Law Enforcement’s Authority to Enforce Stay at Home Orders
Governor Tom Wolf has issued multiple orders curtailing an individual’s ability to leave their home, travel, work and assemble during the COVID-19 pandemic. In relevant part, Governor Wolf’s Orders provide: “[a]ll 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.” In addition, the Order states: “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.” Enforcement of the Order was to begin on March 23, 2020 for certain counties subject to the Governor’s first Stay at Home Order and on April 1, 2020 for other affected counties.
This Order and others issued by the Governor raise significant constitutional questions concerning the potential infringement on citizens’ liberties. Article I, Section 1 of the Pennsylvania Constitution provides: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Article I, Section Eight of the Pennsylvania Constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures . . . .” Other relevant provisions of the Pennsylvania Constitution provide for freedom of religion and freedom to assemble.
While Governor Wolf justifies his Orders by asserting the need to stop the spread of COVID-19, the question arises, does he really have the authority to enforce these Orders in the face of the constitutional rights granted to the people? Pursuant to the Emergency Management Services Code, the Governor has the power to declare a disaster emergency upon finding that a disaster has occurred or the threat of a disaster is imminent. See, 35 Pa. C.S. § 7301(c). However, the definition of disaster only includes a man-made disaster, natural disaster or war-caused disaster. In Friends of DeVito v. Wolf, No. 68 MM 2020, 2020 WL 1847100 (Pa. Apr. 13, 2020), the Pennsylvania Supreme Court determined that the COVID-19 pandemic constitutes a natural disaster. Governor Wolf also relies on the Department of Health’s powers to justify his Orders. The Department of Health has the power “[t]o protect the health of the people of this Commonwealth, and to determine and employ the most efficient and practical means for the prevention and suppression of disease.” 71 P.S. Sec. 532. The Governor asserts that the Department of Health has the power to isolate, quarantine and use other control measures as needed. 35 P.S. § 521.5. However, the definitions of isolation and quarantine that the Governor relies on only relate to people who are infected or who have been exposed to a communicable disease. 35 P.S. Sec. 521.2. In other words, the Governor has authority to isolate those who have been infected with COVID-19 from others and quarantine anyone we know to have been exposed. But, does he really have to power to isolate every citizen from every other citizen irrespective of whether they have been infected or exposed to COVID-19? While Friends of DeVito v. Wolf, No. 68 MM 2020, 2020 WL 1847100 (Pa. Apr. 13, 2020) does not directly answer this question, the Pennsylvania Supreme Court suggests that the Governor’s powers are far reaching when dealing with a pandemic.
The validity and constitutionality of the Governor’s Orders will continue to arise in a number of different contexts. For instance, can a police officer perform a vehicle stop because he believes a driver is in violation of the Governor’s Orders? Alternatively, can an officer enter a place of employment and enforce the Governor’s Order to cease a non life-sustaining business without a warrant? Can a police officer prevent an individual from travelling to or attending church?
If you are cited with a violation of the Governor’s Orders, it will be necessary to explore all potential defenses to your citation. Having an experienced and knowledgeable defense attorney will be essential to your case.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.