United States v. Puerto Rico

456 F.Supp.3d 347

UNITED STATES of America, Plaintiff

v.Commonwealth of PUERTO RICO, et al., Defendants.

Civil No. 12-2039 (GAG)

United States District Court, D. Puerto Rico.

Signed April 27, 2020

Jorge M. Castillo, U.S. Department of Justice Civil Rights Division—Special Litigation Section, Washington, DC, Luis E. Saucedo, US Department of Justice, Los Angeles, CA, for Plaintiff.

Alejandro J. Cepeda-Diaz, Arturo J. Garcia-Sola, Sonia M. Lopez-Del Valle, McConnell Valdes, LLC, Lizzie M. Portela-Fernandez, Lizzie Portela Law Office, San Juan, PR, Gerardo A. De-Jesus-Annoni, Ceiba, PR, Maria Dominguez-Victoriano, Javier Micheo-Marcial, Dmra Law LLC, Guaynabo, PR, Beatriz Annexy-Guevara, Vidama Professional Services LLC, Longwood, FL, for Defendant Commonwealth of Puerto Rico.

Alejandro J. Cepeda-Diaz, Arturo J. Garcia-Sola, Sonia M. Lopez-Del Valle, McConnell Valdes, LLC, Lizzie M. Portela-Fernandez, Lizzie Portela Law Office, San Juan, PR, Gerardo A. De-Jesus-Annoni, Ceiba, PR, Maria Dominguez-Victoriano, Javier Micheo-Marcial, Dmra Law LLC, Guaynabo, PR, for Defendant Puerto Rico Police Department.

ORDER AMENDING ORDER AT Docket No. 1443 re: USE OF NATIONAL GUARD IN SUPPORT OF PRPB

Gustavo A. Gelpi, US District Judge

In its April 3, 2020 Order (Docket No. 1443) the Court addressed the deployment of the National Guard during the COVID-19 pandemic. Therein, the Court stated that any use of the National Guard to support the Commonwealth Police must be consistent with the Reform Agreement ("in order to comply with the Reform Agreement any non-PRPB personnel assigned to work along or in lieu of PRPB personnel must at all times adhere to all conditions established in the Agreement").

By way of the present Order, the Court will, for the benefit of the Commonwealth, United States Department of Justice, Monitor and public in general, define what "consistent with the Reform Agreement" entails. This, the Court finds imperative so that the constitutional rights of the public are clearly defined vis a vis the Commonwealth's police power, now rather than after the fact.

The Bill of Rights to the Constitution, as well as its Commonwealth counterpart, guarantees all the citizenry of Puerto Rico sacrosanct fundamental protections against government action. Relevant here are those protections that are invoked in light of the State's police power. At the forefront is the Fourth Amendment's rightly the People not to be subjected to unreasonable searches and seizures.

The Police Reform Agreement entered into by the United States Department of Justice, and approved by the Court in 2013, guarantees those very same constitutional protections. The Agreement commits the Commonwealth to constitutional policing under a court-enforced federal mandate. The same, for example, requires that Commonwealth police officers be adequately trained; that arrests and other police interventions be conducted within Fourth Amendment parameters; and, that any use of force follow a sequential model, ranging from verbal command to actual to levels of engagement. More so, police officers must be held accountable for their unconstitutional conduct. The undersigned District Judge has supervised the implementation of the Reform now for seven years. A four-year capacity building phase concluded last year, and now the Reform finds itself in the monitoring phase as per the Agreement.

The crucial question now comes up. Can the National Guard under the Reform Agreement be employed to assist and support the Commonwealth Police? The answer is Yes and No. The Court will explain in detail.

YES, the National guard can provide support in areas as it traditionally has in moments of crisis, and has ably done during the Covid-19 pandemic. For example, transporting supplies, testing arriving passengers at the airport, and reminding the public of the Governor's executive orders. There are many other such type missions the Guard can partake to support the Police.

NO, however, as to the National Guard performing traditional police law enforcement functions such as those guaranteed by the Reform Agreement. The logic is simple and straightforward. Police officers are trained to serve and protect the citizenry, as well as interact with the criminal element, at all times observing federal and state constitutional precepts. Military officers, on the other hand, are trained to protect national security. These roles are quite distinct both in training and deployment.¹

The undersigned's professional interaction with the Commonwealth police for nearly three decades - this last one devoted principally to the Reform - convinces me that National Guard officers cannot be trained overnight to engage in traditional law enforcement. This assessment is supported by my many visits over the years to the...