News

By Jonathan Saltzman

The state’s highest court yesterday struck down a provision in a Lowell ordinance that made it a crime for children under 17 to violate a curfew, a ruling expected to affect other Massachusetts communities that have adopted or are considering similar local laws.

The Supreme Judicial Court said the criminal penalties minors faced for violating the 1994 law, including arrest and potential commitment to the custody of the Department of Youth Services, were too broad to pass constitutional muster, even if the city had legitimate public safety goals.

“The criminal processes and punishments provided in the ordinance … contradict well-established goals of rehabilitating, not incarcerating, juvenile offenders,” Justice Robert J. Cordy wrote on behalf of the court.

The court, however, left intact civil penalties for violators of the ordinance, which requires juveniles to be home from 11 p.m. to 5 a.m., with some exceptions. Those penalties are a $50 fine and a notice to parents or guardians.

It was the first time a Massachusetts state court ruled on whether juvenile curfews are legal. It also marked the first time the high court explicitly held that the state constitution guarantees a fundamental right to move freely within Massachusetts, one that applies to adults and minors alike. The court left unsettled whether minors arrested for curfew violations can seek to have their records cleared.

Other Massachusetts communities have enacted curfews to curb crime, including Lynn, Holyoke, and Chicopee. Of those three, only Chicopee made violations an arrestable offense, although a high-ranking Chicopee officer said yesterday that police have rarely taken violators into custody in the past 18 months.

James L. Sultan, a Boston defense lawyer who challenged the ordinance on behalf of two teenage males arrested after midnight in separate incidents in 2004, called the ruling a “great victory for proponents of individual rights and those who believe that a juvenile should not be subjected to arrest and incarceration for exercising their fundamental right to travel.”

In contrast, Kenneth E. Lavallee, Lowell police superintendent, said losing the power to arrest deprives officers of a potent tool, particularly for recalcitrant violators.

“This whole ordinance was enacted to protect children, to keep them safe and keep them out of an environment where harm could come to them,” he said. “This wasn’t done to infringe upon anybody’s rights.”

He planned to meet soon with Middlesex District Attorney Gerard T. Leone Jr. and city lawyers to discuss revising the statute, possibly by just keeping the civil penalty.

Leone, whose office defended the curfew before the court, said in a statement, “We are in the process of evaluating the implications of this decision, and we will continue our endeavor to serve and protect children and comply with the court’s new ruling.”

More than 400 communities nationwide have adopted juvenile curfews, but state and federal courts have disagreed on whether they are constitutional.

In the 1990s, federal appeals courts upheld curfews in the District of Columbia, Charlottesville, Va., and Dallas.

Last October, however, the appellate division of the Supreme Court of New York struck down a Rochester curfew, saying it violated juveniles’ constitutionally protected rights of free movement. In 2003, the US Court of Appeals for the Second Circuit overturned a Vernon, Conn., curfew for similar reasons.

Lowell adopted its curfew after crime surged in the late 1980s and early 1990s. In late July 1994, as the proposed curfew was debated, a 16-year-old was beaten to death in a gang-related slaying. Two months later, the City Council approved the ordinance.

The curfew bans those under 17 from the streets unless accompanied by a parent or a guardian, with several exceptions, including for youths who have night-time jobs, are on the sidewalk next to their homes, or participating in certain recreational or religious activities.

Individuals convicted of violating the curfew can be fined up to $300. They can also be deemed a delinquent and, if they violate the terms of their probation, be committed to the custody of the state until the age of 18.

From 1998 through 2002, the city arraigned an average of 60 juveniles a year for criminal violations of the curfew, according to statistics provided by the Asian American Legal Defense and Education Fund, a New York-based group that filed a brief opposing the ordinance. From 2003 through 2007, the average annual number fell below 15, largely as a result of the legal challenge.

Cecilia Chen, a lawyer for the Asian American legal defense fund, said the curfew upset Lowell’s large Cambodian community and prompted complaints that police engaged in racial profiling.

“It assumes that youth are up to no good by simply being out at night,” she said.

The law was probably also ineffective, said Barbara Kaban, deputy director of the Children’s Law Center of Massachusetts, because crime statistics nationwide indicate most juvenile offenses occur in the hours after school.

Civil libertarians applauded yesterday’s ruling, saying police who encounter curfew violators should fine them and notify their parents, not arrest them.

“The court’s decision ensures that no child will have a criminal record to follow him around forever just because he got home late,” Laura Rotolo, a lawyer with the American Civil Liberties Union of Massachusetts, said in a statement.