Barton County officials and law enforcement officers want to get one thing clear during this COVID-19 pandemic and the closures and travel restrictions it has spawned.
“We are a long, long, way from cops out randomly stopping people, asking for their papers,” Sheriff Brian Bellendir said. “We’re no where near that point. Now, it is mostly voluntary.”
The county is ceding to Gov. Laura Kelly’s executive order imposing a statewide stay-at-home mandate issued March 23. But, “the governor has indicated she doesn’t want law enforcement to take aggressive action,” Bellendir said.
Thus far, this approach appears to be working.
“The vast majority of the people are heeding the warning,” the sheriff said. “There’s been a drop in the number of calls and a drop in the amount of motor vehicle traffic. It appears there’s no need for further enforcement at this time.”
For now, he said, it is merely a voluntary inconvenience.
And, he stressed, people don’t need letters proving they are allowed to be out and about. His office and the county office have received calls asking for such letters, and they don’t have them.
Power to act
However, “the local health officer has broad powers,” said Barton County Administrator Phil Hathcock. In Barton County, that job falls to Karen Winkelman, who became acting health director following the sudden resignation of Shelly Schneider in March, a week after Kansas’s first case in the pandemic was reported in Johnson County.
According to Kansas Statutes Annotated (K.S.A.) 65-119, “any county or joint board of health or local health officer having knowledge of any infectious or contagious disease, or of a death from such disease, within their jurisdiction, shall immediately exercise and maintain a supervision over such case or cases during their continuance, seeing that all such cases are properly cared for and that the provisions of this act as to isolation, restriction of communication, quarantine and disinfection are duly enforced.”
In other words, it is up to Winkelman to enact penalties for violating any quarantine or isolation orders should that become necessary, Hathcock said. She would then call on Bellendir’s Barton County Sheriff’s Office or the community police departments to enforce these orders.
Violators would be charged with an unclassified misdemeanor, Bellendir said. There would probably be no penalties for the individual other than being isolated as per the health officer’s directive.
The state weighs in
But, the subject of enforcement can get complicated. In fact, it was the subject of a March 24 memorandum from Kansas Attorney General Derek Schmidt guiding law enforcement and authorities under emergency powers invoked in response to the pandemic.
“The COVID-19 situation is unprecedented and dynamic,” Schmidt said in the memo. “In brief, the legal situation is extraordinarily complex and fluid. The Office of Attorney General knows law enforcement agencies and officers throughout our state will carry out both their ordinary and extraordinary lawful duties, professionally and properly enforce the law, and make positive contributions to the overall national, state, and local efforts to slow the spread of COVID-19.”
All law enforcement officers should exercise enforcement discretion. “We recommend no criminal enforcement of these orders until they have been properly published,” the memo said.
In addition, law enforcement may enforce non-criminal orders if ordered by the governor, the health secretary, or a local health officer.
“We’re in uncharted waters here,” Bellendir said. “Nobody in law enforcement has faced this who is alive now.”
If forced into an enforcement action, he said they would likely contact a judge first to get some legal guidance.
Even so, he hopes that officers who spot large groups in violation of the governor’s ban on gatherings of 10 or more would investigate and, if necessary, call the health officer and ask the folks to disband.
“People still have their constitutional rights,” Bellendir said. “We wouldn’t do anything without probable cause.”
A convoluted situation
“The spread of COVID-19 has resulted in numerous officials invoking seldom-used legal authority to exercise various emergency powers granted by law,” Schmidt said. On March 13, President Donald Trump issued a proclamation declaring a nationwide emergency and has invoked various authorities pursuant to that declaration. On March 12, Governor Laura Kelly proclaimed a statewide state of disaster emergency and exercised numerous powers available to her.
In addition, some counties in Kansas, including Barton, have declared a state of local disaster emergency under the Kansas Emergency Management Act and have invoked various local powers pursuant to such declaration. So, too, have some cities in Kansas.
And, state and local public health officials have invoked various statutory authorities granting them extraordinary power to address the pandemic.
“Law enforcement officers may be empowered to enforce some, but not all, directives arising from these various federal, state, and local actions,” Schmidt said. “It is possible that in some local jurisdictions, law enforcement officers may be subject not only to duties and authorities ordinarily placed upon them by law but also by up to six additional and separate sources of emergency duties and authorities imposed by different authorities as a result of the COVID-19 response.”
The situation is further complicated because there are overlapping state, interjurisdictional and local disaster emergency plans, all of which now are activated. Any or all of these plans may impose obligations on law enforcement and may displace local ordinances that ordinarily are in effect.
Still further, the rapidly evolving situation is resulting in frequently changing implementation of emergency powers by federal, state, and local authorities. These powers don’t have a uniform termination date, and most or all are subject to extension.
Moreover, the interaction of various state statutes and authorities involved is sometimes unclear and has not been clarified by judicial ruling the attorney general.
