I. DOMESTIC CRIMINAL LIABILITY
A. French Precedent of a criminal case against high officials for acts and omissions in an epidemic
From the start of the AIDS epidemic around 1983, one of the most dramatic events in the course of that epidemic was the case of the French government response with respect to blood transfusion testing for HIV/AIDS. Families of hemophiliacs accused the former Prime Minister, the former Minister of Social Affairs and National Solidarity, and the former Secretary of State for Health of the crimes of involuntarily causing the death or involuntarily causing the poisoning of certain hemophiliac persons who received transfusions of non-heated blood infected with HIV during a period in which a heated blood method was available from an American laboratory.
As detailed in the commission for instruction report of the French Court of Justice of the Republic when the decision was made to send some of the cases to the criminal courts, the argumentation might be of interest as we look at the government response to the current COVID-19 pandemic in the United States.
With respect to then Prime Minister, the commission of instruction noted that:
A head of government who says he is determined to act against what he considers an epidemic, who announces that the testing of blood donors would permit the avoidance of several hundred people each year developing AIDS, cannot argue he was diligent while tolerating that the contamination of the receivers of the blood be prolonged for several weeks, with the sole reason being the French manufacturer of the test was not yet operational.[“] We are forced to note, contrary to appearances, that the approach taken by [the then Prime Minister] with respect to the testing matter does not correspond to what we have the right to expect in terms of public health.”
While rejecting responsibility for the Prime Minister on this second point of the delay with the diffusion of the heated blood, the commission of instruction was also very tough on the Minister of Social Affairs and National Solidarity and Secretary of State for Health, to wit:
[T]heir negligence, inattention, and lack of prudence and security, their lack of response to an order on the selection of blood donors, the lack of prohibition of collection of blood from risky populations, created conditions that made the injury of the hemophiliacs in question possible. With respect to the lack of follow-up with those who had received transfusions (to see whether they had or had not been contaminated in the months of high risk), the magistrates noted that the Minister of Health having abstained from taking any initiative to make these follow-up interviews mandatory must bear the liability in part for these indirect contaminations which could have been easily avoided.”
Due to the statute of limitations, only a subset of the cases presented were allowed to go forward. Ultimately, the highest court in France, the Cour de Cassation, weighed in on the matter in deciding to acquit the former Prime Minister and the former Minister of Social Affairs and National Solidarity and condemn the Secretary of State for Health on one count. However, due to the 15 year passage of time since the events, they ordered him not to have any punishment.
B. The analysis of the highest court in France
The highest court in France, the Cour de Cassation noted that the French Constitution at Article 68-1 confirmed the autonomy of the criminal liablity of members of a government in cases of serious crimes or other major offences committed by them during their office without making a distinction between voluntary and involuntary infractions.
It noted also that it was not for a Court - whose role is to apply the positive law - to evaluate whether it is appropriate to apply such law.
It further noted that political choices are for the legislature, and the Court in exercising its judicial functions was not to arrogate to itself a role of arbitrator of the French political life without compromising the normal functioning of the institutions of the French Republic.
In particular, the Cour de Cassation made short work of the prosecutor’s argument highlighting the risk that ministers in the future would be required to explain their political choices before the Court of Justice of the Republic, with a result of substituting judicial oversight for what should be a subject of democratic oversight. This would create a “regrettable confusion of powers” in subjecting the actions of the executive power to the appreciation of judges.
The Court stated that political liability - even if the idea, its criteria and its implementation were defined specifically, which is not the jurisdiction of the Court – is not exclusive either of civil or administrative liability of the State nor or criminal liability.
C. Return to America: What we can learn from the French
What is instructive in the above French case was that criminal liability was sought and imposed against high government officials for acts and omissions in dealing with the health crisis in that country. The fact that they were high governmental officials at the time they did these acts did not protect them from criminal liability – the French Constitution made that explicit. The fact that they had made policy choices within the scope of their work and would suffer some ill-defined political liability did not make the state immune from civil or administrative liability, nor these ministers immune from criminal liability when those acts and omissions were so devastating for injured and dead citizens.
In the United States no such explicit rule is found in our U.S. Constitution with respect to the criminal liability of high governmental officials. The only specified process in that Constitution is the political process of impeachment which we saw this year which if convicted has the person removed from office and no longer able to hold office in government, but no civil, administrative, or criminal liability.
The Supreme Court in a series of cases going forward from In Re Neagle, (131 US 1 (1890)) has provided a form of qualified immunity for federal officers operating in the scope of their authority. And no doubt the same issues of qualified immunity are addressed in various manners by state law and judicial decisions. And such qualified immunity might be extended to government contractors who do work for the government in the current COVID-19 crisis pursuant to an order under the Defense Production Act. In the presence of a federal or state order on how private citizens are to act, it is possible that private businesses might be able to assert compliance with governmental orders in a form of quasi-immunity for the civil and possibly de facto criminal liability.
Having looked at this area of law over the years with respect to criminal prosecutions of high-level governmental officials and a former President for torture and other crimes, without going into too much detail, the path is murky. However, unlike what we see enshrined in French law, through case law or prosecutorial discretion it does appear that there is a path through for such governmental officials or private businesses to escape any criminal liability for their acts or omissions in addressing the COVID-19 pandemic.
D. Enter COVID-19 Immunity Bills
But that murky way through is clearly a concern for business.
At least in Ohio and in Congress, there are efforts to pass COVID-19 Immunity Bills. The Ohio version of such a bill (Ohio Senate Bill 308) ostensibly seeks to revise the law governing immunity from civil liability and professional discipline for health care providers during disasters or emergencies, to provide qualified civil immunity to service providers providing services during and after a government-declared disaster, and to declare an emergency. The act is to apply retroactively to the date a disaster is declared by the federal government, state government, or political subdivision of the state.
One can question whether it is appropriate to provide such immunity to health providers extracting them from the ordinary duties of care required of them in their addressing those who come to them.
But, this bill goes farther.
Tucked in the end of the bill is a definition of services and service providers that encompasses pretty much all of the private or non-profit activity in Ohio. Article A(4) defines "Services" as meaning “providing lodging, sheltering, groceries, pharmaceutical products, fuel products, other products, retail merchandise, manufacturing, care, religious or nonprofit services, or other acts that are part of or outside the normal scope of a person's business or nonprofit activities during the period of a declared disaster and not more than one hundred eighty days after the end of the period of the declared disaster.” The bill goes on to define “service provider” in Article A (5) "Service provider" means any person providing the services described in division (A)(4) of this section, including that person's owner, officer, director, employee, or agent.
And all these persons are granted immunity except if it is established by clear and convincing evidence that the service provider's act or omission is intentional, willful, or wanton misconduct. Thus, the preponderance of the evidence standard of proof in civil matters is thrown out for a higher standard. And this higher standard in these civil cases of clear and convincing evidence coupled with the kinds of intentionality, willfulness, or wanton disregard seems to exclude civil liability for recklessness.
As to a criminal case, given this proposed law and prosecutorial discretion if a relevant statute were present, the kind of criminal case that was brought in France would appear highly unlikely to prosper in any but the most extreme case against a person in a public or private entity in Ohio. And if a version of this Ohio draft were passed at the federal level, such cases would be unlikely to prosper for the same reasons across the United States.
In sum, on the domestic front, through a combination of executive, legislative and judicial approaches at both the federal and state level the ordinary citizen that is sickened or dies due to the act or omissions of public or private entities risk being at an impasse in seeking civil or criminal accountability of either public or private actors for how they treat ordinary people in the COVID-19 pandemic.