While driving to work on a recent morning, Spokane County Health Officer Bob Lutz saw people holding signs that read “Lutz is nuts” and “Lutz is a tyrant.”
Lutz, who has had to make a string of controversial decisions since the COVID-19 pandemic began, is getting used to the criticism.
“I think people have to understand that my responsibility is to 512,000 residents of Spokane County,” Lutz said.
His recent decision to jail a homeless man who tested positive for COVID-19 and refused to self-isolate has drawn criticism from some Spokane residents, including from advocates at the Bail Project, which posts bail for inmates and advocates against criminalizing poverty.
Sabrina Ryan-Helton, who posts bail for that nonprofit, said Lutz’s decision “smacks of fascism” because the jailed man was not named to the public and did not commit a crime. Ryan-Helton argued that, without naming him, there would be no accountability if the man suffered or even died in jail.
But, Lutz said, critical observers are missing key facts about the situation and jumping to sensational conclusions.
“Believe you me, I had no good choices and this was the best of the bad choices I had,” Lutz said. “The other option would’ve been he’s back out on the street. I look at how vulnerable the homeless population is, and I’m not going to allow multiple homeless individuals to be infected because I can’t keep this one individual in an emergency room.”
The man jailed July 2 was suffering from mental health problems related to alcohol and drug abuse, and refused all other isolation options, said Spokane Regional Health District spokesperson Kelli Hawkins the day of the detainment.
He ended up in the emergency room three times that week for symptoms related to alcohol abuse, not COVID-19, and he left each time without self-isolating, Lutz said.
Ryan-Helton raised concerns about a man refusing to leave a hospital, saying he was safer there than in jail, where he would receive less medical attention and risked infecting other inmates.
But, Lutz said, Providence Sacred Heart Medical Center could not keep the man because he wasn’t sick enough. Hospitals have admission criteria that he did not meet, he said. And while the jail was not an ideal location, protocols jail Director Mike Sparber set in place in March mean the jailed man is completely isolated and “exposing nobody at the jail,” Lutz said.
The SRHD called the man’s family members, who refused to house him. Lutz said he had a staff member on the ground troubleshooting, who made calls to two behavioral health organizations that wouldn’t take the infected man because he was COVID-19 positive, therefore a risk to other people in the organizations’ care.
The man also refused to go to Spokane Regional Health District’s own isolation facility, Hawkins said the day of the detention. Lutz felt that, because of his behavioral health issues, keeping him there wouldn’t have been a safe experience for the health district’s staff, he said.
But Bail Project advocate Angel Tomeo said the ability to jail someone without criminal protections could be used again, to the detriment of the community, describing the health officer’s decision as setting a “dangerous precedent.”
Tomeo said she worried that, with an influx of COVID-19 related detentions, officials could even push to set up tent jails for overflow, rather than trying to isolate people outside of the criminal justice system.
Hawkins said there won’t be influx.
“This is not a precedent,” said Hawkins. “It was a unique, one-time situation.”
Jeffry Finer, a local criminal defense attorney, said civil detentions like this man experienced are not as rare as some might think. Civil detentions, in which people are jailed without criminal protections like a public defender, are not new legal ground, he said.
People who present a danger to the public, “violent predators,” people with serious mental health issues and those who refuse to give testimony in court can be detained, sometimes for years, without a criminal charge.
“He’s not facing a penalty for past behavior. He’s facing a demand for future behavior,” Finer said.
Lutz said it is within his authority to jail people who put others at risk with a communicable disease. Health officers jailed people in rare situations with HIV prior to new medical advances. Today, if someone is “going around willingly harming someone with an STD, tuberculosis,” or any communicable disease, it is within his right to have that person detained.
Lutz said he believes those detentions might not stir the same ire he’s received recently. He said the politicization of COVID-19 creates an uphill battle for him.
“Unfortunately, the national response has been a national disgrace. It’s been fragmented in states, and even within the states,” Lutz said. “There’s a completely different approach to COVID-19 once you cross the Idaho border. Why is a public health issue being politicized?”
He said the numbers make it clear that COVID-19 is a growing threat in the area, not a disappearing one. He pointed to the county’s case numbers. Spokane County had 450 confirmed cases before Memorial Day when it moved to Phase 2. As of this week, the number has spiked to around 1,500 cases.
“There is a fundamental tension that exists within public health ethics,” Lutz said. “Public health ethics looks at the entire population. We have a community-based approach. At times, individual rights become secondary to the larger community.”
He said an example of putting the community’s wellness first would be vaccines, which could be painful or annoying to individuals. But the benefits of herd immunity to the overall population and the most vulnerable people outweigh the costs to an individual, he said.
He pointed to the reasoning of philosopher John Rawls, who argued that one person’s freedom can only extend to the point that it infringes on another person’s freedom. When people argue it’s against their constitutional rights to be made to do something, Lutz said nobody has the constitutional right to harm another person by spreading disease.
“People have questions and concerns and we understand that because we have the same concerns. Oh my goodness, these are things we don’t want to have happen either,” Hawkins said. “But you know if the health district is making this kind of decision, you know it was the last option we had.”
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