By Howard Fischer
Mail | X: @azcapmedia

PHOENIX - Scottsdale police did nothing wrong in arresting the owner of a restaurant for violating one of former Gov. Doug Ducey's executive orders on COVID, a federal appeals court has ruled.

In a split decision, a majority of the three-judge panel of the 9th Circuit Court of Appeals said police had probable cause to take Randon Miller into custody after having observed people dining in his Sushi Brokers restaurant.

Judge Ronald Gould, writing the main opinion, said that violated a March 19, 2020, order that restaurants be closed for on-site dining until further notice. And he said there was evidence that police officers had visited the restaurant on March 27 and 20 to warn Miller of violations.

But Judge Patrick Bumatay said the problem is that Miller wasn't arrested until April 11.

He noted that Ducey had enacted another executive order on March 30 setting out a physical distancing policy. And Bumatay said that order said that prior to any enforcement action "a person shall be notified and given an opportunity to comply.''

What makes all that relevant, he said, is even Scottsdale admitted that those earlier executive orders applied only to businesses and not persons. So, if the argument was that Sushi Brokers was violating those orders, there was no legal reason or authority to arrest Miller, only to cite the business.

But if the city is saying it was the March 30 order that applied and allowed police to arrest Miller, then Bumatay said his rights were violated because he was never warned between that date and the date of his arrest about violating that specific order. And that would make the arrest a violation of constitutional prohibitions about enacting ex post facto laws - meaning laws that apply retroactively.

"So, in either case, Miller should not have been arrested,'' he said.

The dissenting judge did not dispute arguments by his colleagues that COVID-19 constituted a public health emergency and that states can respond.

"Even so, the Constitution does not simply lay dormant during those times,'' Bumatay wrote. "Simply put, an emergency does not authorize government officials to abandon the protections of the Constitution.''

And there's something else of note.

Prosecutors dropped the charges. So there never was a legal finding as to whether how Sushi Brokers was operating ran afoul of Ducey's order.

The case wound up in federal court because Miller filed suit against the city and the police officer who arrested him claiming they had violated his civil rights.

Gould, in the main opinion, said this was an unusual situation.

"The COVID-19 pandemic was a threat unlike any in recent times,'' he wrote. "Health officials traditionally have broad discretion, through legislation and upon review by courts, to take actions to stem the transmission of a contagious disease.''

Gould was apparently willing to give Scottsdale a bit more latitude given the nature of the situation.

"Such deference is at its height for measure taken, as here, during the early stages of a pandemic, when local governmental officials have limited knowledge about a novel disease and yet must nonetheless act to prevent the loss of lives,'' he said.

And in this situation, Gould said, there was enough evidence to allow police to make a reasonable assumption that the law and executive orders were being violated.

He said Christian Bailey, the officer who made the April 11 arrest, had been advised that other officers from his department had visited the restaurant the prior month. Then there were the observations of a different officer on April 10 who said he saw 10 people in the restaurant, including four who left without to-go bags, a woman inside eating with chopsticks and two men drinking outside who later went back in.

Gould said the fact that Miller had not been given notice of the violations before the arrest, as required in Ducey's March 30 order, is irrelevant.

"Miller was arrested for the exact same behavior for which he had received previous warnings,'' Gould wrote. And he said all three instances involved enforcement of the same generic law that gave Ducey the power to issue executive orders during an emergency.

Gould also said courts, when looking at claims of a violation of civil rights, have to look at the issue from more than the perspective of Miller.

"The government's interest is also significant,'' he said.

"We reiterate as a general rule of law that in the midst of a dangerous health emergency, we must ensure the proper deference is given to local government officials,'' Gould continued. "Law enforcement officials enforcing laws enacted under the guidance of public health officials are no exception.''

And he rejected Bumatay's argument that Miller was being subjected to an ex post facto law. He said the March 30 order "did not change the definition of nor increase the punishment for the crime for which Miller was arrested: violating a prohibition against on-site dining.''

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