Berkeley might make it harder to impose curfews that target protests or ‘First Amendment’ activity

If adopted, a new proposal would make it harder to order curfews in relation to protests, as was done in May.

Protesters march down 11th Street in Downtown Oakland, May 29, 2020. Photo: Pete Rosos

The Berkeley City Council will vote Tuesday on changing the city’s municipal code around curfews, making it harder for the city to impose a curfew if it directly targets protests or activities protected under the First Amendment.

Curfews can be imposed after earthquakes, fires, or major disasters to protect the general public, but City Councilperson Sophie Hahn’s resolution seeks to distinguish these cases from a new category called “First Amendment Curfews,” like those that were imposed by the county during Black Lives Matter protests against police brutality and systemic racism in May.

Alameda County imposed a curfew on Monday, June 1 starting at 8 p.m. and lasting until 5 a.m. June 2 after a weekend of protests against the police killing of George Floyd that occasionally turned violent, including the looting of numerous businesses in Oakland and Berkeley. Berkeley joined the curfew and the City Council later voted, after a lengthy, contentious meeting, to extend it to Friday, June 5 at 5 a.m. Ultimately, Berkeley ended the curfew around 5 p.m. on Thursday, June 4 after two relatively quiet nights. Alameda County had rescinded the curfew earlier that day.

If the change is approved, a curfew that would infringe on First Amendment rights would be required to have a “compelling interest, narrowly tailored to achieving that purpose.” This could be factors like preventing violence or “conditions which pose a clear and present danger of imminent violence.” And the curfew would have to establish a specific range of locations, modes of transportation and time of day.

The First Amendment of the U.S. Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Hahn said the action is in response to ongoing demonstrations against police violence and white supremacy and the “terrifying response” in Portland, where there have been reports of non-identified federal officers arresting Black Lives Matter protesters without due process. The officers have driven around Portland in unmarked cars and taken protesters off the streets without telling them why they were detained, according to numerous media accounts. Oregon authorities have told the federal government that the federal officers are not needed. President Trump has already sent more federal agents to the city, according to the Washington Post.

“This is a first-of-its-kind proposal requiring the City Council and other city leaders to carefully consider and weigh the pros and cons of imposing a First Amendment curfew – especially given that these actions are usually taken under challenging or stressful or time-pressured circumstances,” Hahn said in a statement. “This model is worthy of lifting up as a model for other jurisdictions.”

Supriya Yelimeli is Berkeleyside's general assignment reporter. Email: supriya@berkeleyside.com. Twitter: SupriyaYelimeli. Phone: (510) 585-8315.