CA2: Ebola quarantine order is entitled to QI under the 4A essentially for lack of a case on point

An Ebola quarantine order is entitled to qualified immunity under the Fourth Amendment essentially for lack of a case on point that it could be unreasonable. Liberian Cmty. Ass’n of Conn. v. Lamont, 2020 U.S. App. LEXIS 25804 (2d Cir. Aug. 14, 2020) (submitted Feb. 8, 2018, 30 months ago):

C. The Fourth Amendment

Finally, Appellants assert that “Dr. Mullen’s over-inclusive sweep was not reasonable under the Fourth Amendment,” Appellants Br. 48, because in quarantining Boyko, Skrip, and the Mensah-Siehs, she “depart[ed] from what is scientifically justified for a particular disease,” Appellants Reply Br. 9 (quotation marks omitted). According to Appellants, “all Plaintiffs had no known exposure to Ebola,” Appellants Br. 39, Boyko had undergone several blood tests confirming that he did not have the disease, and Boyko and Skrip had been assured by CDC representatives that any interactions with a person in their hotel who later developed symptoms posed no risk. This claim is essentially the same as their substantive due process claim but is recast in Fourth Amendment terms.

Qualified immunity affords especial protection to state officials in the Fourth Amendment context. See Wesby, 138 S. Ct. at 590 (holding that the “specificity” requirement is “especially important in the Fourth Amendment context”) (quoting Mullenix, 136 S. Ct. at 308). The Supreme Court has observed, for instance, that “[p]robable cause ‘turn[s] on the assessment of probabilities in particular factual contexts’ and cannot be ‘reduced to a neat set of legal rules.'” Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Therefore, a plaintiff must “identify a case where an officer acting under similar circumstances … was held to have violated the Fourth Amendment.” Id. (quoting Pauly, 137 S. Ct. at 522).

Appellants have cited no case in which a court has invalidated a quarantine order under the Fourth Amendment. And although they characterize their quarantines as “scientifically unjustified,” Appellants Br. 58, a number of factors could support a determination that the quarantines were at least arguably reasonable as a matter of Fourth Amendment law. Cf. Camara v. Mun. Ct. of City & Cty. of S.F., 387 U.S. 523, 538 (1967) (“Where considerations of health and safety are involved, the facts that would justify an inference of ‘probable cause’ to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken.” (quoting Frank v. Maryland, 359 U.S. 360, 383 (1959) (Douglas, J., dissenting)). Put simply, it was not clearly established that it was unreasonable, pursuant to the Fourth Amendment, for Appellees to quarantine individuals traveling from a nation suffering from an Ebola epidemic for the duration of the disease’s incubation period. And in such circumstances, Dr. Mullen is entitled to qualified immunity.

To be clear, we need not and do not reach the merits of Appellants’ constitutional claims. We conclude simply that the district court did not err in determining that no clearly established law existed at the time of Dr. Mullen’s actions such that every reasonable official would have known that her conduct fell outside the boundaries of due process and Fourth Amendment constraints. No significant precedent had previously articulated the requirements of substantive due process, procedural due process, or the Fourth Amendment in the quarantine or infectious diseases contexts, as urged by Appellants here. In such circumstances, the district court properly concluded that Dr. Mullen is entitled to qualified immunity.