About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

12 ConLawNOW 1 (2020-2021)

handle is hein.journals/akjopal12 and id is 1 raw text is: SYMPOSIUM: PANDEMICS AND THE CONSTITUTION WHY THE SPECIAL NEEDS DOCTRINE IS THE MOST APPROPRIATE FOURTH AMENDMENT THEORY FOR JUSTIFYING POLICE STOPS TO ENFORCE COVID-19 STAY-AT-HOME ORDERS Henry F. Fradella* To a large extent, the COVID-19 pandemic has brought the United States into uncharted territory on a number of fronts. Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. Enforcement of these public health orders falls to police. But police authority to stop and question people-even during a pandemic-must nonetheless comply with the requirements of the Fourth Amendment. Given the compelling governmental interest in limiting the spread of COVID-19, reasonable police actions to enforce public health orders are likely constitutional under several theories, even if stops are made without particularized suspicion. Of those, however, the special needs doctrine is best suited for this purpose because it is the approach most likely to safeguard civil liberties after the pandemic ends. The U.S. Supreme Court has only rarely addressed the extent to which the police power of the state outweighs individual rights and liberties in the context of governmental efforts to stop the spread of * Professor and Associate Director, Arizona State University School of Criminology and Criminal Justice; Affiliate Professor of Law, Arizona State University Sandra Day O'Connor College of Law. Dr. Fradella earned a master's in forensic science and a J.D. from The George Washington University and a Ph.D. in justice studies from Arizona State University. He is the author of eleven books printed by publishers such as Oxford University Press, the University of California Press, and NYU Press, as well as approximately 100 scholarly articles, essays, reviews, and commentaries. 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most