January 20, 2021
By Timothy Sandefur
Pima County’s 10pm to 5am curfew violates state law and cannot be enforced, according to a decision announced by a Superior Court judge late yesterday. The lawsuit—brought by a group of business owners and supported by an amicus brief from the Goldwater Institute—argued that the county’s order, forcing all people to stay out of public places during those hours, violates state law as well as the executive order issued by Governor Doug Ducey in May.
The county’s lawyers argued that the curfew was authorized by state law that gives boards of supervisors power to regulate businesses to protect public health, but “imposing a curfew goes well beyond regulatory measures,” declared the judge. State laws relating to public health, said the judge, “are far different than imposing a curfew on [the] citizens.”
Not only does the curfew exceed the county’s powers under state law, but it directly contradicts Governor Ducey’s Executive Order 2020-36, issued on May 11, which allowed private businesses to find ways to operate under new safety restrictions and prohibited county governments from imposing additional requirements on them. The order explicitly prohibited counties from imposing rules “restricting persons from leaving their home[s].” Although the county argued that this order was illegal, the judge rebuffed that claim. “While a County may declare a local emergency,” said the court, state law “makes clear that orders of the Governor control during statewide emergencies.”
In our friend of the court brief, the Goldwater Institute argued that while state law does allow counties to adopt curfews in certain emergency situations, that applies only to cases involving riots or other disturbances of the peace—not to cases involving a pandemic, where no disruption of the peace is involved. The court, agreeing with this argument, observed that while “the legislature expressly provided counties the authority to impose curfews in other circumstances,” state law “do[es] not give [the county] authority to regulate public health by imposing curfews.”
Pima County officials adopted the curfew with the best of intentions, but such restrictions are not only unlawful, they can also have dangerous unintended consequences. Mandates and compulsory curfews increase the likelihood of confrontations between law enforcement and citizens—confrontations that can turn violent, or result in people being taken to jail, where their exposure to COVID-19 is probably higher. And if recent experience in Chicago and other cities is any clue, curfews are more likely to encourage people to congregate in secret, in confined places where there is a greater risk of infection, rather than in relatively safer outdoor business places.
Arizona’s Emergency Management Act is designed to balance the needs of state and local governments, to ensure that local officials can respond as needed to local crises—but within limits imposed by state law. Yesterday’s decision is a welcome reminder to city and county governments that they must respect their legal limits.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.