COVID-19 Coronavirus Pandemic Legal Advice: Arrest and Prosecution and Required Quarantine Under State & Federal Law
Can someone be arrested for giving me Covid-19?
At this time, there are no criminal statutes currently in place in Florida to criminalize the transmission of a non-sexual infectious disease.
HIV/STD Exception: In Florida, it is a third-degree felony — punishable by up to five years in prison — for a person who knows he or she is HIV-positive to have sex with someone else without informing them. The law came into effect as part of the “Control of Sexually Transmissible Disease Act” that Florida lawmakers passed in 1986 as fears about HIV, which can lead to AIDS, were growing nationwide. The disclosure law also covers other sexually transmitted diseases, such as herpes, gonorrhea and chlamydia — but HIV is the only one that carries a felony charge. Thirty-four U.S. states and territories have passed similar laws.
Other states have laws on the book that criminalize the transmission of contagious or infectious diseases; however, Florida does not.
Can someone be arrested for disobeying social distancing orders?
Generally speaking, someone cannot be arrested for simply disobeying social distancing mandates.
However, whether someone is committing a criminal act depends on what he/she is doing. There are broad statutes, such as “breach of the peace,” which could be use to arrest, but may not survive the tests of prosecution. It states:
877.03 Breach of the peace; disorderly conduct.—Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
The problem is, you’ve been arrested at that point and at a point where courts are slow to process criminal rights.
There were national reports out of New Jersey that two people were arrested for organizing weddings. Reports said, “Eliyohu Zaks, 49, and Shaul Kuperwasser, 43, were arrested Friday and charged with “maintaining a nuisance” after hosting weddings of more than 50 people in their homes.” The Lakewood police issues a tweet, which indicates that no arrests were made and people were merely warned- again exhibiting the conflict of laws here.
Another man was arrested out of North Carolina for more egregious conduct:
In that case and under North Carolina, disorderly conduct may be warranted.
Florida Law Can Mandate a Quarantine After a Declaration of a Public Health Emergency
The word “quarantine” derives from the Italian phrase “quaranta giorni”—that is, “40 days.” That was the rule in 14th-century when a ship arrived and authorities feared it might be carrying the plague: The ship had to wait it out, at anchor, for 40 days. If everyone on board was healthy at the 40-day mark, then and only then could they come ashore.
Governor Ron DeSantis issued Executive Order 20-51 directing the State Surgeon General to declare a public health emergency and declaring same on his own behalf on March 1, 2020.
Under Florida Statutes 381.0011 and 381.00315, the State Health Officer, upon declaration of a public health emergency, may force quarantine or isolate individuals who present a severe danger to public health due to a communicable disease with a significant morbidity or mortality. It states:
4. Ordering an individual to be examined, tested, vaccinated, treated, isolated, or quarantined for communicable diseases that have significant morbidity or mortality and present a severe danger to public health. Individuals who are unable or unwilling to be examined, tested, vaccinated, or treated for reasons of health, religion, or conscience may be subjected to isolation or quarantine.
It allows gives powers to a law enforcement officer under s. 381.0012 to:
(d) “Quarantine” means the separation of an individual reasonably believed to have been exposed to a communicable disease, but who is not yet ill, from individuals who have not been so exposed, to prevent the possible spread of the disease.
Individuals who refuse to be vaccinated or treated will be forced into isolation or quarantine and if there is no practical method to isolate or quarantine the person, the State Health Officer may use any means necessary to vaccinate or treat the individual.
A violation of a rule to isolate or quarantine, or any requirement adopted by the department pursuant to a declared public health emergency, commits a misdemeanor of the second degree. A second degree misdemeanor carries a maximum sentence of 60 days incarceration and 6 months probation.
However, the language says the government has discretion (“may,” not “shall”) to a force a quarantine of an individual (not an entire city, county or state) and only someone presents a severe danger or who was believed to be exposed.
As such, the law has limits.
The National Conference of State Legislatures has a handy state-by-state chart of quarantine laws here.
Federal Law Can Mandate a Quarantine
In 1944, Congress passed the Public Health Service Act, a broad public-health reorganization statute that included a quarantine framework that remains with us today. Over time, the list of qualifying diseases expanded from plague and smallpox, to hemorrhagic fevers (Executive Order 12452), to SARS (Executive Order 13295), to flu with pandemic potential (Executive Order 13375). Then, in 2014, President Obama issued the most recent update, Executive Order 13674, which expanded the SARS-specific language with a broader formulation that captured the possibility of similar but distinct respiratory syndromes that have a potential for pandemic transmission patterns or for high mortality rates. That 2014 expansion covers Covid-19.
We are only going to analyze internal-quarantine authority, meaning of people in the United States. Apprehension and testing of a person can occur only if they are reasonably believed to be in a “qualifying state”—meaning they are infected and are at the communicable or at least pre-communicable stage of that infection. In addition, there must also be a reasonable belief that the person is either moving (or about to move) across a state line, or instead that the person might infect others who are so moving (that last clause likely being pretty easy to satisfy in many if not most instances). See 42 USC § 264(d).
Under these orders, federal quarantine and isolation powers currently apply to the following diseases: cholera; diphtheria; infectious tuberculosis; plague; smallpox; yellow fever; viral hemorrhagic fevers; influenza caused by new or reemergent flu viruses that are causing, or have the potential to cause, a pandemic; and severe acute respiratory syndromes (which may include COVID-19).
Under 42 USC 264, 271, a person could face a fine up to $1,000 and no more than 12 months in jail if they violate a mandatory quarantine.
Federal law is quite encompassing. These also guide us:
- 42 USC Part G – Quarantine and Inspection; Introductory page
- Sec. 264. Regulations to control communicable diseases
- Sec. 265. Suspension of entries and imports from designated places to prevent spread of communicable diseases
- Sec. 266. Special quarantine powers in time of war
- Sec. 267. Quarantine stations, grounds, and anchorages
- Sec. 268. Quarantine duties of consular and other officers
- Sec. 269. Bills of health
- Sec. 270. Quarantine regulations governing civil air navigation and civil aircraft
- Sec. 271. Penalties for violation of quarantine laws
- Sec. 272. Administration of oaths by quarantine officers
Due to the difficulty of navigating the aforementioned issues that will or may arise, combined with the ever changing rules relating the Courts, the necessity to hire expert legal counsel to navigate you through these waters and the necessity to stay calm and attempt to be as reasonable and rational as possible is important.
- COVID-19 Coronavirus Pandemic Legal Advice Home Page
- Arrest and Prosecution Under State and Federal Law
- Required Quarantine Under State and Federal Law
- Civil Legal Liability for Spreading or Infecting Others
- Business Interruption Insurance Coverage May Help
- Family Law and Co-parenting amidst Uncertain Times with the Courts
- Authority of the Governor of Florida
- How the U.S. Constitution May Be Violated by Covid-19 Enforcement
- Speedy Trial, Release and the Coronavirus
- John Phillips Gives Live Legal Advice on Lex & Terry
- Florida’s 4th Judicial Circuit COVID-19 / Coronavirus Court Closure & Limitation Orders
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