Reasonableness of Detention, But Also Her Right to a Hearing

WASHINGTON, D.C. (October 23, 2015) – The law suit just filed by the nurse who was quarantined upon returning to the U.S. after treating Ebola patients in Africa raises novel legal issues, and the outcome may well depend not only on which legal theory is emphasized, but also on whether a major presidential candidate is willing to accept the adverse publicity to save his state a small amount of money to which she may well be entitled even on non-legal grounds, says public interest law professor John Banzhaf.

If Kaci Hickox primarily relies upon the claim that her 80-hour detention was unreasonable, she will almost certainly lose, since public health officials have wide discretion in combating life-and-death health hazards, especially when so many of the key parameters – e.g. , how easily was the disease spread, how long could a symptom-free person remain contagious, etc. – couldn’t be known with any reasonable certainty.

It’s very telling that New York joined New Jersey in establishing mandatory quarantine procedures for persons arriving in the U.S. after being in contact with Ebola patients, that surveys showed broad public support for the quarantine, and that many responsible voices strongly urged far more restrictive measures to protect public health.

Even if the chance of infecting others  – and thereby likely condemning them to death – was only 1 in 100, it’s hard to argue that her freedom for 80 hours is clearly more important.

On the other hand, under the Constitution, no person may be deprived of liberty without Due Process of Law – which means some kind of a hearing to determine the lawfulness of the detention.

Nurses treating Ebola patients are entitled to a hearing

If even mass murderers and terrorists are entitled to a preliminary hearing shortly after their arrest to determine its lawfulness, it can be argued that a valiant nurse risking death to treat Ebola patients should likewise have been entitled to nothing less – to some kind of hearing to promptly test whether she should be detained, how long, under what conditions and protocols, etc., argues Banzhaf.

Thus, New Jersey and its Governor, Chris Christie, probably should have held – or at least offered Hickox – some kind of formal hearing very shortly after her quarantine began at which she could present any facts or arguments as to why she should not be quarantined. This would cure any argument that she was “denied her day in court” – which many believe is a very fundamental American right.

But, adds Banzhaf, noting that the ACLU is now representing her, that same organization could have filed a motion in the nature of habeas corpus to obtain just such a hearing at the time, but they failed to do so.  In short, it failed to use an established legal procedure to obtain what it is now suing over.

There is still another legal as well as moral argument for the nurse, says Banzhaf.

Sometimes, if the government, in the interests of the public, seizes someone’s property, it must pay reasonable compensation.

Similarly, if someone’s liberty is temporarily taken away by the government to protect the public, it seems only fair – and might even be constitutionally required – that the public whose interests were protected compensate the innocent victim whose liberty or property had to be interfered with.

In the end, since her suit suggests only some $250,000 in damages, Christie might find settling with her a cheap price to pay to avoid what might be embarrassing publicity at a crucial time for him, suggests Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf

Nurse's Ebola-Quarantine Suit Raises Novel Issues