On March 18, 2004 the Indiana Law Blog posted this entry that began:
Earlier this year, in Hodkins v. Peterson, Mayor of Indianapolis (1/22/04 USCA 7th Cir.) the 7th Circuit ruled, in the words of the Indianapolis Star, that "that Indiana's curfew law was unconstitutional because it could dissuade children from exercising their First Amendment rights for fear of being arrested." (see earlier Indiana Law Blog entries here and here.)On June 24, 2004 the ILB posted an entry surveying the use of the curfew in northwest Indiana and Michigan City, following the 7th Circuit's action and the General Assembly's revision of the state law. As the Gary Post-Tribune reported "Curfew enforcement in Indiana has ranged from non-existent to spotty this year." Some cities and towns are enforcing the new state law, some municipalities have adopted new curfew ordinances patterned on the new state law, some are enforcing their old ordiances, and some are doing nothing.On March 17th, Governor Kernan signed HEA 1449, which provides that:
A law enforcement officer may not detain a child or take a child into custody based on a violation of this section unless the law enforcement officer, after making a reasonable determination and considering the facts and surrounding circumstances, reasonably believes that:The change takes effect immediately.
(1) the child has violated this section; and
(2) there is no legal defense to the violation.
According to a report in the Indianapolis Star this morning, Indianapolis falls in the "doing nothing" category:
The reason: Indianapolis police didn't know about the law, while the Marion County Sheriff's Department is waiting to make sure the curfew is legal.Meanwhile, as reported in this Indianapolis Star story last Wednesday (July 1), the ICLU has sued to block the new curfew law:Indianapolis teens were charged more than 1,000 times under the previous law from 2001 until it was struck down in January by a federal appeals court.
"There was a big press conference saying we couldn't arrest," Indianapolis Police Sgt. Steve Staletovich said. "But there was no hoopla telling us we could again."
Word from top police administration officials never filtered down to officers on the street, said Capt. David Allender of the department's juvenile branch.
The Indiana Civil Liberties Union asked a federal judge Wednesday to stop the state from enforcing its curfew law until the courts decide whether it is constitutional.The story points out that this is the third time the ACLU has challenged the statute:In U.S. District Court in Indianapolis, the ICLU argued that the latest version of the law violates parents' right to give their children permission to be out late.
There is no exception for anyone "who wants to go to the prom," said Kenneth Falk, ICLU legal director.
The law bans minors from staying out past 11 p.m. on weeknights and 1 a.m. on weekends unless they are exercising constitutionally protected rights, such as attending political protests or church services.
ICLU officials asked U.S. District Judge John Tinder to impose a preliminary injunction against the law until the courts decide the issue. Tinder did not rule Wednesday on the request.
The hearing is the latest in a legal battle that has pitted public safety against parental rights.
Although the curfew is state law, Mayor Bart Peterson and Marion County Sheriff Frank Anderson are listed as defendants because the city and county carry out enforcement.The current defenses under the state law, which were not changed by the 2004 legislation, are listed at IC 31-37-3-3.5. (Note that the 2004 changes made to sections 2 and 3 of the law, adding the language quoted earlier in this entry, and which have been in effect since March 17th, are not yet reflected in the General Assembly's online version of IC 31-37-3.)A federal judge ruled in favor of the Hodgkins family in 2000, saying the law was too broad and violated the First Amendment rights of children.
In 2001, the General Assembly changed the law to allow minors arrested on curfew violations to avoid prosecution if they were involved in activity protected by the First Amendment.
But the Hodgkins family continued to fight, saying that even with the exemptions, children and parents would fear arrest. In January, the 7th U.S. Circuit Court of Appeals in Chicago struck down the law.
In March, the General Assembly revised the law again to address constitutional issues. But lawmakers did not follow warnings from the ICLU and city of Indianapolis attorneys to include a parental-permission exemption.
This morning's Star story continues:
Indianapolis police now will start enforcing the law. But their counterparts in the Sheriff's Department won't.In a side-bar to today's story the Star reports that "As a result of the [7th Circuit decision in January 2004], the city stopped enforcing the law. That's when Indianapolis officials fell back on a city curfew ordinance, which allows officers to issue citations to juveniles breaking curfew." A check of the City's ordinances show that Chapter 381, MINORS, of the REVISED CODE of the Consolidated City and County, INDIANAPOLIS/MARION, INDIANA, Codified through Ordinance No. 10, 2004 (Supplement No. 12), includes this provision, enacted in 2000:"Until we get word this law is going to stand, we're not going to enforce it," said Lt. Jim Cleek, referring to the latest challenge to the law by the Indiana Civil Liberties Union. * * *
The biggest conflict over the law continues in Indianapolis, where the ICLU sued the city in March over the latest version of the statewide curfew because it does not include an exemption for teenagers who have their parents' permission to be out late.
Sec. 381-103. Application.Posted by Marcia Oddi at July 5, 2004 07:53 AM
Sections 381-101 and 381-102 of this chapter do not apply to a child who is:
(1) Accompanied by the child's parent, guardian, or custodian;
(2) Accompanied by an adult specified by the child's parent, guardian, or custodian; or,
(3) With the consent of the child's parent, guardian, or custodian, either participating in, going to, or returning from:a. Lawful employment;
b. A school-sanctioned activity; or,
c. An expressive, religious, or associational activity protected by either federal or state law, including but not limited to the free exercise of religion, freedom of speech, and the right of assembly.
(G.O. 101, 2000, § 1)