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Defy State and Local Executive Orders at Your Own Risk

BRYAN JOHNSON, SAMUEL LICKER
JUNE 29, 2020


The COVID-19 pandemic has spawned numerous executive orders at both the state and local levels. From stay-at-home mandates to directives requiring face coverings and social distancing, laws are now in place throughout the country, all geared to stem the tide of the coronavirus. That being said, many businesses and individuals are unsure if they can be subject to legal liability for failing to obey executive orders issued by governors and mayors nationwide. As a matter of fact and law, they can. Make no mistake, businesses and individuals that run afoul of executive orders (related to COVID-19 or otherwise) may be held criminally and, in some cases, civilly liable.

By and large, the recent spate of executive orders issued by states and municipalities are tethered to laws that provide for punishment in one form or another. Take, for example, California Governor Gavin Newsom’s yet to be rescinded stay-at-home order (Executive Order N-33-20) and his subsequent executive orders. These laws invoke California Government Code §8665, which imposes the possibility of criminal liability in the form of a misdemeanor as follows: “[a]ny person who … who refuses or willfully neglects to obey any lawful order or regulation promulgated or issued as provided in this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not to exceed one thousand dollars ($1,000) or by imprisonment for not to exceed six months or by both such fine and imprisonment.”

California is not the only state that establishes liability for those violating stay-at-home orders and the like. New York’s order mandating non-essential businesses to shutter (Executive Order No. 202.8) makes clear that any business that fails to follow the law “shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the [New York] Public Health Law” (NYPHL), which provides for a penalty that can reach up to $10,000 where the violation results in serious physical harm.

Illinois serves as another prime example. The executive order (Executive Order 2020-32) issued by Governor J.B. Pritzker is a health order that specifically contemplates enforcement at both the state and local levels—this by way of the Illinois Management Agency Act (20 ILCS 3305) (IMAA). The net effect is that local police have been granted authority to arrest and issue monetary citations to those found in violation of the COVID-19-related law in the state.

Civil liability is on the table as well for those that violate state or local stay-at-home or related executive orders. To that end, it is conceivable that monetary damages could be imposed under a variety of tort doctrines such as “negligence per se” if injuries result from laws being violated.

Taken together, it is clear that executive orders now in place intended to counter the coronavirus must be taken seriously, not just for reasons of health and safety, but also because of the legal implications of defiance. Long story short, it remains prudent practice to abide by the executive orders in effect in your respective state and/or municipality to avoid civil and/or criminal liability.


We are working diligently to keep our clients up to date on coronavirus-related developments. Nevertheless, these developments are changing daily and, in some cases even hourly, so it is important that you make sure you are dealing with the most current information. That being said, this alert is not offered, and should not be relied on, as legal advice. You should consult an attorney for guidance and counsel regarding any specific concern or situation.