Amid the shortage of toilet paper and hand sanitizer, there is no shortage of debate and blame regarding the government’s response to COVID-19. One thing is certain: the power of government is immense and if exercised to the fullest will be exercised by its men and women with guns and badges.

It seems unfathomable that citizens might be confined by force or snatched off the streets and whisked away. History, however, says that it is possible. John Adams signed into law what is known as the Alien and Sedition Acts, responding to foreign threats. Among other things, the set of laws made newly minted citizens ineligible to vote (such as the “hordes of wild Irishmen”) and made it illegal to speak critically of the government.

Lincoln famously suspended the right of habeas corpus, effectively allowing imprisonment that could not readily be questioned. Franklin D. Roosevelt had many Japanese Americans, as well as some German and Italian American citizens, confined in internment camps, subject to being shot if attempting to escape. Secret courts and mandated searches of library records are products of post 9/11 legislation, along with an unknown level of surveillance on our citizenry that we don’t fully comprehend.

Inevitable politics

In recognizing the reality of overwhelming government authority, we also acknowledge that the most liberty-loving lawmakers throughout our history have recognized that extreme threats can require extreme responses. We are not exercising those extremes yet, and likely won’t, but it might be wise to re-examine the possibilities so that police leadership can assure the citizenry that martial law is not imminent.

Acknowledging that there are efforts to further regulate speech and firearms ownership and significant voter sentiment to increase federal authority over our economy, we also acknowledge that open discussion and advocacy is part of our messy American heritage of politics and freedom.

Many law enforcement leaders have taken very strong stands on opposite ends of the debate. In this crisis, leaders have the opportunity to remain an objective voice of reason and avoid polarizing an already anxious populace.

Misunderstood laws

A recently widespread social media post asserted that insiders have revealed a plan to invoke The Stafford Act to require and enforced lockdowns across the nation.

Most in the profession have dealt with federal and state emergency management professionals enough to know that the Stafford Act has nothing to do with imposing draconian restrictions on citizens. The Act provides authority for financial and administrative measures to be put in place during a state of emergency. A post-Katrina provision specifically bans confiscation of firearms during a state of emergency, for those who fear they will lose their Second Amendment rights during a civil emergency. (Just don’t expect to take your deer rifle with you if you’re rescued by a Chinook helicopter).

Another misunderstood federal law is the Posse Comitatus Act passed after the U.S. Civil War to keep federal military troops from doing domestic law enforcement, although the provision explicitly allows the military to assist in certain cases, and to be used to quell major disturbances on U.S. soil. This likely means that unless major riots and disturbances break out, you won’t see the Marines storming the city limits.

The U.S. Code also specifically requires that: "When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.”

If honored, this provision prohibits a blanket, amorphous claim to emergency powers not included in current law.

The National Guard is a state’s military, largely funded by the federal government so that its assets can be federalized and integrated into the U.S. military mission. The Guard is being called out in many states, but to use their medical, logistics and manpower to support civilian operations overwhelmed by the pandemic.

The role of police leaders

The greatest assurance of civil liberties is a robust exercise of law enforcement and the judiciary. The greatest threat to civil liberties is an unregulated exercise of law enforcement and the judiciary. Which view will be shared by the majority of citizens will be guided by an ongoing trust between the citizens wearing the badge and the citizens with whom they interact.

As health officials provide information on preventing the spread of disease, law enforcement officials should be reassuring citizens that their armed government agents are operating within the law in the most restrained way possible.

Amid the COVID-19 pandemic, many leaders are coping with the impact of officers in their organization being on quarantine, hospitalized, or simply calling in sick. This is occurring against a backdrop in which many agencies were already struggling to achieve full staffing.

The forecast from police futurists, however, is that this situation is only going to get worse. Most agencies have a high proportion of personnel who are retirement-eligible or approaching eligibility. Now add the suspension of many police academies and the cessation of recruitment and selection efforts, and the staffing forecast for 2021 and 2022 is challenging.

If COVID-19 results in cycles of regional or national workforce disruption, as some medical experts are projecting for the next 18-24 months, police agencies might only be seeing the beginning of their challenges to provide core services and to care for their personnel.

There ARE some steps that law enforcement leaders can take today to prepare for possible significant staffing and service disruptions. Some are non-traditional and potentially dramatic shifts in policy, however, the emerging challenges might require exploration of the following practices. 

1. Incentivize postponement of retirement

This may be a challenge, with the current risk environment of disease coupled with the ongoing anti-police narrative with which many communities have been dealing. This may, in the long run, be less expensive and a faster solution for some agencies. Doing this might require that agencies offer bonuses, increased longevity pay and other incentives to encourage eligible officers to postpone their retirements.

2. “Hire back” recently retired officers

In some communities, this may require local or state legislative efforts to overcome pension prohibitions for retired officers to return to paid employment in the public sector. Some policies will need enactment to address fitness for duty from a physical, emotional, and psychological perspective. 

Separated officers would likely need to be given a defined level of training (possibly including abbreviated FTO), as well as certification of firearms and technology qualifications. Leaders may have to implement qualifying criteria to ensure that poor performance or high liability retired officers are screened out of the rehire process. Agencies might opt to use such officers in support service capacities to free active-duty officers for patrol and other field operations.

3. Expand or implement an auxiliary officer program

Auxiliary and reserve officers have been successful parts of many agencies for decades. Other agencies may have stopped the practice or never experimented with its use. It is time to revisit the issue within agencies to explore what kinds of activities auxiliary officers might handle in place of regular sworn officers.  Agencies that are accredited may have to "negotiate" a temporary suspension of training requirements for auxiliary officers due to the manpower crisis faced by most agencies.

4. Increase the scope of duties for uniformed, civilian positions

This is the time for leaders to reevaluate the full potential and scope of using non-sworn uniformed employees to respond to calls for service that may not require arrest powers and a weapon. Agencies might find such personnel can provide a range of support services, including non-traditional demands that a community medical crisis may create such as perimeter security at medical facilities or shopping centers.

5. Reconsider response priorities

As this article is being written, agencies in communities hit-hard by COVID-19 are seeing workforce depletions of upwards from 20% and rising. Before such crisis hits, leaders should consider how this might need to modify response priorities and staffing objectives:

• Are traffic units still needed in a community?
• Should detectives continue to actively investigate property offenses with low solvability?
• What are the core call and service demands that must receive a response in a given community?
• How can a depleted workforce be reconfigured to meet needs, while keeping personnel safe, healthy, and adequately rested?

This might mean leaders need to stipulate certain kinds of calls for service to which their agencies will not respond, at least temporarily.

6. Re-examine mutual aid agreements

Many agencies have mutual aid agreements; however, such documents might be outdated in terms of their scope, specification and authorizing signatures. It would be wise for leaders to review their existing agreements to ensure they are adequate to address current needs and contexts.

In metropolitan areas, adjoining agencies may need to have contingency plans for sharing manpower; one day an officer may have to report to City A, the next day City B. The successful use of such agreements might necessitate that participating agencies determine in advance a set of regional policies to at least govern high-risk critical activities, such as pursuits and use of force, while also establishing clear rules for communication and incident command.

7. Coordinate and communicate with local partners

Leaders should ensure a high degree of communication and coordination with local public safety and medical partners. If relationships exist, ensure that all involved are in communication and have direct linkages with one another. Where relationships need to grow, now is the time to do so.

Leaders might know their peers in area law enforcement and fire services, but do they have communication with the medical community and managers of essential businesses such as grocery stores and gas stations? We have seen COVID-19 wreak havoc on staffing in fire and EMS in some areas; do the local police know the contingencies established by those partners? Who will the police be working with if the fire department has to invoke their mutual aid agreement?

8. Prepare for the extreme; hope it does not happen

In extreme emergencies, pre-planning might be beneficial between police leaders and the state’s National Guard. If a Guard mobilization became necessary, police leaders have a legal and ethical duty to ensure that a Guard mobilization for civil support would result in a coordination collaboration between police and the Guard, with a strong emphasis on constitutional protections for citizens and restrained use of force. The time for such contingency planning is before a mobilization begins.

These suggestions are but a few of the ideas that each chief and sheriff must discuss with their leadership teams. Other ideas, such as contracting out site security functions to private contractors, are already in place in some cities. The purpose of the article is to stimulate planning and preparation so that WHEN the manpower shortages emerge, agencies are ready.

About the authors

Chief Richard (“Rick”) W. Myers is the former chief of police for the City of Newport News, Virginia, where led a total staff of 440 sworn officers. He began his career in policing in 1977 in the Detroit suburbs and has served as a patrol officer, public safety officer and medical examiner investigator.

Joseph A. Schafer is a professor of criminology and criminal justice and associate dean of research in the College for Public Health and Social Justice at Saint Louis University. His research focuses on policing, organizational change, leadership, citizen perceptions of police and futures research in policing. He is past president of Police Futurists International and is currently a commissioner for the Commission on Accreditation for Law Enforcement Agencies.