What’s the Law: COVID-19 Edition

Void for Vagueness:

It makes sense that if a law is too vague for someone to know what is or is not allowed, that’s not fair.  The legal term for “fairness” is “due process.” A law that is too vague to know what it covers can be found to be “void for vagueness.” Similarly, laws that are “overly broad” can be found to violate someone’s right to due process by prohibiting too much conduct, even some that is not harmful.  Minnesota’s stalking law was recently found unconstitutional for this reason.

Minnesota’s Stay at Home Order:

Minnesota’s “Stay at Home” order provides a perfect example.

On the one hand, violating the law is a crime (a misdemeanor, which  is punishable by up to 90 days in jail and a fine of $1,000.00).  On the other hand, the media report that Governor Walz has instructed the police not to enforce the law . . . except sometimes.

There have already been at least eight instances of people charged for violating the order.

How Vague IS the Order:

For starters, I could not find it after about thirty minutes of searching.  I am a criminal defense attorney with about twenty years of experience, and I could not find the law people are being charged with violating.  Here it is in a 22-page PDF.

It turns out that my work is exempt (I can go to work).  You can find that particular exemption on page 9 at Para. 6 (cc) (iii).  Note that it is exception “cc” because the exemptions had already used up the 26 letters of the alphabet (my work is the 29th exemption).  Is your work exempted?  Is your preferred leisure activity exempted? The Order exempts,

“. . . outdoor activities (e.g.,walking, hiking, running, biking, driving for pleasure, hunting, or fishing),and . . . go[ing] to available public parks and other public recreation lands, consistent with remaining at least six feet apart from individuals from other households.”

What about frisbee golf if you stay six feet apart?  Will police tell you to “freeze,” take out a tape measure, and measure the distance between you and your nearest “golfing” partner? In many criminal cases, police can “extrapolate” prior conduct based on their observations and prior “training and experience.”  Can the officer testify that to be where you were, you must have been closer than six feet a few seconds earlier?

What about going to the grocery store? Para. 5 (d) allows going to the store for “food . . . and other grocery items.”  So far, so good. But the title of Paragraph 5 is “Necessary Supplies and Services.”  So, can you go to the store for ice cream? Groceries are exempt, but ice cream isn’t necessary?  What about orange juice?  What if you are diabetic?  What about going to buy cigarettes?  Are they grocery items?

What about? What about? What about?

Yeah, I’m lawyering the hell out of this.  But being charged with a crime is serious.  “Even a misdemeanor.”  Most employers are not allowed to ask early in the interview process whether you have been charged with or convicted of a crime, but they do.  And they are allowed to ask in a subsequent, in-person interview.  Given a choice of hiring someone who has been charged with a crime and someone who has not, the employer more often than not will take the person who is not a criminal.  The same analysis goes for housing, for college admissions, and professional licenses (from day care provider to doctor).

Like most criminal laws, the idea behind this one is laudable.  I support it.  But it shows with unusual clarity how vague or over broad laws can have unintended and serious, even life-altering, consequences.