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.

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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.

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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.

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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.

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Mark Reichel discusses Assistant U.S. Attorney Timothy Delgado

The Placer County Sheriff’s Department is investigating an apparent case of murder-suicide that allegedly involves an Assistant U.S. Attorney and his spouse.

Authorities responded to a home in Granite Bay early Monday morning where AUSA Timothy Delgado, 43, lived with his 45-year-old wife.

Officials with the sheriff’s department said on social media they were initially dispatched to a homicide investigation, but later clarified the case was a murder-suicide involving Delgado and his spouse. Police said they believed Mr. Delgado fatally shot his spouse before shooting himself, though the case remains an active investigation.

Speaking to FOX40 News on Monday, criminal defense attorney Mark Reichel said the case was “the opposite of everyone saw this coming.

“This is the polar opposite,” Mark said. “I think everyone is still in a state of shock.”

A motive for the shooting remains unknown.

A spokesperson for the U.S. Attorney’s Office in Sacramento where Mr. Delgado worked said they are cooperating with federal and local law enforcement officials.

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Mark Reichel discusses plea offer in case of East Area Rapist

A 74-year-old former police officer who is suspected of being the East Area Rapist has filed a motion through his attorneys that aims to avoid a lengthy criminal trial.

In exchange for pleading guilty to certain offenses, Joseph DeAngelo — who is also suspected of being the Golden State Killer — has agreed to answer for his alleged crimes if the threat of the death penalty is taken off the table.

In exchange for his guilty plea, DeAngelo acknowledges he would likely be incarcerated for the rest of his life.

“The lawyer is saying if the death penalty were off the table, the case could resolve,” Mark Reichel told CBS13’s George Warren in an interview on Wednesday, noting that thanks to a moratorium on executions in California imposed by Gov. Gavin Newsom last year, the outcome between the plea deal and a sentence following a trial would likely be the same, assuming DeAngelo were convicted.

“The chances that this individual will be executed are very slim, in my opinion,” Mark said. “The chances of the likelihood that he would die in custody far exceed the chances that the state would execute him.”

The Sacramento County District Attorney’s Office declined to local media outlets about DeAngelo’s offer. Last April, officials with the DA’s office affirmed they would seek the death penalty in DeAngelo’s case if he were convicted at trial.

DeAngelo is charged with 13 counts of murder and five dozen counts of rape stemming from incidents that occurred between the mid-1970s and mid-1980s. Authorities arrested him after they said the suspect’s DNA matched that submitted through a genealogy website.

DeAngelo also stands accused of more than a dozen kidnapping and abduction attempts.

While some may be opposed to a plea deal, Mark said it could be in everyone’s best interest to avoid a lengthy trial — not just because of the financial cost associated with court cases like this, but also because the emotional and mental toll could be insurmountable.

“The cost, not just in money but in time and happiness that will be drained out, that never comes back,” Mark told FOX40 News.

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Man sues Sacramento County for being held without charge

A man held for nearly a month in the Sacramento County jail has filed a federal lawsuit alleging financial loss and damage to his reputation.

Like all criminal defendants, Taylor Brophy was entitled to attend a hearing in a quick and timely manner after being arrested on suspicion of driving while under the influence. But Brophy claims other inmates heard his case called during their hearings — and he was nowhere to be found.

Brophy says not only was his blood alcohol level not above the legal limit, he was apparently lost in the system — and now he’s suing.

Criminal defense attorney Mark Reichel said it’s unusual for someone to be held in custody for so long without appearing before a judge.

“Ordinarily in California, 99 percent of the time on a first time DUI, as soon as you’re sober enough, you’re out the door,” Mark told CBS13 News. “They don’t have places to hold you so they do want you out of there.”

The Sacramento County Sheriff’s Office, the agency that runs the central jail, didn’t comment when asked by a reporter about the lawsuit, but said charges other than DUI may have been at play and that the man may have owed jail time for a past charge, CBS13 reported.

Brophy is no longer in custody as of this writing.

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