Collaboration between public health and law enforcement: the constitutional challenge - Bioterrorism-Related Anthrax

Emerging Infectious Diseases, Oct, 2002 by Edward P. Richards

In their article "Collaboration between Public Health and Law Enforcement: New Paradigms and Partnerships for Bioterrorism Planning and Response," Butler et al. present a valuable introduction to the practical problems of coordinating public health and criminal law investigations (1). While this problem is not new in public health, the events of September 11, 2001, have given it a special urgency. This commentary outlines the constitutional constraints on such collaborations, with the objective of helping public health and law-enforcement personnel resolve issues that are not addressed by the article.

Constitutional Limitations

The Constitution is the source of all legal authority in the United States. Written in 1789, the Constitution was shaped by the events of the time. The weak union of the Articles of Confederation made it difficult to wage the Revolutionary War, so the Constitution provided a strong central government with the power to wage war and raise revenue directly, without depending on state legislatures. The abuses of power by English colonial governors led to the Constitution's Bill of Rights, which strictly limits the state's powers to prosecute and punish individuals for violating the laws--the criminal law power--and to seize personal property for governmental use--the takings power.

At the same time, the terrible toll exacted on the colonies by epidemic disease (2) led the drafters to allow the states very broad powers to abate nuisances and regulate other threats to the public health. The public health authority is known as the police powers (3), as in "to police," meaning to clean up. Formal law-enforcement departments were formed several years after the ratification of the Constitution. Originally, these departments had broader responsibilities than do modern law-enforcement agencies, including some public health functions, so calling them police forces was more consistent with their original function than their current one.

Under the criminal law power, persons who are accused of crimes 1) may not be subjected to search and seizures without probable cause; 2) may not be forced to incriminate themselves; 3) are entitled to a jury trial; 4) are entitled to legal counsel if they are indigent; 5) are entitled to have the case against them proved beyond a reasonable doubt; 6) must be prosecuted under a law that clearly identifies the forbidden behavior; and 7) generally have extensive due process rights to assure that they are not improperly imprisoned. Under the takings power, persons whose property is being seized for the public good have the right to a court hearing and to fair market compensation for the property. In contrast, under the police power, public health officials 1) may search and seize without probable-cause warrants; 2) may take enforcement actions without prior court hearings; 3) are entitled to have courts defer to their discretion; 4) have great flexibility in crafting enforcement strategies; and 5) must only prove their cases by a "more probable than not" standard if the actions are challenged in court (4).

From the ratification of the Constitution to the present day, tension has existed between the Bill of Rights and the police powers. In a key precedent case, a health department seized and destroyed 47 barrels of contaminated poultry from a cold storage plant. The owners claimed that they had been denied due process and just compensation for the value of the property. The court ruled that the destruction or regulation of threats to the public health entitled the owner only to minimal due process and no compensation (5). Other cases established that persons who threaten the public health could be quarantined or subjected to other limitations on their liberty without triggering criminal law due process requirements. Recent cases have concerned whether land use regulations that prevent construction are an improper taking (6) and whether closing bathhouses violates the right of free association (7).

From the earliest cases, the courts have recognized that the public health powers, defined too broadly, would undermine the Bill of Rights. The courts demand that the state demonstrate that the action ordered is intended to prevent harm in the future, not to punish for past actions, and that the action is reasonably related to the public health objective. A gonorrhea control program that involved the temporary detention of prostitutes until they could be examined or treated for gonorrhea (8) was found constitutional (9) because the detention was not a punishment and prostitutes were shown to be an important factor in the spread of gonorrhea in the community (10). A fire ordinance that applied only to Chinese-owned laundries was found unconstitutional because it was not rationally related to preventing fires and was thus an impermissible race law (11).

The courts recognize that there is a continuum between pure public health laws and criminal laws. The more closely the action approaches a criminal punishment, the more protection the individual is entitled to. Thus, mental health commitments, which have a public health component but also resemble imprisonment, require more due process protections than does a quarantine order, but fewer protections than a criminal prosecution. Preventive detention of accused criminals, such as mobsters who might kill witnesses, most closely resembles imprisonment for punishment and must be done with almost the same level of due process as a prosecution (12).