Use of force to enforce stay-at-home orders
Officer discretion, common sense and good judgment are more important than ever in these difficult times
COVID-19 continues to impact our communities as governmental entities struggle with containing the spread of the virus.
State and local governments are using their legislative and regulatory authority to enact various orders that restrict contact between individuals and maintain social distancing. The American vocabulary now encompasses phrases related to these orders such as lockdown, shelter-in-place, stay at home, or safer at home.
The orders are as varied as the powers to enforce them. Some orders are criminally enforceable, while others are civilly enforceable, and some lack any enforcement component. Ultimately, the decision to respond and enforce these orders, as is often the case, falls on law enforcement.
COVID-19 DOES NOT CHANGE USE OF FORCE REQUIREMENTS
While we may be at war with a virus, we certainly are not at war with our citizenry. The infectious nature of COVID-19 does not change the requirements regarding the use of force and crowd control in implementing these orders.
Officers have dealt with deadly infectious disease outbreaks and blood-borne pathogens before, such as AIDS/HIV and Hepatitis A, that have impacted how they respond and deal with individuals.
In general, these prior outbreaks required officers to use gloves and other personal protective equipment in dealing with individuals. Yet, none of these diseases changed the fundamental requirement that officers can only use the level of force reasonably necessary to control an individual.
However, unlike prior outbreaks of infectious diseases, COVID-19 has spawned a slew of executive orders from our federal and state governments requiring Americans to stay at home. Does this fact change how officers enforce governmental health and safety directives related to the containment of COVID-19? The short answer is no.
Communicate expectations and policies
To ensure police officers appropriately enforce stay-at-home orders without the use of unreasonable force, law enforcement administrators must first determine what their enforcement expectations are regarding the various orders being implemented and communicate those expectations to officers.
Certain steps can be taken to help officers successfully advance the agency’s goals in responding to these types of calls. For example, an agency’s policies regarding the use of force, crowd control and deployment of unmanned aerial systems/drones should be reviewed. While reviewing policies, administrators and officers should have frank discussions regarding scenarios they may confront while enforcing stay-at-home orders. These discussions should involve the agency’s trainers, particularly on the use of force. It may seem like such a silly or basic enterprise, but one that is necessary to ensure everyone is on the same page especially when an officer’s concern for their personal or family’s safety is founded on dealing with an invisible danger whose impact may not be known for days.
Take the following example: a large group of neighbors overcome by cabin fever gather to talk and drink in one person’s backyard. A neighbor calls 911 out of concern and a sense of civic duty because the state has issued orders banning gatherings of 10 or more people. One or two officers respond and politely ask the small crowd to disperse while reminding them of the requirements of the stay-at-home order. What if the crowd refuses to break up? What if an intoxicated individual threatens to breathe on officers unless they leave? How does the agency expect its officers to respond? What are the officers’ expectations?
Of course, what happens next depends on the nature of the executive health and safety order. For orders that include the power to arrest (which naturally carries with it the ability to use force to engage the arrest), some agencies are requiring officers to first issue verbal warnings to the crowd to disperse. Officers are instructed that if the warnings are unsuccessful, they can issue citations and/or arrest individuals violating these orders. However, in the event responding officers are required to use some amount of force to disperse a crowd, how much force is reasonable?
To be sure, officers must be familiar with their agency’s use of force policy. They should also be aware of their agency’s policy regarding crowd control. If the agency does not have a policy on crowd control, all the more reason to have discussions surrounding various scenarios officers may be confronted with before such an incident unfolds. This includes examining how behavioral dynamics in a pandemic scenario may differ from “typical” protests involving political or labor issues.
Undoubtedly, the use of force is extremely complex to analyze in the heat of the moment particularly when the events are uncertain, tense and rapidly evolving. Officers may find themselves in circumstances that were uncommon or unfamiliar to them before the COVID-19 outbreak. For example, in enforcing stay-at-home orders, officers more likely will confront individuals who outnumber officers. Tensions may be high when individuals who simply want to avoid “cabin fever” are asked to disperse. Officers may be wearing personal protective equipment that hinders their ability to maneuver as they once did without wearing such equipment. Other unusual factors too numerous to list may play a further role in officers’ decisions to use force to enforce stay-at-home orders.
The fact that we are amid a pandemic does not change the requirements that officers follow policy and use reasonable measures to gain compliance. Yet, confronting an individual who may have COVID-19, or dispersing crowds to enforce stay-at-home orders, does not presumably justify an escalated use of force. Officers need to consider their department policy and training, along with the agency’s expectations regarding pandemic-related orders and calls. Even so, officer discretion, common sense and good judgment are more important than ever in these difficult times.