For W.Va. departments, pandemic raises questions on how to balance civil liberty and public health
Police departments are instituting new measures to help stop the spread of COVID-19 while working under unclear directives from state leaders
KANAWHA COUNTY, W.Va. — An unprecedented pandemic has prompted unprecedented safety measures in some West Virginia counties, but questions remain about enforcement and how best to balance public health and civil liberties.
Stricter stay-at-home orders issued by Gov. Jim Justice prohibit public gatherings of more than five people in 11 counties considered COVID-19 “hot spots.” Under authority granted them by state law, county health boards can issue additional measures, such as Kanawha’s requiring that people who fail to comply with quarantine orders wear GPS ankle monitors.
State Police are responsible for enforcement. They did not respond to requests for comment.
“In a perfect world, these would be uniform policies, the same here and next door. In a perfect world they’d come down statewide for uniformity and consistency,” said Kanawha County Commission President Kent Carper. “The work quilt approach is not a perfect, it’s not the best, but it’s allowing us to do what we have to.”
Violating quarantine orders in Kanawha could be prosecuted as a misdemeanor offense. “A virtual handful” of people have broken quarantine in the county, but none has been charged or equipped with a monitor, Carper said.
“I need to be clear here: These are a last resort. This is not what we want to do, but it’s what we will do if we have to,” Carper said. “Not every positive [person] is going to get a monitor. That is only if you refuse to follow a quarantine order and are being deliberate, if your actions are deliberately going to get others sick.”
Following the issuance of the GPS order April 5, Kanawha County commissioners said local authorities had been directed to enforce the new measures alongside state police.
But how enforcement of new measures might be carried out is unclear.
Brian Abraham, general counsel for the governor, said the executive order did not include criminal penalties for not following the stricter rules, since governors cannot create new law.
There was no specific guidance from the governor’s office to state or local police regarding enforcement, Abraham said.
“What will end up happening, I’m sure, is a business or an individual who would not comply with the orders could be approached by law enforcement who would advise them of regulations and ask them to follow [the order],” Abraham said. “If there is a refusal to comply, [the officer] will order them to comply. And then, if there’s still a refusal to comply, they will be charged with obstructing the officer’s order.”
Don Morris, first assistant prosecutor for Kanawha County, said the policies have “no teeth.”
“They won’t do any harm, but, yeah, there isn’t a lot of power imbued in them for penalties,” Morris said. “We hope — and we believe — most people will act the way they should and if they don’t, well we have options, I guess.”
Kanawha County Sheriff Mike Rutherford referred enforcement questions to the state. Abraham said enforcement should be handled at the county level.
Charleston police Chief Tyke Hunt said he would not comment on the department’s COVID-19 related responses.
“We take the calls as they come in, follow directives handed down and as stated in Chapter 16 of [West Virginia State Code],” Hunt wrote in a statement.
Chapter 16 outlines policies related to public health. Other than identifying some penalties for specific violations (such as performing medicine without a license), the chapter does not significantly detail enforcement measures.
St. Albans police Lt. Phillip Bass said officers there have been urged to be cautious but have not otherwise been given direction for responding to COVID-19 related calls or people breaking quarantine.
Police and all first responders must weigh the risks and benefits of all calls amid the pandemic, Carper said. New measures must take into account both public health and individual rights, and Morris said he believes they are.
The quarantine orders issued by the Kanawha-Charleston Health Department can be appealed, providing a basic level of due process, according to Joseph Cohen, executive director of the West Virginia arm of the American Civil Liberties Union.
Other parts of some new measures at state and county levels put the ACLU on alert for potential rights violations.
“We fully admit and recognize that certain, really basic, civil liberties can be curtailed in an emergency, but there has to be those safeguards in place to deter abuse,” Cohen said. “If you’re restraining someone’s movement [like through a quarantine order], you have to still meet their rights.”
Other orders — such as restricting the number of people who can congregate or only allowing a business to be open if it is classified as essential — need to be evaluated regularly.
Constitutionally, the government should only limit individual rights to the extent that it is medically needed, Cohen said.
“The decisions have to be grounded in science and no greater than absolutely necessary,” Cohen said. “As soon as these orders no longer apply in the interest of public health, they must be taken off the books.”
That’s where some of the worries — and confusion — enter from the ACLU’s perspective.
Whether limiting business operations, travel or gatherings, many recent orders are vague. Some aren’t clear on the consequences for violations. Others lack end dates. While it’s difficult to know when the COVID-19 pandemic will pass, time limits on orders and extensions as needed would be better, Cohen said.
As soon as orders can be rescinded, they will be, based on the opinions of the state’s health leaders, Abraham said.
“These are not things we have any interest in continuing for longer than necessary,” Abraham said. “We — the governor, certainly — want things to go back to normal.”
A lack of clarity raises questions.
“We don’t want more people in jail right now, but could someone take them to jail right now? I don’t think we know,” Cohen said. “If your punishment for someone you think is sick is sticking them in jail, if incarceration is at all an answer, then you’re doing this wrong.”
“And that is not in any way a practice based in public health or good science,” Cohen added. “If we start to see that happening, we’re going to have real problems.”
Carper said he understands anxiety over the measures, but they are in the public’s interest.
“Most, 99% of you, are doing what you need to do for all of us, and that must continue,” Carper said. “As this goes on, though, we need to make sure we can do what we need to keep everyone safe from that very small 1%. We are transparent. We are willing to answer any questions, and yes, believe me, we are looking out for your rights.”