INTRODUCTORY EDITOR’S NOTE: This blog article is an in depth analysis of Sheriff Manny Gonzales and his refusal to enforce constitutional public health orders. It is also an in depth discussion of US Supreme Court rulings, New Mexico statutes enacted, approved vaccines and discusses the health risks associated with the vaccines. The blog article concludes by encouraging people to wear a mask and take the vaccine once available to the general public.
BCSO SHERIFF MANNY GONZALES
Bernalillo County Sheriff Manny Gonzales is at it again for a 4th time within a year with his grandstanding ways as he runs for higher office, either Mayor or United State Congress, depending on the day you talk to him.
FIRST: Gonzales has repeatedly refused to mandate the use of lapel cameras by his sheriff deputies, saying there was no proof that the lapel cameras are needed and they only result in second guessing of law enforcement. Sheriff Gonzales has consistently opposed the use of lapel cameras by the Bernalillo County Sheriff’s office, even when the Bernalillo County Commission allocated funding for lapel cameras and he declined to spend the financing. Lapel camera usage is required of APD and law enforcement agencies throughout the country. On July 15, Sheriff Gonzales essentially ignored the 2020 legislature’ s mandated use by all law enforcement agencies in the state. At the time, Gonzales announced he was looking to partner with a private company so his deputies can put “smart phones” in their vests and record video instead of using the specialized body cameras. Currently, sheriff deputies are not wearing any cameras. According to Sheriff Gonzales “I’m here to keep people safe. I found nowhere in that oath where that makes me more transparent. There is no proof that cameras make agencies more transparent.” Sheriff Gonzales said BCSO body cameras should be up and running sometime in early 2021.
Editor’s Note: The elected Bernalillo County Commission has no authority over the elected Bernalillo County Sheriff and cannot give the Sheriff any orders. The Sheriff’s Office is a separate agency funded by the county. Citizens can make their opinions and suggestions known to the Sheriff through the Bernalillo County Sheriff’s Advisory and Review Board, but the Sheriff has absolutely no obligation to honor the suggestions.
SECOND: Gonzales made a big announcement in the summer of 2020 saying he was going to the White House to “meet with President Trump”. It turns out the Sheriff was only invited to the White House for a press conference for a photo op. He did not even speak at the press conference. True or not, it was interpreted as an endorsement of President Trump’s law enforcement policies with Gonzales declaring it was his duty to cross party lines when it comes funding and law enforcement initiatives.
THIRD: Gonzales opposes the Bernalillo County District Attorney’s questionnaire for his sheriff deputies to identify misconduct, disciplinary action and biasness. Gonzales foolishly proclaimed that the DA’s questionnaire was ”unconstitutional” and interfered with deputies “right to privacy.” Since 1972, the mandatory disclosures of police officer misconduct to defense for purposes of impeachment of veracity on the witness stand have been required by the United States Supreme Court.
Sheriff Gonzales instructed BCSO Deputies not to answer the DA’s questionnaire and got cute substituting his own questionnaire that has only 2 questions. Those two questions are:
1. “Are you aware of any sustained Internal Affairs investigatory findings indicating you provided untruthful testimony, or were found to be untruthful in the course of your duties?”
2. “Are you aware of any court or judicial body that has determined you provided false or deliberately misleading testimony under oath?”
The questions can be answered with a “yes” or “no”. Asking a deputy sheriff if you “are aware” you have done something wrong is not the full disclosure as required by the United States Supreme Court.
FOURTH: On December 19, a defiant Bernalillo County Sheriff Manny Gonzales on a video proclaims he will not enforce “unconstitutional laws” when it comes to the corona virus pandemic. In a video posted to YouTube, Gonzales said he sympathizes with business owners and houses of worship, and accused politicians of “turning everyday citizens into villains.” Gonzales got the publicity he covets when local news agencies covered the story. Gonzales had this to say:
“I choose to direct this agency’s time and resources to the laws deemed to keep people free of crime. … Overreaching restrictions will harm our community. For that reason, we will not follow along with any orders that subvert constitutional rights.”
A link to the YouTube Video is here:
Governor Michell Lujan Grisham’s office issued the following statement in response to Sheriff Gonzales:
“Over 2,000 New Mexicans have been killed by COVID-19, including over 460 people in Bernalillo County. It is deeply disappointing, not to mention directly harmful, that any public official would take any action that undermines the health and safety of their community. All New Mexicans should agree on the importance of doing anything and everything we can to save lives.”
On Saturday, Bernalillo County reported 449 additional COVID-19, the most new cases out of any county in the state.
A BADGE DOES NOT ALLOW YOU TO PRACTICE LAW WITHOUT A LICENSE
Governor Michelle Lujan Grisham has declared a public health crisis and has issued emergency health orders to deal with the Corona Virus pandemic. The public health orders are allowed by New Mexico State law. The Public Health orders have taken the form of retail business closures, restaurant closures, cancellation of public events, school closings, church closings, and limiting gathering and self-quarantine orders and social distancing to prevent the spread of the virus.
Cases have been filed with New Mexico Supreme Court by private citizens, businesses and the the Republican Party to stop Governor Michell Lujan Grisham’s public health orders attempting to declare the public health orders as “unconstitutional”. Gonzales is using the exact same inflammatory rhetoric the Republican party uses that the health orders are “unconstitutional”. Gonzales acts as if a badge gives him a license to practice law. Virtually all the lawsuits filed to set aside the Governor’s public health orders as “unconstitutional” have been thrown out by the New Mexico Supreme Court almost as quickly as they have been filed.
EXTENT OF THE PANDEMIC
According to the United States Center for Disease Control (CDC) cases, as of December 18, there are 17.4 million total cases of Covid, there have been over 313,000,00 deaths in the United States alone. Worldwide, there are 75.5 million reported cases, 42.6 million have recovered and 1.67 million have died.
The New Mexico Department Of Health (NMDOH) reports that as of December 21, there have been a total of 2,171 reported deaths and 129,993 positive tests, 1,703,332 negative tests with 820 hospitalized in New Mexico for COVID-19. Two highly effective vaccines have been now been approved by the United States Food and Drug Administration and are now being distributed throughout the United States.
STATES AND CITIES CAN ISSUE PUBLIC HEALTH ORDERS AND MANDATE IMMUNIZATION
It is well settled US Constitution Supreme Court case law that state and local governments in the United States can issue public heath orders and even mandate immunizations. The United States Supreme Court has heard several challenges to these mandates and public health orders and has consistently ruled the mandates are indeed constitutional. Since 1905, the United States Supreme Court has said repeatedly in rulings that it is constitutional in a public health crisis for the government to require people to do certain things or to prohibit certain things that they normally would not do or could do and even refuse to do.
In 1905, during the small pox epidemic, the United State Supreme Court case of Jacobson v. Massachusetts, 197 U.S. 11 (1905), upheld the authority of states to enforce compulsory vaccination laws. The United States Supreme Court upheld the authority of Cambridge, Massachusetts, to require smallpox vaccinations when a Massachusetts minister refused to get a vaccination for the disease and refused to pay the fine.
In the Jacobson case, the state of Massachusetts delegated to local authorities the power to mandate smallpox vaccines. Faced with a smallpox outbreak, the city of Cambridge passed an ordinance requiring all people not vaccinated within a certain time frame to be vaccinated , or be re-vaccinated, if they were vaccinated too long before. The city ordinance provided for a criminal fine of $5 to those who refused. Minister Jacobson refused to vaccinate for small pox because of his concerns about the vaccine’s safety and he also refused to pay the fine. Reverend Jacobson challenged his conviction all the way up to the Supreme Court. The Court upheld his conviction on the grounds that individual rights are not absolute, and states can interfere with rights to protect the public health, as long as it’s reasonable.
The US Supreme Court’s decision in Jacobson stands for the proposition that freedom of the individual must sometimes be subordinated to the common welfare of all people and is subject to the police power of the state. The court ruled that the state did have a right to legally require and compel the vaccinations. The United State Supreme Court came down in favor of state governments being allowed to mandate vaccinations so long as it is reasonable to protect the public health, safety and welfare of citizens.
It is also well settled United States Supreme Court constitutional case law that the legislative branch can give the executive branch the authority to issue executive orders in times of national emergency over private enterprise. In 1952, the United States Supreme Court ruled in the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) that the authority to issue executive orders is whatever authority the legislative branch gives to the executive.
The case involved President Harry Truman who ordered the seizing of the steel mills and directed the steel mill presidents to operate mills as managers for the United States during the Korean War. The Supreme Court found that Truman did not have the authority. The Supreme Court found that the President’s power, if any, to issue such an emergency orders must stem either from an act of Congress or from the Constitution itself. Subsequent Supreme Court ruling have found that “executive power” of the President and by extension state governors to issue executive orders is whatever power the congress or the state legislators gives to them by enactment of legislation giving them those powers.
TWO SEPARATE AUTHORIZATION STATUTES
In New Mexico, the legislature has enacted two laws authorizing and empowering the Governor, the executive branch, to issue public health orders in time of a public health emergency such as the pandemic. The two statutes enacted are the “Public Health Act” and the “Public Health Emergency Response Act.” The Governor has the authority to issue executive orders in times of national emergency over private enterprise. Actions for violations of the “Public Health Act” are criminal carrying a penalty fine or jail time or both upon conviction. Violations of the “Public Health Emergency Response Act” are strictly civil and carry only a fine as a penalty.
“PUBLIC HEALTH ACT”
In 1973, the New Mexico Legislature enacted the New Mexico Public Health Act (NMPHA), section 24-1-3, et. seq., (Laws 1973, Chapter 359, as amended) which is administered and enforced by the New Mexico Department of Health. It outlines the powers and authority of the department. There are at least 12 specific provisions of the NMPHA that empowers the department by and through the Governor by appointment of the cabinet secretary.
The Public Health Act is the law the Governor has been using to temporarily close businesses and it allows for the state to levy $100-dollar criminal fine against non-compliant businesses, per day. Violations of the “Public Health Act” are criminal and contains a criminal penalty provisions that can be sought and enforced for violations of the Health Department orders. Municipal police departments, county sheriffs and the state police all can issue criminal citations that are misdemeanors that carry a maximum $100 fine and 6 months in jail.
A link to the Public Health Act is here:
“PUBLIC HEALTH EMERGENCY RESPONSE ACT”
The “Public Health Emergency Response Act” (PHERA) is the law the state has been using to threaten or issue businesses a civil fine of up to $5,000 per day.
In 2003, the New Mexico legislature also enacted the Public Health Emergency Response Act (PHERA) which is the law the Governor has been using to threaten or issue businesses citations carrying a civil penalty fine of $5,000 per day. Violations of The PHERA is not criminal. The act empowers the Governor to issue executive orders to respond to a health emergency that threatens the public health, safety and welfare, such as the corona virus pandemic.
It is section 12-10A-5 that empowers the Governor to declare a state of public health emergency and it provides in part as follows:
A. A state of public health emergency may be declared by the governor upon the occurrence of a public health emergency. Prior to a declaration of a state of public health emergency, the governor shall consult with the secretary of health. The governor shall authorize the secretary of health, the secretary of public safety and the director to coordinate a response to the public health emergency.
B. A state of public health emergency shall be declared in an executive order that specifies:
(1) the nature of the public health emergency;
(2) the political subdivisions or geographic areas affected by the public health emergency;
(3) the conditions that caused the public health emergency;
(4) the expected duration of the public health emergency, if less than thirty days;
(5) the public health officials needed to assist in the coordination of a public health emergency response; and
(6) any other provisions necessary to implement the executive order.
C. … D. … E. …. “
A link to the “Public Health Emergency Response Act” is here:
Two vaccines for the Corona Virus 19 have been approved and being distributed, with a 3rd on the horizon. A major problem the American people are confronted with in addition the virus is ourselves and the refusal of people to wear a mask or take the vaccine. Medical experts from Doctor Anthony Fauci to the politicians are essentially begging the American public and the skeptics of medical science to please wear a mask and take the vaccines once available. Former Presidents Barrack Obama, George W. Bush and Bill Clinton announced they will take the vaccine together. Trump remains sulking in the White House over his loss with President Elect Joe Biden and Republican Vice President Mike Pence taking the vaccine. President elect Joe Biden has declared that his goal for the first 100 days of his administration will be to convince 100 million people take the vaccine.
The medical science skeptics believe the risk of taking the vaccine and getting seriously ill outweigh the benefits and will not stop the spread of the disease. Self proclaimed defenders of the United States Constitutional rights proclaim the government has no right to order them to wear a mask and cannot be forced to take the vaccine, which is “dead wrong” in this case, figuratively and literally.
ABOUT THE VACCINES
The U.S. Food and Drug Administration has now approved two vaccines for distribution with a third on the verge of approval. Both vaccines are in short supply. The initial dose batches are being given to people at high risk of infection or serious illness including frontline health care workers and the residents and staff of nursing homes and other long-term care facilities and the elderly.
FDA APPROVED VACCINES
The two approved vaccines are:
1. The Pfizer Vaccine
On December 11, it was announced that the U.S. Food and Drug Administration issued the first emergency use authorization for a vaccine for the prevention of coronavirus disease 2019 (COVID-19) manufactured by Pfizer Inc which within days began shipping. The Pfizer-BioNTech vaccine requires ultracold storage for deliver and storage to health care providers.
2. The Moderna Vaccine
On December 18, it was announced that the U.S. Food and Drug Administration issued the second emergency use authorization for a vaccine for the prevention of coronavirus disease 2019 (COVID-19) manufactured by Moderna. The Moderna vaccine can be distributed much easier because it can be stored at normal freezer temperatures and, unlike the Pfizer-BioNTech vaccine, does not require ultracold storage. It also comes in much smaller batches, making it easier for hospitals in less populated areas to use quickly.
SIDE EFFECTS OF VACCINES
While it may take a while for production to increase to the point where a vaccine is readily available to the general public, health experts say there is one thing that’s critical for people to understand and that is the vaccines may cause side effects. Both vaccines require 2 separate injections spread out over a 2 or 3 week period.
The most commonly reported side effects, which typically lasted several days in test groups, were pain at the injection site, tiredness, headache, muscle pain, chills, joint pain, and fever. The side effects are essentially the same type of side effects experienced with the flu vaccine. Vaccination providers and recipients can also expect that there may be some side effects after either dose, but even more so after the second dose.
There have been reports of only two allergic reactions with people who are prone to such reactions.
COMMENTARY AND ANALYSIS
Bernalillo County Sheriff Manny Gonzales has become a pathetic throwback to the archaic attitude that law enforcement is somehow above the law. Gonzales obviously thinks he can practice law without a license and declare fully authorized and lawful public health orders as “unconstitutional.” With his actions, Gonzales undermines or attempts to essentially sabotage the State’s actions to get control of the pandemic.
Gonzales ostensibly is in total denial of what is happening with the pandemic by his actions. It appears he does not believe in medical science and research and attempts to hide behind the United States Constitution. Taking the vaccine needs to be a condition of continued employment in any job that requires dealing with the general public, such as law enforcement. Next thing we may all witness is a Bernalillo County Sheriff refusing to take the vaccine himself nor order his deputies to take the vaccine arguing it violates constitutional rights.
Sheriff Gonzales, as he runs for Mayor or Congress, likely knows that the general public has a tendency to resist anything perceived as an infringement of their civil rights and constitutional rights. Too many believe the corona virus is simply not a serious public health crisis, despite all the deaths and the ravaging effects of the virus.
Gonzales with his defiant conduct declaring he will not enforce “unconstitutional laws” in the Coronavirus response is political pandering with a very serious dark side. It is pandering that is dangerous to the public health, safety and welfare of the very people that Gonzales supposedly took an oath to serve and protect.
If Bernalillo County Sheriff Manny Gonzales feels he cannot enforce the public health orders that are in fact constitutional, he is refusing to do his job and needs to step down as he runs for higher office.
If not, Gonzales needs to just stop the pandering, stop his “truth decay”, stop undermining the public health orders and get with the program by doing his part in enforcing the public health orders as issued by the Governor.
Sooner rather than later, the federal government, state governments or city governments may mandate the wearing of masks or the taking of the vaccine in order to stop the disease. Until now the choice is ours and should be done without resistance. The statistics are as clear as ever. We are not “turning the corner” as Presidential Fool Trump said when he was running for a second term and lost by a landslide primality because sure incompetency handling the virus.
We are now faced with even more deaths and the vaccines could have not come sooner giving the American people hope for the first time in a year. Thus far, President Elect Joe Biden is resisting calling for the mandatory wearing of masks in public, resisting a call for mandatory shut down of the entire country and a quarantine, and is attempting to convince the public to voluntarily wear a mask in public and to get the vaccine once available.
Please, wear the damn mask. Please get the vaccine once available. Your life and the life of others depends upon it. You have no constitutional rights or civil rights if you are dead.