Updated Thoughts on Arrest Powers

By Attorney Jeffrey Musto

I agree with my esteemed colleague — Stephanie Messplay — and her answers to the question: “Will I be arrested if I go out right now?”  This is a unique time and probably the first time that anyone of has really thought about such unusual limits on our freedom of movement.  We have always had the ability to go where we want, when we want, and with who we want.  As lawyers, we have to look at the words “gross misdemeanor” in the Governor’s proclamation and pause because that is a specific criminal reference; it is not a civil ticket or infraction.  Gross misdemeanor refers to a higher degree (seriousness) of crime, higher than a simple misdemeanor.  Now, most of us doubt that there will be arrests, but changes with this pandemic are unpredictable and law enforcement could change how they enforce this law depending on how we all behave (in other words, “stay home”).  Nonetheless, the way I read it, the “stay at home” order is legally enforceable now and I would be careful.

While many law enforcement agencies are not currently planning to enforce the stay at home order, it is important to note that this could change moving forward as we learn more about the scope of the pandemic in our state.  We have to assume it very likely will be enforced and we do not want you to be that test case.  Our state and local governmental agencies may very well determine that additional actions are necessary to protect Washingtonians based on how much we abide by this lawful order.  Let’s now forget that our Governor’s order is enforceable under RCW 43.06.220(5) as a gross misdemeanor. This means that if our state and local government officials or law enforcement agents decide that an even more aggressive approach is necessary to contain COVID-19 and in turn, to minimize its impact in our state, law enforcement would have authority to make arrests for violating the Governor’s order.  The potential court penalties are serious and significant,  and could result in punishment up to a $5,000 fine or 364 days in prison according to RCW 9.92.020.  For now, it sounds as though many law enforcement agencies do not intend to take that step.

If you have any questions about this topic, Criminal Law, Family Law, Divorce, or other areas of the law and how they may be impacted by state and national orders related to COVID-19, contact the Lawyers at Van Siclen, Stocks and Firkins.

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