Is a government quarantine order for a person or group of people a violation of the Fourth Amendment as a reasonable seizure? Despite being an ardent civil libertarian, I must conclude the Constitution means: No.
Protection from infectious diseases has long been a subject of the law. Quarantines were recognized at common law, and the Supreme Court’s cases from 1824 on have all assumed a legitimate public health quarantine is within the power of state and local government under the Commerce Clause.
But what about the Fourth Amendment? Common law can direct the reasonableness inquiry under the Fourth Amendment. See, e.g., Wilson v. Arkansas, 514 U.S. 927, 931 (1995), and other cases below.
I. Quarantines from time immemorial
Quarantines have been around almost for 700 years, almost as long as diseases have been recognized. Eugine Tognotti, Lessons from the History of Quarantine, from Plague to Influenza A, 19 Emerging Infectious Diseases 254, 254-55 (2013). On the due process considerations, see, e.g., Jennifer Jolly-Ryan, Balancing Interests and Risk of Error: What Quarantine Process Is Due after Ebolamania, 96 Neb. L. Rev. 100 (2016); Michelle A. Daubert, Comment, Pandemic Fears and Contemporary Quarantine: Protecting Liberty Through a Continuum of Due Process Rights, 54 Buff. L. Rev. 1299, 1318 (2007) (no Fourth Amendment discussion); Katherine T. Rooney, U.S. Biological Quarantine: a Look at the Legal Framework, 42 J. Legis. 111 (2016); see also Kelly S. Culpepper, Bioterrorism and the Legal Ramifications of Preventative and Containment Measures, 12 Quinnipiac Health Law Journal 245 (2016).
II. Legislation, regulation, and the common law
a. Federal legislation and regulation
Federal law permits regulations to be adopted for control of communicable diseases. And, 42 U.S.C. § 264(d) permits apprehension and examination of people with communicable diseases “likely to cause a public health emergency.”
In Control of Communicable Diseases, Proposed Rule, 70 F.R. 71892, 71893 (Nov. 30. 2005), the Department of Human Services points out the early legislation but only one case. Let me expand.
b. Common law
Fourth Amendment reasonableness is interpreted in accord with the common law. In Boyd v. United States, 116 U.S. 616, 623 (1886), and reaffirmed in United States v. Ramsey, 431 U.S. 606, 616 (1973), the Court held that customs inspection laws were passed out of the same Congress that sent the Bill of Rights to the states in 1789 and thus must be reasonable under the Fourth Amendment.
The first quarantine law from 1796 is significant in determining Fourth Amendment reasonableness. It wasn’t from the first Congress in 1789, but it still is close enough to aid in determining reasonableness. Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts §§ 52-53 (2012).
III. Existing Supreme Court case law
a. Early quarantine cases
The Court has always looked with favor on quarantine laws as being within the police power of states and local government to protect public health.
Gibbons v. Ogden, 22 U.S. 1 (1824), held that quarantine laws enacted by the states were valid as health laws, despite the claim they violated interstate and international commerce. Protection of local health was paramount. Accordingly, the Court upheld the charge of a fee to pass the quarantine check station on the Mississippi River below New Orleans in Morgan’s S.S. Co. v. Louisiana Bd. of Health, 118 U.S. 455 (1886). The Court recognized that ships from warm climates may carry diseases and the Louisiana legislature had the power to impose quarantine stops. Accord: Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380 (1902) (local quarantine laws do not violate Commerce Clause). Compare R.R. Co. v. Husen, 95 U.S. 465 (1877) (holding a violation of interstate commerce a statute barring cattle from certain areas without regard to the health of the animal, seemingly supporting that a quarantine law would be reasonable); City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) (prohibition of waste moving from Philadelphia to New Jersey violates interstate commerce because it’s not a public health prohibition). In United States ex rel. Siegel v. Shinnick, 219 F.Supp. 789 (E.D. N.Y. 1963), on habeas, the District Court sustained a 14 day small pox quarantine on arrival of a U.S. citizen from Sweden based on the opinions of medical professionals and federal regulations, and without citing a case in support.
b. Entries to inspect; emergency entries
Camara v. Municipal Court of San Francisco, 387 U.S. 523, 539 (1967), held, albeit in dicta, that emergency entries for disease inspection purposes might be reasonable:
Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle).
The modern exigency cases bare this out: See, e.g. Brigham City v. Stuart, 547 U.S. 398 (2006) (3 am excessive noise call at a party; officers saw an altercation inside and entered); Michigan v. Fisher, 558 U.S. 45 (2009) (bona fide belief in emergency inside permitted entry); Kentucky v. King, 563 U.S. 452 (2011) (apparent destruction of evidence going on inside).
It is not much of a stretch that a warrantless entry to enforce some kind of quarantine order would satisfy the Fourth Amendment.
c. Administrative warrants don’t require criminal probable cause
An administrative warrant could be issued by a judicial officer to require seizure of a person for quarantine who refuses to voluntarily submit. (See Camara v. Municipal Court of San Francisco where the Court expected almost everybody to voluntarily comply with a request for an administrative search.)
Over 40 years ago, the Court recognized administrative warrants on probable cause other than criminal probable cause. In Marshall v. Barlow’s, Inc., 436 U.S. 307, 320-21, 322-23 (1978), deriving from Camara v. Municipal Court of San Francisco, the Court held that an administrative warrant based on a showing of at least a programmatic purpose avoids complete arbitrariness and “unbridled discretion” satisfied the Fourth Amendment. This is not probable cause in criminal law sense.
d. Roadblock cases
The Court’s roadblock cases are instructive, too. Roadblocks are usually thought of as temporary exercises, designed to stop traffic, make an inquiry or even do a search, and then let the traffic pass if no arrest. What about quasi-permanent roadblocks sealing off an area, such as roadblocks to prevent visitors into emergency-stricken areas such as hurricanes, tornadoes, earthquakes, tsunamis, and pandemics.
Suspicionless roadblocks were first sustained in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), where inland immigrant checkpoints were established at the likeliest places to be productive and not interfere with traffic, and they were sustained as reasonable. (Earlier, the Court sustained roving immigration patrols to supplement checkpoints. Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. Brignoni-Ponce, 422 U.S. 873 (1975).) Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), upheld brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving. However, roving patrols for safety stops were held unreasonable in Delaware v. Prouse, 440 U.S. 648 (1979).)
Since 2000, the Court held drug interdiction and “informational roadblocks” leading to arrest of a motorist for drunk driving were unreasonable for lack of a compelling governmental need. City of Indianapolis v. Edmond, 531 U.S. 32 (2000); Illinois v. Lidster, 540 U.S. 419 (2004). Also consider Brinegar v. United States, 338 U.S. 160, 188 (1949) (Jackson, J., concurring) (“I do not, of course, contend that officials may never stop a car on the highway without the halting being considered an arrest or a search. Regulations of traffic, identifications where proper, traffic census, quarantine regulations, and many other causes give occasion to stop cars in circumstances which do not imply arrest or charge of crime.”)
e. State laws
California has long upheld its plant quarantine checkpoints operated 24/7 at Needles and elsewhere. See, e.g. People v. Dickinson, 104 Cal. App. 3d 505, 163 Cal. Rptr. 575 (4th Dist. 1980). So has Arizona. State v. Bailey, 120 Ariz. 399, 586 P.2d 648 (App. 1978).
Mad cow disease resulted in state legislation including the power of warrantless search. Andrew Nelson, Comment: High Steaks: Defending North Carolina’s Response to Contagious Animal Diseases, 83 N.C.L. Rev. 238, 255-56 (2004). Citrus canker permits areawide search and seizure warrants in Florida. Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So. 2d 1040 (Fla. 4th DCA 2003). Florida has also upheld state power to enter and destroy infected trees to protect crops. Corneal v. State Plant Board, 95 So. 2d 1 (Fla. 1957).
It must fairly be concluded that seizures and some form of detention of those who carry seriously infectious diseases are reasonable under the Fourth Amendment.