DOJ tells Gov. Newsom phased reopening of churches may violate constitution

Click/tap to read the letter sent by the Department of Justice to Gov. Gavin Newsom.

The U.S. Department of Justice has informed California Gov. Gavin Newsom that his state’s COVID-19 phased recovery plan may violated constitutional protections because it groups churches and other places of worship in a later phase compared to sit-down restaurants, shopping malls and other businesses.

In the letter, a copy of which is available here, DOJ attorneys acknowledged Newsom’s need to protect the health, safety and welfare of California residents, but said the “California Reopening Plan” may infringe on certain religious freedoms.

The letter paraphrases an earlier statement issued by U.S. Attorney General William Barr in which he wrote that “government may not impose special restrictions on religious activity that do not also apply to similar non-religious activity.”

“Religious gatherings may not be singled out for unequal treatment compared to other non-religious gatherings that have the same effect on the government’s public health interest absent the most-compelling reasons,” the DOJ’s letter said.

The letter, dated May 19, was signed by Eric Dreiband, the Assistant Attorney General of the Civil Rights Decision. U.S. Attorneys representing each of the four federal districts in California were listed as co-signers. The letter was sent to Newsom via California Attorney General Xavier Becerra on Tuesday.

California has put in place a four-phase system for reopening certain public businesses and other institutions following a state-wide shutdown in mid-March due to the coronavirus pandemic. State officials have given nearly three dozen counties the green light to enter “Phase 2” of the plan, which allows for sit-down restaurants and some retailers to re-open, assuming those businesses adhere to “social distancing” practices.

Barbershops, nail salons and gyms are grouped into “Phase 3” of the plan, as are churches and other places of worship. No county has applied to enter that phase of re-opening as of Wednesday evening.

Reaction to the governor’s plan has been mixed, with some churchgoers telling local news outlets they intend to continue worshipping from a distance.

But others have complained about Newsom’s plan since it was enacted. Several lawsuits have been filed in federal court seeking to overturn the closure, while other lawsuits have asked to reclassify places of worship as “essential services,” a tier of organizations that has been given priority for reopening.

Speaking to CBS13 News, civil litigator Mark Reichel said DOJ attorneys may have a case against state officials if they decide to pursue the issue in court.

“Until a federal judge says the churches have to open, the governor can still keep them close,” Mark said, adding that state officials aren’t required to respond to the letter until a lawsuit is brought.

Click here to read the full story from CBS13 News

Why COVID-19 could earn some criminal defendants their freedom

The months-long global coronavirus pandemic has halted the normal course of life for millions of people in the United States and around the world. As states grapple with decisions on how to reopen local economies, state and federal courthouses in California are modifying their operating procedures to keep the wheels of justice moving.

Inside the Sacramento County Superior Courtroom, judges, attorneys and defendants are meeting regularly for hearings via Zoom, a teleconferencing app, in lieu of in-person court hearings. Each day, criminal defendants appear in one courtroom to have their cases heard by a judge who is often sitting in another room. Attorneys for both sides are in their own rooms, with all parties appearing via the Internet.

Right now, court proceedings are largely limited to arraignments and bench trials heard before a judge. But that’s a problem for potentially hundreds of criminal defendants who have demanded a trial by jury, something that is their constitutional right.

With no judges currently seating juries for the foreseeable future, it’s quite possible that some criminal defendants could be set free in the coming weeks.

“Individuals in jail are going to say, I’m not agreeing to this time exclusion, I want my day in court,” Mark Reichel told CBS13 News. “The courts are going to say, we can’t bring a jury in here, and [the courts are] going to entertain motions to dismiss the case.”

A local district attorney acknowledged to CBS13 that if juries can’t be seated in a timely manner, some criminal defendants would most likely be set free.

Click here to read the full story on CBS13’s website

Is Gov. Newsom violating constitutional rights with coronavirus stay-at-home orders?

California Governor Gavin Newsom’s decision to order the closure of several state beaches during the ongoing coronavirus pandemic has drawn scrutiny and criticism from some members of the public who say the governor is exceeding his power by overriding local authorities.

The criticism reached a peak when Newsom’s order closed several Orange County beaches earlier this month after local officials declared them open.

A Republican state official has filed several lawsuits against the governor in response to his stay-at-home directives, saying Newsom is abridging the constitutional rights of the public.

But attorney Mark Reichel says while the U.S. Supreme Court has held that American rights and freedoms are extensive, “your freedoms cannot cause harm to others.”

In this case, Reichel says the California Department of Justice intends to argue in court that Newsom’s directives is designed to prevent more public harm as the virus known as COVID-19 continues to proliferate throughout the state.

“It’s going to be very difficult for someone to sue and to prevail and say that ‘my constitutional rights are being violated,'” Reichel told FOX40 News.

As a state, California has seen some of the worst of the outbreak, but when observed at a county-by-county level, Reichel says some smaller counties that have not seen as much contagion may have a good case for reopening certain businesses on a case-by-case basis.

“They’re probably are in a decent position to make that argument,” Reichel said.

Click here to watch Mark’s appearance on FOX40 News.

Do protesters have the right to assemble during the coronavirus outbreak?

As California enters its second month on lockdown due to the coronavirus pandemic, some are protesting the state’s decision to keep a shelter-at-home order in place.

In Sacramento, dozens of protesters assembled in front of the Capitol building last week after the California Highway Patrol issued demonstrators a permit.

In a statement to Sacramento’s CBS13, Governor Gavin Newsom said demonstrators were issued a permit because the state originally thought the protesters would remain in their cars. That didn’t happen, and now the CHP is cracking down on demonstrations by denying all protest permits connected with state facilities, including the Capitol.

Some demonstrators argue this is an infringement of their free speech rights, but criminal defense attorney Mark Reichel told CBS13 there isn’t much precedent in the law for this type of issue.

“There’s no case law on this,” Mark said, adding that protesters apparently weren’t being targeted because of their message.

“It’s not the speech or the content, but its the manner in which they were going to do it the state has determined would violate the health emergency that’s going on,” Mark said.

Governor Newsom issued a statewide stay-at-home order in mid-March shortly after the World Health Organization declared a global pandemic due to the rapid spread of the novel coronavirus COVID-19.

Worldwide, more than 2.9 million people have contracted COVID-19 and around 203,000 people have died from the disease since it was first discovered in December 2019.

In California, more than 41,000 people have been diagnosed with COVID-19 since February. The state has recorded more than 1,600 deaths, though the official count may be higher.

Click here to read the full story from CBS13

Church files lawsuit against Gov. Newsom over stay-at-home directive

A Christian church in California’s San Joaquin Valley has filed a federal lawsuit against the state’s governor, Gavin Newsom, arguing the governor’s stay-at-home order that prompted the closure of their church violates their constitutional religious protections.

The governor’s stay-at-home order was issued in March after hundreds of Californians contracted the novel coronavirus COVID-19, part of a global pandemic of the virus that spread from state to state and country to country.

The governor said his stay-at-home order — one of the first in the nation — was a practical measure to keep residents of the Golden State safe. But in a federal lawsuit filed this month, the Cross Culture Christian Church in Lodi says they believe they should be exempt from the governor’s directive that bans mass gatherings in public.

The governor has made exceptions in his orders for “essential” businesses and organizations like grocery stores and hospitals. Cross Culture Christian Church says it’s not only their desire to see religious organizations like theirs deemed an essential organization, but their constitutional right to gather and worship.

Speaking to FOX40 News, attorney Mark Reichel says the governor’s stay-at-home order exempts businesses and organizations like grocery stores because the public’s risk exposure is limited since most residents are only expected to stay in a store for a short period of time. That’s different from a church, where worshippers gather for an extended period of time.

“The public health [reason] behind it is that people are going to be there for a while,” Mark said.

Mark said there’s not a lot of legal precedent when it comes to ordering churches and other religious establishments to close, though recent lawsuits have created some conflicting opinions from judges.

In Kansas, a federal judge found that a similar stay-at-home order in that state violated religious freedom rights by specifically limiting in-person worship sessions to less than 10 individuals at any given time. The ruling in mid-April paved the way for two churches to hold sessions as they regularly would.

But around the same time, a federal judge in San Diego denied an exemption request from a local church, even though members of that church offered to stay in their cars and wear head-to-toe protective gear in order to attend Easter Sunday services. An attorney representing the Abiding Place Ministries argued that a growing list of exemptions allowed San Diego residents to purchase marijuana, among other things, but not attend religious services at the church where he’s a member, Abiding Place Ministries.

An attorney for the county said religious services weren’t specifically targeted. Instead, there was a wide, blanket ban on non-essential gatherings. That attorney said the church’s offer to social distance and wear protective gear couldn’t be adequately enforced because the county didn’t have enough law enforcement personnel to police the worshippers.

A federal judge sided with the county in that case, finding the church had the authority to “limit the exercise of religion when faced with a public health crisis,” local NBC station KNSD-TV reported.

The split between federal courts may, on one hand, have something to do with the types of exemptions and restrictions in each state and county. On the other hand, judges have been referring to the coronavirus pandemic as a “once-in-a-lifetime occurrence,” Mark told FOX40, and legal officials are having to figure things out on the fly.

Click here to read the full story from FOX40.com

Reasonable doubt issues likely after sex assault victims allowed to collect own evidence

As cities across the country are shutting down due to the coronavirus COVID-19, some law enforcement agencies in Northern California are allowing victims of alleged sexual assault to collect their own evidence at the direction of a telehealth specialist.

That practice has started in Marin County north of San Francisco and elsewhere after California’s Governor Gavin Newsom issued a statewide stay-at-home protective order in March.

The measure was put in place to help ease the spread of COVID-19 by allowing victims to collect their own evidence under the guidance of a qualified nurse who offer direction via a video call. Normally, collection of the evidence would be performed by medical officials themselves.

A county prosecutor said the move is meant to encourage those who were victimized to contact law enforcement and collect evidence necessary for an investigation while easing concerns of any possible COVID-19 infection. But criminal defense experts say any evidence collected this way would be challenged in court on the basis of cross-contamination and other issues, which could raise reasonable doubt in a criminal case.

Speaking to the Associated Press, Sacramento criminal defense attorney Mark Reichel said the practice was “absolutely fraught with danger because when you have a dispassionate law enforcement officer collecting evidence and replace that with the victim who then manufactures the most critical evidence, that’s going to cause reasonable doubt.”

Hypothetically, someone could collect the DNA of an innocent individual and then frame them for sexual assault if a person were allowed to collect their own evidence, Mark said. A criminal defense attorney would raise a chain-of-custody issue among others in court.

A county official who spoke with the Associated Press downplayed the concern, saying there were enough protocols in place to ensure that wouldn’t happen, though it wasn’t clear from the article what those protocols were.

In Monterey County, at least two victims have collected their own evidence in alleged sexual assault cases, a county prosecutor said.

Since March, law enforcement officials have modified many aspects of their operation in response to the threat of COVID-19. In Sacramento County, dozens of non-violent inmates with less than a month on their sentences were released by order of the Sheriff in an effort to curb the spread of the virus.

At the same time, court dates have been delayed for dozens of defendants, including those brought on fresh charges. Some are being denied their constitutional right to be arranged in front of a judge in a timely manner, something Mark said could lead to a number of challenges once the courts are back in session.

Click here to read the full story from the Associated Press

What happens to criminal defendants during California’s coronavirus shutdown?

Business across California has ground to a halt as state officials work with health experts to stave off the coronavirus pandemic.

The outbreak of COVID-19 has caused businesses large and small to temporarily close as health officials encourage everyone to do their part to “flatten the curve.”

Sacramento criminal defense attorney Mark Reichel says for criminal defendants, the prolonged shelter-at-home order could impact their constitutional right to be heard in front of a judge after being suspected of a crime.

“Their day in court has been taken away through no fault or out of their control,” Mark told FOX40’s Lonnie Wong.

Mark said courts may see an uptick in filings on behalf of clients who weren’t given their right to a speedy trial. For now, most courts are simply continuing, or delaying, hearings until they are able to operate at full speed once again.

Read the full story on FOX40.com