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Does America in the era of COVID-19 have Benjamin Franklin spinning in his grave?

Franklin famously wrote in a letter, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Craig Konnoth, associate professor of law at University of Colorado School of Law in Boulder, said not only is the country facing an unprecedented public health danger, it is also facing uncharted legal territory.

Unprecedented restrictions on liberties – the freedom to travel, the freedom to work, the freedom of commerce – are in place across the country to slow the spread of the novel coronavirus, a threat perhaps greater than the spread of the Spanish flu in 1918, which killed an estimated 17 million to 50 million people in a worldwide population of 1.8 billion.

“It is interesting, right? Traditionally, when we’ve had governments enforce quarantines and other kinds of restrictions, they generally apply to individuals we know or believe are at risk of being infected,” he said.

“So, in most cases, the individual either has the condition and is contagious or we believe he or she may have been exposed to the condition and therefore may be contagious. The problem right now is that we don’t have any test. So there’s no way to tell when someone is contagious.”

COVID-19 restrictions likely to be upheld

But the threat from COVID-19 is so severe, that on balance, Konnoth said the restrictions we now face are likely to prove not only wise in limiting the spread of the virus, but also likely to gain acceptance legally as the price required to deal with the public health emergency.

“In my assessment, we live in unprecedented times, because on one hand, the orders are expansive but on the other hand, the risk is also greater than anything we’ve seen before,” Konnoth said. “And so what courts usually do is they engage in balancing, and they look to see what evidence supported the actions governments have taken, and they balance that against the civil liberties of individuals.

“And in situations like this, courts have often held that these actions are appropriate in the circumstances. That’s my assessment. As I said, this is unprecedented, and to my thinking, courts would find that these actions make sense.”

A time for a critical conversation

Paul DeBell, assistant professor of political science at Fort Lewis College, said given the experience with Sept. 11 and the continued reauthorization of the Patriot Act that imposes some limitations on governmental power to conduct searches without warrants and reduces the bar for showing probable cause in investigating national security threats, it is wise to examine possible impacts to civil liberties in the wake of COVID-19.

“This is a time when we should really have a critical conversation about the erosion of civil liberties,” he said. “Now, of course, people are really concerned about their health, their families, their livelihoods, the economy, their jobs. And so that does make it a scary time for advocates of civil liberties because we might fear that when people are just worried about making rent, are worried about feeding their kids, they might have less time and energy, understandably, to dedicate to protecting their civil rights and liberties. But of course, (protecting civil liberties) have real-life consequences in the long term as well.”

DeBell said it strikes him that President Donald Trump is more likely to be criticized for not invoking enough state power than for limiting federal actions in protection of individual liberties.

He noted Trump has been criticized for failing to invoke a national stay-at-home order or take control of industries to direct production of virus tests, ventilators and personal protection equipment under authority he has in the Defense Production Act.

Trump’s reluctance to take these orders, he said, likely stems from a deep reticence in American political culture about amassing too much power in the hands of the federal government.

“A hypothesis that I have is perhaps it has to do with something about American political culture, and the deep skepticism we have of the use of state power, because you saw both Trump and to a much, much, much lesser degree Gov. (Jared) Polis be pretty reticent to do things like issue stay-at-home guidance,” DeBell said.

Locals only policyWhile qualifying his remarks, saying he is not an expert on criminal law or the legal authority of the power of county sheriffs in Colorado, Konnoth said he believed San Juan County Sheriff Bruce Conrad could make a solid case in court defending his “locals-only policy.”

The “locals-only policy” has closed the backcountry north of Durango to all but San Juan County residents and allows only visits from non-county residents for essential services and through traffic.

In general, public orders are more defensible in court if they apply equally to all.

“We are all equally biologically, you know, subject to this condition,” Konnoth said. “So I think that those orders definitely become more questionable as you begin to limit nonresidents, out-of-state people.

“But at the same time, I think if you had to go and stand up in court, he would have an argument which is to say, you know, look, when we only have locals doing something, then that reduces the crowding to acceptable levels based on the analysis of our public health department. I could see a plausible argument made.”

When COVID-19 has receded in danger, Konnoth said it is unlikely liberty-limiting restrictions will be continued.

“I think because of how extreme these measures have to be, to my mind there isn’t really a risk that these kinds of measures can really continue in the long term ... they’re so expansive that as the security risk abates, people will not let themselves be subject to these orders, and the courts won’t enforce them,” he said.

“And frankly, there’s no incentive for the government to try and enforce orders like this because it decreases the taxes it receives. The taxpayers are hurt. The government is hurt. Everyone’s impacted by this.”

Medical privacy concerns

Deserai Crow, associate professor at the school of Public Affairs at the University of Colorado Denver, said some European countries, ahead of the United States on the COVID-19 infection curve, are struggling with issues of medical privacy that Americans will soon face.

Singapore and South Korea have been among the most effective countries in containing the virulent virus, largely because they are tracking the movements of people who have tested COVID-19 positive via cellphones. Crow is doubtful that practice will be adopted in the U.S.

“Just culturally, we’re so different and our expectations of privacy, medical privacy, are so different, I think in the United States, and Americans generally, I think, would be very hesitant to adopt those practices,” Crow said.

In Germany, citizens who have overcome COVID-19 and developed antibodies for the virus are given certificates to reenter the workforce, and Crow said a debate about adopting a similar practice is likely coming in the next few weeks in the U.S.

“So on one hand, that practice is great because we don’t have to be shutting down entire economies. People can start getting back to normal lives, at least some people, and we can still be protecting those who are vulnerable,” she said. “On the other hand, that starts to look very much like infringing on some of those same civil liberties and the idea that our medical information and our health information is private.”

Those ideas will evolve.

“I won’t pretend to be able to predict where we land, but because Europe and Asia are ahead of us on this curve, they’re dealing with some of those things now,” Crow said.

A research paper comes to lifeFor Morgan Rutkowski, a sophomore at FLC double majoring in political science and psychology, the unfolding drama was like watching a case study unfold of her paper, “Fearmongering,” which she presented in February in Washington, D.C., to the 2020 Pi Sigma Alpha National Student Research Conference.

The paper was subtitled “Exploring the Political Effects of Fear and Anxiety on Public Leniency Towards More Government Interference.” The paper explored the willingness of the public to accept limits on civil liberties after wars, the Cuban missile crisis, Sept. 11 and several mass shootings.

“When I was doing my research, in retrospect, I thought I could see why people were fearful,” Rutkowski said. “But then to see something like that come up in real life, in real action – I was really taken aback about how fast we just succumb to fear.”

“It’s true these were terrifying events, but I just didn’t realize how fast it would happen in real life.”

parmijo@durangoherald.com