Coughing on police, merchandise may be prosecuted as terrorism in war on coronavirus

On March 10, a man named Cody Lee Pfister walked into a Missouri Walmart and filmed himself licking deodorant on one of the shelves.

According to the statement of probable cause Warrenton police later used to secure a warrant for his arrest, Pfister turned to a phone camera and asked, "Who's scared of coronavirus?" before sticking out his tongue and "dragging it across approximately ten (10) containers on the shelf and a portion of the shelf itself."

He and friends shared the video on social media, where it promptly went - well, viral - with 40,000 shares on Facebook and more on other platforms. Within days, the 26-year-old was charged with making a terrorist threat in the second degree, a felony.

"It was idiotic, moronic, all those things," said Pfister's attorney, Patrick Coyne. "But was it felonious? That's going to be the question."

Attorneys and law enforcement officials are suddenly grappling with questions like that one - if not precisely like that one - amid new regulations aimed at stopping the spread of covid-19. As governors and mayors issue stay-at-home orders and ban gatherings, law enforcement personnel are tasked with making sure citizens comply with unprecedented restrictions on their freedom of movement and, in some cases, their livelihoods, during a crisis unlike any most have ever experienced. And they are doing so in full knowledge that to enforce laws meant to keep people apart, they must come in close contact with would-be violators.

"Police are put in this unenviable position of trying to enforce that," said Chuck Wexler, head of the Police Executive Research Forum, a group of state and local police executives that researches ways to improve policing practices.

"The challenge is finding a way to engage with the public when you don't want to arrest someone. That's the last thing you want to do. You want to educate the public - and not make people's lives worse than they already are."

While law enforcement officials around the country are spending more and more time breaking up gatherings and knocking on doors of nonessential businesses that flout closure orders, they are also encountering a less familiar offense: People are using the novel coronavirus itself as a threat by coughing on officers or one another, threatening to cough on those around them, or contaminating merchandise at stores.

In one instance, Gerrity's grocery store in Hanover Township, Pennsylvania, was forced to throw out $35,000 worth of food when a woman allegedly coughed and spat on it on purpose and claimed to be infected with the virus. She was charged with making terroristic threats, among other things. A man faces similar charges in Minnesota for allegedly coughing on a grocery store employee and making false and racist comments about the cause of the virus.

In Manalapan, New Jersey, a Wegmans employee asked a 50-year-old man to move away from her and the display of prepared foods she was tending. Instead of backing up, the man allegedly moved closer, coughed and told her he was infected with the virus.

In another disturbing pattern, reports are mounting of Americans threatening law enforcement officers with the virus. In Alaska, a woman allegedly caught shoplifting told officers she was suffering from the virus, before retracting that story to avoid felony charges. In Martin County, Florida, a man pulled over on suspicion of reckless driving allegedly told officers he was suffering from the virus, removed a mask they gave him and began intentionally coughing toward the officer. He was charged with assault and threatening a public servant.

"We have zero tolerance for this despicable behavior, and anyone who threatens the health and lives of my deputies will face the maximum charges," Martin County Sheriff William Snyder wrote in a Facebook post about the incident.

The fact that many officers are becoming ill with covid-19, the disease caused by the coronavirus, has lowered the tolerance for such threats. The New York Police Department reported this week that a dozen police officers had died of the virus and 20 percent of its uniformed workforce was out sick. In New Jersey, 573 law enforcement officers, about 1 percent of that workforce, were infected across the state as of Wednesday afternoon.

So many New Jersey officers have faced verbal threats of infection that state Attorney General Gurbir Grewal announced plans to take over the prosecution of a half-dozen such cases. Those include cases involving two men who allegedly spat on officers responding to reports of domestic violence, and a woman allegedly trying to fend off a DWI arrest. In one case, Grewal said, an officer who was spat on eventually contracted covid-19.

The reasons people make such threats, or follow through on them, fall into two categories, said Steven Taylor, a clinical psychologist at the University of British Columbia who recently published a book entitled "The Psychology of Pandemics."

Some are young adults engaging in "stressed-induced antisocial behavior," he said. "They wish this was all over, and they have a personal sense of invincibility anyway."

Another group, he said, has "more sinister" motivations, including a desire to be "agents of chaos."

The huge stress many people feel as a result of the pandemic is a factor, he said. "It's protracted. It's drawn out. You don't know when it will end. You don't know if the people around you are safe or infected," Taylor said. "And, of course, this is the first pandemic that we've ever seen in the era of social media and Internet connectivity, which is accelerating the spread of fear."

The charges levied against those who allegedly intentionally spread or threaten to spread the virus varies by state and local jurisdiction. But many people involved in these cases have been charged with some form of making "terroristic threats" against others, in addition to more familiar charges such as assault.

In late March, Deputy Attorney General Jeffrey Rosen issued a memorandum to federal law enforcement officials around the country suggesting they might apply terrorism laws to those who threaten others with the spread of covid-19.

"Because coronavirus appears to meet the statutory definition of a 'biological agent' " under federal law, Rosen wrote, "such acts potentially could implicate the Nation's terrorism-related statutes." He pointed to laws regarding the handling or production of biological agents for use as a weapon and hoaxes involving biological weapons.

Grewal believes the use of "terroristic" in these kinds of charges means something different from what many Americans might understand - and even what Rosen, himself, might have meant.

"It's really taking steps or taking measures to threaten the well-being of others," Grewal said. "It's not akin to, like, terrorism. It's more focused on an individual."

Most jurisdictions agree that those offenses warrant arrest and some form of criminal charge.

But unlike others, Grewal also defends an aggressive approach to policing infringements of social distancing and other restrictions.

"Initially, we were in a posture of starting from a warning point of view. . . . But last week, we quickly shifted from warning into enforcement and into a zero-tolerance posture," he said. "That's really born out of guidance from our health department and messaging from our governor that the only tool that we have right now is social distancing and the stay-at-home order."

But Washington state Attorney General Bob Ferguson took a different tack in a news conference last week, advising local jurisdictions against arrests whenever possible.

"Our goal is 100 percent voluntary compliance," Ferguson said. "I want to be very clear: I don't want to have to use the powers of my office to hold accountable those who intentionally violate the governor's emergency orders."

Meanwhile, Coyne, the Missouri lawyer, said the coronavirus prosecutions are not that different from other public nuisance cases. He said he had just wrapped up one in which a man was charged under the same statute as Pfister was. He had pulled a fire alarm in a hospital.

"Which is obviously ridiculous," Coyne said. "That then caused a danger to life. You've got to knowingly do it. That's where I've seen this charge a couple times."

For Pfister's case, Coyne is arguing his client did not commit a felony because he didn't knowingly do harm. The incident took place in early March, long before major alerts and stay-at-home orders occurred in Missouri, even before the World Health Organization officially called the spread of coronavirus a pandemic.

"My argument is pretty clear that on March 10, everything was kind of normal, you know?" Coyne said. "None of us could wrap our head around this pandemic thing."