Some of the state’s largest police departments have received hundreds of calls relating to potential violations of the state’s now-extended stay-at-home order in the past month, but all have taken a hands-off approach to enforcement, according to a review of records from several departments and interviews with their representatives.
Despite a flood of calls to police operators – and threats of jail time for violators from the governor himself – these departments say that their enforcement of an executive order barring most businesses from operating and most citizens from leaving the house has been educational in nature, not coercive.
In fact, neither the police departments in Phoenix nor Mesa have issued any citations or made any arrests relating to the order. The Maricopa County Sheriff’s Office has also responded to a bevy of calls about potential scofflaws, but has only cited one business – a pizza shop in Fountain Hills.
It’s an approach that shines a light on the delicate balance between public health in the era of COVID-19 and an individual’s right to public space and personal liberty, one that comes as a relief to activists who were concerned that enforcement of the stay-at-home order could disproportionately impact the working class communities that often have little luxury to skip work and hunker down.
The education-first approach in part illustrates Arizona’s approach to the virus as a whole – one characterized by lax measures and broad definitions in comparison to other states.
“Local police count very heavily on maintaining public support for their ability to be effective,” said Michael Scott, a professor at Arizona State University’s School of Criminology and Criminal Justice. “Notwithstanding what the law says they may do, police always have to take into consideration what is prudent to do.”
Gov. Doug Ducey’s long-awaited stay-at-home order came March 30. It held that Arizonans could leave their places of residence “only for essential activities, to participate in or receive essential government functions, or to participate or fulfill essential functions.”
Tucked into the language of the order was one line about enforcement, encouraging police to notify violators and give them an opportunity to comply with the order before slapping them with a Class 1 misdemeanor.
In short, local police had options.
“If we receive a complaint about a business, we first determine if it’s a valid complaint – if the business is actually open and if it has been deemed an essential business based on Governor Ducey’s executive order,” said Mesa Police Department spokesman Jason Flam. “If it’s not an essential business, our direction from Chief Ken Cost is ‘education first,’ where we attempt to gain voluntary compliance. We do the same for any calls regarding residents who may not be following the executive order.”
Flam said the department received 321 calls for service related to COVID-19 between March 30 – when Ducey handed down his executive order – and April 20, but not one resulted in a citation or arrest.
In some instances, callers told the department that a local business was violating the order – often, the calls came from other disgruntled business owners frustrated that they had to close their doors while others ignored public health guidelines. Others had more to do with personal behavior.
On April 10, for example, Mesa police went to a Home Depot where an individual had allegedly harassed employees for trying to direct the flow of traffic in the store, leading to a confrontation with a fellow customer in which the suspect “coughed in his face and said he had COVID-19,” according to police. The individual fled before police arrived.
While Flam said there was no single script that police followed, the approach was the same: educate, not prosecute. Generally, he said, Mesa residents were receptive to the guidance.
Similar scenarios played out in Phoenix.
Police in the city had handled roughly 300 calls related to the executive order as of April 20, according to a spokeswoman for the city’s Police Department. But, like Mesa, none of those calls resulted in a citation or arrest.
“The executive order is directed at businesses, not individuals,” said Phoenix PD spokeswoman Mercedes Fortune.
And unlike Mesa, city officials in Phoenix – namely Mayor Kate Gallego – have been critical of the governor’s order, regarding it as a half-measure that doesn’t go far enough to limit which businesses can stay open.
Gallego even directed residents to the police non-emergency line if they had concerns about violations of the order, provoking blowback from conservatives – some of whom went as far as to call her a fascist – and from criminal justice activists who worried that she would be directing police to vulnerable people who had no choice but to work.
“As awful as it is for people to be gathering in large groups, we do not support the idea of a police response in a public health crisis,” said Analise Ortiz, an organizer with the American Civil Liberties Union of Arizona, at the time. “We know the [police department] has a long history of violence, especially in communities of color. I think this thing will only lead to more criminalization and even more confrontation with law enforcement.”
Indeed, police in Phoenix – especially in recent years – have been increasingly violent. Similarly, police in Mesa have been mired in controversy over several high-profile instances of police violence, especially in 2018.
But the controversy over Gallego’s statement obscured the difficult situation that COVID-19 has put cities in, said mayor’s office spokeswoman Annie DeGraw.
“If you are going to put policy forward, it’s important that that policy has teeth,” she said. In other words, the city can’t say it’s going to comply with the stay-at-home order and then not actually enforce it.
And pointing to the non-emergency line, DeGraw said, was a way to give the policy teeth without treating a potential infraction of the order as something that justifies a 911 call – ensuring that emergency operators have the bandwidth to deal with actual emergencies, COVID-19 or otherwise.
Regardless, Phoenix police have yet to issue any citations for violating the order, and Ortiz and others skeptical of the role of police in enforcing the order have acknowledged that they’ve heard no reports of law enforcement anywhere in the state using force on calls related to the executive order. Among Valley police agencies that responded to requests for information, only the Maricopa County Sheriff’s Office has actually issued a citation, a spokesman said.
That incident occurred on April 6, when police contacted the owner of a restaurant in Fountain Hills that had yet to shut its doors.
“Sheriff Penzone’s approach was always meant to be educational,” said spokesman Joaquin Enriquez.
Other useful examples include the small number of protests against the executive order that have taken place outside of the Capitol.
At the so-called “Patriot’s Day” rally on April 20, a spokesperson for the Department of Public Safety said state troopers would be on hand to “make sure [the rally] remains peaceful,” just as any other.
In other words, the department wouldn’t be citing the roughly 200 people at the protest for violating health and safety guidelines, flooding the lobby of the Executive Tower until they were packed closely together.
Perhaps that was the right philosophy, Scott, the criminal justice professor, said. He called the protest a “delicate matter” in which enforcement could well have looked like “overreach,” even if police had the authority to treat the gathering as unlawful.
“You sometimes hear protestors saying it’s unconstitutional for the government to tell us what we can and cannot do. That’s flatly wrong,” he said. “The government has that moral and legal authority. Peoples’ lives are at stake.”
The irony, Scott said, is that a moderately sized gathering like the rally in question carries with it just as much health risk as serving a small number of customers at a business.
“A lot of people do have this very deep-seeded belief that the First Amendment does protect our right to get out in public and protest government action,” he said. “Nobody really associates doing business as a constitutional right.”
Additionally, Scott said it makes more sense to target businesses over individuals, as closing a business “regulates the behavior of all potential customers of that business.” In short, it’s a more effective use of resources.
Now, thanks to Ducey’s extension of the order, police have another two weeks – at a minimum – to hone their strategy.
And though police have shown little inclination to target individuals, which their counterparts in other states have done in enforcing stay-at-home orders far more often than here, there’s still reason for concern, said Jared Keenan, president of Arizona Attorneys for Criminal Justice.
“Any time you increase the reasons for police-citizen interaction, you’re going to increase the times that police are going to arrest you for things that aren’t related for the reason for initial contact,” he said. “Even if the police are generally doing educational outreach, there’s always that potential that it’ll lead to something else.”
And Ducey, typically a diplomatic politician whose desire to satisfy dozens of competing interests often steers him away from strong messaging, has ramped up his rhetoric. At a press conference April 29, he threatened business owners who chose to flaunt the order with jail time and fines, and told bar operators they’d be “playing with [their] liquor license” if they didn’t comply.
“I expect more regulation and stronger messaging to be coming,” said Viri Hernandez, executive director of Poder in Action, an activist group.
Like Keenan, she hasn’t heard of specific instances of police overreach or misconduct. But it’s something Poder is monitoring.
She said that many Arizonans – especially the working class, people of color and the unhoused – are at a risk of disproportionate enforcement. And these are the same people who have the least ability to stay at home, either because they don’t have one or they have to work, even if they’re educated on the public health risks.
“Immigrant communities, undocumented communities are some of the key workers who are keeping the city running at this moment,” Hernandez said. “There’s a potential for them being stopped because they’re out doing our job to keep our state going. When police come, one of the first questions they ask is for their ID.”
Scott, himself a former police officer, acknowledged that the policing of the public health crisis raised alarm bells even for
“We do have that tendency in society, whenever we have a new problem, we reflexively turn to the police and say, here, you have a law, you enforce it,” he said.