Hutchins ex rel. Owens v. District of Columbia

SILBERMAN, Circuit Judge,

dissentmg:

Because I do not read either Supreme Court precedent or the history and tradition of this country as giving minors a fundamental right to be unaccompanied on the streets at night, I would apply rational basis review and uphold the curfew. The Supreme Court has instructed that “ ‘[sjubstantive due process’ analysis must begin with a careful description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993) (quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068-69, 117 L.Ed.2d 261 (1992)). Appellees have described the right at stake as “the fundamental right to free movement.” But this puts it at too high a level of generality. The basic definition of the word “liberty,” from which our due process rights emanate, is “freedom from physical restraint.” To some degree, then, the “freedom to move” must be included in our fundamental rights. It does not follow, however, that “movement” itself is the operative right. Such a broad assertion would lead to somewhat ridiculous results—for example, installing a traffic light would trigger strict scrutiny. See Townes v. City of St. Louis, 949 F.Supp. 731 (E.D.Mo.1996), aff'd. 112 F.3d 514 (8th Cir.), cert. denied — U.S. -, 118 S.Ct. 235, 139 L.Ed.2d 166 (1997) (applying heightened scrutiny when resident claimed that city’s placement of large flower pots across the entry to her block infringed her fundamental right to intrastate travel); Lutz v. City of York, 899 F.2d 255 (3d Cir.1990) (applying strict scrutiny to “cruising” ordinance, which prohibited repeatedly driving around loop of certain major roads). And despite appellees’ assertion that the Supreme Court has recognized such a right, the Court has not been so clear. To be sure, in cases dealing with travel interstate and abroad, the Court has suggested in dicta that a “right to movement” may exist. Kent v. Dulles, 357 U.S. 116, 126-27, 78 S.Ct. 1113, 1118-19, 2 L.Ed.2d 1204 (1958); United States v. Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270(1920). The Court’s discussion is in- the context of crossing borders, however, which seems a different matter than unlimited access to the streets. Appellee also cites cases holding vagrancy statutes void for vagueness; although the Court does at one point quote from Walt Whitman’s “Song of the Open Road,” the legal analysis in these cases did not deal with a liberty interest at all. Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110 (1972); see Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983).

I am thus left to define the interest as it appears in the case before me, mindful that substantive due process encompasses only those rights deeply rooted in the history and tradition of our society. Michael H. v. Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2333, 2341-42, 105 L.Ed.2d 91 (1989) (plurality opinion). While appellees frame their interest as “freedom of movement,” I think that the appropriate articulation is “the right of minors to be unaccompanied on the streets at night.” I am aware of no such tradition, and, if anything, Supreme Court precedent cuts against the start of one. When a group of juvenile aliens detained before a deportation hearing challenged INS regulations allowing them to be released only to certain adults, the Court said that their claimed fundamental right surely could not be “a right to come and go at will, since, as have said elsewhere, ‘juveniles, unlike adults, are always in some form of custody.’ ” Reno v. Flores, 507 U.S. at 302, 113 S.Ct. at 1447 (quoting Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984)). If children are “always in some form of custody,” it is anomalous to say that they have a “fundamental right to be unaccompanied.” The Supreme Court has jealously guarded its prerogative to be the promulgator of new fundamental rights, and since it has not gone this far, neither would I.