On Dec. 30, San Diego Mayor Todd Gloria held a press conference to announce that the city would be stepping up enforcement against those who blatantly defied public health orders.
“As mayor,” he said, “I cannot sit idly by as our local hospitals and morgues threaten to overflow as the coronavirus surges unchecked throughout our region.”
On the surface, Gloria’s statements represented a shift in policy, a more aggressive posture than his predecessor was willing to take, right before a major holiday. But in practice, little has changed. At least for now.
Over the last year, the San Diego Police Department has written more than 150 tickets, but city prosecutors have yet to file charges. Since Gloria’s announcement in December, Voice of San Diego could only find evidence of five new tickets.
In other words, San Diego’s enforcement effort is not very aggressive at all. The mayor wants to change that — by ensuring tickets go to the Superior Court’s traffic and minor offense division rather than the criminal division, where there’s been a backlog of cases and the burden of proof is higher.
But when he announced the crackdown, he instead pointed officers to an obscure municipal code that prohibits people from imperiling lives and property during an emergency, or from interfering in the protection of the city. It includes strange language about how people ought not “give assistance to the enemy.”
The enemy in this case being the coronavirus.
In an interview, Gloria said his executive order reflected the seriousness of the situation as a response to rising infections and complaints from some businesses that others weren’t following the rules. It was meant, he said, to localize enforcement of public health orders and create a quicker judicial process than the tools previously available.
Municipal code violations are on par with speeding tickets.
“The traffic court is still functioning in a way the others are not necessarily, and it does provide a pathway in court potentially sooner,” he said. “My order was recognizing that we weren’t seeing the swiftness that the times demand.”
In effect, the mayor’s reframing of COVID enforcement took some of the authority away from the city attorney’s office, which doesn’t prosecute infractions. Court hearings for minor offenses are between the police officer, the person cited and an administrative commissioner.
It could also be argued that the municipal code language, approved in 1974, sets a more subjective standard of what constitutes a violation during an emergency. Transcripts of the relevant City Council meetings from nearly 50 years ago do not exist and the audio recording is inaccessible because it exists only in magnetic reel to reel format, according to the city clerk’s office.
The records that do exist, though sparse, show that officials passed the ordinance with fairly broad language at the same time they created a local disaster council. An emergency, under their definition, could extend to “air pollution, fire, flood, storm, epidemic, riot, or earthquake, or other conditions, including conditions resulting from war or imminent threat of war, but other than conditions resulting from a labor controversy.”
Gloria disagreed that the municipal code sets a more subjective standard for COVID enforcement in 2021 — a business, for instance, that’s serving customers indoors when it shouldn’t is still objectively violating public health orders, he said.
But there is evidence to suggest that SDPD is being highly selective, even reluctant, in its enforcement efforts, despite the political pressure.
In the weeks following the mayor’s announcement, SDPD issued municipal code violations against the owners and managers of five businesses, mostly restaurants and a hookah lounge, that had been the subjects of complaints. The most high-profile of these incidents involved a Dec. 31 warehouse party, where a stage collapsed, injuring several people. The city attorney’s office remains at the center of that case, and is pursuing civil action against the property owner and organizer for maintaining a public nuisance.
Several days after the stage collapse, Gloria noted in a press release that his executive order was meant to “discourage situations like what happened in Miramar on New Year’s Eve.”
But as of Tuesday, none of the municipal code tickets written in late December or early January appear in the traffic division of the Superior Court system. The city still has time to send the paperwork along, and Gloria expects that SDPD will.
“There has to be consequences for ignoring the law,” he said.
Lt. Shawn Takeuchi, a spokesman for SDPD, said Police Chief David Nisleit worked closely with the mayor on the executive order and also expects that the municipal code tickets will soon be filed in court.
“The chief believes educating San Diegans about the public health order to achieve voluntary compliance is effective and when necessary, enforcement is vital for flagrant violators,” he wrote in an email.
Employees of the various businesses who received a ticket described their interactions with police as positive. But each said they walked away from the experience with the impression that the officers were only there for show and that the owners might never need to appear in court because of the constantly changing guidelines around when and how a business can remain open.
As Ryan Rubio, who manages the California Elite Training Center, an indoor gym in Kearny Mesa, put it: “They said they were there for education.”
Others spoke on the condition of anonymity out of concern that their comments might give the city reason to retaliate. One business owner said of the officers who wrote the ticket: “They were really nice and were basically like, ‘You can wipe your ass with this. It’s just an infraction.’”
SDPD hasn’t been shy about its hesitation to issue tickets on a mass scale. Between April and July 2020, the city issued at least 168 citations, but the number appears to have dropped off in the second half of the year, not just for the city but for the county as a whole.
Meanwhile, the Union-Tribune reports, county health officials have been issuing cease-and-desist orders to noncompliant properties and an occasional shutdown order. Typically, but not always, SDPD has used these letters as a signal for who’s worthy of monitoring and punishing.
The city attorney’s office also supported Gloria’s executive order but has declined to talk about cases that fall within the one-year statute of limitations for filing.
Joel Day, who advised Mayor Kevin Faulconer on the city’s COVID-19 response last year, credited Gloria for elevating egregious, ongoing violators to the attention of the county after educational efforts had failed.
“I think a greater enforcement posture is absolutely warranted,” Day said.
At the same time, though, he argued that businesses shouldn’t be the only ones subject to enforcement because business owners could build fines into their overall cost of operation. Day has been advocating for a local mask mandate, as seen in other cities and counties.
“If you ticket individuals with other sorts of mechanisms, then you could start to get it from the supply side and ensure if businesses are behaving badly it falls on everyone who participates,” he said.
Gloria said he hasn’t taken a mask mandate off the table but hopes it doesn’t come to that, because there’s not widespread agreement that punishing people individually is needed to contain the spread of the virus. He’s concerned, in the meantime, that the rollout of vaccines could lead to a false sense of security, followed again by spikes in infections, but his focus continues to be on getting businesses to comply.
“I’m hopeful the downward trend in positive cases means that we can start shifting our focus on reopening things and less on enforcement,” he said.