On ‘non-law enforcement activity’ carried out by law-enforcement officers and law-enforcement methods.

Katherine Watt

Sep 7

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June 2, 2024 - Grand Princess Quarantine Orders - Discussion with Dr. Jane Ruby. Partial FOIA response has been obtained from HHS by Children's Health Defense. (Sasha Latypova)
Aug. 12, 2024 - On habeas corpus, probable cause, warrants, detention and extrajudicial state killing under declared public health emergencies. (Katherine Watt)
Aug. 19, 2024 - Grand Princess Quarantine Orders FOIA, Part 2 (Sasha Latypova)
Aug. 20, 2024 - Court-ordered quarantine: involuntary arrest and detention by local health and law enforcement officers. (Katherine Watt)

Reader sent a link to a template federal habeas corpus petition to me and to Sasha Latypova:

Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241

Sasha Latypova’s reply to the sender:

My understanding is that this form will be rejected because the CDC/HHS will claim that it's not a federal imprisonment and not in the context of any crime, but "public health," i.e. the classic Nazi "for your safety."

Quoting from the form:

"Who Should Use This Form.
You should use this form if
You are a federal prisoner and you wish to challenge the way your sentence is being carried out (for example, you claim that the Bureau of Prisons miscalculated your sentence or failed to properly award good time credits);
You are in federal or state custody because of something other than a judgment of conviction (for example, you are in pretrial detention or are awaiting extradition); or
You are alleging that you are illegally detained in immigration custody."

My reply to the sender, expanded:

Thank you. As I’ve written previously, I do think drafting habeas petition templates specific to quarantine and isolation orders issued by state and federal public health officers under communicable disease control pretexts is a good idea, for public education purposes.

People challenging state and federal quarantine and isolation orders placing them “in federal or state custody” would need to focus on the “something other than a judgment of conviction” provision, and try to make the case that quarantine and isolation detention is a form of criminal punishment imposed without commission of a crime, or on presumption-of-guilt for the presumed, non-proven and non-provable crime of susceptibility to alleged infection with allegedly transmissible, allegedly disease-causing pathogens.

I want to emphasize that, if/when habeas petitions are filed, the public health officers will probably defend their actions by insisting that what they’re doing is not criminal prosecution.

It’s “non-law enforcement activity,” and therefore habeas due process is inapplicable, because habeas is only applicable to detention for alleged criminal acts.

They’ll cite to federal and state quarantine and isolation statutes, federal HHS and state health regulations and the case law since 1989 around “special needs doctrine,” and the bare assertion, by the governments, that quarantinable communicable disease outbreaks are occurring, creating the “special needs” conditions.

Judges will probably find those arguments and factual assertions about the existence of disease, disease-causing pathogens, and the transmissibility of asserted pathogens, to be dispositive.

They’ll deny the petitions as moot without further fact-finding, and uphold the detentions.