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Tucson sets curfew in response to spike in COVID-19 cases

Three GOP lawmakers are preparing legislation to punish the city of Tucson, shown here in an aerial view, if voters pass a ballot measure to make the city a sanctuary for illegal immigrants. PHOTO COURTESY U.S. DEPARTMENT OF TRANSPORTATION

PHOTO COURTESY U.S. DEPARTMENT OF TRANSPORTATION

The decision Tuesday by the Tucson City Council to enact a curfew despite a gubernatorial prohibition could pave the way for a legal fight with Gov. Doug Ducey.

And if Tucson gets away with its plan, it potentially could embolden other cities to defy the restrictions he placed on their powers in March.

The ordinance which takes effect late Friday bars people from being on public streets or spaces between 10 p.m. and 5 a.m. unless traveling to and from work or other essential activities. It exempts public safety personnel, health care professionals, essential workers and the homeless.

City Attorney Mike Rankin said that ordinance is justified and legal.

“This pandemic is an ongoing local emergency,” he said. “Certain emergency measures which are reserved to the mayor and which flow from both the charter and state law need to be taken at this time in order to curb the spread and the surge of this infectious disease.”

But Ducey, when he declared his own statewide emergency in March, declared that no local government can issue “any order, rule or regulation that … is in addition to the policy, directive or intent of this executive order.”

Regina Romero

Regina Romero

The governor has not imposed any sort of a curfew.

And in case there’s any question of the breath of his prohibition, Ducey’s order specifically says the preemption includes “any order restricting persons from leaving their home due to the COVID-19 public health emergency.”

In fact, it was that preemption that kept Tucson and other cities and counties from imposing their own mask mandates until Ducey relented — at least partly — and agreed to allow them to adopt policies about wearing face coverings.

Ducey at one time had a stay-at-home order in place, telling Arizonans they must “limit their time” away from their homes or property except to participate in “essential activities.”

He allowed that and other restrictions to expire in May. That, in turn, resulted in a sharp hike in the number of people infected.

And while Ducey did reimpose some restrictions on bars, restaurants, gyms and movies, he never again sought to limit individual activity even as the rate of infections is again on the upswing. So Tucson Mayor Regina Romero decided the city should act on its own.

And what of the restrictions?

“The mayor and I and other city officials are well aware of what the governor has included in his executive order,” Rankin said.

He said the law allowing Ducey to declare an emergency does give the governor certain powers.

“But it does not give him the authority to wipe away the legal authority of other officials who are also given emergency powers, including under the state statutes themselves

Arizona Gov. Doug Ducey addresses the media on COVID-19 during a news conference in Phoenix, Wednesday, Nov. 18, 2020. (Michael Chow/The Arizona Republic via AP)

Arizona Gov. Doug Ducey addresses the media on COVID-19 during a news conference in Phoenix, Wednesday, Nov. 18, 2020. (Michael Chow/The Arizona Republic via AP)

The mayor insisted she’s not trying to pick a fight with Ducey.

“I did try and reach out to the governor,” Romero said, through the weekend and even on Monday, seeking a conversation of no more than 10 minutes. She said that was to talk about the issue of a curfew and the need for statewide action.

“Unfortunately, the governor declined to speak with me,” Romero said, saying that the response from the governor’s office was that he was “very busy.”

And mayoral aide Myriam Cruz said that as recently as noon on Monday the mayor’s staff was told that Ducey would not be available to speak with Romero.

But Daniel Scarpinato said while there were calls from the mayor’s office, there was never a request to actually speak with Ducey.

And Scarpinato on Tuesday refused to comment about whether his boss believes that cities can, in fact, enact their own curfews or whether that runs afoul of the gubernatorial preemption.

“We haven’t seen the specifics yet,” he said. “So when we get the specifics we’ll have our general counsel review it.”

Nor would he respond even to the generic idea of cities imposing travel restrictions.

Romero acknowledged that Tucson did not defy the governor earlier this year when, until June, he forbade local governments from imposing mask requirements. She had wanted to do that as far back as March but opted against it based on Rankin’s advice.

“He felt at the time such a mask mandate related to public health would be much better put through by the county or the state,” Romero said. It was only after seeing no action at the state level she said she began to pressure the governor for the exemption from his executive order.

Rankin, for his part, said there’s no inconsistency between agreeing in March to live within the governor’s constraints on masks and pushing ahead with a curfew now.

“We make different decisions at different times based on the needs of the community at that time,” he said.

Rankin said the city has the same authority as the governor to impose penalties for those who violate emergency orders: a Class 1 misdemeanor with a possible $2,500 fine.

But he emphasized that the goal is education, with the plan saying that anyone who is found in violation first be given an opportunity to comply. And even if a citation is issued, Rankin said, his office, which would be in charge of prosecuting the case, would be offered a “diversion” alternative, essentially an option to have the charge erased if the person doesn’t reoffend.

Editor’s note: This story has been revised to reflect the Tucson City Council’s vote to pass the curfew and add a correction. A previous version erroneously reported the curfew would begin on Tuesday, but it actually begins on Friday. 

 

6 comments

  1. Nope, time to stop the over reach. That curfew is ridiculous. So exactly how many case of COVID are attributed to people being on the street between 10-5? Seriously? And homeless are exempt. What a joke.

  2. hey Stan? Where do you propose the homeless go? do you know what that word means?

  3. This is going to far. The Pandemic is not killing people. In fact, the duration is down to three whole days of flu symptom’s in most people. Those with complications or known issues can confidently take precautions at this time. The media and govt needs to stop using the scare tactic that everyone is going to DIE. I cant wait until there is a Netflix Documentary exposing all the BS of this

  4. Get ready for the lawsuits, Tucson. I know I won’t hesitate to sue if you impede my rights. Believe me, you won’t be the first city to contribute to my bank fund. 🙂

  5. Mayor Romero needs to be recalled she doesn’t care about Tucson only her political goals this 10 pm to 5 am does nothing to curve covid .It’s Governor Ducey not Ducey show some respect Mayor we are not a police state yet and your term as mayor will be short lived.Stop trying to copy the Northern states Democratic mayors it won’t work in Tucson.

  6. First of all a case is simply a positive covid test. First of all there is no specific test for covid,. They are using a RT-PCR test that is amplified 45 times to screen only for RNA pieces inactive dead or otherwise.The CDC website admits a flu or infection gives you a false positive. The test is at least 95% false positive. Also you cannot transmit a virus if you are symptom free, that is your viral load is too small. The media is suppressing statements from world renowned experts that are calling this the biggest hoax perpetrated on people. THe latest peer reviewed Danish study concluded no benefits of wearing a mask and 85% of useless positive cases wore masks. You also carry a high risk of contracting bacterial pneumonia and other diseases by extended mask wearing. Dentists have reported teeth rotting and gum disease from wearing them.

    These politicians have no brains, are destroying lives and have no legal authority to make random dictates that is not legislated or proven. Why don’t they suspend their pay checks for several months?.

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