Key to Baltimore curfew may lie in Texas example

July 14, 1995|By Norris P. West | Norris P. West,Sun Staff Writer

Where Baltimore failed, Dallas succeeded.

A year before a Frederick ordinance similar to Baltimore's curfew law was thrown out by the Maryland Court of Appeals, a measure in Dallas withstood challenge in the nation's highest court.

Both the Baltimore and Dallas laws would keep minors off the street late at night. Both were adopted because of concern about crimes by and against minors.

But Baltimore patterned its ordinance after the city of Frederick's law, which the Maryland Court of Appeals called too vague when it struck down the legislation June 30.

The law said minors could not be on the streets after 11 p.m. weekdays and midnight weekends unless accompanied by parents, running an errand for parents, working, or attending an event sponsored by a "bona fide organization."

The court said it struck down the law because the term "bona fide" was not defined. Baltimore suspended enforcement of its law last week, largely because it uses the same term.

Baltimore lawmakers are drafting a new ordinance, patterning its exceptions this time on the Dallas model.

Instead of relying on a broad term, the Dallas law contained nine specific exceptions for minors.

They could be out late if: accompanied by a parent or guardian; on an errand for a parent or guardian; coming from work; on an emergency; attending a school, religious or civic function; attending any First Amendment free-speech or free-association function; traveling interstate in a car; on a sidewalk in front of his or a neighbors' house. Minors who are married or have been married also are exempted.

The Dallas law had three things going for it, a city attorney there said: it evolved from a community effort, it contained enough exceptions so that it didn't violate the rights of minors and it closely followed legal precedent for the federal appeals courts in that region.

"This came out of the community," said Donald Postell, executive assistant city attorney in Dallas. "It's not something thought up by politicians, it's not something thought up by lawyers, it's not -- something thought up by police officials."

Despite Dallas' legal triumphs, Baltimore City Solicitor Neal M. Janey cautioned that merely copying that law doesn't mean state and federal courts here will uphold it.

"If we are going to follow the Dallas model, we must do what Dallas did," Mr. Janey said. "We must go through with a thorough City Council process where there are hearings, statistics and experts testifying. If we expect our courts to rely on the 5th U.S. Circuit, the record will probably have to come close to what was done in Texas."

He said the city had to suspend its ordinance immediately to avoid being sued by someone arrested under an unconstitutional law. He said the city should be immune to any suits filed before the Court of Appeals ruling because the constitutionality issue had not been settled.

Christopher Hansen, an American Civil Liberties Union staff lawyer in New York, said broadly worded curfew laws were uniformly struck down by the courts about a decade ago. But measures adopted in recent years that contained exceptions have had mixed results.

Mr. Hansen said the Dallas ordinance could lead to discriminatory enforcement. He expressed concern that police have too much discretion under curfew laws and that it was unfair to place the burden on children to prove whether they fit an exception under a curfew law.

Stuart Comstock Gay, executive director of the Maryland ACLU, said he doubted the city can draft a curfew ordinance that is consistent with both the Declaration of Rights in the state's constitution and the U.S. Constitution.

"Passing any curfew leaves the city open for a constitutional challenge," Mr. Comstock Gay said. "There's no question about that."

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