New York bill proposes to detain disease carriers the governor deems ‘dangerous to the public health’

Assembly Bill A416 "[r]elates to the removal of cases, contacts and carriers of communicable diseases who are potentially dangerous to the public health."

The public health law is amended as follows. Relevant to the COVID-19 pandemic, the provisions shall be utilized "in the event that the governor declares a state of health emergency to due to an epidemic of any communicable disease."

"Upon determining by clear and convincing evidence that the health of others is or may be endangered," the governor or his or her delegee, including, but not limited to the commissioner or the heads of the local health departments, may order the removal or detention of the person or group in question "by name" or "reasonably specific description." The burden rests on the state leaders to "prove the particularized circumstances constituting the necessity for such detention by clear and convincing evidence.

In summary, a confirmed or suspected subject can be detained until such time that state authority determines that such a person or group is no longer contagious.

"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," the bill stipulates.

If state powers decide the situation calls for an extension beyond the allotted three-day period, the person or group shall be provided with an "additional commissioner's order."

"After any such request for release, detention shall not continue shall not continue for more than five business days in the absence of a court order authorizing detention," the bill continues. "In no event shall any person be detained for more than sixth days without a court order authorizing such detention."

However, the governor or his or her delegee shall seek further court review of such detention within 90 days following the initial court order authorizing the state's intervention and thereafter within 90 days of each subsequent court review.

A person detained in a medical facility "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."

The individual "has the right to be represented by legal counsel." Additionally, the subject may supply the address and telephone numbers of friends or relatives so that they may "receive notification of the person's detention."

The bill was introduced by motion of Assemblyman N. Nick Perry, read into the assembly, and then passed on to the assembly's committee on health. Perry proposed the legislation currently in committee for pre-submission to the assembly for the 2021 session.

The Libertarian Party of New York has since denounced the bill and "stands opposed to these mandates." The organization's chair, Cody Anderson, called on all New York State assemblymen and senators to reject the bill.

The party suggests that the bill goes on to specify no specific timeframe, location or criteria for the termination of this detention, instead leaving that to the discretion of the governor.

"Let's put aside for a moment the egregious privacy violation in issuing an order announcing an individual to be a health risk," Anderson stated via press release. "This bill offers a clear and direct path to unconstitutional and indefinite detainment, on the governor’s sole authority. No US state was ever meant to have a single person acting as judge and jury, without checks or balances; if this bill is allowed to pass, that is exactly what New York will have."