Is the Dakota County Curfew Legal or Unconstitutional?

On Friday, May 29, 2020, Dakota County issued a mandatory curfew on all residents and occupants of Dakota County.  Sheriff Leslie and Dakota County leaders cited a "heightened risk of significant harm to local residents and businesses" from the ongoing protests and rioting in the aftermath of the George Floyd murder.  The Order, issued late in the afternoon and effective that very evening, restricted the constitutional liberty of Dakota County residents and more importantly, American citizens.  This Order undoubtedly infringes on our right to assemble.  It even goes so far as to make it illegal to travel, or even go for a walk after 8:00 p.m. 

Is the Curfew Legal?  

The Dakota County Board of Commissioners cites Minnesota Statute 12.29 as granting the authority to impose these measures.  This statute states, "A local emergency may be declared only by the mayor of a municipality or the chair of a county board of commissioners or their legal successors."  A plain reading of this text would seem to suggest that Minnesota law grants the chair of the Dakota County Board of Commissioners the authority to declare a local emergency.   

With that addressed, the next step in the analysis is to see what a declaration of a local emergency means.  Statute 12.29 states that a declaration of a local emergency "invokes necessary portions of the response and recovery aspects of applicable ... disaster plans."  The Dakota County order does not reference any local disaster plans that authorize such draconian liberty restrictions.  Absent any reference to a disaster plan that grants the board this authority, the curfew order may be statutorily invalid and may not even require further constitutionality analysis.  

Is this Constitutional?  

Assuming the Board has some uncited disaster plan that authorizes the curfew, we next need to determine whether the Board's (government's) curfew Order meets constitutional muster.  For this analysis, we start with the First Amendment to the U.S. Constitution.  The First Amendment states: 

"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."

Many people may read the “shall make no law” language and come to the conclusion that there is no way this curfew Order can be constitutional. Unfortunately, the analysis does not stop there. There are many laws that restrict First Amendment rights. We are not allowed to yell fire in a crowded theater (unless there is one), and we are not allowed to threaten to hurt or kill someone. Typically, when the government seeks to restrict a constitutionally protected right, it must meet what is known as the strict scrutiny standard. When this gets into court, it will need to be determined if the curfew Order was narrowly tailored to achieve a “compelling governmental interest.”  Strict scrutiny is the highest standard of review a court will use to evaluate the constitutionality of governmental infringement on constitutional rights. 

It seems relatively clear that there is a compelling interest that the government has to prevent the local residents and business from harm.  The issue the courts will likely need to decide is if the curfew Order was narrowly tailored to achieve that goal.  The degree of risk must be weighed against the severity of the measures imposed.  The question will be: was there a less restrictive manner to protect residents and businesses?  Certainly, there are areas at more risk than others.  For example, are rural farmers at a heightened risk from protesters?  Is the City of Coates a riot hot spot?  If not, and the curfew Order could have been more targeted, the Order should be declared unconstitutional.   

It does seem relatively clear that there are less restrictive means to accomplish the government goals.  This, however, does not mean that you can just ignore the curfew.  They will  enforce the curfew until it is declared unconstitutional.  That being said, if you do not want to be charged with a crime, it is best to let the dakota county criminal justice attorneys and the court system sort this out and abide by the Order for the short period it is authorized for.