This article originally appeared in the April 2020 PoliceOne Leadership Briefing. To read the full briefing, visit Civil liberties during a pandemic | Officer shortages | COVID-19 policies, and add the Leadership Briefing to your subscriptions.
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.
