What happens if you violate state or county “Stay-At-Home” order?

Effective as of March 30, 2020 at 5:00PM, anyone physically in the state of North Carolina is subject to Executive Order No. 121. Executive Order 121 is the “stay-at-home” order that Governor Roy Cooper issued on March 27, 2020. This Order is in response to the COVID-19 epidemic, and the increasing number of confirmed infections reported in North Carolina.

Section 1, subsection 1 of this Order directs all individuals currently located in NC to “stay at home, their place of residence, or current place of abode.” Subsection 2 goes on to say that “only travel for Essential Activities” is permitted. In a nutshell, if you are located within the borders of NC you must stay in your “current place of abode” unless you are engaging in an “Essential Activity” or traveling to/from an “Essential Activity.” These Essential Activities include activities related to health and safety, shopping for necessary supplies, outdoor exercise, caring for others, and volunteering.

So what could happen if a person in North Carolina leaves there home for a “Non-Essential” Activity? For example, if a person travels to a friend’s house for a barbeque, or is caught playing 3-on-3 basketball?

Well, that person could be criminally charged with a Class 2 Misdemeanor, punishable by anything from a fine, to probation, to up to 60 days in jail depending on the person’s prior record. Usually Class 2 Misdemeanors result in a non-jail sentences (fines and/or probation), but for those with prior criminal histories, 60 days in jail is an option for a sentencing court.

Violation of an Executive Order is a crime unlike most other crimes we see. When a state of emergency has been declared, such as the one currently in place due COVID-19 spread, the Governor gets powers that he or she does not usually have. Ordinarily, if a behavior is going to be outlawed-e.g., house parties-the legislative branch of Government must pass a new law. But creating a new law is a time-consuming process. And once a new law is created, it can only be rescinded or taken back by the passage of yet another new law. When there is a state of emergency, the Governor is impowered to bypass this process, and issue commands related to addressing the emergency at hand. These commands can be enforced by law enforcement and violations are deterred by the potential of criminal sanctions.

Under G.S. 166A-19.30, during a declared state of emergency, the Governor has the broad authority to issue directives that can impose curfews, control routes of travel, and otherwise restrict “activities or conditions the control of which may be reasonably necessary to maintain order and protect lives.” And under North Carolina’s criminal law, violation of “any provision of a declaration or executive order issued pursuant to G.S. 166A-190.30” is a Class 2 Misdemeanor.

What about more restrictive “stay-at-home” type orders issued by county or local governments, like the ones in place for Wake and Durham Counties? Violation of an emergency order issued by a county or municipality is also a Class 2 misdemeanor. Under G.S. 166A-19.31, counties and municipalities have powers to issue orders similar to those granted to the Governor described above.

Stay-at-home orders can be enforced by law enforcement, who can issue warnings, citations, or make formal arrests-just like they can for any other Class 2 Misdemeanor. It is unclear how these Orders will actually be dealt with by law enforcement. It seems plausible that there will be more warnings than citations/arrests in this situation. However, arrests and charges are possible. One factor to consider is that these stay-at-home Orders give law enforcement reason to approach people to investigate potential violations of the Orders. If an officer has “reasonable suspicion” of criminal activity (now including violation of a stay-at-home order), that officer can conduct an “investigatory stop.” If this happens, officers may then develop cause to investigate more serious crimes (think DWI or even drug trafficking). So what may have started as a stop to issue a warning regarding the stay-at-home directive, may turn into a serious case with consequences far beyond those that typically follow a Class 2 misdemeanor.

If you have been arrested, ticketed, or charged in connection to an alleged “stay-at-home” Order violation, call the attorneys at Marcilliat & Mills PLLC. Although the stay-at-home orders are enforceable by law, like with any other crime, enforcement is subject to certain constitutional safeguards. For over a decade, our attorneys have handled thousands of criminal matters, from speeding to First Degree Murder. Our focus is defending your rights in the face of criminal allegations.