The Maryland Public Defender's Office is arguing in court that Baltimore Mayor Stephanie Rawlings-Blake exceeded her authority last month when she imposed a citywide curfew amid the unrest that followed the death of Freddie Gray.
City prosecutors, meanwhile, have decided to drop all charges against those whose sole charges were for curfew violations, saying "the arrest was punishment enough."
Dozens were arrested on curfew violations during the five nights the curfew was in effect. Businesses complained of sharp drops in revenue, and some people said the curfew was enforced disproportionately in majority-black neighborhoods.
In announcing the curfew, aides to Rawlings-Blake cited a provision of the city charter that deems her 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 said there is "substantial supportive authority" for a conservator of the peace to impose a curfew.
"The Governor has the statutory authority to establish a curfew in times of emergency. The City Council of Baltimore is vested with legislative authority to create criminal ordinances," Finegar wrote. "The Mayor, however, acting alone, may not do so."
While Rawlings-Blake declared it a crime for adults to be outside with certain exceptions, Finegar wrote, her order did not establish any penalty.
In online court records, Finegar said in an interview, no charges are listed for the people who face curfew violations, because there's no corresponding criminal code to enter into the computer.
Still, some people spent 24 hours waiting to be processed at Central Booking after being arrested for violating the curfew.
Rochelle Ritchie, a spokeswoman for the Baltimore state's attorney's office, said prosecutors decided to drop cases in which the sole charge was for breaking curfew before Finegar filed her motion. Those with additional charges, such as rioting and disorderly conduct, could still face prosecution.
Finegar says only Gov. Larry Hogan has the authority to impose a curfew. She cites a passage in Section 14-107 of the public safety code: "After proclaiming a state of emergency, the governor may promulgate reasonable orders, rules, or regulations that the Governor considers necessary to protect life and property." The passage names a curfew as an option.
Finegar says the mayor can't enact such a rule without approval of the City Council.
"The intent of the General Assembly is clear: if a curfew is to be established in a time of emergency without action by the legislature, it shall be established by the governor, and not the mayor," Finegar wrote.
During the riots that followed the assassination of Martin Luther King Jr. in 1968, then-Gov. Spiro Agnew imposed a citywide curfew at the request of then-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."
Hogan's executive order declaring a state of emergency was signed at around 6:30 p.m. April 27. The mayor's curfew was announced at 8 p.m., to go into effect the following day. It was in effect from 10 p.m. to 5 a.m. and lasted five nights.
The Court of Appeals, ruling in 1972, explained the mayor's powers as a conservator of the peace as granting the authority to form a "posse comitatus," rounding up anyone over the age of 15 to help arrest rioters. The court called it an "ancient vestige of authority."
Finegar wrote in her motion that assembling a posse remains the main function of a conservator of the peace, and the powers of a conservator of the peace "cannot be invoked as authority" to single-handedly impose a curfew.
She wrote that the "vast majority of the neighborhoods within the city" did not participate in or experience the unrest directly, and that a "total ban on all First Amendment activities after 10 p.m. was far 'greater than essential' to contain the government interest."
A memo from the city solicitor's office said that a limitation only on certain neighborhoods would raise a question of racial discrimination.
It cited cases from Georgia, Wisconsin and North Carolina, in which judges found that the temporary imposition of a curfew was a "legitimate and proper exercise of the police power of public authority."
Hogan's office declined to weigh in on the dispute.
"Governor Hogan is fully aware of his powers of authority during a state of emergency, including his authority to establish a curfew," his office said in a statement.
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The state attorney general's office declined to comment.
The American Civil Liberties Union hasn't taken issue with the mayor's authority to impose a curfew but complained while it was in place that it was an infringement on city residents' "constitutional freedoms."
The group also raised concerns about language in the curfew order that prohibited the act of protesting.
City Councilman James Kraft, who represents Southeast Baltimore, said the question of curfew authority is moot. While he heard from business owners and constituents who were upset about the curfew, he said it was the right call and he believes it would have been made by either the governor or the mayor.
"At the end of the day, we were going to have that curfew," Kraft said. "It was something that was needed."