Stay-At-Home Orders, Charges, and Stops

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The Governor ordered individuals in North Carolina to stay at home and non-essential business operations to cease beginning at 5 p.m. Monday, March 30, 2020. The order, Executive Order No. 121, remains in effect for thirty days from that date. Here are a few things to know about the order and its enforcement.

  1. There are exceptions to the order to stay home.

While individuals in North Carolina are ordered to stay at home, their place of residence, or their current place of abode, they are allowed to leave their residences for essential activities, essential governmental operations, and to participate in or access COVID-19 essential businesses and operations.

Essential activities include the following:

  • Activities or tasks essential to a person’s health and safety, the health and safety of family, household members, or persons who are homebound, or the health and safety of pets.
  • Obtaining necessary services or supplies for oneself, family, household members, or persons who are homebound, or to deliver those services or supplies to others.
  • Outdoor activity, provided individuals comply with social distancing requirements and mass gathering limitations. Mass gatherings were redefined in the order as any event or convening that brings together more than ten (was 100, then became 50) persons in a single room or single space at the same time.
  • Certain types of work.
  • Caring for or assisting a family member, pet, or friend in another household.
  • Traveling to and from a place of worship.
  • Receiving goods and services provided by an essential business or operation.
  • Returning to or traveling between one’s place or places of residence for purposes including child custody or visitation arrangements.
  • Volunteering with organizations that provide charitable and social services.
  1. Essential businesses may remain open.

While non-essential business and operations were ordered to cease all but “minimum basic operations,” some business were allowed to remain open. Those include businesses that conduct operations while maintaining social distancing requirements along with other enumerated types of businesses, including healthcare and public health operations, human services operations, grocery stores, gas stations, media, banks, mail and postal services, educational institutions (here I am), restaurants for consumption off-premises, transportation services, and professional services, including legal services. For a full list, read the order here. All essential businesses and operations are ordered, to the extent practicable, to maintain social distancing requirements.

  1. A person may be criminally prosecuted for violating the order.

Violation of the provisions of Executive Order No. 121 are enforceable by state and local law enforcement officers and are punishable as Class 2 misdemeanors. There is no requirement that a person charged with such an offense be arrested; a law enforcement officer may instead issue a citation charging this offense. See G.S. 15A-302. The maximum punishment for a Class 2 misdemeanor committed by a defendant with the highest prior conviction level (five or more prior convictions) is 60 days imprisonment. In contrast, a person with no prior convictions who is convicted of a Class 2 misdemeanor may not receive an active term of imprisonment, but may be placed on probation pursuant to a suspended sentence of up to 30 days imprisonment. In practice, most sentences for Class 2 misdemeanor convictions are sentences to probation and/or a fine.

  1. The order does not authorize suspicionless stops.

To lawfully stop an individual to investigate a crime, a law enforcement officer must have reasonable and articulable suspicion of criminal activity. To comport with the Fourth Amendment’s reasonableness requirement, a brief investigative stop “must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” State v. Carver, ___ N.C. App. ___, 828 S.E.2d 195, 198 (2019) (internal quotations omitted), aff’d per curiam, ___ N.C. __, 837 S.E.2d 872 (Feb. 28, 2020). There is no blanket exception to the Fourth Amendment’s reasonableness requirement or the reasonable suspicion standard for criminal violations of executive orders. Cf. State v. Culver, 733 N.E.2d 334, 336–37 (County Ct. Ohio 2000) (finding that officer had an articulable and reasonable suspicion that at least one of the occupants of the motor vehicle he stopped was violating the curfew imposed by village ordinance); Akron v. Fair, 646 N.E.2d 1205, 1207 (Akron Mun. Ct. Ohio 1994) (finding that officer had an articulable and reasonable suspicion that defendant and the other occupants of the car were violating the municipal curfew law). Thus, law enforcement officers may not carry out suspicionless stops to detect violations of Executive Order No. 121. The same standard applies to law enforcement stops for stay at home orders issued by counties or municipalities pursuant to G.S. 166A-19.31. Because violations of those orders likewise is a crime, see G.S. 166A-19.31(h), a stop to investigate such a violation must be supported by reasonable suspicion.

The State Highway Patrol made this point on its Facebook page yesterday, writing that “The North Carolina State Highway Patrol will not be conducting traffic stops during the stay at home order for the sole purpose of determining whether a person is engaged in essential travel to work or other acceptable activities allowed by the order.”

This explanation appeared above a COVID-19 banner stating that the State Highway Patrol would only conduct traffic stops if reasonable and articulable suspicion exist.

If you skipped the explanation and went straight to the graphic, you might have thought the Highway Patrol was announcing a special COVID-19 standard.  Of course, it was not. It was announcing that not all rules are off in these strange, new times. The reasonable suspicion standard continues to apply.

14 comments on “Stay-At-Home Orders, Charges, and Stops

  1. Do you want to address the constitutional status of these orders. On what basis are these ordets constitutional? I don’t see it.

  2. I agree with Mr. Clifton. I don’t see a Constitutional bases for it either. Ordering people to close their businesses and limiting where they can go and with whom they can associate? Potentially arresting and incarcerating people for going to work?

  3. As a retired LEO, I often had to reroute people due to a closed street, stop adults from beating the crap out of each in their home in front of their children, arrest someone who felt drinking and driving was their right and did not give a damn about anyone else. Adults complain about teens being reckless yet most are the same. If adults could follow the rules our traffic courts would be empty and our hospitals less overwhelmed with a contagious pneumonia that is literally sucking the life out of people. It is a horror that being told to stay home and limit contact to protect yourself and others is seen as a violation of their constitutional rights. SO NOW WHO IS HAVING A 2 YEAR OLD TEMPER TANTRUM? DO AS YOUR TOLD, STAY HOME AND STAY ALIVE! STOP WHINING FOR CRYING OUT LOUD.

    • Actually, considering the all-caps, it appears that you’re the one shouting.

      Comparing the current situation to you having to reroute people due to a closed down street is absurd. Rerouting people around a closed down street isn’t going to cost thousands, possibly hundreds of thousands, of people their livelihoods. You’re still getting a paycheck with which to buy groceries, pay your mortgage or rent, etc. The majority of people live paycheck to paycheck — missing paychecks affects their ability to put food on the table and keep a roof over their heads.
      Do really believe that people should simply just accept losing their homes, their means of living, without even asking questions about the legality or necessity of what they’re being ordered to do?

      And don’t forget, those adults getting the crap beat out of them, now they cannot ever get a respite by going to work, or by waiting for the person doing the beating going to work. They’re basically stuck at home with their abuser. Those drunks on the roads now have nothing to do but sit around and drink. And you think that will reduce drunk driving? As this drags on, do you really think there will not be increases in homicide — particularly domestic related homicide — in suicide, in accidental death by drug overdose? Are those deaths worth it so long as nobody asks questions about the legality of what’s been ordered?

      Your ancestors and mine fought and died to give us the right to pursue our own way in the world, to think and worship and act as we wish within the bounds of the law, and to know that the governments which make those laws are themselves bound by rules which restrict the limits of their power and control.

      And you think there should be no questions asked when we are asked to simply surrender that legacy?

      If you’re a law enforcement officer then you took an oath to uphold the Constitution. From your post above, one wonders if you’re ever read the document you’re sworn to uphold.

      • Eric,

        I must say that your post is well written and articulate. I must also say that as an active law enforcement officer, I agree with you 100%. I believe people should follow the law. I also believe that any law or Order should be constitutionally legal and valid. As LEOs, we are sworn to uphold the US Constitution as well as the State Constitution. But what do LEOs do when they believe an order or law in unconstitutional? That is the question that has to be answered by our Sheriff or Chief. I do not believe Cooper has followed the rules of law while issuing his executive orders. In the light of what is happening right now, I am not sure the orders were the wrong thing to do, but I also believe that people have the right to decide where they wish to go and with whom, in most cases. (there are exceptions, just use common sense)

        I have my job, and I am going to work everyday. I know people that do not have the same option and they are wondering how they are going to survive this without losing so much. From Tina’s post, it appears she is retired and she will continue to receive her retirement and possibly her separation allowance, depending on her age. She has income, while so many do not. It is easy to tell people what to do when it does not affect you in the same way.

        I just thought I would put in my two cents worth of opinion.

        My hope and prayer is that this pandemic ends sooner than later and our neighbors recover quick and prosper after.

        • Jon,

          Speaking as a veteran of the US Army, even as a solder I did not have to follow orders that I knew were a clear violation of human rights, or the US Constitution. Following unconstitutional laws or unlawful orders is a crime, no two ways to look at it. If your commanding officer orders you to shoot people that do not pose a threat to anyone would you do that? It’s the same thing.

          If your unsure what is a good order or not do not take your commanding officers word for it, do the research for yourself. Study the US Constitution, the Bill of Rights & the laws your expected to enforce. I would also suggest reading the ‘Federalist & Anti-Federalist papers written by a few of the founding fathers. A good education on the foundation of the US Government will help you see what should and should not be enforced.

          By your post I assume that you are an intelligent person so I am sure you are more than up to the task. I will also add that as I am no longer in the military I don’t follow orders anymore. Common sense & the Bible direct my path, not a public servant that things he know’s what’s best. Even the Governor is just a public servant hired to do a job so that everyone else ca go about their daily lives.

    • I agree with you, Tina.

    • How typical for a LEO to say ” Do as you are told” with the Constitution and laws taking a back seat to the demands of police officers, whose lack of respect for individual rights and liberties is well established and a historical fact. Of course any objection to Stasi-like directives is ” whining “…One can only imagine how many people Tina detained without RAS or conducted ” pat downs ” without any articulable reason other than ” officer safety “, but it is likely in the hundreds if not thousands. The fact that it takes Federal courts to reign in police abuses and encroachments upon liberties proves that left to their own devices, we would no doubt live in a police state. After all, to a cop, a police state is nirvana. That alone should make anyone wary of anything that the police say or do.

    • Sorry, Tina, but the stay at home order are not constitutional, and the statistics don’t support this anyway. The death rate from medical mistakes results in 0.029% of the population dying, far exceeding coronavirus deaths, as do falls, suicide, homicide, vehicle deaths, and tuberculosis, vehicle deaths too.

    • I’m a current law enforcement officer in NC and I’ll gladly say that I’m ecstastic that Tina is no longer amongst our ranks.

      My oath is to the Constitution, not that tyrant in Raleigh.

      I’ll continue to serve and protect, and I’ll toss my badge on the desk before I enforce some statist nonsense like this.

  4. The spirit of the Constitution is to insure our liberty. Liberty being the right for me to do whatever I would like as long as it doesn’t inhibit the right of you to do what you would like.

    It seems that risking exposing your fellow citizens to a life-threatening illness to exercise your freedom crosses the line.

    You could be right perhaps the governor’s order is unconstitutional. If you feel that it is I suggest that you challenged it in court. In the meantime stay home and try not to kill anyone.

  5. I also have concerns about the order.

    I agree with the idea concept, but question the legal grounds that authorize the authority to limit basic rights.

    Prior to this order by the Governor, I was alarmed by Dare county placing armed men on state highways and bridges to keep non-resident property owners out. As I understand, Dare county used emergency evacuation orders (hurricanes) to justify these actions.

  6. They took away our freedom of choice. It’s my choice if I want to risk getting sick. If it’s not a government funded facility then the government should mind their own business.

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