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Despite the dire situation that the world is experiencing
because of the COVID-19 pandemic,
some people just have to be jerks,
like this guy, Larz, a California, quote, "influencer"
who thought it would be cute to lick a toilet
and dub it the coronavirus challenge.
- Coronavirus challenge!
- He later ended up in the hospital with coronavirus.
Larz inspired people like Ava Louise
to lick a toilet seat herself,
and this other guy, Cody Lee Pfister,
filmed himself licking a row of deodorant at Walmart.
- Who's scared of coronavirus?
Don't touch your mouth.
- Pfister was arrested,
or this group of Cincinnati residents who flouted
the governor's social distancing orders
by throwing a coronavirus party.
The legal term for these people is idiots,
and what do all of these idiots have in common,
besides being nominees for the 2020 Darwin Awards?
They may have done things that could result
in lawsuits or even jail time.
(dramatic music)
Hey legal eagles, it's time to think like a lawyer
because today we're gonna talk about
a bunch of different cases where people
intentionally or knowingly expose others
to the novel coronavirus.
What happens when someone pulls a prank
and coughs on the salad bar?
Is it a criminal offense to give someone COVID-19?
And what happens if you intentionally try to infect others?
I'm here to answer all of these questions
and scare you away from ever eating at a restaurant again.
Now, let's start with the basics of assault and battery.
Most causes of action for spreading COVID-19
would probably be on the state level
starting with assault and battery,
which are both tort claims and criminal offenses.
The same conduct can lead to a personal injury lawsuit
and a criminal prosecution, depending on who initiates
the case and the severity of the actions
that we're talking about here.
Battery is generally defined as a harmful or offensive
contact with another person's body.
Now, the victim's body under this definition
is usually extended to include things
that the victim is attached to.
This is called the extended personality rule.
This means grabbing someone's shirt
or yanking their necklace or spitting in their cup
can also be battery, even if the perpetrator
never actually touches the victim's body.
Now, purposefully spreading a disease to another person
generally fits within the definition
of a harmful or offensive touching.
It's certainly not something that people want
in their everyday lives.
For example, in Pennsylvania a malicious man
in a grocery store was arrested after deliberately coughing
in the face of an older gentleman wearing a face mask
and gloves because of the potential fatal risk of COVID-19.
This jerk, or idiot, as we say in the legal profession,
allegedly coughed and mocked the man
and told him that he was now infected with the virus.
This guy was also charged with making terroristic threats
as well as battery, and we'll talk about
the terrorism charges in just a second.
Now, similarly, assault is usually lumped in with battery,
but it's technically a separate offense.
It's usually the intentional act that causes another person
to fear that they're about to suffer physical harm.
If a person is placed in imminent fear of bodily harm,
this is punishable as a crime or again as a tort as well.
Imagine you're playing pool with someone in a bar
and that person gets angry and swings their pool cue at you.
In most places in America, if they make contact,
it's battery, but if they swing and miss, that is assault,
and you guessed it, this can apply
to spreading COVID-19 as well.
For example, in Maryland a man named William Eddings
was charged with second degree assault
and four counts of exposure by an individual
who has an infectious disease in violation of state law
after he got in an altercation
with one of his father's tenants,
screaming and chasing the man into his vehicle,
where Eddings spit on his arm twice.
When police arrived, Eddings said he had tested positive
for COVID-19 and then spat at the officers.
Again, not a smart guy here.
Now, under Maryland law, assault is defined as an attempt
to make an offensive contact with another
or intentionally frightening another person.
Eddings' saliva actually hit the victim's arm,
which is definitely a battery,
and although his spit didn't make contact with the officers,
spitting in their direction is a clear attempt
to scare them and that was enough for the assault charge.
And in this generation where we're worried about
droplets of water in the air,
it could be argued that even if the main spit,
and it's ridiculous that I have to go down
to this fact situation, but even if the main wad
didn't make contact, even the droplets in the air
might qualify as a battery itself.
And since assault and battery are also torts,
it's conceivable that someone like Eddings could be sued
for assault and battery in state court
and pay civil damages to the victims here.
And Maryland, like many other states,
have specific statutes that actually deal
with the intentional spreading of infectious diseases,
and that's one of the things that this guy was charged with.
But I mentioned terroristic threats,
and these days most states have a criminal offense
called terroristic threats,
and this offense is probably not the thing
you're thinking of when you hear the word terrorist.
It has nothing to do with foreign governments
or international elements.
This is generally a verbal or written threat
to commit an act meant to terrorize another party.
When you do that, you can get arrested, not surprisingly.
The threat can be paired with an actual crime,
like battery or murder, but it can also be a general threat
meant to terrorize.
So for example, if you called up your high school
and made a bomb threat, for instance,
if there was no specific statute dealing with bomb threats,
you'd probably be charged with making terroristic threats,
even if no one was in actual physical apprehension
of physical contact, which would be required for assault.
Unfortunately, there are many examples of people
doing really stupid and dangerous things
during this pandemic that probably give rise
to a crime of terroristic threats.
For example, a New Jersey man was arrested for coughing
on a Wegmans employee, and telling the woman that
he had the coronavirus.
The employee said that she was concerned that
he was standing too close to the salad bar,
and she asked him to move.
He then coughed on her and laughed,
and claimed that he had the virus.
He was charged with making a terroristic threat.
He was also charged with obstruction and harassment.
A Texas teenager posted several videos claiming that
she had the COVID-19 infection,
and wanted to kill people with it.
- If you wanna get the coronavirus,
woo that, call me.
And I will meet you up, and (coughs) all up (coughs)
all over you.
- Obviously, the police were concerned,
and they tracked her down.
Now, this is not without controversy.
The terrorism laws were intended to apply
to terroristic acts to a group of people,
and generally were not meant to apply
to a single individual person talking to another person.
But generally, true threats are not considered free speech
and not protected by the First Amendment,
though it's still controversial as to whether
these statements constitute a true threat or not,
so it sort of begs the question,
which I'm actually using the correct way this time.
But there is precedent for using state terroristic threats
to prosecute people for exposing others
to infectious diseases.
Prosecutors charged individuals with making
terroristic threats for exposing their sexual partners
to HIV in the 1990s which led to new statutes
specifically directed towards infectious diseases.
According to the Center for HIV Law and Policy,
roughly 2/3 of states have laws that make it a crime
to knowingly expose others to HIV,
among other infectious diseases.
For example, in April 2012, a 19-year-old man
who had HIV was charged with assault
and battery with a deadly weapon, among other things,
for failing to disclose his HIV status
to multiple sexual partners.
At least one of his partners later tested positive for HIV.
At least 12 states have added hepatitis C to the list
of diseases that could cause criminal prosecution
if the infected person knowingly exposes other people,
though public health advocates believe legislators
should be cautious about passing more laws
criminalizing the spread of disease,
because it can also stigmatize testing and treatment.
There are probably fewer issues with adding COVID-19
to the list of diseases that are covered
by these disclosure laws, since COVID-19 is easier
to transmit than hepatitis C or HIV,
and COVID-19 arguably gives prosecutors a better argument
for aggressively charging people who threaten to expose
others to the virus because of its ease of communication.
Now, the state of mind here is always important.
Almost all criminal laws have a mental state requirement
or mens rea, or guilty mind, component.
You can't be criminally prosecuted
just because you accidentally infected someone.
You have to intentionally or knowingly infect them
in situations that give rise to liability.
So don't think that anyone who happens
to communicate the disease is going
to be prosecuted under these laws.
But where there is really egregious conduct,
the prosecutors are probably gonna bring out the big guns.
- Time to bring out the big guns.
- And one of the most egregious examples
of intentionally exposing people to COVID-19
happened when Margaret Cirko went to a supermarket
and started coughing and spitting on the food.
Cirko claimed to have the coronavirus,
and coughed or spit on about $35,000 worth of food,
which had to be thrown out.
Authorities don't yet know if Cirko really had COVID-19,
but her actions caused serious losses to the store,
in addition to potentially exposing employees
and shoppers to the virus.
She was arrested and charged with two felony counts
of terroristic threats, one felony count of threats
to use a biological agent, and one felony count
of criminal mischief.
It's worth noting that it probably doesn't matter
if she actually has the virus or not.
For example, if you fire an unloaded gun at someone,
but you think that gun is loaded,
that still generally qualifies as attempted murder.
Now, Cirko being cited for threatening to spread
a biological agent brings us to whether
federal anti-terrorism laws could apply to COVID-19.
And on March 24th, Deputy Attorney General Jeffrey Rosen
sent U.S. attorneys and federal law enforcement agencies
a memo recommending that people who purposefully expose
or infect others with COVID-19 should be prosecuted
under federal terrorism statutes.
Now, there are several federal statutes
that the DOJ is considering.
The first is 18 U.S.C. 2332 which makes it
a federal offense to threaten or attempt to use
a weapon of mass destruction against persons
within the United States, and a weapon of mass destruction
is any weapon involving a biological agent,
toxin, or a vector, and biological agents are defined
to include viruses capable of causing death,
disease, or other biological malfunction in a human.
Now, a defense attorney would probably argue that
the statute was intended to apply
to artificially created vectors,
and not the naturally occurring
cold viruses or coronaviruses.
But the statute is written broadly enough to apply,
and despite rumor-mongering to the contrary,
there is no evidence that COVID-19 was engineered
by China as a biological weapon,
but the statute probably still brings it under its aegis.
Now, Rosen did not mention 18 U.S.C. 1365,
which penalizes tampering with consumer products,
even though it arguably applies to people like Cirko
who go around tampering with consumer products.
However, this law was used to arrest the mastermind
of the biggest bioterrorism attack in U.S. history,
and could be useful in stopping people
from spreading COVID-19.
Now, this example is so crazy it probably bears mentioning.
In the early 1980s, Bhagwan Rajneesh, also known as Osho,
amassed a number of devoted religious followers in India,
moved to the United States, took over an Oregon town,
fought with a co-founder of Nike,
acquired the largest collection of Rolls-Royces
in the world, violated immigration laws,
sedated thousands of homeless people,
tried to assassinate public officials,
and infected 751 people with salmonella
by contaminating eight restaurant salad bars.
The salad bar poisoning was a plan to stop people
from voting in a local election,
and if you've ever seen the Netflix documentary
"Wild, Wild Country" you've no doubt witnessed
Osho's right-hand man, Ma Anand Sheela,
memorably justifying the cult's actions.
- What can I say, tough titties.
- The Rajneeshees stole the salmonella cultures
from a Seattle lab, and Sheela pleaded guilty to conspiring
to tamper with consumer products and wiretapping.
Federal law makes it a crime to tamper with food
by exposing it to toxic chemicals or bacteria or viruses,
as the Rajneeshees did in Oregon, not surprisingly,
and also there are a bunch of state laws that prohibit
tampering with food products as well.
Remember this girl who looked a tub of ice cream,
and then put it back?
Well, she was arrested with tampering with food products
under a Texas tampering law,
and this kind of tampering has been
on the federal radar since February,
when an FBI briefing disclosed that white supremacists
have discussed using COVID-19 as a bioweapon,
including leaving saliva on door handles,
spitting on elevator buttons,
and using some of the same tactics as the Rajneeshees.
Now, that's a summary of the sort of criminal acts
that you might be charged with if you go around
intentionally infecting other people with COVID-19,
but what about just walking around,
or defying a lockdown order?
Well, I have a video all about
the government's legal authority to isolate
and quarantine people during a health crisis,
and in that video I talked about the history
of quarantine laws, Typhoid Mary, and the Spanish flu,
and the other stuff that happens during a pandemic,
and my conclusion was that lawsuits challenging
COVID-19 quarantines and restrictions on public gatherings
would probably fail because the police power of the states
are really at their zenith in situations like this.
But what about the liability of people who break
those quarantine and isolation orders?
Well, we've now witnessed state authorities using
their broad powers to issue orders requiring
businesses to close, people to remain at home,
and sick patients to be isolated and quarantined.
But the unique nature of this crisis has governors,
mayors, and police making ad hoc decisions
about the quarantine, and apart from the criminal liability
and potential jail time of defying these orders,
you might also be on the hook for damages
caused by just people getting sick from your actions,
and I think there are a couple avenues here.
One is what's called negligence per se.
Negligence per se is the law's way of imposing
strict liability on specific circumstances.
Strict liability is automatic liability.
So this means that the defendant is liable,
regardless of the defendant's intent
or what they knew or what they should have known.
If strict liability applies, the defendant has to pay
for his or her conduct if it caused the plaintiff's injuries
and one of the ways to trigger negligence per se is
when you break the law.
If you break the law or there is a statute that says
you cannot conduct these particular actions
and you go and do that, the law sometimes says that
you have to pay for the damage that you cause,
regardless of whether you acted negligently or not.
So for example, in Connecticut a woman was injured
after a dog that was subject to a 14 day quarantine escaped.
The woman sued the local dog warden,
and on appeal the court of appeals held that
the dog warden could be sued and immunity did not apply
because the dog catcher violated the quarantine law,
and in a somewhat analogous situation
a Minnesota couple sued a physician they hired to take care
of their daughter who had scarlet fever.
The physician allowed the parents to visit her
and take her home when her disease
was at its most contagious, advising them that
she wasn't really contagious.
The Minnesota Supreme Court found that the doctor
could be sued for negligence.
So this is a fluid situation.
You can probably expect many negligence lawsuits
against healthcare facilities, cruise ships,
and other businesses if the plaintiff can prove that
any of these entities failed to take precautions
or violated some law that allowed them to be infected,
and the same may be true for employees
in high-risk professions or locations
who are recklessly exposed the virus by their employers.
And if there's one takeaway here,
and I probably shouldn't have to tell you this,
but I'm going to tell it to you anyway,
you shouldn't lick toilet seats.
You shouldn't lick food products.
And you shouldn't intentionally spread COVID-19,
or you might face legal liability, dummies.
And getting infected with a virus is terrible,
whether we're talking about a person or a computer,
because surfing the web unprotected is almost as dumb,
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So do you agree with my analysis?
Leave your objections in the comments,
and check out this playlist over here
with all of my other analysis about
the legal issues raised by COVID-19,
and just click on this playlist,
and I'll see you in court.