The Attorney General (of New Jersey) needs to explain whether the Fourth and Fifth Amendments have literally been suspended in Essex County, where enforcement actions have been stepped up considerably (especially in Newark, Irvington, Orange, and East Orange).
In order to be stopped by the police, there must be reasonable suspicion of the commission of an infraction within the jurisdiction of the officer doing the stop. The mere presence of a person in public cannot constitute reasonable suspicion of any infraction, including Executive Order 107.* So we need to know: do Fourth Amendment strictures still apply, or have they been discarded for the duration of the order?
Suppose now that you’re stopped. If so, you will likely be asked by the officer about your destination and/or purpose. Ordinarily, the Fifth Amendment implies that you need not answer. Further, Executive Order 107 does not compel self-incriminatory testimony in a police interrogation. But in the case at hand, self-incrimination is virtually the only evidential basis for conviction in any case of enforcement of the order. Will failure to incriminate oneself become a basis for conviction? If so, the Fifth Amendment has been suspended.
I don’t mean to criticize, and don’t mean to prescribe. This is a time of mortal crisis, and it’s not the place of a mere philosopher to engage in backseat driving. But we have a right to know the rules of the game. If not, there are no rules.
Clearly the Second Amendment remains in operation, since gun sales have been deemed essential under Order 107. But if South Jersey Republicans have the right to demand the exercise of the Second Amendment–and get it, without much ado–the rest of us have the right to know our rights under the Fourth and Fifth.
I live in Hunterdon, but grew up and have family in Essex. Executive Order 107 gives me the right to see them, if necessary. The question is whether I can be compelled to have a conversation about it at a Terry stop.
*Executive Order 107: