7 August 2020 Blog Post: Mask and Punishment

Yesterday, the City of Santa Monica announced that it will begin enforcing its face covering order doing so through “targeted enforcement.” According to the mandate, “a face covering must be visible and ready to be immediately put on whenever a moving person approaches within 30 feet of a non-household member.”
 
I was curious if there was evidence, either current or historical, for such a punitive approach. Readers of my posts will know that threatened NON-enforcement of public health mandates by law enforcement has had disastrous consequences. Both Riverside County (Sheriff Chad Bianco) and Orange County (Sheriff Don Barnes) were early voices of dissent regarding physical distancing and mask mandates. For instance, on June 8th, Sheriff Barnes announced his non-enforcement policy; cases in Orange County skyrocketed nearly 5 fold (Figure 1 below). He has since backtracked saying said he might punish people for “egregious violations” of the statewide mask order but will continue to opt for “education first” policy.
But arguing the negative, does not make the positive true. And, in some respects, I agree with Sheriff Barnes updated policy which emphasizes voluntary compliance through education.
 
“I want to make clear that I support wearing face coverings in accordance with recommendations by our public health officials,” Barnes wrote in a letter to Governor Newsom. And, further, “punitive escalated enforcement is not practical and would consume resources needed to handle our daily calls for service and work to address violations of criminal law. Additionally the issuance of new fines during this time of economic uncertainty places undue stresses on the public and could exacerbate peaceful law enforcement interaction into a volatile moment.”
 
Historically, the use of law enforcement modalities to protect the public health has occurred in the US as early as the 1770s, when Philadelphia was isolated to control the threat of yellow fever. President George Washington said, “When any great object is in view, the popular mind is roused into expectation, and prepared to make sacrifices of both ease and property.”
 
Galva, Atchinson and Levey in their 2005 article “Public Health Strategy and the Police Powers of the State” note that “the ultimate goal of public health law should be the reinforcement of public health on the basis of historic principles of police power allowing broad but temporary administrative activities that are needed to face an impending emergency when the situation warrants.” The key terms here are temporary and when the situation warrants.
 
More specifically, they outline recommended steps in this direction to include:
(1) reinforcing the administrative capability for the issuance of robustly evidence-based public health orders properly issued under authority of law;
(2) removing all judicial pre-intervention review measures of such orders while limiting review of public health orders to the post-execution phase;
(3) subjecting all public health orders to automatic expiration terms and making renewal of the orders contingent on the same robust degree of evidence allowing the original order.
 
So it is at this point that I depart from Santa Monica, Manhattan Beach, West Hollywood and Beverly Hills in their fines for no mask mandates. Why? They are two months late.
 
Re-reading step #3 above, these orders were not issued with an automatic expiration date. And, further, there appears to be no compelling reason for issuing them now as case rates appear to have plateaued in Los Angeles County (Figure 2 below). These mandates would have been most effectively issues in early June when rates began to climb exponentially.
Instead, public health efforts should be redirected toward the County’s absolutely abysmal contact tracing program. To date, 142,588 cases have been assigned to this task force. Only 64.1% have completed aninterview. For the most recent 7 day period, that percentage has dropped to 59.6%.
 
Masks are important – particularly indoors and when physical distancing is not possible. But tracing the contacts of known cases is a far more critical and effective modality by which to stop the spread of COVID-19. Adding layers of enforcement when the basics of test, trace and isolate are being fumbled by our public health officials makes little practical sense.
 

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