Thursday, May 28, 2020

1889 Institute argues that Oklahoma mayors acted unlawfully with COVID-19 orders

The mayors of Oklahoma City, Tulsa, and Norman lacked authority under state law to order shelter in place.

OKLAHOMA CITY, OK (May 27, 2020) – The 1889 Institute has published “An Argument that Oklahoma’s Mayors Acted Unlawfully During COVID-19.” The legal analysis is authored by the Institute’s Legal Fellow, Ben Lepak, a municipal law expert given his experience counseling 24 elected officials across three Oklahoma counties in a previous position. He makes the case that mayors improperly issued shelter in place orders under a state law intended to combat riots and looting, not pandemic. The study argues that city social distancing rules more restrictive than the state’s are invalid.

“The mayors of Oklahoma’s three largest cities took extreme measures limiting their citizens’ freedoms and harming them financially without proper legal authority,” said Lepak. “These mayors claimed legal authority under laws that simply were never intended for containing a pandemic,” he said.

In the study, Lepak examines city ordinances and state laws governing the mayors’ orders, and concludes that the mayors misapplied the Riot Control and Prevention Act of 1968 and local city ordinances based on that Act. These laws were passed in response to social unrest in the late 1960s due to racial tensions and opposition to the Vietnam War.

“The Riot Control Act and the city ordinances never mention infectious disease, and the plain text and history of these laws indicate they were never intended for situations like we face now,” Lepak noted. “The laws were supposed to give the governor and mayors emergency powers to keep civil order during riots or in the wake of natural disasters, like tornados or flooding. They’ve shoe-horned a pandemic into the category of a natural disaster to justify their actions, but the language in the laws and the context in which they were enacted do not support this,” he said.

The study makes straightforward recommendations to address discrepancies in state and local rules and to prevent similar actions from mayors in the future. The Governor and Attorney General are encouraged to intervene, and the Legislature is encouraged to codify the principle of state law supremacy in statute.

“The mayors of Oklahoma City, Tulsa, and Norman owe the public detailed explanations of the legal basis for their actions,” Lepak stated. He pointed out that roughly two-thirds of the state’s population has been subjected to legally suspect shelter in place orders, and these cities still have rules in place that contradict state rules. “This is no small matter,” he said.

About the 1889 Institute
The 1889 Institute is an Oklahoma think tank committed to independent, principled state policy fostering limited and responsible government, free enterprise and a robust civil society. The publication, “An Argument that Oklahoma’s Mayors Acted Unlawfully During COVID-19.” and other reports on licensing can be found on the nonprofit’s website at


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