Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 1 of 23 3 Joseph Martin McGhee P.O. Box 91 Flagstaff, AZ 86002 Tel: (928) 600-0954 mcghee.v.city.of.flagstaff.et.al@gmail.com 4 Plaintiff, in Pro Per 1 2 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Joseph Martin McGhee, No. 3:20-cv-08081-GMS Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF vs. PLAINTIFF’S AMENDED EMERGENCY EX PARTE The City of Flagstaff; Coral Evans, Sued in MOTION FOR TEMPORARY her Official Capacity as Mayor of the City of RESTRAINING ORDER AND Flagstaff; Doug Ducey, Sued in his Official PRELIMINARY INJUNCTION Capacity as Governor of the State of Arizona, Assigned to the Hon. G. Murray Snow Defendants. 15 TABLE OF CONTENTS 16 17 I. ISSUES PRESENTED............................................................................................6 18 II. ARGUMENT...........................................................................................................6 19 20 21 22 23 A. Executive Order #2020-33 Is An Unlawful And Unconstitutional Per Se Mass Quarantine. It Violates The Fifth And Fourteenth Amendments To The United States Constitution........................................................................................6 1. Quarantine And Due Process Rights.................................................7 2. Requirements Under Arizona Law For Quarantine.........................................................................................9 24 a. Quarantine By Court Order....................................................9 25 b. Summary Quarantine............................................................10 26 27 3. Executive Order #2020-33 Is A Per Se Summary Mass Quarantine.............................................................11 28 1 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 2 of 23 1 4. Executive Order #2020-33 Infringes Upon The Fifth Amendment Because It Restricts Freedom Of Movement Without Procedural Due Process.....................................................................................11 5. 5 Executive Order #2020-33 Violates The Substantive Due Process Requirements Of The Fourteenth Amendment...................................................................11 6 a. Executive Order #2020-33 Violates A Specific Liberty Interest.......................................................13 b. Executive Order #2020-33 Shocks The Conscience............................................................................15 2 3 4 7 8 9 B. 10 11 12 Governor Ducey's Declaration Of Emergency Is Unsupported By Law.................................................................................16 1. The (Ordinary) Meaning Of “Extreme Peril”..................................17 2. The COVID-19 Pandemic Does Not In Any Manner Represent “A Very High Degree Of Exposure To The Risk Of Death”....................................................17 13 C. 14 The Court Should Grant Preliminary Injunctive Relief..............................18 1. 16 Plaintiff Will Suffer Irreparable Injury Should Enforcement Of Executive Orders #2020-33 Not Be Enjoined..............................................................................18 17 a. 15 18 19 20 21 2. Plaintiff Has Established A High Likelihood Of Success On The Merits Of His Claims............................................19 3. The Balance Of Equities Tips Favorably Towards Preliminary Injunctive Relief..........................................................20 4. Preliminary Relief Is In The Public Interest – It Will Serve The Public Interest And Will Not Harm Governor Ducey...............................................................................20 22 23 24 25 26 The Unlawful Infringement Upon A Constitutional Right Is An Irreparable Harm Sufficiently Giving Rise To Injunctive Relief...................................................................19 III. RELIEF REQUESTED.........................................................................................21 IV. CONCLUSION.....................................................................................................21 27 28 2 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 3 of 23 TABLE OF AUTHORITIES 1 2 CASES 3 Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).........................................9 Aptheker v. Sec. of State, 378 U.S. 500, 520 (1964)...........................................................................................13 Bennett v. Boggs, 1 Baldw. 60 (1830).....................................................................................................16 Carey v. Piphus, 435 U.S. 247, 259 (1978)............................................................................................9 Carolene Products Co. v. United States, 323 U.S. 18, 26 (1944)...............................................................................................18 Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010)..............................................................................22 Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989).....................................................................................18 Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 387, 22 S.Ct. 811, 46 L.Ed. 1209 (1902).............................................7 County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)............................14, 16 Crandall v. State of Nevada, 73 U.S. 35 (1867).......................................................................................................13 Daniels v. Williams, 474 U.S. 327, 331 (1986).....................................................................................14, 21 Dunn v. Blumstein, 405 U.S. 330, 342 (1972)...........................................................................................13 FDIC v. Meyer, 510 U.S. 471, 476 (1994)...........................................................................................18 Foucha v. Louisiana, 504 U.S. 71, 80 (1992)...............................................................................................16 Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004).............................................................................................8 Hertado v. California, 110 U.S. 516 (1884)...................................................................................................16 Hicks v. Churchich, 161 F.3d 1030, 1040–42 (7th Cir. 1998)....................................................................16 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 49 L.Ed. 643 (1905)...................................................7 Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002)..............................................................................13 Kansas v. Hendricks, 521 U.S. 346, 356 (1997)............................................................................................8 Kent v. Dulles, 357 U.S. 116, 125–26 (1958).....................................................................................13 Martinez v. City of Oxnard, 337 F.3d 1091, 1092 (9th Cir. 2003)..........................................................................14 Miller v. Reed, 176 F.3d 1202 (9th Cir.1999).....................................................................................13 Mitchell v. W.T. Grant Co., 416 U.S. 600, 624, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).........................................8 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 4 of 23 12 Mugler v. Kansas, 123 U.S. 623, 661 (1887)............................................................................................8 Ogden v. Gibbons, 22 U.S. (9 Wheat.) 1,203, 6 L.Ed. 23 (1824)..............................................................8 Palko v. Connecticut, 302 U.S. 319, 324-25 (1937).....................................................................................16 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)...................................................................................................16 Paul v. Virginia, 75 U.S. 168 (1869).....................................................................................................13 Shachtman v. Dulles, 225 F.2d 938 (D.C. Cir. 1955)...................................................................................13 Shapiro v. Thompson, 394 U.S. 618, 638 (1969)...........................................................................................13 Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960)..............................................10, 17 Sullivan v. Stroop, 496 U.S. 478, 483 (1990)...........................................................................................18 United States v. Guest, 383 U.S. 745, 758 (1966)...........................................................................................13 Zadvydas v. Davis, 533 U.S. 678, 690 (2001)...........................................................................................15 Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)........................................8 13 ARIZONA STATUTES 14 A.R.S. § 26-301..........................................................................................................17, 18 A.R.S. § 26-303..........................................................................................................17, 18 A.R.S. § 36-711............................................................................................................7, 12 A.R.S. § 36-787....................................................................................................10, 16, 22 A.R.S. § 36-788....................................................................................................10, 16, 22 A.R.S. § 36-789........................................................................................10, 11, 12, 17, 22 1 2 3 4 5 6 7 8 9 10 11 15 16 17 18 CONSTITUTION U.S. Const. Amend XIV...................................................................................................13 19 OTHER AUTHORITIES 20 Daubert, Michelle A. Comment, Pandemic Fears and Contemporary Quarantine: Protecting Liberty Through a Continuum of Due Process Rights, 54 Buff. L. Rev. 1299, 1318 (2007)......................................................................8, 10 21 22 23 24 25 26 Hawryluck, Laura et al., SARS Control and Psychological Effects of Quarantine, Toronto, Canada, 10 Canadian J. Psychiatry 1206, 1209–11 (2004).........................................9 Robertson, Emma et al., The Psychosocial Effects of Being Quarantined Following Exposure to SARS: A Qualitative Study of Toronto Health Care Workers, 49 Canadian J. Psychiatry 403, 404–06 (2004)...........................................................9 27 28 4 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 5 of 23 1 2 3 4 5 Rosen, George. A History of Public Health. Baltimore: Johns Hopkins University Press, 1993......................................................7 Swendiman, Kathleen S. & Elsea, Jennifer K., Cong. Res. Serv., Federal and State Quarantine and Isolation Authority (2007)..........................................................................................................7 U.S. Centers for Disease Control, Quarantine and Isolation, https://www.cdc.gov/quarantine/index.html, Accessed April 26, 2020............................................................................................19 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 6 of 23 1 I. 2 3 1. Whether or not Executive Order #2020-33 violates the Fifth and Fourteenth Amendments of the United States Constitution. 4 5 2. Whether or not Executive Order #2020-33 is a per se summary mass quarantine in violation of Arizona law. 6 3. 7 and warranted. Whether or not immediate injunctive relief is reasonable, appropriate, just, 8 9 ISSUES PRESENTED II. A. ARGUMENT Executive Order #2020-33 Is An Unlawful And Unconstitutional Per Se Mass 10 Quarantine. It Violates The Fifth And Fourteenth Amendments To The United 11 States Constitution. 12 Quarantine is “the separation and restriction of movement of persons who, while 13 not yet ill, have been exposed to an infectious agent and therefore may become 14 infectious.”1 In contrast to isolation which separates sick people with a contagious 15 disease from people who are not sick, 2 quarantine confines those who are asymptomatic 16 and healthy.3 Under Arizona law, the word “quarantine” as applied to persons – as 17 opposed to livestock or plants – is defined under a single statute as “the restriction of 18 activities of persons who have been exposed to an afflicted person.” 4 19 The U.S. Supreme Court has repeatedly upheld the rights of state public health 20 authorities to impose quarantines for the protection of the public. 5 Clearly, a 21 1 See Rosen, George. A History of Public Health. Baltimore: Johns Hopkins University Press, 1993 2 Quarantine and Isolation, U.S. Centers for Disease Control, https://www.cdc.gov/ quarantine/index.html, Accessed April 26, 2020 3 See Kathleen S. Swendiman & Jennifer K. Elsea, Cong. Res. Serv., Federal and State Quarantine and Isolation Authority (2007), https://biotech.law.lsu.edu/cases/ pp/RL33201.pdf, Accessed April 26, 2020 4 See A.R.S. § 36-711(19) 5 See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (recognizing the "authority of a state to enact quarantine laws and health laws of every description") (internal quotations and citations omitted); see also Compagnie Francaise de Navigation a Vapeur v. La. State Bd. o f Health, 186 U.S. 380, 22 23 24 25 26 27 28 6 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 7 of 23 1 symptomatic person who is infected with a serious disease that will spread from person 2 to person rightly prompts the severe governmental action of isolation. In those cases 3 individual liberty interests necessarily give way to protect the public in an emergency. 6 4 Nevertheless, Due Process requirements are not abridged by the imposition of a 5 quarantine.7 6 1. 7 The Fifth and Fourteenth Amendments prohibit governments at all levels from 8 depriving individuals of any constitutionally protected liberty interest without due 9 process of law. Federal and state quarantine laws are therefore subject to constitutional 10 due process constraints. Procedural due process requires that a deprivation of liberty be 11 "accompanied by minimum procedural safeguards, including some form of notice and a 12 hearing."8 Quarantine And Due Process Rights 13 The U.S. Supreme Court declared being free from physical detention by one’s 14 own government is “the most elemental of liberty interests.” 9 It is well settled that 15 freedom from physical restraint is a “liberty interest” protected by the due process clause 16 of the Fourteenth Amendment.10 Due process generally requires notice and a hearing in 17 advance of a deprivation of liberty.11 This is most salient in the context of quarantining 18 19 20 21 22 23 24 25 26 27 387, 22 S.Ct. 811, 46 L.Ed. 1209 (1902) ("[T]he power of States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants ... is beyond question."); Ogden v. Gibbons, 22 U.S. (9 Wheat.) 1,203, 6 L.Ed. 23 (1824) (a state has the power "to provide for the health of its citizens" by quarantine laws) 6 See Michelle A. Daubert, Comment, Pandemic Fears and Contemporary Quarantine: Protecting Liberty Through a Continuum of Due Process Rights, 54 Buff. L. Rev. 1299, 1318 (2007) 7 See Mugler v. Kansas 123 U.S. 623, 661 (1887)(“It does not at all follow that every statute enacted ostensibly for the promotion of [public health, morals or safety] is to be accepted as a legitimate exertion of the police powers of the state.”) 8 Mitchell v. W.T. Grant Co., 416 U.S. 600, 624, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) 9 See Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) 10 See Kansas v. Hendricks, 521 U.S. 346, 356 (1997) 11 Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) 28 7 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 8 of 23 1 asymptomatic individuals given that asymptomatic individuals are most at risk for 2 unnecessary loss of their liberty and procedural due process violations.12 3 Quarantine is not a mere inconvenience. Like a prisoner, a quarantined individual 4 is not free to engage in daily activities or to leave a place, perhaps except under a narrow 5 set of circumstances. The effect of quarantine therefore is that it essentially detains and 6 commits an individual to the custody of the government although no crime has been 7 committed.13 The government may not intend for a quarantine to be punitive, but it 8 nevertheless is so, and quarantined individuals exhibit a high prevalence of 9 psychological distress.14 Even short durations of quarantine can cause post-traumatic 10 stress disorder (PTSD) and depression.15 Studies show 28.9% of quarantined individuals 11 experience symptoms of post-traumatic stress disorder (PTSD) and 31.2% exhibit signs 12 of depression.16 13 In quarantine, the tension between individual liberties and public necessity is 14 balanced by requiring health measures to be reasonable and not arbitrary and is tested 15 there must be demonstrated: (1) a public health necessity, (2) an effective intervention 16 with a demonstrable connection between means and ends, (3) proportionality (i.e., that 17 18 19 20 21 22 23 24 25 26 27 12 Carey v. Piphus, 435 U.S. 247, 259 (1978)("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.")(citing: Mathews v. Eldridge, 424 U.S. 319, 344 (1976)) 13 See Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (considering standard of proof required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital, “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.") (emphasis added) 14 See, e.g., Laura Hawryluck et al., SARS Control and Psychological Effects of Quarantine, Toronto, Canada, 10 Canadian J. Psychiatry 1206, 1209–11 (2004) 15 Emma Robertson et al., The Psychosocial Effects of Being Quarantined Following Exposure to SARS: A Qualitative Study of Toronto Health Care Workers, 49 Canadian J. Psychiatry 403, 404–06 (2004) 16 Id. at 1206. (“Longer durations of quarantine have been associated with an increased prevalence of PTSD symptoms.”) 28 8 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 9 of 23 1 the intervention is neither too broadly nor too narrowly tailored), and (4) that the 2 quarantine or isolation is in the least restrictive setting while accomplishing its purpose. 17 3 2. 4 Under Arizona law the governor may order a quarantine “during a state of 5 emergency … in which there is an occurrence or the imminent threat of smallpox, 6 plague, viral hemorrhagic fevers or a highly contagious and highly fatal disease with 7 transmission characteristics similar to smallpox” upon consultation with the director of 8 the department of health services.18 Requirements Under Arizona Law For Quarantine 9 During a state of emergency where the disease does not meet this “smallpox 10 standard” a quarantine may only be issued by the Arizona Department of Health Services 11 and only through one of two ways: (1) court order; or (2) written directive “if any delay 12 in the isolation or quarantine of the person would pose an immediate and serious threat 13 to the public health.”19 14 a. Quarantine By Court Order 15 The Department of Health Services may obtain a quarantine order from a court by 16 filing a petition which specifies the following: (1) the identity of the person or persons 17 subject to quarantine; (2) the premises subject to quarantine; (3) the date and time at 18 which quarantine commences; (4) the suspected contagious disease, if known; (5) a 19 statement of compliance with the conditions and principles for quarantine; and (6) a 20 statement of the basis on which quarantine is justified. The petition must be 21 accompanied by the sworn affidavit of the department attesting to the facts asserted in 22 the petition together with any further information that may be relevant and material to 23 24 25 26 27 17 Daubert, MA. Pandemic fears and contemporary quarantine: protecting liberty through a continuum of due process rights. Buff L Rev. 2007;54:1299–353; See also Shelton v. Tucker, 364 U.S. 479, 488 (1960) (“[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”) 18 See A.R.S. § 36-787(C)(2) 19 See generally A.R.S. §§ 36-788, 36-789 28 9 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 10 of 23 1 the court’s consideration.20 Notice to the person or group of persons identified in the 2 petition must be completed within twenty-four hours after filing the petition and in 3 accordance with the rules of civil procedure21 and a hearing must be held on this petition 4 within five days after filing of the petition except under “extraordinary circumstances 5 and for good cause shown.”22 6 A court order authorizing quarantine may do so only for a period not to exceed 7 thirty days and the order must: (1) identify the isolated or quarantined person or group of 8 persons by name or shared or similar characteristics or circumstances; (2) specify factual 9 findings warranting isolation or quarantine including any conditions necessary to ensure 10 that isolation or quarantine is carried out within the stated purposes and restrictions; (3) 11 be served on the affected person or persons in accordance with the rules of civil 12 procedure.23 13 A person or persons quarantined pursuant to A.R.S. § 36-789 may apply to the 14 court for an order to show cause why the person or persons should not be released. The 15 court must rule on the application to show cause within forty-eight hours after it is filed 16 and if the court grants the application it must schedule a hearing within twenty-four 17 hours after the order to show cause is issued. 24 A person so quarantined may request a 18 court hearing regarding the person's treatment and the conditions of the quarantine.”25 19 b. Summary Quarantine 20 A quarantine order summarily issued by the Department of Health Services 21 requires that within ten (10) days after issuing the written directive the department “shall 22 file a petition for a court order authorizing the initial or continued isolation or quarantine 23 24 25 26 27 20 21 22 23 24 25 See A.R.S. §§ 36-789(B), 36-789(C) See A.R.S. §§ 36-789(D) See A.R.S. § 36-789(E) See A.R.S. § 36-789(B) See A.R.S. § 36-789(I) See A.R.S. § 36-789(J) 28 10 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 11 of 23 1 of a person or group of persons.”26 Moreover, the summary issuance of a quarantine 2 order by the Department of Health Services does not in any manner waive the due 3 process requirements set forth under A.R.S. § 36-789. 4 3. 5 Executive Order 2020-33 attempts to create an entirely new term of art – the “stay 6 at home order” – while infringing upon fundamental rights in the exact same manner as a 7 quarantine. Regardless, the injury from a punch – for example – is not attenuated by 8 referring to it instead as a “fist kiss.” Likewise, the use of doublespeak to characterize 9 Executive Order 2020-33 as something other than a quarantine does not change objective 10 reality. Nor does it magically create from thin air a constitutional exception to Due 11 Process requirements. Yet this appears to be exactly what this Order seeks to do. Executive Order #2020-33 Is A Per Se Summary Mass Quarantine 12 Executive Order 2020-33 was directly and expressly predicated upon Governor 13 Ducey's declaration of a Public Health State of Emergency. It explicitly prohibits all 14 persons who reside in the state of Arizona from leaving their homes except under a very 15 narrow set of exceptions. Under any objectively reasonable definition of quarantine 16 including under Arizona law27 Executive Order #2020-33 is a quarantine. That is exactly 17 what it is. Governor Ducey’s own words offered on live television conclusively support 18 this claim.28 19 4. 20 Because It Restricts Freedom Of Movement Without Procedural Due Process 21 22 23 24 25 26 27 Executive Order #2020-33 Infringes Upon The Fifth Amendment 26 See A.R.S. § 36-789(A) 27 See A.R.S. § 36-711(19)(quarantine defined as “the restriction of activities of persons who have been exposed to an afflicted person.”)(emphasis added); Presupposing that Covid-19 infection is widespread, which is implicit in the words “based on an epidemiological assessment” stated on page two of the Executive Order. 28 Covid-19 Town Hall Meeting, 12 News, https://www.youtube.com/watch? v=dmOMXQjqKco, Accessed April 25, 2020 (quoting Governor Ducey: “In terms of quarantining, anyone who is sick should be staying home, anyone who has symptoms should be staying home, and anyone that violates those types of directions, there's escalating authority that the governor has. We can work with law enforcement so that they won't be … it's in place whenever we put it in place. Whenever we have someone violating it.”) 28 11 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 12 of 23 1 The fundamental right to travel at home and abroad is an important aspect of 2 liberty guaranteed in the Due Process Clause of the Fifth Amendment. 29 “Freedom of 3 movement is akin to the right of assembly and to the right of association.” 30 This right 4 exists whether that travel be international, 31 interstate,32 or intrastate,33 and any 5 infringement must pass strict scrutiny.34 "The right to travel, to go from place to place as 6 the means of transportation permit, is a natural right subject to the rights of others and to 7 reasonable regulation under law. A restraint imposed by the Government of the United 8 States upon this liberty, therefore, must conform with the provision of the Fifth 9 Amendment that ‘No person shall be deprived of liberty without due process of law.’”35 10 5. 11 Requirements Of The Fourteenth Amendment 12 The language of the Fourteenth Amendment requires the provision of substantive 13 due process when an interest in one’s “life, liberty or property” is threatened. 36 14 Substantive due process “serves to prevent governmental power from being ‘used for 15 29 16 17 18 19 20 21 22 23 24 25 26 27 Executive Order #2020-33 Violates The Substantive Due Process See Dunn v. Blumstein, 405 U.S. 330, 342 (1972)(affirming the existence of a “fundamental personal right, the right to travel.”); United States v. Guest, 383 U.S. 745, 758 (1966) (“[t]he constitutional right to travel from one State to another … occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.”); Miller v. Reed, 176 F.3d 1202 (9th Cir.1999)(recognizing “the fundamental right to interstate travel”)(citing Monarch Travel Servs., Inc. v. Associated Cultural Clubs, Inc., 466 F.2d 552, 554 (9th Cir.1972)) 30 Aptheker v. Sec. of State, 378 U.S. 500, 520 (1964) 31 See Kent v. Dulles, 357 U.S. 116, 125–26 (1958) (“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well . . . is basic in our scheme of values.”) 32 Paul v. Virginia, 75 U.S. 168 (1869)(affirming the "right of free ingress into other States, and egress from them."); See also Crandall v. State of Nevada, 73 U.S. 35 (1867) (upholding fundamental right to interstate travel, “We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption”) 33 See Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002)(“[I]ntrastate travel … is an everyday right, a right we depend on to carry out our daily life activities. It is, at its core, a right of function.”) 34 See Shapiro v. Thompson, 394 U.S. 618, 638 (1969)(the right to interstate travel is a fundamental right that triggers strict scrutiny review) 35 Shachtman v. Dulles, 225 F.2d 938 (D.C. Cir. 1955) (emphasis in original) 36 Amendment XIV, United States Constitution 28 12 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 13 of 23 1 purposes of oppression.’”37 The "touchstone of due process is protection of the individual 2 against arbitrary action of government."38 Substantive due process can be used to 3 challenge abuses of executive power.39 4 In the Ninth Circuit, plaintiffs can establish a substantive Due Process violation 5 either by proving violation of a specific liberty or property interest, or by showing that 6 the state’s conduct “shocks the conscience.”40 Executive Order #2020-33 satisfies both 7 requirements. 8 9 10 11 12 13 14 15 16 a. Executive Order #2020-33 Violates A Specific Liberty Interest Executive Order #2020-33 sets forth the specific criteria under which Arizonans are “permitted” to leave their homes: “All persons may leave their place of residence only for Essential Activities, to participate in or receive Essential Governmental Functions, or to participate in or fulfill Essential Functions outlined in Executive Order #2020-12.” … “Essential Activities include: a. 17 18 19 20 21 22 23 24 25 26 27 Obtaining necessary supplies and services for family, household members and pets, such as groceries, food and supplies for household consumption and use, supplies and equipment needed to work from home, assignments for completion of distance learning and products necessary to maintain safety, sanitation and essential maintenance of the home and residence. b. Engaging in activities essential for the health and safety of family, household members and pets, including things such as seeking medical, behavioral health or emergency services and obtaining medical supplies or medication. 37 See Daniels v. Williams, 474 U.S. 327, 331 (1986)(quoting Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 277 (1856)) 38 County of Sacramento v. Lewis , 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) 39 Id. (“Since the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action … ”) 40 See Martinez v. City of Oxnard, 337 F.3d 1091, 1092 (9th Cir. 2003) (“The Fourteenth Amendment’s Due Process Clause protects individuals from state action that either ‘shocks the conscience’ or interferes with rights ‘implicit in the concept of ordered liberty.’”)(citation omitted) (quoting Rochin v. California, 342 U.S. 165, 172 (1952)) 28 13 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 14 of 23 1 c. Caring for a family member, friend, or pet in another household or residence, which includes but is not limited to transportation of a family member, friend or their pet for essential health and safety activities and to obtain necessary supplies and services for the other household. d. Engaging in outdoor exercise activities, such as walking, hiking, running, biking or golfing, but only if appropriate physical distancing practices are used. e. Attending or conducting work or volunteering in Essential Functions which includes but is not limited to transporting children to child care services for attending work in an essential service. f. 10 Constitutionally protected activities such as speech and religion and any legal or court process provided that such is conducted in a manner that provides appropriate physical distancing to the extent feasible. 11 Notwithstanding that “constitutionally protected activities such as speech and 12 religion” are specifically “provided for” in this Order, this provision is oxymoronic to 13 the Order itself. The Order specifically prohibits the constitutionally-protected right to 14 free movement and travel. To accept therefore that constitutionally-protected activities 15 are indeed exempted from this Executive Order necessarily requires one to disregard the 16 Order entirely, since the entirety of the Order is a manifest infringement upon a 17 fundamental liberty guaranteed under the Constitution of the United States. “Freedom 18 from imprisonment—from government custody, detention, or other forms of physical 19 restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” 41 2 3 4 5 6 7 8 9 20 This very obvious failure of basic logic in the Order and which presents a clear 21 paradox, would probably be quite humorous were it not for the fact that Executive Order 22 #2020-33 very clearly violates the substantive due process requirement of the Fourteenth 23 Amendment and being unlawfully restrained in the exercise of basic rights by heavy- 24 handed government acts is not at all funny. 25 26 27 41 Zadvydas v. Davis, 533 U.S. 678, 690 (2001)(emphasis added) 28 14 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 15 of 23 1 A fundamental right, such as the right to be free from arbitrary and unjustified 2 mass detention, is inalienable – it is “implicit in the concept of ordered liberty.” 42 The 3 U.S Supreme Court states very plainly that “the state cannot diminish rights of the 4 people"43 and that "statutes that violate the plain and obvious principles of common right 5 and common reason are null and void."44 6 b. Executive Order #2020-33 Shocks The Conscience 7 Executive Order #2020-33 acts with deliberate indifference to individual rights. It 8 criminalizes ordinary behavior to include the exercise of basic constitutionally-protected 9 freedoms, such as the freedom to leave one’s home and wander about without any 10 specific purpose.45 Under Executive Order #2020-33, this is a crime.46 11 Where government officials have time to deliberate yet act with deliberate 12 indifference to individual rights,47 they have engaged in conscience-shocking behavior 13 that triggers liability.48 “Freedom from bodily restraint has always been at the core of the 14 liberty protected by the Due Process Clause from arbitrary governmental action.” 49 15 Arizona law has set forth a clearly-established procedure for imposing 16 quarantine50 with clearly-established standards to ensure that due process rights are 17 18 19 20 21 22 23 24 25 26 27 Palko v. Connecticut, 302 U.S. 319, 324-25 (1937) 43 Hertado v. California, 110 U.S. 516 (1884) 44 Bennett v. Boggs, 1 Baldw. 60 (1830) 45 See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) 46 Ariz. Exec. Order No. 2020-33 (April 29, 2020); Covid-19 Town Hall Meeting, 12 News, https://www.youtube.com/watch?v=dmOMXQjqKco, Accessed April 25, 2020 (quoting Governor Ducey: ‘[I]f someone is not listening to the order law enforcement can suggest that they begin listening to the order and if they don't they're going to have a class 1 misdemeanor which is a $2500 fine and and up to six months in jail, and we will enforce that.”) 47 See Lewis, 523 U.S. 833 48 Hicks v. Churchich, 161 F.3d 1030, 1040–42 (7th Cir. 1998) (noting that, although Lewis rejected negligence as a standard, deliberate indifference should be employed whenever actual deliberation is practical) 49 Foucha v. Louisiana, 504 U.S. 71, 80 (1992) 50 See §§ A.R.S. § 36-787(C)(2), 36-788 42 28 15 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 16 of 23 1 protected.51 Governor Ducey instead chose to ignore this law and these standards and to 2 disregard the fundamental constitutional rights of all Arizonans. 3 Even if it could be reasonably argued that Executive Order #2020-33 serves a 4 legitimate government purpose, it is not the “least restrictive means” 52 it is simply the 5 most expedient to accomplish the intent of mass quarantine. This order offers not even a 6 single provision that substantively ensures that constitutional rights are upheld, including 7 the right to due process. This is conscience-shocking. 8 B. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Governor Ducey's Declaration Of Emergency Is Unsupported By Law Arizona law grants the governor the sole authority and discretion to declare a state of emergency: “The governor may proclaim a state of emergency which shall take effect immediately in an area affected or likely to be affected if the governor finds that circumstances described in [A.R.S. §26-301(15)] exist.” 53 'State of emergency' means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state caused by air pollution, fire, flood or floodwater, storm, epidemic, riot, earthquake or other causes, except those resulting in a state of war emergency which are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county, city or town, and which require the combined efforts of the state and the political subdivision.”54 “During a state of emergency … The governor shall have complete authority over all agencies of the state government and the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this chapter … The governor may direct all agencies of the state government to utilize and employ state personnel, equipment and facilities for the performance of any and all activities designed to prevent or alleviate actual and threatened damage due to the emergency. The governor may direct such agencies to provide supplemental services and 51 See A.R.S. § 36-789 (titled: “Due process for isolation and quarantine during a state of emergency or state of war emergency”) 52 The "least restrictive means" test comes from the Supreme Court's decision in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960)(holding that even a legitimate government "purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.") 53 A.R.S. §26-303(D) 54 A.R.S. §26-301(15) (emphasis added) 28 16 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 17 of 23 equipment to political subdivisions to restore any services in order to provide for the health and safety of the citizens of the affected area.” 55 1 2 1. 3 “Extreme peril” as set forth under A.R.S. § 26-301(15) is defined neither by 4 Arizona statute nor Arizona court opinion. It is not defined under any federal statute nor 5 federal court opinion. “Extreme peril” is not a term of art. It has no accepted meaning in 6 the area of law addressed by the statute56 nor any common law meaning.57 It has not been 7 borrowed or adopted from another statute.58 Its definition is therefore its ordinary 8 meaning.59 The (Ordinary) Meaning Of “Extreme Peril” 9 “Extreme” means “existing in a very high degree”60 and the legal definition of 10 “peril”61 is “exposure to the risk of death, destruction, or loss.” 62 For the purposes of 11 A.R.S. §§ 26-303(D) and 26-301(15), the ordinary meaning of “extreme peril” is 12 therefore “a very high degree of exposure to the risk of death.” 13 2. 14 Very High Degree Of Exposure To The Risk Of Death” 15 As set forth previously herein, the most credible scientific evidence presently 16 The COVID-19 Pandemic Does Not In Any Manner Represent “A available in fact suggests that the fear and panic gripping the world is wholly unjustified. 17 18 19 20 21 22 23 24 25 26 27 55 A.R.S. §26-303(E) 56 See Sullivan v. Stroop, 496 U.S. 478, 483 (1990) (five-Justice majority holding that “child support” in the AFDC statute is restricted to that term’s specialized use in the Child Support program under the Social Security Act) 57 See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989) (relying on traditional common law agency principles for meaning of term “employee”). 58 See Carolene Products Co. v. United States, 323 U.S. 18, 26 (1944)(“adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording.”) 59 See FDIC v. Meyer, 510 U.S. 471, 476 (1994)(in the absence of a statutory definition “we construe a statutory term in accordance with its ordinary or natural meaning.”) 60 “Extreme” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/extreme, Accessed March 20, 2020. 61 “Peril”, Merriam-Webster's Dictionary of Law (1996) 62 “Destruction” and “loss” clearly refer to property. 28 17 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 18 of 23 1 Certainly an infectious disease, where the overwhelming majority of those who are 2 infected – by some estimates more than 99.88% in one-hundred63 – will recover without 3 any medical intervention, cannot reasonably be characterized as a condition of “extreme 4 peril.” 5 Covid-19 does not kill randomly and indiscriminately. Its has well-established 6 risk factors – the elderly with chronic serious health conditions. Certainly no amount of 7 hysterical fear-mongering will change the basic fact of objective reality that under not 8 even the most liberal definition of “extreme peril” could COVID-19 even remotely be 9 characterized in such a way. 10 11 12 C. The Court Should Grant Preliminary Injunctive Relief The purpose of a preliminary injunction is to preserve the status quo and the rights of the parties until a final judgment on the merits.64 13 A preliminary injunction should issue where a plaintiff establishes: (1) a high 14 likelihood of suffering irreparable harm in the absence of preliminary relief; (2) a high 15 likelihood of success on the merits; (3) that the balance of equities tips favorably towards 16 plaintiff(s); and (4) an injunction is in the public interest.65 17 Alternatively, a court may grant the injunction if the plaintiff demonstrates either 18 a combination of probable success on the merits and the possibility of irreparable injury 19 or that serious questions are raised and the balance of hardships tips sharply in his 20 favor.66 21 1. 22 Executive Orders #2020-33 Not Be Enjoined. Plaintiff Will Suffer Irreparable Injury Should Enforcement Of 23 24 25 26 27 63 British Medical Journal, COVID-19 Antibody Seroprevalence in Santa Clara County, California, https://www.medrxiv.org/content/10.1101/2020.04.14.20062463v1, Posted April 17, 2020, Accessed April 26, 2020 64 See U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010). 65 See M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) 66 See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). 28 18 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 19 of 23 1 Irreparable injury is “harm not remediable by damages."67 Federal circuit courts 2 have repeatedly stated that irreparable injury may be presumed in cases involving an 3 alleged violation of a constitutional right.68 4 a. 5 Irreparable Harm Sufficiently Giving Rise To Injunctive Relief. 6 When a government rule, policy, or conduct is alleged to infringe upon a 7 constitutionally protected expressive right, the plaintiff can demonstrate the requisite 8 irreparable injury by showing that he and others are precluded from exercising that right. 9 Executive Order #2020-33 subjects persons to arrest for exercising their 10 The Unlawful Infringement Upon A Constitutional Right Is An constitutionally-protected right to free movement. This is an irreparable injury.69 11 Plaintiff has satisfactorily demonstrated an exigency that warrants immediate 12 intervention by the Court. A temporary restraining order and preliminary injunctive relief 13 against Defendants is the now the only reasonable course of action. 14 2. 15 Merits Of His Claims 16 Plaintiff has made a sufficiently-clear showing that Executive Order #2020-33 17 constitutes a violation of Plaintiff’s constitutional rights and has demonstrated a high Plaintiff Has Established A High Likelihood Of Success On The 18 19 20 21 22 23 24 25 26 27 67 See Sec. Pest & Termite Sys. of S. Ariz., Inc. v. Reyelts, No. 1 CA-CV 14-0237 (Ariz. Ct. App. May. 14, 2015)(citing Shoen v. Shoen, 167 Ariz. 58, 63 (App. 1990)); see also Hess Newmark Owens Wolf, Inc. v. Owens, 415 F.3d 630, 632–34 (7th Cir.2005) (reversing district court order denying injunction to enforce restrictive covenant); Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir. 1992). 68 See, e.g., Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005) (“We therefore assume that plaintiffs have suffered irreparable injury when a government deprives plaintiffs of their commercial speech rights.”); see also Brown v. Cal. Dep’t of Trans., 321 F.3d 1217, 1225 (9th Cir. 2003) 69 See Steffel v. Thompson, 415 U.S. 452, 463 n.12 (1974) (“[A] showing of irreparable injury might be made in a case where . . . an individual demonstrates that he will be required to forgo constitutionally protected activity in order to avoid arrest.”); United States v. Bogle, 855 F.2d 707, 710–711 (11th Cir. 1988) (holding that the “unnecessary deprivation of liberty clearly constitutes irreparable harm”); Cobb v. Green, 574 F.Supp. 256, 262 (W.D. Mich. 1983) (“There is no adequate remedy at law for a deprivation of one’s physical liberty. Thus the Court finds the harm asserted by Plaintiff is substantial and irreparable.”). 28 19 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 20 of 23 1 probability that this Order is in fact unconstitutional. 2 3. 3 Injunctive Relief 4 Should Governor Ducey be enjoined and restrained, there is no possibility for 5 potential harms to be suffered by him. There is no inherent constitutional right to 6 government protection and Governor Ducey is immune from any liability for his failure 7 to act under well-settled precedent, even if such failure was negligent. 70 The Balance Of Equities Tips Favorably Towards Preliminary 8 Should the Court not grant the relief as request by Plaintiff however, immediate 9 and irreparable harm will befall him in that the infringement upon his Fifth and 10 11 12 Fourteenth Amendment rights will continue. This showing alone is sufficient for the Court to grant a preliminary relief based upon established U.S. Supreme Court precedent.71 13 4. 14 Interest And Will Not Harm Govenor Ducey 15 “It is always in the public interest to prevent the violation of a party’s 16 constitutional rights.”72 Overwhelming federal precedent treats the amelioration of 17 constitutional violations to be in the public interest.73 Moreover, there is no potential 18 70 See DeShaney v. Winnebago County Dep't of Social Servs., 109 S. Ct. 998, 1007 (1989) (finding no duty to protect individuals not in custody of the state); Daniels v. Williams, 474 U.S. 327 (1986)(construing mere negligence as insufficient to establish violation of due process). 71 See Elrod v. Burns :: 427 U.S. 347 (1976) 72 Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (quoting and citing cases). 73 See Giovani Carandola v. Bason, 303 F.3d 507, 521(4th Cir. 2002) (“[W]e agree with the district court that upholding constitutional rights surely serves the public interest.”); G & V Lounge v. Michigan Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir. 1994) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.”); Freedberg v. United States Dept. of Justice, 703 F. Supp. 107, 111 (D.D.C. 1988) (“[I]t is in the public interest to uphold a constitutionally guaranteed right.” (quotations and citation omitted); see also, e.g., Wiley Mission v. New Jersey, Dep’t of Cmty. Affairs, 2011 U.S. Dist. LEXIS 96473, at * 59 (D.N.J. Aug. 25, 2011) (granting permanent injunction against state agency in part because “requiring the Department to abide by the Constitution serves the public interest”); Glatts v. Superintendent Lockett, 2011 U.S. Dist. LEXIS 1910, at *18-19 (W.D. Pa. 2011) 19 20 21 22 23 24 25 26 27 Preliminary Relief Is In The Public Interest – It Will Serve The Public 28 20 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 21 of 23 1 harm that could befall Governor Ducey should the Court grant this Motion. There is no 2 legitimate argument for why an exception to established precedent should be created this 3 matter. 4 III. RELIEF REQUESTED 5 A. Preliminarily enjoin enforcement of Executive Order #2020-33. 6 B. Preliminarily enjoin Governor Ducey from issuing any future Executive 7 8 9 10 Order which is substantively the same as Executive Order #2020-33. C. Preliminarily enjoin Governor Ducey from issuing any future Executive Order which is a quarantine or a per se quarantine excepting under the conditions as set forth under A.R.S. §§ 36-787, 36-788, and 36-789. 11 12 IV. CONCLUSION Constitutional rights are not subject to summary disregard by government 13 officials, even during pandemics. Executive Order #2020-33 clearly violates the Fifth 14 and Fourteenth Amendments of the United States Constitution and is a per se summary 15 mass quarantine in violation of Arizona law. Plaintiff and indeed all Arizonans have now 16 suffered, and continue to be placed at risk of suffering, immediate, irreparable harm. 17 Preliminary injunctive relief is therefore reasonable, appropriate, just, and warranted, 18 and is in the public interest. 19 For all the foregoing reasons as set forth herein, Plaintiff respectfully requests that 20 the Court enter the attached Order enjoining enforcement of Executive Order #2020-33 21 and restraining Governor Ducey from issuing any subsequent Executive Orders which 22 are substantively the same as Executive Order #2020-033. 23 24 25 26 27 (“[H]aving a State’s employees follow the Federal Constitution is also in the public interest.”). 28 21 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 22 of 23 1 2 3 Dated: April 30, 2020 Respectfully Submitted, By: /s/ Joseph M. McGhee Plaintiff, in Pro Per 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS) Case 3:20-cv-08081-GMS Document 22-1 Filed 04/30/20 Page 23 of 23 1 2 CERTIFICATE OF SERVICE I hereby certify that on this 30th day of April 2020, I caused the foregoing 3 document to be filed electronically with the Clerk of Court through the CM/ECF System 4 for filing; and served on counsel of record via the Court’s CM/ECF system. I further 5 certify that some of the participants in the case are not registered CM/ECF users and that 6 I have e-mailed the foregoing document to that user this same day and the document will 7 be mailed the 30th day of April 2020. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Michele Molinario Derek R. Graffious JONES, SKELTON & HOCHULI, P.L.C. 40 North Central Avenue, Suite 2700 Phoenix, Arizona 85004 Telephone: (602) 263-1700 Fax: (602) 200-7831 mmolinario@jshfirm.com dgraffious@jshfirm.com Attorneys for Defendants City of Flagstaff and Mayor Coral Evans Brett W. Johnson (#021527) Colin P. Ahler (#023879) Tracy A. Olson (#034616) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren, Suite 1900 Phoenix, Arizona 85004-2202 Telephone: 602.382.6000 Facsimile: 602.382.6070 bwjohnson@swlaw.com cahler@swlaw.com Anni L. Foster (#023643) General Counsel Office of Arizona Governor Douglas A. Ducey 1700 West Washington Street Phoenix, Arizona 85007 Telephone: 602-542-4331 afoster@az.gov Attorneys for Defendant Douglas A. Ducey, Governor of the State of Arizona /s/ Joseph M. McGhee 27 28 23 Memorandum Of Points And Authorities In Support Of Plaintiff’s Amended Emergency Ex Parte Motion For Temporary Restraining Order And Preliminary Injunction (3:20-cv-08081-GMS)