Let's Pass a Law . . . Just in Case

So, is there a juvenile crime wave in Bedford that is driving the Council's determination to support a juvenile daytime curfew? That is a legitimate question, and one that might be on your mind about now.

The simple answer is no. The not-so-simple answer is also no.

Even Bedford Police Chief David Flory admitted this: "We don't have a huge problem of running across kids in the afternoon." (Star-Telegram, October 4, 2008.)

Why, then, would he and the Bedford City Council support a restrictive ordinance to handle a non-problem?

During a work session on December 16, 2008, the Bedford police chief stated that law enforcement officers already have the authority to stop anyone they want for any reason, with only reasonable suspicion. This is true, so why do they need the curfew?

Let's have a crash course in Law Enforcement 101.

According to a 1968 Supreme Court ruling (Terry vs. Ohio, 1968), police officers have the authority to stop anyone, including minors, if the officer has "reasonable suspicion"; that is, he reasonably believes, based on the circumstances, that a crime has been committed, is being committed, or soon will be committed. Such suspicion is not to be based on a mere hunch.

These "stops" (siezures of persons) are also known as "Terry Stops," Police officers must only establish "reasonable suspicion," to conduct these stops; this is a lesser standard of evidence than "probable cause," which is what is required for an officer to make an arrest.

During a "stop," the officer can either physically lay hands on an individual for the purpose of detaining him, or use a "show of authority" (through his look, demeanor, and display of authority) to cause an individual to submit, or at least acquiesce, to that show of authority; to cause the person to believe that he has been seized; to cause the person to feel compelled to cooperate; or to cause the person to feel unfree to leave.

By contrast, the juvenile daytime curfew ordinance makes the very act of being in public a crime. An officer only has to establish that 1) an individual looks young and 2) he is out in public. That is all the evidence needed for an officer to establish "probable cause" that a crime is being committed. No real crime has to be committed other than the crime of being outside of the house. Probable cause is the higher evidence standard necessary for a police officer to arrest an individual, conduct a personal or property search, or to obtain a warrant for arrest.

The Bedford daytime curfew states that "a minor commits an offense if the minor remains, walks, runs, idles, wanders, strolls, or aimlessly drives or rides about in or about a public place between 9:00 a.m. and 2:30 p.m. on Monday, Tuesday, Wednesday, Thursday or Friday."

However, a police officer already has the justification (without the curfew) to stop someone who exhibits any of the following behaviors:

1. Appears not to fit the time or place.
2. Matches the description on a "Wanted" flier.
3. Acts strangely, or is emotional, angry, fearful, or intoxicated.
4. Loitering, or looking for something.
5. Running away or engaging in furtive movements.
6. Present in a crime scene area.
7. Present in a high-crime area (not sufficient by itself or with loitering)

A minor out in public during school hours might fit the descriptions of 1, 3, 4, 5, or even 6 and 7 if their actions give a police officer reason to suspect that they might be involved in a criminal action.

The curfew, on the other hand, makes the very act of "being in public" suspicious behavior and adds several more broadly-interpreted descriptions that go above and beyond those 7 descriptions referenced above. The curfew gives police officers much more latitude to make a stop, even though there might not be any evidence at all to suggest that a crime is being committed, is about to be committed, or has been committed. Again, the "being in public" is the crime.

Because daytime curfew violators give police officers the ability to make a valid stop without any suspicion of an actual crime (being in public is the crime that validates the stop) an officer can also frisk that individual if any of the following situations exists:

1. Concern for the safety of the officer or of others.
2. Suspicion the suspect is armed and dangerous.
3. Suspicion the suspect is about to commit a crime where a weapon is commonly used.
4. Officer is alone and backup has not arrived.
5. Number of suspects and their physical size.
6. Behavior, emotional state, and/or look of suspects.
7. Suspect gave evasive answers during the initial stop.
8. Time of day and/or geographical surroundings (not sufficient by themselves to justify frisk).

To summarize, the daytime curfew is not needed for police to do their job in enforcing criminal statutes already on the books. What the curfew does is create a short-cut to probable cause, by allowing law enforcement officers to stop any young-looking person who is out in public during curfew hours, whether or not there is evidence or suspicion that an actual crime is being, has been, or will be committed.

Let's review.

First, the curfew is a short-cut to probable cause by making "being in public" a crime. The curfew specifies that a minor 17 and under who is out in public is in violation of the ordinance. Minors out in public are committing a crime, according to the curfew; so instead of having "reasonable suspicion" to believe that a crime may have been committed, or about to be committed, police can instead establish the higher level of proof necessary for an arrest: "probable cause that a crime has been committed"; the crime is being outside of the house.

Second, the curfew makes being "young-looking" and "in public" during curfew hours a crime. What does young look like? Can you tell a 17 year old when you see one? Businesses that sell alcohol and cigarettes have a difficult time with this; therefore, many have adopted the policy of asking for identification from anyone who appears "younger than 30." The curfew ordinance could impact those over 17 who have a youthful appearance, causing those individuals to be treated like criminals just for being out in public.

So, why does the Council and police chief support an ordinance which gives police broad powers to potentially harass any young-looking person out in public during curfew hours?

Part of the answer can be found in the last half of the the Bedford Police Chief's quote: "But this [daytime curfew ordinance] gives us a means to deal with kids when they are absent from school." To him, the curfew is "just another tool" to deal with kids out on the street during school hours.

But, wait. They don't need daytime curfews to "deal with kids when they are absent from school." You see, the HEB-ISD already has a way to combat truancy issues, and that is to aggressively enforce the compulsory attendance laws that are already in effect. Texas statutes give school districts everything they need to effectively enforce compulsory attendance laws; and what's more, these statutes incorporate due process so that the rights of all citizens, students and parents included, are protected.

In fact, in 2007, the Texas legislature made it even easier for police to help districts enforce the compulsory attendance statute by amending the Family Code, Section 52.01, Subsection (e) to allow law enforcement officers to return a truant child to his school (HB 2237 and HB 776). This change undermines the argument that daytime curfews are needed to give police the authority to stop children during school hours.

What's more, the HEB-ISD has roll books, and they take attendance each day school is in session. The district knows which kids are present and which are absent. This makes it very easy to specifically target children who are out playing hooky without infringing on the rights of so many other students who have a legitimate reason to be out in public, but who are not enrolled in the HEB-ISD or follow the school district's schedule.

The juvenile daytime curfew ordinance is too broad, does not specifically target children of compulsory attendance age, applies to anyone who looks young regardless of any other suspicious behavior, and criminalizes stepping out of the house.

It's just bad law. Certainly not one we want to have around just in case law enforcement decides it needs another tool.