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OPINION: Law in the time of corona (updated)

By ThisIsReno

Submitted by Jerry Snyder

On March 17, Gov. Steve Sisolak announcedmeasures to mitigate the spread of novel coronavirus and the resulting Covid-19 illness, including:

  • Only essential services should remain open;
  • Restaurants should be closed to in-room dining and only offer take-out food.
  • Pubs, wineries, bars, and breweries that do not serve meals must close;
  • Gatherings should be postponed or canceled;
  • Gaming machines, devices, tables, games, and other equipment related to gaming activity will be shut down.

At the outset, I want to emphasize that I do not question the practical necessity of any of these mitigation measures. Gov. Sisolak impresses me as a serious person who is doing his best to get good advice and act on that advice in a measured and reasonable manner. Nonetheless, if this is your first apocalypse then you may, like me, be wondering how the governor can simply issue a press release that has such a far reaching effect on broad swaths of the economy. Here is what I have been able to glean:

First, there seems to be some uncertainty about the scope of the governor’s press release – and at this time, a press release is pretty much all there is. While the governor’s announcement has been widely reported as an “order” that all non-essential businesses close, many of these mitigation measures are identified as steps people and businesses “should” take.

For example, “only essential services should remain open,” and gatherings “should be canceled or postponed.” By contrast, some measures are stated in mandatory language: “Pubs, wineries, bars, and breweries… must close,” and gaming activity “will be shut down.” The governor has issued an Emergency Directive requiring gaming to cease and casinos to close, but not one addressing other closure issues.

Because no formal executive order or emergency directive has been issued that speaks to much of the business closure order, there is uncertainty as to the precise extent of mitigation measures, the legal basis for such measures, or the penalty for noncompliance with such measures. It is not really clear whether the “order” to close is an enforceable legal requirement, or merely a strongly worded request.

News reports indicate that some law enforcement agencies are viewing the governor’s press release in ways that range from outright disregard in White Pine County to enforcement through fines in Washoe County.

For this reason, I am, to some degree, speculating as to what the governor’s office will assert provides a basis for the mitigation measures. I have asked the governor’s office for this information, but have not had any reply. (Understandable, I’m sure everyone there has plenty to do right now.)

Under the United States constitutional structure, state governments have “plenary police powers.” That means that states have the right to enforce order and regulate behavior pretty much however they see fit, so long as they don’t trample on a constitutionally protected right. Under Nevada law, the governor can exercise this police power in three ways that are applicable to the coronavirus crisis.

1. Emergency Management Powers

The governor’s authority to issue orders during an emergency is very broad. Nevada Revised Statute Chapter 414 sets forth the governor’s emergency powers. Under NRS 414.0345, an emergency means:

An occurrence or threatened occurrence for which, in the determination of the Governor, the assistance of state agencies is needed to supplement the efforts and capabilities of political subdivisions to save lives, protect property and protect the health and safety of persons in this state, or to avert the threat of damage to property or injury to or the death of persons in this state.

NRS 414.070 lists the powers that the governor may exercise when the governor or legislature has declared a state of emergency. This list of power concludes with a catch-all provision: the governor has the power to “perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.”

There is virtually no Nevada case law interpreting the scope of the governor’s emergency powers. The Nevada Attorney General’s office has taken the position that the only limit to the governor’s emergency powers is the state constitution. This provides some limitations, for instance, the Nevada constitution does specifically provide that “The people shall have the right freely to assemble together to consult for the common good, to instruct their representatives and to petition the Legislature for redress of Grievances.”

If the Governor’s emergency powers are limited by the constitution, an order limiting the right to assembly may not be valid. The governor’s careful use of the word “should” in connection with many of these mitigation measures suggests a tacit acknowledgment that there may be some untested limitations on the governor’s authority to order mitigation measures in a way that is legally enforceable – no matter how medically necessary. Still, in the face of a pandemic of uncertain scope, I suspect courts would be very hesitant to find that the governor colored outside the constitutional lines in issuing mitigation rules.

There is one very explicit, and very Nevada, limitation on the governor’s emergency powers: no matter how bad it gets, they can’t take away your guns. NRS 414.155.

2. Quarantine Rules

Nevada’s quarantine statute, NRS 441A.510 et. seq., gives the state the power to impose quarantines. Health authorities must also isolate or quarantine a person or group of persons “exposed to, or reasonably believed by a health authority to have been infected with or exposed to a communicable disease.”

However, this statute does not contemplate the imposition of broad limitations on the entire population for the purpose of slowing the spread of a disease. Rather, that allows only for the isolation or quarantine of individuals actually exposed to the virus. The quarantine rules do not discuss whether quarantined persons can hold on to their guns.

3. Martial Law

To my knowledge, Gov. Sisolak has not announced that the state is considering the imposition of martial law. However, California’s governor, Gavin Newsom, has stated that this is a consideration, so I will mention it briefly. Under NRS 412.122, the governor may order the National Guard into active service: “in case of invasion, disaster, insurrection, riot, breach of the peace, or imminent danger thereof, or other substantial threat to life or property.”

NRS 441.122 concludes with section 4:

Whenever any portion of the Nevada National Guard is employed pursuant to subsection 1, the Governor, if in his or her judgment the maintenance of law and order will thereby be promoted, may by proclamation declare the county or city in which the troops are serving, or any specified portion thereof, to be under martial law.

The statute does not define what powers the state has in the event that martial law is imposed. As a general rule, martial law would mean that the military can exercise police powers and try civilians in military court.

So, to sum up, in the event of an emergency, the governor can take almost any steps that he deems necessary, so long as (1) he doesn’t take your guns, and (2) he doesn’t trample on constitutional rights to such a degree that a court will act to enjoin some government action. The only real limitations seem to be the good judgment of the governor and the next election.

Within hours of publication of this column, Gov. Sisolak issued Emergency Directive No. 3 which clarified the extent of the closure order, defined penalties for violations, and clarified that the legal authority for the action was found in NRS 414. View the Declaration of Emergency here.

Submitted opinions do not necessarily reflect the views of This Is Reno. Have something to say? Submit an opinion article here.

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