Shelter-in-Place Orders Under State and Local Laws
To protect public safety during the COVID-19 outbreak, many state and local governments have issued shelter-in-place orders. Also known as stay-at-home orders, these mandates are intended to slow the spread of the coronavirus by limiting physical interactions in many areas of life. The details of shelter-in-place orders vary depending on the location. (You can read more here about any state order that may apply to you.) In general, though, they require all non-essential businesses to close or transition to remote work, and they restrict the activities in which people can participate outside their homes. Other provisions may limit the size of gatherings and impose physical distancing rules. These orders are frequently updated as the situation changes and as our understanding of the threat posed by the virus improves.
Why Are Shelter-in-Place Orders Legal?
Shelter-in-place orders may seem unduly burdensome in a society that is accustomed to freedom of movement. However, they have substantial legal support. A long-standing principle of constitutional law holds that states have the authority under their police powers to impose regulations that protect public health and safety during emergencies. A restriction on individual rights and liberties must be reasonable and necessary, rather than arbitrary or discriminatory. The government must act in good faith and use the least restrictive means available to achieve its purpose. Since an emergency requires a rapid response, government actions in this situation tend to receive some deference when they are reviewed by courts.
Shelter-in-place orders fall within this framework. They usually have followed a declaration of a state of emergency by a state or local governing authority. During the state of emergency, the governing authority holds the power to suspend laws that would interfere with addressing the emergency and to enact orders to assist with addressing it. Orders based on the state of emergency are temporary and generally will expire no later than the end of the state of emergency. Most states have enacted laws that identify the agency that is responsible for issuing and enforcing orders based on the public health emergency power. This is usually the state health department, but other agencies also may be involved.
Penalties for Violating Shelter-in-Place Orders
If an area is subject to an emergency order, law enforcement in that area can enforce the order and punish violations. Thus, in theory, someone who violates a shelter-in-place order that applies to their state or county could be arrested and detained. During the COVID-19 outbreak, though, government authorities have grown concerned about overcrowding in jails, which could accelerate the spread of the coronavirus. This means that violating a shelter-in-place order probably will not lead to jail time.
Some law enforcement agencies have published notices regarding their plans for enforcing shelter-in-place orders. Most agencies focus on encouraging voluntary compliance. If an officer finds a large group of people in a city park, for example, the officer might talk to the group about the importance of the order and explain why it is necessary. If compliance does not occur after this step, people who continue to violate an order may receive warnings. Governing authorities also may close locations where violations tend to occur, or ban activities that tend to result in violations. Ultimately, if a person still refuses to comply, a law enforcement officer may issue a citation or make an arrest.
A violation of a shelter-in-place order usually is classified as a misdemeanor. While an offender technically could face up to a year in jail, this is unlikely to happen for the reasons discussed above. However, the penalties for a misdemeanor still can be onerous. They may involve substantial fines, probation, and community service. A business that violates a shelter-in-place order may face fines and may lose its operating license and related permits.
Vehicle Stops and Coronavirus Checkpoints
In some areas, police officers have pulled over drivers if they suspect that they may be violating shelter-in-place restrictions on travel. Under the Fourth Amendment to the U.S. Constitution, an officer may stop a vehicle only if they have a reasonable suspicion that someone in the vehicle has broken a law. An officer cannot stop a vehicle based on an unsupported hunch or assumption. Police rarely know the purpose or destination of a driver before stopping them, so they usually will not have a reasonable suspicion to stop a vehicle based solely on a shelter-in-place violation. These stops most often involve drivers with out-of-state license plates, which may be a reason to suspect a violation. However, many people drive vehicles with license plates issued by other states. Courts might not be convinced that this is an adequate basis for a stop, but the issue remains unsettled.
By contrast, police checkpoints to enforce travel restrictions likely are constitutional. Courts have found that checkpoints and roadblocks that clearly serve an important public interest are valid, despite the inconvenience to drivers. During earlier public safety emergencies, courts allowed government authorities to use substantial discretion in installing checkpoints. However, this issue has not been resolved in the context of the COVID-19 outbreak.
