The COVID-19 Pandemic: Prosecuting Stay-at-Home Order Violations

Due to the spread of the coronavirus, Governor Phil Murphy signed Executive Order 107 (“Order 107”) on March 21, 2020, which ordered, among other things, that New Jersey residents stay at home, with only certain specific exceptions, until further notice. Law enforcement had been issuing warnings to individuals for violations of the Order 107 stay-at-home directive, but tensions have been growing because many New Jersey residents continue to ignore the Governor’s directive while COVID-19 infections and deaths in New Jersey rise. On March 23, Attorney General Gurbir S. Grewal cautioned, “The time for warnings is over.” AG Grewal further advised the public that law enforcement will strictly enforce the Governor’s Executive Order, and individuals who do not comply will face legal consequences, including potential criminal charges ranging from disorderly persons offenses to second degree indictable charges.

During this unprecedented pandemic, there have been various orders, guidance, and policy issued by the Governor, AG Grewal, and county and local prosecutors, but the most recent executive order focusing on the stay-at-home directive and social distancing requirement is Order 107. Specifically, Order 107 states that all residents should stay at home unless:

• Obtaining goods or services from essential retail businesses
• Obtaining takeout food or beverages from restaurants, other dining establishments, or food courts
• Seeking medical attention, essential social services, or assistance from law enforcement or emergency services
• Visiting family or other individuals with whom the resident has a close personal relationship, such as those for whom the individual is a caretaker or romantic partner
• Reporting to, or performing, their job
• Walking, running, operating a wheelchair, or engaging in outdoor activities with immediate family members, caretakers, household members, or romantic partners while following best social distancing practices with other individuals, including staying six feet apart
• Leaving the home for an educational, religious, or political reason
• Leaving because of a reasonable fear for his or her health or safety
• Leaving at the direction of law enforcement or other government agency

Moreover, when in public during any of the above permitted situations, individuals must practice social distancing and, whenever possible, stay at least six feet away from any other person, excluding “immediate family members, caretakers, household members and romantic partners.” Order 107 also specifically prohibits all gatherings of individuals, including parties and other social events, unless otherwise authorized by the Order.

Some may think that the conditions in Order 107 will not be enforced, because it has been publicized that AG Grewal on March 16 requested that, due to the coronavirus pandemic, law enforcement consider delaying filing criminal charges, including charges for alleged fraud, where public safety is not an immediate threat. This request was made in a memo to all law enforcement chief executives, entitled “Law Enforcement Guidance During COVID-19 Pandemic” (“March 16 Memo”). The premise of the request was to avoid overburdening our court system and jails during the COVID-19 health crisis. The March 16 Memo does not include leniency with respect to activities, like public gatherings, that pose a direct threat to public health and safety. With respect to enforcement of the stay-at-home order, AG Grewal has since made clear that “the time for warnings is over,” as noted above.

New Jersey residents should also not be confused by Chief Justice Stuart Rabner’s March 24 Order that released certain inmates currently serving a county jail sentence. The purpose of Chief Justice Rabner’s Order is to assist in quelling the spread of COVID-19, but it should not be interpreted to mean that individuals will not be charged for violations of Order 107 and required to appear at a future court date. In some communities, there have also been Order 107 repeat offenders, and law enforcement is cautioning that issuing complaint warrants may come next.

Since AG Grewal’s March 23 appearance at the Governor’s coronavirus briefing, where he cautioned that charges may be pursued for violations of Order 107, there have been hundreds of summonses lodged related to COVID-19 violations, many of which were listed in AG Grewal’s most recent news release, dated March 27, and additional persons have been charged this week relating to violations of Order 107. The charges include creating or maintaining a nuisance; endangering the welfare of a child; defiant trespass; failure to disperse; loitering; and disorderly conduct. In many of these situations, individuals hosted parties or gatherings on the streets. Individuals have also been charged with obstruction of the administration of law for keeping a business open in violation of Order 107, which is typically a disorderly person offense, but can be elevated to a crime in the fourth degree if the actor obstructs the detection or investigation of a crime.

The most common charges issued in violation of Order 107 seem to be disorderly persons offenses, which are punishable by up to six months in jail and a fine up to $1,000, but indictable crimes are also being charged and the penalties get much more serious, including endangering the welfare of a child, which can be a third degree charge with jail exposure up to five years and fines as high as $15,000. AG Grewal also mentioned charging second degree crimes, which are punishable with up to ten years in jail and fines as high as $150,000.

The effect of Order 107 has certainly been to change the way that most New Jersey residents live their lives. New Jersey residents can still go outside to exercise or to obtain necessary items, such as food or medicine, to seek medical attention, to visit family or others with whom they have a “close personal relationship,” or to report to work for a business that is permitted to be open, but the social distancing protocol must be adhered to, and gatherings of any size are not permitted under Order 107. New Jersey residents should also keep in mind that municipalities can impose additional restrictions in municipal or county parks. If you plan to visit a local park or beach, check to make sure the facility is open as there have been many local closures to avoid group gatherings.

The Commercial & Criminal Litigation Department continues to monitor this situation as it progresses and is prepared to assist and advise clients with these issues. Due to the extraordinary circumstances created by the coronavirus pandemic, this is a fluid situation with new information, policy, and guidance being issued regularly at both the state and federal levels. For more information, please contact Mary Frances Palisano.

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