January 7, 2021
By Timothy Sandefur

The Goldwater Institute joined with a group of Pima County business owners today in a lawsuit challenging the legality of that county’s 10 p.m. to 5 a.m. curfew. Adopted out of a belief that its previous voluntary curfew was proving ineffective, Pima County’s order forbids residents from being in public or from entering businesses during the night hours—and punishes businesses for allowing people to remain on their property during those hours. But while the curfew may be well intended, it clearly violates Arizona law—and it has potentially dangerous unintended consequences.

Arizona’s Emergency Management Act allows counties to impose rules to protect the public in an emergency, but counties are required to obey the orders of the state’s governor—and Governor Ducey’s May 12 executive order explicitly forbids counties from adopting measures like the curfew. It requires businesses to come up with ways to prevent the spread of COVID-19, consistent with state and federal health regulations, and prohibits counties from making “any order, rule or regulation that conflicts with or is in addition to…this Executive Order.”

It also expressly bars counties from adopting any rule “restricting persons from leaving their home[s],” or adopting “any other order, rule or regulation that was not in place as of March 11, 2020.” The Pima curfew ordinance obviously violates these rules.

The ordinance also contradicts other state laws. The Emergency Management Act allows counties to impose curfews, but only when “necessary…to preserve the peace and order.” The Pima County curfew, however, isn’t intended to preserve peace and order, but to limit the spread of COVID-19. Whatever one thinks of the effectiveness of curfews—and there’s little reason to think they do much good—this curfew is simply not authorized by state law.

Pima County’s curfew isn’t just a legal question about the balance of state and local power, however. Curfews and other mandatory government measures are always backed by the authority of law enforcement officials to arrest people and put them in jail—meaning that every such mandate raises the possibility of violent confrontations between citizens and law enforcement, and the possibility that citizens might wind up in custody, where social distancing and other public health measures are harder to maintain.

Legal mandates and punishment don’t necessarily ensure compliance—but they do increase the risks of violence and the potential spread of disease, which makes them counterproductive in many instances. They also strain police resources, which is one reason why law enforcement officers in major cities, including Los Angeles and San Bernardino, have announced that they will not enforce similar restrictions imposed in California.

There’s no denying that the public health situation is dire, or that Arizonans, like all Americans, need to be especially careful in this time of emergency. But Arizona’s Emergency Management Act was designed to balance the authority of state and local powers in ways that ensure the efficiency of government—and to prevent public officials from going too far and violating the rights of the people they’re supposed to protect.

You can read our brief here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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