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.