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  May 7, 2015

Was the Baltimore Curfew Legal?

TRNN's Paul Jay, Attorney A. Dwight Pettit, law professor Byron Warnken discuss and debate if the curfew and state of emergency that eliminated the right of free assembly after 10pm was justified
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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to the Real News Network. I'm Paul Jay.

Hundreds of people were arrested for curfew violations in Baltimore during the recent protests, but was that curfew legal? Was it constitutional? Now joining us to talk about this question first of all is Dwight Pettit. He's a civil rights attorney, a criminal and constitutional expert. Also joining us is Byron Warnken. He's a University of Baltimore law professor and expert on criminal and appellate law.

Dwight, start with you. Do you think the curfew itself was legal, constitutional?

A. DWIGHT PETTIT, CIVIL RIGHTS ATTORNEY: I think initially if you can show an emergency situation it might have been initially legal. I think what happens is after the curfew is in for a certain period of time, I think then you have to have certain articulable facts to justify and substantiate that curfew. So I think what might have been legal at first became illegal after the second, third day.

JAY: Citywide curfew.


BYRON WARNKEN, BALTIMORE ATTORNEY COUNSEL TO WARNKEN, LLC: Paul, I think that the curfew was initially constitutional. We have to balance out the 1st Amendment rights of people to assemble, to speak versus the government's right to control any kind of violence. So I think although it's a close case, if I were a court I would uphold the Constitution. I mean, uphold the creation of the curfew.

I would probably disagree with Dwight. I would probably allow it to go not for forever, but I think it went if I'm not mistaken, I think for four full days--.

JAY: More than that.

WARNKEN: Was it more than that?

JAY: Monday to Sunday?

PETTIT: Sunday it was lifted.

JAY: Sunday morning, yeah.

WARNKEN: Okay. I think that there's a fine line, a close question between when they lifted it and when they should have lifted it. I think they were probably okay.

JAY: It actually may have been earlier, because Mosby's statements on the Friday, the protests are on the Friday. And then the back and forth that--later that day.

WARNKEN: That was last Friday.

JAY: Yes. I'm not sure--I'm sorry, I should have gotten it straight. I can't remember, it was the next day, Saturday or Sunday that the curfew comes [up]. Well, let me argue against both of you. Doesn't there need to be some bar set? There have been lots of protests with some rock throwing. You didn't need citywide curfews in many cities all across North America. In this situation itself, it was actually a very peculiar set of circumstances where somebody--and we still don't know who, social medias this word purge. And a whole school gets out right at the time they just stop all the public transportation. So there's no buses, no subways, there's nowhere for the kids to go. A very small group actually gets involved going to the Mondawmin, is it? Mondawmin mall. And then they start herding all the kids. And the kids--yes, so there's some rock throwing goes back and forth.

If you could suspend the right to free assembly with just an incident like that--okay yes, there's a fire, and we still don't know who set the fire. But one fire. And there's zero evidence the fire on the East side had anything to do with the protests, that's that senior's home. In fact, there seems to be some evidence that was a construction project in deep problems, in terms of the funding of the project and such. I'm not--I have no evidence that anyone involved did anything, but there's certainly no evidence that it had anything to do with the protest.

So you have one--really one thing, CVS gets burned. Some rocks get thrown. How is that that the whole city is now going to have a curfew? That's the first thing. The second thing is, the fact is the whole city didn't have a curfew. You could go to all kinds of neighborhoods. And not just white neighborhoods, where nobody was arrested after 10:00. The fact is, you could go even into areas that were just blocks--I was just five blocks south of North Street, on Pennsylvania Avenue at 12:30 in the morning with a group of people that were helping me cover things--and I was interviewing some people. Essentially it's me with about nine or ten activists, black young people.

Five blocks south of North Street, nobody could care less. Police drove up, police drove by. Eventually they stopped to ask, how's the white guy? They stopped me and said, you okay? I said yeah, they're friends of mine. Said okay. Off they go.

It was about, you couldn't do it at Pennsylvania and North. You couldn't do it at City Hall. 30 kids on Saturday night, peacefully sitting on the lawn because they wanted to defy the curfew, trampled. Trampled by maybe as many as 300 police. That's on Saturday night. We have the whole thing on video. One guy got his shoulder blade broken. I mean, this is--this is about proving you can't protest. This is not about some citywide danger. This is about you cannot protest. And it's not about your protest might become violent. It's you can't protest.

It seems to me then, what is the right to free assembly then? I mean, any time you want you could manufacture a rock-throwing incident. It wouldn't be hard to instigate something. Have one fire. Okay, nobody out anymore. Done. Right of free assembly over.

PETTIT: I think the issue is--right of free assembly is one issue but I think when you talk about a curfew, what time does it become that this, does the state have a protect interest or an interest to protect the public? Is a time element, say in this case a certain time for juveniles, 10:00 for adults, is that within the constitutional question? Is that within the state's power, the government's power to protect the citizens? And I would think that that probably derives from the emergency power of the authority of the mayor or the governor.

And again where I started off, I think that begins to disintegrate as you move forward and begin to then use that power to enforce or to in fact obstruct assembly. Which is what I think happened as we moved into this latter weekend, where the emergency part is over. If you went to court, there's nothing that you can show even if you show that there were fires, there was some disorder breaking out. But nothing was showing that that was continuing. And so then where does the state's interests, I think what you're asking, Paul, where does the state's interest cut off?

I would say it cuts off after those initial emergencies are in fact extinguished. But I do think initially that they would have--not that I agree with it. But I'm just saying I do think the mayor or the governor has the constitutional emergency power.

JAY: Is it completely subjective? Is there no factual basis that needs to be made?

PETTIT: I'm sure there's something within the emergency power that gives them that authority. And that, in my opinion, would probably be discretionary within that executive authority.

WARNKEN: Yeah, 20 years or more ago I worked for Kurt Schmoke's administration on the juvenile curfew statute. And there's no question that, when I get asked by the media question they get frustrated that I can't give a firm line sometimes. And the reality is that there's going to be a certain amount of discretion given to local government. I, like Dwight, don't know exactly what is, what is in the state's emergency powers. But I think that if there is danger, I think that would support it.

And although I have no reason to disagree with your facts, I'm sure that someone else would portray those facts very differently. I mean, you're saying, someone burned CVS. I'm sure some would say, we had the entire city in an X number of block area go down. There were stuff in other parts of the city. So the reality is there's going to be a lot of deference to the executive branch on when to do that. I agree, it shouldn't be willy-nilly. But I would be hard-pressed to think that a court would strike down this curfew. At least up until the very end, would be my gut feel.

JAY: Well, what do you think of Dwight's argument? After the first day or two it was obvious not all hell was breaking loose. I mean, again I go back to this issue of the fusion center. Because it's very important. The NSA is listening to just about everything. It's not like they don't know what's going on here. There's been investigative reports that have actually said--I'm not sure how they verified this. And we certainly know from people like William Binney and others who used to work at the NSA that there's a collaboration between the NSA and the FBI. They're actually handing information over to the FBI that they're not supposed to, because it amounts to a wireless, warrantless wiretap. Then the FBI somehow makes up supposed parallel structure of having achieved that, and they use that in court, but it actually came from the NSA.

Very similar situation here. They've been using the NSA technology to--targeting the drug trade. I mean, they know what's going on in the city. And if you talk to anyone around, the violence in those original days was very focused on Penn and North, and that immediate situation. There was a little bit, perhaps, otherwise, of maybe some looters. Maybe would have gone to the Inner Harbor and something—okay, and maybe even for one night, maybe, you say okay, the only way--we don't know how big this is going to get.

But how can you take away people's right to protest? Freddie Gray and the whole horrible policing of this city--and everybody admits it's horrible. Even most of the cops admit it. How do you take that away on such flimsy grounds? And if we just have to trust the executive, well, isn't that the beginnings of a police state? That's how you get police states. Let's trust the executive.

WARNKEN: We're going to have to see whether there is any litigation over this. I guess initially, I guess the judge ruled that what the governor had done was, and the mayor had done, was constitutional.

JAY: Well, let me ask you a specific question. By Saturday night, when there's nothing going on, and it's kid of obvious. I mean, what's the difference between Saturday night and Sunday morning? There's no difference in terms of what's going on in the city. But Saturday night, kids got arrested in front of City Hall. All kinds of people got arrested at Penn and North. Some kids got their bodies broken Saturday night, and all of a sudden Sunday it's legal.

It's so subjective, and it's like we demean this right of free assembly. To tell you the truth, it seems to me that the right to protest is more important than the protection of a few burning buildings, frankly. Otherwise, what is all this supposed fight for democracy about?

PETTIT: Well, the only thing I can say, Paul, is I think you've got to go back to how definitive the statute is that gives the executive the power. And whether or not he or she exceeded that power or violated that power would give rise to litigation, or if you want to take it to another level will give rise to certain political consequences.

JAY: Okay. We'll come back and revisit this. We'll get all the documents in front of us. And then we'll do it again. Thanks very much for joining us.

PETTIT: Thank you.

WARNKEN: Our pleasure.

JAY: And thank you for joining us on The Real News Network.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


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