Local emergency coronavirus orders threatening constitutional rights?

By Rick Brundrett
The Nerve

When Columbia city leaders imposed a curfew 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.
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.”
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.
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.
Mount Pleasant mayor Will Haynie issued a stay-at-home order for the town, with exceptions for traveling to designated “essential” businesses.
In an executive order, McMaster directed that listed “non-essential” businesses in South Carolina be closed to the public 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.
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.”
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.”

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.

Author: Rachel Howell

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