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COVID-19, Executive Orders and Law Enforcement: Part 1

Posted on 12/11/2020

Last week, we posed the question of what the word enforcement means to you with respect to a law enforcement agency’s authority over mask mandates issued in response to COVID-19.

We posed this question because we believe there’s a lot of bad information on both sides of the pandemic. And it’s only been compounded by the internet, social media, biased 24-hour news networks and some of our politicians who have placed personal agendas ahead of providing the best information available to the public.

We at the Weld County Sheriff’s Office believe public safety and public information go hand in hand. In order to have a safe public, we need to have an informed public.

In that spirit, we decided to launch a public education campaign about law enforcement’s various responsibilities in times of a health care emergency. To get started, we wanted to know as a baseline what you understand about our role in enforcing executive orders and, just importantly, what you think our role should be in enforcing mask mandates.

For this first post, we’re going to tackle the commonly held belief – according to your comments – that an executive order issued by the governor carries the same weight as a law introduced, debated and passed by the state legislature. Technically a mandate does carry the full weight of the law, but as with a lot of things in life – and certainly with this pandemic – there’s a gray area worth exploring.

Why is there a gray area? Because there are lots of types of laws. Colorado Revised Statutes encompasses 43 separate titles. The published volume is comprised of 26 books. We have water and property laws, building codes (aka laws), rules (aka laws) for judicial conduct, tax, corporate, industry and labor laws, laws governing use of agriculture, recreation and natural resources, juvenile law, the model traffic code and, of course, criminal law, to name a few.

So when our elected leaders, both here in Greeley all the way up to the governor’s office and his cabinet, offer blanket statements such as a “mandate has the full force of the law,” they’re not lying, but we have to ask ourselves what law are they talking about and who has the authority to enforce it?

If we go back to the governor’s first executive order mandating non-medical face coverings, Executive Order D 2020 039 issued on April 17, we will see on page two the governor authorized the executive director of the Colorado Department of Public Health and Environment to issue an agency-specific order mandating non-medical face coverings.

The Colorado Department of Public Health and Environment’s order, Public Health Order 20-24, is dated April 9 and encompasses 13 pages. If we turn to the last page, there is a subhead that defines enforcement of the public health order. It states:

“This order will be enforced by any appropriate legal means. Local authorities are encouraged to determine the best course of action to encourage maximum compliance. Failure to comply with this order could result in penalties including a fine of up to one thousand (1,000) dollars and imprisonment in the county jail for up to one year, pursuant to 25-1-114, C.R.S.”

The statement that the order will be enforced “by any appropriate legal means” is vague and can be confusing, but we’d like to highlight an important point. When noting possible penalties, the Public Health Order references Title 25 of Colorado Revised Statutes.

Title 25 deals specifically with laws pertaining to Public Health and Environment in the state of Colorado. In other words, per its own order, the enforcement authority over a mask mandate is the Colorado Department of Public Health and Environment, as well as health departments at the county level.

Law enforcement agencies have no authority over laws stipulated in Title 25. It is intentionally outside the bounds of our authority.

Law enforcement is authorized to enforce, primarily, Title 18, the Criminal Code, and Title 42, the Traffic Code. We also have limited enforcement over certain laws in Title 19, the Juvenile Code, and Title 33, the statute defining laws for Colorado Parks and Wildlife.

That’s it.

We don’t have the authority to issue you a fine if you build a shed that’s not to local building code. We can’t arrest you if you violate the water rights of a neighbor. And we certainly can’t levy fines or take away your freedom through incarceration if you don’t wear a mask because nowhere in Title 18 does it say you are breaking a criminal law by not wearing a mask.

But confusion about the enforceability of a mask mandate isn’t the public’s fault. The blame falls to our elected leaders.

Although the enforcement component of Public Health Order 20-24 is cited correctly, we have yet to hear the governor or anyone else in his cabinet articulate that enforcement of a public health order falls under the authority of the CDPHE and local health departments. That’s because they know most members of the public aren’t going to read an executive order or a public health order for themselves.

Most members of the public are going to seek their information from newspapers, local TV stations, radio, by watching press conferences or scrolling through social media. That allows our leaders to be intentionally vague about the enforcement of mask orders, which is a dis-service to you, John and Jane Q. Public.

Why are our leaders being vague about the enforceability of mask mandates? Because they want the masses to comply for a perceived greater good and they think you are more likely to wear a mask if you think you might face some criminal penalty if you don’t.

And quite frankly, it’s an effective strategy. When most people hear something is a “law” they naturally assume it’s enforced by “law enforcement.” In this specific example about mask mandates however, it’s simply not the case.

But with all that said, we’d like to close with another popular comment we received last week: Lead by example. Although this doesn’t address our question about enforcement, you still make a good point because as law enforcement officers our deputies are highly visible and are often viewed as leaders in the community.

And we think we’ve recognized that since the beginning of the pandemic as well. Sheriff Steve Reams has said throughout he objects in principle to the idea of forcing the public to wear masks, but has assured the governor in print and television news and in our own news releases and social media posts that he can expect our full compliance.

What that means is our deputies know the expectation is that they are wearing face masks when they are in an indoor public place or when they are interacting with the public. Our deputies on the patrol side have also been told to encourage voluntary compliance and to educate people about the possible adverse effects of COVID-19 whenever they encounter someone not wearing a mask. On the jail side, every deputy and inmate has been issued a face mask and they are always required to wear them when in community spaces.

We continue to comply with the mask mandate even though first responders are exempt, according to a revised and updated version of the mask mandate, Executive Order D 2020 138, issued on July 16.

We would like to thank everyone once again for responding to our question last week and participating in the conversation. If you don’t agree with anything we’ve said here, feel free to chime in.

Next week we’ll tackle another topic (it won’t be as long as this post).