Police in Colorado’s mountain communities are doing a lot of educating and even issuing written warnings to violators of local and state health orders designed to slow the spread of the coronavirus.
But if mask mandates, closures, restrictions and locals-only access rules linger for months, warnings will soon turn to tickets. And that worries Western Slope district attorneys who will have to prosecute people for violating regulations that hinge more on compliance than enforcement.
“Across the district, there are issues percolating where the question of public health is being connected with police activity,” said Bruce Brown, the district attorney for Colorado’s Fifth Judicial District, which includes Eagle, Summit, Clear Creek and Lake counties. “We are seeing a lot of police agencies dispatched to retail locations where people are not wearing masks. But they are just educating. They are not citing people.”
In Eagle County, which has a health order that says only locals can access the county’s roughly 844,000 acres of federal land, deputies and officers have not had to issue any citations to violators.
They did, however, arrest a man for harassing a bus driver who demanded he wear a mask on board. Another man was cited for coughing on groceries at Edwards’ Village Market. Those cases involved charges not related to the health order.
Rules are changing like the hands on a clock
With state rules shifting and local counties installing their own health orders — often more restrictive than the state’s — to prevent runaway spread of COVID-19, the illness caused by the coronavirus, both the public and law enforcement, Brown said, “need to be very fluid in their ability to react to all these changes.”
“It’s difficult for some people to know what is in effect,” he said. “If the law presumes you know the law and the law is changing like the hands of a clock, maybe that responsibility is asking too much of the community. So we have built in some leeway.”
And by leeway, Brown means he and his colleagues across the Western Slope are asking police to focus on warnings, not tickets.
“For us, 100% of the time these warnings seem effective and we have not had any egregious or repeat offenders,” said Christian Champagne, the district attorney for Colorado’s Sixth Judicial District covering La Plata, Archuleta and San Juan counties. “The sheriff in San Juan County is giving very stern warnings, that people who don’t live there shouldn’t be there. And he’s had good success with that.”
The San Juan County sheriff was one of the first in Colorado to issue a locals-only rule that allowed only county residents to access public lands. And La Plata County last week announced a “Safer La Plata” health order that delayed the opening of some nonessential businesses until Friday and imposed slightly more restrictive policies than the state’s “safer-at-home” plan.
But Champagne admits it’s a challenge to pursue individuals who violate health orders. He sees potential enforcement more focused on businesses. “A bar that refuses to close or something like that,” he said. “That, to me, seems a little more enforceable.”
In order to prove a willful and knowing violation, law enforcement will have to prove that the violator knew they were breaking the rules. That means warnings.
“We are lucky we have not had anyone need more than a warning,” he said.
The Forest Service in Colorado on April 7 closed developed recreation sites and banned open fires in the state through May 30. The closures shut down restrooms, picnic tables and campgrounds, but kept open trails, trailheads and parking areas. Barbara Khan, with the agency’s Rocky Mountain Region, said this week that Forest Service officials have issued “a number” of warnings and citations to violators of the closure and fire orders.
The three district attorneys say most people know what is expected of them. They are limiting recreational travel, wearing masks, keeping distance from strangers and avoiding gatherings. Brown and his DA counterparts worry that people may grow less compliant if restrictions last for many months.
“God forbid we stay in the safer-at-home status for months on end,” Brown said. “That’s when enforcement has a better ability to be an appropriate tool.”
No leniency for violators of fire orders. Period.
But there is one element of recent COVID-19 clampdowns where DAs are not wavering. Fire restrictions, imposed to limit the chance of a wildfire as firefighting crews and resources are compromised due to the contagion, are high priorities for law enforcement and DA’s are not offering deals.
“No plea agreements for violations of the fire order. Period,” Brown said.
Even with the warnings, Brown and other prosecutors admit there are issues with the legality of rules that limit travel.
“With the 10-mile rule and other travel restrictions, I have some questions I have been struggling with,” Brown said.
But he’s not seeing violators challenging the orders that ban non-residents from public land and county roads or limit travel for recreation to 10 miles.
“You can’t challenge these orders by violating them. You can challenge them politically or challenge it in court, but when you violate the orders, you are endangering other people with your civil disobedience,” Brown said. “We want people to just understand the reason these ordinances are in place is really to save lives. So to ask people to give a little bit of their freedom to travel is maybe a small price to pay for a short period of time if the end result is to save your neighbor.”
Brown had a long discussion two weeks ago with Clear Creek County commissioners about their ordinance limiting travel on all county roads only to locals. The commissioners did not change their ordinance, which Brown hopes to not prosecute. He would prefer that the county focused on specific areas that are troublesome instead of a blanket regulation.
“I think ordinances need to be written with the prospect that they could be enforced for criminal prosecution and sometimes the language in a health order … is not clear enough for a prosecutor,” Brown said.
The challenge in southern Colorado is keeping the contagion from spreading across state borders.
While La Plata County, which includes Durango, has seen a steady decline in reported COVID-19 cases, nearby New Mexico is struggling with outbreaks. San Juan County, which includes Farmington and Shiprock, New Mexico, this week reported 736 positive cases and 57 deaths. The Navajo Nation, which is contiguous to Colorado, is reporting 2,474 cases and 73 deaths. That poses a challenge to Champagne, who would have to potentially prosecute non-residents for traveling to La Plata County to escape hot spots in northern New Mexico.
“We can’t station cops at the border and say ‘Where are you coming from?’” Champagne said. “It’s all for the best if we continue to be empathetic to our partners across state and county lines in these challenging times. We are talking about some big picture legal issues, and until a case lands in our lap, we can’t really explore them. I just hope we don’t have to.”
Americans have a right to travel freely across counties and states but very specific circumstances allow restrictions on that right. One of those circumstances is a public health pandemic.
“That type of restriction would be under very strict scrutiny by the courts,” Champagne said, “so we need to narrowly tailor the restriction to meet that public health need.”
Dan Hotsenpiller has perhaps the most restrictive health order of any of the Western Slope district attorneys. Gunnison County, part of the vast Colorado Seventh District that includes Delta, Hinsdale, Montrose, Ouray and San Miguel counties, has banned nonresident owners from visiting their properties in the county.
Like his colleagues, Hotsenpiller has not seen citations for violators of the order, which drew a letter from Texas’ attorney general questioning the legality of banning property owners from entering the county.
“The banishment of nonresident Texas homeowners is entirely unconstitutional and unacceptable,” Texas Attorney General Ken Paxton said in an April 9 statement urging Gunnison County to reverse the second homeowner policy. (An Associated Press review of Paxton’s campaign finance records showed a change in Gunnison County’s no-visitors rule would benefit his campaign donors who had properties in Crested Butte.)
Hotsenpiller said he does not want to see charges coming from any health order in his district.
“We want people to understand and choose to comply with these orders,” he said. “The DA’s office is not enforcement. We have urged our sheriffs and police to first educate and talk about why the orders are there. Only as a last resort are we contemplating people being cited.”
While he will weigh each county’s specific needs, there is one rule he is not going to enforce: The state’s Safer-at-Home rule that limits recreation to 10 miles from your home.
“I drive 15 miles to hike,” said Hotsenpiller, who lives in Montrose. “I’m not thinking of that as an order as much as an advisory to limit wide travel.”
And like his colleagues in the mountains, Hotsenpiller will go after violators of fire orders.
“We do not want to see forest fires or prairie fires right now. We need to be extremely careful because we do not have firefighters available to fight fires like we have in a normal year,” said Hotsenpiller, whose son is a wildland firefighter. “So we are very attentive to fires right now.”