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Attorney General says churchgoers, protesters may congregate closer than six feet apart

Winslow business owners Dan Mazon, who was cited for keeping open his Authentic Indian Arts Store, tells protesters Monday that his constitutional rights were illegally suspended. (Capitol Media Services photo by Howard Fischer)

Winslow business owners Dan Mazon, who was cited for keeping open his Authentic Indian Arts Store, tells protesters Monday that his constitutional rights were illegally suspended. (Capitol Media Services photo by Howard Fischer)

Arizonans who assemble to worship or protests don’t necessarily have to keep six feet between them to avoid violating the governor’s executive order and thereby subjecting themselves to arrest and jail, Attorney General Mark Brnovich said Thursday.

In a formal legal opinion, Brnovich pointed out that Gov. Doug Ducey, in his order, specifically permits people to engage in constitutionally protected activity, including religion and speech. But that order said these are allowed only to the extent they are “conducted in a manner that provides appropriate physical distancing to the extent feasible.”

Rep. Kelly Townsend, R-Mesa, who requested the opinion, noted that that Ducey, in other parts of his executive order, specifically required separation of six feet.

So, she asked Brnovich whether getting closer than six feet would put parishioners and others in legal jeopardy and subject them to the $600 fine and six months.

Brnovich, in essence, said no.

He pointed out there’s no specific distance requirement when things like church services – and even rallies – are at issue, and that Ducey instead relied on words like “appropriate” and “feasible.”

“This flexible language recognizes that what may be appropriate or feasible in one context may not be appropriate or feasible in another context,” the Attorney General wrote.

Separately, Townsend and Sen. David Farnsworth, R-Mesa, sought to trim the governor’s emergency authority. The pair told Capitol Media Services they are reviewing the laws that gave Ducey the right to declare an emergency in the first place, the precursor to his executive orders.

Those laws spell out that gubernatorial-declared emergencies terminate on proclamation of the governor. But Townsend, seeking a quick end, also noted that can also be done by “concurrent resolution of the Legislature declaring it at an end.”

She isn’t alone in that sentiment.

“I’m asking my colleagues in the Legislature to join me in overturning the arbitrary extension of the state-at-home order,” wrote House Majority Leader Warren Petersen, R-Gilbert, on his Facebook page.

He urged followers to call on their own legislators to back the repeal, and dismissed the argument that the order protects people.

“In case you didn’t know, anyone can stay at home,” he wrote.

But neither Townsend nor Petersen will get a chance for a vote on that any time soon as the legislative session remains in limbo.

On Thursday, legislative leaders decided not to reconvene today as had been planned. When they would return remains unclear. The same uncertainty applies to whether they would take up legislative business or simply formally shut down the session until next year.

Farnsworth, for his part, questions whether those same laws giving Ducey that power in the first place are constitutional.

“I believed that the executive order, from the beginning, is a mistake and that he is exercising tyranny over our state,” he said.

All this comes as Ducey on Wednesday said he is extending his stay-at-home order until at least May 15. The order spells out that individuals can leave only to participate in “essential” activities, whether that involves their work or even going out shopping or outdoor recreation.

Separate orders that were updated Wednesday further define the scope of what is essential. And they take the first steps to ease the ability of some stores that he ordered shut in March to begin selling certain items again, at first through drive-up and delivery services and, later, by allowing customers actually in the door.

But the governor is keeping in place his ban on those shops actually providing services.

So, a beauty salon could sell shampoo but could not do a perm. And that also means that the massage parlors and tattoo shops that Ducey finally ordered closed on April 1 will still not be taking customers.

The governor also said he envisions restaurants again providing dine-in services as early as May 12, though the details of how that would work are still being worked out.

The bottom line, the governor said, is that the steps he took curbed the spread of the virus and ensured that the state did not run out of hospital beds or ventilators. But he said there is no “trend” that makes him feel comfortable enough to lift the rest of the restrictions.

Townsend said that claim is hollow.

“If you went back to Jan. 1 or whenever this hit and the numbers they told us (it could hit), the numbers we’re at now would be the down trend,” she said.

In late March, state Health Director Cara Christ said the state’s 15,000 hospital beds and 1,500 beds in intensive-care units would not be enough. But the most recent data from her agency found just 755 people hospitalized with positive or suspected COVID-19 diagnoses.

“We are not at the high-water mark,” Townsend said. “We never even got in the river.”

What that means, she said, is that it’s “unrealistic” to wait for whatever the state determines is a down trend.

“And you’re hurting this economy,” Townsend said.

More alarming, she said, is Ducey’s repeated assertion on Wednesday that there would be penalties for those who opted to go out for non-essential activities and for those business owners who decided to open their doors.

“I just heard the governor of the state of Arizona tell the people of his state that he would jail them if they didn’t obey his decree,” Townsend said.

“We are not a monarchy,” she said. “And the people of this state should not be threatened to be put in jail for trying to make a living in a situation where the numbers that they talk about are nowhere close to what they told us they would be when they did this.”

4 comments

  1. Until the people say its enough the government will keep ruling against them. It’s 100 degrees outside, the scientist already spoke and say virus die over 80 degrees.
    I’m just saying.

  2. This is amazing! Now retired, I worked in healthcare. Then I taught same for 10 years after getting an MEd. I taught a class in Microbiology, instructing students in the spread of disease.

    This shows a full lack of understanding in the basics of what I taught. And what I taught was a basic course, in which students would learn that what they’re advocating here is just plain wrong!

    But not only that – if this Pandemic was handled correctly in this country, nation-wide & consistently, from the VERY beginning, it wouldn’t go on as long as it will now. This mish-mash, inconsistent methodology is what will contribute to it lasting a long time. With much damage.

    These so-called representatives, particularly the AG, who has a very loose law interpretation for partisan benefit – regardless of the danger to the people of this state – are selfish, and posing dangerous “solutions” to economic panic. I guess their brains can only go so far.

    They’re putting people’s lives at risk. The incidents of COVID-19 are not diminishing in AZ. They’re continuing to rise. And with this – they’ll take off even more. People who have no belief in science have no business dealing with scientific issues. The governor (I was never a big fan) is doing the right thing – he is listening to people who are gathering the facts, analyzing data, and helping him with making decisions. Then moving analytically and slowly.

    This proposal here is cold, ill-conceived, dispassionate, unscientific, showing a lack of empathy – how many more descriptive terms can I come up with? Oh, I could go on & on. Remember this, as time goes on. I will.

  3. STAND UP, PEOPLE! This is NOT a dictatorship! Take back the rights the government is trying to steal right out from under our noses. If everyone just started going about their lives as THEY saw fit, the powers that be would have no choice but to back down.

  4. I listened to Gov Ducey’s announcement. It makes you realize the position he is put in. On one side, people want him to open everything. On the other, there are those who don’t want anything open until it’s 100% safe to do so. So I can’t fault him for his stance. He holds a position of public trust and it’s obvious he takes it seriously. However, I do not agree with the extension of the extension. Everybody is aware of the virus, how it’s spread and what the risks are. The original purpose of the shut down has been achieved. There are countless many who have already suffered catastrophically by the financial loss and the extension means even more will suffer. At some point, and I think we’ve reached it, you have to recognize the cure is worse than the disease.

    There is also the matter of limiting the use of hydroxychloroquine. I’m glad to see Ducey relax the restrictions, but he didn’t go far enough. By all accounts, its use has proven to be 91% successful. That’s incredibly good odds for such a debilitating condition. It was most successful when used early in the treatment. Ducey’s order delays early use and inserts itself between patient and doctor. The drug has been out there and used safely for decades. The reward far exceeds the risk and it’s ridiculous and irresponsible to place people’s lives in jeopardy under such circumstances.

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