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The Constitution Versus The Virus

Posted by Joseph Tully | Apr 10, 2020

Leading criminal and civil rights attorney and author Joseph Tully addresses the Government's scope and authority to quarantine, isolate, restrict, and control during the COVID-19 outbreak, or any other crisis. 

There is no doubt that COVID-19 is a deadly virus that is destroying thousands of American lives. Please protect yourself, your family, and the vulnerable from infection and transmission. At the same time: know your rights. Protect the rights of all while protecting those same rights for yourself, your family, and the vulnerable.

We are open to help you, even if the Courts are not. The latest court announcements and closures are updated here on the CA Courts site.

That said, there is a worse virus than COVID-19 that is destroying millions of American lives, livelihoods, and jeopardizing their Life, Liberty, and Pursuit of Happiness. The virus of authoritarianism, is used under the cover of crisis and safety, to come after your rights. There is much confusion about what Government officials can and cannot do during this time. The defense team at is working every day to protect your rights and defend your Liberty.

As I wrote in my book California: State of Collusion, it is not above psychopaths lurking in power to jump on a crisis to assert their authority over the innocent. In fact, it is their nature; “Never let a good crisis go to waste.” Among the good police, prosecutors, judges, and politicians working for us, are the bad; self-serving sociopaths that will enhance their careers and pad their pockets by violating your rights. The best way to support our communities, and the many good public servants out there, is to vigilantly defend the rights of everyone.

More insidious than the few bad actors are the majority that act against Liberty for the “common good”. As we see below, C.S. Lewis warned against omnipotent moral busybodies. 

“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” ~ C.S. Lewis

Flatten the Curve! Observe Social Distancing! Go Back Inside!

These are the calls of people enforcing their moral high-ground for the common good.  Making demands without regard to evidence, data, or a complete understanding of the situation. These are the people that call the cops on a family playing in their front yard, or co-habitating joggers taking a run, during the current lock down. 

Our office has had many calls about the legality of quarantines, martial law, shelter-in-place, and other safety edicts announced in City Halls, Sacramento, and DC. I'd like to address some of those questions and help us understand our rights and the limitations on Government.

First of all: Be Safe. Protect the vulnerable and avoid spreading the virus. Our office is working remotely as much as possible and taking protective measures when we venture out to visit clients. The criminal justice process is hampered by closed courts and delayed hearings, but it must continue for all. With the social and commercial restriction in place, many types of arrests have decreased; but these new conditions will eventually lead to an uptick of quarantine related arrests like domestic violence, illegal gatherings, and non-essential travel. It is curious that attorneys are only listed as “essential workers” by many State and Federal restrictions in the context of supporting other essential workers and businesses. 

Second of all: don't talk to cops. If a law enforcement officer questions you, be respectful, polite, and safe, but don't feel the need to explain anything to the police if they are questioning you about something which they believe to be an illegal activity. Anything you say that's bad can and will be used against you in court and if you say something good, the prosecutor and judge will keep it out of court. Anything that's neutral will be twisted into something bad and used against you. There is no point arguing with police about Liberty, the Bill of Rights, or how “essential” your activity is during lock down. 

The fundamental rules have not changed:

  • Reasonable Suspicion – to be stopped and questioned
  • Probable Cause – to be arrested
  • Innocent until proven guilty – at trial
    • by the government 
    • beyond a reasonable doubt

During an emergency, local authorities may assume too much power, and wield it injudiciously. There may be a plethora of Constitutional and civil rights violations by governments and government agents during this time. You may be on the receiving end of one, but don't argue with cops. Cops are not paid to interpret laws and are not paid to argue. Remember that you are more likely to contract COVID-19 in police custody than at home. So be respectful, polite, and wish them safety and health and hopefully get on with your day.

Quarantine is a neutral word. Self-isolation can be voluntary, or it can be enforced by law. Many of us should self-isolate to protect the vulnerable. When people in power mandate isolation, things get dicey. Laws and the Constitution can protect our rights over the long term, should we as Americans decide to exercise them. However, in the short term, expect some areas to react with an iron fist (that is also wearing a protective medical glove).


Note the CDC highlights the laws and precedents that define what the Government may do, but they neglect to discuss what they cannot do under the law.

For the sake of argument, and since parts of the law are sufficiently vague and left to Executive Order, assume that the Government assumes they can do almost anything they want in a time crisis. Note that Federal powers are limited to International and inter-state commerce, so local travel is not covered by Federal mandates, though the State and Local mandates may be even stricter. Federal Regulations say that an individual travelling State to State can be stopped and inspected if they are reasonably believed to be infected with a communicable disease and may be detained as reasonably necessary. Any regional travel or commerce restrictions in your town are levied by your Governor or local officials.

42 U.S.C.
United States Code, 2011 Edition
Part G – Quarantine and Inspection

The New England Journal of Medicine explores the powers of Government during this time, in their article COVID-19 – The Law and The Limits of Quarantine

Governments must have a strong basis for the restrictions. Looking to case law regarding civil commitment, many scholars and some lower courts have concluded that isolation and quarantine are constitutional only when the government can show by clear and compelling evidence that they are the least restrictive means of protecting the public's health. However, at least two federal courts reviewing post-detention challenges to Ebola quarantines held that the standard was not sufficiently well established to allow the claims to go forward.  Persons who are detained, or whose liberty is otherwise restricted, are entitled to judicial review — traditionally under the writ of habeas corpus. Finally, when governments detain people, they must meet those people's basic needs, ensuring access to health care, medication, food, and sanitation.


The real abuse of power can happen at the local level, under the guise of “community safety.” Mayors, Governors, and Sheriffs have wide discretion to enact restrictions for the benefit of public safety. Consider the point that cannabis has been legal medicine in the California since 1996, yet the majority of counties still do not have safe access due to local whims (or more nefarious motives). The same goes for smoking, firearms, and occupational licensing. Don't blame DC when you are not allowed to hire your neighbor to cut your hair while she carries a concealed weapon. This same principle applies to the coronavirus shut down orders.

According to the Journal of Public Health Management and Practice, the landscape is fractured: 27% of states solely retain the powers, 18% of states provide some power to local governments, and the remaining 55% delegate the powers to some combination of both. Currently, six counties in the greater San Francisco Bay Area have imposed some of the Nation's broadest ‘protection' measures.  

There will be lines crossed in the name of safety, some of those actions may be justified in the greater scheme of things but others will not be. The Constitution exists to reign in these abuses, if not prevent them in the first place. The important thing to remember is that there will be a time for proper review. If lockdown or other restrictions are unnecessarily broad, they could be struck down by judges, both local and Federal. 

California law in this area is very vague and broad. The State empowers the Department of Health Services to adopt and enforce regulations that are necessary “in the opinion of the department.” There is no mention of the need for reasonable or practicable considerations by authorities, though this is the standard they will be held to eventually in court. 

In California, here is a look at health and safety statutes

Cal. Health & Safety Code § 120175-120250; § 120195-120235

Authority. Health officers should take all necessary steps to prevent the spread of a contagious disease within their jurisdiction. Officers are required to enforce quarantine of state Department of Health and cannot enforce a quarantine against another jurisdiction without state approval.

Cal. Health & Safety Code § 120275-120305

Penalties. Anyone who violates or refuses a regulation or order of quarantine is guilty of a misdemeanor. A first offense is punishable by forced compliance with quarantine up to a year and two years' probation with a repeat offense punishable by confinement of not more than a year.

Cal. Health & Safety Code § 120175-120250 (1995)

Police Power and Limitations. In the event of the outbreak of a communicable disease, a health official may have access to all supplies necessary from health providers that can either assist in responding to the outbreak or are implicated in the outbreak. If disinfection of goods or property would be unsafe, officers may destroy items, with proper compensation to owner.

Our Concerns are NOT Mutually Exclusive

It is OK to be afraid of the virus. It is OK to be afraid of authoritarianism. It is OK to be afraid of economic impacts.

Many in the media and government are pushing us to “flatten the curve” at all costs. The real goal should be to save the most lives. A collapsed economy and deprivation of rights can be as deadly as any virus. As we get more data on the biology of the virus, we can make better decisions on how to contain it, while we keep the other parts of our lives healthy as well. So speak out. Ask for more testing and more data on the outbreak. Prepare for the economy to reopen. And always be aware of your rights.

Defense attorneys will defend your rights in Court. You must defend your rights (and the rights of everyone) every day. Speak up on social media, with friends, and in letters, phone calls, and emails to your politicians.

Our office is open and our attorneys are vigilantly working to keep our clients safe while defending their liberty. Reach out to us if you have a criminal legal matter you would like to discuss. We can do it by phone, video conference, or we can meet with you as safety and restrictions allow.

Criminal Defense Attorney Joseph Tully

Attorney Joseph Tully Bio

Author and Lawyer Joseph Tully has a passion for law practice rarely seen among criminal defense lawyers, and it drives his extraordinary record of positive outcomes. The firm covers California from offices in the Bay Area, Redding, and Fresno.

Mr. Tully and team outwork and out-prepare prosecutors to combat the California's massive law enforcement and judicial advantages over an individual. This imbalance of power against the innocent is the topic of Mr. Tully's book California: State of Collusion. Joseph Tully is a Certified Criminal Law Specialist, an elite certification awarded to less than 1% of California lawyers by the California Board of Legal Specialization.

Contact Tully & Weiss here for legal help statewide.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...