UPDATE! Governor Stitt declared a “health emergency” on April 2, 2020.
On March 15, 2020, Oklahoma Governor Kevin Stitt issued his first Coronavirus executive order. He declared that there was “an emergency caused by the impending threat of COVID-19 to the people of this State and the public’s peace, health, and safety.” He activated the State Emergency Operation Plan. The only authority he cited in his declaration was Article VI Section 2 of the Oklahoma Constitution.
On March 24, Governor Stitt issued his Fourth Amended Executive Order. Among many other things, he banned gatherings of more than ten people. He also ordered that businesses not deemed “essential” to close.
Based on my research, I believe these executive orders are invalid. Succinctly, the governor is trying to shoehorn this situation into Oklahoma’s Riot Control and Prevention Act. There was neither a riot nor impending riot that required the use of this Riot Act.
Where does the governor’s authority to do this come from?
After asking people and the media for weeks where this power comes from and not getting an answer, I finally decided to do the research myself. It was not easy to find.
My initial research took me to 63 O.S. § 1-504, the law covering quarantine in our Public Health Code. It talks about what a local health officer can do when he or she determines or suspects that someone has a communicable disease of public health concern. This is what most other sites believe gives the governor his powers during this pandemic. Not correct.
I thought that maybe the Attorney General’s clarification on the governor’s executive order would be helpful since he said that a violation of the executive order is a misdemeanor. There was no citation in the AG’s memo to any law. Maybe he was referring to 21 O.S. § 1195, Penalty for Violating Quarantine Laws or Orders? Nope, since that refers to orders by a “health officer”–not the governor.
Riot Control and Prevention Act
This law states, “The Governor, after finding that a public disorder, disaster or riot exists within this state or any part thereof which affects life, health, property or the public peace, may proclaim a state of emergency in the area affected.”
So in order for this act to be invoked, there must be either a public disorder, disaster, or riot. The clear intent of this law is that it be invoked when there’s either rioting/civil unrest in the streets or the danger of immediate rioting or civil unrest, due to some sort of “disaster.” There’s obviously no riot or public disorder. So is he saying there’s currently a “disaster”? Requiring the issuance of an executive order closing businesses and preventing more than 10 people from gathering in one location? Apparently he does. I don’t. I think this is an abuse of this statute. It clearly wasn’t intended for use with “health emergencies.”
Catastrophic Health Emergency Powers Act
Proof that the Riot Control and Prevention Act wasn’t meant for health emergencies is the fact that we already have a Catastrophic Health Emergency Powers Act, which is specifically for health emergencies–obviously. A “catastrophic health emergency” is defined as an occurrence of imminent threat of an illness or health condition that:
- is believed to be caused by any of the following:
- a nuclear attack,
- a chemical attack, or
- the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin, and
- poses a high probability of any of the following harms:
- a large number of deaths in the affected population,
- a large number of serious or long-term disabilities in the affected population, or
- widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population.
Why didn’t Governor Stitt declare a catastrophic health emergency under the Catastrophic Health Emergency Powers Act? Perhaps it’s because the Riot Act gives the governor more powers? There’s no criminal penalty associated with the violation of the Health Act. With the Riot Act, there are two provisions that allow for criminal penalties. So when it comes to controlling peoples’ behavior, the Health Act has no teeth–the Riot Act does.
Can I get charged with a crime for not following the executive order?
According to our AG, violating the executive orders is a misdemeanor. So, yes, you can be arrested and charged with violating the executive orders. But, is the executive order lawful? I don’t think so. It’s fundamentally flawed because it’s using a law that wasn’t intended for this purpose. They’re stretching the limits of the Riot Act to fit their goals.
Is this really a “disaster”? I believe the statute intended this to be used for natural disasters–such as tornadoes. When a tornado hits a town, it could decimate utilities and law enforcement’s ability to do its job. The governor would typically declare it a “disaster area” for obvious reasons. Is all of Oklahoma now a “disaster area” because some people are infected with a virus? I don’t think so.
Disaster is defined as “a sudden event, such as an accident or a natural catastrophe, that causes great damage or loss of life.” It sets a terrible precedent to declare something a “disaster” when there’s not an event that actually constitutes a real disaster.
How are cities able to threaten business and people who don’t comply?
Cities do this because they have their own municipal code that’s authorized under the Riot Act. Oklahoma City’s municipal code says that, “The Mayor, after finding that a public disorder, disaster or riot exists which affects life, health, property or the public peace, may proclaim a state of emergency in the area affected.” It references riots and things that go on during riots in adjacent sections of the code. So, again, this code was clearly written to deal with RIOTS or the threat of RIOTS–not viruses. The penalty for violating this law is up to six months in jail and a $750 fine. Since I believe these municipalities are declaring emergencies based on an illegitimate application of the Riot Act, the municipalities’ orders are also invalid.