A family in Oxford, Wisconsin, is suing the local sheriff’s department after a patrol sergeant threatened to arrest a teenage girl for disorderly conduct for posting on Instagram about being infected with COVID-19.
Amyiah Cohoon, 16, is a student at Westfield Area High School in Westfield, Wisconsin. According to this lawsuit, she and schoolmates went to Disney World and Universal Studios in Florida for a spring break trip in early March, right as the coronavirus was beginning to spread and businesses began to shut down. She and her classmates canceled the trip early and returned home.
Once home, Cohoon began developing symptoms associated with COVID-19. She sought medical assistance, but at the time they were unable to test her to see if she was infected. She was diagnosed with an upper respiratory infection with “symptoms consistent with COVID-19,” according to the lawsuit.
Cohoon went home and posted on Instagram letting people know that she had COVID-19 and was in self-quarantine. Her condition worsened and she was brought to the hospital for treatment. She posted again about the experience on Instagram. Finally, they were able to test her, but the test came back negative. According to the lawsuit, doctors told her it was likely she missed the window for testing positive, but she probably did have COVID-19, despite the test results. (False negative results have been an ongoing issue in accurately diagnosing infections.)
After she returned home from this visit, she posted again on Instagram and included a picture of herself at the hospital wearing an oxygen mask.
The very next day, Patrol Sergeant Cameron Klump from Marquette County Sheriff’s Department showed up on the family’s doorstep. He was there under orders from Sheriff Joseph Konrath to demand that Amyiah and her father, Richard Cohoon, remove Amyiah’s Instagram posts. If they refused, Klump said the family faced charges for disorderly conduct and Klump told them he would “start taking people to jail,” according to the suit.
Konrath’s justification was that there had been no confirmed cases of COVID-19 in the county. He found out about the Instagram post from Amyiah’s high school. The Cohoon family had contacted the school to let them know about Amyiah’s infection, but nobody ever contacted them back to get more information. It appears that instead the school contacted the police. Under the threat of arrest, Cohoon complied and deleted the allegedly illegal Instagram post.
That evening the family would discover that a school administrator sent out an alert to families accusing Cohoon of making it up and assuring families that any information of infection was just a rumor. “Let me assure you there is NO truth to this,” the message read. “This was a foolish means to get attention and the source of the rumor has been addressed. This rumor had caught the attention of our Public Health Department and she was involved in putting a stop to this nonsense.”
The family then connected with the Wisconsin Institute for Law and Liberty, and the Institute sent a letter to Konrath warning him that he had violated Cohoon’s First Amendment rights and demanded both an apology and the promise that there would be no further threats of criminal charges against the family for Amyiah’s post.
Konrath refused, and now the Wisconsin Institute of Law and Liberty is suing Konrath and Klump in the U.S. District Court for the Eastern District of Wisconsin for violating Cohoon’s First and 14th Amendment rights. Her Instagram posts are protected speech, the Institute argues, and there was nothing about her posts that violated the county’s disorderly conduct law, and even if they did, the Wisconsin Supreme Court has held that disorderly conduct statutes in the state cannot be applied to speech protected by the First Amendment.
The Wisconsin Institute for Law and Liberty is asking the court to rule that Cohoon’s posts were protected speech and order that the sheriff’s department may not threaten or cite Cohoon or her family for these posts, plus paying “nominal damages.”
The sheriff’s department is not backing down or even acknowledging an overreaction. According to the Milwaukee Journal Sentinel, their position remains that the one negative test means that she did not have COVID-19, which simply isn’t how it works. The Sentinelreports:
Sam Hall, an attorney for the sheriff, said the teenager “caused distress and panic” among other parents by claiming she had contracted the coronavirus despite getting a negative test result.
“This case is nothing more than a 2020 version of screaming fire in a crowded theater,” he said, referring to speech that is not protected by the First Amendment.
That the sheriff’s lawyer is misusing the much-maligned “fire in a crowded theater” argument from Schenck v. United States is a huge tell that these guys don’t have a leg to stand on. It’s a bad argument, a bad precedent (it was about censoring anti-war activism), and the Supreme Court has subsequently weakened that decision and broadened our free speech protections.
And even if that ruling remained relevant, Amyiah Cohoon was not engaging in the equivalent of “shouting fire in a crowded theater.” Because of the significant number of false negative test results, it’s appropriate for health staff to treat her as though she likely has COVID-19 based on her symptoms. It’s also appropriate for the Cohoon family to attempt to warn families of the students who went with her to Florida that they might have been exposed, too.
It’s the school officials and the police who behaved irresponsibly, not Amyiah or her family.
State Sen. Van Wanggaard (R–Racine) wrote a letter to ask Gov. Tony Evers these questions:
This is a much different letter than I had been intending to write you prior to yesterday. Out of respect for your office, the difficult decisions you or your staff are making and the unprecedented time facing this country, I have largely avoided publicly criticizing your decisions during the pandemic. However, your unilateral decision yesterday to extend your “Safer at Home” order has forced a different approach.
In publicly announcing your extension of your “Safer at Home” order, you stated, as you have in the past, that you were relying on “science” to make the decision to shutter the state for six more weeks. As a former police officer, I too rely on science, specifically, evidence and data to make conclusions.
Therefore, to properly evaluate the wisdom of your unilateral decision to extend the economic hardship in Wisconsin past Memorial day, I would ask you to answer the following questions citing the current Wisconsin data and evidence you used to reach to your decision.
1. When putting in place your order for the initial four weeks, it was explained that this time period was chosen for the purpose of preventing the disease’s spread for two, 2-week, incubation periods. What in the science of the disease has changed that now recommends four-and-a-half, 2-week, incubation periods?
2. How many people in Wisconsin that tested positive for the disease no longer test positive for the disease? That is to say, how many people have “recovered”, according to testing results?
3. What are the specific criteria used to determine if someone has died specifically because of COVID-19, as opposed to an underlying health condition?
4. How many people have required hospitalization specifically for COVID-19 and not underlying health conditions and how many have required treatment in ICUs or with ventilators? What is the current (as of the day of your response) number of people a) hospitalized, b) in ICU, and c) on ventilators in Wisconsin? What percentage of Wisconsin’s health care capacity does that represent?
5. You have extended “Safer at Home” until May 26, 2020. What evidence do you have that a 9-week quarantine order will decrease the infection and death rate from COVID-19?
6. You extended your “Safer at Home” order only 3-weeks into its initial period. Given that the initial order was not concluded before your extension, the data from the initial order is incomplete. How did you conclude from incomplete data that the quarantine must be more than doubled?
7. Your extended “Safer at Home” order expires on May 26, 2020, yet you cancelled school for the remainder of the school year, which is generally the first or second week on June. Why did you cancel school for an additional 2-3 weeks following the expiration of the Safer at Home order? Why is it safe for people to “start going back to normal” on May 26, but not safe for children to go to school until September? Again, please use science and data in your answer.
8. How many “elective” surgeries have been postponed or delayed during your Public Health Emergency? Has there been any quantification of the economic costs of the delays to hospitals and patients? How many deaths have occurred because of these delays? To the extent you have any documentation, please provide it under Wisconsin’s Open Records Law.
9. How many colonoscopies have been forced to be cancelled because of our public health emergency? Given the typical rate of cancer discovery during colonoscopies, how many people do you estimate have colon cancer but are unaware because of a delayed or postponed colonoscopy?
10. There is anecdotal evidence of the increase in suicides during the public health emergency. How many people have taken their own lives, or attempted to, since Emergency Order #12, and how does that number compare with the same time period last year?
11. How many police calls for domestic abuse and child abuse have been made since Emergency Order #12, and how does that compare to the same time period last year?
12. The evidence provided by your Department of Health Services finds that 84% of Wisconsin’s COVID-19 cases and 85% of COVID-19 deaths come from 9 of Wisconsin’s 72 counties, and that most of these counties are located in southeastern Wisconsin. What is the rationale for keeping the remaining 63 counties and 4 million people homebound and out of work given their miniscule infection rate?
13. What do the COVID-19 rates in Ohio, Michigan, Indiana, Illinois, Kentucky and Minnesota have to do with reopening Wisconsin’s economy and allowing Wisconsinites to travel as they wish?
14. What Wisconsin-based metric are you using to evaluate the end-date for the Safer at Home Order and restart the strong Wisconsin economy you inherited?
15. Given that a vaccine is unlikely to be produced within a year, with mass-production taking even longer, and that humankind has never cured a virus, what faith should Wisconsinites have that you will reopen the state given your public comments about needing a vaccine or cure?
16. How many businesses does your administration estimate will be forced to close permanently due to the Safer at Home order? To the extent your office has written documentation, please provide it under Wisconsin’s Open Records Law.
17. How many Wisconsin businesses have applied for the 2020 or PPP program, and how many employees are employed by those businesses?
18. How many jobs does your administration estimate will be lost due to the Safer at Home order? To the extent you have written documentation, please provide it under Wisconsin’s Open Records Law.
19. You have closed 40 state parks. How many state workers are employed at those 40 parks, and how many have been furloughed since the parks have been closed?
20. How does prohibiting the use of public boat launches and individual fishermen stop the spread COVID-19?
21. What is your plan for reopening the state’s economy?
22. Have you specifically shared your reopening plan with ANY Wisconsin legislator? If so, who? If not, why not?
The questions I have asked are not unreasonable or “trap” questions. In fact, the questions I have asked should have been considered long before both making and then extending your Safer at Home order.
The questions I have asked are direct. That is because the people of Wisconsin deserve direct answers. I ask that you answer them as directly as I have asked them.
I look forward to your response, preferably prior to your original “Safer at Home” end date of April 25, 2020.
“Since the beginning of Wisconsin’s Covid-19 response we have repeatedly witnessed an uneven leadership from Governor Tony Evers and DHS Secretary-Designee Andrea Palm in regards to their use of public health orders. In early March, they utilized modeling developed by DHS with dire projections of cases and deaths to justify enactment of harsh restrictions on the people and businesses of Wisconsin. That model was proven to be flawed since it relied heavily on questionable data from China and Italy.
Each passing week, Secretary-Designee Palm increasingly stoked fears in her briefings of pending and unavoidable spikes in Covid-19 cases statewide, even though actual data on Covid-19 has been stable and the so-called “curve” has flattened.
Governor Evers and DHS have shown no concerns regarding the highly negative impacts of their orders on the economy and the ability of the public to access health care treatments for other serious medical concerns. That lack of addressing broader health care access for non-Covid-19 issues in fact jeopardizes the health of many citizens in need of care.
[Thursday], Governor Evers and Secretary-Designee Palm extended the order but claimed there were significant loosening of the rules. However, upon closer inspection of the new order it has key parts that are in reality tightening of the current rules for many businesses. The new order even seems to encourage local governments to close their parks and public spaces if a small number of citizens don’t cooperate.
It is now abundantly clear that Governor Evers’ administration will not act reasonably in developing a phased plan to safely reopen Wisconsin without being forced to by the people, the legislature and the courts.
I recommend the following actions should be taken in response:
1.) Impacted citizens, businesses and the legislature should consider filing lawsuits challenging elements of the order and the constitutionality of provisions of Chapter 252 of the Wisconsin Statutes (the power of DHS and local health departments to issue public health orders).
2.) An extraordinary session of the legislature should be convened to pass legislation limiting the expansive powers of the DHS and local health departments in issuing public health orders without proper justification and a process for reasonable legislative oversight and ability to end orders by joint resolution.
3.) During the same extraordinary session the State Senate should consider the executive appointment of Andrea Palm as DHS Secretary and reject it.
4.) Call upon Governor Evers to work with the legislature to craft a plan to address public health in response to Covid-19 and safely reopen Wisconsin utilizing CDC guidelines on social distancing, operation of businesses, K-12/higher education and churches/religious entities. The plan should prioritize compliance with constitutional limitations on government, provide the necessary Covid-19 testing resources and enhancing the supply of PPE.”
In these unprecedented times, citizens and business across our state have been drastically impacted by the government shutdown of our economy during the COVID-19 crisis. However, the Executive Branch does not have unchecked authority in such a crisis. To impair fundamental rights – as gathering bans, etc. do – the government must have a compelling state interest to do so AND must do so in a narrowlytailored and least restrictive means possible under the constitution. Without additional clarity by the executive branch, it is clear that this authority has been exceeded. During this and future times of crisis, the people of Wisconsin need the surety, specificity, and constitutional consideration that would come from actions of the Legislature done in coordination with the Executive Branch. In an effort to alleviate the uncertainty surrounding the cascade of Emergency Orders and the negative impacts they have had on our fundamental civil liberties and the state’s economy, I am introducing legislation to provide legislative oversight of the Executive Branch during times of emergency or pandemic. The measures include: – Requiring legislative approval of any statewide “shelter-in-place” order for reasons of pandemic or infectious disease – Requiring legislative passive review of any “Emergency Declaration” after 30 days, with affirmative approval needed for a state of emergency lasting longer than 60 days – Requiring a written report detailing the satisfaction of strict scrutiny concerns be given to the legislature prior to a ban of gatherings of 50 or fewer is to be in effect – Requiring an immediate report to the legislature of arrests for mass gathering violations These are measured and appropriate checks which re-assert the Legislature’s role in establishing the appropriate, constitutionally-required balance between public safety, economic impact, and constitutional rights in times of emergency.
Remember when legislators were concerned about the role of the legislative branch in balance of power in government? Notice how silent Democrats in the Legislature have been about their governor’s usurping power? (Republicans didn’t bring that up either under Gov. Scott Walker.)
Palm needs to go, and Evers and whoever replaces Palm needs to be reigned in. No one elected a DHS secretary — or, for that matter, county health departments — to have dictatorial power.
As we complete the fourth week of lockdown, many Wisconsinites are wondering how long this extraordinary state of affairs can continue and how it might end. And what happens if the Governor and Legislature cannot agree on what happens next?
These questions were given fresh urgency [Thursday] after DHS Secretary-designee Angela Palm unilaterally determined that the “Safer at Home” order would continue through May 26, 2020, beyond the expiration of the Governor’s emergency declaration. But does the Evers administration really have the authority to order the widespread closure of churches, schools and businesses for another month without legislative input?
The following is an analysis of whether the Governor has that authority. While a stay-at-home order is subject to various constitutional limitations, it does not address what particular combination of legally permissible social-distancing provisions would be best.
Wisconsin under a Public Health Emergency
On March 24, Governor Evers issued Emergency Order #12, the so-called “Safer at Home” Order. The Order currently expires on its own terms at 8:00 a.m. on Friday, April 24, 2020, and cites two sources of legal authority. While it is on the joint letterhead of Governor Evers and Secretary-designee Andrea Palm, the Acting Secretary of the Department of Health Services (“DHS”), it is signed solely by Secretary-designee Palm, who claims the authority under Wis. Stat. 252.02(3) and (6). The Order also relies upon Governor Evers’ Executive Order #72 (declaring a public health emergency).
Then, with the expiration of Order #12 looming, on April 16, 2020, Secretary-designee Palm issued an updated version of the Order, Order #28, which takes effect upon the expiration of the first order and is itself set to expire at 8:00 a.m. on Tuesday, May 26, 2020. Like Order #12, Order #28 is on joint letterhead and signed solely by Secretary-designee Palm. Unlike Order #12, however, it does not rely on Governor Evers’ Executive Order #72; it relies on Wis. Stat. 252.02(3), (4), and (6).
The legal authority of Governor Evers and Acting Secretary-designee Palm
The Governor’s Emergency Declaration. Governor Evers issued Executive Order #72 on March 12, 2020. In that Order, he declared that a public health emergency existed in Wisconsin due to COVID-19 and designated the Department of Health Services (DHS) as the lead agency to respond to this emergency. Once an emergency is declared, the Governor has apparently broad power under Chapter 323 of our statutes. For example, Wis. Stat. 323.12(4)(b) says that, upon the declaration of a state of emergency, the Governor may issue “such orders as he or she deems necessary for the security of persons and property.” But these powers are not as extensive as they might first appear to be. They are subject to limits imposed by the state constitution and may be construed narrowly by the courts. For example, the Wisconsin Supreme Court recently held that Chapter 323 does not authorize the Governor to rewrite or suspend statutes and, therefore, ruled that he may not postpone an election set by state statute. Wisconsin Legislature v. Evers, Case №2020AP608-OA (Wis. Apr. 6, 2020)
In addition, declarations of an emergency have a shelf life. They may continue for sixty days unless they are revoked by a joint resolution of the Legislature. They may be extended beyond those sixty days only by a joint resolution of the Legislature. In other words, the emergency can be ended by the Legislature at any time and can continue after sixty days only if the Legislature votes to extend it. For this reason, the emergency declared by Executive Order #72 will end on May 11, 2020. Unless the Legislature passes a joint resolution extending the emergency, the Governor’s emergency powers under Chapter 323 will expire. The second Safer at Home order appears to recognize this fact; gone is any reliance on authority provided under Order #72.
DHS Powers Under Chapter 252. But that is not the end of the matter. As noted earlier, Order #12 ordering Wisconsin residents to stay home subject to certain sections also invokes powers granted to it by Sections 252.02(3) and (6). And Order #28 adds reliance on 252.02(4).
Section 252.02(3) states that “[t]he department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics, and Section 252.02(6) states that “[t]he department may authorize and implement all emergency measures necessary to control communicable diseases.” Finally, sub. (4) authorizes Secretary-designee Palm to “promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease and for the sanitary care of jails, state prisons, mental health institutions, schools, and public buildings and connected premises.”
The powers of DHS without a Public Health Emergency declaration
To begin, we must engage in some close legal reasoning. Courts must construe the powers conferred on the Governor by Chapter 323 and those conferred by on DHS by chapter 252 together. They cannot read one (chapter 252 giving DHS the power to, among other things, forbid public gatherings) in a way that renders the other (chapter 323 giving the Governor the power to declare a public health emergency) superfluous. If chapter 252 allows a gubernatorial appointee (Secretary-designee Palm) to do everything that the Governor can do under Chapter 323, only without the limits imposed on the declaration of a public emergency, then Chapter 323 becomes meaningless. That won’t happen.
So, we begin with at least a very strong presumption that the powers conferred by Chapter 252 are different than those authorized by Chapter 323. What might that mean? We have almost no case law construing these statutes. But if the Legislature ends the state of emergency, it is reasonable to conclude that DHS would lose its powers under section 252.02(6), since that section only refers to “emergency” measures. In fact, DHS may also lose its authority under section 252.02(3) and (4) to close schools and forbid public gatherings and the like because, even though those provisions do not reference an “emergency,” it would make no sense to grant broader powers to DHS than to the Governor. In addition, if there is no longer a public health emergency, there is no longer a legal basis to conclude that closing schools or forbidding public gatherings or issuing similar orders is required to “control outbreaks and epidemics” or to “control and suppress[] . . . communicable diseases.” Whether the Legislature would be correct to decline to extend the public health emergency is a different question. It is a matter of policy and not law which courts are very unlikely to second guess.
Thus, the bases for the Safer at Home Order (or any similar order) would likely not survive an end to the Governor’s emergency declaration.
Second, even if it could be argued that DHS’s powers under Section 252.02(3)-(4) could survive the Legislature’s refusal to extend a state of emergency, there would still be significant constitutional and statutory limitations on what DHS could lawfully do.
Let’s begins with limits imposed by the statute itself. Under sub. (3), DHS’s powers are specifically limited to closing schools and forbidding “public gatherings in schools, churches and other places.” Closing schools is relatively straightforward but what is a “public gathering?” The statute doesn’t tell us and the term has not been considered by the courts. At minimum, it cannot apply to small groups of friends and family.
Nor does it seem likely to apply to the operation of many businesses. Patronage of a retail store or business providing personal services would not normally be considered a “public gathering.” The functioning of an office or a factory would not typically be called a public gathering. A landscaper or painter coming to a home does not create a public gathering. In addition, under standard rules of statutory construction, the “other places” referred to must be places like schools and churches. Residences and private businesses are not in that category.
While counter-arguments can and will be made, it seems likely that, even if Secretary-designee Palm can continue to issue orders under Chapter 252 after Governor Evers may no longer issue them under Chapter 323, the public gatherings that she can forbid are likely to be limited to large assemblies.
At first glance, sub. (4) might appear to be a more open-ended grant of authority in terms of what it allows Secretary-designee Palm to regulate. But the power delegated by sub. (4) is bounded by the requirement that Secretary-designee Palm “promulgate and enforce rules or issue orders.” The promulgation of a rule involves substantial legislative oversight and an opportunity for public comment. And it would be absurd to allow Secretary-designee Palm to circumvent these safeguards by simply issuing orders. Consequently, the ability to issue an order is best read to allow Secretary Palm to enforce compliance with existing laws or rules, not to create new administrative powers out of whole cloth. In addition, the provision permitting DHS to take steps “for the control and suppression of communicable diseases” must itself be read consistently with sec. 252.03 and, to the extent that DHS seeks to forbid assemblages of persons, it may not go beyond the limitations implicit in the latter section.
Constitutional limits on emergency powers
That’s just the statutory analysis. In addition, any order issued by either Governor Evers or Acting Secretary-designee Palm are subject to constitutional limitations. As a general matter, the interest that the government seeks to advance must be balanced against the restriction on liberty and must be sufficiently narrow. That balancing will be most exacting when a restriction — here the forbidding of a public gathering, for example — burdens a fundamental constitutional right such as the freedom of speech and assembly, the right to worship, and the ability to maintain family relationships. Closing of schools in a way that impairs the right to a free and uniform public education may also be more closely scrutinized. Other fundamental rights may be implicated as well. This judicial scrutiny will ask not only if some restriction is warranted, but also whether the particular restriction is narrowly tailored to what is necessary to control the spread of the virus.
While courts will be more deferential to restrictions on public gatherings that do not implicate fundamental rights, the state will have to offer some justification. Whether a fundamental right is implicated or not, as time goes on, the underlying circumstances of the pandemic may limit whatever authority DHS retains. For example, when the Safer at Home Order was issued the number of COVID-19 cases in Wisconsin was rising rapidly. That is no longer true. Per the graph published by the New York Times on April 16, 2020, the curve in Wisconsin has flattened and even bent downward:
Whether or not the trend in the spread of the virus is due to social distancing or what turned out to be an overly pessimistic view of the virus’ likely course, the situation on the ground will eventually impact the constitutional analysis. While this may not be true today — courts are likely to be broadly deferential — a continuation of what seems to be the current trend will matter.
Finally, something must be said about the Legislature’s ability to delegate authority to Secretary-designee Palm and the Department of Health Services. Under what is known as the nondelegation doctrine, the Legislature may not simply give away its legislative power to an executive branch agency. It must either provide strict standards on its exercise or adequate procedural safeguards to ensure that the agency does not become a miniature Legislature. DHS’ ability to issue sweeping orders only vaguely authorized by broadly-worded statutes is far from clear.
Conclusion
My purpose here is not to suggest what “should” happen in the coming weeks. That question is separate from the legal analysis which goes to who decides and what constitutional limits they face. Nor is this a law review article or a brief to a court. I have provided a broad and general summary about which more can and will be said. But claims that the Governor — or his appointee — can unilaterally extend the current state of affairs indefinitely may very well be wrong. If that’s so — and I think it is — then the next phase of Wisconsin’s response to the virus not only has to comport with our Constitution, but has to be agreed to by the Governor and the Legislature. It has to enjoy bipartisan support. And in extraordinary times such as these, that is how it should be. Unfortunately, Governor Evers’ new Safer at Home Order eliminates that possibility.
None of these are questions the state media have been asking. The state media has been a giant steaming heap of failure during the coronavirus crisis, failing to ask such Journalism 101 questions as “how” and “why,” and failing to question premises.
The creator of the video mispronounced the last name of Jaqueline “bis-SET,” but otherwise the video is entertaining since it includes the key Lalo Schifrin music.
Another video compares the 1968 locations to today:
Apparently the best car chase in the history of entertainment …
Steve Prestegard.com: The Presteblog 