Via Facsimile 870-338-9832 and U.S. Mail

August 8, 2008

Valley, Mayor
Helena-West Helena
226 Perry Street
Helena-West Helena,
AR 72342

Re:  Emergency Curfew Order

Dear Mayor Valley:

American Civil Liberties Union of Arkansas is a non-profit organization
dedicated to preserving and defending the rights guaranteed to us by the United
States and Arkansas Constitutions.  The purpose of this correspondence is to
notify you that your city's emergency curfew orders are unconstitutional, and
that enforcement of such ordinance and orders may subject the city to civil
liability for violating of the rights of those upon whom the curfew is imposed
and enforced.

Chapter 7.12 of the Helena-West Helena City Code
pertaining to curfews states:

7.12.01  Civil emergencies  The Mayor, at
any time a condition has arisen or is imminent, which in his judgment
constitutes a civil disturbance, riot, insurrection or time of local disaster,
may declare a state of emergency and impose a curfew for such time and for such
areas as he deems necessary to meet such emergency.  Provided, however, such
curfew shall not extend for over a period of fourty-eight (48) hours unless
extended by a majority vote of the members of the governing body.

August 7, 2008, you issued an order that all residents of a particular zone of
the city be subject to a curfew prohibiting loitering, standing, and "hanging
out," and providing for stop and investigation of all moving traffic. 
Furthermore, you ordered that Code Enforcement pursue evictions for all persons
residing in homes where at least three criminal violations have occurred.

A high crime rate in Helena-West Helena is not a condition set forth in
the city code for which the Mayor can declare a state of emergency, and as such
it appears you are acting ultra vires.  Peaceful, law abiding citizens
are being ordered into their homes by law enforcement, underscoring that
the situation in your city has not reached riot or natural disaster
proportions.  Were the city code to grant you the authority to declare a curfew
on all citizens, the code would be unconstitutional, as set forth below.

This order is blatantly unconstitutional on numerous grounds.  First,
such curfews have never been allowed under the laws of the United States,
barring riot, insurrection, or natural disaster.  Not one case has ever allowed
for the imposition of searches, seizures, and house arrest against innocent
citizens because of the high crime rate in a particular city.  See, e.g.
American Civil Liberties Union of West Tennessee, Inc. v. Chandler, 458
F.Supp. 456 (W.D. Tenn. 1978).  In fact, "state of emergency" curfews imposed
upon youth aimed at addressing youth crime have been declared unconstitutional. 
Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003); Nunez v. City of
San Diego
, 114 F.3d 935 (9th Cir. 1997); Hutchins v. District of
, 942 F.Supp. 665 (D.D.C. 1996); Walters v. Barry, 711
F.Supp. 1125 (D.D.C. 1989); McCollester v. City of Keene, 586 F.Supp.
1381 (D.N.H. 1984); Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir.
1981); Naprstek v. City of Norwich, 545 F.2d 815, 818 (2d Cir. 1976);
State v. J.P., 907 So.2s 1101 (Fla. 2004); City of Sumner v.
, 148 Wn.2d 490 (2003).

Second, requiring adult residents of
the city to be on house arrest violates these individuals' rights to travel and
association, as guaranteed by the United States Constitution.  Third, the very
language of the Order violates the Fourth Amendment to the United States
Constitution, in that, in effect, it proclaims that the Fourth Amendment is
waived for all persons, including those suspected of no criminal activity.  The
warrant requirement of the Fourth Amendment is in place specifically to prohibit
these kinds of sweeping searches.  Law enforcement, even in areas where there
are higher crime rates, is not a sufficient basis upon which to place people on
house arrest, or set aside the Fourth Amendment.

Fourth, the Order
likely violates Helena-West Helena residents' rights to equal protection under
the laws.  "[O]nce curfews are imposed, the burden falls disproportionately on
minority individuals and communities."  Harvard Note, "Juvenile Curfews and Gang
Violence: Exiled on Main Street," 107 Harvard L. Rev. 1693, 1707 (1994).   The
order to evict all residents of homes where at least three crimes have occurred
violates residents' rights to association as guaranteed by the First Amendment
to the United States' Constitution.  Finally, most loitering ordinances and
arrests also violate constitutional guarantees.  Papachristou v. Jacksonville,
405 U.S. 156 (1972).

Notwithstanding the City Code and Curfew Order, the
residents of Helena-West Helena have the right to sit under shade trees in their
front yard, to ride their bicycles along the streets, protest this policy, and
drive around the city with the full protections of the First, Fourth, and
Fourteenth Amendments.  Citizens, including those expressing opposition to the
curfew order, should be subject to no special scrutiny by law enforcement unless
they are suspected of some criminal activity.

Mayor, we sympathize with
the need to address crime in your city, and have many good friends and members
in Phillips County and Helena-West Helena.  We certainly do not seek to detract
from law enforcement using their lawful authority under the Fourth Amendment to
stop, question, detain, or arrest those who are suspected of committing criminal
acts, but violating law abiding citizens' constitutional rights is
counterproductive to quelling unrest.  Citizens receiving unlawful orders tend
to object, and enforcement of this order may inflame an already problematic
situation.  We urge you to immediately cease any curfews imposed due to high
crime rates, whether in the entire city, or in a particular zone, and to dismiss
any prosecution initiated for violation of the curfew order.  We do encourage
you to find law enforcement solutions that will comply with the constitution,
and hope that this letter will help you avoid a solution that may ultimately
leave the city subject to liability.

Please have your city attorney
contact me as soon as possible to advise whether you will rescind the emergency
curfew order.  Thank you for your attention to this matter, and we look forward
to receiving your response.



cc:       Helena-West Helena City Council
           Andre Valley, City Attorney