Governor Christie, Ebola and locals acting like yokels

Please briefly review my prior post, Civil liberties, isolation, quarantine, Ebola and other terrifying diseases (among other things, stating that “scary though it may be, the 50 states and the various Indian tribes have the primary authority to deal with outbreaks like Ebola assuming the patient is not at a US port of entry or is not likely to travel between the States or reservations.”)

Pursuant to an order of New Jersey Governor Chris Christie, a young nurse has been physically detained against her will and quarantined merely because she treated Ebola patients in Africa. She is entirely asymptomatic and there is apparently no reason to believe that she failed to follow the proper protocols while engaging in her medical work in Africa. She has twice tested negative for Ebola. She can’t see her lawyer. The CDC believes this quarantine is both unnecessary and unwise. See here for the details of this story and how the tremendously courageous and articulate nurse, Kaci Hickox, skewers Christie’s decision.*

If you care, really care, about civil liberties, Governor Christie’s decision, unsupported as best I can tell by medical and scientific evidence, ought to concern you. I fear that my previously expressed fear about leaving these decisions to our 50 state governments and Indian tribes is coming to fruition. Christie seemingly proves once again that locals often act like yokels.

Maybe it is time to break out the Constitution. As I have said before, the specter of “big brother” with a stethoscope and a sidearm is not solely the province of lunatics.

RGK

*New York Gov. Andrew M. Cuomo (D) has imposed a similar rule and so has Illinois. See here.

20 responses

  1. All Gov. Christie did was deprive without probable cause an American hero who risked her life to treat the ill in Africa. And according to what she wrote in the Dallas Morning News, they treated her worse than a criminal.
    Gee, what’s wrong with that other than it spreads panic unnecessarily, violates the Bill of Rights and mistreats a citizen.
    Also, Gov. Coumo has announced similar policies for his state and in fact was sitting next to Christie at a joint press conference.
    Next, we will he having governors locking up returning combat veterans until we are sure they are not suffereing from PTSD or traumatic brain injury (something much more uncommon than Ebola in health care workers returning from west Africa). And, those folks have committed more crime than returning health care workers have caused Ebola in the general public (exactly zero general public cases of Ebola).
    Forget the Fourth Amendment. Treat returning heros like pieces of trash. That’s Christie’s policy and Coumo’s policy. This isn’t North Korea. New Jersey and New York presumably don’t have a KGB or a Gestapo.
    Neither Coumo nor Christie nor any other governor who engages in such horrible, unconstitutional conduct should hold public office. I live in Texas where our governor is listening to scientists about Ebola. That may be the only thing he’s listening to scientists about but it’s a start.
    In any case, I probably won’t get a change to vote against Coumo or Christie but if I ever do, you can be sure they won’t get my vote.

  2. Judge This is a great jurisprudence problem to what extent should public emotions of fear and disqust be allowed to influence public policy. Hart and Lord Devlin famously debated the issue in the early 60s with Devlin famously defending the role of disgust at violation of basic social norms as a basis for criminal law. The debate was replayed over the famous Williams report on pornography in film. The report found no evidence of harm from pornography so Thatcher shelved it. The report was willing to see distress at the public display of pornography as harm and therefore supported retaining of limits on advertising display. Dworkin responded that emotional distress should never be treated as harm sufficient to justify criminal punishment or censorship. In land use planning and nuisance we speak of no esthetic zoning, presumably because the ugly does not harm, though standings, brothels and mortuaries are often treated as nuisance. In free speech with the exception created by Chaplinsky and Terminello audience response is irrelevant. However tort law treats emotional distress alone seriously even when it is not intentionally inflicted. There is some case law from the early days of AIDS now HIDD which overruled public action against the science.
    Let me now play the now abolished role of the devil’s advocate. Given the near public panic concerning EBOLA and the number of people in distress is there no case to be made for relatively limited quarantine. The Constitution is designed to insure domestic tranquility, a public sense of safety and peace of mind. Posner the judge famously wrote about terrorism and the Constitution arguing that the Constitution was not a suicide pact. Might an analogous argument be made with regard to the tranquility of yahoos.
    I am not convinced either way/
    .

  3. Judge:
    To Hell with the politicians. Only the courts can restore this woman’s freedom. Treating her like a modern day “Typhoid Mary” (with the essential difference between the two being that Ms. Hickox is apparently asymptomatic and no threat to anyone) is almost unbelievable in this day and age. Someone needs to file a Writ of Habeas Corpus on her behalf, posthaste.
    Robert

  4. I know I will be skewered by the smarter legal/philosophical minds who post here, but every time I have to get on an airplane I am compelled to put up with the security asininity, common criminal treatment, that is supposed to make us “safer” in the skies, when the odds are 100% that I am not a danger whatsoever – I do not fit the “profile”. Yet, here we have someone who is, because her recent “history”, at least initially a real and actual “risk” to others and we get all up in arms about her inconvenience and rights. Yes, she was treated badly and her “rights” were trampled. Is this a “federal case”, as the saying goes? Should we be concerned bu government overreaching? Sure. But, leave me the hell alone when I get on an airplane and then I’ll start empathizing. Yes, yes, this is a short-sighted, comparing apples to oranges, crazy tin-hat, UNconstitutional view. So be it. Now, I’ll get back under my rock . . . .

  5. MOK,

    I am very sympathetic to your point that government does stupid things to inconvenience us all the time. But, then I remember that is precisely what folks like Governor Christie are counting on when they “arrest” some like the nurse. All the best.

    RGK

  6. repenting lawyer,

    Sure, there is a place for helping the yahoos feel safe. But, there ought to be a rational basis for doing so. All the best.

    RGK

  7. I respectfully disagree Judge. They aren’t going to hold her forever. If they would have done this with everyone who has returned to the US from countries that are at high risk, others would not get infected. This is a justifiable intrusion given the magnitude of the public harm that will happen if we allow unbridled freedom to those returning. One medical malpractice in clearing a person will be disastrous. This is not usually the way I feel about civil rights at all, but this situation calls for extreme measures.

    I would submit that if it becomes routine to expect quarantine upon return and if people go to high risk zones knowing that we will start looking at it differently, just as we are starting to accept surveillance and roadside detentions. (I’m being facetious here – at least partly). Dean

  8. MOK At least TSA is not heavily arms, some European airports the guards look like they are about to drive around Iraq. On the other hand you do not have a Constitutional right to fly, we are all being treated , like dogs, and lawyers are not a protected class, and despite your guarantee lawyers and particularly trial lawyers are not 100% stable. Does that instability % represent a real risk?.

  9. Rational or reasonable, remember the classic defamation case of the lady who was held to have been defamed by being said to have been raped by Rasputin, reasonable segment of community or Holmes on the temperance lady in the whiskey ad. Reasonable but irrational fear is real.

  10. HA! Your point is made.

    Yep, we are all being treated like dogs, but remember, dogs often bite the hand of their handler. Grrrrrrrrrr. Growl! I estimate that I am stable about 80% of the time. My wife would contest that figure as being too high, of course. 🙂

  11. Sorry Judge you knocked a lot of old teaching notes free. First time in ad law days with Don Ross’s case on the UMKC med student who flunked clinic because faculty thought her manner was offensive and would bother patients at the bed side.

  12. I don’t think the science or the facts support your conclusions. The two nurses in Texas became infected because improper procedures were followed in treating the first patient to arrive here with Ebola, not because the man wasn’t quarantined upon arrival.

    I suspect that if it becomes routine to impose a three-week quarantine on health-care professionals when they return from Africa, it’s going to be a lot harder to get people to go there. And that is the only place where this crisis is going to be brought to an end.

  13. Matt,

    Quarantine is all the more necessary when our infection prevention is inadequate. I would think conscientious health workers would feel very good knowing controls are in place to prevent them from causing harm upon their return.
    Without controls, all that is necessary to cause disaster is 1 disturbed person ignoring common sense. I have a lot of faith in the prevalence of such people among us.
    Kindest regards, Dean

  14. How DARE Chris Christie deprive people of their rights?!? THAT is a job for our courts.

    Sorry. Couldn’t resist. 😉

    All sarcasm aside, quarantine was common when I was a kid. The CDC has been known to be wrong before, and they will be wrong again. And as Justice Jackson is credited with saying, the Constitution is not a suicide pact. A pretty strong argument can be made for mandatory quarantine. It’s a lot closer call than you are giving it credit for, Your Honor.

  15. Maybe science and logic will prevail after all, at least in New York. Apparently Gov. Cuomo is now distancing himself from the harsh and unwarranted quarantine procedures imposed by Gov. Christie.

  16. Curmudgeon,

    I understand and agree that it may be necessary for quarantine to become routine when the facts and science warrant. My problem with Governor Christie’s unprecedented order is that the quarantine of the nurse is New Jersey appears unwarranted by any facts and any science. All the best.

    RGK

  17. As I write this, a five year old from the Bronx is being tested for Ebola at an NYC hospital. The family recently returned from west Africa. Did this child pass the screening tests? We don’t know. But we do know there is a long asymomatic period before illness.

    Because the Obama government – for purely political reasons – won’t take the common sense step to protect the general public by temporarily banning travelers from three tiny west African countries, the governors have to act to prevent a larger panic.

  18. Cornhead,

    On this we disagree. Governor’s should act to prevent panic when there is a reason for panic. Pandering to panic is pandering, and nothing more.

    All the best.

    RGK

  19. My recollection is that the governor of Pennsylvania was able to put an end to panic during the Three Mile Island partial reactor meltdown by recruiting his own experts. The power company experts had zero credibility and at the beginning the NRC experts were not much better.

    I do not know if there is a panic in New Jersey and It doen not appear that Governor Christie has consulted with anyone that is an expert on this subject.

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