Slip Slidin’ Away

Tuesday, June 2, 2020

It seems important to write this down—this barely noticed, largely unquestioned power grab that occurred in our city Sunday evening.

As local activist and state house candidate Ben Marcus says:

“Totalitarianism rarely shows up overnight. It’s a slow drip that eventually drills a hole through basic human rights like speech and movement. We cannot allow unjustified executive power grabs go by lest we make it the norm.”

            So, we need to document the drips. We need to especially document those “drips” for which people end up getting arrested.

On Sunday, May 31, 2020, at 5:54 pm, Jacksonville Mayor Lenny Curry tweeted news of his decision, in consultation with Sheriff Mike Williams, to implement a citywide curfew beginning at 8 pm, to end at 6 am Monday morning. Mayor Curry tweeted:

“Due to criminal activity that threatens first responders, other people, and private property, Sheriff Williams @jsosheriff and I have decided to implement a citywide curfew. Effective 8pm today until 6 am tomorrow, I am putting a curfew in place for the City of Jacksonville.”

            “Let me say this plainly,” the mayor went on to tweet in the same series, “if you are in our streets after 8 pm you are subject to arrest by law enforcement.”

Whether or not our city needed a curfew isn’t the issue. Imposing one might have been a good decision. I appreciate the complex calculus public safety officials perform in order to make decisions about protecting our people.

But do our city ordinances permit our mayor to restrict, via Twitter, with two hours’ notice, by virtue of one telephone call, the movements of 958,000 people?

Do a phone call and a tweet enable him to have people arrested for violating his decree?

Ben Marcus didn’t think so. And I’m with Ben.

***

Chapter 674 in our local ordinance code confers power to the mayor to declare a civil emergency. He is obliged by 674.306, however, to convene the city council in a special meeting when he invokes those powers. Subsection 674.306 reads as follows:

Concurrently with the declaration of the state of civil emergency, the Mayor shall convene the Council in special meeting, at which he shall report to the Council all the facts and circumstances known to him concerning the civil emergency and his recommendations in connection therewith.

Concurrently.

Google defines the word as meaning, “at the same time,” or “simultaneously.”

“Convene,” in turn, means to “bring together for a meeting or activity,” according to Google.

What “convene” does not mean, in this non-lawyer’s opinion—particularly in conjunction with the word “concurrently”—is “put a meeting on the calendar.”

The rest of the section lays out the mayor’s obligation to state his reasons to the council for the civil emergency and to make his recommendations. The city council’s power to override the mayor’s decision is described in the chapter, as well.

Arguably, the requirements of 674.306 were put there to ensure a legislative check on local executive power. But it does not appear the mayor bothered with fulfilling those duties.

“Sheriff Williams and I have decided,” he tweeted.

I saw no official declaration of civil emergency, nor any special meeting convened concurrently with said (unmade) declaration.

When I reached out to city council representatives this morning to express my alarm about this potential abuse of power, I was told there would be a Zoom meeting on the issue today. I asked whether a meeting had been convened on Sunday, online or otherwise. None of them answered the question.

It stretches the imagination, even for the very imaginative attorneys in the Office of General Counsel, to read “concurrently” as “two days later.”

Since people were arrested for violating the curfew, its legality is bound to become a litigable point.

Because the arguably illegal curfew order involved the official power of the state, I’ll leave it to the lawyers to determine if those arrests constitute grounds for civil rights lawsuits. At the very least, given the two-hour window, there’s the problem of fair warning, which, as even non-lawyers like me know, is inherent to due process of law.

Lest there be any confusion, the curfew is easily distinguishable from the declarations regarding business shutdowns this past March. We knew those were coming ahead of time, and there were no criminal penalties. No one got arrested, to my knowledge, for going to work during the shutdown.

***

Our nation has survived tumultuous times, and I believe we will get through the current uprising. The protesters are on the side of the angels, after all. They want more police accountability and transparency.

Most of all, they want what any person of conscience in America wants—to heal racism. Racism is the default-cultural setting in our nation, a legacy in part, of slavery, which Toni Morrison named, “America’s original sin.”

As scripture will confirm, our country’s sin is now being visited upon our children, slaughtering them: Ahmaud Arbery in Glynn County, Georgia; Trayvon Martin in Sanford, Florida; and Jordan Davis here in our own city. The list is unconscionably long, but these are our kids.

***

Council Member Brenda Priestly Jackson said it best on Melissa Ross’s show this morning: “There’s a fine line between authoritarianism and protection.”

He might not be wrapped in a flag and waving a cross, as the quote about American fascism goes, but President Trump is crowing about law and order. He’s threatening to deploy the military into our hometowns. He’s rolled back liability protections for social media platforms. And he’s using flash bombs to clear crowds so he can pose in front of local churches, Bible on full display.

Drip, drip, drip.

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