Crisis demands cautious action, not broad reaction

April 9, 2020

I am writing as a concerned constituent, with no particular expertise in law or health, regarding Bill 335-35 and perhaps other proposed bills dealing with the governor's emergency authority.

 

First, in an emergency the precedent has always been for emergency authority to cover a short period of time (hours or days) for events like typhoons, and in limited areas in case of fires or accidents. But here, we are dealing with an emergency of both a broad scale for a much longer time frame.

 

The current emergency EO has been extended and covers three calendar months. There is no end in sight. It is likely to be extended again, if the pandemic continues. This requires a different approach, analysis, laws and public debate regarding these orders. They aren’t just temporary, they are becoming a way of life.

 

So I am disturbed by the early use of DWI checkpoints as a workaround for the proposed “virus checkpoints,” which would ask people what “essential business” they have to be out. Most people don’t know their rights when being stopped, nor the limits of police authority. Of course, people will err on the side of obeying orders and giving up their rights to avoid arrest or worse.

 

This is already a gross violation of the basic civil liberties, such as freedom of movement and association. DWI checkpoints operate for public safety, but bars are closed. And, courts have ruled that DWI checkpoints have many more limitations on police than stops for reasonable suspicion. If any checkpoints are established, even prior to a new law, signs at the checkpoints prior to police interaction with drivers should explain people's rights and obligations. And there should be clear public communication regarding rights. This is not happening right now.

 

The emergency texts being received say “stay home,” which reads like an order for house arrest. That’s a problem. The arguments for extending or enforcing emergency EOs with fines or jail time need to be made, and made better than the suspect arguments made so far during the briefings. The “200 percent per day” spread rate and the “20,000 dead” starting point for the “no action” scenarios seem like a gross exaggeration, even to the untrained eye.

 

There needs to be an independent analysis by the legislature and models procured that demonstrate the effect on public safety to require the need for such serious restrictions on civil liberties for such a long period of time. Any legislation should also put strict limits on the timeframe for these executive orders to be enforced. They could always be extended. But there should be a sunset provision.

 

Also, the government should have to demonstrate, in short periods of time, through independent evidence-based analysis, that these restrictions continue to provide the benefits to public safety that justifies such continued restrictions of basic civil liberties. At least on a monthly basis.

 

I would also add, that history is full of examples where government has overreached in an emergency out of the public cries to “do something.” This includes Japanese-American internment during WWII, Patriot act surveillance and “enhanced interrogation techniques after 9/11. All of these met legal standards of the day, but are now seen as historical mistakes. This is precisely time for cautious action, not broad reactions. 

 

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