• Attorney Joseph Soler

Will We Be Arrested for Coughing Now?

There have been several reports recently in the media about people who have been arrested and charged with crimes for coughing on, or near, others during the COVID-19 public health crisis.


One of the more bizarre reports involved Dr. Cory Edgar, an orthopedic surgeon at UConn Health, who was arrested and charged with a misdemeanor breach of peace for allegedly “coughing on and hugging nurses, causing them a substantial amount of alarm,” the Hartford Courant reported. Another report out of Chicago involved a man who allegedly coughed at the front desk staff at a Chicago police station. He was arrested and charged with a misdemeanor count of reckless conduct.


What crimes can someone who coughs on another be charged with?


If a person has a communicable disease spread via coughing and then intentionally coughs on another person, they may possibly be in violation, depending on the state that they live in, of laws meant to target terroristic threats, laws meant to target disorderly conduct, or perhaps, if the conduct involves actual physical contact, a criminal battery.


Several states make it a crime to threaten to cause bodily harm or cause bodily injury to another person. These states typically refer to this conduct as the crime of “making a terroristic threat.” One can be charged with making a terroristic threat if they tell another that they are infected with coronavirus and then maliciously cough on them.


Here in Florida, the crime of disorderly conduct (which is typically charged when someone is drunk in public and causing a disturbance) is committed when one acts to outrage the sense of public decency, affect the peace and quiet of persons, or engage in conduct that constitutes a breach of the peace. It is possible that someone who has coronavirus who purposefully coughs on another in public could be charged with disorderly conduct.


Criminal battery charges involve an “unwanted touching” of another person. There is typically no contact or “touch” involved with a cough (unless it can be argued that contact with microscopic, aerosolized particles is a touch). If in fact the cough does result in physical contact (for instance a person is hit with spittle), and it can be argued that the person intended the contact, then a criminal battery charge may be applicable.


What may not, or should not, rise to the level of criminal conduct


Some of the reports, like the report of the Connecticut Surgeon who was arrested or the Utah Jazz NBA player Rudy Gobert, who touched the reporter’s microphones at a press conference, appeared to be more joking behavior rather than malicious conduct.


Joking around or mocking behavior usually does not rise to the level of making a terroristic threat, as there is typically a mens rea (or knowledge) requirement in the law that requires the threat to be made for the purpose of causing fear in the mind of the victim. Joking conduct also should not rise to the level of criminal disorderly conduct unless it is substantial to the point that it causes a breach of peace.


Should we criminalize innocent behavior?


What about if someone coughs inadvertently? What if they didn’t mean to cough on another person? Should we criminalize innocent behavior? Should coughing too close to another person be considered a crime? What about simply walking too close to another person?


Singapore has introduced strict new laws meant to curb the spread of COVID-19. Specifically, Singapore has made it a crime punishable by up-to 6 months in jail to come within one meter (slightly over three feet) of another person. Will laws meant to target innocent behavior like coming too close to another person become a reality in the United States?


Sufficiency of the evidence


Police need probable cause that a crime was committed in order to legally arrest a person. In order to convict a person, a prosecutor needs evidence sufficient so as the case can be proven beyond a reasonable doubt. What evidence will the police require in order to make an arrest?


Will the word of an annoyed and irritable Walmart shopper in panic-mode, claiming they were coughed on be enough probable cause for an arrest? What about store surveillance video, or cell phone video, that appears to show a person coughing close to another person? Unlike a criminal battery, where there is often evidence of redness or bruising after a person is struck, what physical evidence will police have that someone was coughed on?


Will this establish a precedent?


Often bad law and bad legal precedent is established during times of panic. Now that some states have established a precedent for arresting people for coughing, will they extend the same reasoning during the next flu season or during a particularly bad cold season? Will people who lack the common courtesy of covering their mouths while sneezing now be subject to arrest?


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