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Frederick v. Brown

United States District Court, Southern District of Georgia, Augusta Division

May 7, 2015

DAVID FREDERICK, Plaintiff,
v.
DEMOND BROWN, individually and in his capacity as an officer with the Augusta-Richmond County Sheriff's Department, et al., Defendants.

ORDER

J. RANDAL HALL UNITED STATES DISTRICT JUDGE

In 2008, the Augusta-Richmond County Commission enacted a juvenile curfew ordinance ("the Ordinance") that makes it unlawful for "any minor under the age of eighteen (18) years to loiter, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds or other public grounds, public places, public buildings, places of amusement, eating places, vacant lots or any other place in Augusta-Richmond County, unsupervised by an adult" between the hours of midnight and 5:00 AM on Fridays and Saturdays, subject to certain exceptions. Augusta-Richmond County Code § 3-1-2. Among those exceptions is "[w]hen a minor is accompanied by his or her parent, guardian or other adult person having the lawful care and custody of the minor." Id. § 3-1-2 (a) . The Ordinance also makes it "unlawful for the parent, guardian, or other person having custody or control of any child under the age of eighteen (18) to permit, or by insufficient control, to allow, such a child to be in or upon the public streets'7 during the controlled hours. Id. § 3-1-3.

Plaintiff David Frederick alleges the County and eight named officers of its sheriff's department, among others unnamed, deprived him of his First, Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights when he was arrested, purportedly with excessive force, for violating the Ordinance, and seeks to have the Ordinance declared unconstitutional on its face and enjoined because of asserted vagueness and overbreadth. .On April 1, 2015, this Court held a hearing to determine whether Mr. Frederick's facial challenge to the Ordinance is justiciable given that Mr. Frederick, the sole plaintiff in this case, turned eighteen approximately two years prior to filing this suit (see Compl., Doc. 1, ¶ 9).

Thus, at this stage the Court is left only with the pleadings, supplemented by Mr. Frederick's brief - which, the Court notes, is bereft of any argument in support of his invocation of federal jurisdiction or any reference to the facts of his case - from which the Court is asked to pass on the validity of a local law. As the Court cannot determine from the evidence before it whether Mr. Frederick, now 21-years-old, suffered or imminently will suffer an injury under the Ordinance sufficient to ensure that the Court would not be rendering an advisory opinion, the Court declines to address the merits of Mr. Frederick's facial challenge at this time, subject to certain holdings herein.

I. BACKGROUND

According to the Complaint, Mr. Frederick received permission from his mother to attend Augusta, Georgia's First Friday event in June 2 010 with his cousin, Brad Tucker, who was over 18-years-old. (Compl. ¶ 38.) Mr. Frederick was 16 on the night of the incident. (Id. ¶ 36.) While walking on Broad Street after midnight, thereby triggering the Ordinance, several officers confronted Mr. Frederick, purportedly because he threw something on the ground and was part of a group of "black male subjects" who were "yelling and chanting." (Id. ¶¶ 41, 46, 55.) After asking Mr. Frederick's age, Officer Demond Brown searched Mr. Frederick's person, placed him in handcuffs, and informed him that he was going to jail for violating the curfew ordinance. (Id. ¶¶ 56, 57.) None of the officers on the scene asked Mr. Frederick whether he was accompanied by an adult or supervised. (Id. ¶ 45, 58, 59.) Mr. Tucker informed Officer Brown that he was an adult and was "in charge of [Mr. Frederick], " but Officer Brown refused to listen. (Id. ¶¶ 60, 61.) Another officer then grabbed Mr. Tucker's wrist and threatened him with jail. (Id. ¶ 63.) On the way to the police car, while in Officer Rachel Hardin's custody, "one or more Defendants" "tackled" Mr. Frederick to the ground and then punched, kicked, and hit him. (Id. ¶¶ 69, 71-76, 79, 85.) Mr. Frederick thereafter spent time in an outdoor holding area (id. ¶ 87), but it is unclear whether he was issued a citation of any sort or was convicted of any misconduct.

Based on these facts, the Complaint alleges, inter alia, that the Ordinance, "in its entirety" "is unconstitutional on its face or was unconstitutionally applied and was the cause of the illegal seizure and arrest." (Id. ¶¶ 106, 115.) Mr. Frederick claims the Ordinance

• is "unconstitutionally vague by use of the term 'supervise'" (id. ¶ 107);
• is "arbitrary and capricious and deprives citizens such as the Plaintiff and family members and other adults of due process and equal protection" (id. ¶ 108);
• "does not give Plaintiff fair notice of how he is to behave, so that the 'adult' 'supervising' can be said to be adequately supervising to ward off the limiting effect of the curfew" (id. ¶ 109);
• "gives officers unlimited discretion to determine, without fair warning to citizens, that an adult is not properly 'supervising' the associated minor" (id. 111);
• "is too vague" and "does not give citizens reasonable notice of how to protect their freedoms of association, and familial relationships" (id. ¶ 112);
• is "overly broad, and covers all activities protected by the First Amendment and not triggering probable ...

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