We may be approaching the legal limits of coronavirus restrictions

The Federal Docket

March 20, 2020

Federal, state and local governments are becoming more aggressive in trying to stop the spread of the coronavirus by imposing even tougher restrictions. Given the severity of this crisis, it is understandable and expected that we will continue to see “shelter in place” orders, forced business and school closings, restrictions on public gatherings, and other mandatory quarantine and isolation orders.

In responding to this crisis, however, government officials need to remember that there are legal limits to what they can do. Restrictions are authorized by both federal and state law. But these restrictions should only be put in place if they are the “least restrictive means” necessary to protect public health. Going beyond what is absolutely necessary for political or other non-scientific reasons could create serious problems for our country.

Forced compliance creates tension

Although there are no reported cases where criminal penalties have been used to address violations of recent coronavirus restrictions, both federal and state laws allow for criminal punishment, including fines and jail time. It’s not hard to imagine that we will see people fined and/or arrested if the restrictions continue and become more severe.

In fact, we’re already starting to see what happens when people decide they don’t want to abide by these restrictions. In Kentucky, armed law enforcement officers threatened to surround an infected person’s house to keep him inside when he checked out of a local hospital against medical advice. In New York, local officials have threatened the arrest of bar and restaurant owners who continue to serve customers despite city-wide restrictions.

So far, most Americans understand and willingly accept the need for sensible restrictions to address the virus and control its spread. As the restrictions get tighter and more wide-spread, however, we are almost certain to see some resistance start to build, especially from the people directly impacted.

Businesses are being forced to close or dramatically alter their operations, people are effectively under home detention in many cities, and schools across the country are mostly empty. It is hard to overstate the short-term impact of these restrictions on an average American family, not to mention families already suffering from economic instability.

If the restrictions become more onerous, people will almost certainly start to push back. When that point may arrive, we do not know. But if it happens, it’s not going to be pleasant.

To maintain order and ensure compliance with the imposed restrictions, government officials will likely call on law enforcement and the military to assist. That will no doubt lead to concerns about due process and civil liberties, which could then trigger legal challenges flooding our already stressed judicial system. Of course, seeing armed soldiers in the streets will certainly increase the already high level of fear and anxiety we’re experiencing right now.

Challenging coronavirus restrictions in court

Mandatory restrictions are more than just inconvenient. A restaurant owner may not want to shut down or refuse customers if he or she thinks such a restriction would mean that employees have to be fired, or that the business itself may have to permanently close. People restricted to their homes may end up losing good jobs and then be unable to provide support for their families. People seriously impacted by these restrictions will want to know what legal rights they have and what they can do to save their businesses and jobs.

Anyone directly affected by a mandatory quarantine or isolation order can challenge the restriction in court. A person challenging a forced closure, quarantine or isolation order could argue that the restriction is an unreasonable and violates the constitutional guarantee of due process. They could also argue that the government did not follow its own written procedures, did not conduct an individual assessment of the need for the particular restriction, did not provide a meaningful way to review the order, or did not adopt “the least restrictive means” possible to address the public health concern.

These are legitimate legal questions. But it will be difficult for courts to answer these questions if they are inundated with scores of lawsuits being filed across the country, each potentially requiring an individual assessment of the legality of the restriction. Such an avalanche of lawsuits would create a nightmare for judges across the country.

In the past, federal courts were reluctant to limit the government’s ability to impose mandatory quarantines. Recognizing the need to balance individual liberty concerns with public health and safety, courts upheld the federal government’s power to impose compulsory vaccinations and limited quarantines. But there have been very few cases where similar restrictions have been challenged. The courts would be basically writing on a blank slate.

One of the more recent cases was in 1963. In that case, a federal court rejected a challenge to a smallpox quarantine order finding that the order was reasonable and made in good faith. The court in that case affirmed the government’s right to impose restrictions based on public health when there was no obvious evidence of an intent to unfairly discriminate.

We really don’t know how far governments can legally go in imposing mandatory quarantines or isolation orders in response to a public health crisis like the coronavirus. But we may soon find out.

It is vital that our efforts to control the spread of the coronavirus be based on valid science and good sense and not be infected in any way by political motivations. Our health depends on it, and our constitution requires it.

Page Pate - Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page's reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.

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