Pennsylvania Municipalities Enacting Unlawful Curfews

We recently became aware that several Pennsylvania Municipalities have imposed curfews due to coronavirus/COVID concerns. Upon initial review, the curfews are likely illegal.

So far, we’re aware of the following curfews:

West Hazleton Borough: http://www.westhazletonboro.org/Pages/Home.aspx

Hazleton: http://www.hazletoncity.org/Latest-news/emergency-proclamation-from-hazleton-mayor-jeff-cusat.html

West York: https://westyorkpa.gov/

Freeland: https://www.freelandborough.org/

Hazle Township: http://www.hazletownship.com/

While we assume there are more municipalities that have enacted curfews that are just beginning to get media coverage, some curfews have been explained in detail and for others, there’s only a reference in the news media to their hours of effect.

This article is not addressing curfews for minors, curfews for minors have long been established as legal.

Pennsylvania has three categories of municipal government: cities, boroughs and townships. Those categories are further subdivided into classes by the population of the city, borough or township. The largest city in Pennsylvania, Philadelphia, is a class 1 city. Pittsburgh is class 2A. There are many other cities that are class 3.

The Pennsylvania legislature has decided to place slightly different rules in place for declaring emergency curfews in each type of municipality. Therefore, it is important to look at the actual statute that relates to the emergency powers of your municipality.

The emergency powers of municipalities in respect to curfews can be found here:

Second Class Cities:  53 P.S. § 30360

Third Class Cities: 11 Pa.C.S.A. § 11203

Boroughs: 8 Pa.C.S.A. § 10A06

General Authority of Political Subdivisions: 35 Pa.C.S.A. § 7501

Powers of Local Agencies to Clear Roads in an Emergency: 35 Pa.C.S.A. § 7705

We have not been able to find any authority for townships to adopt a curfew. Title 35 Chapter 75, does give authority to municipalities in Pennsylvania to prepare for a disaster, but it does not give the authority to make new laws or restrictions.

As to the municipalities that specifically have emergency curfew powers, those powers are only to be used in order “to prevent and suppress mobs, riots and unlawful and tumultuous assemblies” or  where there has been a “clear and present danger to life or property through civil disorder.” There is no indication that these statutes were ever intended to be used to create a curfew in cases of infection. In fact, all past uses of these statutes have been after a riot or where there has been a labor strike. Thus, we do not see how a virus pandemic could constitute civil disorder.

It is also important to note that these curfew restrictions are only allowed to extend for 5 or 7 days; yet, we have not been able to find any indication that the municipalities involved understand this limitation.

At the core of this issue is the fact that the U.S. Constitution and Pennsylvania Constitution both recognize certain fundamental, inviolate rights.

While there is some disagreement, those rights are generally recognized to be:

• Right to self-determination
• Right to liberty
• Right to keep and bear arms
• Right to due process of law
• Right to freedom of movement
• Right to freedom of thought
• Right to freedom of religion
• Right to freedom of expression
• Right to peacefully assemble
• Right to freedom of association

These curfews implicate the right to self-determination, the freedom of movement, the right to peaceably assemble and the right to freedom of association.

If a government in the U.S. wishes to restrict any of these rights, the restriction must be narrowly tailored to resolve a compelling need. A government is allowed to place reasonable restrictions as to time, place and manner of the exercise of rights. In other words, it would be legal to place a curfew on certain neighborhoods, where there has been a previous demonstration of civil unrest. It is legal to place a curfew on teenagers. It is legal to restrict protesters to protesting in certain locations during certain hours, but a government cannot restrict protesting entirely or only allow protesting in a completely unreasonable location.

The Pennsylvania Department of Health can quarantine individuals who have actually been diagnosed with a communicable disease (see 35 P.S. § 521.11),  but there is no authority to quarantine people who have not been diagnosed.

So, these municipalities are attempting to enact restrictions that even the state government does not have.

The broad curfews are not narrowly created. They appear to pertain to entire municipalities and they would prevent many lawful activities such as:

1. Going to work (people work at night)
2. Going to get medicine or other needed items
3. Checking on family members at other residences

The curfew requirements appear to permit police to stop, detain, and cite anyone conducting these legal and necessary activities.

As we’ve stated before, this is a time of fear and uncertainty. In times of fear, people do irrational things. The only way to combat this irrationality is by continuing to rationally apply our laws and expecting our government officers to do the same.

For individuals in the municipalities involved, we encourage you to contact your represented leaders and let them know that the curfew requirements are illegal.

If you are stopped by a police officer for a curfew violation, identify yourself and respectfully accept the citation. Do not offer additional information. Do not argue with the police. The citation can be argued at a court hearing later.

We sincerely hope that the municipalities involved review the situation and remove their unlawful curfew restrictions.

If you or someone you know has been cited for violating Governor Wolf’s stay-at-home order or a municipal curfew, contact us today to discuss your rights!