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Getting Tired of Stay at Home?

by Apr 23, 2020Firm News, Kevin Sieben, Minnesota Attorney, News Stories

You have been good. You have been staying at home, not meeting with friends, trying to juggle kids, school, and work, and keeping in touch with friends and extended family. But enough is enough right? It is finally getting nice out. Your kids are ready to claw each other’s eyes out. This whole quarantine thing needs to end. What could go wrong if you just said, for one night … I am calling off the quarantine?

In our previous blog, Are Beers with Neighbors Allowed Under Governor Walz’ Stay at Home Order?, we addressed that violating the Governor’s order can be punished by up to 90 days in jail and a $1,000 fine. Well, that didn’t seem to stop some people from leaving the home. A recent article by the Star Tribune referenced that 33 Minnesotans have been charged with violating the Stay at Home Order. The individuals cited will now need to go through a lengthy court process and could be looking at future jail time. If you don’t want to join these individuals on the court docket, we strongly advise you to hang in there. This will not last forever. Take advantage of the many exemptions the Stay at Home Order does allow for. Specifically, you can do outdoor activities that are for exercise. Go for a walk or run. You could plant a garden. You can now even go golfing, so long as you practice proper social distancing.

The one thing you cannot do, however, is to call off the quarantine … even just for one night.

But the protesters say that the Stay at Home Order is unconstitutional. Why should I follow it?

The Stay at Home Order is the law of the land. Unless or until the courts review this law, you can be arrested and held in jail for violating it. Good lawyers, like the attorneys at Sieben Edmunds Miller, will be arguing about the constitutionality of the Governor’s orders, but that process can take months or years.

Is Stay at Home Constitutional?

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Many people read the “shall make no law” language and come to the conclusion that there is no way these temporary stay at home orders can be constitutional. Unfortunately, the analysis does not stop there. There are many laws that restrict first amendment rights. You are not allowed to yell fire in a crowded theater, (unless there is one), and you are not allowed to threaten to hurt or kill someone. Typically, when the government seeks to restrict a constitutionally protected right, it must meet what is known as the strict scrutiny standard. When this gets into court, it will need to be determined if the Stay at Home Order was narrowly tailored to achieve a “compelling governmental interest.” Strict scrutiny is the highest standard of review a court will use to evaluate the constitutionality of governmental infringement on constitutional rights. It seems relatively clear that there is a compelling interest that the government has to prevent the spread of a potentially deadly virus. The issue the courts will need to decide is if the Stay at Home Order was narrowly tailored to achieve that goal.

Could the Governor come up with a more narrowly tailored means to accomplish these goals?

The University of Minnesota, along with the Minnesota Department of Health, created the Minnesota Covid Modeling Program. Neither all of the data nor the model itself has yet to be released to the public. They did, however, offer a powerpoint presentation explaining much of their modeling here. In these slides it appears that they presented several different options to mitigate the spread of the virus. One of these options (scenario 3.2) called for extended social distancing, without the Stay at Home Order. The Model actually suggested that this approach would result in fewer deaths than extending the Stay at Home Order. See slides 11 and 12. Looking at Scenario 3.2 it certainly seems that there would have been a less restrictive method to accomplishing the government’s legitimate goal. Scenario 3.2 actually would better achieve the goal of less death, not to mention the restrictions would be less severe.

In sum, there is a good argument that the Stay at Home Order could be unconstitutional. A good argument, however, does not mean that you will not be arrested, cited, and brought to court for violating the Order. The lawyers at Sieben Edmunds Miller will be addressing the constitutionality of the Stay at Home Order eventually. For now, we advise you to stay home and stay safe. However, If you or a loved one couldn’t take the quarantine any longer and got charged with violating the order, contact us immediately so that we can prepare your defense.

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