As the COVID-19 pandemic continues, many governors across the nation are signing executive orders regarding sheltering in place and staying at home – prohibiting large gatherings, public meetings, and requiring closings of non-essential businesses.

When Governor Larry Hogan issued his Stay at Home Order on March 30, he said, “This is a deadly public health crisis—we are no longer asking or suggesting that Marylanders stay home, we are directing them to do so. No Maryland resident should be leaving their home unless it is for an essential job or for an essential reason such as obtaining food or medicine, seeking urgent medical attention, or for other necessary purposes.”

One thing to note in the order is the penalty for violation (emphasis ours): “This order is to be enforced by state and local law enforcement. Knowingly and willfully violating this order is a misdemeanor, and on conviction, offenders may be subject to imprisonment not exceeding one year or a fine not exceeding $5,000 or both.”

Many citizens have questions about these orders. “Is this order constitutional?” “Are my rights to public assembly being violated?” “Can I really be arrested for going outside?”

I’d like to try to provide some clarity.

It’s true that the Constitution allows you the right to associate, assemble, and travel. So does the government have the authority to restrict your movement? It’s a complicated answer, but there are guidelines. Right now there are no federal rules or regulations regarding stay-at-home orders. At the moment these are left up to the states.

However, all states, including Maryland, are still required to adhere to the Constitution, including when they pass emergency and public health directives. There is little in the way of precedent regarding state power and epidemics. Forbes recently discussed a case back from 1905 during the smallpox epidemic called Jacobson v. Massachusetts. In this case, a pastor argued that a mandatory smallpox vaccination violated his constitutional rights.

The Supreme Court sided with the state, but carefully worded their decision: “The liberty secured by the Fourteenth Amendment . . . consists, in part, in the right of a person ‘to live and work where he will.’” But the court also stated, “In every well-ordered society . . . the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

As you can see, the answer is complicated. This is an emerging area of constitutional law and we are watching carefully.

If you need any legal guidance or assistance during this time, please don’t hesitate to contact the defense attorneys at Carey Law Office today. For a consultation, please call 301-464-2500 or use our contact form to schedule an appointment. We have offices in Bowie and Crofton.