How did South Carolina’s AG say police should enforce emergency gathering law during COVID-19?

Plain-English summary

In March 2020, South Carolina's Attorney General advised the state law enforcement chief how Section 16-7-10 should be applied under Executive Order 2020-13. The office said gatherings involving established fundamental constitutional protections should be authorized, even if prudence called for discouraging them. It listed religious meetings, weddings or funerals, family protections and political assembly as examples, while saying the list was not exhaustive.

The AG stressed that applying the criminal statute depended on the facts of each case. It reported the governor's explanation that his order was aimed at boisterous crowds and unruly behavior and was not intended to infringe fundamental rights. The opinion concluded that enforcement of the emergency statute must yield where it conflicted with fundamental constitutional liberties.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG say police could ban a religious gathering under that emergency order?
A: The opinion advised that gatherings protected by fundamental constitutional rights should be authorized, although officials could discourage them. It named a church or other religious meeting as an example.

Q: Did the opinion give blanket immunity to every gathering?
A: No. It said each application of Section 16-7-10 depended on the facts and circumstances, and its examples of protected gatherings were neither exhaustive nor a finding about any specific event.

Q: What did the AG say was the governor's stated purpose for the order?
A: The letter reported that the governor intended the restriction to address boisterous crowds and unruly behavior, not to infringe fundamental constitutional rights.

Background and statutory framework

Executive Order 2020-13 directed consultation with the Attorney General about enforcing Section 16-7-10 during the COVID-19 emergency. The response addressed the criminal statute's public-order purpose and the constitutional limits on its application. It did not resolve a particular prosecution.

Citations and references

• Section 16-7-10: the emergency criminal provision whose enforcement prompted the request.

Official title

On the enforcement of Section 16-7-10 in light of Executive Order 2020-13.

Requester

Chief Mark A. Keel, South Carolina Law Enforcement Division.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-the-enforcement-of-section-16-7-10-in-light-of-executive-order-2020-13/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/03/2020-03-24-Letter-to-Chief-Keel-re-Section-16-7-10-02243232xD2C78-1.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

March 24, 2020

Chief Mark A. Keel

South Carolina Law Enforcement Division
PO Box 21398

Columbia, SC 29221-1398

Dear Chief Keel:

Pursuant to the direction of Governor Henry McMaster in Executive Order 2020-13, issued March 23, 2020, you have consulted our Office in an effort to provide guidance to law enforcement regarding the interpretation, application, and enforcement of Section 16-7-10 of the South Carolina Code of Laws. Of course any application of this criminal statute necessarily will depend on the facts and circumstances of an individual case. In general, we advise the following.

Section 16-7-10 should be applied such that gatherings involving established, fundamental constitutional protections should be authorized, even if prudence dictates they be discouraged. See City of Maquoketa v. Russell, 484 N.W.2d 179 (Iowa 1992). We have previously opined that when a constitutional right is “fundamental in nature, the courts then invoke a so-called strict scrutiny test—thereby requiring that in order to survive constitutional scrutiny, the statute or ordinance be narrowly drawn to serve compelling governmental interests.” Op. S.C. Att'y Gen., 1994 WL 136189 (March 3, 1994) (citing Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600, 615 (1969)).

Some examples of these fundamental constitutional protections are the freedom of religion inherent in a church or other religious meeting, or a wedding or funeral; the constitutional protections of the family unit; and the freedom of assembly for political purposes. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Carey v. Population Services, Intern., 431 U.S. 678 (1977); Hague v. Committee v. Indus. Organization, 307 U.S. 496 (1939). These enumerated examples are not an exhaustive or exclusive list.

Moreover, the Governor has informed the Attorney General that it was never the intent of his executive order to deal with anything other than boisterous crowds and unruly behavior. He has stated in no uncertain terms that the restriction on activities was not intended, and should never be construed, to infringe upon any fundamental constitutional rights. See also U.S. v. Robel, 389 U.S. 258 (1967).

RREMBERT C. DENNIS BUILDING» POST OFFICE BOX 11549» COLUMBIA, SC 29211-1549 © TELEPHONE 803-734-3970 © FACSIMILE 803-253-6283

Chief Mark A. Keel
Page 2
March 24, 2020

Section 16-7-10 is intended in part to maintain good order during extraordinary times of emergency. The unique nature of a pandemic is such that SCDHEC and epidemiologist are strongly urging against even the most orderly large gatherings. However, the enforcement of this criminal statute must yield to established constitutional limitations.

The statute was intended to keep the peace not keep citizens from exercising their constitutional rights. It should be read and applied by officers with that in mind. In short: in case of conflict between the statute and fundamental constitutional liberties, those liberties must prevail.

Sincerely,

Robert D. Cook g
Solicitor General