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Discretion in policing: Mandatory shelter-in-place orders

The war against COVID-19 calls for a new approach to achieving compliance where logic and words may trump a pen and citation book

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Police tape closes access to a beach Tuesday, March 24, 2020, in San Diego. San Diego tightened restrictions on beach access Monday, as the city reacts to the coronavirus pandemic.

AP Photo/Gregory Bull

You are called to a noise complaint and arrive to find 20 family members gathered in a backyard to celebrate Grandpa Ben’s 75th birthday. Or maybe you find 40 people attending a patio wedding reception. Or you drive your patrol unit by the park and see a dozen teens playing basketball.

These are the most routine of all calls, or in some cases not even noteworthy. But in the days of COVID-19 shelter-in-place-orders, they may constitute unlawful gatherings and could violate state or local law.

I can hear the arguments now: “What gives you the right to tell me I have to stay home? What are you gonna do about it if I don’t?” These are real situations that anyone on patrol could encounter, and the time to plan your response is not when confronted with pushback from an otherwise law-abiding citizen.

The Reality of a Lockdown, Shelter-in-Place or Quarantine Order

You may be thinking that none of this applies to you or your agency. Think again. There are now COVID-19 cases in all 50 states. If it hasn’t come to your community yet, stand by. Even as I began writing this, the county where my daughter attends a large university is imposing a mandatory shelter-in-place order to slow the spread of COVID-19. Violations of the order are misdemeanor crimes. Picture it: Final exams are over, and spring break begins. Travel is restricted, even within the county, to essential trips like buying groceries, obtaining medical care, or working an essential services job. Bars, restaurants, stores, gyms and theatres are shuttered, and large gatherings are not permitted.

We Americans are not accustomed to having our movements restricted, even temporarily. Smart people will stay home so as not to spread COVID-19 or to become infected themselves. But not everyone will take the restrictions seriously; teens and young adults are especially likely to find curtailed social interactions particularly difficult.

How Will Law Enforcement React?

CNN reported that police in Italy have cited nearly 200,000 people for violating their lockdown, and according to CNN, the military has been called in to help enforce it. Americans are also unlikely to be as compliant with a lockdown as we should. This is where law enforcement comes in.

The level of enforcement will likely be dictated by agency or county/city leadership, hopefully with input from community leaders and influencers. For the good of public health, we need consensus, not an “us versus them” situation.

Government entities could choose to play hardball. Patrol officers and deputies could certainly write citations all day long, and all night. Enforcement opportunities will likely be rampant – like shooting fish in a barrel. A community may be outraged by the level of enforcement. They may think it too lenient, allowing the coronavirus to spread; they may also think the enforcement draconian – too harsh. It is important to find a balance, for law enforcement professionals to use discretion wisely.

The purpose of a lock-down, a quarantine, a shelter-in-place order, whatever it may be called, is to save lives. COVID-19 kills. Most of us have an older family member or friends who are at high risk of serious illness or death if they contract COVID-19; people with unrelated health issues are at risk, too. Even young people may become seriously ill. If the purpose of the law and the lockdown is to save lives, isn’t it in everyone’s best interests to go along with the program? How might we encourage that?

More Talk, Less Action?

It might be time to fall back on those community-oriented policing skills. Connect with people (from a safe distance, of course) and spread the word. Be persuasive and knowledgeable. The front lines of this particular war may call for a more creative approach.

When you come upon those teens playing basketball at the park, or the family members gathered for Grandpa’s 75th birthday party or the backyard wedding reception with a DJ, what will your approach be? What can you do to solve the greater problem – protecting public health – rather than potentially exacerbating the situation by further inflaming tensions with enforcement action?

Get people on board with protecting themselves, their elderly neighbors, or their family members who suffer from lung disease, asthma, diabetes, heart disease, or anything else that puts them at high risk. CDC data shows that 75-year-old Grandpa is at high risk of becoming seriously ill or dying if he contracts the virus. Suggest that Grandpa is more likely to live to be 76 if he goes home and enjoys visiting with his family via video chat. It may not be what people want to hear. They may not like you breaking up the party, but they’ll remember you next year when they’re back together celebrating another year.

The data is also showing us that young people are less likely to succumb, but even if they experience mild symptoms or none at all, they can still pass the virus on to those with an underlying heart condition, like 35-year-old Melanie, who is enjoying that backyard wedding reception. Just because no one present obviously falls into a high-risk category doesn’t mean they aren’t there. Underlying conditions are exactly that – the person at the gravest risk may not even know they’re at risk. Try taking the approach of reminding them of that fact, and the pushback you’re likely to experience could easily transform into voluntary compliance.

That group of teens playing basketball – try explaining that if one of them is infected, that basketball is likely contaminated with the virus. Talk to them about so-called “stealth transmissions,” where people who have mild on non-existent symptoms unwittingly pass the virus on to others. Anyone could be a stealth transmitter. Anyone.

Isolating teens and young adults will be especially difficult. Their motivations center around friends, and logical arguments for compliance may fall on deaf ears. (A current Psychology Today article offers helpful suggestions for helping teens shelter in place.)

Will we convince every person we contact that they should avoid gathering with others unnecessarily? No – not a chance. Can we make a difference by communicating the facts? Absolutely. If even one teen on that basketball court refuses to touch a potentially contaminated basketball, haven’t you made a difference? The goal of a lockdown order is to save lives by achieving compliance, not to write as many citations as possible.

Last Thoughts

Be cautious about using a lockdown or shelter-in-place violation as the basis for a stop to detain a person that you suspect of other crimes. If you are part of a gang or narcotics task force or working in an area where street crimes are common, think carefully about using these orders for stops. What may be legally justifiable action, may not be desirable action.

Bad cases can become bad case law and may cause a lack of respect for an agency or its members. Discretion can make or break you, so use it as you would use your service weapon – with extensive training, mental rehearsal, and judicious application of authority based upon the law and fact circumstances.

The front lines of this particular war call for a new approach to achieving compliance. Your best weapons could be logic and words, not necessarily your pen and citation book.

Lynn Cottier, BA, JD, currently serves as a training developer for Lexipol. Lynn began her law enforcement career as a community service officer before accepting an appointment as a sworn police officer. Following her time as a police officer, Lynn was a prosecutor in California for nearly two decades specializing in serious sex offender cases. Lynn currently contracts as a hearing officer for county ordinances related to marijuana cultivation, as well as for a psychiatric health facility.