Excerpted From: Norrinda Brown, Black Liberty in Emergency, 118 Northwestern University Law Review 689 (2023) (398 Footnotes) (Full Document)


NorrindaBrown.jpegThe COVID-19 pandemic saw an intersection of three historical phenomena-- criminalizing Black movement, quarantining racial minorities and segregation. Across the country, state and local governments weaponized pandemic stay-at-home orders against Black communities to stifle free movement, often through police violence. In city after city, Blacks were isolated and segregated, stopped and arrested, subjected to fines and fees, and received enhanced sentences for violations of pandemic orders.

New York City, utilizing the New York Police Department (NYPD), for example, first restricted and then criminalized the movement of thousands of Black New Yorkers for allegedly violating the city's pandemic social distancing orders. A May 2020 report prepared by the Legal Aid Society in New York revealed that Black and Latinx NYPD precincts constituted eighteen of the twenty precincts with the highest rates of social distancing arrests and summonses per 10,000 people, even though slightly less than half (46.2%) of complaints were in those areas. Indeed, four out of five precincts receiving the most complaints were white precincts, while four out of five precincts with the most arrests were Black and Latinx precincts. The evidence continues. The Brooklyn District Attorney's Office found that forty people were arrested in Brooklyn for pandemic order violations between March 17 and May 4, 2020. Of those, thirty-five were Black, four Hispanic, and one white. The districts where the most pandemic-order arrests were made were also the districts where New York's notorious stop-and-frisk policies were enforced with the most rigor.

Quarantines in Black neighborhoods stood in contrast to those in majority-white neighborhoods. For instance, in Park Slope, an affluent neighborhood in Brooklyn, viral videos showed crowds of white citizens picnicking in public parks, in large groups and unmasked. NYPD officers responded by politely requesting that they maintain distance and offering masks to the unmasked.

COVID-19 pandemic order enforcement schemes are genealogically related to a larger American project of racializing neighborhoods and constricting Black movement. Indeed, the free movement of Black people outside of designated spaces has been criminalized since prior to the founding of America. Over the course of four centuries, fugitive slave laws, Black codes, sundown laws, vagrancy statutes, curfews, and stop-and-frisk regimes have successively criminalized Black movement as a form of racial and social control. Segregation is central to this exercise. Establishing where Black people are not allowed has always required setting out where they are allowed and then prohibiting them from traversing these boundaries without a permissible excuse.

During public health emergencies, the movement of Black people and other people of color has been further constrained. On the eve of Emancipation in 1862, when smallpox broke out in Washington, the Freedmen's Bureau blamed freed people for the spread of diseases.

Other racial groups have also been targeted in public health emergencies. As early as 1662, for example, in the town of East Hampton, New York, authorities ordered that “no Indian shall come to towne ... or be whipped until they be free of the smallpoxe.” In March 1900, a suspected death from bubonic plague in San Francisco led to the immediate lockdown of the city's Chinatown. In 1924, again during an outbreak of the bubonic plague, this time in Los Angeles, city officials roped off Mexican neighborhoods and forbade entrance or exit.

Before the coronavirus pandemic, courts were largely deferential to state actions in quarantine cases, often citing the U.S. Supreme Court's 1905 decision Jacobson v. Massachusetts. Courts almost universally upheld quarantines under police powers, failing to require states to provide due process and suspending normal standards of judicial review. COVID-19 was different. Over 2,000 lawsuits were filed nationwide alleging civil rights abuses under emergency orders, including for violations of the Fourteenth Amendment. When faced with legal challenges to emergency orders, some states repealed the laws in question. Of those cases that were heard in court, several found a sympathetic judiciary, declining to defer to the states and holding that pandemic emergency orders violated citizens' fundamental rights, including the right to move freely.

Despite a shift in the judiciary's response to pandemic emergency orders, racial disparities related to COVID-19 enforcement persisted in courts. In the one lawsuit explicitly challenging disparate enforcement of pandemic orders in Black neighborhoods, the federal district court deferred to New York City and upheld the limits on the free movement of thousands of people of color. In the early months of the COVID-19 pandemic, Black and Latinx plaintiffs in Floyd v. City of New York filed an injunction to stop the NYPD from violently enforcing emergency orders, including orders to mask, social distance, and stay at home. Citing Jacobson, New York City argued that it was owed deference in the public health emergency, which the court granted. The Floyd court's decision permitted the state to deny-- even using violence--the right to free movement for entire Black communities in the largest city in the country in the longest public health emergency in our nation's history. In some Black neighborhoods during the pandemic, public safety policies from earlier eras--namely stop and frisk-- shapeshifted into public health policies to the same effect. The criminalization of Black people's free movement by a heavy-handed police state during the COVID-19 pandemic revealed holes in the fabric of Black citizenship.

By interrogating state action taken to limit Black mobility in the pandemic, this Article seeks to render race visible in our understanding of the nature and scope of quarantine enforcement. It also seeks to interject the subject of race into scholarly discussions, calling for heightened scrutiny of state actions in public health emergencies. For two decades, an increasing number of scholars have asserted that courts' extreme deference to state action in emergencies, including by denying due process and suspending judicial review, can lead them to “sustain gross violations of civil rights because they are either unwilling or unable to meaningfully look behind the government's purported claims of exigency.” Some courts that struck down COVID-19 emergency orders as invalid for violating fundamental rights explicitly relied on this literature. That scholars have not sufficiently centered race or considered the impact that racially disparate quarantine enforcement should have in their analyses--either of due process or judicial review--leaves their critique of quarantine law undertheorized to the detriment of Black communities.

This Article contends that the use of police force to enclose Black people in geographically isolated and segregated neighborhoods violates their fundamental rights, including the right to move freely, even in a public health emergency. The Article maintains that the normalization of forceful and disparate enclosure of Black citizens in the COVID-19 pandemic is a canary in the coal mine--it portends an even more expansive use of violence to impose racial borders. This normalization allows such violence to proliferate, with the increased frequency of public health emergencies, including other pandemics, and weather-related catastrophes such as tropical storms and extreme heat, to the detriment of Black communities.

This Article considers the application of a heightened standard by courts when reviewing state action in emergency, including the enforcement of mandatory quarantines that disparately target Black communities, and queries whether mandatory quarantines should be abolished altogether instead. Beyond exploring the abolishment of quarantine, the Article advances the claim that protection for Black communities during future public health emergencies requires the equitable distribution of resources, such as housing, in order to interrupt the spread of communicable diseases.

This Article proceeds in five Parts. In Part I, the Article sets out the components of pandemic order enforcement: isolation; stops and arrests; fines and fees; and charge enhancement. Part II briefly summarizes the history of criminalizing Black free movement in the United States, beginning as soon as enslaved Africans were brought to this country, to establish the genealogical connection between this centuries-old project and pandemic orders. Part III describes the equally long history of constricting the movement of Black people and other people of color during public health emergencies, dating from before Emancipation, to add further evidence of how state actors have sought to use public health crises to facilitate the racial and social control of minoritized groups. Part IV reviews the scholarly literature critiquing judicial deference to state action in public health crises and notes the absence of an analysis of race despite a four-century-long history of racialized quarantines. Part IV also identifies courts' revised thinking regarding judicial deference to state actions in public health emergencies during the COVID-19 pandemic. And, finally, Part V calls for the abolishment of mandatory quarantines given their unequal impact on Black communities. Instead, the Article urges the substitution of carceral measures with distributive and environmental justice to protect Black people in future public health crises.

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After a little over three years, on May 5, 2023, the director-general of the World Health Organization announced that the COVID-19 pandemic is no longer a public health emergency of international concern. The director-general argued that we need to move from responding to preparing. This Article is concerned with what that preparation looks like and the implications it has not only for Black free movement but also for the valuation of Black life in future public health emergencies. Airborne diseases are not the only possible public health crises that Americans may face in the very near future. The warming of the planet, for example, has created all manner of emergencies in cities and states across the country. As states respond to the increasing number of emergencies and courts review state responses, the public should be concerned about what regimes will be permissible to protect citizens in the future.

Black free movement has been criminalized during public health emergencies since before Reconstruction. Scholars have rightly critiqued state action in emergencies for two decades. While people of color have been inequitably denied liberty by quarantine laws for centuries, courts have only infrequently intervened to protect them, and the scholarly literature has been largely silent on the nuances posed by Black liberty in emergency.

Libertarian cases filed during the COVID-19 pandemic demonstrate that quarantine jurisprudence may be aligning with modern constitutional law. But Floyd is a canary in the coal mine with respect to the contours of Black citizenship in emergencies going forward. If states take the same disparate path regarding public health emergency order enforcement that they took over the last three years and courts endorse it, what became a seemingly never-ending pandemic will normalize a continued state of Black enclosure, even as whites move freely.

Our quarantine jurisprudence needs to be revised to reflect current constitutional norms. That process has begun. During the COVID-19 pandemic, there began to emerge one rule for free movement in an emergency for whites and a seemingly different rule for Blacks. One group moves freely, initiating litigation to repeal any orders that might limit its comings and goings, even theoretically. Legislatures and the courts were increasingly inclined to agree. The other group was criminalized for lesser acts of noncompliance, violently made to adhere to the laws, and then, when they complained in court, were met with Jacobson's outdated deference standard. It is imperative to ask--how does this make sense?

COVID-19 emergency order enforcement in Black neighborhoods compared to that in white neighborhoods reminds us of the work that segregation does to reinforce ingroups and outgroups--favoring certain populations over others. Professor Achille Mbembe explores the results for the outgroup through his theory of necropolitics. Mbembe explains that the confinement of certain populations in particular, precarious, and militarized spaces--campsites, refugee camps, prisons, banlieues, suburbs, favelas--has become a prevailing way to govern unwanted populations. Daily interactions with the state that limit movement in Black communities within businesses, homes, and public spaces such as parks and playgrounds have a significant impact on those communities' access to opportunity. Policing Blacks in this way ultimately transforms micro-scale movement (e.g., seeking access to goods, services, employment, and education), even within a defined geographic area, from commonsensical to risky, aberrational behavior. And as a result, deep isolation and scarcity within the community becomes normative over the long term, making Black people not only less safe both during pandemics and outside of them, but also creating a picture of them as less human. Mbembe calls this “small doses of death” or “small massacres” inflicted one day at a time.

A certain type of state action in Black communities during public health emergencies--the kind we saw in the COVID-19 pandemic--is perhaps less about the public's health than it is about racial and social control. Such state actions, including orders calling for mandatory, community-wide quarantines, serve to further estrange Black communities from a social welfare system that should protect them but does not. To prevent this harm in the future, a campaign to end mandatory quarantine in emergency aligns with the prison and police abolition movements and can perhaps be folded into those movements.

Instead of enclosure, isolation, and policing, social justice interventions that prioritize the equitable distribution of resources such housing and accelerate the pace of environmental justice will keep Black communities and society as a whole safer in future pandemics. Given the widespread unemployment caused by the pandemic, every level of government recognized the correlation between resources, including keeping people housed, and the likelihood of surviving the virus. The federal government spent roughly $5 trillion on pandemic-related economic stimulus programs. The origins of many COVID-19 social welfare programs can be traced to demands such as #CancelRent, made by Black communities even as their neighborhoods were the most heavily quarantined and policed. Ironically, though perhaps not unexpectedly, they were denied access to the social welfare programs designed to keep all American citizens safe from the pandemic.

To protect Black rights during future public health emergencies, the meaning of liberty will need to be reconstructed. The disparateness of quarantine during COVID-19 demonstrated that Black people's free movement falls outside of the sphere of the state's protection. A reconstruction of liberty to center Black people's experiences in public health crises will need to include a proscription against government violence but also an affirmative duty of government to facilitate economic and environmental justice in Black communities.

Norrinda Brown is an Associate Professor of Law, Fordham University School of Law; J.D., University of Virginia School of Law; B.A., Dartmouth College.