RACHEL MARTIN, HOST:
A lot of states have been tightening public health rules again. So what happens if someone doesn't comply? NPR's Martin Kaste has been looking at the actions of law enforcement. And as he reports, police departments are often reluctant to enforce orders.
MARTIN KASTE, BYLINE: If you get arrested for not wearing a mask, actually, you're probably getting arrested for something else.
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UNIDENTIFIED POLICE OFFICER #1: Because you're not wearing a mask.
UNIDENTIFIED POLICE OFFICER #2: This is not hard.
KASTE: Take this video posted by Arkansas Online late last month showing officers cuffing a man inside Razorback Stadium in Fayetteville.
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UNIDENTIFIED POLICE OFFICER #2: I'm about to criminally trespass you from the stadium because you can't follow the rules that we put in place that everyone else is following right now except for you.
KASTE: Criminal trespass is one possible charge if you defy an establishment's mask rule and don't leave. Disorderly conduct is another possibility. But in the main, arrests are rare. Edward Richards is an LSU law professor who specializes in administrative law and national security. And one of the things he's written about is law enforcement's role during public health emergencies.
EDWARD RICHARDS: We're really not seeing any systematic enforcement where people are being arrested or even ticketed for violating the mask orders or the public gathering orders. Now, in some places, there have been some fines for big public gatherings, but even those have been fairly minimal.
KASTE: Police are especially reluctant in parts of the country where there's more skepticism about COVID-19 rules.
DANA SLOVAK: We're not taking it anymore.
KASTE: That's Dana Slovak, who owns a bar in Kennewick, Wash., Koko's Bartini, which he's keeping open for indoor service in defiance of the state's latest shutdown orders.
SLOVAK: My employees are the ones that said, Dana, I can't afford to feed my kids, so we need to fight and stay open this time. I said, OK, I'm behind you.
KASTE: He says some nights are crazy, with a line of people waiting to get in to the 48-seat space. And he's not worried about the cops. He thinks the sheriff is sympathetic. And he says he also got assurances from a city police officer who came by.
SLOVAK: He said there - won't be arresting anybody. I mean, I got the back up from them.
KASTE: A spokesman for the Kennewick police, Lieutenant Aaron Clem, confirms that the department sees its role in this as educational. And when it comes to enforcing compliance with these COVID rules from the state, he says, quote, "We see it as their job" and, in effect, that makes it the job of Justin Nordhorn.
JUSTIN NORDHORN: I am the chief of the Enforcement and Education Division for Washington State Liquor and Cannabis Board.
KASTE: Liquor Boards - that's where states have leverage in this. Nordhorn has about 100 plainclothes officers who carry guns and have powers of arrest. But most of the time, all they have to do is call a bar to remind it not to break the COVID rules. Sometimes, they escalate to warnings and then fines. Only rarely has a license been suspended. Nordhorn tells his officers to show empathy for these struggling businesses, but he also wants to avoid confrontations, like the recent one when his officers delivered a violation notice to Koko's Bartini.
NORDHORN: Once we issued that notice to the licensee, then we had cars coming into the parking lot that would lead us to believe that somebody inside had called some of the patrons. They followed the officers to a nearby parking lot. The occupants began to yell at the officers about infringing on the rights and that type of dialogue, if you will.
KASTE: Protesters also showed up outside the liquor board's local office, as well as the home of one of the officers. All of this points to a broader problem when it comes to enforcing public health of the United States, says LSU's Edward Richards.
RICHARDS: There were never levers for enforcement if there were more than a handful of resisters. That's the core thing to understand is public health mostly depends on a consensus among the public.
KASTE: He says that consensus has become impossible in this pandemic because of mixed messages from officials, even some elected sheriffs. A case in point is Riverside County Sheriff Chad Bianco, who earlier this month posted a video calling California's new COVID rules ridiculous.
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CHAD BIANCO: While the governor's office and the state has threatened action against violators, the Riverside County Sheriff's Department will not be blackmailed, bullied or used as muscle against Riverside County residents in the enforcement of the governor's orders.
KASTE: Professor Richards would never have expected to hear a public official say something like that back in the 2000s when he was doing his work on the SARS virus outbreak. But now in 2020, that kind of message is coming from multiple official sources, even the White House.
RICHARDS: Even in my most pessimistic sense - and my pessimistic sense was pretty pessimistic on pandemic response - I didn't envision this particular failure mode, and nobody else did either.
KASTE: With elected leaders working against public support for COVID-19 restrictions, he says there's no way the police can compel widespread compliance, even if they wanted to.
Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.
