Restrictions on the South Texas border were meant to protect people from COVID-19. Then the handcuffs came out.

Governments along the Texas-Mexico border took a hard line to limit COVID-19’s spread. Police were key to the public health response, resulting in hundreds jailed and nearly 2,000 people ticketed.

by Vianna Davila and Ren Larson

Sunday, December 20, 2020

Twilight in the Rio Grande Valley. (Miguel Gutierrez Jr./The Texas Tribune) 

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans.

The day that Dallas salon owner Shelley Luther was arrested for reopening her business in defiance of Texas emergency stay-home orders, Robin Torres sat in a county jail 500 miles away facing the consequences of his own failure to follow such rules.

Luther became a conservative darling this spring for her provocation, spending two days in custody on contempt of court charges. Largely in response to her case, Texas Gov. Greg Abbott eventually prohibited the authorities from jailing anyone for violating the stay-home orders established to stop the spread of COVID-19.

Torres, by contrast, spent five weeks in the Hidalgo County jail after a police officer caught him smoking and drinking a Busch Light beer outside a convenience store just after 11 p.m. on April 3. Arrested on a public intoxication charge and for violation of the stay-home orders, Torres couldn’t afford to pay the $150 he owed on his bond. He wasn’t released until early May, one day after Luther emerged from her brief stint in jail as a celebrity, a notoriety she turned into a run for a Texas Senate seat. Meanwhile, cases like Torres’ have largely gone ignored.

“I thought I would only spend the weekend in jail,” said Torres, now 31, in a recent interview. “I ended up spending more than a month in jail.”

Torres was one of at least 300 people arrested for violating COVID-19 orders, often in conjunction with other charges, in the first six weeks of the pandemic in the Texas region known as the Rio Grande Valley, an investigation by ProPublica and The Texas Tribune found. Here, in a part of the state already teeming with law enforcement because of its location along the border with Mexico, officials took some of the hardest lines on enforcement of COVID-19 rules in Texas. Altogether, authorities here issued nearly 2,000 citations to individuals for violating the orders, the investigation found.

These counties were early adopters of curfews as a way to contain the virus. They banned nonessential travel, resulting in hundreds of individuals being stopped by law enforcement and ticketed. In at least some cases, officers used the emergency order as a reason to stop someone but then booked them for another, sometimes more serious, charge. Or, they tacked on a charge or citation for violating the emergency order even if it had little to do with the crime they were investigating, a decision that often increased bail and made it harder for people to get out of custody.

The enforcement of COVID-19 emergency orders in the Rio Grande Valley last spring provides a snapshot of what happens when such directives are applied frequently and, sometimes, aggressively. It raises questions about the role law enforcement should play in addressing public health and the toll this can take on communities of color.

Months later, some people cited for violations are still facing hundreds of dollars in fines.

In Hidalgo County, the largest in the Valley by population, the district attorney’s office reviewed 116 cases where people were arrested for violating the emergency management plan. Among these cases, nearly 3 in 10 people were charged only for the emergency order violation, the district attorney said.

In one April case, Hidalgo County sheriff’s deputies arrested Jorge Gonzalez Zuniga after they found him intoxicated and passed out in a trailer park. A long struggle followed, during which the deputies used a Taser to subdue Gonzalez. They booked him for violation of the emergency order, public intoxication and resisting arrest. Only after a day in custody did deputies discover that Gonzalez, an undocumented immigrant, had suffered a severe spinal injury. He died in a hospital months later. After an investigation by the Texas Department of Public Safety, a grand jury declined to indict the deputies, but Gonzalez’s family has filed a civil negligence claim against the sheriff’s office, according to a statement from Sheriff J.E. “Eddie” Guerra.

Although some of those arrested were familiar to police, the arrests also netted homeless people, undocumented immigrants, people who were potentially sick with COVID-19, and a high school student driving between his parents’ houses as part of a joint-custody agreement. The teen said he was told he owed $1,000.

A sign in Hidalgo County urges residents to stay safe during the COVID-19 pandemic. (Miguel Gutierrez Jr./The Texas Tribune)

The strong law enforcement response in the Rio Grande Valley appears to contrast sharply with other parts of the state. Although enforcement of COVID-19 orders varied significantly across Texas, its largest cities were relatively restrained in their approach, particularly in the initial months of the pandemic. In San Antonio, Texas’ second-largest city, with 1.5 million people, the Police Department issued just four coronavirus-related citations in all of April, while Pharr, a city of 80,000 in the Rio Grande Valley, issued at least 115 during the same time. Police in Austin, the state capital, issued six citations from the beginning of the pandemic until early December.

The large cities typically issued citations to businesses and business owners only after they repeatedly defied orders, if the cities gave them out at all. Some police departments gave explicit orders to officers not to arrest anyone for the emergency order charge.

Even as distribution of COVID-19 vaccines begins, cities across the country continue to battle a massive surge in virus infections, and some have adopted hard-line lockdown approaches to tamp down the new wave. El Paso began to issue more citations and imposed curfews after cases spiked there in October, though the state blocked the county’s shutdown of nonessential businesses.

Public health experts interviewed for this story raised questions about criminalizing this kind of behavior and said it could potentially be dangerous if it means people spend time in jail. At least 204 inmates in Texas jails and prisons died from COVID-19 between April 7 and Oct. 4, according to a recent study out of the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs.

Officials in the Rio Grande Valley interviewed for this story say their intentions were never punitive but were meant to combat a once-in-a-lifetime crisis. They pointed out that most of the people arrested were charged with additional, more serious crimes. One said their strict approach was largely why COVID-19 cases were relatively low in the region until Abbott started lifting restrictions on businesses in May. By August, death rates in Hidalgo County, where Torres was arrested, had surged to 88 per 100,000, more than 2½ times the rate statewide.

They also note that many of the COVID-19 violation cases were ultimately dismissed, including Torres’. He was released May 8, court records show, “in the interest of justice,” after 34 days in custody.

Despite the dismissal, Torres’ court-appointed attorney, Al Alvarez, argues that the criminal justice system was never designed to protect people from a virus.

“We want protection,” Alvarez said. “We don’t want abuses of the system.”

More Responsibility, and More Police

With nearly 1.4 million people, the four-county area that makes up the Rio Grande Valley, known colloquially as “the Valley,” rivals large cities like San Antonio and Dallas in population. But it is a uniquely bicultural place, a patchwork of small and midsize communities that lie shoulder to shoulder along the southernmost strip of the Texas-Mexico border. Spanish is often a first language.

It is a place saturated with police, a mishmash of law enforcement agencies — not just local patrol but state troopers, federal narcotics agents and immigration officers.

“In the border cities, we’re almost militarized,” said Alvarez. “We have DEA [Drug Enforcement Administration], FBI, Homeland Security, Border Patrol. We have tons of law enforcement agencies, and so everything becomes, we have all this arsenal at our discretion, and so it whips everybody up into, ‘What can we do to enforce these emergency orders?’”

The early days of the pandemic were a time of extreme uncertainty and fear in the Rio Grande Valley, because the region’s high poverty and poor health metrics put residents at particularly high risk for infection.

Even as the entire state went into lockdown, some Valley communities went further.

In late March, Hidalgo and Cameron counties, the region’s two population centers, implemented nightly curfews. One of Cameron County Judge Eddie Treviño Jr.’s orders explicitly restricted the number of people in a vehicle to two and, “when possible,” no more than one.

Treviño did not respond to a request for an interview or to questions sent to his office by ProPublica/The Texas Tribune.

Some towns initiated roadblocks and checkpoints. In early April, Cameron County Sheriff Omar Lucio set up a traffic task force to issue tickets to motorists violating the stay-home order.

Officials argue the goal of these efforts was to keep residents safe.

“Since we didn’t know how to deal with this, I took the most conservative position that I could because I knew the multiplier effect,” said Hidalgo County Judge Richard F. Cortez. “The more people that are infected, the more people that are out there that can infect others.”

Some law enforcement agencies within the counties said they were careful about how to interpret shelter-in-place orders coming from the state and their own county and municipal governments. In the initial month of the virus’ spread in Texas, orders were coming out every few weeks or even days. People could face either jail time or fines, depending on the circumstances.

The Texas government code defining violation of the emergency management plan is part of the state’s disaster act. Usually, the rule is applied in situations like hurricanes and wildfires. COVID-19 presented agencies with a totally different kind of disaster, one that meant police officers had to “blaze new trails,” said Brownsville police Cmdr. William Dietrich. The approach was to advise people, and most complied.

When it was clear a certain segment of the population would not follow the rules, “that’s when we said, ‘Hey, there’s going to have to be some kind of enforcement activity,’” Dietrich said. His department beefed up patrols during overnight curfew hours in Cameron County during the first phase of the pandemic.

Edward A. Sandoval, the first assistant district attorney in Cameron County, said that the orders were “a tool available” to officers and that applying them was at their discretion. Ultimately, those officers — many with little training on the emergency act law, and trying to protect themselves in the pandemic — were put in a position of becoming “public health police officers,” Sandoval said.

That heavy reliance on law enforcement was problematic because the approach should be a “public health” one alone, said John-Michael Torres, communications coordinator for La Unión del Pueblo Entero, a Valley-based organization that does community organizing and advocates for undocumented people. “They frame it [as], they are doing it to educate the public about the orders. In reality, the police are there to police.”

Minor Offenses, Many Arrests

Around 7:30 p.m. April 2, police from the city of Mission, in Hidalgo County, pulled over Jay Villalon, alleging that he was leaving a known drug area when he should be at home.

In the arrest report, the officer said he was assisting with the state-mandated curfew and asked Villalon, 21 at the time, if he was aware of it. Villalon eventually told the officer he had a vape pen in his pocket. The officer also found cartridges containing THC and a little more than an ounce of marijuana. He arrested Villalon for violating the emergency plan, possession of marijuana and possession of a controlled substance, a felony.

The felony charge, which is still pending, has caused Villalon stress because it’s “going to come up every time, you know, a cop searches you up or something, he wants to see your ID, he wants to run your name, and every time he runs your name he’s going to be suspicious,” he said. The emergency order violation was dismissed, according to Hidalgo County records.

Jay Villalon was pulled over in Mission, Texas, after curfew and charged with violating the emergency order, possession of marijuana and possession of a controlled substance. Prosecutors have dropped the order violation charge. (Miguel Gutierrez Jr. /The Texas-Tribune)

ProPublica and The Tribune could not definitively determine how often the emergency orders were the reason an officer made a stop, because not every law enforcement agency provided arrest narratives. However, in two cities that provided this level of detail — Brownsville and Harlingen, both in Cameron County — emergency orders were listed as the reason for roughly 1 in 10 of the arrests.

Just as officers can legally stop someone they suspect of a crime for small infractions like failing to use a turn signal, the violation of the emergency plan was yet another reason to stop someone if they had suspicions.

“We are small towns,” said Joe Reyna, another private attorney in Hidalgo County who represented a handful of people booked for the emergency order violation, charges that were later dismissed. “The small towns know the people living in the towns, and they figure, ‘If you guys are breaking curfew, I’m going to lock them up for that, and probably I’ll find cocaine on them or find marijuana on them.’ They’re using it as a pretext.”

Ricardo Rodriguez Jr., the Hidalgo County district attorney, said his office made clear to law enforcement agencies that they could not use the emergency order as “probable cause to stop a vehicle or a person.”

ProPublica and the Tribune found that in most cases in the Valley, in the communities the news organizations analyzed, people arrested for the violation, like Villalon, also faced some other kind of criminal charge. Those charges ranged in severity, from public intoxication to DWI and assault.

But that was not always the case, especially in Progreso, a city in Hidalgo County with a population of about 6,000. Officers there stopped at least 82 people for violating the emergency plan. Nearly half the stops had no secondary charge; the most common additional charges were driving without a license and public intoxication.

Socrates Shawn, then an 18-year-old high school senior, was driving from his father’s house in Progreso Lakes, a small community just south of Progreso, to his mother’s place 24 miles away in McAllen. Shawn had to spend specific days of the week with each parent as part of their divorce decree, which applied until he finished high school. So when a Progreso police officer stopped him on April 8 for violating state orders, Shawn assumed he’d get a slap on the wrist. The Hidalgo County curfew wouldn’t start for two hours.

Instead, Shawn said the officer told him he was under arrest. The officer wrote that Shawn’s offense was a “Stay at Home Violation” on the report. “There was a ton of cars driving past and I was like, ‘Why didn’t you pull them over?’” Shawn recalled. “He said, ‘Well, we’re trying to pull everyone over. You guys shouldn’t be driving.’” After about an hour and a half in a holding cell, Shawn said an officer told him he just had to pay $1,000 to be released, the maximum fine allowed for violating the order. He called his dad, who said in an interview with ProPublica and The Tribune that police told him he could pay with a money order that night.

Shawn was able to get out of jail without immediately paying the money, but he still owes the fine. Last he checked, it had gone up to $1,313 because, the city told him, he had missed a court date in June. However, Shawn said his court date was rescheduled multiple times, including after he took off work one day in June, only to learn the hearing was canceled. A collections agency recently contacted him, and he’s worried that a warrant could be issued for his arrest.

Progreso Police Chief Cesar Solis told ProPublica and the Tribune the money was a bond to ensure people showed up to pay the fines in court. He said officers had discretion whether to cite and release or detain people.

ProPublica and the Tribune interviewed two other people who, like Shawn, said they were told they would have to pay $1,000 for violating the stay-at-home order. One was picking up dinner. The second was a man heading to the grocery store with his 12-year-old son to pick up ingredients for the night’s carne dorada. In an interview, the man said an officer stopped him and assessed him $1,000 for violating the stay-home order and $160 because he doesn’t have a driver’s license.

“It was the first time,” the man said in Spanish. “I had never been warned.” He said the officer let him go because his son was in the car. Like Shawn, he said that his court dates have been canceled multiple times but that he’s received multiple calls from a collections agency.

Progreso’s municipal court was closed from April to July due to the pandemic, said city clerk Raul Garcia. The court resumed in August, at which time Garcia said he began assessing failure-to-appear charges. The online payment system shows Shawn was issued a $430 charge in August for failing to appear before the judge, but the other man was issued this charge in April, when Garcia said the court was closed.

Next door, in Cameron County, Brownsville police arrested at least 25 people only for violating the emergency management plan, including a homeless man twice within weeks.

On April 4, just before noon, the man told a police officer he was panhandling to collect enough funds to buy food. “He was asking for money and was out on the street for a nonessential purpose,” the officer wrote in the arrest report.

Then, just before 8 a.m. April 22, a different Brownsville police officer saw the man at the same intersection. He told him he had to be “wherever he sleeps at” and not approach vehicles. The man was arrested again.

Dietrich, the Brownsville police commander, said there is a large shelter in Brownsville where homeless people could have gone, “but these individuals are choosing not to be at these locations and to be out in the street.” He said the department prioritized arresting people for violent crimes and the emergency orders in this period to keep the jails less crowded.

All told, Brownsville police handed out more than 600 tickets from mid-March to the end of April, a strategy that Dietrich said was one of the only ways to get compliance.

Sandoval, with the Cameron County district attorney’s office, said he could not comment on the Brownsville arrests because he had not seen the reports. However, he said, “we don’t want … someone’s economic condition to be the basis of punishment. They shouldn’t be punished because they don’t have a home.”

Sometimes, people did flout the rules. In Weslaco, in Hidalgo County, police were called to a Walmart because a man refused to wear a mask and said his constitutional rights were being violated. A struggle ensued, and an officer used a Taser on the man.

The police in Brownsville arrested at least 25 people on stay-home violations alone, including a homeless man who was taken into custody twice in the same month. (Miguel Gutierrez Jr./The Texas Tribune)

But using coercion measures, like arrests and citations, isn’t a smart way to control the virus, said Gregg S. Gonsalves, an assistant professor at the Yale School of Public Health. “If we’re going to approach the control of COVID-19, it’s going to be in this comprehensive way, largely by incentivizing behavior change, not shaming and blaming and arresting people for it,” Gonsalves said. “Getting police involved in public health is not a good idea.”

Arresting people during the pandemic also raises major concerns because jails and prisons, particularly in Texas, have been hotbeds for the virus.

Villalon, who was arrested in Mission, was transferred to the Hidalgo County Jail, where he said he was placed in a cell with dozens of other people with no hand sanitizer, no masks for him and other prisoners and no social distancing. Three people interviewed by ProPublica and The Tribune said they were either not given masks or only given masks once they began working at the jail during their time in custody.

The Hidalgo County sheriff’s office declined to be interviewed for this story.

Fines Pile Up, and Cases Are Dismissed

Outcomes for violating COVID-19 orders varied from community to community in the Valley.

Daisy Alvarado was one of more than 340 people cited by Cameron County sheriff’s deputies for violating COVID-19 orders. She was stopped while driving home from dropping off some medications she’d picked up at Walmart for her grandfather. But Alvarado didn’t have the receipts from Walmart — she said she left them with her grandfather — so she had no proof what she was doing was essential.

“It wasn’t fair because I did it for a reason,” said Alvarado, 26, who said she rarely goes anywhere now because she had a baby girl in August. “There was a lot of other vehicles. Who knows where they were going.”

Alvarado now owes Cameron County more than $750 for the ticket, which increased due to collection fees, a Cameron County court staffer said. She said she didn’t know that until she was told by a ProPublica/Tribune reporter. She was one of nearly 200 people ticketed by the sheriff’s department for emergency order violations who owed more than $700 as of mid-November.

Between late March and the end of April, the Hidalgo County sheriff’s office issued 125 citations to people for violating emergency orders, while Cameron, immediately to the east, issued more than 2½ times as many. That patchwork of rules can be problematic, said Grant M. Scheiner, president of the Texas Criminal Defense Lawyers Association. “How is a motorist supposed to know what the rules are in a jurisdiction and what the enforcement mechanism is?”

The fines that accompany these citations are “just abominable,” said Gonsalves, the professor from Yale, especially during the greatest economic crisis since the Great Depression. “Punishing by using citations makes their economic lives even more precarious.”

The Cameron County sheriff’s office did not respond to requests for an interview.

Sandoval, the Cameron County first assistant DA, said he did not know the county court had partnered with a collections agency to send letters to people with outstanding tickets until he was informed by ProPublica and the Tribune. He was “concerned” by the letters because it might imply to someone they were guilty of a crime when they have not yet gone to court. “Our interest is the pursuit of justice, it’s not necessarily the fine,” he said.

His office ultimately dismissed all 34 cases it received in which someone was charged with violation of the emergency order. He would have preferred if every officer had filed those violations as tickets. “We don’t benefit from people being in jail,” he said. But, he noted that in 31 of the cases his prosecutors dismissed, the defendants were charged with additional crimes.

He talked about the arrests in terms of the devastation felt by Valley residents over the last year. “There’s some folks that have decided that they’re more important than the community, and they continuously make decisions that put their self-interest ahead of the whole,” Sandoval said. “That has resulted with the death of people, our friends, our family and our loved ones.”

Edward A. Sandoval, first assistant district attorney in Cameron County. (Miguel Gutierrez Jr./The Texas Tribune)

Hidalgo County prosecutors dismissed 22 of the 34 cases in which a defendant was charged only with the emergency order violation. Nine are still pending disposition. Three people pleaded guilty to the charge. Rodriguez, that county’s district attorney, said he didn’t know why the individual prosecutors dismissed the cases but said he felt all had been handled appropriately based on the orders in the county.

Available records indicate arrests for violation of the orders seemed to stop by late April in the Valley. COVID-19 continued, ravaging the region over the summer. Now it is spiking again. To date, Hidalgo County alone has reported 1,889 deaths from the virus, the second-highest total in the state, while Cameron County was seventh. In the last week, Cortez, the Hidalgo County judge, announced he had tested positive for the virus. Last month, the county sheriff had it.

Alvarez, Torres’ attorney, recently mourned a fellow attorney who died from COVID-19 at the age of 45. He knows many people in the criminal justice system who’ve lost loved ones to the disease. Torres said he tested positive for the virus this summer while waiting to begin treatment for cancer.

The virus’ toll hasn’t changed Alvarez’s opinion that rules like the emergency orders need to be applied cautiously. Everyone is affected, he said, “and the defendants are the ones who are more impacted because they are the ones that are in the risk of losing their liberty.”

“You don’t have to use the full force of the law, the hammer of the law, just to enforce something that’s a health issue,” he said.


This article published by ProPublica on December 19, 2020, here

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