May 21, 2020.
In social media, news, and among friends, COVID-19 has been a consuming, if not exhausting topic of conversation. We’ve all shared inconveniences relating to departures from normal routines with stores, masks, out-of-school kids, etc. My questions, however, are about fundamental differences in legal interactions between governments, police, and citizens. As an attorney, the orders from the government struck me as nothing I’d ever seen. Aren’t quarantines for sick people? How can you shut down businesses across a whole state? What will this do to our economy? Is this a threat that warrants collapsing the economy and individuals’ livelihoods? What the hell is a “stay-at-home” or “shelter-in-place” order anyway? Since when does such a thing even exist? The term is being thrown around as if it was an established legal device. Everybody wants to get on a team and fight disease, but since when does a governor or mayor in America enjoy the power to order healthy citizens in an entire state to be confined in their homes? And tell them they can’t go places? Livelihoods have been demolished as a result of the shutdown orders. This post is about how courts have previously handled infectious disease, and where the boundaries are for what is constitutional.
For many small businesses and individuals in California, there are serious concerns about the constitutionality of the quarantine orders. Private businesses have been shut, individuals have lost jobs, and people are currently being threatened with jail or fines for things as simple as sitting on a public beach or park bench. The state government’s orders have been further augmented by local authorities, and are enforceable by extensive police powers. In many localities, including in San Diego, the Police have made extensive displays of power to enforce the orders and to keep citizens from walking on sidewalks, parks and beaches.
There are reasons for concern that the orders that issued by the Governor’s office represent unconstitutional overreach. The orders are undeniably unprecedented in scope, and in their control of basic activities that Americans have typically enjoyed as citizens—even during periods of contagious disease. These orders have restricted movement of individuals and businesses unlike anything we’ve ever seen, other than in countries controlled by authoritarian regimes. While they may have been well intended, they set some dangerous legal precedents for what has historically been a free society.
Americans are no strangers to infectious disease. As a country, for hundreds of years we have dealt with deadly and debilitating disease, such as yellow fever, polio, measles, mumps, smallpox, 1918 “Spanish” Flu, AIDS, Ebola, Zica, H1N1, “bird flu,” diphtheria, typhoid, hepatitis outbreaks, etc. The various pathogens we have confronted as a nation have ranged greatly in virulence and contagion. None, however, have resulted in the enormous level of government oversight and control we have seen recently in response to the COVID-19 outbreak.
On March 4, 2020 Gavin Newsom’s “Shelter in Place” Executive Order N-33-20, stated: “I as State Public Health Officer and Director of the California …order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operation of the federal critical infrastructure sectors…” The governor thus effectively placed the entire state of California under house arrest. It placed strict criteria on when and how people might walk around, if at all: “When people need to leave their homes or places of residence, whether to obtain or perform the functions above, or to otherwise facilitate authorized necessary activities, they should at all times practice social distancing.” The order, therefore, mandated all citizens (healthy or not), for a potentially unlimited duration, to be confined to their homes, with limited exceptions. It closed people’s businesses and livelihoods based on whether they were “essential” or “nonessential” and based on the premises that (a) closing businesses and social distancing would have a meaningful impact on transmission of the disease to “bend the curve”; and (b) the risk of harm from disease outweighed the risks to economic livelihoods.
So, with a signature, the State order basically set aside many of the basic rights and civil liberties that most citizens have come to know as hallmarks of living in the United States. Some of these rights at issue are found in the Bill of Rights, and involve 1st Amendment rights to peaceably assemble, and to move about freely, even on traditional public forums, such as parks, streets, and beaches. Also, the 5th Amendment is also of concern, because property, including businesses that are taken for the public good under powers of eminent domain are usually entitled to compensation.
As we all know, the order immediately closed all restaurants in California, bars and nightclubs, entertainment venues, gyms and fitness facilities, conventions centers, and salons. Disneyland, L.A. Fitness, SeaWorld, movie theaters, etc. The financial impact would be extraordinary. To emphasize everything further, miles and miles of beaches, bike paths, and public parks have been largely closed to running, walking, swimming, sitting and general use. The have been taped off, and guarded by police ATVS, and police helicopters in a fairly impressive display of force. In San Diego, citizens were threatened with $1000 fines or jail for walking or sitting on a beach, or for going for a swim in the ocean.
Newsom’s office then advised the public, on March 19, 2020 in Executive Order N-60-20 that the mandate against all California residents to stay home except for essential needs would be continued: “All residents are directed to continue to obey State public health directives…”. The order also reminded citizens that “the threat posed by COVID-19 is dynamic and ever-changing, and the State’s response to COVID-19 should likewise retain the ability to be dynamic and flexible.”
On government websites, the governor explained that information on the websites has the same effect as orders: “The Governor has ordered Californians to obey the directives of the State Public Health Officer. Those directives take many forms; they include specific materials linked on this page, as well as these questions and answers. These questions and answers are directives from the State Public Health Officer, and have the same force and effect as other State Public Health Officer directives.” Therefore, websites are important. The California website clarifies that: “Additionally, as noted above, you may leave your home as long as you do not gather with people who are not members of your household.” https://covid19.ca.gov/stay-home-except-for-essential-needs/#politicalhttps://covid19.ca.gov/stay-home-except-for-essential-needs/#political
The website recently loosened the grip of the Governor’s order to permit Californians to enjoy some “acceptable” activities. Provided you maintain 6 feet of distance, you can now play badminton (but only singles), canoeing (but only singles), golf as long as you don’t use a cart, you may practice meditation (but not sitting on a beach or a park), Outdoor Photography, “Exploring Rock Pools,” practice “soft” martial arts such as Tai Chi, and Chi Kung, but not in groups, enjoy trampolining, yoga, and watching either a sunrise or sunset. And those prescribed behaviors all assume a local order isn’t in place that is more restrictive to permit personal activities. Those may not be tremendous consolations to citizens who have had their businesses shut down, or lives disrupted due to the orders. Will it save lives or “bend the curve” to only allow citizens to walk on a beach, but not sit or stop? Surfing was banned until recently. To stop spread of disease, do citizens need their governments to mandate that badminton singles are acceptable, but not doubles? Asking such questions may appear somewhat trite in the face of serious disease, but the very existence of orders from the government on such trifling subject matter is what may warrant the questions. Is it really necessary for the governor to opine on the right of citizens to engage in activities such as “trampolining?” The fact that a government website exists to sanction such activities as “legal” begs for conversations about what role citizens expect government to have in their lives, including during times of infectious disease. Do we want overlords for the sake of safety? What levels of freedom are people willing to surrender in exchange for what level of safety? And can government orders really deliver it anyway? Or are we better going with science and common sense? Couldn’t people do this on their own without being compelled by a governor or mayor? Do we really want to give governors and mayors absolute powers that allow them to tell people when they can go canoeing? These were some of my questions.
Quarantine Legal History
Quarantine powers have long been recognized as important governmental powers, but within limits. The U.S. federal government enjoys quarantine powers through Section 361 of the Public Health Service Act. It gives the Surgeon General broad powers to make regulations to curb the transmission, introduction, and spread of disease originating from within or outside of the country. 42 USC § 264. Authority under this statute has largely been delegated to the CDC under 42 Code of Federal Regulations parts 70 and 71. However, even though the federal government has this power, it has usually established guidelines and left orders and enforcement to the state governments.
The U.S. Supreme Court recognized broad quarantine powers of states in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25, (1905); Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 387, 22 S.Ct. 811 (1902); and in Ogden v. Gibbons, 22 U.S. 1, 203, (1824). In Jacobson, the court upheld the rights of state governments to hold asymptomatic person in some cases, but only until it could be ascertained that the person was not a threat to the community. Jacobson at 29. The Jacobson court did say, however, that a law could be struck down if it “has no real or substantial relation to [that goal], or is, beyond all question, a plain, palpable invasion of rights” secured by the Constitution. Jacobson at 31.
Courts have sometimes struck down quarantine orders, when they were found to be arbitrary or unreasonable in relation to the goal of protecting the public health. In Jew Ho. v. Williamson, 103 F. 10 (C.C.D.Cal.1900), the courts held that it was “unreasonable, unjust, and oppressive” to seal off an entire section of San Francisco to prevent the spread of a harmful pathogen—bubonic plague. Yet in this case, the Governor’s order had shut significant portions of the entire state of California—and it applies to every single citizen of the State.
Similarly, in In re Smith, 40 N.E. 497 (1895), the New York Court of Appeals struck town a blanket quarantine order against non-vaccinated individuals when there was no reason to believe they had been infected or exposed to the disease. In our present situation, Governor Newsom’s order covers the entire State of California, and all of its citizens and noncitizens, infected or not.
More recently, in 2016, in relation to the Ebola outbreak which threatened to spread across the world, in Hickox v. Christi, 205 F.Supp.3d 579 (2016), a federal court upheld the constitutionality of quarantine powers of the state over an asymptomatic nurse for a limited period of time, but only because she had been a first responder with high contact with infected persons, where she had demonstrated signs of illness with fever upon return, and considering the enormously dangerous virus. That Court noted the virulence of the virus, and went to great lengths to discuss the procedural and technical safeguards that were employed to address a very serious threat to human health from a virus of high fatality rates. According to the World Health Organization, Ebola has an average fatality rate of 50% (“The average EVD case fatality rate is around 50%. Case fatality rates have varied from 25% to 90% in past outbreaks.”). https://www.who.int/news-room/fact-sheets/detail/ebola-virus-diseasehttps://www.who.int/news-room/fact-sheets/detail/ebola-virus-disease
An important takeaway from the Hickox court, which unlike others was squarely in this century, is that it matters very much what threat is being confronted, how broad of a scope the order claims, and what procedural safeguards are in place to protect against unnecessary intrusion into personal civil liberties.
Many are concerned that the remedy to curb the threat of the COVID-19 virus should not harm more people than the virus itself. Have the shutdown orders caused more harm than they prevented? Unfortunately, this cannot be answered without considering the numbers relating to the disease itself, and some morbid discussions about numbers.
That being said, to be clear, COVID-19 is a very real disease. Any discussion of numbers is not intended to avoid that fact. It has caused undeniable injury to those affected, and we can never forget the human suffering it has caused, or be callous to that human factor.
On a macro policy level, however, the actual threat to the vast majority of the population must be statistically considered, and we must consider the disease in the larger scheme of death as a part of life and civilization. As of May 19, 2020 the total number of deaths in the State of California where COVID-19 was a factor was 3,334. The total number of confirmed cases was 81,795. The total number of persons tested was 1,339,316. According to the 2019 census, California has a population of 39.51 million persons. This means the virus, or more than likely complications related to infection and other co-morbidities have killed 0.008% of California’s population. It means that about 0.2% of the population has been infected with COVID-19. Only 3.4% of the population of the state has been tested. Thus, it is unclear how pervasive the virus is in our community, but the possibility is it is far more prevalent than thought, which could mean it is far less harmful than stated. Widespread testing is apparently unreliable and largely unavailable, so the impact of the disease is unknown. Undeniably, there are many unknowns about the virus, but that raises in itself questions about the scope of the order that has placed Californians under house arrest and shut down large portions of the economy. The order applies to 100% of 39,510,000 citizens, although only 0.2% has been registered as infected by COVID-19, and an even smaller portion has succumbed to the disease.
To put the disease in context with other California related diseases that cause death, in 2017 alone, according to the CDC, deaths of citizens in California were in numbers of 62,797 (heart disease); 59,516 (cancer); 16,355 (stroke); 16,238 (Alzheimer’s);13,881 (chronic lower respiratory disease); 13,840 (accidents); 9,595 (diabetes); 6,340 (influenza/pneumonia); 5,596 (hypertension), 5,325 (chronic liver disease/cirrhosis); 3,184 (firearms deaths), 2,022 (homicide), 4,868 (drug overdose deaths). https://www.cdc.gov/nchs/pressroom/states/california/california.htmhttps://www.cdc.gov/nchs/pressroom/states/california/california.htm The math is unpleasant, and is not intended to minimize the suffering to those affected by COVID-19, but is cited to place the threat from the disease in perspective with other public health threats causing death.
On the financial front, According to California’s Employment Development Department, California’s unemployment rate in March was 5.3%, which was the state’s largest unemployment rate increase on record going back to 1976. March 2020 saw the loss of 99,500 non-farming jobs, which was the fourth largest on record and driven by declines in California’s industry sectors which included Leisure and hospitality which lost 67,200 jobs, restaurant and food services were hit hard, construction lost 11,600 jobs. There was a loss of 15,500 jobs in the category of “other services.” About the only increase in jobs was in the government section which gained 5200 jobs.
As of May 14, 2020, things got much worse, where unemployment benefit payments topped $12 Billion: From an EDD News Release on that date: “According to the latest data from the EDD, a total of 4.7 million claims have now been processed since a surge in unemployment demand began during the week ending March 14, and a total of $12.3 billion in benefits has been paid to workers in need. For a sense of how large these numbers are, at the height of the last recession the EDD processed about 700,000 claims over a two-month period.” Thus, the effect of this shut down order has been catastrophic to state and federal budgets, and we’re probably just getting started in appreciating the long term effects. The financial suffering will exact its own toll on California families, as well as on their mental and physical wellbeing. Trillions of dollars have been allocated for government relief and unemployment because of the shutdown orders that have left people unemployed and businesses shut.
Constitutional Concerns of the California COVID-19 Orders
Commerce Clause: Under the Commerce Clause, the Orders shutting businesses deemed “nonessential” would arguably unlawfully interfere with interstate commerce and violation of Art. 1, § 3, ¶ 8, of the Constitution of the United States. The wholesale restraint of healthy, asymptomatic persons, and healthy businesses for a fear that they might spread a disease of unknown scope and virulence is so broad as to threaten interstate commerce. This is not a “quarantine” order on its face that is principally concerned with control of infected persons or even likely exposed person, but is a regulation of all healthy persons in the entire State. There is authority allowing for quarantines to extend to asymptomatic persons. For example, the court in Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, a case from Louisiana, upheld what was probably a racially motivated state statute that excluded a ship full of immigrants from a “quarantine” area. The court rationalized its decision, claiming that the commerce clause was not offended, however, only since in 1902: “…criminals, diseased persons and things, and paupers, are not legitimate subjects of commerce.” However, it is unlikely that such a result would be permitted today, especially since healthy businesses and stopping free movement of persons being shut down has an enormous impact on interstate commerce—and a relatively marginal impact on a virus that has already had significant community spread.
Equal Protection. The Declaration of Independence says that all men are permitted a right to life, liberty, and the pursuit of happiness. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The shutdown orders, which compel every citizen in California to stay at home, and which close businesses, may justifiably face scrutiny under the Equal Protection clause, because of conflict with § 1 of the 14th Article of Amendment to the Constitution of the United States, in that it deprives persons and businesses of liberty and property rights without due process of law, or because it denies them equal protection of the law. The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty or property without due process of law.” U.S. Const. Amend. XIV. The “touchstone” of due process is protection of the individual against arbitrary action of government.” County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, (1998). In the most basic civil commitment proceeding, where a person is involuntarily confined, the state has to follow substantive and procedural due process. The Supreme Court has recognized that “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). For a potential substantive due process violation, the question is “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” See Benn v. Universal Health System, Inc., 371 F.3d 165, 174 (3d Cir.2004).
In Hickox v. Christie, 205, F.Supp. 3d, 598-600, the court found a possibly contagious nurse’s confinement was reasonable, but only because she did receive an individualized assessment, less restrictive means were not available, and that the duration of her confinement was not unreasonable. Importantly, orders can be stuck down under the Equal Protection clause where they violate civil liberties, and do not use the “least restrictive means” to accomplish their ends. Whether shutting down businesses across the state and confining every citizen of California to their homes is the “least restrictive means” available is certainly debatable.
The Supreme Court in Shelton v. Tucker, 364 U.S. 479, 488 (1960) held that even a legitimate government “purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Other courts have similarly recognized the needs for due process in confining non-criminals, such as Welsh v. Likins, 373 F.Supp. 487, 502 (D.Minn.1974) aff’d, 525 F.2d 987 (8th Cir.1975)(recognizing a “constitutional duty on the part of State officials to explore and provide the least stringent practicable alternatives to confinement of noncriminals”).
An important part of due process analysis is also evaluating the nature and duration of a confinement. Seling v. Young, 531 U.S. 250, 265, (2001)(noting that “due process requires that the conditions and duration of confinement under [a civil commitment act] bear some reasonable relation to the purpose for which persons are committed”). The criteria for the end of the current orders is nebulous at best.
Even under a procedural due process standard, procedural due process requires that a deprivation of liberty be “accompanied by minimum procedural safeguards, including some form of notice and a hearing.” Mitchell v. W.T. Grant Co., 416 U.S. 600, 624, (1974); Zinermon v. Burch, 494 U.S. 113, 127, (1990). People across the State of California had businesses shut and were subject to confinement orders, without a hearing to consider basics, such as: “(1) the private interest affected by the official action; (2) the risk that the plaintiff will suffer an erroneous deprivation through the procedure used and the probable value if any of additional procedural safeguards; and (3) the government’s interest.” Mathews v. Eldridge, 424 U.S. 319 (1976).
Takings. Shutting down private business, without compensation, usually constitutes an unlawful taking under the 5th Amendment of the U.S. Constitution, which is actionable against the states under the 14th Amendment. The Fifth Amendment to the U.S. Constitution provides that no citizen may be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Freedom of Expression, Personal Liberty and Assembly. The Order arguably violates the basic rights of personal liberty and freedom of assembly guaranteed by the Bill of Rights. The First Amendment of the Constitution guarantees the rights of citizens to peaceably assemble, including on public lands like parks and on beaches. These are traditional public forums where citizens have been granted vast freedoms. Preventing people from peaceably assembling in places like parks and on beaches, which are traditional public forums, could be viewed as a violation of the 1st amendment rights. If these activities are regarded as “expressive conduct” then “time, place, and manner” restrictions on person must be constitutionally appropriate, meaning they must be content neutral, “narrowly tailored,” serve a significant governmental interest, and leave open ample alternative channels for the expressive action. See Clark v. Community for Creative Non-Violence (1984).
The United States Supreme Court has recognized the right of filing a petition for a writ of habeas corpus to protect against abuses of these rights, and with this device established as a fundamental right to guard against arbitrary executive power, lawless and arbitrary state actions, and unlawful restraints on personal liberty. With threats of arrest in place by state and local government for violation of its orders, these remedies may have their place in some cases. The writ of habeas corpus means “show me the body” in Latin, and the writ of habeas corpus was recognized to protect against unlawful and indefinite imprisonment. This right was established in Article I, Section 9 of the U.S. Constitution: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” Thomas Jefferson said the protections provided were “essential principals of our Government.” According to the ACLU, Alexander Hamilton once wrote in his Federalist Paper No. 84 “The establishment of the writ of habeas corpus, the prohibition of ex post facto laws…are perhaps greater securities to liberty and republicanism than any [the Constitution] contains.”
False Imprisonment. Confining people to their homes against their will by mandate is arguably a false imprisonment under California Penal Code and civil common laws in California. “False Imprisonment” means: a defendant intentionally and unlawfully restrained, detained, or confined another person, and the defendant made the person stay or go somewhere against that person’s will. See CACI 1400. In California, a person can be falsely imprisoned by use of force or threat of force, by physical barriers or menace, or any unreasonable duress. There is actually no requirement that the person being imprisoned even be aware that he or she is being restrained, confined or detained. Scofield v. Critical Air Medicine, Inc., 45 Cal.App. 4th 990 (1996). The civil and criminal causes of action have identical elements as found under California Penal Code 236. In civil cases, damages can include loss of time, physical discomfort or inconvenience, resulting illness or injury, and business interruption.
The Governor’s quarantine orders, and other local orders on the COVID-19 situation merit constitutional evaluation because of their extraordinary breadth. A variety of persons and businesses will have standing to challenge these orders, and they may very likely be successful. While everybody wants the disease under control, we cannot ignore the extent of government control represented by these orders and how the authority could be used long after this particular threat has passed. The authoritarian legal precedents they establish are dangerous for any society that recognizes the rights of its citizens to move about freely and prosper in their businesses, and the orders should be rescinded sooner than later. The scope of these orders appears to exceed any prior powers of governments in times of quarantine, or widespread infectious disease. While states have fairly broad powers, and should, to confront matters of public health and to enforce quarantines in favor of public health, they must be constitutionally limited in scope, and we cannot indefinitely abandon basic principles of free society because of every threat to our safety. This threat is no longer so immediate to justify such extreme rule. The virus has been on the world stage now for quite some time. Some basics about the threat level are known. In most jurisdictions across the country, the hospitals have capacity, and in many places, they are virtually empty, so it appears the curves have been largely bent. Perhaps these orders have had some role in this result, but that is hard to measure currently. The mission of the “stay-at-home” order cannot be ever changing, and it cannot be indefinite in duration, particularly which such incredible controls over personal liberty and commerce. The Orders have badly harmed businesses, and restricted liberties of citizens, so at this point they should be rescinded, and with citizens being encouraged, not by government mandate, but by appeal to social responsibility and good citizenship, to help those who have been sickened, or lost friends and family. People can be encouraged to continue to practice social distancing to protect themselves and out of basic courtesy to the most vulnerable among our population. We can protect our population from this virus with common sense and science without surrendering all of our values as a free society under law.
Article by John Buche, J.D. John is a partner at Buche & Associates, P.C. with headquarters in San Diego. This article was researched and written based on general interest of constitutional matters of general public interest that affect the State and its citizens. It expresses opinions that may not be shared by others at the firm, and is by no means intended as an exhaustive analysis of the subject matter.