The Charlotte Curfew – a Transatlantic Comparison

After the violent protests in Uptown Charlotte following the shooting of Keith Lamont Scott on September 20th 2016, Major Jennifer Roberts imposed a curfew, preventing anyone within city limits from being on public streets or property after 12:00pm to 6:00am. The Charlotte curfew extended to all citizens of Charlotte, as well as visitors. Violating curfew restrictions is a class 2 misdemeanor as well as a violation of North Carolina’s emergency prohibitions and restrictions. Exemptions were made for those, who necessarily needed to travel in order to sustain the well-being of citizens or their families. Nevertheless, the curfew heavily impacted the entire Charlotte community. Even though the curfew has recently been lifted, many questions regarding this rather extreme measure remain.

Some European countries, such as France, also use curfews in a state of emergency to ensure public safety. Due to acts of terror, the French population has just recently been confronted with curfew restrictions.

However, in Germany a curfew (or “Ausgangssperre”) is almost unheard of. This has not always been this way, as history shows. In 1933 German President Paul von Hindenburg, advised by Chancellor Adolf Hitler, issued the Reichstag Fire Decree as a direct response to the fire in the Reichstag building just shortly before parliamentary elections that year. This decree overrode essential civil liberties of German citizens and turned out to be a key element in the Nazi party’s way to power. By prohibiting public assembly, restricting the freedom of expression and press as well as many other freedoms, Hitler strategically laid the foundation for his later plans.

The events of June 17th 1953 also led to the imposition of a curfew under state of emergency laws in all DDR territories. After East Berlin construction workers declared a strike, many citizens joined in until it turned into a widely spread uprising against the government of the German Democratic Republic. Soviet troops reinstalled occupational measures, violently ended the uprising, and imposed a curfew from 9:00 pm to 5:00 am to reinstall control over the population. Nevertheless, this day became a symbol for the strive of freedom of East Germans. In the course of East German history, curfews became a common government tool for oppression. Cities and villages along the border between the “two Germanies” were imposed with nightly curfews. Border patrols had the order to shoot any violators.

However, imposing a curfew is not possible in Germany today. That would be an inadmissible limitation of constitutional rights (“Grundrechte”). Everybody has the liberty of physical freedom of movement within the federal territory in accordance with Article 2 Section 2 and Article 11 of the German Constitution, although minor restrictions based on laws and regulations can be imposed. Such a law could be the German police laws issued by each “Bundesland”, which regulate the competence of the police and contain special authority clauses as well as a general clause allowing the police to interfere with constitutional rights. Because there is no special authority clause concerning the imposition of a curfew, the police has to fall back on the general clause. Police activities are still required to comply with the principle of proportionality and the prohibition of excessive measures (“Übermaßverbot”). It means that an interference in constitutional rights cannot be disproportionate to the success they are seeking, especially as long as there are alternative measures which are less invasive, the police has to pick these first.

In addition, the German ‘Polizeigesetze’ allow police measures addressing the person, who causes the danger for public safety and order in the first place (“Störer”). Only in rare exceptional cases, the police can take action against people, who are not responsible (“Nichtstörer”). This means, that police activities are limited to indispensable measures against those not responsible and are only permitted when actions against responsible persons turn out to be inadequate.

On these premises, a curfew is considered a ‘deprivation of liberty’ as the most impacting form of interference of the right to freedom guaranteed by the German constitution, because the addressees are not allowed to leave their houses for a certain time period. This situation is even aggravated by the fact that a curfew addresses people who are responsible for the danger as well as those who have no responsibility at all.

Therefore, it can be concluded, that in the event of riots during a protest, the police has to take action against the people who are responsible for the riot. It is the duty of the police to establish control and ensure safety. If necessary they have to apply full potential and call for reinforcements. However, these measures are not permitted to influence peaceful protestors or uninvolved individuals in their civil liberties.

Best regards
und viele Grüße aus Charlotte
Reinhard von Hennigs