Legality of Colorado, Summit County public health orders under the microscope
FRISCO — Colorado, along with nearly every other state in the union, was challenged with age-old questions of liberty and constitutional rights during the pandemic shutdown beginning in March. A stay-at-home order from Gov. Jared Polis’ office limited the ability of Coloradans to live the normal and unencumbered life they had come to expect as members of a free society.
One main contention from opponents of the stay-at-home orders is that the state’s bans on travel, gathering en masse and opening business were unconstitutional. But while the measures appeared to be extreme, given the unprecedented and global nature of the lockdown, the legal authority behind it appears to be sound.
Colorado resident Michael Lawrence went as far as to sue the state in federal court at the end of March, claiming his constitutional rights were violated in various forms due to the public health orders. A federal judge dismissed the claim, saying that state and local authorities were granted proper authority for the public health order under existing legislation, and the court had no reason or basis to override that authority.
The primary order in contention was Executive Order 2020-017, signed by Polis on March 25. The order required Coloradans to stay at home, with certain exceptions to conduct essential business, while temporarily closing all businesses considered as noncritical. The order was in effect until April 11.
In his executive order, Polis cited as authority powers invested in his office under Article IV, Section 2 of the Colorado Constitution as well as the Colorado Disaster Emergency Act, under C.R.S. §24-33.5-701.
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Article IV, Section 2 is a blunt, simple declaration: “The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed.”
The Colorado Disaster Emergency Act channels that executive authority toward emergency situations, providing the governor a broad set of tools and powers to resolve the emergency through action and funding, with little aside from time limitations curtailing that power. Public health agencies also are given broad authority to implement necessary measures, with justification provided, to safeguard communities from disasters, such as the current pandemic.
Fifth Judicial District Attorney Bruce Brown weighed in on the constitutional and legal issues surrounding the stay-at-home order and various other public health orders that have arisen from the governor’s emergency declaration in March.
Brown said he had studied the issue extensively when the pandemic hit the state, seeing it as his duty as an officer of the law to uphold the constitution and prevent governmental abuse of power.
“It is of concern to me because, if the regulation or law enacted is unlawful, then the District Attorney’s Office won’t enforce it,” Brown said. “We have a responsibility to be convinced that any restriction that would be enforced by criminal prosecution meets the requisite constitutional tests.”
After doing his research, Brown concluded that Colorado’s stay-at-home orders were constitutional as well as the other public health guidelines and requirements derived from the disaster declaration, including requirements for masks and shuttering nonessential businesses and events.
“Colorado law gives broad authority to local public health departments,” Brown said. “I looked at those statutes and came to the conclusion that the actions being taken are constitutional and in compliance with statute. I may have disagreed at times, in my own opinion, as to whether or not those restrictions should have been enacted, but that’s for the public health directors to decide.”
Brown cited a recent Supreme Court decision in proving the constitutionality of such public health orders across the nation. The case — South Bay United Pentecostal Church, et al., Applicants v. Gavin Newsom, Governor of California — involved a church suing California’s governor for limiting attendance in the state’s churches.
The Supreme Court ruled in a 5-4 decision, with Chief Justice John Roberts joining the court’s liberal wing, that the public health orders enacted by the governor did not violate the First Amendment as it was enforced neutrally across all businesses and institutions of similar capacity and gathering purpose.
As far as state law, Brown said that his office has the authority to enforce those public health orders under C.R.S. §25-1-516, which punishes violations of county health orders as a class one misdemeanor, and §25-1-114, which punishes violations of state health orders as an unclassified misdemeanor with a fine of up to $1,000 and one year of jail time.
But Brown was adamant that his office would use enforcement only as a last resort. Local law enforcement authorities, including Summit County Sheriff Jaime FitzSimons, had declared early in the shutdown that law enforcement officers would use ticketing or arrests only as a last resort. FitzSimons cited the lack of resources for active enforcement and the preference to work with the community and educate them about the need for social distancing, wearing masks and other provisions of stay-at-home and safer-at-home directives from the county and state.
“Law enforcement officers are discouraged from enforcing public health order violations and instead encourage, whenever practical, to educate the public and provide written warnings to offenders encouraging compliance,” Brown said. “Issuing a violation could be counter productive to engaging compliance with public health orders.”
However, Brown reserved the possibility of enforcement for noncompliant actors, saying violations at commercial establishments were “at the higher end of the likelihood of prosecution.” Brown noted that these businesses are already required to comply with health, building safety and fire codes to stay in operation, and he sees the evolving public health guidelines as part of that duty to maintain safe environments for patrons.
In reference to a possible second wave in fall or winter, and the likelihood of stiff public opposition to another economic shutdown, Brown made it clear that the District Attorney’s Office would not balk at enforcing public health orders when another major emergency occurs.
“I’m afraid of a second wave,” Brown said. “We don’t want it to happen, and it is everyone’s responsibility for it to not happen. Nobody should see our reluctance to prosecute as an unwillingness to prosecute.”
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