Skip to main content

Oklahoma Mayors Acted Unlawfully With COVID-19 Orders

In response to COVID-19, the mayors of Oklahoma’s three largest cities subjected their citizens to draconian shelter in place orders, restricting their freedom, damaging them financially, and undermining their constitutional rights. The mayoral decrees were more restrictive than those of the Governor, and in significant ways contradicted his policy. To this day, city-mandated social distancing rules remain in place in Oklahoma City, Tulsa, and Norman that are not required by the state’s reopening plan. The mayors claim that where their rules are more restrictive than the state’s, the city rules apply.

Was any of this unilateral mayoral activity legally valid?

For the reasons examined in my paper published today, An Argument Oklahoma’s Mayors Acted Unlawfully During COVID-19, the short answer is no. (A summary of the paper can be found here.)

A close examination of relevant city ordinances and state laws governing the mayors’ COVID-19 decrees forces the conclusion that the mayors were on extremely shaky—possibly nonexistent—legal ground. This is largely because the mayors issued their orders under city ordinances arising out of a state law intended to combat riots and looting, not pandemics. 

This conclusion isn’t shocking given the name of the relevant state law, “The Riot Control and Prevention Act of 1968” (the RCPA). The law is a relic of the late 1960s’ social unrest brought on by racial tensions and the Vietnam War. American cities like Detroit burned in 1967 and 1968, and riots were a regular feature of Oklahoma news reports at the time.

More important than the laws’ history, the plain language of the RCPA and city ordinances reveal they are not applicable to infectious diseases or pandemics. The laws contemplate emergency government action during riots or in the wake of natural disasters (like extreme weather events) where rioting or looting might be a real threat. The mayors have shoehorned COVID-19 into the category of a natural disaster in order to justify their actions, which does not comport with the text of the city ordinances or the RCPA.

Similarly, if the RCPA and city ordinances were intended to apply to pandemics as the mayors claim, the authors of those laws chose an odd toolkit of emergency powers to confer on the governor and mayors. The RCPA gives the governor the power to do things like imposing a curfew, restricting alcohol and flammable liquids, and banning Molotov cocktails. The city ordinances are much the same. It is easy to see why the power to ban alcohol sales might be handy during a riot, but giving this power to the governor to fight a pandemic is a bit like giving him an accordion for a hunting trip.

Simply put, the mayors of Oklahoma City, Tulsa, and Norman overstepped their legal authority. The riot control law and city ordinances are not general emergency powers laws that can be trotted out to deal with just any challenging situation the state faces. They were intended to apply only in narrow circumstances, and it is a stretch for mayors to justify pandemic orders under these laws. My paper lays out the legal particularities in detail.

The consequence of the mayors’ overreach may be costly litigation. But litigation cannot repair the damage suffered by the residents of these cities (about 2/3 of the state’s population). The best that can be hoped for is swift action by state officials to end the current discrepancies between the state and local rules, and legislation to prevent this situation from happening in the future.

To end the current patchwork of rules, the governor and attorney general can take a firm position with mayors, making clear that to the extent city rules contradict state rules, they are legally invalid. An Attorney General Opinion following the analysis contained in my paper could be legally binding on the mayors, instantly resolving the state-local policy discrepancies. Even a non-binding legal opinion from the attorney general carries great weight, as seen when the mayor of Norman recently backed off restrictions on churches.

To prevent any future misapplications of emergency powers laws, the legislature can do two things: (1) codify existing Supreme Court precedent into statute, explicitly re-affirming that city ordinances inconsistent with state law are legally invalid; and (2) re-evaluate whether emergency powers statutes are even necessary to begin with. If COVID-19 has demonstrated anything, it is that when given extraordinary powers, government officials overreach. American society experienced emergencies before there were emergency response statutes, and there is little indication government lacked the authority it needed to respond appropriately.

As for the mayors, we have already seen constitutional litigation challenging their activities, and as my paper makes clear, additional statutory grounds exist that citizens could pursue in litigation. Litigation of this nature is an uphill climb for citizens, but the difficulty of succeeding with a claim does not excuse the mayors’ failure to adhere to the law. If the strongest legal argument justifying these mayors’ actions is that it’s hard for citizens to prevail in court, that is no defense at all. Elected officials are sworn to uphold the law, not to uphold the law only to the extent someone can successfully prosecute a lawsuit against them.

At a minimum, we should be asking questions of the mayors, and the mayors should be providing detailed explanations of the legal authority for their actions. The fact that they have not already done so reflects poorly on their administrations as well as their legal positions.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

Popular posts from this blog

Dear GT Bynum, Let the Children Play

I live close to a large City of Tulsa park that has a golf course, walking trail, green spaces, and a couple of playgrounds. My (almost) three-year old son loves the playgrounds, and often begs us during walks in our neighborhood to detour to “for-chun” (LaFortune Park). This seemingly innocent request can become a hassle when we don’t really have time, but we indulge him as much as possible. It’s good for kids to play outside, especially with other kids they might not otherwise come into contact with. But sometimes we have to contend with an upset toddler who doesn’t understand why we can’t go to the playground right this minute. I’m not complaining, every parent of young kids deals with similar stuff. But during the COVID lockdown, we’ve had to contend with an altogether different LaFortune Park situation with our son. As part of the mayor’s shelter-in-place overkill, all city-owned playgrounds were closed “ indefinitely .” This wasn’t a guideline or suggestion, the city meant busine

When It Comes to the Cox Center, “What if I Get to Meet a Movie Star?” Isn’t Good Enough

In a recent   post , 1889 Institute expounded on the fiduciary duty of elected officials “to act in the best interest of the people of the state as a whole,” a “high duty, executed as a public trust … wherein one puts the people’s interest above one’s own.” This fiduciary duty must not stop with elected officials. Once an elected body or an elected official – the legislature, a city council, the governor, or a mayor – has taken final action, the faithful implementation of each enacted law, policy, or program falls to an army of bureaucrats. Thus, a fiduciary duty to execute laws and policies with diligence and integrity, tantamount to that of elected officials, must extend to government employees. Recently, I had a few moments to sit down and watch a show with my children. Unsurprisingly, my son picked a series entitled “The Stinky and Dirty Show.” I was naturally skeptical that the show would yield any real value. However, as I watched, I found myself pleasantly surprised. Each episod

COVID Inspires Tyranny for the "Good" of Its Victims

The Christian philosopher, C.S. Lewis, once said, "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies." The moral busybodies C.S Lewis warns of reminds me of those who would have Americans give up their liberty to combat COVID-19.   A recent Oklahoman op-ed compared COVID-19 to World War II, stating that the number of deaths from COVID-19 is approaching the number that died fighting for this country and the freedoms it protects. This comparison is, of course, nonsense. This suggests that a virus with a high survivability rate is an equivalent threat to the Nazi and Japanese regimes that brutally murdered millions. The piece uses wartime rationing of meat and cheese, a sacrifice necessary to ensure men on the front lines had adequate nutrition, to justify Americans accepting counterproductive lockdowns in exchange for additional stimulus c

The High Duty of Elected Officials and Ways They Fall Short

With an election just completed (the alleged voting, anyway), a legislative session coming up, constant talk of spending to offset the impacts of COVID-19, and elected officials trying to mandate our way out of a disease, the duty of elected officials in their official positions is worth considering. The 1889 Institute recently published a booklet for state lawmakers that discusses various issues and possible solutions. Included in that booklet is a short discussion of the central duty of elected officials, which is expanded here. What is the central, over-arching duty of an individual after having been elected to public office? Public oaths of office give a strong hint, and the Oklahoma Constitution is a good place to start. Article XV includes the oath of office, which states that an Oklahoma public official swears to “support, obey, and defend” the constitutions of the nation and the state, that the official will not take bribes, and that the official will discharge duties as best