By Scott Smith and Matthew “Mal” Richardson, partners at Best Best & Krieger LLP

Scott Smith

Irvine, CA, May 12, 2020 — The government’s broad powers to protect the public during declared emergencies are well- established, but this power is not unfettered. Emergency powers exist against a backdrop of individual rights and liberties, many of which, such as First Amendment rights to assemble and worship and 14th Amendment rights to be free from discrimination, are sacrosanct and should be abridged only after careful and cautious consideration — even in emergencies, like the coronavirus pandemic.

The courts have noted that an “inherent tension exists between the exercise” of personal freedoms and rights “and the government’s need to maintain order during a period of social strife,” as stated in the 1994 California appellate court decision In re Juan C. The government’s burden is to successfully navigate that tension by protecting the public health and safety, while preserving individual rights and liberties. “[T]he government must make every effort to avoid trammeling its citizens’ constitutional rights. By the same token, those rights are not absolute. ’[T]he Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest,’” the court said. This tension was most recently manifest by U.S. Attorney General William Barr ordering all federal prosecutors to monitor coronavirus-related restrictions from state and local governments “that could be violating the constitutional rights and civil liberties of individual citizens.”

Matthew Richardson

Unfortunately for the government, there are no black-and-white answers to how much proscription of liberties and rights is too much. In fact, depending on the nature of the emergency, a justifiable short-term infringement may not be justified in the long-term. In general, courts are extremely deferential to governmental decision-making.

The purpose of this article is not to provide answers, but to describe the relevant questions and analysis to avoid liability arising from the exercise of emergency powers. Here is a brief overview of key issues to spot and questions to ask as local government continues to respond to the novel coronavirus pandemic:

First Amendment Rights

  • Freedom of Assembly and Association
    • Protests: local agencies can regulate aspects of protests but must do so within the parameters of deferential constitutional and emergency powers case law.
      • Does the local agency have an up-to-date, constitutional ordinance regulating protests and similar free speech gatherings? 
      • If there is no ordinance, is the proposed approach to regulating the event in line with case law?
    • Access to public spaces: limiting access to public spaces can violate rights to assemble and travel.
      • Do restrictions restrict public access more than necessary to protect the public’s health and safety?
      • Do restrictions limit access only to residents? If so, such restrictions could violate rights to travel.
  • Freedom of Religion
    • Do bans on large gatherings that prohibit holding worship services contain exceptions for other activities that could render the emergency order hostile to religious exercise and constitutionally suspect?

Equal Protection and Discrimination Issues 

  • 14th Amendment Equal Protection Rights
    • Do emergency orders treat different classes of people differently? For example, are certain at-risk populations (e.g., seniors) treated differently than others because of their status?
    • Age discrimination: Do orders not allow older residents to participate fully and equally? Are they singled out? Is the justification for any necessary disparate treatment well-substantiated in the record?
    • Disability discrimination: Do orders single out the sick or those with comorbidities?

Privacy Issues/HIPPA

  • Employment Policies
    • Does testing/screening of employees or similar policies improperly expose an employee’s health status?
    • Do policies requiring contact tracing or restricting the sick from certain activities improperly expose the sick individual’s health status? 


Many local agencies are grappling with how to act in response to state orders. Complicated issues of legal preemption are at play here.

    • If a local agency chooses to allow access to public spaces inconsistent with state orders, will that access expose people to a dangerous condition on city property (i.e., COVID-19)? Will insurers cover local agencies for claims arising from such exposure?
    • What are the liability consequences for leaving enforcement of state orders to the state and county? 
    • Would a court reach a different conclusion applying California’s Constitution as opposed to the U.S. Constitution, for example in the arena of public trust of natural resources?

In 1905, the U.S. Supreme Court wrote in Jacobsen v. Commonwealth of Massachusetts that “the liberty secured by the Constitution of the United States to every person . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good,” .) But, as the California Court of Appeal noted in In re Juan C.: “government must make every effort to avoid trammeling its citizens’ constitutional rights.” 

Resolving the tension between responding to an emergency and upholding individual rights and liberties is complicated. But there are answers. The trick to finding those answers is to spot the issues and ask the right questions. 

In the coming weeks, we will explore each of these questions, and their potential answers, more closely.

Scott Smith is a partner at Best Best & Krieger LLP. Representing both businesses and public agencies, he advises on First Amendment issues at the intersection of public and private interests. He can be reached at

Matthew “Mal” Richardson is a partner at Best Best & Krieger LLP. He advises public and private clients on issues related to regulatory and land use law, with a focus on complex land transactions, the First Amendment, election and campaign law, and municipal governance. He can be reached at