Police departments being ravaged by COVID-19

More than a fifth of Detroit’s police force is quarantined; two officers have died from coronavirus and at least 39 have tested positive, including the chief of police. reported The Associated Press.

For the 2,200-person department, that has meant officers working doubles and swapping between units to fill patrols. And everyone has their temperature checked before they start work.

An increasing number of police departments around the country are watching their ranks get sick as the number of coronavirus cases explodes across the U.S. The growing tally raises questions about how laws can and should be enforced during the pandemic, and about how departments will hold up as the virus spreads among those whose work puts them at increased risk of infection.

 “I don’t think it’s too far to say that officers are scared out there,” said Sgt. Manny Ramirez, president of Fort Worth Police Officers Association.

Nearly 690 officers and civilian employees at police departments and sheriff’s offices around the country have tested positive for COVID-19, according to an Associated Press survey this week of over 40 law enforcement agencies, mostly in major cities. The number of those in isolation as they await test results is far higher in many places.

Anticipating shortages, police academies are accelerating coursework to provide reinforcements. Masks, gloves and huge volumes of hand sanitizer have been distributed. Roll call and staff meetings are happening outside, over the phone or online. Precinct offices, squad cars and equipment get deep cleaned in keeping with Centers for Disease Control and Prevention guidance.

Yet, many are worried it’s not enough. This week, groups representing American police and fire chiefs, sheriffs, mayors and county leaders asked President Donald Trump in a letter to use the Korean War-era Defense Production Act to ensure they have enough protective gear.

“We’re in war footing against an invisible enemy and we are on the verge of running out” of protective supplies, said Houston Police Chief Art Acevedo, president of the Major Cities Chiefs Association. “We’ve got hospitals calling police departments, police departments calling each other, and it’s time to nationalize in terms of our response.”

Police are accustomed to meeting staffing crunches by canceling vacations and leave, putting officers on 12-hour on, 12-hour off schedules and, when necessary, by shifting detectives and other specialized personnel to patrol.

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New York police report a drop in crime during pandemic

Measures adopted to stop the spread of the coronavirus in New York appear to have put a dent in crime, New York City’s police commissioner, reported the New York Times.
The drop in crime is not just in New York.  In fact, in Chicago, Detroit, Los Angeles and San Francisco, recent data show big drops in crime reports, week over week. The declines are even more significant when we compare this year with the same time periods in the three previous years.

Police Commissioner Dermot F. Shea, expressed concern about the persistence of violent crimes like robberies and shootings. And he specifically said he was troubled by a “dramatic” decline in reports of sexual assaults and domestic violence.

“We saw an immediate drop in most categories in crime,” Commissioner Shea said at a news briefing, when asked how the new restrictions on businesses had affected public safety.

Compared with the previous week, the police recorded 443 fewer serious crimes, like assault and burglary, in the week that ended on Sunday, a 24.5 percent decline. Officers also made 1,538 fewer arrests last week compared with the week before.

Last week, detectives received just 25 new complaints that met the federal threshold for rape, compared with 51 the week before. The number of other sex crimes reported fell to 62 last week, compared with 102 on March 15.

“Maybe I’m just glass half empty here,” Commissioner Shea said, “but I can’t imagine that the crimes aren’t happening. I’m sure that there’s many crimes happening.”

Mr. de Blasio noted a surge in bias attacks aimed at the city’s Asian residents, and he urged the victims of such crimes to contact the police right away.

As crime ebbed, more Police Department employees became infected. As of Tuesday, Commissioner Shea said, 211 department members had tested positive for the virus, including 177 uniformed officers.

Two of the city’s biggest police unions say the department is failing to inform officers when someone they have worked with has tested positive.

The Police Benevolent Association, which represents rank-and-file officers, has instructed members to log sick time or time spent in quarantine related to the virus on line-of-duty injury forms, while the Sergeants Benevolent Association has assigned its delegates to monitor commands for reports of new cases and exposures.

The goal, an official said, was to avoid something similar to what occurred after the Sept. 11, 2001, terrorist attacks, when many officers who worked to clean the wreckage at the World Trade Center site did not have records of the time they spent there.

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President wants to implement unprecedented tri-state cordon sanitaire

President Trump is not seeking to quarantine New York, New Jersey and Connecticut. He is seeking  authority to order a “cordon sanitaire” which is not just a quarantine it is the forceful dentition of people who are ill and not ill.  A cordon sanitaire is right out of a sci-fi movie--a state or states where no one can go in or out.
 Normally this authority rests with state governors.Such authority has far-reaching implications for those not yet infected. They are being forcefully detained in an area where infected persons remain.

The last known time that a cordon sanitaire was used was with towns in Zaire during the Ebola outbreak.

The government attempts to balance the good of the community with individual liberty. In times of international crisis, there is a heightened need to zealously protect those individual rights.

GateHouse: DOJ seeks to curtail rights during health emergency

Matthew T. Mangino

GateHouse Media

March 27, 2020

In the face of a surging COVID-19 pandemic, the U.S. Department of Justice has asked Congress for the ability to detain people indefinitely without trial, to extend the statute of limitations in criminal cases and limit the constitutional right to confrontation.

There is no question that the nation is facing an unprecedented emergency, but now, especially now, is not the time to ignore the U.S. Constitution.

At stake are three fundamental rights that are afforded all persons accused of a crime - the right to a speedy trial, the government’s responsibility to file charges within a reasonable, statutorily established, period of time, and the right to confront one’s accuser.

A defendant’s right to a speedy trial has constitutional and statutory underpinnings. The Sixth Amendment provides, through the Speedy Trial Clause, that an accused formally charged or detrained pretrial is entitled to have his case heard with reasonable diligence. Rule 48 of the Federal Rules of Criminal Procedure grants trial courts discretion to dismiss cases that are not brought to trial promptly.

The reason for a speedy trial rule is to prevent the government from arresting an accused and letting him or her languish in jail without being proven guilty. During this health emergency it is important to bring pretrial detainees to trial as quickly as possible or let them out of jail until trial.

The Constitution grants people habeas corpus which gives the accused the right to appear in front of a judge and ask to be released before trial. Adopting Attorney General William Barr’s recommendations would essentially suspend habeas corpus indefinitely until the emergency ended. However, Article I, Section 9, Clause 2 of the U.S. Constitution provides, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion ...” A national health emergency is not listed as a reason to suspend habeas corpus.

Federal statutes of limitations provide a time frame within which charges must be filed. For instance, in state court the statute of limitations might be two years for a misdemeanor theft. If charges are not filed within two years of the date of the crime the charges are forever barred.

Such limitations are a product of the Fifth Amendment Due Process Clause. The purpose and effect of a statute of limitations is to protect defendants. The statute is based on the premise that if the government has a case they should pursue it with reasonable diligence. A delay could result in the defendant losing evidence necessary to disprove the claim; and litigation of a long-dormant accusation may result in an injustice.

The justification for extending the statute of limitations is that due to the health emergency the police are too busy and the courts may be closed - so the statute should be extended to pursue untimely cases. If those cases were butting up against the statute before the emergency, they have already been delayed for nearly two years or five years or longer depending on the alleged criminal conduct.

Instead of a blanket extension, the court should conduct a hearing to determine if prosecutors used due diligence to bring the case to trial before the health emergency and then, as swiftly as possible, after the emergency.

Finally, the Sixth Amendment guarantees the right to confront the witnesses against the accused. This right is known as the Confrontation Clause. This clause guarantees criminal defendants the opportunity to face the prosecution’s witnesses in the case against them and dispute the witnesses’ testimony.

The right to confront witnesses face-to-face is a fundamental right for those accused of a crime. The DOJ wants to use videoconferencing to permit a defendant in jail to participate in a proceeding remotely. Remote hearings are already being utilized for bail and extradition, but not for “critical stage” proceedings.

The idea of conducting a critical stage hearing without the defendant being present is extreme. In fact, some states had to amend their state constitutions to permit child victims to testify by video conferencing - outside the presence of the defendant.
Congress needs to proceed with caution. Setting aside fundamental constitutional rights for any reason is dangerous.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Americans willing to sacrifice civil-rights to confront pandemic

To assess how Americans weigh the trade-off between preserving civil liberties and halting the spread of the coronavirus, The Atlantic conducted a survey last week, just as state and local governments were beginning to implement their most restrictive policies yet. The survey reveals a remarkable willingness to tolerate civil-rights violations in order to confront the pandemic, regardless of party affiliation.

We presented a nationally representative sample of 3,000 U.S. residents with eight possible policy responses to the outbreak, all of which may be unconstitutional, including forced quarantine in a government facility, criminal penalties for spreading misinformation, bans against certain people entering the country, and conscription of health-care workers. We also asked our sample to imagine that public-health officials had reviewed the policies and estimated that each would likely save some number of lives, hypothetical figures that we provided.

A majority of respondents supported all eight of these policies, most by considerable margins. The proposals with the lowest support were seizing businesses and banning all citizens and noncitizens outside the country from entering, but these policies still had 58 and 63 percent support, respectively. The proposals with the highest levels of support were banning noncitizens from entering the country (85 percent) and conscripting health-care professionals to work despite risks to their own health (78 percent). Both policies burden a defined minority of the population, so it’s not surprising that large majorities support them. But criminalizing speech based on its content, an idea antithetical to modern American constitutionalism, was also very popular: About 70 percent of respondents supported restricting people’s ability to say things that may qualify as misinformation. Likewise, 77 percent of respondents support suspending all religious services and gatherings, thereby restricting religious freedom. And even when we explicitly told half of our sample that the policies may violate the Constitution, the majority supported all eight of them—even the speech restrictions.

Perhaps the most striking feature of our results is the broad bipartisan endorsement of these liberty-restricting policies. Like other surveys, ours reflected a huge gap between Democrats and Republicans in approval of President Donald Trump’s handling of the pandemic: 34 percent of Democrats expressed approval, while 88 percent of Republicans did. One might have reasonably concluded that different policy preferences were driving these responses: that Democrats want aggressive government intervention, which they feel the president has failed to deliver, while Republicans—encouraged by Trump’s early dismissal of the outbreak—prefer a wait-and-see or laissez-faire approach.

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SCOTUS rules states not required to offer traditional insanity defense

The U.S. Supreme Court ruled that the due process clause doesn’t require states to offer a traditional insanity defense based on a defendant’s inability to distinguish right from wrong, reported the ABA Journal.

The Supreme Court ruled 6-3 in the case of Kansas death row inmate James Kraig Kahler, who was convicted of killing four family members in 2009. Justice Elena Kagan wrote the majority opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.

In Kansas, a defendant can invoke mental illness to show he lacked the required mental state that is a required element of the crime. A defendant can also raise any kind of mental illness after conviction to seek a lower prison term or commitment to a mental health facility.

Kansas is among a handful of states that don’t recognize the traditional insanity defense that provides for acquittal when a mentally ill defendant is unable to distinguish right from wrong.

A mentally ill defendant in Kansas who was able to form the intent to kill, even if he or she believed the murder was morally justified, would be convicted, Kagan said.

That means a defendant in Kansas who killed someone because he believed God had ordained the sacrifice would be convicted, Kagan wrote in her opinion. But a defendant who didn’t understand the function of a gun or the consequences of its use would be acquitted in a fatal shooting.

Kahler had argued that the traditional insanity test was so rooted in the common law that it could not be jettisoned. Kagan disagreed. “No insanity rule in this country’s heritage or history was ever so settled as to tie a state’s hands centuries later,” she wrote.

“Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds.”

Justice Stephen G. Breyer said the traditional insanity defense was rooted in “700 years of Anglo-American legal history” and Kansas could not constitutionally eliminate any inquiry into the blameworthiness of the defendant. Justices Ruth Bader Ginsburg and Sonia Sotomayor joined the dissent.

Breyer offered his own example to illustrate the Kansas law.

“In Prosecution One,” Breyer wrote, “the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim.

“Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.”

The ABA said in an amicus brief that it supported the traditional insanity defense.

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Colorado abolishes its death penalty

Colorado abolished its seldom-used death penalty, joining a growing number of states that have eschewed capital punishment as a deterrent to the most serious crimes, reported The New York Times.

Gov. Jared S. Polis, a Democrat, signed the repeal into law after it had reached his desk from the state legislature. It had passed the Senate in January and the House in February after several failed attempts to end capital punishment in the state.

Colorado had executed just one person since reinstating the death penalty in the mid-1970s: Gary Davis, who had been convicted of the rape and murder of Virginia May, was given a lethal injection in 1997.

On Monday, Mr. Polis also commuted the sentences of three men on death row — Robert Ray, Sir Mario Owens and Nathan Dunlap — to life in prison without the possibility of parole. He said in a statement that he wanted the law to be applied consistently.

 “Commutations are typically granted to reflect evidence of extraordinary change in the offender,” Mr. Polis said, noting that this was not the reason he was commuting the three sentences.

“Rather, the commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the state of Colorado,” he said, “and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the state of Colorado.”

Colorado joined 21 other states that have repealed the death penalty, according to the advocacy group Equal Justice USA, which had campaigned for the end of capital punishment in the state. The organization mounted similar efforts in New York, New Jersey, Connecticut, Maryland and Illinois, which have all abolished the death penalty.

Shari Silberstein, the group’s executive director, said in a statement that it was a proud moment for Colorado.

 “With Gov. Polis’s signature, the state liberated itself from one of the most glaring failures of the legal system and is charting a new path toward justice,” she said. “Instead of wasting millions of dollars every year, the state can focus on the healing that survivors of violence need while also working toward making families and communities safe by preventing future violence.”

George Brauchler, a Republican district attorney in Colorado, criticized the repeal in a statement on Monday.

“There are a few in Colorado today who will cheer the sparing of the lives of these coldblooded murderers,” he said. “For the rest of Colorado, make no mistake: We will save no money. We are not safer. We are not a better people. And the only lives spared are those who commit the ultimate acts of evil against us.”

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