AG: Local police can enforce Ducey’s ‘physical distancing’ order

Photo by Nick Youngson | Alpha Stock Images/CC BY-SA 3.0

Local law enforcement has the authority under state law to enforce Gov. Doug Ducey’s “enhanced physical distancing” order to combat the spread of COVID-19 that went into effect at 5 p.m. Tuesday, Arizona Attorney General Mark Brnovich wrote in a legal opinion.

“As a matter of law, local law enforcement officials and county sheriffs have authority to enforce provisions of lawful emergency declarations…,” Brnovich wrote Tuesday afternoon in an opinion that was requested by state Sen. Paul Boyer, R-Glendale.

That authority extends to emergency orders issued by cities and counties, as well.

However, Brnovich cautioned that municipal police departments and county sheriff’s offices “must take care to maintain constitutional safeguards that exist to protect individual rights and fundamental liberties.” They also must “enforce the law in a manner that promotes justice.”

The state’s emergency management laws require that people follow emergency orders issued by the governor, state agencies, counties and cities. Ducey has issued a number of executive orders related to COVID-19, including the most recent one, which requires people to stay in their homes except to seek “essential services,” including grocery shopping and going to the doctor. Ducey has also deemed other things “essential” during the pandemic, including going to the beauty parlor or barber, playing golf and using a public hiking trail.

In mid-March, cities began declaring states of emergency because of COVID-19 and the coronavirus, which causes the illness, and limiting commerce in significant ways. The most prominent restrictions were the closing down of bars and restaurant dining rooms in places like Phoenix and Tucson, though restaurants were allowed to prepare food for takeout or delivery.

The night the closures went into effect in Phoenix, four Republican lawmakers mocked the emergency social distancing measures, posting a photo taken in the dining room of a swanky Phoenix steakhouse. 

Brnovich’s opinion concludes that, had Phoenix police been present, they could have cited the legislators – and the restaurant owner – for violating the emergency order. State law says that such violations are a class 1 misdemeanor, punishable by up to six months in jail.

The attorney general noted that law enforcement must “be mindful of the constitutional and statutory liberties” Arizonans have when enforcing emergency orders. For example, there are due process rights that must not be ignored, Brnovich noted.