A look at why people still don’t get tickets for violating public health orders — and the danger it may create

photo by: Contributed Photo

A crowd gathers outside the Jayhawk Cafe, also known as the Hawk, 1340 Ohio St., Friday night, Nov. 13, 2020.

The one-block stretch of 14th Street between Ohio and Tennessee long has created dilemmas for Lawrence police officers.

It is the center of a bar district at the edge of the University of Kansas campus, so you can imagine the types of questions a police officer has to wrestle with while on patrol there.

Here’s one, though, for the pandemic age: Just hours after the local health department urgently issues a new public health order cracking down on crowds of people who aren’t socially distancing, you see just such a crowd lined up outside of two bars along 14th Street. Bar patrons are lined up cheek to cheek, many without masks at a time when COVID-19 cases are spiking in the community and starting to stress the city’s hospital.

What do you do? The answer — still — is to not issue any tickets.

That may surprise some Lawrence residents because this scene — which happened last weekend at The Hawk and Bullwinkles — seems pretty similar to a fraternity house scene in September that sparked outrage among some community members. Photos of that raging yard party went viral online, and area residents were not happy that the local police department felt it didn’t have the ability to issue any tickets.

Related story

Police, health department focus on education, compliance over tickets to stop large groups amid pandemic

City commissioners in September passed a new ordinance as a result of those concerns. But Journal-World reporter Lauren Fox found out this week that no citations have been issued under that ordinance, and certainly none were issued to the folks standing in line at the two bars last weekend.

That article did a good job of explaining what happened, but it piqued my curiosity about why it is continuing to happen. It is an important question, because even with a very long KU holiday break and a promising outlook for vaccines, we still have much time to live with this virus.

I’ve been a proponent of keeping our pandemic response in perspective and recognizing that we’re all dealing with a situation that is new to us. We should offer grace and understanding as a result. I still believe that, but I also believe you have to evaluate what you are doing. From where I sit, it looks like well-meaning people have created a system that still doesn’t work very well, at times.

Here are a few takeaways and thoughts:

— The ordinance the city passed in September doesn’t do what most people think it does. City Commissioner Brad Finkeldei, who also is an attorney, said the ordinance doesn’t give a police officer the ability to issue a citation to somebody for simply violating a public health order. Instead, it gives a police officer the ability to give a ticket to an organizer of a public nuisance. So, in this case, it doesn’t give a police officer the ability to issue a citation to someone standing in line without a mask. But, it would give an officer the ability to issue a ticket to whoever is determined to have facilitated the existence of this line in the first place. (Maybe a bar owner, but maybe not, since the line is on a public sidewalk.) I don’t think that is what a lot of people thought the September ordinance did. If the city wanted something more straightforward, Finkeldei said, it would need to pass something like a municipal ordinance that makes it illegal to be unmasked in certain situations. The city of Wichita passed such an ordinance, but Lawrence has not.

— Douglas County District Court is set up to deal with people who disobey public health orders. A police officer could walk up to the people in the line, Finkeldei said, and say that he thinks they are violating the public health order by being in such a large crowd without a mask. The officer would get the names and contact information of those involved and tell them that the Douglas County district attorney’s office may be in touch about charges against them. The police officer would relay the information to the DA’s office via an affidavit, which is basically a report of what the officer saw. Finkeldei confirmed that writing an affidavit isn’t that much more burdensome for a police officer than writing a citation and accompanying reports. The problem with this system doesn’t seem to be that it creates an extra burden for police officers. What is the problem? See the bullet point below.

— Does anybody else see the value in changing the risk-versus-reward equation for people who disobey public health orders? I’m not sure many do. The whole tenor of our article in Friday’s edition was that police and health department officials are focusing on education instead of tickets. I guess that sounds nice, but, to me, it doesn’t square with reality.

Does anybody think the people standing in those bar lines hadn’t heard that medical experts think it is a terrible idea to be in that large of a crowd without a mask and other social-distance precautions? That message is everywhere you look in today’s world.

Instead, I think the people in those lines had determined the reward for standing in that line outweighed the risks. They maybe thought that they weren’t going to catch the virus, and even if they did it wasn’t going to hurt them much. And from a legal standpoint, they maybe thought the worst that would happen to them was that a police officer might tell them to move along.

So, does anybody think that creating the threat of having to go to Douglas County District Court, pay a fine and court costs of up to $500 and have an offense attached to your name might change the risk-versus-reward equation for some people? Maybe it won’t right away, but once word gets out, I’m betting it would create second thoughts for some.

But the city sure acts like it doesn’t believe it. When I asked Finkeldei about it (I called other city commissioners, but Finkeldei was the only one I got to ask questions of) he questioned whether the process would be efficient running through the Douglas County District Court.

He said it could be six weeks or so before someone standing in that line even hears from the district attorney’s office. But Finkeldei acknowledged he wasn’t sure that was the case, and, upon inquiring, it doesn’t appear to be the case. I briefly communicated with Douglas County District Attorney Charles Branson via email on Friday. He said it was highly unlikely that his office would take six weeks to make a decision on whether to press charges in a case like this. He didn’t provide a specific timeline, but he made it sound more like days than weeks.

“Six weeks for a decision is not correct,” Branson said via email. “For something like this, we would review and make a decision as quickly as possible because of the public health concern.”

If a decision is made to pursue a charge, the individual would receive a summons stating a time to appear in court. That court appearance, Branson said, could be six weeks after the incident, depending on the court’s schedule. But that doesn’t seem much different from any other offense. It seems an individual could relatively quickly get a summons, which could be an attention-getter that might cause the person to rethink whether standing in line without a mask is a good option. Maybe they’ll be on their best behavior until their court date.

In reality, we don’t know how this process will work because it isn’t being used. Branson told me his office got one affidavit in late September from LPD, but then was asked by LPD not to pursue it. The city was going to try to use its city ordinance for the matter, though it is not clear if it did.

— Why is the county health department tasked with so much of the enforcement of the health orders? Lawrence-Douglas County Public Health spokesman George Diepenbrock confirmed to me that health department staff arrived on the scene of the Hawk and Bullwinkles shortly after getting the call from the police department about alleged violations. That’s a big accomplishment for the health department. Prior to September, the health department had no on-call enforcement staff to go check things at night. Kudos to the department for getting a system set up.

But why should it have to do so? This seems like asking Mothers Against Drunk Driving to staff the DUI checkpoint lanes. Police officers are the enforcement specialists in this community. It is not like determining a violation of a health order requires some type of lab test that only the health department can do. Police officers should take the lead on enforcement. This last weekend showed one reason why. A detail from our article on Friday noted that the Hawk did not receive an actual warning for violating the health order because the crowd had dispersed by the time health department staff arrived on scene. Why is that important? Because the health department generally won’t give a business a violation for disobeying health orders until it has given that business one warning. The Hawk still hasn’t received that warning, even though it appears that sworn law enforcement saw plenty of evidence of a violation. That is nonsensical. Police officers should be empowered to take charge of that situation.

For its part, the health department hasn’t publicly weighed in on whether this enforcement issue makes any sense. Diepenbrock told me that the issue of how tickets and fines are levied should be determined by the city, the district attorney, the courts and other such entities. But he did agree that the risk-versus-reward equation needs to be considered.

“I think you are right with your assessment that we are trying to pull levers to change people’s behavior,” Diepenbrock said.

It would be nice if people simply would change their thinking and understand that even if they aren’t afraid of the virus, they can still catch it and spread it to people who really can be harmed by it. Lots of people already understand that, but there are many who don’t, and they are screwing things up for the rest of us.

But my big worry isn’t about what has happened so far, but rather what might happen in the future. I don’t think anyone trying to enforce these laws or lead this community through the pandemic is ill-intentioned. Yet, I still worry that ill may come.

It will come in the form of a new question: Why in the hell am I even trying? That’s the question that will spread among good but tired people. People who are making sacrifices and sometimes doing risky jobs for the good of us all. (Teachers, health care workers and so many others.) That question will spread if those good people see others who clearly are flouting the law get told to simply move along.

If you think a spreading virus is bad, wait until we get spreading resignation. Let’s avoid that public health emergency.


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