IN RE: A. G. (2010)

to travel to or from those activities except when accompanied by an adult.⁷  Finally, the ordinance contains no “going to or coming home from” exemption that would permit a minor safely to pass from one exempt location to another, which circumscribes a minor's ability to attend activities like an evening study group hosted in a fellow student's home (or even a social occasion at that home) and limits the minor to attending those events only when the minor is certain the work (or festivities) will end with enough time to allow the minor's pre-curfew return home.   Thus, the ordinance sweeps within its ambit entirely benign (or even laudable) conduct, and the People offer no articulation of how circumscribing such benign conduct directly and materially furthers the underlying governmental interests of preventing crime and victimization.

At least three other courts, applying the same intermediate scrutiny to curfew ordinances that we employ here, have concluded the ordinances were invalid.   (See Hodgkins, supra, 355 F.3d 1048;  Ramos, supra, 353 F.3d 171;  Anonymous, supra, 13 N.Y.3d 35.)   Although the ordinances considered by those courts contained slight variations, and the rationales of those courts for invalidating the ordinances contain elements not germane here, they have expressed at least some level of concern that the ordinance either imposed restrictions that left inadequate breathing room for the exercise of First Amendment rights (see Hodgkins, supra, 355 F.3d at p. 1064 [only way for minor to avoid risk of arrest under curfew law while exercising First Amendment rights was to find adult to accompany him and “[t]o condition the exercise of First Amendment rights on the willingness of an adult to chaperone is to curtail them”] ), or that the restrictions imposed on minors were not limited to those types of conduct that had a reasonably tight nexus to the underlying goals of the ordinance.  (See, e.g., Ramos, supra, 353 F.3d at pp. 183-187;  Anonymous, supra, 13 N.Y.3d at pp. 48-51.)   The San Diego curfew ordinance suffers from both defects:  it imposes de facto restrictions on or conditions to the exercise of First Amendment rights (as well as restricting or conditioning the minor's ability to attend certain official school, religious, or other recreational activities), and it restricts the minor's ability to engage in activities after 10:00 p.m. in otherwise safe (and potentially supervised) environments without any suggestion that going directly to (or returning directly home from) those locales implicates the juvenile crime and juvenile victimization goals of the ordinance.

We conclude that, although a more narrowly tailored curfew ordinance is within the legislative prerogative, the present ordinance “sweeps too broadly and includes within its ambit” “otherwise innocent and legal conduct by minors even when they have the permission of their parents.”  (State v. J.P., supra, 907 So.2d at p. 1117.)   We conclude the San Diego curfew ordinance is unconstitutional, and therefore we vacate the true finding entered below.

DISPOSITION

The true finding that A.G. violated San Diego Municipal Code section 58.0102 is reversed.   In all other respects the judgment is affirmed.

CERTIFIED FOR PUBLICATION

WE CONCUR:

McDONALD, J.

HUFFMAN, Acting P. J. NARES, J.