By COREY FRIEDMAN
As they heaped praise on the Black Lives Matter movement, America's big-city mayors were actively working to undermine it with harsh curfews that cut marches and rallies short.
Minneapolis ordered residents indoors from 8 p.m. to 6 a.m. New York closed its streets from 8 to 5. Los Angeles locked down from 8 to 5:30. In Chicago, the witching hour was 9, and public life was allowed to resume at 6.
Curfews became a ubiquitous tactic to prevent vandalism and looting during daily protests that followed George Floyd's May 25 death in police custody, but there's no consensus among criminologists that they're effective. What's more, they might be unconstitutional when used to curtail political activism.
On behalf of Black Lives Matter-Los Angeles, the ACLU Foundation of Southern California is suing Mayor Eric Garcetti and other LA and San Bernardino officials in federal court, alleging that demonstrators' First Amendment rights were violated and that placing 4 million people on nightly house arrest impinges on their constitutional freedom of movement.
During a four-day span from late May to early June when the emergency orders were in force, curfew violations accounted for roughly 2,500 of the 2,700 arrests made in Los Angeles and San Bernardino counties, according to the lawsuit.
he plaintiffs' attorneys say Black Lives Matter protests in and around LA had been mostly peaceful when the curfews were enacted. Property damage resulted from "third parties who were not part of Black Lives Matter or most other organized protest groups."
Even though the curfew applied citywide, Black Lives Matter argues that it was crafted to target the organization and its members.
"The First Amendment generally requires the state to punish those few who break the law rather than preventively suppressing everyone's protected speech because of what a few people may do afterwards," ACLU attorneys explain in the suit.
Justifying the curfews in court will be an uphill battle. Judges will apply a strict scrutiny test, meaning that in order to pass muster, restrictions on the right to assemble must serve a compelling state interest and be narrowly tailored to achieve that objective.
There are far less draconian ways to prevent vandalism than shooing every man, woman and child indoors under threat of arrest. Wilson, an eastern North Carolina city of 50,000 souls, rescinded its curfew after just two days. Each night thereafter, police closed downtown streets where property damage had occurred and stationed patrol cars near the courthouse, a previous protest site. That seemed to do the trick.
First Amendment scholars are closely following the Black Lives Matter case in Los Angeles, and curfews in other cities are generating their own share of skepticism.
Colleen K. Connell, an attorney who serves as the ACLU of Illinois executive director, reported in a recent Chicago Sun-Times op-ed that an astonishing 93% of people arrested for curfew violations in the Windy City were black.
The Supreme Court has yet to consider a curfew challenge, but a 1972 decision striking down a vagrancy law in Jacksonville, Florida, emphasized an individual right to travel through public spaces undisturbed.
Most curfew case law deals with city ordinances that limit the hours teenagers can be out in public without a parent or guardian. Though federal circuit courts differ on the details, judges generally agree that youth curfews must include an exception for the exercise of First Amendment rights such as religious observance or protest participation.
Adults don't enjoy fewer constitutional rights than children, so plaintiffs stand a good chance of securing curfew carve-outs for expressive activity. That might make mayors' orders all but impossible to enforce — couldn't any willful violation of the curfew be described as a protest against it?
The Los Angeles litigation could even change the way cities respond to natural disasters like hurricanes, floods and snowstorms. Emergency curfews were a trusty arrow in local governments' quiver. Power-hungry mayors may have bent it beyond repair.
Civil liberties advocates needn't wait on judges to make the moral and ethical case against adult curfews. Whether you're a Black Lives Matter protester or a midnight emergency evacuee, don't vote for any paternalistic politician who says he's grounding you for your own good.
- Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites.