It’s No Trick — These Virginia Cities Are Criminalizing Halloween
July 1, 2019 By Chris B.
In Chesapeake, Virginia, trick-or-treaters over 12 years old can be punished for trick-or-treating with a fine of “not less than $25.00 nor more than $100.00 or by confinement in jail for not more than six months or both.” The potential penalty for asking for candy after 8 p.m., regardless of age? A maximum fine of $100, up to 30 days in jail, or both. Other Virginia cities, including Norfolk, Hampton, Suffolk, Portsmouth, and Virginia Beach, have comparable age and time limitations on trick-or-treating, as do other localities across the country.
Some of Virginia’s local ordinances are even more restrictive. For instance, in Newport News, “no accompanying parent or guardian shall wear a mask of any type.” This local restriction runs counter to the exception created by the Virginia Legislature, which permits masks worn as part of “traditional holiday costumes.” This is an exemption to a state law that makes it a Class 6 felony, punishable by up to five years in jail, for any person over the age of 16 to “wear any mask, [or] hood… to conceal the identity of the wearer.” Now, that is scary.
The Virginian-Pilot traced some of these laws back to concerns over "hoodlums" committing "mayhem" back in the late 1960s, but let’s creep it real: These Halloween restrictions are batty for a host of reasons.
These ordinances make no sense
These ordinances unnecessarily criminalize behavior and impose penalties that are grossly excessive. They are overly broad and impose arbitrary limitations that are not demonstrably connected to public safety. There is a significant risk that these policies will not be enforced consistently, disproportionately impacting children and people of color and persons with developmental disabilities. Although Chesapeake city officials announced on their website that officers will “not [be] actively seeking out violations of the time or age limits,” there is no way to ensure individual community members or law enforcement officials act accordingly. Moreover, it is foreseeable these provisions could be used to justify police stops, using reasonable suspicion of an ordinance violation as a pretense. Each police stop or citation could result in serious financial and immigration consequences, in addition to the criminal ramifications imposed.
These restrictions unduly limit expression
Reasonable policies that do not unduly burden the movement and expression of each person should be more than wishful thinking. If restrictions on trick-or-treating are deemed reasonable, what type of speech or expression will be sanctioned next? Laws that unnecessarily restrict an individual’s communication and social engagement are antithetical to the First Amendment because they interfere with an individual’s right to freely communicate without fear of retaliation, censorship, or sanction. The historical importance of door-to-door canvassing as a vehicle for the dissemination of ideas was recognized by the Supreme Court in 1939. More recently, the ACLU of Virginia has encouraged localities to repeal unconstitutional local bans on solicitation or panhandling and won cases ruling such bans are unconstitutional. Furthermore, restrictions imposed upon protected speech must be reasonable in time, place, as well as “narrowly tailored to serve a significant governmental interest.” Such laws must also be content-neutral, without “distinguish[ing] between favored and disfavored solicitation… regardless of the solicitor's purpose or the content of the solicitor's speech.” Local ordinances that prohibit trick-or-treating, or soliciting, on Halloween would not likely pass muster under this rigorous constitutional standard. Yet, residents either remain unaware of potential criminal sanctions or celebrate Halloween in fear of punishment.
Laws like this are unnecessary
Laws restricting trick-or-treating do not provide the community additional protection against dangerous or mischievous conduct. In an effort to clarify how the ordinance could be applied, Chesapeake officials distinguished between “a 13-year-old safely trick-or-treating with a younger sibling” who would not be punished for their conduct, whereas “[t]hat same child taking pumpkins from porches and smashing them in the street more likely will.”
Such pumpkin-smashing conduct, however, is already punishable under other laws — such as ordinances forbidding the destruction of property or disrupting the public peace — without respect to time or age. Trick-or-treating ordinances of which most are unaware are unlikely to restrict any troublesome behavior that is not already prohibited. If these ordinances require such extensive public explanation without providing additional safety benefits, repealing these provisions is more effective than nonenforcement.
Potential applications of the rule are absurd
Is it reasonable for this ordinance to be enforced against a person older than 12 who has a developmental disability? Is it foreseeable for a caregiver to subject to prosecution for contributing to the delinquency of a minor if they encourage their 14-year-old to go trick-or-treating or if their eight-year-old is asking for candy at 8:30 p.m.? Would it be reasonable to prosecute a family that started trick-or-treating at 5:30 p.m.? As an adult, should I be deprived of the opportunity to go trick-or-treating and show off my costume? I think not.
These provisions are no fun
These ghoulish limitations are too scary, even for Halloween. They also impose a severe limitation on a cherished tradition for many kids and families. Imagining all the little superheroes, vampires, princesses, pirates, and other trick-or-treaters who do not have enough candy in their bucket at 8 p.m. is simply terrifying.
In other words, the only thing a 13-year-old trick-or-treater should fear is a stomach ache at bedtime — not jail.
