by Dianne Post
The National Lawyers Guild put out an updated and constantly changing Know Your Rights brochure on March 27 in response to the pandemic. Historically, states of emergency, mandatory quarantines and curfews have often been used to expand state control over political and civil freedom.
First, let’s define a few terms.
Quarantine means compulsory separation, including restriction of movement, of people who potentially have been exposed to a contagious disease, until it can be determined whether they are sick or no longer pose a risk to others.
Isolation means separating people known or suspected to be infected from those who are not sick to prevent them from transmitting the disease to others.
In recent history only a few public-health events have prompted a federal isolation or quarantine order.
A shelter-in-place or stay-at-home order requires everyone who has a home to stay inside it, with limited exceptions for going to the grocery, pharmacy, to seek medical care, to exercise or walk pets, etc.
A curfew forbids people from going or staying outside during certain hours, sometimes with exceptions for essential service workers and people seeking treatment.
Presidents can declare a federal state of emergency in response to an economic, national security or natural disaster or health crisis. 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, but we retain our constitutional rights.
If the Secretary of Health and Human Services declares a public health emergency, it gives them the power to make grants, authorize the use of treatments the FDA has not approved, and investigate the cause, treatment, or prevention of the illness. 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, or that emergency rooms may transfer patients who are not in stable condition.
Congress may choose to give or take away a President’s emergency powers, and those powers may be challenged all the way up to the Supreme Court if necessary.
The federal government derives its authority for isolation and quarantine from the Constitution’s Commerce Clause. The Public Health Service Act authorizes the HHS Secretary to take measures to prevent the entry and spread of communicable diseases from foreign countries into the US 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.
The CDC is authorized to detain, medically examine, and release people arriving in the US or traveling between states who are suspected of carrying a communicable disease. The penalties for violation of federal quarantine laws are a fine of up to $1,000, imprisonment for up to a year, or both.
The Surgeon General is also authorized to make and enforce regulations to prevent the spread of a communicable disease, including arrest and detention.
A state of emergency ends whenever Congress passes a joint resolution ending it, or the President declares it over. It also ends automatically after a year unless the President declares the emergency is continuing. In practice, declared emergencies tend to last many years because Presidents say they are continuing and Congress does not interfere.
A governor’s executive order declaring a state of emergency sets the effective dates and duration of the emergency, the affected geographic areas of the state, the conditions giving rise to the emergency, and the agency or agencies leading the response. The declaration may also identify state rules and regulations that are waived or suspended during the emergency.
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 on March 24, and it is valid to April 30. He has been roundly criticized for his lax definition of essential services, but less mentioned is the section where speech and religion are exempted. Churches do not have a constitutional right to meet in an emergency; they are subject to the same general health and safety laws as the rest of us.
Attorney General Mark Brnovitch issued an opinion on March 31 regarding enforcement of the executive order: “Local law-enforcement officials and county sheriffs have authority ... 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 AG outlined the provisions under which a person may be subject to arrest. It is a class-3 misdemeanor to hide the fact that a person has a contagious disease, and anyone knowingly or intentionally exposing others to the infection or who leaves or attempts to leave custody, isolation, quarantine or detention is guilty of a class-2 misdemeanor. Note that in 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 (maybe a hangnail) should be enough to prevent arrest. You may be quarantined or isolated if it’s the least-restrictive means of protection, likely in your residence, which “shall be maintained with adequate food, clothing, medication and other necessities, competent medical care and means of communicating with those inside and outside.”
As of March 23 at least 7,300 National Guard members are aiding in the coronavirus response in all 50 states, as well as DC and Puerto Rico. The state and federal governments 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, but commanding officers have wide latitude under state law: “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.”
Terrorism charges: The Department of Justice claims 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.
As of March 24 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 ten, and must maintain six feet of distance between them.
Under those orders it’s likely legal for the government to shut down protests of more than ten 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 protests 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, and we cannot take another step backward. We must instead demand a different future, a better future, that includes and works for us all.
Dianne Post is an attorney who represented battered women and children for 18 years, then moved to international human rights doing gender-based violence work. She currently facilitates for the Central AZ National Lawyers Guild and acts as treasurer for Central Phoenix Inez Casiano NOW, facilitator for the Arizona Justice Alliance, legislative liaison for State NOW, and serves on the ERA Task Force AZ board. In her spare time she grows organic vegetables and reads.
This article is edited and condensed; we found it on Blog for Arizona.