In re: Sunrise Galleria Mall
Alternative Proposed Curfew SUNRISE GALLERIA MALL PARENT APPROVAL POLICY To better serve patrons and other visitors, protect property, maintain order, and insure personal safety at the Sunrise Galleria Mall, the following Parent Approval Policy is adopted. 1. Persons under 17 years of age will be denied admission to the Mall after 6:00 pm unless they are EITHER accompanied by a parent or guardian OR have received parental or guardian permission filed with our security staff. 2. Any person under 17 years of age, regardless of race, ancestry, gender, or religious or political beliefs, can gain permission if their parent or guardian files the appropriate form with our security staff. 2. Persons who appear to be under 17 years of age will be approached by Mall employees, at one of the 14 direct access entrances to the facility or in any other portion of the Mall, and be requested to document their age OR provide their name for crosscheck with our security staff’s list of pre-approved entrants. 3. If a person under 17 years of age, who is not pre-approved for entrance after 6:00pm, appears unable to arrange transportation to his or her home or to another place of safety, Mall employees will attempt to contact the individual’s parent or guardian. If no other transportation is available, a Mall Security Officer will escort the individual to a safe location. 4. Parental approval is revocable at any time by the parent or guardian who authorized approval. 5. Any person under 17 years of age with pre-approval to enter after 6:00pm, who is found to be in violation of the Sunrise Galleria Mall’s code of conduct, will have his approval status revoked for up to one year. The person will be given notice of the violation and will have an opportunity to appeal. 6. This policy will not apply to the several magnet stores, restaurants and other retail establishments associated with the Mall and which maintain separate entrances to their
facilities. However, the policy will be enforced at entrances from those facilities into the Mall proper.
Letter to Opposing Counsel
February 24, 2000 Dear Leslie Kelleher, Thank you for your letter regarding the Mall’s new Parent Escort Policy. I have studied your clients concerns and reasons for implementing this new policy. While I sincerely appreciate the Mall’s concerns, I believe the ban to be unconstitutional. I, along with my clients, have discussed the matter and have submitted a new plan which we believe is not only satisfies the constitution, but also meets both the Mall’s needs as well as my clients’. The ban on unaccompanied teenagers is unconstitutional. The ban on unaccompanied teenagers is an unconstitutional violation of Section 1 of the Columbia Constitution as well as the equal protection rights of minors under both the US and Columbia Constitutions. The ban violates sections 1 of the Columbia Constitution Section 1 of the Columbia Constitution states that in the State of Columbia, every person may freely speak, write and publish his or her sentiments on all subjects. A law may not restrain or abridge these rights. The Supreme Court of Columbia has held that unlike the 1st Amendment to the US Constitution, Columbia’s Constitution protects the free speech and petition rights of Columbia citizens even when those rights are exercised in a privately owned shopping center. (see Savage 460). While a shopping center may establish “time, place, and manner,” rules provided that the restrictions are justified without reference to the content of the regulated speech (i.e. content neutral), that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. (see Savage 460-461). Jessica Levi-Strauss, age 16, is covered by the new ban on juveniles from the mall after 6:00pm. Jessica is a volunteer for the Columbia Environmental Action Party. For the past 16 months, Jessica has spent one evening per week distributing political information to patrons of the Mall and trying to get them to register to vote or to switch their party allegiance to the “Green Party”. According to section 1 of the Columbia Constitution, Jessica has a right to free speech. The ban on unaccompanied teenagers restrains Jessica’s right to share her opinions. While the ban appears to be content neutral on its face, in fact it is not. The ban prevents young people from expressing their opinions, while still allowing older people to express theirs. The Supreme Court has
recognized that the First Amendment rights of minors include the freedoms of speech and expression. Furthermore, Jessica’s distribution of materials sends a message stronger than the material itself, a message that young people support the Green Party and that the Green party represents the future. A ban on Jessica’s ability to pass out leaflets is a ban on a message from the Green Party. As a result, the ban is not content neutral and thus violates section 1 of the Columbia Constitution. The ban violates minors’ equal protection rights under the US and Columbia Constitution. The United States Supreme Court has recognized that the freedom to move about is an important and protected liberty. Justice Douglas eloquently stated, “Freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful – knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.” (Hutchins 465) Recent Supreme Court cases have held that the US Constitution affords to minors the same fundamental rights of freedom of movement as those afforded to adults, though still understanding the importance of protecting minors and regulating their activities. As such, the Supreme Court has articulated the appropriate standard: Restrictions that inhibit the fundamental rights of minors are valid only if they serve significant state interests and are narrowly tailored to achieve these interests. I do not doubt that the Sunrise Galleria Mall has a significant interest in preventing crime and victimization, which the Supreme Court has found to be significant. However, the ban is not narrowly tailored to achieve these interests because it fails to include exemptions for legitimate activities undertaken by my clients. The ban prevents Amanda Blake, age 14, from attending her modeling classes and possibly forcing her to abandon a promising career. The ban prevents Michael Stanton, age 15, from gaining the experience and showing his commitment to animals, two major requirements of admission for any veterinary school he may wish to attend. The ban prevents Keisha Malowe, age 13, a musical prodigy, from having a place to practice the piano, given that she cannot afford a piano of her own. The ban prevents Stanley Fink, age 12, from practicing for the swim team. The ban also prevents Marin Dale from delivering his single mother’s work while she is home caring for his three young siblings. As you can see, the Parent Escort Policy is not narrowly tailored to achieve the Mall’s interests of stopping disruptive behavior by juveniles at its facility and thus violates minors protection rights under the US and Columbia Constitution. Our Proposed curfew alternative will pass constitutional scrutiny Our proposed curfew is a win-win situation for both the Mall and young aspiring people like my clients, and will indeed pass constitutional scrutiny. First, the proposal no longer prevents young people from entering the mall after 6:00pm, and can therefore not be considered a content-based ban on the freedom of speech. Under our proposal, Jessica is free to distribute fliers and express her beliefs about the Green Party or any other political party she may wish to support, so long as one of her
parents files the appropriate form approving her entrance into the mall after 6:00pm. In addition, the Green party can continue to have young faces spreading its message. The ban would now only be content-neutral, preventing only those who fail to conform to the Mall’s code of conduct, such as those who disrupt and spit and engage in scavenger hunts, from entering after 6:00pm. This new proposal would no longer prohibit free speech and association in the Mall as is guaranteed by the Columbia Constitution. In addition, our proposal does not violate the equal protection of minors. While still serving the significant state interest of preventing crime and victimization of children, our ban is narrowly tailored to achieve these interests because they provide exemptions for young people like Amanda, Michael, Keisha, Stanley and Marin to move about. Furthermore, our proposed curfew would follow the Supreme Court’s belief that child-rearing is the role of parents. (see Hutchins p. 468). It is up to the parents to decide if their child should be free to move around, while giving the mall’s ability to veto that decision should that parent neglect their child’s behavioral control problems. Our alternative formulation meets the Mall’s needs. The alternative plan does not alienate teenage customers I understand that teenage spending in the US is estimated to be over $100 billion annually and that last year at Sunrise Galleria, almost 20 of the 25 million annual shoppers were in the 17 and under age group. Therefore, I can see how important it would be to the Mall that teenagers not be alienated from shopping at the mall. Our proposal seeks to accomplish this goal more so than the one the Mall is ready to adopt. Instead of sending these young people to different malls or increasing the number of disputes and grudges with the Mall and its security who refuse to let them in, our proposal creates much less hostility with the Mall. If a young person is upset or angered that he or she cannot enter the Mall after 6:00pm, he can take that up with his parents, who are the real decision-makers. Only if the juvenile fails to conform to the decision despite his parents pre-approval will he be denied admission. And at that point, he will only have himself to blame. The alternative plan does not pose a serious challenge to security and order. As you mentioned, many of the teens have adopted the mall as a hangout, cruising the corridors in packs as large as 20, colliding with and intimidating shoppers and engaging in disruptive scavenger hunts. We are sympathetic to these needs and share your concern regarding injuries like the one experienced by the two small children. However, the incident with the children should be considered an isolated event and is no reason to target juveniles for the mall’s security problems. According to the Metropolitan Police Department records, incidents involving those 17 and under accounted for only 30% of all the reported incidents at the Mall last year, and 75% of those are theft-related, primarily shoplifting. Serious crimes against the person involving juveniles were less than 2% of the young people accused of criminal activity last year. Nevertheless, our proposal will improve security and order at the mall by keeping the “bad” kids out. Parents are the best judge of their children, and if they feel they are responsible enough, they can file approval papers with the mall. If they do not, they can refuse to file and the juvenile will be denied access after 6:00pm.
If the juvenile, despite his parents approval, fails to conform to the Mall’s code of conduct, he can have his approval papers revoked and will have to explain his actions to a newly formed board on why he should be allowed to return. At that point, the decision would be up to the mall to allow the child to enter the mall after 6:00pm. This policy would also allow the mall to keep track of those who do cause disturbances in a way a school does with its students. Our proposal prevents challenges to security and order by young people at the Mall without a blanket rule against all young people. Children can learn the rules regarding conduct at the mall from the Conduct Code flyers that are distributed from time to time. You’d still have the Mighty Moms, the Quick Response Team, and the Youth Liaison Officers, along with the security personnel, to patrol the mall and find juveniles who are breaching the code of conduct. Our policy gives these people more power, and possibly will earn them more respect from rowdy teenagers who are in fear of having their approvals revoked. The alternative plan would survive the test of community acceptance and help the Mall remain a family friendly facility. Under our proposal, the Sunrise Galleria Mall can better avoid any more negative publicity like that received after the injuries to those two small children given the security concerns alleviated by the plan in the preceding paragraphs. In fact, under our proposal would likely make the Mall a more family friendly facility, because it would give power over their children back to the parents. They would have the Mall-approval status as another tool of discipline against their children that they feel they are losing control of. How could a community run by adults find a policy that supports their parenting strength to be unacceptable? Also, just think about all the trips to the mall a father or mother may take with his child to sign them up for Post-6pm approval? I believe this policy will enhance the Mall’s acceptance in the community and make it the most family friendly facility in the United States. We do hope that your client will adopt our proposal or at least consider my clients’ concerns before implementing any ban directed at all young people. I am prepared to fight on constitutional grounds any attempt by Sunrise to implement the ban, but I hope it does not come to that. I am sure my clients want to avoid a lawsuit over the matter just as much as your client hopes to avoid any more negative publicity. Thank you for your consideration and I look forward to discussing the matter with you further. Please find attached to this letter our draft of the Parent Escort Policy.
Sincerely, __________________________ Tony Chase, Esq.
Burris, Chase, Kalevitch & Rohr