S.C. attorney general says local governments cannot issue stay-at-home orders

Updated: Mar. 27, 2020 at 11:25 PM EDT
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COLUMBIA, S.C. (WIS) - While Columbia City Council passed a stay-at-home ordinance Thursday, the state attorney general said they don’t have the power to do that.

In an opinion issued Friday, Attorney General Alan Wilson said only the governor can use such emergency powers to issue a shelter-in-place anywhere in the state.

The City of Charleston has also enacted a stay-at-home ordinance that is already in effect.

Gov. Henry McMaster said again Thursday he does not believe a statewide shelter-in-place order is necessary at this time to combat the spread of the coronavirus.

Wilson cited a 1980 opinion regarding evacuation orders to back up his point that the governor is the only person in the state who can use emergency powers.

The attorney general said local governments could face legal action if they enact and enforce such stay-at-home orders.

Wilson said in his opinion, “counties and municipalities should be aware that any unauthorized exercise of such emergency powers could subject these political subdivisions to liability at the behest of a private citizen with requisite legal standing.”

The order is still set to begin Sunday as planned, but the State Attorney General said he was simply providing his legal opinion about who has the power to issue this type of order but also warning of possible legal consequences.

“These could be challenged at a later date by a private citizen that has received a harm by it or been damaged by it,” said State Attorney General Alan Wilson. “Someone being unlawfully arrested or a business that is shut down or closed permanently because of this ordinance being in effect.”

Columbia Mayor Steve Benjamin issued the following statement, standing by the city council’s decision:

“The actions taken by the City are entirely within our authority. Our actions do not contradict the Governor’s actions because on this immediate issue before us—proven one of the most important and effective to stopping the spread of this virus, he has not acted.”

But if the Attorney General is correct, the question becomes, if local governments can not issue these orders, how can they be enforced?

According to the Columbia Police Department, it is their job to enforce city ordinances and they will continue to uphold the stay-at-home order with compassion, fairness, and common sense.

However, AG Wilson said that could eventually pose a problem.

“That’s a decision they are going to have to make, but I’m telling you right now. If you arrest somebody for not following a local ordinance and you had no authority to pass that from the beginning, you’re going to be sued at some point,” added Wilson.

The AG said his office has been flooded with calls about these ordinances and he wanted to provide some legal clarity to try to help with confusion around the state.

“If you have an inconsistent patchwork of laws in South Carolina and some of them are conflicting with what’s coming out of the governor’s office, than that is creating more confusion and more chaos,” said Wilson. “There’s already enough confusion, there’s already enough anxiety, and enough fear out there with what’s going on at the worldwide level with the COVID-19 pandemic. I’m just trying to provide legal guidance to everybody.”

Officials with the Columbia Police Department said they do not plan to arrest their way through this ordinance adding that would defeat the purpose of allowing for social distancing. Still, officers plan to enforce the ordinance as best they can.

Read the full opinion from AG Wilson:

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