In trying to maintain public safety in a COVID-19 world, Florida’s state and local governments have directed people to stay at home, closed businesses, established checkpoints against out-of-state travelers, even arrested a church pastor.
That these orders may infringe upon civil liberties seems a realistic danger.
Especially disadvantaged are prison inmates close to proving they were wrongly convicted but unable to make their cases because the Florida Supreme Court has postponed jury and civil proceedings within the state’s courts and they can’t get a hearing until the danger passes.
Never mind the incongruity of a conservative Republican like Gov. Ron DeSantis using his executive authority to exert such control over the economy.
How is this legal?
Certainly, a public health emergency can justify legitimate imposition of otherwise unthinkable government action, said Steven Griffin, a professor who specializes in constitutional law at Tulane Law School.
“Generally, [governors are] granted broad authority under public health laws of the state. And the state itself, which is to say the Legislature, has broad power under the state constitution and federal constitution to take action to protect the public health,” he said.
But he added: “In so doing, they can’t violate other constitutional rights. For example, they can’t apply such prohibitions in a way that would be, say, racially discriminatory.”
Generally, Florida Statutes Chapter 252 gives governors extensive authority to wield the levers of state government to respond to emergencies. And DeSantis is a Harvard-trained lawyer. On the federal level, the Public Health Service Act authorizes quarantine and isolation for patients suffering communicable diseases including the new coronavirus.
The details, though — they’re open to interpretation and sometimes to litigation.
Perhaps DeSantis’ most controversial move involved inaction — his refusal to issue a statewide order closing Florida’s beaches.
Daniel Uhlfelder, the Walton County attorney best known previously for suing for access to beaches once considered unambiguously public until the Legislature passed a law in 2018 muddying the picture, took the governor to state court over the matter.
Uhlfelder sought an injunction to close all the beaches and amended his state court complaint on March 29 seeking to compel a statewide stay-home order, as well. He was not mollified by the governor’s April 1 order imposing a statewide stay-home order (which contained broad exemptions).
A Leon County judge reportedly threw out the lawsuit on Tuesday, saying he was reluctant to second-guess the governor’s exercise of his authority. In a telephone interview with the Florida Phoenix, Uhlfelder said he would appeal.
He doesn’t question the governor’s authority to act but complained DeSantis has done so inconsistently. “I don’t think he’s looking at this from the top-down level. I think he’s concerned about what [President] Trump is telling him to do, what the restaurants and special interests want him to do, and not what the citizens need,” Uhlfelder said.
Another controversial move came on March 23, when the governor ordered police and the National Guard to screen passengers arriving by air from the New York metropolitan region, which is carrying the largest coronavirus caseload in the country, and order them into 14 days’ quarantine.
He later expanded screening to people arriving by car from Louisiana, home to New Orleans, another coronavirus hot spot, and New York. DeSantis argued that people fleeing movement restrictions there were bringing the contagion to Florida.
Griffin, the Tulane professor, believes DeSantis’ travel orders violate the Dormant Commerce Clause, a legal doctrine reflecting U.S. Supreme Court precedents that bar states from erecting economic barriers against one another. It also may run counter to the 14th Amendment’s Privileges and Immunity Clause, which blocks states from violating the rights of U.S. citizens.
“The framers of the Constitution were very clear in their desire to create one single market and not to have arbitrary barriers at state lines. That means that any barrier has to meet the highest level of scrutiny — it’s called strict scrutiny,” Griffin said.
The ACLU of Florida also was dubious about these orders.
“A person’s right to travel is guaranteed by our federal and state constitutions,” legal director Daniel Tilley said via email.
“During a declared state of emergency, government officials may take action to protect the safety and well-being of the community, including imposing some restrictions on movement and travel, but they must ensure that any travel restrictions or prohibitions are no more restrictive than necessary,” he said.
“Public officials must also provide adequate notice of the restrictions and provide a hearing process that allows individuals who are impacted by such policies a fair opportunity to explain why they should not be subjected to the policy. ”
The River at Tampa Bay
One case that came close to inspiring a federal civil rights action involves Tampa-area pastor Rodney Howard-Brown, arrested on charges of unlawful assembly and violating emergency public health rules after defying a Hillsborough County order not to hold Sunday services.
Liberty Counsel, which litigates religious-freedom cases, was “hours away” from taking the county to court when the officials rescinded their policy last week, after DeSantis exempted houses of worship from his stay-home order, said Mat Staver, the organization’s founder and chairman.
As of Tuesday afternoon, the criminal charges remained pending, Staver said.
Actually, church leaders were aware of the danger and spent $100,000 to install hospital-grade air filters and other equipment to make the sanctuary safer, and maintained six feet between the people in the pews, he said.
The Sheriff’s Office actually had OK’d the modifications, he added.
“Yet Home Depots were filled with people buying essential things such as garden hoses and potted plants with no social distancing at all,” Staver said.
“It not only is unconstitutional, but it also has a very narrow view of what the church does.” Howard-Brown’s The River at Tampa Bay Church, for example, feeds 900 families every week and maintains a garden and a fish farm to teach them to sustain themselves.
“The church is much more than just a podcast that you can switch on for the pastor preaching from the pulpit and watch it from your smartphone or tablet at home. Many of these people don’t have Internet,” he said.
“Many churches provide very essential ministries to help hurting people in their communities that can not be transmitted online. And yet government officials … have taken upon themselves the authority to literally, with one word, give them the thumb’s up or thumb’s down as to whether they have a right to exist,” Staver said.
Florida’s small business owners — who’ve been forced to close or limit operations — generally understand that the governor’s executive orders are intended to protect public safety, said Bill Herrle, executive director in Florida for the National Federation of Independent Businesses.
They’re certainly not considering litigation challenging the governor’s executive orders.
“I’m talking endlessly, nonstop, to small business owners. I’m not hearing any of that now,” he said.
“Did we get a little griping and shock and surprise at the first couple of ones? But it’s been on a steady curve toward understanding that this is necessary. People are definitely getting the message that this is critically important to themselves, their families, their customers, and their employees.”
As for those inmates, the Innocence Project of Florida represents 30 who face becoming sick, maybe dying, of COVID-19 before they exhaust the court process for proving their innocence, director Seth Miller, an attorney, told the Phoenix. Another avenue is the clemency process run by the governor and Cabinet, but their meetings are on hold for now.
As of Tuesday, 41 people with links to the state corrections system had contracted COVID-19, mostly employees moving between the prison environment and the outside community. Of the 41, four inmates were infected.
Miller said the COVID-19 pandemic poses an unprecedented situation for the courts and a lethal threat to inmates who are forcibly held in conditions in which it is difficult to maintain hygiene and distance.
“We’ve been focusing on the ones near the end of the process [of being exonerated],” Miller said. “We’ll be taking steps … but there aren’t many good options.”
That leaves attorneys with few ways to advocate for clients they believe to be innocent. They cannot convene expert witnesses and present physical evidence for in-person examination, and it is difficult to secure conditional releases or vacating of sentences even under these unprecedented and dangerous circumstances.
Meanwhile, a mid-May hearing to present evidence that Miller believes would exonerate Amanda Brumfield, convicted of aggravated manslaughter, has been cancelled. She is imprisoned at Hernando Correctional Institution. A DNA test he believes would exonerate Clarence Copeland, convicted of attempted murder, is sitting idle in a forensics lab. Copeland is imprisoned at Marion Correctional Institution, where an employee was confirmed sick with COVID-19.
The Florida Supreme Court has postponed jury trials and other proceedings in which litigants normally would gather in courtrooms.
Despite that stoppage, Chief Justice Charles Canady issued a written statement describing the courts as “fully operational except for the social-distancing requirements.”
The justices did not explain how they contemplate conducting electronic proceedings that require interaction with litigants.