AG To Police: Use Discretion in Criminally Charging Emergency Order Violators

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Official photo

Gov. Chris Sununu, left, is pictured swearing in Attorney General Gordon MacDonald on April 13, 2017.

By NANCY WEST, InDepthNH.org

CONCORD
– Businesses and people who repeatedly violate COVID-19 emergency orders could face criminal charges, according to Attorney General Gordon MacDonald, but he cautioned police to use discretion in most cases.

 “That discretion should be exercised with great care,” MacDonald said in a memo to law enforcement agencies. It was sent out Friday when Gov. Chris Sununu’s Stay-at-Home Emergency Order #17 is in effect as of midnight mandating New Hampshire people stay home with some exceptions and all non-essential businesses close.

People could face misdemeanor charges and businesses could be charged with felonies in some cases for violating emergency orders, MacDonald said.

And he said police can use the “force that is necessary” to detain people who violate mandatory isolation or quarantine orders.

The emergency orders were issued to address a public health emergency, MacDonald stressed.

“Therefore, the primary objective should be to inform the public of the order, its importance to public health and to seek voluntary compliance,” MacDonald said.

Sununu didn’t go into details about enforcement at the news conference Thursday announcing the emergency Stay-at-Home order except to say it was not intended to “harass” people.

The Stay-at-Home Emergency Order #17 says as of midnight March 27, “New Hampshire citizens shall stay at home or in their place of residence with the following exceptions:”

Those exceptions include people leaving their homes to work in a business that provides essential services; to get fresh air or exercise as long as social distancing is observed; to run essential errands such as going to the grocery store or pharmacy; to visit a spouse, parent or child; to provide child care and others.

Businesses that are considered essential include all law enforcement, fire, corrections and first responders, all medical personnel, grocery, liquor and convenience store workers, daycare and workers at restaurants that offer take-out and delivery.

See MacDonald’s memo, emergency orders, list of essential services here: http://indepthnh.org/wp-content/uploads/2020/03/20200327-law-enforcement-memo-covid19-1.pdf

He also released the explainer charts at the end of this story.

Law enforcement has discretion in enforcing Sununu’s emergency orders, but some orders issued by Health and Human Services Commissioner Lori Shibinette relative to isolation and quarantine are mandatory, MacDonald said.

Violators of the Stay-at-Home Emergency Order #17 could be guilty of a misdemeanor and could also be charged with disorderly conduct depending on the circumstances.

Violators could include people who purposely create a hazard to themselves or someone else in a public place, or knowingly refuse to move away from a public place. A business that is charged and convicted of a misdemeanor could be fined up to $20,000.

MacDonald said a verbal or written warning that includes information about the risk of harm might be appropriate.

But if a business, person or a group of people fail to comply after being contacted and warned, officers in their discretion may escalate enforcement to include criminal changes, MacDonald said, providing the following example.

Example:
If a restaurant is open for dine-in customers, the officer should provide the restaurant with a copy of Emergency Order #17 and in their discretion may issue a warning.

 The officer should notify the Attorney General’s Office which will review for potential civil enforcement. If there is a question about whether a business is conducting an essential service under Emergency Order #17, police should consult with his office, MacDonald said.

If the order is still ignored, it is within the officer’s discretion to file criminal charges, he said.

Quarantine Orders

The Department of Health and Human Services has issued very few orders relative to isolation and quarantine, according to MacDonald.

But anyone who violates or fails to comply with a health order is guilty of a misdemeanor and it would be a felony if the violator is a business.

If police find that someone has not self-quarantined or has violated a voluntary quarantine or isolation agreement, the officer should inform state health officials who will determine whether a mandatory isolation or quarantine order is necessary.

If someone fails to comply with a mandatory quarantine or isolation order, Shibinette may issue a formal complaint. At that point police have no discretion. They must take the person to his or her place of isolation or quarantine.

“If a person resists the law enforcement officer’s efforts, the officer may use the force that is necessary and appropriate to detain the person and transport the person to his or her place of quarantine or isolation,” MacDonald said.

MacDonald told law enforcement that COVID-19 has created unprecedented challenges and the people they serve are understandably concerned and anxious.

“Through it all it is important to remember the unique and essential role you play in your communities,” MacDonald said. “Your presence and leadership will provide reassurance and safety to the people of New Hampshire in the days and weeks ahead.”

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