Coronavirus Diary (28): The Fifth Amendment Under Quarantine

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:

Click to access EO-107.pdf

9 thoughts on “Coronavirus Diary (28): The Fifth Amendment Under Quarantine

  1. I’m puzzled about this line:

    “Individuals who have to travel pursuant to Paragraph 2 should only use public transportation only if they have no other feasible choice.”

    Why wouldn’t they rather you travel in the isolation of your own vehicle than in the not-so-much-isolation of a bus or train?

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    • That’s a very poorly written sentence on their part. I interpreted it as meaning that those who have to travel pursuant to paragraph 2 should use public transit only if they lacked any other mode of transportation such as a private vehicle. The double use of “only” is very confusing, but I didn’t take them to mean that there was a presumption in favor of public transit, but the reverse: public transit is particularly to be discouraged for just the reason you suggest, unless the person in question (a) has a good reason to travel, and (b) has no other means of conveyance.

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    • Dear Irfan Khawaja
      Thank you for contacting the New Jersey Office of the Attorney General.

      Your correspondence will be reviewed by Citizens Services and Relations. If necessary, it will be referred to the appropriate Division within the Department for a response.

      If you have not received a reply within 10 business days and wish to speak to a Citizens Services and Relations representative please call 609-984-5828.

      Please do not reply to this auto responder email.

      OAG Citizens Services

      Reference Number OAG-CS-7074
      Date-Time 04-03-2020 10:50 AM
      Full Name Irfan Khawaja

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  2. Despite its panache, this is not an accurate summary of Executive Order 107.

    https://www.nj.com/ocean/2020/04/no-means-no-during-coronavirus-crisis-nj-sheriff-posts-signs-to-get-peoples-attention.html

    So we’re now in a situation in which local law enforcement is making its own “laws,” at variance with the actual law. This kind of confusion is inevitable:

    https://www.nj.com/opinion/2020/04/can-we-go-for-walks-in-parks-or-not-murphy-and-local-leaders-need-to-get-on-the-same-path.html

    In fairness to local law enforcement, the issue is not simple or straightforward. There is a lot of non-compliance with the order, and a lot of egregious, casual, knowing, reckless, deliberate flouting of even the most reasonable requests to engage in social distancing. It has not sunk in, even at the epicenter of the crisis, that carelessness with social distancing is a case of playing an epidemiological version of Russian roulette with the lives of others. It’s at least as dangerous as drunk driving. Worth bearing in mind that one philosopher, Bonnie Steinbock, has plausibly argued that drunk driving is morally on par with homicide, whether or not it actually leads to death.

    https://www.jstor.org/stable/pdf/2265351.pdf?seq=1

    People in local government with whom I’ve discussed the matter (not officials, but lower down) tell me that the enforcement issues are daunting. It seems counter-intuitive to enforce blanket bans on outdoor activities, but there are so many different activities, and so many different ways of flouting the requirements of social distancing, and such high stakes involved, that law enforcement is essentially reverting to wholesale bans on large categories of outdoor activity.

    Though I find them extremely problematic, and think the state should be more transparent about constitutional issues, the lion’s share of the blame rests with the people of this state and their morally skewed priorities. I had an argument today with someone on Facebook who was criticizing the governor for his failure to fix potholes and balance the budget–during a pandemic. I pointed out that people were dying in a pandemic, so that perhaps the governor had other things on his mind than potholes and budget balancing. His classic response? “Whatever.”

    It’s unsurprising that when you have a populace of this moral caliber, you’ll be pushed by the logic of the situation into a police state. The police and the state are far less blameworthy than the people who have pushed us there.

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  3. New Jersey residents respond: the best way law enforcement can help us is to enforce the law, not make it up.

    https://www.nj.com/opinion/2020/04/nj-police-chiefs-say-the-best-way-to-help-them-is-to-stay-home.html

    That’s not what Executive Order 107 says. If the governor feels the need to change the wording of the Executive Order, he should change it. But until then, it has to be followed (and enforced) as written.

    It’s well known that the police are not the final authority on the content of the criminal law or matters of criminal procedure. I understand their predicament, but they can’t simply wish the law away and make it take whatever form they wish. They have never cut us that kind of slack. We can’t be expected to cut it back, pandemic or no. Either enforce the order as written, re-write it, or admit that the rule of law has broken down.

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