Can you be stopped for simply being out under Cooper’s new executive order? Attorney weighs in

Cooper announces modified stay-at-home order beginning on Friday
Cooper announces modified stay-at-home order beginning on Friday
Updated: Dec. 9, 2020 at 12:36 PM EST
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WILMINGTON, N.C. (WECT) - The COVID-19 pandemic is uncharted territory for most people, including state officials, so when Governor Cooper announced additional restrictions under Executive Order 181, which implements a modified stay home order, people had questions.

The new order restricts businesses and individuals from conducting certain activities between the hours of 10 p.m. and 5 a.m., and requires people to stay home during those hours, which leads to questions of constitutionality and enforcement of the new orders.

“... All North Carolinians are required to stay at home and travel only for work or to obtain essential goods or services during the hours of 10:00 PM and 5 :00 AM each day for the duration of this Executive Order,” the order reads.

While there are exceptions to the new rules, it has been unclear what the enforcement of the new curfew will look like and what rights police will have to stop people, simply for being out past 10 p.m.

Law enforcement personnel is directed to enforce the order against individuals “only in cases of willful or repeated violations,” but questions remain.

Woody White, a criminal defense attorney in Wilmington and former New Hanover County commissioner, offered his thoughts on the impact of the new orders, the rights granted to people in the U.S. Constitution, and potential conflicts.

The Fourth Amendment of the Constitution protects people from unreasonable searches and seizures, and it’s not typically something most people worry about outside of court, but that has changed.

“It’s something that a lot of us, a lot of people are thinking about much more frequently; can a cop just stop me on the road for driving a car?” White said. “Well of course not, the officer has to have reasonable suspicion that you are speeding or driving drunk or running a stop light... These COVID orders do not change any of that.”

While the order is effective in shutting down certain businesses, it does not prevent people from simply being out past 10 p.m., in White’s opinion.

“The Constitution and the Bill of Rights are supreme,” he said. “They are above, higher than, an order from an executive in a state,” he said.

“Where it relates to an individual driving his or her car, walking out of his or her house...there is simply nothing that is enforceable about that under this order,” White said.

Since the implementations of similar orders across the country people have asked whether or not they would have to have proof that they are exempt from the stay home order if they are out past 10 p.m., according to Cooper’s own website, the answer is no.

“Individuals are not required to show documentation that they fall within an exception to the Stay at Home Order,” the website reads.

COVID-19 has become a politicized topic, but White suggests these ideas transcend politics.

“Any infringement on constitutional liberties and rights is troublesome to me as an American citizen, I think most people agree with that...this type of analysis is not a partisan thing, everybody understands the concepts of freedom, personal responsibility, and risk assessment‚” he said. “I know the governor is trying to do what he thinks is the right thing to do; that’s fine, but I think he needs to be careful doing anything further than what he’s done.”

The following are listed as exceptions to the stay home order:

  • Travel to or from a place of work when a worker’s presence is required by the worker’s employer;
  • Travel for work purposes
  • Performing work at the workplace or other location directed by the employer when the worker’s presence is required by the worker’s employer
  • Travel to obtain groceries, take-out food, medical care, fuel, health care supplies, or social services
  • Travel from a business that closed at or after 10:00 PM
  • Travel to a business that will open at or after 5:00 AM;
  • Travel to take care of a family member, friend, or pet in another household;
  • Travel necessary for purposes of personal safety;
  • Travel into or out of the State
  • Travel required by law enforcement or court order; and
  • Using or providing shared transportation (including without limitation taxicabs, ride shares, buses, trains, airplanes, and travel to airports, train stations, or bus stations)

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