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By Shawn Raymundo and Lillian Boyd
This story has been updated with information on the amicus brief filed by Orange County cities in support of Orange County Sheriff Don Barnes.
The cities of Dana Point, San Clemente and San Juan Capistrano have joined a chorus of other Orange County cities standing by Sheriff Don Barnes and his challenge to a recent court order requiring that he release up to 50% of the county’s jail population in order to implement social-distancing measures and protect medically vulnerable inmates.
Ahead of Christmas on Wednesday, Dec. 23, the group of Orange County cities filed an amicus brief in support of Barnes to the Court of Appeal of California, in the third division of the Fourth Appellate District.
The other cities in support of Barnes include Newport Beach, Cypress, Garden Grove, Huntington Beach, La Habra, Laguna Beach, Laguna Hills, Laguna Niguel, Lake Forest, Mission Viejo, Orange, Placentia, Rancho Santa Margarita, Stanton, Tustin, Villa Park, Westminster and Yorba Linda.
In special meetings on Monday, Dec. 21, Dana Point and San Clemente city councils voted unanimously to file amicus briefs in support of Barnes’ appeal to the order, which, he believes, could result in the release of hundreds of “dangerous offenders.”
“If this ruling is allowed to stand, it will potentially result in the release of individuals who have been charged with serious and violent crimes,” Barnes wrote in a Dec. 16 letter to the county’s cities, encouraging them to file amicus briefs.
“Among our jail population are 490 inmates who have been charged with murder or attempted murder. Our jail population includes 237 people charged with child molestation,” he wrote. “In my view, the release of even one of these inmates is too many.”
According to city officials in San Clemente, the cities of Fountain Valley, Brea, Seal Beach, Garden Grove, and Rancho Santa Margarita have submitted letters to the court supporting Barnes’ motion, but did not join the amicus brief that the city of Newport Beach is preparing.
Superior Court Judge Peter Wilson handed down the order earlier this month after finding “that conditions in the Jail do not permit proper social distancing, there is no mandatory testing of staff or asymptomatic detainees after intake, and no strictly enforced policy or requiring masks for all staff interactions with inmates.”
The ruling stipulated that Barnes draft by the end of the month a Release Plan identifying medically vulnerable inmates, and maintain the population reduction, as well as a “strict policy of face mask wearing” by all staff whenever they’re within 6 feet of an inmate.
Though it called for the reduction of 50% of the population in all congregated living areas, it noted that the release of the inmates doesn’t necessarily mean “from all forms of custody” and that Barnes has the discretion in terms of options and conditions of release.
The American Civil Liberties Union Foundation of Southern California, along with a few other organizations, filed the class-action lawsuit against Barnes this past April, alleging that the situation in county’s jails violated the U.S. Constitution and disability rights laws designed to protect inmates from cruel and unusual punishment.
Since March, the ACLU has received hundreds of complaints from inmates at the Orange County jails about being given stained sheets as face masks, deputies not adhering to face mask policies, disregarded social distance measures and denial of medical care.
Prior to the pandemic, the ACLU’s primary communication with incarcerated individuals in OC jails was through letter correspondence. This year, however, the organization launched a hotline for complaints regarding COVID-19.
“Before COVID, we would receive complaints regarding confinement, excessive use of force, assault from fellow inmates or deputies,” said Daisy Ramirez, the jails conditions and policy coordinator for ACLU SoCal. “We’ve received complaints about incarcerated folks being denied medical care long before this pandemic, but COVID has amplified that issue.”
But the amicus brief argues that there is no evidence that the order will have the desired effect and that simply releasing inmates will not necessarily prevent them from contracting the virus.
“Relatedly, the Respondent Court’s Order does not take into account the current status of the two approved vaccines and that inmates are likely to be able to receive the vaccines soon,” the brief stated. “Providing vaccines is a more circumspect solution to this potential issue versus a massive release of dangerous inmates into the public.”
The court order comes as the county jails are experiencing a COVID-19 outbreak that has continued to worsen. According to the Orange County Sheriff’s Department’s daily report on Monday, there were 835 inmates currently testing positive for the virus—a roughly 718% increase since Dec. 10, when OCSD reported 102 cases. As of Tuesday, Dec. 29, OCSD reported 1,099 inmates currently testing positive.
Barnes, in his letter, argued that the uptick in cases reported in the jails reflects the current surge in coronavirus cases and hospitalizations seen across the nation, noting that back in May, the department was able to reduce the number of positive cases from 220 to zero.
“The current uptick in COVID-19 positive cases within the jail reflects the increase among the general public,” he wrote, adding: “As we have done in the past, we will work to reduce the spread of the virus and treat those that have tested positive.”
During the city of San Clemente’s special meeting on Monday, the councilors expressed their dismay with the court order, while also expressing enthusiastic support for joining the amicus brief that Newport Beach intends to file.
“This is serious, and I think it’s just nonsense what’s happening, and we need to be unified with the other cities,” Councilmember Laura Ferguson said, adding: “We need to show a unified front to protect our community. It’s just destructive.”
“I think it’s a shame that as a society we’re talking about removing criminals, inmates from jail at a time when our families and business are in lockdown,” Councilmember Steven Knoblock said. “It’s sad; it’s inappropriate.”
Citing his own experience visiting the jails as a chaplain, Knoblock disputed the idea that the jails have violated social distancing protocols. He said that since March, the jails have limited outside contact, but that when visitors are allowed, they’re required to wear face masks and prohibited from making physical contact.
But Ramirez said she can confirm reports of deputies not wearing masks from firsthand experience during an Oct. 5 visit to an OC jail.
“Custody staff does not wear masks,” Ramirez said. “I came in wearing gloves and masks and I look around and see sergeants, deputies, correctional service technicians all not wearing masks. It was surreal.”
The court order also quotes the testimony from a Dr. Joe Goldenson, who noted that jails aren’t closed environments as “a large number of custody, medical and other support staff and contractors who have direct contact with detainees enter and leave the facility throughout the day.”
“One problem is the inconsistency of where some modules have access (to protective equipment) and others are having to use the same mask for long periods of time,” Ramirez said. “There is so much discretion afforded to frontline deputies, with very little oversight.”
According to San Clemente City Attorney Scott Smith, the cost for the city to join the amicus brief is $1,000.
The Dana Point City Council met in closed session to discuss joining the amicus brief. According to a press release, the Dana Point councilors voted, 4-0, with Councilmember Richard Viczorek absent.
City officials in Dana Point were not available to provide comment as of this posting. However, a city statement says the Dana Point City Council acted quickly, as they considered the matter to be an important public safety issue.
After legal consultation, San Juan Capistrano City Manager Ben Siegel says he approved the city joining the amicus brief.
“I authorized the City to join the amicus based on its consistency with the City’s legislative platform, which is adopted annually and intended to allow staff to address legislative and regulatory issues that arise in a timely manner…” Siegel said.
Seigel says the policy is in place to allow staff to take the initiative when there may not be an opportunity for the city council to take formal action. One of the key policy statements of the platform is to protect and promote public safety, Siegel said.
San Juan Capistrano City Hall is currently closed for the remainder of the year due to unpaid employee furloughs resulting from the pandemic.
Last week, Barnes gave an interview with Fox News in which he announced that he had had no intention of following the order and would be filing the appeal. He noted that OCSD had previously released 1,400 “low-level offenders” since March and that the remaining inmates were serious offenders.
“I think this judge looked at this as if the inmates are the innocent people being subjected to the risk of COVID,” Barnes said on national television. “Everyone is at risk of COVID right now.”
In his letter imploring support from the cities, Barnes accused the ACLU of using the health crisis “to accomplish their goal of eliminating incarceration.”
“For months, we have fought against their ongoing attempts to release dangerous offenders into the neighborhoods of Orange County,” he wrote. “We will not be deterred by one court ruling and will use every available legal avenue to keep these offenders out of our community.”
Ramirez said she’s gotten calls from people who are terrified of contracting COVID-19 and dying in jail.
According to the ACLU’s partnership study with Washington State University, University of Pennsylvania, and University of Tennessee, COVID-19 could claim the lives of approximately 100,000 more people than current projections stipulate if jail populations are not dramatically and immediately reduced.
“The findings indicate that—even if communities across the United States continue practicing social distancing and following public health guidance—we will still experience much higher death rates if no substantial action is taken to reduce jail populations,” the study said.
According to data made available in 2019, OCSD had a 55% daily average population of people who had not yet been convicted of a crime.
“While these people are still legally innocent, it’s important to highlight that even when someone is convicted, being sent to jail should not be a death sentence,” Ramirez said. “People should not have to fear for their lives.”
Ramirez also pointed to racial disparities within the jails.
According to OCSD public records, more than 60% of the Orange County jails population comprises people of color. In 2019, 54% of inmates were Latino when Latino residents make up 34% of the Orange County population and 7% of inmates were Black when Black residents make up 2% of the county’s population.
“Many people behind bars have experienced their own trauma,” Ramirez said. “If people can put aside their fears for just a moment and get to know someone who has experienced incarceration, learn their story, see their humanity … perhaps we can start a dialogue and shift the mindset.”
Collin Breaux contributed to this report.