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INSIGHT: Curfew Orders Face Scrutiny, Present Legal Challenges

June 25, 2020, 8:01 AM

In the wake of protests following the death of George Floyd, governments across the country, including those in California, instituted curfew orders. The decision to impose a curfew is a serious one, implicating core constitutional rights and unsurprisingly, curfew orders face scrutiny.

This article offers a brief overview of the legal authorities most relevant to curfew orders, including the freedoms of speech, assembly and movement, with a specific emphasis on California.

California Emergency Services Act

In California, a curfew order must satisfy the California Emergency Services Act (CESA). Under the CESA, the order should extend as far as the emergency it seeks to address. Orders may be instituted during extreme peril to the safety of persons and property within the territorial limits of a county, city and county, or city. The CESA specifically identifies civil unrest resulting in a riot as an illustrative example of extreme peril.

In cases of extreme peril, governments may promulgate orders necessary to provide for the protection of life and property, including imposing a curfew within designated boundaries. However, the authority of government is not unfettered. Overbroad orders that extend restrictions to areas that are not in, or at risk of, extreme peril are more susceptible to litigation.

In the past, local governments have successfully defended their right to issue curfew orders under the CESA, although the scope of an order largely determines its legality. For instance, during the 1992 Los Angeles Riots, Long Beach imposed curfew regulations, subject to criminal sanctions, following reported cases of looting, assault, and homicide.

The regulations were challenged as unconstitutionally overbroad and unreasonably restrictive of personal rights and liberties. In re Juan C., 28 Cal. App. 4th 1093, 1098-1100 (1994). However, a state appellate court upheld the curfew order, explaining “[t]he desire for free and unfettered discussion and movement must be balanced against the desire to protect and preserve life and property from destruction.”

Freedom of Speech and Assembly

The First Amendment prohibits restricting the freedom of speech and assembly. Likewise, the California Constitution protects the freedom of speech and assembly. As the court noted in In re Juan C., an “inherent tension exists between the exercise of First Amendment rights and the government’s need to maintain order during a period of social strife.”

Curfew orders often have an incidental impact on constitutional rights. Because of this, governments must enforce reasonable time, place, and manner regulations. Such regulations must be content-neutral, i.e., designed to serve a substantial governmental interest, and must not unreasonably limit alternative avenues of communication.

Again, the tailoring of a curfew order matters. Narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Thus, governments may need to demonstrate the lack of alternative measures. Sweeping bans that are not responsive to the nature, time or location of unrest may draw challenges.

Freedom of Movement

Citizens also have a right of free movement, historically part of the amenities of life as we have known them. However, like all constitutional rights, the right of free movement is not absolute and may be reasonably restricted in the public interest. If alternative means less violative of the constitutional right exist, those alternatives should be used.

Relevant here, any means that are less restrictive than a curfew should be evaluated prior to restricting the movement of persons. The scope of the restriction should also be considered. For example, a ban on movement of all kinds may not be deemed tailored for the moment.

Exceptions to an order purporting to restrict movement, such as for childcare travel, going to the grocery store, work travel and travel for medical care (among other exceptions), should be considered in order to reduce the risk of legal challenge.

Sufficient Advance Notice

In California, curfews must be in writing and given widespread publicity and notice. Further, the Fifth and 14th Amendments prohibit deprivations of liberty without due process. Notice is an element of due process.

If a curfew order does not provide the public with notice of the conduct prohibited, it could be found invalid. However, state courts have found that notice could be given by an arresting officer with an opportunity for the individual to comply without violating notice requirements.

The notice is important. Even when a curfew order is appropriately tailored, if notice hasn’t been provided, the enforcement of a curfew order may be challenged. There should be clearly defined protocols for law enforcement to ensure sufficient advance notice.

Curfew orders are powerful but must be clear and narrowly tailored, and the government must provide notice. After the flurry of curfew orders in response to the Floyd protests, many governments rescinded or modified their orders (sometimes after legal challenge), but they will likely revisit their ability to institute curfews for a variety of purposes. The issues that governments face today could be raised again tomorrow.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Brandon Young is a partner with Manatt, Phelps & Phillips LLP in Los Angeles in its government and regulatory group.

Mario Cardona is an associate with Manatt, Phelps & Phillips LLP in the Los Angeles office.