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Thursday, October 16, 2014


October 16, 2014

On October 6th, 2014, CNN ran a feature story regarding the legality of "Lawful Quarantine" whereby each State of the Union can lawfully, and should responsibly, effect involuntary Quarantine in the event of a massive epidemic.  To quote CNN:

(CNN) -- After the quarantine of passengers from a United Airlines flight from Brussels at the Newark airport, many Americans may feel a sense of relief that the government is finally responding aggressively to the threat of an Ebola epidemic.
Others, however, are undoubtedly astonished that the freedom and liberty of American citizens can be terminated without trial by health officials intent on preventing the spread of disease. Will anyone suffering from fever, headache and muscle pain (some of the more common symptoms of early-stage Ebola, according to the Centers for Disease Control and Prevention) have to fear involuntary commitment to a local hospital while tests are run? Isn't this really a form of imprisonment without trial? (And in the Newark incident, fears of an Ebola case proved unjustified.)
In fact, involuntary commitment and quarantine is perfectly legal in every American state. Quarantine is as American as apple pie. We can expect to see a lot more involuntary quarantines and hospital commitments in the months ahead as the U.S. struggles to contain the threat of Ebola now emanating from West Africa.
The problem with this legal fact, is that American Citizens are still afforded DUE PROCESS under the United States Constitution.   This fact was recently highlighted in the CDC's recent publication of PUBLIC HEALTH LAW NEWS.

Making the waters a bit muddy, CNN continues to outline the stance of the Government in its legal detention of Americans:

"The court may permit quarantine authority on reasonable suspicion that such health powers are necessary to protect the public health. Please note that this standard is not the "beyond a reasonable doubt" standard that we are accustomed to seeing where an individual is incarcerated for commission of the crime. No jury trial is required to impose quarantine or involuntary commitment once the court has granted quarantine authority."

While this may be statutorily true, there are remedies that Americans have under U.S. Law.  Not the least of which is a legal doctrine called "Habeas Corpus."  

"Although health codes and ordinances throughout the country can be enforced quickly and quite arbitrarily, detained and quarantined citizens still retain their right to petition either a federal or state court for release on the grounds that the detention is not warranted by the medical facts of their case.
Such a petition would be brought in the form of the famous writ of habeas corpus and would result in a court hearing involving the examination of the medical evidence supporting the need for quarantine. Many of the state statutes also explicitly afford the right to decline or refuse medical treatment while under quarantine. Even in the face of a health emergency, the right of the patient to decline medical treatment is likely to remain intact."

Americans need to brush up on their Constitutional Rights, immediately.  We do not know for sure what is in store for us everyday citizens in light of Ebola, Enterovirus D68, as well as the many "unknown" viruses that are seemingly popping up around us out of thin air.  

What is a "Writ of Habeas Corpus"

A writ of habeas corpus, also known as the "great writ", is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus.[1] For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad ('protection of freedom').
Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. In some countries, the process has been temporarily or permanently suspended, in all of a government's jurisdictions or only some, because of what might be construed by some government institutions as a series of events of such relevance to the government as to warrant a suspension; in more recent times, such events may have been frequently referred to as "national emergencies."
The United States inherited Habeas Corpus from the English common law. In England the writ was issued in the name of the monarch. When the original thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs, under the 1789 United States Declaration of the Rights of Man and Citizen. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Section 9 is under Article 1 which states, "legislative Powers herein granted shall be vested in the Congress of the United States..."
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.
Inspired by the 1776 The Virginia Declaration of Rights Jefferson, in consultation with Lafayette and James Madison crafted "the US Declaration of the Rights of Man and Citizen" and played a leading role in upholding the right against unlawful detention as President, right from his first inaugural speech. Presidents Abraham Lincoln and Ulysses Grant suspended habeas corpus during the Civil War and Reconstruction for some places or types of cases.
We, as Americans, need to become fully versed on our Constitutional Rights;  should any of us allow those Rights to be breached, we will all fall together.  We can not allow the unlawful detention, unnecessary Executive Orders to be executed, as we have recently seen in Connecticut over an illness that has not even struck there yet.  Connecticut Governor Malloy, for unknown reasons, decided to invoke a "State of Emergency" in his state despite there being no actual emergency.  One thing is certain;  if we allow our Government to control every aspect of our lives unchecked, the power of the Government will be abused.  There is little "Checks and Balances" right now in our system.  We have a President who has been arguably "asleep at the wheel" for quite some time, and places his golf-game above all matters.  Little is preventing involuntary quarantine from occurring;  so long as people remain unaware of the risks, the Government will use every tool in its arsenal at its own time and choosing.

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