By: Mark N. Longwell, Longwell Lawyers. Attorney Longwell is a former prosecutor
for the State of Florida, and the founder of the top-rated Orlando, Florida
law firm, Longwell Lawyers. He has over 28 years of experience successfully
handling thousands of criminal matters of all types, ranging from murders
to misdemeanors, which has earned him the highest rating of AV Preeminent,
from Martindale-Hubbell. He is a member of the Florida Bar, Federal Bar
for the Middle District of Florida, National Association of Criminal Defense
Lawyers, Florida Association of Criminal Defense Lawyers, and the Central
Florida Association of Criminal Defense Lawyers.
The Mayor of Orange County, Florida has issued a “Stay-At-Home”
Order making a violation a second-degree misdemeanor (the lowest level
crime – punishable by
up to $500, 60 days jail/6 months of probation). The Order generally requires
everyone to stay at home,
except for virtually everyone (essential employees, or anyone else doing essential things can be out
and about). You may see the Order
here. Many areas in Florida have similarly taken such action.
The point of this article is not to undermine the purpose of the Order.
There is no doubt that the Order is well intended and necessary to help
minimize the spread of COVID-19. To be clear, the spirit of the Order
should be respected, as a matter of public health.
As a criminal defense attorney, there are some interesting aspects to the
law. Anytime the government imposes a restraint on individual liberty,
it is important to understand how the law applies in real terms. The following
is a perspective on the enforceability and applicability of the law in
our everyday lives.
Your Constitutional Rights Still Apply
As with any criminal law/police power, you have important constitutional
rights that are very powerful. You have the right to remain silent. You
do not have to answer any questions. You have the right not to consent
to a search of yourself or your property. You also have the right to an
attorney. Those rights can protect you against unlawful arrests and convictions.
In the case of the Stay at Home Order, your right to remain silent is a
huge obstacle for law enforcement when attempting to enforce the Order.
For example, if an officer stops you because you are out, how does the
officer determine whether you are exempt from the law? Since the burden
is on the officer to obtain evidence that establishes probable cause to
believe that a violation of the law has occurred, there is no easy way
for an officer to discern whether an offense has occurred. The easiest
way to make the determination is for the officer to ask you questions,
like: “Where are you going?”, “What kind of work do
you do?”, and so on. Most people will answer, not realizing that
they may be giving incriminating information that will later be used against
them to obtain a conviction. Worse yet, others will lie. However, if a
person politely declines to answer such questions, how is probable cause
(let alone “beyond a reasonable doubt”) ever established?
Only Obvious Violations Will Get Charged
Public officials have openly admitted that they do not intend to make arrests
or charge people for minor violations (probably because they know it would
be hard to do). However, in the case of an obvious or flagrant public
violation, officers will not only likely enforce the Order, but they will
have an easier time making it stick. When people choose to organize large
public gatherings, like the Tampa area Pastor who decided to ignore the
Stay-at-Home Order in his area, law enforcement has an easy time establishing
probable cause. Moreover, public officials are motivated to show that
they will enforce the Order, when necessary. That is why the Pastor was arrested.
First Amendment Implications
Speaking of the Pastor’s arrest, there is an additional question
that arises as to whether these laws, as applied to religious practices,
violate the constitutional right to freedom of religion. It is not likely
that such laws violate a person’s constitutional right to freedom
of religion. Based on current constitutional case law, and the fact that
this is action is taken due to a public health crisis, that is a "neutral
law of general applicability" and does not seek to regulate beliefs
(only practices), I think the law is constitutional. There is strong precedent
supporting reasonable regulation of assembly and religion. For example,
the U.S. Supreme Court wrote in 1878, about allowing religions to do as
they please without regulation: "To permit this would be to make
the professed doctrines of religious belief superior to the law of the
land, and in effect to permit every citizen to become a law unto himself”.
To illustrate the point, consider that government may restrict religions
from sacrificing humans or animals, smoking peyote, handing out drugs…
These are extreme examples but demonstrate that there is authority for
the government to regulate religious practices.
For the sake of your health and your community, abide by the recommendations
of the public health officials and government leaders who are encouraging
you to stay at home – unless absolutely essential. While the Order/law
may be tough to enforce in cases that don’t involve open violations,
it is best to abide by the law.
For more information, contact Longwell Lawyers, at 407-426-5757, or go to: