1) The Fifth Amendment: No person shall … be deprived of life, liberty, or property, without due process of law. Quarantine looks very much like imprisonment, and the power to indefinitely imprison without due process is an extremely dangerous one.
2) Negligence is a tort**, not a crime, and torts have to prove damages by a preponderance of the evidence. You can’t successfully sue Bob for giving you COVID unless you can prove it more likely than not that your COVID came from Bob. That’s basically impossible.
** As it should be. People slack off very frequently, and if inconsequential slacking off was criminally punished then civilization would collapse.
You can’t successfully sue Bob for giving you COVID unless you can prove it more likely than not that your COVID came from Bob. That’s basically impossible.
In South Korea where the contact tracing is working this seems like it would be possible. Patient 31 has been more-or-less determined to have lead to 5k+ people getting infected.
If the numbers come down in the US such that the authorities are able to contain via contact tracing then this would become reasonable there too.
But quarantine isn’t a punishment, nobody’s saying the person being quarantined has done anything wrong. It’s just that you’ve suddenly become extremely dangerous, and that means you have to change your behaviour quite extremely to avoid harming other people. That’s very inconvenient, sure, but nobody’s convenience gives them the right to put others in harms way.
I’m not a lawyer but criminal negligence is definitely a thing:
Quarantine actually is the same thing as imprisonment, because you can’t leave. You are deprived of liberty. The justification is different, but a justification and $3 would get you a coffee if Starbucks weren’t closed. The US Constitution was written with the understanding that politicians are prone to lying when convenient.
Negligence can be an element of a crime. You need a guilty act and some level of guilty mind (purpose, knowledge, recklessness, or negligence, in declining order of culpability). Walking around isn’t a guilty act. Homicide is a guilty act, but you’d have to prove beyond a reasonable doubt that the defendant’s actions caused the death. It will be very hard to prove that the victim’s infection came from the defendant and not from any of the large number of other infectious people that are the defining feature of a pandemic.
Endangerment might work, depending on circumstances and jurisdiction, but I would expect courts to be skeptical. Walking around isn’t reckless or wanton, by conventional definitions.
Due process isn’t restricted to finding that a person has done anything wrong.
Frankly, I think that the government should simply shut down the courts for the duration of the emergency, enforce quarantine without regard to the law, and then claim sovereign immunity afterwards, while acknowledging that it had questionable constitutional authority to do so. The pretense of rule of law in US government has already been abandoned, we might as well get some practical use out of that before the revolution.
Making Bob liable for giving you COVID is a simple matter of finding a court that wants to do just that. The prove-more-likely-than-not-that-X-caused-your-harm standard has been under attack by modern U.S. courts for a while now.
There is a series of cases where pregnant mothers were injured by a widely manufactured drug marketed to them, but couldn’t figure out which of the dozen or so drug companies manufactured the specific pills each particular woman took. The court in California wanted to make all the drug companies liable so it invented the concept of market share liability. [1][2] This doctrine was invented in California and New York in response to the scandal and has since grown across the country. The courts use this principle even in cases where the defendant drug company can prove that it didn’t manufacture the particular pills the plaintiff took.
I could see some very liberal courts inventing an “infection share liability” doctrine and hold defendant disease carriers liable for the percentage chance they infected the plaintiff. This is a weird time and nobody knows what stupid things policy-over-law courts are liable to do.
Legally, there are two reasons (in the US):
1) The Fifth Amendment: No person shall … be deprived of life, liberty, or property, without due process of law. Quarantine looks very much like imprisonment, and the power to indefinitely imprison without due process is an extremely dangerous one.
2) Negligence is a tort**, not a crime, and torts have to prove damages by a preponderance of the evidence. You can’t successfully sue Bob for giving you COVID unless you can prove it more likely than not that your COVID came from Bob. That’s basically impossible.
** As it should be. People slack off very frequently, and if inconsequential slacking off was criminally punished then civilization would collapse.
In South Korea where the contact tracing is working this seems like it would be possible. Patient 31 has been more-or-less determined to have lead to 5k+ people getting infected.
If the numbers come down in the US such that the authorities are able to contain via contact tracing then this would become reasonable there too.
But quarantine isn’t a punishment, nobody’s saying the person being quarantined has done anything wrong. It’s just that you’ve suddenly become extremely dangerous, and that means you have to change your behaviour quite extremely to avoid harming other people. That’s very inconvenient, sure, but nobody’s convenience gives them the right to put others in harms way.
I’m not a lawyer but criminal negligence is definitely a thing:
https://en.wikipedia.org/wiki/Criminal_negligence
https://en.wikipedia.org/wiki/Recklessness_(law)
https://en.wikipedia.org/wiki/Endangerment
Quarantine actually is the same thing as imprisonment, because you can’t leave. You are deprived of liberty. The justification is different, but a justification and $3 would get you a coffee if Starbucks weren’t closed. The US Constitution was written with the understanding that politicians are prone to lying when convenient.
Negligence can be an element of a crime. You need a guilty act and some level of guilty mind (purpose, knowledge, recklessness, or negligence, in declining order of culpability). Walking around isn’t a guilty act. Homicide is a guilty act, but you’d have to prove beyond a reasonable doubt that the defendant’s actions caused the death. It will be very hard to prove that the victim’s infection came from the defendant and not from any of the large number of other infectious people that are the defining feature of a pandemic.
Endangerment might work, depending on circumstances and jurisdiction, but I would expect courts to be skeptical. Walking around isn’t reckless or wanton, by conventional definitions.
Due process isn’t restricted to finding that a person has done anything wrong.
Frankly, I think that the government should simply shut down the courts for the duration of the emergency, enforce quarantine without regard to the law, and then claim sovereign immunity afterwards, while acknowledging that it had questionable constitutional authority to do so. The pretense of rule of law in US government has already been abandoned, we might as well get some practical use out of that before the revolution.
Making Bob liable for giving you COVID is a simple matter of finding a court that wants to do just that. The prove-more-likely-than-not-that-X-caused-your-harm standard has been under attack by modern U.S. courts for a while now.
There is a series of cases where pregnant mothers were injured by a widely manufactured drug marketed to them, but couldn’t figure out which of the dozen or so drug companies manufactured the specific pills each particular woman took. The court in California wanted to make all the drug companies liable so it invented the concept of market share liability. [1][2] This doctrine was invented in California and New York in response to the scandal and has since grown across the country. The courts use this principle even in cases where the defendant drug company can prove that it didn’t manufacture the particular pills the plaintiff took.
I could see some very liberal courts inventing an “infection share liability” doctrine and hold defendant disease carriers liable for the percentage chance they infected the plaintiff. This is a weird time and nobody knows what stupid things policy-over-law courts are liable to do.
https://en.wikipedia.org/wiki/Market_share_liability
Hymowitz v. Eli Lilly and Co., 539 N.E.2d 1069 (N.Y. 1989)