Sunday, July 5, 2020

DOJ Sounds Alarm Over Violation of Civil Rights in Lockdown Orders

By on April 29, 2020

Attorney General William Barr (Screen capture of https://www.justice.gov)

Puerto Rico Arrests Seen as Potential Violation of Consent Decree

SAN JUAN — The recent memo sent by U.S. Attorney General William Barr, titled “Balancing Public Safety with the Preservation of Civil Rights,” is a missive weeks in the making as debate rages on boundaries being crossed by lockdown measures in several jurisdictions that are seen as a violation of civil rights by the U.S. Department of Justice (DOJ). Puerto Rico is included in the conversations due to the many arrests occurring in alleged violation of executive orders issued by Gov. Wanda Vázquez to enforce lockdown protocol. 

Barr had already sent out prior memoranda directing prosecutors to prioritize cases against those seeking to illicitly profit from the pandemic, “either by hoarding scarce medical resources to sell them for extortionate prices, or by defrauding people who are already in dire circumstances due to the severe problems the pandemic has caused…”

In his most recent memo, dated April 27, 2020, Barr directs each of the U.S. attorneys “to also be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”

To that end, conversations were recently held in the DOJ Civil Rights Division pertaining to the many arrests taking place and fines being issued in Puerto Rico as a consequence of the Puerto Rico Police Bureau’s enforcement of Executive Order 2020-023, which established a curfew and required non-essential businesses to shut down brick-and-mortar operations. 

The most recent statistics, issued by the Puerto Rico Public Safety Department on April 26, put the number of arrests for violating one of the three lockdown-related executive orders at 697, while 1,713 court citations had been issued.

The initial executive order was amended to impose stricter guidance measures including directives that cars with license plates ending in even numbers could only be on roads Mondays, Wednesdays and Fridays, while automobiles with odd-numbered plates were limited to transit only on Tuesdays, Thursdays and Saturdays. Sundays were limited to travel only by those people deemed essential workers—firefighters, frontline medical personnel and members of the media among them. 

“So, theJustice Department has two things that it is looking at—one, in any jurisdiction in the United States, mayors, governors—any executive orders that anyone is implementing—are they violating the civil rights of anyone?” a Capitol  source, who is an insider in Congress and the Trump administration on matters pertaining to Puerto Rico, told Caribbean Business. “So, the Justice Department is thinking: If anyone goes to court to challenge any of these orders, we may join their cause as an interested party because we want mayors and governors and other officials to respect the Constitution and people’s constitutional rights. That is a global view from the attorney general instructing all U.S. attorneys of the United States.

“In the case of Puerto Rico, the Justice Department is looking at an [American Civil Liberties Union (ACLU) case against Executive Order 2020-033, which was thrown out in local court] because of these the other people [in the lockdown protocol] that have been arrested by the Puerto Rico police department and because people have been arrested in such high numbers in Puerto Rico. That case, which was waged in local court, challenged the constitutionality of one amendment to the original executive order [2020-029, which forbade the entrance in homes that did not include members of the nuclear family. Although the ACLU suit was dismissed for lack of standing, the DOJ sees it as an affront worth examining in its most recent analysis of policy by a governor that seemingly has less standing than the federal judge.  

“They are looking at this and they are saying: ‘Is there something here because the Puerto Rico police department is under the supervision of the federal court?’

“In Puerto Rico, you have a higher standard of review by Justice because this police department [PRPD] has an active consent decree. So, the Justice Department has not said: ‘We are satisfied that the PRPD has sufficiently trained its officers and is sufficiently respecting the Constitution that it no longer needs to be under supervision’,” the source pointed out.

The question the policy wonks at the DOJ are asking is whether they could intervene and entirely wrest the governor’s authority over the police force?

“They could, they could go to court and ask for that. They would go to the Article III court—District Court—and ask for a remedy from the Chief Judge [Gustavo A. Gelpí] overseeing the case. And, he is the one who appointed John Romero as the monitor.”

The recent spate of fines and arrests of people in Puerto Rico for failing to follow the executive orders issued by Vázquez continues to hammer at the public safety-civil rights divide.   

Puerto Rico has been in a legally binding consent decree with DOJ as a consequence of an investigation that showed rampant corruption, abuse of power and several cases during which the civil rights of people had been violated. The consent decree requires sweeping reforms to end widespread police brutality on the island and the violation of civil rights. 

Barr laid down the official stance in his most recent memo with this: “If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.”

Because laws are constitutional, until found otherwise by a competent court, the DOJ brain trust is contemplating whether to go to district court and go after the police department as a way to go after the executive orders. “Or, do they go after the executive orders within the context of the law,” the capitol source told Caribbean Business. “They have different people in Puerto Rico—this is really important—depending on when someone was arrested and or ticketed, they may have different courses of action based on whether the police was acting on the first executive order, before the local legislature passed the law, or after the local legislature passed the law leading to subsequent executive orders. This thing has changed so much and she keeps moving the goalposts. So, different people have different courses of action.” 

At this writing, no one has filed suit as an aggrieved party, an element that would be necessary for the DOJ to enjoin the suit as expressed in the Barr memo. The United States is also asking the question whether it is an aggrieved party because the consent decree is being violated by the police department. 

“So, does the DOJ go to the Article III court and say: ‘Judge, we need you to put in writing that the police department can no longer arrest people based on the governor’s executive order and/or this law because we believe it violates the Constitution of the United States and infringes upon people’s civil rights and these people have a consent decree not to do that,’” the Capitol source said. “The DOJ could seek a remedy that the monitor will have to approve the implementation of any guidance by the territorial leadership. What that means in practical terms is that the chief of police would have to check—every time he gets an order—with the monitor. So that, in essence, would be taking over the police department.”

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