Curfews & the First Amendment: Hodgkins v. Peterson, No. 01-4115, (7th Cir. 2004)

A clear and brilliant exposition on the application of the First Amendment to state and local curfew laws can be found here. This case should be included in all First Amendment casebooks. And its propositions should be arrows in the quivers of criminal defense lawyers.

In Hodgkins v. Peterson, the Seventh Circuit answers in the affirmative this question: Does a curfew law, so broad that it allows a police officer to arrest a minor who is returning from a political protest, violate the First Amendment even where it allows the minor to assert a First Amendment affirmative defense at trial? The reasoning for this outcome is as follows.

A person has standing to challenge a law when they have suffered, or reasonably will suffer, an actual or apparent injury. The plaintiff (in this case an individual plaintiff and plaintiff class) has standing because they are likely to be arrested if out past 11 p.m. on weekdays, or 2 a.m. on weekends. Hodgin had standing to challenge the law under the overbeadth doctrine because the law impinged upon a significant amount of protected speech. For a person to state a claim under the First Amendment, they must prove that their speech was actually chilled. The plaintiffs could show this because fear of criminal prosecution would have, or did, prevent them from going to late night protests; political rallies; or church events. The case was not moot, even though Hodgin was no longer liable under this statute at the time of the opinion because a class action takes on an existence of its own.

The State argued that the law was not defective because the aggrieved party could assert a First Amendment affirmative defense. In other words, the minor could say in opposition to a citation, "I was returning from a political rally."

This affirmative defense did not cure the defect in the statute, however, because under 4th Amendment jurisprudence, the arresting officer does not have a duty to investigate or to seek exculpatory evidence. The officer only needs probable cause to believe that someone is committing a crime.

Applied here: Cop arrests minor. Minor says, "But I was returning from a political rally." Cop says, "Tough shit. Tell it to a judge." This arrest, under this statute and under the U.S. Supreme Court's jurisprudence, would be proper. It is hardly fair to force the child (or his parents) to have to hire a criminal defense lawyer to avoid being punished for exercising a constitutional right. And so, the statute is unconstitutional.

The case also ponders, but does not answer: Do curfew laws violate the substantive due process rights of parents by impinging upon their right to allow their child to remain out past a certain hour?

Every criminal defense (and Section 1983) lawyer, should be familar with this case.