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Fullerton Will Not Join Sheriff Barnes’ Opposition to COVID-19 Inmate Release/Transfer Order

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.

9 replies »

  1. These concerns are hogwash! Crime rates are not up! Look at the crime reports. One reason is people are not being hassled for simply walking on the streets or driving an old car! We have more crime when we do things like charge enhancements and unconstitutionally hassle people and use the excuse “There was a phone call…” which is not legally sufficiant to detain a person. Another favorite is to ask to search a person and if the person declines; suddenly this person is deemed “under the influence” and they are searched anyway. A little help, ask why your being detained. To justtify any of it they must be able to articulate what actions lead them to believe you are or may be commiting a crime. Also, ask that they maintain the body cam on.

    This is all unfiortunate because now, it can cost a person his or her life if they contract COVID-19 for these kinds of nonsense encounters that prior to COVID-19 have been business as usual and the courts are aware of this too. That is the ugly underbelly of all of this stuff. We are at risk of massive civil liabiliy now for our policy of charge enhancments.

    So, releasing people for things that at best might be infractions is porbably a very good idea.

  2. Jesse, I was under the impression that the real issue was the sheriff wants the judge to identify those who should be released, instead of having to choose himself. Did this come up at the meeting?

    • The Sheriff must come up with a plan by Dec. 31, which will be presented to the Judge at a status conference on Jan. 8.

      • If he refuses to come up with a plan, how likely is it the judge will simply come up with one of his own, which Barnes will then enforce and be able to wash his hands of the whole situation?

  3. Does anyone know which courtroom the hearing will take place and if it will be live streamed?

    • My father is an elected official in the city in which he retired from the feds a GS14. He had a saying “I don’t have to agree with what you say, but I will defend your right to say it.” These elected officials or civil servants have taken an oath, like my dad did. This oath was not to defend laws he agreed with and cause anarchy in instances in which he did not. A refusal to comply is grounds for immediate dismissal. It is not a matter of if I agree, it is about his job to respect those in authority, even when you do not agree and following proper channels. He must put aside his opinion and follow proper procedure to make changes like any other citizen.

      • The American people chose to delegate a considerable degree of authority to the offices of Sheriff.

        In short, the Sheriff has the authority to send the President of the United States packing if he’s attempting to do something unconstitutional within the Sheriff’s county.

        Ultimately, the superseding responsibility of all public officials, including the Sheriff, is the general welfare of the common people and to these ends nobody possesses a greater lawful power than the Sheriff within his county
        (and it’s fun to think especially here in the West)

        Obviously, Sheriff Barnes feels this is precisely a “general welfare” situation and that his chosen position will best achieve the performance of that duty…and he may be correct.

        However, I think the judge is also trying to fulfill his responsibility to the people.

        Theirs are offices of considerable power and it’s looking like they might soon be locking horns, if they haven’t already.

        Hopefully, they can find a resolution that will enable both to feel they have satisfactorily performed their duties, in which, the public has placed it’s trust

    • Actually, it will be a status conference, not a hearing (as we originally reported). Not sure if it will be live streamed.