The COVID-19 pandemic has altered many of the most fundamental expectancies of our democratic republic.  Personal liberty, economic activity, and views about how to best provide for our collective care and health are continuously being adapted.  As part of the role of government in guiding the way we jointly move forward, law enforcement leadership is responsible for determining how to provide emergency services in this environment, how to best attain compliance with Public Health Officer orders, how to sustain agency operations, and how to assure, to the best of their ability, the safety of their personnel.  One of the most complex aspects of these critical duties involves decisions concerning how to respond to First Amendment expressive rights activity.  This document is designed to provide some assistance with determining how to fairly and accurately evaluate and react to these complex situations.

Health Emergency Appellate Decisions

The authority of government to act to protect the people it serves during a health emergency has been part of United States law for more than a century.  One of the foundational cases continuing to provide guidance today, Jacobson v. Massachusetts, 197 U.S. 11 (1905), was decided by the United States Supreme Court in 1905.  In Jacobson, the Court upheld the prosecution of a defendant for violating a mandatory adult smallpox vaccination statute.[1]  The challenge was brought under the 14th Amendment, as well as asserting other claims.  In reaching its outcome, the Court described how the discretionary authority of the state shall not “contravene the Constitution of the United States or infringe any right granted or secured by that instrument.” (Id. at 25.)

The Court assessed the circumstances surrounding the legislation requiring smallpox vaccinations, explaining, “A community has the right to protect itself against an epidemic of disease which threatens the safety of its members.  It is to be observed that when the regulation in question was adopted, smallpox, according to the recitals in the regulation adopted by the Board of Health, was prevalent to some extent in the city of Cambridge and the disease was increasing.”  (Id. at 27.)  The opinion reconciled collective community safety with personal autonomy saying, “it was the duty of the constituted authorities primarily to keep in view the welfare, comfort and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few,” and that it was “true that in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of [their] liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” (Id. at 29.)

Very importantly, in upholding the public health legislation, the Court also cautioned there was a point where the state might go too far and intrude into “a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority.”  (Id.)  The opinion closed with the guidance, “the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.” (Id. at 38.)  The example the Court provided illustrating this point was applying the statute where the vaccination would be cruel and inhuman and could “seriously impair” the person’s health or “probably cause their death.” (Id.)

In terms of our present circumstances, the Jacobson decision was applied to a dispute involving an executive order issued by the Governor of Texas to cope with the COVID-19 pandemic in a case entitled In re Abbott, 954 F.3d 772 (5th Cir. 2020).  The case was decided on April 7, 2020.  The executive order at issue in Abbott postponed non-essential surgeries and procedures until 11:59 p.m., on April 21, 2020.  The district court had issued a TRO against the order as it applied to abortion procedures.

In the Abbott decision, the Court of Appeals cited to Jacobson, noting that it was a “settled rule” that “allow[ed] the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”  (Id. at 779.)  The Court extended its reasoning, additionally stating, “The right to abortion is no exception.”  (Id.)  The Court further referenced Jacobson, observing, “Famously, it explained that the ˈliberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.  “Rather, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”  (Id. at 783, internal citations omitted.)  The Court of Appeals issued a writ vacating the restraining order.  In taking this action, similar to Jacobson, the Court noted that there could be circumstances where, as the order was applied, constitutional questions could exist as to whether “GA-09 infringes abortion rights in specific contexts.” (Id. at 788.)

Jacobson was also relied upon in dismissing a Section 1983 action brought by a nurse who was quarantined upon her return from caring for patients during the 2014-16 Ebola epidemic in West Africa.  See Hickox v. Christie, 205 F. Supp. 3d 579, 584 (D.N.J. 2016).  In reaching this outcome, the district court incorporated Jacobson’s admonition regarding the vaccine requirement, stating those rules “enacted to protect public health, will not be struck down unless it ‘has no real or substantial relation to [that goal], or is, beyond all question, a plain, palpable invasion of rights’ secured by the Constitution.”  (Id. at 591, citations omitted.)  The court also cautioned, however, “A restriction can be so arbitrary or overbroad as to be impermissible.”  (Id. at 592-593.)

Public Health Orders

On March 19, 2020, the Governor issued Executive Order N-33-20.  A key provision regarding people being directed to remain at home appears below:

“ORDER OF THE STATE PUBLIC HEALTH OFFICER

March 19, 2020

To protect public health, I, as State Public Health Officer and Director of the California Department of Public Health, order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/identifying-critical-infrastructure-during-covid- 19.  In addition, and in consultation with the Director of the Governor’s Office of Emergency Services, I may designate additional sectors as critical in order to protect the health and well-being of all Californians.”

The following language is illustrative of a county health order as it pertains to essential travel and the requirement to abide by social distancing requirements:

“ORDER OF THE HEALTH OFFICER

10. Definitions and Exemptions.

a.  For purposes of this Order, individuals may leave their residence only to perform any of the following “Essential Activities.” But people at high risk of severe illness from COVID-19 and people who are sick are urged to stay in their residence to the extent possible except as necessary to seek medical care.

b.  For the purposes of this Order, “Essential Travel” includes travel for any of the following purposes. Individuals engaged in any Essential Travel must comply with all Social Distancing Requirements as defined in this Section below.”  (Emphasis added.)

Executive Orders issued by the Governor and orders from Public Health Officers regarding quarantine and other issues carry the authority of law.  They are enforceable under Government Code section 8665 and Health and Safety Code section 120295, respectively.  The issue of enforcement of these orders is fully discussed in Client Alert Vol. 35, No.9, “GUIDANCE TO LAW ENFORCEMENT AGENCIES DURING COVID-19 STATE OF EMERGENCY.”

Rights to Speech and Assembly

As with all other forms for government authority, the orders of health officers exist within the framework of our constitutionally protected freedom of speech and assembly.  These rights are preserved at the highest level under the First Amendment of the United States Constitution and Article I of the California Constitution.  The protections, however, are not absolute and may be subject to regulation, as discussed above.

In terms of places fundamentally associated with expressive activity, such as streets, parks, and sidewalks, Prigmore v. City of Redding, 211 Cal. App. 4th 1322, 1335 (2012), provides a helpful summary of the boundaries of permissible regulations:

“In these quintessential public forums, the government may not prohibit all communicative activity.  For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.  The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” (Perry, supra, 460 U.S. at p. 45 [74 L.Ed.2d at p. 804].)”

In addition, an assembly is also limited in its character to activity that is lawful.  In California, Penal Code section 407 defines an unlawful assembly as follows:

“Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.”

The courts have separately interpreted the provisions pertaining to an “unlawful act” and “a lawful act in a violent, boisterous, or tumultuous manner.”  In 1952, the California Supreme Court held, “It is not disputed that the group was assembled to view a “hot-rod” race.  Such illegal purpose renders the action of the group knowingly participating therein an unlawful assembly within the meaning of section 407 of the Penal Code.”  Coverstone v. Davies, 38 Cal. 2d 315, 320, 239 P.2d 876, 878 (1952).  Another case, citing Coverstone, described the provision as pertaining to “criminal conduct prohibited by state law.”  Chambers v. Mun. Ct., 65 Cal. App. 3d 904, 910, 135 Cal. Rptr. 695, 698 (1977).  The Ninth Circuit, in discussing imminent danger as a basis for crowd dispersal, has also defined “unlawful act,” as “they are violating some other law in the process.”  Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996).

As to the second portion of the statute, where an assembly is otherwise lawful, the California Supreme Court has provided direction concerning the narrow range of what falls within the meaning of “violent, boisterous, or tumultuous” activity.  Sections 407 and 408 are applicable only to “assemblies which are violent or which pose a clear and present danger of imminent violence.”  In re Brown, 9 Cal. 3d 612, 623, 108 Cal. Rptr. 465, 472, 510 P.2d 1017, 1024 (1973).  See also Dubner v. City & County of San Francisco, 266 F.3d 959 (9th Cir. 2001) [reinstating claim for unlawful arrest because there was no evidence plaintiff intended to interfere with business at the convention center, and the protest did not involve a sufficient threat of violence to justify arresting non-participants].

Bringing All of This Together

At the time of developing this Alert, in the United States, the number of deaths from COVID-19 exceeds 61,000, and the total number of reported cases has surpassed 1,000,000.  The danger of the virus, the extent to which it is highly contagious, and the harm it has caused, provide an urgent, and tragic basis, for government and health officials to act to prevent its spread.  During this period, for our collective benefit, we have experienced substantial limitations on our activities as a means to limit public harm.  At the same time, however, the essence of our constitutional liberties endures through this crisis.

The orders of public health officers, as they relate to speech, where they are applied in a way that is content neutral, are effectively time, place, and manner restrictions.[2]  At the same time, if protesters are present at a public location and are adhering to all the social distancing and face-mask safety protocols, then they are acting in a manner not unlike what people would be doing waiting in line to access a store or carrying out some other “essential” activity.[3]  Given the potentially conflicting goals of fostering both the public health and individual constitutional rights, it is critical for law enforcement executives to seek legal advice concerning what enforcement activities are appropriate given the specific circumstances before them.  It is important to note that law enforcement officers have discretion to decide whether to initiate enforcement activity with respect to any particular situation.

For law enforcement leaders faced with deciding what public safety actions they may have to take in response to protest activity, one approach is to evaluate what is occurring, along what might be described as a continuum of constitutional certainty.  For illustration, as an act of civil disobedience, it is possible an assembly taking place for the expressive purpose of violating the health orders, in the strict sense, would constitute an unlawful assembly.  However, this does not necessarily imply or suggest any level of intervention would be warranted or appropriate.  If that event, however, comes to involve a greater degree of conduct putting people at risk of infection, and which promotes the type of prohibited interaction that gave rise to the original issuance of the health orders, then the circumstances begin to move toward the realm of what is associated with assemblies posing a clear and present danger of imminent violence.

The following non-exhaustive list of factors that may be considered in evaluating public safety risks presented by a public protest in the COVID-19 environment, and whether some form of enforcement is appropriate, or potentially unavoidable:

  1.   Officer safety, access to personal protective equipment, and decontamination materials;
  2.   Number of participants and assessment of the crowd’s intent;
  3.   Extent of compliance with social distancing and responsiveness to safety admonishments;
  4.   The crowd’s use of masks or other protective attire designed to prevent transmission of the virus;
  5.   Active physical movement in proximity to others, increasing the risk of spread of the virus;
  6.   Blocking road or sidewalk access to essential services;
  7.   Obstructing essential workers who are attempting to perform their duties;
  8.   Putting pedestrians or uninvolved third parties at risk of unwanted exposure, particularly with respect to members of vulnerable populations;
  9.   Throwing objects or material;
  10.   Acts of vandalism;
  11.   Threats, fighting or other acts of physical violence;
  12.   A known history of violence associated with specific participants;
  13.   The presence of weapons or improvised weapons;
  14.   Law enforcement capacity to take enforcement action against specific dangerous subjects within a larger compliant group;
  15.  Scene command judgment about whether enforcement will mitigate or exacerbate the risks involved in the circumstances; and
  16.   Incorporation of the requirements of the applicable health order in dispersal announcements.

Time Period Prior to Protest

The period preceding a protest event may allow time for law enforcement to communicate with participants concerning how they may convey their message without putting people in danger or violating the terms of the specific health order(s) implicated by their actions.  This communication could be accomplished either directly, or through digital platforms, to confirm what is permissible in terms of conduct.  It may also be possible to obtain a public safety restraining order.  Generally, “enjoining or preventing First Amendment activities before demonstrators have acted illegally or before the demonstration poses a clear and present danger is presumptively a First Amendment violation.”  Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996).  However, the health risks of these situations are distinct and can potentially be mitigated with specific content-neutral provisions, if a judge is willing to assert authority.  The order may also lead cooperatively to a higher level of overall safety.

Additionally, as part of incident planning, preparations should be made to assure any enforcement actions or dangerous crowd behavior are memorialized with high–quality video evidence.  In addition, communicating event information to mutual aid agencies, sharing executive leadership incident management intent, and potentially conducting joint training, are steps that can be considered in providing a coordinated response.  Similarly, seeking direction from the District Attorney could help frame enforcement options in your particular jurisdiction.

HOW THIS AFFECTS YOUR AGENCY

Response to protests and First Amendment activities are among the most complex and nuanced situations law enforcement is called upon to address.  This responsibility has been made enormously more difficult to apply in the context of carrying out these duties during a global pandemic involving a highly-contagious virus.  Hopefully, the information set forth herein is beneficial to law enforcement leadership in order to assist you with attaining the best available, and reasonable, outcome in situations you may face that is respectful of the liberties of all constituents and the overall public health and safety.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James Touchstone or Richard Lucero, at (714) 446–1400 or via email at jrt@jones-mayer.com and ral@jones-mayer.com, respectively.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] “The Revised Laws of that Commonwealth, c. 75, § 137, provide that “the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.”” Jacobson  v. Massachusetts, 197 U.S. 11, 22, 25 S. Ct. 358, 359 (1905).

[2] In an action seeking extraordinary relief from a Governor’s order of the closure of physical operations of all non-life-sustaining business, the Supreme Court of Pennsylvania ruled, “The Executive Order is tailored to meet the exigencies of COVID-19 restricting in-person gatherings to promote social distancing. It does not otherwise prohibit alternative means of communication or virtual gathering. Accordingly, we conclude that the Executive Order does not violate the First Amendment to the United States Constitution or Article I, Sections 7 and 20 of the Pennsylvania Constitution.” Friends of Devito v. Wolf, No. 68 MM 2020, 2020 Pa. LEXIS 1987, at *68 (Apr. 13, 2020).

[3] A United States District Court recently issued a restraining order allowing drive-in Easter church services, which were not permitted by a City of Louisville public health order. In issuing its order, the court noted, “Those ‘essential’ activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is ‘essential,’ so is Easter.”  On Fire Christian Ctr. v. Fischer, No. 3:20-CV-264-JRW, 2020 U.S. Dist. LEXIS 65924, at *13-14 (W.D. Ky. Apr. 11, 2020).