What a ‘shelter’ order could mean in Arizona
“Civil liberties have always been counterbalanced with the need to protect the public’s health. What you’re seeing now is nothing unusual.” James G. Hodge Jr.
Director, ASU Center for Public Health and Law
On March 19, California Gov. Gavin Newsom ordered all 40 million people in the state to shelter in place as health officials battle the new coronavirus. Two days later, Illinois Gov. J. B. Pritzker ordered his state’s 12.7 million residents to also shelter in place.
Since then, millions of people across at least 20 states have been given orders to shelter in place, restricting them from leaving their homes except to go to work if they can’t work from home, get food or see a doctor.
But Arizona, with a population of 7 million, isn’t one of them.
A Scottsdale doctor has started an online petition, signed by more than 73,000 people as of Thursday morning, asking Ducey to “shut down” the state.
Gov. Doug Ducey has said we’re “not there yet.”
If Ducey were to call for a shelter-inplace order, it could limit Arizona residents’ liberties even more, some lawyers say. But during a pandemic, some of them also argue, the law is tipped in favor of public health.
Ducey has issued an executive order closing businesses such as bars, gyms and theatres and limiting restaurants to takeout. Through the order, police have the authority to issue misdemeanor citations to anyone who purposely defies it.
Ducey has also declared a state of emergency, which gives the state’s executive office power to quarantine people. This means if a person defies a doctor’s orders to stay isolated, either at home or at a hospital until they recover, then state officials can seek a court order to force them to stay isolated.
So far, people with the coronavirus have voluntarily self-quarantined and there has been no indication that Ducey plans to use the courts to forcefully isolate someone.
James G. Hodge Jr., director of Arizona State University’s Center for Public Health and Law, said quarantine laws and a governor’s health-related
orders aren’t meant to punish people but to protect the health of the public.
The reason why other states have gone further than Arizona by calling for a shelter-in-place is the virus can easily be spread and a lot of people don’t show symptoms, Hodge Jr. said.
He added that Ducey could at some point call for a shelter-in-place order because there is a compelling legal argument to make that the public’s health is more important than temporarily inhibiting people’s liberty.
“Your civil liberties to engage in regular behaviors that could impact the health of others would definitely be curtailed for a brief period of time,” he said. “Those civil liberties have always been counterbalanced with the need to protect the public’s health. What you’re seeing now is nothing unusual.”
Quarantine vs. shelter-in-place
Under Arizona law, quarantine could be ordered for people who have been infected by the coronavirus, also known as COVID-19.
Ducey’s March 11 emergency declaration gave the Governor’s Office power to medicate, isolate and quarantine people, if necessary, with the help of law enforcement or the National Guard.
The law also says a state health official may require someone to quarantine or isolate themselves if it’s an emergency. But the law requires the state Health Department to seek court approval within 10 days for the quarantine order to remain in effect.
A person who has been ordered by health officials to quarantine could appeal to the court and the state could provide an attorney for that person if they can’t afford one.
If the person is quarantined under court order, the state would also have to provide food and shelter if the person doesn’t have a place to stay.
A shelter-in-place order differs because it would apply to everyone, regardless of whether they are infected with the virus or not.
If Ducey does issue such an order, it’s expected that it would be similar to what other states have implemented. This includes closing businesses that are not part of the governor’s list, forbidding residents from gathering in large public spaces and asking people to stay inside their homes.
Most states’ orders have some exceptions for when people can leave their homes, such as to go to the grocery store or to work, to see a doctor or to walk their dog.
“If you want to go outside and participate in any walking activities that don’t involve socializing with others directly, there’s no real risk to anyone,” Hodge Jr. said. “Now, if you go out with 20 friends and you’re at a nightclub, they’ll break that up.”
How would an order be enforced?
Steve Serbalik, an attorney who represents police officers, said the quarantine laws are clear on who can be sequestered and what steps the state must take to isolate a person.
He said the quarantine laws also give due process to people even during this pandemic, which is much different than an emergency shelter-in-place order that requires people to stay at home for an undefined period of time without access to a process to challenge the order.
He said nobody yet knows which side the courts may fall on when considering personal liberties versus public health during a pandemic.
“Unless someone is arrested or until someone is cited, you can’t challenge it in court,” he said. “So it’s an open question right now.”
Benjamin Taylor, a criminal defense attorney in Phoenix, said that police and state health offices have a right to enforce a governor’s emergency health order or quarantine laws but he doesn’t expect a “draconian” approach because it would be counterproductive.
“No local law enforcement agency would likely compound its problems by throwing a quarantine scofflaw with a deadly communicable disease in among its jail population,” he said. “Local authorities often have some form of enforcement power, but usually try gentle persuasion to persuade people that it is for their good and the good of the community.”
Jocquese Blackwell, a Phoenix attorney, said that if the police needed to quarantine or enforce the governor’s orders, it would be unlikely to do it on a large scale because there aren’t enough resources.
“Unless the state is going to provide lawyers and food for everyone, I don’t see how they can do it,” he said.
Under Arizona law, police can cite people with a class-one misdemeanor for deliberately defying a mayor’s or governor’s health emergency order.
But most of the police departments The Republic reached out to said they are taking an educational approach, reminding business owners that if they are not part of Ducey’s or their respective mayor’s essential business list then they must close.
In Phoenix, Chief Jeri Williams announced Tuesday that some police officers will be going to restaurants that are still providing dine-in services and bars, gyms and movie theaters that are still open to educate staff and owners about Phoenix Mayor Kate Gallego’s and Ducey’s orders to keep nonessential business closed.
The mayor’s order allows restaurants to provide delivery or take-out orders but discontinue dining in. The governor’s order says that restaurants in counties with confirmed COVID-19 cases must stop providing dine-in service.
In Buckeye, where the mayor has also issued a declaration of emergency, the “Police Department will prioritize education and voluntary compliance over citation or arrest,” said Donna Rossi, a spokeswoman for the agency.
“Punitive action, like fines, arrest or jail time is certainly a legal option, but Buckeye police will use enforcement as a last resort,” she said. “This will allow us to continue to do what we do best, serve the citizens of Buckeye by handling emergency calls and answering the law enforcement needs of the community.”
In Scottsdale, police said they have not had to use enforcement because people are cooperating.
“To date, our efforts have been focused on education and information as it relates to the closures,” said Kevin Watts, a spokesman for the Police Department. “Our local community business partners have been very open, cooperative and responsive to the current restrictions. As a result, there has been no enforcement action needed.”
In Mesa, police said they are prepared to enforce the governor’s orders.
Navajo Nation shelter-in-place order
So far, the only jurisdiction in Arizona that has issued a shelter-in-place order so far is the Navajo Nation, which spans across three states—Arizona, New Mexico and Utah —and has a population of more than 148,000, according to the U.S. Census.
Like other states or cities that have called for a shelter-in-place, it means that Navajo Nation residents should not be gathering in public spaces and should only leave their house for essential things, such as visiting a doctor, grocery shopping or going to work.
Navajo Nation Police Chief Phillip Francisco told The Navajo Times that he’s called in all officers to enforce tribal President Jonathan Nez’s order.
“We are trying our best to make sure people don’t move around,” Francisco said. “We would like for people to take this seriously because they have potential for spreading (the COVID-19 virus) if we don’t take steps to limit people from freely moving about.”
‘The balance has shifted’
Charles Fried, a law professor at Harvard University, told Harvard Law Today, a university publication, that some restrictions to people’s liberties are generally accepted in circumstances like a pandemic.
A compelling argument could be made to put a stop to people’s usual behavior temporarily, he told the publication.
“Most people are worrying about restrictions on meetings — that’s freedom of association. And about being made to stay in one place, which I suppose is a restriction on liberty,” he said. “But none of these liberties is absolute; they can all be abrogated for compelling grounds. And in this case, the compelling ground is the public health emergency.”
Hodge Jr., the director of ASU’s Center for Public Health, expressed a similar sentiment.
“The balance has shifted in the public health interest now and will continue to be that until this threat can be curtailed through social distancing,” he said.
He added that leaders are issuing these orders and recommendations for the public’s health.
“These are socially and constitutionally appropriate public health interventions,” he said. “The only point where it becomes problematic is when your civil liberties are infringed with no compelling need of the government, and that’s not the case at this point.”
Doctor asks for shutdown
Dr. Julieann Heathcott, an obstetrics and gynecology specialist in Scottsdale, recently started an online petition asking Ducey to issue a shelter-in-place order.
She states in the petition that “Arizona physicians and non-physicians are begging for the Governor to lock down the state since the president will not make the decision.”
As of March 26, just over 73,000 people have signed the Change.org petition. Heathcott says in the petition that people are not practicing social distancing, which federal health officials describe as not gathering in groups of 10 or more, and this will continue to spread the virus.
The only way to help stop the spread is if Ducey issues a shelter-in-place order, forcing people to stay indoors, Heathcott states in the petition.
“Every hour that people are out on the streets adds weeks to how long this will last — not to mention the insurmountable number of deaths that will also occur because of it,” the petition states. “The Governor needs to take action NOW.”