Is the North Carolina Stay-at-Home Order Lawful?

Is the North Carolina Stay-at-Home Order Lawful?

Life brings controversy. The Stay-at-Home Order issued by Governor Roy Cooper is one example.

First, there is a difference between "stay-at-home" and "shelter-in-place" orders. These phrases, undefined by statute, describe their literal effects. A "stay-at-home" order describes the order issued in response to COVID-19. A "shelter-in-place" order describes a more strict order issued to keep citizenry indoors, such as during a major hurricane or terrorist event. The Boston Marathon Bombing and manhunt is such an example.

There are two schools of thought about their legality.

Proponents of the right to issue such orders typically argue three points. First, the Governor has authority to act under the North Carolina Emergency Management Act to declare a state of emergency, such as through Executive Order No. 116. See N.C. Gen. Stat. § 166A-19.20(a) (providing the Governor may declare a “state of emergency”); N.C. Gen. Stat. § 19.3(6) (defining “emergency” as “an occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made . . . public health . . . cause . . . .”).

Second, the Governor’s declaration of a state of emergency provides further statutory authority to issue a statewide Stay-at-Home Order, such as through Executive Order No. 121. See N.C. Gen. Stat. § 166A-19.30(c) (providing the Governor with the power to impose prohibitions and restrictions if he determines local control of the emergency is generally insufficient). The prohibitions and restrictions authorized by statute include “movements of people in public places," “the operation of businesses,” and “control of [activities or conditions] reasonably necessary to maintain order and protect lives or property . . . .” See N.C. Gen. Stat. §§ 166A-19.31(b)(1)-(5). The violation of the Stay-at-Home Order is a Class 2 Misdemeanor. See N.C. Gen. Stat. § 166A-19.31(h) (referencing N.C. Gen. Stat. § 14-288.20A(2) as the prohibiting statute).

Third, U.S. Supreme Court precedent exists for the State to act pursuant to the health, safety, and welfare of citizens. See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (holding the State may require its citizens to undergo vaccinations during the smallpox pandemic, noting “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good . . . . Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”).

Dissenters of the right to issue such orders typically argue two points. First, certain rights are subject to high levels of scrutiny to determine whether State action is lawful under the North Carolina and United States Constitutions. See, e.g., N.C. Const, art., 1 § 12 (providing for “a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances . . . .”) and U.S. Const. amend. I (providing the State, through the Fourteenth Amendment, shall “make no law . . . prohibiting the free exercise [of religion] . . . .”). Adherents of the right to protest, picket, and attend church generally cite the foregoing.

Second, provisions of the Stay-at-Home Order are arbitrary, written in an unreasonable manner, or go beyond what is reasonably required for public safety. See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (noting courts may interfere when the same occurs). These arguments often center upon the definition of essential or non-essential businesses.

This blog is designed to comment upon basic legal issues and is not an exhaustive overview of the law. It is intended for educational purposes only and constitutes neither legal advice nor an attorney-client relationship. Contact the skilled criminal law, family law, and civil litigation attorneys at Davis & Davis, Attorneys at Law, P.C., including Board-Certified Specialists in Federal and State Criminal Law and Family Law, to schedule a consultation today.