Local emergency coronavirus orders threatening constitutional rights?

April 2, 2020

Investigative Reports

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By RICK BRUNDRETT

When Columbia city leaders imposed a curfew more than two weeks ago in response to the coronavirus outbreak, they required residents in most cases – under the threat of possible jail time – to isolate themselves in their homes between 11 p.m. and 6 a.m.

In justifying the curfew, mayor Steve Benjamin told a WIS-TV reporter on camera, “We started seeing some reports of even if the restaurants and bars might be shut down by the government, there would be a number of house parties and other social activities.”

City leaders at the time didn’t explain publicly how the seven-hour curfew, which allowed travel only to work or for health care reasons, would better slow the predicted spread of the coronavirus compared to allowing people to freely congregate during most of the day – other than dining in restaurants, as banned statewide by Gov. Henry McMaster.

The U.S. and S.C. Constitution each guarantees the right to peaceably assemble.

And what most residents in South Carolina’s capital likely didn’t know is that when the Columbia City Council, which includes Benjamin, authorized the curfew on March 17, it triggered a number of restrictions under the city’s existing state-of-emergency ordinance, including, for example, prohibiting the carrying of a firearm in public.

The ordinance lists no exceptions to that provision, such as having a valid concealed weapons permit. The U.S. and S.C. Constitution each guarantees the right to bear arms.

Violation of Columbia’s curfew ordinance carries a maximum penalty of 30 days in jail and a $500 fine. Violators of the coronavirus curfew can be given verbal warnings “as an educational opportunity,” though undefined “exigent circumstances could result in a written citation or arrest,” according to a city fact sheet.

Columbia isn’t alone in having broad emergency powers, as the South Carolina Policy Council – The Nerve’s parent organization – found in a review of municipal and county ordinances statewide.

The question of whether those local laws violate citizens’ constitutional rights – or conflict with state law – could take on greater significance in the coming weeks as more municipalities and counties consider issuing or modifying their own emergency coronavirus orders.

Take the coastal city of Beaufort, for example.

Under its existing emergency powers ordinance, when the city’s mayor declares that a “state of emergency exists” in all or any part of the city, local police can detain anyone “arrested in that area” for two days before a bond hearing or arraignment.

And if the mayor or governor declares a state of emergency, the city ordinance allows the mayor to temporarily ban the sale of “firearms, ammunition, gasoline and liquor, including beer, wine and ales” within city limits.

The city issued a state-of-emergency declaration on March 13, followed by separate “Declaration of Medical Emergency” orders issued by mayor Billy Keyserling on March 16 and March 25.

In Myrtle Beach, which initiated its “OpCon 2” emergency plan on March 14, the local civil emergency ordinance allows the city manager to “enter at a reasonable time upon any property, public or private,” to evaluate sites “involved with emergency management functions.” The tourist city last week temporarily banned hotels and other lodging businesses from accepting new reservations, plus closed amusement parks and other attractions.

On the state’s western side, the Saluda County Council passed a “State of Disaster Declaration” that took effect March 17. Among other things, the order allowed the county to suspend or limit the “sale, dispensing or transportation of alcoholic beverages, firearms, explosives and combustibles.”

Contacted last week by The Nerve, Toby Horne, chief deputy with the Saluda County Sheriff’s Office, said that order was “rescinded the next day,” referring further questions to County Council members.

J. Frank Daniel, the council’s vice chairman, didn’t respond to The Nerve’s written questions last week about the order and a subsequent emergency ordinance that took effect two days later.

Among other things, the ordinance allows the county director to suspend or limit “nonemergency activities” – which aren’t defined – and “prohibit public assemblies,” plus impose “curfews or quarantines to prevent the spread of infection.”

The ordinance is in effect for 61 days or until “emergency conditions” related to the coronavirus have “subsided” and “emergency activities” in the county are “no longer necessary.”

The Nerve last week also left multiple messages for Columbia mayor Benjamin and city spokeswoman Leshia Utsey seeking comment on the city’s initial curfew restrictions, though no response was provided.

Last Thursday, the Columbia City Council adopted an emergency “Stay Home Stay Safe” ordinance, which generally requires residents to “stay in their homes and not travel through or congregate in the streets, sidewalks, waterways and/or public spaces in the City of Columbia,” with exemptions for “working at or conducting business with” what the city classifies as “essential services.”

Under the city’s definition, besides health care providers and grocery stores, “essential services” include, among other businesses, certain manufacturers, banks, child care providers, electricians and plumbers, hotels, auto repair shops, garbage collectors and news media.

The ordinance went into effect for 14 days starting Sunday and can be extended as “necessary to protect the health, safety, and welfare” of residents.

Benjamin and Utsey didn’t respond to The Nerve’s follow-up written questions about the ordinance, including whether it effectively created a curfew.

‘Not a curfew’

In an interview Friday with The Nerve, Jack O’Toole, spokesman for the city of Charleston, which earlier last week adopted a similar stay-at-home ordinance, said according to the city’s legal staff, its ordinance is “not a curfew.”

But as in Columbia, the Charleston order generally bans residents from being out in public unless “working at or conducting business with” a designated “essential service.”

“Citizens are free to move about the city at any hour of the day or night to do their business,” O’Toole said. “The ordinance temporarily closes just nonessential businesses, and directs citizens to remain at home when they have no business or other activities to perform, such as (outdoor individual) recreation, which is explicitly allowed in the ordinance.”

“Nonessential” businesses under the ordinance, which is in effect for at least 14 days, include barber shops and hair salons, retail stores and shopping malls unless specifically exempted, movie theaters and other entertainment facilities, fitness centers and sporting event venues.

Shortly after The Nerve’s interview Friday with O’Toole, the S.C. Attorney General’s Office issued a formal opinion that the governor’s emergency powers dealing with the coronavirus “preempt those of counties and municipalities.” The opinion warned that municipalities’ or counties’ “unauthorized exercise of such emergency powers could subject these political subdivisions” to lawsuits.

City officials in Charleston and Columbia disputed the attorney general’s opinion, which doesn’t have the force of law, and have kept their respective stay-at-home orders in effect. On Tuesday, Mount Pleasant mayor Will Haynie issued a stay-at-home order for the town, with exceptions for traveling to designated “essential” businesses.

In his latest executive order issued Tuesday, McMaster directed that listed “non-essential” businesses in South Carolina be closed to the public, effective Wednesday, during the state of emergency, though he stopped short of issuing a statewide stay-at-home order. McMaster reiterated that his order would “supersede and preempt” any local law or other restriction that “conflicts” with the state order.

‘Fundamental’ protections

On Wednesday, Florida Gov. Ron DeSantis issued a stay-at-home order for that state through April, with exceptions to “obtain or provide essential services or conduct essential activities,” which include attending religious services in “churches, synagogues and houses of worship.”

In a March 24 written opinion to State Law Enforcement Division chief Mark Keel, the S.C. Attorney General’s Office said enforcement of a state law allowing police to break up groups of at least three, except in homes, during a state of emergency “must yield to established constitutional limitations.” It noted that “fundamental constitutional protections” include the “freedom of religion inherent in a church or other religious meeting, or a wedding or funeral; constitutional protections of the family unit; and the freedom of assembly for political purposes.”

Whether local coronavirus orders violate citizens’ constitutional rights would depend on the situation, according to legal experts contacted last week by The Nerve.

“These restrictions for public health purposes are acceptable constitutionally as long as they are tailored to the purpose,” said John Simpkins, a former Charleston School of Law assistant professor who currently oversees global leadership programs at the Washington, D.C.-based Aspen Institute, a nonprofit think tank.

“The concern is always going to be,” Simpkins continued, “whether or not there are attempts to enforce (restrictions) that infringe unnecessarily or disproportionately on someone’s rights, whether the right to travel or bear arms, or other restrictions that are not related to that public health purpose.”

Jack Swerling, a longtime Columbia criminal defense attorney, said while citizens should be willing to accept certain temporary restrictions for “the general good” in response to the coronavirus outbreak, there is a “limit to what (government) can do.”

“You just can’t have a blanket rule that has nothing to do with what you’re trying to accomplish,” he said, adding, “One thing I’ve always preached when I’ve given a (legal) seminar is that when you give up your constitutional rights … it’s very difficult to get those rights back.”

South Carolina Policy Council analysts Hannah Hill, Bryce Fiedler and Kelly Brady contributed to this story. Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-254-4411 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

Nerve stories are free to reprint and repost with permission by and credit to The Nerve.

 

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