Challenging Pima County’s Curfew

The COVID-19 pandemic has presented enormous challenges for Arizonans. Public officials have been forced to balance the obligation to protect public safety with the need to ensure the availability of goods and services—and to respect constitutional rights. Unfortunately, public officials have occasionally exceeded their lawful authority and impose illegal restrictions on individuals and businesses who are already struggling under the burden of this national emergency. This case presents one such example.

Arizona’s Emergency Management Act provides strict rules for how state and local governments may operate in emergencies. The Act gives local governments power to protect public safety—but also requires local governments to obey orders issued by the governor. But despite the fact that Governor Doug Ducey issued an emergency order in May 2020 that set out rules for how businesses could operate in the pandemic—and explicitly prohibiting counties from imposing other restrictions—Pima County officials disregarded those rules and impose a 10 p.m. to 5 a.m. curfew, which businesses are required to enforce, on pain of losing their licenses.

That order violates state law and Governor Ducey’s emergency order. Not only does that order explicitly forbid Pima County from adopting any regulation “that … is in addition to” the rules issued by the Governor, but it also expressly forbids counties from adopting “any order restricting persons from leaving their homes.”

Even if the Governor had not issued his order, the curfew would be illegal. Arizona law allows counties to adopt emergency curfews only when “necessary … to preserve the peace and order.” But the pandemic hasn’t caused any disorder. The county’s curfew powers only apply to situations involving violence, or sudden disasters—not to chronic, ongoing, but nonviolent emergencies such as a year-long pandemic.

A group of business owners sued Pima County to challenge the legality of the curfew order. We filed this friend of the court brief in the trial court to support their challenge.