Orange County Sheriff Don Barnes invoked the Constitution and “cherished freedoms” last week when he announced that his 1,460 deputies would not enforce the governor’s COVID-19 shutdown order — falling into step with law enforcement counterparts in Los Angeles and Riverside counties.
Barnes noted in an interview Tuesday that he feels strongly about the need to socially distance and wear masks to battle the deadly pandemic, but said he just can’t criminally enforce it without things turning ugly and creating a police state.
“You can’t arrest your way through a pandemic,” he said, believing that compliance is a matter of personal responsibility.
Barnes added that politics had nothing to do with his decision to invoke the honor system.
Constitutional rights not in play
But one of the most respected legal minds in the nation disagreed that enforcing the shutdown — the closing of some businesses, the banning of large gatherings, the requirement to wear face masks — would violate anybody’s constitutional rights in light of a killer virus.
“There is no constitutional right not to wear a mask if the government orders them to wear a mask,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law, in a telephone interview.
“I think (not enforcing) sends a terrible message. The sheriff is supposed to enforce the law, but is saying we’re not going to enforce the law,” Chemerinsky said. “It’s such a shame this health issue has become politicized that way.”
Mistake to criminalize
Barnes retorted, “If I went out and started arresting everybody on health orders, he would be saying it’s unfair to arrest those individuals.”
Orange County District Attorney Todd Spitzer agreed with Barnes that it would be a mistake to criminalize such things as mask wearing or social distancing.
But what about wearing seat belts or motorcycle helmets? How is that different? Barnes said those are part of a government code.
Governor a hypocrite
The conservative Lincoln Club argued Tuesday that Gov. Gavin Newsom doesn’t have the science or personal ethics to back up his decree.
“Newsom no longer possesses the moral authority to order yet another stay-at-home order. He has repeatedly flouted his own orders by dining in luxury, traveling, keeping his own business open, and sending his children to in-person private schools, and exempting his Hollywood cronies from new orders,” said John Warner, president of the Lincoln Club of Orange County.
“Newsom’s new order unfairly and unscientifically punishes thousands of restaurants and small retail businesses during the critical holiday shopping period. Tens of thousands of Californians will needlessly lose their businesses and livelihoods as a result,” Warner said in a prepared statement demanding that Newsom be recalled.
Evaluate on case-by-case basis
Spitzer agreed that the stay-at-home order, for businesses, must be evenly applied.
“We must be sensitive to the fact that we are in the midst of a worldwide pandemic that has already cost more than 1.5 million lives and is threatening even more,” he said. “Businesses that flaunt and openly defy orders which can be lawfully enforced will be investigated by local law enforcement and reviewed by my office on a case-by-case basis. (But) it is unacceptable for individuals and businesses to be treated differently just because they have some influence with the state or the governor.”
Sheriff Barnes stressed that deputies would still respond to “calls for potential criminal behavior and for the protection of life and property. Our actions remain consistent with the protections of constitutional rights.”
Deputies will not be dispatched for calls about face masks, social distancing and large family gatherings only, Barnes said.
The Orange County Health Care Agency said in a statement it relied on local law enforcement and the state — such as the Department of Alcoholic Beverage Control — to gain compliance for health orders. Barnes said that was wrong.
People already are ‘struggling’
“To put the onus on law enforcement to enforce these orders against law-abiding citizens who are already struggling through difficult circumstances, while at the same time criticizing law enforcement and taking away tools to do our jobs, is both contradictory and disingenuous,” said Barnes, referring to widespread efforts to shift some police funding to other social services.
“As we have done throughout this pandemic, we must remain diligent in preventing the spread of the virus by following public health recommendations, like wearing a face covering and practicing social distancing. Conversely, policymakers must not penalize residents for earning a livelihood, safeguarding their mental health, or enjoying our most cherished freedoms,” Barnes said.
Also on Tuesday, the Orange County Board of Supervisors signed off on a statement criticizing the state’s “one-size-fits-all approach to reopening communities” and asking for more local control over managing the virus.
Supervisor Don Wagner, who has been skeptical of the state’s directives since early in the pandemic, questioned the efficacy of the various shifting strategies Newsom has sent down to counties, and he suggested the governor and other officials have been caught breaking their own rules because they don’t believe in them.
“Whatever he’s doing isn’t working,” or most of California wouldn’t find itself headed for another lockdown, Wagner said, “with zero evidence, and in my mind zero hope, that it’s going to be successful this time.”