Newly eased guidelines are almost unenforceable, but that may not matter

Even a cursory read of the newly eased “social distancing” guidelines released by the government Sunday morning reveals glaring loopholes and ample room to maneuver around many of the remaining restrictions.

Walked farther from your home than the 100 meters you’re permitted to “get some air”? Just tell the police officer that you were actually exercising, which is permitted up to 500 meters away.

Run past those 500 meters from your house permitted for exercise? Just say you were running to the grocery store or to any other shop in the direction you were going.

But according to Adam Shinar, a law professor at the Interdisciplinary Center in Herzliya, the point of laws of this sort isn’t necessarily the enforcement nor the sanctions, but to instruct the public how they’re expected to act.

To wit: You may easily beat a fine for running more than 500 meters from your house, but you still know you shouldn’t do it.

People wear protective masks at Rabin Square in Tel Aviv, on April 18, 2020 (Miriam Alster/FLASH90)

“These laws are meant to change behavior,” Shinar told The Times of Israel.

Asked about the value of making laws rather than recommendations, Shinar noted the marked increase in the number of people around the country wearing face masks after the measure was required by law, rather than just advised by the Health Ministry.

Police, who will enforce the new regulations, are well aware of the loopholes.

An internal police document from Saturday discussing the proposed changes, which was obtained by The Times of Israel, explicitly highlights that some of the new regulations make existing restrictions on freedom of movement “impossible to enforce.”

The document, which was prepared by the head of police operations, Tamar Liberati, notes that with the opening of nearly any business that is capable of meeting the government’s safety criteria, the limits on where people can go are largely eroded.

“In practice, there is no significance to the [previous] restriction,” Liberati wrote.

Even with these loopholes, however, police will still have the tools to enforce “flagrant violations,” Shinar said.

Shinar, who specializes in constitutional and administrative law, predicted that the government would issue a blanket pardon for most of these social distancing violations a few months after the crisis ends — similar to what the government did for those convicted of crimes during the 2005 Gaza disengagement — though he stressed that this was his own assumption, not based on firsthand information.

Israelis wait outside a bank in Jerusalem on April 20, 2020. (Olivier Fitoussi/Flash90)

More problematic than the loopholes, many of which have existed since the first restrictions went into a effect last month, is the apparent arbitrariness of some of the current guidelines, particularly those dictating which types of stores will be allowed to open, according to Shinar.

For some shops — like hairdressers or tattoo parlors, which require close physical contact — the reasoning is obvious. But others — like florists — don’t have as clear a rationale.

“Why can bookstores open, but toy stores can’t?” Shinar said, citing two examples.

Police also noted a degree of confusion on these matters. While some stores are clearly focused on one particular industry, many shops offer a variety of products, some of which are part of the permitted group while others aren’t.

“The types of stores and businesses allowed to operate isn’t clear and certainly raises many questions and difficulties in designating if a certain business is focused on one permitted type of activity or another forbidden type,” Liberati wrote.

What does a shop that sells both home goods, which are permitted, and jewelry, which isn’t, count as?

These elements of confusion led the police to recommend that local governments, rather than the national police, be responsible for enforcing the regulations over which stores can open.

Though the new regulations officially went into effect on Sunday, police are not likely to begin fully enforcing them for a few days, first issuing warnings and explaining any new developments, particularly those related to wearing masks in public. While those had been required, failure to adhere to the law was not initially punishable. Now it comes with the threat of a NIS 200 fine.