After Midnight

A Littleton High School student sues the City of Denver over his right to stay out late.

When Andrew Herm sealed the envelope on his early-decision application to Brown University just over a month ago, he included the usual materials -- test scores, letters of recommendation from teachers, forms detailing his accomplishments as a senior in the top of his class at Littleton High School. But amid the standard paperwork, Herm made a peculiar addition: a small newspaper clipping from USA Today.

The brief article summarized a lawsuit Herm had filed in U.S. District Court claiming that the City of Denver's curfew policy for minors violates both the first and fourteenth amendments to the Constitution of the United States. The kicker? Herm, who is seventeen, plans to represent himself in court if the case ever goes to trial.

"I had a particular teacher when I was a freshman who always said that if you are going to get into a good college, you've got to do something to distinguish yourself from the rest of the applicants," says Herm. "I heard that a couple of weeks ago he was telling some other freshman students the same thing, and he was using me as an example. I thought that was pretty cool."

A curfew good men: Andrew Herm takes Denver to task.
James Bludworth
A curfew good men: Andrew Herm takes Denver to task.

But Herm says his motives for filing the suit are steeped in something deeper than which college sweatshirt he'll don next fall. (A resident of south Denver who attends nearby Littleton High for its academically rigorous International Baccalaureate program, Herm is applying to Vassar, Northwestern, Cornell, Reed and Hampshire in addition to first choice Brown.) Young people, he says, and their parents and guardians have a fundamental right to decide where and when they are allowed to come and go. After all, the First and Fourteenth Amendments, which allow for the peaceful use of public areas, do not specify age.

"The First Amendment protects activities that are forbidden under the Denver curfew," Herm explains. "It is not a city matter. It's something that is broadly sweeping all minors as delinquents, because they think that if they let us out, we are going to go out and commit crimes. The vast majority of kids aren't delinquents, and hanging out is not a crime."

As usual, Herm has done his homework on the subject. In the six months he spent preparing to file the suit, he devoted his free time to researching his case in law libraries and with the help of various online legal and First Amendment sites, as well as the ACLU. He found six instances in which curfews had been challenged in court, in Dallas, San Diego, Seattle, Washington, D.C., Henderson, Kentucky, and Charlottesville, Virginia. In four of those cases, judges sided with the plaintiffs. Herm says the 1997 San Diego case makes him feel pretty confident that he could prevail in his own: With the ACLU serving as plaintiff, a judge ruled that the city's ordinance was too broad and constitutionally vague, and effectively threw it out. The research, Herm says, "was pretty overwhelming. The federal rules of civil procedure that you have to just goes on and on. Hundreds of pages, and it's all in lawyer-speak. I realized why it might actually be useful to go to law school. It would really come in handy in a situation like this."

Herm's interest in Denver's curfew policy sprouted late last summer, when he personally felt the stringency of the restrictions, which require minors to be home between 11 p.m. and 5 a.m. on weeknights and between midnight and 5 a.m. on weekends. "It just started to feel more obvious," he says. "On a school night, you're going to be home at 11 p.m. usually. But on a weekend night in the middle of June, that might not always be the case. I would probably be home at midnight anyway; there's nothing to do at those hours. But the curfew mandates that I can't go for a walk at 1 a.m. if I can't sleep. I can't go lay in a park and watch a comet shower if I want to."

Although Herm is a self-professed night owl who often begins his homework at midnight ("when everyone else is done and I can get online more easily"), his late-night activities usually revolve more around studying than socializing. He himself has never been in trouble for violating curfew, though one or two friends have been cited by police in the past.

But following a discussion with his parents -- Jeff, a corporate attorney, and Judi, a principal at Lawrence Elementary School in Arvada -- Herm began to consider the curfew issue more seriously. He wanted to stay out past curfew one night, and his parents denied him permission, saying they refused to counter the city's rules. "We just kind of started talking about the law, and my father suggested that it might be unconstitutional," Herm says. "That was really all I needed to hear. It was like, 'Okay, it's unconstitutional, and I'm going to prove it.'

"A lot of kids like to complain about this kind of stuff, but they very rarely try to do anything about it," he continues. "After a while, I realized that I could try to change things by doing it on my own rather than trying to go through a campus club or something, because I know the kind of bureaucracy involved and how hard it is to get anything done. I also wanted to take it to a judge so that I could represent my case as it stands, without it being changed or diluted by a city councilperson or someone like that."

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