Police agencies are now taking steps to enforce the Governor and Department of Health’s “Stay Home” order. A woman in York county has now been cited for driving her car in violate of the “Stay Home” orders. It is therefore a good time to review what that order says:
The Governor has ordered:
All individuals residing in the Commonwealth are ordered to stay at home except as needed to access, support, or provide life-sustaining business, emergency, or government services. For employees of life-sustaining businesses that remain open, the following child care services may remain open: group and family child care providers in a residence; child care facilities operating under a waiver granted by the Department of Human Services Office of Child Development and Early Learning; and, part-day school age programs operating under an exemption from the March 19, 2020, business closure Orders.
Individuals leaving their home or place of residence to access, support, or provide life- sustaining services for themselves, another person, or a pet must employ social distancing practices as defined by the Centers for Disease Control and Prevention. Individuals are permitted to engage in outdoor activities; however, gatherings of individuals outside of the home are generally prohibited except as may be required to access, support, or provide life-sustaining services as outlined above.
There is an additional memo from the Governor which details his views on permissible activities outside the home:
- Tasks essential to maintain health and safety, or the health and safety of their family or household members (including, but not limited to, pets), such as obtaining medicine or medical supplies, visiting a health care professional, or obtaining supplies they need to work from home.
- Getting necessary services or supplies for themselves or their family or household members, or to deliver those services or supplies to others, such as getting food and household consumer products, pet food, and supplies necessary to maintain the safety, sanitation, and essential operation of residences. This includes volunteer efforts to distribute meals and other life-sustaining services to those in need.
- Engaging in outdoor activity, such as walking, hiking or running if they maintain social distancing.
- To perform work providing essential products and services at a life-sustaining business (see below for details about life-sustaining business activities).
- To care for a family member or pet in another household.
ALLOWABLE ESSENTIAL TRAVEL
- Any travel related to the provision of or access to the above-mentioned individual activities or life-sustaining business activities (see below for details about life-sustaining business activities).
- Travel to care for elderly, minors, dependents, persons with disabilities, or other vulnerable persons.
- Travel to or from educational institutions for purposes of receiving materials for distance learning ,for receiving meals, and any other related services.
- Travel to return to a place of residence from an outside jurisdiction.
- Travel required by law enforcement or court order.
- Travel required for non-residents to return to their place of residence outside the commonwealth.
It is also important to note that the Governor’s restrictions on businesses do allow non-life sustaining businesses to have employees present to perform maintenance and other necessary compliance tasks so long as proper social distancing is used.
In other words, there is quite a bit of travel still permitted. It is unlikely that the average police officer will have taken the time to understand or memorize this information.
The Governor of Pennsylvania does not have the authority to suspend rights that have been guaranteed under the Pennsylvania or United States Constitutions. A police officer still MAY NOT stop a vehicle to see where it is going.
Pennsylvania law permits a vehicle to be stopped under two circumstances: 1) a police officer has reasonable suspicion that a crime may have been committed, or 2) the police are conducting a systematic program of checking vehicles through a checkpoint. Checkpoints are relatively rare at this point and are beyond the scope of this posting.
Reasonable suspicion means that a police officer has a strong indication that you have committed a crime, in nearly all driving situations, that means that the officer has observed a vehicle code violation.
Under Pennsylvania law, a police officer can ask you for three pieces of information: 1) your license, 2) your vehicle registration, 3) your proof of insurance. You are not required to provide the police officer any more information. If a police officer continues to question you, they are acting beyond the scope of their authority. You can waive an objection to their unlawful detention by continuing to answer questions. Therefore, it is important that you do not answer. If a police officer asks you where you are going, simply and politely decline to answer the question. You can also ask if you are free to leave. The approach you should take in these situations is identical to our advice as to firearms. A Pennsylvania Police officer has no right to ask you whether you have a firearm in the car. You have no obligation to answer that question. If a police officer continues the detention and gives you a citation, accept the citation without argument. The validity of the citation can be argued at a later date.
We are living in a time when nearly all of us are facing great fears for the future. Fear makes people do irrational things. Irrational behavior erodes the strength of our laws and democracy. The best way to combat the erosion is to continue as best as we can to abide by our system of laws and to expect governmental officers to do the same.
Finally, the woman charged with violating the stay home order was charged with 35 P.S. 521.20(a)- Penalties, Prosecution and Disposition of fines. This law imposes a possible $300 fine and states:
(a) Any person who violates any of the provisions of this act or any regulation shall, for each offense, upon conviction thereof in a summary proceeding before any magistrate, alderman or justice of the peace1 in the county wherein the offense was committed, be sentenced to pay a fine of not less than twenty-five dollars ($25) and not more than three hundred dollars ($300), together with costs, and in default of payment of the fine and costs, to be imprisoned in the county jail for a period not to exceed thirty (30) days.
However, the citation does not state what provisions of the act or what regulation the woman violated. The citation states that the woman violated the Governor’s order and the Department of Health Order. However, orders from the Governor or Department of Health ARE NOT provisions of the act, nor are they regulations. The act does provide that persons infected with communicable diseases may be subject to a number of restrictions and provides due process for challenging those restrictions. See 35 P.S. 521.11. There is no indication that this woman was infected with anything. I do not believe that this statute applies to this situation and I believe that this woman was not guilty of the charge.
Moreover, these orders will be extremely difficult to enforce as they contain a large amount of grey areas and vagueness. They also infringe on constitutional rights to travel and assemble without rational reasons for doing so.
The purpose of the order is to prevent the spread of Coronavirus, which is a valid purpose. However, how is driving alone in your car any more dangerous than walking alone on the street? I would argue that driving alone in your car is actually safer than walking alone on the street, as there is no possibility of incidental contact with someone else. The order leads to an irrational result.
Moreover, many people are not able to walk due to medical issues, or may live in areas where it is not safe to walk, or may simply need a break from their household. Shouldn’t people be allowed to drive their vehicles so long as there is no contact with the public?
It is extremely important for law enforcement to review the laws before they file anything. While it is true that law enforcement does have broad immunity under Pennsylvania law, it is not complete immunity. A law enforcement officer could be found to be civilly liable for issuing a citation for which there is absolutely no legal support.
If you or someone you know has been cited for violating Governor Wolf’s stay-at-home order, contact us today to discuss your rights!