The Concerned Citizen’s Guide to your Rights during the Stay-At-Home Order in Virginia.
Effective immediately on March 30, 2020, Governor Ralph Northam of Virginia has issued an Order directing all people in Virginia to stay at home, except for essential business. The text of this order is here: https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-55-Temporary-Stay-at-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf
This guide is intended to help you understand some aspects of this situation and how it affects you, your family and your rights. Please remember that every situation is unique, and the best advice comes when your trusted attorney is fully informed and able to advise you about your specific circumstances.
Order 55 expands the restrictions in the previous order issued by the governor which limited business operations in Virginia. The previous order limiting business in the Commonwealth is here:
Violation of Paragraphs 2, 3, 4 and 5 of Order 55 is a Class 1 misdemeanor, under Virginia Code Section 44-146.17. The most significant section that will apply to most people is the ban on gatherings of ten or more people under paragraph 2. It is not a violation to be in public by yourself or in a small group, at least for now.
What is a Class 1 Misdemeanor?
A misdemeanor is a criminal charge. Class 1 misdemeanors are the most serious misdemeanors in Virginia. A Class 1 misdemeanor is punishable by up to 12 months in jail, a fine of up to $2,500, or a combination of both. Examples of other Class 1 misdemeanors are assault, petit larceny (theft), DUI/DWI, and violation of a protective order.
What Happens if I get Convicted of a Class 1 Misdemeanor?
If a person is convicted, a Class 1 misdemeanor becomes part of their permanent criminal record. It is public, and can show up on background checks for employment and immigration purposes.
This kind of charge has not been commonly used in Virginia history, but these are unprecedented times. Being charged and convicted of violating the stay at home order could have significant consequences. In addition to whatever punishment is imposed, a conviction could send a harmful signal on a background check that will be hard to explain or overcome. The stakes are very high for people who are trying to hold onto small pieces of a normal existence.
Does the governor have the authority to do this?
A governor’s authority is different from the President’s or other local leaders. States, acting through governors, have broader powers over citizens than the Federal government theoretically does. While a state cannot enforce unconstitutional laws, practically speaking, a constitutional challenge to the governor’s emergency declaration would be long, expensive, and certainly could be considered an uphill battle.
What kinds of restrictions are we facing?:
You are supposed to stay at home except to do the following:
- Obtaining food, beverages, goods, or services still allowed to remain open from the previous order,
- Seeking medical attention, essential social services, governmental services, assistance from law enforcement ,or emergency services;
- Taking care of other individuals, animals, or visiting the home of a family member;
- Traveling required by court order or to facilitate child custody, visitation, or child care;
- Engaging in outdoor activity, including exercise, provided individuals comply with social distancing requirements (6 feet or more away);
- Traveling to and from one’s residence, place of worship, or work,
- Traveling to and from an educational institution;
- Volunteering with organizations that provide charitable or social services; and
- Leaving one’s residence due to a reasonable fear for health or safety, at the direction of law enforcement, or at the direction of another government agency.
These are the approved activities under paragraph 1. It is not a violation of law, at this time, to go somewhere other than for these purposes. However, violation of Paragraphs 2, 3, 4 and 5 of Order 55 is a Class 1 misdemeanor, under Virginia Code Section 44-146.17. The most significant section that will apply to most people is the ban on gatherings of ten or more people under paragraph 2. It is not a violation to be in public by yourself or in a small group, at least for now.
Who will be enforcing this?
It will most likely be the police and other government officials that will charge people with violations of this section.
How should I interact with the police if I think I might be violating the stay at home order?
Always remember to use your best judgment, remain calm, and do your best to de-escalate any situation involving the police. You should be polite, but you do not have to give up your rights or incriminate yourself.
An encounter with a police officer may involve them asking you questions about where you are going or what you are doing. They do not need to read you rights before engaging you in conversation. Many times, they will characterize encounters and questions before arrest as voluntary or consensual. If, in your best judgment, you think your purpose outside of your home is lawful under the order, you can briefly state your purpose to the officer to try to defuse the situation. For example, if you are a doctor going to the hospital to treat patients, lead with that. However, do not get into an argument with the officer or attempt to over-explain the situation. Saying as little as possible is often ideal.
A police officer cannot force you to talk to them. If they suspect you of a crime, do not disclose to them that you are committing one. You have a constitutional right to remain silent and not answer questions. If you feel that you are being investigated or interrogated, simply stop answering any questions, state that you do not want to say anything else, and then ask if you are free to go. You do not need to prove that you are not in violation. The burden is on the government to prove that you were in violation of the order.
The most likely context for these encounters is if there are a group of people that draw an officer’s suspicion. Officers may ask you about the people you are with, if they live with you, or what you had been doing earlier. You do not need to answer those questions. If you are out walking, you do not need to carry or produce photo ID. If you are driving, you need to show a valid driver’s license on request. Officers may be investigating who is coming into a neighborhood or going to businesses. That is their job. You should not interfere with that, but at the same time, you do not need to tell an officer you are guilty just because you are asked or questioned. If an officer tells you to leave or go home, that is often a very good option to end the encounter without being charged.
What if the police come to my home?
Police can enter your home only in a few ways: with a warrant, in the event of an immediate, specific, ongoing emergency (not a general health emergency like the COVID-19 pandemic), or with your consent. If an officer knocks on your door without a warrant or immediate emergency, you do not need to talk to them or let them in. If you have guests over or a gathering of more than ten people, you do not need to let the police come in to investigate. You should, however, think carefully about the health risks and legal danger before holding an event.
What happens if I get charged with this crime? How would the process work?
Officers would have the option to arrest you, or issue a summons, which is a legal document telling you to come to court to answer for the charge. Signing a summons is only a promise to come to court, not an admission of guilt. If you get charged, contact me immediately for help, at (703) 936-0580 or firstname.lastname@example.org.