Has Eric Garcetti turned into Tank Girl‘s villain? Frustrated at what Garcetti sees as a lack of compliance from “non-essential” businesses, the Los Angeles mayor announced yesterday that the city would not allow them to continue to operate. Specifically, Garcetti threatened to sic “neighborhood prosecutors” on such businesses and cut off their water and electricity (via Legal Insurrection):
The mayor went on to announce the “business ambassadors program” — an effort to get nonessential businesses to close.
“This behavior is irresponsible and selfish,” he said of those that remain open.
He said the Department of Water and Power will shut off services for the businesses that don’t comply with the “safer at home” ordinance.
Neighborhood prosecutors will implement safety measures and will contact the businesses before issuing further action, according to Garcetti.
“The easiest way to avoid a visit is to follow the rules,” he said.
Is this an example of the dark night of fascism descending as part of the governmental response to the coronavirus pandemic? Not exactly, but it’s not promising either. “Neighborhood prosecutors” are part of an ongoing program in Los Angeles that operate out of the LA City Attorney’s office. This isn’t a reference to Garcetti’s earlier pledge to deputize bureaucrats to enforce the stay-at-home orders on ordinary citizens in the streets, or at least not a direct reference to it. Neighborhood prosecutors work with police to address “the most destructive community crimes” in the streets, a kind of broken-windows enforcement plan that conservatives normally hail, if implemented properly.
Normally, though, their powers are limited to those of regular prosecutors. They don’t have the authority to arbitrarily cut off utilities to homes and businesses that might be violating civil codes, at least not without due process. Granting that authority even in an emergency is a major violation of due process and an expansion of prosecutorial authority well beyond the boundaries of the LA City Attorney’s authority. It’s all well and good for Garcetti to claim that “the only exceptions are the only exceptions” when it comes to “essential” businesses, but in truth there will be plenty of gray areas on those distinctions. Business owners might have good reason to think they fall into an “essential” category, but without any due process, won’t be able to protect their investment or their employees’ jobs, for that matter.
For instance, as Leslie Eastman points out at LI, the county sheriff initially planned to shutter gun stores as non-essential after releasing 1700 people from jail. County counsel Mary Wickham put the kibosh on that plan:
Then there is the case of the LA County Sheriff who deemed gun-shops as nonessential after 1,700 prisoners had been released from County facilities due to the thread of coronavirus. He had to walk back a planned shutter of those stores.
“The Los Angeles County Sheriff told FOX 11 on Tuesday night that enforcement efforts to close down local gun stores have been suspended after intervention from the county’s legal counsel.
“Sheriff Alex Villanueva told FOX 11 reporter Bill Melugin that county counsel Mary Wickham issued an opinion that gun stores can be classified as essential businesses under the Governor’s statewide executive order.”
Loosing “neighborhood prosecutors” to make decisions on cutting off vital utilities based on their arbitrary interpretations of the shelter-in-place order is bad public policy and will undermine rather than strengthen the rule of law. That doesn’t make Eric Garcetti into Malcolm McDowell, but perhaps he should dial back on the scenery-chewing before he gets there.
