Mobile Public Safety Director James Barber said he’s never had many reservations about handcuffing a suspect, but with police tasked with overseeing the enforcement of state health restrictions created to combat COVID-19, he and others in law enforcement have found themselves in an unusual situation.
“We do not want to see law enforcement placed in a position where we’re at odds with otherwise law-abiding citizens just trying to survive,” Barber said. “That’s not what any of us signed up for.”
But that’s exactly what Barber found himself dealing with when he personally responded to a barber shop that opened last month in defiance of Alabama Gov. Kay Ivey’s now-expired stay-at-home order. The suspect? A veteran trying to save his family business after being forced to stay closed for seven weeks.
Last week, Alabama began rolling back restrictions and has allowed retail businesses and beaches to reopen with additional precautions, but despite what many had hoped, restaurants are still not allowed to seat diners and barber shops, salons, gyms and several other types of businesses remain closed entirely.
The task of enforcing these restrictions has been split between health officers and local police, though how the rules are being applied can vary. Since last week, four Alabama sheriffs have publicly stated that their deputies will not take any action against a business or church that violates public health orders including Baldwin County Sheriff Huey “Hoss” Mack.
On Tuesday, Mack took to Facebook Tuesday to announce that his office “will not take any law enforcement action” on businesses or on religious institutions that “are wanting to meet and wanting to get back to business. Mack said he made the decision after “prayerful consideration” and consultation with “a lot of people in the community,” but also with his deputy sheriffs and “other law enforcement.”
“If they are in violation of the governor’s order, we will notify them that the governor’s order is still in place because there are other institutions out there that are a part of this,” he said, noting the Alabama Department of Public Health and “many regulatory agencies outside of the sheriff’s office” can choose to enforce the order.
Alabama Attorney General Steve Marshall issued guidance to law enforcement in March stating that the state health officer and governor have the authority to create public health orders, and police can enforce those orders as law during a state of emergency. However, Marshall has also warned municipalities of overstepping their authority. While they have “broad police powers when it comes to protecting public health,” he said cities must exercise those powers “within constitutional parameters.”
Paul Horwitz, a professor of constitutional law at The University of Alabama, said at face value there’s nothing unconstitutional or unprecedented about statewide stay-at-home or lockdown orders. However, he said that doesn’t mean a specific policy can’t overstep and infringe on personal liberties.
“Any law that restricts our normal liberties so much can raise potential constitutional questions, sometimes in the way it’s written — if it applies to some and not others for no good reason, for instance — and sometimes in the way it’s applied,” Horwitz said. “Although I think these orders make sense as a matter of law and of responsible personal conduct, there’s nothing wrong as such with people being vigilant to make sure the law is respectful of the Constitution and speaking up when they have concerns.”
Many opponents of the restrictions implemented to stop the spread of COVID-19 have argued they are unenforceable based on the belief they violate the U.S. Constitution. Following that logic, many have maintained police should refuse to enforce them based on their oath to uphold the Constitution.
According to Horwitz, state and local officers are just as obligated to support the Constitution as federal officials, but he also said treating that obligation as a license to decide what the law is can be problematic.
“Taking the Constitution seriously is a good thing. Treating the oath to support the Constitution as a personal obligation is a good thing,” he added. “But treating that obligation as a license for every individual with law enforcement authority to make idiosyncratic decisions about which laws to enforce and which to ignore is a different and potentially dangerous matter.”
Mobile County Sheriff Sam Cochran hasn’t made many public comments on the statewide orders, but his office has said deputies have responded to very few complaints, including one about a pastor holding church revivals and another about a party that wound up being in Mobile’s police jurisdiction. A spokesperson said deputies are mostly issuing warnings and have yet to write a citation.
Mayor Sandy Stimpson has argued many more businesses could be reopened with the proper safety precautions in place, but he has also made it clear that Alabama’s public health orders will be enforced within the city limits of Mobile — even if police aren’t aggressively seeking out every single violator.
“If I recall properly, I took an oath of office saying I would uphold the laws of the state of Alabama. I believe that what the governor has done is legal, and so we intend to uphold those laws,” Stimpson said Monday. “We’ve had a very soft approach for those that have chosen to open when they shouldn’t have, and I think in just about every situation those business owners have eventually agreed to stand down.”
Regardless of his personal opinion, Barber agreed that local police officers have a duty to enforce the state health orders to uphold the laws of the state. However, because Alabama law treats violations as low-level misdemeanors, he said there is some degree of discretion in how officers respond to reported violations. He said officers in Mobile are simply asking residents for compliance, for the most part.
“We haven’t had to do anything drastic at all because the majority of people have been compliant. We issued around 80 curfew tickets, but we’ve never had to put handcuffs on anybody or padlock anyone’s business,” he said. “We don’t have enough officers to send someone out to every store. We do respond to complaints, but we are also asking [businesses] to self-police and a lot are trying to do exactly that and seem to be doing a good job so far.”
This page is available to subscribers. Click here to sign in or get access.
It looks like you are opening this page from the Facebook App. This article needs to be opened in the browser.
iOS: Tap the three dots in the top right, then tap on "Open in Safari".
Android: Tap the Settings icon (it looks like three horizontal lines), then tap App Settings, then toggle the "Open links externally" setting to On (it should turn from gray to blue).