COVID-19 and Flu Shot Mandates May Be On The Horizon, But Are They Legal?

States are considering vaccine mandates for all in the wake of the COVID-19 pandemic.

There are certain times in your life when you just have to say it. Wake me up. This isn’t real. Is this a joke? All of these reactions (and more, which for the sake of our younger readers, I won’t include here) most certainly apply to the news this week that some states are recommending COVID-19 and influenza vaccine mandates that would apply not only to certain high-risk individuals or–as in the past–children enrolled in school, but to all residents. That’s right. Everyone.

As reported by Patch.com,

Gov. Ned Lamont on Wednesday released a “Roadmap for Reopening” that includes more detail about the second phase of the state’s easing of restrictions following the coronavirus outbreak — and a tease for phase three.

The 43-page report was prepared with input from state agencies and departments, legislators, and experts from the Reopen CT Advisory Group.

… According to the report, the state plans to “implement efforts” to immunize every resident who does not have a contraindication to the influenza vaccine. “The likelihood of a COVID-19 resurgence is high even in the optimistic scenario,” the report states.

WTF??? Even those among us who view vaccines in a mostly favorable light would not be comfortable being mandated to receive a vaccine that has (even in a really good year) an efficacy rate of less than 50 percent, and sometimes less than 20 percent (see https://www.nvic.org/vaccines-and-diseases/influenza/vaccine-effectiveness.aspx). And, more importantly, what does any of this have to do with COVID-19? Despite what some pharma shills have suggested, there is absolutely no credible scientific evidence to suggest that getting a flu shot protects you in any way from contracting COVID-19, or from getting seriously ill or dying from the virus. Truth be told, there is compelling evidence that receiving a flu shot may actually increase the risk of contracting other respiratory virus infections (see https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3404712/).

Continuing the trend, the Health Law Section of the New York State Bar Association (NYSBA) released a report this week proudly which recommended that “[a] COVID-19 vaccination should be mandatory for all New Yorkers except those whose doctors exempt them.” The recommendations of the report are expected to “be debated at a virtual meeting of the association’s governing body, the House of Delegates, on June 13.” See https://nysba.org/state-bar-associations-health-law-section-report-calls-for-mandatory-covid-19-vaccination-standards-for-allocating-ventilators-and-personal-protective-equipment/. The irony of that date being chosen for such a debate will not be lost on New Yorkers, who saw their religious exemption to vaccinations so cruelly stripped from them on the same date last year.

According to its announcement, the NYSBA relied on Jacobson v. Massachusetts, 197 U.S. 11 (1905) to support its recommendation:

The Health Law Section said a rapid mass vaccination plan should be launched in New York as soon as a safe and viable vaccine becomes available, citing Jacobson v. Massachusetts, a 1905 U.S. Supreme Court case that upheld the authority of states to enforce compulsory vaccination laws. The plan should also prioritize vaccines for essential health care workers and vulnerable New Yorkers who are at highest risk of infection, the report states.

But did Jacobson really authorize such a measure? There is no “safe and viable” vaccine available at present, and all indications are that there will likely not be one available before the end of the year, if ever. It is true that the Supreme Court in Jacobson held that the police power of the state permitted a compulsory vaccination order to protect the health and safety of citizens during an outbreak, in that case a smallpox epidemic in the city of Cambridge, Massachusetts. But Jacobson did not hold that the state may mandate vaccinations everywhere and always in a state, regardless of whether any outbreak exists in all parts of the state.

Any lawyer worth his salt knows that judicial precedent, even that which is contrary to your position, should not be viewed as an impediment to success on the merits of your case. A lawyer’s job is to distinguish the facts of the precedent so as to illustrate that it does not apply in the present case. That is exactly what can be done, I think quite easily, here. A vaccination mandate that applied to “all New Yorkers” would be nothing like the mandate in Jacobson, which applied to only one city during an outbreak in that particular locus (the state law “required the inhabitants of a city or town to be vaccinated only when, in the opinion of the Board of Health, that was necessary for the public health or the public safety.” Jacobson v. Massachusetts, 197 U.S. 11, 27 [1905]). To extend Jacobson to stand for the proposition that a vaccine can be mandated throughout an entire state, even when there is no active outbreak in many parts (or most) of the state, would be ludicrous.

Indeed, the Jacobson Court said as much: “According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 25. (Emphasis added; citation omitted.) Could a vaccine mandate that applies to areas where no public health threat exists really be considered “reasonable”?

And consider the following from the same decision, which directly follows the above quote:

It is equally true that the State may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the State, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a State, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States or infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, or with any right which that instrument gives or secures.

Id. (Emphasis added; citations omitted.) While it is true that the Court made clear that the right to liberty is not absolute and is constrained insofar as it subjects others to a threat of harm, the Court concluded its decision with a stern warning, one that is oft-overlooked (in many cases, purposefully) when the case is cited in support of vaccine mandates or other instances of extreme government overreach:

Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe — perhaps to repeat a thought already sufficiently expressed, namely — that the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested.

Id. at 38. While the Court went on to provide the example of a person who is forced to be vaccinated against his will despite a known medical aversion to vaccination, it is, I think, an equally extreme measure for a state to enact a vaccine mandate for every citizen in the state, regardless of whether an active outbreak currently exists in the region in which the person resides. Of course proponents of such a mandate will argue that compulsory vaccination is necessary to protect against future outbreaks, despite the fact that the there is absolutely no evidence that an outbreak will ever occur in every corner of the state. Cambridge did not issue a mandate based on speculation; many people were dying of smallpox in that city and it enacted the mandate as a means of preventing further spread of the virus (whether it was effective in doing so, of course, is up for debate). What New York and Connecticut have proposed are mandates for all citizens regardless of whether any outbreak exists in their city/town, and regardless of whether significant numbers of individuals are dying from the virus. This is particularly laughable with regard to Connecticut’s proposed flu vaccine mandate. The flu was no deadlier this year than it has been in any other year, and one could easily argue that it was less so. As of April 11, 2020, the total number of flu deaths in Connecticut during the 2019-20 flu season was 79, as compared to 87 in 2018-19, and 175 in 2019-20 (see https://portal.ct.gov/-/media/DPH/EEIP/FLU/thisweeksfluupdate.pdf?la=en). So clearly the justification for such an extreme dictatorial imposition is sorely lacking.

Governors and lawmakers, take heed. You were not elected to exploit crises for your own personal gain. You were elected to uphold the rights of the people as recorded in our state and federal constitutions, and you took an oath to do so. History will not look kindly upon your decision to ignore those rights in the name of public health or any other supposed justification for oppression. History aside, there will be even greater consequences for such actions in the near term. November is not so far away.

Contract Tracing, Cell Phone Data, and Browser Histories, Oh My!

Is it legal for the government to collect our data without a warrant?

Yesterday (May 13, 2020) the Senate failed–by one vote–to pass an amendment to a bill reauthorizing a portion of the Patriot Act (Section 215) which permits the government to collect “any tangible thing” without a warrant. This includes not only books and paper documents, but also any electronic data, such as information collected from cell phones and internet browser histories. The amendment would have made it illegal for the government to access such electronic data without a warrant. If Section 215 is ultimately reauthorized without any such amendment, pundits posit, the government will be able to legally collect all of this electronic data from any individual without a warrant (i.e., regardless of whether there exists probable cause for believing that the person has committed a crime).

But is this really true? Does Congress have the authority to pass such a law? Sara Morrison, in an article for Vox.com regarding the failure of the privacy amendment to pass, seems to think so:

The vote was for an amendment to the controversial Patriot Act, which would have expressly forbidden internet browsing and history from what the government is allowed to collect through the approval of a secret court. Currently, there is no such provision, which means there’s nothing stopping the government from doing so. The government has an established history of using this method to collect certain types of data about millions of Americans without their knowledge.

But the fact that there is nothing in the Patriot Act to forbid the government from collecting this data, or the fact that it has been doing it for a long time, misses the point of the question regarding the legality of this practice. The only question that really needs to be answered is whether the U.S. Constitution allows the government to engage in warrantless data collection.

Both the Patriot Act and the Foreign Intelligence Surveillance Act (FISA) provide broad powers to the government to collect information from individuals without a warrant for the purpose of gathering foreign intelligence to combat espionage or terrorism. When the government is collecting the electronic data of non-resident aliens, it seems pretty clear that no warrant is required, since such persons generally are not entitled to Fourth Amendment protections. See United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990) (holding that Fourth Amendment protection against unreasonable searches and seizures is not extended to nonresident aliens). But when the government is searching and seizing the property of citizens and legal residents of the United States, and there is no probable cause for believing that such individuals have engaged in any sort of criminal activity, the Fourth Amendment is (and should be respected as) a firm blockade against this kind of governmental intrusion.

Although lower federal courts have struck down portions of both the FISA and The Patriot Act, the United States Supreme Court has never done so. To put a finer point on it, no Fourth Amendment challenge to these laws has ever been heard by the Supreme Court. However, in 2018 the high court answered the question pretty clearly (in my opinion) in Carpenter v. United States, 138 S. Ct. 2206 (2018), a 5-4 decision penned by Chief Justice Roberts and joined by the Court’s four liberal justices. There, the government obtained the defendant’s historical cell-site location information (CSLI) from the defendant’s wireless carriers, without a warrant (CSLI is the time-stamped record of a phone’s location created each time the phone connects to a cell site). The Court ruled that the government’s data collection violated the Fourth Amendment because the acquisition of the information from the wireless carriers constituted a search. The Court stated that the defendant had “a reasonable expectation of privacy in the whole of his physical movements,” Id. at 2219, which is important because it underscores the point that our Fourth Amendment protections are not confined to our homes or businesses. To paraphrase the immortal Ralph Waldo Emerson, they go with us wherever we go (See Self-Reliance). The Court also expressly stated that the fact that the government got the data from third-party wireless carriers made no difference. In other words, the government cannot use a conduit to shield itself from the procedural mandate of the Fourth Amendment; ie., obtaining a warrant.

It is important to note that the Court made clear that its decision was narrow, and specifically stated that it did not apply to “other collection techniques involving foreign affairs or national security.” See Carpenter at 2220. So the decision clearly does not apply to searches and data collection obtained under FISA or The Patriot Act. But that’s fine, because that’s not what we’re talking about here. The question I presented in this article is not whether the government can spy on foreign individuals or persons plotting acts of terrorism. In such cases, however, one would think that it would be pretty easy to meet the low threshold required to show probable cause.

A notable exception, as repeatedly recognized by the Supreme Court (including in Carpenter) is when there are “exigent circumstances.” This means when there is an emergency and there is no time to obtain a warrant (think every action movie or TV show you’ve ever seen about police racing against the clock to find and disarm a bomb). But this too misses the mark. The question presented here is whether the government can collect electronic data from ordinary citizens who are not under investigation for terrorism or other criminal activity (you know, “just because”). The answer, in my opinion, is a resounding NO. Neither FISA nor the Patriot Act can be used as a “phishing expedition,” to see if someone may be engaging in criminal activity. It’s not supposed to work that way in this country. We don’t go looking unless we have reason to look. And mere curiosity is not a reason.

All of this has become even more important in light of the recent events surrounding the COVID-19 pandemic, which is being exploited to deploy a new system of “contact tracing,” essentially a new means of digitally tracking individuals who have tested positive for the virus or who have been exposed to it. The fear is that it will be used for much more than to simply protect public health, and that fear, I believe, is well-founded. It has been reported that Apple/Google/Samsung etc. will be automatically installing these contact tracing apps on our smartphones, and there will be no way to opt out without rendering the phone unusable. If that is true (and I don’t have sufficient verification to prove that it is, at least in all cases), then that would be horrendous, but not unconstitutional. There is nothing in the Constitution that prohibits private corporations from collecting data, only the government. If, however, this information is provided to the government without the consent of the users, I feel quite strongly that it would constitute a Fourth Amendment violation (remember that Carpenter said that you can’t get around the Fourth Amendment by simply getting the data from a third-party carrier).

If, however, there is an “opt in” notice that is clearly communicated to the smartphone user that explicitly states that the user consents to this data being shared with governmental entities, then the Fourth Amendment’s warrant requirement probably disappears. The police don’t need a warrant if you open the door and consent to them searching your house. So the lesson here is simple: just don’t open the door. But in an increasingly data-dependent world, keeping the door closed may not be so easy.

Get Outta’ Here: Refusing Entry in the Era of COVID-19.

Over the past few weeks, several people have contacted me with stories of being refused entry at everywhere from Costco’s to doctor’s offices, simply because they refused to cover their faces with a piece of flimsy cloth, despite the fact that there is absolutely no science to support its use as an effective barrier to the transmission of the COVID-19 virus. In one case, a mother brought her seven year-old son, who is on the autism spectrum, to a critical eye doctor appointment. The doctor refused to see him unless he wore a mask. She explained that he cannot wear a mask due to his disability, but the doctor said there were no exceptions, and ordered them to leave.

In ordinary times, the Americans with Disabilities Act (ADA) would clearly prohibit the doctor’s behavior, despite the fact that the ADA has an exception which allows business owners to refuse entry or service to persons who pose a “direct threat to the health or safety of others.” The ADA Title III Technical Assistance Manual, which can be found here, does a good job of explaining it:

“A public accommodation may exclude an individual with a disability from participation in an activity, if that individual’s participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation’s policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.

The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine —

1) The nature, duration, and severity of the risk;

2) The probability that the potential injury will actually occur; and

3) Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.

Such an inquiry is essential to protect individuals with disabilities from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks. Making this assessment will not usually require the services of a physician. Sources for medical knowledge include public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental Health.” (Emphasis added.)

It seems pretty clear to me that the eye doctor in the above example did not perform the analysis above, required by the ADA. Instead, he just made an independent and immediate judgment that the child posed a threat simply because he was not wearing a mask because, he has decided, all persons who do not wear masks pose a direct threat to the health or safety of others. The problem for him, of course, is that the science does not support this assumption, and the ADA remains in effect even during this pandemic.

The problem for the mother and her son, however, is that during these highly uncertain times, when the fear of this virus has reached levels greater than anything we have seen in this country since polio in the 1940s and ’50s, most business owners are likely to get a pass in court. The fact that most public health officials, Governors, and mainstream media reporters are daily telling everyone that this is an extremely deadly virus and that wearing a mask is one of our only means of protection against it, would be enough, in my opinion, to satisfy most judges and juries that there was a reasonable basis for a business owner to conclude that a person who refuses to wear a mask posed a direct threat to the health or safety of others. It matters not that there is no actual science to support this; a business owner is not expected to be an expert in infectious diseases. The fact that so many authority figures are ubiquitously spreading the misinformation is enough to justify the business owner’s actions. For this reason, they would likely not conclude that the business owner’s fear was “unfounded.”

The one saving grace for the mother and her son in this example, however, is that this was a doctor who was refusing a critical medical treatment. In such a situation, courts may well view the situation with a heightened degree of scrutiny. Especially, as here, when the victim of the discrimination is a seven year-old child with a disability. The safest (and most sensible) thing for any business owner to do, in my opinion, is to allow people who are not wearing masks to enter their facility, unless of course the patron/patient is very obviously ill and/or engaging in reckless behavior, like coughing or sneezing without covering their mouths and noses. The second-best approach would be for the business owner to print out the ADA guidelines I have quoted above, and to go through this analysis each time he or she attempts to exclude someone from the business. In that case, I would also recommend keeping a written record of the events that transpired, including proof that each step of the required ADA analysis was performed. The business owner or a designated employee should do this in each and every such situation, in the same manner, so that the records can be admitted if necessary in court as business records (an exception to the rules against the admission of hearsay). As you can see, this is much more cumbersome than just allowing the patron through the door. In the wise words of Sir Paul McCartney, just “Let ‘Em In.”

The contents of this post reflect the individual opinions of the author alone, and do not represent the opinions of the CT Freedom Alliance or any organization or person. Nothing contained herein should be construed as legal advice.

Why Not Just Sue?

The case against bringing a case to challenge the executive orders of the COVID-19 pandemic.

Over the past several weeks, several people have asked me why we can’t just file a lawsuit to get the Governor’s executive orders nullified, and go back to our normal lives. The executive orders are clearly unconstitutional, they argue, so why aren’t we doing this? The short answer is, to put it bluntly, that the courts disagree. For over 110 years, the United States Supreme Court and lower federal and state courts have repeatedly ruled that, when there is a compelling government interest (and protecting the public health is usually recognized to be one), the government can abrogate constitutional rights, so long as it is by the least restrictive means. There does not have to be a declared state of emergency for the government to do this. So even in ordinary times, this would be a very tough case to win. During a declared national and statewide public health emergency, it would be nearly impossible (I never say impossible, because courts are strange places, and every so often you get a unicorn decision – but even then, those decisions are almost always overturned on appeal).

The problem began with our favorite [insert sarcasm here] case, Jacobson v. Massachusetts, 197 U.S. 11 (1905). This single 1905 U.S. Supreme Court case – and its progeny – have wreaked utter havoc on individual liberties in the United States, at least during a declared public health crisis. The Second Circuit (the federal circuit which has jurisdiction over Connecticut) reaffirmed this fairly recently in Phillips v City of New York, 775 F.3d 538 (2015), a case issued on my 37th birthday, like a gift from someone who really, really doesn’t like me. You can see what I mean by this snippet:

Plaintiffs argue that New York’s mandatory vaccination requirement violates substantive due process. This argument is foreclosed by the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). In that case, the plaintiff challenged Massachusetts’s compulsory vaccination law under the Fourteenth Amendment. The Supreme Court held that mandatory vaccination was within the State’s police power. Id. at 25–27; see Zucht v. King, 260 U.S. 174, 176 (1922) (“Jacobson ․ settled that it is within the police power of a state to provide for compulsory vaccination.”). The Court rejected the claim that the individual liberty guaranteed by the Constitution overcame the State’s judgment that mandatory vaccination was in the interest of the population as a whole. Jacobson, 197 U.S. at 38. Plaintiffs argue that a growing body of scientific evidence demonstrates that vaccines cause more harm to society than good, but as Jacobson made clear, that is a determination for the legislature, not the individual objectors. See id. at 37–38.5 Plaintiffs’ substantive due process challenge to the mandatory vaccination regime is therefore no more compelling than Jacobson’s was more than a century ago. See Caviezel v. Great Neck Pub. Schs., 500 F. App’x 16, 19 (2d Cir.2012) (summary order) (rejecting substantive due process challenge to vaccination mandate based on Jacobson ).

New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs. Because the State could bar Phillips’s and Mendoza-Vaca’s children from school altogether, a fortiori, the State’s more limited exclusion during an outbreak of a vaccine-preventable disease is clearly constitutional. (Emphasis added.)

That last line is the one that would really drive the stake through the heart of any case challenging the executive orders issued during the present COVID-19 pandemic. During an outbreak, the Second Circuit has held, the state can close the schools to a certain class of persons, i.e. unvaccinated children. Let me write that again, this time in all caps. THE STATE CAN CLOSE THE SCHOOLS TO A CERTAIN CLASS OF PERSONS DURING AN OUTBREAK. This selective exclusion, despite the obvious equal protection problem it presents, is legal in our state according to the highest federal court in our circuit. If it is legal to exclude just one group of persons from schools during an outbreak, then I don’t see how a court would rule that it is illegal to exclude all persons equally from schools (and from places that do not have any state constitutional right tied to them, such as restaurants and movie theaters).

I realize that the issue here is not (yet) compulsory vaccination, and that COVID-19 is not a “vaccine-preventable disease” (neither is the measles, by the way, but I’ll leave that for another post). That last point actually makes the executive orders more stalwart, because if we don’t have a vaccine to “prevent” the illness, then the only option to achieve the government’s goal of stopping the spread is to shelter in place. And the same legal principles and precedent that govern the mandatory vaccination and religious exemption cases would undoubtedly also be applied to any lawsuit challenging the current executive orders. If the state has determined that “stay at home” – or even quarantine – orders are the best and most effective means of protecting public health during this declared public health emergency, the courts will say they can do it. I am nearly 100% confident in this outcome. For that reason, it is my opinion that the only hope to end a shutdown would be to get enough legislators to put pressure on the Governor to relax or rescind these orders. During a public health emergency, the Governor and President have vast and nearly unilateral power to abrogate constitutional rights, as repeatedly affirmed by the courts for over a century of jurisprudence. I could be wrong, of course, as I’m just a guy with a keyboard who happens to have a law degree. But all I’m saying is that I wouldn’t spend my money or time on legal challenges to executive orders while the pandemic persists in full force in Connecticut. Were these orders to remain in place even after the public health emergency declarations are rescinded, that would be an entirely different story. If that is the case, trust me, I’ll be the first in line at the courthouse!

More Than A Blame Game

Can those responsible for the lack of preparedness be held personally liable?

There has been much talk over the last couple of weeks about the severe lack of personal protective equipment (PPE) for nurses, doctors, and other frontline health care workers tasked with saving lives during this COVID-19 pandemic. Connecticut is, unfortunately, locked in the epicenter of the outbreak, with more cases reported in the greater New York City area than anywhere else in the country. Whether the reporting is accurate I will save for another day, but few will argue that we are in the midst of a very serious public health crisis. And I believe that, once the truth is fully revealed, few will be able to argue that this is a crisis that could have been avoided (or at least significantly mitigated) had the officials responsible for protecting the public health done their jobs. Even the much-maligned New York Times admitted as much in a March 19, 2020 article, Before Virus Outbreak, a Cascade of Warnings Went Unheeded (https://www.nytimes.com/2020/03/19/us/politics/trump-coronavirus-outbreak.html), although predictably they used it as platform for attacking President Trump (I’ll spare you the time and summarize: Obama good, Trump bad, yawn). But what about local public health officials and Governors across the country, some of whom received direct warnings from federal and world health authorities in the wake of the 2014 Ebola outbreak in West Africa, and all of whom bear the ultimate responsibility for protecting the populations in their backyards?

This is where negligence comes in. In tort law, there are four elements one must prove in order to state a claim for negligence in civil court: 1) that the defendant owed a legal duty to the plaintiff, 2) that the defendant breached that duty, 3) that the plaintiff suffered an injury, and 4) that the defendant’s act or omission (failure to act) was the proximate (direct) cause of the injury. Proving that these elements are present does not automatically win your case; it simply means that you have stated a prima facie case that can survive dismissal on a motion for summary judgment. There are, of course, defenses that can be raised which, if proven, exempt the defendant from liability.

In the case of a public official, the primary defense that will likely be invoked is sovereign immunity. Sovereign immunity means that a government official can’t be sued for harm that results from official actions (acts performed within the scope of one’s official duties). The reason for this is simple: if everyone could sue every time something bad happened as a result of a government official’s actions or omissions, the courts would be clogged with nothing but suits against state offficials, and the officials would not be able to perform any of their duties, as they would be spending all of their time in court. Other important court business would also be neglected or extremely delayed. There is always going to be someone that is not happy with an official decision, or is in some way harmed by it. As the old saying goes, “You can’t please everyone.”

But what about when an official is grossly negligent to the point of dereliction of duty? What about when a public health official knew that something had to be done to protect the public health because of a clear and imminent threat, but deliberately chose not to take action? Well, there’s an exception for that. Connecticut’s sovereign immunity statute, C.G.S. Sec. 4-165, reads, in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.” The bold type (added by me) are the key words here. A state official can be held personally liable for injury if his/her official act or failure to act was “wanton, reckless or malicious.”

Take, as an example, Connecticut Department of Public Health (DPH) Commissioner Renée Coleman-Mitchell (against whom, in the interest of full disclosure, I have a pending lawsuit that I will not comment on here). Even if it were proven that she knew that there was a strong possibility that the state would face a major pandemic in the near future, and made the decision not to purchase more PPE for healthcare workers, she could not be held personally liable unless it were proven that she failed to act because she was extremely careless (wanton, reckless) or was actually trying to harm the public (maliciousness). While I am confident that she was not trying to deliberately harm anyone, we would need more information to determine whether she was wanton or reckless. Did she fail to order the PPE simply because of a budget restriction, such that ordering extra PPE for the future would have meant she would not have been able to order other medical supplies that were more immediately necessary? In that case, her actions could not properly be characterized as wanton or reckless. If, however, she had the necessary funds but for no good reason just decided to ignore the warnings of federal health authorities, as well as her own staff, regarding the urgent necessity of ordering more PPE, that may very well be a different story.

The only way we can know, of course, is through a Freedom of Information Act (FOIA) request. I would strongly encourage all of you to immediately submit such a request to the DPH. Ask for any and all communications containing the words “personal protective equipment” or “PPE” sent or received by the present or former DPH Commissioner from January 1, 2014 through March 31, 2020. That should give you a good starting point.

Progressing Toward Regression

Predicting the new normal in the context of current discrimination law.*

In a frightening but sobering article titled We’re not going back to normal (https://www.technologyreview.com/s/615370/coronavirus-pandemic-social-distancing-18-months/), the MIT Technology Review this week warned that “[s]ocial distancing is here to stay for much more than a few weeks. It will upend our way of life, in some ways forever.” The prediction was that social distancing, while a necessary evil in the present COVID-19 pandemic, will become a permanent fixture in the American socioeconomic landscape, such that businesses will begin to “legally” discriminate against their customers and employees.

After referencing the human tracking methodologies employed by Israel and Singapore, the article continues:

We don’t know exactly what this new future looks like, of course. But one can imagine a world in which, to get on a flight, perhaps you’ll have to be signed up to a service that tracks your movements via your phone. The airline wouldn’t be able to see where you’d gone, but it would get an alert if you’d been close to known infected people or disease hot spots. There’d be similar requirements at the entrance to large venues, government buildings, or public transport hubs. There would be temperature scanners everywhere, and your workplace might demand you wear a monitor that tracks your temperature or other vital signs. Where nightclubs ask for proof of age, in future they might ask for proof of immunity—an identity card or some kind of digital verification via your phone, showing you’ve already recovered from or been vaccinated against the latest virus strains.

As usual, however, the true cost will be borne by the poorest and weakest. People with less access to health care, or who live in more disease-prone areas, will now also be more frequently shut out of places and opportunities open to everyone else. Gig workers—from drivers to plumbers to freelance yoga instructors—will see their jobs become even more precarious. Immigrants, refugees, the undocumented, and ex-convicts will face yet another obstacle to gaining a foothold in society.

Moreover, unless there are strict rules on how someone’s risk for disease is assessed, governments or companies could choose any criteria—you’re high-risk if you earn less than $50,000 a year, are in a family of more than six people, and live in certain parts of the country, for example. That creates scope for algorithmic bias and hidden discrimination, as happened last year with an algorithm used by US health insurers that turned out to inadvertently favor white people.

This all sounds perfectly plausible, if not Orwellian, but there is at least one fly in the ointment of this prophecy: The Americans with Disabilities Act (ADA). The ADA prohibits businesses not only from discriminating against persons with disabilities, but also against persons who are “regarded as” having a disability. For instance, in the employment context it is illegal for an employer to discriminate against an employee the employer believes to have a disability — even if the employee does not in fact have a disability. For the purposes of the ADA, a disability is defined as a physical or mental impairment that substantially limits one or more major life activity. An exception exists for conditions that are both transient (defined as six months or less) and minor, but most courts have found that to be an objective determination (rather than the employer’s own subjective opinion). Although the flu has been found to be a transient and minor condition; see, e.g., Lewis v. Florida Default Law Group, 2011 WL 4527456, at *5-7 (M.D. Fla. 2011) (H1N1 virus); it is questionable whether a COVID-19 infection (or perceived infection) would be viewed by courts as objectively transient and minor, especially given the current climate.

Businesses are also prohibited from discriminating against their patrons on the basis of an actual or perceived disability. This is known as discrimination in “places of public accommodation.” However, there is an express exception in the ADA that permits businesses to deny entry or service to an individual who poses a direct threat to the health or safety of others, so long as that threat cannot be mitigated by making “appropriate modifications in the public accommodation’s policies or procedures.” See 28 CFR § 36.208; 36.302. The same defense exists for employers, who may, for instance, refuse to hire an individual who poses a direct threat to the health or safety of others in the workplace. See 29 CFR § 1630.15. However, the employer must base this determination in actual and current scientific or medical evidence, not mere subjective belief. And the Equal Employment Opportunity Commission’s (EEOC) regulations define a direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

All of this being said, there is of course always the possibility that Congress could pass amendments to the ADA that carve out exceptions for COVID-19 infections, giving greater latitude to employers and places of public accommodation to exclude individuals infected with this virus. One way this could be accomplished is by expressly excluding COVID-19 infections from the definition of disability. To clarify, I am not aware of any such legislation currently under consideration by Congress. I am simply pointing out that it is not unfathomable.

Even if such legislation were enacted, however, it would not preclude lawsuits on the basis of disparate impact discrimination claims. Disparate impact discrimination occurs when a business, government agency, landlord, etc. implements a policy that is neutral (nondiscriminatory) on its face, but has the effect of giving preferential treatment to one class of persons over another. The MIT article presents the examples of the government and companies screening for COVID-19 infections by labeling individuals “high risk” if they earn less than $50,000, have a large family size, or live in certain geographic area (presumably urban areas with high population densities). As such policies would likely have a disproportionately adverse effect on minorities, plaintiffs could very well prevail on claims of disparate impact discrimination.

To be sure, the only thing certain about our future is that nothing is certain. Be vigilant. Be careful. Be kind.

*The contents of this post reflect the individual opinions of the author alone, and do not represent the opinions of the CT Freedom Alliance or any organization or person. Nothing contained herein should be construed as legal advice.

A Poem for Today

Dig Well

So here we are locked in a quickening,
another kind of innovative reckoning; Even though we braced ourselves so many times,
it seems we weren’t prepared to leave our lives behind.
There is a sort of sadness in the calm, and so we crack a smile to pretend that this is what we wanted all along – while constantly denying it’s the end.

What care have dying leaves of winter
when at long last they meet with the cool ground?
What trepidation fills the hearts of swallows
when September calls them to the river’s mouth?

And yet we tremble at the prospect
of sorting through this mess without a screen,
even though the light that hides behind the hill
will turn this nightmare into a sweet dream.

Plant firm your little sprouts before the Dawn,
if only in your humble pots of dirt; For though it feels like gardening in a graveyard,
these plots of earth can take away the hurt.

Quarantined in Connecticut

Thank you for joining me for the first installment of the CT Freedom Alliance blog. Ordinarily, blogs begin with a rather lengthy and detailed description of the purpose of the blog, along with a biography of sorts of the author. But these are not ordinary times. Besides, if you are here you are most likely already a member or follower of the CT Freedom Alliance group, and many of you already know who I am. If you would like more information about the group, you can find it here: www.ctfreedomalliance.org. The mission of this blog is, at this very moment, simply to provide a vehicle through which all of you will, hopefully, gain a bit of order and reason while adjusting to our ever-changing state, country, and globe amidst the mass hysteria resulting from the COVID-19 outbreak. So let’s dive right in.

The foundation of authority is laid firstly in the free consent of people. — Rev. Thomas Hooker, 1638

Statue of the Reverend Thomas Hooker in State House Square, Hartford, CT

Some have already self-quarantined either because of illness, or because they or someone in their household is at a high risk of developing serious complications from contracting this coronavirus. As the father of a severely immunocompromised child, I am taking every precaution to ensure that I have as little contact with the outside world as possible. It’s not fun, and it’s not easy, but it’s necessary right now. You know what else it is? MY choice. But what about a mandatory quarantine? Can the federal or state government legally order people to remain in their homes, and impose civil and/or criminal penalties on those who do not comply?

The short answer is yes. While there is some debate as to whether the President or Congress can impose a nationwide quarantine order (see here: https://www.usatoday.com/story/news/factcheck/2020/03/19/fact-check-does-stafford-act-allow-trump-order-quarantine/2872743001/), Connecticut law makes it clear that, if the Governor has declared a public health emergency (as he did on March 10, 2020: https://ctmirror.org/2020/03/10/lamont-is-declaring-a-public-health-emergency/), the Commissioner of the Department of Public Health (DPH) can issue quarantine orders for specific persons, or groups of persons. Section 19a-131b of the Connecticut General Statutes reads, in part:

Sec. 19a-131b. Orders of quarantine or isolation. Appeal of order. Hearing. (a) Notwithstanding the provisions of section 19a-221 or 19a-265, if the Governor has declared a public health emergency, the commissioner [of the Department of Public Health], if so authorized by the Governor pursuant to section 19a-131a, may order into quarantine or isolation, as appropriate, any individual, group of individuals or individuals present within a geographic area whom the commissioner has reasonable grounds to believe to be infected with, or exposed to, a communicable disease or to be contaminated or exposed to contamination or at reasonable risk of having a communicable disease or being contaminated or passing such communicable disease or contamination to other persons if the commissioner determines that such individual or individuals pose a significant threat to the public health and that quarantine or isolation is necessary and the least restrictive alternative to protect or preserve the public health. No individual or group of individuals or individuals present in a geographic area shall be quarantined or isolated unless they meet the conditions in this subsection.

(Emphasis added to last sentence.)

The next section goes on to detail the specific conditions under which the DPH Commissioner can issue a quarantine order:

(b) The commissioner shall adhere to the following conditions and principles when quarantining or isolating individuals, groups of individuals or individuals present within a geographic area: (1) Quarantine and isolation shall be by the least restrictive means necessary to prevent the spread of a communicable disease or contamination to others and may include, but not be limited to, confinement to private homes or other private or public premises; (2) quarantined individuals shall be confined separately from isolated individuals; (3) the health status of quarantined or isolated individuals shall be monitored frequently to determine if they continue to require quarantine or isolation; (4) if a quarantined individual subsequently becomes infected or contaminated or is reasonably believed to have become infected with a communicable disease or contaminated, such individual shall be promptly moved to isolation; (5) quarantined or isolated individuals shall be immediately released when they are no longer infectious or capable of contaminating others or upon the order of a court of competent jurisdiction; (6) the needs of individuals quarantined or isolated shall be addressed in a systematic and competent fashion, including, but not limited to, providing adequate food, clothing, shelter, means of communication with those in quarantine or isolation and outside those settings, medication and competent medical care; (7) premises used for quarantine and isolation shall be maintained in a safe and hygienic manner and be designed to minimize the likelihood of further transmission of infection or other harms to individuals quarantined or isolated; (8) to the extent possible without jeopardizing the public health, family members and members of a household shall be kept together, and guardians shall stay with their minor wards; and (9) to the extent possible, cultural and religious beliefs shall be considered in addressing the needs of individuals and establishing and maintaining premises used for quarantine and isolation.

(Emphasis added.)

The statute also specifies that “[t]he order shall be effective for not more than twenty days, provided further orders of quarantine or isolation meeting the requirements of this section may be issued as to any respondent for successive periods of not more than twenty days if issued before the last business day of the preceding period of quarantine or isolation.” As you can see, the legislature was careful to ensure that quarantine orders were made only when absolutely necessary, by the least restrictive means possible, and for a limited duration. The statute also contains a mechanism for a quarantined individual to appeal the quarantine order to the Probate Court for the district in which the person is quarantined. These protections are built into the law to ensure that a person is not deprived of his/her liberty without due process of law, as required by the Fourteenth Amendment of the U.S. Constitution.

Nonetheless, the statute gives the Commissioner broad discretion to determine who may be quarantined in order to protect the public health. Again, this includes “any individual, group of individuals or individuals present within a geographic area whom the commissioner has reasonable grounds to believe to be infected with, or exposed to, a communicable disease or to be contaminated or exposed to contamination or at reasonable risk of having a communicable disease or being contaminated or passing such communicable disease or contamination to other persons if the commissioner determines that such individual or individuals pose a significant threat to the public health and that quarantine or isolation is necessary and the least restrictive alternative to protect or preserve the public health.” Conceivably, that could include every person in the State of Connecticut right now. What constitutes “reasonable grounds” for believing that a person is a risk? The statute does not say. That question would have to be answered by a judge.

The bigger problem, as you may have already guessed by the quote and photograph above, is that a person can be quarantined against his/her will. As one of Connecticut’s Founding Fathers, the Reverend Thomas Hooker, proclaimed in a sermon nearly 400 years ago, the government’s authority must be founded above all else on the free consent of the people. Some may argue that the people of Connecticut have consented to the quarantine laws because it was passed by the representatives elected by the people. But this is what is known as a “legal fiction.” We say that the people have consented, but the consent is constructive at best, not in fact. The above quarantine law was first passed in 2003, before many residents lived in Connecticut, and before others were even born. (For the record, I was not a resident of Connecticut in 2003.) And even for those who were residents of Connecticut when the law was passed, if his/her elected representative voted against the bill, and the Governor for whom he/she did not vote signed it into law, can it really be said that there was any true consent?

As a practical matter, of course, you are deemed to consent to be governed by the laws of any state in which you reside, travel to, or do business with, whether physically or virtually. And regardless of whether one voted for a particular representative/senator/Governor, when a law is passed by both chambers of the legislature and signed into law by the Governor, it is the law that all must obey. Any other system of governance would be untenable, since it would result in a different set of laws applying to each person. That would be mayhem far worse than anything we are seeing now!

The point is this: if you are quarantined, you have recourse to appeal that decision to the courts. The quarantine power is not absolute. No emergency, however severe, can grant to any elected or appointed official the power to unilaterally strip you of your God-given, unalienable rights without clear justification and due process of law. As long our Republic and its Constitution endures, you are a free people…even if you are locked inside of your house.