Two months into the coronavirus pandemic shutdowns, some business owners and other people have been pushing the limits of statewide stay-at-home orders.
Some have reopened in defiance of the shutdowns, only to face citations and fines. Others have been cited for public safety measures like not wearing a mask.
Officials in their daily statements have said most people are following social distancing guidelines, but spoken out against those not following the orders. New Jersey Gov. Phil Murphy has said a small group of “knuckleheads” causes headaches as the state battles the deadly coronavirus.
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The issue takes on new weight after Gov. Tom Wolf's announcement Friday that all counties still under the strictest lockdown would move to the next phase of his reopening plan by June 5.
As some in the "red" phase of lockdown defied the orders, they started a conversation in the legal world about where rights to speech and assembly begin and where governors' executive power to provide for public health end.
Attorneys in the two states who spoke with NBC10 said with a growing backlog of cases in the courts already, it may not be beneficial for states to charge a large number of people.
“I’m not sure we want to clog the court system up with those kinds of cases,” said Michael Donio, a retired New Jersey judge who now works in private practice.
The states in our area have laws on the books that outline punishments for violating an executive order - which is how governors like Wolf and Murphy have temporarily shut down their states.
Wolf’s executive order says “enforcement actions” will be taken against anyone who violates it. According to state statute, anyone convicted of violating an emergency order faces a fine of up to $200 or jail time of up to 30 days. Those maximum amounts increase to $500 or 90 days for subsequent offenses.
In New Jersey, violating a governor’s executive order can result in a fine up to $1,000 or a prison term of up to six months, according to state law.
Though there are laws on the books, the post-pandemic legal system will face lots of new challenges like implementing social distancing among jurors, and catching up with cases that could not be heard during the lockdown. That will also include hearings for people released from jails to prevent the spread of the virus.
Lately in Atlantic County Superior Court, where Donio served, there is only one judge in person at any time, with some proceedings being done by video.
"But you can’t do a jury trial by Zoom," he said. "You can’t do a criminal trial over Zoom."
He mentioned there are fewer cases being filed now - that may be filed later - while others still in the pipeline get older and older.
Enrique Latoison, an attorney with offices in Media and Norristown, Pa., predicts there will someday be a wave of cases in the courts over stay-at-home order violations.
In separate interviews, both noted multiple times that this is an unprecedented legal situation, but Latoison's views diverged slightly.
“I am encouraging every citizen to plead not guilty and have their day in court… You don’t know the constitutionality of any of this and we won’t for awhile,” he said.
He said the courts will have to define "that gray area between the black and white" on what is within or outside the scope of a governor's powers.
Latoison had no doubts about the shutdown early on and that it was necessary to stay home for the good of public health.
"But every day, that gray area is starting to get so wide that people are starting to say, wait a minute, you are infringing on my constitutional rights," Latoison added.
Governors in other states like Wisconsin and Oregon have faced courts nullifying their executive powers used during the pandemic. Challenges against Wolf and Murphy's powers have gone nowhere so far.
Reopening in defiance
One co-owner of the gym in Camden County, New Jersey that reopened in defiance of the shutdown now had at least 7 active charges listed as of Friday. Those included violating a governor's order, and creating conditions that endangered the health of others.
Wolf has said business owners could face the loss of their license from an accrediting agency. And in one press call, he mentioned that insurance companies might not want the risks of a business that is operating in defiance of the order.
"They're making a statement," Donio said. "Ultimately they’re going to force the authorities, which they’ve already done, to issue citations."
"There’s no playbook on this, some judge is going to get this and decide," he said. Gym owners, for example, could mention all the safety measures in place in the reopening and a need to resume making money soon.
"And the state’s answer is going to be, "That’s fine, but we didn’t allow you to open,'" Donio added. "A judge will have to decide what takes precedent here."
Donio said business owners he knows are hurting from the shutdown, but remain cautious. Their general mindset is: “I can always make money. But I can’t get another life,” Donio said.