Police officers block off Fourth Avenue in downtown San Diego amid protests over the killing of George Floyd in Minneapolis. / Photo by Adriana Heldiz

On Monday, four cities in the central and eastern parts of the county — La Mesa, El Cajon, Santee and Poway — declared curfews and ordered citizens off the streets as early as 7 p.m. It was the third straight day of curfew for La Mesa, which suffered from hours of looting and arson on Saturday night.

Emergency curfews are an extraordinary use of government power. By definition, they limit the right to gather and protest, and they may even forbid bike rides, dog-walking and trips to the grocery store. Not surprisingly, the local chapter of the American Civil Liberties Union is warning cities not to go too far.

Here’s a look at the local curfews and how they work.

Where have curfews been in place so far?

Under state law, cities and counties can impose curfews during a state of emergency “to provide for the protection of life and property.”

In the early hours of Sunday morning, the La Mesa City Council met and imposed a curfew from 1:30 a.m.-7 a.m., according to the Union-Tribune. On Sunday night, many cities issued emergency curfews – La Mesa, Santee, Poway, Lemon Grove and National City – and the county imposed a curfew in some unincorporated areas. Coronado released a “directive” – stay home – but not an official curfew order.

The largest cities in the county – San Diego, Chula Vista, Oceanside and Escondido – have not imposed curfews.

Is there a standard time for curfews to begin?

No. The cities and the county have imposed curfews at different times, typically 7 or 8 p.m., but they can go into effect whenever a government agency wants them to. In Los Angeles, the county imposed a 6 p.m. curfew, and the city Beverly Hills on Tuesday ordered people off the streets starting at the extremely early hour of 1 p.m.

Are curfew restrictions the same as coronavirus mandates?

No. The local curfews are much stricter. “A curfew really means you must stay home,” said Karen J. Pita Loor, a law professor at Boston University who has studied curfews.

That means residents can’t go food shopping or exercise outdoors, which are both allowed by the county’s current coronavirus stay-at-home order.

Santee put it clearly: “During this curfew, it is unlawful for any person to be on a public street, sidewalk or public place within the city of Santee. This includes walking, bicycle, skateboard, scooter, motorcycle, automobile, or public transit.”

Using language that appeared in other city curfew orders, Santee only allowed exemptions for “law enforcement, fire, medical personnel and members of the news media” and “individuals traveling directly to and from work, seeking emergency care, fleeing dangerous circumstances, or experiencing homelessness.”

What’s the penalty for violating curfew?

The county said violators of its curfew order could face misdemeanor charges and a fine of up to $1,000, up to six months in jail, or both.

It’s not clear whether anyone has been arrested for violating city or county curfews.

What is the ACLU worried about?

David Loy, legal director of the local chapter of the ACLU, wrote letters to several city officials on Monday warning them to cancel their curfews.

The letter to the city manager of National City, for example, noted that state law doesn’t allow overall curfews unless there’s a local emergency. “For present purposes, no genuine emergency can exist in the absence of actual or imminent violence beyond the means of government to address with less restrictive measures,” Loy wrote. “As far as I know, no such threat is imminent in National City.”

In an interview, Loy said the curfews are “an overreaction to a situation that can be otherwise addressed, especially in cities like Poway that admit they’ve only seen peaceful gatherings.”

Curfews can be enforced in arbitrary and discriminatory ways, he said, and they limit the First Amendment rights of citizens to gather and protest.

“If these curfews continue beyond another day, I can’t rule out litigation,” he said. “That will depend on facts and circumstances.”

Does the ACLU have a case against the curfews?

Two experts say it’s a long shot.

“Courts look at curfews in a really deferential way and won’t really investigate whether the factual basis is viable. It’s often just enough for public officials to say they’re concerned about a danger to public safety,” said Loor, the Boston University law professor.

Evan Gerstmann, an attorney and professor of political science at Loyola Marymount University in Los Angeles, said it’s “perfectly legitimate” for a city to impose a curfew in order to “head off a problem before it occurs.”

But a city could go too far, he said, if it makes a curfew so restrictive “that you don’t have ample alternatives to express yourself.” A curfew that starts too early and prevents protests from occurring could qualify, he said.

Doesn’t San Diego already have a permanent curfew?

Like other local cities, San Diego has a curfew for minors from 10 p.m. to 6 a.m. each night, although there are many exceptions. Critics say these laws are useless and arbitrarily enforced, journalists have found evidence that San Diego’s curfews disproportionately affect Latinos and don’t reduce crime rates.

In 1997, a federal appeals court ruled San Diego’s curfew law at that time was unconstitutional. Judges believed the law was too vague, limited free speech and usurped the rights of parents, the L.A. Times reported.

“The ordinance was an exercise in sweeping state control irrespective of parents’ wishes,” a judge wrote. “Without proper justification, it violated the fundamental right to rear children without undue interference.”

The current curfew measure can be found here.

Has San Diego ever had a curfew before?

It doesn’t seem so, although there was an “entertainment curfew” of midnight during World War II that kept bars and theaters shut down even as war workers on late shifts pined for some late-night fun.

They got their wish toward the end of the war in 1945 when the policy changed. War workers who clocked off late could head out to all-night films at several movie theaters and even partake in wee-hour square dancing.

Randy Dotinga is a freelance contributor to Voice of San Diego. Please contact him directly at randydotinga@gmail.com and follow him on Twitter: twitter.com/rdotinga

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