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President Trump’s appointments are making a real difference at the Department of Justice. Yes, it is maddeningly slow work to reverse the subversion of this powerful institution. Yet, real results are beginning to appear. On Monday, September 21, the Department of Justice obeyed the lawful order of President Trump and published findings supporting the designation of three American cities as jurisdictions permitting violence and destruction of property. While withholding federal funding is the surface threat, the designation suggests that President Trump may have a duty to impose direct federal control to protect American citizens’ federal constitutional rights. Additionall, DOJ has intervened in a lawsuit against Democrat-controlled New Mexico, in a COVID-19 and schools equal protection case.
Identification is Response to Presidential Memorandum Reviewing Federal Funding to State and Local Governments that are Permitting Anarchy, Violence, and Destruction in American Cities
The U.S. Department of Justice today identified the following three jurisdictions that have permitted violence and destruction of property to persist and have refused to undertake reasonable measures to counteract criminal activities: New York City; Portland, Oregon; and Seattle, Washington. The Department of Justice is continuing to work to identify jurisdictions that meet the criteria set out in the President’s Memorandum and will periodically update the list of selected jurisdictions as required therein.
The list was published on DOJ’s website today in response to President Trump’s memorandum of September 2, 2020, entitled “Memorandum on Reviewing Funding to State and Local Government Recipients That Are Permitting Anarchy, Violence, and Destruction in American Cities.”
“When state and local leaders impede their own law enforcement officers and agencies from doing their jobs, it endangers innocent citizens who deserve to be protected, including those who are trying to peacefully assemble and protest,” said Attorney General William P. Barr. “We cannot allow federal tax dollars to be wasted when the safety of the citizenry hangs in the balance. It is my hope that the cities identified by the Department of Justice today will reverse course and become serious about performing the basic function of government and start protecting their own citizens.”
Criteria for evaluating each city is below:
• Whether a jurisdiction forbids the police force from intervening to restore order amid widespread or sustained violence or destruction.
• Whether a jurisdiction has withdrawn law enforcement protection from a geographical area or structure that law enforcement officers are lawfully entitled to access but have been officially prevented from accessing or permitted to access only in exceptional circumstances, except when law enforcement officers are briefly withheld as a tactical decision intended to resolve safely and expeditiously a specific and ongoing unlawful incident posing an imminent threat to the safety of individuals or law enforcement officers.
• Whether a jurisdiction disempowers or defunds police departments.
•Whether a jurisdiction unreasonably refuses to accept offers of law enforcement assistance from the Federal Government.
• Any other related factors the Attorney General deems appropriate.
New York City
Shootings in New York City have been on the rise since looting and protests began on or about May 28, 2020. For July 2020, shootings increased from 88 to 244, an increase of 177% over July 2019. In August 2020, shootings increased from 91 to 242, a 166% increase over August 2019.
While the city faced increased unrest, gun violence, and property damage, the New York City Council cut $1 billion from NYPD’s FY21 budget.
The budget resulted in the cancellation of the new police recruiting class, cuts to overtime spending, and the transfer of certain police functions, including school safety, out of the NYPD.
Meanwhile, the Manhattan and Brooklyn District Attorneys have declined to prosecute charges of disorderly conduct and unlawful assembly arising from the protests, and the District Attorneys in Queens and the Bronx have declined to prosecute other protest-related charges.
Both Mayor de Blasio and Governor Cuomo have forcefully rejected federal law enforcement support.
This month, Portland marked 100 consecutive nights of protests marred by vandalism, chaos, and even killing.
Those bent on violence regularly started fires, threw projectiles at law enforcement officers, and destroyed property. Numerous law enforcement officers, among others, suffered injury.
Shootings increased by more than 140% in June and July 2020 compared to the same period last year.
In the midst of this violence, the Portland City Council cut $15 million from the police bureau, eliminating 84 positions. Crucially, the cuts included the Gun Violence Reduction Team, which investigates shootings, and several positions from the police team that responds to emergency incidents.
In August, Portland Mayor Wheeler sent a letter to President Trump expressly rejecting the Administration’s offer of federal law enforcement to stop the violent protests.
For nearly a month, starting in June, the City of Seattle permitted anarchists and activists to seize six square blocks of the city’s Capitol Hill neighborhood, naming their new enclave the “Capitol Hill Autonomous Zone” (CHAZ) and then the “Capitol Hill Occupied Protest” (CHOP).
Law enforcement and fire fighters were precluded from entering the territory. The Seattle Police Department was ordered to abandon their precinct within the CHOP.
Person-related crime in the CHOP increased 525% from the same period of time in the same area the year before, including by Mayor Durkan’s own count “two additional homicides, 6 additional robberies, and 16 additional aggravated assaults (to include 2 additional non-fatal shootings).”
The CHOP was allowed to stand for nearly a month, during which time two teenagers were shot and killed in the zone.
The Seattle City Council, Mayor Durkan, and Washington Governor Jay Inslee publicly rejected federal involvement in law enforcement activities within the city of Seattle.
Private schools are being discriminated against by New Mexico Democrats, who allow public schools to have twice the percentage of in person attendance.
The Department of Justice today filed a statement of interest in a New Mexico federal court asserting that the States’ COVID-19 rules limiting private schools to operating at 25% of capacity but allowing public schools to operate at 50% of capacity violate the Equal Protection Clause of the United States Constitution. The brief, filed in the U.S. District Court in Albuquerque, explains that the Supreme Court has recognized parents’ educational choices for their children as a fundamental right under the Constitution, and that New Mexico has no grounds for abridging that right in adopting stricter rules for private schools than for public schools.
“Parents have a fundamental right under the United States Constitution, without interference from the government, to select the school for their children of their choice, whether a public school, a parochial school, or a non-religious private school,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “New Mexico’s response to COVID-19 has infringed that right by adopting one rule for public schools and another for private schools, resulting in private schools remaining closed for in-person instruction, without justification. There is no pandemic exception to the Constitution and New Mexico’s differential standards for private and public schools cannot stand.”
“I respect Governor Lujan Grisham’s good faith efforts to manage the COVID-19 pandemic and protect the health of New Mexicans,” said John Anderson, U.S. Attorney for the District of New Mexico. “But COVID-related restrictions must be applied and implemented equally and impartially, and that simply did not happen here. There is no good reason to penalize students just because they choose to attend a private school.”
In response to the COVID-19 pandemic, New Mexico has issued various orders imposing limitations on a range of activities to reduce disease transmission. Public schools are permitted to operate at 50% of capacity, and day care centers can operate at 100% of capacity with social distancing and hygiene measures in place. Private schools, however, are limited to 25% capacity, regardless of social distancing and hygiene measures adopted.
Douglas Peterson, who sends his daughter to Albuquerque Academy, a private school, filed a federal lawsuit against state officials on his and his daughter’s behalf after the school determined that it could not open for live instruction of its students with the 25% capacity limit, although it could accommodate all of its currently enrolled students if allowed to operate at 50% capacity. On Sep. 11, 2020, they moved for an injunction mandating equal treatment.
The United States’ brief explains that nearly 100 years ago, the Supreme Court held that parents’ decision wahether to send their children to public or private school is part of parents’ fundamental right to direct the upbringing of their children. As such, under the Equal Protection Clause, the government has the burden to show that any differential treatment that abridges that right, even in part, must be supported by a compelling government interest, pursued through the means that are no more restrictive on that right than necessary. New Mexico has not done so here, the brief argues.
Attachment(s): Download Statement of Interest
Topic(s): Civil Rights
Civil Rights Division
USAO – New Mexico
Press Release Number: 20-976