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.


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

On Going to Omaha with a bloody nose

Got up at 4:00 AM this morning. Had another bloody nose and I am still having trouble getting it stopped as I pen this piece. My legs and feet are swollen up again.

I have to leave early to drive the 60 miles between Lincoln and Omaha. I have a judges’ meeting in Omaha that will burn up the morning. After our big meeting, I will also visit with Chief Judge Smith-Camp and Judge Gerrard, my colleague in Lincoln, about getting back into the case assignment wheel on December 1, assuming that bloody noses and leg and feet swelling are not a harbinger of bad things to come when I undergo my late November PET scan.

Photo credit:  Don't you love the British tabloids?

Photo credit: Don’t you love the British tabloids?

This afternoon, I will meet with the head drug prosecutor for the district, a senior probation officer and a federal defender to fine tune our handling of sentence reduction matters due to the retroactive amendment to the drug tables. In our little district, we have about 700 of those sentence reduction matters.

I feel foolish as I type this with a long piece of twisted Kleenex sticking out of my left nostril. Just for fun, when I get to Omaha, I think I will tell my colleagues: “Don’t worry, UNMC thinks there’s only a small chance of Ebola.”

I feel better already.


Civil liberties, isolation, quarantine, Ebola and other terrifying diseases

[T]here are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns — the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.

DoD News Briefing, Secretary of Defense Donald H. Rumsfeld (February 12, 2002 11:30 am) (transcript).

This weekend, I watched as the authorities in Dallas finally get around to disinfecting the apartment where the Ebola sufferer from West Africa was staying. Yet the poor people with whom the man had resided had been previously ordered not to leave the apartment.  Four days went by until they were moved. As one news organization put it, “Dallas woman and family are quarantined in apartment with sweat-stained sheets used by Ebola victim.”  I wondered about the legal authority for the quarantine order, not to mention the medical advisability of keeping these innocent people in a small apartment for four days when the apartment held articles containing the sick man’s body fluids.

So, I spent some time doing research. Here is a brief overview:

  • Isolation and quarantine are public health practices used to stop or limit the spread of disease. Isolation is used to separate ill persons who have a communicable disease from those who are healthy. Isolation restricts the movement of ill persons to help stop the spread of certain diseases. For example, hospitals use isolation for patients with infectious tuberculous. Quarantine is used to separate and restrict the movement of well persons who may have been exposed to a communicable disease to see if they become ill. These people may have been exposed to a disease and do not know it, or they may have the disease but do not show symptoms. Quarantine can also help limit the spread of communicable disease. Isolation and quarantine are used to protect the public by preventing exposure to infected persons or to persons who may be infected. In addition to serving as medical functions, isolation and quarantine also are “police power” functions, derived from the right of the state to take action affecting individuals for the benefit of society.
  • Pursuant to 42 U.S. Code § 264(e) and here, and 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. The inept response of Texas is why I say that this “local control” is scary. (“Don’t mess with Texas.”)
  • Finding the applicable laws in each of the 50 states and relevant tribal jurisdictions is not an easy task, and so far as I was able to determine there is no primer collecting those laws that would make research easier for lawyers and judges. Some enterprising student law journal, with an online presence, could do a great service by compiling and publishing such a list of state and tribal laws dealing with isolation and quarantine.
  • Long ago, under the concept of the “police power,” the Supreme Court basically said that the states could do pretty much what they wanted when it came to infectious diseases. See Jacobson v. Massachusetts, 197 U.S. 11, 11-12 (1905) (upholding law requiring payment of a fine for failure to obtain a small box vaccination).
  • The federal government has the power to prevent the entry of communicable diseases into the United States. Importantly, the federal government is also authorized to take measures to prevent the spread of communicable diseases between states.  The Commerce Clause and 42 U.S. Code § 264 provide the basic legal authorities for federal action. See also Code of Federal Regulations, Title 42, Pt. 70 Interstate quarantine.
  • The Centers for Disease Control and Prevention (CDC) has been delegated with the primary authority to deal with the federal response to infectious diseases. These diseases include cholera, diphtheria, infectious tuberculosis (TB), plague, smallpox, yellow fever, and viral hemorrhagic fevers, such as Marburg, Ebola, and Crimean-Congo hemorrhagic fever (CCHF), Severe Acute Respiratory Syndrome (SARS), and influenza caused by novel or re-emergent influenza viruses that are causing or have the potential to cause a pandemic. See here and here.
  • The CDC has a good web site setting out many of the legal authorities relevant to the federal mission of thwarting the spread of infectious diseases. See here, for example, entitled “Specific Laws and Regulations Governing the Control of Communicable Diseases.”

I am entirely clueless when it comes to these sorts of things. I don’t think I am alone.

It seems to me that it would be a good idea if lawyers and judges became more familiar with the laws that deal with infectious diseases and the civil rights of people in this country who may be impacted by the global spread of these diseases. The specter of “big brother” with a stethoscope and a sidearm is not solely the province of lunatics.

Update, October 6, 2014

With thanks to a commentator, “repenting lawyer,” I am pleased to call the attention of readers to a particulary informative article; that is, Jorge L. Contreras, Public Health Versus Personal Liberty – The Uneasy Case for Individual Detention, Isolation, University of Utah – S.J. Quinney College of Law (January 31, 2011) (abstract; free download available through the Social Science Research Network).  The article discusses  “the circumstances, if any, under which public officials may detain individuals against their will in order to protect the public from communicable diseases. In other words, when do utilitarian principles of social good trump the guarantees of individual rights afforded by the Constitution?”


Reverse trigger warning: I don’t have Ebola

Yesterday, I had my last blood test prior to my PET scan scheduled for next Tuesday. I am done with the chemo infusions until we see the results of the scan next week, on Thursday. My blood counts are low, and that is to be expected. There is a small problem, however,

At the most inconvenient of times, like having lunch with the clerks at the Mexican joint across the street, my nose begins to spurt large quantities of blood. I have been taking Xarelto to thin my blood to make sure the blood clots I developed in Sioux City last year don’t come back.  While the bloody nose problem is not new, it has gotten far worse this last month. And now with an Ebola patient at the University of Nebraska Medical Center, most people are not particularly sanguine (pun) about being around a guy who has a tendency to spray blood all over. Hell, I cleared out the Mexican joint when the law clerks and wait staff went running for large paper napkins to staunch the flow and mop up the mess. That made me feel bad so I had a Margarita.

Anyway, I don’t have Ebola (so far as I know). So, if you appear before me at sentencing or the like, remember the world greatest philosopher, Bobby McFerrin. Don’t worry, be happy.



Gravel roads and flyover country

I once sat with a well-known law professor and three other federal trial judges in a fancy New York restaurant discussing important stuff after we had put on a panel discussion at a well-regarded New York law school.  I was the only judge from “flyover” country, and it was clear that the law school audience and my fellow judges viewed me as a curiosity. Later, at the dinner, one of the judges asked me how many miles I had to travel on gravel roads to get to work. It was apparent that the judge was not enamored with a jab I had thrown his way during the panel discussion–the punch drew laughs from the audience. Explaining that all roads are gravel in Nebraska, I let the remark pass.


Why do I tell this story? Our country, despite the absence of a monarchy, is status conscious. Oddly, we sometimes derive status (and infer ability), or the lack of it, from where people live. The federal judiciary suffers from this malady big-time. I can’t stress that point too much. By now, I really don’t care. Indeed, I find it amusing, and do my best to play the hick when it suits me. It can be a lot of fun.

But once in a while it is worth pointing out how stupid it is to derive conclusions about ability from a map. An example: There is now a third Ebola patient in America. His name is Rick Sacra, 51. He is medical doctor who has treated the ravaged people of Africa. He is not being treated at Emory. The federal government selected somewhere else. He is not being treated in LA, or Boston (his hometown) or Chicago or New York. He is being cared for in Omaha at the University of Nebraska Medical Center. See here.

Dr. Sacra arrived by plane at the sprawling Offutt Air Force Base near Omaha. He did not flyover. He was transported to UNMC on a paved road rather than a gravel one. His life depends upon the skill of the UNMC docs, and that is especially true since the miracle drug that Emory used is all gone. I bet this good man doesn’t care that he is being treated in a state with less than two million people but over six million cattle.

Update and Admission:  I have a bias for UNMC.  I should have disclosed it earlier.

My first father-in-law, the beloved Bill Blank, a highly regarded surgeon in Ohio who grew up south central Nebraska, was trained at UNMC.  Jim Armitage, my former neighbor in Omaha, who grew up in Kearney, Nebraska (out where there are miles and miles of gravel roads), advised me on my cancer treatment. Jim is probably the world’s leading expert on lymphomas, and you will find no kinder doctor anywhere. Mark Mailliard, my hysterically funny and brilliant brother-in-law, leads the Gastroenterology department at UNMC where he specializes in the treatment of Hepatitis C. Mary, Mark’s wife and Joan’s sister, is an oncology nurse at UNMC supervising clinical trials for breast cancer patients. She is probably the best human being I have ever encountered. Nurses are like that. Jim Eske is one of my fantastic career law clerks. His wife, Deb Thomas, is Associate Vice Chancellor at UNMC.  I have known Deb for over 30 years, and our relationship started back when she was a political wunderkind and I served as counsel for the Nebraska legislature regarding the impeachment of Nebraska’s Attorney General. Bar none, she is the smartest person I have ever known, and one of the toughest but nicest too.

So, take what I say about UNMC with a grain of salt, and then believe every damn word.



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