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After Midnight

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

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."

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 follow...it 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."

So far, the City of Denver doesn't seem to be terribly daunted by Herm's suit. In an abbreviated written response to his claims, filed on November 2, City Attorney J. Wallace Wortham Jr. denies "each and every allegation."

And there are plenty to deny. Herm's complaint states that, in addition to its inherent unconstitutionality, the curfew ordinance is arbitrary in that it lacks standards of enforcement. It further alleges that local police as well minors themselves lack awareness about what activities are actually permissible under it.

While Herm feels that most kids know the particular hours of the curfew, they are less likely to be well versed in the rather confusing list of exceptions: Among other things, the ordinance (which has been on the books since 1994) allows minors out in public after hours if they are accompanied by a parent or guardian, returning from a work, school or official extracurricular activity, or in an emergency situation.

The ordinance also makes an exception for interstate travel -- something Herm seems eager to exploit. "I think that's a funny one," he says. "I don't think a lot of people know that, legally, you can be out after curfew if you are driving to Wyoming to buy fireworks. That has to be in the ordinance because they can't interfere with interstate commerce. I've thought about the amusing implications of that. If you were to be stopped walking, there's really no way for an officer to disprove that you are actually walking to New Mexico to go shopping."

Although no trial date has been set yet, the case had been assigned to U.S. District Judge Richard Matsch. "I am really excited. I think it will be a great time," Herm says. "I plan to walk in there with a huge smirk on my face."

And though Herm will be by himself in front of the bench, he has the support of friends, classmates and teachers who helped him come up with the $150 he needed to file the suit. And soon after his story became public, he received a phone call from the leader of the Filth Utility, a Denver band that offered to put on a benefit concert in his honor. (The show is scheduled for Saturday, November 17, at the Gothic Theatre in Englewood.)

"Most people think it's pretty cool," he says. "I've had a few teachers who are a little skeptical, but maybe they are also a little bit amused by it. It's funny because now everyone is assuming that I'm planning to become a lawyer. I just keep telling them that it's something I'm considering, but I'm not sure yet. For now, law is really just more of a hobby."