AGO 94-18.

• Case Date: March 03, 1994
• Court: South Carolina

South Carolina Attorney General Opinions 1994. AGO 94-18. 39March 3, 1994OPINION NO. 94-18As long as ordinances mandating nocturnal curfews for juveniles are not impermissibly vague, such curfews are constitutional.TO: Chairman, Fairfield County CouncilFROM: T. Travis Medlock Attorney General You have asked our opinion regarding the constitutional validity of ordinances mandating nocturnal curfews for juveniles. It is our opinion that, so long as such ordinances are not impermissibly vague, such curfews are constitutional. BACKGROUND Responding to the recent rash of teenage violence, drug abuse and social and cultural disorder relating to our youth generally, a number of local jurisdictions throughout the United States have enacted juvenile nocturnal curfews. Generally speaking, such curfews forbid juveniles to be on the streets between certain hours except in certain prescribed circumstances, or unless accompanied by a parent or guardian. Likewise, counties and municipalities in South Carolina have adopted, or are considering, such curfews as a means of getting juveniles off the street late at night--usually long after school and other legitimate activities are over. The curfew is also intended to prevent teenagers from coming in contact with adults who might get them in trouble. 40Frequently, such curfews have been attacked in the courts. The grounds have ranged from the curfew ordiance being void for vagueness, to its infringement upon First Amendment rights of association or speech, to impairment of the right to travel. Additionally, those who would strike down this type of ordinance argue that it impairs a parent's right to raise a child in the manner chosen. We reject each and every one of these arguments. Based upon the authorities set forth below, it is our conclusion that a carefully tailored juvenile curfew ordinance impairs neither a juvenile's or a parent's constitutional rights. To the contrary, such an ordinance serves at least four important and prevailing governmental interests. First, the ordinance protects juveniles from each other and from other persons on the street during late nighttime hours. Secondly, the ordinance protects the public. Third, the ordinance serves to reduce juvenile crime and violence. Fourth, the ordinance reinforces parental control and responsibility for children. FREEDOM OF ASSOCIATION AND RIGHT TO TRAVEL Frequently, the argument is made that a juvenile curfew ordinance infringes upon a juvenile's right to gather, travel, walk about or associate. For such a right to rise to constitutional dimension, however, it must be determined to be "fundamental" in nature. A juvenile must, in other words, possess a fundamental right to travel or associate on the street. If fundamental in nature, the courts then invoke a so-called strict scrutiny test-- thereby requiring that in order to survive constitutional scrutiny, the statute or ordinance be narrowly drawn to serve compelling governmental interests. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600, 615 (1969). The United States Supreme court has consistently held that interstate travel is indeed a fundamental constitutional right. See, Shapiro, supra; Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 90 L.Ed.2d 899 (1986). As the Court recognized in Soto-Lopez,

... in light of the unquestioned historic acceptance of the principle of free interstate migration, and the important role that principle has played in transforming many States into a single Nation, we have not felt impelled to locate this right definitively in any particular constitutional provision.... Whatever its origin, the right to migrate is firmly established and has been repeatedly recognized by our cases.

476 U.S. at 902-903. Moreover, the Court has scrupulously examined vagrancy ordinances, in part, because the freedom to wander about is

... historically part of the amenities of life as we have known them ... These unwritten [in the Constitution] amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed suffocating silence. Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

41On the other hand, a juvenile's right to wander or associate on the street late at night is a far different matter. Only recently, in Dallas v. Stanqlin, 490 U.S. 19, 109 S.Ct. 1591, 104...