If the government orders you to stay inside, are you breaking the law by going outside?

I’m Scott Nolan, a Northern Virginia criminal defense attorney. And I’ve been posting videos about criminal law and about driving under the influence. But today, I’m going to shift focus. During this time of the Covid-19 pandemic, I will talk a little bit about your rights.

So here is a question that I get a lot, “The governor says I have to stay inside. Am I breaking the law if I go outside?”

Is it legal to go outside?

Well, first of all, the governor has not said you cannot go outside. It is perfectly legal. Probably, as I am driving here, you’re going to see some people walking, driving, walking their dogs, and just being outside. It’s perfectly legal to go outside. You can go anywhere in the state you want to go.

The only restrictions the governor has placed are against gatherings of 10 or more people. And he’s ordered certain businesses, most businesses actually, to close down. But there’s no restriction on your ability to get in the car and go for a drive, or go see your friends. I don’t recommend that. It’s not a great idea, but it is not illegal. So let’s talk about what the law is.

The governor’s powers

The state of Virginia, like most states, has given its governor very broad powers during this state of emergency. Article V, Section VII of the Virginia Constitution has a paragraph on the powers of the governor. And then it has about six or seven paragraphs on the powers of the governor during an emergency.

And the constitution’s definition of emergency specifically includes the spread of an infectious disease. So under that definition, this is an emergency. And in an emergency, the constitution of Virginia grants extraordinary powers to the governor.

What the governor can do

He gets to control the movement of people throughout the state. He can restrict you to your house. He hasn’t, but he can. He can restrict certain towns. He could say nobody is allowed in or out of Fairfax. He hasn’t done that, but he can. The governor can also set curfews. He can do just about anything that revolves around the movement of people.

He can even go so far as to order whole populations out of their homes or to stay in their homes. Typically, people think about this in terms of a hurricane or a tornado or some other natural disaster. But it definitely applies during the pandemic.

What makes all of this unique is that the governor can do this by order. It immediately gains the effect of law. It does not need to go through the legislature. Violating the governor’s order is, at a minimum, a Class 1 misdemeanor, punishable by up to a year in jail and up to a $2500 fine.

Two answers to the question above

So there are really two answers to the question, “Can I go outside?” The first answer is, “Yes, for now.” And the second answer is, “If the governor orders you to stay inside, yup, you got to do it.”

If you have any questions about the government’s ability to restrict your movements during an emergency or any other area of the law, I’d be happy to talk to you about it. Give me a call.