As the number of COVID-19 positive continues to spike locally, statewide and nationally, a steep ideological divide persists among elected leaders and the court system over how far the government should be able to go in restricting individual liberty to slow the spread of the virus.
New York state — having endured at least 26,632 deaths attributed to COVID-19, the most of any state — has been at the forefront of the debate over government power, with Gov. Andrew Cuomo’s coronavirus mandates coming under increasing criticism and scrutiny from conservative politicians and judges.
On Wednesday when the U.S. Supreme Court ruled 5-4 to bar New York state from enforcing limits on attendance at houses of worship — with new Justice Amy Coney Barrett effectively reversing a 5-4 court ruling from earlier this year when Justice Ruth Bader Ginsburg was alive — the ruling bolstered critics of Cuomo’s coronavirus executive orders, including Fulton County Sheriff Richard Giardino.
“That pesky constitution keeps rearing its ugly head,” Giardino wrote in a social media post about the court ruling Thursday, a post which attracted 79 likes, 14 shares and 18 comments, all positive.
Giardino, a lawyer among sheriffs, previously served as district attorney and as county Supreme Court judge for Republican-dominated Fulton County. His public stance against Gov. Cuomo’s 10-person or fewer limit on private residential gatherings has gained him national media attention and made him a recurring guest on a number of Fox News talk shows, as well as appearances on Glen Beck’s radio program Good Morning America, CNN and Yahoo News.
Not everyone has appreciated the spotlight and the potential impact Giardino’s statements may have on the spread of the coronavirus.
“I’ve got nasty threats saying ‘I hope you die of COVID, you’re going to have blood on your hands.’ I think those people were thinking I was saying ‘to hell with the 10-person rule’ do what you want,” Giardino said. “All I was doing was talking about the Constitution, and you still have to apply the Constitution during COVID. I think that’s what the Supreme Court said. I think the Supreme Court, when they were talking about the First Amendment, they were saying the same thing. We still have to use the framework of the Constitution.”
Gary Locatelli, former president of the Johnstown Senior Center, and a retired Capital Region media personality, known for his characters “Uncle Vito” on PYX106 and “Ranger Danger” on WXXA FOX 23, issued a public criticism of Giardino on radio station WENT’s “Talk of the Town” on Saturday.
“You know, he’s not helping people’s lives, I don’t think, with the way he’s handled this, and I think he’s just done it to get the media attention,” Locatelli said.
Locatelli has been an advocate for seniors and people with preexisting conditions in Fulton County who face a higher risk of death from COVID-19. He said he fears Giardino’s rhetoric has put people’s lives at risk.
“He gets all of these people on Facebook from Fulton County all riled up and ‘oh my God, Cuomo’s the king, Cuomo’s the emperor, he’s not going to tell us what to do, thank you Richard! You should run for governor!'” Locatelli said. “And he’s on Fox News and he’s on WGY Radio, and [newspapers] are writing articles about him, and he’s getting all of this media attention … I see him doing what he does, inciting this, and to me he incited people and got them all stirred up to do things.”
One of the things Giardino’s statements has stirred is support among some for him to run for governor, an office he says he doesn’t seek. A few hours after Locatelli’s comments Saturday, Clear Image New York print shop located in Northville, at 12:48 p.m., posted for the first time images of a limited edition clothing line promoting Giardino for governor in 2022.
“If you stand with our Fulton County Sheriff Richard Giardino then here is some gear you will not want to miss out on,” wrote the company on its Facebook page. “If you think Rich should run for NYS Governor then TELL HIM!”
Clear Images’ “I Stand with Sheriff Giardino” merchandise, includes shirts that trumpet, “Sheriff Giardino for NYS Governor 2022.” The apparel echoes frequent social media comments made about Giardino’s posts criticizing Cuomo’s coronavirus orders and other issues related to the pandemic.
Giardino in an interview Sunday said he did not plan to run for governor and that his challenge to the governor’s executive order was not a personal or political move against the governor.
He said he didn’t want to focus his efforts as challenging the governor but that he couldn’t tell the company not to print the message they wanted, especially after arguing the governor’s executive order violated the Constitution, which also protects free speech.
“It’s very flattering, but I honestly have no interest in running for governor,” Giardino said Sunday. “I enjoy being a sheriff… I can talk out on things I couldn’t as governor. Me becoming governor probably has as much a chance as me being Judge Judy’s replacement, slim to none.”
Giardino said he doesn’t seek the attention he’s gained for views, although he frequently posts about his upcoming interviews on his Facebook page, including on Saturday when he told people to tune into his latest appearance on Fox News where he was invited to participate in a panel discussion about “defunding the police.”
“If you feel this info is overload, please unfriend me,” Giardino wrote when announcing his interview schedule last week.
Locatelli said he thinks the publicity generated by Giardino’s media blitz endangers vulnerable people who live in Fulton County.
“Here’s the other alternative he could have done, he could have kept quiet,” Locatelli said. “Why did he need to come out with a statement at all, saying ‘I’m not going to enforce it?’ Why did he do that? Just be quiet. The thing came down from the governor. If you’re not going to enforce it, or you feel you can’t enforce it, and you really don’t want to tell people what to do, just be quiet and do your job.”
Giardino said he knows some people will hold him responsible for increasing COVID-19 infections, but he said he didn’t consider the political ramifications of his public stance.
“I didn’t make a political evaluation about it, I made a constitutional evaluation of it,” he said. “I didn’t call CNN. I didn’t call Yahoo News. They called me and said ‘hey can you explain your position.’ “
Giardino said his opposition to the 10-person-limit rule is rooted in his view that the executive order violates the Fourth Amendment’s protections against unreasonable searches and seizures and would, in his view, be a violation of his oath of office to enforce it.
“The basis of my feelings on it, with the Fourth Amendment, has been, how do you enforce it? How do you get into a home?” he said.
Giardino said he thinks people should follow the 10-person-or-fewer limit for residential gatherings as best they can, using their own judgment of the risks to themselves and their family, but he doesn’t view executive orders from Cuomo as having the same force of law with respect to private residences as they do with businesses that are licensed by the state.
The New York State Sheriff’s Association on Wednesday issued a statement echoing many of Giardino’s arguments.
“Since the first COVID-19 orders issued by the New York State Health Department, sheriffs across the state have been responding to thousands of complaints of violations of those orders,” reads the statement. “They have been doing what they can, within the law and the Constitution, to address those complaints. The criminal laws have very limited applicability with respect to those complaints, and in most cases use of the criminal laws would be unwise.”
But not every sheriff in New York state has taken the same stance as Giardino.
In Montgomery County, during the county’s Nov. 23 COVID-19 briefing, Sheriff Jeff Smith, a Republican, said his department will respond to complaints about larger than 10-person gatherings as staffing permits.
“It puts us in an extremely difficult position,” Smith said. “We will continue to respond to these complaints, as we have throughout COVID-19, but don’t back us into a corner where something has to be done because of a noise complaint or some sort of other issue which forces us to show up where there is a large gathering of people. We don’t want to be in that situation. We don’t want people to get sick, and we want to respect our healthcare workers and the beds that we have left.”
Albany County Sheriff Craig Apple, a Democrat, told the New York Times for a Nov. 17 article that his sheriff’s deputies would enforce the order, if complaints are called in, but added that he doesn’t have enough deputies to strictly or effectively enforce the rule.
“I’m actually kind of hopeful that most people will just do the right thing and keep the gatherings below 10,” said Apple.
Locatelli said he wishes Giardino had acted like Smith or Apple.
“A short simple statement to that effect, like Sheriff Apple made, would have done a lot better for our people in this county, and maybe we wouldn’t have been seeing these 22 [positive case spikes last week] and however many spikes we’re going to see in the future because of what we’ve seen on Thanksgiving,” he said.
Enforcement of complaints
Giardino’s position on whether or not his sheriff’s department would enforce the 10-person-rule was unclear before Thanksgiving. In an interview with the Daily Gazette on Nov. 18, he would not say what would happen if he received complaints about violations of the rule.
“I’m not giving you an answer,” he said.
But now Giardino said he thinks he probably would not send a deputy to investigate complaints of home gatherings exceeding the limit.
“I probably would not send a deputy; again I think it’s unconstitutional, maybe I would have dispatch call and say ‘if you’re going to be gathering that many people you need to use precautions,’ ” he said.
Giardino said on Thanksgiving that Fulton County’s local dispatch system received no complaints about the 10-person limit, but he did receive a complaint from a hotline system set up by New York state for complaints about violations of Cuomo’s coronavirus mandates.
“I had one complaint on Thanksgiving morning that said ‘my neighbors on such and such a street, usually have 25 to 50 people every Thanksgiving. I see some cars there now, and there may be more than 10 people now’ — Well, how vague is that?” Giardino said. “So, I sent an email back to the state and I said ‘Can you give us the name of the complainant, the phone number, so we can gather more information’ and the state never got back to us.”
New York state has set up several hotlines for making complaints about the coronavirus mandates. The New York State Department of Health has a hotline at 1-833-789-0470 and an online form for complaints is available at mylicense.custhelp.com/app/ask and at ny.gov/content/report-suspected-workplace-violations. Both online complaint forms state that individuals can choose to make the complaints anonymously.
Cuomo has said local law enforcement should enforce the 10-person-limit without violating privacy rights, but should move to break up larger than 10-people-gatherings when they encounter them. He also accused law enforcement officers who pick and choose which laws they believe are constitutional of being ‘dictators,’ and potentially in violation of their oaths of office.
“The rules are only as good as the enforcement. Local governments are in charge of enforcement,” Cuomo said earlier this month. “There are only two fundamental truths in this situation: it’s individual discipline and it’s government enforcement. Period. End of sentence. I need the local governments to enforce this.”
The governor’s 10-person-limit, although sometimes mislabeled as a “Thanksgiving Day” rule, was put into effect on Nov. 13, along with rules requiring bars, restaurants and gyms to close by 10 p.m. Cuomo said the rule was aimed at the rising spike in cases attributed to indoor gatherings around Halloween. Cuomo’s Executive order 202.74 extends the restrictions through at least Dec. 12.
Giardino said he doubts there will ever be a Supreme Court case over the 10-person-limit for gatherings.
“I don’t think anyone is going to challenge it,” Giardino said. “I think the governor was pretty clear on Tuesday when he stated that it really wasn’t intended to suggest the police go door-to-door to tell people [to limit numbers] — it was really just a strong recommendation, which is interesting because why did we publicly argue about it for a week and a half? I think he’s modified his position, so it’s more clearly stated what it really is, a strong recommendation.”
Giardino said his office has referred “dozens” of local complaints of local businesses in Fulton County violating coronavirus rules to the appropriate state agencies. He also said his office also receives numerous complaints from the COVID-19 hotlines in Albany. He explained how he handles some of them.
“So, if I get a complaint in [the cities of Johnstown or Gloversville] I forward it to the city police; if I get a complaint in the county or the town, I send it to the state police,” he said.
Giardino said he thinks Cuomo’s approach to tapping local law enforcement to enforce his coronavirus mandates is inconsistent with the governor’s recent “New Guidance for Police Reform” which argues against using law enforcement for noncriminal or minor matters. He said Cuomo also hasn’t tasked the New York state Police, which has co-jurisdiction with the county sheriffs, with enforcing the 10-person gathering rule. He said he knows Cuomo and others will blame him for spiking COVID-19 numbers, but he believes cases are going to spike no matter what.
“I’m 100 percent confident that when the spike happens, that Dr. Fauci has been talking about, which has already started, that the governor is going to try to blame myself and other sheriffs who said we can’t enforce an unconstitutional law and we don’t have the manpower, but that’s good,” Giardino said. “Look, we have an obligation to work together on this. Remember when George Bush stood up on a ship and said “Mission Accomplished”? Well, Gov. Cuomo did a poster that showed the [infection] curve flattening out, and beating COVID and wrote a book about it, but all the while he’s writing that book Dr. Fauci was saying we were going to have this spike in the fall and the winter.”
Giardino said he wants to broker a meeting between himself, other sheriffs, the New York state Department of Health and Cuomo to come to a consensus on how to promote coronavirus safety in a manner consistent with Giardino’s view of the constitutional limits on government power.
Giardino would not say whether he feels he has any moral responsibility to do more to slow the spread of the coronavirus locally. He said the same question could be asked of many people.
“Will I feel morally responsible?” he said. “Will the Supreme Court feel morally responsible for the people who get sick and die from going to church? Or will the governor feel responsible for COVID patients his [executive orders] placed in nursing homes? If it’s for me, it’s for them. I feel people have the capacity to make their own decisions about things that could kill them.”