Did Jared Polis Just Make Shaking Hands a Crime Equal to Possessing Heroin?

(AP Photo/David Zalubowski)

Jared Polis, left, Democratic candidate for Colorado’s governorship, and Jason Crow, Democratic candidate for the U.S. House seat in District 6, applaud for canvassers before they set out to talk to voters Saturday, Nov. 3, 2018, in north Denver. (AP Photo/David Zalubowski)

Jared Polis, the Governor of Colorado issued a “Stay at Home” Executive Order effective 6:00am MDT today through 11:59pm on April 11th. This came after saying didn’t want to go this far, but after the Mayor of Denver, Michael Hancock issued his own “Shelter in Place” order and Metro Counties soon after issuing their own, he decided it was best to make a statewide order. It’s unclear what led him to that decision, since “social distancing” is relatively standard because most of the state is rural.

What’s interesting about the State Order is that it does not supersede regional or local orders, which can be more strict, but not less. A good example is the order for my County (Arapahoe) considers gun stores to be an “Essential Business” as does the state order, but the Denver order does not so those are being closed. To ensure you’re in full compliance you’ll need to read any and all orders that are applicable to you, including those in localities you may need to travel through.

These Executive Orders are being issued around the country, and are all fairly similar, but with some differences. They’re written by bureaucrats, not lawmakers, and it shows.

Words have meaning, especially in a legal context. My prior career was as an architectural draftsman. Drawings become legal documents once there is a contract between the owner and contractor. “Shall” has a very specific legal meaning, it is a requirement and never a suggestion. Here is a section near the end of the Executive Order:

F. Social Distancing Requirements. To reduce the risk of disease transmission, individuals shall maintain at least a six-foot distance from other individuals, wash hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, cover coughs or sneezes (into the sleeve or elbow, not hands), regularly clean high-touch surfaces, and not shake hands.

By using the word “shall”, everything listed here is a legal requirement and subject to penalties if violated.

This order will be enforced by any appropriate legal means. Local authorities are encouraged to determine the best course of action to encourage maximum compliance. Failure to comply with this order could result in penalties including a fine of up to one thousand (1,000) dollars and imprisonment in the county jail for up to one year, pursuant to 25-1-114, C.R.S

These penalties are equivalent to the violations of state law listed in George Brauchler’s tweet. Brauchler is the District Attorney for Arapahoe County. You may recognize his name. He was in charge of the case against the Aurora movie theater shooting, and also was a speaker at the last RedState Gathering a few years ago.

These orders are all haphazard, confusing, and extremely intrusive. Rob Natelson of the Independence Institute has a good article on Denver’s lock-down order probably unconstitutional. While this is about Denver’s order, it likely applies to most if not all of these “Stay at Home” or “Shelter in Place” orders.

There’s little accountability here with these orders, that are being created by Health Organizations and others who are in most cases appointed bureaucrats who are unaccountable to the voters. We are in uncharted waters here, but I believe it’s important to take the time to get it right, rather than these overlapping, confusing, knee-jerk reactions that in some cases are turning people who don’t wash their hands long enough into criminals.