In an attempt to halt or slow the progress of the COVID-19 pandemic, public health departments in California and Maryland this week activated a seldom-used authority to declare “curfews” to keep people off the streets for non-essential activity.
Enforcement authority was passed to local law enforcement to use state codes to enact the curfews. For example, Section 409.5 of the California Penal Code describes the enforcement to keep people from becoming a public “menace” in the face of a public health emergency.
Public messaging accompanying the curfews includes warnings that enforcement includes a misdemeanor penalty for disobedience to the order, although some of the communication is diluted with a mixed messaging that the public is “strongly encouraged to obey the order.”
The juvenile experience
In most jurisdictions, curfews are synonymous with dealing with juveniles after hours. The FBI Uniform Crime Report (UCR) statistics, retrieved from some 18,000 law enforcement agencies in America, report that “Curfew and Loitering Law Violations” accounted for 33,986 arrests in 2009. In examining 10-year crime trends, a comparison for the same crime accounted for only 7,591 arrests in 2019 or a nearly 78% drop in reported curfew/loitering arrests.
The traditional concept behind curfews is to keep vulnerable and compulsive youth off the streets over late night and early morning hours to keep them from committing crimes and, in some cases, from being crime victims themselves. Think of the sage advice that says: “Nothing good happens after midnight (or 10 pm, or 2 am).”
It was a crime strategy that allowed law enforcement staffing to deploy the fewest number of officers possible on the streets during nighttime hours, due to expectations of fewer people on the street and a lower incidence of crime. Today’s strategy by public health departments is similar in that the expectation is that a day and night curfew will limit the number of people in public places and slow the spread of COVID-19. At the time of writing, only California and Maryland have issued the formal shelter-in-place order. Other areas including New York are considering similar orders. In the San Francisco Bay Area, approximately 7 million people have been told to “shelter in place.”
There are indeed benefits to curfews and stay at home orders. Once enacted, police have the authority to stop and question individuals beyond seclusion times to determine compliance. Discretion should be given to those traveling to seek medical attention, assist other dependents and in compliance with the other legitimate exceptions to the orders. Lawbreakers should be handled in a more traditional manner as referenced in the Disaster Management Handbook distributed to all city departments from the CCSF Department of Emergency Management, which spells out: “Individuals found looting will be arrested, imprisoned and prosecuted.”
Carefully Crafted Messaging
Although the current shelter-in-place order comes from the state and county health departments, law enforcement agencies are tasked with enforcement. In California, the rollout of the order came in waves with Public Health officials and the Governor calling for bars to close and for restaurants to curtail capacity. Seniors over the age of 65 were asked “to stay indoors” as a form of self-quarantine. As many continued to go about their regular routines, the message became stronger with the shelter-in-place order given only days after.
Still, there are many exceptions to the rule with the current order. The public are told they may still travel to and from work if identified as an “essential service,” that they may shop, go to medical appointments, exercise or go outside with measures taken to practice “social distancing” of 6 feet or more from others, and that they may go to parks and other settings. The result is a message that is cloudy and subject to interpretation.
These types of messaging make the role of law enforcement an already difficult task during this pandemic. Law enforcement as the messenger will likely be resisted across the board by conservatives, liberals and civil libertarians. Enforcing shelter-in-place orders or curfews are “no-win” activities for police. San Francisco Police Chief Bill Scott said, “…officials are looking for voluntary compliance with the shelter-in-place mandate and the rest of the health order. But the order does carry the weight of the law; officers could write citations for failing to comply, but Scott made it clear that such a move would be a last resort.” Recent posts on social media have shown some call for resistance to curfews or restrictions. Neighbors of mine even rationalize the wording of the orders in an attempt to continue their social group meetings at a local park. Still, some high-profile celebrities and politicians have made references to conspiracy theories afoot as an excuse to install martial law as it was used during a quarantine some 125 years ago.
Clear Unified Message to Communities
Law enforcement should not be the lead agency to announce curfews or shelter-in-place orders. The curfew or shelter orders messaging should come from the highest points of government, from the governor, mayors and especially public health officials. The message should be clear and unambiguous.
Law enforcement officials should still be part of the unified team approach to keeping citizens safe from the spread of the virus, yet the optics of being the negative consequence should be downplayed. In stressful times, people can be quick to lay blame and enforcement is an easy target. Health and elected officials should emphasize the need for adherence to the strategy to keep the virus from spreading and inundating hospitals and medical response capacity.
Before curfews or shelter-in-place orders are given, law enforcement representatives need to join policymakers at the multi-disciplinary executive team level. Their role should provide input to determine appropriate messaging, procedures and policies to be employed and explicit rules of engagement required to ensure compliance among those resistant to the orders.
