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I understand that curfew laws are a concern due to the possibility of use of them to violate the constitutionally protected rights of individuals. Even in the face of pandemic-level health concerns, and civil disorder, local and state officials seem reluctant to impose curfews, perhaps due to the concerns about judicial and voter reactions to warrantless arrests this might lead to.

Could the judicial branch issue arrest warrants based based on time, place and perhaps manner to aid in restoring order in the face of civil unrest without generating 1st amendment concerns?

Has this been tried? Are there serious constitutional restrictions this would be subject to?

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The Fourth Amendment makes this impossible. The judicial branch cannot issue arrest warrants except with probable cause that a person had committed a crime. If there is a law which prohibits being on the street between 6:00pm and 6:00am, the violator can be arrested on the spot, even without a warrant (by the police, or an ordinary citizen assuming that the crime is a felony or a misdemeanor breach of the peace). That leaves the role of the judiciary to issuing arrest warrants where the arresting officer did not witness the crime. But since there is no such law, the judiciary cannot issue any such arrest warrants. There already exist laws granting extraordinary powers to executives (mayors, governors, presidents) in the case of declared emergency, which certainly do raise constitutional questions when implemented, but those concerns pale compared to the concerns that would arise over the judicial usurpation of executive powers.

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  • Thanks @user6726. I wasn't proposing the judicial usurping executive power, but instead acting as a check on it, much as it does in issuing search/surveillance warrants. – Burt_Harris Jul 29 at 1:06

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