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How a Stay-at-Home Order Can Open the Door to an Arrest

Stepped up enforcement of Stay-at-Home and social distancing orders has people being arrested throughout the United States.

 It is very important to understand that these “Stay-at-Home” orders give police (and a myriad of other law enforcement officials) PROBABLE CAUSE to stop you. Once stopped by law enforcement, they can begin to investigate for other potential crimes. It’s the Stay-at-Home order that opens the door.

Increased enforcement is clearly beginning around the country. Ten days ago, there were no reports of arrests related to enforcement of Stay-at-Home orders. But take a look at a sampling of arrests directly related to enforcement of Stay-at-Home orders over the last 48 hours:

  • Hawaii – 5 arrested, 70 cited
  • Maryland – 2 arrested yesterday
  • Florida – 2 church pastors arrested, several individuals
  • New Jersey – Several wedding participants and churchgoers arrested
  • New York – dozens of citations, a few arrests
  • Kentucky – 4 being monitored with ankle bracelets
  • …at least 6 more states reporting 2 or more arrests

Austin’s mayor stated early on that making arrests related to Stay-at-Home orders would be the last resort. He reiterated that this week in response to the growing complaints of individuals violating his Order. It’s been reported, and we have firsthand knowledge, that the Austin Police were stopping individuals in the beginning days of the Stay-at-Home Order. One client was asked where he was going, what type of work he performed, and if he was aware of the mayor’s orders…this was 2 pm. He was then asked to perform field sobriety tests then arrested for “suspicion of DWI.” He doesn’t dispute that he had a beer at lunch, but he vehemently denies being drunk. Would have he been stopped if there wasn’t a Stay-at-Home order?

Pressure is mounting around the US for a nationwide Stay-at-Home order. Cases of coronavirus are rapidly increasing with new Texas counties reporting cases every day. The mayor seems to want to avoid the public perception of a police state, but it is clear that other cities and states have determined that it was time to step up enforcement and start making arrests.

Check out the cases of coronavirus in Austin-area counties:

  • Bastrop: 10
  • Bexar: 229
  • Caldwell: 1
  • Comal: 12
  • Guadalupe: 20
  • Hays: 42
  • Travis: 305
  • Williamson: 55

Numbers of cases are increasing rapidly, and law enforcement is being pressured to make examples to get people to take this seriously. Essential businesses are open, but many local places are closed down or only offering limited options so there are fewer people on the roads. Every person out there may be a larger target for police.

We recently published a post discussing harsher punishments during a declaration of emergency and now we are going to dive into what type of crimes have increased during this time.

Maintaining a Nuisance – committing to any public nuisance and not stopping or removing the cause of this problem… charged as a misdemeanor.

Weddings should be joyful occasions that end with loved ones breaking it down on the dancefloor. Unfortunately, newlyweds in New Jersey ended their wedding night being arrested for maintaining a nuisance. This certain couple chose not to heed the request given by the state to “restrict large gatherings” by continuing with their wedding during a declared emergency.

Misdemeanor Breach of Peace aka Disturbing the Peace: a criminal offense when an individual conducts unruly behavior, compromising someone’s right to quiet, peace, health, or safety.

A supposedly healthy doctor at the University of Connecticut Health Center proceeded to cough on colleagues while working. Acting with disregard for safety precautions and social distancing resulted in him being arrested for a breach of peace.

Terroristic Threat: a threat to commit a violent crime or cause an injury to another person or property.

 This certainly isn’t the only story starring a guilty party spreading germs to others. Examples showcasing this behavior keep rolling in. A man in Missouri took it a step further by videotaping himself licking products in a Walmart. After posting this video, he was arrested for making a terroristic threat in the second degree. If he is convicted of this crime, he faces a fine and up to four years in prison.

Another example of using coronavirus in a terroristic threat took place in a Pennsylvania grocery store. A woman informed employees that she was sick then intentionally coughed and spat on $35,000 worth of merchandise. After committing this act, she then tried to steal a 12-pack of beer. She was charged with felony counts of terroristic threats, threats to use a “biological agent” and faces misdemeanor counts of criminal attempt to commit retail theft and disorderly conduct.

Yes, you can be charged with making a terroristic or criminal threat if you claim that you have the coronavirus then deliberately try to infect others. There is no doubt that spreading the coronavirus would result in harm to someone else. The United States’ Attorney General’s office officially declared the coronavirus to be a “biological agent.” A biological agent may be bacteria, fungi, toxins, or viruses. Terroristic Threat cases can be charged as a Class B Misdemeanor, a Class A Misdemeanor, a State Jail Felony, or a Third-Degree Felony punishable by 180 days to no more than 10 years in jail and/or a fine from $2,000 to not more than $10,000.

The United States isn’t the only country that has been cracking down on individuals threatening others with the coronavirus.

Assaults on Emergency Workers: an act of the Parliament of the United Kingdom that relates to attacks against emergency workers (especially officers), punishable by a fine, up to 12 months in prison, or both.

In the UK, a woman suspected of driving under the influence was pulled over then exhaled in the officer’s face while claiming that she has coronavirus. She was arrested for being drunk and disorderly then arrested for assaulting an emergency worker after she behaved in that manner.

 We have only touched the tip of the iceberg when it comes to crimes being committed amidst this questionable time. In Turkmenistan, you might be arrested for even saying the word “coronavirus.”

In times of emergency, things drastically change…including criminal charges. Take the necessary steps to protect you and your family. Avoid putting yourself in a position to be arrested at all costs. If you or someone you know is arrested, contact us immediately to discuss the options. We believe that there’s always a legitimate argument to be made on your behalf and can almost always find a pathway to dismissal for cases relating to this.

Stay home. Be safe. Make smart decisions! If you must go out, remember to not invade anyone’s personal bubble.

COVID-19 in Travis County Jails?

As COVID-19 rapidly spreads throughout the country, jail inmates are extremely vulnerable to catching this virus. When a large group of individuals is sharing resources and crammed together in confined spaces, practicing social distancing is difficult if not impossible. The Travis County Sheriff has reported zero cases in the Travis County jail system…but is that the whole truth, and nothing but the truth?

In order to confirm cases, there must be testing.

How many tests have officials administered on inmates? One. Yet, they have roughly 30 inmates quarantined. Hmm…it’s awfully easy to report zero confirmed cases if you’ve administered ONLY one test to a healthy individual.

How many tests have those same officials administered to staff? 27. Yes, corrections officers, deputies, and civilian employees have been administered 27 COVID tests but only 1 on inmates. Jail officials want to assure you that inmates are given proper protection. According to the Travis County Sheriff Office, “Inmates have been provided bar soap in their cells and day rooms.”

Governor Abbott has waived all medical fees correlating to COVID-19 for all inmates in the Texas Department of Criminal Justice facilities. It has been reported that 100 test kits are being dispersed between Travis County Jail in downtown Austin and the Travis County Correctional Complex in Del Valle while jails in Hays and Williamson counties have 0 testing kits.

Putting this information together raises some alarming issues.

But what are jails reportedly doing to lessen the risk?

Right now, a variety of strategies are being implemented to reduce the spread of COVID-19 in our jails. Currently, a population of inmates are being quarantined in the Travis County Jail system. It has been reported that 20 inmates are being monitored for coronavirus. The Travis County sheriff’s office has introduced four levels of quarantine for the jails:

  1. An exposed person booked into a Travis County facility will be quarantined in a single cell. All activities will be separate from others and that person will receive meals in his or her cell.
  2. All inmates in a unit will be quarantined if just one person is sick. When they participate in activities, they will be separate from other inmates and they will receive meals in their cell.
  3. If there are multiple inmates in separate areas that are sick, the whole facility will be quarantined. During the incubation period, movement to and from the facility will be minimal.
  4. If someone is sick and it is caught after movement between facilities, all exposed inmates will be quarantined.

Other measures being taken during this time are: sanitizing The Central Booking facility, taking the temp of each person entering the Travis County correctional area, having jail staff wearing gloves, and conducting video visits for $2.50 per visit.

In Williamson county inmates, attorneys, and staff members are going through extensive medical screening. If newly arrested people are showing symptoms of the virus, they will be sent to the hospital and have to be cleared by a doctor before going housing in the jail.

Health care officials are at Hays County Jail 24 hours a day and sanitization stations have been increased. Officials are working to provide inmates with two free phone calls a week for 30 days.

In addition to implementing strategies to reduce the risk of COVID-19 among inmates currently incarcerated, other measures are being put in place to reduce the number of individuals that enter or remain in the jails.

One such measure is an Order signed by County Judge Elisabeth Earle on behalf of all the County Court Judges in Travis County Criminal Courts. The Order is entitled “STANDING ORDER TO TEMPORARILY SUSPEND THE EXECUTION OF WARRANTS FOR CERTAIN TRAVIS COUNTY CASES”. The Order remains in effect until May 8, 2020.

The Order, which begins with the words, “In the interest of community safety….”, states that “In order to alleviate the threat of COVID-19 in County Jails, the Travis County Court at Law Judges trying criminal cases have agreed to temporarily suspend active warrants for all misdemeanor offenses except for the following cases:”

  • Unlawful Restraint (Penal Code 20.02)
  • Violation of Protective Order (Penal Code 25.07)
  • Unlawful Carrying of Weapons (Penal Code 46.02)
  • Assault with Bodily Injury, Assault Family Violence, Assault Dating Violence, Indecent Assault and Terroristic Threat.

Consistent with the Order, the Travis County Sheriff’s office is directed to relate said Order to all law enforcement officers who request warrant confirmation so that officers are given notice to not bring low-level offenders to the jail during the pendency of the Order.

It is important to note that warrants are not being recalled. They are only being suspended. Which means come May 8, 2020, the Order will either be extended or lifted. If it’s lifted, anyone with an outstanding warrant will again be fair game for an arrest.

For those people who are arrested for felony warrants or new felony offenses, District Judge Brenda Kennedy executed an Order which became effective on March 23, 2020, relating to personal bonds.

The Order, entitled “STANDING ORDER FOR PERSONAL BONDS ON CERTAIN FELONY CASES IN THE TRAVIS COUNTY DISTRICT COURTS”. The Order states that all people charged in Travis County with either a State Jail or third-degree felony offense listed in the Order shall be eligible to post a personal bond (with some exceptions).

Those offenses eligible for a personal bond include the following offenses (if charged as a State Jail or 3rd-degree felony):

  1. Possession of a controlled substance
  2. Delivery of a controlled substance
  3. Possession of Marijuana
  4. Other state jail felony drug charges (ie. Obtaining a controlled substance by fraud);
  5. Credit card or debit card abuse
  6. Criminal mischief (unless fire or a deadly weapon used)
  7. False statement to obtain property or credit
  8. Forgery
  9. Fraudulent destruction, removal or concealment of writing
  10. Graffiti
  11. Interference with railroad property
  12. Prostitution
  13. Securing execution of a document by deception
  14. Tampering with a governmental record
  15. Tampering or attempting to tamper with physical evidence
  16. Theft and theft of services

It should be noted that some of the above charges can be charged at a higher level than a State Jail felony or third-degree felony depending on the particular circumstances of the case. For example, if the amount of a controlled substance makes a delivery of a controlled substance a second-degree felony, the individual arrested is not automatically eligible for a personal bond.

There are also numerous situations delineated in the Order which “constitute an exception to the automatic granting of a personal bond.”

Some examples include:

  1. A person who is arrested on a new offense AND is on any form of pre-trial release for other charges.
  2. The arrested person has a warrant for failure to appear or bond forfeiture.
  3. The person failed to appear or had a bond forfeiture in the last 12 months.
  4. The person had been motioned off in the same case.
  5. The person has a parole revocation warrant.
  6. The person has other holds (ie. ICE hold or out of county hold).
  7. The person has related misdemeanor charges in which a personal bond is not being granted.
  8. The crime has a hate crime enhancement.
  9. Pre-trial services or Travis County Booking staff observed behavior by the person that would indicate they are an imminent danger to themselves or others.
  10. The magistrate believes, based on credible evidence, that granting a personal bond would constitute an unreasonable threat to the safety or property of another person.

Accordingly, there are many exceptions to the “automatic” personal bond directive, and the magistrate judge still has discretion (if he/she believes, based on credible evidence, that a personal bond would create a threat to others) to deny a personal bond.

However, just because a person isn’t automatically granted a personal bond based on the Order discussed above, it does not mean that it is impossible for them to get a personal bond. Since a personal bond requires the authorization of a judge, hiring an attorney who has built strong relationships with judges and prosecutors will be someone’s best chance of getting a person out of jail.

No one wants to be stuck in jail even in the best of circumstances. Right now, being in jail seems to put one at even greater risk. We have been working around the clock to find avenues to get our clients released from jail as quickly as possible. If you have a loved one in jail, please reach out and we’ll help you understand the options. We will do everything we can to keep your family members safe and free.

Emergency Declarations How Penalties for Crimes Significantly Increase

How close are we to a lockdown? And if the lockdowns we’ve seen across the country persist, what happens when people reach their tipping point?

Disasters like hurricanes Katrina and Harvey showed us that many people come together during times of crisis, the threat of certain criminal offenses during stressful times is very real. Looting, riots, assaults, and even price gouging are not uncommon… even good people have gotten desperate during times of emergency. But stealing a few groceries or a shirt out of desperation in a time of emergency carries much harsher penalties than if it were to happen at any other time.

Across the country, many cities have been ordered to lockdown. California is currently under a statewide “shelter in place” order. We recently discussed Austin’s order restricting public gatherings due to the COVID 19 pandemic and the criminal consequences of violating such an order. Now it appears that Austin and Travis County authorities are inching closer and closer to a full-blown lockdown or “shelter in place” order.

Tensions are rising and will continue to rise as the restrictions increase and resources become more and more scarce. During this time, it is vitally important to understand the offenses related to times of emergency… if only so you can avoid any activity that may be misconstrued as such. It is also just as important to know and understand how the penalty for a common offense such as theft changes if it’s committed during a time of emergency.

Looting:

Looting in and of itself is not codified as a crime in Texas. Looting is more of a general term that includes offenses like theft, burglary, robbery, and criminal trespassing committed in times of an emergency. Depending on the offense and if there is a declaration of disaster made by the President of the United States or the Governor of Texas, a person who is charged with certain offenses that could be considered as looting face stiffer penalties.

To address looting offenses, the Texas Legislature enacted Section 12.50 of the Texas Penal Code (“TPC”). Said section establishes that if a person commits certain offenses during a declaration of disaster, the punishment for that offense is increased to the punishment prescribed for the next higher category, excluding offenses classified as felonies of the first degree. For example, if a person commits a Class B misdemeanor during a declaration of emergency and it is one of the offenses included in Section 12.50, then the punishment will be enhanced to a punishment comparable to a Class A misdemeanor. That means instead of facing up to 180 days in County Jail and/or a fine up to $2,000, that person will be facing up to a year in County Jail and/or a fine up to $4,000.

What are those looting offenses that could face a stiffer penalty under a declaration of emergency?

Those offenses are: Theft, Burglary, Burglary of a Vehicle, Assault, and Robbery.

In fact, in most scenarios, looting usually takes the form of theft, burglary, and burglary of a vehicle. This is because the most common form of offense is one that takes advantage of confusion and people leaving their property unattended due to an emergency. Therefore, looters might take items that are left in front of a storefront, break into a store or house to take articles that do not belong to them, or break into cars to steal valuables that are in plain sight. These three scenarios are why we will concentrate more on these certain offenses.

The offense of theft takes place when a person takes someone’s property without his or her consent or if the person who takes the property knowing that such property was stolen by another person.  See, Section 30.01 of the TPC.  Simply put, theft is taking valuables that belong to someone else without their consent. Depending on the amount or value of the property taken, you could be facing anywhere from a Class C misdemeanor to a first-degree felony. Punishments vastly differ between a misdemeanor and a felony. A Class C misdemeanor carries a fine up to $500 vs. a first-degree felony costing you 5 to 99 years in prison and/or a fine up to $10,000. In normal circumstances, if someone steals property valued at $30,000 to $150,000, that person could be prosecuted for a third-degree felony. A third-degree felony would land you in prison for 2 to 10 years. Yet, if that third-degree felony theft is committed during an emergency declaration (as defined in Section 12.50 of the TCP), the person would be facing a second-degree felony punishable by 2 to 20 years in prison.

Burglary is handled as more of a serious offense. A burglary occurs when someone enters a habitation or a building that isn’t open to the public without the consent of the owner, intending to commit a theft, assault, or felony.  See, Section 30.02 TPC.

Depending on the circumstances of the burglary a person could be facing:

  1. A State Jail Felony if he or she enters a building that’s not a habitation, which carries a punishment from 6 months to 2 years in State Jail
  2. A third-degree felony which carries a punishment of 2 to 10 years in prison, if it’s a commercial building used to house controlled substances or if the offender remains concealed inside the building to consume controlled substances
  3. A second-degree felony if it’s in a habitation, which carries a punishment from 2 to 20 years in prison
  4. A first-degree felony if the premises is a habitation and the offender enters to commit or attempt to commit a felony other than theft, which carries a punishment from 5 to 99 years in prison

For example, if someone enters a person’s house to steal a TV, which is a second-degree felony, if caught she or he will be facing 2 to 20 years in prison. But if that person is caught committing that same burglary in the middle of an emergency declaration, he or she will be facing 5 to 99 years in prison because it will be considered a first-degree felony.

Burglary of a vehicle occurs when a person breaks into or enters a vehicle without the consent of the owner, to commit theft. See, Section 31.04 of the TPC. This offense is considered a Class A misdemeanor unless the person has been previously convicted of two or more burglaries of a vehicle, then the offense would be considered a State Jail felony. If the vehicle broken into is owned and operated by a distributor of prescription drugs or if the person breaks into the vehicle to steal controlled substances; it is a third-degree felony. If the person has only one previous conviction, the offense will still be a Class A misdemeanor but the minimum confinement in County Jail will be 6 months. If that person commits such offenses in the middle of an emergency declaration, the punishment range will be increased to the punishment prescribed for the next higher class. For example, if a person has two previous convictions of burglary of a vehicle and he or she is caught burglarizing another vehicle during an emergency declaration, he or she will be facing a third-degree felony. In other words, instead of facing anywhere from 6 months to 2 years in State Jail, that person will be facing 2 to 10 years in prison.

The other two charges that tend to happen during emergencies are robbery and assault.

Robbery happens when a person commits theft but intentionally or recklessly causes bodily injury to another person. Intentionally threatening another person by causing fear of bodily injury or death while committing theft is also considered robbery.  See, Section 29.02 of the TPC.  Robbery is a second-degree felony, which is punishable by 2 to 20 years in prison. If the offense is committed during an emergency declaration, then the person could face the same punishment prescribed for a first-degree felony i.e. 5 to 99 years in prison.

Assault happens when:

  1. A person intentionally or recklessly causes bodily injury to another, including his or her spouse (at minimum considered a Class A misdemeanor)
  2. Intentionally threatens or causes offensive physical contact with another (at minimum a Class C misdemeanor)

It depends on the severity of the assault:

  1. Strangulation
  2. The person that’s assaulted: a public servant, security officer, emergency services personnel, a person whom you have a family relation with, or consensual intimate partner or ex intimate partner
  3. If you have been previously convicted of a family violence assault

A person who was arrested for such offenses could be facing anywhere from a Class C misdemeanor to a second-degree felony. For example, if a couple has a fight and one spouse hits the other causing pain or injury, the person that committed the assault could face up to 1 year in County Jail. The offense would be a Class A misdemeanor, but if the offense happens during a declaration of emergency, then the punishment could be enhanced from 6 months to 2 years in State Jail, i.e. the punishment prescribed for a State Jail felony.

Theft, burglary, burglary of a vehicle, assault, and robbery are offenses that everyone should avoid being arrested for but especially during a period when the Government has issued an emergency declaration since the person arrested could face stiffer penalties than the original penalties prescribed for such offense.

The other common offense that happens during the declaration of emergencies is, Price Gouging:

Price gouging is regulated by Section 17.46 of the Texas Deceptive Trade Practices—Consumer Protection Act (DTPCPA). The said section states that it is unlawful to take advantage during a disaster declaration by price gouging.

Definition:

Price Gouging – selling or leasing fuel, food, medicine, lodging, building materials, construction tools, or another necessity at an exorbitant or excessive price or demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, lodging, building materials, construction tools, or another necessity during the designated disaster period.

The problem with this definition of price gouging is that there is no clear definition in the DTPCPA of what an exorbitant or excessive price is. In addition, no case law defines those terms. So, in a claim for price gouging, a jury will have to decide whether the prices of the sued establishment were exorbitant or excessive since there is no clear definition by law.

Another element of price gouging is when it is prohibited. Section 17.4625 of the DTPCPA states that price gouging is prohibited during a designated disaster period, which is: (a) the date the disaster occurs (b) the date of the Governor’s proclamation or executive order declaring the disaster or (c) the declaration of the disaster by the President if any part of Texas is included within the federally declared disaster area. The designated disaster period ends on the thirtieth day after the disaster declaration expires or when the order is terminated by the authorities.

So, the consequences of price gouging are not criminal but civil. Section 17.47 of the DTPCPA establishes that any establishment that incurs in price gouging may be sued by the Attorney General’s consumer division and forced to stop such practices by a restraining order. The establishment may be required to reimburse the consumer who filed the claim to the Attorney General, and they may have to pay a civil penalty of up to $10,000 per violation or up to $250,000 if the consumer is elderly.  Finally, if the establishment knowingly or intentionally violated the DTPCPA, a consumer can sue the violators for damages, court costs, and reasonable attorneys’ fees.

In times of emergency, things drastically change…including criminal penalties. Take the necessary steps to protect you and your family. Avoid putting yourself in a position to be arrested at all costs. If you or a loved one fall victim of the times, reach out to us for advice and guidance.

Be informed. Stay safe. Remain protected.