"Ordered to Self-Quarantine with Ankle Monitor Due to Coronavirus"

|The Volokh Conspiracy |

From Louisville Courier Journal (Darcy Costello & Kala Kachmar):

A fourth Jefferson County resident has been ordered by a judge to stay in his home after refusing to comply with the health department's instruction.

The individual is in a household with one confirmed COVID-19 case and another presumptive positive case, which the court order says is "sufficient to have transmitted this disease" to him.

But the person refused to sign an agreed order to quarantine and has not responded to subsequent attempts to contact him by the health department. And, the order says, his sister reported to the health department that the individual "leaves the home often." …

In this case, the individual has not yet tested positive, according to the order, but there is reason to believe that there was exposure from others in the household.

Note that, whatever the controversy may be over general lockdowns applicable to everyone—I think they are constitutional, but I can see the objections they raise—here there seems to be a substantial probability (though not certainty) that the target is indeed infected, and thus likely to risk infecting others. This is thus a classic justifiable and constitutionally permissible quarantine, it seems to me. (Note also that COVID19 tests appear to have a high false negative rate, so the apparent negative test result doesn't seem dispositive.)

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  1. It’s an 8th Amendment violation not to feed prisoners.

    Why isn’t the state required to provide for persons placed under house arrest in this fashion?

    1. A quarantine like this isn’t punishment at all: a fortiori, it can’t be cruel and unusual punishment (which is what the Eighth Amendment forbids).

      1. Kinda sounds like it. Maybe he thinks he isn’t infected and wants to keep it that way by staying out of the house.

      2. “A quarantine like this isn’t punishment at all: a fortiori, it can’t be cruel and unusual punishment…”

        The can’t put you in the stocks to punish you, but they can put you in the stocks to prevent you from spreading disease? That could very well be true, but I certainly hope it isn’t.

        1. Typhoid Mary was eventually quarantined for life. What’s your take on that?

          1. She was also fed at state expense.

        2. The can’t put you in the stocks to punish you, but they can put you in the stocks to prevent you from spreading disease? That could very well be true, but I certainly hope it isn’t.

          You’ve never heard of involuntary commitment?
          They can’t imprison you because they think you’re going to sexually assault someone, but they can hold you in custody because they think you have a mental illness that will lead you to sexually assault someone.

        3. I’m not expressing an opinion as to whether or not “they” could put you in the stocks to prevent you from spreading disease. But if not, it’s certainly not the Eighth Amendment that’s preventing them.

    2. Because presumably they can feed themselves.

      1. Not if they can’t go to the store. Not everyone has a year’s worth of food stored in the house — few do.

  2. I wish when someone claimed that they think a certain regulation is “constitutional”, they would cite the exact section of the Constitution which they believe enumerated this power.

    1. While the federal government is one of limited, enumerated powers, state governments (like Kentucky, in this case) generally have plenary power to take action unless the constitution forbids it. It may well be that the constitution does in fact forbid this action, but it’s really the burden of the person making that claim to point provision that applies.

      1. The constitution actually limits governments to what they are authorized to do. This is also applied to state and local governments through the tenth amendment.

        A lot of people in government that are of the opinion that they can do anything they are not specifically prohibited from doing. The tenth amendment addresses that claim. The tenth amendment has also been used by the states to limit federal intrusion into their rightful powers. The tenth doesn’t stop at the states though, it also sets a hierarchy of rights and powers, telling the states hands off individual rights.

        The 10th amendment makes a pretty plain statement about rights reserved to the people:
        “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

        1. “are reserved to the states respectively”

          Exactly – the traditional state powers, like quarantine, are reserved to the states.

    2. Commerce clause. (they are destroying commerce, and he gets in the way)
      Next question.

      1. That was my answer. It’s always the commerce clause.

        1. So you’re just ignoring Noscitur?

          1. Maybe they just don’t want to keep him company. (But, yes, Noscitur is quite right.)

  3. So basically their ordering him to get infected if he hasn’t already?

    1. No. Not even close.

      I marvel at the gymnastics in which some people engage in an attempt to defend a lame position.

      1. If you think you’re not infected and you are ordered to stay in a house with infected people you’re probably not going to like it. Not saying he’s not infected and should not be under quarantine. I just understand where he might be coming from.

        1. There is no indication he was seeking to live elsewhere, avoiding the virus. He appears to have wanted to come and go as he pleased.

          He’s coming from recklessness, selfishness, and ignorance.

  4. Call me old fashioned, but a judges order is not SELF quarantine.

  5. And this will escalate – perhaps not here, but someone will cut the ankle monitor off, and then what?

    We are a rebellious people, this is going to get ugly.

    1. What will you think if that doesn’t come to pass? If we re-open in May or June and this rebellion you keep posting about doesn’t happen?

      1. You’ll at least see it at the ballot box.

        But I don’t think we will make it to May without major problems.

        I’ve been in student affairs too long — I’ve seen too many young adults and know how they think. There’s going to be a warm sunny day and lots of alcohol and it will get ugly.

  6. Petty tyrants coming out of the woodwork, both in the judiciary and commentary.

    This individual has not been indicted, convicted, or had a trial to determine whether he should be arrested. A judge has determined that the state can imprison him anyway.

    I hope things go back to normal after the government says they’re done being tyrants, but I don’t think that is going to happen. The tyrants will continue to exercise and expand their power against the citizenry.

    1. A judges involvement means there is a means of due process applied to his confinement at home. This is the same criteria for an arrested person that is brought before a judge to determine bail and pre-trial confinement.
      Every state has laws about confining people who are a danger to themselves or others, which are usually applied for reasons of mental health, but would also apply in these types of cases.
      He is also being confined in his home, which seems to be the least restrictive confinement appropriate to this case,

  7. I hope things go back to normal after the government says they’re done being tyrants, but I don’t think that is going to happen.

    You think quarantine is going to continue being a thing after this virus passes?

    1. In fairness, people who like expansive government powers are likely to try to retain any powers they can, and use any epidemic related intrusions as justification for repeating the in the future. For example, suppose widespread use of phone location data helps end the epidemic. Do you suppose that say, Stewart Baker won’t be here saying how the same intrusion is needed for the War on Drugs/War on Terror?

      Because the restrictions that have been imposed temporarily to further the WoD and WoT are looking kinda permanent to me right now. I think that roughly half the U.S. population has never lived outside of the WoD. It’s kind of like war with Eastasia in that regard.

      1. I think that is far to cynical and reductive a view. People who like big government like specific things it can do, not government for government’s sake.

        Privacy stuff, you may have a point – there are national security zealots all over the place.

        But I don’t think the general proposition that government will attempt to keep us on crisis footing just cause they are crazy tyrants.

        WoD and WoT don’t seem apropos – they were both clearly a long haul thing when they started. And both, I agree, dumb and bad. I’d note who pushed back on both, and it wasn’t the small government GOP.

    2. I don’t see power being given up voluntarily….

      1. The power to quarantine people is event-based. When the event ends, how in the do you think it’ll be justified?

      2. What is wrong with history as your guide? Google, “Lincoln emetics” Lincoln’s colorful observation was born out in subsequent fact.

  8. The cell search case seems one where qualified immunity would legitimately apply. The terms of the warrant clearly described something resembling a simulator. Whether they were too vague to describe a simulator exactly seems to be the Sort of post-hoc decision making qualified immunity was designed to prevent.

    This is not a case where the police did something obviously wrong and there didn’t happen to be a case specifically saying so. This is the case where the police applied for and received a warrant, in a context where the law surrounding the search technology wasn’t clearly established at the time the warrant was applied for.

    This seems the sort of situation qualified immunity was designed for.

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