Update: Ed Shikada announced Thursday morning, June 4, that the curfew has been lifted after he and Police Chief Robert Jonsen had both determined that the conditions that had warranted the order no longer apply. Read more here.
City Manager Ed Shikada's sudden decision on Tuesday to impose a curfew in Palo Alto until June 11 is facing a backlash from residents, civil rights advocates and former City Council members, who are calling the move a legally dubious police "overreach" that will chill free speech.
The curfew took effect Tuesday night and prohibits residents from being out in public between 8:30 p.m. and 5 a.m. Chief Communications Officer Meghan Horrigan-Taylor said the city manager may shorten or extend the curfew based on circumstances.
But the order caught many community leaders off-guard, with some suggesting that the policy is not justified. LaDoris Cordell — a retired judge, former Palo Alto City Council member and former San Jose police auditor — said she doesn't believe that the city is under a threat requiring a 10-day curfew.
"I want answers. What is the threat? What is it that we're concerned about here in Palo Alto that we can't be out front on our sidewalks at 8:30 in the evening, particularly when it's so hot during the day?"
The declaration, she said, "criminalizes every person, every family, anyone who can be charged with a crime for just being outside your door."
Police powers that are given to governors, mayors and city managers must be used with caution, she said.
"There must be a balance between the civil liberties of those who live and work here and those who have police power," Cordell said. "I don't see the balance anywhere and I have not heard any explanation."
In justifying Shikada's authority to implement the curfew, the declaration points to the section of Palo Alto's municipal code that grants a director (in this case, the city manager) expanded powers during a state of emergency. Palo Alto has been under a local state of emergency relating to the COVID-19 pandemic since March 12. Unlike San Mateo County, which declared a two-day curfew on Tuesday, Palo Alto did not declare a separate emergency related to potential civil unrest.
Palo Alto's municipal law, section 2.12.060, authorizes the director to issue rules and regulations on "matters reasonably related to the protection of life and property as affected by such emergency." Those rules must be confirmed by the City Council "at the earliest practicable time by the city council," according to law.
But the council, which meets on Mondays, won't have a chance to confirm or amend the curfew order until June 8, three days before it's scheduled to expire, unless it holds an emergency meeting.
The curfew order appears to have only an indirect connection to the coronavirus state of emergency that granted Shikada expanded powers. The curfew declaration states that local retail has already been hit hard by the shutdown and is now "additionally burdened by risk of criminal theft and damage."
To further justify the curfew, the declaration states that Palo Alto law enforcement have observed "scouting behavior" around Stanford Shopping Center and the downtown retail core.
"Local and regional law enforcement intelligence-gathering suggests that planning is underway for additional organized criminal activity that could very quickly threaten harm to persons and property, and that such activity is imminent," the curfew declaration states.
"To protect lives and property in the city of Palo Alto, provide for the health and safety of residents and essential workers, and protect and support businesses that are a critical part of our community, it is necessary to immediately restrict the use of public areas of the city, including streets, roads, sidewalks, alleys, parks, plazas and other rights of way, during nighttime hours."
Mayor Adrian Fine told this news organization on Tuesday that the aim of the order is public safety. The curfew declaration, he said, is "based on credible intelligence about criminal groups targeting Palo Alto's commercial districts."
"I sympathize so deeply with the businesses that have been sheltering in place for three months now," Fine said. "To have windows smashed and goods stolen is completely unacceptable."
To date, however, there have been no reports of any Palo Alto businesses being damaged during the protests. On Sunday, Menlo Park police arrested two men who were reportedly speeding through the city en route to Stanford Shopping Center, which was the destination in their GPS. They already had a stolen cash register and stolen clothing in their car, Menlo Park police reported.
Officers were on scene to conduct "highly visible spot checks and patrols" after receiving information about "a large group of individuals heading toward Stanford Shopping Center to loot businesses" when they saw the men's car run a red light.
Since then, Palo Alto has seen several peaceful demonstrations, including ones on Monday in front of City Hall and at El Palo Alto Park. There have been no reports of any property damage relating to these events; however, police in East Palo Alto have been called to deal with criminal activity occurring during protests, including a smashed store window and a building break-in.
In an updated announcement Wednesday, Shikada provided additional details about the Sunday incident, as well as others that he said have "created a need for law enforcement awareness regionally." According to the statement, police learned that looters were planning to come to Stanford Shopping Center. Within an hour of receiving the information, there were between 50 and 100 cars circling the mall with people who police believed were intent on looting.
"Due to the police presence, fortunately no looting occurred," the statement reads.
The statement also cited the June 2 arrests in Menlo Park of two people, one of whom allegedly had a concealed handgun while the other had an outstanding warrant for his arrests. And Shikada pointed to an arrest in Redwood City of a man who had a machete hidden inside his protest sign.
Shikada said in the statement Wednesday that after the Redwood City protest, groups of looters were allegedly planning to target various locations throughout the Peninsula, including Stanford Shopping Center and other areas.
"Officers were prepared and thankfully this did not materialize," the statement said.
Cordell and Barron Park resident Winter Dellenbach, a longtime advocate for more transparency and accountability in the police department, both said that the recent arrest by Menlo Park police only reinforces the fact that police can deter crime through increased surveillance in commercial areas that they believe are being targeted, which makes a citywide curfew unreasonable.
Cordell noted that even places that have actually seen looting have imposed shorter curfews. In Hampton, Virginia, which experienced violence and looting, the curfew was established for three days, she noted.
"I have never heard of pre-emptive curfew, as we have in Palo Alto," Cordell said.
While Fine said he supports the curfew, he told this news organization that he is concerned about the duration and that he believes two or three days would be more appropriate. He said he communicated his concerns with Shikada and advised staff to share more information with the public about why the order is necessary.
"I hope we can lift it as soon as possible," Fine said.
Vice Mayor Tom DuBois also said that he is not happy about the curfew decision and that he hopes the City Council will hold an emergency meeting to either ratify or modify the declaration before its next meeting on June 8. The imposed curfew, he noted, is not based on any incident that has actually occurred but on fears that something will happen.
"It seems like the cure here is probably worse than the illness," DuBois told this news organization.
Some residents have come out in favor of a curfew, arguing that it's necessary to keep Palo Alto safe during a period in which cities across the nation are seeing protests relating to the May 25 killing of George Floyd while in Minneapolis police custody. During the council meeting on Monday, Jennifer Liu was one of several speakers who said she was concerned about the "looting, demonstration and violence around the Bay Area" and suggested that the curfews already in place elsewhere in the Bay Area will drive more people to Palo Alto.
"With those cities having curfew, protesters have less places to go," Liu said. "If Palo Alto is open, those people will come to Palo Alto, and people are getting very worried."
Lily Hwang also pointed to curfews elsewhere and suggested that the city "may be a target" because it doesn't have one in place.
"I really love this city, and I hope there's no violence happening in our town," Hwang said.
The council did not discuss the proposed curfew during the Monday meeting, though Councilman Greg Tanaka briefly noted that some other cities have contemplated a curfew and suggested that Palo Alto should as well.
"It's important that business owners don't feel compelled to board up their windows," Tanaka said. "We don't want these tough economic times to be even tougher."
Despite his comment, there was no indication during the meeting that the city would be imposing a curfew the following day.
Dellenbach found the logic in the city's curfew order unconvincing. She called Palo Alto's curfew "a complete overreach and chilling of free speech."
"What they should be doing is focusing on Stanford Shopping Center and the downtown retail core," Dellenbach told this news organization. "What they have chosen to do instead is to put a curfew on every single neighborhood and on every single household in Palo Alto for up to 10 days on short notice."
She noted that Lytton Plaza in downtown Palo Alto has a history as the city's "free speech" gathering place and that the plaza in front of City Hall is named after Coretta Scott King and Martin Luther King Jr. With the curfew declaration, residents are banned from gathering in these places during evening hours. This is wrong, she said.
"It completely takes away from prime time our ability to express ourselves under the First Amendment — our right to assembly, our right to petition our government, our right to dissent," Dellenbach said. "All this in the name of protecting shops in two areas close together in town.
"The First Amendment doesn't sunset at 8:30 at night," she added.
Dellenbach also noted that out-of-town crews have stolen from shops like Victoria's Secret and Nordstrom for years. Now, cities are framing the activity as "looting" and using it as a justification for curfews.
Palo Alto is one of many jurisdictions that have adopted curfews over the past week to prevent property damage — but its order is considerably longer. San Mateo County's curfew for all cities in its jurisdictions only covers June 2 and June 3. The curfews in Santa Rosa and the town of Windsor both stretch from June 1 to June 4. Even San Francisco, which has seen looting in the Union Square area, announced that it is lifting its curfew at 5 a.m. on Thursday, June 4.
The American Civil Liberties Union North California has also denounced what it called "a slew of hastily announced 'curfews' enacted in cities across California" that impinge on residents' First Amendment rights to peaceably assemble. These curfews, the organization said in a statement, "lack clarity as to their scope and duration."
"This is the wrong way to handle disruptions to what have been otherwise peaceful protests, and they are far broader than necessary to address any problems that have arisen or may arise," the ACLU stated. "Moreover, by making presence on public streets anywhere in these cities unlawful, these measures give police too much discretion over whom to arrest and will lead to selective and biased enforcement.
"In short, these measures will only repeat the very problems that our communities are protesting."
ACLU also submitted a letter to Shikada on Wednesday asking him to rescind the curfew order, which it argued violates the public's constitutional rights. Protests constitute "an exercise of rights squarely protected by the First Amendment.
"Their lawful efforts to stop excessive force by law enforcement have been met, at times, with excessive force and now a curfew that improperly curtails their constitutional rights," the ACLU letter states. "If anything, the imposition of a curfew — a signature measure of a police state — in direct response to protests regarding police accountability demonstrates the importance of these protests. We therefore urge you as strongly as possible to take immediate action to uphold the U.S. and California Constitutions."
Former Palo Alto Mayor Pat Burt also questioned the legality of the Palo Alto order. Because the curfew has "no relationship to the COVID emergency," he wrote, can powers granted to the city manager under one basis of a health safety emergency be used to address an unrelated risk?
He also questioned whether the city's new curfew meets the requirement that "extraordinary circumstances" be balanced against civil liberties.
"Does the mere risk of civil unrest, in the absence of significant illegal unrest or rioting in the city, legally justify a new emergency or a broad and extended curfew under the current declaration?" Burt asked in his list of questions. "Is the risk of escalated organized vandalism and theft equivalent to rioting or civil unrest that would be required for a citywide curfew?"
For Cordell, the answer is a resounding "No." She called the curfew "police power run amok" and said she hopes the council will direct Shikada to withdraw it.
"I think this is excessive, and I want it revoked," Cordell said.