Plagues, Police, and Posse Comitatus: Legal Issues in Forensic Epidemiology and Public Health Emergency Response

1. Plagues, Police, and Posse Comitatus: Legal Issues in Forensic Epidemiology and Public Health Emergency Response Edward P. Richards, JD, MPH Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana State University Law Center Baton Rouge, LA 70803-1000 richards@lsu.edu http://biotech.law.lsu.edu

2. The Roots of Public Health • Leviticus • Roman water and sewer works • Early Renaissance Venice • quadraginta • Blackstone • Death for breaking quarantine

3. Public Health in the Colonies • Most of the population lived in poorly drained coastal areas • Cholera • Yellow Fever • Urban Diseases • Smallpox • Tuberculosis • Average life expectancy was short

4. Public Health Law Actions in Colonial America • Quarantines, areas of non-intercourse • Inspection of ships and sailors • Nuisance abatement • Colonial governments had and used Draconian public health powers • The Police Powers

5. Public Health in the Constitution • Federal Powers • Interstate commerce • International trade and travel • War • State Powers • Powers not given to the federal government • Police Powers • How broad are the state's police powers?

6. Actions in the 1798 Yellow Fever Epidemic For ten years prior, the yellow fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia. (Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849))

7. Is there a Federal Police Power? • Constitutional Debate • US Supreme Court says no, but ... • Can the Feds do local disease control? • CDC only comes in at the state's invitation • Is everything interstate commerce now? • Can the Feds require smallpox vaccinations? • Invasion Clause? Insurrections? • What is the role of forensic epidemiology?

8. How is the Public Health Authority Exercised? • Public health law is carried out by state and local government agencies • The law governing agency practice is called administrative law

9. Enabling Legislation • Agencies are established by legislation • Establishes structure and mission • Budget • Legislative direction can be detailed or broad • Protect the public health • Cheap electric power and plenty of it • Contrast with the ADA • The Courts allow agencies to “fill in the blanks” if they are given broad authority

10. Agency Functions • Rulemaking • Agencies can make rules to particularize statutes and for public guidance • The public participates in rulemaking • Adjudications • Licensing, permits, inspections • Prosecute through the courts

11. Judicial Deference to Agency Action • Courts defer to agency decisionmaking in areas of agency expertise • Fact finding • Rulemaking • Cannot be "arbitrary or capricious" • Courts do not defer to agency interpretations of the law, but look to its persuasiveness

12. St. Mark's Baths ... defendants and the intervening patrons challenge the soundness of the scientific judgments upon which the Health Council regulation is based .... While these arguments and proposals may have varying degrees of merit, they overlook a fundamental principle of applicable law: "It is not for the courts to determine which scientific view is correct in ruling upon whether the police power has been properly exercised. The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense.

13. Why do Courts Defer to Agencies? • Expertise • Agencies have expert staff who manage complex problems • Efficiency • Agencies have more efficient enforcement powers because they are not limited by criminal law protections • Speed and Flexibility • Agencies can act without new legislation • Agencies can tap new expertise as needed

14. Is there a Constitutional Right to a Hearing before the Health Department Acts? • Classic Food Sanitation Case - North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) • Post-action hearings can satisfy due process • It is left to the regulated party to request a court hearing • Is this a taking - Must the state pay for the chicken?

15. What if You are Locking Up People? • Must there be a hearing first? • Not under the US Constitution • Some newer state laws require a hearing • Must there be a statutory provision for a hearing? • The Constitution provides habeas corpus • Right to contest your confinement • Limiting habeas corpus • The state can require an agency review first

16. Acting in an Emergency • Power expands with necessity • Courts do not block emergency actions • Knowing what to do is what matters • Emergency powers laws are easy to pass, but do not solve resource and expertise problems • Law matters a month after • The more laws you pass, the more loopholes you can create

17. The Limits of Public Health Law • Public health law can only be used to prevent future harm • Public health law cannot be used to punish for past behavior • Punishment triggers criminal due process • Historically the harm was clear and fairly certain, and was to physical health and safety • Where does modern touchy feely public health fit in?

18. Why does Punishment Trigger Special Protections? • Criminal law has a long history of abuse by tyrants • Takes liberty or even life • Searches undermine an individual's sense of autonomy • Can deprive the individual of the means to oppose the state’s actions

19. The Separation of Public Health and Law Enforcement • Constitutional bright line between criminal law and public health • Different standards for proof • Different standards for due process • Different goals for restrictions and confinement • Public Perception • Public health wants cooperation and trust • Police want fear and respect

20. Right to appointed counsel Must have probable cause for warrants Trial by jury Requires specific laws Standard of proof is beyond a reasonable doubt No right to appointed counsel Probable cause is not necessary - area warrants Informal adjudications Can use general powers Proof by a preponderance of the evidence Criminal Due Process Versus Public Health Rights

21. Limits on the Military in Law Enforcement • The Constitution puts the military under civilian control • There has always been a fear that the president would use the military for political purposes in the states • The military was used to put down several insurrections in the early constitutional period

22. 1878 Posse Comitatus Act • Prevents the use of the military for domestic police work • Specifically precludes troops from becoming directly involved in “search and seizure, and arrest, or other similar activities.” • Congress amended the Act to allow limited cooperation with civilian law enforcement through surveillance and leasing equipment. • Not a constitutional limit

23. Public Health Law in Action

24. The Sanitation Movement • The Shattuck Report - Boston Sanitary Commission, 1850 • First modern study of vital statistics • Life expectancy was 25 years in the city • Communicable diseases were the main killers • Water borne - typhoid, cholera • Arthropod vector - yellow fever, typhus • Food - tuberculosis, brucellosis • Human - tuberculosis, smallpox, diarrhea

25. Public Health Strategies • Control sewage and protect drinking water • Back to the Romans • As the germ theory evolved, more environmental measures were added • Smallpox vaccinations were mandatory • Other vaccines were added • Food sanitation – driven by the Jungle • Major role in tuberculosis control

26. The Role of Law • Food and water sanitation was enforced through legal regulation • Physicians and others were required to report diseases • Isolation and quarantine for tuberculosis and other diseases • Building regulations to improve housing conditions • Administrative searches for violations

27. Effect on Public Health • Urban life expectancy more than doubled between 1850 and 1950 • Urban and rural life expectancy converged • Infant mortality dropped dramatically • While whites did best, all races benefited

28. Was 1960 the High-water Mark for Public Respect of Public Health?

29. Public Health in 1960 • Tuberculosis is under control • Food and water borne diseases are rare • Yellow fever, malaria, and smallpox are eradicated in the US • Polio is under control and on its way to eradication • Vaccinations are routine and not controversial • Most people remember the bad old days

30. Legal Authority for Public Health in 1960 • Broad support for public health • Health directors are respected • Disease Control • Disease reporting • Contact tracing and notification • Isolation and quarantine in rare cases • Environmental Law • Drinking water • Sewage

31. Public Health Loses its Focus • 1964 - Medicaid moves health departments into personal health services • 1970 - Environmental laws shift to long-term, low level risks, with huge costs of control • The public no longer fears communicable diseases • Medicine shifts to chronic diseases

32. The Political Support for Public Health Disappears • Fear is lessening, but we would not want it to disappear entirely, for while it is a miserable sensation, it has its uses in the same sense that pain may be a marked benefit to the animal economy, and in the same sense that fever is a conservative process. Reasonable fear saves many lives and prevents much sickness. It is one of the greatest forces for good in preventive medicine, as we shall presently see, and at times it is the most useful instrument in the hands of the sanitarian.ROSENAU, 1910

33. Public Health Loses its Nerve - The 1976 Swine Flu Episode • Swine Flu might have been the next great flu pandemic • CDC pushed an emergency national vaccination program • The vaccine was thought to have complications • The flu never materialized • The CDC and public health in general was traumatized

34. Fallout from the Swine Flu Episode • The CDC was not willing to endorse politically unpopular public health actions • Local health departments were afraid to cry wolf • Individual rights advocates set the agenda • Trials lawyers began a crusade against vaccinations that still continues

35. The Missed Chance • The Stonewall Riots and the Bathhouse Movement • Rates of STIs explode • Syphilis becomes the gay man's disease • A massive hepatitis b epidemic is documented in the bathhouses in 1976 • Local health departments are powerless • The CDC never takes a position • Bathhouses stay open: AIDS infects all patrons

36. AIDS Made Public Health Law Fashionable • AIDS attracted civil liberties lawyers because of the politics of homosexuality • Paranoia fueled fears of AIDS concentration camps • Privacy become more important than health or even life

37. The Impact on Public Health Law • Lawyers and law students were told public health law was outdated • Major constitutional law texts did even mention powers such as quarantine • The police power gave way to individual liberties law • Legislatures were lobbied to limit public health powers • Disease control laws were weakened • New due process requirements interfered with public health enforcement

38. Public Health was Vilified • Public health was portrayed as untrustworthy • People forgot that most HIV was no secret • Same folks who had hepatitis b five years earlier • Public health was faulted for not working hard enough on a cure

39. The Societal Consensus on Public Health Broke Down • Public health experts were displaced by personal health care experts • Health care ethics were applied to public health • Personal choice replaced the public duty to get vaccinated • Privacy trumped reporting and investigation • Public health funds shifted to individual health care

40. The Impact on HIV Control • Health directors gave into to activist demands that HIV not be treated as a communicable disease • No screening • No named reporting • No contact tracing • No good epidemiology on HIV • Who is infected? • What are the trends? • Why are minorities hit so hard?

41. Public Support for Public Health is at an All Time Low Then the World Changes

42. 9/11 Anthrax Letters

43. From AIDS to Bioterrorism • The anthrax letters treated as a police matter • Epidemiology was used as forensic evidence • This is a proper use of public health expertise • The Congressional Response • Bioterrorism Act, Patriot Act and Homeland Security Act • Public health becomes part of Homeland Security

44. Model State Emergency Health Powers Act • Funded by the CDC • Based on two incorrect assumptions • Traditional state public health powers did not exist any longer • States had no emergency preparedness laws • The Role of MSEHPA • Written as a Model Act • Should have been a checklist

45. The Fallout of the MSEHPA • States were convinced that they needed new laws • Did not resolve conflicts with existing emergency preparedness laws • Gave too much authority in some cases • Created due process traps in others • Most important problem • Legislatures passed laws instead of budget appropriations

46. Rethinking the Role of the Military • Everyone assumes the military will take the lead if there is a major bioterrorism event • Local public health and police can barely do their day to day work • There is no surge capacity in health care • No other organized public workforce • What does this mean legally?

47. Revisiting Posse Comitatus • Does not limit non-police help, such as crowd control • Does not apply to National Guard units under state control • Used as logistic support in floods and other natural disasters • Remember Kent State? • Has an exception for insurrections • Remember Little Rock?

48. 42 USC § 1989. United States magistrate judges; appointment of persons to execute warrants • Amended in 1996 to allow the use of military • Said magistrate judges are empowered, within their respective counties, to appoint, in writing, under their hands, one or more suitable persons, from time to time, who shall execute all such warrants or other process as the magistrate judges may issue in the lawful performance of their duties, and the persons so appointed shall have authority to summon and call to their aid ... such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged;

49. Does Posse Comitatus Apply to Public Health? • Under traditional constitutional analysis, public health powers cannot be used to punish • Punishment is the defining characteristic of criminal law • While it has not been tested, there should not be any legal impediment to using the military for classic public health

50. Traditional Cooperation between Police and Public Health • Enforce public health orders • Public health has no troops • Direct enforcement in some cases • Usually through a court order and contempt proceeding • Informal cooperation • Vice officers and STI control programs • Communicable diseases in jails and prisons