The National Lawyers Guild put out an updated and constantly changing Know Your Rights brochure on March 27 in response to the pandemic. The Rule of Law, already on precarious ground in the U.S., is often the first to go in a crisis. As Hungary’s authoritarian Prime Minister Viktor Orban has shown, fascism never takes a rest but in fact uses a crisis to advance its aims. Historically, states of emergency, mandatory quarantines, and curfews have often been used to expand state control over political and civil freedom. But we can build safer communities and respond to COVID-19 without expanding the police or medical surveillance.
What do the Terms mean?
Quarantine: Compulsory separation, including restriction of movement, of people who potentially have been exposed to a contagious disease, until it can be determined whether they have become sick or no longer pose a risk to others. This determination could be made, for example, based on the time elapsed from their potential exposure. Large-scale isolation and quarantine was last enforced during the influenza (“Spanish Flu”) pandemic in 1918–1919. In recent history, only a few public health events have prompted federal isolation or quarantine order.
Isolation: Separation of people known or suspected (via signs, symptoms or laboratory criteria) to be infected with a contagious disease from those who are not sick to prevent them from transmitting the disease to others.
A shelter-in-place(currently in place in some states) or stay-at-home(currently in place in other states) order requires everyone who has a home to stay inside it, with limited exceptions (going to the grocery, pharmacy, to seek medical care, to exercise or walk pets, etc.). Even when there is no formal order, some government officials have announced restrictions on movement. For example, in New York, Governor Cuomo has said that people should stay six feet away from each other in public.
A curfew forbids people from going or staying outside during certain hours, sometimes with certain exceptions (e.g. essential service workers, people seeking medical treatment). Curfews have been much more common historically, especially when the government has responded to unrest, riots, and uprisings.
Federal State of Emergency
Presidents can declare a state of emergency in response to economic, national security, natural disaster, or health crises. Depending on the nature of the emergency and any limits set by Congress, a state of emergency may give the President broader powers than usual to address the emergency. We do not automatically lose our rights in a state of emergency. Still, there are very real risks of overreach. Emergency powers can range from using emergency spending powers or making it easier for people to get Medicaid coverage, to testing biological weapons on human subjects or locking people up indefinitely without court involvement.
A public health emergency can also be declared by the Secretary of the Department of Health and Human Services. When the Secretary of the Department of Health and Human Services declares a public health emergency, it gives them the power to make grants, authorize the use of a treatment that the FDA has not approved, and investigate the cause, treatment, or prevention of the illness causing the emergency. If both the Secretary and the President declare a state of emergency, it gives them the power to override certain laws. For example, they can say that doctors don’t have to keep patient information confidential. They can also say that emergency rooms can transfer patients even if they are not in stable condition.
The U.S. Congress can choose to give or take away the president’s emergency powers. Additionally, a President’s exercise of emergency powers can be challenged in court, all the way up to the Supreme Court if necessary. If the court sees the use of emergency powers as unrelated to the emergency or unauthorized by a statute, it should say the president can’t use them.
The federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution. Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states. The authority for carrying out these functions on a daily basis has been delegated to the Centers for Disease Control and Prevention (CDC).
Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases. Penalties for violation of quarantine laws under title 42- chap 6A-subchaptII-partG-sec271 is $1,000 maximum or imprisonment for up to one year or both.
The Surgeon General is also authorized to make and enforce regulations to prevent the spread of a communicable disease. A person may be apprehended and detained. Title 42-Chap6A-subchapterII-partG-sec264. Review of these penalties or detention is available with a habeas corpus challenge under 28 U.S.C. §2241.
A state of emergency ends whenever Congress passes a joint resolution ending it, or the president declares it is over. It will also end automatically in a year, unless the president declares the emergency is still happening. In practice, emergencies tend to last many years, because presidents say that the emergency is continuing, and Congress does not interfere.
Governor’s State of Emergency
Although each state differs, a governor may declare an emergency by issuing an executive order or other declaration to that effect. The declaration addresses the effective dates and duration of the emergency, geographic areas of the state covered, conditions giving rise to the emergency, and the agency or agencies leading the response activities. The declaration may also identify state rules and regulations that are waived or suspended during the emergency.
In Arizona, that power is in A.R.S. §26-303 that outlines different rules for a state of war and a state of emergency. In a state of emergency, the governor has complete authority over all state agencies and police power in the state. The powers end when the emergency ends or a concurrent resolution of the legislature declares it at an end. The state can take on obligations of $100,000 or less to meet the needs without legislative authorization.
What rights are lost or changed in a state of emergency at the state level?
Each state has different powers in a state of emergency, but they generally include the ability to impose curfews, order people and traffic off the street (generally enforced through policing), mandate quarantines, ration goods, declare price controls, suspend alcohol consumption, and limit public gatherings.
Governor Ducey issued his Stay Home, Stay Healthy, Stay Connected executive order 2020-18 on March 24, 2020 and it is valid to April 30, 2020. He has been roundly criticized for his lax definition of essential services. Less mentioned but as important section is 4 (f) where speech and religion are exempted from the order. While it states that the 6-foot physical distancing must be maintained, no churches are noted for doing that. Many churches across the country have insisted on meeting in large gatherings, even claiming to organize a “Woodstock,” and pastors have been arrested for violating the orders and for claiming to have cures for the disease. Churches do not have a constitutional right to meet in an emergency as they are subject to the same general health and safety laws as the rest of us. Responsible churches are going on line and connecting in other ways – telephone for example. Those who refuse, should be closed down as a threat to public health.
The Arizona attorney general issued an opinion on March 31, 2020 regarding the enforcement of the governor’s executive order. No. I20-006 (R20-006) (PDF link) Re: Authority of Local Officials and County Sheriffs to Enforce Violations of Lawful Emergency Declarations Issued By Cities and Towns and said, “Local law enforcement officials and county sheriffs have authority under A.R.S. § 26– 316 to enforce provisions of lawful emergency declarations issued by cities and towns. In exercising such authority, law enforcement officials must continue to be mindful of constitutional rights and should execute their duties in a manner that promotes justice.”
The attorney general outlined the provisions under which a person can get arrested. A.R.S. §36-630 says that it is a class 3 misdemeanor to hide the fact that a person has a contagious disease. The county health department or public health services shall investigate a contagious disease and if it exists, may adopt a quarantine and other sanitary measures. A.R.S. §36-624. A person who knowingly or intentionally exposes others to the infection or who leaves or attempts to leave custody, isolation, quarantine or detention is guilty of a class 2 misdemeanor (A.R.S. §36-737 (B)). Obstructing an investigation (e.g. lying about a test result) is a class 3 misdemeanor (A.R.S. §36-737(D)). Note that in (2)(e) of the Ducey declaration, no proof is necessary when a person is engaging in activities. So simply telling the police you meet one of the exemptions, (perhaps a hang nail), should be sufficient to prevent arrest. The attorney general failed to mention A.R.S. §36-631 that says a person who exposes himself with a contagious disease in a public place or thoroughfare is guilty of a class 2 misdemeanor.
The government has the power to enforce the executive order under A.R.S.§26-316 that says so and A.R.S. §26-317 that says a violation or refusal to obey is a class 1 misdemeanor. But A.R.S. §26-317 also says, “This provision does not apply to the refusal of any private organization or member thereof to participate in a local emergency or state of emergency as defined by this chapter.” “This chapter” is about “emergency management.” So any organization or person can just opt out. This of course makes no sense. If it’s a public health emergency, the public health should take precedence over some private organization or person. Here is something else the legislature needs to fix when they return next year in addition to a bill against “disaster capitalism” i.e. inflating prices or hoarding.
Can people be quarantined?
Persons may be quarantined or isolated if it’s the least restrictive means of protection. A.R.S. §36-788. It can be in the person’s residence. It shall be maintained with adequate food, clothing, medication and other necessities, competent medical care and means of communicating with those inside and outside ( C). AZ is certainly unable to provide that in its prisons. A group of people can be isolated or quarantined as well (A.R.S. §36-789). Within 10 days, the department shall file for a court order to continue the quarantine. The people must be notified within 24 hours and the hearing held within five days. A continuance can be requested for an additional 10 days in extraordinary circumstances.
If a court order is issued, it can be for no more than 30 days. The state can ask for an additional 30 days if warranted. The person(s) can file an order to show cause (OSC) that must be ruled on in forty-eight hours. If granted, the OSC hearing must be within twenty-four hours.
Any other type of hearing requested must be held within 10 days. If people cannot appear in court due to circumstances, the hearing can be held virtually. The court shall appoint a lawyer for the person or group who is objecting to the isolation or quarantine if they are not represented by counsel. The representation continues through the duration. It does not say who is going to pay for this lawyer. The health department must provide a way of communicating with the quarantined persons.
Other provisions in the law that the attorney general did not cite include A.R.S. §36-627 that authorizes the establishment of a temporary hospital for contagious diseases. Local boards or health departments may employ physicians and others to provide care and the cost shall be a charge against the county or city not the patient unless the patient is able to pay.
Can the national guard arrest or attack people inside the U.S. in times of emergency?
Yes, it is possible. As of Sunday March 23rd, at least 7,300 National Guard members are aiding in the coronavirus response in all 50 states, as well as in Washington, D.C. and Puerto Rico. The state and federal government generally claim that the role of the national guard is to provide food and medical supplies, as well as shut down places of public gathering. However, governors have wide leeway to use their state or territory’s guard members as they see fit, and they could be used to assist with policing, enforcing quarantines, or enforcing other emergency mandates, as they were in New Orleans following Hurricane Katrina.
In Arizona, the rules regarding the Guard are based on federal law. A.R.S. §26-151 Of concern is A.R.S. §26-159 regarding powers of commanding officers that states, “ The commanding officer shall use his own discretion with respect to attacking or firing upon a mob or unlawful assembly, and his honest and reasonable judgment in the exercise of his duty shall be a complete defense, both civilly and criminally, for any act done while on such duty.” This is an obvious response to the shootings in Jackson and Kent State in the 1960s where the Guard fired on and murdered unarmed students who were exercising their First Amendment rights to protest.
What about terrorism charges?
The Department of Justice (DOJ) has claimed it has the power to charge people who deliberately expose others to COVID-19 with terrorism, and some local prosecutors have charged people with “terroristic threats” for actions like deliberately coughing in someone’s direction while saying “coronavirus” or licking products in a store.
Is it legal for the government to shut down protests as a part of shutting down public gatherings?
As of March 24th, the governors of California, New York, and Louisiana have either stated publicly or passed Executive Orders declaring that people may not gather in groups larger than 10, and must maintain six feet of distance between them. In these cases, it’s most likely legal for the government to shut down protests of more than 10 people, or of people who are not practicing social distancing.
But it is definitely not legal to shut down a protest while allowing other gatherings, (e.g. churches) or to shut down one protest while letting another one on a different topic happen. It is definitely not legal to beat up protesters. And it is definitely not legal to keep suppressing protest even one minute past when public health officials say it is necessary.
We must remain vigilant to protect our constitutional rights and our democracy during this crisis. The violations of the Patriot Act hastily rammed through Congress are still with us. We cannot take another step backward. We must instead demand a different future, a better future, that includes and works for us all.