By Brian K. Lutes, December 11, 2020
Governor Roy Cooper’s Executive Order 181, “Implementing a Modified Stay at Home Order and Requiring Night-Time Closure for Certain Businesses and Activities for all North Carolinians During Overnight Hours”, commonly known as the “The Governor’s Curfew Order”, that was issued on December 8, 2020 has been repeatedly said to require everyone in the State of North Carolina to be and stay home between the hours of 10 PM and 5 AM or face arrest. It has also been repeatedly said to require individuals to wear face coverings or face arrest. But the reality is that the Order is virtually unenforceable.
A Governor requiring ostensibly healthy people to not only wear face coverings, but to stay home against their will with no reasonable suspicion, let alone proof, that they are infected by a contagious virus is not only repugnant to our Constitutional system, but amounts to House Arrest (confinement to one’s home as a condition of bail upon being charged in a court of law with a criminal act or as one’s sentenced punishment for conviction of a criminal act in a court of law) without cause or even an accusation of wrongdoing. This may even amount to False Imprisonment (defined by our courts as an unjustified detention of a person that occurs when an unlawful restraint imposed by virtue of purported legal authority results in an arrest (McKendree v. Christy, 172 N.E. 2d 380 (1961)) resulting from a False Arrest (defined by our courts as unlawful restraint of another’s personal liberty or freedom of locomotion (Johnson v. Jackson, 193 N.E. 2d 485 (1963)). The defendant in a False Arrest / False Imprisonment case need not be a law enforcement officer but merely someone that asserts improper legal authority to detain (116 P. 234, 237).
It is also akin to Prior Restraint, (a situation where the government, be it state or federal, or an agency thereof, takes some action to prevent some person from doing some thing that the government believes will cause, or is causing, public harm prior to a ruling by any judicial or administrative body that what the person is doing, or will do, violates any law or lawfully adopted administrative regulation the being issued). Our courts have held that such actions by the government are subject to strict scrutiny and bear a heavy presumption against constitutional validity (Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963)) and are rarely upheld (New York Times Co. v. United States, 403 U.S. 713 (1971)); (Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558 (1976)); Tribe, American Constitutional Law 12-34 (3d ed. 2000).
First, a review of the Frequently Asked Questions brief for Executive Order 181, also issued on December 8, 2020, reveals that paragraph 5 of page 4 “Are there any exceptions the modified Stay at Home Order?” says: “Yes. Individuals may leave home during the Stay at Home Period to: travel to or from a place of work; perform work at their workplace when the worker’s presence is required by the worker’s employer; travel for work purposes; obtain food, medical care, fuel, or social services; travel from a business that closed at 10:00 p.m.; travel to a business that will open at 5:00 a.m.; travel to take care of a family member, friend or pet in another household; travel to or from a religious service; travel necessary for personal safety; and travel into or out of the state.”
While paragraph 6 of page 4 states “Are individuals permitted to stay with family and friends during the Stay at Home Period?” “This order does not prohibit individuals from staying with family and friends…”
And, paragraph 2 of page 5 states “If I am outside my home during the Stay at Home Period, am I required to show proof”? “No. Individuals are not required to show documentation that they fall within an exception to the Stay at Home Order.”
Now, we’ll review the language of Executive Order 181 itself. As in previous Executive Orders pertaining to the Corona Virus issued by the Governor, he points to the North Carolina Emergency Management Act (NCGS 166a et sequitor) as his authority to declare emergencies and act unilaterally. The Emergency Management Act does lay out conditions under which the Governor can act and exercise powers he would not have in normal, non-emergency situations once an emergency is declared. The Governor declared an emergency for the Corona Virus via Executive Order 116. However, our courts have held that the Legislative branch “cannot delegate or sign over its authority to any individual, corporation, or foreign nation” (16th Corpus Juris Secundum, 141).
And, under the Separation of Powers Doctrine enshrined in our Constitutional system (which our Supreme Court has defined as a “bulwark against tyranny and looks to prevent any person or group from imposing its unchecked will” (U.S. v. Brown, 381 U.S. 437, 443 (1965)), a Governor cannot “make a law”. A Governor decreeing that every citizen must not only wear a face covering, but stay in their home between certain hours under the threat of arrest sure sounds like lawmaking to me. Only the legislature can make a law and our Supreme Court has held that even they do not have the power to pass laws that are outside the bounds of the Constitution (Marbury v. Madison, 5 U.S. 137 (1803)).
It has been well settled by our courts that “The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” (16th American Jurisprudence, 256, 2nd edition).
It must also be considered that the Governor’s Order, in requiring everyone in the State of North Carolina stay at home against their will, depriving them of their liberty (freedom of movement) with no reasonable suspicion, let alone proof, that they are infected by a contagious virus, or that they have engaged in any wrongdoing whatsoever, appears to be a violation of our Constitution’s Fifth Amendment, the Due Process Clause. The Amendment was originally a prohibition only on acts of the Federal Government, but was applied to the States by Section 1 of Fourteenth Amendment which states: “Nor shall any state deprive any person of life, liberty or property, without due process of law.”
In relation our Constitution’s Due Process requirement, Our Supreme Court has said that the requirement of ‘due process’ is not a fair-weather or timid assurance. ‘Due Process must be respected in periods of calm and in times of trouble‘; ‘Due Process,’ in its ultimate analysis, expresses a respect, enforced by law, for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, ‘Due Process’ cannot be imprisoned within the treacherous limits of any formula. ‘Due Process’ represents a profound attitude of fairness between man and man, and more particularly between man and government (Anti-Fascist Committee v. McGrath, (1951)).
In Section 1 of the Order, “Introduction“, we find Sub-Section 1.2, “Exemptions“, which states: “Worship, religious, and spiritual gatherings, funeral ceremonies, wedding ceremonies, and other activities constituting the exercise of First Amendment rights are exempt from all the requirements of this Executive Order…”
The phrase “other activities constituting the exercise of First Amendment Rights” includes the right of individuals to gather together or to “assemble” to petition their government for the redress of grievances which our Supreme Court has said is among “preferred rights” subject to special constitutional protection (Murdock v. Pennsylvania, 319 U.S. 105 (1943)).
So the very language of the Governor’s Order, that supposedly imposes a 10 PM to 5 AM curfew on everyone in North Carolina, exempts anyone and everyone that wishes to assemble for political purposes which includes individuals from separate households gathering together, regardless of the location in which they choose to do it, to simply discuss their displeasure with the Governor’s Order. Meaning the Governor’s Order is useless.
In Section 2, “Face Coverings”, the order states “…this section generally requires North Carolinians to wear Face Coverings in public places…and authorizes law enforcement to enforce Face Covering requirements against individuals who fail to wear a Face Covering outside the home without any applicable exception“.
In Section 2.1 “Face Coverings Required in Public Places” we find Sub-Section C which says: These requirements shall apply to all people at least five (5) years old, unless an exception applies.
Section 2.4, “Exceptions”, lists 10 exceptions, listed a-j, to the requirement that Face Coverings be worn and states: “This executive Order does not require Face Coverings for – and a Face Covering does not need to be worn by – a worker or guest who:
- “Should not wear a Face Covering due to any medical or behavioral condition or disability, including, but not limited to, any person who has trouble breathing, …”
The final paragraph of Section 2.4 says “Anyone who declines to wear a Face Covering for these reasons should not be required to produce documentation or any other proof of a condition.”
Section 4.3, “Travel Restrictions: Stay At Home Overnight”, the Governor says he is imposing the following curfew and restrictions upon the movement of persons within the emergency area, which is the entire State of North Carolina.
- Between 10:00 PM and 5:00 AM, all individuals in North Carolina must stay at home or at the place they will stay for the night, EXCEPT FOR: and then lists 11 (listed 1-11) exceptions to the requirement that people stay home; and
- Law enforcement personnel are directed to enforce this Subsection (4.3) of the Executive Order against individuals ONLY IN CASES OF WILLFUL OR REPEATED VIOLATIONS.
Our Supreme Court has defined “WILLFUL” as an act done stubbornly, obstinately, perversely, or with a bad purpose; without justifiable excuse (U.S. v. Murdock, 290 U.S. 389, 394 (1933)) so obviously if a person falls under just one of the listed exceptions to the purported requirement that everyone stay home between the hours of 10 PM and 5 AM they cannot be seen as willfully violating that requirement. And, since the Frequently Asked Questions Brief for Order 181, in paragraph 2 of page 5, states “If I am outside my home during the Stay at Home Period, am I required to show proof”? “No. Individuals are not required to show documentation that they fall within an exception to the Stay at Home Order” it is impossible for a law enforcement officer to develop probable cause to believe that anyone who appears to be violating the Order’s requirements is, in fact, actually violating them. Meaning the Governor’s Order is not enforceable.
The simple truth is that if you are outside your home “after curfew” or in public without wearing a face covering, law enforcement cannot even question you as to why without Probable Cause to believe that one of the many exceptions to the purported requirements that you Stay Home or wear a Face Covering do not apply to you, much less arrest you.
Our Supreme Court has defined Probable Cause as “a requisite element of a valid arrest consisting of the existence of facts and circumstances within one’s knowledge and of which one has reasonably trustworthy information, sufficient in themselves to warrant a person of reasonable caution to believe that a crime has been committed (Carroll v. U.S., 267 U.S. 132 (1925)) and which “cannot be based on facts which are completely innocent in themselves (Spinelli v. U.S., 393 U.S. 410 (1969)).
Law Enforcement Officers should not even consider enforcing Executive Order 181 not only because it is Constitutionally questionable, but because the very language of the Order makes it impossible for officers to develop probable cause to believe that any of the exceptions laid out in the order do not apply to an individual or group of individuals that are not wearing face coverings or are “out after curfew”.
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