Criminal Liability During Novel Coronavirus (COVID-19)

Everyone reading this knows all about the Novel Coronavirus, or "COVID-19." Illinois' Governor, J.B. Pritzker, issued an executive order related to COVID-19 back on March 21, 2020, after declaring a state of emergency. Following that, he has since extended the order twice.

From the outset, the issue of enforcement has been subject to debate, and many people are wondering what their criminal liability could be were they to allegedly violate the executive order. This is especially true with the latest extension of the executive order until May 30th, because it modified the executive order. Specifically, for the first time, the Governor mandated that everyone wear masks.

With previous orders, compliance was easy. Staying six feet apart is not too difficult once you begin noticing your distance to others. However, wearing masks is harder in an era when all available masks are being purchased by governments, healthcare facilities, and private industry at prices vastly beyond what any of us could afford. This article will explain some of the possible consequences people could face if they find themselves accused of violating the executive order, and what can be done about it.

One thing that makes answering questions about possible violations of Illinois' executive orders difficult is the fact that no punishment is provided for. The Illinois Emergency Management Agency Act, the statute that granted the Governor authority to issue the executive order, is silent on what a violation of it would entail. This is not true everywhere. Many states have similar statutes that specifically provide the punishments one could be subject to were they to violate an executive order. Illinois does not. Add to this how unprecedented the circumstances are under which the executive order was entered, and it is easy to understand why the issue of punishment is so confusing.

Another issue making figuring out the consequences of possible violations of the executive order difficult is the fact that our Governor has not been very clear on the matter. From the outset, when asked, our Governor was not very detailed about what would happen to someone alleged to have violated the order. For example, when he first announced the executive order, in response to a question, Governor Pritzker said that police could seek a cease and desist order from a court. Unfortunately, cease and desist letters – not orders – are sent by attorneys, not judges, but a judge could enter a restraining order or injunction against a person or group were they to violate the order. Of course, obtaining one is not easy or instantaneous, and it is made that much harder when our courthouses are no longer holding regular court, precisely because of the "Stay-at-Home" order, otherwise known as the "Shelter-In-Place" order. The Governor has not provided clear direction to law enforcement on what should – or what is expected to – be done were a violation of the executive order to occur.

One possible punishment is being charged with the offense of "Reckless Conduct." Reckless conduct is prohibited in Illinois, and is already a crime, under 720 ILCS 5/12-5. Reckless Conduct can be either a Class A misdemeanor offense, for which someone could face up to a year in jail and up to a $2,500 fine, or a Class 4 felony, for which someone could face from one to three years in prison. Reckless conduct occurs when anyone performs an act or acts that cause bodily harm or endanger the safety of another person. When great bodily harm occurs, then a person can be charged with a felony offense.

It's a generic "catch-all" criminal offense, designed to afford law enforcement the opportunity to charge someone where they lacked a specific intent to hurt anyone, but their conduct could have or did result in injury to another. However, enforcement is somewhat harder. We can all think of instances in which we could be said to act in a reckless manner that endangered someone. Even playing baseball in the back yard could endanger someone, because they could be hit by the random fly ball. Whether conduct endangers another is, to a great degree, in the eye of the beholder, and this is nowhere as true as it is with COVID-19. As of the time of writing this article, it is still unclear what the long-term consequences of contracting COVID-19 are. Were it to result in permanent injury to the lungs, for example, then one has to wonder whether this would or would not qualify as "great" bodily harm. Nonetheless, there are no news reports of people being arrested or charged, as of yet.

Another possible punishment someone could face for allegedly violating the executive order would depend on the ordinance code in the municipality or county in which the alleged violation occurred. It's entirely possible that municipalities, such as cities, or counties already have ordinance violations that are in effect now that punish someone for a generically-defined offense of endangering public health. Even if these ordinances did not exist, their drafting and passing would not be too difficult to accomplish. However, unlike with Reckless Conduct, ordinance violations are offenses that are categorized as being "petty" or "business" class offenses, for which only a fine could be imposed. The rights we can exercise when we're charged criminally, such as having a jury trial, are different than with ordinance violations. The reason is that they are not criminal per se, but are quasi-criminal in nature.

Regardless of what offense someone could face if it is believed they have violated the executive order, it is important to realize that the likelihood of these offenses will increase the longer people are cooped up their homes, unable to socialize, and the longer the executive order continues. Although we are far from a police state, where people walking in a park are accosted by police to answer for being outside, the scale of the pandemic is as yet unrealized and far from known. We are, to a great degree, in unchartered waters when it comes to alleged violations of an executive order. Just as the disease is novel, so will the defense have to be equally novel.

Anyone facing a criminal-like offense for allegedly violating the executive order will need a skilled team of attorneys willing to fight for them. We have more than one hundred (100) years of combined experience fighting for our clients, and we are here24/7 to help anyone who needs it.

Copyright © 2020 by Brendan Bukalski
The information provided in this column is general in nature, and should not be relied upon as legal advice or interpreted as creating an attorney-client relationship. As a general rule, all specific legal problems should be handled by an individual's attorney. All rights reserved. Any copying, duplication, or commercial use of the information contained in this column is strictly prohibited without prior permission.
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