Question for any Lawyers...is Shelter in Place Legal

[P Carter]

Executive orders are due process of law. . . Until a judge says they’re not.


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These orders are issued on the state level, not the federal level. Executive orders are typically understood to include those issued by the President. But you are correct that "what's constitutional" is an abstract question. If (God forbid) you get arrested, then all you really care about is what the Judge says, not the abstract question of "can they do this to me."

 

[87TT]

Sure sounds like a bunch of Lawyers arguing.

 

[Mighty Mouse]

The core rights guaranteed by the federal constitution were applied against the states through the 14th Amendment.

I concede that the incorporation doctrine (rooted in the 14th Amendment) is the de facto law of the land today, but the constitutionality of the doctrine is still debatable. Incorporation was initially rejected by the Supreme Court then gradually accepted, starting in earnest in the 1920s. In my mind, the strongest argument against broad incorporation based on the 14th Amendment is that the 14th Amendment didn't explicitly repeal the 10th Amendment, which seems to reveal that the 14th Amendment was not intended to broadly transfer Constitutional limits from the federal level to the state level.

Even the most conservatives justices on the U.S. Supreme Court, and even the most strict "textualists," agree on this.

That may be true of today's so-called textualists, but past justices have held differing opinions.

 

[P Carter]

I concede that the incorporation doctrine (rooted in the 14th Amendment) is the de facto law of the land today, but the constitutionality of the doctrine is still debatable. Incorporation was initially rejected by the Supreme Court then gradually accepted, starting in earnest in the 1920s. In my mind, the strongest argument against broad incorporation based on the 14th Amendment is that the 14th Amendment didn't explicitly repeal the 10th Amendment, which seems to reveal that the 14th Amendment was not intended to broadly transfer Constitutional limits from the federal level to the state level.


That may be true of today's so-called textualists, but past justices have held differing opinions.

I would agree that the theory can lead to good academic discussion. But it's important to realize that it is a purely academic discussion. Probably does not rise to the level of "still debatable." When discussing the actual legal consequences of actions, incorporation IS the law and the bill of rights IS enforced against the states. (With some immaterial exceptions, like the right to grand jury, which in my view cuts a huge hole in the theory, as it does with you likely as well.) Any judge would agree, and no judge would be swayed by arguments to the contrary. And I don't say that lightly. The only current justice who has ever expressed a differing opinion is Justice Thomas, and even he would apply the 1st Amendment against the states as a "privilege and immunity" of the 14th.

 

[Mighty Mouse]

But it's important to realize that it is a purely academic discussion.

Agreed, as I conceded earlier: "This is purely an academic point." But I happen to enjoy discussing academic points.

Probably does not rise to the level of "still debatable."

The good thing about holding many contrarian opinions is that most things are still debatable.

I agree though that incorporation is widely considered settled precedent and is unlikely to be further debated by the Supreme Court.

 

[Trevor73402]

I’m not reading thru 5 pages of this tin foil nonsense. I just want to know if anyone can produce proof of anyone, in any state, receiving a fine or being arrested for being out driving. This letter BS is going on in the town I live in and the rumors have gotten absolutely ridiculous. The local PD actually put out a post on social media yesterday that asked for the public to please stop giving out these letters and to please stop calling them asking questions about all this nonsense. They clearly stated there were no laws in place preventing people being out anytime they wanted to be.

 

[LionHead]

They can't do that. They have to have probable cause.

Incorrect. LE need Reasonable suspicion to "pull over" or detain ...Probable Cause is for an arrest.

From what I understand Flattening the curve is the plan. Shelter in place is NOT going to prevent the virus running it's course, it's out there it's going around, it'll make it to you eventually.

The idea is to not overwhelm critical medicine when it's needed for severe cases.

I dunno how LE is operating in your area, but in central California proactive stops are being limited, but there's still patrols and stops are still being made for suspected DUI and other criminal/dangerous activity.

If you need to be out, go take of your business and carry on. The issue that's on the rise is stupidity due to boredom.

Good luck all, stay safe, healthy
And stay classy

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[BFR]

I’ve been out of my house 3 times in the last 5 weeks. “Government “ imposed lockdown be damned, if I have a necessary reason to go out I will, period. When I do I will take precautions as needed, not because some politician says so but because it’s smart. If I don’t have a reason to go I will stay home because as a Viet Nam vet I just plain don’t like being around most people.

 

[87TT]

Incorrect. LE need Reasonable suspicion to "pull over" or detain ...Probable Cause is for an arrest.

From what I understand Flattening the curve is the plan. Shelter in place is NOT going to prevent the virus running it's course, it's out there it's going around, it'll make it to you eventually.

The idea is to not overwhelm critical medicine when it's needed for severe cases.

I dunno how LE is operating in your area, but in central California proactive stops are being limited, but there's still patrols and stops are still being made for suspected DUI and other criminal/dangerous activity.

If you need to be out, go take of your business and carry on. The issue that's on the rise is stupidity due to boredom.

Good luck all, stay safe, healthy
And stay classy

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It is already settled law that PROBABLE CAUSE is needed to make a traffic stop period. "Reasonable suspicion" is worthless. A traffic stop is a detention and therefore PC is needed.

 

[Rob5589]

The "flattening of the curve" is not intended to get rid of the virus, it is to slow the rate of transmission so our medical system does not become overwhelmed, like what is happening in New York. Currently where I work, the system is handling what is being thrown at us. But, it can head into a downward spiral with a quickness, and that is the worry.
Whether legal, illegal, constitutional, or otherwise. Hanging out at home to help society is just the right thing to do right now.

 

[P Carter]

It is already settled law that PROBABLE CAUSE is needed to make a traffic stop period. "Reasonable suspicion" is worthless. A traffic stop is a detention and therefore PC is needed.

I don't think you are correct. Reasonable articulable suspicion is the standard for pulling someone over for a traffic stop. It's considered a Terry stop and not a full-blown detention. Probable cause is needed for arrest or other detention longer in duration than a Terry stop. Confusing, perhaps annoying, but that's the way the law stands now.

 

[wylerr]

I don't think you are correct. Reasonable articulable suspicion is the standard for pulling someone over for a traffic stop. It's considered a Terry stop and not a full-blown detention. Probable cause is needed for arrest or other detention longer in duration than a Terry stop. Confusing, perhaps annoying, but that's the way the law stands now.

New here and started an account after lurking for a while to reply to this thread. Im active LEO now, so I can shed some light on this. Technically you are both correct and it also depends on the state. A car can be stopped for reasonable suspicion, but it is limited circumstances, especially in my state. A reasonable suspicion stop may be for having a quick trip to a known drug house, reasonable belief that the driver has a suspended/revoked DL (usually based on a picture attached to DL), or stopping a car that matches the description for an attempt to locate for a crime in the area. There are definitely more options, but reasonable suspicion is used pretty sparingly to stop cars because it gets weird real quick, especially from bad officers back in the day doing shady stuff.

Most times it is going to be probable cause to stop a car, ex: crossing the line, weaving around, speeding, light out, etc. Sometimes I wish we could stop cars for reasonable suspicion, especially where I work in the drug trafficking realm, but alas that pesky constitution

 

[Maverick1]

Huh?

 

[Backyard]

If you need to be out, go take of your business and carry on. The issue that's on the rise is stupidity due to boredom.

^^^This right here^^^



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[Marble]

It is already settled law that PROBABLE CAUSE is needed to make a traffic stop period. "Reasonable suspicion" is worthless. A traffic stop is a detention and therefore PC is needed.

I think the two terms are confused, and I'm not saying you are confusing them per se. I would disagree with you and say reasonable suspicion is all that is needed for a car stop. If you really delve into (I understand your a lawyer) there have been case decisions based on reasonable suspicion as the minimal basis needed for a detention. In these instances, the detention is minimal in scope and quick in nature, unless other facts are discovered raising the level to probable cause.

Example of a reasonable suspicion detention would be making a stop on someone for suspicion of DUI when no inherent traffic law has been violated, like weaving within the lane, or driving slowly in an odd manner, squaring off a corner, unusual signal usage etc.

I dont beleive police are stopping people all over the country because the stay at home order has been issued. It probably has happened once or twice from an officer who didnt know better. I think most of the comments, including what started this thread, is based off of rumors and fear from the general public. Its the job of agencies to get ahead of these issues and let their people and the general public know that type of behavior wont be tolerated.

 

[Marble]

This is from Findlaw

Probable Cause for Arrest

Probable cause for arrest exists when facts and circumstances within the police officer's knowledge would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime. Probable cause must come from specific facts and circumstances, rather than simply from the officer's hunch or suspicion.

"Detentions" short of arrest do not require probable cause. Such temporary detentions require only "reasonable suspicion." This includes car stops, pedestrian stops and detention of occupants while officers execute a search warrant. "Reasonable suspicion" means specific facts which would lead a reasonable person to believe criminal activity was at hand and further investigation was required.

 

[brsnow]

Reasonable cause, I thought people loved stop and frisk. We all might get a taste of how the other side survives soon.

 

[87TT]

27 years experience says you're wrong but for the sake of argument; say you see a car driving down the road. Absent any other wrong doing, how do you have reasonable suspicion that a crime is being committed? According to Terry, it is a consensual contact. During a "consensual" contact, the person stopped has no duty to cooperate.
"Reasonable suspicion " and probable cause are the same thing. Stopping someone just because they might be breaking a law is not reasonable and therefore an illegal stop/ detention. Just because you see someone drive away from a bar is not reasonable susoicion/probable cause for a stop to check for DUI. To make it "reasonable", you need more such as bad driving, vehicle code violation etc.

 

[MuleyFever]

...but alas that pesky constitution

Yeah, that pesky constitution sure is a thorn in the side of "law enforcement".

 

[brsnow]

Yeah, that pesky constitution sure is a thorn in the side of "law enforcement".

not really , I went to college in Washington Heights NYC in the late 90’s. Couple police vans pull up make everyone on the block lay down. Check IDs if you didn’t live on the block, you were arrested. Called a street sweep. happened 2-3 times a week. Perhaps coming to red neck America soon.