing city

councils to pursue such an elusive goal would prevent them from ever

passing an ordinance. The vagueness doctrine's basic notice principle

does not impose such an impediment.

The Charlottesville curfew serves not only to head off crimes

before they occur, but also to protect a particularly vulnerable population from being lured into participating in such activity. Contrary to

the dissent's protestation, we do not hold that every such curfew ordinance would pass constitutional muster. The means adopted by a

municipality must bear a substantial relationship to significant governmental interests; the restrictiveness of those means remains the

subject of judicial review. As the district court noted, however, the

curfew law in Charlottesville is "among the most modest and lenient

of the myriad curfew laws implemented nationwide." Charlottesville's curfew, compared to those in other cities, is indeed a mild regulation: it covers a limited age group during only a few hours of the

night. Its various exceptions enable minors to participate in necessary

or worthwhile activities during this time. We hold that Charlottes-

 19
ville's juvenile curfew ordinance comfortably satisfies constitutional

standards.

Accordingly, we affirm the judgment of the district court. We do

so in the belief that communities possess constitutional latitude in

devising solutions to the persistent problem of juvenile crime.

AFFIRMED

Appendix

AN ORDINANCE

TO AMEND AND REORDAIN SECTION 17-7 OF CHAPTER 17

OF THE CHARLOTTESVILLE CITY CODE, 1990,

AS AMENDED, RELATING TO A GENERAL CURFEW

FOR MINORS

BE IT ORDAINED by the Council of the City of Charlottesville,

Virginia that:

1. Section 17-7 of the Code of the City of Charlottesville, 1990,

as amended, is hereby amended and reordained, as follows:

Section 17-7 Curfew for Minors.

The purpose of this section is to: (i) promote the general welfare

and protect the general public through the reduction of juvenile violence and crime within the City; (ii) promote the safety and wellbeing of the City's youngest citizens, persons under the age of seventeen (17), whose inexperience renders them particularly vulnerable to

becoming participants in unlawful activities, particularly unlawful

drug activities, and to being victimized by older perpetrators of crime;

and (iii) foster and strengthen parental responsibility for children.

(a) Definitions.

As used within this section 17-7, the following words and phrases

shall have the meanings ascribed to them below:

 20
"Curfew hours" refers to the hours of 12:01 a.m. through 5:00 a.m.

on Monday through Friday, and 1:00 a.m. through 5:00 a.m. on Saturday and Sunday.

"Emergency" refers to unforeseen circumstances, or the status or

condition resulting therefrom, requiring immediate action to safeguard life, limb or property. The term includes, but is not limited to,

fires, natural disasters, automobile accidents, or other similar circumstances.

"Establishment" refers to any privately-owned place of business

within the City operated for a profit, to which the public is invited,

including, but not limited to any place of amusement or entertainment. With respect to such Establishment, the term"Operator" shall

mean any person, and any firm, association, partnership (and the

members or partners thereof) and/or any corporation (and the officers

thereof) conducting or managing that Establishment.

"Minor" refers to any person under seventeen (17) years of age

who has not been emancipated by court order entered pursuant to Section 16.1-333 of the Code of Virginia, 1950, as amended.

"Officer" refers to a police or other law enforcement officer

charged with the duty of enforcing the laws of the Commonwealth of

Virginia and/or the ordinances of the City of Charlottesville.

"Parent" refers to:

(1) a person who is a minor's biological or adoptive parent and who has legal custody of a minor (including either

parent, if custody is shared under a court order or agreement);

(2) a person who is the biological or adoptive parent with

whom a minor regularly resides;

(3) a person judicially appointed as a legal guardian of

the minor; and/or

 21
(4) a person eighteen (18) years of age or older standing

in loco parentis (as indicated by the authorization of an individual listed in part(s) (1), (2) or (3) of this definition,

above, for the person to assume the care or physical custody

of the child, or as indicated by any other circumstances).

"Person" refers to an individual, not to any association, corporation, or any other legal entity.

"Public Place" refers to any place to which the public or a substantial group of the public has access, including, but not limited to:

streets, highways, roads, sidewalks, alleys, avenues, parks, and/or the

common areas of schools, hospitals, apartment houses, office buildings, transportation facilities and shops.

"Remain" refers to the following actions:

(1) to linger or stay at or upon a place; and/or

(2) to fail to leave a place when requested to do so by an

officer or by the owner, operator or other person in control

of that place.

"Temporary care facility" refers to a non-locked, non-restrictive

shelter at which minors may wait, under visual supervision, to be

retrieved by a parent. No minors waiting in such facility shall be

handcuffed and/or secured (by handcuffs or otherwise) to any stationary object.

(b) It shall be unlawful for a minor, during curfew hours, to remain

in or upon any Public Place within the City, to remain in any motor

vehicle operating or parked therein or thereon, or to remain in or upon

the premises of any Establishment within the City, unless:

(1) the minor is accompanied by a parent; or

(2) the minor is involved in an emergency; or

(3) the minor is engaged in an employment activity, or is

going to or returning home from such activity, without

detour or stop; or

 22
(4) the minor is on the sidewalk directly abutting a place

where he or she resides with a parent; or

(5) the minor is attending an activity sponsored by a

school, religious, or civic organization, by a public organization or agency, or by another similar organization or

entity, which activity is supervised by adults, and/or the

minor is going to or returning from such an activity without

detour or stop; or

(6) the minor is on an errand at the direction of a parent,

and the minor has in his or her possession a writing signed

by the parent containing the following information: the

name, signature, address and telephone number of the parent

authorizing the errand, the telephone number where the parent may be reached during the errand, the name of the

minor, and a brief description of the errand, the minor's destination(s) and the hours the minor is authorized to be

engaged in the errand; or

(7) the minor is involved in interstate travel through, or

beginning or terminating in, the City of Charlottesville; or

(8) the minor is exercising First Amendment rights protected by the United States Constitution, such as the free

exercise of religion, freedom of speech and the right of

assembly.

(c) It shall be unlawful for a minor's parent to knowingly permit,

allow or encourage such minor to violate 17-7(b).

(d) It shall be unlawful for a person who is the owner or operator

of any motor vehicle to knowingly permit, allow or encourage a violation of 17-7(b).

(e) It shall be unlawful for the Operator of any Establishment, or

for any person who is an employee thereof, to knowingly permit,

allow or encourage a minor to remain upon the premises of the Establishment during curfew hours. It shall be a defense to prosecution

 23
under this subsection that the Operator or employee of an Establishment promptly notified the police department that a minor was present at the Establishment after curfew hours and refused to leave.

(f) It shall be unlawful for any person (including any minor) to give

a false name, address, or telephone number to any officer investigating a possible violation of this section 17-7.

(g) Enforcement.

(1) Minors. Before taking any enforcement action hereunder, an officer shall make an immediate investigation for the

purpose of ascertaining whether or not the presence of a

minor in a public place, motor vehicle and/or Establishment

within the City during Curfew hours is in violation of 17-

7(b).

(A) If such investigation reveals that the presence of such minor is in violation of 17-7(b), then:

 (1) if the minor has not previously been

issued a warning for any such violation, then the

officer shall issue a verbal warning to the minor,

which shall be followed by a written warning

mailed by the police department to the minor

and his or her parent(s), or

 (2) if the minor has previously been issued a

warning for any such violation, then the officer

shall charge the minor with a violation of this

ordinance and shall issue a summons requiring

the minor to appear in court (Ref. Va. Code

§ 16.1-260(H)(1)). And

(B) As soon as practicable, the officer shall:

 (1) release the minor to his or her parent(s);

or

 24
 (2) place the minor in a temporary care facility for a period not to exceed the remainder of

the curfew hours, so that his or her parent(s)

may retrieve the minor; or

 (3) if a minor refuses to give an officer his or

her name and address, refuses to give the name

and address of his or her parent(s), or if no parent can be located prior to the end of the applicable curfew hours, or if located, no parent

appears to accept custody of the minor, the

minor may be taken to a nonsecure crisis center

or juvenile shelter and/or may be taken to a

judge or intake officer of the juvenile court to be

dealt with in the manner and pursuant to such

procedures as required by law. (Ref. Va. Code

§ 16.1-260(H)(1); § 16.1-278.6; #8E8E # 16.1-

241(A)(1)).

(2) Others. If an investigation by an officer reveals that

a person has violated 17-7(c), (d) and/or (e), and if the person has not previously been issued a warning with respect

to any such violation, an officer shall issue a verbal warning

to the person, which shall be followed by a written warning

mailed by the police department to the person; however, if

any such warning has previously been issued to that person

then the officer shall charge the person with a violation and

shall issue a summons directing the person to appear in

court.

(h) Each violation of this section 17-7 shall constitute a Class 4

Misdemeanor.

2. Within one year after the effective date of March 1, 1997 of

this ordinance, the City Manager shall review this ordinance and

report and make recommendations to the City Council concerning the

effectiveness of and the continuing need for the ordinance. The City

Manager's report shall specifically include the following information:

(a) the practicality of enforcing the ordinance and any problems with

enforcement identified by the Police Department; (b) the impact and

 25
cost of the ordinance; (c) other data and information which the Police

Department believes to be relevant in assessing the effectiveness of

the curfew ordinance; and (d) information from citizens regarding

whether the ordinance has been administered and enforced fairly,

including information regarding the age, gender and race of those

charged or detained under the ordinance.

3. This ordinance shall be effective on March 1, 1997, at 12:01

a.m.

Approved by Council /s/ Jeanne Cox

December 16, 1996 Clerk of City Council

MICHAEL, Circuit Judge, dissenting:

Today, the majority relegates kids to second-class citizenship by

upholding Charlottesville's nighttime curfew for minors. Forbidding

children to go out at night affects their fundamental rights, and such

a restriction can be valid only if it withstands strict scrutiny. The

Charlottesville curfew ordinance fails the test because it sweeps too

broadly and usurps rather than supports parental authority over child

rearing. The ordinance has another constitutional defect as well.

Although it is a crime to violate the ordinance, the crime is only

vaguely defined. The curfew does not apply when minors are "exercising First Amendment rights." This exception is unconstitutionally

vague, leaving children, their parents, and the police to guess whether

particular conduct is punishable as a crime. I respectfully dissent.

The majority attempts to brush this dissent aside by claiming that

under my approach "no curfew ever would pass constitutional muster," ante at 18. I can as easily say that under the majority's approach

no curfew would ever fail constitutional muster. I'm afraid that my

claim will be proven true. As long as the majority's standard is the

law, a city council can pass a juvenile curfew as a routine measure

because the justification is so easy to articulate. This should not stand

under the Constitution. Children make up a quarter of our population,

and their rights must not be ignored. A city council cannot order such

a large segment of the community to stay at home for thirty-three

hours of every week unless its curfew satisfies strict scrutiny. Subject-

 26
ing Charlottesville's ordinance to this test does not subvert the "democratic authority" of the City Council, see ante at 18-19. On the

contrary, the Council's authority must be exercised within constitutional bounds. The Council cannot, in the name of majority rule, take

away constitutional rights of a minority, in this case all children under

seventeen.

I.

Charlottesville's curfew targets all unemancipated persons under

seventeen and applies between the hours of 12:01 a.m. and 5:00 a.m.

on week nights and 1:00 a.m. and 5:00 a.m. on Friday and Saturday

nights (Saturday and Sunday mornings). See Charlottesville, Va.,

Code § 17-7(a), (b) (hereinafter City Code). The ordinance makes it

unlawful for these minors to "remain" in public (including private

property open to the public) during curfew hours unless one of the

curfew's eight exceptions are met. See id. One of these exceptions

allows a minor to remain in public when "the minor is exercising First

Amendment rights protected by the United States Constitution, such

as the free exercise of religion, freedom of speech and the right of

assembly." Id. § 17-7(b)(8). A minor is also exempted from the curfew if he has written documentation that he is running an "errand" as

directed by his parent and this document meets nine statutory criteria.

See id. § 17-7(b)(6).1 Minors who violate the curfew are subject to

criminal punishment, and so are parents who "knowingly permit,

allow or encourage" their children to defy the curfew. See id. § 17-

7(c).

On March 10, 1997, Daniel Schleifer and four other minors, two

adult parents of these minors, and an eighteen-year-old adult brought

suit against the City of Charlottesville seeking a declaratory judgment

that the curfew ordinance is unconstitutional. In district court the

_________________________________________________________________

1 The written document must contain the following information: (1) the

minor's name; (2) the authorizing parent's name, (3) signature, (4)

address, and (5) telephone number; (6) the telephone number where this

parent may be reached during the pendency of the errand; (7) a "brief"

description of the errand; (8) the minor's destination or destinations; and

(9) "the hours the minor is authorized to be engaged in the errand." See

City Code § 17-7(b)(6).

 27
minor plaintiffs argued their case as a Fourteenth Amendment equal

protection violation that implicates their fundamental rights, including

First Amendment and due process rights and the right to intrastate

movement. The parent plaintiffs argued that the curfew's restrictions

impermissibly burdened their due process right to exercise parental

discretion and control over the rearing of their children by making the

exercise of this discretion and control illegal. Finally, all plaintiffs

challenged the statute as being void for vagueness under the Due Process Clause.2 The district court ruled for the City on these claims after

a trial on the merits. I would reverse on the grounds that the curfew

violates the Equal Protection Clause and is void for vagueness.

II.

Because the curfew criminalizes conduct of persons under the age

of seventeen, the City's use of this age-based classification is subject

to the limitations of the Fourteenth Amendment's Equal Protection

Clause. Generally, laws making age-based classifications are subject

to rational basis review, see Gregory v. Ashcroft, 501 U.S. 452, 470

(1991); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,

313-14 (1976), and thus are upheld if there is a rational relationship

that ties the use of the classification to a legitimate governmental purpose, see Heller v. Doe, 509 U.S. 312, 319-21 (1993). However, when

an age-based classification affects fundamental rights, a court must

review the classification with "the most exacting scrutiny." See Clark

v. Jeter, 486 U.S. 456, 461 (1988) (unanimous decision); see also

Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666 (1990).

The Charlottesville curfew ordinance does implicate fundamental

rights. Cf. Kolender v. Lawson, 461 U.S. 352, 358 (1983) (loitering

statute implicates First Amendment liberties and"constitutional right

to freedom of movement"); Nunez v. City of San Diego, 114 F.3d 935,

944-45 (9th Cir. 1997) (holding that curfew infringed minors' fundamental rights). Normally, this would require the City to demonstrate

that the ordinance satisfies strict scrutiny. However, because this case

involves the fundamental rights of minors, and not those of adults, the

_________________________________________________________________

2 Like the majority, I read the plaintiffs' equal protection and due process claims as arising under the Fourteenth Amendment, rather than the

Fifth Amendment as alleged in their complaint.

 28
majority concludes that equal protection requires only intermediate

scrutiny. See ante at 4-5. I disagree. Like the Fifth and Ninth Circuits,

I would hold that the Equal Protection Clause subjects to strict scrutiny all governmental classifications that impact fundamental constitutional rights. See Nunez, 114 F.3d at 945-46; Qutb v. Strauss, 11

F.3d 488, 492 & n.6 (5th Cir. 1993). Under this standard the Charlottesville curfew is unconstitutional.

A.

Some mention of the unique status of children in our society is necessary to set the stage for the explanation of why strict scrutiny is necessary. The Supreme Court has long recognized that "`[c]hildren have

a very special place in life which the law should reflect.'" Bellotti v.

Baird, 443 U.S. 622, 633 (1979) (Bellotti II ) (plurality opinion).

Accordingly, the Bellotti II plurality identified certain factors that the

Court has used to justify situations where "the constitutional rights of

children cannot be equated with those of adults." Id. at 634 (identifying the factors as "the peculiar vulnerability of children; their inability

to make critical decisions in an informed, mature manner; and the

importance of the parental role in child rearing."). These factors

reflect the view that "[t]he unique role in our society of the family . . .

requires that constitutional principles be applied with sensitivity and

flexibility to the special needs of parents and children." See id. at 633-

34. This focus on the family and the parent-child relationship is central in the Court's decisions and must be examined to understand

when there is justification for concluding that a minor's constitutional

rights are not coextensive with those of an adult.

The Supreme Court has consistently reflected the traditional Western concept of the family as a "unit with broad parental authority over

minor children." See Parham v. J.R., 442 U.S. 584, 602 (1979).

Indeed, the Court's "`constitutional interpretation has consistently

recognized [that] parents' claim to authority in their own household

to direct the rearing of their children is basic in the structure of our

society.'" Bellotti II, 443 U.S. at 638 (quoting Ginsberg v. New York,

390 U.S. 629, 639 (1968)). This authority is undoubtedly broad.

When parental control comes into play, "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

 29
and go at will." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654

(1995).

However, a parent's broad authority does not generally carry over

to the state. "[O]ur constitutional system long ago rejected any notion

that a child is `the mere creature of the State' and, on the contrary,

asserted that parents generally `have the right, coupled with the high

duty, to recognize and prepare [their children] for additional obligations.'" Parham, 442 U.S. at 602 (quoting Pierce v. Society of Sisters,

268 U.S. 510, 535 (1925)); see also Bellotti II , 443 U.S. at 637;

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ("This primary role of

the parents in the upbringing of their children is now established

beyond debate as an enduring American tradition."). The Court has

repeatedly said that it is "`cardinal with us that the custody, care and

nurture of the child reside first in the parents, whose primary function

and freedom include preparation for obligations the state can neither

supply nor hinder.'" See Bellotti II, 443 U.S. at 638 (alteration in

original) (quoting Prince v. Massachusetts, 321 U.S. 158, 166

(1944)). This broad recognition of the parents' right to control the

upbringing of their children and of constitutional deference to parental authority is linked to the parents' duty to raise and protect their

children. See Lehr v. Robertson, 463 U.S. 248, 257-58 (1983); Meyer

v. Nebraska, 262 U.S. 390, 400 (1923). This deference to parents rests

on the strong presumptions that "natural bonds of affection lead parents to act in the best interests of their children" and that "parents possess what a child lacks in maturity, experience, and capacity for

judgment required for making life's difficult decisions." See Parham,

442 U.S. at 602, 603; see also Bellotti II, 443 U.S. at 637; Yoder, 406

U.S. at 232.

Only in limited instances is the state able to assert a parent's broad

power to control the activities of minors. For example, when the state

acts as the legal guardian for a child, it will assume much, if not all,

of a parent's traditional prerogatives. Similarly, the teachers and

administrators of a public school will act "in loco parentis" while children are in their physical custody because parents"`delegate part of

[their] authority'" to the school by placing their children under its

instruction. See Vernonia, 515 U.S. at 655 (quoting 1 W. Blackstone,

Commentaries on the Laws of England 441 (1769)); Bethel Sch. Dist.

 30
No. 403 v. Fraser, 478 U.S. 675, 682 (1986); id. at 688 (Brennan, J.,

concurring in the judgment).3

In a similar way, the state (as parens patriae) may occasionally displace the parents' primary role in child rearing in order to protect a

child's welfare. Thus, the state may trump parental discretion in delinquency proceedings (because parental control has already faltered),

see Schall v. Martin, 467 U.S. 253, 265 (1984); In re Gault, 387 U.S.

1, 17 (1967), or in situations where a child's "physical or mental

health is jeopardized," see Parham, 442 U.S. at 603; Yoder, 406 U.S.

at 233-34. In these circumstances, the strong presumption that parents

are able and willing to act in the best interests of their children may

be rebutted. See Parham, 442 U.S. at 602. The state's power to displace parental discretion is limited, however, and must be justified on

a case-by-case basis.

That some parents "may at times be acting against the interests of their children" . . . creates a basis for caution, but is

hardly a reason to discard wholesale those pages of human

experience that teach that parents generally do act in the

child's best interests. The statist notion that governmental

power should supersede parental authority in all cases

_________________________________________________________________

3 The majority overlooks Vernonia's real thrust by quoting it to suggest

that a minor's constitutional rights with respect to the state are subject

to "customary limitations," ante at 5, that"includ[e] even the right of liberty in its narrow sense, i.e., the right to come and go at will," id. (quoting Vernonia, 515 U.S. at 654). Had the majority quoted the very next

line in Vernonia, it would be obvious that the case makes clear that

minors lack some of the most fundamental rights of self-determination

with respect to their parents, not the state. See 515 U.S. at 654 ("They

are subject, even as to their physical freedom, to the control of their parents or guardians."). Vernonia repeatedly emphasized that a minor's

rights "vis-a-vis the State may depend on the individual's legal relationship with the State" and that "central" to the Court's decision was the fact

that the children claiming a constitutional privacy right had "been committed to the temporary custody of the State as schoolmaster." See id. at

654; see also id. at 655, 656, 662, 665; cf. Nunez, 114 F.3d at 944-45

(rejecting as "out of context" the same quotation the majority uses from

Vernonia).

 31
because some parents abuse and neglect children is repugnant to American tradition.

Id. at 602-03 (citations omitted). Indeed,"[s]imply because the decision of a parent is not agreeable to a child or because it involves risks

does not automatically transfer the power to make that decision from

the parents to some agency or officer of the state." Id. at 603 (emphasis added). Thus, except in special circumstances, the state normally

must defer to the exercise of a broad degree of parental discretion.

It is also clear that while the state does have an independent interest

in the welfare of children, this interest may be superseded by the parents' right to exercise broad discretion in raising their children. See,

e.g., Yoder, 406 U.S. at 229-30; Pierce, 268 U.S. at 534-35; Meyer,

262 U.S. at 400. Consequently, the rights of minors in relation to the

state must be analyzed to consider not only the interests of the minor

and the state but also the interests of parents. Cf. Parham, 442 U.S.

at 600 (minor's "interest is inextricably linked with the parents' interest in and obligation for the welfare and health of the child"). Thus,

the analysis of a minor's rights is complicated by the addition of this

third party (a parent) who can bolster either the state's claim of

authority or the minor's assertion of rights. Cf. Yoder, 406 U.S. at 231

(recognizing that "competing interests of parents, children, and the

State" requires additional analysis).4 

Although the Court's language in Prince v. Massachusetts, 321

U.S. 158 (1944), "taken at its broadest sweep" would lend support to

the majority's expansive view of state power, Prince has limited

application beyond its facts. See Yoder, 406 U.S. at 229. Prince

involved a challenge to a conviction under a child labor law that made

it criminal for parents to allow boys under the age of twelve and girls

_________________________________________________________________

4 Recently, in Reno v. ACLU , 117 S. Ct. 2329, 2348 (1997), the Court

recognized that it is "clear that the strength of the government's interest

in protecting minors is not equally strong" in all applications of the Communications Decency Act. Specifically, the Court indicated that the government's interest in protecting minors from indecent material would be

greatly diminished where "a parent allow[s] her 17-year-old to use the

family computer to obtain information on the Internet that she, in her

parental judgment, deems appropriate." See id. (emphasis added).

 32
younger than eighteen to sell newspapers and similar items. See

Prince, 321 U.S. at 160-61. The Court sustained the conviction of

Mrs. Prince for taking her ward (and niece), a nine-year-old girl, with

her to assist in selling religious literature during the evening hours.

See id. at 161-62; id. at 171 (Murphy, J., dissenting); see also

Ginsberg, 390 U.S. at 638-39. The Court ruled that the state's interests in protecting the nine-year-old from psychological and physical

harms that might result from Prince's activities were sufficient to justify the conviction. See 321 U.S. at 169-70. The Court was careful to

state, however, that its decision did "not extend beyond the facts the

case presents." See id. at 171. Accordingly, the Court has since limited Prince's application to situations where there is a "`substantial

threat'" of harm to the "physical or mental health of the child or to

the public safety, peace, order, or welfare." See Yoder, 406 U.S. at

230. In light of Yoder and the facts of Prince, I read Prince to allow

a state to override parental discretion when the exercise of this discretion creates a substantial threat to the health and safety of children.

In assessing this threat, Prince suggests that very young children are

particularly vulnerable to harm.

This discussion underscores the Supreme Court's recognition of the

special status of children and the predominance of the family unit. In

particular, it underscores the Court's deference to the traditional

authority of parents over the activities of their children. With this

background, I now turn to the proper standard of scrutiny that must

be applied in this case.

B.

The minors' equal protection challenge in this case must be analyzed under strict scrutiny. This conclusion flows from the basic question the majority ignores. Why are the federal constitutional rights of

persons who are defined as minors under state law different from

those of adults? The answer is that a minor's constitutional rights are

basically the same as those of adults, but in certain situations there

may be "significant state interest[s] . . . that [are] not present in the

case of an adult" that will support a broader authority to regulate

minors. See Planned Parenthood v. Danforth, 428 U.S. 52, 75 (1976).5

_________________________________________________________________

5 There are limited differences imbedded in our Constitution. For

instance, the Twenty-Sixth Amendment guarantees the right to vote only

to those eighteen and older. See U.S. Const. amend. XXVI.

 33
When these interests justify regulation, they do so not because a

minor's constitutional rights are always inferior to those of an adult

but rather because the government's specific interests as regards

minors are sometimes sufficient to allow a regulation to survive strict

scrutiny. Accordingly, I would hold that the "fundamental rights" of

minors are no less fundamental than those of adults and, thus, must

be protected with the same vigor under a strict scrutiny analysis. See

Nunez, 114 F.3d at 945.

1.

This conclusion is drawn from the Supreme Court's general

approach to analyzing the rights of minors. The Court makes it clear

that "[m]inors, as well as adults, are protected by the Constitution and

possess constitutional rights." See Danforth , 428 U.S. at 74; see also

Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511

(1969) ("[s]tudents . . . are `persons' under our Constitution [who] are

possessed of fundamental rights which the State must respect"); In re

Gault, 387 U.S. 1, 13 (1967) ("whatever may be their precise impact,

neither the Fourteenth Amendment nor the Bill of Rights is for adults

alone"). Indeed, the simple fact of age minority cannot by itself justify

a dilution of constitutional protection. See Bellotti v. Baird, 443 U.S.

622, 633 (1979) (Bellotti II) (four-vote plurality opinion) ("A child,

merely on account of his minority, is not beyond the protection of the

Constitution."). Because "[c]onstitutional rights do not mature and

come into being magically only when one attains the state-defined age

of majority," Danforth, 428 U.S. at 74 (emphasis added), all persons,

regardless of age, possess these rights under our system. Cf. Bellotti

II, 443 U.S. at 635 ("children generally are protected by the same constitutional guarantees against governmental deprivations as are adults"

(emphasis added)).

While minors generally possess the same rights against governmental deprivations as adults, considerations unique to minors can

lend more weight to the government's interest in regulating this class.

See Nunez, 114 F.3d at 945; Qutb, 11 F.3d 492 n.6. In Bellotti II a

four-justice plurality noted that the Supreme Court has used three reasons to "justify[ ]" treating minors differently from adults under the

Constitution: "the peculiar vulnerability of children; their inability to

make critical decisions in an informed, mature manner; and the

 34
importance of the parental role in child rearing." 443 U.S. at 634. If

minors are to be accorded constitutional rights unequal to adults by

reason of a particular regulation, these factors must support the government's assertion of greater authority. "`It is only upon such a

premise . . . that a State may deprive children of .. . rights [when a

similar deprivation] would be constitutionally intolerable for adults.'"

Bellotti II, 443 U.S. at 635 n.13 (quoting Ginsberg, 390 U.S. at 650

(Stewart, J., concurring in the result)) (emphasis added).

The principle is illustrated by the Supreme Court's treatment of

statutes forbidding a minor to obtain an abortion without parental consent. The Court has steadfastly insisted that such statutes must have

a judicial bypass procedure. See, e.g., Bellotti II, 443 U.S. at 647-48

(consent statute); Danforth, 428 U.S. at 72-75 (same). The analysis

used by the Court in Danforth is particularly instructive. After ruling

that a spousal consent provision was unconstitutional, the Court

addressed the statute's parental consent provision, saying that "much

of what has been said above, with respect to [spousal consent],

applies with equal force to [parental consent]." 428 U.S. at 74. The

Court explained that "[m]inors, as well as adults, are protected by the

Constitution and possess constitutional rights." Id. However, it

acknowledged that "the State has somewhat broader authority to regulate the activities of children than of adults." See id. Consequently, the

Court explained: "It remains, then, to examine whether there is any

significant state interest in conditioning an abortion on the consent of

a parent . . . that is not present in the case of an adult." See id. at 75

(emphasis added). This analysis demonstrates that the Court did not

assume that the state always possesses broader authority to regulate

children. To the contrary, it looked to whether there were significant

interests specific to minors that justified the law, indicating that the

law would be unconstitutional if these interests did not provide sufficient support for broader authority to regulate minors. After examining the interests advanced by the state, the Court struck down the

parental consent law because it lacked "sufficient justification." See

id. at 75.

The Court applied the same reasoning it used in Danforth to its

subsequent parental consent cases. In Bellotti II the Court constructed

its judicial bypass requirement to permit the consent undertaking to

apply only to those minors who could justifiably be treated differently

 35
from adults. Thus, a bypass procedure must allow a minor to demonstrate that either (1) she is mature and informed enough to make the

abortion decision herself or (2) the abortion is in her best interests.

See Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 511 (1990)

(Akron II); Bellotti II, 443 U.S. 647-48. First, the state's justification

that minors generally are not able "to make critical decisions in an

informed, mature manner," Bellotti II, 443 U.S. at 634, is lost when

a minor is adjudged mature and informed. Without the immaturity

justification, the state has little reason to, and indeed cannot, require

a parent's consent. Cf. Danforth, 428 U.S. at 75 (parent's interest in

abortion decision is outweighed by mature minor's privacy right).

Similarly, Bellotti's final consideration, that greater restrictions may

be imposed on minors to reinforce the "importance of the parental

role in child rearing," Bellotti II, 443 U.S. at 634, is premised on the

presumption that parents will discharge their "responsibility for [their]

children's well-being." See id. at 638-39. When a minor can demonstrate to a court that an abortion is in her best interests, the state's

interest in involving the parents is reduced so much that the state can

no longer require a minor to obtain parental consent. Therefore, when

a minor is mature or an abortion is in her best interests, parental consent requirements are unconstitutional because the state's interests

(specific to minors) do not justify a restriction that could not be

applied to adults.

The parental consent example demonstrates that the government

may sometimes, but not always, have interests in protecting minors

that will allow it to impose special restrictions that narrow a minor's

constitutional rights. It follows that courts must look at the regulation

in question to determine if the state has sufficient justification to

claim that a minor's rights are not the equal of an adult's. Only

through this process can the state-defined age of majority have any

significance insofar as constitutional rights are concerned.

2.

We know that we must evaluate the special interests that may justify a greater degree of governmental authority over minors in the

context of the specific regulation. Still, the question remains as to

which level of scrutiny is appropriate in cases involving constitutional

rights. Logic compels that strict scrutiny apply.

 36
It is clear from the discussion above that the majority's categorical

approach is wrong. The majority would apply intermediate scrutiny

in all cases involving minors, even those in which the government has

no justification specific to minors for infringing upon their fundamental rights. In the latter situation the governmental interest in regulating

minors under the majority's approach is identical to its interest in regulating adults. Yet the rights of minors could still be treated differently because their "fundamental" rights are not protected with strict

scrutiny review. This has far ranging implications. Legislative bodies

can pass many laws regulating conduct that would pass intermediate

scrutiny but fail strict scrutiny. Under the majority's approach, such

laws could be applied to all minors but could not be applied to any

adults (whose fundamental rights are protected by strict scrutiny),

even though the government had no reason to regulate minors any

more than it did adults. The majority's holding, therefore, allows a

minor to be deprived of constitutional rights when a similar deprivation would be constitutionally intolerable for adults, even though the

state lacks any reason for different treatment. This result cannot be

justified and essentially creates a second-class citizenship for all persons under the age of majority. For these persons, federal constitutional rights will "mature and come into being magically only when

[they] attain[ ] the state-defined age of majority," Danforth, 428 U.S.

at 74.6

Moreover, the majority's approach is completely inconsistent with

the Supreme Court's decisions on parental consent in the abortion

context. As discussed above, the state cannot constitutionally regulate

a minor's abortion rights by requiring parental consent unless the regulation provides a judicial bypass. The majority's holding, however,

would allow the state to regulate a minor's abortion rights if the

_________________________________________________________________

6 Although I disagree with the details of the approach taken by the district court, its analysis properly focused on the existence or absence of

interests specific to minors that would justify"accord[ing] the state more

regulatory latitude in governing children in certain circumstances."

Schleifer v. City of Charlottesville, 963 F. Supp. 534, 541 (W.D. Va.

1997) (preliminary injunction analysis that was adopted in final ruling)

(emphasis added). Under its approach, only "[w]hen the Bellotti factors

. . . cut in favor of increased state oversight" will intermediate, rather

than strict, scrutiny apply. See id. at 541-42.

 37
state's regulation "`is substantially related' to `important' governmental interests," ante at 5. Such a result is clearly at odds with the

Supreme Court's approach, as the state always has an important interest in regulating abortions. Beginning with Roe v. Wade, 410 U.S. 113

(1973), the Supreme Court has repeatedly recognized the state's "important and legitimate interest in protecting the potentiality of human

life." Id. at 162. See also Planned Parenthood v. Casey, 505 U.S. 833,

871 (1992); Harris v. McRae, 448 U.S. 297, 324-25 (1980). This

interest by itself would enable state abortion statutes to meet intermediate scrutiny. Therefore, the majority's holding that intermediate

scrutiny should apply to the regulation of minors simply cannot be

squared with the Supreme Court's insistence that a state cannot

require a mature minor to obtain parental consent for an abortion.

Indeed, if the majority was correct, the state could completely ban

abortions for women under the age of eighteen. This confirms the fallacy of applying intermediate scrutiny to cases involving the fundamental rights of minors.

I would avoid these difficulties by applying strict scrutiny to all

equal protection challenges involving fundamental rights, regardless

of whether minors or adults are involved. Under this approach, minors

must be treated the same as adults whenever the government lacks

interests specific to minors to support more restrictive regulatory

authority over them. Cf. Bellotti II, 443 U.S. at 635 n.13; Danforth,

428 U.S. at 74-75. However, when circumstances trigger governmental interests that are particular to minors, these interests, when coupled

with the government's other interests, can make the government's

claim for greater restrictions on minors much stronger. If these interests taken as a whole are compelling, the government's regulation (if

narrowly tailored) will survive strict scrutiny with respect to minors,

even though it would fail the test in the case of adults. See Nunez, 114

F.3d at 945 ("the Bellotti framework enables courts to determine

whether the state has a compelling interest justifying greater restrictions on minors than on adults"); Qutb, 11 F.3d at 492 n.6 (same).

This approach therefore provides a principled approach for deciding

when children may be treated differently from adults for constitutional purposes.7

_________________________________________________________________

7 The majority relies on the plurality opinion in Carey v. Population

Services International, 431 U.S. 678, 691-99 (1977), to support its argu-

 38
The Fifth and Ninth Circuits adopt this approach and analyze

minors' equal protection challenges with strict scrutiny when fundamental rights are implicated. See Nunez, 114 F.3d at 945-46; Qutb, 11

F.3d at 492 & n.6; cf. Hutchins v. District of Columbia, 144 F.3d 798,

805-10 (D.C. Cir. 1998) (opinion of Rogers, J.) (intermediate scrutiny); id. at 825-27 (Tatel, J., concurring in the judgment) (strict scrutiny); id. at 828 (Silberman, J., dissenting) (finding that no

fundamental right was affected by curfew and therefore applying

rational basis review to age-based equal protection challenge).8 I

would join these circuits and hold that the Equal Protection Clause

subjects all governmental classifications impacting on the fundamental constitutional rights of minors to strict scrutiny.

C.

The Charlottesville curfew ordinance cannot withstand strict scrutiny and should be struck down. The Equal Protection Clause protects

our constitutional rights by requiring that the government clear a high

hurdle before regulating in the realm of fundamental rights. Under

strict scrutiny review, "statutory classifications impinging on [a fun-

_________________________________________________________________

ment that the Charlottesville curfew should be subjected to less than

strict scrutiny. See ante at 5. Carey is a slender reed for this proposition.

First, Carey's plurality opinion was decided before Bellotti II, and later

cases have followed the reasoning of Bellotti II . Second, Carey itself is

best read as a recognition that the state's unique and significant interests

in regulating children will make it easier to justify greater restrictions on

minors than on adults. See Carey, 431 U.S. at 693 (plurality opinion).

8 Reno v. Flores, 507 U.S. 292, 301-05 (1993), indicates that strict scrutiny should apply when the fundamental rights of minors are involved.

In Flores a class of minors challenged an INS regulation that requires

juvenile aliens to be placed in institutional group care facilities during

the pendency of deportation proceedings if a guardian or adult relative

is not available to take custody. The Court recognized that strict scrutiny

applies "when fundamental rights are involved," see id. at 302, 305, but

it rejected the minors' due process claim because it found that no fundamental right existed under the circumstances of the case. See id. at 305;

cf. id. at 304 (stating that "the child's fundamental rights must not be

impaired" by INS). The approach adopted by the Fifth and Ninth Circuits

is therefore consistent with Flores' implication that strict scrutiny applies

when a minor's fundamental rights are in the balance.

 39
damental] right must be narrowly tailored to serve a compelling governmental interest." Austin v. Michigan Chamber of Commerce, 494

U.S. 652, 666 (1990); see also Memorial Hosp. v. Maricopa County,

415 U.S. 250, 269 (1974). The Charlottesville ordinance fails the

strict scrutiny test, notwithstanding its stated (and worthy) objectives

of (1) reducing juvenile crime, (2) promoting the safety and wellbeing of juveniles, and (3) fostering and strengthening parental

responsibility.

1.

I quite agree with the majority that protecting the community from

serious crime is a compelling governmental interest. See ante at 6.

The problem is that the Charlottesville curfew is not narrowly tailored

to forward this goal. "Statutes affecting constitutional rights must be

drawn with `precision,' and must be `tailored' to serve their legitimate

objectives. . . . [I]f there are other, reasonable ways to achieve those

goals with a lesser burden on constitutionally protected activity, [the

government] may not choose the way of greater interference. If it acts

at all, it must choose `less drastic means.'" Dunn v. Blumstein, 405

U.S. 330, 343 (1972) (quoting Shelton v. Tucker , 364 U.S. 479, 488

(1960)).

By restricting the freedom of minors during curfew hours, the ordinance treats all minors under the age of seventeen as a threat to society in order to protect the community from juvenile crime. This broad

restriction is not narrowly tailored to meet its objective of crime prevention. The ordinance treats all minors the same even though an

exceedingly small percentage commit crimes. The Equal Protection

Clause forbids such a crude grouping when fundamental rights are at

stake, and limiting the curfew's hours and providing exceptions does

not diminish this shortcoming.

This is not to say that emergency curfews that are broadly applicable and limited in duration are unconstitutional. Our circuit has previously, and properly, ruled that such emergency measures are a proper

exercise of the state's police power. See, e.g. , United States v. Chalk,

441 F.2d 1277, 1280-83 (4th Cir. 1971). Here, however, we have a

curfew with no sunset provision -- a curfew that sweeps in a vast

class, all minors under seventeen, most of whom are law-abiding. The

 40
Equal Protection Clause does not permit such a broad segment of

society to be kept off the streets every night with the simple generalization, "We want to prevent crime." Narrow tailoring requires something less drastic.

2.

The City's second objective of promoting the safety and well-being

of juveniles also falls short under strict scrutiny. This interest is not

compelling in this case because the curfew displaces parental authority. Indeed, the majority says only that the City has a "strong" interest

in protecting the youngest members of society from harm. See ante

at 6-7. "Strong" interests are not sufficient to satisfy strict scrutiny.

Only compelling interests suffice.

The City's stated interest in protecting minors under the age of seventeen is not compelling here because the curfew was not designed

to be supportive of the parental role. Bellotti II recognized that "restrictions on minors, especially those supportive of the parental role,

may be important to the child's chances for . . . full growth and maturity" and therefore can justify an increased governmental authority to

regulate the protected activities of minors. See 443 U.S. at 338-39

(emphasis added). This authority can be present when the governmental interest in regulation complements the traditional authority of the

parent. By supporting the exercise of parental discretion, the state

aligns its regulatory power with the interests of parents who have

broad discretion to control the activities of their children. The combined interests of parents and the state therefore strengthen the justification for governmental regulation. Ginsberg, for example, prohibited

the direct sale of pornographic magazines to minors in order to

strengthen parents' control over their children's access to such material. See 390 U.S. at 631, 639. The Court was careful to note, however, that the government did not displace parental authority: "the

prohibition against sales to minors does not bar parents who so desire

from purchasing the magazines for their children." See id. at 639; see

also Reno v. ACLU, 117 S. Ct. at 2346-48. Laws like the one in

Ginsberg may thus be justified because they defer to parental authority and decisionmaking.

 41
The Charlottesville ordinance, however, paternalistically displaces

the exercise of parental discretion by making it illegal for parents to

allow their children to move about independently at night. Yet parents

are better able to assess their children's maturity and capacity for

judgment than a city council. Parents may legitimately decide that the

best way to raise their children is to permit them to be out on their

own after midnight on occasion. See Nunez, 114 F.3d at 952. In other

words, parents may legitimately conclude that the risk of granting

children some independence is small compared to the benefits resulting from the gradual development of maturity and judgment that is

needed in preparation for a responsible adult life. This exercise of

parental discretion is impossible under the ordinance.9

Indeed, the ordinance was purposefully designed to displace parental discretion with the will of the City Council. On the day the curfew

was enacted, the Council's agenda said the following about the curfew's purpose: "parental responsibility for the whereabouts of their

children is the norm and where that does not exist, then the legal sanction should enforce such responsibility. Further, well communicated

curfew ordinances . . . impose a community-wide standard on parents

who are unable or unwilling to set such limits." (Emphasis added).

Rather than supporting the parental role, this curfew supersedes it. It

reflects the "statist notion that governmental power should supersede

parental authority in all cases because some parents" fail to exercise

control over their children. See Parham, 442 U.S. at 603. This governmental paternalism is "repugnant to American tradition." Id. Consequently, because the curfew attempts to achieve its stated purpose

of promoting the safety and well-being of minors by displacing parental authority over the upbringing of children, the curfew does not

serve a compelling governmental interest.

_________________________________________________________________

9 The curfew's sixth exception allows a minor to run an "errand" for his

parent if he carries a signed document meeting nine statutory criteria. See

City Code § 17-7(b)(6). This rigid exception, with its bureaucratic

demand for detail, does not afford parents the discretion to allow their

children to operate with any degree of independence. See supra note 1

(listing nine requirements).

 42
3.

It follows that the ordinance's third stated purpose of fostering and

strengthening parental responsibility also falls short. Ginsberg and

Bellotti II recognize that laws "supportive of the parental role,"

Bellotti II, 443 U.S. at 638 (emphasis added), may justify some limitation on the constitutional rights of minors. However, when laws displace the primacy of parental discretion by imposing community-wide

norms, the traditional authority of parents over child rearing is no longer available to support any limitation on the rights of minors. The

curfew's attempt to foster and strengthen parental responsibility by

displacing parental authority does not support a compelling state

interest.

For these reasons, I would hold that the Charlottesville curfew fails

to satisfy strict scrutiny and thus violates the Equal Protection Clause.

III.

Even if I could conclude that Charlottesville's curfew passed strict

scrutiny, I would hold that the ordinance as adopted is void for vagueness under the Due Process Clause. More specifically, I would hold

that the ordinance's First Amendment "exception" is impermissibly

vague.

A.

The vagueness doctrine of the Due Process Clause"requires that a

penal statute define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is prohibited and

in a manner that does not encourage arbitrary and discriminatory

enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983).

Although due process requires that a statute satisfy both requirements,

the second is of special importance: "`a legislature [must] establish

minimal guidelines to govern law enforcement'" and prevent arbitrary

enforcement. See id. at 357-58 (citation omitted). When statutory language lacks sufficient "definiteness or certainty of expression," id. at

357, enforcement of the law is left to the purely subjective decisions

of the police, prosecutors, and juries. See id. at 358; Village of Hoff-

 43
man Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498

(1982) (citing Grayned v. City of Rockford, 408 U.S. 104 (1972)). Our

Constitution's guarantee of due process of law makes this unacceptable. As the Supreme Court recognized a long time ago,

"It would certainly be dangerous if the legislature could set

a net large enough to catch all possible offenders, and leave

it to the courts to step inside and say who could be rightfully

detained, and who should be set at large. This would, to

some extent, substitute the judicial for the legislative department of government."

Kolender, 461 U.S. at 358 n.7 (quoting United States v. Reese, 92

U.S. 214, 221 (1875)). In other words, "[w]ell-intentioned prosecutors

and judicial safeguards do not neutralize the vice of a vague law."

Baggett v. Bullitt, 377 U.S. 360, 373 (1964). The law itself must draw

a sufficiently clear line between the legal and the illegal for both our

police and our citizens.

B.

Vagueness challenges may be brought against a statute "on its

face" without regard to specific conduct, "as applied" to the plaintiff's

conduct, or on both grounds. Facial challenges strike at the heart of

the statute, and, if successful, invalidate any and all application of the

challenged provision until it is given a construction that sufficiently

clarifies it. See Steffel v. Thompson, 415 U.S. 452, 474 (1974); cf.

Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (as applied). I therefore agree with the majority that facial invalidity on vagueness

grounds is strong medicine that is to be administered infrequently. See

ante at 15. I disagree, however, with the majority's apparent belief

that courts have discretion to avoid invalidating a facially unconstitutional statute. Cf. id. ("It is preferable for courts to demonstrate

restraint by entertaining challenges to applications of a law as those

challenges arise"). Courts rarely invalidate a law for facial vagueness.

This is not because courts exercise discretionary restraint but because

few facial challenges satisfy the high burden normally imposed. As

a general rule, a law is vague on its face "only if [it] is impermissibly

vague in all of its applications." See Hoffman Estates, 455 U.S. at 495

& n.7.

 44
What the majority ignores is the exception to this general rule:

when "a law reaches `a substantial amount of constitutionally protected conduct,'" facial vagueness challenges are"permit[ted]" and a

plaintiff may attack the law "`as being vague as applied to conduct

other than his own.'" See Kolender, 461 U.S. at 358 & n.8 (citations

omitted) (First Amendment rights and freedom of movement affected

by regulation of loitering and wandering); see also Hoffman Estates,

455 U.S. at 494-95 (recognizing that general rule applies only to statutes that "implicate[ ] no constitutionally protected conduct" (emphasis added)); Gooding v. Wilson, 405 U.S. 518, 521 (1972); Aptheker

v. Secretary of State, 378 U.S. 500, 517 (1964) (facial challenge to

law restricting international travel). This exception is "logically

related and similar" to the doctrine of substantial overbreadth, see

Kolender, 461 U.S. at 358 n.8, in that it is necessitated by the chilling

effect that vague laws can have on the exercise of protected freedoms.

As the Supreme Court has explained,

The objectionable quality of vagueness and overbreadth

does not depend upon absence of fair notice to a criminally

accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First

Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. These freedoms are delicate and vulnerable, as well as supremely

precious in our society. The threat of sanctions may deter

their exercise almost as potently as the actual application of

sanctions. Because First Amendment freedoms need breathing space to survive, government may regulate in the area

only with narrow specificity.

NAACP v. Button, 371 U.S. 415, 432-33 (1963) (citations and footnote omitted); see also Keyishian v. Board of Regents, 385 U.S. 589,

604, 609 (1967) ("The danger of [a] chilling effect upon the exercise

of vital First Amendment rights must be guarded against by sensitive

tools which clearly inform [individuals] what is being proscribed.");

Kolender, 461 U.S. at 358 n.8 (citing Button and Keyishian to support

exception to general rule). Especially, then, when chilling effects are

a danger and a "substantial amount" of protected activity is implicated, facial challenges must be permitted. In other words, we do not

 45
have to wait for case-by-case judicial review of particular applications

of the law.

Because the City's curfew regulates a substantial amount of protected activity, I would hold that it is subject to a facial challenge. The

Supreme Court's decision in Kolender all but mandates this conclusion. In Kolender the Court held that a California loitering statute was

unconstitutionally vague on its face. The law made it a crime for persons who "loiter or wander on the streets" to fail to provide "credible

and reliable" identification when a peace officer requests it under circumstances that would justify a Terry stop. See 461 U.S. at 353, 357.

See generally Terry v. Ohio, 392 U.S. 1 (1968), and later cases. The

Court permitted a facial challenge because it found that the "law

reache[d] a substantial amount of constitutionally protected conduct,"

see Kolender, 461 U.S. at 358 n.8 (internal quotation marks omitted),

notwithstanding the dissenting argument that the law was not "impermissibly vague in all of its applications" and could not be facially

attacked because it had an "unmistakable core that a reasonable person would know is forbidden," id. at 370, 371-72 (emphasis added).

The concern that led the Court to allow the facial challenge was the

law's "`potential for arbitrarily suppressing First Amendment liberties'" and the "constitutional right to freedom of movement." See id.

at 358 (quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 90

(1965)). The same concerns underlie the curfew in this case. The

main difference is Charlottesville's First Amendment"exception,"

but, as I explain below, this exception is itself impermissibly vague

and therefore cannot save the statute from a facial challenge. Indeed,

the need in this case for facial review is even stronger than that in

Kolender because the curfew ordinance applies to all law-abiding

minors under the age of seventeen. The law in Kolender, by contrast,

required credible and reliable identification only when peace officers

had already made a justifiable Terry stop, that is, after they had temporarily detained a suspect because of "a reasonable and articulable

suspicion that the person seized [wa]s engaged in criminal activity,"

Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam) (following

Terry). Accordingly, Kolender makes clear that a facial challenge is

appropriate in this case.

The majority errs in asserting that because "core First Amendment

activities" are protected by the ordinance, "marginal cases" may be

 46
challenged as the statute is applied, see ante at 17. Even assuming that

"core" activities are protected, this argument appears to parallel the

dissenting view rejected by Kolender. The proper inquiry is not

whether some core values are protected but whether the curfew

"reaches `a substantial amount of constitutionally protected conduct,'"

Kolender, 461 U.S. at 358 n.8 (quoting Hoffman, 455 U.S. at 494).

The First Amendment protects a substantial amount of conduct in

addition to "political protest and religious worship," ante at 17, and

the vagueness doctrine must be applied to protect these rights.10

Deferring review for as-applied challenges impermissibly risks chilling the exercise of a substantial amount of constitutionally protected

activity. Cf. 11126 Baltimore Blvd., Inc. v. Prince George's County,

58 F.3d 988, 993-94 (4th Cir. 1995) (en banc) (ruling that "courts

must permit" facial challenge when there is significant risk of chilling

First Amendment speech because chill "`can be effectively alleviated

only through a facial challenge'" (quoting City of Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750, 757 (1988))). I now turn to why

Charlottesville's curfew is void for vagueness.

C.

"A law is considered [unconstitutionally] vague if `a person of normal intelligence must guess at its meaning and differ as to its application.'" Elliott v. Administrator, Animal & Plant Health Inspection

Serv., 990 F.2d 140, 145 (4th Cir. 1993) (quoting Connally v. General

Constr., 269 U.S. 385, 391 (1926)); see also United States v. Lanier,

117 S. Ct. 1219, 1225 (1997) (unanimous decision); Roberts v. United

States Jaycees, 468 U.S. 609, 629 (1984). Although this standard

applies generally to vagueness challenges, "[t]he degree of vagueness

that the Constitution tolerates . . . depends in part on the nature of the

enactment," Hoffman Estates, 455 U.S. at 498. When a statute

involves the "economic regulation" of business, it is "subject to a less

_________________________________________________________________

10 The majority's citations to Hoffman Estates do not support the conclusion that federal courts may wait for as-applied challenges in "marginal cases," see ante at 17. Hoffman Estates clearly limits its analysis to

those cases in which "no constitutionally protected conduct" is implicated by the challenged law. See 455 U.S. at 494-95, 497; Kolender, 461

U.S. at 458 n.8. A wait-and-see approach is justified only when there is

no risk of chilling a substantial amount of protected activity.

 47
strict vagueness test." Id. at 498. Similarly, if a law includes a scienter

requirement, this too will relax the degree of clarity required because

scienter can "mitigate a law's vagueness." See id. at 499. On the other

hand, "the standard of certainty is higher" for statutes that impose

criminal, as opposed to civil, sanctions. See Kolender, 461 U.S. at 358

n.8; Hoffman Estates, supra at 498-99. The last and "most important

factor affecting the [degree of] clarity that the Constitution demands

of a law is whether it threatens to inhibit the exercise of constitutionally protected rights." Id. at 499. If it does, "a more stringent vagueness test should apply" so that protected activity will not be chilled.

See id.; see also Smith v. Goguen, 415 U.S. 566, 573 (1974) ("Where

a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of

specificity than in other contexts."); Grayned, 408 U.S. at 109

("[W]here a vague statute `abut[s] upon sensitive areas of basic First

Amendment freedoms,' it `operates to inhibit the exercise of [those]

freedoms.'" (second and third alterations in original)); Button, 371

U.S. at 432 (standard is "strict in the area of free expression"). These

factors all point to the conclusion that the Charlottesville curfew must

be evaluated for vagueness under a strict standard. Under that standard, I would hold that the ordinance's First Amendment exception

violates the Due Process Clause.11

_________________________________________________________________

11 Federal courts do not look simply to the statutory language to determine if the law is vague. If a federal statute is involved, a federal court

may construe the disputed provision to remove its vagueness. See United

States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123, 130 n.7

(1973); cf. CISPES v. FBI, 770 F.2d 468, 473-75 (5th Cir. 1985) (construing federal statute to avoid overbreadth). Likewise, when a state provision is challenged as vague on its face, a federal court must "`consider

any limiting construction that a state court or enforcement agency has

proffered.'" See Ward v. Rock Against Racism , 491 U.S. 781, 795-96

(1989) (quoting Hoffman Estates, 455 U.S. at 494 n. 5). If no narrowing

interpretation is provided by the state, however, a federal court is "without power to remedy the [statute's] defects by giving [it] constitutionally

precise content." See Hynes v. Mayor of Oradell, 425 U.S. 610, 622

(1976); see also Smith v. Goguen, 415 U.S. 566, 575 (1974).

 48
D.

The last of the curfew's eight statutory exceptions allows a minor

to remain in public during curfew hours when "the minor is exercising

First Amendment rights protected by the United States Constitution,

such as the free exercise of religion, freedom of speech and the right

of assembly." City Code § 17-7(b)(8). Because this exception operates in an area of protected conduct, it must satisfy a strict vagueness

standard so as not to chill the exercise of constitutional rights. Under

this standard, the curfew's First Amendment "exception" makes the

ordinance impermissibly vague. By defining the exception in vague

and ambiguous terms, the ordinance impermissibly forces persons of

normal intelligence to guess as to what conduct is illegal and fails to

provide minimal guidelines for law enforcement.

The vagueness of the First Amendment exception is intuitively

plain. Indeed, its language is anything but clear. What are "First

Amendment rights"? What is considered to be "speech"? Does it

include written communication? What of expressive conduct that does

not involve oral or written communication? What types of speech are

"protected" by "freedom of speech"? Is commercial speech protected?

If so, to what extent? What is the "free exercise" of religion? And

what of the "right of assembly"? Do two friends have the "right" to

"assemble" or meet at a coffeehouse? This says nothing of the general

First Amendment rights (e.g., association, press, petition) that the

City's exception leaves unmentioned. The questions above are difficult enough for courts, Congress, and constitutional scholars, let alone

for someone with no legal training. And when answers are given, they

are often imprecise and turn on the specifics of a case and a balancing

of many factors. Furthermore, First Amendment jurisprudence is a

vast and complicated body of law that grows with each passing day.

As a result, criminal conduct cannot be defined by simply referring

to the title (First Amendment) or subtitle (speech or assembly) of a

particular right.

Although the Supreme Court has not addressed the First Amendment issue before us, its decisions involving statutes that define criminal conduct by referring to the principles of constitutional "due

process" and "equal protection" are instructive. Like the First Amendment principles of "freedom of speech" and the"free exercise of reli-

 49
gion," due process and equal protection are complicated and nuanced

constitutional concepts that are not susceptible to general definition.

The existence of these rights likewise depends on the specifics of a

case and a balancing of the interests involved. As I will show, the

Supreme Court's opinions in Screws v. United States, 325 U.S. 91

(1945) (plurality opinion), United States v. Guest, 383 U.S. 745, 753-

55 (1966), and later cases demonstrate that constitutional "due process" and "equal protection" are inherently too vague to be used to

define criminal conduct without a carefully defined scienter requirement. This applies with at least as much, if not more, force to Charlottesville's mention of the First Amendment to define criminal

conduct by way of exception.

In Screws the Court upheld a statute under which several law

enforcement officers had been convicted of illegally depriving a prisoner of his life without "due process" of law. See 325 U.S. at 93, 100.

The defendants were prosecuted under 18 U.S.C. § 20,12 which made

it illegal to "`willfully'" deprive another"`of any rights, privileges, or

immunities secured or protected by the Constitution and laws of the

United States'" under the color of state law. See id. They argued to

the Court that this provision was impermissibly vague as applied to

their convictions for depriving the deceased of"due process" because

the law provided "no ascertainable standard of guilt." See id. at 94-95.

Justice Douglas, writing for a four-justice plurality, said that

the decisions of the courts are, to be sure, a source of reference for ascertaining the specific content of the concept of

due process. But even so the Act would incorporate by reference a large body of changing and uncertain law. That law

is not always reducible to specific rules, is expressible only

in general terms, and turns many times on the facts of a particular case. Accordingly, it is argued that such a body of

legal principles lacks the basic specificity necessary for

criminal statutes under our system of government. Congress

did not define what it desired to punish but referred the citizen to a comprehensive law library in order to ascertain

what acts were prohibited. To enforce such a statute would

_________________________________________________________________

12 18 U.S.C. § 20 was the predecessor to 18 U.S.C. § 242, discussed

infra.

 50
be like sanctioning the practice of Caligula who"published

the law, but it was written in a very small hand, and posted

up in a corner, so that no one could make a copy of it."

Id. at 96 (quoting Suetonius, Lives of the Twelve Caesars 278).

Indeed, seven justices indicated that § 20's use of "due process" to

define criminal conduct would have been unconstitutionally vague

without something else to mitigate its ambiguous incorporation of

constitutional principles. See id. at 105 (§ 20 must be construed with

narrow scienter requirement to "avoid grave constitutional questions"); id. at 149-50 (Roberts, J., dissenting) ("[a]ll but two" justices

agreed on this issue). However, the plurality concluded that the statute

could be saved by construing "willfully" to require a specific intent

to purposefully deprive another of a specific federal right made definite by the express terms of the Constitution and laws of the United

States or by the decisions interpreting them. See id. at 100-05. Thus,

Screws "recognized that the expansive language of due process that

provides a basis for judicial review is, when incorporated by reference

into § 242, generally ill-suited to the far different task of giving fair

warning about the scope of criminal liability," Lanier, 117 S. Ct. at

1225 (unanimous decision), but that the use of a strict scienter

requirement could sufficiently mitigate this ambiguity.

The Court in Guest relied on Screws to reject a similar vagueness

challenge to a prosecution for conspiracy to deprive black citizens of

rights protected by the Equal Protection Clause. The Court again

emphasized that the specific intent requirement of 18 U.S.C. § 241,

like that of § 242, removed the problem of the statute's vagueness.

See Guest, 383 U.S. at 753-54; id. at 785 (Brennan, J., concurring in

part) (incorporation of constitutional provisions"brings § 241 close to

the danger line of being void for vagueness" but"stringent scienter

requirement saves [it] from condemnation"); see also United States v.

Kozminski, 487 U.S. 931, 941 (1988) (tension between requirement

of "definite standard of guilt" and "incorporat[ion] by reference a

large body of potentially evolving federal law" is resolved with strict

scienter requirement).

Recently, a unanimous Supreme Court in Lanier reiterated the principles established in Screws and Guest . The Court again recognized

that "in lieu of describing the specific conduct it forbids, [the] general

 51
terms [of §§ 241 and 242] incorporate constitutional law by reference.

. . . The result is that neither the statutes nor a good many of their constitutional referents delineate the range of forbidden conduct with particularity." Id. at 1224. Consequently, this "affront to the [due

process] requirement" of fair notice is made permissible only when

"willful violators" deprive (or conspire to deprive) others of rights

that "have been `made specific' by the text or settled interpretations."

See id. at 1225 (quoting Screws, 325 U.S. at 105). "[W]illful violators

`certainly are in no position to say that they had no adequate advance

notice'" of the definition of the crime. Id. (quoting Screws, 325 U.S.

at 105).

Like the statutes in Screws, Guest, and Lanier, the Charlottesville

curfew's First Amendment exception incorporates a large and growing body of law that is not reducible to specific rules and that turn on

a balancing of numerous factors. Unlike the federal statutes, however,

the City's curfew ordinance has no scienter requirement that could

mitigate the inherent vagueness of First Amendment jurisprudence.

Most important, though, the curfew regulates in areas involving constitutionally protected activity, while §§ 241 and 242 do not. In fact,

those sections are designed to punish those who willfully deprive and

conspire to deprive others of constitutional rights, as, for example, in

United States v. Lanier, where the defendant, a state judge, sexually

assaulted (in his office) several employees and others who had business before him. Lanier, 117 S. Ct. at 1222-23. Such conduct lies far

outside of the realm of constitutionally protected action, and therefore

§§ 241 and 242 do not have to meet the strict vagueness standard that

applies when protected activity is involved. The curfew, however,

does. Consequently, the ordinance must survive scrutiny under a

vagueness standard much more strict than that applied in Screws and

Guest. Under that standard and in light of the absence of a scienter

element capable of saving the ordinance, I would hold that the First

Amendment exception and the ordinance are void for vagueness.13

_________________________________________________________________

13 The majority misses the mark when it says that a scienter requirement would necessarily expand, and not narrow, the breadth of Charlottesville's curfew because subsection (b)(8) "provides an exception

from liability" and does not affirmatively define criminal conduct. See

ante at 16 n.*. The curfew ordinance uses section (b) and its eight exceptions to define what conduct is illegal. See City Code § 17-7(b). With

 52
The testimony of Charlottesville's Chief of Police proves the statute's ambiguity. When asked whether two fifteen-year-olds violate

the ordinance by discussing politics in a coffee shop during the curfew, the Chief said, "You're indoors, it's a public location, I . . . think

technically under the ordinance it may be a violation. I doubt whether

we would deal with it." Similarly, when asked if a fifteen-year-old

who plays in a band in a local restaurant after curfew hours violates

the curfew when he is not paid for the performance, the Chief

answered, "I think that technically [the minor] is possibl[y] in violation of the ordinance." However, "the officer would obviously have

to make a decision about whether they're in violation or not. And I

believe there's some discretion allowed." It is this discretion combined with the failure to define with specificity what conduct is illegal

that makes the statute unconstitutional. The danger of chilling the

exercise of constitutionally protected activity arises because of the

uncertainty associated with the First Amendment exception.14

The majority errs in supporting its reasoning with the fact that city

councils appear to be placed "between a rock and a hard place," ante

at 16. While it is true that curfews without exceptions will almost

always impermissibly infringe upon substantive constitutional rights

and that curfews with exceptions may be subject to vagueness challenges, invalidation of this ordinance is still mandated by our Constitution. "Our Constitution is designed to maximize individual

_________________________________________________________________

respect to subsection (b)(8) in particular, the ordinance makes it a crime

for minors to remain in public when not exercising First Amendment

rights. See id. § 17-7(b), (b)(8). Subsection (b)(8) thus plainly incorporates the First Amendment to define the scope of criminal conduct. Even

when a law is drafted to include exceptions in defining the crime, a

scienter element that is applied to the criminal provision as a whole (and

not just its exceptions) can reduce the objectionable vagueness of the

law.

14 It is of no constitutional consequence that the Chief testified that "if

there's a question [as to whether the First Amendment exception

applied,] we would go down on the side that it was a valid Constitutional

kind of activity" and "would consult with the Commonwealth Attorney

or the city attorney's office to see whether it was or not." "Wellintentioned prosecutors and judicial safeguards do not neutralize the vice

of a vague law." Baggett, 377 U.S. at 373.

 53
freedoms within a framework of ordered liberty. Statutory limitations

on those freedoms are examined for substantive authority and content

as well as for definiteness or certainty of expression." Kolender, 461

U.S. at 357 (emphasis added); see also Nunez v. City of San Diego,

114 F.3d 935, 943-44 (9th Cir. 1997) (recognizing that interpreting

curfew to avoid vagueness problems under Due Process Clause "may

make it more difficult for the statute to pass constitutional muster on

substantive grounds"). "[L]egislative bodies in draftsmanship obviously have the same difficulty as do the judicial in interpretation.

Nevertheless despite the difficulties, courts must do their best to

determine whether or not the vagueness is of such a character `that

men of common intelligence must necessarily guess at its meaning.'"

Winters v. New York, 333 U.S. 507, 518 (1948); see also Kingsley

Int'l Pictures Corp. v. Regents of the Univ., 360 U.S. 684, 694 (1959)

(Frankfurter, J., concurring). Although we may "appreciate the difficulties of drafting precise laws," we must require that all statutes meet

constitutional standards for clarity. See City of Houston v. Hill, 482

U.S. 451, 465 (1987). If we did otherwise, we would forgo our duty

to enforce the mandates of the Due Process Clause. 15

Taken to its logical conclusion, the majority's reasoning would

immunize all statutes regulating conduct involving the exercise of

First Amendment rights whenever they contain a First Amendment

"exception." Because such provisions would not be impermissibly

_________________________________________________________________

15 I also disagree with the majority's claim that the First Amendment

exception "fortifies, rather than weakens, First Amendment values." See

ante at 16. Because First Amendment rights can never be diminished by

a city ordinance, see U.S. Const. art. VI, cl. 2, the City's exception does

nothing but restate a well-settled constitutional restriction on its substantive regulatory authority. Indeed, the majority's citation to CISPES v.

FBI, 770 F.2d 468 (5th Cir. 1985), contradicts its position. Cf. ante at 16.

CISPES recognized that "such a provision cannot substantively operate

to save an otherwise invalid statute." See 770 F.2d at 474. A statement

similar to the First Amendment exception in this case, however, was

used by the Fifth Circuit to determine Congressional intent and guide its

construction of the provision to avoid substantial overbreadth. See id.

Here, though, we are faced with a local, not a federal, statute, and therefore we are without the authority to provide a limiting construction that

might save the ordinance. See Hynes, 425 U.S. at 622. The First Amendment exception thus does little to advance First Amendment values.

 54
vague under the majority's analysis, the statutes would be immune

from both substantive and vagueness challenges. Substantively the

statute cannot, according to its own terms, violate the constitution. In

fact, it incorporates the Constitution's protections. The upshot is that

facial attacks could never be brought and that statutes containing

these exceptions could be challenged only as they are applied. This

squarely conflicts with the Supreme Court's long-standing concern

with the potential chill of constitutionally protected activity created

by the mere existence of vague criminal statutes and the potential for

their arbitrary enforcement.

For these reasons, I would hold that the curfew's First Amendment

"exception" renders the ordinance impermissibly vague on its face.

Until the ordinance is amended by the City Council or given a construction by state courts that sufficiently reduces its unconstitutional

vagueness, its enforcement conflicts with the constitutional guarantee

of due process of law.

IV.

In sum, I would hold that equal protection challenges by minors to

laws that regulate in the area of fundamental rights must be subject

to strict scrutiny. In my opinion the Charlottesville ordinance fails this

standard. Even if the ordinance survived the equal protection challenge, however, it would be unconstitutional in its present form. The

curfew's First Amendment exception is impermissibly vague in violation of the Due Process Clause. For these reasons, I respectfully dissent.

 55