Having lived most of my life in the Empire State and still having friends and family there, I found Assembly Bill 416 (A.416) to be more than just disturbing, I found it both frightening and disgusting. Why? Because it reminded me of some of the most despotic and egregious violations of human rights in history. It seems Santayana was correct, “Those who cannot remember the past are condemned to repeat it.”
New York Assemblyman N. Nick Perry, who represents the East Flatbush area of Brooklyn, New York City, has introduced legislation with the following purpose:
AN ACT to amend the public health law, in relation to the removal of cases, contacts and carriers of communicable diseases who are potentially dangerous to the public health
State of New York Assembly Bill 416
As so often seems the case, those calling for the destruction of citizens’ rights claim to be doing so for the public’s safety. In this case, to protect you from those who are carriers of potentially dangerous diseases. Is there a role for state governments to protect their citizens from modern “Typhoid Marys”? Yes, but not at the expense of the rights of the people or the abandonment of the constitutions of their state or the United States, which is exactly what A.416 would do if enacted and enforced.
Probable Cause
The People of the State of New York, represented in Senate and Assembly, do enact as follows: …
Upon determining by clear and convincing evidence that the health of others is or may be endangered by a case, contact or carrier, or suspected case, contact or carrier of a contagious disease that, in the opinion of the governor, after consultation with the commissioner, may pose an imminent and significant threat to the public health resulting in severe morbidity or high mortality, the governor or his or her delegee, including, but not limited to the commissioner or the heads of local health departments, may order the removal and/or detention of such a person or of a group of such persons by issuing a single order, identifying such persons either by name or by a reasonably specific description of the individuals or group being detained.
State of New York Assembly Bill 416
Mr. Perry wants the people of New York to grant the Governor, or his delegate, the authority to lock up people in their state if, in the opinion of the Governor or his delegate, there is clear and convincing evidence that they may be a risk to others due to a communicable disease. While this legislation is couched in some nice, legal sounding language, like “determining by clear and convincing evidence”, it is a blatant violation of our most basic human rights. Let’s take a look at some of the ways this legislation would violate not only the rights of the people of New York, but the constitutions both of the state and of the United States.
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
New York State Constitution, Article I, Section 12
Article I, Section 12 of the New York State Constitution mirrors the Fourth Amendment of the U.S. Constitution. Specifically, it’s supposed to protect the people of New York from “unreasonable searches and seizures”. It does this by requiring warrants to perform such searches and seizures meet certain criteria.
First, there must be probable cause. The Free Legal Dictionary defines “Probable Cause” as:
Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to sue a person in civil court or to arrest and prosecute a person in criminal court. Before a person can be sued or arrested and prosecuted, the civil plaintiff or police and prosecutor must possess enough facts that would lead a reasonable person to believe that the claim or charge is true.
Probably Cause: The Free Legal Dictionary
At first it might appear that by requiring the Governor or his delegate to have “clear and convincing evidence”, they would meet the requirement for probable cause, but notice that the New York Constitution requires that the probable cause be supported by oath or affirmation. That means that someone has to swear or affirm, under penalty of perjury, that the “clear and convincing evidence” is not only real, but something they were a witness to or have direct evidence of. Not only is there no requirement that the Governor or his delegate actually get a warrant, or any court order, and they are not required to swear or affirm, under any penalty, that their evidence is clear and convincing. All that this legislation requires is that “clear and convincing evidence” be “in the opinion of the governor”. A clear violation of the constitutions of both the State of New York and the United States.
Second, any warrant must “particularly describing the place to be searched, and the persons or things to be seized.” Tell me, how can someone particularly describe the persons to be seized, when the standard in the legislation is:
identifying such persons either by name or by a reasonably specific description of the individuals or group being detained.
State of New York Assembly Bill 416
What is a “reasonably specific description” of an individual? And at what point does a “reasonably specific description” of a group become anything but a general warrant? Is membership in the synagogues that sued the city for their right to exercise their religion a “reasonably specific description”? What about those who live in a nursing home, work in a certain location, or are just believed to have gone to a park? Is that a “reasonably specific description” for you to be detained and interned? Do you really want your freedom to be based on how reasonably specific some political bureaucrat describes a group?
Furthermore, you don’t even need to be served with one of these illegal orders:
A copy of any detention order of the governor or his or her delegee issued pursuant to subdivision two of this section shall be given to each detained individual; however, if the order applies to a group of individuals and it is impractical to provide individual copies, it may be posted in a conspicuous place in the detention premises.
State of New York Assembly Bill 416
That’s right. If you are believed to be in one of these groups that have been targeted for detention, you don’t even need to be served before you are taken into custody. Will people be taken from homes, work, schools, or swept up off the streets, only to find out later that they were accused of being subject to an illegal detention order? Hasn’t Mr. Perry heard of a little thing called Due Process?
Due Process
No person shall … be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
Maybe the confusion is the fact that I could not find the words “due process” in the New York Constitution. However, it is part of the supreme law of the land, the Constitution of the United States of America, a document which Mr. Perry was required to support in his oath of office.
So what is this due process and why does it matter?
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
Due Process – The Free Legal Dictionary
So due process is a process that makes sure you get what you are due. In other words, for a process to be due, it must protect the rights of the individual. It’s unfortunate this legislation does nothing of the sort.
A person or group removed or detained by order of the governor or his or her deluge pursuant to subdivision two of this section shall be detained for such period and in such manner as the department may direct in accordance with this section.
State of New York Assembly Bill 416
There is no trial by jury, no presentment of evidence, no right to confront your accuser, challenge their evidence, or even to have the assistance of counsel. If the governor or his delegate issues the order, you simply go to jail, you do not pass go, and you do not collect $200.
Guilty Until Proven Innocent
When a person or group is ordered to be detained pursuant to subdivision two of this section for a period not exceeding three business days, such person or member of such group shall, upon request, be afforded an opportunity to be heard. If a person or group detained pursuant to subdivision two of this section needs to be detained beyond three business days, they shall be provided with an additional commissioner’s order pursuant to subdivisions two and eight of this section.
State of New York Assembly Bill 416
How generous of the New York Legislature. If you are illegally detained, you can get the opportunity to “be heard”, but only if you request it. And just who will hear your case? Some bureaucrat from a local health department? The governor or one of his designees? There is no requirement here that your case be heard, in public, by a competent court, much less a jury of your peers, as required by the constitutions of both the State of New York (Article I, § 2) and the United States (Amendment VI).
When a person or group is ordered to be detained pursuant to subdivision two of this section for a period exceeding three business days, and such person or member of such group requests release, the governor or his or her delegee shall make an application for a court order authorizing such detention within three business days after such request by the end of the first business day following such Saturday, Sunday, or legal holiday, which application shall include a request for an expedited hearing. After any such request for release, detention shall not continue for more than five business days in the absence of a court order authorizing detention. Notwithstanding the foregoing provisions, in no event shall any person be detained for more than sixty days without a court order authorizing such detention.
State of New York Assembly Bill 416
Finally, we see the courts involved, but only if you are detained for more than three business days. Then the governor can apply for a court order, has up to three business days to do so, and the court has another five business days to issue the order. So even if you request release the day you are interned, it can take over a week before either a court issues an order or the governor is forced to release you. In America, we are supposed to be innocent until proven guilty. In Mr. Perry’s New York, you are guilty until you can prove yourself innocent. So much for the right to petition your government for a redress of grievances.
Internment Camps?
Such person or group of persons shall be detained in a medical facility or other appropriate facility or premises designated by the governor or his or her delegee and complying with subdivision five of this section.
State of New York Assembly Bill 416
In 1942, President Roosevelt ordered the Secretary of War to have “military areas” created for the detention of those, who in the opinion of the military, could be a national security risk. Now, Mr. Perry wants Governor Cuomo to create “medical areas” for the detention of those he thinks may carry a dangerous disease. Have we truly learned nothing from history? Roosevelt’s camps were used to intern innocent Americans simply because they were of Japanese descent. Doesn’t anyone in the New York State government see that what Mr. Perry is proposing are internment camps for another purpose? In a state with a history of using the power of the state to force their citizens into compliance, do you really think these camps will not be used to punish those who challenge Governor Cuomo’s illegal orders? Will business owners who peacefully refuse to comply with the illegal orders to shut down now be sent to camps? What about the religiously devout? Will they be sent to camps as well? Could the Empire State descend to the point where political disagreement about government overreach in the medical field becomes grounds for internment? I ask again, have we learned nothing from history? This sounds more like Stalin’s Russia, Mao’s China, or Pol Pot’s Cambodia than a free nation.
A person who is detained in a medical facility, or other appropriate facility or premises, shall not conduct himself or herself in a disorderly manner, and shall not leave or attempt to leave such facility or premises until he or she is discharged pursuant to this section.
State of New York Assembly Bill 416
Mr. Perry wants to make sure that when you are illegally detained, interned in an illegal camp, denied your rights and the protection of the law, that you behave yourself. Make no mistake, the internment camps Mr. Perry proposes are political prisons. Regardless of the excuses used, anyone in one of these camps is a political prisoner. They have been incarcerated under an illegal law that not only violates the constitutions of the State of New York and the United States, making that law void.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
Marbury v. Madison Opinion
It seems to me that the first duty of a political prisoner would be to escape from the prison camp and let the world know what is going on.
Slaves of the State
In addition to the removal or detention orders referred to in subdivision two of this section, and without affecting or limiting any other authority that the commissioner may otherwise have, the governor or his or her delegee may, in his or her discretion, issue and seek enforcement of any other orders that he or she determines are necessary or appropriate to prevent dissemination or transmission of contagious diseases or other illnesses that may pose a threat to the public health including, but not limited to, orders requiring any person or persons who are not in the custody of the department to be excluded; to remain isolated or quarantined at home or at a premises of such person’s choice that is acceptable to the department and under such conditions and for such period as will prevent transmission of the contagious disease or other illness; to require the testing or medical examination of persons who may have been exposed to or infected by a contagious disease or who may have been exposed to or contaminated with dangerous amounts of radioactive materials or toxic chemicals; to require an individual who has been exposed to or infected by a contagious disease to complete an appropriate, prescribed course of treatment, preventive medication or vaccination, including directly observed therapy to treat the disease and follow infection control provisions for the disease; or to require an individual who has been contaminated with dangerous amounts of radioactive materials or toxic chemicals such that said individual may present a danger to others, to undergo decontamination procedures deemed necessary by the department. Such person or persons shall, upon request, be afforded an opportunity to be heard, but the provisions of subdivisions two through eleven of this section shall not otherwise apply.
The provisions of this section shall not be construed to permit or require the forcible administration of any medication without a prior court order.
State of New York Assembly Bill 416
Not only does Mr. Perry want to give the Governor the authority to intern you based solely on his opinion of the evidence, he apparently wants the Empire State to live up to its nickname. Mr. Perry proposes allowing the government to enforce isolation, quarantine, medical tests, treatments, decontaminations, medications, and vaccinations solely at the discretion of the Governor or his delegate. What do you call a person who lives at the whim of another? A person who has no legally protected right to themselves? Someone who can be forced to act against their will at the discretion of another? One term would be a subject of a king or emperor. In my opinion, a better term would be a slave.
Conclusion
I cannot describe just how disgusted I am that a servant of the people in America could even propose such despotic legislation. Mr. Perry’s bill goes far beyond the tyranny that drove our Founding Fathers to war against their mother country. And as of the time I’m writing this, not only is the legislation scheduled to be considered, but the people of the State of New York appear either unaware of what their government is considering or unwilling to even say something about it. Maybe those in Albany have so cowed their constituents that they can do whatever they want. Perhaps so many of the citizens of a once great state have become sheep, simply following their leaders into captivity. I pray that I am wrong. I pray that the people of New York remember their history, stand up to this attempt to repeat the mistakes of the past, and remove from office those who would even consider such an abuse of the people they serve and the oath they have taken.
I know our immediate thought on this is the current pandemic, but do you remember what was happening in New York City as Covid-19 hit? The spread of measels among certain Jewish communities. The city was banning unvaccinated individuals from public places. Officials would have loved to have had the power to lock them up for public safety. However, no one died, and the spread was mostly among those who had chosen not to vaccinate. I think officials had that situation in mind when drafting the bill.
https://abcnews.go.com/US/measles-outbreak-spreads-york-citys-orthodox-jewish-community/story?id=61410838
There’s a reason why this legislation refers to “communicable disease”, not COVID or the cornavirus. And I doubt this would be limited to actual public health issues.
What scares me is how few people seem to remember what happened to American citizens back in the 1940s. We are dooming ourselves to repeat history.