Florida’s stay-at-home order didn’t violate the Bill of Rights or the Fourteenth Amendment. Henry v. Desantis, 2020 U.S. Dist. LEXIS 86396 (S.D. Fla. May 14, 2020)*:
In the rare cases where a federal court is asked to strike a state’s use of its police-power authority, the court has correctly declined the invitation. For instance, in Jacobson, the Supreme Court was asked to determine the constitutionality of a Massachusetts statute that authorized cities or towns to mandate and enforce compelled vaccination of its citizens. In upholding the statute, the Court recognized Massachusetts’s general police power to prescribe the mode or manner in which public-health and welfare goals are accomplished. Id. at 24-25. The Court, again, “distinctly recognized the authority of a state to enact quarantine laws and health laws of every description.” Id. at 25.
Legal battles over various COVID-19 policies are actively playing out across the country. Some courts find their state’s policy preferences lawful. See Friends of Danny DeVito v. Wolf, 2020 WL 1847100, *24 (Pa. Apr. 13, 2020). Some find their edicts repugnant to the law. See Wisconsin Legislature v. Secretary-Designee Andrea Palm, No. 2020AP765-OA (Wis. May 13, 2020). Either way, they are properly before, and determined by, courts under the constitutions of their state. This Court is not such a venue.
Once again, however, the extent to which the states enjoy their police power is not unvarnished. Justice Harlan, author of the Jacobson opinion, ended with a clarification of the Court’s opinion “to prevent misapprehension,” ominously warning: “[T]he police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted … by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression.” 197 U.S. at 38.
And this dictum is compelling. Constitutional rights do not give way to a government’s perceived authority in times of crises. This pandemic, despite being unprecedented, did not suddenly nullify the people’s inalienable rights. See e.g., On Fire Christian Ctr., Inc. v. Fischer, 2020 WL 1820249 (W.D. Ky. 2020) (granting a temporary restraining order against the City of Louisville, Kentucky mayor for banning religious gathering on Easter Sunday amid the COVID-19 pandemic in clear violation of the First Amendment). No elected official can do so. Our country was founded on bedrock, core principles The Bill of Rights is not a suggestion; the Constitution is not optional. This order does not authorize elected officials to escalate the slow erosion of constitutional rights in the name of emergency authority. But this is simply not the case here. Petitioner has not identified a constitutional right that Governor DeSantis has violated. She is not prohibited from any of her First Amendment rights. She is not confined to her house in an unreasonable seizure under the Fourth Amendment. She is not deprived of equal protection of the law under the Fourteenth Amendment. The Governor’s actions are reasonable and measured, based on data and science, and rationally related to a legitimate end. In other words, Petitioner is subject to a pause in her life, as authorized by law, in exchange for and in an effort to maintain the majestic freedoms enjoyed in America prior to, during, and after this pandemic. As painful as this moment is for her and millions of other Floridians, her constitutional rights are not implicated.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)