Police and sheriff deputies are legally entitled to enforce emergency proclamations and orders issued by state and local officials, according to Attorney General Mark Brnovich.
In a formal opinion Tuesday, Brnovich said it’s not just the governor who can declare an emergency and issue restrictions. He said city mayors and the chairs of boards of supervisors have many of the same powers as the governor to declare an emergency.
And those powers, detailed in Arizona law, can range from curfews and closing streets to ordering any business to close.
But Brnovich also had a word of caution for those called upon to enforce those orders.
“In exercising such authority, law enforcement officials must continue to be mindful of constitutional rights and should execute their duties in a manner than promotes justice,” he wrote.
In issuing the opinion, though, Brnovich does not say what happens when there is a conflict between what local officials decide is appropriate response to an emergency and any executive orders issued by the governor that may conflict.
That is precisely the situation that currently exists in at least one Arizona city, with the business closure order issued by Flagstaff Mayor Coral Evans being more comprehensive than the declaration by Gov. Doug Ducey. In fact, the governor’s order specifically precludes cities from going beyond his list.
Ryan Anderson, an aide to Brnovich, said that issue was not addressed because the request by Sen. Paul Boyer, R-Phoenix, did not raise it.
And Anderson said that still leaves the issue as an open legal question.
“We weren’t consulted on the (governor’s) executive order,” he told Capitol Media Services. “I think it’s a very good question to ask whether his executive order is a floor or is a ceiling.”
For the moment, Anderson said, any answer has to come from Ducey.
“Go speak with the governor,” he said. “It’s his executive order, he defined it.”
And Anderson said if Brnovich is asked to opine on that, he will.
But gubernatorial press aide Patrick Ptak noted that Brnovich, in his opinion, said that local declarations “shall not be inconsistent with orders, rules and regulations promulgated by the governor.”
“The law is clear,” he said. “The state’s guidance supersedes other directives.”
Ducey has insisted all along that he believes his order trumps any local orders. And his executive order specifically considers hair salons, nail salons and barbers to be “essential services” which cities cannot order shuttered.
Yet Evans has not backed away from her own proclamation which has ordered those businesses closed. And the governor has yet to take any legal action against either Evans or Flagstaff to have her proclamation declared void.
Boyer said he asked for the legal opinion not to help cities but because he has gotten questions from business owners following the governor’s Monday “stay at home” order. That order directs Arizona residents to “limit their time away from their place of residence or property” to participate in “essential activities” or to work or use the services of “essential businesses.”
The senator said the people who approached him wanted to know what would happen if they continued to do certain kinds of work and whether they could be cited by local law enforcement.
Brnovich’s answer is clearly “yes.”
He pointed out that state law says any person who “knowingly fails or refuses to obey any lawful order or regulation” issued under emergency powers given to local officials is guilty of a class 1 misdemeanor. That carries a penalty of up to six months in the county jail and a $2,500 fine.
But Brnovich cautioned that police and deputies must take into consideration “the constitutional and statutory liberties that Arizonans enjoy,” even in declared emergencies.
For example, he noted, Arizona law allows state and local health officials to issue quarantine or isolation orders. But Brnovich pointed out that the law requires these to be implemented “by the least restrictive means necessary to protect public health” and that someone’s home may be an acceptable place of quarantine.
“Established court precedents in various contexts demonstrate the careful balance that must be struck in protecting public health while respecting individual rights,” Brnovich wrote.
Pima County Sheriff Mark Napier said deputies will not be setting up checkpoints or pulling people over to make arrests but instead seek to educate people about what the law allows.
“It’s not the intent to see how many people we can arrest,” Napier said in a statement on Facebook Live on Monday. He said that arrests would be reserved for cases “of egregious violators and people thumbing their nose” at restrictions.