Curfew lawsuit filed in Los Angeles, but not necessary in New York City. On June 1, 2020, New York Governor Andrew Cuomo and Mayor Bill de Blasio collectively instituted a citywide curfew following four evenings of protests, which although mostly peaceful, included some instances of chaotic behavior which resulted in vandalism and property damage. The protests were in response to the death of George Floyd, police brutality, and racial injustice. George Floyd’s killing while in custody of the Minneapolis Police Department on May 24, 2020 and has been followed by demonstrations throughout the Country, including New York City. The Mayor lifted the curfew on June 7, 2020, a day before the expected expiration and a day before the State’s scheduled Phase 1 reopening. To read CityLand’s coverage of the Phase 1 Reopening click here.
In cities across the country elected officials have used curfews to attempt to curtail individuals seeking to engage in vandalism and property damage. In cities like Los Angeles, advocates like the ACLU and Black Lives Matter have filed constitutional challenges to the municipal curfews—arguing in large part that the curfews are over-expansive regulations of free speech and civil liberties. The New York Civil Liberties Union, The Legal Aid Society, the Thurgood Marshall Civil Rights Center and the Center for Constitutional Rights threatened to sue the City but did not need to after the Mayor ultimately lifted the curfew.
It is unknown what a New York City curfew challenge would have included, but at minimum it would include three key components. First, that the curfew violates the First Amendment’s prohibition on laws restricting free speech. Curfews must pass a high level of scrutiny that allows ample forms of additional communication or expression— and that there not be a less burdensome method of achieving the curfew’s various public health or safety goals. Second, that it violates the Constitution’s protection for the freedom of movement. While a state may impose some restrictions on this right, it must also pass a high level of scrutiny. The freedom of movement has been associated with the Privileges and Immunities Clause and has a significant litigation history. Third, that there was insufficient notice. The Fifth and Fourteenth Amendments prohibit deprivations of liberty without “due process.” Due process generally requires that notice be in a way that reasonably conveys the required information and that the notice was not ambiguous or ineffective.
Nadine Strossen, Professor at New York Law School told Cityland that “the constitutionality of each particular curfew turns very much on all the facts and circumstances, including details about how it is written and how it is enforced.” Prior to last week, the last time New York City had a curfew was in 1943 when Mayor Fiorello LaGuardia issued an emergency curfew in response to protests in Harlem of a white officer shooting a black solider.
After the curfew was lifted on June 7th, The New York Civil Liberties Union, The Legal Aid Society, the Thurgood Marshall Civil Rights Center, and the Center for Constitutional Rights, Take Back the Bronx, the Malcom X Grassroots Movement, FIERCE and other organizers issued a joint statement. “After immense pressure from protesters and the threat of a lawsuit we had prepared to file today, Mayor de Blasio has lifted New York City’s curfew, a blunt tool of state-sanctioned oppression used to silence legitimate protest. The City’s focus should not be on silencing protests and resistance, but on ending anti-Black police violence and impunity. Eliminating the curfew was a necessary step in stopping the cycle of police violence and silencing the mass of voices demanding recognition and dignity for Black lives.”
After lifting the curfew, Mayor de Blasio announced a few criminal justice reform proposals. The Mayor stated, “these will be the first of many steps my administration will take over the next 18 months to rebuild a fairer City that profoundly address injustice and disparity.” The reforms include shifting funding from NYPD to Youth and Social Services in communities of color, reform to the 50-A provision, moving street vendor enforcement out of the NYPD’s jurisdiction and creating a real community ambassador program within the NYPD.
CityLand published additional resources and coverage on police misconduct, justice reform, and protests on June 5th and June 10th. In addition, CityLand will continue its COVID-19 coverage especially as the City begins to reopen. For New York City-specific COVID-19 updates, the City has established an information site with updates from all major administrative agencies. Agencies include the Department of Buildings, City Planning, Citywide Administrative Services, the Department of Finance and the Department of Transportation among others. You can find that page here.
By: Jason Rogovich (Jason Rogovich is the CityLaw Fellow and New York Law School Graduate, Class of 2019)