Arizonans couldn't be jailed for violating governor's orders, under proposed law

PHOENIX — Arizonans who violate current or future gubernatorial executive orders would no longer face the possibility of getting locked up, under a proposal being considered by legislators.

Legislation proposed by state Rep. John Kavanagh, R-Fountain Hills, would set the maximum penalty for violating emergency orders at a civil fine of no more than $100.

By contrast, current law makes it a criminal misdemeanor with the potential of six months behind bars and a $2,500 fine.

The measure also would allow police to issue a citation only after an individual or business has first been warned about the violation and chooses not to comply. Even then, Kavanagh’s proposal would allow someone to escape the penalty entirely by going to court and showing he or she is now abiding by the order.

Most immediately affected would be what’s left of executive orders issued by Gov. Doug Ducey during the COVID-19 pandemic. While he has dissolved his stay-home order and allowed most businesses to reopen, the governor has mandated that they comply with various directives including social distancing of staff and patrons.

During public appearances, Ducey has used the threat of jail to try to keep retailers and restaurants from reopening before he said they could.

Kavanagh said he sees it as basic logic to take the issue out of the criminal code.

“First of all, nobody’s enforcing the current penalty, either because they think it’s unfair or they think the whole process is unfair,” he said. Several county sheriffs have publicly declared they and their deputies will not issue citations.

“Add to that the utter confusion of COVID,” Kavanagh said.

Initial advice told people not to wear a mask, but now, wearing masks is the protocol, he said, as an example.

“There’s too much confusion over this particular issue to hold people to criminal standards,” Kavanagh said.

He dismissed the idea that eliminating the threat of jail time and stiff fines would lead to less compliance with what remains of Ducey’s orders.

“I think people are going to obey because they want to obey the law and I don’t think the penalty necessarily is what determines compliance,” Kavanagh said. The key is providing clarity so people know what they are meant to do, he said.

Still up in the air is whether Ducey will accept the changes. “We do not comment on draft legislation,” said gubernatorial press aide Patrick Ptak.

Kavanagh conceded he has not run the wording by the governor’s staff. But he said he’s presuming Ducey will go along.

“There’s been a lot of negative public reaction to criminalization,” Kavanagh said. “And he’s very responsible to the will of the people.”

House Speaker Rusty Bowers pointed out that the penalties are not new. He said they were added years ago when legislators first approved laws designed to give all governors special powers to deal with an emergency.

“The misdemeanor wasn’t created for COVID,” Bowers said.

But now that people have had a chance to see how that law works, Bowers said he and his colleagues believe a criminal penalty is not necessary.

The measure is expected to be voted on Wednesday by the House Judiciary Committee, which Kavanagh chairs.