Franklin has agreed to stop enforcing its curfew ordinance, but wants state lawmakers and the attorney general to help craft legislation that would survive a legal challenge in the future.
The ACLU-NH issued the following news release with an attached statement from the attorney representing Franklin on the issue of curfews Wednesday morning. InDepthNH.org will publish the original news releases in matters of public interest whenever possible. The Franklin statement is posted below the ACLU-NH statement.
ACLU-NH — Today, the City of Franklin agreed to no longer enforce its juvenile curfew ordinance given the constitutional concerns raised by the ACLU of NH. The City of Franklin’s statement is attached. The ACLU-NH commends the City for taking this action and appreciates the City’s thoughtful consideration of the constitutional issues raised.
As the ACLU-NH explained, the ordinance raised serious civil liberties concerns and ran contrary to two federal court decisions striking down similar juvenile curfew ordinances in the City of Keene. As the court recognized in the Keene decisions, juvenile curfew ordinances prohibit perfectly innocent, and sometimes even valued, conduct. For example, the Franklin ordinance would have banned a 15-year-old from running an errand for his mom, who has to stay home to take care of a much younger sibling, at 9:30 p.m. on a Thursday night. It would also have prohibited a 13-year-old from walking the family dog on the street at 9:15 p.m. on a Tuesday before he goes to bed. Rather than banning this innocent behavior, municipalities can address their public safety concerns by enforcing existing criminal laws. While the ACLU-NH recognizes the City of Franklin’s valid public safety concerns, parents and guardians are in the best position to know when children should be home, not the government.
Attachment from Franklin City Council’s attorney Paul Fitzgerald
FRANKLIN MAYOR AND COUNCIL STATEMENT REGARDING CURFEW ORDINANCE
At the September 8th meeting of the Franklin City Council it was decided that steps would be taken that would lead to the enforcement of the Franklin curfew ordinance that requires minors under sixteen (16) years of age to be off the public streets between 9:00 p.m. and 5:00 a.m. on week nights and 11:00 p.m. and 5:00 a.m. on weekends, with certain exceptions. Since that date, the Council’s actions and the ability to enforce the curfew ordinance have been called into question, primarily by representatives of the American Civil Liberties Union of New Hampshire. It is clear that organization was and is prepared to initiate a lawsuit of some nature against the City seeking to prevent the enforcement of the ordinance and perhaps seeking some form of monetary damages against the City. The Council is also cognizant that a similar ordinance in the City of Keene was previously declared illegal based upon constitutional questions even though that ordinance, like Franklin’s, was based upon a statute enacted by the New Hampshire Legislature. During the three decades that have passed since that decision the State Legislature has taken no action to address the situation.
It should not fall upon the citizens of the City of Franklin to bear the expense of a defense of an ordinance based upon a plainly worded state statute nor should the implementation of such an ordinance result in potential exposure of the City to a claim for financial damages by those claiming to be adversely affected by the ordinance. Consequently, the Council regrets to announce that based upon legal advice received from the City attorney the ordinance will not be enforced for the foreseeable future. However, in an effort to act positively into this situation and to advance the goal of reducing both juvenile crime and juvenile victimization, we are calling upon the Franklin legislative delegation and state senate representative to initiate action at the state level that would result in New Hampshire municipalities being able to adopt a local curfew ordinance designed to successfully survive legal challenges. We firmly believe that the Legislature, with appropriate assistance from the Office of the Attorney General, can address this issue for the safety and betterment of the State’s citizenry, particularly our juvenile population.