Pima County COVID curfew blocked by judge

Pima County's nightly coronavirus curfew has been blocked by a judge, who found that the December resolution of the Board of Supervisors to mitigate the rise in COVID-19 cases was "not statutorily authorized," and violated Arizona Gov. Doug Ducey's executive orders. 

In her 11-page decision, Superior Court Judge Kellie Johnson granted an injunction as part of a lawsuit launched on January 5 by the owners of several Tucson bars, including Cobra Arcade Bar, HighWire Lounge, the Maverick, and Union Public House. The lawsuit asked for a preliminary injunction, blocking the measure, and argued that when the Board of Supervisors instituted a curfew between 10 p.m. and 5 a.m., they did so without legal authority, and that the curfew is unreasonable and unconstitutional.

County officials said they are "disappointed" in the judge's blocking of the curfew, and said they will appeal the ruling.

As COVID-19 cases rose throughout November and December, the supervisors passed Resolution 2020-98 on Dec. 15, mandating a county-wide curfew, covering both unincorporated and incorporated parts of the county. Weeks earlier, the board had instituted a voluntary curfew, but the county moved to make the curfew mandatory after a flight of inspectors went to document compliance with the curfew over a weekend, and found "noncompliance" in approximately 15 percent of locations observed.

"Where noncompliance occurred, it was significant," county officials wrote. "The results of the December 11 and 12 investigation make clear that the voluntary curfew has not been sufficiently effective in encouraging inhabitants of the county to remain at their homes during the curfew period. Accordingly, more stringent measures are necessary to protect the public health."  

The supervisors passed the curfew on a 3-2 vote, split along party lines. 

This followed a city-wide curfew passed on December 1 by the Tucson City Council. 

Johnson, appointed by Ducey in 2017, said that it is "undisputed COVID-19 is a serious public health concern that must be controlled. However, it is not the Court’s role to decide or opine whether it agrees or disagrees with the County’s Resolution." 

"Rather, the Court must determine whether is a valid under the law, and whether injunctive relief is appropriate," she wrote. "Because the Court finds the Resolution is not statutorily authorized and violates the Governor’s Executive Order, and that the Plaintiffs have demonstrated the possibility of harm, the Court finds the Plaintiffs are entitled to relief."

Sharon Bronson, chair of the Board of Supervisors, said that "Pima County is obviously disappointed" in the judge's ruling, and that the board had already authorized the County Attorney's Office to appeal — an action presumably taken during an executive session of the supervisors on Tuesday morning, in anticipation of a possible injunction.

"It is the county's firm belief that state law empowers the Health Department to take specific actions such as the curfew to mitigate and halt the spread of infectious diseases," Bronson said. "In the meantime, Pima County Chief Medical Officer Dr. Francisco Garcia urges all businesses to continue to voluntarily adhere to the curfew and limit gatherings."

Johnson said that the county's order ran afoul of the governor's order that barred counties from issuing orders that require people to say in the homes, and she rejected an argument from the county that the governor exceeded his authority in issuing that provision, which would allow county officials to make an end-run around it. 

"Plaintiffs argue the Resolution is unlawful because it conflicts directly," with Ducey's Executive Order 2020-36, and "its prohibition against any county issuing an 'order restricting persons from leaving their home due to the COVID-19 public health emergency.'" This conflict with the governor's resolution is enough to grant the preliminary injunction, the business owners argued. 

"In response, the County argues that it has authority to issue its curfew provision in the Resolution, and that the power to do so is implied by the County’s broad authority to regulate public health," Johnson wrote. "Additionally, the County argues it may adopt the curfew in the Resolution under its own emergency powers," and the county argued that the governor’s order barring counties from issuing orders restricting people from leaving their homes "does not affect its ability to issue the Resolution because it is not inconsistent with the Order." 

"Alternatively, the County argues the Governor exceeded his authority in issuing the provision, and as a result, the County is free to ignore it," Johnson wrote summarizing their arguments. 

She rejected these claims writing that the county's regulatory powers "does not include authority to impose a curfew," and she said that the idea the court  should find that Ducey violated his authority "unpersuasive." 

And, while there may be support for the curfew, Johnson said that county officials did not present evidence to show that activity in these locations after 10 p.m. was linked to more cases. Dr. Francisco Garcia, the county's public health director, told the court that people are "less likely to wear masks and observe safety measure at bars and parties due to eating and drinking not being conducive to wearing masks," and that alcohol may impair judgement. However, Johnson said that county officials did not offer evidence that a "significant number of cases could be attributed specifically to  activity citizens engage after 10 p.m." 

"While Dr. Garcia testified in general terms regarding the County’s infection numbers and contact tracing efforts, he was unable to opine or offer evidence that a significant number of cases could be attributed specifically to activity citizens engage in after 10 p.m.," Johnson wrote. "He indicated he is merely able, based on contact tracing, to identify behaviors that put people at risk. He did not specifically indicate being out after 10 p.m. was one of those risk factors."

Bronson said Wednesday that "The resolution passed by the board stated the curfew would be lifted when the COVID-19 infection rate in the county fell below what is considered "substantial spread" of the disease, or 100 cases per 100,000 people. The current infection rate is 10 times that at 1,000 cases per 100,000 and county hospitals remain full, their resources and staff strained to the limit. Since Jan. 1, 2021, 22,700 people have fallen ill with COVID-19 in Pima County and 431 people have died."

"We really believe this is is an important measure," Garcia told reporters Wednesday afternoon. "And this is one of the few tools we have in our tool box that can really make a difference."

While the court considered the county's argument that the curfew is a "question of 'life and death' and that it ha a strong interest in protecting the public," the court must also evaluate the "balance of hardships that will occur if the county" can enforce the curfew, the judge wrote.

"To this point, the county only points to a risk of increased cases," Johnson added. "The County could not demonstrate in testimony or other evidence that more cases are contracted after 10 p.m. Nor has it demonstrated specifically that its current hardships are worsened by people and businesses engaging in conduct after 10 p.m." 

"To the contrary, the burden the County faces in managing this pandemic will continue until the pandemic is under control. The County has simply failed to demonstrate how the curfew not being enforced would cause it additional hardship," she wrote. "Additionally, the State has an equally strong interest in protecting all its citizens, including those living in Pima County. The ADHS has not recommended a curfew, nor is the State currently under a curfew order from the Governor. Furthermore, to the Court’s knowledge no other county in Arizona has imposed one." 

She noted that since August and September, many businesses had reopened, and were operating at 50 percent capacity, and adhered to social distancing measures, and require patrons to wear masks unless seated at their table to eat and drink. And,  that the businesses operated under these guidelines until 2 a.m. prior to the county's curfew. 

"Plaintiffs all testified they had no barriers to enforcing the ADHS guidelines, and at no time prior to the curfew were their businesses overcrowded," she said. And, she noted that since the County issued the curfew, the businesses have closed at 10 p.m., and have not remained open for takeout services. 

"Although the exact figure for each of the Plaintiffs’ businesses is unclear, a significant percentage of their sales generally occur after 10 p.m. It is also clear the curfew financially harms each business. All testified they are in jeopardy of closing due to economic strain if the curfew does not expire, albeit unclear as to how quickly that will happen," she wrote. 

"There is no dispute that the pandemic has caused significant financial loss to Plaintiffs and their businesses. It is also undisputed the curfew continues to add to those loses and impact," Johnson wrote, adding that "calculating the monetary damages caused by the curfew during the pandemic would be difficult."

" It would be difficult for Plaintiffs to prove with certainty how many customers would come to their businesses past 10 p.m., and how much money those customers would spend. Also, the permanent loss of their businesses is likely to cause harm that money cannot remedy," she wrote.  "None of the Plaintiffs indicated, and therefore did not prove, how imminent permanent closures are. However, with no end to the curfew in sight based on Pima County’s rate of infection, Plaintiffs have demonstrated a real threat of closure and of forever losing their businesses." 

While she granted the injunction, she also ordered the plaintiffs to pay a bond of $10,000, because the county could face a "potential increase in contact tracing and case investigation" because of new COVID-19 cases linked to patrons who go to the bar. "While the County’s increased costs are speculative, the Court finds the amount of the bond requested is not unreasonable," Johnson wrote.