CrimPro – 5-1-2020


“Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

-Benjamin Franklin

And so the debate has gone over the Covid-19 stay at home orders.  I am thankful for them as I do not want to contract that virus nor do I want to spread it to others.  The question as it relates to the Shelter in Place orders by Governor Newsom and most if not all other Governors, is how much liberty is too much to give up in the name of public safety or protecting everyone from themselves and each other.  Interesting times….

This is a topic that could extend into volumes of text and discussion as it is the first of it’s kind in over 100 years, however I want to highlight the code sections and some interesting cases that came out of previous orders.

‘‘Any person who violates any of the provisions of this chapter or who refuses or willfully neglects to obey any lawful order or regulation promulgated or issued as provided in this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not to exceed one thousand dollars ($1,000) or by imprisonment for not to exceed six months or by both such fine and imprisonment.” Government Code § 8665.

And what acts can the Governor make unlawful? Under the Government Code pretty much anything the Governor wishes. All without any legislative approval. 

See the following Government Code section:

“During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter. In exercise thereof, he shall promulgate, issue, and enforce such orders and regulations as he deems necessary, in accordance with the provisions of Section 8567.” Government Code § 8627.

Ahhh, the Constitution….yes, there is that.  So what happens when the Government Code conflicts with the Unites States Constitution?  The Constitution wins every time, right?  Not necessarily.  So one must be careful when exercising some of their Constitutional rights during times like these.

The law in California requires that there be probable cause that a person has a contagious disease before they can be quarantined. “We think that, for such detention to be legally justified, the return of the officer should show some further reason why the persons so detained are suspected of being afflicted with disease.”  In re Application of Milstead (1919) 44 Cal. App. 239, 244. “We are of the opinion that the law only requires that there be probable cause to believe that a person so held has an infectious disease which is communicable in order to justify the authorities in retaining such person in quarantine. In re Application of King (1932) 128 Cal. App. 27, 27–28.  “[A] mere suspicion, unsupported by facts giving rise to reasonable or probable cause, will afford no justification at all for depriving persons of their liberty and subjecting them to virtual imprisonment under a purported order of quarantine..” In re Arata (1921) 52 Cal.App. 380, 383.  So can everyone lawfully be “quarantined” which is essentially what the stay at home orders are absent probable cause to believe everyone may be affected with this virus?  This is a question that hopefully never has to be litigated.

“Where sufficient reasonable cause exists to believe that a person is afflicted with a quarantinable disease, there is no doubt of the right of the health authorities to examine into the case and, in a proper way, determine the fact. Such preliminary investigation must be made without delay and if quarantining is found to be justifiable, such quarantine measures may be resorted to only as are reasonably necessary to protect the public health, remembering that the persons so affected are to be treated as patients and not as criminals.”  In re Application of Milstead (1919) 44 Cal. App. 239, 244.  And what would sufficient reasonable cause be to believe someone is afflicted with the Novel Coronavirus?  A cough, an elevated temperature, difficulty breathing, a loss of sense of taste or smell?  Without a positive test or symptomology checking all the boxes, this would be difficult to ascertain.

“Thus, the Emergency Services Act makes clear that in situations of ‘extreme peril’ to the public welfare the State may exercise its sovereign authority to the fullest extent possible consistent with individual rights and liberties. As summarized in Martin v. Municipal Court (1983) 148 Cal. App. 3d 693, 696 [196 Cal. Rptr. 218] (upholding the Governor’s emergency power to prosecute an earlier Medfly eradication program), ‘The [act] recognizes and responds to a fundamental role of government to provide broad state services in the event of emergencies resulting from conditions of disaster or of extreme peril to life, property, and the resources of the state. Its purpose is to protect and preserve health, safety, life, and property.’ The act makes equally evident the overriding necessity of a broadly coordinated effort to deal with emergencies, and places the primary responsibility, and the means for carrying out such efforts, with the State.” Macias v. State of California (1985) 10 Cal. 4th 844, 854.

It remains to be seen whether the stay at home orders and citations and/or arrests for violating such orders conflicts with individual rights and liberties such that the charge cannot withstand a lawful prosecution.  There has been at least one case in California, albeit, different than our current situation that dealt with violations of Government Code § 8665.

The misdemeanor prosecution of a person for failure to comply with the Governor’s emergency proclamation requiring persons within a quarantine area to remove all Mediterranean fruit fly hosts from trees and plants by a certain date, in violation of Gov C § 8665 (punishment for violation of provisions of Emergency Services Act) was not barred by any modification or expiration of the Governor’s emergency order, where it was alleged that the person’s failure to act during the time of the emergency was the basis for the charge. Martin v. Municipal Court (Cal. App. 1st Dist. Oct. 4, 1983), 148 Cal. App. 3d 693.

In these uncertain times, it remains to be seen whether there will be prosecutions of people leaving their homes for “non-essential” activities who were issued citations for such and if so, whether such a prosecution could withstand a Constitutional argument.  I suppose it depends on the circumstances…

I hope everyone stays smart and safe during these times.

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