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by Peter Moskos

July 8, 2015

"Conservator of the peace"

"Conservator of the peace," you say. I was skeptical about how/if Mayor Rawlings-Blake could legally declare a curfew in Baltimore. Turns out she can:
Circuit Judge Paul Alpert determined that a curfew was within Rawlings-Blake's powers as a "conservator of the peace."

The powers of that title are not clearly defined in the city charter or state law, but City Solicitor George Nilson has said there was "substantial supportive authority" for a conservator of the peace to impose a curfew.
...
While the curfew could be imposed, the judge dismissed the charge because he found that there was no established penalty for a curfew violation.
...
Baltimore Deputy Public Defender Natalie Finegar argued that only Gov. Larry Hogan had the authority to impose a curfew, and the mayor needed City Council approval.

During the riots that followed the assassination of Martin Luther King Jr. in 1968, Gov. Spiro Agnew imposed a citywide curfew at the request of Mayor Thomas D'Alesandro III. The Maryland Court of Appeals, the state's highest court, later ruled that once the governor declared a state of emergency, "control over the citizens of Baltimore, in our opinion, lay in the hands of the governor of the state."

But a curfew imposed in 1979 by Mayor William Donald Schaefer after a massive snowstorm was upheld by a district judge, who found it was part of his powers as a "conservator of the peace." People arrested for violating that curfew were sent to jail.
Legally and substantively, is a curfew the same as martial law?

4 comments:

GolFoxtrot Yankee said...

I thought martial law implied military (e.g. National Guard) involvement while a curfew could be imposed exclusively by local LE. Posse Comitatus and so on. But I suspect this varies a lot by state and city so your mileage may vary.

Adam said...

Were you skeptical that the government could impose a curfew, or just skeptical that the mayor could do it unilaterally?

I'm not sure the term "martial law" carries any real legal meaning. The more applicable of two definitions from Black's Law Dictionary is "A body of firm, strictly enforced rules that are imposed because of a perception by the country's rulers that civil government has failed, or might fail, to function."

Black's then quotes the Supreme Court's decision in Duncan v. Kahanamoku, 327 U.S. 304, 315 (1946):

"[T]he term ‘martial law’ carries no precise meaning. The Constitution does not refer to ‘martial law’ at all and no Act of Congress has defined the term. It has been employed in various ways by different people and at different times. By some it has been identified as ‘military law’ limited to members of, and those connected with, the armed forces. Others have said that the term does not imply a system of established rules but denotes simply some kind of day to day expression of a General's will dictated by what he considers the imperious necessity of the moment. See United States v. Diekelman, 92 U.S. 520, 526, 23 L.Ed. 742. In 1857 the confusion as to the meaning of the phrase was so great that the Attorney General in an official opinion had this to say about it: ‘The Common Law authorities and commentators afford no clue to what martial law, as understood in England, really is. * * * In this country it is still worse.’ 8 Op.Atty.Gen. 365, 367. What was true in 1857 remains true today."

Peter Moskos said...

I guess I doubted that the mayor could legally and unilaterally impose a curfew, given that there is no such thing as legal martial law in America.

I'm also thinking of the Boston manhunt for the bombers, in which the mayor made the important distinction that he was "asking" people to stay indoors. Since the mayor had no authority(?) to *order* people to do so.

If needed, could Rawlings-Blake have called for a 24-hour curfew? And then have it enforced with the National Guard, and then still not have it be considered martial law but within her rights as "conservator of the peace"?

I find this strangely fascinating.

Alex Elkins said...

I don't know for Baltimore, but Pennsylvania passed a statute in 1850 empowering the mayor of Philadelphia (and other large cities) to suspend the law as s/he "may think proper and necessary.” Mayor James Tate invoked this law over 100 years later to impose a curfew in North Philadelphia during the uprising there in 1964! The government plastered the area with fliers citing this statute in particular.

But to your question, I don't think the 1850 law specifically said "martial law" or "curfew," but it implied executive powers along those lines. Basically, it said: "do what is necessary to regain control of the streets."

Glen Frese has a useful article on this: “The Riot Curfew” California Law Review 57 (1969): 450-89.

A lot of good writing on this issue came out in the 1960s, for obvious reasons, which said that executives had the power to suspend constitutional rights during periods of emergency. I'd be curious to know how far this power extends, whether a mayor can rely on this power to suspend habeus corpus, for example, until the declared emergency is over.