QUARANTINES: The Law Enforcement Role

[Jonesie]

QUARANTINES: The Law Enforcement Role

Should 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."
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." 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." 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." 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."

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.

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.

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.

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. 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.

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. 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. 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. 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.

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.

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.


http://www.policechiefmagazine.org/m...issue_id=22006

[Jonesie]

Re: QUARANTINES: The Law Enforcement Role

The Pandemic Influenza Plan: Implications for Local Law Enforcement

By Lee Colwell, D.P.A., Assoc. Director (Retired), FBI, and President, Pegasus Research Foundation, Little Rock, Arkansas

In November 2005, after several years of concern, discussion, and planning in related matters, the U.S. Department of Health and Human Services released the HHS Pandemic Influenza Plan. Post-outbreak action under the plan, if and when that becomes necessary, will require taking steps in the public square that are highly unusual, possibly unprecedented in both nature and scope, and almost certainly highly controversial. Because local law enforcement will be deeply involved in any such steps, law enforcement should undertake significant planning in coordination with others with post-outbreak responsibilities.

The plan begins to articulate the significant additional responsibilities, separate from day-to-day police duties, that local law enforcement will have in the event of a pandemic. And it presents local law enforcement leaders and their communities with a significant challenge to develop regional pandemic preparedness plans at the local level. In coming months, moving forward with the pandemic preparedness efforts, local law enforcement leaders will face a variety of decisions about how they and their communities will respond to the pandemic threat. This article is written to provide background information on the plan for local law enforcement leaders who will be facing those decisions.



Overview

The HHS plan states that a pandemic influenza event occurs ?when a novel influenza virus emerges that can infect and be efficiently transmitted among individuals because of a lack of pre-existing immunity in the population.? Although it is possible that post-outbreak action under the plan will never be necessary, HHS has asked for more than $7 billion in federal funding for its implementation, because there is great concern about the likelihood of a worldwide influenza epidemic in the near future that could claim hundreds of millions of lives, including as many as 700,000 Americans within six months of an outbreak. Current pandemic concerns have been triggered by the strain of avian influenza (or bird flu) circulating in Asia and Europe, with a reported 50 percent mortality rate among those humans infected.

The plan is nearly 400 pages long, and each page is packed with details that should be considered by local, tribal, state, and federal officials as they put together local and regional plans to respond to a pandemic influenza event. With respect to state and local pandemic influenza plans, the HHS plan says, ?These plans should detail how health departments and other agencies of state and local governments and tribal nations will prevent, mitigate, respond to, and recover from an influenza pandemic. They should be community-specific where appropriate and should contemplate specific local and community needs.?

Fully recognizing that nonfederal health departments, hospitals, emergency responders, and private firms will, of necessity, play critical frontline roles in the event of a pandemic, the plan offers detailed guidance for local law enforcement, emergency responders, and other state and local partners in areas such as ?community disease control and prevention? and ?managing travel-related risk of disease transmission.?

Characteristics of a Pandemic, and Implications for Law Enforcement

Among other things, the HHS plan assumes that an influenza pandemic would have the following characteristics that would directly affect local law enforcement:

• Simultaneous or near-simultaneous outbreaks in communities across the United States that would limit the ability of any jurisdiction to provide support and assistance to other areas
  
• Delays and shortages in the availability of vaccines and antiviral drugs
  
• Potential disruption of national and community infrastructures including transportation, commerce, utilities, and public safety due to widespread illness and death among workers and their families and concern about ongoing exposure to the virus

A key principle of the plan is that preparedness will require coordination among federal, state, tribal, and local government and partners in the private sector, including significant requirements for coordination with local law enforcement. Although the plan recognizes that law enforcement will also have key roles in other aspects of a pandemic, the plan especially focuses on the need for local law enforcement to be prepared to help control diseases at the community level and manage the risk of disease transmission through enforcement of travel restrictions.

Law Enforcement Role in Community Disease Control

Prior to a pandemic event, the plan urges that local leaders prepare their communities for implementation of pandemic influenza containment measures that may be called into play during a pandemic. Community disease control measures range from individual containment measures to community-based containment measures.

At the individual level, law enforcement personnel may be called upon to contain the spread of infection by enforcing the isolation of individual patients and by managing individuals who may have come into contact with sources of infection. These steps may be carried out by enforced isolation at health care facilities, individual homes, or alternative facilities. The plan urges local law enforcement leaders to prepare to provide guards and other personnel necessary to isolate patients with a highly infectious disease, and persons who have come in contact with them, at multiple facilities in their communities.

At the community level, the plan describes containment measures involving local law enforcement which range from voluntary snow days to the closure of office buildings, shopping malls, schools, and public transportation to widespread community quarantine (or cordon sanitaire, as it is known). In the voluntary snow day scenario, when the public is asked to stay at home rather than go about their normal daily business, law enforcement leaders will need to communicate staffing decisions about nonessential personnel who should honor the snow day declaration. If public facilities and public transportation are closed, local law enforcement will doubtless also be called upon to enforce facility and transportation closure orders and to provide essential transport for supplies, patients, and public health personnel. And, if a community quarantine is ordered, local law enforcement agencies will further be called upon to legally enforce the order, in coordination with involved public health officials and personnel in neighboring jurisdictions.

Law Enforcement Role in Managing Travel-Related Risks of Disease Transmission

In the event of a pandemic, law enforcement will be involved with managing all types of travel, but local law enforcement will have particular responsibility for managing the risk of disease related to travel in the United States. The plan urges that travel-restriction planning in preparation for a pandemic engage a broad range of health and community leaders, including public health and hospital personnel, local law enforcement, firefighters, political leaders, and representatives of airports, seaports, transportation service providers, and others.

The plan identifies a number of additional travel restriction-related activities that local law enforcement personnel will need to be prepared to carry out, once a pandemic event has commenced. They include the following:

• Meeting and transporting ill or possibly infected passengers and animals at airports and seaports
  
• Notifying the public and neighboring jurisdictions of official closures and enforcing those closures
  
• Addressing and coordinating multi-jurisdictional issues involved in official closures
  
• Establishing legal authority and protocols for restricting departure and entry and use of mass transit systems, bus and train routes, and streets and highways

Observations and Conclusions

It is clear, even from this brief discussion, that a pandemic event would require a number of complex decisions to be made by local law enforcement leaders and trigger a number of complex problems for law enforcement leaders and personnel. The plan triggers a number of questions and issues for local law enforcement:

• What is the chain of command, and who will make decisions, during a pandemic event?
  
• What legal authority is there for the actions to be taken by law enforcement?
  
• What orders will be lawful or unlawful in such circumstances?
  
• What vaccines and antiviral and other medications will local law enforcement personnel (and their families) be offered, and how can leaders assure their personnel that the offered vaccines and medication are safe and effective?
  
• What problems will local law enforcement leaders face if vaccines and medication are not provided to law enforcement personnel and their families?
  
• How can law enforcement leaders assure their personnel that it is safe to carry out their sworn duties requiring close contact with highly infectious persons?
  
• How will local law enforcement securely communicate with public health partners, their own agency personnel, and personnel in neighboring jurisdictions?
  
• What will local law enforcement leaders communicate to the media and the public regarding the law enforcement actions taken in the face of a pandemic event? How will rumors inside agencies and in public circulation be countered?
  
• What level of force will law enforcement use to enforce an individual containment or community-wide quarantine measure?
  
• What steps should law enforcement leaders take to maintain control and authority without overstepping roles and overstating or understating risks?
  
• What lessons have been learned from recent experiences with Hurricanes Katrina and Rita and the 2003 SARS outbreak, especially travel-related containment measures imposed in Toronto?
  
• How will law enforcement carry out their traditional duties while also carrying out these significant additional responsibilities, and where will the financial and personnel resources required to carry out these additional responsibilities come from?
  
• How will local law enforcement leaders and their counterparts in hospitals, public health, transportation sectors, local government, and local and state political leaders, not only in their own jurisdictions but in neighboring jurisdictions, come together to make meaningful plans as urged in the HHS plan?

On this last and most important issue, the HHS request for funding includes $100 million ?to help states complete and exercise their pandemic plans before a pandemic strikes.? Based on previous efforts at state-directed planning of community-level and local agency-level activities, it is not at all clear that leaders of communities and local agencies will have the tools or resources sufficient to catalyze local-level planning for an uncertain new threat. Although much of the planning for a pandemic needs to be carried out by state public health departments, certainly much of the planning also needs to take place at the local level, between and among local level emergency responders and others in their communities.

The plan makes it clear that it does not provide answers to these or many other questions, and that, as one size does not fit all, each community must develop its own plan. Recent events show the peril faced by communities when federal, state, and local agencies and their leaders are unable to work as a seamless force fully prepared to respond to the threat at hand. Because local law enforcement will play such a key role in the event of a pandemic, forward-looking local law enforcement leaders will take steps to prepare their agencies and their communities to respond to the possibly devastating effects of a pandemic event. ■

http://www.policechiefmagazine.org/m...issue_id=12006

[Jonesie]

Re: QUARANTINES: The Law Enforcement Role

Pandemic INFLUENZA and Bird FLU: The State of Delaware State and Local Law Enforcement Preparedness

By David B. Mitchell, J.D., Secretary of Safety and Homeland Security for the State of Delaware and Elizabeth Olsen, Attorney at Law and Policy Advisor, Delaware Department of Safety and Homeland Security


Since the early 1900s there have been three flu pandemics in the United States that resulted in a significant loss of human life. Many health officials agree that it is only a matter of time before the next influenza pandemic hits in the United States and most predict that the consequences will be severe.

Since 1997, the bird flu, or avian influenza H5N1, has achieved national and international notoriety as a vexing and lethal virus with the potential to produce devastating consequences in pandemic proportions. Over the last three years, approximately 150 million birds throughout Asia and Europe have died or been slaughtered as a result of the spread of the H5N1 virus in the avian population. Of even greater significance is the fact that approximately 147 people in Indonesia, Vietnam, Thailand, Cambodia, and Turkey have been infected by the virus and 78 of those infected have died.

There have been no reported cases of human-to-human transmission of the H5N1 virus, as most of the people infected were directly infected from close contact with a bird carrying the virus in what is called a bird-to-human transmission. But there is considerable and justifiable concern over the H5N1 avian influenza virus and its potentially lethal effect on humans. The H5N1 flu virus, like most flu viruses, can mutate rapidly, regenerate quickly (days instead of weeks), and manifest itself as something as generic as a cough, sore throat, fever, muscle soreness, eye infections, respiratory distress, and pneumonia or a combination thereof. A person who has become infected with H5N1 flu virus will most likely not realize the extent of his or her illness and contagiousness. It is impossible to stockpile a vaccine against the virus until it actually mutates into a form tailored for human-to-human transmission. For these reasons, national, state, and local officials should proactively develop a preparedness and emergency response plan in anticipation of an outbreak.

The U.S. Department of Health and Human Services' (HHS) Pandemic Influenza Plan, published in November 2005, outlines the U.S. pandemic preparedness response to a human-to-human outbreak of the H5N1 avian influenza inside U.S. borders. It recognizes the important role state and local law enforcement agencies have in the overall success of the plan and offers detailed guidance to local law enforcement regarding their involvement in the execution of their state and local pandemic influenza plans. Notwithstanding, the plan admittedly does not provide answers to many of the questions raised by local law enforcement regarding their roles in a pandemic flu situation. In his article "The Pandemic Influenza Plan: Implications for Local Law Enforcement," Lee Colwell underscores the plan's caveat that it does not have all the answers for local law enforcement and that "each community must develop its own plan in order to be prepared."

Avian Flu Outbreak in Delaware

On February 5, 2004, the Delaware Department of Agriculture (DDA) received notification that a flock of chickens on a commercial poultry farm in Delaware tested positive for avian influenza and a second Delaware poultry farm tested positive approximately five days later. At the time of the initial outbreak, the Delaware Emergency Management Agency (DEMA), a division of the Delaware Department of Safety and Homeland Security, already had in place the Delaware Emergency Operations Plan (DEOP) for emergencies arising from natural or human-made disasters. Further, the Delmarva Poultry Industry Inc. (DPI), a nonprofit industry association, had already created an emergency disease task force in response to an avian influenza outbreak that occurred in the early 1980s in Lancaster, Pennsylvania. Although neither flock was infected with the highly pathogenic H5N1 influenza virus, the Delaware Department of Agriculture immediately implemented its emergency support functions under DEOP and convened the DPI Emergency Disease Task Force.

Because the transmission of the avian flu virus remained a bird-to-bird transmission, (Figure 1) it was determined that the Delaware Department of Agriculture would be the managing agency. The Delaware State Police, in conjunction with local private security officers, were immediately mobilized to assist the DDA in

• setting up a quarantine of the infected farm,
  
• setting up a barrier to prevent reporters and other curiosity seekers from trespassing onto the farm, and
  
• providing lines of communication between the DDA, the press, and the public about the status of the crisis.

Although only two farms were affected, local law enforcement had their hands full. Despite the quarantine order and admonitions by DDA that it was necessary to stay away from the infected farms to prevent the spread of the virus, reporters attempted to enter the quarantined area through any means available. Some flew helicopters to gain access to the farms; others trespassed at night with night vision equipment to photograph poultry, houses and growers. As difficult as it may have appeared then, in the end, the DDA, in part through the support of state and local law enforcement, contained the avian flu virus to the two farms in Delaware.

What lessons can we glean from the outbreak of February 2004 and how can we incorporate those lessons so that they are meaningful and effective in a pandemic flu situation? We now know, if we didn't already, that quarantine and isolation will not necessarily win the complete cooperation of those who are subjected to the quarantine and isolation or those who are excluded. The outbreak of February 2004 did not require cooperation between the Delaware State Police and local and municipal law enforcement because the infected farms were already within state jurisdiction. In a pandemic flu situation, however, cooperation between the local jurisdictions through the phases of the pandemic will be necessary. Officials should answer the following questions now: Who will be in command of the quarantine and isolation in the event of a pandemic? Under what legal authority will law enforcement act? How far will that authority extend?


The Delaware Emergency Operations and Pandemic Influenza Plans

The Delaware Emergency Operations Plan provides state and local law enforcement guidance in emergency situations involving natural or human-made disasters. Pursuant to Emergency Support Function 13 under the DEOP, the Delaware State Police is the primary agency in command of security and law enforcement in the event of a state of emergency arising from natural or man-made disasters. Before the declaration of a state of emergency, quarantine and isolation orders will be enforced by the municipal or county law enforcement agency responsible for providing police service to the jurisdiction in which the natural or human-made disaster has occurred. The respective state police troop will provide support services to deal with the event as it unfolds if the local agency asks for the assistance. Should the situation escalate, mutual aid agreements between the local jurisdictions and the state police may come into play. In addition, Delaware has enacted the Intrastate Mutual Aid Compact, which permits state and local law enforcement to cross in-state jurisdictional lines to provide or receive aid from neighboring local jurisdictions (20 Del. C. Chap. 32). An agreement to assist between one jurisdiction and another jurisdiction need not be approved by DEMA and may either be verbal or written in nature (20 Del. C. Sec. 3206).


Once the governor has declared a state of emergency, or the DEMA activates the Delaware Emergency Operations Center, and the Delaware State Police becomes the primary agency to coordinate law enforcement resources and to establish a task force composed of representatives from each of the local law enforcement agencies affected by the disaster or event. It is the job of the task force commanders to coordinate their emergency law enforcement response, their allocation of resources, and their assignments of personnel. Furthermore, the task force must prioritize its supporting roles in other emergency support functions (ESFs) under the DEOP.

In conjunction with the DEOP, Delaware's Pandemic Influenza Plan, issued in September 2005, provides that the Delaware State Police shall act as a supporting agency in the way of crowd control, traffic control for vaccination clinics, enforcement of quarantine and isolation orders and directives, and transportation of shipments of vaccines to designated receiving sites.

So how does the law enforcement role under the Delaware Emergency Operations Plan and Pandemic Influenza Plan translate into a realistic, practical, and effective application of state and local law enforcement resources? The Delaware Plan recognizes four escalating periods of an influenza pandemic: the inter-pandemic period, the pandemic alert period, the pandemic period, and the post-pandemic period. Delaware determines its planning and response to each period as it emerges.

Inter-pandemic Period: At press time, we are in the inter-pandemic period. The H5N1 influenza virus is circulating in other parts of the world and may pose a substantial risk of human disease, but the virus has not been known to infect any human beings in the United States.

Pandemic Alert and Pandemic Period: We enter the pandemic alert period after the infection of one or two persons and move into the pandemic period once officials learn of the presence of sustained clusters of infected humans in the general population.

Post-pandemic Period: The post-pandemic period is a return to the inter-pandemic period with a possible heightened phase of recovery, reorganization, and evaluation.

In his January 2006 Police Chief article, Lee Colwell identifies three levels of a pandemic flu outbreak in which law enforcement will play key roles in assisting and managing the control and containment of the H5N1 flu virus: (1) the individual level, (2) the community level, and (3) the state and national level, especially in regard to travel-related risks within and across state borders. These three levels coincide with the pandemic alert and pandemic periods described in the Delaware Plan.

Generally, it is not anticipated that there will be a declaration of a state of emergency at the individual level, or the beginning of the pandemic alert period, where one or two persons are suspected to be, or are, infected with the H5N1 flu virus. In that case, the director of the Delaware Division of Public Health, or his or her designee, must petition the appropriate court to order the isolation or quarantine of persons. Once the order has been obtained, the enforcement of any directives or orders for isolation and quarantine shall be handled by the law enforcement agency or municipality primarily responsible for providing police services to the jurisdiction in which the H5N1 flu virus has presented itself. The Delaware State Police and other local law enforcement will provide support services when the local or municipal law enforcement agency can no longer maintain control of the emergency situation without assistance.

The role of the Delaware State Police and local law enforcement will initially be to control and reduce the spread of the virus and may range from enforcing an isolation and quarantine order of a small group of persons to enforcing orders to close schools and businesses, cancel events, and restrict travel.

Once the spread of the virus has escalated to a point that warrants either a state of emergency or the activation of the Delaware Emergency Operations Center, the Delaware State Police will become the primary agency in charge of managing and coordinating local law enforcement resources. Once the virus escalates to the pandemic period, or phase where there has been an increased and sustained transmission of the virus in the general population, isolation and quarantine may no longer be an effective means of controlling the spread of the disease. At this juncture, the Delaware State Police, in coordination with local law enforcement, will provide support for the transportation of vaccines to designated receiving sites and to the transportation and treatment of infected individuals. State and local law enforcement may have to provide security at receiving sites, hospitals, and acute care centers. To prevent the spread of the disease and minimize overcrowding at hospitals and acute care centers from infected persons who self-re-port, law enforcement may be called upon to restrict travel between local jurisdictions and along the state's borders. The Delaware National Guard and other federal assistance will be deployed to aid state and local law enforcement.

Although a simple reading of the DEOP and the Delaware Pandemic Influenza Plan suggests that Delaware has developed an orderly process on which local law enforcement can rely, there still remains a lot of work to be done. Delaware recognizes that the ability to create a "seamless force fully prepared to respond to the threat at hand directly affects the success of any preparedness plan. Delaware's respective agencies have come together in an effort to close the gaps in their preparedness plan.

Legal Authority and the Court Process

Delaware enacted the Emergency Health Powers Act, which provides that either the Public Health Authority or the Public Safety Authority may obtain an isolation order, a quarantine order, or both if it has been established by clear and convincing evidence that the person or persons to be isolated or quarantined pose a significant risk of transmitting a disease to others with serious consequences. The order may be obtained regardless of whether there has been a declaration of a state of emergency by the governor. Furthermore, a directive may be issued by either the public health authority or the public safety authority that would permit state and local law enforcement to detain the person or group of persons pending the issuance of an isolation or quarantine order. To ensure that isolated or quarantined individuals are not denied their due process rights, a hearing must be scheduled within 72 hours. If it is determined that the isolation or quarantine must continue beyond 72 hours, the individuals have the right to request a hearing within 10 days.

Currently, the Delaware Department of Safety and Homeland Security and Division of Public Health are drafting form petitions for ex parte quarantine and isolation orders to help expedite the process of obtaining orders under which law enforcement can legally act. The goal is to create forms easily recognizable to a judge or clerk of the court as urgent. Furthermore, both agencies are working with the courts to establish a judge-on-call who would be the primary responder to an emergency petition to quarantine or isolate.

Although the judges in Delaware are not considered first responders, they play an important role in determining what legal authority law enforcement has to enforce a quarantine or isolation order and to the extent of that legal authority. It is further expected that judges will continue to play a role during a pandemic as they will be asked to issue other orders such as orders of contempt against those persons who violate the quarantine or isolation orders or to determine law enforcement's authority to, for instance, restrict travel across state borders. Currently, efforts are being made to protect judges from being exposed to the virus when they are called upon to preside over hearings related to quarantine and isolation orders. For example, there is the possibility of conducting hearings from a remote location through videoconferencing. The question remains whether judges who are designated to handle this type of emergency situation should be considered and treated as first responders.

Transmission of Information and Effective Communication

Under the DEOP, the Delaware Department of Safety and Homeland Security, in conjunction with its division, DEMA, and the Delaware State Police are designated as the primary agencies for keeping the lines of communication open between agencies and the public and disseminating accurate information to the agencies and the public as a pandemic unfolds. The DEOP anticipates that communications shall be conducted through the use of telephones, cellular phones, radios, facsimile, pagers, television, newspapers, and computer systems. During an extreme emergency condition, officials may use messengers.

The Department of Safety and Homeland Security is also using state-of-the-art telecommunications technology to create a center from which information and intelligence data may be received, analyzed, processed, and disseminated to the private and public sector in a consistent and reliable manner. The Delaware Information Analysis Center (DIAC) will be key in maintaining open lines of communication between state and local law enforcement and other first responders during a pandemic crisis. For instance, the DIAC will enable first responders to determine which hospitals have open beds, which morgues have space for the deceased, and so on.

Delaware has also been involved in other projects to enhance the state's ability to stay informed of events as they unfold throughout the state and to allocate resources where they are most needed. For example, DSHS is developing a geographical information system (GIS) and looking at the option of installing global positioning system (GPS) and automatic vehicle locator (AVL) devices in all modes of transportation used by first responders. These projects will be incorporated into the DIAC.

If we look back at the events of February 2004 surrounding the avian flu outbreak in Delaware, one of the lessons learned was the importance of transparency, of creating good media relations by making oneself available to the public with a clear, united message and continuous and timely updates of that message. Doing so not only provides for an orderly process for disseminating accurate information and rumor control but also reduces public anxiety.

Ongoing Law Enforcement Concerns

State and local law enforcement agencies are working with the Delaware Division of Public Health to ensure that they, as first responders, and their families receive antiviral vaccinations that should offer protection against the virus. Leaders of law enforcement have made it a priority to educate their personnel in regard to the H5N1 avian flu virus and the effects of a vaccine, all under the premise that education and dissemination of accurate information will reduce the level of a first responder 's uncertainty as to whether, when, and how he or she should act or react in situations where he or she is in close contact with infected persons.

Although state and local law enforcement must use whatever force is reasonable and appropriate to ensure compliance of orders and to protect the public interest, it is also imperative that they be educated on the definition of "reasonable and appropriate force" and that a consistent policy regarding use of force be developed, implemented, and exercised by state and local law enforcement.


State and local law enforcement departments, in conjunction with the Delaware National Guard, DEMA, and other agencies, have conducted extensive drills and tabletop exercises to determine how best to allocate their resources in the most efficient and effective manner. The Delaware State Police anticipate that they will continue to work with local law enforcement to provide security to receiving sites, hospitals, acute care centers, and so on. As the pandemic increases, state and local law enforcement will still have to address daily crimes but may choose to limit their responses to criminal activity to the more serious calls for service. Those officers traditionally on patrol will remain on patrol as the primary responders to traditional criminal activity, while other forces in the Delaware State Police and other local law enforcement agencies may be deployed to handle events pertaining to and surrounding the flu pandemic.

The success of the Delaware Pandemic Influenza Plan, and any other pandemic influenza plan, depends on the cooperation and coordination between law enforcement and other agencies on the national, state, and local level. Effective forms of communication and accurate dissemination of information as the pandemic progresses will lessen the chance of overstating or understating the risks inherent in this type of a crisis. One thing is for certain: we must stay ahead of the H5N1 avian flu virus. Constant preparation, planning, testing, and development of Delaware's Emergency Operating Plan and Pandemic Influenza Plan will result in an effective and meaningful preparedness and emergency response plan to the pandemic flu.

http://www.policechiefmagazine.org/m...issue_id=22006