Upstate sheriffs and police officials who don’t enforce new 10-person limits on Thanksgiving gatherings are violating their oaths and shouldn’t hold the job, Gov. Andrew M. Cuomo said in a Wednesday afternoon press briefing in Albany.
Cuomo was responding to declarations made this week by a handful of mostly Capital Region law enforcement officials who said they won’t enforce Cuomo’s executive order limiting the size of gatherings for the upcoming Thanksgiving and Christmas holidays. The order is part of Cuomo’s intensifying effort to control the second wave of COVID-19, which is surging nationwide and around the world.
One local sheriff, Fulton County’s Richard Giardino, has made the circuit on national news shows this week to discuss his concerns about Cuomo’s order.
But when pressed on Wednesday night, after Cuomo suggested Giardino and other defiant law enforcement officials would be violating their oaths and failing to do their jobs, Giardino seemed to backpedal when questioned by The Daily Gazette.
“I said we’re not going to go door to door to enforce it, but I didn’t say anything about complaints about it,” said Giardino, a former district attorney and judge. Giardino, a Republican, made appearances this week on Fox News programs including ‘Fox & Friends’ and ‘Tucker Carlson Tonight,’ and was scheduled to also appear on ABC’s ‘Good Morning America.’
Giardino made headlines earlier this week after taking to Facebook to question Cuomo’s executive order.
In Cuomo’s press conference Wednesday in Albany, one of his first in-person COVID briefings since earlier this summer, Cuomo emphasized the need for local law enforcement to enforce his executive order with just a week left before Thanksgiving.
“Is it hard to police? Yes, but if you see it, stop it, that’s really the point of the law, ” Cuomo said, aiming his comments at local law enforcement around the state.
Cuomo went further, stating a law enforcement officer who refuses to enforce the ban on 10-person gatherings would be in violation of their oath of office, a potential pretext for removal from office, a power the state constitution grants the governor over elected county sheriffs.
“Don’t invade privacy, don’t do any of that, but if you see it, stop it, which is different … than saying ‘I just refuse to enforce that law because I don’t agree with it’,” Cuomo said. “That, I believe, violates that person’s constitutional oath. I don’t think that person is a law enforcement officer. I don’t think that person should be certified to be a law enforcement officer.”
Giardino said he believes the executive order is unconstitutional and that he thinks he would be in violation of his oath of office to enforce it, but stepped back from saying his deputies would not respond to complaints made about greater than 10-person gatherings.
If someone in Fulton County calls his sheriff’s office to complain about a greater than 10-person gathering on Thanksgiving Giardino said he isn’t certain what will happen.
“I can’t answer that, I don’t know how many other calls we’ve got going on, if we’ve got a serious personal injury accident,” he said. “It’s not going to be a priority with our manning. I’m not giving you an answer.”
In neighboring Montgomery County, Sheriff Jeff Smith said his deputies will respond and investigate complaints of greater than 10-person gatherings if deputies are available.
“If we have personnel, it will be just like the complaints we’re getting now, the [New York State on] PAUSE complaints,” Smith said. “We’ve been getting those complaints since March, and it will be ‘a person is in a store without a mask’ or ‘this store isn’t making people wear masks when they come in’ or ‘this store has employees with masks under their noses’, so not every time do we send a deputy, because sometimes the PAUSE complaints come in after the fact.”
Smith described a scenario that could result in a Montgomery County sheriff’s deputy being dispatched to a potential violator of Cuomo’s 10-person or less order.
“If we receive a complaint, be it a noise complaint, a disturbance, an illegal parking situation, and deputies are there and there are more than 10 people while they’re investigating it — they’re certainly going to educate the people there and tell them what needs to be done, and that the volume of people needs to be cut down,” Smith said.
Giardino said he does not believe the 10-person restriction is enforceable, and he believes it constitutes “overreach,” although he acknowledges there does not appear to be any punishment in terms of fines or jail time for violation of the order. He said the Nazis, being prosecuted for the genocide of Jews during World War II and other war crimes, at the Nuremberg trials often defended their actions by saying “they were just following orders,” and he doesn’t want to do that.
Giardino said he has received phone calls since his public stance against Cuomo’s order, stating he will be responsible if COVID-19 cases spike in Fulton County and people die as a result.
“I’ve had people, because of the media that’s picked up on this last week, on one extreme I had a woman leave a message saying she hoped I ‘caught COVID and died’ because the blood of other people will be on my hands,” he said. “On the other extreme, I’ve had people say ‘I’m glad somebody is finally standing up to government overreach.'”
Giardino said he wants the sheriffs in New York state to meet in a room with Cuomo, without press coverage, and determine how to protect public safety without violating his view of constitutional limits on law enforcement.
“Everyone agrees COVID-19 is dangerous,” he said. “The governor and I went to Albany Law School, he was two years ahead of me. We both studied the U.S. constitution and the New York state constitution, and they haven’t changed much since then. What I say is there’s a difference between executive orders aimed at businesses, restaurants, bars, gyms and an executive order aimed at people in their own homes. An executive order aimed at a business can be enforced by an administrative agency of the executive branch, like the state Liquor Authority or the state Health Department.”
Giardino said he’s referred dozens of complaints against businesses in his county to state agencies since March because he agrees those state agencies have the authority to suspend business licenses for violation of the COVID-19 mandates, but he questions whether local law enforcement has the authority to ask people to break up a social gathering of more than 10 people at a private residence.
His position has gained some traction among other law enforcement agencies in upstate, including sheriffs in Montgomery, Saratoga and Rensselaer counties. The Glenville Police Department tweeted Wednesday that it would not enforce the governor’s order either. The head’s of each of these law enforcement agencies is Republican.
Cuomo on Saturday tweeted about a well-publicized case of a 55-person wedding in Maine in August that did not adhere to social distancing guidelines and resulted in a COVID-19 outbreak. Cuomo said testing and tracing of positive cases showed one positive case at the wedding resulted in the virus spreading to 176 people, seven of whom died. None of the seven attended the wedding.
On Wednesday, 18 people tested positive for COVID-19 in Montgomery County and five people tested positive in Fulton County. Both counties continue to have a lower positive testing rate than New York state, but county officials Wednesday acknowledged that positive cases are increasing at an alarming rate.