Norman Siegel, a prominent New York civil rights lawyer who won a well-publicized victory on Ebola quarantines three years ago, has a new message. This is different.
I talked to him last week because his quarantine victory in 2017 had an indirect connection with the 2014 Dallas Ebola scare, which I was researching. When I called him, he wasn’t exactly resting on his laurels.
Siegel’s Ebola case involved a public health nurse, Kaci Hickox, a UTA graduate who was a former colleague of Dr. Seema Yasmin, then at The Dallas Morning News. Hickox wrote a moving op-ed for the News, saying she had been treated like a criminal when she came into Newark Liberty Airport in October 2014 after a tour of duty helping fight an Ebola outbreak in West Africa.
In his lawsuit, Siegel claimed Hickox was abused gratuitously for nonmedical reasons by New Jersey health officials. The lawsuit said New Jersey didn’t know what it was talking about and Hickox did.
The suit quotes then New Jersey Gov. Chris Christie at a press conference: “I’m sorry if in any way she was inconvenienced but inconvenience that could occur from having folks that are symptomatic and ill out amongst the public is a much, much greater concern of mine.”
The problem with Christie’s version of the facts was that Hickox was not symptomatic and therefore not contagious. Medical personnel at the airport should have been able to see that immediately, and some did fairly quickly. But when she came off the plane from Africa, Hickox was confined and denied access to representation, in effect arrested and denied basic constitutional protections.
Her suit against Christie and New Jersey was settled out of court. Hickox agreed to forgo a monetary settlement in exchange for New Jersey’s agreement to change its quarantine laws. Those changes, guaranteeing a quarantined person’s right to legal and medical representation, were incorporated into federal legislation and administrative rule changes at the end of the Obama administration and are in effect now for all federal matters.
But Siegel, speaking to me last week on his sixth day of self-isolation in his apartment, told me he didn’t think the changes he won in the Hickox suit will have much relevance to coronavirus: “When I first looked at this about a month ago, I said, ‘This is different.’”
The difference is the disease, not the law. Ebola is only contagious from a person who is symptomatic. They’ve got it. You can see it. Hickox wasn’t symptomatic at Newark (she never was). She tried to explain to authorities there that she couldn’t be contagious. But in an atmosphere of official panic inflamed by Christie’s public posturing, rationality and civil rights were casualties.
At that same time in Dallas, where we actually did have Ebola cases, official response was night-and-day different from New Jersey. Beginning in October 2014, a number of people in Dallas were identified as having been in contact with Ebola victim Thomas Eric Duncan before he died. All but one agreed to self-isolate. The only person who refused to cooperate was a homeless, indigent man.
That man was given a court hearing before Judge Dale Tillery of the 134th Judicial District Court. Tillery told me last week, “I appointed an attorney to represent that person since a state action to take away somebody’s freedom, I thought, was pretty serious.”
Tillery also appointed a medical expert to represent the man. The outcome was that the man was confined for the incubation period. Eventually when he was found not to be infected, he was released.
Worrying about a person’s civil rights during a dangerous epidemic might seem absurd, but, as the Christie case illustrates, a time of public panic is exactly when the law needs to be especially vigilant of constitutional guarantees. The history is not good.
In an article published two years ago in the SMU Law Review, Wendy K. Mariner and Michael R. Ulrich of Boston University wrote: “History shows that officials have often enforced measures like quarantine and civil commitment disproportionately against minorities, immigrants, and the poor.
“Infectious disease emergencies are typically accompanied by paranoia and fear, and commonly trigger retributive and discriminatory instincts.”
The laws most important to us right now are divided into three broad areas across jurisdictions shared by federal, state and local governments. The first area we might think of as lock-down law. That is a “police” power shared by governors and mayors to declare public health emergencies, as Texas Gov. Greg Abbott and Dallas County Judge Clay Jenkins have done, ordering broad restrictions on activity and commerce.
A second is the power of quarantine, shared by federal, state and local authorities, to confine people who can be identified reasonably and scientifically as possibly having been exposed and therefore being or soon to become contagious.
The third, compulsory isolation, is the most restrictive. Shared by all levels of government, the power to order the compulsory isolation of a person applies only to cases of people known to be already infected and contagious.
The terms get mashed around a lot in everyday use. A person who agrees to self-quarantine is often described as self-isolating. The broad lockdown restrictions on activity ordered by the governor are sometimes called a quarantine, which they are not.
But the law itself is precise on all these questions. No one gets locked down, quarantined or isolated without an official public order, which everyone has a right to see. And a person whose freedoms are taken away by compulsion has a right to a hearing before a judge at which that person has a right to representation by a lawyer and possibly also by a medical expert, at least in federal cases and in some but not all states.
Above is the top of the order by which cruise ship passengers were sent to quarantines on military bases a week ago. The order was read to them before they disembarked, then printed copies were provided for them to keep. This one came indirectly from a quarantined former passenger — not Jim Anderson, about whom I wrote last week.
In addition to the rights of people whose freedoms are restricted, other rights are in play, as well. What if you believe that you are being endangered by other people who are behaving irresponsibly? The law includes a set of provisions roughly equivalent to civil commitment for mental illness, by which a citizen may ask authorities to restrict someone else on the grounds that the person is a danger to others.
Two weeks ago the Texas Supreme Court and the Court of Criminal Appeals circulated a “bench book” or manual to all local Texas courts reminding them of the law and procedure for dealing with coronavirus. I have included it below. In the appendices are all the forms and paperwork for these processes.
The Supreme Court has established a hierarchy within the state court system to deal with the epidemic. In Dallas County, coronavirus cases will go to 14th Civil District Judge Eric Moyé, the district court presiding judge.
Judge Tillery gave me a pragmatic courthouse view of how this all actually works out in a crisis like what we are experiencing now: “I think the statutes give a fair amount of discretion to the judges to try to protect public safety," he said.
“But I think most every judge is going to understand and appreciate that you just can’t be locking up people and taking away their civil liberties even under the guise of a serious health and safety pandemic without them having right to counsel and some process. I think the judges take that very seriously.
“But I will also say it is inherent in the process that it’s more streamlined, no doubt about it. The person that’s subject to quarantine is not going to have all the tools available that a litigant would have in a typical civil or criminal case.”
My translation? “Streamlined” means in and out of there pretty fast. “Not going to have all the tools” means if you don’t have an open-and-shut case to make, they’re going to open a door somewhere and shut you up behind it. But at least you had a hearing.
My phone conversation with Siegel in New York was intriguing in a sort of personal way. In a very long history as a reporter, I haven’t had that many conversations with lawyers who seemed to be pushing away business. He was self-isolating, and he did tell me he was on the verge of beginning to make chalk marks on the wall to count his days of confinement.
This crisis, unlike most dilemmas a client might bring, is one he is sharing intimately himself. He spoke about it in reserved, almost hushed tones.
“People are calling me to go to court on the closings of the schools. I’ve got some people at a women’s prison in New York who are concerned about a lockdown.
“People are saying to me, ‘They’re using these Orwellian terms like shelter in place but they really mean a containment.’”
It didn’t sound to me as if Siegel was agreeing very much with his would-be clients. The problem, he said, is that we can’t see coronavirus in its early fully contagious stage. It’s not like Ebola.
Public health officials can’t know by looking when it is there. In the absence of massive testing, it’s all a guessing game, and health authorities must be free to act on the basis of their best guesses.
“The balance between public health and individual liberty is different from the coronavirus as opposed to Ebola,” he said. “It makes it hard to challenge the limitations on individual freedom that are now popping up all over the country.”