Qutb v. Strauss

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-1707
_____________________

ELIZABETH QUTB, Individually and as
next friend of Sabrina Qutb, ET AL.,

Plaintiffs-Appellees,

versus

ANNETTE STRAUSS, Mayor of the City of
Dallas, TX, ET AL.,

Defendants,

versus

STEVE BARTLETT, Mayor of the City of
Dallas, TX, ET AL.,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the
Northern District of Texas

_________________________________________________________________
( November 19, 1993 )

Before KING and JOLLY, Circuit Judges, and PARKER, District Judge.*

E. GRADY JOLLY, Circuit Judge:

This appeal presents a challenge to the constitutionality of

a nocturnal juvenile curfew ordinance enacted by Dallas, Texas.

The ordinance makes it a misdemeanor for persons under the age of

seventeen to use the city streets or to be present at other public

*
Chief Judge of the Eastern District of Texas, sitting by
designation.
places within the city between certain hours.1 Several plaintiffs

brought suit against the city to strike down the ordinance. The

district court ruled for the plaintiffs, holding that the ordinance

violated both the United States and the Texas Constitutions, and

permanently enjoined enforcement of the ordinance. The city

appeals. Because we conclude that this ordinance does not violate

the United States or Texas Constitutions, we reverse the district

court.

I

On June 12, 1991, in response to citizens' demands for

protection of the city's youth, the Dallas City Council enacted a

juvenile curfew ordinance. This ordinance prohibits persons under

seventeen years of age2 from remaining in a public place or

establishment from 11 p.m. until 6 a.m. on week nights, and from 12

midnight until 6 a.m. on weekends. As defined by the ordinance, a

"public place" is any place to which the public or a substantial

group of the public has access, and includes streets, highways, and

the common areas of schools, hospitals, apartment houses, office

buildings, transport facilities, and shops. "Establishment" is

defined as "any privately-owned place of business operated for a

1
A copy of the ordinance is attached. All references to the
ordinance concern the ordinance as it was amended in June 1992,
unless otherwise stated.
2
The ordinance does not apply to persons under the age of
seventeen who are married, or who have been married, or who have
had the disability of minority removed in accordance with Chapter
31 of the Texas Family Code.

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profit to which the public is invited, including but not limited to

any place of amusement or entertainment."

Although the ordinance restricts the hours when minors are

allowed in public areas, the ordinance also contains a number of

exceptions, or defenses. A person under the age of seventeen in a

public place during curfew hours does not violate the ordinance if

he or she is accompanied by a parent3 or guardian, or is on an

errand for a parent or guardian. Likewise, minors would be allowed

in public places if they are in a motor vehicle travelling to or

from a place of employment, or if they are involved in employment

related activities. Affected minors could attend school,

religious, or civic organizational functions--or generally exercise

their First Amendment speech and associational rights--without

violating the ordinance. Nor is it a violation to engage in

interstate travel, or remain on a sidewalk in front of the minor's

home, or the home of a neighbor. And finally, the ordinance places

no restrictions on a minor's ability to move about during curfew

hours in the case of an emergency.

A minor violates the curfew if he or she remains in any public

place or on the premises of any establishment during curfew hours,

and if the minors' activities are not exempted from coverage. If

3
Under the ordinance, the definition of "parent" includes a
person who is "a natural parent, adoptive parent, or step-parent of
another person" and those persons who are "at least 18 years of age
and authorized by a parent or guardian to have care and custody of
a minor."

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a minor is apparently violating the ordinance, the ordinance

requires police officers to ask the age of the apparent offender,

and to inquire into the reasons for being in a public place during

curfew hours before taking any enforcement action. An officer may

issue a citation or arrest the apparent offender only if the

officer reasonably believes that the person has violated the

ordinance and that no defenses apply. If convicted, an offending

party is subject to a fine not to exceed $500.00 for each separate

offense.

Like minors who have violated the offense, a parent of a

minor, or an owner, operator, or employee of a business

establishment is also subject to a fine not to exceed $500 for each

separate offense. A parent or guardian of a minor violates the

ordinance if he or she knowingly permits, or by insufficient

control allows, a minor child to remain in any public place or on

the premises of any establishment during curfew hours. An owner,

operator, or employee of a business establishment commits an

offense by knowingly allowing a minor to remain upon the premises

of the establishment during curfew hours.

II

On July 3, 1991, two weeks after the ordinance was enacted,

Elizabeth Qutb and three other parents filed suit--both

individually and as next friends of their teenage children--seeking

a temporary restraining order and a permanent injunction against

the enforcement of the juvenile curfew ordinance on the basis that

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the ordinance is unconstitutional.4 The district court certified

the plaintiffs as a class that consisted of two sub-classes:

persons under the age of seventeen, and parents of persons under

the age of seventeen. One week later, the court advanced the trial

on the merits, and consolidated the trial with the hearing on the

plaintiffs' request for temporary and permanent injunctions. The

case was tried on July 22-23, and the district court denied the

plaintiffs' request for a temporary injunction. The city, however,

voluntarily delayed enforcement of the curfew pending the district

court's decision on the merits.

On June 12, 1992, before the district court issued its final

order on the merits of the case, the city voluntarily amended the

curfew ordinance. The amended ordinance deleted or altered some of

the provisions of which the plaintiffs complained, while expanding

some of the defenses available to affected minors. In response to

the revised ordinance, the plaintiffs filed an amended complaint

and an amended motion for a permanent injunction against

4
Before the district court, the plaintiffs asserted several
grounds for holding the ordinance unconstitutional. First, they
argued that the ordinance impermissibly restricts First Amendment
rights of free speech and free association. They also contended
that the ordinance violates the Fourth and Fourteenth Amendment
right against unreasonable searches and seizures, and that the
ordinance divests them of their Fifth and Fourteenth Amendment
rights to a presumption of innocence, proof beyond a reasonable
doubt, and freedom against self-incrimination. Plaintiffs further
maintained that the ordinance violates the equal protection clause,
and implicates fundamental liberty and privacy interests protected
by the due process clause of the Fourteenth Amendment. Finally,
plaintiffs argued that the ordinance is vague and overly broad.

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enforcement of the curfew. The district court held a second

evidentiary hearing, where both parties presented additional

evidence and arguments concerning validity of the revised ordinance

under the United States and Texas constitutions. On August 10,

1992, the district court held that the curfew impermissibly

restricted minors' First Amendment right to associate, and that it

created classifications that could not withstand constitutional

scrutiny.5 Accordingly, the district court permanently enjoined

enforcement of the curfew, and the city now appeals.

III

A

We review de novo the district court's conclusions of

constitutional law. Peyote Way Church of God, Inc. v. Thornburgh,

922 F.2d 1210, 1213 (5th Cir. 1991); Shillingford v. Holmes, 634

F.2d 263, 266 (5th Cir. 1981). The minor plaintiffs argue, inter

alia, that the curfew ordinance violates the Equal Protection

Clause of the Fourteenth Amendment. The Equal Protection Clause

"is essentially a direction that all persons similarly situated

should be treated alike." City of Cleburne v. Cleburne Living

Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313

(1985). Only if the challenged government action classifies or

distinguishes between two or more relevant groups must we conduct

5
Because the district court held the ordinance
unconstitutional on the equal protection and free association
grounds, the district court did not reach the other arguments
presented by the plaintiffs.

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an equal protection inquiry. Brennan v. Stewart, 834 F.2d 1248,

1257 (5th Cir. 1988). Here, it is clear that the curfew ordinance

distinguishes between classes of individuals on the basis on age,

treating those persons under the age of seventeen differently from

those persons age seventeen and older. Because the curfew

ordinance distinguishes between two groups, we must analyze the

curfew ordinance under the Equal Protection Clause.

Under the Equal Protection analysis, we apply different

standards of review depending upon the right or classification

involved. If a classification disadvantages a "suspect class" or

impinges upon a "fundamental right," the ordinance is subject to

strict scrutiny. Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct.

2382, 72 L.Ed.2d 786 (1982). Under the strict scrutiny standard,

we accord the classification no presumption of constitutionality.

Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049, 1059

(5th Cir. 1984). Instead, we ask whether the classification

promotes a compelling governmental interest and, if so, whether the

ordinance is narrowly tailored such that there are no less

restrictive means available to effectuate the desired end. Pugh v.

Rainwater, 557 F.2d 1189, 1195 (5th Cir. 1977), vacated on other

grounds, 572 F.2d 1053 (5th Cir. 1978)

In this case, no one has argued, and correctly so, that a

classification based on age is a suspect classification. See

Gregory v. Ashcroft, ___ U.S. ___, 111 S.Ct. 2395, 2406, 115

L.Ed.2d 410 (1991)(holding that age is not a suspect class). The

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minor plaintiffs, however, have argued that the curfew ordinance

impinges upon their "fundamental right" to move about freely in

public. For purposes of our analysis, we assume without deciding

that the right to move about freely is a fundamental right. We are

mindful, however, that this ordinance is directed solely at the

activities of juveniles and, under certain circumstances, minors

may be treated differently from adults.6

B

Because we assume that the curfew impinges upon a fundamental

right, we will now subject the ordinance to strict scrutiny review.

As stated earlier, to survive strict scrutiny, a classification

created by the ordinance must promote a compelling governmental

interest, and it must be narrowly tailored to achieve this

interest. Plyler v. Doe, 457 U.S. at 216-17. The city's stated

interest in enacting the ordinance is to reduce juvenile crime and

victimization, while promoting juvenile safety and well-being. The

Supreme Court has recognized that the state "has a strong and

legitimate interest in the welfare of its young citizens, whose

6
In Bellotti v. Baird, the Court recognized that there were
three reasons that allows a court to treat the rights of minors
differently from rights of adults: 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. Bellotti v. Baird, 443 U.S. at 634. This analysis
affects the balancing between of the state's interest against the
interests of the minor when determining whether the state's
interest is compelling. However, given the fact that the parties
and the district court all agree that the interest of the state in
this instance is compelling, it is unnecessary to conduct a full
Bellotti analysis.

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immaturity, inexperience, and lack of judgment may sometimes impair

their ability to exercise their rights wisely." Hodgson v.

Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 2942, 111 L.Ed.2d 344

(1990). In this case, the plaintiffs concede and the district

court held that the state's interest in this case is compelling.

Given the fact that the state's interest is elevated by the

minority status of the affected persons, we have no difficulty

agreeing with the parties and with the district court.

C

In the light of the state's compelling interest in increasing

juvenile safety and decreasing juvenile crime, we must now

determine whether the curfew ordinance is narrowly tailored to

achieve that interest. The district court held that the city

"totally failed to establish that the Ordinance's classification

between minors and non-minors is narrowly tailored to achieve the

stated goals of the curfew." We disagree.

To be narrowly tailored, there must be a nexus between the

stated government interest and the classification created by the

ordinance. City of Richmond v. J.A. Croson, Co., 488 U.S. 469,

493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). This test "ensures

that the means chosen 'fit' this compelling goal so closely that

there is little or no possibility that the motive for the

classification was illegitimate. . . ." Id.

The articulated purpose of the curfew ordinance enacted by the

city of Dallas is to protect juveniles from harm, and to reduce

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juvenile crime and violence occurring in the city. The ordinance's

distinction based upon age furthers these objectives. Before the

district court, the city presented the following statistical

information:

1. Juvenile crime increases proportionally with age between
ten years old and sixteen years old.

2. In 1989, Dallas recorded 5,160 juvenile arrests, while in
1990 there were 5,425 juvenile arrests. In 1990 there
were forty murders, ninety-one sex offenses, 233
robberies, and 230 aggravated assaults committed by
juveniles. From January 1991 through April 1991,
juveniles were arrested for twenty-one murders, thirty
sex offenses, 128 robberies, 107 aggravated assaults, and
1,042 crimes against property.

3. Murders are most likely to occur between 10:00 p.m. and
1:00 a.m. and most likely to occur in apartments and
apartment parking lots and streets and highways.

4. Aggravated assaults are most likely to occur between
11:00 p.m. and 1:00 a.m.

5. Rapes are most likely to occur between 1:00 a.m. and 3:00
a.m. and sixteen percent of rapes occur on public streets
and highways.

6. Thirty-one percent of robberies occur on streets and
highways.

Although the city was unable to provide precise data concerning the

number of juveniles who commit crimes during the curfew hours, or

the number of juvenile victims of crimes committed during the

curfew, the city nonetheless provided sufficient data to

demonstrate that the classification created by the ordinance "fits"

the state's compelling interest.7

7
Plaintiffs argue that because the city failed to offer
statistical evidence supporting the nocturnal juvenile crime

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 Furthermore, we are convinced that this curfew ordinance also

employs the least restrictive means of accomplishing its goals.

The ordinance contains various "defenses" that allow affected

minors to remain in public areas during curfew hours. Although the

district court concluded that "[i]t is what the Ordinance restricts

. . . and not what it exempts that matters the most," it is clear

to us that neither the restrictions of the curfew ordinance nor its

defenses can be viewed in isolation from each other; the ordinance

can be examined fairly only when the defenses are considered as a

part of the whole. To be sure, the defenses are the most important

consideration in determining whether this ordinance is narrowly

tailored.

In the past, curfew ordinances have been held unconstitutional

because of their broad general applications. In Johnson v. City of

Opelousas, for example, we addressed a juvenile curfew ordinance

and declared it unconstitutional; our holding, however, was

problem, the city failed to meet its burden of proving the
necessary "fit" between the compelling state interest and the
curfew. We will not, however, insist upon detailed studies of the
precise severity, nature, and characteristics of the juvenile crime
problem in analyzing whether the ordinance meets constitutional
muster when it is conceded that the juvenile crime problem in
Dallas constitutes a compelling state interest. In this same vein,
the plaintiffs arguments that the city has not produced proof of
the effectiveness of the ordinance in addressing the juvenile crime
problem are unavailing; indeed, such "proof" can hardly amount to
more than mere speculation. Federal courts have always been
reluctant to question the potential effectiveness of legislative
remedies designed to address societal problems. As we have held in
other contexts, we "do not demand of legislatures scientifically
certain criteria of legislation." Ginsberg v. New York, 390 U.S.
at 642 (internal quotes omitted).

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"expressly limited to the unconstitutional overbreadth of the

ordinance." Johnson v. City of Opelousas, 658 F.2d at 1074.

Furthermore, we stated that "[w]e express no opinion on validity of

curfew ordinances narrowly drawn to accomplish proper social

objectives." Id. at 1072. In declaring the Johnson ordinance to

be an undue burden on the rights of minors, we noted that:

[U]nder this curfew ordinance minors are prohibited from
attending associational activities such as religious or
school meetings, organized dances, and theater and
sporting events, when reasonable and direct travel to or
from these activities has to be made during the curfew
period. The same inhibition prohibits parents from
urging and consenting to such protected associational
activity by their minor children. The curfew ordinance
also prohibits a minor during the curfew period from, for
example, being on the sidewalk in front of his house,
engaging in legitimate employment, or traveling through
[the city] even on an interstate trip. These implicit
prohibitions of the curfew ordinance overtly and
manifestly infringe upon the constitutional rights of
minors in [the city].

Id. We therefore concluded that the "curfew ordinance, however

valid might be a narrowly drawn curfew to protect society's valid

interests, [swept] within its ambit a number of innocent activities

which are constitutionally protected." Id. at 1074 (emphasis

added). In Johnson, we further stated that

[r]egardless of the legitimacy of [the city's] stated
purposes of protecting youths, reducing nocturnal
juvenile crime, and promoting parental control over their
children, less drastic means are available for achieving
these goals. Since the absence of exceptions in the
curfew ordinance precludes a narrowing construction, we
are compelled to rule that the ordinance is
constitutionally overbroad.

Id. (emphasis added).

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 With the ordinance before us today, the city of Dallas has

created a nocturnal juvenile curfew that satisfies strict scrutiny.

By including the defenses to a violation of the ordinance, the city

has enacted a narrowly drawn ordinance that allows the city to meet

its stated goals8 while respecting the rights of the affected

minors. As the city points out, a juvenile may move about freely

in Dallas if accompanied by a parent or a guardian, or a person at

least eighteen years of age who is authorized by a parent or

guardian to have custody of the minor. If the juvenile is

traveling interstate, returning from a school-sponsored function,

a civic organization-sponsored function, or a religious function,

or going home after work, the ordinance does not apply. If the

juvenile is on an errand for his or her parent or guardian, the

ordinance does not apply. If the juvenile is involved in an

8
According to the city, its goals in enacting the ordinance
are to (1) reduce the number of juvenile crime victims; (2) reduce
injury accidents involving juveniles; (3) reduce additional time
for officers in the field; (4) provide additional options for
dealing with gang problems; (5) reduce juvenile peer pressure to
stay out late; and (6) assist parents in the control of their
children. The aim of the ordinance is to deter criminal conduct
involving juveniles as well as penalize those individuals who
violate it. However, the city states that its intent is not to
penalize every youth found in public during curfew hours, but to
use the ordinance as a tool to help address other criminal activity
problems that involve or may potentially involve juveniles. The
curfew ordinance provides an officer with reasonable suspicion to
approach gangs to determine if any of them are juveniles. According
to the city, the curfew ordinance can help address Dallas's gang
problem because gang members often congregate in public and set up
an environment where criminal activities take place, such as drive-
by shootings, fights, and "turf" disputes.

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emergency, the ordinance does not apply. If the juvenile is on a

sidewalk in front of his or her home or the home of a neighbor, the

ordinance does not apply. Most notably, if the juvenile is

exercising his or her First Amendment rights, the curfew ordinance

does not apply.

Against the ordinance's an expansive list of defenses, the

district court attempted to provide examples of activities with

which the curfew ordinance would interfere. The district court

suggested the example of "a midnight basketball league aimed solely

at keeping juveniles off of the streets" to demonstrate that

participation in legitimate desirable activities would violate the

ordinance unless the activities were officially organized,

sponsored, or supervised by the city, a school, a civic

association, or some "other entity." In its effort to demonstrate

that the ordinance was overly broad, the district court referred to

concerts, movies, plays, study groups, or church activities that

may extend past curfew hours. The district court finally noted

that "every juvenile in the city could be arrested and fined up to

$500.00 upon conviction if he or she merely sought to take an

innocent stroll or `gaze at the stars from a public park.'"

With due respect to the able district court, we are convinced

that upon examination its analysis collapses. It is true, of

course, that the curfew ordinance would restrict some late-night

activities of juveniles; if indeed it did not, then there would be

no purpose in enacting it. But when balanced with the compelling

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interest sought to be addressed--protecting juveniles and

preventing juvenile crime--the impositions are minor. The district

court failed to observe that none of the activities it listed are

restricted if the juvenile is accompanied by a parent or a

guardian. Even if the child is unaccompanied by a parent or a

guardian, we can presume that most events such as a "midnight

basketball league" or a church youth group outing ordinarily would

be organized, sponsored or supervised by an adult or an

organization, and these are exceptions to the curfew. Although it

is true that in some situations unaccompanied juveniles may be

forced to attend early evening features of a movie or leave a play

or concert before its conclusion, this imposition is ameliorated by

several of the ordinance's defenses so that the juvenile is not

deprived of actually attending such cultural and entertainment

opportunities. Furthermore, a juvenile can take an "innocent

stroll" and stare at the stars until 11:00 on week-nights and until

12:00 midnight on weekends; indeed, a juvenile may stare at the

stars all night long from the front sidewalk of his or her home or

the home of a neighbor. Thus, after carefully examining the

juvenile curfew ordinance enacted by the city of Dallas, we

conclude that it is narrowly tailored to address the city's

compelling interest and any burden this ordinance places upon

minors' constitutional rights will be minimal.9

9
The minor plaintiffs argued and the district court held that
the minors' first amendment rights of association are also

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 D

In addition to the claims presented by the minor plaintiffs,

the parental plaintiffs argue that the curfew ordinance violates

their fundamental right of privacy because it dictates the manner

in which their children must be raised. Although we recognize that

a parent's right to rear their children without undue governmental

interference is a fundamental component of due process, see, e.g.,

Ginsberg v. New York, 390 U.S. at 639, we are convinced that this

ordinance presents only a minimal intrusion into the parents'

rights. In fact, the only aspect of parenting that this ordinance

bears upon is the parents' right to allow the minor to remain in

public places, unaccompanied by a parent or guardian or other

authorized person, during the hours restricted by the curfew

ordinance. Because of the broad exemptions included in the curfew

impermissibly impinged upon by the curfew ordinance. We disagree.
First, it is questionable whether a fundamental right of
association is implicated. The Supreme Court has held that there
is no "generalized right of social association," Dallas v.
Stanglin, 490 U.S. 19, 479, 109 S.Ct. 1591, 104 L.Ed.2d 18
(1989)(internal quotes omitted), and, that seems to be precisely
the type of association we are primarily concerned with in this
case. Even in those instances when minors may, for example,
associate for political or religious reasons, the majority of those
situations will be exempted under one of the defenses to the curfew
ordinance. In any event, we have determined that this curfew
ordinance satisfies strict scrutiny, and any negligible burden on
the individual's right to associate is outweighed by the compelling
interests of the state.
We have also considered the minor plaintiffs' Equal Protection
argument in the light of the Texas Constitution. We find nothing
and we have been pointed to no authority--other than an unrelated
defamation case--that warrants a different treatment of this issue
under the state constitution.

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ordinance, the parent retains the right to make decisions regarding

his or her child in all other areas: the parent may allow the

minor to remain in public so long as the minor is accompanied by a

parent or guardian, or a person at least eighteen years of age who

is authorized by a parent or guardian to have custody of the minor.

The parent may allow the minor to attend all activities organized

by groups such as church groups, civic organizations, schools, or

the city of Dallas. The parent may still allow the child to hold

a job, to perform an errand for the parent, and to seek help in

emergency situations.

In this case, the parents have failed to convince us that the

ordinance will impermissibly impinge on their rights as parents.

The parents' only "evidence" to support their argument is the

testimony of the mother of one of the plaintiffs that her daughter

would soon be going to college, and the curfew ordinance--applying

only between 11 p.m. and 6 a.m.--would somehow deprive her daughter

of the opportunity to learn to manage her time and make decisions

before going away to college. Certainly this testimony is

insufficient to support the district court's finding that the

ordinance unconstitutionally infringed the liberty and privacy

interests of parents.10

10
The parents also assert that the curfew ordinance is
unconstitutional under the Texas Constitution based on an invasion
of parental privacy. We recognize that the Texas courts have
construed the Equal Protection Clause of the Texas Constitution
more expansively than that of the United States Constitution in the
area of homosexual rights. See State v. Morales, 826 S.W.2d 201,

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 IV

In conclusion, we find that the state has demonstrated that

the curfew ordinance furthers a compelling state interest, i.e.,

protecting juveniles from crime on the streets. We further

conclude that the ordinance is narrowly tailored to achieve this

compelling state interest.11 Accordingly, we hold that the

nocturnal juvenile curfew ordinance enacted by the city of Dallas

is constitutional. The judgment of the district court is therefore

R E V E R S E D.

KING, Circuit Judge, specially concurring:

I concur in the result reached by the majority without

expressing a view on the method by which the majority has reached

that result.

204 (Tex. App.--Austin, 1992, writ denied). We were unable,
however, to find any authority that supports the notion that the
Texas Constitution would provide more protection in the area of
parental privacy.
11
We can also envision the constitutionality of a narrowly
drawn nocturnal juvenile curfew ordinance that applies only in a
municipality's high risk, high crime areas or danger zones.

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