1 Joseph Martin McGhee

P.O. Box 91
2 Flagstaff, AZ 86002
Tel: (928) 600-0954
3 mcghee.v.city.of.flagstaff.et.al@gmail.com
4 Plaintiff, in Pro Per
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8 Joseph Martin McGhee, No. 3:20-cv-08081-GMS
9 Plaintiff, PLAINTIFF’S MEMORANDUM
OF LAW IN SUPPORT OF
10 vs. VERIFIED THIRD AMENDED
COMPLAINT FOR
11 The City of Flagstaff; Coral Evans, Sued in DECLARATORY AND
her Official Capacity as Mayor of the City of INJUNCTIVE RELIEF
12 Flagstaff; Doug Ducey, Sued in his Official
Capacity as Governor of the State of Arizona, Assigned to the Hon. G. Murray Snow
13
Defendants.
14
15
16 MEMORANDUM OF LAW
17 A. Defendants Have No Claim To Absolute, Qualified, Or Sovereign Immunity
18 1. Absolute Immunity
19 Local governmental units are not entitled to absolute immunity.1 Governors and
20 other state executive officials are likewise not entitled to absolute immunity. 2
21 2. Qualified Immunity
22 Local governmental units are not entitled to a qualified-immunity defense to §
23 1983 liability and are unable to rely on the municipal employees qualified-immunity
24
25 1 See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507
U.S. 163, 166 (1993)
26 2 See Scheuer v. Rhodes, 416 U.S. 232, 247–49 (1974), abrogated on other grounds
by Harlow v. Fitzgerald, 457 U.S. 800 (1982)
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 1 defense to § 1983 claims.3 Municipal employees sued in their official capacity are
2 likewise not entitled to qualified immunity.4 The City of Flagstaff and Mayor Evans are
3 not entitled to qualified immunity in this matter. Governor Ducey is not entitled to
4 qualified-immunity because he is a person sued in his official capacity under § 1983.5
5 3. Sovereign Immunity
6 Governor Ducey is not entitled to sovereign immunity under the Eleventh
7 Amendment because he is a person under § 1983, not a state. Moreover, even if he were
8 entitled to sovereign immunity removal to federal court waives this immunity. 6
9 B. Plaintiff Is Not Required To File A Notice Of Claim
10 Plaintiff only seeks declaratory and injunctive relief. He is therefore not required
11 to comply with the notice of claims statute as set forth under A.R.S. § 12-821.01.7
12 C. Elements Of The Claims Against The City Of Flagstaff And Mayor Evans
13 A person deprives another of a constitutional right, “within the meaning of
14 § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or
15 omits to perform an act which he is legally required to do that causes the deprivation of
16 which complaint is made.’”8
17 A plaintiff asserting municipal liability claims under § 1983 must plead five
18 elements in order to properly state a claim upon which relief may be granted: (1) A
19 3 See Brandon v. Holt, 469 U.S. 464, 473 (1985)
4 See Eng v. Cooley, 552 F.3d 1062, 1064 n.1 (9th Cir. 2009); See also Hallstrom v.
20 City of Garden City, 991 F.2d 1473, 1482 (9th Cir. 1992)
5 See Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010)
21 (“Qualified immunity … is a defense available only to government officials sued in their
individual capacities [and is not] available to those sued only in their official capacities.”)
22 6 See Embury v. King, 361 F.3d 562 (9th Cir. 2004)
7 See State v. Mabery Ranch, Co., L.L.C., 216 Ariz. 233, 165 P.3d 211 (2007)
23 (holding that notice of claims statute, A.R.S. § 12-821.01, is inapplicable to claims for
injunctive relief) Cf. Martineau v. Maricopa County, 207 Ariz. 332 (App. 2004) (holding
24 § 12-821.01 inapplicable to claims for declaratory judgment)
8 Preschooler II v. Clark Cty. Sch. Bd. Of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007)
25 (“The requisite causal connection may be established when an official sets in motion a
‘series of acts by others which the actor knows or reasonably should know would cause
26 others to inflict’ constitutional harms.” (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th
Cir. 1978))(emphasis added)
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 1 violation of federally-protected rights;9 (2) caused by a “person”;10 (3) acting under color
2 of state law;11 (4) attributable to a municipal policy or practice;12 and (5) proximately
3 causing injury to plaintiff(s).13
4 1. Violation Of Federally-Protected Rights
5 Mayor Evans’ Proclamations Under Declaration Of Local Emergency, and the
6 City of Flagstaff’s enforcement of these, have violated Plaintiff’s Fifth and Fourteenth
7 Amendment rights under the United States Constitution.
8 2. Caused By A Person
9 Mayor Evans is a person for the purposes of § 1983 because she is a public official
10 sued for injunctive relief for acts undertaken in her official capacity14 and who has
11 implemented an official policy or practice as an employee of the City of Flagstaff. 15
12 Liability is therefore imposed upon the City of Flagstaff for Mayor Evans' acts.
13
9 See Dennis v. Higgins, 498 U.S. 439, 444-45 (1991)(although the respondents in
14 Higgins argued that "the 'prime focus' of § 1983 was to ensure 'a right of action to
enforce the protections of the Fourteenth Amendment . . .' the court stated that the scope
15 of § 1983 has never been construed so narrowly)
10 See Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658, 690
16 (1978) (holding Congress intended municipalities and local governments to be included
as a 'person' under Section 1983, but a local government may not be sued under § 1983
17 unless an employee or agent of the local government inflicted the injury through the
execution of a government policy or custom)
18 11 See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (holding
that in a proper claim for relief under § 1983 plaintiffs must establish that they were
19 deprived of federally-secured right and that the alleged deprivation was committed under
color of state law)
20 12 See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc),
cert. denied sub nom. (“In order to establish municipal liability, a plaintiff must show that
21 a ‘policy or custom’ led to the plaintiff's injury.”); see also Garmon v. Cty. of Los Angeles,
828 F.3d 837, 845 (9th Cir. 2016) (“[P]laintiffs who seek to impose liability on local
22 governments under § 1983 must prove that action pursuant to official municipal policy
caused their injury.” (internal quotation marks and citations omitted))
23 13 See Martinez v. California, 444 U.S. 277, 285 (1980) (holding that § 1983
imposes a proximate cause requirement for such)
24 14 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); See also Paeste v.
Gov’t of Guam, 798 F.3d 1228, 1235–40 (9th Cir. 2015) (discussing distinction between §
25 1983 suits seeking damages and suits seeking prospective relief)
15 See Hill v. Borough of Kutztown, 455 F.3d 225, 245, 247 (3d Cir. 2006)(holding
26 that a municipality may be held liable in § 1983 actions for the conduct of an individual
employee or officer when that conduct implements an official policy or practice)
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 1 3. Acting Under Color Of State Law
2 A defendant who has exercised power “possessed by virtue of state law and made
3 possible only because the wrongdoer is clothed with the authority of state law” has acted
4 under color of state law.16
5 4. Attributable To A Municipal Policy Or Practice
6 The Proclamations are municipal policy or practice because they are enacted
7 pursuant to Flagstaff City Code § 1-22-001-0002, and A.R.S. §§ 26-307, 26-311.A, 26-
8 311.B.17
9 5. Proximately Causing Injury To Plaintiff
10 On March 20, 2020, Plaintiff’s employment was terminated as a direct result of
11 the Proclamations declared by Mayor Evans’ which prohibit or severely restrict the
12 operation of certain businesses, to include Plaintiff’s now-former employer.
13 D. Elements Of The Claim Against Governor Ducey
14 A plaintiff asserting state actor claims under § 1983 claims must plead four
15 elements in order to properly state a claim upon which relief may be granted: (1) A
16 violation of federally-protected rights; (2) caused by a “person”; (3) acting under color of
17 state law; and (4) proximately causing injury to plaintiff.
18 1. Violation Of Federally-Protected Rights
19 The actions of Governor Ducey in issuing and enforcing Executive Orders #2020-
20 09, 2020-18, and 2020-33, have violated Plaintiff’s Fifth and Fourteenth Amendment
21 rights under the United States Constitution.
22 2. Caused By A Person
23 16 See Coral Constr. Co. v. King Cty., 941 F.2d 910, 926 (9th Cir. 1991)(“Actions
taken pursuant to a municipal ordinance are made ‘under color of state law.”)(emphasis
24 added). See also West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic,
313 U.S. 299, 326 (1941)).
25 17 See Connick v. Thompson, 563 U.S. 51, 61 (2011)(A policy “promulgated,
adopted, or ratified by a local governmental entity’s legislative body unquestionably
26 satisfies Monell’s policy requirement.”)(Cf. Monell v. Dep't of Social Services of the City
of New York, 436 U.S. 658, 690 (1978))
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 1 State officials sued in their official capacity for injunctive relief are persons for
2 purposes of § 1983.18
3 3. Acting Under Color Of State Law
4 Employees of the state are acting under color of state law when acting in their
5 official capacity.19
6 4. Proximately Causing Injury To Plaintiff
7 Governor Ducey’s acts have deprived Plaintiff of his rights to free movement and
8 to be free from arbitrary detention, and his right to engage in gainful employment.
9 E. Executive Order #2020-33 Is An Unlawful And Unconstitutional Per Se Mass
10 Quarantine. It Violates The Fifth And Fourteenth Amendments To The United
11 States Constitution.
12 Quarantine is “the separation and restriction of movement of persons who, while
13 not yet ill, have been exposed to an infectious agent and therefore may become
14 infectious.”20 In contrast to isolation which separates sick people with a contagious
15 disease from people who are not sick, 21 quarantine confines those who are asymptomatic
16 and healthy.22 Under Arizona law, the word “quarantine” as applied to persons – as
17 opposed to livestock or plants – is defined under a single statute as “[t]he restriction of
18 activities of persons who have been exposed to an afflicted person.” A.R.S. § 36-711(19)
19
20
21
18 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Hartmann v. Cal.
22 Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)
19 See West v. Atkins, 487 U.S. 42, 49 (1988); Anderson v. Warner, 451 F.3d 1063,
23 1068 (9th Cir. 2006); McDade v. West, 223 F.3d 1135, 1140 (9th Cir. 2000); Vang v.
Xiong, 944 F.2d 476, 479 (9th Cir. 1991)
24 20 Rosen, George. A History of Public Health. Baltimore: Johns Hopkins University
Press, 1993
25 21 Quarantine and Isolation, U.S. Centers for Disease Control, https://www.cdc.gov/
quarantine/index.html, Accessed April 26, 2020
26 22 Kathleen S. Swendiman & Jennifer K. Elsea, Cong. Res. Serv., Federal and State
Quarantine and Isolation Authority (2007)
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 1 The U.S. Supreme Court has repeatedly upheld the rights of state public health
2 authorities to impose quarantines for the protection of the public. See Jacobson v.
3 Commonwealth of Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 49 L.Ed. 643 (1905).
4 (recognizing the "authority of a state to enact quarantine laws and health laws of every
5 description") (internal quotations and citations omitted). 23 Clearly, a symptomatic person
6 who is infected with a serious disease that will spread from person to person rightly
7 prompts the severe governmental action of isolation. In those cases individual liberty
8 interests necessarily give way to protect the public in an emergency. 24 Nevertheless, Due
9 Process requirements are not abridged by the imposition of a quarantine. See Mugler v.
10 Kansas 123 U.S. 623, 661 (1887)(“It does not at all follow that every statute enacted
11 ostensibly for the promotion of [public health, morals or safety] is to be accepted as a
12 legitimate exertion of the police powers of the state.”).
13 1. Quarantine And Due Process Rights
14 The Fifth and Fourteenth Amendments prohibit governments at all levels from
15 depriving individuals of any constitutionally protected liberty interest without due
16 process of law. Federal and state quarantine laws are therefore subject to constitutional
17 due process constraints. Procedural due process requires that a deprivation of liberty be
18 "accompanied by minimum procedural safeguards, including some form of notice and a
19 hearing." See Mitchell v. W.T. Grant Co., 416 U.S. 600, 624, 94 S.Ct. 1895, 40 L.Ed.2d
20 406 (1974).
21
22
23 See also Compagnie Francaise de Navigation a Vapeur v. La. State Bd. o f
23 Health, 186 U.S. 380, 387, 22 S.Ct. 811, 46 L.Ed. 1209 (1902) ("[T]he power of States
to enact and enforce quarantine laws for the safety and the protection of the health of
24 their inhabitants ... is beyond question."); Ogden v. Gibbons, 22 U.S. (9 Wheat.) 1,203, 6
L.Ed. 23 (1824) (a state has the power "to provide for the health of its citizens" by
25 quarantine laws)
24 Michelle A. Daubert, Comment, Pandemic Fears and Contemporary Quarantine:
26 Protecting Liberty Through a Continuum of Due Process Rights, 54 Buff. L. Rev. 1299,
1318 (2007)
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 1 The U.S. Supreme Court declared being free from physical detention by one’s
2 own government is “the most elemental of liberty interests.” See Hamdi v. Rumsfeld, 542
3 U.S. 507, 529 (2004) It is well settled that freedom from physical restraint is a “liberty
4 interest” protected by the due process clause of the Fourteenth Amendment. See Kansas
5 v. Hendricks, 521 U.S. 346, 356 (1997) Due process generally requires notice and a
6 hearing in advance of a deprivation of liberty. Zinermon v. Burch, 494 U.S. 113, 127, 110
7 S.Ct. 975, 108 L.Ed.2d 100 (1990). This is most salient in the context of quarantining
8 asymptomatic individuals given that asymptomatic individuals are most at risk for
9 unnecessary loss of their liberty and procedural due process violations. Carey v. Piphus,
10 435 U.S. 247, 259 (1978)("Procedural due process rules are meant to protect persons not
11 from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or
12 property.")(citing: Mathews v. Eldridge, 424 U.S. 319, 344 (1976)).
13 Quarantine is not a mere inconvenience. Like a prisoner, a quarantined individual
14 is not free to engage in daily activities or to leave a place, perhaps except under a narrow
15 set of circumstances. The effect of quarantine therefore is that it essentially detains and
16 commits an individual to the custody of the government although no crime has been
17 committed. See Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323
18 (1979)(considering standard of proof required by the Fourteenth Amendment in a civil
19 proceeding brought under state law to commit an individual involuntarily for an
20 indefinite period to a state mental hospital, “civil commitment for any purpose
21 constitutes a significant deprivation of liberty that requires due process protection.")
22 (emphasis added). The government may not intend for a quarantine to be punitive, but it
23 nevertheless is so, and quarantined individuals exhibit a high prevalence of
24 psychological distress.25 Even short durations of quarantine can cause post-traumatic
25
26 25 See, e.g., Laura Hawryluck et al., SARS Control and Psychological Effects of
Quarantine, Toronto, Canada, 10 Canadian J. Psychiatry 1206, 1209–11 (2004)
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 1 stress disorder (PTSD) and depression.26 Studies show 28.9% of quarantined individuals
2 experience symptoms of post-traumatic stress disorder (PTSD) and 31.2% exhibit signs
3 of depression.27
4 In quarantine, the tension between individual liberties and public necessity is
5 balanced by requiring health measures to be reasonable and not arbitrary and is tested
6 there must be demonstrated: (1) a public health necessity, (2) an effective intervention
7 with a demonstrable connection between means and ends, (3) proportionality (i.e., that
8 the intervention is neither too broadly nor too narrowly tailored), and (4) that the
9 quarantine or isolation is in the least restrictive setting while accomplishing its purpose.
10 See Shelton v. Tucker, 364 U.S. 479, 488 (1960) (“[E]ven though the governmental
11 purpose be legitimate and substantial, that purpose cannot be pursued by means that
12 broadly stifle fundamental personal liberties when the end can be more narrowly
13 achieved.”).28
14 2. Requirements Under Arizona Law For Quarantine
15 Under Arizona law the governor may order a quarantine “during a state of
16 emergency … in which there is an occurrence or the imminent threat of smallpox,
17 plague, viral hemorrhagic fevers or a highly contagious and highly fatal disease with
18 transmission characteristics similar to smallpox” upon consultation with the director of
19 the department of health services. A.R.S. § 36-787(C)(2)
20 During a state of emergency where the disease does not meet this “smallpox
21 standard” a quarantine may only be issued by the Arizona Department of Health Services
22 and only through one of two ways: (1) court order; or (2) written directive “if any delay
23
26 Emma Robertson et al., The Psychosocial Effects of Being Quarantined Following
24 Exposure to SARS: A Qualitative Study of Toronto Health Care Workers, 49 Canadian J.
Psychiatry 403, 404–06 (2004)
25 27 Id. at 1206. (“Longer durations of quarantine have been associated with an
increased prevalence of PTSD symptoms.”)
26 28 See also Daubert, MA. Pandemic fears and contemporary quarantine: protecting
liberty through a continuum of due process rights. Buff L Rev. 2007;54:1299–353;
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 1 in the isolation or quarantine of the person would pose an immediate and serious threat
2 to the public health.” A.R.S. §§ 36-788, 36-789.
3 a. Quarantine By Court Order
4 The Department of Health Services may obtain a quarantine order from a court by
5 filing a petition which specifies the following: (1) the identity of the person or persons
6 subject to quarantine; (2) the premises subject to quarantine; (3) the date and time at
7 which quarantine commences; (4) the suspected contagious disease, if known; (5) a
8 statement of compliance with the conditions and principles for quarantine; and (6) a
9 statement of the basis on which quarantine is justified. The petition must be
10 accompanied by the sworn affidavit of the department attesting to the facts asserted in
11 the petition together with any further information that may be relevant and material to
12 the court’s consideration. A.R.S. §§ 36-789(B), 36-789(C). Notice to the person or
13 group of persons identified in the petition must be completed within twenty-four hours
14 after filing the petition and in accordance with the rules of civil procedure and a hearing
15 must be held on this petition within five days after filing of the petition except under
16 “extraordinary circumstances and for good cause shown.” A.R.S. §§ 36-789(D), 36-
17 789(E).
18 A court order authorizing quarantine may do so only for a period not to exceed
19 thirty days and the order must: (1) identify the isolated or quarantined person or group of
20 persons by name or shared or similar characteristics or circumstances; (2) specify factual
21 findings warranting isolation or quarantine including any conditions necessary to ensure
22 that isolation or quarantine is carried out within the stated purposes and restrictions; (3)
23 be served on the affected person or persons in accordance with the rules of civil
24 procedure. A.R.S. § 36-789(B).
25 A person or persons quarantined pursuant to A.R.S. § 36-789 may apply to the
26 court for an order to show cause why the person or persons should not be released. The
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 1 court must rule on the application to show cause within forty-eight hours after it is filed
2 and if the court grants the application it must schedule a hearing within twenty-four
3 hours after the order to show cause is issued. A.R.S. § 36-789(I). A person so
4 quarantined may request a court hearing regarding the person's treatment and the
5 conditions of the quarantine.” A.R.S. § 36-789(J)
6 b. Summary Quarantine
7 A quarantine order summarily issued by the Department of Health Services
8 requires that within ten (10) days after issuing the written directive the department “shall
9 file a petition for a court order authorizing the initial or continued isolation or quarantine
10 of a person or group of persons.” A.R.S. § 36-789(A). Moreover, the summary issuance
11 of a quarantine order by the Department of Health Services does not in any manner
12 waive the due process requirements set forth under A.R.S. § 36-789.
13 3. Executive Order #2020-33 Is A Per Se Summary Mass Quarantine
14 Executive Order 2020-33 attempts to create an entirely new term of art – the “stay
15 at home order” – while infringing upon fundamental rights in the exact same manner as a
16 quarantine. Regardless, the injury from a punch – for example – is not attenuated by
17 referring to it instead as a “fist kiss.” Likewise, the use of doublespeak to characterize
18 Executive Order 2020-33 as something other than a quarantine does not change objective
19 reality. Nor does it magically create from thin air a constitutional exception to Due
20 Process requirements. Yet this appears to be exactly what this Order seeks to do.
21 Executive Order 2020-33 was directly and expressly predicated upon Governor
22 Ducey's declaration of a Public Health State of Emergency. It explicitly prohibits all
23 persons who reside in the state of Arizona from leaving their homes except under a very
24 narrow set of exceptions. Under any objectively reasonable definition of quarantine
25 including under Arizona law29 Executive Order #2020-33 is a quarantine. That is exactly
26 29 A.R.S. § 36-711(19)(quarantine defined as “the restriction of activities of persons
who have been exposed to an afflicted person.”)(emphasis added); Presupposing that
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 1 what it is. Governor Ducey’s own words offered on live television conclusively support
2 this claim.30
3 4. Executive Order #2020-33 Infringes Upon The Fifth Amendment
4 Because It Restricts Freedom Of Movement Without Procedural Due Process
5 The fundamental right to travel at home and abroad is an important aspect of
6 liberty guaranteed in the Due Process Clause of the Fifth Amendment. See Dunn v.
7 Blumstein, 405 U.S. 330, 342 (1972)(affirming the existence of a “fundamental personal
8 right, the right to travel.”); United States v. Guest, 383 U.S. 745, 758 (1966) (“[t]he
9 constitutional right to travel from one State to another … occupies a position
10 fundamental to the concept of our Federal Union. It is a right that has been firmly
11 established and repeatedly recognized.”); Miller v. Reed, 176 F.3d 1202 (9th Cir.1999)
12 (recognizing “the fundamental right to interstate travel”)(citing Monarch Travel Servs.,
13 Inc. v. Associated Cultural Clubs, Inc., 466 F.2d 552, 554 (9th Cir.1972))
14 “Freedom of movement is akin to the right of assembly and to the right of
15 association.” Aptheker v. Sec. of State, 378 U.S. 500, 520 (1964). This right exists
16 whether that travel be international, interstate, or intrastate. See Kent v. Dulles, 357 U.S.
17 116, 125–26 (1958) (“The right to travel is a part of the ‘liberty’ of which the citizen
18 cannot be deprived without the due process of law under the Fifth Amendment. . . .
19 Freedom of movement across frontiers in either direction, and inside frontiers as well . . .
20 is basic in our scheme of values.”); Paul v. Virginia, 75 U.S. 168 (1869)(affirming the
21 "right of free ingress into other States, and egress from them."); See also Crandall v.
22
Covid-19 infection is widespread, which is implicit in the words “based on an
23 epidemiological assessment” stated on page two of the Executive Order.
30 Covid-19 Town Hall Meeting, 12 News, https://www.youtube.com/watch?
24 v=dmOMXQjqKco, Accessed April 25, 2020 (quoting Governor Ducey: “In terms of
quarantining, anyone who is sick should be staying home, anyone who has symptoms
25 should be staying home, and anyone that violates those types of directions, there's
escalating authority that the governor has. We can work with law enforcement so that
26 they won't be … it's in place whenever we put it in place. Whenever we have someone
violating it.”)
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 1 State of Nevada, 73 U.S. 35 (1867)(upholding fundamental right to interstate travel, “We
2 are all citizens of the United States, and as members of the same community must have
3 the right to pass and repass through every part of it without interruption”); See Johnson
4 v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002)(“[I]ntrastate travel … is an
5 everyday right, a right we depend on to carry out our daily life activities. It is, at its core,
6 a right of function.”) Any infringement must therefore pass strict scrutiny. See Shapiro v.
7 Thompson, 394 U.S. 618, 638 (1969)(the right to interstate travel is a fundamental right
8 that triggers strict scrutiny review).
9 "The right to travel, to go from place to place as the means of transportation
10 permit, is a natural right subject to the rights of others and to reasonable regulation under
11 law. A restraint imposed by the Government of the United States upon this liberty,
12 therefore, must conform with the provision of the Fifth Amendment that ‘No person
13 shall be deprived of liberty without due process of law.’” Shachtman v. Dulles, 225 F.2d
14 938 (D.C. Cir. 1955) (emphasis in original).
15 5. Executive Order #2020-33 Violates The Substantive Due Process
16 Requirements Of The Fourteenth Amendment
17 The language of the Fourteenth Amendment requires the provision of substantive
18 due process when an interest in one’s “life, liberty or property” is threatened. 31
19 Substantive due process “serves to prevent governmental power from being ‘used for
20 purposes of oppression.’” See Daniels v. Williams, 474 U.S. 327, 331 (1986)(quoting
21 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 277
22 (1856)). The "touchstone of due process is protection of the individual against arbitrary
23 action of government." County of Sacramento v. Lewis , 523 U.S. 833, 846, 118 S.Ct.
24 1708, 140 L.Ed.2d 1043 (1998). Substantive due process can be used to challenge abuses
25 of executive power. Id.
26
31 Amendment XIV, United States Constitution
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 1 In the Ninth Circuit, plaintiffs can establish a substantive Due Process violation
2 either by proving violation of a specific liberty or property interest, or by showing that
3 the state’s conduct “shocks the conscience.” See Martinez v. City of Oxnard, 337 F.3d
4 1091, 1092 (9th Cir. 2003) (“The Fourteenth Amendment’s Due Process Clause protects
5 individuals from state action that either ‘shocks the conscience’ or interferes with rights
6 ‘implicit in the concept of ordered liberty.’”)(citation omitted) (quoting Rochin v.
7 California, 342 U.S. 165, 172 (1952)). Executive Order #2020-33 satisfies both
8 requirements.
9 a. Executive Order #2020-33 Violates A Specific Liberty Interest
10 Executive Order #2020-33 sets forth the specific criteria under which Arizonans
11 are “permitted” to leave their homes:
12 “All persons may leave their place of residence only for Essential
Activities, to participate in or receive Essential Governmental Functions,
13 or to participate in or fulfill Essential Functions outlined in Executive
Order #2020-12.”
14
…
15
“Essential Activities include:
16
17 a. Obtaining necessary supplies and services for family,
household members and pets, such as groceries, food and
18 supplies for household consumption and use, supplies and
equipment needed to work from home, assignments for
19 completion of distance learning and products necessary to
maintain safety, sanitation and essential maintenance of the
20 home and residence.

21 b. Engaging in activities essential for the health and safety of

family, household members and pets, including things such
22 as seeking medical, behavioral health or emergency services
and obtaining medical supplies or medication.
23
c. Caring for a family member, friend, or pet in another
24 household or residence, which includes but is not limited to
transportation of a family member, friend or their pet for
25 essential health and safety activities and to obtain necessary
supplies and services for the other household.
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 d. Engaging in outdoor exercise activities, such as walking,
1 hiking, running, biking or golfing, but only if appropriate
physical distancing practices are used.
2
e. Attending or conducting work or volunteering in Essential
3 Functions which includes but is not limited to transporting
children to child care services for attending work in an
4 essential service.
5 f. Constitutionally protected activities such as speech and
religion and any legal or court process provided that such is
6 conducted in a manner that provides appropriate physical
distancing to the extent feasible.”32
7
Notwithstanding that “constitutionally protected activities such as speech and
8
religion” are specifically “provided for” in this Order, this provision is oxymoronic to
9
the Order itself. The Order specifically prohibits the constitutionally-protected right to
10
free movement and travel. To accept therefore that constitutionally-protected activities
11
are indeed exempted from this Executive Order necessarily requires one to disregard the
12
Order entirely, since the entirety of the Order is a manifest infringement upon a
13
fundamental liberty guaranteed under the Constitution of the United States. “Freedom
14
from imprisonment—from government custody, detention, or other forms of physical
15
restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”
16
Zadvydas v. Davis, 533 U.S. 678, 690 (2001)(emphasis added).
17
This very obvious failure of basic logic in the Order and which presents a clear
18
paradox, would probably be quite humorous were it not for the fact that Executive Order
19
#2020-33 very clearly violates the substantive due process requirement of the Fourteenth
20
Amendment and being unlawfully restrained in the exercise of basic rights by heavy-
21
handed government acts is not at all funny.
22
A fundamental right, such as the right to be free from arbitrary and unjustified
23
mass detention, is inalienable – it is “implicit in the concept of ordered liberty.” See
24
Palko v. Connecticut, 302 U.S. 319, 324-25 (1937). The U.S. Supreme Court states very
25
plainly that “the state cannot diminish rights of the people.” Hertado v. California, 110
26
32 Ariz. Exec. Ord. 2020-33 (April 29, 2020)
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 1 U.S. 516 (1884). "[S]tatutes that violate the plain and obvious principles of common
2 right and common reason are null and void." Bennett v. Boggs, 1 Baldw. 60 (1830).
3 b. Executive Order #2020-33 Shocks The Conscience
4 Executive Order #2020-33 acts with deliberate indifference to individual rights. It
5 criminalizes ordinary behavior to include the exercise of basic constitutionally-protected
6 freedoms, such as the freedom to leave one’s home and wander about without any
7 specific purpose. See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)(voiding
8 loitering ordinance as unconstitutional infringement on right to free movement) Under
9 Executive Order #2020-33, this is a crime.33
10 Where government officials have time to deliberate yet act with deliberate
11 indifference to individual rights, they have engaged in conscience-shocking behavior
12 that triggers liability. See Hicks v. Churchich, 161 F.3d 1030, 1040–42 (7th Cir. 1998)
13 (noting that, although Lewis rejected negligence as a standard, deliberate indifference
14 should be employed whenever actual deliberation is practical). “Freedom from bodily
15 restraint has always been at the core of the liberty protected by the Due Process Clause
16 from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992)
17 Arizona law has set forth a clearly-established procedure for imposing
18 quarantine34 with clearly-established standards to ensure that due process rights are
19 protected.35 Governor Ducey instead chose to ignore this law and these standards and to
20 disregard the fundamental constitutional rights of all Arizonans.
21 Even if it could be reasonably argued that Executive Order #2020-33 serves a
22
33 Ariz. Exec. Order No. 2020-33 (April 29, 2020); Covid-19 Town Hall Meeting,
23 12 News, https://www.youtube.com/watch?v=dmOMXQjqKco, Accessed April 25, 2020
(quoting Governor Ducey: ‘[I]f someone is not listening to the order law enforcement
24 can suggest that they begin listening to the order and if they don't they're going to have a
class 1 misdemeanor which is a $2500 fine and and up to six months in jail, and we will
25 enforce that.”)
34 See A.R.S. §§ 36-787(C)(2), 36-788
26 35 See A.R.S. § 36-789 (titled: “Due process for isolation and quarantine during a
state of emergency or state of war emergency”)
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 1 legitimate government purpose, it is not the “least restrictive means” 36 it is simply the
2 most expedient to accomplish the intent of mass quarantine. This order offers not even a
3 single provision that substantively ensures that constitutional rights are upheld, including
4 the right to due process. This is conscience-shocking.
5 F. Executive Order #2020-09 Is Unconstitutional And Violates The Fifth And
6 Fourteenth Amendments To The United States Constitution
7 1. Executive Order # 2020-009 Violates The Fifth Amendment Because It
8 Is A Constructive Seizure Of Private Property In The Absence Of Procedural
9 Due Process
10 The United States Constitution holds that no person shall be deprived of property
11 without due process of law.37 Arizona law holds “property” to include “both real and
12 personal property.”38
13 The United States Supreme Court has held that, just as the direct appropriation of
14 real property is a per se taking that requires just compensation, so too does the
15 appropriation of personal property trigger the demands of the Fifth Amendment. See
16 Horne v. Department of Agriculture, 569 U.S. 513 (2013)(5th amendment may impose a
17 “categorical duty” on the government to pay just compensation when it “physically takes
18 possession of an interest in [personal] property.”)(quoting Arkansas Game and Fish
19 Commission v. United States, 568 U.S. 23 (2012)). 39
20
21 36 See Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960)(setting
forth the "least restrictive means" test and holding that even a legitimate government
22 "purpose cannot be pursued by means that broadly stifle fundamental personal liberties
when the end can be more narrowly achieved.")
23 37 See Amendment V, United States Constitution
38 See A.R.S. §§ 1-215(32), 1-215(29)
24 39 See also Fuentes v. Shevin, 407 U.S. 67 (1972)(holding that replevin provisions
denying the right to a prior opportunity to be heard before chattels are taken from the
25 possessor are invalid under the Fourteenth Amendment since they work a deprivation of
property without due process of law); Armstrong v. United States 364 U.S. 40 (1960)
26 (holds that the Fifth Amendment's takings clause applies not only to land and real estate
but also to more intangible property, such as financial interests)
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 1 Executive Order #2020-09 forces the closure, or severely restricts the operation,
2 of “non-essential” businesses. This summarily deprives hundreds of thousands of
3 Arizonans of private property – their wages. This deprivation is effected without any
4 apparent regard to the fundamental due process requirements of the Fifth Amendment.
5 2. Executive Order # 2020-009 Violates The Fourteenth Amendment
6 a. It Violates A Specific Liberty Interest
7 The right to work is a constitutionally-protected freedom that the United States
8 Supreme Court has repeatedly held falls squarely upon the broad shoulders of the
9 Fourteenth Amendment. See McBurney v. Young, 569 U.S. 221 (2013)(holding that the
10 ability to pursue one’s profession or “common calling” is a right under the 14th
11 amendment)(citing Toomer v. Witsell, 334 U.S. 385, 396 (1948)). It is a specific liberty
12 interest. By forcing the closure of “non-essential” businesses, Executive Order #2020-09
13 violates the Fourteenth Amendment rights of Plaintiff and certain others who work in
14 these professions subject to these business closures.
15 b. It Shocks The Conscience
16 Executive Order #2020-09 acts with deliberate indifference to individual rights in
17 the interest of expediency. It severely-restricts, or forces the closure of, certain
18 businesses. Plaintiff and hundreds-of-thousands of other Arizonans are thereby deprived
19 of their right to work in their profession. This is not the "least restrictive means" 40 it’s
20 simply the easiest. Where government officials have time to deliberate yet act with
21 deliberate indifference to individual rights,41 they have engaged in conscience-shocking
22 behavior that triggers liability.42
23
24
25
40 See Shelton v. Tucker, 364 U.S. 47
26 41 See Lewis, 523 U.S. 833
42 See Hicks, 161 F.3d 1030
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 1 G. Mayor Evans’ Proclamations Under Declaration Of Emergency Are
2 Unconstitutional And Violate The Fifth And Fourteenth Amendments To The
3 United States Constitution
4 1. The Proclamations Violate The Fifth Amendment
5 a. Taking Without Just Compensation
6 Mayor Evans’ Proclamation Under Declaration Of Local Emergency March 15, 43
7 and her subsequent extension of this Proclamation, 44 severely-restricts, or forces the
8 closure of, “non-essential” businesses. This summarily deprives persons who work for
9 these businesses of private property – their wages. This is a constructive “taking” for the
10 purposes of the Fifth Amendment and is effected without just compensation. See United
11 States v. Dickinson, 331 U.S. 745 (1947)(holding that even if the government does not
12 physically seize private property, the action is still a taking, "when inroads are made
13 upon an owner’s use of it to an extent that, as between private parties, a servitude has
14 been acquired either by agreement or in course of time.”).
15 b. Procedural Due Process
16 The Proclamations constructively deprive Plaintiff and certain others of property
17 without affording any manner of procedural due process. This is in violation of the Fifth
18 Amendment. See Chicago, Burlington & Quincy Railroad Company v. City of Chicago
19 166 US 226 (1897)
20 2. The Proclamations Violate The Fourteenth Amendment
21 a. They Violate A Specific Liberty Interest
22 The right to work is protected by the Fourteenth Amendment. See Tangier Sound
23 Waterman’s Ass’n v. Pruitt, 4 F.3d 264 (4th Cir. 1993)(holding Virginia statute “tripling
24 the non-resident commercial fisherman’s harverster’s license fee” “effects a restriction”
25 on the “right to earn a living.”)(emphasis added). It is a specific liberty interest. By
26 43 Proc. Under Dec. Of Loc. Emer. (March 15, 2020)
44 Sec. Proc. Under Dec. Of Loc. Emer. (March 26, 2020)
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 1 severely-restricting, or forcing the closure of, “non-essential” businesses, the
2 Proclamations violate the Fourteenth Amendment rights of Plaintiff and other Arizonans
3 who work in these professions.
4 b. They Shock The Conscience
5 The Proclamations act with deliberate indifference to individual rights by
6 severely-restricting, or forcing the closure of, certain businesses and without regard to
7 the rights of persons affected by these closures. This violates the Fourteenth
8 Amendment rights of Plaintiff and certain other Arizonans. It is not the “least restrictive
9 means”45 it’s simply the easiest. This shocks the conscience. See, e.g., Estate of Owensby
10 v. City of Cincinnati, 414 F.3d 596, 602–03 (6th Cir. 2005) (applying the deliberate-
11 indifference test to a pretrial detainee’s claim that he was denied adequate medical care);
12 Bradich v. City of Chicago, 413 F.3d 688, 690–92 (7th Cir. 2005) (denying defendants
13 summary judgment regarding claims that members of jail staff acted with deliberate
14 indifference in failing to seek outside assistance for ten minutes after finding an arrestee
15 hanging in a jail cell)
16 H. Governor Ducey's Declaration Of Emergency Is Unsupported By Law
17 Arizona law grants the governor the sole authority and discretion to declare a
18 state of emergency:
19 “The governor may proclaim a state of emergency which shall take effect
20 immediately in an area affected or likely to be affected if the governor
finds that circumstances described in [A.R.S. §26-301(15)] exist.” 46
21 'State of emergency' means the duly proclaimed existence of conditions of
22 disaster or of extreme peril to the safety of persons or property within the
state caused by air pollution, fire, flood or floodwater, storm, epidemic,
23 riot, earthquake or other causes, except those resulting in a state of war
emergency which are or are likely to be beyond the control of the services,
24 personnel, equipment and facilities of any single county, city or town, and
which require the combined efforts of the state and the political
25 subdivision.”47
45 Shelton v. Tucker, 364 U.S. 479
26 46 A.R.S. §26-303(D)
47 A.R.S. §26-301(15) (emphasis added)
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 1 “During a state of emergency … The governor shall have complete
2 authority over all agencies of the state government and the right to
exercise, within the area designated, all police power vested in the state by
3 the constitution and laws of this state in order to effectuate the purposes of
this chapter … The governor may direct all agencies of the state
4 government to utilize and employ state personnel, equipment and
facilities for the performance of any and all activities designed to prevent
5 or alleviate actual and threatened damage due to the emergency. The
governor may direct such agencies to provide supplemental services and
6 equipment to political subdivisions to restore any services in order to
provide for the health and safety of the citizens of the affected area.” 48
7 1. The (Ordinary) Meaning Of “Extreme Peril”
8 “Extreme peril” as set forth under A.R.S. § 26-301(15) is defined neither by
9 Arizona statute nor Arizona court opinion. It is not defined under any federal statute nor
10 federal court opinion. “Extreme peril” is not a term of art. It has no accepted meaning in
11 the area of law addressed by the statute49 nor any common law meaning.50 It has not been
12 borrowed or adopted from another statute.51 Its definition is therefore its ordinary
13 meaning. See FDIC v. Meyer, 510 U.S. 471, 476 (1994)(in the absence of a statutory
14 definition “we construe a statutory term in accordance with its ordinary or natural
15 meaning.”).
16 “Extreme” means “existing in a very high degree”52 and the legal definition of
17 “peril”53 is “exposure to the risk of death, destruction, or loss.” 54 For the purposes of
18 A.R.S. §§ 26-303(D) and 26-301(15), the ordinary meaning of “extreme peril” is
19 therefore “a very high degree of exposure to the risk of death.”
20
48 A.R.S. §26-303(E)
21 49 See Sullivan v. Stroop, 496 U.S. 478, 483 (1990) (five-Justice majority holding
that “child support” in the AFDC statute is restricted to that term’s specialized use in the
22 Child Support program under the Social Security Act)
50 See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989)
23 (relying on traditional common law agency principles for meaning of term “employee”).
51 See Carolene Products Co. v. United States, 323 U.S. 18, 26 (1944)(“adoption of
24 the wording of a statute from another legislative jurisdiction carries with it the previous
judicial interpretations of the wording.”)
25 52 “Extreme” Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/extreme, Accessed March 20, 2020.
26 53 “Peril”, Merriam-Webster's Dictionary of Law (1996)
54 “Destruction” and “loss” clearly refer to property.
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 1 2. The COVID-19 Pandemic Does Not In Any Manner Represent “A
2 Very High Degree Of Exposure To The Risk Of Death”
3 As set forth previously herein, the most credible scientific evidence presently
4 available in fact suggests that the fear and panic gripping the world is wholly unjustified.
5 Certainly an infectious disease, where the overwhelming majority of those who are
6 infected – by some estimates more than 99.88%55 – will recover without any medical
7 intervention, cannot reasonably be characterized as a condition of “extreme peril.”
8 Covid-19 does not kill randomly and indiscriminately. Its has well-established
9 risk factors – the elderly with chronic serious health conditions. Certainly no amount of
10 hysterical fear-mongering will change the basic fact of objective reality that under not
11 even the most liberal definition of “extreme peril” could COVID-19 even remotely be
12 characterized in such a way.
13 Covid-19 does not kill randomly and indiscriminately. Its has well-established
14 risk factors – the elderly with chronic serious health conditions. Certainly no amount of
15 hysterical fear-mongering will change the basic fact of objective reality that under not
16 even the most liberal definition of “extreme peril” could COVID-19 even remotely be
17 characterized in such a way.
18
19 Dated: May 1, 2020
Respectfully Submitted,
20
21 By: /s/ Joseph M. McGhee
Plaintiff, in Pro Per
22
23
24
25
55 British Medical Journal, COVID-19 Antibody Seroprevalence in Santa Clara
26 County, California, https://www.medrxiv.org/content/10.1101/2020.04.14.20062463v1,
Posted April 17, 2020, Accessed April 26, 2020
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 1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 1st day of May 2020, I caused the foregoing document
3 to be filed electronically with the Clerk of Court through the CM/ECF System for filing;
4 and served on counsel of record via the Court’s CM/ECF system. I further certify that
5 some of the participants in the case are not registered CM/ECF users and that I have e-
6 mailed the foregoing document to that user this same day and the document will be
7 mailed the 1st day of May 2020.
8 Michele Molinario
Derek R. Graffious
9 JONES, SKELTON & HOCHULI, P.L.C.
40 North Central Avenue, Suite 2700
10 Phoenix, Arizona 85004
Telephone: (602) 263-1700
11 Fax: (602) 200-7831
mmolinario@jshfirm.com
12 dgraffious@jshfirm.com
13 Attorneys for Defendants City of Flagstaff
and Mayor Coral Evans
14
Brett W. Johnson (#021527)
15 Colin P. Ahler (#023879)
Tracy A. Olson (#034616)
16 SNELL & WILMER L.L.P.
One Arizona Center
17 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
18 Telephone: 602.382.6000
Facsimile: 602.382.6070
19 bwjohnson@swlaw.com
cahler@swlaw.com
20
Anni L. Foster (#023643)
21 General Counsel
Office of Arizona Governor Douglas A. Ducey
22 1700 West Washington Street
Phoenix, Arizona 85007
23 Telephone: 602-542-4331
afoster@az.gov
24
Attorneys for Defendant Douglas A. Ducey,
25 Governor of the State of Arizona
26 /s/ Joseph M. McGhee
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