By: Bradley A. Fuller, Esq.

“The safety of the people shall be the highest law.”  -Marcus Tullius Cicero

All Illinoisans have been thrust into a very different and uncertain reality as the pandemic from “COVID-19,” or the coronavirus disease of 2019, continues to disrupt our society. Perhaps the most unsettling development, apart from the illness itself, has been the statewide “Stay at Home” order issued by Governor J.B. Pritzker on March 20th of this year. In a sweeping effort to slow the transmission of the wildly infectious disease, all citizens have been directed to remain in their homes and to avoid contact with others, except to accomplish certain essential functions.  In a free society such as ours, certain questions immediately arise; what authority does our state government have to enact such broad restrictions, and how exactly will this law be enforced?  To put it plainly – what can happen to someone who is accused of violating the Stay at Home order?

The United States of America is a federalist country, meaning that authority is divided between the national government and the governing bodies of the many states.  While no rights afforded to American citizens under the national constitution may be abrogated by the states, any power not explicitly granted to the federal government in our Constitution is reserved to the states and their people. The right of police power is the authority of each state to make and enforce laws designed to protect the welfare, safety, and health of the public. People v. City of Chicago, 413 Ill. 83, 108 N.E.2d 16. (1952).

Governor Pritzker's so-called Stay at Home order was issued pursuant to Illinois' police powers delineated in the state Emergency Management Agency Act.  Under this law the sitting Governor of Illinois has plenary authority to design and implement socially beneficial policies to combat serious disasters.  The Illinois code defines a disaster as “an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to… public health emergencies.”  20 ILCS 3305/4. Moreover, a public health emergency is specified as “an occurrence or imminent threat of an illness or health condition that: (a) is believed to be caused by any of the following: (ii) the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin.”  Id.  Clearly the novel COVID-19 pandemic fits squarely within the definition of a disaster as imagined by the Emergency Management Agency Act (EMA), and Governor Pritzker issued a proclamation to that effect on March 9, 2020. 

Section 7 of the EMA grants the Governor the power to “control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.”  The Governor is further endowed, during a disaster, with the authority to control, restrict, or regulate by rationing all commercial goods by “freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means, the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods, or services; and perform and exercise any other functions, powers, and duties as may be necessary to promote and secure the safety and protection of the civilian population.” After invoking the EMA on March 9, Governor Pritzker issued several executive orders which included the following;

March 13, 2020

COVID-19 Executive Order No. 2:

Cancels all public and private gatherings of 1,000 people or more

COVID-19 Executive Order No. 3:

Closes all public and private K-12 schools through March 30 (later extended)

March 16, 2020

COVID-19 Executive Order No. 5:

All bars and restaurants must cease all on-premises consumption

Prohibits all public and private gatherings of 50 people or more

March 20, 2020

COVID-19 Executive Order No. 8:

Orders residents to stay at home, barring exceptions such as essential travel for necessary work or supplies, exercise and recreation

Reduces allowable public and private gathering size to no more than 10 people

While the Governor's above orders are clearly intended to promote the general welfare by thwarting the rapid spread of COVID-19, the restrictions of our civil liberties are profound.  As stated at the outset of this article, no state law may abridge the rights afforded to all American citizens under the Fourteenth Amendment Due Process clause of our great Constitution. Freedom of assembly and association, the right to free speech, the right to privacy and to pursue property are all potentially implicated by the Illinois Stay at Home order. While the United States Constitution's First Amendment identifies the rights to assemble and to petition the government, the text of the First Amendment does not make specific mention of a right to association. Nevertheless, the United States Supreme Court held in NAACP v. Alabama (1958) that freedom of association is an essential part of freedom of speech because, in many cases, people can engage in effective speech only when they join with others. Wayne Batchis, Citizens United and the Paradox of "Corporate Speech": From Freedom of Association to Freedom of The Association, 36 N.Y.U. Rev. L. & Soc. Change 5Archived 2013-05-13 at the Wayback Machine (2012).

Any law that restricts such fundamental liberties must pass the highest level of legal inspection, the so-called “strict scrutiny” test.  For a law to be deemed constitutional under strict scrutiny review, the law must 1) be designed to further a compelling government interest, and 2) be narrowly tailored to achieve that interest through the least restrictive means possible.

An interest is compelling when it is essential or necessary rather than a matter of choice, preference, or discretion. Regulation vital to the protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity, and respect for fundamental rights, are examples of compelling governmental interests.  Ronald Steiner, Compelling State Interest, THE FIRST AMENDMENT ENCYCLOPEDIA, MTSU.edu.

Clearly, protecting citizens from the ravages of a potentially deadly disease such as COVID-19 is a compelling government interest.  We must now ask ourselves if Governor Pritzker's Stay at Home decree meets that interest in a way which is narrowly tailored through the least restrictive means available. Unsurprisingly, there is little legal precedent on the issue, as nationwide pandemics are extraordinarily rare occurrences.  However, the United States Supreme Court has dealt with a similar issue in the case of Jacobson V. Massachusetts. 197 U.S. 11 (1905).  Over one hundred years ago the smallpox virus was devastating many American communities.  In an effort to eradicate the disease, the state of Massachusetts enacted a law mandating the compulsory vaccination of its population. At least one citizen, Jacobson, resisted the forced inoculation as a violation of his personal liberty.  The case went all the way to our nation's highest court which reasoned, “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.”

Today our nation's top scientists have reached a general consensus that sheltering in place, and avoiding all non-essential social interactions is the best - and perhaps only defense we have - against the rapid spread and destruction of COVID-19.  Therefore, it stands to reason that the Stay at Home order does indeed pass strict scrutiny analysis.

What then are the potential consequences of violating the order?  Many Stay at Home laws, such as that passed by San Francisco, California and Oak Park, Illinois, make violation of the ordinance a “misdemeanor” offense, meaning a crime punishable by up to one year in jail. (The Oak Park law was rescinded once the state-wide Stay at Home order went into effect).  However, Governor Pritzker's executive order curiously does not contain a specific penalty clause.  When asked about this issue at his press conference announcing the order, Governor Pritzker stated that violators could be subject to an educational warning, monetary fine, or even arrest.

The Illinois State Police recently have indicated that they will attempt to use an incremental approach to enforcement.  First, violators will be educated about the law and perhaps issued a verbal or written notice to comply. Repeat offenders are subject to a citation and fine. Business operators could face civil liability (i.e. lawsuits) and potential administrative sanctions, such as licensing jeopardy. Continued and flagrant violators may face arrest, criminal charges, and perhaps even court ordered quarantine.

Local law enforcement officials may also rely on their jurisdiction's municipal code to issue citations.  In Chicago, for example, Mayor Lori Lightfoot's administration has stated that police officers may ticket violators pursuant to Section 8-4-010 of the local code which states in relevant part;

A person commits disorderly conduct when he knowingly:

      (d)   Fails to obey a lawful order of dispersal by a peace officer who has identified himself as such, or is otherwise reasonably identifiable as such, issued under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm; or

      (e)   Fails to obey an order by a peace officer, traffic control aide, fire department official, or other official, who has identified himself as such, or is otherwise reasonably identifiable as such, issued under circumstances where it is reasonable to believe that the order is necessary to allow public safety officials to address a situation that threatens the public health, safety, or welfare; or

   A person convicted of disorderly conduct shall be fined not more than $500.00 for each offense.

Governor Pritzker has said specifically that brazen offenders may be arrested and charged under the Illinois Criminal Code with Reckless Conduct for endangering the safety of other persons. Reckless Conduct is a Class A misdemeanor punishable by up to one year of incarceration, two years of probation, and $2,500 in fines. 

Anyone found trespassing upon temporarily closed state property, such as the beachfront parks in Chicago, may be arrested and charged with a Class A misdemeanor offense as well.  Moreover, any person who refuses a lawful dispersal order from a peace officer or firefighter may conceivably be charged with the Class A misdemeanor offense of Resisting or Obstructing under 720 ILCS 5/31-1 of the Criminal Code.  Notably, any person convicted of Resisting or Obstructing in Illinois faces a mandatory minimum incarceration term of at least 48 consecutive hours in jail. 

If you or someone you know have been warned, cited, or arrested for allegedly violating the Stay at Home order or a related law, you should consult with an experienced criminal defense attorney immediately.  Do not be combative with officers. Obey all law enforcement commands while politely refusing any requests such as prayers to consent to searches, sign a rights waiver form, or answer investigative questions.

The government does have vast and powerful authority to enforce laws aimed at slowing the spread of COVID-19, but as an American citizen you have rights. Skilled defense attorneys zealously will advocate on your behalf to achieve the best possible legal outcome in your case.  You may indeed have a valid defense to a perceived violation of the Stay at Home order such as the common law defense of necessity.  A person who leaves their home in order to avoid an abusive situation, for example, should not be convicted of a crime.  And while the Stay at Home order may be constitutional “on its face,” it may be unconstitutional “as applied” to your particular circumstances.  Only a seasoned attorney can make such analyses.

Misdemeanor crimes are serious legal issues that require tenacious legal advocacy. Charges such as trespassing, resisting arrest, or reckless conduct can have unfortunate and long lasting effects on your life. It is crucially important that you have an experienced attorney who will work vigorously to prevent convictions from being placed on your permanent public record. 

If you have any questions at all about the current Stay at Home order or any legal issues during these unprecedented and uncertain times, please do not hesitate to call the skilled and passionate legal professionals at Illinois Advocates to get the help you deserve today. 

By: Bradley A. Fuller, Esq.

Call Illinois Advocates today at 312-818-6700.