Maybell Romero1Associate Professor, Northern Illinois University College of Law. Thanks to Marissa Jackson Sow, Kim Ricardo, Michael S. Sinha, and commentators at the 2020 Northern Illinois University College of Law Chicagoland Junior Scholars Conference.
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A part of the series, COVID-19 and Criminal Justice.
As the outbreak of the novel coronavirus wears on throughout the United States, state and local governments are left to determine—with very little, if any—helpful direction from the federal government, how to proceed with protecting the health and safety of their residents while also trying to determine if or how to start “opening up” their respective economies. Some of this confusion includes the implementation of a pastiche of executive orders issued by governors around the country, as well as how to enforce such orders.
In spite of its wealth, power, and global influence, the United States, in the midst of a global pandemic, had rendered itself a pariah state. As of late August, out of the approximately 195 countries in the world, Americans are able to travel to only 11 of them without restrictions.3This number varies slightly depending on how certain diplomatic conflicts are interpreted and understood. Individual states have each had to determine for themselves how to attempt to manage the pandemic, be it taking more proactive approaches, such as Connecticut, which mandated face masks beginning April 20, or be it enacting fewer measures, like Florida, which has reopened at a pace that has endangered the health and safety of its residents.
States and their smaller political subdivisions—counties, cities, and towns—have also had to wrestle with questions on how to enforce measures that have been mandated upon individuals to control and limit the spread of the virus. As of September 2, 2020, 34 states and the District of Columbia have mask mandates, leaving political subdivisions of 16 states to their own devices. Some cities and counties have opted to enforce such mandates with fines and other penalties, such as written warnings with first violations. Some cities have opted for more severe methods of enforcement, such as arrests for misdemeanor violations resulting from failing to comply with mask mandates and other social-distancing guidelines.
The public health risks posed by the police have been thrown into even sharper relief since the beginning of protests across the country in response to Minneapolis police officer Derek Chauvin killing George Floyd on May 25 of this year. Though many people throughout the country on that date were continuing to shelter at home in an effort to avoid contracting or spreading COVID-19, many decided that the public health risk of protesting police brutality was worth it. Protestors have, in essence, decided that the police pose a greater public health risk to their communities than a pandemic. While news about the COVID-19 has dominated news cycles since the start of fall 2020, protests are still occurring in places like Kenosha, Wisconsin following the police shooting of Jacob Blake.
Those protestors are, very likely, right. At the very least, violent tactics on the part of police have compelled people to stop social distancing, while the use of tactics such as tear gas can aggravate respiratory systems, resulting in a lessened ability to fight off the virus and increased coughing by affected protestors. We should not forget, however, that even before the outbreak of COVID-19, police violence has posed mental health threats and risks to poor and minority communities. In this sense, police cause and spread illness, undermining their supposed goal of ensuring public safety. In the same vein, prosecutors who continue to do nothing to address or stop police misconduct and violence only allow it to spread, rending law enforcement a disease vector.
A number of tools are at the disposal of governors, mayors, and other heads of local government to protect their citizens from public health threats. It is now time that those officials recognize police as the public health threat that they really are, especially in the midst of the COVID-19 pandemic, and take measures to protect the health and safety of their communities from an epidemic of police abuse and violence.
Part I of this Essay describes the historical public health threat posed by law enforcement, especially to the poor and communities of color. Part II then contextualizes that threat further in the current pandemic, with each subsection exploring different creations and calculations of risks undertaken by both police and protestors in favor of police reform, and what these calculations say about the relationship between police and the public. Part III then advocates for governors and the heads of other political subdivisions to treat police in much the same way as one would medicine or a public health threat: only useful when benefits outweigh risk, and otherwise something that needs to controlled, regulated, and, if possible, abandoned to the greatest extent possible.
I. Law Enforcement as Historic Public Health Threat
The United States must reckon with its long history of police violence,4Much as Osagie Obasogie and Zachary Newman have recently done, the Essay uses the term “police violence” in lieu of “police brutality,” which is “a systemic, generalized problem, not one that is individuated and momentary.” See also Douglas A. Blackmon, Slavery by Another Name: The Re-enslavement of Black Americans from the Civil War to World War II (2009). and this history should be understood by anyone endeavoring to either reform or defund the police. The late 1800s saw the role of the state prosecutor solidify, giving rise to new and evolving understandings of what exactly “public order” meant at the time. Police have been granted the power and authority to use physical force against individuals,5Maybell Romero, Prosecutors and Police: An Unholy Union, 54 U. Richmond L. Rev. 101 (forthcoming 2020) (citing Howard S. Cohen & Michael Feldberg, Power and Restraint: The Moral Dimension of Police Work 56 (1991)). and have often wielded that power in brutal ways against minorities and the poor. Professor Lawrence Friedman has explained that
Police brutality has a long, dishonorable history, not only on the street, but also in the station house. Here was the domain of the “third degree”—various ways of getting information out of suspects by inflicting “suffering, physical or mental.” This is rather bland phrase conceals a whole world of torture and abuse—beatings with nightsticks and rubber hoses, and sometimes worse . . . [including using a dentist to] drill[ ] into the pulp chamber of a lower rear molar in the region of a nerve [to make a suspect talk].6Lawrence Friedman, Crime and Punishment in American History 361 (1993).
The rise of American policing, in particular, cannot be traced to one specific origin point so much as large number of different influential conditions—economic, social, racial, and gendered, among others. States, both northern and southern, had laws on the books to control enslaved people, and police helped to enforce these laws specifically to protects the interest of enslavers. Police have been used to enforce laws that are racist on their face, such as anti-miscegenation and other Jim Crow laws of the past, as well as laws that read neutrally but are racist in effect. Police have also been used against workers and labor movements. Some police forces had their origins in the private the security industry and with agencies like the Pinkerton National Detective Agency, which still exists as a private security guard and detective agency, often awarded private military contact work. Private security guards and later police were employed to protect the interests of the industrialists of the Gilded Age, using weapons and physical violence to break strikes and to intimidate workers who had any inclination to do so.
Police violence has, tragically, often targeted communities of color and the poor. Public health scholars outside of legal academia have studied the relationship between police brutality and the health of people of color, and legal scholars would do well by paying greater attention. Black people are much more likely—three times as likely—than their White counterparts to die at the hands of police, while one in one thousand Black men or boys will be killed by police at current rates. The devastating effects of police and police violence, however, go far beyond the many tragic fatalities. Both physical and psychological traumas are inflicted upon a variety of marginalized communities, including “people of color; immigrants; individuals experiencing houselessness; people with disabilities”; and the queer community, among others.
Even apart from physically violent actions taken against marginalized communities, psychological violence by way of discrimination and intimidation by police have long-term effects and are associated with increased adverse mental health outcomes like “anxiety, depression, and post-traumatic stress disorder.” Other effects arise from law enforcement infiltrating and occupying communities, like the loss of social and educational opportunities due to resource officers and their activities at schools. Studies have also found greater illness associations among communities of color with high concentrations of use of force against pedestrians, while “living in areas with a heavy presence of whites where there are large racial differences in police use of force is associated with poor/fair self-rated health, high blood pressure, diabetes, and obesity.” And as psychologists have warned, “the transformation of public space through constant visual surveillance” has “psychological implications.”
II. Law Enforcement Aggravates the Current Public Health Crisis
There are multiples avenues by which law enforcement may act as a disease vector in the midst of the global COVID-19 pandemic. The first is individual—looking to the actions of police officers as individuals that either serve to halt or, in many cases, continue to spread the virus. The second may be thought of in terms of carceral institutions. Law enforcement does not only apprehend individuals but often transports them to carceral institutions where the epidemic is currently running rampant; COVID spreads more rapidly in jails and prisons than it does on that most infamous of super-spreader structures, the cruise ship.
This Essay focuses on law enforcement in aggregate, as an institution, and its interactions with the public and its occupying of communities of color, as well as those of other marginalized segments of the population. This Part also explores some of the tactics that law enforcement have employed against participants in recent protests against long standing epidemics of police violence that came to the fore after numerous incidents of police violence and killings of Black men and women earlier this year such as George Floyd, Breonna Taylor, and Ahmaud Arbery.
As outlined in Part I, above, health disparities linked to over-policing and close, continued contact with law-enforcement have been linked to disproportionate, adverse health outcomes in minority and poor neighborhoods. This is in addition to a number of other health disparities that adversely affect minorities in the United States, which often lead to chronic conditions and premature death.
This country has seen a protracted year of protest against police violence the likes of which have not been seen in decades. Likely contributing to the greater cognizance of these issues and the related greater civic engagement and protest that has followed is the widespread distribution of videos captured by bystanders who have stood witness and documented police violence, usually by way of cellphone camera. People throughout the country have had access to records of police killings and brutality; videos of killings like those of not only George Floyd but also Rayshard Brooks, Daniel Prude, and the shooting of Jacob Blake are now available nearly instantaneously to after upload to anyone who wishes to view them. They have also quickly catalyzed widespread and understandable protests.
These protests began against the backdrop of a then-burgeoning COVID-19 epidemic, with many communities attempting to fashion some sort of response in the absence of federal leadership. Some jurisdictions have approached the issue of implementing mask and social distancing measures by aggressively policing populations, arresting individuals for failing to maintain social distancing, failing to wear cloth masks, or flouting quarantine orders. In New York City, as of May 18, 2020, 125 people were arrested for coronavirus-related offenses, while 374 summonses were issued: The vast majority of those arrested or receiving summonses were either Black or Latinx.
Such aggressive policing tactics to enforce practices such as social distancing and wearing masks are especially ironic given that they do nothing whatsoever to facilitate public health. Not only are people faced with the threat of being sent to carceral institutions where conditions allow COVID-19 to run rampant, but the police themselves serve as a vector by which the disease spreads. Police interact very closely and physically in the communities they occupy, often rendering their own infection rates much higher than their jurisdiction’s general population. In turn, because they are more concentrated in both minority and lower-SES neighborhoods, those same officers pose a greater risk, once more, to those communities. Unsurprisingly, racial disparities have also been found in the policing and enforcement of masking, social distancing, and other COVID-related regulations.
While there was concern that this year’s protests would cause a spike in COVID transmission, with some like Los Angeles Mayor Eric Garcetti opining that they could turn into super-spreader events and experts like Robert Redfield worrying that they could be “seeding events”, there has been no evidence to show that the protest have caused an increased in transmission rates. Why did this not happen as some predicted? The protests were outdoors and exposed to sun and wind, and most participants were moving and complying with masking regulations. Unlike other outdoors gatherings or events, like a baseball game or people enjoying a holiday on a beach, there were not the same sorts of shared facilities like bathrooms or interactions that might happen at restaurants or with other vendors during the protests.
What did present a public health threat at the protests, however? Police, of course. On social media platforms like Twitter, people across the country have documented tactics by the police that are not only dangerous on their faces but could aggravate COVID transmission. Some examples follow:
- Police officers blocking movement on the Manhattan Bridge, causing greater crowding and a lack of social distancing:
- Police have used tear gas against protestors across the country, which causes respiratory distress. The New York Times’ Twitter account shared video of protestors being gassed while trapped on the side of a freeway with no place to disperse in Philadephia.
- Law enforcement have engaged in unsafe COVID practices outside of the protests, as well. Cops have been witnessed flouting masking guidelines around the country: In New York, the police department itself has threatened discipline against those officers who refuse to comply with state-mandated face masking. A sheriff in Florida ordered that deputies not wear face masks while on duty unless they were working in schools, hospitals, jails, or courthouses, going so far as to ban masks for those visiting the department’s offices. Though officers in the State of Washington have been advised to wear masks when interacting with the public, officers in Spokane have flouted the rule, arguing vaguely that “hazards” may arise from their use. Police have also been recorded tackling minority youth for not wearing masks or social distancing while failing to do so themselves.
The flouting of public health recommendations and measures amounts to yet further violence against minority communities. Police training and culture have inculcated in police the notion that the places that such communities live in are “war zones.” As a result, the police are given to acting out based on toxic hypermasculinity as well as racial and other biases. It is, perhaps, not surprising that protests and the pandemic have created yet another circumstance in which minority communities, especially Black ones, are again over-policed and underprotected.
III. Regulating Police as A Potential Health Hazard
After the police killing George Floyd in Minneapolis, there was some discussion as to whether the resulting protests would spark an uptick in COVID-19 transmission, as discussed above. This inquiry, however, overlooked a deeper question: Why would people feel the need to protest even in the midst of a global pandemic caused by a novel virus? That protestors would face such a threat and would still choose to join others in protest against police violence did not say anything about their disregard for their own safety and welfare and those around them, but rather is a profound commentary on the way police operate and are perceived by minority communities and their allies: Police present a greater danger than COVID-19.
Given the deleterious effects of policing on minority communities and the dangerous actions many cops have taken that have spread the illness, counties, cities, and towns with local law enforcement agencies should start conceiving of the use of police and police force as the public health hazard it truly is. The regulation of public health is one of many police powers that have been reserved to the states under the Tenth Amendment. These powers are rather broad, and courts have been deferential to states and their political subdivisions regarding the means used to assure public health and safety.739A Corpus Juris Secundum Health & Environment § 5 (2020). “Police power” of course does not refer to “criminal enforcement procedures; rather this authority establishes the means by which communities may enforce civil self-protection rules.” These measures could include “isolation and quarantine, health, and inspection laws to interrupt or prevent the spread of disease.” While quarantines are often the first response in an effort to halt the spread of illness in the face of a communicable disease, other measures, such as the closure of schools, both primary and university level, businesses, parks, public transit, and government offices and services have been used to limit COVID’s spread. The same should be done with police forces.
During the pandemic, police have presented an even greater danger than they usually do to minority communities and their allies. By reframing police as a potential public health hazard, states, cities, counties, and towns may have yet another legal and administrative tool by which to limit the inimical effects of over-policing and, potentially, the political powers of police departments themselves and their associated unions and professional associations. The same sorts of risk calculation that go into medical and public health decision-making should also, finally, be applied to policing. When considering the prescription of medications, for example, “focusing solely on a benefit without considering the downsides can be deceptive, even dangerous.” It has become obvious that, under many circumstances, the risks and dangers of employing police and placing them in communities that they have effectively occupied and kept under siege have rendered police more harmful than helpful, and should lead to renewed assessments with regard to their limitation and defunding.
Police have long presented a public health risk to Black, Brown, LGBTQ+ and other communities. Over-policing and even constant surveillance by police in minority neighborhoods has been shown to lead to adverse health outcomes and increased rates of PTSD, heart disease, and other maladies. These risks have only become more salient with the onset of the COVID-19 pandemic, which appears set to wear on with no end in sight. Through their own unsafe and abusive tactics and their refusal to comply with public health recommendations, police have rendered themselves literal disease vectors and they should be treated and regarded as such. This Essay examines only one narrow aspect of their role as vectors, specifically focusing on the pandemic and on law enforcement agencies and culture; future articles will expand on this role while also examining individual officer behavior and the role of carceral institutions.
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Maybell Romero is Associate Professor at Northern Illinois University College of Law. She thanks Marissa Jackson Sow, Kim Ricardo, Michael S. Sinha, and commentators at the 2020 Northern Illinois University College of Law Chicagoland Junior Scholars Conference.
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