Arizona Attorney General Mark Brnovich Talks Coronavirus Enforcement, Privacy

By Steve Goldstein, Lauren Gilger
Published: Wednesday, April 1, 2020 - 2:36pm
Updated: Thursday, April 2, 2020 - 9:39am

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STEVE GOLDSTEIN: But we begin this hour with an update on the coronavirus here in Arizona. The number of cases in the state continues to rise. As of 9 a.m. today, the Arizona Department of Health Services reports 1,413 cases of COVID-19 in our state, with 29 deaths.

LAUREN GILGER: Across the state, schools have closed for the rest of the year, and students and teachers are now trying to navigate online learning. Unemployment claims continue to rise as more and more businesses are forced to let go of employees that they can't pay. And Arizonans are now being ordered by the governor to "stay at home," except for essential outings.

Mark Brnovich
Sky Schaudt/KJZZ
Mark Brnovich at KJZZ in August 2019.

GOLDSTEIN: But Gov. Ducey's statewide stay-at-home order this week left many people with questions about enforcement. The order, which took effect yesterday at 5 p.m., directs Arizonans to stay home except when they have to leave for essential activities. But it also says no one will be asked to prove their activities are, in fact, essential. So what authority does local law enforcement have here? Attorney General Mark Brnovich has issued an opinion laying out that authority. He's also weighed in on what information government officials can release to the public related to patients who've tested positive for COVID-19. And the attorney general joins us now to tell us more. Mark, good morning.

MARK BRNOVICH: Good morning, Steve. Good morning, Lauren.

GOLDSTEIN: So let's start with enforcement. A lot of people seem to be confused about that right now. Based on your opinion, what penalties could people face if, say, they throw a party with more than 10 people?

BRNOVICH: Well, Steve, I think part of the reason why there's been some confusion or people have been frustrated is because it feels like about every 48 hours, the goalposts change — or what we're going to do or we're not going to do has changed. And so I think people want some sort of consistency, and they want certainty. And I think that's why several legislators have come to us for legal opinions. The legal opinion that we had just promulgated deals with this issue about what happens for people that are violating orders. And clearly, in Title 26, it allows for local authorities to issue and promulgate regulations and rules dealing with an outbreak. And the statute specifically provides, in ARS 26-317, that if you violate that, you're guilty of a Class 1 misdemeanor.

GILGER: So I spoke with Phoenix Mayor Kate Gallego on The Show yesterday and asked her a similar question about enforcement. She said this may fall to city ordinances or to city laws in order to enforce this, because it seemed unclear at the statewide level. Are you saying that that is something that law enforcement can do statewide?

BRNOVICH: Yeah, I think that if you read our opinion, it makes pretty clear. It basically says that law enforcement authorities — state and political subdivisions — can enforce orders, rules and regulations issued under emergency management laws in Title 26. I mean, that's clearly what the law states. And the law clearly states that they can issue those orders, and if you violate them, you're guilty of a Class 1 misdemeanor. But if you read our opinion, it also makes clear — and I make clear — that there's established court precedents where government officials need to demonstrate that they've balanced the public health needs versus the individual rights. And so, we never want to get in a situation where, because there is an emergency, that people's fundamental rights are being denied, as we saw even during World War II during the Korematsu case.

GOLDSTEIN: So did the order then, Mark, make sense to you? Or could we have just been sort of going along as we had until 5 o'clock yesterday? Is it the fact that the governor issued an official executive order that puts it into this realm? Because for a lot of people, it didn't feel like things actually changed per se.

BRNOVICH: Yeah. I'm not sure how much things really did change per se, Steve. I mean, different people have different opinions on what that order does or doesn't do. And I think that's part of the confusion. But clearly, if you read our opinion, the cities do have authority. They do have emergency authority. They have authority. ... The governor obviously has authority as well. Then the question becomes, well, let's say for example, you mentioned the mayor of the city of Phoenix, or you have the sheriff — they clearly work for political subdivisions, cities, municipalities. And so there's like a chain of command there. I think there's a bigger, broader question is, if the governor's issued an executive order, then who actually enforces that? I guess arguably, you could get into a situation where the cities say "we don't want the city doing this" or "we do want the city doing that." I guess it really just depends because that local police officer, his chain of command is within the city, not within the governor's chain of command.

GOLDSTEIN: So what do you make, then, of this provision in this executive order saying no one's really going to be asked to prove their activities, that they're essential or on this list of essential services?

BRNOVICH: I think you'd have to go talk to the governor. I mean, really it's kind of up to the governor to really set forth whether his order is the ceiling or whether it's the floor. Because there is language in the statute about the fact that these city ordinances can't be inconsistent with the orders promulgated by the governor. Well, then then that begs the question of, oh, wait a minute, if the city has become more restrictive, is that inconsistent? Or is this something more restrictive consistent with the orders because there there's been an emergency declared and a pandemic declared. They said it's widespread. So is is doing something stronger or something that's more restrictive — is that consistent or inconsistent with his orders? I think really it's incumbent, I would say, on the governor to provide some clarity on this issue as to how it will be defined and whether these exceptions essentially swallow the rule.

GOLDSTEIN: Mark, let's go to another opinion you issued related to COVID-19 that was brought about by lawmaker (state Rep.) Mark Fincham (R-Tucson) wanted your opinion on this. So what information can be shared about COVID-19 patients to the rest of the community? How much of that is legally valid?

BRNOVICH: As you know, Steve, I was extremely disappointed in the university's response, especially early on, to how they handled COVID-19. We know one of the first cases in the entire country happened at Arizona State back in January. And, there was a time period like, you know, maybe we should have been ramping up testing and even making sure the people that had it, that we were reaching out and contacting those people that had contact with the persons. But bottom line is, after spring break, thousands of kids returned to ASU. ASU left the dorms open. They left the dining facilities open. They left the computer labs open. They left the libraries open. The whole mess of stuff open. And the reality is, is that if we if we are in a pandemic and we want people to be social distancing — we don't want people around each other — the way to not handle it is to essentially bring all these people together, and then when they test positive, you won't give us any information. And I clearly, in our opinion, I thought it was very irresponsible not to provide information. And there was nothing — you read our opinion — there's nothing prohibiting ASU or any other government entity from providing information to us as long as you don't identify that individual. So in the context of ASU, for example, we should have been told: Do these people live on campus (or) off campus? Do they use the dining facilities? Which dining facilities? That way we can ensure that anyone that had contact with them can either either self isolate, get tested and try to lockdown the areas where you have these hotspots. I mean, I'm not a doctor, and I'm sure someone out there probably be like, "Oh, Brnovich is a lawyer, not a doctor. What is he doing?" But I've read the Imperial College. I'm reading all the stuff that other government officials are reading. We've been on conference calls with the surgeon general and other medical officials. And the reality is that you need vigorous testing. You need to identify areas. And you need to make sure that when people do test positive, that you end up tracing their contacts and who they've had contact with to isolate. Because I think ultimately the goal is you want to try to minimize the disruption to society, because eventually what happens is if you don't use a scalpel early, what ends up happening is you've got to use the bone saw. And that's what's happening is you end up having to take a sledgehammer to a problem instead of using a scalpel. And I cannot tell you — as someone who grew up here, someone went to ASU, has relatives going to ASU — I thought was irresponsible not to provide information, especially when you had students going back there, picking up their stuff, and who knows who came in contact with whom? But I thought was very irresponsible not to share more information.

GILGER: So where is the balance, then? Where do you think the state can balance privacy with the public's right to know in terms of that? Is it something that the public doesn't necessarily need to know but the State Department of Health needs to know? They're the ones who would be responsible for carrying out that sort of tracing of contacts, right?

BRNOVICH: Yeah, but one is you have the tracing of contacts. Absolutely. Because you want to protect people's privacy rights. But at the same time, let me just let me just give you a real world example. The other day, I saw that there was a a grocery store — Fry's, I think it was. I think was a Fry's. But but they literally identified the grocery store. They identified the location. They said, "Hey, we have someone here that had COVID-19. Anybody that was here on these dates where they were employees or maybe shopping there, they should be really careful. They may need to self isolate." Really, so time is of the essence. We need information, and transparency should be the rule, not the exception. And so when it comes to — like going back to university context — there is there is no reason why we shouldn't have known, wait a minute, are these people living on campus? Off campus? Did they visit the library? Were they using the dining hall? These are all types of questions that people then could have said, "Hey, if I have a friend or relative there, they may have come in contact with them." And so we really need to make sure we're taking it serious. And one way to take it serious is to let people know if they might have had contact with someone that has COVID-19. Because everyone keeps talking about here, we've got to flatten the curve. Right? We all agree we've got to flatten the curve because there is a serious concern that our hospitals and ICU units are going to be overwhelmed. But the reality is, if you look at what happened even during the Spanish pandemic, it came back with a vengeance. That next winter. And so this is a problem that we are going to have with us for a while. The public needs to know that. There is no magic bullet. There's no magic fix. You know, I've been talking a lot about these scams and these con artists trying to take advantage of people during this crisis. So the reality is, I think government needs to be transparent and consistent and provide as much information as possible to people so they can know what's going on. I think that when we kind of lurch from one day it's this, one day it's that, one day we're going to close this, one day we're not going to close this — I think all of that creates that confusion, which creates stress for people unnecessarily. And this is a stressful time because this is a bastard of a virus. And it's going to hurt a lot of people. And so we need to do everything we can to work together to fight it.

GILGER: All right. We'll have to leave it there. That is Attorney General Mark Brnovich. Thank you so much for joining us, attorney general.

BRNOVICH: Thank you.

GILGER: And we have reached out to the Governor's Office for an interview with him. We will continue to do so.

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