Plagues, Police, and Posse Comitatus: Legal
Issues in Forensic Epidemiology and Public
Health Emergency Response
Edward P. Richards, JD, MPH
Director, Program in Law, Science, and Public Health
Harvey A. Peltier Professor of Law
Louisiana State University Law Center
Baton Rouge, LA 70803-1000
richards@lsu.edu
http://biotech.law.lsu.edu
1
The Roots of Public Health
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Leviticus
Roman water and sewer works
Early Renaissance Venice
 quadraginta
Blackstone
 Death for breaking quarantine
2
Public Health in the Colonies
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Most of the population lived in poorly drained
coastal areas
 Cholera
 Yellow Fever
Urban Diseases
 Smallpox
 Tuberculosis
Average life expectancy was short
3
Public Health Law Actions in Colonial
America
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Quarantines, areas of non-intercourse
Inspection of ships and sailors
Nuisance abatement
Colonial governments had and used Draconian
public health powers
 The Police Powers
4
Public Health in the Constitution
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Federal Powers
 Interstate commerce
 International trade and travel
 War
State Powers
 Powers not given to the federal government
 Police Powers
How broad are the state's police powers?
5
Actions in the 1798 Yellow Fever Epidemic
For ten years prior, the yellow fever had raged almost annually in the
city, and annual laws were passed to resist it. The wit of man was
exhausted, but in vain. Never did the pestilence rage more violently
than in the summer of 1798. The State was in despair. The rising hopes
of the metropolis began to fade. The opinion was gaining ground, that
the cause of this annual disease was indigenous, and that all
precautions against its importation were useless. But the leading
spirits of that day were unwilling to give up the city without a final
desperate effort. The havoc in the summer of 1798 is represented as
terrific. The whole country was roused. A cordon sanitaire was thrown
around the city. Governor Mifflin of Pennsylvania proclaimed a nonintercourse between New York and Philadelphia. (Argument of counsel
in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849))
6
Is there a Federal Police Power?
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Constitutional Debate
 US Supreme Court says no, but ...
Can the Feds do local disease control?
 CDC only comes in at the state's invitation
 Is everything interstate commerce now?
Can the Feds require smallpox vaccinations?
 Invasion Clause? Insurrections?
What is the role of forensic epidemiology?
7
How is the Public Health Authority
Exercised?
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Public health law is carried out by state and local
government agencies
The law governing agency practice is called
administrative law
8
Enabling Legislation
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Agencies are established by legislation
 Establishes structure and mission
 Budget
Legislative direction can be detailed or broad
 Protect the public health
 Cheap electric power and plenty of it
 Contrast with the ADA
The Courts allow agencies to “fill in the blanks” if they
are given broad authority
9
Agency Functions
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Rulemaking
 Agencies can make rules to particularize
statutes and for public guidance
 The public participates in rulemaking
Adjudications
Licensing, permits, inspections
Prosecute through the courts
10
Judicial Deference to Agency Action
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Courts defer to agency decisionmaking in areas of
agency expertise
 Fact finding
 Rulemaking
 Cannot be "arbitrary or capricious"
Courts do not defer to agency interpretations of
the law, but look to its persuasiveness
11
St. Mark's Baths
... defendants and the intervening patrons challenge
the soundness of the scientific judgments upon
which the Health Council regulation is based ....
While these arguments and proposals may have
varying degrees of merit, they overlook a
fundamental principle of applicable law:
"It is not for the courts to determine which scientific
view is correct in ruling upon whether the police
power has been properly exercised. The judicial
function is exhausted with the discovery that the
relation between means and end is not wholly vain
12
and fanciful, an illusory pretense.
Why do Courts Defer to Agencies?
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Expertise
 Agencies have expert staff who manage complex
problems
Efficiency
 Agencies have more efficient enforcement powers
because they are not limited by criminal law
protections
Speed and Flexibility
 Agencies can act without new legislation
 Agencies can tap new expertise as needed
13
Is there a Constitutional Right to a Hearing
before the Health Department Acts?

Classic Food Sanitation Case - North American
Cold Storage Co. v. City of Chicago, 211 U.S. 306
(1908)
 Post-action hearings can satisfy due process
 It is left to the regulated party to request a court
hearing
 Is this a taking - Must the state pay for the
chicken?
14
What if You are Locking Up People?
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Must there be a hearing first?
 Not under the US Constitution
 Some newer state laws require a hearing
Must there be a statutory provision for a hearing?
 The Constitution provides habeas corpus
 Right to contest your confinement
Limiting habeas corpus
 The state can require an agency review first
15
Acting in an Emergency
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Power expands with necessity
 Courts do not block emergency actions
 Knowing what to do is what matters
 Emergency powers laws are easy to pass, but
do not solve resource and expertise problems
Law matters a month after
 The more laws you pass, the more loopholes
you can create
16
The Limits of Public Health Law
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Public health law can only be used to prevent
future harm
 Public health law cannot be used to punish for
past behavior
 Punishment triggers criminal due process
Historically the harm was clear and fairly certain,
and was to physical health and safety
 Where does modern touchy feely public health
fit in?
17
Why does Punishment Trigger Special
Protections?
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Criminal law has a long history of abuse by
tyrants
Takes liberty or even life
Searches undermine an individual's sense of
autonomy
Can deprive the individual of the means to oppose
the state’s actions
18
The Separation of Public Health and Law
Enforcement
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Constitutional bright line between criminal law
and public health
 Different standards for proof
 Different standards for due process
 Different goals for restrictions and confinement
Public Perception
 Public health wants cooperation and trust
 Police want fear and respect
19
Criminal Due Process Versus Public
Health Rights
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Right to appointed
counsel
Must have probable
cause for warrants
Trial by jury
Requires specific laws
Standard of proof is
beyond a reasonable
doubt
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No right to appointed
counsel
Probable cause is not
necessary - area warrants
Informal adjudications
Can use general powers
Proof by a preponderance
of the evidence
20
Limits on the Military in Law Enforcement
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The Constitution puts the military under civilian
control
There has always been a fear that the president
would use the military for political purposes in the
states
The military was used to put down several
insurrections in the early constitutional period
21
1878 Posse Comitatus Act
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Prevents the use of the military for domestic
police work
Specifically precludes troops from becoming
directly involved in “search and seizure, and
arrest, or other similar activities.”
Congress amended the Act to allow limited
cooperation with civilian law enforcement through
surveillance and leasing equipment.
Not a constitutional limit
22
Public Health Law in Action
23
The Sanitation Movement
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The Shattuck Report - Boston Sanitary
Commission, 1850
 First modern study of vital statistics
 Life expectancy was 25 years in the city
Communicable diseases were the main killers
 Water borne - typhoid, cholera
 Arthropod vector - yellow fever, typhus
 Food - tuberculosis, brucellosis
 Human - tuberculosis, smallpox, diarrhea
24
Public Health Strategies
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Control sewage and protect drinking water
 Back to the Romans
 As the germ theory evolved, more
environmental measures were added
Smallpox vaccinations were mandatory
 Other vaccines were added
Food sanitation – driven by the Jungle
 Major role in tuberculosis control
25
The Role of Law
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Food and water sanitation was enforced through
legal regulation
Physicians and others were required to report
diseases
Isolation and quarantine for tuberculosis and
other diseases
Building regulations to improve housing
conditions
Administrative searches for violations
26
Effect on Public Health
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Urban life expectancy more than doubled between
1850 and 1950
Urban and rural life expectancy converged
Infant mortality dropped dramatically
While whites did best, all races benefited
27
Was 1960 the High-water Mark for Public
Respect of Public Health?
28
Public Health in 1960
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Tuberculosis is under control
Food and water borne diseases are rare
Yellow fever, malaria, and smallpox are eradicated
in the US
Polio is under control and on its way to
eradication
Vaccinations are routine and not controversial
Most people remember the bad old days
29
Legal Authority for Public Health in 1960
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Broad support for public health
 Health directors are respected
Disease Control
 Disease reporting
 Contact tracing and notification
 Isolation and quarantine in rare cases
Environmental Law
 Drinking water
 Sewage
30
Public Health Loses its Focus
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1964 - Medicaid moves health departments into
personal health services
1970 - Environmental laws shift to long-term, low
level risks, with huge costs of control
The public no longer fears communicable
diseases
Medicine shifts to chronic diseases
31
The Political Support for Public Health
Disappears
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Fear is lessening, but we would not want it to disappear
entirely, for while it is a miserable sensation, it has its
uses in the same sense that pain may be a marked
benefit to the animal economy, and in the same sense
that fever is a conservative process. Reasonable fear
saves many lives and prevents much sickness. It is one
of the greatest forces for good in preventive medicine, as
we shall presently see, and at times it is the most useful
instrument in the hands of the sanitarian.
ROSENAU, 1910
32
Public Health Loses its Nerve - The 1976
Swine Flu Episode
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Swine Flu might have been the next great flu
pandemic
 CDC pushed an emergency national
vaccination program
 The vaccine was thought to have complications
 The flu never materialized
The CDC and public health in general was
traumatized
33
Fallout from the Swine Flu Episode
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The CDC was not willing to endorse politically
unpopular public health actions
Local health departments were afraid to cry wolf
Individual rights advocates set the agenda
Trials lawyers began a crusade against
vaccinations that still continues
34
The Missed Chance
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The Stonewall Riots and the Bathhouse Movement
 Rates of STIs explode
 Syphilis becomes the gay man's disease
A massive hepatitis b epidemic is documented in
the bathhouses in 1976
 Local health departments are powerless
 The CDC never takes a position
Bathhouses stay open: AIDS infects all patrons
35
AIDS Made Public Health Law Fashionable
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AIDS attracted civil liberties lawyers because of
the politics of homosexuality
Paranoia fueled fears of AIDS concentration
camps
Privacy become more important than health or
even life
36
The Impact on Public Health Law
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Lawyers and law students were told public health law
was outdated
 Major constitutional law texts did even mention
powers such as quarantine
 The police power gave way to individual liberties law
Legislatures were lobbied to limit public health powers
 Disease control laws were weakened
 New due process requirements interfered with public
health enforcement
37
Public Health was Vilified
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Public health was portrayed as untrustworthy
 People forgot that most HIV was no secret
 Same folks who had hepatitis b five years
earlier
Public health was faulted for not working hard
enough on a cure
38
The Societal Consensus on Public Health
Broke Down
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Public health experts were displaced by personal
health care experts
Health care ethics were applied to public health
 Personal choice replaced the public duty to get
vaccinated
 Privacy trumped reporting and investigation
Public health funds shifted to individual health
care
39
The Impact on HIV Control
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Health directors gave into to activist demands that HIV
not be treated as a communicable disease
 No screening
 No named reporting
 No contact tracing
No good epidemiology on HIV
 Who is infected?
 What are the trends?
 Why are minorities hit so hard?
40
Public Support for Public Health is at an
All Time Low
Then the World Changes
41
9/11
Anthrax Letters
42
From AIDS to Bioterrorism
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The anthrax letters treated as a police matter
 Epidemiology was used as forensic evidence
 This is a proper use of public health expertise
The Congressional Response
 Bioterrorism Act, Patriot Act and Homeland
Security Act
Public health becomes part of Homeland Security
43
Model State Emergency Health Powers
Act
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Funded by the CDC
Based on two incorrect assumptions
 Traditional state public health powers did not
exist any longer
 States had no emergency preparedness laws
The Role of MSEHPA
 Written as a Model Act
 Should have been a checklist
44
The Fallout of the MSEHPA
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States were convinced that they needed new laws
 Did not resolve conflicts with existing
emergency preparedness laws
 Gave too much authority in some cases
 Created due process traps in others
Most important problem
 Legislatures passed laws instead of budget
appropriations
45
Rethinking the Role of the Military
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Everyone assumes the military will take the lead if
there is a major bioterrorism event
 Local public health and police can barely do
their day to day work
 There is no surge capacity in health care
 No other organized public workforce
What does this mean legally?
46
Revisiting Posse Comitatus
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Does not limit non-police help, such as crowd
control
Does not apply to National Guard units under
state control
 Used as logistic support in floods and other
natural disasters
 Remember Kent State?
Has an exception for insurrections
 Remember Little Rock?
47
42 USC § 1989. United States magistrate
judges; appointment of persons to
execute warrants
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Amended in 1996 to allow the use of military
Said magistrate judges are empowered, within their
respective counties, to appoint, in writing, under their
hands, one or more suitable persons, from time to time,
who shall execute all such warrants or other process as
the magistrate judges may issue in the lawful
performance of their duties, and the persons so
appointed shall have authority to summon and call to
their aid ... such portion of the land or naval forces of the
United States, or of the militia, as may be necessary to
the performance of the duty with which they are charged;
48
Does Posse Comitatus Apply to Public
Health?
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Under traditional constitutional analysis, public
health powers cannot be used to punish
Punishment is the defining characteristic of
criminal law
While it has not been tested, there should not be
any legal impediment to using the military for
classic public health
49
Traditional Cooperation between Police
and Public Health
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Enforce public health orders
 Public health has no troops
 Direct enforcement in some cases
 Usually through a court order and contempt
proceeding
Informal cooperation
 Vice officers and STI control programs
 Communicable diseases in jails and prisons
50
Forensic Epidemiology
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Police need to understand epidemiology to
investigate bioterrorism
Public health needs to understand police
procedures in cases that require police
investigation
It is useful for local police to meet and know local
public health professionals
51
Forensic Epidemiology Meets Homeland
Security
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Plenary speaker at the 3rd Annual CDC Public
Health Law Conference
Bridging the gap between public health and law
enforcement
Using public health powers to extend the reach of
law enforcement
Using public health to create a federal police
power
52
Criminal law Problems as Public Health
Problems
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Natural extension of the "public health is anything
that makes people healthy" view
 Drug abuse and methamphetamine
 Gang violence
Very seductive to public health
 Police and national security folks have more
money and better toys
 Do you want to say no to Homeland Security?
53
Constitutional Issues
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Administrative search powers cannot be used to
undermine criminal rights
 Crack houses are fair game for housing
violations
 Housing violations cannot be a pretext for a
criminal search
Warrantless disease reporting and investigation
cannot be the basis for criminal prosecution
54
Legal Threats to Public Health

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Public health has broad constitutional powers
because of the bright line between prevention and
punishment
 Blur the line and the courts will limit public
health authority
Public health cannot operate under criminal law
due process requirements
55
Political Threats to Public Health

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Some states resist ordinary disease reporting for
HIV because of fears that it will "drive people
underground"
 What do you think going on police raids will do
for public confidence in public health?
 Will public health inspectors become gang
targets?
Will mandatory childhood vaccines require
appointed counsel?
56
Resisting Homeland Public Health
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The biggest threat is political
 The CDC cannot resist Homeland Security
 Local and state public health will have great
difficulty resisting legislators and public
officials on the Homeland Security bandwagon
Public health must protect its core values
 You can provide expertise to the police without
becoming the police
57