*

Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit

Judge for the Fourth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-4410.

Robert SMITH, Ernest Porter, American Civil Liberties Union of

Florida, Incorporated, a Florida non-partisan organization, Roger

Kinkle, on behalf of himself and all others similarly situated,

Plaintiffs-Appellants,

William Pitts, Plaintiff,

v.

Joaquin AVINO, in his official capacity as manager of

Metropolitan Dade County, Florida, Metropolitan Dade County,

Defendants-Appellees.

Aug. 12, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 92-2593-CV-KMM), K. Michael Moore, Judge.

Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS*

, Senior

Circuit Judges.

RONEY, Senior Circuit Judge:

This is an official capacity suit against Metropolitan Dade

County and its manager challenging the curfew that was imposed in

the wake of Hurricane Andrew. The plaintiffs alleged the curfew

was unconstitutionally vague and overly broad, both facially and as

applied, and sought a declaratory decree, damages, and attorneys

fees pursuant to 42 U.S.C. § 1988.

A final judgment for the defendants resulted from the

decisions of two district judges: Judge K. Michael Moore denied

plaintiffs' motion for summary judgment alleging the facial

invalidity of the curfew, holding that the curfew was neither vague

nor overbroad. Smith v. Avino, 866 F.Supp. 1399 (Oct. 20, 1994).
In a subsequent order, he declined to reconsider that decision and

refused 28 U.S.C. § 1292(b) certification for immediate appeal.

Smith v. Avino, Case No. 92-2593-Civ-Moore (Dec. 8, 1994). Judge

Jacob Mishler held a bench trial of the "as applied" claims. These

claims asserted that the curfew was overbroad because it impinged

on plaintiffs' personal liabilities, primarily the right of travel,

and continued after the emergency had passed; and that the curfew

was void for vagueness because it was selectively enforced against

these plaintiffs. Based upon his findings of fact, Judge Mishler

resolved the issues against the plaintiffs, and, declining to

reconsider the earlier decisions of Judge Moore, entered final

judgment for the defendants. Smith v. Avino, Case No. 92-2593-CivMoore/Mishler (Feb. 27, 1995). Plaintiffs appeal all three of

those decisions.

Holding that these judges applied the correct standard in

considering challenges such as this one to curfews promulgated in

times of natural disaster emergencies made not clearly erroneous

findings of fact, and properly held that based on those facts and

the correct standard of review, the curfew was not

unconstitutionally vague or overly broad, we affirm.

We decide this case on the basis of the constitutionality of

the curfew. Defendants argued that because the defendant county

manager and the County itself acted as agents or instrumentalities

of the State of Florida, they cannot be held liable because they

were not the final policy making authorities and are immune from

suit under the Eleventh Amendment. Judge Moore refused to dismiss

the case on this ground. Judge Mishler held that declaratory
relief outlining the permissible scope of future executive actions

would be an advisory opinion contrary to Article III jurisdiction.

We voice no opinion as to the correctness of those decisions. We

assume, without deciding, that plaintiffs here are entitled to a

decision addressing their concerns about the constitutionality of

the curfew.

 As an alternative basis for affirming the district court,

defendants ask this Court to hold they are immune from suit under

the Eleventh Amendment, an argument plaintiffs argue has been

waived. Under the law of this Circuit, Eleventh Amendment immunity

is considered to be in the nature of subject matter jurisdiction,

which can be considered at any time in the litigation and cannot be

waived by the parties. Zatler v. Wainwright, 802 F.2d 397, 399

(11th Cir.1986) (This Court is duty bound to "review [its]

jurisdiction at any point on appeal, ... and the eleventh amendment

"partakes of the nature of a jurisdictional bar' ") (citations

omitted); Whiting v. Jackson State University, 616 F.2d 116, 127

n. 8 (5th Cir.1980) ("Although neither [defendant] has raised the

bar of the eleventh amendment, we consider it sua sponte because a

defense based upon the eleventh amendment is in the nature of a

jurisdictional bar."). Compare Benning v. Board of Regents of

Regency Universities, 928 F.2d 775, 777 n. 2 (7th Cir.1991) ("We

are not obliged to reach the Eleventh Amendment issue because the

Eleventh Amendment doctrine of sovereign immunity, though often

characterized as jurisdictional, does not function as a true

jurisdictional bar.").

 Though it is the usual practice to resolve subject matter
jurisdiction issues before reaching the merits, it is permissible

for the Court to bypass jurisdictional questions and decide the

case on the merits when the jurisdictional issue is difficult, the

law is not well-established, and a decision on the merits favors

the party who has raised the jurisdictional bar. See Slocum v.

United States, 515 F.2d 237, 238 n. 2 (5th Cir.1975) (Regarding

whether agriculture department order reviewable under the APA,

court decided there was no need to take up the "interesting"

jurisdictional question when a finding of no jurisdiction would

produce the same result reached on the merits). See also BrowningFerris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151

(2d Cir.1990) (Lengthy discussion of court's decision to assume

subject-matter jurisdiction in case where operator of waste

disposal facility challenging requirement of Environmental

Protection Agency). See generally Case Comment, Assuming

Jurisdiction Arguendo: The Rationale and Limits of Hypothetical

Jurisdiction, 127 U. of Pa.L.Rev. 712 (1979). Though rarely used,

the device of assuming without deciding subject matter jurisdiction

seems appropriate in this case.

Hurricane Andrew struck Dade County, Florida, on August 24,

1992. The storm's widespread destruction to homes, roads, power,

and communication services is undisputed. The Governor of the

State of Florida issued an Executive Order that declared a state of

emergency and provided that Miami city and Metropolitan Dade County

officials could impose curfews until December 21, 1992. The county

manager issued a proclamation setting a curfew for the County from

7:00 pm to 7:00 am. The National Guard, as well as other law
enforcement officials, was called in to assist local police. Over

the next few weeks, the curfew was modified as to geographical area

and time of enforcement. By October 2, 1992, the curfew was in

effect from 10:00 pm through 5:00 am and covered a specified area

of south county. Each proclamation required that persons in the

affected area were to remain in their homes during the curfew

hours, unless otherwise authorized. The curfew was lifted November

16, 1992, twenty-four hours after the National Guard departed.

The challenged curfew language required that "[a]ll persons

residing in these areas are commanded to remain in their homes

during the hours of the curfew, unless otherwise authorized by Dade

County, State of Florida or federal officials."

 The basic law concerning the vagueness and overbreadth of

legislative authority has been established by the Supreme Court.

A statute is void for vagueness when its prohibition is so vague as

to leave an individual without knowledge of the nature of the

activity that is prohibited. NAACP v. Button, 371 U.S. 415, 83

S.Ct. 323, 9 L.Ed.2d 405 (1963). To pass constitutional muster, a

statute must "give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited.... [and] provide explicit

standards for those who apply [it]" to avoid arbitrary and

discriminatory enforcement. Grayned v. City of Rockford, 408 U.S.

104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Even

a clear, precise ordinance may be "overbroad" if it prohibits

constitutionally protected conduct. Grayned, 408 U.S. at 114, 92

S.Ct. at 2302.

 Once a law is determined to be constitutional as written, it
may still be challenged if it was applied in an unconstitutional

manner. Smith v. Goguen, 415 U.S. 566, 576, 94 S.Ct. 1242, 1248-

49, 39 L.Ed.2d 605 (1974); Palmer v. City of Euclid, Ohio, 402

U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971).

The key to judicial consideration to the challenge in this

instance lies in the circumstances under which the curfew was

instituted. The plaintiffs do not argue, nor can there be any

doubt, that the devastation and chaos created by Hurricane Andrew

required the authorities to act, and act quickly, to protect the

interests of the victims. In fact, the first prayer for relief in

the plaintiffs' complaint asked the court to declare

unconstitutional and unlawful the "failure of Defendants" to create

and implement constitutionally valid ordinances. Police action was

clearly required.

Cases have consistently held it is a proper exercise of police

power to respond to emergency situations with temporary curfews

that might curtail the movement of persons who otherwise would

enjoy freedom from restriction. Moorhead v. Farrelly, 727 F.Supp.

193 (D.V.I.1989) (ravages of Hurricane Hugo); United States v.

Chalk, 441 F.2d 1277 (4th Cir.1971) (civil unrest after racial

incident); In re Juan C., 28 Cal.App.4th 1093, 33 Cal.Rptr.2d 919

(1994) (widespread looting, violence during riots in Los Angeles).

 In such circumstances, governing authorities must be granted

the proper deference and wide latitude necessary for dealing with

the emergency. From prior decisions involving natural disasters,

both of the judges in the district court gleaned the proper

approach in such matters: when a curfew is imposed as an emergency
measure in response to a natural disaster, the scope of review in

cases challenging its constitutionality "is limited to a

determination whether the [executive's] actions were taken in good

faith and whether there is some factual basis for the decision that

the restrictions ... imposed were necessary to maintain order."

United States v. Chalk, 441 F.2d at 1281; Moorhead v. Farrelly,

727 F.Supp. at 200.

Plaintiffs concede a curfew was necessary when imposed. There

has been no suggestion that the defendants acted in bad faith. The

curfew was in direct response to the official emergency declared by

the Governor of the State and the factual emergency conceded to

exist. Flexibility in any such curfew is a key ingredient to

provide the enforcing authorities with the practical ability to

carry out the purposes for which it is instituted. Moorhead v.

Farrelly, 727 F.Supp. 193 (D.V.I.1989).

 Plaintiffs complain that the curfew is unconstitutionally

vague both on its face and as applied because it failed to advise

residents of the parameters of their right to travel. Though the

curfew allowed "authorized" travel, there was no criteria set forth

in the curfew order itself for obtaining authorization; no stated

exceptions for necessary travel to or from work, school, religious

activities, or in connection with medical or personal emergencies

for the residents; nor were there exceptions for emergency

personnel, such as ambulance drivers or firefighters to enter the

area during the curfew.

Contrary to plaintiffs' argument that this information was

unavailable to residents, the district court made factual findings,
unchallenged on this appeal, that the police were given guidelines

in the exercise of discretion to permit travel for medical reasons,

work, or school, and that the police trained the military in the

application thereof. There was also testimony that during regular

door-to-door visits by police officers, the community was advised

of the possibilities for obtaining authorization for travel during

curfew hours.

 Basically, plaintiffs argue that the curfew is

constitutionally flawed because it did not contain "built-in

exceptions" for necessary activity. State of Connecticut v. Boles,

5 Conn.Cir.Ct. 22, 240 A.2d 920, 923 (1967). That court, in

considering a curfew that was imposed to quell a riot, acknowledged

that "[u]nder usual and normal circumstances and as a general

proposition, this may be true. But the circumstances existing at

the time were not usual, nor were they normal." Id. While we

would agree with plaintiffs that in a normal situation, the

proclamation should be as informative as possible, under the

emergency circumstances present in this case, the proclamation was

not constitutionally flawed because it did not include exceptions.

In an emergency situation, fundamental rights such as the right of

travel and free speech may be temporarily limited or suspended.

See Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12

L.Ed.2d 992 (1964); Korematsu v. United States, 323 U.S. 214, 65

S.Ct. 193, 89 L.Ed. 194 (1944).

 The claims tried by Judge Mishler—that the curfew was

overbroad because it impinged on plaintiffs' personal liberties and

continued after the emergency ended and that it was void for
vagueness as it was applied to plaintiffs because of selective

enforcement—were denied because the findings of fact did not

support the claims. Those findings are protected here by the

clearly erroneous standard of review.

The district court properly held that it could not say that

the curfew was so broad or vague that it unconstitutionally denied

personal liberty without due process of law. The nature of the

emergency and the exigency of the time warranted the imposition and

length of the curfew.

It is significant that the parties have cited no cases, nor

have we found any in which a curfew mandated because of situation

caused by a natural disaster was held unconstitutional so that

affected persons could recover damages against the local

authorities.

AFFIRMED.