What is a citizen who wants to follow the law to do when:
Wisconsin Governor Evers issued an executive order that to contain the spread of the deadly COVID 19 disease, people should stay at home and non-essential businesses should remain closed.
Washington County Sheriff Martin Schultis has said failure to follow this order "is a criminal violation. It's an arrestable violation." Kenosha County Sheriff Beth has also urged people to follow the order. Milwaukee police are allowed to issue citations to people failing to comply with Governor Tony Evers' "Safer at Home."
However, Racine County Sheriff Christopher Schmaling has refused to enforce Gov. Evers emergency measures and enforce rules and orders to protect the public during a health crisis. The medical profession, incidentally, disagrees with Sheriff Schmaling “I understand people wanting to verbalize how they feel and wanting to get back on their feet again, but we have to remember the greater good and the fact that we’re not going to achieve that if people are dying, and if we’re putting the health of our population at risk,” said family physician Dr. Shannon Daun. The doctors opinion is joined by at least 36 other medical professionals.
Which sheriff is right? Who knows? The problem is a citizen should not be forced to decide when her liberty hangs in the balance. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)
Arbitrary enforcement of the law pose two problems: when criminal codes fail to clearly define the offense, citizens may not understand what conduct is prohibited and police are likely to enforce the law in an arbitrary and discriminatory manner. Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). One of the problems with arbitrary enforcement is its capacity to further racial injustice in the criminal justice system. After all, police have a tendency to enforce the law against any group that may happen to “merit their displeasure.” Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972). This is the answer to those who say a vague law is a small price to pay for security of increased police stops. The officer's infringement on liberty may seem to a majority of a community a small price to pay precisely because it was imposed on a minority community and not on them. In Johnson v United States, 333 US 10, 13, 17 (1948) the Supreme Court stated that "[t]he point of the Fourth Amendment, which often is not grasped by zealous officers,"" is to protect "one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law." The basic policy or purpose behind the Fourth Amendment is to safeguard an individual’s privacy and protect individuals against arbitrary invasions by officials of the government. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). See also, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); United States v. Ortiz, 422 U.S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973).
“[T]he dividing line between what is lawful and unlawful cannot be left to conjecture.” Connally v. General Const. Co., 269 U.S. 385, 393 (1926). Law enforcement does not have the discretion to pursue their personal predilections on an ad hoc, subjective and discriminatory basis. Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Grayned v. Rockford, 408 U.S. 104, 108–09 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 168-71 (1972).
"[I]t will not do to hold an average man to the peril of an indictment for the unwise exercise of his . . . knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result." Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927). Critically, therefore, a citizen has a right to fair warning at a point in time prior to the state court litigation and contemporaneous with the act which the state seeks to punish for a violation of the law.
This means a person can only be punished fairly if he has notice before he acts. As matter of fairness, retroactivity is not favored in the law. Kaiser Aluminum & Chem. Corp., et al. v. Bonjorno, 494 U.S. 827, 837 (1990); Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988).