Barr will sue states for "excessive" restrictions

Attorney General William Barr ordered federal prosecutors to “be on the lookout” for coronavirus-related measures from states and localities that could infringe upon Americans’ constitutional rights and civil liberties, reported the Huffington Post. The report doesn't mention any effort by Barr or the DOJ to crack down on businesses or individuals who refuse to comply with"reasonable" restrictions.

In a memo to the head of the Justice Department’s Civil Rights Division as well as all 93 U.S. attorneys across the country, Barr indicated that the Trump administration may take legal action against state and local governments that impose excessive restrictions on citizens because of the COVID-19 pandemic.

Will the DOJ use science to determine what is excessive or will they use the the Presidents's anecdotal, dangerous, off-the-wall bantering as a basis for legal action? 

“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” Barr wrote.

“Many policies that would be unthinkable in regular time have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote. “But the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time the public is protected.”

What ever happened to the longstanding support for states' rights by GOP conservatives?

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GateHouse: Barr makes about-face on fight against virus

Matthew T. Mangino

GateHouse Media

April 10, 2020

This week, Attorney General William P. Barr told Fox News’ Laura Ingraham that some of the government-imposed restrictions meant to control the spread of COVID-19 were “draconian.”

Barr acknowledged that governments, particularly state governments, have broad authority to impose restrictions on people in cases of emergency. He tempered that with the following admonition, the federal government should be “very careful to make sure that the draconian measures that are being adopted are fully justified.”

That’s a significant about-face for a guy who has argued that the sky is the limit when it comes to executive power.

In mid-March, after President Donald Trump declared a national emergency, Newsweek reported that the attorney general proposed granting himself immense, permanent powers extending far past the needs posed by a pandemic.

Barr proposed having the authority to personally ask any chief judge to hold a citizen, “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”

Barr was essentially asking to suspend habeas corpus. Such a “draconian” move has happened rarely in our nation’s history - most notably the Civil War, Reconstruction and the World War II internment of Japanese Americans.

What are Barr’s new concerns with government intrusion?

Barr said during the Fox interview he is concerned about the “tracking of people” suggested by some experts to identify those infected and to quarantine or isolate those persons.

The New York Times reported Israel’s Prime Minister Benjamin Netanyahu has authorized the country’s internal security agency to tap into a vast and previously undisclosed trove of cell phone data to retrace the movements of people who have contracted the coronavirus and identify others who should be quarantined because their paths crossed.

Alan Z. Rozenshtein, an Associate Professor of Law at the University of Minnesota Law School, wrote on the Blog Lawfare, “the longer the pandemic drags on, the more willing (and rightly so) people will be to trade in some of their privacy for the freedom to work and play.”

There is already significant support for location tracking among both policy experts and the general public.

According Rozenshtein, any disease surveillance program is likely to be evaluated under the Fourth Amendment’s “special needs doctrine.” Through the special needs doctrine courts have, at times, permitted warrantless surveillance with less than probable cause. In those instances courts have weighed if the search is aimed at something other than a traditional law enforcement purpose, is reasonable, and not impractical under the circumstances.

On one hand the attorney general is willing to let a man or woman languish in jail awaiting formal charges or trial but, on the other hand, attack the efficacy of surveilling an ill person during a national health emergency.

The World Health Organization has provided guidance for surveillance during a pandemic. There is, of course, one problem with that - the president is blaming the WHO for the pandemic and threatening to withhold the organization’s funding.

According to the WHO, the primary objective of surveillance monitoring during a pandemic is to track the course of the pandemic. Surveillance will reveal geographical spread, disease trends, intensity of transmission, impact of the pandemic on health care services and changes in the epidemiology.

Social distancing has no doubt begun to save lives in the United States. As COVID-19 projections have been adjusted downward, Barr lamented a prolonged shutdown could cost lives. He made the following dubious comment while opposing prolonging the shutdown while on Fox News - ”(C)ancer researchers were probably at home now, not doing their critical work.”

There are always going to be competing interests, but drawing back on social distancing to restart the economy; kowtow to religious leaders; or win an election will never be the right thing to do.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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President wants to implement unprecedented tri-state cordon sanitaire

President Trump is not seeking to quarantine New York, New Jersey and Connecticut. He is seeking  authority to order a “cordon sanitaire” which is not just a quarantine it is the forceful dentition of people who are ill and not ill.  A cordon sanitaire is right out of a sci-fi movie--a state or states where no one can go in or out.
 Normally this authority rests with state governors.Such authority has far-reaching implications for those not yet infected. They are being forcefully detained in an area where infected persons remain.

The last known time that a cordon sanitaire was used was with towns in Zaire during the Ebola outbreak.

The government attempts to balance the good of the community with individual liberty. In times of international crisis, there is a heightened need to zealously protect those individual rights.

GateHouse: Civil rights versus stopping a deadly virus

Matthew T. Mangino

GateHouse Media

February 14, 2020

The latest news about the coronavirus is sobering. Health officials in China’s Hubei province reported 14,840 new cases of coronavirus, most of them in Wuhan, the capital.

Province officials also said another 242 people had died, taking the total number of deaths in mainland China to 1,367 as of Feb. 13. These increases raise concerns about the true scale of the epidemic in China.

Coronavirus represents a group of viruses that can cause a range of symptoms including a runny nose, cough, sore throat and fever. Some are mild, such as the common cold, while others are more likely to lead to pneumonia.

The World Health Organization declared the outbreak a global public health emergency and the U.S. Secretary of Health and Human Services issued a similar warning for the U.S.

What are traditional public health measures available in the U.S. with the threat of a deadly outbreak? Isolation and quarantine are the methods by which public health officials stop the spread of disease.

According to the Department of Health and Humans Services, the president by executive order provides for the use of federal isolation and quarantine for communicable diseases, including cholera, diphtheria, tuberculosis, smallpox, yellow fever and Ebola among other potential pandemic diseases.

Isolation is used to separate ill people who have a communicable disease from those who are healthy. Quarantine is used to separate and restrict the movement of people who are well but may have been exposed to a communicable disease. This is ongoing with several cruise ships in Asia and other parts of the world.

Isolation and quarantine can have a significant impact on fundamental individual rights. The U.S. Constitution prohibits the federal government, as well as state governments, from depriving individuals of protected liberty rights.

Isolation and quarantine restrict the movement of people to help stop the spread of diseases. This means that an individual can be detained against his or her will for an extended period of time.

Quarantine and isolation are not new public health remedies. As far back as 1902 the U.S. Supreme Court recognized isolation and quarantine as legitimate public health techniques. Although, most patients normally have a right to refuse medical treatment, that right disappears when an infected or exposed person poses a significant risk to public health.

In addition to being medical functions, isolation and quarantine are also “police power” functions, derived from the right of the government to take action affecting individuals for the benefit of society. The authority for carrying out these functions has been delegated to the CDC. Pursuant to federal regulations, the CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying communicable diseases.

States also have police power functions to protect the health, safety and welfare of persons within their borders. All 50 states have laws to enforce the use of isolation and quarantine.

For instance, in Pennsylvania, the Disease Prevention and Control Law provides that the state or local health departments may, without court intervention, order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and there are no lesser restrictive means.

In Arizona, the governor, along with the state director of the Department of Health Services, have expansive authority in a state of emergency involving infectious disease. However, there must be an urgent threat to public health to establish a quarantine or isolation without an order of court.

In fact, in many states the governor has the authority to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such authority has far-reaching implications for those not yet infected. They are being forcefully detained in an area where infected persons remain.

The government attempts to balance the good of the community with individual liberty. In times of international crisis, there is a heightened need to zealously protect those individual rights.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

The Delaware County Daily Times: Individual liberties at risk if Ebola hits Pa.

Matthew T. Mangino
The Delaware County Daily Times, Guest Column
August 22, 2014
Tom Frieden, the director of the U.S. Centers for Disease Control, said recently that there’s a very real possibility that someone infected with Ebola will enter the United States. However, he suggested the chances of a U.S. outbreak are highly unlikely, “it is a matter of isolating patients.” Can a patient with Ebola, or merely exposed to Ebola, be isolated or quarantined in Pennsylvania?

The U.S. Constitution prohibits the federal government as well as state governments from depriving individuals of specifically protected liberty rights. There are exceptions. In Pennsylvania, the health and well being of the community at large may supersede individual rights of freedom and liberty.

Although matters relating to public health have been left largely to individual states to manage, the federal government does have jurisdiction over cases where communicable disease is introduced into this country from a foreign source or to prevent or curtail the interstate movement of communicable disease.

In more than 40 years, only one person — Andrew Speaker a newlywed form Georgia who was honeymooning in Europe in 2007 and contracted a drug-resistant form of tuberculosis — has been isolated under federal law.

In Pennsylvania the Disease Prevention and Control Law (DPCL) provides that the state Department of Health, county/municipal health departments or a local heath authority may — without court intervention — order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and no lesser restrictive means is warranted.

The DPCL defines quarantine as the “limitation of freedom of movement of persons ... who have been exposed to a communicable disease.” The limitations may continue for a period of time equal to the incubation period of the disease. Isolation is the separation of persons already infected, from other people to prevent direct transmission of disease.

“Ebola is so scary and so unfamiliar; it’s really important to outline what the facts are, and that we know how to control it,” Frieden told NBC News.

In 2002, only months after the 9/11 attacks, the Pennsylvania Legislature went even further by enacting the Counterterrorism Planning, Preparedness and Response Act. The law provides the governor with authority to order the temporary isolation or quarantine of individuals or groups. The law was intended for use following a suspected act of bioterrorism. The statute does not specifically preclude the law from being utilized during a pandemic.

The governor also has the authority to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such an act by the government has serious civil rights implications. People who have no apparent manifestations of a disease are forced, against their will, to remain in an area where other people are infected.

Another concern is the cost of quarantine or isolation and who bears the responsibility for payment. A 1990 tuberculosis outbreak in Fort Worth, Texas, resulted in various levels and durations of quarantine and isolation for 10 patients. The cost reached nearly $1 million. Pennsylvania public health authorities may be required to provide reimbursement for costs associated with isolation or quarantine.

In Pennsylvania, the local health office may order treatment, put restrictions on an individual’s movement, restrict an individual to his or her home, put the individual under surveillance or even isolate the individual in an institution to ensure compliance.

However unlikely an outbreak of Ebola may be in Pennsylvania, it appears the commonwealth has the tools to deal with it in an effective and efficient manner -- even if it means some civil rights get trampled in the process.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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GateHouse:Quarantine and isolation in the shadow of Ebola

Matthew T. Mangino
GateHouse News Service
August 15, 2014
The World Health Organization has officially declared the Ebola virus an international health emergency.

Emphasizing that the outbreak’s quick rise is “serious and unusual,” the organization issued the following statement, “The Ebola outbreak in West Africa is an ‘extraordinary event’ and a public health risk to other surrounding States, as well as the spread to other countries through lack of screening and monitoring.”

Ebola is a severe, often fatal, disease in humans. It was first discovered in the Republic of Congo in 1976. Until recently, there were fewer than 1,500 recorded cases of the virus. The death toll inflicted in West Africa since February has exceeded 1,000.

“Ebola is so scary and so unfamiliar, it’s really important to outline what the facts are, and that we know how to control it. We control it by traditional public health measures,” said Centers for Disease Control and Prevention Director Tom Frieden.

What are traditional public health measures? Isolation and quarantine are the methods by which public health officials stop the spread of disease.

According to the Department of Health and Humans Services, the president by executive order provides for the use of federal isolation and quarantine for communicable diseases, including cholera, diphtheria, tuberculosis, smallpox, yellow fever and Ebola among other potential pandemic diseases.

Frieden told NBC News that there’s a very real possibility that someone infected with Ebola will enter the United States. But the chances of a U.S. outbreak are highly unlikely: “It’s a matter of isolating patients.”

Isolation is used to separate ill people who have a communicable disease from those who are healthy. Quarantine is used to separate and restrict the movement of people who are well but may have been exposed to a communicable disease.

Isolation and quarantine can have a significant impact on fundamental individual rights. The U.S. Constitution prohibits the federal government, as well as state governments, from depriving individuals of protected liberty rights.

Isolation and quarantine restrict the movement of people to help stop the spread of diseases. This means that an individual can be detained against his or her will for an extended period of time.

Quarantine and isolation are not new public health remedies. As far back as 1902 the U.S. Supreme Court recognized isolation and quarantine as legitimate public health techniques. Although, most patients normally have a right to refuse medical treatment, that right disappears when an infected or exposed person poses a significant risk to public health.

In addition to being medical functions, isolation and quarantine are also “police power” functions, derived from the right of the government to take action affecting individuals for the benefit of society. The authority for carrying out these functions has been delegated to the CDC.

Pursuant to federal regulations, the CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying communicable diseases.

States also have police power functions to protect the health, safety, and welfare of persons within their borders. All 50 states have laws to enforce the use of isolation and quarantine.

For instance, in Pennsylvania, the Disease Prevention and Control Law provides that the state or local health departments may, without court intervention, order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and there are no lesser restrictive means.

In Arizona, the governor, along with the state director of the Department of Health Services, have expansive authority in a state of emergency involving infectious disease. However, there must be an urgent threat to public health to establish a quarantine or isolation without an order of court.

In fact, in many states the governor has the authority to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such authority has far-reaching implications for those not yet infected. They are being forcefully detained in an area were infected persons remain.

The government attempts to balance the good of the community with individual liberty. In times of international crisis, there is a heightened need to zealously protect those individual rights.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
To visit the column Click Here

The Cautionary Instruction: Communicable disease and quarantine in Pennsylvania

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 8, 2014
The U.S. Centers for Disease Control and Prevention has issued its highest-level alert in response to the Ebola crisis in West Africa.
Two Americans, Kent Brantly and Nancy Writebol, have been returned to the U.S. from Liberia and are being treated for Ebola at the Emory University Hospital in Atlanta.
Could a patient with a communicable disease, or merely exposed to a communicable disease, be isolated or quarantined in Pennsylvania?
In 2007, I wrote a column for the Pennsylvania Law Weekly on the issue of quarantine -- in light of the Ebola scare the law in Pennsylvania is worth revisiting.
The United States Constitution prohibits the federal government as well as state governments from depriving individuals of specifically protected liberty rights. There are exceptions. In Pennsylvania the health and well-being of the community at large may supersede individual rights of freedom and liberty.
Although matters relating to public health have been left largely to individual states to manage, the federal government does have jurisdiction over cases where communicable disease is introduced into this country from a foreign source or to prevent or curtail the interstate movement of communicable disease.
In Pennsylvania the Disease Prevention and Control Law (DPCL) provides that the state department of health, county/municipal health departments or a local heath authority may, without court intervention, order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and no lesser restrictive means is warranted. The court may be asked to review the order within 24 hours of service upon the individual being detained.
The DPCL defines quarantine as the “limitation of freedom of movement of persons . . . who have been exposed to a communicable disease.” The limitations may continue for a period of time equal to the incubation period of the disease. Isolation is the separation of persons already infected, from other people to prevent direct transmission of disease.
As far back as 1902 the U.S. Supreme Court recognized isolation and quarantine as legitimate public health techniques to contain the spread of infectious disease.
In the months following the September 11th attack, the Pennsylvania legislature went even further by enacting the Counterterrorism Planning, Preparedness and Response Act (Act). The Act provides the governor with authority to order the temporary isolation or quarantine of individuals or groups. The Act, although not clear, was intended for use following a suspected act of bioterrorism. The statute does not specifically preclude the Act from being utilized during a pandemic.
The governor has also been empowered to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such an order from the governor is subject to judicial review.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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