Tuesday, February 17, 2015

The Debate On Mandatory Vaccination Often Misses the Mark

[Partial Draft 0.8]
This article explores the current measles outbreak:
  • measles vaccination
  • vaccines in general
  • legal and moral issues of vaccine mandates
  • the right of personal bodily-integrity versus government coercion
  • Supreme Court precedent and public health law
In so doing, I may very well offend all of my readers in one fashion or another, but the intersection of public health policy and personal liberty is probably one of the most delicate balancing acts we perform in the maintainence of a free (and hopefully healthy) society. Disagreement on the matter is virtually guaranteed and probably desirable, especially if we actually look at the facts that somehow persistently escape the attention of the pundits on all sides. The issue is deadly serious: if you aren't offended, you may not be paying attention.

A Pox On Vaccine-Deniers?

There has been a lot of coverage lately of the measles outbreak and many pundits laying the blame at the feet of "vaccine-deniers". The press seems to have gotten tired of covering the Ebola outbreak (which is still ongoing by the way) and found a new toy.

First of all, what precisely is going on? 2015 has, indeed seen an unusual outbreak of measles, which was declared eliminated in the US in 2000 but occasionally resurfaces from overseas, the most recent outbreak apparently from the Phillipines. From December 2014 to January 2015, there were 52 associated cases and 8 hospitalizations. ["U.S. Multi-state Measles Outbreak December 2014-January 2015", CDC Health Advisory, 23 January 2015] Measles is quite contagious, is usually uncomfortable-but-harmless, but somewhere between 1 and 3 in 1000 cases result in death. Is this a problem? Sure. Should people maybe consider precautions and update their shots? Absolutely. Should we panic? I don't usually advise panic as I seldom find it useful even when justified. Should we toss our system of free government out the window and compel vaccinations? Well, probably not.
Are "vaccine-deniers" even really the problem? That is yet to be demonstrated:
In 2013, national vaccination coverage among children aged 19—35 months was 83.1% for ≥4 DTaP doses, 92.7% for ≥3 poliovirus doses, 91.9% for ≥1 MMR dose, 82.0% for the full series of Hib, 90.8% for ≥3 HepB doses, 91.2% for ≥1 varicella dose, and 82.0% for ≥4 PCV doses (Table 1). Coverage remained stable for these vaccinations relative to 2012. Coverage with the combined vaccine series††† of these vaccines was 70.4%, similar to coverage in 2012. Coverage increased from 2012 to 2013 for HepB (birth dose) (from 71.6% to 74.2%), for rotavirus vaccine (from 68.6% to 72.6%), and for ≥1 dose of HepA (from 81.5% to 83.1%). No change was observed in the percentage of children who received no vaccinations.
["National, State, and Selected Local Area Vaccination Coverage Among Children Aged 19—35 Months — United States, 2013", Center For Disease Control, 29 August 2014]
So although prominent graphs are being shared around the Internet showing the recent spike in measles cases, there is no corresponding spike among the unvaccinated. In the current outbreak, 28 (55%) were unvaccinated, 5 of which were too young to receive the vaccination (we do not know how many from the remainder might have been contraindicated for other reasons). So, this stands for the unsurprising proposition that incidence of the disease is higher among the unvaccinated and yet vaccinated individuals still get the disease, even some who have received multiple doses.
Even with high vaccination rates (and the US is among the highest in the world["Think the U.S Has a Measles Problem? Just Look at Europe", NBC News, 7 February 2015]), outbreaks will sometimes occur. Very few diseases are in the category of smallpox in that they can even theoretically be eliminated entirely by vaccination. Most diseases have hosts or carriers other than humans to hide in. 100% vaccine coverage is never possible because some individuals are always unable to have the vaccine (or interact closely with people who cannot (see virus shedding, further on)), the distribution system is never perfect, and we don't always even have the supply we need to effect coverage of the mutitude of disease threats we face.
There is, however, a lawsuit alleging cover up of failures in quality control against Merck, the maker of the MMR vaccine, which could also explain a temporary reduction in vaccine effectiveness:
And as Merck's vaccine is the only game in town, the vaccine's "significantly degraded" quality means "there has remained a significant risk of a resurgence of mumps outbreaks," Chatom says in its complaint.
It claims that the degraded quality of the Merck vaccine played a role in a 2006 mumps outbreak in the Midwest, and in another outbreak in 2009.
[Class Says Merck Lied About Mumps Vaccine, Courthouse News Service]
The lawsuit deals with mumps, one component of the MMR-II (Measles, Mumps, Rubella) vaccine, but Merck also makes the measles component of the vaccine and it is subject to essentially the same phenomenon. It should also be noted that the whistleblowers do not allege that the vaccine is (or ever has been) unsafe, but rather that its effectiveness against wild mumps has degraded over time because neither the vaccine strain nor the test strain have been adjusted to keep pace with the ever-changing wild disease. This is the same basic reason that, for instance, our entire family, all of us current on vaccinations, came down with whooping cough in 2013 before the vaccine was updated. If that is the cause, it makes a lot more sense to sue the dog-snot out of Merck and find a better supplier than to coerce the fairly small number of people who object to vaccinations. Disease control is Red Queen Syndrome; we knew that already.

Here There Be Dragons

So, even though it isn't necessarily true that a) vaccine deniers are responsible or b) a vaccine mandate would make a huge difference, I explore the claims of vaccine deniers and of those who would mandate vaccination (in one fashion or another) and find them both wanting. Since the vaccine/anti-vaccine debate has raged over virtual hectares of the Internet, much of it does not need to be mapped here. I will endeavor to avoid the merely weedy areas of the issue, instead plunging intrepidly into the dense thickets where others fear to tread.

Dispensing With Liability

Let's first dispense with the idea that the non-vaccinated (or their parents), as irresponsible misanthropes, should be sued for wrecklessly spewing disease on their betters.
This is akin to the idea that you should sue your neighbor for leaving their house unlocked because it increases neighborhood crime, or, more charitably, for not sufficiently protecting their own house from fire and therefore exposing yours. Although the latter does have some merit and some good legal analogs in urban, densely populated areas (which we deal with later on), it simply is not the case with measles and the current outbreak even giving the idea the maximum benefit of the doubt.
Let's turn the idea on it's head for a moment. With a number of vaccines using live viruses, the recently vaccinated (often for two to six weeks) can shed virus, potentially exposing those around them. This was particularly the case with the live smallpox vaccine and live polio (neither now used in the US) and their use was often carefully avoided not just with people intolerant to the vaccine, but people who interacted with them on a regular basis. Part of the issue is that the mild strain used for the smallpox vaccine ("vaccinia" = "vaccine") could still cause disease in those with weakened immune systems or be dangerous to pregnancies and that the polio vaccine strain could spontaneously revert to the wild type, resulting in actual polio (though still typically milder).
This is less the case with measles vaccine today (the weakened form is very weak), more so with some flu vaccines and with the oral polio where it is still used. Viral shedding is rarely a threat to a healthy individual but can still potentially hurt someone with a high sensitivity, such as someone recovering from chemotherapy, AIDS, myasthenia gravis, etc., which is why some of the vaccines bear a warning on the box to avoid such contact for up to six weeks. The person who cannot take the vaccine under those conditions is usually told why, but people who may come in contact with them (and who do not know to ask!) are rarely informed when they go to get a vaccination. I have never been given that warning when getting a vaccination for myself or my child.
So, if there is a cause of action for an unvaccinated person accidentally being infected by a virus and passing that on to someone else, is there a corresponding liability for someone deliberately injected with a virus who kills Bob with myasthenia gravis and no immune protection? Is that likely to happen? No, not really, but neither is the reverse. With 90%+ vaccination rates, there are still millions of people unvaccinated in a country the size of the US. Even if we charitably assume that all 8 of the recent hospitalizations were socially-responsible vaccinated individuals injured by irresponsible, misanthropic parents, the chance of a vaccinated person dying from a specific unvaccinated person is in the range of drowning by unattended tea cup.
The problem is admittedly worse when unvaccinated people congregate together in a community because a disease has a bit easier time getting a foothold, something which health practitioners are legitimately concerned about. Recent mumps outbreaks occurred in Amish communities, for instance (although communities which experience this tend to have remarkable increases in vaccination rates the following year). Even at that, with a maximum of one or two hundred measles infections per year resulting in 1-ish per 1000 deaths, compare the (also vastly overinflated) debate over accidental firearm deaths in the US, at 505 fatalities in 2013([WISQARS]), out of over 100 million gun owners, a number which has been dropping steadily for decades. Death-by-snotty-unvaccinated-measles-ridden-child, by comparison, is as close to zero as it is possible to get, and don't get me started on the homicidal maniacs who own stairs, sidewalks, cars, or (shudder) space-heaters. That doesn't mean that you don't take precautions to protect yourself and your family from avoidable injury, but it does mean to me that you don't worry as much about suing your neighbor (at least given the numbers for measles, we'll talk if smallpox comes back...).

Is It Legal Or Moral To Mandate Vaccination?

The question involves at least two contradictory concerns: first, "Does the State have the authority to mandate the use of a vaccine?" and second, "Does the individual have a countervailing right to their own bodily integrity?" The answer to both questions is generally 'yes'. We break the issues down in the next few sections and then tackle the question of balancing these contradictory concerns.

Does the State Have Authority To Mandate Vaccination?

The State has long been recognized to have authority under the police power to deal with public health crises. One of the core reasons for government to exist is to provide for the common defense, and this applies equally to invasion, armed desperados, disease, or fire. There is no question that disease can threaten the public as a whole and that government is empowered within reason to deal with such existential threats.
The exact question of whether government may mandate the use of a vaccine was tackled by the Supreme Court just a touch over 100 years ago in Jacobson v Massachusetts [Jacobson v. Com. of Massachusetts, 197 U.S. 11 (1905)]. During a smallpox epidemic, the Board of Health of Cambridge, Massachusetts, authorized by Massachusetts law, required citizens to vaccinate. Henning Jacobson refused to comply, was arrested, tried, and convicted, the appeals proceeding to the US Supreme Court.
Whereas, smallpox has been prevalent to some extent in the city of Cambridge, and still continues to increase; and whereas, it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated; and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants habitants of the city who have not been successfully vaccinated since March 1st, 1897, be vaccinated or revaccinated. [Proclamation of the Board of Health, 27 Feb 1902, as found in Jacobson v. Massachusetts, cited above]
The court first recognized the authority of the state to issue public health regulations under the US Constitution:
The authority of the state to enact this statute is to be referred to what is commonly called the police power,-a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description;'... According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. [Jacobson v. Massachusetts, cited above]
It then went on to tackle the question of the smallpox epidemic and the vaccination requirement:
Applying these principles to the present case, it is to be observed that the legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the board of health, that was necessary for the public health or the public safety. The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual, nor an unreasonable or arbitrary, requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation,-and nothing is asserted or appears in the record to the contrary,-if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case. [Jacobson v. Massachusetts, cited above]
The authority of the state to quarantine in threat of disease goes back to antiquity and, where reasonable, is upheld today, including in specific instances during the Ebola crisis. The authority to mandate vaccination has been upheld, following Jacobson, several times in the intervening 100 years, although courts have swung over time to emphasizing individual rights and it is possible that a similar matter might be rejected today because legal, social, and medical factors have changed:
The legitimacy of compulsory vaccination programs depends on both scientific factors and constitutional limits. Scientific factors include the prevalence, incidence, and severity of the contagious disease; the mode of transmission; the safety and effectiveness of any vaccine in preventing transmission; and the nature of any available treatment. Constitutional limits include protection against unjustified bodily intrusions, such as forcible vaccination of individuals at risk for adverse reactions, and physical restraints and unreasonable penalties for refusal. ["Jacobson v Massachusetts: It's Not Your Great-Great-Grandfather's Public Health Law", mariner et al., Am J Public Health. 2005 April; 95(4): 581-590]

Is Bodily Integrity a Fundamental Right?

Jacobson claimed that the Massachusetts law violated the 14th Amendment by denying him of liberty or of the privileges or immunities of a free citizen. The court agreed that the Constitution protected liberty and that the right to bodily integrity was obviously such a liberty, as well as that the removal of that liberty was open to challenge in a free society:
There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But... [Jacobson v. Massachusetts, cited above]
The court emphasized that the power could not be used arbitrarily or capriciously, and it had to be rationally justified:
... We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.
[Jacobson v. Massachusetts, cited above]
The court did not say that mandating vaccination would always be lawful and we will get deeper into the defined limits below. It is important to note that the Supreme Court also stated that actually administering the vaccine by force was not justifiable but that the violator could be fined or temporarily quarantined. In the end, Jacobson was jailed until he paid a fine.
Since Jacobson, a number of cases have further outlined a right to refuse treatment, including Cruzan v. the Director of the Missouri Department of Health, where the court found that a competent adult could refuse any medical treatment [Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990)].
Court cases have never seriously challenged the idea that the right to bodily integrity exists as it is so clearly inherent in the rights of life, liberty, and property as well as prohibitions of involuntary servitude. What possible meaning can property have if ownership of own's own body is not asserted? How can we say that we own the product of our labor and not our bodies themselves? In modern times, this has been further enshrined in the Nuremberg Code as a result of the trial of Karl Brandt and other doctors serving the Nazi regime for war crimes related to human experiementation without consent.["Nuremberg Code" Wikipedia, accessed 2015-02-18] Karl Brandt asserted in his defense that there were no defined principles for limiting human experimentation prior to World War II. Clearly, the tribunal disagreed, and although the Nuremberg Code may be the first international document to lay out those principles, they can be found to be well-defined as early as the 19th century ["Informed consent in human experimentation before the Nuremberg code." Vollman and Winau, BMJ. 1996 Dec 7; 313(7070): 1445-1449.]
If a right to bodily integrity is fundamental, it applies whatever we think of the individual's scruples just as does free speech or the Free Exercise clause. Scientific knowledge of danger may add to the right, but evidence of safety may not detract from it. In other words, an experimental vaccine with unknown dangers can make the right more pressing, but concrete evidence of safety cannot eliminate it: the right to bodily integrity covers the right to refuse an earring or tattoo, even though the dangers of either are very slight (several religious texts flatly prohibit them, including, interestingly, the Bible [Leviticus 19:28]), it covers the right to not eat meat or pork, to not consume orange juice without consent, or to not be treated by medical instruments believed to have been touched by unclean spirits. Analysis of relative danger can play a part in balancing the right against public safety and pressing need, but it never takes the right away nor settles the issue permanently, no matter how routine or settled a medical practice becomes.

Where Does The Rubber Meet the Road? Jacobson v. Massachusetts' 4-Prong Test

Zucht v King tackled the specific question of compulsory vaccination in 1922. The case arose under a city ordinance in San Antonio, Texas requiring "that no child or other person shall attend a public school or other place of education without having first presented a certificate of vaccination." [Zucht v King, 260 U.S. 174 (43 S.Ct. 24, 67 L.Ed. 194)] Rosalyn Zucht was denied admittance to a public school under the ordinance and subsequently denied attendance in a private school. The resulting lawsuit rose to the Texas Supreme Court which ruled against Zucht, and the US Supreme Court also effectively found against her by denying jurisdiction and dismissing the appeal.
The Zucht opinion turns on the following statement in determining that there was no controversy requiring the court's attention: "Long before this suit was instituted Jacobson v. Massachusetts had settled that it is within the police power of a state to provide for compulsory vaccination."[supra, Zucht v King, internal citation omitted] Is this statement actually true? As noted above, Jacobson easily found that the right to bodily integrity existed and was protectable, that compulsory vaccination was clearly within the police power, but that the individual application depended on a finding of necessity to support the invasion of the private person. Zucht does not merely treat the ordinance's claim of necessity with deference or allow "discretion" to the Board of Health, it omits the test entirely, and to that extent greatly misconstrues the holding in Jacobson.
However, the Zucht court omitted the test for a reason, and it has nothing to do with whether or not the actions of the Board of Health were constitutional:
These averments do present a substantial constitutional question. But the question is not of that character which entitles a litigant to a review by this court on writ of error. The question does not go to the validity of the ordinance; nor does it go to the validity of the authority of the officials.This charge is of an unconstitutional exercise of authority under an ordinance which is valid. Unless a case is otherwise properly here on writ of error, questions of that character can be reviewed by this court only on petition for a writ of certiorari. [supra, Zucht v King, internal citations omitted, emphasis mine]
Basically, the court never reached the Jacobson test in their decision because of a procedural error on the part of the plaintiff. Jacobson did hold that a mandatory vaccination ordinance would almost certainly fall under the police power (it was not facially invalid) and the question of whether the ordinance was an unconstitutional exercise of authority could not be heard by the court as brought in Zucht(*). So, like Jacobson, Zucht does not unconditionally hold that compulsory vaccination is constitutional, either, which leaves us with the question: what are the tests to determine whether such compulsion is lawful?
Jacobson established a floor of constitutional protection that consists of 4 overlapping standards: necessity, reasonable means, proportionality, and harm avoidance. These standards, while permissive of public health intervention, nevertheless required a deliberative governmental process to safeguard liberty. ["Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension" Am J Public Health. 2005 April; 95(4): 576-581.]
Although there is some overlap between the four prongs of Jacobson, it is important to emphasize that any prospective application must meet all of them. Even if compelled vaccination is found to be necessary in some specific circumstance, it also must be a reasonable means, a proportional response to the threat, and must take care to avoid unnecessary harm, in particular, avoiding application to anyone for whom the vaccine would present particular danger. Legal inquiries often decide vaccination issues on administrative matters and seldom take this aspect of the legality into account. Religious exemptions have been put in place in many jurisdictions, but this again avoids rather than solves the underlying personal freedom issue. People who wish to avoid vaccines (or a specific vaccine) now need only claim a religious scruple without proving it. If as many people are now proposing, those religious exemptions are removed, then jurisdictions will no longer have a means to avoid the full constitutional implications of a mandate in all of their potential ugliness.
If correctly applied, one could argue that the Jacobson test is intrinsicly fair. It acknowledges the existence of the personal right and requires proof that infringement of that right is concretely necessary to protect the safety of the public. Although Jacobson was decided long before the current court doctrine of levels of scrutiny for deciding whether an infringement of a right is constitutional, it closely resembles the definition of strict scrutiny (or, arguably, some level between intermediate and strict scrutiny). Under strict scrutiny, a law will be upheld if it is necessary to achieve a compelling government purpose. "Necessary" implies that the method must be the "least restrictive means" to accomplish the end.["Constitutional Law: Principles and Policies, 3rd Ed." Erwin Chemerinsky, Aspen Publishers, New York, 2006 pp 540-542]. Strict scrutiny is applied when fundamental rights are at issue, including the right to privacy. Jacobson and current jurisprudence both use "necessary" in the same context and in the same way.
It therefore follows that:
  • Vaccine mandates must meet strict scrutiny, both as written and as applied to individuals. At best, if one argues that "necessary" does not mean in Jacobson what it is now held to mean, then a prospective law must meet some bar above intermediate scrutiny ("substantially related to an important governmental purpose") and somewhat less than strict scrutiny (necessary, proportional, and not harmful).
  • Protection of the public health from a communicable disease will always be found to be a "compelling government purpose", but the "necessary" requirement must also be met.
  • Given that, as laid out in Jacobson, other alternatives to actual forced administration of a vaccine will always exist, including temporary and lawful quarantine, actual forced administration will never meet constitutional muster no matter the claimed purpose.
  • Constitutional authority for mandate of an experimental or potentially dangerous vaccine does not exist ("Today, decisions to participate in research or to use experimental and investigational drugs or 'therapies' also require the individual's informed consent, even in the military" [Mariner, et al, 2005 supra]
  • Other mandates might be constitutional, if it is the least restrictive means possible for accomplishing the State's objective in protecting the health and safety of others.
It should be noted, as the courts themselves have often noted, that the judiciary is and must be a poor judge of medical necessity. That is why the courts have generally given great deference to the local boards of health on the relative risks of health measures. At the same time, however, this means that great care must be taken in how that authority is conferred to the boards of health and the authority to violate individuals is never taken lightly. Because the courts are not often in a place to judge the result, the use of the authority ought be avoided in the first place except in those cases where there is no legitimate question that no other means is possible. As we will discuss further on, this should be an exceedingly rare occurrence in modern times.

Substantive v Procedural Due Process

There is also a legal issue at play here which is foreign to most non-lawyers, namely of procedural and substantial due process. The confusion most non-lawyers experience is partly due to the fact that the legal doctrine makes no sense. In 1873, the Supreme Court decided the Slaughter-house cases, among the very first 14th Amendment controversies before the Supreme Court. Although the 14th Amendment says, "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." the court in Slaughter-house decided that the text does not mean what it says, and interpreted it in a fashion which essentially made it useless. The courts have been tiptoeing around this issue ever since.["Reviving the Privileges Or Immunities Clause To Redress The Balance Among States, Individuals, and the Federal Government", Shankman and Pilon, Cato Institute Policy Analysis #326, 1998-11-23].
Shortly after the Civil War, the American people amended the Constitution in an effort to better protect individuals against state violations of their rights. Under the Privileges or Immunities Clause of the new Fourteenth Amendment, constitutional guarantees against the federal government could be raised for the first time against state governments as well. Although targeted initially against the "black codes" that were emerging in the postwar South, the amendment was written broadly to protect all Americans. [supra, Shankman and Pilon 1998, pp 2]
Because the Slaughter-house cases prevented the use of the Privileges or Immunties Clause for its intended purpose, later cases used the Due Process or Equal Protection Clauses to apply freedoms in the Bill of Rights to the states instead. This then required that the two very different uses of the Due Process Clause be distinguished in the law. Properly appreciating the resulting mess is not possible in an article on vaccination, but anyone interested in civil rights law has to tackle the basics to understand why the system is what it is.
No person shall... be deprived of life, liberty, or property without due process of law...[US Constitution, Amendment V]
Most people read this part of the 5th Amendment (and the corresponding language of the 14th) to mean that when something is taken away by the government, such as you are accused of a crime and stand to be imprisoned, there must be a process in place to protect your rights, such as your right to an attorney, to a trial by jury, etc. This is procedural due process. Putting someone in prison violates their rights, but, if the process is followed, they are found guilty of a crime, and justly sentenced, then depriving the right is acceptable under the Constitution.
Substantive due process, on the other hand, deals with things which the government may not do under any circumstances, even if a process is followed. Our legal system does not recognize coerced confessions under the 5th Amendment, no matter the justification. Cruel and unusual punishments are prohibited. It is not lawful to charge a poll tax or otherwise restrict the right to vote. The discussion of Jacobson above pointed out that it is not permissible to force vaccination (hold someone down and administer a vaccine by force). This, then, is a substantive due process issue. Substantive due process is what would logically fall under the Privileges or Immunities Clause, but, because of Slaughter-house, inexplicably does not.Supra, Chemerinsky, 2006 pp 545-547
There are also procedural due process issues related to vaccination. (Zucht was dismissed partly because the procedural due process issue was not presented properly to the court.) Precisely what constitutes acceptable due process depends on what right is being deprived. Usually, the minimum acceptable process requires notice of the action the government is taking and a fair hearing where evidence can be presented. The criteria for what interests must be balanced were laid out Mathews v Eldridge:
  1. the nature/importance of the private interest affected by the official action
  2. the risk of an erroneous deprivation of a right and the probable value, if any, of additional or substitute procedural safeguards
  3. the government's interest, including fiscal and administrative burden of additional procedures
[Mathews v Eldridge, 424 US 319 (1976)]
It seems clearly correct that the nature of the proceeding should be a function of the interest involved, the degree to which the procedure will make a difference, and the cost to the government. An expensive trial-type hearing would be out of place for a minor interest in a situation where there is little likelihood of a factual dispute. But an adversarial hearing is essential, despite its expense, if there is a fundamental right at stake, such as the right of parents to the custody of there children. [supra, Chemerinsky 2006, pp 582]
Although this test is fair as written, the court sometimes applies the Mathews Test, finds that additional protections are required, then ignores the result. In his dissent to the decision in Lassiter v. Department of Social Services, Justice Stevens argues that the Mathews Test is not appropriate where fundamental rights are concerned (Lassiter involved parental custody) because fundamental rights should not be subject to balancing in that way. Appropriate process is (or should be) required no matter the cost or inconvenience to the government. Stevens' approach is in line with modern philosophers such as Ronald Dworkin "Taking Rights Seriously" who argues that fundamental rights, if we actually mean what we say, are still fundamental even when they are potentially dangerous or inconvenient. Dworkin, in later works, further elaborates that the nature of rights is not really to protect "life, liberty, and property" but human dignity which he defines as 1) the opportunity to succeed (not guarantee, but "opportunity") and 2) the right to define success according to the person's own criteria. Both Stevens' and Dworkins' arguments go back to this article's theme that the right to bodily integrity does not hinge on a person's desires with respect to their own body being rational and reasonable.
In applying procedural due process to vaccination, then, as the right to bodily integrity is a fundamental right, the requirements for process should be weighted in favor of the individual. Although Public Health Boards and medical experts are arguably authoritative with respect to medical necessity, they are very much inappropriate authorities for respecting bodily integrity, especially when the wishes of the individual conflict with established medical practice. The tendency is for doctors to wish to preserve life at any cost and to favor intervention; this is perhaps natural to the occupation and to the belief in the effectiveness of medical intervention, without which belief, one would be unlikely to become a doctor. However, when this tendency is at odds with the wishes of the patient, process external to the medical community is required to resolve the conflict.
At the present time, due process is observed in most states which require vaccination by limiting the spheres where vaccination is required (e.g. public schools but not private) and giving notice of the requirements. Exemptions for religion or conscience are also usually given and some type of hearing is often available to resolve issues. In some cases, the courts have determined that procedural limits are not necessary or may be minimal, such as vaccinations for immigrants (they may refuse, but they may be denied residency status as a consequence["Vaccination Requirements" US Citizen and Immigration Services, accessed 2015-02-23]) or for medical professionals at risk of exposing patients to disease who may be required to wear respirators or other precautions in lieu of vaccination, shifted to non-patient duties, or fired with little recourse ["Vaccinating the Health-Care Workforce: State Law Vs. Institutional Requirements" Stewart and Rosenbaum, Public Health Reports (1974-), Vol. 125, No. 4 (JULY/AUGUST 2010), pp. 615-618, Accessed 2015-02-24]
If, as some people now propose, the sphere of vaccinations is expanded (to include private schools or other public places, other professions) or exemptions are removed, there would need to be a corresponding increase in procedure and hearings in order to satisfy due process concerns, unless, of course, we do not, in fact, take rights seriously.

Is 'Require' Better Than 'Force'

Many people argue that vaccine mandates do not violate individual rights if they only 'require' rather than 'force'. The argument goes that as the government is not holding people down and injecting people at gun point, the constitutional issue is avoided. Mandates have therefore focused on punitive actions such as fines, or, most frequently, barring the unvaccinated from access to schools, public services, or other benefits, as exemplified in an ongoing court case in New York likely to be appealed to the Supreme Court.["New York Vaccine Requirement Is Lawful, a 2nd Court Says", Patrick McGeehan, The New York Times, 2015-01-07]Once in a while, as Austin did in the Zucht controversy, they extend the mandate to barring the unvaccinated from private facilities as well, but because of the risk of lawsuit, most jurisdictions have shied away from that extreme or built in religious exemptions.
This viewpoint has no merit. It is a principle of our society from its founding that there is no operative difference between 'require' and 'force':
It is essential to the idea of law that it be attended with a sanction... This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistry or the COERCION of arms... [Hamilton writing as Publius, Federalist #15, emphasis in original]
Note that Hamilton is not inventing a principle here but merely paraphrases Locke in "The Second Treatise of Government" who himself draws on Aristotle. As has been attributed (by Mary Baker Eddy) to George Washington:
Government is not reason. It is not eloquence, Government is force; like fire it is a dangerous servant — and a fearful master.
Or, as Justice Marshal put it in McCulloch v. Maryland, that the power to tax unmistakably involves the power to destroy. [McCulloch v State 17 U.S. 316 (1819)]
It cannot be argued that upholding the law is not an act of physical compulsion, of a lesser nature than commanding someone at gunpoint, certainly, but of the same quality. The court in Jacobson stated plainly that he would not be held down and forced to take the vaccine, yet, Jacobson was incarcerated until he paid the fine. It was a direct and natural consequence of the court decision that someone with a gun forced compliance. In the end, neither I, the Jacobson court, Hamilton, Washington, Locke, nor Aristotle appear to have a problem with that provided that the use of government force is well justified and fairly applied.
This principle has been explicitly enshrined, among other places, in the Unconstitutional Conditions Doctrine, which is defined as holding that the government cannot condition a privilege on the requirement that a person give up a constitutional right. "For example, the government cannot condition welfare benefits on the requirement that a person agree never to criticize the government." [Chemerinsky, 2006, supra pp 557] Goss v Lopez stated that because Ohio made public education available to all and made attendance compulsory, the law "...must recognize a student's legitimate entitlement to a public education as a property interest that is protected by the Due Process Clause..." [Goss v. Lopez 419 U.S. 565 (1975)]
So, we have a holding that the opportunity to participate in public school (let alone private school) is a protectable property interest and multiple holdings that the state may not condition the exercise of a property right on the waiver of another protected right. It is therefore reasonable to conclude that a jurisdiction may not escape constitutional concerns by conditioning the right to attend public school on compliance with vaccination requirements given a fundamental right to bodily integrity. The jurisdiction would still have to show that such an invasion is necessary under the appropriate level of constitutional review and provide an acceptable level of procedural due process.

Do Vaccine-Deniers Have a Case?

Are All Vaccines Dangerous? Some History and Perspective

A general argument that "all vaccines are unsafe" and not merely unsafe but so dangerous that their use is never justified is very difficult to swallow for the simple reason that any absolute statement needs only one counter-example to be disproven. Note that we are not speaking of people who philosophically or religiously object to vaccination; as noted above, philosophical objection on bodily integrity grounds is not required to make sense. In this section, we are only dealing with categorical denial of the safety of all-things-vaccine on rational grounds and the attempt to convice others of that danger on rational grounds.
First of all, the practice of vaccination comprises a wide variety of techniques spanning what is considered modern medicinal practice. If we define vaccination (or more generally, "inoculation") as the introduction of a pathogen, modified pathogen, or simulated pathogen in order to increase immunity and potentially prevent disease, the practice would have to include variolation. In this practice, dried scabs of recovered smallpox victims would be used to introduce small amounts of the virus (though they did not understand "virus" at the time) to a healthy subject in the hopes that their body would fight off the minor infection and gain immunity. In the Americas, this was usually done by cutting or scratching a small patch of skin to introduce small amounts of the pathogen. ["Variolation", US National Laboratory of Medicine, Accessed 2015-02-25]
Variolation was in fact dangerous and was known to be so. The recipient could develop not only full blown smallpox, but other diseases could be spread by the dirty lancets as well. The only reason the practice was used was because smallpox, particularly during an active epidemic, was even more dangerous. George Washington, after much agonizing debate, implemented the practice at Valley Forge because the Continental Army was being devastated by diseases, including smallpox.["Philadelphia Poxes and Plagues", The University Archives and Special Collections Unit, Scott Memorial Library, Thomas Jefferson University, Accessed 2015-02-25 ] Historically, such disease threats in encampment are more dangerous than contact with the enemy. It would be rather difficult to argue, even if safety reporting were extremely slanted, that any modern vaccination practice is as dangerous as variolation, nor that under the dire threat of smallpox at Valley Forge that the danger was not nevertheless justified to keep Washington's men alive through the winter.
In 1796, Edward Jenner realized that an infection with cowpox, substantially less dangerous than smallpox, conferred immunity to smallpox. He experimented with inoculation of cowpox and his treatments, still dangerous, were less so than variolation. (His work, including deliberate infection of a boy with smallpox, also raises serious ethical concerns regarding medical experimentation, but that is another discussion). The medical term for cowpox was Variola Vaccinae, vacca being Latin for cow. This is where the term vaccine came from.["Edward Jenner and the history of smallpox and vaccination", Baylor University Medical Center Proceedings, Proc (Bayl Univ Med Cent). 2005 Jan; 18(1): 21-25]
Many of those who argue against the safety of all vaccines recommend natural immunity as the alternative. While it is quite obvious that natural immunity is much more effective in preventing disease than most vaccines and that is the process our body uses to protect ourselves against myriad exposures every day, it is just as obvious that death or permanent harm is a high price to pay for it. Timing is often critical to the question: during most of childhood, getting chicken pox is very low risk, while getting it as a teenager, or worse, as an adult, is quite dangerous. Getting a disease while the immune system is compromised by something else is also more risky. Ironically, when new vaccines are introduced, but before their uptake in the population is high, the timing problem can lead to higher complication rates because the probability of not being exposed until older actually goes up.
The danger of getting a common disease at the wrong time has lead to the practice of pox parties or similar to enourage a child to get a disease under the best circumstances.[Pox Party, Wikipedia, Accessed 2015-02-25]. The practice of encouraging a child to get chickenpox at the right age used to be quite common, often recommended, before the chickenpox vaccine was available. The risk of complication was always there, it was just lower than the near-certainty of complication from getting the disease later in life. It is odd that some of the same groups of people who reject (all) vaccines as too dangerous have less trouble with the risk attendant in a pox party. Once again, we need to draw the distinction between a risk-based argument and philosophical objection: encouraging early exposure makes more sense where one rejects vaccination for religious reasons, for example strict Amish communities who might not accept vaccines under any circumstances. The weightier issue is that it is hard to draw a definitional distinction between a pox party or the use of cowpox to protect against smallpox, and for example, inhaling weakened live virus to generate immunity in the Live Attenuated Intranasal Vaccine used for inoculating against flu or the Oral Polio Vaccine. All of those approaches seek to introduce a disease to the immune system under less-risky circumstances to promote immunity. It becomes a question of which technique presents the greatest risk-reward trade-off and, therefore, again, categorical rejection of vaccines based on risk appears irrational.
Many arguing categorically against vaccines object to the injection of potentially dangerous substances directly into the bloodstream. While this may raise valid questions with some vaccines, oral or nasal vaccines are obviously not subject to this objection. Similarly, because some vaccines have used live virus, attenuated live virus, killed virus, just viral or cellular components, specific proteins, or entirely synthetic proteins, targeting different diseases, some deadly, some not, some more or less contagious or common/uncommon, all of them leading to different risks/benefits, categorical denial of all vaccines on the basis of risk makes little sense.
The circumstances of active smallpox epidemic in the 1700s or the circumstances of the Jacobson case discussed above may not apply to potentially more dangerous vaccinations against less dangerous or very rare diseases, but to counter the categorical risk-based rejection of vaccines, we need not consider those cases. We need only point out that the assertion that all vaccines of all types under all circumstances against all diseases are too dangerous to consider does not hold up. Interestingly enough, the categorical promotion of vaccines or categorical stigmatization of anyone refusing any vaccine is equally senseless and for exactly the same reasons.
The weaker arguments that vaccines may be dangerous, may be unjustified in some circumstances, or may be more dangerous than often reported or considered is not subject to the same objections. At the same time that no modern vaccination technique is likely to be as dangerous as variolation, few modern disease threats are as dire as the situation faced by Washington at Valley Forge, either. We will consider some of these non-categorical objections in the rest of this section.

In What Ways Might Vaccines Be Dangerous?

Is a Mandate Actually a Good Idea Even If It Were Moral/Legal?

What Alternatives Are Available

Would Mass-Vaccination Ever Be Justified?

Antisocial Narcissists: Who the Hell Cares?

Someone I spar with occasionally online and one of them I respect more than probably 99% of the rest, characterized vaccine-deniers as "antisocial narcissists" worthy of little consideration. Is it true? Maybe. On a bad hair day (with the long hair, the beard, and legs I stole from a distracted orangutan, I have more of it to be a problem, add a migraine and every single strand of it hurts...), I might have a much more colorful response to the statement. But people do have a right to be antisocial narcissists if they want to be. With a few exceptions, people don't tend to be either perfect social creatures or antisocial narcissists, anyway; we drift in our oh so endearing ways to our own specific habits of stubborn antisocial destructive non-conformism, ranging across:
  • The guy my wife laughed about for three miles the other day who spent the whole time jockeying for position and ended the stretch of road further behind us than he started, passing at least three times in between
  • Not caring about your second-hand smoke
  • People who don't wash their hands at the restroom and then fish a mint out of the counter up front
  • People who don't clean up after their dogs in places your kids play and have access to such wonderful parasites
  • Putting off maintenance of your lights or brakes
  • Getting an SUV or truck so high it is virtually guaranteed to smush any Miata it hits into Christmas tinsel
  • Not being careful with the peanut butter knife and the jelly when your housemate has a nut allergy
  • Plugging that eighth appliance into the same outlet in a place with 50's wiring still not updated and a duplex apartment
  • Getting mad and going for a drive to cool off
  • Leaving the blasted dirt rake or hoe in the grass where I can't see it coming!
  • Alcohol and 4th-o'-July fireworks (and then lighting them with a blow-torch)
  • Getting drunk after the game and doing stupid crap
  • Four-way 'country stops'
  • Not cleaning produce before serving it to your family or not properly cooking meat, leaving Chinese food on the counter (or desk) overnight and then spending the next day in the Urgent Care
All of us hate many of these things, could spend pages listing them, some of them things we do ourselves, maybe with a whole host of moral-sounding justifications, but often inately self-destructive. These things do hurt people, perhaps spread disease, or occassionally kill directly. For most of us, the conduct is self-limiting. In our society, as long as they stay low level, it is or should just be dealt with socially and quietly. Government, and its servants, by contrast, are required to act rationally and never arbitrarily. It is simply not permissible for a peace officer or a judge to have a 'bad day' in the performance of their duties or to 'teach someone a lesson'. The bar for State intervention should be high and considered in its application, not out of irrational panic or to punish those that disagree, no matter how much they irritate us.

Thursday, February 12, 2015

A Letter On Marijuana Legalization

A letter to Mike Moon, Missouri 157th District State Representative in response to his recent Capitol Report:


Hoping this letter finds you in good health and in the best spirits possible during your self-imposed exile among the strange and barbaric tribes which inhabit our state capitol ;-)

First of all, thank you for making your stand on the Miller vote, and no, you are not standing alone because we back here are standing behind you.

On the subject of marijuana, obviously a difficult one, I am strongly in favor of legal medical use. There are many of us with chronic pain conditions whose only lawful choice is opiate-based pain-killers. Opiate pain-killers work well for short-term trauma (broken arm) but poorly for long-term pain. Opiates do not stop pain, per se, but allow us to temporarily disassociate from it. Disassociating from life cannot be a long-term solution to pain. We have to daily balance how much we want to be dependent on such medications and how much we wish to suffer. Vicodin/oxycontin/etc. damage the liver, develop tolerance, can be addictive, are often abused, and are hell to come off of.

Medical marijuana might or might not help my condition, but because of the legal issues, I may not find out, even though doctors may prescribe heroin legally, even though there are varieties and formulations of marijuana which have medicinal but no recreational value, even though legalization would encourage the development of those solutions: it is simply not permitted. Whether or not it would help me, I want the option, and I want others who suffer to have the option. Denying access to palliative care is inhuman.

A note of caution, however: when medical marijuana use is legalized, thought must be given to legal definitions of intoxication. Legal thresholds are well-defined for alcohol and opiates usually have a standard. In states where marijuana use has been permitted, they have encountered difficulty with DUI/DWI definitions because marijuana is detectable at significant levels in the blood long after its effects have worn off and alcohol-oriented laws are not appropriate. I can read the law and have a reasonable idea of when I can drive after ingesting alcohol or an opiate-based pain-killer or which pain-killers count as "intoxication" in what amounts and which do not. The law must also give fair notice of expected behavior for medical marijuana in order for people to have the ability to comply.

On recreational use, it is not and has never been "my thing". Even if it were legal, I would be unlikely to avail myself of the opportunity, but I do not know that this gives me the right to forbid someone else from making that choice for themselves. I also am dubious of the distinction between my choice to have a beer on occasion or home brew a batch of wine (have one in the kitchen waiting to be bottled) and someone else's choice to smoke a joint, grow some pot, or make brownies. In particular, there is not and never was a rational basis for including marijuana in the most dangerous category of illegal drugs. The law should be rational and not arbitrary.

More than that, the Drug War has been an unmitigated disaster, causing decades of suffering, destabilizing foreign relations, playing a part in the militarization of police and urban communities, in the misuse of civil forfeiture laws, expanding the black market, placing peace officers in a position as enforcers of morality which many of them have no desire to be, and contributing to the world's largest prison population. It has lead to the eradication of industrial hemp for fiber and fuel, and to the outlaw of medical marijuana. We recognized Prohibition as a mistake and retracted it. It is long past time that we come to the same recognition with marijuana: no matter what we personally may think of the practice.

Sometimes we make mistakes and simply have to live with them, whether we like it or not. Once in a while, we have an opportunity to reassess and choose again. This is one such opportunity, and the process must begin somewhere, with someone. In the meantime, I remain:

Your Most Obedient Servant,

Eric Vought,

Writing in my personal capacity; these opinions are my own and are not official statements of any group or organization.

Sunday, February 1, 2015

MO HB 75 -- Should All Cops Wear Video Cameras?

In response to Mike Brown/Ferguson, Garner/New York, our local issue with the arrest and beating of Bob Estep, and so forth, people across the country have proposed requiring all cops on duty to wear video cameras. In Missouri, this issue has come to a head with the filing of HB 75. People I respect are supporting this measure and I agree with some of its aims, but I also have problems with it, some of which can perhaps be resolved by better wording and some of which perhaps can not. In this article, I am going to explain the proposal as I understand it, explore the underlying issues, and lay out my objections. Hopefully this will lead in the direction of a solution which works.

What Is the Goal?

Let me start by making it clear that I do not believe that all of the examples of police abuse currently in the news are examples of abuse. I am not convinced that Mike Brown is such an example, for instance, but do believe that the throttling of Garner in New York probably is. Sometimes the evidence for or against abuse is simply not there, and this is what advocates of HB 75 hope to change by recording objective evidence from every encounter to help make that decision. In theory, that evidence cuts both ways by:

  1. Providing evidence that a victim was abused when law enforcement goes too far
  2. Providing evidence to clear the officer when the suspect escalated the encounter.

Michael Steinberg, Legal Director of the ACLU of Michigan, states this "win-win" outcome as the position of the ACLU["Violence In Ferguson Spurs Interest In Police Body Cams", CBSDetroit, 5 Oct 2014].

The Missouri law justifying a peace officer's use of force is found in chapter 563:

1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.[emphasis mine]

The rest of the section goes on to discuss use of deadly force in making an arrest. I discuss this in detail elsewhere in the context of the Supreme Court Garner decision and the fact that Missouri law may be unconstitutional as written[Eric Vought, "Tennessee v. Garner and Missouri's Use of Force Statute" guest blog on gundebate.com].

Note the use of the term "reasonably believes" three times in this section. In criminal law, "reasonably believes" sets up both a subjective and an objective standard. The peace officer must believe that the suspect is guilty of an offense and that the arrest is justified. Belief is subjective. The peace officer may truly believe something and be completely mistaken: it still counts as "belief".

The law goes further and requires that the belief be "reasonable", which means that there must be rational cause for the belief. The mythical "reasonable person", confronted with similar circumstances, must be capable of holding such a belief. This is an objective standard which is influenced by previous case law defining what is considered "reasonable" and what is not[Joel Samaha, "Criminal Law, 5th Edition", West Publishing Company, Minneapolis, MN 1996. pp 220-221]. The textbook case dealing with "reasonable belief" is People v. Goetz [68 N.Y. 2d 96, 506 N.Y.S.2d 18, 497 N.E. 2d 41 (1986)]. The opinion in that case goes into detail on the difference between "belief" and "reasonable belief" in finding that a man in the NY subway did not have a "reasonable belief" that the teens he shot were armed and a threat to his life.

So, in the end, then, the question of "reasonable belief" is what we hope to use video evidence to answer, and, specifically, the objective "reasonable" component. There is also an inevitable trap, however: video evidence shows us what actually happened and may go to proving whether an attempt to arrest (and therefore to use force to effect it) was actually correct. The actual question in justifying use of force is not whether the arrest was justified, however, but whether the peace officer "reasonably believed" the arrest was justified. The temptation of video evidence is to get distracted by hindsight rationalization and lose sight of the what the peace officer knew or should have known at the time he (or she) was forced to make the decision. Those two issues are not always the same.

The Limits of Video Exemplified In Rodney King Trial

The Rodney King incident is a good example of misuse of video when context is lost. The short clip the media played over and over showed a number of police beating an apparently helpless man. The media did not show the crucial 13 seconds of video or the non-taped events leading to that moment where the suspect beat and hospitalized several officers and brushed off the effects of the taser, because, the officers believed, King was under the influence of PCP.

Although the later evidence questioned the idea that he was drugged at the time it is clear that the taser was completely ineffective for some reason, the officers did not know at the time whether or not he was drugged, and lawyers for both sides stipulated that King was intoxicated. The extent to which the police used force almost certainly went too far, but the question of whether the police "reasonably believed" that escalation of force was justified was lost (for many people) in the hindsight, knee-jerk reaction to the video clip, which lead to the outraged public reaction at their unexpected acquittal.["The Limits of Videotape: An Echo of Rodney King"]

This is not to say that video is not useful, but rather that it comes with its own dangers which we must be mindful of. In some cases, video from dash-cams or bystanders makes the critical difference in obtaining a prosecution or disciplinary action for use of force, such as the beating of 76-year-old Pete Vasquez where dash-cam footage lead to the firing of the officer. We have to recognize that video footage is not magic, it can be misused, and must be balanced with other evidence.

Some People Are More Equal Than Others

The problem is that other evidence often comes down to two factors:

  1. The word of the the suspect
  2. The word of the arresting officer

Both of these parties have strong motives to lie or color the truth. Both of the parties may have their perceptions colored by stress. Both of them may make mistakes. All things being equal, the testimony of both should be weighed the same.

All things are not equal, however. The incidents are generally investigated by the police themselves and the local prosecutor has a close relationship with law enforcement. The courts and jurors also tend to believe law enforcement over the word of the suspect, especially if the suspect is actually a criminal or can be painted by law enforcement as anything other than a perfect citizen. The problem here is that criminals and riff-raff are no less entitled to the protection of the law regarding use of force than anyone else, and even the most honorable citizen has done something which can call their word into question. Past behavior of police officers in the arrest, however, is often barred by the judge as prejudicial unless the officers themselves call witnesses or submit evidence to their character.

In an ideal world or even one which is moderately fair, a peace officer should be given some benefit of the doubt in whether their actions are justified. Law enforcement does deal with criminals on a regular basis, they are required to put themselves at legal and physical risk to carry out their public duty, they are (theoretically) given adequate training in the limits of the law, and they are often the only ones in the place to judge whether they believed an adequate threat existed. This is the exact same sense in which Castle Doctrine creates a presumption that a home owner is justified in using force to defend themselves and places obstacles in the way of armchair quarterbacks second-guessing their fear of an intruder who awakens them in the dead-of-night.

But again, the world is not ideal and often is not even "moderately fair". Especially when police encounter citizens going about their lawful business and instigate an encounter the citizen has no ability to avoid, we rightly question the deference accorded the law. Pete Vasquez had done nothing wrong. He had dealer plates on his vehicle which temporarily exempted him from having a valid inspection sticker. He did no more than explain this (relatively courteously) to the officer who was in fact mistaken about the law. Vasquez had no ability to avoid the encounter initiated by a police officer. Other similar encounters suggest that, in the absence of video evidence (and the word of a bystander, incidentally), Vasquez not only would not have received justice but he might have found himself charged with being the aggressor and prosecuted. An intruder can choose not to break into a home, but a citizen cannot necessarily avoid an encounter with law enforcement.

Even with body cams, the suspect does not always win a claim of abuse, such as the controversial case in Florida where Victoria King was dragged out of her car at a traffic stop and convicted of resisting arrest despite allegations of excessive force and brutality. The officer was wearing a body cam but the video does not clearly resolve the different claims of how the window came to be broken or whether King attempted to roll up the window on the officer's arm. A video does give the citizen an opportunity to present evidence which might not otherwise exist.

What Does HB75 Try To Accomplish

Let's take the bill summary [PDF] a piece at a time (the bill text is also online [PDF]). We are referring to the Introduced version here, which will likely change as the bill makes its way through committee.

This bill imposes an additional tax of one cent on every retail sale of any handgun or ammunition in Missouri. All revenues derived from this tax must be used solely to provide funds for video and audio equipment for law enforcement officers.

This is the mechanism proposed for funding the body cameras. It should be noted that the bill text is specific, limiting the use of the funds to the implementation of body cameras not video and audio equipment generally. However, the precedent this would make is alarming: gun-control advocates have often proposed taxes on ammunition and firearm sales to fund violence prevention. Those taxes are often shot down (by the electorate or the courts) as impermissible restrictions on the Right To Keep and Bear Arms.

Why should gun owners bear the burden of this enactment? Why not a tax on basketballs or cars or donuts? To put a specific perspective on this, why should unpaid law enforcement volunteers— who already pay for their own equipment (including firearms and ammunition) in order to serve the public— pay for the body cameras as well? If it is important enough to require peace officers to wear video cameras why is it not important enough to fund from general revenue and share the cost equally among all citizens? If this is passed, what precedent does it set for other taxes on firearms and ammunition for other public uses with arguably just as much merit? I would oppose HB 75 on these grounds alone.

The bill requires all uniformed law enforcement officers in Missouri to wear a video camera affixed to his or her uniform while on duty. The video camera must record the interaction between a law enforcement officer and a member of the public. The recording must include both audio and video.

Uniformed law enforcement officers arguably would exclude uniformed volunteers without arrest powers, but, e.g., the Lawrence County Sheriff's Auxiliary includes uniformed volunteers, some of whom are commissioned, who do not possess law enforcement powers and the language is potentially ambiguous. It would be preferable to specify "licensed peace officers" or require arrest powers explicitly. Volunteers may be deputized during an emergency, thus temporarily gaining arrest powers under RsMO 57.119, and the wording may require further tweaking to exclude this case. It is not practical to equip temporary deputies called up in the middle of a dire crisis with cameras. These are wording problems, however, and not fatal to the bill if corrected.

All law enforcement agencies must preserve any recordings made by a video camera for a minimum of 30 days and must develop any policies and procedures necessary to execute these provisions.

Clearly if we are to bother making the recordings, we need to ensure that they are preserved, so this portion is common sense. It is worth mentioning, however, that the videos should not be publicly accessible nor necessarily amenable to Sunshine request (Missouri's equivalent of FOIA) because they likely contain confidential data. This is not to protect the LEO but the rights of victims and suspects. Some of this has been discussed in Columbia, MO where officers now wear body cams (which can be switched on and off at need).

I reject out of hand the idea that law enforcement officers have any privacy right in their public actions. The public they interact with, however, clearly does have a privacy right. It is also important to note that some actions of law enforcement, while being technically public, may endanger law enforcement efforts or the public if revealed. This encompasses the entire sphere of data typically classified as For Official Use Only or Law Enforcement Sensitive and exempted from Sunshine Act requests. Often this protection should only be temporary, such as data revealing details of an ongoing investigation or security measures for a public event.

At a minimum, body cam videos should be accorded the same protection as 911 recordings under RsMO 610.150 ("... shall be inaccessible to the general public... Any closed records pursuant to this section shall be available upon request by law enforcement agencies or the division of workers' compensation or pursuant to a valid court order authorizing disclosure upon motion and good cause shown.") It can be argued that this is made possible by "...shall develop any policies and procedures necessary..." in the bill text, but I, for one, would be more comfortable were it spelled out. Again, this is not a fatal problem with the bill.

These provisions cannot apply to detectives or other law enforcement officers while they are working in an undercover capacity or to any law enforcement officer in any situation where the wearing of the video camera would endanger the safety of the officer or the public.

This provision is also common sense. Detectives interviewing witnesses or dealing with confidential informants obviously should not be [required to be] recorded and nor should undercover activities. In many agencies, detectives are not "uniformed" and undercover officers forgo uniforms for obvious reasons. There is a minor but significant ambiguity here where the lack of punctuation can imply that detectives are only exempted while undercover, which is clearly not the intention but potential confusion can probably be eliminated with slight rewording.

The Devil In the Details

So far we have a major issue with the funding source of the proposal and some wording problems, all potentially fixable. As we dig a little deeper, however, there is a nest of difficulty which is much tougher to resolve.

A large agency often has a clear distinction between patrol officers and detectives. As noted above, detectives are often not uniformed in such agencies, so they might be exempted under the wording of this proposal in any case. It seems likely that large agencies can shuffle responsibilities to make it easier to separate those who must wear cameras and those who should not.

It makes sense to use officers without arrest powers in some situations and I advocate the selective use of non-peace officers in law enforcement to separate certain responsibilities and thereby reduce instances of abuse. Lawrence County's intelligence section is entirely non-peace officer volunteers. This has created important opportunities because some witnesses and informants have come forward who would not be comfortable first approaching an officer with arrest powers. The non-peace officer has no authority to escalate the situation under 563.046. The non-peace officer volunteer becomes a viable bridge between "us" and "them". Such opportunities might also come into play with this proposal.

St. Joseph Missouri's experience with body cameras came with mixed results and issues were raised about the cameras discouraging the interaction of potential witnesses with uniformed officers.

What about small agencies and, in particular, rural Sheriff's Offices?

In many such offices, all deputies wear uniforms. Some of them primarily patrol and some of them primarily work as detectives, but all or most deputies will do both at least some of the time. The county Sheriff himself is a "uniformed law enforcement officer" and may, by turns, respond to a violent incident (should be recorded) or speak with a confidential informant (must not be recorded). A sheriff's office with (e.g.) 20 or fewer full-time deputies likely cannot shuffle responsibilities to make this proposal work.

Unlike the other minor textual problems of HB75, I see no way to tweak the wording to rescue it. Dash-cams, now becoming ubiquitous, do not suffer the same issues. An officer can step away from his vehicle to take a conversation off-the-record. If we give officers the discretion to turn off the cameras according to the nature of their task-of-the-moment, then the entire point of the bill would be undermined: how would we judge the claim that an officer was right to turn off the recorder in a situation where we have no recording and differing accounts? What happens when the recorder is 'accidentally' switched off during an altercation? Alternately, sheriff's offices might be exempted, but will a small-town police department with 6 full-time officers be any better able to comply than a rural Sheriff? If sufficient exemptions are made to correct the problem, will the bill be able to accomplish its objective of deterring police misconduct?

Alternative Solutions?

I am open to the idea that there may be ways to rescue the bill which satisfy my concerns and perhaps some will be suggested by readers.

The State Highway Patrol is clearly an agency with the size and structure. The Highway Patrol already has dash cameras (inward and outward facing) and audio on the troopers themselves. It might be a worthwhile experiment to start with body cams on SHP patrol officers. As a statewide agency, it is clearly appropriate to subject them to statewide policy.

Columbia's experience (along with that of Lowell, Michigan) suggests that body-cams have value even when officers can switch them on and off at will. The Columbia cameras retain video for 30 seconds before they are switched on. If policy requires the use of cameras in police-public encounters, then an officer switching off a camera in a questionable situation will need to justify that decision. If an officer's actions are above-board, they have an incentive to record in order to justify their actions to later review.

If cameras are to be always on (and perhaps even if they are not), the decision of whether to use them should be left to the jurisdiction and its voters. With large structured agencies and access to funding, it is likely that they are appropriate, leaving small localities to balance their needs, funding, and priorities. Columbia enacted their policy without the need for a statewide requirement. I am generally opposed to a one-size-fits-all statewide policy on body cameras and am therefore opposed to the HB 75 proposal as it stands.

Disclaimer and Disclosure

This author is the Commander of the Lawrence County Sheriff's Auxiliary, a unit of non-peace officer volunteers in service to law enforcement. I therefore have a relationship with law enforcement but am neither compensated nor employed by them.

These opinions are my own. Nothing in this article represents any official policy or opinion of the Lawrence County Sheriff's Auxiliary, the Lawrence County Sheriff's Office, any other agency or public/private organization.