Claims “Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates Right to Equal Protection”

“…the County’s Order violates federal and state law while unashamedly discriminating against houses of worship.”

On Wednesday, June 10, 2020 a formal legal letter was by attorney Harmeet Dhillon, founder of the Center for American Liberty, to members of the Contra Costa County Board of Supervisors, to ensure county health services staff follows through with their commitment to change the requirement to a recommendation that places of worship gather names and contact information of those who attend services and provide it to the county upon request. (See related articles, here, here and here). In addition, the letter points out that the county’s health order limiting indoor services to 12 people also violates the Constitution. 2020.06.10_HDhillon CAL Letter to Contra Costa County

June 10, 2020

Contra Costa County Board of Supervisors

651 Pine Street

Martinez, CA 94553

Re: Unconstitutional Contra Costa Health Services Order No. HO-COVID19-17, Specifically Regarding “Additional Businesses” (section 3 of Appendix C-1, Updated June 5, 2020)

Dear Board of Supervisors:

We write today, on behalf of clients in Contra Costa County, to demand the immediate rescission of Contra Costa Health Services Order NO. HO-COVID19-17 (the “Order”). The Order is concerning for two reasons: (1) Its requirement that houses of worship—and only houses of worship—keep and upon request disclose “a record of attendance” to Contra Costa Health Services violates both state and federally protected rights of associational privacy; (2) Restricting religious gatherings to no more than 12 participants violates First and Fourteenth Amendment protection. And while we appreciate the County’s recent announcement that it plans to revise its requirement that houses of worship keep and disclose attendance lists, until such plans manifest, we reiterate our objection over its current text.

1. Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates First Amendment Rights

The First Amendment to the U.S. Constitution prohibits government actors from enforcing any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” U. S. Const. amend. I; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (applying the First Amendment to the States through the Fourteenth Amendment). Under strict scrutiny, the government cannot burden religious activity unless it first establishes (1) a compelling interest for imposing such burdens, and (2) that the burdens are the “least restrictive means” necessary to further that compelling interest. Federal courts routinely enjoin the enforcement of laws and policies under this standard. See e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520, 524 (1993).

The County’s Order severely burdens religious expression. The Order’s restriction on indoor religious services—limiting the number of participants to 12 persons or 25% of the building’s capacity, whichever is less—does not survive exacting scrutiny in that it is not the least restrictive means to accomplish the County’s interest in public health. Simply put, there are better ways for the County to accomplish its interest in public health that do not burden religious expression as much. For example, restricting participation on a percentage basis only—with respect to facility seating capacity—is a better solution. Twelve people in a sanctuary that holds one thousand looks very different from twelve people in a sanctuary that holds one hundred people.

In other words, percentage-based restrictions accommodate larger houses of worship while satisfying the County’s interest in public health and social distancing.

1. Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates Right to Equal Protection

The Fourteenth Amendment of the Constitution provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

Equal protection requires the state to govern impartially—not draw arbitrary distinctions between

individuals based solely on differences that are irrelevant to a legitimate governmental objection. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).

Here, the County’s 12-person limit on religious gatherings is nothing if not arbitrary. This is more restrictive than statewide health guidelines, according to the California Department of Health for places of worship, which currently limits attendance to 25% of building capacity or a maximum of 100 attendees, whichever is less; it is unclear where Contra Costa County’s “12 person” idea originates.

Additionally, no other establishment in Contra Costa County is subject to these more restrictive and draconian requirements. Costco, laundromats, marijuana dispensaries, and countless other purely secular entities are not burdened by this arbitrary, 12-person limitation.

On April 14, 2020, the United States Attorney General, William Barr, issued a statement addressing the disparate treatment being afforded to houses of worship.

As we explain in the Statement of Interest, where a state has not acted evenhandedly, it must have a compelling reason to impose restrictions on places of worship and must ensure that those restrictions are narrowly tailored to advance its compelling interest. While we believe that during this period there is a sufficient basis for the social distancing rules that have been put in place, the scope and justification of restrictions beyond that will have to be assessed based on the circumstances as they evolve.

Religion and religious worship continue to be central to the lives of millions of Americans. This is true more so than ever during this difficult time. The pandemic has changed the ways Americans live their lives. Religious communities have rallied to the critical need to protect the community from the spread of this disease by making services available online and in ways that otherwise comply with social distancing guidelines.

The County may not treat houses of worship as second class entities; at a minimum, it must treat them equitably with respect to secular counterpart. Contra Costa Health Services Order NO. HO-COVID19-17 does the opposite—it targets houses of worship with more burdensome restrictions.

III. The Order Infringes Upon Constitutionally Protected Right to Privacy Under State Law

The right to privacy is an inalienable right under California law.3 This privacy interest irrefutably extends to participation in religious gatherings.

In Church of Hakeem, Inc. v. Superior Court, Alameda County, 110 Cal. App. 3d 384 (Ct. App. 1980), the court expressly declined to mandate disclosure of member names and addresses, even after allegations of criminal activity or wrongdoing by the church. In City of Carmel-by-the-Sea v. Young, 2 Cal. 3d 259 (Ct. App. 1970), the court affirmed a list of freedoms afforded constitutional protections, such as the freedom of association and privacy in one’s associations, encompassing privacy of the membership lists of a constitutionally valid organization. In Pacific Union Club v. Superior Court, 232 Cal. App 3d 60 (Ct. App. 1991), the court provided a robust analysis of associational rights and ultimately upheld a private club’s right not to disclose member lists.

Applied here, Contra Costa County’s Order requiring houses of worship to create and preserve the names and contact information of those in attendance at a worship service or ceremony, and then disclose such information “immediately upon request” unconstitutionally violates privacy rights while chilling religious expression. Whether gathering for political, social, or religious reasons, the right of association is sacrosanct. Unfortunately, the County’s Order deprives Californians their right to pray, worship, repent, and seek spiritual guidance privately. Rather, the Order subjects their most intimate religious activities to potential publication.

3 “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. Art. 1 § 1

1. The Order Violates Right to Privacy Protected by Federal Law

The “Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.” Nat’l Ass’n for Advancement of Colored People v. State of Ala. Ex rel. Patterson, 357 U.S. 449, 462 (1958). Citing American Communications Ass’n, C.I.O., v Douds, 339 U.S. 382, 402 (1950), the Court explained,

‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particular where a group espouses dissident beliefs.

Here, Contra Costa County’s Order tramples Californians’ right to privacy and in doing so, violates the Due Process Clause. Similar to the state of Alabama in NAACP v. Alabama, Contra County is requiring houses of worship to disclose the identities of congregants gathering to worship. And similar to the state of Alabama, this mandatory disclosure of religious expression “curtails the freedom to associate,” “denying “the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment,” and is “subject to the closest scrutiny.” Id. at 460-61.

1. Attendance Recordation Requirement Violates Equal Protection Protected by Federal Law.

By the Order’s express terms, the Order discriminates against places of worship by requiring places of worship to create and maintain attendee lists, yet the Order places no other such burdens on any other non-religious establishment whatsoever. As the United States Supreme Court has noted, “a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). Further, “A law is not generally applicable if its prohibitions substantially under include non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9^th Cir. 2015) (citing Lukumi, 508 U.S. at 542–46). So, “In other words, if a law pursues the government’s interest ‘only against conduct motivated by religious belief,’ but fails to include in its prohibitions substantial, comparable secular conduct that would similarly threaten the government’s interest, then the law is not generally applicable.” Id.

The County fails this standard. Houses of worship are uniquely burdened by this public disclosure requirement. And again, no other entity appears to be subjected to this standard.

In conclusion, we believe the County’s Order violates federal and state law while unashamedly discriminating against houses of worship. For these reasons, the Center for American Liberty respectfully requests that Contra Costa Health Services Order NO. HO-COVID19-17, requiring houses of worship to record and disclosure attendance at religious services, be either rescinded or amended to cure its constitutional defects. We look forward to hearing your response.

Regards,

Harmeet K. Dhillon

cc: John Gioia, Candace Anderson, Diane Burgis, Karen Mitchoff, Federal D. Glover

Repeals part of Proposition 13’s protections

By Allen Payton

During their meeting on Wednesday, June 10, 2020 the Antioch School Board unanimously passed a resolution without debate, supporting the California Schools and Local Communities Funding Act of 2020 on the November ballot. The measure would raise taxes on commercial and industrial property in California, repealing part of the tax protections in Proposition 13 that was passed by almost 63% of voters in 1978. (Read here or below: Resolution 2019-20-51 Schools and Local Communities Funding Act of 2020)

According to the non-profit, non-partisan Ballotpedia page on the measure, “Proposition 13 (1978) requires that residential, commercial, and industrial properties are taxed based on their purchase price. The tax is limited to no more than 1 percent of the purchase price (at the time of purchase), with an annual adjustment equal to the rate of inflation or 2 percent, whichever is lower.” UPDATE: As of July 1, 2020 Secretary of State Alex Padilla has assigned the measure the number of Proposition 15 on the November ballot.

Supporters are calling the protections for business property “loopholes” in the state’s tax system. According to Ballotpedia, “the ballot initiative would amend the state constitution to require commercial and industrial properties, except those zoned as commercial agriculture, to be taxed based on their market value” which is “known as split roll.”

Superintendent Stephanie Anello asked “the board to approve a resolution asking that the state fully fund education. As you know during difficult financial times, because our revenue is based on state revenue the schools are the first that are usually cut, that’s why you often see us revising our budget, which looks like we’re going to be doing in the next 45 days.”

“So, this is asking the legislature and the governor to consider Prop 98 not the floor, meaning the guarantee that was made to schools, that they would get at least that amount,” she continued. “It was never meant to be the ceiling. And what we find is that is often the ceiling. During difficult budget times, schools have to face difficult financial realities.”

Anello made no mention of Proposition 13 nor does the resolution.

Only one member of the public, Valerie Luke, submitted a comment on the matter, writing, “We are once again in a situation of fighting over scraps to try and meet the needs of our students. The funding system for our schools is deeply flawed and we’re always trying to figure out how to do more with less.”

“A coalition of education and community groups have been working many years on a solution to the education funding problem in California,” she continued. “Changing our tax code to eliminate loopholes that allow some big business from avoid paying property taxes will raise some $12 billion for our schools every year in our state.”

K-12 Schools & County Ed Offices Will Receive $2.67 to $4.1 Billion Annually If Passed

However, also according to Ballotpedia, schools would receive less than 40% of the estimated $7.5 to $12 billion generated from the tax increase. That’s because, “First, the revenue would be distributed to (a) the state to supplement decreases in revenue from the state’s personal income tax and corporation tax due to increased tax deductions and (b) counties to cover the costs of implementing the measure. Second, 60 percent of the remaining funds would be distributed to local governments and special districts, and 40 percent would be distributed to school districts and community colleges (via a new Local School and Community College Property Tax Fund).”

Ballotpedia further explains that “Revenue appropriated for education would be divided as follows: 11% for community colleges and 89% for public schools, charter schools, and county education offices. There would also be a requirement that schools and colleges receive an annual minimum of $100 (adjusted each year) per full-time student.”

Class Warfare Rhetoric in Resolution

The resolution uses class warfare rhetoric with statements such as, “the lack of adequate local funding is the result of an inequitable tax system in which corporations and wealthy investors do not pay their fair share in property taxes” and “loopholes in California’s property tax system allows a fraction of major commercial and industrial properties to avoid regular reassessment and use shady schemes to hide change in ownership”, as well as “these loopholes and tax schemes result in millions of dollars going to corporations and wealthy investors rather than to schools and local communities for essential services”

Householder Compares Facebook’s Property Taxes to Disney’s

Trustee Ellie Householder was the only member of the board to speak on the resolution, saying, “One of the things I find the most striking about this, when we’re talking about closing the corporate loophole…The thing that struck such a big chord with me, the fact that Disneyland…is paying property taxes on the value of that land in 1957 dollars.”

“So, you can imagine that a company like say Facebook that has just recently built a facility in the South Bay is paying a lot more property taxes than this multi-billion-dollar company,” she continued. “This is not going to increase taxes on individuals, but it’s just going to make sure that companies like the Disney Corporation give their fair share for schools.”

“With that I proudly make a motion to support the resolution,” Householder concluded.

Trustee Gary Hack seconded the motion and without any further discussion, it passed on a 5-0 vote.

Disneyland actually pays property taxes based on the value of its land in 1976 the base year stipulated in Prop. 13, plus the 2% maximum annual increase included in that ballot measure. Assuming it was increased by 2% every year since then, Disney is now paying property taxes based on almost 230% of the 1976 value of it’s property.

Facebook Founder & Wife Back Measure

Householder’s reference to Facebook’s property taxes may not be random, as one of the major funders of the Schools and Communities First campaign, leading the effort in support of the measure, is listed on its website as Chan Zuckerberg Advocacy. Also, according to the campaign’s website, it is “sponsored by a Coalition of Social Justice Organizations”.

The Chan Zuckerberg organization’s correct name is the Chan Zuckerberg Initiative (CZI) and was formed by Facebook founder Mark Zuckerberg and his wife Priscilla Chan, who are each listed as Co-Founder and Co-CEO. Among a variety of efforts, according to the CZI website, through the Reforming Policies & Practices, under their Advocacy efforts, they “work to shape policies that tangibly impact communities” and “raise awareness of key issues, support frontline organizations, and contribute to ballot and legislative measures.”

According to a one-page flier provided on the campaign’s website, the measure “Levels the playing field for all the businesses that already pay their fair share.” So, if it passes, Facebook’s older competitors in the state will have to pay the same property tax rate as the Zuckerbergs’ company does.

Opponents Of Measure Say It Will Hurt Jobs

Former state Director of Finance, Tom Campbell, one of the opponents of the measure warns, “In repealing Proposition 13 for businesses, California will be forfeiting our best argument to attract new jobs – a long-term sacrifice that will hollow-out California’s economy, costing us far more than $10 billion in a very short time.”

Commercial Property Tenant Rents Could Increase, Cause Decrease in Property Values

“It’s short-sighted,” said Aaron Meadows, the owner of commercial property and a property manager in Antioch, who commented after the board’s vote. “It’s going to be an additional cost to the corporation. It’s going to be passed on to the consumers. And the corporations are going to leave the state. We’re already losing headquarters. They’re leaving San Francisco and moving to Texas.”

“Why would their headquarters want to stay here?” he asked. “Why would Chevron want to stay here and keep their headquarters in San Ramon?”

“Commercial property managers will ask for reassessments if they get assessed to high,” Meadows continued. “They could potentially cause an assessment decrease, if the values aren’t keeping up.”

“In some commercial and retail buildings, property taxes are passed on to tenants as triple net,” he explained. “So, rents on the small business owner tenants will increase.”

“Plus, values will potentially decrease,” Meadows stated. “It might increase in the short term for property tax purposes. But, when we have to pass those additional taxes on to tenants, it could make it more difficult to lease the space, which reduces revenue resulting in the value of the property decreasing.”

An effort to reach Antioch Chamber of Commerce chairman Richard Pagano, to get the perspective of local businesses, was unsuccessful prior to publication time. In addition, following the meeting an email was sent to Anello asking if she wrote the resolution or for the source of it. Please check back later for any updates to this report.

WHEREAS, for four decades, school districts in California have experienced underinvestment and devastating cuts causing California’s school funding to fall behind and resulting in fewer services and resources for students and teachers;
WHEREAS, the lack of adequate local funding is the result of an inequitable tax system in which corporations and wealthy investors do not pay their fair share in property taxes;
WHEREAS, loopholes in California’s property tax system allows a fraction of major commercial and industrial properties to avoid regular reassessment and use shady schemes to hide change in ownership;
WHEREAS, these loopholes and tax schemes result in millions of dollars going to corporations and wealthy investors rather than to schools and local communities for essential services;
WHEREAS, experts estimate that the California Schools and Local Communities Funding Act reclaims $12 billion in property tax revenue every year to ensure that our schools and communities have the resources to educate all of our kids and the services to support all of our families;
WHEREAS, the California Schools and Local Communities Funding Act does not affect property taxes for homeowners or renters because the initiative exempts all residential property;
WHEREAS, academic researchers at the University of Southern California (USC) have identified that the vast majority of the reclaimed revenue will come from just a fraction of large properties;
WHEREAS, California schools are falling behind, ranking lowest in the nation with the largest number of students per teacher and the fewest counselors per student;
WHEREAS, per-pupil funding has declined from the top 10 in the nation to 39th;
WHEREAS, the top-ranked state spends $10,259 more per-pupil to educate their children than California spends;
WHEREAS, the measure invests up to $4 billion annually for K-14 schools to ensure that our kids receive the world-class education they deserve;
WHEREAS, California should be a leader in innovation by educating the next generation of students to compete in the global economy;
WHEREAS, the California Schools and Local Communities Funding Act guarantees funding to all school districts, over and above Proposition 98 funding, and following the local control funding formula to all students in need in all districts;
WHEREAS, the measure also provides billions in funding yearly for cities, counties, and special districts in locally controlled revenues for affordable housing, parks, libraries, emergency responders, health and human services, libraries, public infrastructure, and much more;
WHEREAS, the measure incentivizes the development of residential units and provides more funding for communities to invest in affordable housing;
WHEREAS, the measure provides new tax incentives to spur new investment in small businesses by eliminating the business personal property tax on equipment for California’s small businesses;
WHEREAS, the measure also exempts all small business owners whose property is worth $3 million or less;
WHEREAS, the measure levels the playing field for businesses that already pay their fair share in our communities;
WHEREAS, the California Schools and Local Communities Funding Act of 2020 is on the November 2020 ballot;
THEREFORE, be it Resolved, that the Antioch Unified School District endorses the California Schools and Local Communities Funding Act of 2020 for a ballot measure in November 2020.

With total annual budget revenues of $158 million the City of Antioch spends $43 million on police services.

By Allen Payton

This is in response to public comments during the Antioch City Council meeting on Tuesday, June 9, 2020 which included calls for the defunding of the police department claiming it takes up 62% of the city’s budget. In addition, copies of the city’s General Fund pie chart were distributed to participants during a Black Lives Matter protest held in Antioch on Tuesday. Hopefully, this will help educate them so they make policy suggestions in the future based on the facts, not rumor and misinformation.

What all of those people didn’t do was their homework, which could have been accomplished with a simple online search to learn about the actual details in the city’s two-year budget for the 2019-2020 and 2020-21 fiscal years. Please click here to view and see pages vi (10) and vii (11) of the 330-page document that can be found on the Finance Department’s page on the City’s website. (NOTE: This last sentence has been corrected. The previous pages referred to the June 25, 2019 Antioch Council meeting agenda in which the proposed two-year budget was included for council adoption and was 776 pages long).

In the current 2019-20 fiscal year ending on June 30th, the General Fund makes up just 44% of the city’s overall budget. That figure is projected to rise slightly to 44.1% in the next fiscal year beginning July 1st. Of that 62% was spent on police and public safety this year and 62.1% is budgeted in the 2020-21 fiscal year. So, that means only 27.3% to 27.4% of the city’s budget was and will be spent on police services during the current two-year budget cycle.

What the people who spoke during the council meeting also don’t seem to understand, remember or be aware of – most likely because they are young and couldn’t vote when the ballot measures passed or don’t live here – is that the voters of Antioch voted twice to pass a sales tax increase and spend most of the additional revenue on more police and public safety.

As a result, the City of Antioch has been hiring more police since 2013, and just last year, finally fulfilled the promise made in 2013 by the then-mayor and council members of 22 more police officers, immediately. That was when there were 89 sworn officers on the force and Antioch now has 115 sworn officers.

Then, with the passage of Measure W in 2018, increasing the sales tax to one percent, the voters told the council to spend most of the funds to “restore the number of police officers patrolling City streets” and “to increase investment in code enforcement, clean up blight, road repairs, support youth and senior services, and attract new business and jobs to Antioch.” The priorities for use of the Measure W sales tax funds are as follows:

• Continuing to maintain 911 police response and restore the number of police officers patrolling City streets
• Ensuring water quality and safety
• Maintaining Antioch’s quality of life and financial stability
• Cleaning up illegal dumping
• Restoring after-school and summer programs for youth

Going back to the City’s original formation documents in 1872, the City of Antioch was incorporated for the purpose of “police and other matters.” Police services and public safety have always been the number one reason the city government exists and the top budget priority. But, it does not make up more than a majority of the City’s overall budget. It’s closer to one-fourth.

Will cost city $100,000; could face pre- and post-election legal challenges due to new legislation possibly making the initiative moot and costing city even more.

By Allen Payton

In response to the direction given by a judge in a court case over two initiatives affecting new home development in the Sand Creek Focus Area that the council adopted in 2018, the Antioch City Council voted 5-0 to place the one initiative sponsored by the environmental community on the November 2020 ballot.

That court case resulted in the judge tossing out the council’s adoption of the environmentalist-backed Let Antioch Voters Decide (LAVD) initiative. It also invalidated both the initiative sponsored by Richland Communities, the developer of the 1,100-home project known as The Ranch, as well as their development agreement. In his ruling, the judge also ordered the city council place the LAVD initiative on the ballot. However, the decisions in the lawsuits by adjacent property owners The Zeka Group owners of Zeka Ranch, and the Oak Hill Park Company are still being appealed by the backers of the LAVD initiative. (See related articles here, and here)

According to a previous Herald news report, following a 30-day study by city staff, their report found the initiative limited the total number of housing units to 2,100 in the entire Sand Creek Area. Since the past and current councils had already approved more than 2,300 homes, then no more homes could be built, including the proposed 301-unit, gated senior home community east of Deer Valley Road, known as The Olive Groves on the Albers Ranch property. However, both Seth Adams of Save Mount Diablo and the attorney for Richland said that the intent of each initiative was to only affect property on the west side of Deer Valley Road.

The LAVD initiative will directly impact the proposed Zeka Ranch project (see related article), west of The Ranch project, on the west side of Empire Mine Road, as well as three other properties directly south of Richland property, including Oak Hill’s. Zeka’s proposed number of homes would be reduced from 300 to 400, down to just one home per 80 acres, resulting in just a total of eight homes.

In addition, since the judge’s decisions, new legislation, SB330, was passed by the state legislature and signed into law by Gov. Newsom, last year which prevents cities from downzoning land already zoned residential, either by council action or through the initiative process.

Yet, according to Derek Cole, the city’s contract attorney working on matters dealing with the Sand Creek initiative, “cities have mandatory duties whenever proposed ballot measures receive the signatures necessary to qualify for the ballot.  In this case, because the ‘9212’ report and approval of the initiative are no longer options, the City can only take action to call an election as to the initiative.  City staff is aware of the SB 330 legislation that took effect this year, but as the Staff Report explains, the City Council cannot assume the role of the courts in deciding any legal issues associated with the measure.  The State Supreme Court made very clear in a 2017 decision that the duty to call an election on an initiative is mandatory, even when an initiative’s legality is questioned.”

“The council could adopt an argument against the initiative,” added City Attorney Thomas Smith.

During public comments Joanna Garaventa, with the East Bay Chapter of the California Native Plant Society, spoke in favor of the initiative. She submitted a letter to the council, but when speaking it was difficult to understand her for the purpose of adding her comments to this report.

Andrew Bassak, an attorney with Hanson Bridgett, representing The Zeka Group, opposed the placement of the initiative on the ballot as “it would negatively affect the development that’s been planned for the past 30 years.”

He referred to SB330, the new residential development law.

“The city lacks authority to place the initiative on the ballot…under the California Elections Code. That passed years ago,” Bassak explained. “There is no authority under the stayed Superior Court ruling. That judgement is currently subject to appeal, by one of the proponents of the initiative. Save Mt. Diablo wants to have its cake and eat it, too.”

“The cost of putting it on the ballot will be over $100,000,” he stated. “Placing it on the ballot will result in more litigation” both before…and after the November election. Those litigations could easily double the $100,000 amount. This is just squandering resources that could be spent elsewhere. The city should wait until the court of appeals decision is over.”

Bassak submitted a letter to the mayor and council before the meeting. In it he wrote, “the Initiative is fundamentally flawed and, if placed on the ballot, will be subject to avoidable costly pre-election litigation.” 06-09-20 Zeka Group Attorney Letter to Antioch re LAVD Initiative

Seth Adams, the Land Conservation Director for Save Mt. Diablo, which sponsored the LAVD initiative said, “Please move forward with placing our initiative on the ballot and please formally endorse the initiative.”

“Over 9,000 citizens signed the petition to place the initiative on the ballot,” he continued. “The courts said to place the initiative on the ballot. It did not invalidate the initiative.”

“Our attorneys have provided information to the city that explains why they can place the initiative on the ballot,” Adams added. Emails from Save Mt. Diablo’s attorney to City of Antioch re LAVD Initiative

All the other thirteen public comments were in favor of placing the initiative on the ballot.

Councilwoman Lori Ogorchock then asked about how SB 330 affected the initiative.

“SB330 is legislation…that became effective in January of this year and is retroactive two years,” Smith said. “Under the new regulation any affected city is precluded from adopting policy…of lesser standard. It is preventing the downzoning of land, from residential to something that would not allow development.”

“It is one of the factors that would have to be taken into consideration if the initiative passed,” he continued. “However, at this time, the council can move forward.”

“There may be a pre-election challenge or a post-election challenge,” Smith added. “SB330 could affect it in determining if the initiative is valid.”

“Not only did 9,000 of our citizens sign petitions to place this on the ballot, but the courts directed the council to place it on the ballot,” said Mayor Pro Tem Joy Motts. “I believe it’s an environmentally sensitive, efficient development. So, I am in favor of moving the initiative forward and placing it on the November ballot.”

Ogorchock then moved to place the initiative on the ballot. Councilwoman Monica Wilson seconded the motion.

Smith then asked if the two actions could be separated, with the council deciding if they want to include a ballot argument against the measure.

Ogorchock then shortened her motion to not include a ballot argument.

Thorpe then asked staff to come back with something at a future council meeting, for council to decide whether or not to endorse or oppose the initiative.

However, the council can only submit an argument against the initiative, Smith explained.

Ogorchock and Wilson withdrew their motion and Ogorchock made a new motion and Thorpe seconded it.

“Do we want to make an argument against the initiative?” she asked. Wilson, Thorpe and Motts all said “no”.

“I just need you to make a motion that you do not want to make an argument against the initiative,” Smith explained.

Ogorchock then made a friendly amendment to her own motion that the council will not include an argument against the initiative. Thorpe accepted the amendment to the motion.

That motion passed on a 5-0 vote, that the council will not include a ballot argument against the initiative.

Then Ogorchock returned to her original motion to place the initiative on the November ballot. It was seconded by Wilson and the motion also passed 5-0.

Efforts to reach Seth Adams and city staff to obtain a copy of the letter sent to the City from Save Mt. Diablo’s attorney before the meeting, were unsuccessful prior to publication time. Please check back later for any updates to this report.

May also challenge 12-person or 25% capacity limit for indoor services

Following is the statement from the Center for American Liberty’s Founder Harmeet K. Dhillon concerning the Contra Costa Health Services Order No. HO-COVID19-17. (See related article)

“The Center for American Liberty was contacted recently regarding the June 5, 2020 Order issued from Contra Costa Health Services (Order No. HO-COVID19-17). This Order was concerning for several reasons and we intend to formally reach out to Contra Costa County with an analysis of our concerns.

The June 5, 2020 Order, as presently written, specifically singles out places of worship by requiring that places of worship in Contra Costa County create and preserve a list of persons in attendance, and then disclose such attendance list upon request to the government – a burden that is notably not placed on other establishments in Contra Costa County. Such burden is unconstitutional and is discriminatory on its face.

The California Constitution provides certain inalienable rights, including the right to privacy, to freely assemble, and to enjoy one’s religion- Californians deserve to freely worship and assemble without fear that his or her name and address will end up in a government database. The Center for American Liberty welcomes any official change to this June 5, 2020 Order and will continue to be vigilant about any attempts to discriminate against houses of worship or people of faith in California.

Additionally, the June 5, 2020 Order currently limits houses of worship to a 12 person or 25% limit (whichever is fewer), which is arbitrary, and we will also be monitoring, and potentially challenging, this disparate burden on places of worship and people of faith in Contra Costa County.”

Provides reasons he doesn’t recommend implementing all of them

The following was issued on Tuesday, June 9, 2020 in response to questions from the public and media about eight proposed reforms for the Antioch Police Department, explaining how five of the eight have already been implemented. (See related article)

Message from Chief Tammany Brooks

In the past few days, I have received numerous inquiries from the media and the public regarding a national campaign called 8 Can’t Wait. As such, I wanted to provide some clarifying information so our community can be more informed on the reality of how our current policy compares to the recommendations made by the 8 Can’t Wait campaign. I will also explain why I do not believe at this time it would be prudent to follow all eight of the recommendations.

Three things I want you to consider before I go through each of the 8 Can’t Wait recommendations:

• The entire Antioch Police Department Policy Manual is accessible for anyone to review through our police department website, and has been for about two years.
• The Antioch Police Department uses Lexipol software to continually update our policies. Lexipol is the nation’s leading provider of public safety policy and training solutions for law enforcement. This system ensures that all policies are aligned with State and Federal law and policies are continuously updated as laws change.
• In 2019, California passed two pieces of legislation that are important to this conversation. AB 392 (Weber) set a new legal standard for police officers’ use of deadly force here in California. SB 230 (Caballero) set national precedent by establishing a minimum use of force policy standard for ALL departments.

Now let’s look at each 8 Can’t Wait recommendation, and whether it is currently in use at the Antioch Police Department:

De-Escalation Requirement: Yes

This recommendation, while not directly articulated, is part of the legal standard for all California police departments. SB 230 requires that “officers utilize de-escalation techniques, crisis intervention tactics, and other alternatives to force when feasible.

Use of Force Continuum: No

The use of force continuum is an outdated model that has proved impractical, even dangerous, when applied in real life situations. Instead, our policy focuses on various factors used to determine the reasonableness of force in any situation, as set forth in the training and policy requirements of SB 230.

Restrict Chokeholds and Strangleholds (including carotid restraint): Yes

During my 25 years here at APD, chokeholds and strangleholds have never been authorized uses of force. However, our current policy as seen on our website allows for the use of the carotid restraint. However, Last Friday, Governor Newsom instructed California POST to cease training officers in its use and stated he intended to sign pending legislation that would ban its use throughout the entire state. Because of this, I have already issued a departmental directive, immediately prohibiting the use of the carotid restraint by our officers. This will be formally updated in an upcoming update to our use of force policy.

Require Officers to give verbal warning when possible before using deadly force: Yes

This is already included in our current policy in section 300.4, and reads, “Where feasible, the officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.”

Prohibit Officers from shooting at people in moving vehicles: No

I do not believe outright prohibitions in all circumstances is reasonable or accounts for situations where the driver of a vehicle may be threatening death or great bodily injury to others. Section 300.4.1 of our current policy already limits when an officer can shoot at a moving vehicle. It reads, “Officers should move out of the path of an approaching vehicle instead of discharging their firearm at the vehicle or any of its occupants. An officer should only discharge a firearm at a moving vehicle or its occupants when the officer reasonably believes there are no other reasonable means available to avert the threat of the vehicle, or if deadly force other than the vehicle is directed at the officer or others.”

Require Officers to exhaust all other reasonable alternatives before using deadly force: No

This language was previously suggested in AB 392, but was removed due to its ambiguity, no clearly defined means of objectively deciding what other alternatives might be reasonable in every situation, and concerns associated with the second-guessing of split-second decisions with the benefit of hindsight 20/20. Officers’ decisions concerning any use of force alternatives should be judged based on the totality of the circumstances and reasonable officer standard in AB 392.

Require Officers to intervene: Yes

This is already in our current policy in section 300.2.1, and reads, “Any officer present and observing another officer using force that is clearly beyond that which is objectively reasonable under the circumstances shall, when in a position to do so, intercede to prevent the use of unreasonable force. An officer who observes another employee use force that exceeds the degree of force permitted by law should promptly report these observations to a supervisor.”

Require comprehensive reporting: Yes

Comprehensive reporting on cases involving use of force is covered in our current policy in sections 300.5, 300.5.1, and 300.5.2. Additionally, SB 230 already requires “comprehensive and detailed requirements for prompt internal reporting and notification regarding a use of force incident.”

The Antioch Police Department takes great pride in serving our community with integrity and compassion. As I have previously mentioned, our officers undergo continuous training, covering topics such as proper use of force, fair and impartial policing, interpersonal communications, crisis intervention training, and de-escalation techniques.

These types of trainings have helped us minimize the need to use force in many situations. In 2019, Antioch Police Officers responded to more than 94,600 calls for service – of which, only 0.1% required a use of force. As noted in our current policy, each reportable use of force is tracked in a system called Blue Team, and reviewed and evaluated by a supervisor and members of my command staff to ensure the use of force (and circumstances surrounding it) are in legal compliance and within policy.

I hope this helped answer any questions you may have had.

Sincerely,

Chief T Brooks

By Allen Payton

Contra Costa County health officials are backing down on their requirement in the latest order issued June 5 that places of worship gather names and information of all attendees, keep it for 14 days and provide it to the county immediately upon request. According to a statement issued Tuesday morning, “health officers will be working with county attorneys to revise the order to reflect this as a recommendation but not a requirement.”

The action comes following a series of email exchanges between the Herald and county supervisors and staff over the past several days about the requirement, an article and public outrage on social media challenging the constitutionality of the requirement, the inconsistent and unfair application to only places of worship, and no other organization or business, including protesters or restaurants offering outdoor dining in which people sit for extended periods of time with their masks off in order to it.

A legal effort was in the works as of Monday, with several residents agreeing to sign on to a legal demand letter to be sent to the county. But that now appears to be unnecessary.

Following is the Statement Regarding Requirements for Religious Gatherings

“In the health order issued June 5 by Contra Costa Health Services, religious organizations were required to maintain a list of attendees at religious services and cultural ceremonies in the event of an outbreak of COVID-19. The intention was to facilitate quick, complete contact tracing if a participant at the event tests positive.

Health officers will be working with county attorneys to revise the order to reflect this as a recommendation but not a requirement. If a participant tests positive for COVID-19, the host will be asked to assist CCHS with contact tracing associated with the gathering.

To mitigate the risk of transmission to the greatest extent possible, CCHS encourages participants to wear face coverings at all times, maintain social distance when possible, practice good hand hygiene, and stay home if sick.”

According to Kim McCarl, Assistant to the Director of Contra Costa Health Services for Communications, “As we revise the language, the recommendation will apply to any allowed gatherings.”