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Back to Archives | Back to February 2006 Contents 

QUARANTINES: The Law Enforcement Role



hould the United States, or any por­tion of it, have to resort to large-scale quarantines to contain the spread of dis­ease, it seems certain that state and local police will be deeply involved in any such effort. The military is accomplished at lo­gistical undertakings and may be best suited for such things as the delivery of food, water, medical supplies and related items. Although the military and other federal entities such as FEMA will pre­sumably play a major part in any broad quarantine program, state and local law enforcement agencies will play a critical role as well, particularly in the early stages of the emergency while other resources are being mobilized and brought on line. This role will present a monumental challenge to state and local law enforcement agencies, for they will face daunting personnel and logistical problems as they strive to fulfill the duties and responsibilities placed upon them by federal, state, and local law.

Indeed, quarantines of any signifi­cance are outside the experience of law enforcement agencies in the United States. The last large scale quarantine in the United States was imposed almost 90 years ago during the 1918 Spanish flu pandemic. Internationally, the SARS epidemic, or severe acute respiratory syn­drome, was confronted by quarantines in China, Hong Kong, and Singapore. There, "police surrounded and cordoned off buildings, set up checkpoints on roads into and out of areas where the disease had been discovered, installed Web cameras in people's homes, blocked off whole villages, and even threatened to execute anyone who broke quarantine."1 The less draconian response in Canada, in which people were asked to voluntarily quarantine themselves in their homes while being supplied with essential supplies, was generally effective and would be more in line with any quar­antine that may be imposed in the United States. Nonetheless, President George Bush's suggestion in early October 2005 that the military may be used to enforce a quarantine opens the door to speculation about the tactics and operational protocols that may be under consideration at the federal level.

The president is not the only high rank­ing authority discussing the potential use of quarantines. Julie Gerberding, director of the Centers for Disease Control and Pre­vention (CDC), on October 5, 2005 re­marked in an interview that the military or National Guard might be summoned to maintain civil order in the "context of scarce resources or an overwhelming epi-demic."2 The mention of scarce resources was brought into greater relief on Novem­ber 20, 2005, when Mike Leavitt, secretary of the Department of Health and Human Services (DHHS), declared that the United States is unprepared for the next flu pan­demic, lacking the manufacturing capacity to provide 300 million doses of a vaccine for three to five more years.

One of the problems with discussions of quarantines is definition of the term. In the case of the president's statement, did he mean, for example, "gathering those exposed to flu in a single location and forcing them to stay there? Did he mean isolating them in their homes? Cordoning off whole communities where cases crop up? Not all quarantines are alike: each carries its own risks and benefits."3 Not all communicable diseases are equally amenable to control by means of quaran­tine. In its traditional sense and the man­ner in which [the summer/fall 2005] issue of Policy Review speaks of "quarantine," the term means "the compulsory physical separation, including restriction of move­ment, of populations or groups of healthy people who have been potentially ex­posed to a contagious disease, or to efforts to segregate these persons within speci­fied geographic areas."4 Quarantine is not an interchangeable term with "isolation," which means the separation and confine­ment of individuals who are suspected of being infected so that they may not trans­mit the disease to others. Attempts to control contagious diseases may use one or both of these approaches but it is important to separate the meaning of these terms and the approaches that may be required to enforce them.

Careful, detailed, and well-informed planning is essential if state and local agencies are to fulfill this extremely diffi­cult yet critical role. Speaking to this point and the potential for a bird flu pandemic, Dr. Anthony Fauci, director of the Nation­al Institute of Allergy and Infectious Dis­eases (NIAID), a division of the National Institutes of Health (NIH), said "We can't put a number on how probable that's [a pandemic] going to be. It's a low proba­bility. When the consequences are unimaginable, you must assume the worst-case scenario."5

Planning is certainly essential, for ei­ther a quarantine or isolation in response to a flu epidemic or a biological attack. There are several aspects of a potential quarantine scenario that local police exec­utives, managers, and supervisors will have to consider as they make plans for such an eventuality.

Legal Authority
The first issue that local law enforce­ment planners must address is the ques­tion of their legal authority in a quaran­tine situation.

Throughout U.S. history, a conflict has existed between the Constitution's guar­antees of personal and property rights and the power of the state to act to protect public health. Although the courts have historically given deference to the state's authority in such matters, many of these cases have involved the quarantine of ani­mals, fowl, or agricultural products. Few of these court decisions have addressed the issue of human quarantine, and those that do often have tended to limit the state's power rather than enhancing or clarifying it.6

But it is probable that in the event of a sig­nificant emergency requiring quarantine of portions of an area's population, most courts would find authority for such actions in both federal and state constitutions.

Federal law, in 42 U.S.C. 264(a), gives the surgeon general the power to act to con­trol the spread of communicable disease:

The Surgeon General, with the approval of the Secretary, is authorized to make and en­force such regulations as in his judgment are necessary to prevent the introduction, trans­mission, or spread of communicable diseases from foreign countries into the States or pos­sessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such in­spection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminat­ed as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

Other subsections of 42 U.S.C. 264 pro­vide for the apprehension, detention, or conditional release of individuals, the ap­prehension and examination of individuals believed to be infected, and other mea­sures. As a result of the emergent concern about the threat of a pandemic caused by the avian flu virus, executive orders have recently been issued to supplement this law and to expand the power of the federal gov­ernment to deal with such an eventuality.7

This concern is fully justified. The flu pandemic of 1918-1919 killed 50 million people worldwide, with a death rate some 50 times that of the usual seasonal influenza, and it is considered entirely possible that the current development of avian flu could rival if not exceed the scope of the 1918-1919 outbreak.8

Further, it must be recognized that a bioterror attack might result in a situation at least as deadly as, if not more deadly than, these natural pandemics.

Because of these various concerns, the federal government, specifically the CDC, is preparing plans for dealing with dis­ease emergencies in the United States. When finalized, these plans will almost certainly include measures for imposing and enforcing quarantines to limit the spread of the disease.

It appears that these various federal measures envision that the federal gov­ernment will take a lead role in any signif­icant quarantine activity in the United States. But this should not lead local law enforcement officials to believe they need not prepare for a quarantine situation in their own jurisdictions. Notwithstanding federal statutes, regulations, or proclama­tions, local authorities (that is, local public health officials and law enforcement agencies) will probably be the first re­sponders to any outbreak. Furthermore, even after federal agencies (probably in­cluding federal troops or National Guard units) have moved in, local law enforce­ment will have to continue to act in coop­eration with such agencies or forces. Therefore, in the current absence of any federal executive or legislative action that would completely exclude local police from all responsibility in a quarantine sce­nario, this issue of Policy Review will focus on state law and the problems that may face local law enforcement in quar­antine situations.

State Legislation. There is now con­siderable legislation on the general sub­ject of quarantines, and although many such state laws deal with the quarantine of animals, poultry, or agricultural prod­ucts, most states today have laws related to the quarantine of human beings.9 Historically, these statutes have contem­plated only quarantine in the event of nat­ural outbreaks of disease, but recently some statutes have been enacted or amended to address specifically the sub­ject of human quarantine in the event of the use by terrorists of biological agents as a weapon.10

Nevertheless, most state quarantine statutes relate only to the power of public health officials, such as state or local health departments, to act to control disease. And although they sometimes indicate that pub­lic health officials may call upon other agencies, such as the police, for assistance, few statutes provide specific guidance con­cerning police authority and procedures in the event of a quarantine. This lack of uni­formity and specificity presents a signifi­cant problem for law enforcement.

Since the events of September 11, ef­forts have been made to improve the state legislative situation. In 2001 a public health law center drafted the Model State Emergency Health Powers Act11 and fol­lowed it in 2003 with the Model State Pub­lic Health Act.12 Both of these model acts were designed to help states enact legisla­tion to deal with public health emergen­cies. Some states have enacted portions of one or both of these model acts. One source reports that as of June 30, 2005, 32 states had introduced a total of 78 bills or resolutions involving portions of the Model State Public Health Act, and that, of these 78, 30 have been passed into law.13 In addition, some states, after declining to adopt the model act proposals, have en­acted their own legislation.

Many of these newer statutes are still general in nature and do not relate specifi­cally to law enforcement involvement in the quarantine effort. But a few have pro­vided some degree of specific authority for law enforcement action in quarantine situations. For example, in 2005 Hawaii enacted S.B. 781, which provides that po­lice officers and sheriffs have the authori­ty and duty to enforce quarantine orders when required by the state's department of health.14 Since 2001 many other states have enacted or amended legislation for the purpose of clarifying their public health laws and improving the potential response to public health emergencies.15

The language and coverage of these numerous state enactments have varied widely, creating what amounts to a patch­work quilt of legislation, much of it of lit­tle specific assistance to law enforcement agencies as they seek to define their own authority in a quarantine situation. There­fore, each law enforcement agency should check its state's laws to determine what authority, if any, the legislature of its state has provided to law enforcement to act in quarantine situations.

Legislative Action Required. Because of the lack of uniformity and even greater lack of specificity in the state laws, the law enforcement community should commu­nicate to political and legislative leaders the need for detailed and specific legisla­tive authority governing police involve­ment in quarantine efforts. Existing leg­islative quarantine schemes leave police without adequate guidance and without adequate protection from liability issues that may arise as the result of quarantine enforcement. Some state and local leaders may not appreciate the need for specific authorization for police action, so com­munication of the needs of law enforce­ment agencies to political and legislative leaders is vital.

Planning Issues
Once a law enforcement agency has determined its legal authority to act to en­force quarantine, planning for the use of that authority becomes a matter of the highest priority.

For example, the department must first determine what resources it will need be­fore it can effectively deal with a quarantine order, and then ascertain if those resources are available. Enforcement of a quarantine order, even for a short time, will require per­sonnel, time, and money. Many local police departments lack the capacity to maintain a major quarantine operation while continu­ing to perform other police duties.

In this connection, department execu­tives must recognize that their personnel resources may be affected because many of their own employees and their families probably will be affected by the emergency. This may result in absenteeism and will certainly impose mental and physical strain on the department's employees, further re­ducing the department's already-strained operational capacity.

In addition, police executives must con­sider the nature and extent of the enforce­ment measures their agencies will employ. The quarantine of a large number of human beings, many of whom will be unwilling to abide by quarantine regulations, will pre­sent problems for the department. The SARS epidemic in Canada presented prob­lems related to communicating the need for voluntary quarantine to affected groups. While it is difficult to draw upon history in this case to present potential scenarios of citizen response, it is possible that the gen­eral public may react as they have in the past to the use of quarantines.

A case in point is found in Muncie In­diana where an outbreak of smallpox oc­curred in 1893. Public health authorities had a great deal of difficulty convincing citizens that severe restrictions were nec­essary to contain the disease. Reportedly, "many infected citizens were isolated under home detention and their presum­ably uninfected family members were quarantined with them. Entire neighbor­hoods were quarantined by patrolling armed guards; violators were incarcerat­ed. Mandatory vaccination was institut­ed. Violence broke out as some civilians resisted the public health impositions, and several public officials were shot. Public health officials ultimately conclud­ed that their quarantine actions had been 'an utter failure'" as the public had repeat­edly defied their quarantine efforts.16

Another lesson can be learned from a quarantine instituted in the Chinese neighborhood of San Francisco, Califor­nia, in 1900 after plague was diagnosed in several residents. The boundaries of the quarantine were later questioned as being arbitrary and disproportionate in that they had imposed severe economic dam­age to the Chinese business community. A federal court found the quarantine to be unconstitutional based on the capricious manner in which it was imposed.

History also shows that some will panic, and some will seek to flee the area in viola­tion of the quarantine. In other cases, indi­viduals will attempt to enter the quaran­tined area to assist or otherwise be with their families. What degree of force can or should the department employ in prevent­ing violations or apprehending violators? Can deadly force be used legally, and if so, will officers follow such orders or refuse to obey them on ethical grounds? Is the de­partment prepared to justify the use of such force and meet the legal challenges and po­tential liability that will almost certainly fol­low? These and many other questions must be addressed.

Every police department, regardless of size, will require preparation and training. Training must be carried out well before any actual emergency arises. In view of the threat involved, police leaders must take ac­tion without delay to plan and execute the training program and to ensure that the nec­essary logistical resources are available.

Preparation
A detailed operational plan must be pre­pared, one that is as specific as possible yet flexible enough to take into account the many different scenarios that may be en­countered. As it is impossible to foresee the nature, location, and extent of the possible types of emergencies, all contingencies must be accounted for. Among other things, provision must be made for the fol­lowing functions.

Deployment of Personnel and Equipment. The department must have a viable plan for the deployment of its resources in a quarantine scenario. This must include not only a realistic evaluation of the assets available but also the recognition of the possibility that personnel resources may be reduced by the effects of the emergency on the department's own employees. Since de­partment employees, particularly those in the field, will be exposed to the disease that has triggered the quarantine, arrangements must be made for (1) protection of person­nel, (such as the availability and suitability of personal protective equipment), (2) mainte­nance of personnel in the field for extended periods, (3) replacement of personnel who themselves become victims, (4) provisions for force protection against persons who would use violence against police to escape or compromise the quarantine and (5) provi­sions for providing assistance to and com­munication with the families of police offi­cers who may be left without the contact and support of their family member while serv­ing the public interest.

To these ends, well-thought-out plans for rotation of field personnel and the pro­vision of necessary equipment, ranging from protective gear to vehicles to supplies of food and water for on-duty personnel, are essential.

Command and Control. The depart­ment must maintain close control of the quarantine operation. Experience shows that officers in the field, confronted by a disaster unprecedented in their (or any­one else's) experience, require superviso­ry guidance if they are to perform effectively. Allocation of supervisory personnel to the field is vital, and provision must be made for maintaining close contact be­tween the field supervisors and the em­ployees and units they are supervising, for these may be widely dispersed if the quarantine area is large and department's resources are stretched thin.

Communications. Recent events have shown the absolute necessity of maintain­ing communications capability under ex­treme conditions. Although disease does not directly affect communications equip­ment, it may seriously affect dispatchers and others who are essential to the contin­ued functioning of communications capa­bilities. In addition, it must be remembered that the quarantine itself may arise out of a broader emergency situation, such as a ter­rorist attack or a natural disaster, that may result in damage to communications equip­ment. Such damage could degrade the communications network and cripple the ability of command personnel to communi­cate with officers in the field, or of officers to communicate among themselves, with resultant loss of ability to manage the quar­antine situation.

Initiation. It must be clearly deter­mined who is to initiate the quarantine measures. Presumably this will come from public health officials, either directly or along the political chain of command. Statutes generally provide public health officials with the authority to initiate quarantine measures and may specify under what conditions and to what extent quarantines may be imposed. It is incum­bent upon police executives to under­stand who has the authority to initiate a quarantine order and the exact extent of that authority. Here, close liaison with local and state public health officials is necessary to avoid confusion and delay in the initial stages of the quarantine.

Cooperation with Other Agencies. Co­operation with other agencies, federal, state and local, will be essential. Protocols for this cooperation must be established in ad­vance between police, fire services, EMS, and other related responders. For example, if mutual assistance agreements between neighboring local jurisdictions do not al­ready exist, they should be created and, when the occasion arises, implemented without delay. As the recent experience with the Gulf Coast hurricanes illustrates, many legal and operational difficulties can arise to interfere with interagency coopera­tion, and these difficulties should be antici­pated and provided for.

One complicating aspect of this problem is the possibility, if not probability, that a large quarantine effort will require the em­ployment of National Guard or federal mili­tary assets. Here the issues of command and control, communication, and delineation of responsibility loom large and must be antici­pated if the quarantine effort is to be carried out effectively.

Public Cooperation. It is unlikely that any quarantine operation will succeed if it is not supported by a majority of the inhabi­tants of the area. Widespread resistance to quarantine measures, as previously men­tioned, perhaps including panic and mass exodus from the threatened area, is a distinct possibility. A significant lack of public acqui­escence to quarantine measures will almost certainly defeat the efforts of even the best-planned and competently executed quaran­tine operation. Therefore, police depart­ments, in conjunction with public health authorities, should take the following steps:

  • Educate the public about the possible necessity of quarantine and the mea­sures that will be taken.

  • Enlist the public's aid in (1) complying with quarantine regulations and, if possible, (2) assisting the department in carrying out a successful quaran­tine.

  • Inform the public of the consequences of quarantine violations, both for the violators and for those who may suffer as the result of the violation.

These steps should be initiated before any actual emergency arises, and should be given top priority in the overall departmental plan.

Facilities for Detention of Quarantine Violators and Looters. Serious disruption of normal procedures may occur during a quarantine emergency, either because of the quarantine itself or because of the broader event that leads to the quarantine. For example, return of apprehended quar­antine violators to the original quarantine area may not be feasible, and provision must be made not only for such persons, but also for the detention of other types of violators, such as looters, if available per­sonnel resources do not permit processing in the normal manner. Crowd control must be anticipated if persons choose to protest the quarantine actions, attempt to overrun emergency medical facilities or violently compete for scarce vaccines, medical treat­ment, food or supplies.

Treatment of Medical Contingencies. Police departments must make arrange­ments in advance for the transportation and treatment of those who experience medical emergencies during the quaran­tine. Some of those quarantined will be­come ill. Facilities must be available for treatment of such emergencies, and the means and manpower to transport ill per­sons, or to summon other agencies to do so, must be available. Obviously, these mea­sures are primarily the responsibility of public health agencies, health care providers and facilities, and so on, but po­lice need to be aware of the existence, loca­tion, and nature of the medical assistance available during the quarantine. Again, planning and close cooperation are crucial.

Training
One indispensable aspect of quarantine preparation by police departments is training. Because a widespread quarantine may ulti­mately result in the involvement of virtually all department personnel, a massive all-ranks training program will be required and should be initiated without delay. Uninformed or misguided actions by departmental man­agers, field supervisors, or field personnel in a quarantine situation will inevitably lead to disaster for both the department and the com­munity. All levels of the department will be in­volved in some manner in any significant quarantine operation, and therefore all levels of the department must be properly prepared to fulfill their responsibilities once the quaran­tine has begun.

A quarantine training program must include the assistance of public health agencies. A joint training program involv­ing all of the agencies that will be in­volved in the quarantine effort should be instituted without delay.

Summary
Some police agencies in the United States will likely face the necessity of imposing either a mandatory or volun­tary quarantine after a terrorist attack, the start of a pandemic, or a health crisis caused by storms, earthquakes, or other natural disasters. Although the federal government will probably play a lead role in the enforcement of a quarantine order, police, in their capacity as first responders and primary administrators of local laws, must be prepared both to bear initial re­sponsibility and to play a continuing role in carrying out quarantine measures. Careful planning, meticulous prepara­tion, and department-wide training will all be required. ■

1 Brian Friel, "Bird Flu Fears Raise Quarantine Ques­tions," National Journal, govexec.com, daily briefing, October 25, 2005, (www.govexec.com/dailyfed/1005/102505nj1.htm), November 2, 2005.
2 Wendy Orent, "The Fear Contagion," Washington Post, Sunday, October 16, 2005: B01; citing an interview on the The NewsHour with Jim Lehrer, October 5, 2005.
3 Wendy Orent, "The Fear Contagion," Washington Post, Sunday, October 16, 2005: B01.
4 Joseph Barbera, et a1., "Large-Scale Quarantine Fol­lowing Biological Terrorism in the United States," Jour­nal of the American Medical Association, vol. 286, no. 21 (December 2001).
5 Hope Yen, "Experts: U.S. Unprepared for Super-Flu Pandemic," Associated Press, November 21, 2005.
6 In general, the more frequently quarantine ef­forts involve issues of criminal prosecutions, the more closely the courts will scrutinize the constitu­tional issue. One principle that has clearly emerged is that while public health officials have broad pow­ers to investigate public health threats, and often do not have to comply with the restrictions imposed upon police by the Fourth Amendment, any infor­mation gathered by public health agencies in such situations generally cannot be used in criminal pros­ecutions unless the collection process complied with the Fourth Amendment's requirements regarding, for instance, search and seizure. See generally Richards, "Collaboration Between Public Health and Law Enforcement: The Constitutional Challenge," cited by request of the author as "Emerg Infect Dis [serial online] 2002 Oct 8." This document is available on the Web at (www.cdc.gov/ncidod/EID/vol8no10/02-0465.htm).
7 See Executive Order 13295 of April 4, 2003, amended April 1, 2005, to include "Influenza caused by novel or reemergent influenza viruses that are causing, or have the potential to cause, a pandemic."
8 See Fauci and Gerberding, "Unmasking the 1918 Influenza Virus: An Important Step Toward Pandemic Influenza Preparedness," a joint NIH and CDC statement dated October 5, 2005. Text available at (www.3.niaid.nih.gov/news/newsreleases/2005/0510state.htm).
9 See, for instance, Va. Code §32.1-48.05.
10 See, for instance, Va. Code §32.1-42.
11 The text of this model act is available at (www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf).
12 The text of this model act is available at (www.publichealthlaw.net/Resources/Modellaws.htm).
13 For a list of the states concerned and the legisla­tion enacted by each state, see the summary at (www.publichealthlaw.net/Resources/ResourcesPDFs/MSPHA%20LegisTrack.pdf).
14 See (www.capitol.hawaii.gov/site1/docs/getstatus2.asp?billno=SB781).
15 See legislative summary at (www.publichealthlaw.net/Resources/ResourcesPDFs/MSPHA%20LegisTrack.pdf).
16 See footnote 4, citing W. Eidson, "Confusion, Controversy, and Quarantine: the Muncie Smallpox Epidemic of 1893," Indiana Magazine of History 86 (1990): 374-398.


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From The Police Chief, vol. 73, no. 2, February 2006. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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