Wednesday, June 10, 2020

Objecting to Curfews, For One of the Numerous Compelling Reasons -- Part 2

I may have inadvertently buried the lede in yesterday's post about curfews.  At its end, I explained that while throughout the post, I had discussed curfews as intruding on the freedom to travel over or remain on public property, the curfew orders that I have seen (all of them from Indiana; I apologize, but I would need a good reason to do it before I would devote the time that it would take to track down and read the instruments used in establishing curfews in cities located throughout the United States) state that the curfews that they respectively declared were to extend to private property.

Just to make certain that I do not bury the lede again, I will state right here: All of the curfew orders issued by Indianapolis Mayor Joe Hogsett affected to make it a Class B misdemeanor, punishable by up to 180 days in jail, for people in Indianapolis even to have been in their own driveways during any of the curfews.  (Carmel Mayor Jim Brainard's near-copy of those orders did the same thing, but he only imposed a curfew for one night, and it isn't clear to me that anyone in Carmel was aware that there had been a curfew until it was over.)

Most of the curfew orders that I have seen are nearly identical in the wording of their substantive parts, so it would serve no purpose to link to and discuss a large number of them.  (In Indianapolis, the mayor issued separate orders to declare curfews for different nights, but each of his orders is so similar to the others that there is no reason to cover more than one of them.)  Indianapolis Mayor Joe Hogsett's June 5th order, which declared curfews last Friday and Saturday night (running overnight, as curfews tend to do), reads (beginning at section 2(b)), "During the Curfew, no person may travel public streets or be in public places in Marion County unless exempt under Section 2(c)."*  Section 2(b)(ii), however, defines "public streets" and "public places" in a peculiar way: "For purposes of this order, 'public streets' and 'public places' means any place, whether on privately or publicly owned property, accessible to the general public.  This includes, but is not limited to, streets and roads, alleys, highways, driveways, sidewalks, parks, plazas, parking lots, and vacant lots."

I have been exploring the bizarre and dangerous characteristics and effects of IC 10-14-3 (which, coincidentally, is what Indiana mayors have claimed over these past two weeks gives them authority to impose curfews) for months, but even I was surprised to discover that Indianapolis Mayor Joe Hogsett had invoked it in order to impose curfews throughout Marion County which treats private property as a public place (and consequently off-limits to everyone while a curfew is in effect), so long as it is a "place" (which it is bound to be) that is "accessible to the general public."  That could include a lot of places!  A place is "accessible to the general public" if the general public is able to access it.  There are many "places" on private property where the owner of the property would not want the general public to go but which nevertheless remain "accessible to the general public".  Hogsett's order provides a list of examples (but not an exclusive list) of what he understands to qualify as "public streets" and "public places".  This list, which appears at the end of the previous paragraph, explicitly identifies "driveways" as "public places", where people were forbidden to be for the duration of each of the curfews that Hogsett declared.  Hogsett's curfew orders, which include no exception that would have allowed people to be on their own property during the curfews (even when Hogsett considered their private property to qualify as "public places"), cannot be understood other than as having forbidden people to be in their own driveways during any of the curfews that he declared.

Carmel Mayor Jim Brainard issued a very similar curfew order on June 2nd.  He presumably issued it as a part of a larger plan to cause people to take him less seriously.  His order differs from those issued by Hogsett in that its definition of "public streets" and "public places" requires that a place on private property be both accessible to and open to the general public, which I suspect was intended to prevent his curfew from being as absurdly severe and desperate as the curfews of Hogsett.  (If it was, then I appreciate the effort.)  In practice, I question how much of a difference adding "open" to "accessible" would make, but again, also in practice, I doubt that anyone in Carmel realized or cared that Brainard had declared a curfew.  (It followed his declaration of a "Disaster Emergency" the day before, which seems to have been precipitated by someone's discovery that people had posted hostile comments on social media.)

* Marion County and the City of Indianapolis have, for the most part, a single, unified government, so extending the curfew throughout Marion County extends it throughout the entirety of Indianapolis.

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