LEGAL
Leadership in a Time of Legal Uncertainty
By : James Touchstone , Esq ., General Counsel – California Police Chiefs Association , and Richard Lucero , Esq .
T
1
he Emergency Services Act has been part of California statutory authority for five decades . The Act received a unanimous final vote in the Assembly and was signed in 1970 by Governor Reagan . The structure it created followed from what had existed as the California Disaster Act approved in 1945 by Governor Earl Warren . 2
Under the Act , the Government Code invests in the Governor wide authority during a state of emergency . This authority includes the ability to make or rescind orders and regulations necessary to carrying out the purpose of the Act . 3
As a profession , we have had experience in a law enforcement setting with the use of emergency declarations . As one example , Governor Schwarzenegger invoked the authority directing CDCR to negotiate contracts for the transfer and housing of inmates using corrections facilities outside California . Cal . Corr . Peace Officers Ass ' n v . Schwarzenegger , 163 Cal . App . 4th 802 , 810 , 77 Cal . Rptr . 3d 844 , 848 ( 2008 ). However , these emergency doctrines attained an extraordinary level of impact on March 19 , 2020 when Governor Newsome issued Executive Order N33-20 , the stay at home directive . 4
As is often the case , a societal change having this level of velocity outpaces the development of judicial interpretation . Law enforcement leaders over these last months have not had the benefit of decades of Supreme Court precedent to assist in determining how to apply these health mandates to complex issues involving otherwise sacred personal liberties . As an illustration , one of the primary decisions continuing to provide guidance today was issued over 100 years ago . “ A community has the right to protect itself against an epidemic of disease which threatens the safety of its members .” Jacobson v . Massachusetts , 197 U . S . 11 , 27 , 25 S . Ct . 358 , 362 ( 1905 ).
In the period following change , before a body of law is established , the controlling influence shaping our response to what is taking place is leadership . This is one of the fundamental reasons the role of the California Police Chiefs Association is so consequential . Policy , training , organizational objectives and intent , and a projection of the law as it presently exists are what steer our collective actions .
With regard to implementing the various COVID-19 health officer orders , some of the decision-making factors we have collectively identified as being able to look to include : 5
• Officer safety , access to personal protective equipment , and decontamination materials ;
• Extent of compliance with social distancing / masks and responsiveness to safety admonishments ;
• Blocking road or sidewalk access to essential services ;
• Obstructing essential workers who are attempting to perform their duties ;
• Conduct in violation of health orders putting pedestrians or uninvolved third parties at risk of unwanted exposure , particularly with respect to members of vulnerable populations ;
• Scene command judgment about whether enforcement will mitigate or exacerbate the risks involved in the circumstances .
Regrettably , a number of very difficult variables remain as to the certainty of how we will proceed against controlling the virus : regional increases in rate of infection , availability of a vaccine , economic loss and reasonable opening of businesses , school attendance and the limitations with virtual education delivery , impacts to emotional health , continuity of revenue to public entities , constraints limiting effective law enforcement and increases in violent crime .
As compounding complexities , the nation is divided over questions of race , fairness , and the way communities should be policed . This Association and California law enforcement have sought to lead
8 CALIFORNIA POLICE CHIEF | www . californiapolicechiefs . org