Would it be illegal for a US officials to knowingly do a wee genocide?
January 12, 2021 10:51 AM   Subscribe

As I watch my mayor force teachers back into the classroom against their will under threat of dismissal I find myself wondering at their power to do something that will clearly lead to increased spread of covid-19 and will certainly lead to more excess deaths. Is there any possible law or consequence for civic leaders in this kind of scenario that isn't covered by the general sovereign/crown immunity? Can the leaders distribute metaphorical plague blankets and get away with it?
posted by srboisvert to Law & Government (21 answers total) 2 users marked this as a favorite
Well, it's not genocide: https://www.britannica.com/topic/genocide
posted by shanek at 11:08 AM on January 12 [15 favorites]

There would be no problem under US law prosecuting someone for an act which is analogous to plague blankets - intentionally infecting someone.

There would be a problem under US law prosecuting someone for enforcing the teacher contract in the manner they see fit, because it is in the category of every government action or inaction in that it unavoidably harms someone, or increases their statistical risk of harm. Those actions or inactions nevertheless are permitted because there's an offsetting benefit. The judgment as to whether the harm justifies the benefit has to be, for the most part, immunized from prosecution, or no one could ever serve in government for fear of prosecution.

It's important to recognizing that these decisions are routinely matters of life and death. We would save tens of thousands of lives every year if every highway had a 30 MPH speed limit and every surface street had a 10 MPH speed limit. But it would come at a large cost - and someone has to make that cost-benefit decision.
posted by MattD at 11:17 AM on January 12 [25 favorites]

Can we edit this post to not use the word "genocide". It's not comparable, and frankly insulting to people who've actually experienced genocides.
posted by peacheater at 11:29 AM on January 12 [46 favorites]

Yeah, genocide is totally the wrong term here. You are going to get a lot of pushback, and no answer to the underlying question, which is actually a good question, until you change the framing of this to be less offensive, and more accurate.
posted by seasparrow at 12:18 PM on January 12 [3 favorites]

It's not clear that this will "certainly" lead to excess deaths, either, depending on how it's implemented.
posted by bluedaisy at 12:38 PM on January 12 [8 favorites]

While I don't think we have laws specific to deliberate spread of SARS-CoV-2, it is true that there are subpopulations more vulnerable to the various respiratory and pulmonary diseases it causes, which does raise legitimate questions of genocide and whether related laws could be applied.

Nonetheless, laws regarding criminal transmission of HIV might be a starting point for the biological aspect of the question. People in some states have been prosecuted for knowingly transmitting the virus.

Despite the person-to-person context of those laws, that framework might work for going after government officials doing that as a matter of policy to subpopulations. Though that would probably be something an expert would be better to speak to; proving intent in a culture of documented neglect may make charges hard to stick.
posted by They sucked his brains out! at 12:59 PM on January 12 [1 favorite]

The other problem with this argument is that teachers are not being forced into the classroom, they are being forced into making a choice. If the school district/mayor/whoever has defined the teaching positions as in-person, the teacher would not have a legal reason to expect them to change the position so their own individual risk tolerance is met. Unless their contract has something about the safety of the workplace (and if it is a union district, it may well have this), there probably isn't a legal problem with what they are doing.

Ethically and morally is an entirely different question...
posted by _DB_ at 1:04 PM on January 12 [2 favorites]

Unless their contract has something about the safety of the workplace (and if it is a union district, it may well have this), there probably isn't a legal problem with what they are doing.

Not necessarily. It will depend on the jurisdiction and how the courts decide, but wherever you are in the US, your employer has legal obligations beyond just what's in your employment contract. (The poster's profile says they're in Chicago.)

This is probably a question for lawyers in the jurisdiction in question. If you have a union, they should be in contact with a laywer who has experience in these types of cases (e.g. workplace safety, negligence).

That said, I think your chances are pretty low regardless of where you are. There has been a lot of pushback against in-person teaching from teachers, and AFAIK no one has been successful on legal grounds. If your employer is willfully ignoring safety measures *after* you're at work, then maybe, depending on what exactly they do, what you can prove, and what's in the Illinois Covid-19 liability shield law at the time. (I looked for long enough to determine that one has been proposed, but not what its chances of being enacted are or the details of what's in it.)
posted by Kutsuwamushi at 1:19 PM on January 12

I don’t feel good about forcing the issue with teachers; I would be perfectly happy for my own kid to stay remote as long as need be to lick this stupid thing; but I also don’t think the evidence for excess deaths due to classroom teaching merits this framing. I’m not in infectious disease but I am a scientist and have read a fair amount of the primary literature on this issue. The data on excess risk for teachers are poor and ambiguous; to me they suggest some excess risk for testing positive, versus a sensibly defined comparison group (eg non-essential workers, teachers not teaching in person), but not a lot of excess risk, quite a bit less than that borne by medical workers, and not definitively (small effect size, edge of statistical significance kind of stuff). I know of no data that clearly point to classrooms playing a major role in spread within a community, but would be eager to read such a study if there is one.

Anyway, based on what I know I see no risk to governments in taking this tack (aside from strong unions calling their bluff — not sure if that’s on the table — or the sizable group of parents who prefer the status quo rising up in some way).
posted by eirias at 1:21 PM on January 12 [7 favorites]

I don't understand how it would be illegal to make someone do their job. OR they can quit. Many of us had no choice but to go to work or be fired during the pandemic. And many of us have been working for nearly a year without catching the virus.
posted by maxg94 at 3:32 PM on January 12 [3 favorites]

Reading the responses here is a sad indictment of the tech world's understanding of basic principles of labor rights, to say nothing of the technical law of labor and torts. Of course your employer might be liable for unsafe conditions in your workplace that harm you. As always, the specific facts will be extremely important in determining whether liability exists, but do people really think that employers can ask people to work without protective equipment in, say, an asbestos-laden environment and not be liable when they develop lung disease, because they're "only asking them to choose between doing that and being fired?" Even beyond OSHA, EPA, etc. regulations, this is what tort law is for.

A more fundamental theoretical barrier to relief in these circumstances is state sovereign immunity, which ordinarily prevents people from suing states or their agencies or instrumentalities. However, in many states, the state-as-employer has waived or circumscribed its sovereign immunity, so whether you could recover even if you could show "actions creating unreasonable risk causing harm" that is essentially the basis for negligence liability (not a simple task in these circumstances) would depend on the law in your state.
posted by praemunire at 4:45 PM on January 12 [7 favorites]

I just want to add that as someone who has been managing HR during this pandemic (in Canada), the workplace absolutely has responsibilities for health and safety.

However, if the government mandates that we can be open, our responsibility is to keep our workplace safe within their guidelines. So it's not really up to us whether we can open or not, but we can be sure there's PPE, distancing, we limited our classes dramatically, had cleaning, etc. My kids have been in in-person school with what I would call "medium barely ok" standards and my own staff has been at work (until a few weeks ago) with "pretty good" standards.

None of that is zero risk. But thinking of it as all or nothing may not actually protect teachers.

I don't like the 'genocide' framing. I don't think the employer's responsibility is zero however.
posted by warriorqueen at 5:22 PM on January 12 [2 favorites]

BTW people saying the risk is probably low because the data around risk is poor, are basically saying that the risk is low because we don't know what the risk is, which is a really stupid way to think about risk. That's what risk is - the things we don't know if they're going to happen or not, but will have huge consequences if they do.
The risk in this case is actually pretty high.
Sorry this doesn't directly answer your question but this thread is a hot mess of bad information.
posted by bleep at 6:43 PM on January 12 [5 favorites]

I'm not a labor attorney so can't weigh in on such a fractious issue from a legal standpoint, but from a public health aspect, I believe we need to take seriously the new variant virus strains, which are much more contagious than the original strain. Data based on earlier and less contagious virus strains doesn't currently represent the risk to teachers and students and their families - teachers and students inevitably go home and share their environmental contacts. The creative and prescient answer is to offer vaccination pronto to teachers and every staff member interacting with students or teachers, and then to move instruction back into schools. Imagine the increase in the workforce if parents were able to send their children reliably and safely back to school!

In my location a few, though not many school districts have had in-person classes for several months, shutting classrooms temporarily as isolated outbreaks occur. Some have mainstream students in remote classes, but in-person classes for special-needs students, or a blend of in-person and remote for all students. A few remain remote only. It seems the choices made are largely due to the power of various teachers unions and the pressure of parents, who are as passionate about in-person as they are about remote-only.

Imagine how all this anger could be tamped down if school staff, teachers, administrators, bus drivers, playground monitors, and special education staff were immediately offered vaccination.
posted by citygirl at 8:54 PM on January 12 [2 favorites]

It probably depends on the specific health and safety law in your jurisdiction. If an employer sends an employee into a high risk situation without a proper risk assessment or taking relevant mitigating actions then there could potentially be a case to answer under workplace health and safety law and duty of care. It doesn't necessarily make a difference that the employer is public sector. It's also not necessarily a criminal offence, it might be a civil one instead.

This is different to the plague blankets which were deliberately, rather than carelessly, distributed. If you think that teachers are being deliberately placed at risk in order to actively infect them because the government want to reduce the number of teachers then that may be prosecutable as a criminal offence (the precedent being deliberate HIV infection cases) although the burden of proof would be high.
posted by plonkee at 4:51 AM on January 13

BTW people saying the risk is probably low because the data around risk is poor, are basically saying that the risk is low because we don't know what the risk is, which is a really stupid way to think about risk.

Well, some of us have had kids in in-person school or work in schools/childcare, and we have seen what the data suggests (pre-UK variant) and that is that infection rates in schools track with community spread. I personally do believe that Covid spreads in schools - however, through my work and through my kids I have received emails about cases in 11 elementary schools and 2 secondary schools. This is in one of the largest boards in North America (two boards actually.)

In each case -- and believe me, I am not thrilled about how things were managed -- the classes self-isolated, in most cases the students all tested, and in general 0-2 more cases resulted from the first case, very few of them teachers. That isn't great and it isn't zero, but it does show that with proper mitigation measures it is possible for teachers not to be snuggling in a vat of smallpox. We did lose a child and youth worker from one of our two boards, and that's awful.

In other words, if you were the child next to the child who got sick, or you were a non-masked kindergarten teacher who still helps kids do up their pants, absolutely you could get sick! Schools need to mitigate risk and it may well be that (as is the case now here) when community spread is high they should be virtual. But you may get further insisting on small class sizes, masks, barriers, cleaning/sanitizing supplies, and good practice - because that is an employer responsibility.

Simply saying there's a risk of spread in schools therefore this is genocide is really unhelpful. I think if the OP wants to have a real impact, the OP will have to be aware of what is actually happening around the world in terms of schools and teachers, as well as what the pressures are. One of the kids in my son's class was crying on Zoom yesterday because he couldn't figure something out - and there was no adult home to help him. He's 10. At least he has internet access and a device, but that family needs more.

My friend is a pediatric nurse who started the pandemic pro staying home and now is rabid about school openings - there is a silent epidemic, which politicians may have data on, of suicides, suicide attempts, burns, injuries, etc. due in part to school closures. It's really, really tough.

I think there are a lot of people on this site who are sitting at home reading studies, which is great and important, but some of us have been on the ground doing and our perspective may be just as or more helpful in understanding how to approach safety for teachers, which I do.
posted by warriorqueen at 6:11 AM on January 13 [3 favorites]

bleep, thanks for the link to the Montreal plots. I wonder whether there’s a preprint somewhere. I’ll dig in later.

I think we have at least two kinds of risk here. What is the risk that teachers will die in large numbers because they are sent back to school? When I say the data on teachers and COVID are poor, I mean a couple of things: existing studies that I know about all have design flaws or reasons it’s hard to extrapolate to the context in the US, and 95% confidence intervals around the point estimates for relative risk do not reliably exclude 1, meaning there is not reliable evidence for increased risk relative to some baseline group. We’re not in a situation of knowing nothing. We know something; it’s fuzzy; to me it does not look anything like a wave of teacher deaths outpacing the community by leaps and bounds. It might look like some excess deaths (I do not know of a study that has looked at that outcome specifically). I still think we should tread carefully and keep collecting better data. (I am also hella worried about the new variant, to be honest, I am just not sure what can be done about it by schools. In what must be a familiar refrain for educational leaders, there are larger societal problems they must contend with but cannot directly fix.)

Another kind of risk here is the higher level risk of being sued to hell and back for exposing your employees to health risks. I fully admit this one is more in praemunire’s bailiwick than in mine. My understanding of courts is that they by and large do not understand statistical evidence. This statistical evidence is weak to start with and I would imagine that should make courts less likely to award big money to a large class of plaintiffs. But I am happy to be corrected if I’m wrong and statistical naïveté is (for instance) more likely to result in *unpredictable* awards. Which I could buy.
posted by eirias at 9:29 AM on January 13

I just want to echo what MattD said. The decisions being made right now are not decisions being made intentionally to kill people - and if they were, and if intent could be shown, that would be a criminal offense. But the decisions being made right now are tradeoffs between different kinds of risks and benefits, with different kinds of danger to different groups of people. (Suicide, accidental injury and death at home, child abuse...)

Making choices that carry a risk of people dying, or certain people having risk vs others, is par for the course. Making those choices wrong isn't a crime by itself. And the number of other people making the same choice re schools is a good legal argument that it's a "reasonable" one, so it would be a very uphill battle.
posted by Lady Li at 5:49 PM on January 13 [1 favorite]

We know something; it’s fuzzy; to me it does not look anything like a wave of teacher deaths outpacing the community by leaps and bounds.

That's not the point. The point is if X teachers go to the hospital and Y grocery store workers go to the hospital and the hospital only has Z capacity, it doesn't matter what the professions are of the people in the hospital. What matters is there are too many people in the hospital. And that's the situation that our leaders are knowingly creating.
posted by bleep at 12:44 PM on January 14

If individuals are not allowed to make choices to protect their own health, and are forced into situations where there is a known risk of death & long term disability, and it's either that or starve, I don't know how you can look at this situation and say everything is just fine because my childcare situation would be fucked up otherwise. Both things can be true that childcare should be handled, which it is not, and the state is forcing individuals into life or death situations which they have no say in.
posted by bleep at 12:55 PM on January 14 [1 favorite]

We are up to 4,000 deaths a day. If this wasn't someone's goal then they would be doing things differently.
posted by bleep at 6:25 PM on January 14

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