Widespread public unrest and protests stemming from the homicide of George Floyd while in the custody of Minneapolis police officers has led Mayor Suthers to enact a curfew within the Colorado Springs city limits. Unless the order is extended, the curfew is in effect between 10:00 p.m. and 5:00 a.m., beginning Wednesday, June 3, and ending on Monday, June 8, 2020, at 5:00 a.m.
The Bussey Law Firm, P.C. has been asked, where does the authority to order a curfew come from, and what are the limits of that power? Our lead attorney, Timothy Bussey, defends Colorado citizens accused of serious crimes and prosecutes claims on behalf of citizens injured in serious car accidents; thus, he has a thorough understanding of Colorado state laws and the authorities bestowed upon local governments. This blog is in response to all of the questions concerning this curfew and hopefully provides some insight.
Police Power in Colorado
More generally, the claimed authority to impose a curfew derives from what courts call the inherent “police power” of the 50 United States. Within the states, that police power can be transferred to local officials, such as those in Colorado Springs. The police power is much broader than what today we commonly think of as police work, namely, the investigation and prevention of crime. The police power of a state includes broad authority to act for the protection of “the safety and health of the people,” as the Supreme Court recently explained in South Bay Pentacostal Church v. Newsom. In South Bay Pentacostal, a majority of the Court denied the church’s request to enjoin enforcement of a California regulation restricting religious worship services to 100 attendees or 25 percent of a building’s capacity. The regulation at issue in that case was imposed by California’s governor to limit the spread of the COVID-19 virus.
The power of an executive authority such as a governor or mayor to impose such sweeping restrictions can be dangerous to liberty and constitutional rights. This is why the Bussey Law Firm, P.C. is committed to studying the law and providing zealous representation to clients charged with a criminal violation.
Where conditions are sufficient, courts will overturn regulations such as a curfew, or relieve citizens of liability for ostensibly violating such regulations. Even as the Colorado and United States Constitutions both provide state and federal governments with great power to impose regulations for the protection of the health and safety of the people, state and federal constitutions also impose limitations.
For instance, the South Bay Pentacostal case reminds us that a regulation which would impair a fundamental right – such as the right to worship or engage in peaceful protest – must be “narrowly tailored” to promote a “compelling” governmental interest. Likewise, the majority and dissenting decisions in South Bay Pentacostal advises us that regulations shall not be imposed or enforced in a fashion that would unnecessarily discriminate on the basis of factors like race or religion. At a minimum, regulations must always be tailored to the extent of being “rationally related” to a legitimate government interest.
What Are the Limits of the Curfew?
To whatever extent the curfew does not conflict with Colorado’s statutory law or the state or federal constitutions, courts ultimately deem the appropriateness of the regulation to be a political matter. When the constitutional limits are not exceeded, courts hold that governmental restrictions should not be subject to second-guessing by an unelected judiciary. Instead, politicians who impose such restrictions are accountable to the people through the process of elections. Yet our experience at the Bussey Law Firm, P.C. teaches us that government regulators may over-reach, and it is difficult for them to draft, enact, and enforce a law or regulation in a manner fully compliant with controlling constitutional or statutory standards. This is particularly likely where a temporary curfew has been hastily imposed.
As of June 4, the Mayor’s “Proclamation and Declaration of Emergency” imposing the curfew is available online for all Colorado Springs’s residents to read and they should do so thoroughly. Among the various rules, the proclamation states, in section 6, that during the hours of the curfew “all persons are prohibited from using, standing, sitting, traveling or being present on any public street or in any public place, including for the purpose of travel[.]”
Key language includes “any public street or in any public place.” In other words, places that are not public by legal standards should be unaffected, at least theoretically. A “public place” is defined in section 10.1.201 of Colorado Springs Municipal Code to mean “A place to which the public or a substantial part of the public has access, including streets, highways, transportation facilities, schools, places of amusement, parks, playgrounds and the common areas of public and private buildings and facilities, including parking lots or any other area intended for use by the public.” By no means should we assume that such a broad definition is legally unassailable, but it gives you an idea of what city officials believe to be the scope of their authority with respect to the curfew.
And while the curfew theoretically only applies to public places, the restriction on travel by any “public street” has an obvious likelihood of impeding the normal use of private property, by ostensibly preventing people from coming or going from one private place to another. Colorado Springs Municipal Code does not specifically define the term “public street,” and it seems questionable or even doubtful that the City’s curfew could control a federal interstate highway such as I-25. Moreover, in theory, at least, police should not be able to stop and detain any traveling motorist without an objective and reasonable basis to believe that the motorist is not traveling pursuant to one of the exceptions to the curfew.
Ultimately, the federal courts of the United States recognize a constitutional right of citizens to move from one place to another by their own inclination, regardless of purpose. In Chicago v. Morales, for instance, the Supreme Court held that a law prohibiting loitering cannot be enforced if it is so vague that persons of ordinary intelligence cannot reliably determine its scope. In Colorado, our Supreme Court recognized in People v. Gibson in 1974 that a law prohibiting a juvenile’s “presence” in a given location is likely overly broad, whereas a properly drafted law prohibiting aimless “loitering” might be enforceable. The parameters of such judicial precedents are always evolving.
Are There Exceptions to the Curfew?
Exceptions to the Colorado Springs curfew are given in the Mayor’s proclamation in the case of people driving to and from work, or to the airport, or to a military installation. Exceptions are also given for people “seeking exempt care, fleeing dangerous circumstances, or experiencing homelessness.” Another rather vague exception is given to persons who have been “authorized by City of Colorado Springs officials.” Such a broad regulation, having such limited and vague exceptions, may well have constitutional or statutory flaws that would permit a successful legal challenge in a given set of circumstances.
As a practical matter, it seems unlikely that police will attempt to enforce the curfew in places that are distant from areas where public protesting or even rioting are apt to occur, such as downtown in the area of Acacia Park or City Hall. More likely, police seeking to investigate other matters such as drunk driving will use the curfew as a rationale or justification extending the police-citizen conduct and performing searches and seizures that would not otherwise be justified. Hence, the legality or illegality of curfew regulation may have a substantial impact on many criminal cases.
Securing Legal Counsel
While The Bussey Law Firm supports good law enforcement and is thankful for the protection that they provide to people and property in our city, the firm is also concerned with properly limiting the scope of governmental authority. If you or a loved one has been charged with a criminal offense or required the services of a Colorado Springs personal injury attorney, contact The Bussey Law Firm, P.C. We are always pleased to advocate for our clients and fight for just results. Call us at (719) 475-2555 to learn what options are available to you under the law.
Disclaimer: This blog should not be construed as legal advice, nor does it create an attorney-client relationship. All readers are responsible to hire competent legal counsel and obtain individual legal representation.