Opinion | Bruce Brown: Employing the justice system to protect public health during a pandemic should be our last resort
Fifth Judicial District attorney
The COVID-19 pandemic has created a world-wide public health crisis that has upended our lives and introduced us to a “new normal” that curtails our freedom and forces us to make difficult decisions.
The U.S. Constitution is at the center of the debate over freedom versus public health, and if we work together and use common sense, we can protect our families and the Constitution. As previous challenges have taught us, there are ways to do what is necessary without infringing on citizens’ rights.
For example, after Sept. 11, 2001, we reached a consensus as a nation that we needed enhanced security to ensure that flying was safe. We sacrificed some of our freedom to protect the public health and safety through changes to our laws and voluntary relinquishment of our rights.
COVID-19 presents many of the same challenges, and to protect public health, we must make wise decisions. We have to balance our freedom of movement with our safety and the safety of others, particularly those health care workers who are trying to heal and protect us. As a society, we must prioritize containing the spread of the virus as we provide access to medical care for those who become infected.
As a prosecutor, I am concerned about enforcing public health orders that criminalize driving in counties for nonresidents, entering stores without face coverings or having a beer in a pub with a friend. The truth is that using law enforcement officers to change behaviors that protect public health is inefficient and risks impinging on civil rights. A turn to using criminal courts is a viable alternative only when all other avenues to encourage compliance with public health orders have been exhausted.
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The COVID-19 challenge we face requires building consensus through effective leadership. Rather than threaten jail time and fines, we must persuade people that altering their behavior will save lives. The public health experts tell us that social distancing, face masks and avoiding indoor crowds will save lives. We should model that behavior and encourage others to follow suit.
Many residents are on board with staying home as shown by a Washington Post analysis of cellphone data collected by SafeGraph and published in May. The study found that from April 1-7, U.S. residents spent 93% of their time at home, up from the early March averages of roughly 70%, despite many states not observing stay-at-home orders.
Thankfully, there are just a few occasions when we must make life or death decisions like drafting a health directive or a last will and testament. Unfortunately, COVID-19 is forcing us to make a similar decision by deciding whether to curtail our freedom of movement to protect ourselves and others.
We live in extraordinary times. President Donald Trump proclaims that we are at war with an invisible enemy but then sends mixed messages about how to battle that enemy. Protecting public health has needlessly become a partisan issue that is dividing the nation and pressuring prosecutors and law enforcement to uphold executive orders that are impractical and unenforceable without the consensus of the people.
This moment calls for national leadership to convince the people of our nation that the best course of action is to heed the advice of public health professionals who tell us that social distancing, wearing face masks and reducing our exposure to crowds is the best way to protect ourselves and others.
This advice is more important than ever as we enter the summer and autumn that could bring a second wave of COVID-19. We need our elected leaders to make the case that voluntary compliance is in the national interest, that protecting our health and the health of our neighbors is the patriotic thing to do. Asking the courts to adjudicate what is at its root a matter of consensus, not law, invites conflict, recrimination and potential unrest.
Using the judicial system to enforce public health measures would be messy and will raise troubling constitutional issues. The courts should be used only after other efforts at resolution have failed.
Bruce Brown is the district attorney for Colorado’s Fifth Judicial District, consisting of Clear Creek, Eagle, Lake and Summit counties. He can be reached at firstname.lastname@example.org.
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