QuestionIs the curfew in Baltimore legal?
Hopes&Fears answers questions with the help of people who know what they're talking about. We asked several lawyers whether the curfew in Baltimore is actually legal according to the US Constitution.
Earlier this morning, the state attorney of Baltimore, Marilyn J. Mosby, has ruled the death of Freddie Gray a homicide. She described "repeated mistreatment of Mr. Gray" at the hands of the cops and concluded that he "suffered a severe and critical neck injury as a result of being handcuffed, shackled by his feet and unrestrained inside of the BPD wagon." The six police officers involved are being charged with murder and manslaughter and warrants for their arrests have been issued.
Following Gray's funeral on April 24th, anti-police brutality protests had errupted all over the city. At some point, some of the protestors had turned violent. A state of emergency was declared in the city. National Guard troops were deployed (for the first time since 1968, when Martin Luther King Jr was assassinated). A city-wide curfew has been declared. No-one is allowed to be out on the street between 10pm and 5am, except for emergency workers and people who are going to class or work. The curfew is in effect through May 4th, which includes this weekend.
Several activists groups and the American Civil Liberties Union have asked the government to end the curfew, citing their Constitutional rights. In general, and specifically in the case of Baltimore, is a curfew legal?
A civil rights and civil liberties lawyer, practices constitutional law, First Amendment, human rights cases and litigation against city, state and federal governments; former director of New York Civil Liberties Union (NYCLU)
Curfews are generally propelled by the courts. In some instances they’re not upheld. The government needs to provide a compelling government interest which is usually safety concerns or lack of resources. A good example would be curfews in city parks. For instance, Central Park; you can’t be in the park after 1AM and the government argues that they have to be concerned about safety issues and they don’t have enough police presence to staff the parks.
In the situation in Baltimore, because of the violence, if I was a lawyer for the city government I would argue that this created a situation of public safety that they therefore had to impose a curfew. And I would think that the courts would probably uphold it. In regards to today’s decision by the State Attorney Marilyn Mosey, I would think that there would be less of that possibility [of violence] so if they extended the curfew for, let’s say, another week or two I think the ACLU could go in and challenge the argument that there’s a compelling government interest, because it would seem to me that the threat of violence would be abated now.
The ACLU might have a good possibility of getting a Federal Court to not allow the curfew to be extended that far, or more likely filing a lawsuit might get Baltimore to lift it. I think to a great extent it’s fact-based, and I would look to see what happens tonight; if there’s no violence or looting, I think that would enhance the ACLU’s to request for the curfew to be lifted. In my experience, if you actually file the papers in court, the city begins to realize maybe they won’t be able to demonstrate the compelling government interest and therefore they lift it or modify it.
Excerpt from ACLU's letter
to Mayor of Baltimore, Stephanie Rawlings-Blake
Read the full letter here (PDF).
We share the goal of ensuring the safety and welfare of all persons and businesses in Baltimore. But we believe that at this time, the curfew is continuing at the expense of Baltimore residents’ constitutional freedoms. We commend your expressed willingness to end the curfew early if “calm and order” are restored. We think it is clear that these conditions have now been met such that the curfew is no longer serving its intended purpose, and we urge you to lift it...
American criminal defense and civil rights lawyer, radio talk show host and TV commentator
Unfortunately, the answer is "sometimes." If the one in Baltimore is unlawful, you can use that as a defense to being charged with violation of curfew.
Maybe you can sue for damages. But it takes affirmative litigation (going into court and getting an injunction) to stop it.
Harvard-trained small business and entertainment attorney, public service organization leader, owner of Brooklyn Creative Legal
Challenges to curfews are frequently grounded in the First, Fourth, Ninth, and Fourteenth Amendments to the U.S. Constitution. In theory, curfews may violate individuals' First Amendment rights to freedom of speech and freedom of association or assembly. They may violate the Fourth Amendment by subjecting those who violate the curfew to arrest or search and seizure without probable cause. It has also been argued that curfews violate privacy rights under the Ninth Amendment in that they, when applied to juveniles, conflict with parents' rights to raise their children as they see fit. Finally, curfews have been challenged under the Fourteenth Amendment where the curfew discriminates on the basis of age or has a disparate impact on minorities.
Because a curfew may infringe upon Constitutional rights, courts will require that the curfew be narrowly tailored to achieve a compelling government interest and that there be no less restrictive means of accomplishing that interest. This level of review is called "strict scrutiny" and it is triggered in most cases where governmental action is alleged to infringe upon citizens' Constitutional rights.
Governmental institutions will often seek to justify their actions by providing both justifications for and exceptions to the curfew in the legislation authorizing the curfew. They may justify their actions by providing data on the frequency, location, timing, and demographic information regarding crime in the area. This information is used to prove that there is a "compelling governmental interest" in instituting a curfew. If this interest is proved, a court reviewing a curfew will next look to see if the curfew is "narrowly tailored." Under strict scrutiny, an act taken to promote a "compelling government interest" is only valid if it is also the least restrictive means of achieving that interest. Governments will therefore frequently provide a number of exceptions in the curfew legislation. These exceptions may permit violation of the curfew in cases where citizens need to travel for work, church, civic events or medical emergencies. These exceptions are how governmental institutions are able to ensure that their intrusion upon citizens' Constitutional rights are as limited and narrow as possible.
In Baltimore, Mayor Stephanie Rawlings-Blake has instituted a general curfew that also has a provision which addresses youth specifically. The text of the curfew lists the "riots" as a threat to public peace and safety. That is the "compelling governmental interest." The curfew is the means of achieving public peace and safety. The legislation authorizing the curfew also provides exceptions for travel to work, school, church, or civic events. This how the government ensures their curfew is "narrowly tailored." A challenge to the Baltimore curfew would have to rest on one of the Constitutional Amendments listed above or argue that the curfew law is unconstitutionally vague. From there, a reviewing judicial body would review the law under the "strict scrutiny" standard. There is an argument to be made, but similar curfews have been upheld around the country even absent public unrest. They're never a good look, but curfews aren't automatically illegal in the U.S. -- even when they infringe upon our Constitutional rights.
ILLUSTRATION: Nick Treptsov