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Full Opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 1997 Decided May 22, 1998
No. 96-7239
Tiana Hutchins, a minor, by Julia C. Owens,
her grandmother, et al.,
Appellees
v.
District of Columbia,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cv02050)
Steven J. Rosenbaum argued the cause for appellant, with
whom Jo Anne Robinson, Interim Corporation Counsel,
Charles L. Reischel, Deputy Corporation Counsel, Donna M.
Murasky, Assistant Corporation Counsel, and Jason A. Le-
vine were on the briefs.
Robert S. Plotkin argued the cause for appellees, with
whom Jay A. Morrison, Patricia L. Hurst, and Arthur B.
Spitzer were on the brief.
Eric H. Holder, Jr., U.S. Attorney at the time the brief was
filed, R. Craig Lawrence and Kimberly N. Tarver, Assistant
U.S. Attorneys, were on the brief for the United States of
America as amicus curiae.
Before: Silberman, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Opinion concurring in the judgment filed by Circuit Judge
Tatel.
Dissenting opinion filed by Circuit Judge Silberman.
Rogers, Circuit Judge: Confronted with evidence of in-
creasing juvenile violence and victimization in the District of
Columbia, and informed about the success of other cities in
reducing such problems through the enforcement of juvenile
curfews, the Council of the District of Columbia enacted the
Juvenile Curfew Act of 1995. The Council modeled the Act
on a Dallas, Texas, ordinance that the United States Court of
Appeals for the Fifth Circuit had held was constitutional.
See Qutb v. Strauss, 11 F.3d 488, 496 (5th Cir. 1993). The
main provision of the D.C. Act bars unmarried and unemanci-
pated persons 1 under seventeen years old from being in
__________
1 Although the curfew law is entitled the "Juvenile Curfew Act
of 1995," the law does not apply to "juveniles," but rather to
"minors" who are defined in the law as unmarried and unemanci-
pated persons under the age of seventeen. See D.C. Code
s 6-2182(5) (Supp. 1997). The term "juvenile" is not defined in the
curfew law nor in the D.C. statutes governing delinquency, which
instead pertain to "child[ren]," who are persons under age eighteen
not charged with crimes that lead to prosecution as adults. See id.
s 16-2301(3) (Repl. Vol. 1997). Nevertheless, the common defini-
tion of "juvenile" is that defined in federal law as a person under
the age of eighteen. See 18 U.S.C. s 5031 (1994); Hutchins v.
District of Columbia, 942 F. Supp. 665, 666 n.1 (D.D.C. 1996). For
the sake of clarity, references to "minors" in this opinion refer to
public unaccompanied by a parent or equivalent adult super-
visor from 11:00 p.m. to 6:00 a.m. on Sunday through Thurs-
day nights or from 12:01 a.m. to 6:00 a.m. on Friday and
Saturday nights, with certain enumerated "defenses." See
D.C. Code ss 6-05 2182(1), -2183(a)(1), (b)(1) (Supp. 1997).
Thirteen months after the Act took effect, the district court
enjoined its enforcement, ruling in light of evidentiary defi-
ciencies that the Act violated the minor appellees' equal
protection and due process rights and violated the appellee
parents' right to due process. See Hutchins v. District of
Columbia, 942 F. Supp. 665, 668 (D.D.C. 1996). The District
of Columbia, joined by the United States as amicus, appeals
the grant of summary judgment to appellees. We affirm,
albeit with different analyses. While the court is unanimous
that the case is not moot, see infra Part II, we apply different
tests to evaluate the constitutionality of the Act. I apply an
intermediate scrutiny test in light of competing individual and
governmental interests, while Judge Tatel applies strict scru-
tiny and Judge Silberman applies a rational basis test. Judge
Tatel and I agree that the Act fails to survive under interme-
diate or strict scrutiny review; Judge Silberman dissents,
concluding that the Act survives rational basis review.
I.
Appellees, nine persons under the age of seventeen at the
time 2 and four parents, all residents of the District of Colum-
bia ("the District"), and a movie theater corporation sued the
__________
persons under seventeen years old; the term "juveniles" refers to
persons under eighteen years old; the phrase "juvenile curfews"
refers to curfew laws affecting any class of young people.
2 Seven minor plaintiffs were residents of Northwest Washing-
ton, D.C., and one minor plaintiff resided in each of Southwest and
Southeast Washington, D.C. During the pendency of this appeal, all
of the minor plaintiffs passed their seventeenth birthdays, and thus
they are no longer subject to the provisions of the Act governing
the behavior of minors under the age of seventeen. This fact does
not make this appeal moot, however, as discussed below. See infra
Part II.
District to enjoin enforcement of the Juvenile Curfew Act of
1995 ("the Act"). They sought a declaration that the Act
violates rights guaranteed by the First, Fourth, and Fifth
Amendments to the United States Constitution and exceeds
the police powers of the District of Columbia. Their principal
allegations were that the Act violates the minors' Fifth
Amendment equal protection and due process rights by im-
pinging upon their fundamental right to free movement; the
Act violates their First Amendment rights to free speech and
association and is both overbroad and unconstitutionally
vague; and the Act violates their Fourth Amendment rights
to be free of unreasonable searches and seizures in that it
allows the police to stop minors and take them into custody
based only on a reasonable belief that the Act has been
violated. In addition, appellees alleged that the Act violates
the parents' Fifth Amendment due process rights because, by
removing parents' discretion to allow children to be in public
places during curfew hours unaccompanied by a person at
least twenty-one years old, the Act impinges upon parents'
fundamental right to autonomy in raising children. Finally,
appellees alleged that the Act exceeds the District's police
powers by criminalizing minors' participation in legitimate
educational, cultural, vocational, athletic, social, and family-
related activities during curfew hours. Appellees argued
that, because the Act infringes on both the minors' and
parents' fundamental rights, it is subject to strict scrutiny
review, which, they asserted, it fails to satisfy.
Upon considering the parties' cross motions for summary
judgment, the district court granted judgment for appellees
and enjoined enforcement of the Act. See Hutchins,
942 F. Supp. at 684. The court agreed that minors have a
fundamental right to free movement, reasoning from the
Supreme Court's acknowledgments that minors have constitu-
tional rights and that adults have a fundamental right to free
movement to the conclusion that, in the context of a curfew
law, there is no reason to treat minors' right to free move-
ment differently from that of adults. See id. at 670-74.
Then, concluding that the Act infringes minors' fundamental
right to free movement as well as parents' fundamental right
to direct their children's upbringing, the court applied a strict
scrutiny test and found that while the District had demon-
strated a compelling need for the curfew, it had failed to
demonstrate that the Act is narrowly tailored to serve that
need. See id. at 674-80. Based on deficiencies in the Dis-
trict's evidentiary justification for a nexus between the curfew
and a future reduction in juvenile victimization and crime, the
court concluded that the Act affects too many minors engaged
in legitimate activities. See id. at 680. The court further
ruled that four of the Act's curfew "defenses" are unconstitu-
tionally vague, see id. at 679, but did not reach the minor
appellees' First and Fourth Amendment challenges, see id. at
680 n.19. Because the Act also affects parents exercising
appropriate supervision of their children, the court ruled that
the Act infringes upon parents' fundamental rights in viola-
tion of the Fifth Amendment. See id. at 680.
On appeal, the District of Columbia contends that the Act
is constitutional, curtailing only limited late night activities of
unsupervised minors and thereby interposing only a minor
interference with parental autonomy. The District maintains,
first, that the district court erred in applying a strict scrutiny
standard in the face of authority rejecting any fundamental
right of minors to wander unsupervised at night, Supreme
Court precedent regarding more general limitations on mi-
nors' rights and parental autonomy, and the Supreme Court's
stringent guidelines for the identification of new fundamental
rights. Alternatively, the District maintains that even if
strict scrutiny is the proper standard, the Act still should be
upheld: the district court's finding that the District has a
compelling interest in preventing juvenile crime and protect-
ing juveniles against victimization is supported by abundant
evidence and the Act is narrowly tailored to that interest, as
demonstrated by evidence that the district court rejected.
Finally, the District maintains that the Act does not violate
appellees' First or Fourth Amendment rights, and that the
district court erred in ruling that four of the curfew excep-
tions in the Act are unconstitutionally vague without offering
either an explanation or a saving construction as required by
Supreme Court precedent.
The constitutionality of a juvenile curfew statute is a ques-
tion of first impression in this court, and our review is de
novo.3 See Wilson v. Pe