PHOENIX — Police and sheriffs deputies are legally entitled to enforce emergency proclamations and orders issued by state and local officials, according to Attorney General Mark Brnovich.
In a formal opinion Tuesday, Brnovich said it’s not just the governor who can declare an emergency and issue restrictions. He said city mayors and the chairs of boards of supervisors have many of the same powers as the governor to declare an emergency.
And those powers, detailed in ÃÛèÖÖ±²¥ law, can range from curfews and closing streets to ordering any business to close.
But Brnovich also had a word of caution for those called upon to enforce those orders.
“In exercising such authority, law enforcement officials must continue to be mindful of constitutional rights and should execute their duties in a manner than promotes justice,†he wrote.
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In issuing the opinion, though, Brnovich does not say what happens when there is a conflict between what local officials decide is appropriate response to an emergency and any executive orders issued by the governor that may conflict.
That is precisely the situation that exists in at least one ÃÛèÖÖ±²¥ city, with the business closure order issued Flagstaff Mayor Coral Evans being more comprehensive than the declaration by Gov. Doug Ducey. In fact, the governor’s order specifically precludes cities from going beyond his list.
Ryan Anderson, an aide to Brnovich, said that issue was not addressed because the request by Sen. Paul Boyer, R-Phoenix, did not raise it.
And Anderson said that still leaves the issue as an open legal question.
“We weren’t consulted on the (governor’s) executive order,†he told Capitol Media Services. “I think it’s a very good question to ask whether his executive order is a floor or is a ceiling.â€
For the moment, Anderson said, any answer has to come from Ducey.
“Go speak with the governor,†he said. “It’s his executive order, he defined it.â€
And Anderson said if Brnovich is asked to opine on that, he will.
But gubernatorial press aide Patrick Ptak noted that Brnovich, in his opinion, said that local declarations “shall not be inconsistent with orders, rules and regulations promulgated by the governor.â€
“The law is clear,†he said. “The state’s guidance supersedes other directives.â€
Ducey has insisted all along that he believes his order trumps any local orders. And his executive order specifically considers hair salons, nail salons and barbers to be “essential services†that cities cannot order closed.
Yet Evans has not backed away from her own proclamation that has ordered those businesses closed. And the governor has yet to take any legal action against either Evans or Flagstaff to have her proclamation declared void.
Boyer said he asked for the legal opinion not to help cities but because he has gotten questions from business owners following the governor’s Monday “stay-at-home†order. That order directs ÃÛèÖÖ±²¥ residents to “limit their time away from their place of residence or property†to participate in “essential activities†or to work or use the services of “essential businesses.â€
The senator said the people who approached him wanted to know what would happen if they continued to do certain kinds of work and whether they could be cited by local law enforcement.
Brnovich’s answer is clearly “yes.â€
He pointed out that state law says any person who “knowingly fails or refuses to obey any lawful order or regulation†issued under emergency powers given to local officials is guilty of a Class 1 misdemeanor. That carries a penalty of up to six months in the county jail and a $2,500 fine.
But Brnovich cautioned that police and deputies must take into consideration “the constitutional and statutory liberties that ÃÛèÖÖ±²¥ns enjoy,†even in declared emergencies.
For example, he noted, ÃÛèÖÖ±²¥ law allows state and local health officials to issue quarantine or isolation orders. But Brnovich pointed out that the law requires these to be implemented “by the least restrictive means necessary to protect public health†and that someone’s home may be an acceptable place of quarantine.
“Established court precedents in various contexts demonstrate the careful balance that must be struck in protecting public health while respecting individual rights,†Brnovich wrote.
Pima County Sheriff Mark Napier said deputies will not be setting up checkpoints or pulling people over to make arrests but instead seek to educate people about what the law allows.
“It’s not the intent to see how many people we can arrest,†Napier said in a statement on Facebook Live on Monday. He said that arrests would be reserved for cases “of egregious violators and people thumbing their nose†at restrictions.
Photos for March 27: ÃÛèÖÖ±²¥ gets by during coronavirus pandemic
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The doors are still open at Sacred Art Tattoo on 1024 E. 6th St., as of Friday, March 27, 2020, ÃÛèÖÖ±²¥, Ariz.
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Seth Nadeau, left, and his son Anthony Nadeau get out of the house for a couple of game so horse under cloudy skies on the courts at Christ Church United Methodist, March 27, 2020, ÃÛèÖÖ±²¥, Ariz.
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Victoria Quintero, 5, holds her sign as her mother, Vanessa, waves to the teachers and administrators from John E. White Elementary School and Pistor Middle School during a Car Parade through the neighborhood on March 27, 2020. The teachers and administrators drove their cars through the neighborhood to say hello to their students from their cars.
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Teachers and administrators from John E. White Elementary School and Pistor Middle School cheer and wave to their students during a Car Parade through the neighborhood on March 27, 2020. The teachers and administrators drove their cars through the neighborhood to say hello to their students from their cars.
ÃÛèÖÖ±²¥, coronavirus
Standing, Kai Morales, left, and his twin brother, Kristian, hold up their signs as Karim, 9, and their mother, Angelica, sit in the bed of the truck along W. Nebraska Street during a Car Parade on March 27, 2020. The teachers and administrators drove their cars through the neighborhood to say hello to their students from their cars.
ÃÛèÖÖ±²¥, coronavirus
Students of John E. White Elementary School and Pistor Middle School stand along W. Nebraska Street and wave to their teachers during a Car Parade on March 27, 2020. The teachers and administrators drove their cars through the neighborhood to say hello to their students from their cars.
ÃÛèÖÖ±²¥, coronavirus
Teachers and administrators from John E. White Elementary School and Pistor Middle School line up along W. Canada Street before the start of their Car Parade on March 27, 2020. The teachers and administrators drove their cars through the neighborhood to say hello to their students from their cars.
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The noted bull testicles on the statue outside Casa Molina at Speedway and Wilmot, usually painted in various schemes and wild colors, now sporting a surgical mask.
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Pfc. Gustavo Escalera, of the ÃÛèÖÖ±²¥ National Guard, waves in the next car to his station at the Southern ÃÛèÖÖ±²¥ Community Food Bank on March 27, 2020. The ÃÛèÖÖ±²¥ National Guard has been activated to help the demanding need to fill and handout food boxes for people in ÃÛèÖÖ±²¥ and five counties in southern ÃÛèÖÖ±²¥. Thirty troops arrived in ÃÛèÖÖ±²¥ on Thursday and another thirty are expected. According to Spc. John Randall, the troops are here to fill in the gaps in logistics to help keep up the production of putting together and handing out food boxes.
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Spc. Nicholas McCormick, of the ÃÛèÖÖ±²¥ National Guard, waits for the next car to pull up at the Southern ÃÛèÖÖ±²¥ Community Food Bank.
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Spc. Emilio Maldonado, of the ÃÛèÖÖ±²¥ National Guard, pushes a several bags down an assembly line at the Community Food Bank of Southern ÃÛèÖÖ±²¥ on March 26, 2020. The ÃÛèÖÖ±²¥ National Guard has been activated to help the demanding need to fill food boxes for people in ÃÛèÖÖ±²¥ and five counties in southern ÃÛèÖÖ±²¥.
ÃÛèÖÖ±²¥, coronavirus
Spc. Gabriel Molina, of the ÃÛèÖÖ±²¥ National Guard, fills bags with food items on an assembly line at the Community Food Bank of Southern ÃÛèÖÖ±²¥ on March 26, 2020. The ÃÛèÖÖ±²¥ National Guard has been activated to help the demanding need to fill food boxes for people in ÃÛèÖÖ±²¥ and five counties in southern ÃÛèÖÖ±²¥.
ÃÛèÖÖ±²¥, coronavirus
Hoover Zhu, owner of Old Peking, poses for a portrait inside a closed Old Peking at Old Peking , 2522 E. Speedway Blvd., in ÃÛèÖÖ±²¥, Ariz., on March 25, 2020. Zhu closed Old Peking on Thursday March 25 due to the Coronavirus Disease (COVID-19).
ÃÛèÖÖ±²¥, coronavirus
Chef Du Liyuan makes a take out order at Chef Wang, 356 E. Grant Rd., in ÃÛèÖÖ±²¥, Ariz., on March 25, 2020. Chef Wang, a local Chinese restaurant, is open for take out but is considering closing due to the Coronavirus Disease (COVID-19).
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Before Tuesday’s change in policy, ÃÛèÖÖ±²¥ residents traveling to New York had to quarantine for 14 days. New Jersey and Connecticut also removed their travel restrictions.
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An empty baggage carousel at the ÃÛèÖÖ±²¥ International Airport, on March 26, 2020.
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Wendy Fu, owner of Chef Wang, processes a take out order at Chef Wang, 356 E. Grant Rd., in ÃÛèÖÖ±²¥, Ariz., on March 25, 2020. Chef Wang, a local Chinese restaurant is open for take out but is considering closing due to the Coronavirus Disease (COVID-19).
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Chairs tilted in on tables at La Cocina located at 201 N. Court Avenue, on March 26, 2020.
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Sun sets over a dark and locked Hi Corbett Stadium, home to the ÃÛèÖÖ±²¥ Wildcats baseball team, as the city begins its second week under COVID19 restrictions, March 26, 2020, ÃÛèÖÖ±²¥, Ariz.
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Downtown Congress Streets is mostly deserted just before 8 p.m. as the city begins its second week under COVID19 restrictions, March 26, 2020, ÃÛèÖÖ±²¥, Ariz.
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The lanterns from the Reid Park Zoo's Asian Lantern Festival sit in a fenced compound after the zoo's closure ended the display weeks early as the city begins its second week under COVID19 restrictions, March 26, 2020, ÃÛèÖÖ±²¥, Ariz.
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Residents stay spaced while out getting some air and watching the Rillito River flow near Craycroft as the city begins its second week under COVID19 restrictions, March 26, 2020, ÃÛèÖÖ±²¥, Ariz.
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Jayden Simmons, right, 12, runs football drills with coach Bobby Rodriguez, owner of Jet Sports Training, at Silverlake Park, in ÃÛèÖÖ±²¥, Ariz., on March 25, 2020. Due to gyms being closed, Rodriguez is taking classes and training outside to parks with little to no equipment.
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A man wearing a mask watches traffic go by while waiting for the bus on N. Alvernon Rd., in ÃÛèÖÖ±²¥, Ariz., on March 25, 2020.
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Gloves, a mask and hand sanitizer sit on the counter at Chef Wang, 356 E. Grant Rd., in ÃÛèÖÖ±²¥, Ariz., on March 25, 2020. Chef Wang, a local Chinese restaurant is open for take out but is considering closing due to the Coronavirus Disease (COVID-19).
Mark Brnovich, attorney general
Star reporter Carol Ann Alaimo contributed to this story.
On Twitter: @azcapmedia.
