HomeMy WebLinkAbout2020-12-11; Restaurants to Protest San Diego County Health Order; Gallucci, NeilTo the members of the:
CITY COUNCIL
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Dec. 11,2020
ii Memorandum
To:
From:
Via:
Honorable Mayor Hall a f¥ers of the City Council
Neil Gallucci, Chief of P lice J
Scott Chadwick, City Ma
Re: Restaurants to Protest San Diego County Health Order
{city of
Carlsbad
Memo ID# 2020264
The Carlsbad Police Department learned Thursday, Dec. 10, 2020, that the Carlsbad Restaurant
Association is planning to hold a peaceful protest by "opening their doors on Friday night for
dine in and reservations."
Some of the businesses that have been identified as potential participants in tonight's protest
are Barrel Republic, Garcia's Mexican Restaurant, Vigilucci's Cucina ltaliana, and Oak+ Elixir.
The Carlsbad Police Department is responding proactively by contacting restaurants in the
downtown area, including the four listed above, today to provide information and education on
the updated San Diego County Health Order (Health Order). Officers will hand out flyers
produced by the city's Communication & Engagement Department that explain the Health
Order's requirements. All contacts will be documented with the dispatch system and body worn
cameras, including the restaurants' names, responsible persons contacted, and, if necessary,
crime reports.
The Patrol Division and Crime Suppression Team will assume a similar posture this evening by
focusing on businesses in violation of the Health Order's restaurant operating guidelines.
Officers will first contact businesses violating the Health Order to try to gain their compliance,
an approach consistent with the San Diego County Compliance Team's efforts regarding health
order violation enforcement. If restaurants refuse to comply with the Health Order, crime
reports documenting the violations will be forwarded to the District Attorney's Office for it to
consider filing charges and issuing warrants notifying the businesses.
We will be adhering to the enforcement protocols identified in this memo for all cases.
Crime reports are similar to citations or tickets in that both are sent to the District Attorney's
Office for review. If the District Attorney's Office deems it appropriate, it files criminal
complaints. Neither process is speedier than the other because both lead to a jury trial, and no
criminal punishment, whether incarceration or a fine, may be imposed unless and until the
person alleged to have committed a crime is actually convicted of doing so.
Police Department
Police Administration
2560 Orion Way, Carlsbad CA 92010 I 760-931-2100
Council Memo -Restaurants to Protest San Diego County Health Order
Dec. 11,2020
Page 2
However, unlike the filing of a crime report, the issuance of a citation or a ticket is an arrest
because the person is temporarily detained by a police officer during the issuance and is not
free to leave, thus invoking the person's Fourth Amendment rights. Therefore, if a police officer
detains and issues a citation to a person and a court later determines there was not probable
cause for the arrest, the police officer and the city risk claims of civil rights violations.
Consequently, it is more prudent for police officers to prepare and file crime reports rather
than issue citations when it is unclear whether there is probable cause for an arrest or when, as
here, there is a likelihood of a constitutional challenge to the order or statute being enforced.
Although the current Health Order guidelines prohibit indoor protests and rallies, it is not clear
whether a cour_t would uphold the indoor ban on protests, especially in light of the most recent
U.S. Supreme Court decision in Roman Catholic Diocese of Brooklyn v. Cuomo
(U.S., Nov. 25, 2020, No. 20A87). Issuing a citation involving an arrest, as opposed to a crime
report, would therefore present greater legal risk to the police officers and the city because of
the possibility that a court might determine that these businesses were engaged in a lawful
protest or that a portion of the Health Order itself, such as the indoor or outdoor dining ban,
was invalid. Notably, a court recently concluded that the Los Angeles County's ban on outdoor
dining was invalid.
cc: Geoff Patnoe, Assistant City Manager
Celia Brewer, City Attorney