Can You Defy Pandemic Shutdown Orders and Collect Damages?

Involuntary measures to control disease have a long history in North America.

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Claim

Pandemic-related shutdown orders are unconstitutional, and persons arrested for violating them can collect damages.

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Origin

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As Americans in various U.S. cities began demonstrating in April 2020 for the relaxation of social distancing and lockdown restrictions enacted to blunt the spread of the COVID-19 coronavirus disease, some protesters claimed that such restrictions were unconstitutional infringements of individual rights.

One example of such claims was a social media post that asserted that citizens arrested for violating shutdown orders could “win damages in court” because “the constitution supersedes any other law”:

However, the basic premise of this message was wrong. Measures enacted to protect the public health, both during the COVID-19 pandemic of 2020 and in earlier health crises, have consistently been upheld against challenges in U.S. courts. For example, on May 6, 2020, the U.S. Supreme Court declined to lift a shutdown order issued by the governor of Pennsylvania requiring all non-life-sustaining businesses to temporarily close:

The U.S. Supreme Court refused to lift Pennsylvania’s shutdown order, rejecting a request from businesses and a political campaign that said their constitutional rights were being violated.

Pennsylvania Governor Tom Wolf, a Democrat, ordered all non-life-sustaining businesses closed in March to stem the spread of the coronavirus. The state has since begun easing the restrictions.

The challengers included a golf course, laundromat, timber company, real-estate agent and political committee tied to a Republican state legislative candidate. They turned to the nation’s top court after the Pennsylvania Supreme Court rejected their arguments.

As well, in their survey of pandemic-related law, the American Bar Association (ABA) noted that:

Under the U.S. Constitution’s 10th Amendment and U.S. Supreme Court decisions over nearly 200 years, state governments have the primary authority to control the spread of dangerous diseases within their jurisdictions. The 10th Amendment, which gives states all powers not specifically given to the federal government, allows them the authority to take public health emergency actions, such as setting quarantines and business restrictions.

With states adopting emergency measures, there are several broad public health tools that governors can invoke. They can, for example, order quarantines to separate and restrict the movement of people who were exposed to a contagious disease to see if they become sick. They can also direct that those who are sick with a quarantinable communicable disease be isolated from people who are not sick. And, as a growing number of governors have done in recent days, states can order residents to stay at home with exceptions for essential work, food or other needs. Curfews are another tool they can impose.

In a broader sense, this message is also wrong in that individuals do not have a right to defy laws they disagree with and then “collect damages” if those laws are enforced against them. Certainly individuals can mount challenges to laws on various grounds (e.g., those laws are unconstitutional, are in conflict with other laws, are contrary to public policy, etc.), but they cannot take it upon themselves to decide those laws are not valid and pre-emptively ignore them with impunity.

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Sources

Stohr, Greg.   “Supreme Court Won’t Lift Pennsylvania Governor’s Shutdown Order.”
    Bloomberg.   6 May 2020.

American Bar Association.   “Two Centuries of Law Guide Legal Approach to Modern Pandemic.”
    April 2020.

Klein, Adam and Benjamin Wittes.   “The Long History of Coercive Health Responses in American Law.”
    Lawfare.   13 April 2020.