Fullerton City Council voted 3-2 at a special meeting on December 21 to not join an amicus curiae (“friend of the court”) brief in support of OC Sheriff Barnes’s opposition to releasing or transferring jail inmates. Barnes is fighting a recent a court order requiring a 50% reduction of the inmate population in group living areas because of spiking inmate COVID-19 cases due to the vulnerability of inmates living in congregate settings.

This court order was prompted by both recommendations from the OC Health Care Agency and a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of Orange County inmates, alleging that inmates should be released because they are medically vulnerable and at imminent risk of serious illness and death from COVID-19.

Orange County Central Men’s Jail in Santa Ana.

Fullerton Mayor Bruce Whitaker, who called the special meeting, joined Mayor Pro Tem Nick Dunlap in voting in favor of joining the amicus brief.

“We as councilmembers have an obligation to help assist in protecting the public,” Whitaker said, arguing that the release of prisoners would pose a risk to public safety.

Councilmember Jesus Silva, who joined Councilmembers Ahmad Zahra and Fred Jung in voting to table the item, said that the order does not require release, but allows for transfer of prisoners to other facilities. Silva said that the Sheriff has not yet submitted a plan, and so Council would require more information before taking a legal position.

“I understand the concern over the release of the inmates” Silva said. “Nobody wants to have violent offenders out there. But on the other side, some of the inmates who we’re keeping in there can’t make bail with this COVID-19 pandemic raging. We don’t know the plan. We don’t know what we’re supporting.”

Councilmember Jung said, “While I appreciate the concerns of those on our Council that convicted violent inmates should not be released to the public, jails are notoriously overcrowded, and awaiting trial should not be a death sentence, which this virus certainly can be for some in our society.”

Tarquin Preziosi, assistant city attorney of Costa Mesa, who works for the law firm Jones and Mayer, was present at the virtual meeting along with Fullerton’s City Attorney Dick Jones.

“While [the order] doesn’t physically require them to release inmates back onto the street, the practical effect of the order is going to be the release of inmates from custody with no supervision because the Sheriff simply does not have the extra capacity,” Preziosi said.

Councilmember Zahra called this speculation since the Sheriff has not yet submitted his plan. Zahra cited the recent spike in COVID-19 cases among OC Jail inmates and staff and stated that the court order is in line with what health authorities and the CDC are recommending.

Mayor Pro Tem Dunlap, who voted to join the brief in support of the Sheriff, said, “The cornerstone of city governance is public safety. And how else can we be proactive in this case than by supporting an amicus brief where the Sheriff is trying to ensure that dangerous offenders are kept locked up?”

Prior to Council voting on the item, the City Clerk read eComments submitted by several members of the public, all of whom were opposed to the City supporting Sheriff Barnes’ opposition to the order.

Fullerton resident Mike Rodriguez wrote, “I’m completely opposed to the amicus brief in support of Sheriff Barnes tonight. People are sick and dying in OC jails, and we can afford to take low-level offenders out and put them on house arrest until this crisis abates. It’s ridiculous to challenge the court decision at this time. We expect better from our mayor.”

Fullerton resident Emily Jackson wrote, “I am strongly opposed to Fullerton signing on to an amicus brief in support of Sheriff Barnes. Barnes needs to comply with the ruling of the Superior Court of Orange County, which found that conditions in Orange County jails violate both the California Constitution and State disability discrimination law. Barnes is not mitigating COVID-19 risk; cases in the jail are surging. A jail sentence is not a death sentence. Fullerton should not support this brief.”

Jose Trinidad Castaneda wrote, “I am concerned that by voting in favor of the amicus brief, the City is needlessly wasting resources we do not have in order to fight Newport Beach Council and Sheriff Barnes’ political battles. Yes, I have public safety concerns, but the Sheriff is charged with keeping inmates alive and safe until they’ve had due process. If he can’t or will not do that, then it’s not the city of Fullerton’s duty to help the Sheriff defy a Judge’s order to do his job. Please vote no.”

Ian Parker wrote, “For most of the last year, Sheriff Barnes has failed to take the coronavirus pandemic seriously. He has not required his employees to wear masks when interacting with inmates, he has not required testing, and he has not given any thought to distancing inmates from one another. I ask the Council to please remember that most County inmates have not been convicted of any crime, and to support Sheriff Barnes violating an order to protect people under his care would put innocent lives in danger.”

Several Orange County cities did vote to support Barnes’ position, including Cypress, Irvine, Orange, Mission Viejo, Dana Point, San Clemente, San Juan Capistrano, Los Alamitos, Newport Beach, Stanton, Garden Grove, and Yorba Linda. Over the past week, Sheriff Barnes has been thanking supporting cities on his Twitter account.

The court order requires Sheriff Barnes to submit a plan to the court by December 31. A status conference on this matter is scheduled for January 8.