I have provided below a link to a 2005 article (and a first page snapshot – the article is 8 pages) in which the authors discuss legal aspects of state police powers to order isolation, quarantine, health and inspection laws to interrupt or prevent the spread of disease. Note that the article is only the opinions of the authors, I am sure that additional legal authorities exist that the authors have not cited, the article is not directed to California where I am located, or to the county or city where I live, the article is from 2005, which is fairly recent in the context of legal discussions but likely there are additional relevant legal authorities subsequent to 2005, and, as commented below, every such situation and location must be separately evaluated and justified.
Why am I posting this? Plain and simple, because I am a lawyer, I am interested in laws and processes relating to responsibilities, rights, authority, decision making, governance, and risk management, and this is the type of discuss and justification that I would expect to see and that I would hope to see when governmental entities or authorities issue an order or pass legislation, but I am not seeing this type of discussion and justification in the circumstances of the current various different stay at home and other orders and police actions. I simply want to see these discussions as part of the process for all such orders and actions.
People who know me know that I am not turning political – I’m just being a lawyer on this.
Without a doubt, the federal government has police, safety, and public health powers, and individual states also have police, safety, and public health powers although state powers will vary from state to state based on their individual constitutions and other authority including case law interpretation and precedent. And as we are also seeing county and local city or town orders and actions, a similar analysis would also need to be performed for those orders and actions. But every such situation is different including the applicable law, the factual circumstances including the reasonably known and verifiable risks to the individual public that are at issue, the rights that are at stake and that are being limited, and the orders or legislation or other actions that are proposed, ordered or enacted. Thus, I would expect such a discussion for each and every order, legislative act, or action.
There are serious and very important responsibility, right, and legal authority issues at play here. California, for example, has a fairly long Constitution with strong individual rights, which is the way that it should be; on the other hand, there is no doubt that the federal government, and the State of California both have some authority to legislate or order actions to protect the public health and safety. But there needs to be an evaluation of the actions being taken or proposed in light of the identifiable rights that are involved, the limitations on those rights, the actions being taken or proposed, the stated reasons for the actions that are being taken or proposed, the actual reasonably known, identifiable, and verifiable risks and risk management issues that are at issue with respect to the individual public and the public at large in a particular location, and the legal authority of the entity enacting the legislation or issuing the order or taking the action. And I am not seeing these types of legal discussions. I should add that while citing a particular law, statute or regulation as authority for the actions being taken is helpful and should be required, I would also say that simply providing a citation without also citing the specific factual support (i.e., the evidence being relied upon, and not just “science”) for the decision being made and the action being taken is a rather vague and speculative approach.
Different courts at different times have evaluated government actions in these situations by different criteria, for example varying in approach between on the one hand giving deference to government actions, but on the other hand limiting the actions based on the legal authority that the governmental entity possesses, the nature and importance of the rights that are involved, and whether the actions or limitations that are imposed are the reasonably least restrictive and justified under the circumstances.
The following is a link to the eight-page article. Note that the discussion in the article isn’t the answer in the current situation that we are seeing because it isn’t written for the current situation, it doesn’t cite all relevant legal authorities, and the current situation will vary from state to state and location to location (e.g., county, city or town, etc.) within each state, but the article is the type of legal discussion and evaluation that we should be seeing and that I would expect and wish to see from the ordering, enacting or enforcing entity, but that I am not seeing. Here is the article link, followed by a snapshot of part of page one from the article: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569983/
Best to you, Dave Tate, Esq. (San Francisco and California)
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
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Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.
I am also the Chair of the Business Law Section of the Bar Association of San Francisco.
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