Despite the strict stay-at-home orders in place through April, district attorneys across the state are reporting good levels of voluntary compliance from the general public and business community.
Law enforcement options for violations began with a March 25 order from the Colorado Department of the Public Health and the Environment, regarding enforcement of the public health order.
And in terms of enforcement, the options and style of enforcement are generally up to local jurisdictions. In the March 25 order, it states that the order “will be enforced by appropriate legal means.” Further, local authorities “are encouraged to determine the best course of action to encourage maximum compliance.” The penalties for the order include a fine of up to $1,000 and “imprisonment in the county jail for up to one year.”
Specific approaches to enforcement may differ “depending on the unique circumstances in each jurisdiction” but generally criminal enforcement is “universally being approached as a last resort,” Michael Teague, the communications director for the Colorado District Attorney’s Council, said.
And, across the state, prosecutors have set up different protocols depending on their area, threat levels and conversations with health departments, police departments, sheriff’s offices and even coroners. But common themes of compliance, education and preparation exist.
In Weld County, Michael Rourke of the 19th Judicial District, said in terms of criminal enforcement, or request for enforcement, there has been very little action. The first thing that came to Rourke’s mind when looking at the CPDHE order was what enforcement would look like and whether people should be criminalized for noncompliance.
“One of the things that most [D.A.’s] did was have a conversation with our local law enforcement officials,” Rourke said. While many different approaches can be taken to enforcement, in Weld County, if a complaint comes in, law enforcement agencies will speak with the violators to explain why the social distancing and order are important.
To Rourke, the main focus should be on bringing the violators into voluntary compliance without issuing a summons, adding “that seemed the most responsible way to do that.”
Rourke said he and the county attorney had asked law enforcement to give people who continually refuse compliance a written warning containing why they’re in violation and release them. This creates a history of the incidents showing that some instances were not negligent or a mistake, but a willful violation.
After the written note, if someone continues to violate the order, the county attorney seek an injunctive or declaratory action against them in civil court, providing a court order essentially acting as a cease-and-desist order to the actions that cause violation, he said. “And then and only then, if they continue to refuse to comply would we use criminal enforcement penalties,” he said.
That framework was set up with a caveat, Rourke said. An agreement had been made between himself, the Weld County Sheriff’s Office and local law enforcement that if someone really needs to be prosecuted for conduct, they reserve the right to skip that process. One example would be if there were, say, 15 protesters across the street from a courthouse daring law enforcement to do something and purposefully cough on an officer. “To me, that feels more like criminal conduct,” Rourke said.
He said at the time of the interview, neither he nor his office had received a summons to criminally prosecute anyone under the order.
And in the 12th Judicial District, District Attorney Robert Willett said there had been “very little problems” with businesses trying to stay open or in compliance from the general public. Again, voluntary compliance and education are common trends, on which Whillett said had met with great success. He also was unaware of any complaints at the time of the interview.
Dan May, the 4th Judicial District Attorney, said many details in regard to enforcement were fleshed out in a meeting with health departments, sheriff’s offices and county attorney’s offices. “Here, what we’re doing is that it is investigated by the Department of Health, law enforcement is still seeing it as a lower priority,” May said. “We see it as an educational piece, that’s really our philosophy behind it.”
The multi-level process May described began with a health department verbal warning to a person or business, the second level would be a written warning and the third level would be for the county attorney’s office, which represents the health department, to seek cease and desist orders, “civilly if necessary.” The fourth level consists of a citation for a crime, he added.
“The Department of Health had about 2,000 calls in the first couple weeks that we had this in place,” May said, adding that calls had yet to stop. Many calls involved someone walking down a street, about businesses, kids playing in the park or for the local pickleball league continuing to play during the order.
As of April 15, eight businesses had been contacted by the health department, and six complied upon verbal warning, and two complied upon receiving a written warning, May said. At the time of the interview, May added he was unaware of any criminal citation that was issued to anyone in either El Paso or Teller County.
Douglas Bruce, former legislator, convicted felon and TABOR author, organized a protest of the governor’s orders in a park in May’s jurisdiction. The parks are open to the public, except the picnic and playground areas, May said. Only eight people showed up to the protest, and from photos taken of the protest, all protestors remained six feet apart, May said. “So, this protest became a perfect example of exactly how you’re supposed to be behaving right now.”
Early in the orders, a church in May’s jurisdiction was continuing to meet despite the public health order. But once the health department spoke with them, they had ceased to meet in close proximity, May said, adding many people do not understand the orders and might be confused by wording or the reasoning behind the orders.
“Clearly everyone involved in this just wants compliance,” Pam Russell, a spokesperson for the 1st Judicial District Attorney’s Office, said. “And we certainly don’t want to make additional criminal cases or arrests, because we’re really busy trying to filter out pending criminal cases and those in custody.” Jefferson County Public Health’s website provides a form to report noncompliance, she said. The first steps taken by the public health agency are to talk with those individuals and educate them.
Law enforcement has received many calls about noncompliance, which follow the same attitudes. For the Jefferson County Sheriff’s Office, if they have repeated violations by the same person or business there is a discussion within the organization for further action.
Russell said she was unaware of any cases that had entered Jefferson County courts at the time of the interview saying, “we’re trying to go the other direction.”