Posted by Post Authored by Alexandra Verven
Citizens across the nation have been exercising their First Amendment right to peaceably assemble (i.e. protest) to push to for police reform in the wake of George Floyd’s murder. After several days of protests, where there were instances of violence and vandalism, many cities implemented a curfew, requiring individuals to remain indoors (and off the streets) between specific hours (dusk to dawn). The question many people have been asking is whether these curfews are constitutional.
In general, the case law on this issue has involved minors and their parents challenging local curfew laws. However, within these cases, the federal circuit courts have touched upon the issue of First Amendment-protected activities in light of curfew laws. [The United States Supreme Court had yet to examine this issue].
For instance, in Schleifer v. City of Charlottesville, the Fourth Circuit analyzed the validity of a city curfew for minors implemented to reduce juvenile violence, protect juveniles from engaging in drug activities, and to strengthen parental responsibility for children. 159 F.3d 843, 856 (4th Cir. 1998). However, the ordinance specifically carved out an exception for those minors who were exercising their First Amendment rights, persuading the court to uphold the curfew. Id. at 853.
In Hutchins v. District of Colombia, the D.C. Circuit reviewed a city curfew which contained eight affirmative defenses, one of which provided protections for a minor’s First Amendment activities Hutchins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999). The appellees argued that the First Amendment defense (curfew is not violated if the minor is “exercising First Amendment rights, including free exercise of religion, freedom of speech, and the right of assembly” was unconstitutionally vague and in violation of the due process clause. Id. at 535. The court upheld the curfew, reasoning that the First Amendment defense was “no more vague than the First Amendment itself” and the city’s efforts, by including eight defenses to the ordinance, were enough to ensure the ordinance did not sweep all of the minor’s activities into its sphere. Id. at 545.
Finally, in Hogkins v. Peterson, the Seventh Circuit struck down Indiana’s nighttime curfew although the law provided minors an affirmative defense if they were participating in activities protected by the First Amendment. 355 F.3d, 1048 (7th Cir. 2004). Appellees argued that the defense offered no real protection for minor plaintiffs involved in First Amendment activities because they were still subject to arrest before they could assert this defense. Id. at 1053. The court agreed, taking issue with the fact that minors were not exempt from arrest when engaging in First Amendment protected activities, rather they were only provided a defense after arrest. Id. at 1064.
In sum, the constitutionality of a curfew ordinance depends on the purpose for which it is enacted, and depending on the jurisdiction, whether the law carves out an exception for First Amendment activities (eliminating the possibility of arrest) vs. an affirmative defense (to assert post-arrest).
About the Author:
Alexandra Verven is an associate attorney with the law firm of Barker, Castro, Kuban & Steinback LLC. Alexandra has concentrated her practice in the area of medical negligence serving in the defense of hospitals, physicians, and medical staff members. Her medical malpractice defense work involves pre-litigation investigation and counseling, as well as guidance and recommendations to her clients in various risk management strategies. She also handles a wide variety of civil defense litigation where she represents not-for-profit organizations and health care facilities in cases involving premises liability and personal injury. Prior to joining Barker, Castro, Kuban & Steinback LLC, Alexandra worked as a law clerk at one of Chicago’s prevalent plaintiff litigation firms, where she gained invaluable experience she uses to defend her current clients.
A defense after arrest is no defense at all – since the fundamental right that was supposed to be protected was in fact violated when it mattered. If that is allowed then we might as well throw the US constitution in the trash, since in that case the first amendment did nothing in reality when it mattered and will do nothing in the future when it matters.