Legality of Public Curfews Omaha and Lincoln Questioned

June 5, 2020, 1:54 p.m. ·

Demonstrators and police in confrontation the night of May 31. (Photo by Fred Knapp, NET News)

The public curfew in Lincoln this past week and more set for tonight and tomorrow night in Omaha bring up the question of legality regarding public curfews as a whole. Lincoln attorney Justin Cook said he does not think the cities can legally enforce public curfews.

“I don't think it's lawful. I think the Constitution of the United States precludes it,” Cook said. “I don't think there is a legitimate basis to be putting it into effect now. I think it was unlawful.”

Cook said putting in place a public curfew because of the protests that have been going on, directly contravene citizen’s First Amendment rights. Cook said he doesn’t think that’s right. People are focusing too much on the few people that are causing problems, even though the majority of protestors have been peaceful, he said.

“There were factions that went out and cause problems. But these were not core elements of the actual protests. These are individuals that in my opinion, are going to cause problems regardless. And I think people are focusing too much on that,” Cook said.

However, Lincoln City Attorney Jeffery Kirkpatrick said he believes the mayor’s decision to impose a public curfew would be widely upheld in court if challenged. He said that the mayor has a fair amount of authority as far as issuing an emergency order and including a curfew.

“I think emergency curfew orders are something that are widely used, and widely upheld when they are challenged, Kirkpatrick said. “So I'm not expecting a legal challenge.”

Kirkpatrick said the public curfews imposed a few days ago have not been challenged in court so far.