News & Politics

DC Shuts Down the Fish Market. What About My Constitutional Rights?

Three criminal-defense attorneys discuss the mayor's authority to enforce social distancing.

Mayor Muriel Bowser. Photograph by Matt McClain/Washington Post.
Coronavirus 2020

About Coronavirus 2020

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DC mayor Muriel Bowser used her emergency authority to close down the Municipal Fish Market in Southwest DC, in response to the large crowds of seafood customers who gathered at the Wharf over the weekend without practicing social distancing, according to NBC4. Just what powers do district authorities have to enforce social distancing during the Covid-19 pandemic? And what does that mean for constitutional rights? We asked a team of attorneys at Scrofano Law, a District-based criminal defense firm that represents clients throughout the Washington area.

What right does local law enforcement have to enforce the stay-at-home order in DC?

Joseph Scrofano, managing partner at Scrofano Law: [Mayor Bowser] has the power to declare a public-health emergency, which has happened here. And the council has enacted legislation effectuating her authority in that regard. So the long and short of it is it’s a bunch of complicated code provisions, but it does give the mayor the authority to act in this manner. Her role here is analogous to that of a governor.

Christopher Mutimer, partner at Scrofano Law: The order that is in place in DC right now essentially is saying that if you are an essential business, a restaurant or a place that has food or alcohol, you are able to remain open. However, they have to act in accordance with social distancing. They have to establish rules so that their employees and the people taking part in the services are able to conduct that while also essentially carrying out social distancing. The idea of no physical contact, stand six feet back from each other. And the code has basically given the power to the police to either arrest people for violating this or to fine or even arrest people related to a business [who are violating the order]. [At the fish market] that wasn’t being adhered to by the businesses there, so the police came in, shut it down, and my understanding is they are giving them an opportunity to fix this and then eventually reopen.

Do DC police have the authority to break up a party of, say, 20 people at someone’s residence?

Morgan Leigh, trial attorney at Scrofano Law: Yes, because the order made that a crime. And so now [authorities] can enforce a gathering in a private place as a criminal offense as a direct violation of the order.

Where are our constitutional rights in all this? 

Scrofano: The order doesn’t suspend the constitution. People still have the right to be innocent until proven guilty. People have rights to due process. People still have their 4th Amendment rights. They have all these rights, but those come into play if and when somebody is arrested and charged with a crime. So it’s not likely that the MPD and the mayor’s office are going to immediately run out and start arresting people for this. And they’ve made statements to the effect that they want people to voluntarily comply with this stuff so that they don’t get into a situation where they do have to arrest people. It’s also unclear if they are actually going to cuff people . . . and charge them with crimes or just issue citations, if the situation gets worse. But their message is the same message that most people are adhering to right now, which is that we need to stop the spread of this virus and we need engage in these social-distancing practices in order to slow the spread so we don’t have the situation escalate. But just because these laws are in effect doesn’t mean that people still don’t have constitutional rights. They’re just not going to come into play until if and when these cases end up in the court system.

So the constitutional rights that people continue to have aren’t going to be terribly helpful on the front end of their behavior during the pandemic. But they can be helpful on the back end if and when they get arrested, charged, and adjudicated?

Scrofano: I think that’s a fair way to put it, yes.

How are the cops going to be enforcing the stay-at-home order in DC?

Scrofano: This is what we’re telling people: You should follow the law, and that is the law right now. No one knows exactly how the police, the prosecutors, and the court system are all going to react or enforce this. But the point is if everyone follows the law right now, then it’s a moot question. It’s something we should all be doing anyway. So as criminal-defense lawyers, we are telling people, “Follow the law.” If you want to be in compliance with the law and be a law abiding citizen, you need to follow what’s in the mayor’s order at this point.

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Senior Writer

Luke Mullins is a senior writer at Washingtonian magazine focusing on the people and institutions that control the city’s levers of power. He has written about the Koch Brothers’ attempt to take over The Cato Institute, David Gregory’s ouster as moderator of NBC’s Meet the Press, the collapse of Washington’s Metro system, and the conflict that split apart the founders of Politico.

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