food for thought

Absent a specific statutory delegation of power to enact curfews,7 Pennsylvania municipalities enact juvenile curfews pursuant to their general police powers8 for the following purposes:
² To reduce juvenile crime and thus promote the community welfare,
² To reduce perpetration of crime on juveniles that may be vulnerable during curfew hours, and
² To promote and support the parent-child relationship and provide an additional layer of supervision when appropriate.
Juvenile curfew ordinances typically have a number of characteristics in common, including an age threshold, a time period within which the regulation applies, exceptions, administrative provisions, and penalties.9
While juvenile curfews in Pennsylvania are prevalent and have not been subject to an inordinate number of court challenges, municipalities and their solicitors should carefully research and draft curfews in a manner designed to weather any number of potential challenges, usually founded on alleged constitutional violations. The need for caution is based on several factors, the foremost of which is that the United States Supreme Court has yet to establish clear guidelines regarding the constitutional validity of juvenile curfews.10

7 There is no current explicit statutory authorization for Pennsylvania municipalities to establish juvenile curfews. Such
authorization exists for emergency curfews. See, e.g., 53 P.S. § 36203 (Third Class City Code, Section 1203) (emergency power
of mayor to declare curfew); 53 P.S. § 46028 (The Borough Code, Section 1028) (emergency power of mayor to declare curfew).
8 Baker’s Appeal, 40 Pa. C.C. 515 (Court of Quarter Sessions of the Peace of Pennsylvania, Dauphin County 1912). In Baker,
the court held that the Borough of Steelton could lawfully enact and enforce a juvenile curfew under its general police powers.
In dismissing the argument that the ordinance unlawfully interfered with parental authority, the court cited Ex parte Crouse,
4 Whart. 9 (Pa. 1839), for the proposition that Pennsylvania law reflects acceptance of the doctrine of parens patriae, literally
“parent of the country,” whereby the government has both the power and the obligation to regulate for persons suffering from
some legal disability, such as minors or the mentally ill. This doctrine remains well established in Pennsylvania law. See, e.g.,
Com. ex rel. Pappert v. TAP Pharmaceutical Products, Inc., 885 A.2d 1127 (Pa. Cmwlth. 2005) (Pennsylvania Attorney General had
parens patriae standing to sue pharmaceutical companies for inflated prices on behalf of Pennsylvania consumers).
9 Municipal juvenile curfews often contain provisions requiring the temporary detention of minors. Municipalities must take
care to draft any ordinance provisions that involve the detention of minors in a manner that conforms with Chapter 63
(Juvenile Matters) of Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, a statutory structure
that tracks the core requirements of the federal Juvenile Justice and Delinquency Prevention Act of 2002, 42 U.S.C.A.
§ 5601 et seq. The acts are designed to prohibit detention of juveniles in adult lock-ups and provide other specific limitations
on the time, place, and manner of juvenile confinement.
10 The state of Pennsylvania federal case law on this issue is also questionable. Pennsylvania was the first state to entertain a
federal court challenge of a curfew in Bykofsky v. Borough of Middletown, 401 F.Supp. 1242 (M.D. Pa. 1975), aff’d without opinion,
535 F.2d 1245 (3d. Cir. 1975) (table), cert. denied, 429 U.S. 964 (1976). In this case, the federal District Court for the Middle
District of Pennsylvania upheld the Middletown curfew as constitutional pursuant to a more relaxed, less stringent judicial
review. The case was affirmed without opinion by the Third Circuit Court of Appeals, and the United States Supreme Court
declined to review the case. The latest Pennsylvania federal court decision of prominence in the field of juvenile curfews is
Gaffney v. City of Allentown, 1997 WL 597989 (E.D. Pa. Sept. 17, 1997) wherein the federal district court for the Eastern District
of Pennsylvania struck down the curfew ordinance of the City of Allentown. In this case the court held that the “right to roam
freely” is a fundamental right under the United States Constitution. The court applied a test established by the United States
Supreme Court case of Bellotti v. Baird, 443 U.S. 622 (1979), to hold that, in the case of the juvenile curfew, there is insufficient
justification to treat the constitutional rights of minors differently than those of adults. The court, in applying strict scrutiny,
persuasively proclaimed that it “joined . . . every other federal court that has recently reviewed a curfew.” Gaffney, 1997 WL
597989 at *5. However, because Gaffney has limited legal precedential value and Bykofsky is arguably outdated because it was
decided prior to Bellotti, it is difficult to determine exactly how any given court will examine a challenge to a municipal
juvenile curfew.

Source.