According to the most recent information reported in The New York Times, an estimated 316 million people in the U.S., including the 11.7 million residents of Ohio, are now under some type of stay-at-home order in an effort to stop the spread of COVID-19. Most of the orders followed failed efforts by federal, state and local officials to slow the spread of the virus by encouraging people to voluntarily avoid unnecessary contact with others and limit trips outside of the home.
Many of the orders currently in place include a threat of criminal prosecution with fines and jail time as penalties for violators. As reported by USA Today, law enforcement agencies in the vast majority of states and local municipalities rely upon educating the public to the health hazards associated with violating stay-at-home orders to obtain compliance with arrests reserved for those individuals who refuse to comply. A recent incident in Cincinnati illustrates how far some law enforcement agencies and prosecutors may be willing to go in using criminal laws to protect people by slowing the spread of the virus.
A YouTube video leads to an arrest
A video showing crowds of people dancing and milling about in close proximity to each other on the streets of Over-the-Rhine, a Cincinnati neighborhood, might have drawn little attention had it not appeared on YouTube while the country battles the COVID-19 pandemic. As the 25-year-old man who recorded and narrated it found out, encouraging people to violate an official stay-at-home order has serious legal consequences.
The obscenity-laced narration in the video includes references to the coronavirus pandemic along with a running commentary boasting as the audience watching his live stream increased on social media platforms. One group of viewers who were not impressed by the video were members of the Cincinnati Police Department and the Hamilton County prosecutor.
The day after the video was shot, officers arrested the man responsible for it and charged him with violating the Ohio stay-at-home order, which is a misdemeanor. By the time the case got to court on Monday morning, prosecutors included an inciting to violence offense, which is a felony. The judge set bond at $350,000, and both the prosecutor and police officials showed little sympathy for the possibility that court delays caused by the pandemic may force the man to spend much more time than normal in jail awaiting trial.
Under normal circumstances, both the Ohio and federal constitutions guarantee a defendant in a criminal case the right to a speedy trial, but COVID-19 has created a new normal. In response to the coronavirus pandemic, the Ohio Supreme Court has suspended jury trials for the foreseeable future, which means defendants must wait before getting their day in court.
I reserve comment on the outcome of this particular felony charge – the accused may be successful in defending against the charge. Although I did not see any violence on the video, I’m not privy to all of the evidence the state intends to use at trial. What I do know, however, is that the accused will be waiting a long time in jail instead of being at home to await his day in court.
Stay-at-home orders and the law
The governor placed Ohio under a state of emergency with an executive order dated March 9, 2020. State and local officials strongly recommended that people refrain from engaging in activities outside of their homes and observe social distancing guidelines by keeping at least six feet of space between themselves and others. As the virus continued to affect more and more residents, state officials changed the recommendation that people stay at home into a mandatory shelter-in-place order.
Under the terms of the order, activities outside of the home or place of residence must be limited only to essential activities. Shopping for groceries, going to the doctor and going to work are examples of permitted activities. Interestingly, taking a walk, going for a run or other forms of exercise activities are permitted.
Violating the order is classified as a misdemeanor, which makes it a criminal offense that would leave a person with a criminal record if convicted. A person convicted of violating it may face a fine of as much as $750, be confined to jail for up to 90 days, or be sentenced to a combination of a fine and incarceration.
The Cincinnati revelers and the man accused of encouraging them to violate the order while recording it obviously do not agree with the state using its authority to infringe upon their rights in the name of protecting the public from COVID-19. Yet, history offers guidance about the scope of state authority during times of public health emergencies.
Scope of the police powers of the state
A case challenging the legality of a law forcing adults to be vaccinated against smallpox made its way to the U.S. Supreme Court. The 1905 decision in Jacobson vs. Massachusetts offers answers to questions about the validity of stay-at-home orders during the current COVID-19 pandemic.
The Court was asked to decide if a state law authorizing local health authorities to compel adults to be vaccinated against the smallpox disease. Smallpox was a viral disease easily transmitted between people that killed approximately a third of those who contracted it.
Jacobson appealed a conviction for violating the law by refusing to be vaccinated against the disease. The Court ruled that states possess the authority, as part of what is referred to as their police powers, to pass reasonable laws to protect the health and safety of the public. The law designed to stop the spread of a disease was, according to the Court, a proper exercise of the state’s police power.
The Supreme Court acknowledged that in protecting public health, state law may infringe upon the constitutional rights of people it is designed to protect. Any infringement on the rights of individuals subject to the law would not cause the Court to declare the law to be unconstitutional as long as it was reasonable and substantially related to protecting the health and safety of the public.
Learning from the past can defeat COVID-19
How police, prosecutors and the courts in Cincinnati and other communities throughout the state handle violations of stay-at-home orders designed to protect the public against the spread of the coronavirus remains to be seen. If everyone remains calm, follows the rules and keeps in mind that the U.S. has not had a naturally occurring outbreak of smallpox since 1949, Ohio and the nation will overcome COVID-19.
It may help to end with a word of caution. You may believe you have the right to disobey the stay-at-home order, but are you willing to risk waiting in jail instead of at home for your day in court?