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January 22, 1996

GABRIEL NUNEZ, et al, Plaintiff,
THE CITY OF SAN DIEGO, SUSAN GOLDING, in her official capacity as Mayor of the City of San Diego, JERRY SANDERS, in his official capacity as Chief of Police for the City of San Diego, Defendant.

The opinion of the court was delivered by: HUFF

 On March 15, 1995, plaintiffs filed suit against the City of San Diego, the City's mayor, Susan Golding, and Chief of Police, Jerry Sanders. They challenge the constitutionality of Article 8, section 58.01 of the San Diego Municipal Code. Plaintiffs charge that the Ordinance violates their (1) Fifth and Fourteenth Amendment rights to due process, equal protection, privacy, and travel; (2) Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures; and (3) First and Fourteenth Amendment rights to free speech, association, and exercise of religion. Defendants and the American Alliance for Rights and Responsibilities, amicus curiae, oppose plaintiffs' challenge.

 The parties have filed cross motions for summary judgment. Plaintiffs and defendants agree that the case presents a question of law -- the constitutionality of the Ordinance. After reviewing the papers submitted by the parties and considering the oral argument presented to the court, the court finds that the Ordinance does not abridge plaintiffs' rights as guaranteed by the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. First, the court finds the terms employed by the City in the Ordinance are not unconstitutionally vague.

 Second, the statute is not overbroad. To the extent that overbreadth analysis is appropriate in this case, the court finds that the statute does not abridge directly any First Amendment freedoms. To the extent that a minor's speech or associational rights are restricted incidentally by the curfew, the court finds the limitation to be reasonable with regard to time, place and manner.

 Third, the court finds that section 58.01 does not violate minors' rights to equal protection. Even assuming that minors possess the fundamental right to travel freely in the public forum, the court finds that the City of San Diego possesses a compelling interest in ensuring the welfare of minors. In particular, the City maintains a compelling interest in protecting juveniles from the dangers attendant to unsupervised late night activities, as well as protecting society from the dangers some minors pose during the same time. In pursuit of this end, the court finds section 58.01 narrowly tailored.

 Fourth, the Ordinance does not infringe upon minors' Fourth Amendment freedoms from unreasonable searches and seizures. Fifth and finally, the curfew does not abridge the parental rights to raise their children autonomously. Although parents possess such rights, these liberty interests are not absolute. The court finds the limited intrusion into this area of constitutional protection to be reasonable and justified under the circumstances. Consequently, the court grants summary judgment on behalf of defendants and denies summary judgment as requested by plaintiffs.


 Article 8, section 58.01 of the San Diego Municipal Code sets a curfew for all persons under the age of 18. San Diego Municipal Code section 58.01 provides:

It shall be unlawful for any minor under the age of eighteen (18) years, to loiter, idle, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, wharves, docks, or other public grounds, public places and public buildings, places of amusement and entertainment, vacant lots, or other unsupervised places, between the hours of ten o'clock P.M. and daylight immediately following; provided, however, that the provisions of this section do not apply when the minor is accompanied by his or her parents, guardian, or other adult person having the care and custody of the minor, or when the minor is upon an emergency errand directed by his or her parent or guardian or other adult person having the care and custody of the minor, or when the minor is returning directly home from a meeting, entertainment or recreational activity directed, supervised or sponsored by the local educational authorities, or when the presence of such minor in said place or places is connected with and required by some legitimate business, trade, profession or occupation in which said minor is lawfully engaged.

 The Ordinance specifies that, in public places in San Diego, unsupervised minors may not "loiter, idle, wander, stroll or play" after 10 p.m. The Ordinance includes three statutory defenses to its mandate; unsupervised minors may use the public forum after 10 p.m. when (1) running an emergency errand as directed by his or her parent or guardian, (2) returning directly home from an activity sponsored by local educational authorities, and (3) the minor's presence at the particular location is connected with and required by the minor's job. SAN DIEGO MUNICIPAL CODE, ART. 8, § 58.01. A violation of section 58.01 constitutes a misdemeanor and subjects the offender to the jurisdiction of the Juvenile Court. SAN DIEGO MUNICIPAL CODE, ART. 8, § 58.01.2. In addition, a parent or guardian who permits his or her charge to violate the Ordinance may suffer a criminal conviction. SAN DIEGO MUNICIPAL CODE, ART. 8, § 58.01.1.


 Plaintiffs' attack on the municipal ordinance contains five essential elements. First, plaintiffs claim that the Ordinance infringes upon their First and Fourteenth Amendment rights; they assert that they maintain legitimate activities during the curfew hours and the curfew precludes the continuation of these legitimate activities. From this position, plaintiffs claim that the statute is unconstitutionally overbroad. Next, plaintiffs assert that the Ordinance violates minors' fundamental rights, and in so doing, fails under the Fourteenth Amendment's strict scrutiny analysis. In their third argument, plaintiffs challenge the Ordinance under the Fourth Amendment. They claim that the legislation subjects minors and near-minors to unreasonable searches and seizures in contravention of the Constitution's protection. Fourth, plaintiffs who are parents of minors argue that the Ordinance transgresses their privacy rights as parents. Fifth and finally, plaintiffs challenge the Ordinance as being void for vagueness.

 Preliminarily, the court notes that plaintiffs challenge the Ordinance on its face. They neither assert nor submit evidence regarding an unlawful enforcement of the statute. In fact, plaintiffs agree that the court should look past the enforcement efforts and evaluate the Ordinance alone. Accordingly, the court reviews the statute to determine whether, on its face, it abrogates individual rights as plaintiffs' claim.

 I. Procedural Due Process

 A. The Vagueness Doctrine

 The constitutional guarantee of due process embodied in the Fourteenth Amendment requires the legislature to define laws with "sufficient definiteness that ordinary people can understand what conduct is prohibited." Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983). This guarantee provides the public with an understanding of what conduct violates the law and inhibits the police from engaging in arbitrary and discriminatory enforcement. Id.; see Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). Challenging the Ordinance under the vagueness doctrine, plaintiffs argue that the section 58.01 requires persons of ordinary intelligence to guess at its meaning. The court disagrees.

 The thrust of plaintiffs' attack on the statute's language concerns the terms "loiter, idle, wander, stroll, or play." They rely on Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972) in support of that position. In Papachristou, the Supreme Court struck down on vagueness grounds an ordinance that made it illegal to be a vagrant. Id., 405 U.S. at 156-157, & n 1. Vagrants were defined as, inter alia, "common night walkers . . . [and] persons wandering or strolling around from place to place without any lawful purpose or object." Id., 405 U.S. at 157 & n. 1, 163. The Supreme Court found that this part of the Florida ordinance cast an overly broad net in order "to increase the arsenal of the police." Id., 405 U.S. at 165.

 Section 58.01 differs greatly from the ordinance at issue in Papachristou.1 First, section 58.01 is not an anti-vagrancy statute; it is a curfew for children. The Florida statute was used as a police tool to determine which people could walk outside at night and which individuals could not. Papachristou, 405 U.S. at 165-169. In contrast, the San Diego ordinance aims at keeping all unsupervised minors, and only unsupervised minors, from hanging out aimlessly in public after 10:00 p.m. The City Council employed terms with sufficient clarity in section 58.01 to achieve that goal. To "loiter, idle, wander, stroll, or play" in a public area requires a degree of aimlessness. Under section 58.01, walking to the store to make a purchase or walking to one's car to drive home do not constitute illegal actions. The Ordinance makes illegal the recreational activities of strolling, wandering, idling, playing and loitering.

 The court rejects plaintiffs' assertions that the exceptions contained in Section 58.01 broaden the meanings of "loiter, idle, wander, stroll, [and] play." The emergency errand, employment, and school activity exceptions constitute three specific statutory defenses; they illustrate the narrow focus of the curfew's prohibitions. Those exceptions, however, do not expand the meaning of "loiter, idle, wander, stroll, [and] play." Because the ordinance is "readily susceptible" to the construction set forth above, it is this court's duty to uphold the statute. See Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 98 L. Ed. 2d 782, 108 S. Ct. 636 (1988). The court need not rewrite the Ordinance "to conform it to constitutional requirements." Id.

 In fact, the Supreme Court's decision in Kolender reflects the propriety of words such as "loiter" and wander. Kolender, 461 U.S. at 353-54. In Kolender, the Court struck down a statute that defined a misdemeanor as follows:

Every person . . . who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable person ...

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