Provided by CPOA Legal Counsel, James R. Touchstone, Esq., Jones & Mayer
California and the nation are experiencing large-scale community reaction following the tragic death, at the hands of law enforcement, of George Floyd in Minneapolis. Many people have been responsible in how they have exercised their rights to free assembly and free speech and in the way they have expressed their perspectives concerning law enforcement agency and community relations. Regrettably, however, others have engaged in criminal activities of looting, vandalism, and major property destruction. In response, many jurisdictions in California have imposed curfews in an attempt to quell this dangerous and damaging conduct, while remaining committed to facilitating peaceful expressive activity.
In California, governmental statutory authority to enact a curfew derives from Government Code section 8634. Section 8634 provides: “During a local emergency the governing body of a political subdivision, or officials designated thereby, may promulgate orders and regulations necessary to provide for the protection of life and property, including orders or regulations imposing a curfew within designated boundaries where necessary to preserve the public order and safety. Such orders and regulations and amendments and rescissions thereof shall be in writing and shall be given widespread publicity and notice. The authorization granted by this chapter to impose a curfew shall not be construed as restricting in any manner the existing authority of counties and cities and any city and county to impose pursuant to the police power a curfew for any other lawful purpose.” Section 8634 is contained within the California Emergency Services Act. (See Govt. Code §§8550 – 8669.7.) The California Emergency Services Act also includes the statutory authority to enact other emergency orders, such as those recently imposed to attempt to curtail the spread of COVID-19. As noted in Client Alert Vol. 35 No. 9, issued on
March 20, 2020, Government Code section 8665 provides the enforcement section for failure to obey an order enacted pursuant to the California Emergency Services Act. Section 8665 provides: “Persons violating or neglecting to obey lawful order or regulation; Fine and imprisonment: Any person who violates any of the provisions of this chapter or who refuses or willfully neglects to obey any lawful order or regulation promulgated or issued as provided in this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not to exceed one thousand dollars ($1,000) or by imprisonment for not to exceed six months or by both such fine and imprisonment.
Questions have been posed concerning the effect of county-wide curfew orders on incorporated municipalities within a county. This issue was addressed by the Attorney General in 1979 in Opinion 62 Ops. Cal. Atty. Gen. 701[1]. The Attorney General opined that County rules and regulations issued under Government Code section 8634 would apply in incorporated cities within the county. Specifically, in examining these precepts, the Attorney General reached two conclusions: “1. Cities within a county are bound by county rules and regulations adopted by the county pursuant to section 8634 of the Government Code during a county proclaimed local emergency when the local emergency includes both incorporated and unincorporated territory of the county even if the cities do not independently declare the existence of a local emergency; 2. When the county has declared a local emergency based upon conditions which include both incorporated and unincorporated territory of the county, it is not necessary for the cities to also declare the existence of a local emergency independently.”
With respect to constitutional challenges asserted against curfew orders, a California Court of Appeal addressed this issue in the case entitled In re Juan C., 28 Cal. App. 4th 1093 (1994). This case concerned a challenge to a curfew order implemented in the City of Long Beach during riots in 1992. The Court upheld the curfew against constitutional challenges, including assertions that the curfew order was facially overbroad and unconstitutionally restricted various rights and liberties, including the right to travel, the right to associate, the right to assemble, and the right to free speech, as protected under the First, Fifth and Fourteenth Amendments.
The Court held that the curfew regulation was properly enacted by the municipality by its authority under Government Code section 8634, and that the ordinance did not offend constitutional precepts because the restrictions imposed relative to outdoor assembly between the hours of 7 P.M. and 6 A.M. were reasonably related to a compelling government interest of ensuring the safety and welfare of persons and property in the municipality. (Id. at 1098 – 1102; see also Smith v. Avino, 91 F.3d 105 (11th Cir. 1996.)) The curfew regulation at issue in In re Juan contained the following notice provision: “The law enforcement forces of this City, along with other law enforcement authorities cooperating with the City are hereby authorized and charged, to the extent provided by law with the responsibility of enforcing this curfew, and are further authorized to arrest such persons as do not obey this curfew after due notice, oral or written, has been given to said persons.”
HOW THIS AFFECTS YOUR AGENCY
Law enforcement currently is experiencing incredibly difficult circumstances serving your communities in keeping the peace, ensuring the exercise of protected rights, and enforcing the law during both a global pandemic, and while responding as leaders to current events taking place. Curfew orders can provide a valuable tool to law enforcement in maintaining order and fostering the protection of life and property. With respect to curfew orders, communication with those engaged in expressive activities, provision of notice to those assembled in violation of a curfew order, and a reasonable opportunity to comply with dispersal orders generally should precede enforcement activities in all but the most exigent circumstances. Law enforcement officers should also be cognizant of de-escalation concepts and training, and their inherent discretion concerning enforcement decisions, when responding to those engaged in expressive activities. Expressive activities, however, do not include looting, destruction of property and harm to human life. We hope this Alert provides some assistance in making the performance of your duties at least somewhat easier, and safer.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
