Some Valley sheriffs pledge to ignore Newsom’s COVID-19 orders, betraying their oaths

Does one have the constitutional right to infect another with the COVID-19 virus?

And do sheriffs in California have the right to ignore orders by the governor?

Those questions came to mind this past week after several central San Joaquin Valley sheriffs posted on social media their displeasure with Gov. Gavin Newsom and his emergency orders related to the COVID-19 pandemic.

Loudest among the law officers was Merced County Sheriff Vern Warnke. In a strongly worded missive posted on his department’s Facebook page, Warnke chided Newsom for issuing orders like an emperor, and characterized the directives as unconstitutional infringements on the freedoms of Merced County residents.

Adding to the fray to a lesser degree were Sheriff Michael Boudreaux of Tulare County and Sheriff Margaret Mims of Fresno County, who both made clear they would not cite people for going out in public rather than sheltering at home. They said they would direct deputies to go after criminals and not “law-abiding citizens.”

That is a good sound bite. And, as a practical matter, it makes sense to go after murderers, thieves, those committing assault and other serious violations.

But when it comes to COVID-19, there is a flaw in the sheriffs’ thinking: Neither they nor anyone else can know for certain without testing who is infected with the disease and represents a public health threat. The governor is not only trying to protect those who don’t have the illness. He is trying to separate the sick from the healthy to limit the outbreak.

Acceptable risk

In the Facebook post that went online May 16, Warnke wrote that “Nobody has the right to dictate what risks I’m going to take when I leave my house and this includes an elected governor.”

The Constitution, Warnke said, allows him to face risks as he, a free person, sees fit.

But flip that argument around. If Warnke was infected with COVID-19, would the Constitution authorize him to go out into the world and infect more people?

Warnke, as a healthy person, can say he has the right to determine his own well-being by going out into Merced County where he might contract the virus. But if he picks up the disease, he then potentially can infect others if he does not stay sheltered.

That would upend his pledge as a sheriff to protect the people of his county from harm.

The Constitution does not give anyone the right to hurt another, either by physical assault, a weapon — or by infectious disease. The first two are obvious. Keeping a disease in check is harder to accept — even for someone who should know better.

Legal authority or not

In his Facebook post, Warnke made clear he would not follow Newsom’s pandemic orders: “I WILL NOT be taking any enforcement action in this county for any of the COVID-19 “violations”.

He also blamed Newsom for overstepping his authority in an effort to “control” Californians. Americans have the Constitution as their guide, Warnke said.

“The citizens themselves can make informed decisions on how to proceed and protect their lives and livelihood and not the Governor of a state,” he said. “Remember that the people elected a governor, not an emperor.”

The people also elected Ronald Reagan once upon a time to be their governor. And that Republican, who would go on to be a famous president, in 1970 signed the Emergency Services Act. It is a part of the California Government Code, and gives the governor broad authority to meet emergencies endangering the state.

Section 8567 of the act says this, with italics added for emphasis: “(a) The Governor may make, amend, and rescind orders and regulations necessary to carry out the provisions of this chapter. The orders and regulations shall have the force and effect of law.”

When a sheriff says he or she will not carry out a governor’s order, that is in effect signaling they will not uphold a law. That runs counter to what they took an oath to do.

Upholding orders

It is one thing to be critical of those in power. Democracy depends on a free exchange of ideas and opinions. Powers need to be checked.

But it is another thing to be insubordinate.

California has a common enemy right now. Our elected leaders — from the governor to local sheriffs — are being counted on to join forces in the battle to overcome it.