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.