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COVID-19 face mask mandates go unenforced by police under pressure

Kristine Phillips USA TODAY

Published 1:17 PM EDT Sep 16, 2020

WASHINGTON – In Florida, the Miami-Dade Police Department has cited hundreds of businesses and individuals for not following face mask rules, and the county has collected nearly $300,000 in fines. 

Many other cities have taken a more lax approach.

In Austin, Texas, fines can be as high as $2,000 per day for individuals, although the police department rarely levies them.  Educating the public, not punishing them, is the focus, the department said.

As the COVID-19 death toll nears 200,000 in the USA, more than 30 governors have issued statewide mask mandates, and city or county ordinances fill in where governors haven’t in Florida, Arizona, Tennessee and others. 

How these rules are enforced varies across localities. 

At a time of intense scrutiny on law enforcement amid nationwide protests against police brutality and calls to defund the police, many department leaders said that punishing people for not wearing masks – which have come to symbolize the pandemic’s political divide – would put officers at the center of yet another fraught controversy.

“With all the national issues right now with law enforcement … do we really need police officers handing out tickets for people not wearing a face mask? … Do we really want police officers enforcing health issues?” said Steve Casstevens, president of the International Association of Chiefs of Police and chief of the Buffalo Grove Police Department in Illinois. 

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Jason Johnson, president of the Law Enforcement Legal Defense Fund, cited an incident in Philadelphia in April in which police officers were shown on video dragging a man off a bus after he refused to wear a face mask. The incident became a national story and placed law enforcement in yet another unflattering spotlight.

“The last thing any law enforcement leader wants is to have an officer involved in a confrontation that started with someone not wearing a mask,” said Johnson, former deputy commissioner for the Baltimore Police Department. 

Lindsay Wiley, who teaches public health law at American University, said it’s “improper” to rely on police to enforce public health requirements.

“It could be counterproductive and could create a situation where there’s an escalation of the conflict,” she said. “When public health officials rely on policing, I think that’s problematic.”

Politics at play?

Often, the prevailing politics in a jurisdiction dictates how aggressively face mask requirements are enforced and followed – or whether they’re enforced at all, Johnson said.

“I do see it as problematic,” Johnson said about the politicization of face masks. “The politics and the jurisdiction drives the culture and the approach that law enforcement takes.”

A Pew Research Center survey in June showed more Democrats than Republicans embrace face mask requirements. The survey found that 76% of Democrats or those who lean Democratic wear masks all or most of the time, compared with 53% of Republicans. Conservative Republicans are among the least likely to say they have worn a mask – 49% say they have done so. That number is 60% among moderate Republicans. 

Last month, a Florida sheriff forbade his deputies to wear masks on duty despite an ordinance requiring face coverings. Marion County Sheriff Billy Woods, a Republican, told The New York Times he isn’t persuaded by the scientific consensus on face masks.

For many law enforcement agencies, enforcing face mask rules risks tangling with potentially controversial civil liberty issues.

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In Texas, where the governor issued a statewide mask order, the police department in the Dallas suburb of Grand Prairie has not cited anyone. The department is largely supported by its citizens and has escaped the civil unrest riling the country, Police Chief Daniel Scesney said. Enforcing mask requirements could alienate members of the public who see the mandates as unwarranted encroachments.

“Many of our citizens feel as though their civil liberties are being infringed upon. Others feel as though their civil liberties are being infringed upon by others not wearing a mask. We’re stuck in the middle trying to mediate that,” Scesney said.

In rural Bay Minette, Alabama, the police department asked the public in a Facebook post in July to be responsible for their own actions. “We as law enforcement officers are not the mask or social distancing police,” the department said.

There have been dozens of legal challenges that sought to render face mask requirements unconstitutional, although courts have consistently held that such mandates do not violate individual rights, Wiley said.

Governors defied

Several law enforcement agencies in Michigan, where the governor made face mask violations a misdemeanor, pushed back and said they will not enforce the rule, citing staffing issues.

“We don’t have the resources to go out and check businesses to make sure people are wearing masks,” said Sheriff Anthony Wickersham in Macomb County, just outside of Detroit.

When deputies do respond to calls about mask violations, such as at house parties or businesses, they have focused more on talking to people instead of arresting or citing them, Wickersham said.

In Arenac County, Michigan, the population doubles in the summer, and the 911 call volume triples, leaving deputies with no time or resources to spend on responding to face mask violations, Sheriff James Mosciski said in July in a Facebook post that referred people to the state attorney general. 

Others said they simply have no authority to enforce the rules.

In Montgomery County, Texas, just outside Houston, the sheriff’s office said in a statement in July that it will “take NO actions” to enforce the governor’s order because it doesn’t give them powers to arrest or detain. 

The order could expose the agency to lawsuits accusing authorities of wrongful detention because stopping people who aren’t wearing masks could be construed as detaining them, the office said.

Casstevens, the International Association of Police Chiefs president, said he faces the same issues in Buffalo Grove, Illinois. Although the governor issued an executive order mandating face masks, police officers have no authority to enforce it unless municipalities pass their own ordinances, he said.

Having to decide whether to punish people for disobeying laws that have more to do with public health than with police’s traditional public safety roles is a tricky position many agencies don’t want to be in, said Chuck Wexler, executive director of the Police Executive Research Forum.

“If you put that in the context of all the issues involving police, one of the things that you’ve heard is that police are being asked to do too many things,” Wexler said. “This is a good example, where the reason police are asked to do this is because no one knows who to call, so it ends up being a police responsibility, when it clearly should be a public health question, not a public safety issue.”

Wiley, the public health expert, agreed that police involvement “may not be an appropriate or effective option.”

“That has a lot of disadvantages. It can drive behavior underground, erode public trust, lead to discriminatory enforcement practices,” Wiley said, citing incidents in which New York City Police Department officers were accused of arresting people in predominantly black and Hispanic neighborhoods for violating social distancing rules, while not using the same aggressive tactics in mostly white areas.

Except for cases in which a person refuses to leave a place of business and is belligerent, Wiley would not have police get involved. 

“I think the education should really be coming from public health authorities,” she said.

In Virginia, for example, the state Health Department, not law enforcement agencies, is in charge of enforcing the governor’s face mask order.

Education vs. punishment

For many police departments, fining someone over face mask violations is the last resort.

The Austin Police Department directed its officers to first cordially talk to people when they receive calls from business owners about customers who refuse to wear masks. 

“Our protocol is more about education and awareness than enforcement. Then we ask for voluntary compliance, then we issue a warning,” Lt. Kenneth Murphy said. “It would take somebody going to the same (business) everyday and not abiding by the rules to get to the citation step.”

Of the three citations the Police Department has issued, two were at construction sites where workers were not social distancing and wearing masks, Murphy said. 

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Many times, enforcing the rules isn’t possible. Because calls from businesses about face mask violations are low priority, violators have often left by the time police are able to show up, Murphy said.

The Miami-Dade Police Department has taken on a harder stance since county officials unanimously approved an ordinance making failure to obey mask orders a civil offense. Business owners can get fined $500 and individuals $100. 

A department spokesman said police officers have issued 577 citations against businesses and 339 against individuals. Miami-Dade County has collected about $292,000 in fines, according to the clerk’s office. 

For the most part, police departments, particularly in major cities, have avoided fines and arrests, Wexler said.

“I think the key word is educate, encourage as opposed to enforce,” Wexler said. “People are very anxious today. They’ve lost their jobs, they could have family members who are sick. The last thing they need is for police to enforce a fine or to come off as overly insensitive.”

Published 1:17 PM EDT Sep 16, 2020

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