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I was all set for a refreshing dip in the magnificent Pacific on Friday when I got word that Gov. David Ige was closing all beaches in Hawaii.
Ige’s latest emergency rule means there will be “no sitting, standing, lying down, lounging, sunbathing, or loitering on beaches and sandbars.”
The press release from the Hawaii COVID-19 Joint Information Center further explained, “People can still cross beaches to access the ocean for outdoor exercise like surfing, solo paddling and swimming as long as social distances are maintained.”
Come within close distance of another human being, however, and you could be looking at a $5,000 fine and a year in jail — or both.
I contemplated what the governor meant by “standing,” as I do not think he means we should crawl to the ocean, or hop, skip and jump, or to somehow self-levitate over the sand.
Then I saw that Mayor Harry Kim issued another emergency rule of his own Friday, saying ocean access would actually be permitted on the Big Island at more than a half-dozen county beach parks from 7 a.m. to 5 p.m. Restrooms too.
But then, to fly to Hilo or Kona to go for a swim would entail a 14-day quarantine. Forget about that.
So I decided to go to Foodland at Market City, as I heard they had finally stocked toilet paper after weeks of bare shelves. But it turned out I could not squeeze the Charmin without a face mask.
Now, Honolulu Mayor Kirk Caldwell says most of us have to cover our mug before visiting “essential” businesses. Kauai Mayor Derek Kawakami ordered much the same days ago, and a nighttime curfew before that.
Jeez, what next? Drones to monitor behavior? Too late. Already happening on Maui and, for a spell, on Oahu.
How long will this last until the people revolt? Too late for that, too — from Lihue to Kapolei, from Huntington Beach, California, to Lansing, Michigan, people are taking to the streets to vent their frustrations.
The protests thus far have been peaceful and in keeping with First Amendment rights guaranteeing the freedom to assemble. It’s a fundamental civil liberty along with the right to speak freely, to think, to organize, to worship or to “petition without government interference or restraints,” as one legal resource puts it.
But stay-at-home orders and other restrictions imposed in many states and municipalities have a lot of folks getting antsy.
The nation is now well into into its second month of a lockdown and some governors, egged on by President Trump, are chomping at the bit to reopen for business (Texas began this week). This, even as many other governors (including ours) are heeding the advice of health experts who argue that it’s way too soon and COVID-19 testing capacity remains inadequate.
Many of the protesters argue that the threat of the virus is greatly exaggerated and at its core un-American.
David Hamman, a Republican on Kauai, in an email blast to supporters on Saturday accused Ige and Kawakami of being dictators who abuse their power.
“Are we going to allow Governor Ige and Derek Kawakami to trample our constitutional rights and destroy the livelihoods of our friends and our neighbors?” Hamman wrote.
Jeff Portnoy, a First Amendment attorney with Cades Schutte in Honolulu, categorizes the protests on two levels.
“One is the political level, and clearly that is what these are,” he said. “These are Trumpers and worse, people who have been stimulated to emulate their colleagues in more conservative states. You don’t know what internet forums are driving these protests, but that’s at a political level, and on a First Amendment level, they are quite OK.”
Unless they turn violent, Portnoy adds, and then it’s another matter.
The second level of protest centers on what he said are “legitimate questions” about the status of civil liberties in a time of pandemic.
“It’s quite controversial, and if you accept the president’s view that this is a war, then you can pretty much eliminate lots of civil liberties,” he said.
Portnoy does not think the U.S. is at war in the sense that there is a foreign enemy trying to, say, spy on military installations. There are already lawsuits challenging the orders of some mayors and governors.
Portnoy said his best guess is that judges will rule in favor of governments if the pandemic sticks around in the foreseeable future.
“But a year from now? I don’t know,” he said, adding that a lawsuit alleging violation of privacy rights might have merit if, for example, it involved a drone spying on someone’s backyard.
Robert Thomas, a Honolulu attorney who specializes in property rights protected under the Fifth Amendment, agrees that constitutional rights “are not absolute.”
A government in non-emergency times “has a lot of authority to sometimes limit property rights” — eminent domain, for instance — “and courts are even less inclined in times of emergency to second guess the political branches.”
Still, Thomas said it is very clear “we don’t give up our constitutional rights in times of emergency,” even when the government says it is trying to protect public health and safety.
In the case of the Fifth Amendment, most people probably know that it keeps citizens from incriminating themselves (“I plead the Fifth, your honor”). But the last part of it reads “nor shall private property be taken for public use, without just compensation.”
Thomas recently participated in a webinar in which he referred to legal cases in Hawaii and on the mainland where courts upheld government restrictions during times of emergencies. He pointed to the burning of Honolulu’s Chinatown during the bubonic plague of 1900, and the quarantining of Hansen’s disease victims in Kalaupapa in the 19th and 20th centuries.
Sometimes the government does very bad things, he said, pointing to the example of Fred Korematsu, who ultimately prevailed in the U.S. Supreme Court on his challenge of racial discrimination during World War II.
But it took several decades, as the court initially ruled in favor of President Roosevelt — who ordered 120,000 Japanese Americans interned — in Korematsu vs. United States.
Josh Wisch, executive director of ACLU Hawaii, agrees that government officials may temporarily limit physical gatherings in circumstances where experts agree “that large assemblies of people pose an immediate and grave risk to the public health.”
But Wisch said such measures should be reevaluated if the scientific and medical consensus changes.
“Any mandatory measure should be reevaluated at short intervals to ensure it remains justified and that there are no less restrictive measures available,” he said via email.
Wisch also said that enforcement of social distancing and other rules “should not exacerbate racial disparities and should not lead to fines, fees or custodial arrest unless doing so is the absolute last resort.”
The reason, he said, is because arresting people and sending them to jail “is antithetical to public health.”
The ACLU of Hawaii has been extra busy during the outbreak.
The advocate for civil liberties has worked to make sure unsheltered homeless people have access to basic hygiene per federal guidelines, to warn against the resumption of so-called sweeps of homeless people from parks and other public places, to argue that some nonviolent offenders be released due to COVID-19, and to advise under what circumstances it is appropriate to deploy the National Guard.
Nationally, the ACLU is now focused on the next potential assault on civil liberties: using technology to trace COVID-19 patients and the people they have been in contact with — something that is already being talked about right here at home.
Last week the organization released a set of “technology principles” so that developers, policymakers and the public “can judge any technology-assisted contact-tracing apps and proposals for COVID-19.”
Recognizing that the coronavirus is “a deadly crisis,” the ACLU also warned in a press release, “Regrettably, it’s also an opportunity for would-be authoritarians and powerful corporations to expand their power.”
Among the ACLU’s principles for contact-tracing apps is that they be voluntary “whenever possible,”and that they be non-punitive, “privacy-preserving” and built in consultation with public health professionals.
Life ain’t easy living under a pandemic. But it could be worse.
Forbes reported last week, “In Hungary, journalists and others face up to five years imprisonment for ‘distorting’ information about the disease. In Egypt, the government blocks or limits access to news websites that it deems to be spreading false information about the pandemic.”
Forbes reported as well that Poland’s government is using facial recognition technology to track people’s movements.
And The Intercept reported that in South Korea, Taiwan and Israel, authorities use smartphone location data to enforce individual quarantines.
Citing a BBC report, The Intercept also noted that in Mexico, Uber sent government authorities rider data to trace the route of an infected tourist, “also banning 240 users who’d taken rides with the same driver.”
We’re not there yet, and I hope we never will be.
So, keep swimming. And fishing and jogging and walking and shopping.
But please wear a mask and stay away from me unless I say otherwise. Thank you.
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