We don’t know his name, but there is a 53-year-old man in Nelson County, Kentucky who is now being forced to remain inside of his home by armed policemen.

The man tested positive for the COVID-19 coronavirus last week and has refused to self-isolate in his own home. After the test came back positive, the man left the University of Louisville medical center against medical advice. Now, he is a prisoner in his own home.

Since we do not know who this man is, we can’t speak to his state of mind. Perhaps he was terrified. Maybe he needed to leave to pick up supplies, since he had no idea he would test positive and couldn’t possibly have prepared for it. Or, maybe he is just an asshole and doesn’t care about anyone but himself. Any of those excuses could be true.

But the real question is, is this legal? Is it constitutional? Can a State governor station armed police men to keep someone inside of their home like this?

Kentucky has an infectious disease quarantine law on the books.  KY Rev Stat § 214.020 states that “when the Cabinet for Health and Family Services believes that there is a probability that any infectious or contagious disease will invade this state, it shall take such action and adopt and enforce such rules and regulations as it deems efficient in preventing the introduction or spread of such infectious or contagious disease or diseases within this state, and to accomplish these objects shall establish and strictly maintain quarantine and isolation at such places as it deems proper.”‘

We put the constitutionally questionable sections in bold. The statute allows the government to take such action that it “deems efficient” in preventing an out break and allows it to set up quarantines and isolation zones “at such places as it deems proper.”

So from a purely legal perspective, it appears that the quarantine being imposed on this man is legal in Kentucky. But is it constitutional?

To give the government this amount of power, to do whatever it deems efficient wherever it deems proper is incredibly vague. Typically, statutes must specifically outline what powers are being granted to the Executive by the Legislature. To leave it this open ended and say that whatever the Cabinet official wants to do, he can do it is constitutionally questionable. It is doubtful, though, that any judge will intervene during this coronavirus outbreak…

But even if an action is legal and presumptively constitutional, it cannot violate an enumerated Constitutional right.

The difference in this case is that what the Kentucky Government is doing to this man is technically considered to be an imposed “isolation.” Since he has tested positive, the state is isolating him to prevent him from spreading the illness.

A “quarantine” is defined as attempts to prevent healthy people from moving around for fear that they could be carriers or unknowingly infected.

The Supreme Court has ruled that the right to impose quarantines and isolations is reserved to the states and is allowed as long as it is not implemented in an “arbitrary, oppressive, and unreasonable way.”

That is where it really comes down to interpretation.

Plenty of people check themselves out of hospitals against medical advice and carry the risk of infecting the population with any number of diseases. The fact that we do not see the State of Kentucky enacting forced isolations targeting people infected with Measles or Whooping Cough (both diseases with larger death rates) could be an argument that this is arbitrary.

If the armed policemen are going to prevent the man from even walking in his front yard, there would be an argument to be made that the isolation is oppressive because the disease is not airborne. Him simply stepping foot outside wouldn’t put anyone at risk (unless they actually walked onto his property).

And lastly, there is a serious question over whether the use of armed police officers is “reasonable.” Every time that he “broke quarantine,” those orders were voluntary. He was allowed to leave the hospital against medical advice because the law says he can do that. To escalate this to include armed police officers is arguably unreasonable.

Again, there isn’t a judge in this country that would take that case. No one wants to be known as the one who ruled a quarantine unconstitutional and ended up killing innocent people.

But just because something is presumptively lawful and constitutional doesn’t mean that we should just accept everything being proposed in these Emergency Declarations around the country.

A disease does not give the government the power to dissolve your rights and I fear that, as medically useful as some of these tactics may be, the trampling of our constitutional rights will have lasting affects long after this coronavirus outbreak ends…

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Max McGuire

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