Experts: Crackdowns on COVID Rule Breakers Harmful

Christine Lehmann, MA

September 18, 2020

Editor's note: Find the latest COVID-19 news and guidance in Medscape's Coronavirus Resource Center.

Leaders of major cities and states across the country are taking a "get tough on COVID" approach to violators of coronavirus orders to prevent new outbreaks.

In many cases, violations are considered a criminal offense with potential sanctions that range from fines to jail time.

Connecticut became the most recent state to crack down on those who violate the state's public health orders. Gov. Ned Lamont announced this month that anyone violating the state's mask order will be fined $100 and that fines from $250 to $500 will be issued to people who organize or attend any event that exceeds state size limits.

Also, people will now have to pay a $500 fine for organizing an event that exceeds size limits, and those who attend events that exceed size limits will have to pay a $250 fine, Lamont said.

Several incidents have made headlines recently of people disobeying orders to practice social distancing, limit the number of people gathered together, and of requirements to isolate or quarantine after positive tests or exposure to the virus.

But some public health experts warn that these heavy-handed tactics don't work and may damage the pandemic response.

After a large house party last month in Los Angeles, which has a ban on individual and family gatherings, Mayor Eric Garcetti said the city's department of water and power will shut off services at houses, businesses, and other venues hosting large gatherings during the pandemic. In addition, the Los Angeles County Department of Public Health said party hosts will be subject to fines, imprisonment, or both.

Garcetti wasn't bluffing. Two weeks after announcing the policy, the mayor had the utilities cut off at a Hollywood Hills mansion where large parties were being held, National Public Radio reported. After multiple warnings, Garcetti called the house "a nightclub in the hills" and told police to pull the plug.

Upset by large crowds of people sunbathing on the Chicago lakeshore last month, Mayor Lori Lightfoot sent police to barricade the beaches ― a relatively low-risk setting for spreading the virus ― and threatened to shut them down.

Judges in Louisville, KY, are enforcing isolation for people who have tested positive for COVID-19 by ordering them to wear GPS ankle monitors.

And New York City police officers made at least 120 arrests and issued nearly 500 summonses for social distancing violations between March 16 and May 5, according to police data provided to The New York Times.

Unequal Enforcement

"Involving the police in changing public health behaviors is a recipe for eroding trust and discriminatory enforcement. There is already an incredibly inequitable impact of the pandemic in terms of the public health response and lives lost in spite of that response," says Lindsay Wiley, JD, a law professor and director of the Health Law and Policy Program at American University in Washington, D.C.

Involving the police in changing public health behaviors is a recipe for eroding trust and discriminatory enforcement. Lindsay Wiley, law professor, American University

Legal or criminal responses tend to unfairly affect Black and Hispanic communities that have already been hit hard by the coronavirus. In New York City, 68% of the 120 people arrested on social distancing violations were Black, 24% were Hispanic, and 7% were white, according to police data.

"Aggressive enforcement risks a replication of patterns we've seen before," public health researchers Brandon D.L. Marshall, PhD, and Abdullah Shihipar wrote in The New York Times.

Federal drug policy, they say, resulted in Black and Latino people being imprisoned at much higher rates than white people for the same low-level offenses. Law enforcement lacked the training to understand or recognize that there were health, social, and economic issues at play in many minority communities.

"Deploying police officers to enforce social distancing rules could do the same. This will be the case even if fines are used instead of arrests," they wrote.

This isn't the first epidemic where public officials have used police to enforce laws. In 34 states, potentially exposing someone to HIV is a crime. "Even if punishment were an appropriate response, structural racism ensures that it is not meted out fairly: In California, for example, Black and Latino people make up half of those with HIV but two-thirds of defendants in HIV-criminalization cases," Julia Marcus, PhD, an epidemiologist and assistant professor at Harvard Medical School, writes in The Atlantic.

Driving People Underground

"We know from HIV prevention that getting tough on behaviors drives people underground and makes them harder to reach and less likely to cooperate because they are more distrustful and afraid of public authorities," says Wiley.

That has implications for many COVID-19 public health efforts that rely on public trust, including vaccinations and contact tracing.

In New York City, only 42% of people infected with COVID-19 this summer gave contact tracers at least one name of people they might have exposed.

Contact tracers in Rockland, NY, ran into a wall of silence when they tried to get names of friends who attended a large party in June. Frustrated county officials took the unusual step of issuing subpoenas to eight people believed to have been there and a $2,000 daily fine if they missed the deadline to comply.

"That [approach] might have worked with those kids who were threatened with potential jail time ― the criminal penalty for not cooperating ― but it may not help next time around. It's a very short-sighted response that may garner political support for officials who want to be seen as tough on COVID-19," says Wiley.

Educate First

Many states and local governments prefer to educate people first about COVID orders and use fines and arrests as a last resort.

For example, Sonoma County, CA, has put a focus on education and outreach ahead of fines. "We know that most people are following the health orders and wearing facial coverings when out in public, practicing social distancing, and avoiding large gatherings," Board of Supervisors Chair Susan Gorin said in a news release.

But the board passed a law last month that fines people and businesses that don't comply "to deal with the small number of folks who are willfully disregarding the order. This ordinance will help address this issue in our community," says Gorin.

In D.C. and its suburbs in Maryland and Virginia, where there are limits on mass gatherings, police say they have had to break up many parties and have made no arrests over the summer.

In Prince George's Country, a Maryland suburb, police have handed out citations at only one location that hosted several large parties. "We typically try to prevent them from occurring in the first place by making contact with the promoter/organizer beforehand. We explain the safety issues and the consequences for hosting a mass gathering," a Police Department spokesperson said in an email to radio station WAMU.

Marshall and Shihipar say public health officials or trained volunteers should be sent to areas where the public tends to congregate, where they'd remind people not to gather. "These people could offer resources to those who are not complying with stay-at-home measures because they are homeless, do not have their own transportation, or are desperate for essentials like food and medicine."

Virginia Gov. Ralph Northam has ordered the state Department of Health to enforce his COVID-19 orders on social distancing, face coverings, and limits on the number of people in businesses.

To date, the department has received over 35,000 complaints about not following COVID-19 orders, says Julie Henderson, director of the department's Office of Environmental Services, in an emailed statement.

"Local health departments respond to complaints by contacting the owners of establishments and seeking to provide information and education about the spread of COVID-19, the requirements of the executive orders, and how establishments can comply with these requirements. Enforcement of the order provisions only begins once information and education efforts have failed," she says.

The educational approach has been effective. Local health departments in Virginia have pursued enforcement actions in fewer than 40 of the more than 35,000 complaints, Henderson says.

Enforcement actions include seeking an injunction through the state's attorney general's office to prevent the harmful actions from continuing, and filing a Class 1 misdemeanor in criminal court, which can result in up to 1 year of jail time and/or a fine of up to $2,500.

Change the Environment

Public health officials can use similar tools that are more appropriate than community policing, including cooperating with other agencies at the local and state levels that license various businesses, says Wiley.

"My preferred approach is to not involve the police at all but take a licensing-based approach that is not unlike food safety inspections," she says.

The appropriate licensing agency for a business, restaurant, or grocery store, which varies by city and state, would have the authority to enforce violations, including issuing fines and suspending a license in more extreme cases, according to Wiley.

This locally tailored approach targets the environment rather than the individual, similar to tobacco-free laws, food safety rules, and sanitation policies. "Businesses make more rational decisions than imperfect individuals and are more responsive to fines," she says.

Changing the environment is also more effective than placing the responsibility for compliance on individuals. "We know from decades of experience with public health policy that there is not perfect compliance – otherwise, we would not need seat belts or airbags installed in cars."

It's also perhaps unrealistic to expect millions of people to change their behaviors rapidly during the pandemic when it took decades for society to make other behavior changes, such as banning smoking indoors, says Wiley.

Sources "Fines Will Now Be Issued For Mask, Event Size Violations in CT: Lamont."

Lindsay Wiley, JD, professor of law and director, Health Law and Policy Program, American University, Washington, D.C.

Julie Henderson, director, Office of Environmental Services, Virginia Department of Health, Richmond.

American Journal of Criminal Justice: "Policing a Pandemic: Stay-at-Home Orders and What

they Mean for the Police."

KTLA Local News: "L.A. Mayor Garcetti authorizing power and water shutoffs at houses and businesses hosting large parties."

News release, Sonoma County: "Supervisors approve fines to encourage public compliance with COVID-19 health orders."

Chicago Tribune: "Montrose Harbor blocked by police, fence after Mayor Lori Lightfoot shuts down large beach party: 'It's being addressed.'"

The Appeal: "Government enforcement of quarantine raises concerns about increased surveillance."

The New York Times: "Scrutiny of Social-Distance Policing as 35 of 40 Arrested Are Black," "We Can't Police Our Way Out of a Pandemic," "City Praises Contact-Tracing Program. Workers Call Rollout a 'Disaster.'" "Party Guests Wouldn't Talk After 9 Tested Positive. Then Subpoenas Came."

The Atlantic: "The Fun Police Should Stand Down."

Harvard Medical School Department of Population Medicine.

American University Washington College of Law.

Virginia LIS Code of Law.

WAMU 88.5/DCist: "People In The D.C. Region Are Rarely Fined For Large Social Gatherings."