Brown v. Ashton

MOTZ, Judge. This appeal presents questions as to the constitutionality of a juvenile curfew ordinance and civil liability for acts done in enforcing the ordinance. FACTS AND PROCEEDINGS BELOW On June 15, 1978, the Board of Aldermen of the City of Frederick enacted an ordinance aimed at restricting the nighttime activities of persons under 18, within the city limits. The curfew imposed by the Board provides that it is illegal for a “child,” defined as “any person under the age of eighteen (18) years,” to “remain in or upon any public place or any establishment between the hours of 11:59 p.m.

Saturday and 6:00 a.m. Sunday; or between the hours of 11:00 p.m. and 6:00 a.m. of the following day on any other day of the week.” Frederick City Code, §§ 15-9, 15-10 (1991). The ordinance exempts from the curfew children accompanied by a parent or guardian, children “upon an errand directed by” a parent or guardian, children “attending a cultural, scholastic, athletic, or recreational activity supervised by a bona fide organization,” and children who are “engaged in gainful lawful employment during the curfew hours.” § 15-11. In addition, the ordinance makes it illegal for parents and owners and operators of any “establishment” to permit any child not exempted from the curfew to remain in public places during the restricted hours. §§ 15-12, 15-13. “Establishment” is defined as “any privately owned place of business carried on for a profit or any place of amusement or entertainment to which the public is invited.” § 15-9(c).

Finally, the ordinance prescribes the penalties for children, parents, and owners and operators of establishments, which ³⁰ include, inter alia, taking a child into custody, immediate notification of the parents of such custody, and, after the second offense within 12 months, referral of the child to the department of juvenile services. § 15-14(a). Furthermore, any violation by a parent or owner or operator of establishments who has been advised of two prior violations by the same child within a 12-month period constitutes a misdemeanor punishable by a “fine not to exceed one hundréd dollars ($100.00).” § 15-14(b) and (c). 1 In the years following the enactment of the curfew ordinance, it was rarely enforced. During the summer and fall of 1990, however, the Mayor of Frederick, Paul P. Gordon, received complaints regarding the noise level and harassment of passersby in a three-block area of North Market Street in downtown Frederick. Complaints centered on one North Market Street restaurant in particular, the Rainbow Hunan Restaurant (“the Rainbow”).

A Chinese restaurant by day, the Rainbow was rented to a promotor who, on weekend nights, presented musical/dance events there that were attended primarily by African-American youth. According to Mayor Gordon, “Besides individual complaints received from citizens, on at least three occasions a group of residents came to City Hall to complain to the City about noise and loitering problems in the Market Street area, particularly involving the Rainbow Hunan.” In addition, “great concern was shown by citizens as to why the Curfew Ordinance was not more aggressively enforced as a measure to control the noise and loitering problems.” Moreover, “other restaurant owners in the Market Street area were also complaining about these problems and the Rainbow Hunan was mentioned specifically in several complaints,” according to the Mayor. On October 4, 1990, Mayor Gordon called a meeting of owners of restaurants in the North Market Street area, including the owners of the Rainbow. Three “measures of ³¹ controlling the noise and loitering problems” on North Market Street were discussed.

These “measures” were: “the restaurant ownersf] responsibility to control the noise level on the street; their responsibility to control the restaurants’ entrance from becoming a fire hazard; and their responsibility to comply with the laws of Frederick City, including the Curfew Ordinance.” On October 18, 1990, another meeting of restaurant owners was held to discuss strategies for managing the evening crowds on North Market Street. On Friday, October 19, 1990, Mayor Gordon announced at a candidates’ forum that Frederick City police would soon begin enforcing the juvenile curfew ordinance. That announcement was reported in the lead article on the front page of the Frederick News-Post on the morning of October 20, 1990. Enforcement of the curfew ordinance began at 11:59 p.m. on October 20.

At least three checkpoints were planned, 2 one of which was the strip of restaurants on North Market Street that included the Rainbow. Police officers were instructed to “make a reasonable assessment of age” before detaining a young person and thus satisfy themselves that “a reasonable basis existed to conclude there was a curfew violation prior to taking any action.” At about 12:30 a.m. on October 21, several police officers entered the Rainbow, “explained to the owners of the restaurant [their] purposes; and proceeded] to check the age of those patrons who appeared to be minors.” Approximately 28 minors “were detained and led out to a bus waiting outside that had been designated to age verification purposes.” According to the Frederick City Chief of Police, Richard J. Ashton, “this was done in an orderly and peaceful way.” Among those minors escorted out of the Rainbow was Tyeicka Bowens, then 16 years-old, who had been dancing inside. A police officer led Bowens to the bus outside the ³² Rainbow, where her picture was taken and she was restrained with plastic handcuffs. An officer removed the handcuffs after Bowens complained that they were hurting her; she was then transported along with the other youths on the bus to the police station, “where parents or guardians of the detained minors were called to pick them up.” Neither Bowens nor any other minor was formally arrested or placed in cells.

Vanessa Brown was also picked up for violation of the curfew ordinance that night. Brown, who was then 19 years old and six months pregnant, had spent most of the evening at home with her friend Sherry Temple. At around 11:30 p.m., Brown and Temple “decided to ride around downtown”; when they arrived downtown, they decided to go to the Rainbow. Because all of the parking spaces on North Market Street were taken, Brown and Temple parked on another nearby street, and “once out of the car____ began walking to the club.” As they arrived at the entrance of Rainbow, Officer Steve Scalf of the Frederick police department approached them and requested identification.

Scalf was among those police officers charged that night with the task of enforcing the curfew. His job during the earliest hours of October 21 “was to stand outside the Rainbow Hunan Restaurant and Lounge ... and look for curfew violators passing on the street.” At Officer Scalf s request, Temple provided him with her identification documenting that she was over 18 years old. Brown, however, had left her identification at home. Since Brown did not have identification with her, Officer Scalf instructed her to get on the waiting bus and remain there “until her age could be verified.” Brown protested and attempted to get away from Officer Scalf s hold on her arm.

Officer Scalf then led her to the bus with his hand at the back of her neck. Once in the bus, Brown’s picture was taken and she was handcuffed. From inside the bus, she told Temple to go and obtain identification from her mother. Temple and Brown’s mother returned with the identification; after confirming that Brown was over the age restricted by the ³³ curfew, the police released her from the bus.

Approximately 15 to 20 minutes elapsed between the time Officer Scalf first approached her and Brown’s release. After Brown got off the bus, she and her mother complained to Police Chief Ashton about Scalf’s treatment of Brown, and then went to the police station where they repeated their complaint to another police officer. Brown did not, however, seek medical treatment for bruises or file a formal charge or complaint against Scalf. On the evening in question, three other restaurants in the North Market Street area were checked for curfew violators; the record does not reflect whether any violators were found at these other restaurants.

Nor is there any indication in the record as to the race of any of the other alleged violators picked up in and around the Rainbow. The curfew had not been enforced for at least a year prior to October 21, 1990; by the end of 1990, however, according to an affidavit filed by Chief Ashton, “besides the incident complained of in this action, the enforcement of the [curfew ordinance] resulted in approximately 34 arrests, 19 of which were black minors and 15 of which were white minors.” On November 23, 1990, Bowens (by her mother as her next friend) and Brown together filed a multi-count complaint in the Circuit Court for Frederick County against Ashton, Scalf, and the City of Frederick. The plaintiffs alleged the common law torts of negligence, assault and battery, false imprisonment, invasion of privacy, and intentional infliction of emotional distress. They also charged that they had been improperly arrested during the early morning hours of October 21,1990, in contravention of their rights under 42 U.S.C. § 1983 ; the Maryland Constitution; and the First, Fourth, Fifth, Eighth, Thirteenth, and Fourteenth Amendments of the United States Constitution.

Finally, they asserted that the juvenile curfew ordinance under which they were arrested violated the Due Process Clause, Equal Protection Clause, and First Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights. ³⁴ The defendants filed a motion for summary judgment as to each cause of action. On October 3, 1991, the Circuit Court for Frederick County granted the defendants’ motion in its entirety. First, the circuit court held that “there is a clear qualified immunity to the police officers, the City and the Chief on the common law counts.” In support of that finding, the court found that Scalf acted “in the performance of his duty” and that there was “no showing of any malice” or of “any significant misconduct.” Second, the court, after recognizing that intentional infliction of emotional distress was probably the most difficult tort for a plaintiff in Maryland “to prevail on,” held the plaintiffs had failed to allege “the evil intent” or the “nasty action” necessary to state that claim. Third, the court granted summary judgment on the constitutional claims against the defendants because it found: (a) they had probable cause to detain Bowens and Brown, and (b) since there was “neither a suggestion of incompetence nor any knowing violation of the law,” they were immune from liability.

Finally, the court held that the curfew itself was constitutional, because “in its entirety” it was “not unreasonable” but, rather, “reasonably applied” and “not vague.” On appeal, all aspects of the order granting summary judgment are challenged. We address first the constitutionality of the ordinance and then consider the liability of those enforcing it. Because the lower court’s decision involves issues of law, not fact, our review will focus on whether the decision below was legally correct. Heat & Power Corp. v. Air Products & Chemicals, Inc., 320 Md. 584, 592 , 578 A.2d 1202 (1990); King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985).

CONSTITUTIONALITY OF THE ORDINANCE Before considering the specific constitutional challenges to the Frederick ordinance, we briefly consider Maryland statutory and common law on the general subject of juvenile curfew ordinances. Maryland Annotated Code Article 23B, § 22(1) provides: ³⁵ The council [of a municipal corporation, like Frederick] shall have the power to pass all such ordinances not contrary to the Constitution and laws of the State of Maryland or this charter as it may deem necessary for the good government of the town; for the protection of the town’s property, rights and privileges; for the preservation of peace and good order; for securing persons and property from violence, danger, or destruction; and for the protection and promotion of the health, safety, comfort, convenience, welfare, and happiness of the residents of and visitors in the town. Article 23B, §§ 22(2) and (16) provide: (2) Specific powers. — The council shall have, in addition, the power to pass ordinances not contrary to the laws and Constitution of this State, for the specific purposes provided in the remaining subsections of this section. (16) Curfew. — To prohibit the youth of the town from being in the streets, lanes, alleys, or public places at unreasonable hours of the night.

On the basis of these statutes, appellees maintain that, the “City of Frederick has specific authorization to enact curfew ordinances to limit the nighttime activities of minors from the Maryland Legislature” (emphasis added). This argument overlooks the fact that Article 23B, entitled Municipal Corporation Charter, was enacted by the General Assembly simply to serve as a model or guide for municipal corporations in formulating or amending their charters. It is not, and was never intended to be, a grant of power or “specific authorization” by the General Assembly to the municipal corporation. As Judge Eldridge carefully explained in Campbell v. City of Annapolis, 289 Md. 300, 310 , 424 A.2d 738 (1981): As made clear by the title and initial sections of the Act adopting Art. 23B, Chapter 258 of the Acts of 1955, § 1, pp. 375-376, the article is merely a model “for the use of any town desiring to adopt it.” It is not a grant of power by the General Assembly, but the grant of power to the ³⁶ municipal government is by the people of a municipality which chooses to adopt the model.

Thus, neither the City of Frederick, nor any other municipality, has “special authorization” from the General Assembly to enact a juvenile curfew ordinance. Moreover, even if Article 23B did provide this authority, which it does not, by the express terms of Article 23B that authority would have to be exercised in a way “not contrary to the Constitution of Maryland.” Art. 23B, § 22(1). Only once before has the constitutionality of a municipal corporation’s juvenile curfew ordinance been considered by a Maryland appellate court. Accordingly, the Maryland common law on this subject is limited to Thistlewood v. Trial Magistrate for Ocean City, 236 Md. 548 , 204 A.2d 688 (1964).

There, the Court of Appeals upheld the constitutionality of an ordinance that prohibited persons under the age of 21 from remaining on the streets of Ocean City between the hours of 12:01 a.m. and 6:00 a.m. during the four-day Labor Day weekend of 1963. Even though Thistlewood predated the recent avalanche of reported opinions on the question and the elaborate rationales set forth in them, its constitutional analysis is both sensitive and sensible. In Thistlewood , the Court of Appeals reasoned that, in order for a juvenile curfew ordinance to withstand constitutional scrutiny, three criteria must be met: (1) there had to be an evil; (2) the means selected to curb the evil had to bear a “real and substantial relationship” to the result sought; and (3) the means availed of could not unduly infringe upon the “fundamental rights” of those whose conduct was curbed. Thistlewood, 236 Md. at 556 , 204 A.2d 688 . 3 ***⁸ The Court examined the “evil” dealt with by the ³⁷ Ocean City ordinance, i.e., control of disorder amounting almost to riots which had occurred on past Labor Day weekends, and concluded that the short duration curfew “bears a real and substantial relation to the objects sought to be attained.” Id.

The Thistlewood court then proceeded to the third inquiry, “the ultimate and critical question of* whether the means, in view of the evil, unduly affronted the fundamental rights of the minors.” Id. The Court concluded that the “fundamental rights of minors were not affronted or violated by the ordinance” because of “the demonstrated need for emergency use of the curfew in a resort town over Labor Day, the late and relatively short hours of the curfew and the fact that there were only four curfew days, the fact that its limited purpose was to prevent loitering or remaining in public areas, as opposed to merely using them for passage, 4 and, finally, the fact that it was directed only to minors who are peculiarly subject to regulation and control by the State.” 236 Md. at 557 , 204 A.2d 688 . Thus, in Thistlewood , the Court of Appeals held that the juvenile curfew ordinance must not only withstand the ³⁸ “rational basis” test, but also, because it infringed upon “fundamental rights,” must be narrowly drawn to further the asserted governmental purposes. With the principles articulated in Thistlewood in mind, we turn to the constitutional challenges of the Frederick ordinance.

As in most recent cases involving the constitutionality of juvenile curfews, this ordinance is challenged primarily on two grounds. First, the curfew is claimed to infringe upon minors’ “fundamental rights,” or to be “overbroad.” 5 Second,, it is asserted that it is unconstitutionally vague. Fundamental Rights Although, as noted above, there is a plethora of recent reported opinions interpreting juvenile curfew ordinances, one scholar has remarked in epic understatement, “the judiciary has failed to reach a consensus on the validity of these enactments.” Note, Assessing the Constitutional Validity of Juvenile Curfew Statutes, 52 Notre Dame Lawyer 858, 858 (1977) (and cases cited therein). See also Note, Assessing the Scope of Minors’ Fundamental Rights: Juvenile Curfews and the Constitution, 97 Harv.

L.Rev. 1163 (1984) (and cases cited therein). This is somewhat puzzling in light of the fact that in the twenty-five years since Thistlewood was decided, certain critical constitutional principles have become well established. ³⁹ For example, it seems clear now, although it was not when Thistlewood was decided, that if an ordinance such as that imposed upon the children of Frederick were enacted against adults, it would be unconstitutional. That is, a general curfew which, unlike that in Thistlewood , is not compelled by an emergency, nor imposed for a short duration, nor in a very discrete geographical area, could not withstand constitutional scrutiny. This conclusion seems required by Papachristou v. City of Jacksonville, 405 U.S. 156 , 92 S.Ct. 839 , 31 L.Ed.2d 110 (1972).

There, in striking down on vagueness grounds a vagrancy statute, the Supreme Court expressly recognized the fundamental importance of a citizen’s right to move about at will stating that such activities as “night walking,” “loafing,” or “strolling,” while “not mentioned in the Constitution or the Bill of Rights,” are “historically part of the amenities of life as we have known them.” Papachristou, 405 U.S. at 164 , 92 S.Ct. at 844 . “The right to walk the streets, or to meet publicly with one’s friends for a noble purpose or for no purpose at all — and to do so whenever one pleases — is an integral component of life in a free and ordered society.” Id. The source of this right has been variously regarded as the Due Process Clause, People in Interest of J.M., 768 P.2d 219, 221 (Colo.1989); the First Amendment, People v. Chambers, 66 Ill.2d 36 , 4 Ill.Dec. 308, 310 , 360 N.E.2d 55, 57 (1977); the Equal Protection Clause, Allen v. Bordentown City, 216 NJ.Super. 557, 524 A.2d 478, 485 (1987); and the Ninth Amendment, Note, Juvenile Curfew Ordinances and the Constitution, 76 Mich.L.Rev. 109, 118-25 (1977). Whatever its source, this right is now widely regarded as “fundamental.” Accordingly, because a statute infringing upon fundamental rights can survive judicial scrutiny only if narrowly drawn to serve a compelling state interest, see, e.g., Shapiro v. Thompson, 394 U.S. 618, 638 , 89 S.Ct. 1322, 1333 , 22 L.Ed.2d 600 (1969); L. Tribe, American Constitutional Law §§ 16-6 to 7 (2d ed. 1988), and because there appears to be no compelling state interest justifying nonemergency curfews affecting adults, courts ⁴⁰ have held that such statutes cannot survive constitutional challenge. See Ruff v. Marshall, 438 F.Supp. 303 (M.D.Ga. 1977) (holding such a statute unconstitutional); City of Portland v. James, 251 Or. 8 , 444 P.2d 554 (1968) (same); City of Seattle v. Drew, 70 Wash.2d 405 , 423 P.2d 522 (1967) (same); Hayes v. Municipal Court of Oklahoma City, 487 P.2d 974 (Okla.Crim.App.1971) (same); Ames v. City of Hermosa Beach, 16 Cal.App.3d 146 , 93 Cal.Rptr. 786 (1971) (same).

See also Papachristou, 405 U.S. at 164 , 92 S.Ct. at 844 ; Bykofsky, 429 U.S. at 965, 97 S.Ct. at 395 (Marshall, J. dissenting from denial of certiorari) (“[a]bsent a genuine emergency ... a curfew aimed at all citizens could not survive constitutional scrutiny”). Moreover, on numerous occasions since Thistlewood , the Supreme Court has explicitly recognized that “a child, merely on account of [his or her] minority, is not beyond the protection of the Constitution.” Bellotti v. Baird, 443 U.S. 622, 633 , 99 S.Ct. 3035, 3043 , 61 L.Ed.2d 797 , reh’g denied, 444 U.S. 887 , 100 S.Ct. 185 , 62 L.Ed.2d 121 (1979). Accord, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 , 96 S.Ct. 2831, 2843 , 49 L.Ed.2d 788 (1976) (“Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority”); Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 , 95 S.Ct. 2268, 2274-75 , 45 L.Ed.2d 125 (1975) (confirming minors’ access to nonobscene information); Tinker v. Des Moines School Dist., 393 U.S. 503, 514 , 89 S.Ct. 733, 740 , 21 L.Ed.2d 731 (1969) (free expression); In re Gault, 387 U.S. 1, 31-57 , 87 S.Ct. 1428, 1445-59 , 18 L.Ed.2d 527 (1967) (establishing minors’ rights to counsel, notice, confrontation, and cross-examination in juvenile court proceedings). In light of these now established principles, i.e., (1) curfew statutes like that at issue here unconstitutionally burden fundamental constitutional rights of adults; and (2) minors do not lose constitutional rights because of their age, it would seem to follow as a matter of logic that the ⁴¹ Frederick ordinance and all similar juvenile curfew ordinances are unconstitutional.

This “logic,” however, ignores a critical factor, which was recognized by the Thistlewood court, i.e., “the activities and conduct of those under twenty-one may be regulated and restricted to a far greater extent than those of adults.” 236 Md. at 557 , 204 A.2d 688 . This is so, not because constitutional rights become less fundamental when enjoyed by children, Tinker v. Des Moines School Dist., 393 U.S. at 511 , 89 S.Ct. at 739, but because the lack of maturity and judgment of children supplies the government with different and additional compelling interests in regulating their conduct. Bellotti v. Baird, 443 U.S. at 634 , 99 S.Ct. at 3043 . See also, 52 Notre Dame Lawyer at 868 (“the existence of a constitutional right is not affected by the application of that right to either a minor or an adult; the constitutional rights involved in curfew situations exist for all persons regardless of age”; however, “the scope of protection accorded these rights may well depend upon the age of the party allegedly restrained”).

The Supreme Court has recognized three factors that will generally be found to justify differential treatment of the constitutional rights of minors: “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” Bellotti v. Baird, 443 U.S. at 634 , 99 S.Ct. at 3043 (Powell, J. for a four-justice plurality). 6 ⁴² Some courts have concluded that because the government has these different and additional interests in regulating the lives of children, the right of freedom of movement, although “fundamental” to adults, is not “fundamental” to children. See, e.g., Bykofsky v. Borough of Middletown, 401 F.Supp. 1242, 1253-58 (M.D.Pa.1975), aff'd without op., 535 F.2d 1245 (3rd Cir.), cert. denied, 429 U.S. 964 , 97 S.Ct. 394 , 50 L.Ed.2d 333 (1976); People in Interest of J.M., 768 P.2d 219, 223 (Colo.1989) (en banc); City of Panora v. Simmons, 445 N.W.2d 363, 369 (Iowa 1989); People v. Chambers, 4 Ill.Dec. at 310 , 360 N.E.2d at 57 . The seminal case espousing the view is Bykofsky v. Borough of Middle-town, supra. Although lengthy and well intentioned, its analysis is, quite simply, wrong, and has been so recognized by a number of authorities.

See, e.g., Waters v. Barry, 711 F.Supp. 1125, 1136 (D.D.C.1989); City of Panora v. Simmons, 445 N.W.2d at 374 (dissenting opinion of four justices); Note, 97 Harv.L.Rev. at 1166, 1169, 1172 n. 44; Note, 52 Notre Dame Lawyer at 877-78. In Bykofsky , upon which appellees heavily rely, the court expressly recognized that the curfew before it, although narrowly drawn, would nonetheless infringe upon the fundamental rights of adults. 401 F.Supp. at 1254-55 . Yet it concluded that the ordinance affected no fundamental rights of minors and so applied the rational basis test to uphold it. Id. at 1265-66 .

The court reasoned that, because the interests served by the ordinance outweighed any infringement on the rights of minors, the ordinance affected no fundamental rights. Id. See also People in Interest of J.M., 768 P.2d at 221-23 (relying on. Bykofsky to similarly so hold); City of Panora, 445 N.W.2d at 368-69 (same).

As the dissenters remarked in City of Panora , this analysis “was backward.” 445 N.W.2d at 374 . In determining the constitutionality of legislation a court must first determine the applicable level of scrutiny, e.g., strict scrutiny or rational basis, and then determine if there are the necessary governmental interests to sustain the legislation in light of the applicable test. See, e.g., Hombeck v. Somerset Co. ⁴³ Bd. of Educ., 295 Md. 597, 641 , 458 A.2d 758 (1983); Attorney General v. Waldron, 289 Md. 683, 705-06 , 426 A.2d 929 (1981); Village of Deerfield v. Greenberg, 193 Ill.App.3d 215 , 140 Ill.Dec. 530, 534 , 550 N.E.2d 12, 16 (1990); Allen v. Bordentown City, 524 A.2d at 485 . In Bykofsky , the court determined the applicable level of scrutiny by weighing the asserted governmental interests, and then purported to apply the test arrived at by this unorthodox means to uphold the ordinance.

For these reasons, we reject Bykofsky and the cases that have adopted its reasoning. Instead, we examine the three Bellotti factors — the special vulnerability of children, their inability to make critical decisions in a mature manner, and the State’s need to encourage parental control of children 7 — to determine if any one of them provides the compelling interest needed to justify restrictions, like those in the Frederick ordinance, on the fundamental rights of children. One, and only one, court has so held. In City of Milwaukee v. K.F., 145 Wis.2d 24 , 426 N.W.2d 329, 339 (1988), the Supreme Court of Wisconsin, with three justices dissenting, in summary manner concluded that “the interest of the municipality ... in protecting youths and curtailing juvenile crime is compelling and ... the ordinance ... is drawn as narrowly as practicable” and so meets the “strict scrutiny standard requiring a ‘compelling state interest.’ ” Id.

See also ⁴⁴ Bykofsky, 401 F.Supp. at 1258 ; People in Interest of J.M., 768 P.2d at 223 ; City of Panora, 445 N.W.2d at 369 ; City of Eastlake v. Ruggiero, 7 Ohio App.2d 212 , 36 O.O.2d 345 , 220 N.E.2d 126, 129 (1966) (all finding these interests justify juvenile curfews under the rational basis standard). The Wisconsin analysis is so slight that it can hardly be regarded as persuasive. Some of those courts that have used the Bellotti factors to hold that juvenile curfew ordinances have a rational basis, however, do provide more thoughtful discussions of these factors in the context of juvenile curfews. They have noted “the peculiar vulnerability of youngsters to drug usage and sexual contact,” City of Panora, 445 N.W.2d at 369 (citing City of Dallas v. Stanglin, 490 U.S. 19, 27 , 109 S.Ct. 1591, 1596 , 104 L.Ed.2d 18 (1989)), and that “youths abroad at night are more vulnerable to crime and peer pressure than their adult counterparts.” People in Interest of J.M., 768 P.2d at 223 .

See also People v. Chambers, 4 Ill.Dec. at 310 , 360 N.E.2d at 57 (juvenile curfew justified “upon the basic assumption that when a child is at home during the late night and early morning hours, it is protected from physical, as well as moral, dangers”). Children are vulnerable to crime and the emotional trauma it causes, perhaps more vulnerable than adults. But see Waters v. Barry, 711 F.Supp. at 1137 (crime “poses no peculiar damage to children ... violence is ubiquitous; it afflicts all of us”) (emphasis in original). This vulnerability justifies our system of separate juvenile courts to protect children from emotional turmoil associated with crime.

But the efforts of the juvenile courts to shield those involved in the judicial process “are a far cry from blanket restrictions on the liberties of children who face no such predicament.” Note, 97 Harv.L.Rev. at 1175. The Bellotti court itself recognized that, while children can be specially treated to protect them from emotional trauma, with respect to “deprivations of liberty” their rights are “virtually coextensive” with that of adults. 443 U.S. at 634 , 99 S.Ct. at 3043 . Accordingly, we cannot conclude that children’s special vul ⁴⁵ nerability justifies the Frederick ordinance. See Waters v. Barry, 711 F.Supp. at 1137 .

Nor do the other two Bellotti factors justify it. With regard to the children’s inability to make mature decisions, several courts have recognized that the decision to go outside during certain hours does not involve any critical decisions by minors. Johnson v. City of Opelousas, 658 F.2d at 1073; Waters v. Barry, 711 F.Supp. at 1137 . Some courts, however, have concluded that “a child’s immaturity may lead to a decision to commit delinquent acts, such as vandalism, drug or alcohol use, or crimes of violence,” and this provides a rational basis for a juvenile curfew.

People in Interest of J.M., 768 P.2d at 232 . Accord, City of Panora, 445 N.W.2d at 369 . The problem with accepting this rationale as a compelling state interest justifying a juvenile curfew is that whether to commit a crime is not the decision specifically dealt with by a curfew. “Far from addressing a ‘precisely delineated’ set of activities that require children to make critical choices, a curfew prohibits all activities — even nondisruptive and nonharmful ones — in public during certain hours.” Note, 97 Harv.L.Rev. at 1176-77. Properly drafted criminal statutes prohibiting the sale of liquor