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The Criminal Implications of COVID-19 and The Stay at Home Order

By Daniel J. Williams:

On March 22, 2020, Ohio Governor Mike DeWine announced that Ohio Department of Health Director Amy Acton, M.D., MPH had issued a director’s order requiring all Ohioans to stay in their homes to prevent the spread of COVID-19 (aka Coronavirus). The order went into effect on March 23, 2020 at 11:59PM, and is currently set to last until April 6, 2020 at 11:59PM.

A full copy of the “Stay at Home” order can be found at:
https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/directors-order-to-stay-at-home.

The notable exceptions to the order include individuals and entities that are deemed to be engaged in “essential” activities, businesses, and services, including the attendant travel that is necessary to effectuate them. Any person or business found to be violating the director’s order may be subjecting themselves to criminal prosecution.

Ohio Revised Code §3701.352, entitled “Violations Prohibited,” states that:
No person shall violate any rule the director of health or department of health adopts or any order the director or department of health issues under this chapter to prevent a threat to the public caused by a pandemic, epidemic, or bioterrorism event.

Ohio Revised Code §3701.99(C) classifies such violations as a misdemeanor of the 2nd degree, punishable by a jail sentence of up to ninety (90) days and a fine of up to seven-hundred and fifty dollars ($750.00).

While the Director’s order and code section seem simple on their face, their application by law enforcement officers raises a number of potential legal issues, most notably violations of the 4th Amendment Right to be free from unreasonable (and warrantless) searches and seizures. The landmark Supreme Court case of Terry v. Ohio, 392 U.S. 1 (1968), has long been the standard when it comes to permissible searches and seizures in a criminal setting. There, the Supreme Court held that an officer is justified in performing a brief “stop and frisk” where he has reasonable suspicion of criminal activity.

In light of the “Stay at Home” order and its many exceptions, how is a law enforcement officer to distinguish among individuals in a public setting that may or may not be engaged in permissible activity or business? What is to prevent an officer from using the “Stay at Home” order to conduct a criminal investigation that may otherwise be lacking in reasonable suspicion? Does a violation of the order exist when someone engages in “non-essential conduct” in the course of engaging in permissible activities?
Perhaps more importantly, how will the courts deal with these legal issues? What standard and factors will the courts use when determining the legality of a law enforcement encounters premised on such investigations that lead to more serious criminal charges unrelated to the order? Where does the burden of proof lie in showing that an exception to the order exists, with the State or on the accused?

We have already begun to see a number of cases in Ohio in which individuals have been charged with violating the “Stay at Home” order. In most instances, such charges accompany other criminal charges that appear to be the basis for law enforcement involvement. However, it is not out of the realm of possibility that standalone violations of Director’s order will become more commonplace, especially if the order is extended beyond the current deadline.

Facing a criminal charge in addition to the existing stress of the COVID-19 pandemic can be overwhelming. Call the attorneys at Dworken & Bernstein at 440-352-3391 if you or a loved one has been charged with violating the Director’s Stay at Home Order.

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