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Mayor Curry: Middletown police can't enforce Gov. Wolf's business closure order without my approval

Mayor James H. Curry III makes an announcement about enforcing Gov. Tom Wolf's order on non-life-sustaining businesses during the May 19 borough council meeting.
Mayor James H. Curry III makes an announcement about enforcing Gov. Tom Wolf's order on non-life-sustaining businesses during the May 19 borough council meeting.
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Middletown police won’t enforce Gov. Tom Wolf’s shutdown of non-life-sustaining businesses in the borough unless Mayor James H. Curry III approves it, the mayor said Tuesday.

Curry did not respond to a request for comment from the Press & Journal on whether he is giving businesses in Middletown the green light to open in defiance of Wolf’s order.

RELATED STORY: Gov. Wolf responds to Mayor Curry's decision on police enforcement of business closures: 'Maybe there’s a political benefit'

Curry made his statement during the May 19 council meeting. He said he issued an order to interim Police Chief Sgt. Dennis Morris requiring that police “advise me and get my approval in advance of taking any enforcement action against a business owner for violating Gov. Wolf’s current order,” and that police are required to talk to him before communicating with the Dauphin County district attorney’s office about enforcement.

Some local and state officials have criticized Wolf for acting too slowly to reopen businesses and thereby putting their financial futures at risk.

Many Middletown residents and business owners on Facebook cheered Curry’s order. Dauphin County remains in the red phase of Wolf’s reopening plan for the state in response to the coronavirus, the most restrictive of the three phases.

RELATED STORY: Middletown Borough Council votes to return to meeting in person, with 'normalcy' in mind

As of Friday, May 22, 49 of the 67 counties will be in the yellow phase, which lifts some restrictions aimed at preventing the spread of the coronavirus. However, Dauphin is not one of the 49.

“Reasonableness dictates that there must be some balance between safety and the vital needs of the citizenry,” Curry said. 

Other municipalities

The mayor added that in rendering his orders to police, “I am joined by state and local leaders in Cumberland, Dauphin, Lebanon and Perry counties who to varying degrees have stood by their constituents in their quest to open businesses and their communities. The district attorney of Lebanon County and the sheriffs of Cumberland and Perry counties have announced they will not prosecute or enforce the governor’s order.”

The mayor cited his authority for issuing the order lying in section 1123.1 of the Pennsylvania Borough Code, which Curry said “vests me with ‘full charge and control of the chief of police and the police force.’ I am empowered to ‘direct the time during which, the place where, and the manner in which the chief of police and the police force perform the duties of their rank.’”

Curry also said that as mayor he took an oath to support, obey and defend the Constitution of the United States and the constitution of Pennsylvania.

He referred to Article 1 of the Pennsylvania Constitution which “guarantees Pennsylvania citizens are ‘born equally free and independent and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty of acquiring, possessing and protecting property and reputation and of pursuing their own happiness.’”

Reaction

Curry posted his statement in its entirety on his Facebook page shortly after the council meeting ended Tuesday night.

It didn’t take long for reaction to start pouring in, with nearly all the comments from people posting on Curry’s Facebook page being overwhelmingly supportive.

“So proud to have a business in a place that has leadership like this,” posted Bridget Grant, who owns  InkCredible Tattoo Factory 2 on South Union Street in Middletown, which has been shut down as a result of Wolf’s order since March 17, along with two other tattoo parlors Grant owns in Elizabethtown and in Lancaster. “This is what we need right now! I will stand behind you 100 percent right now we are being held hostage. We have rights and you are enforcing them. Thank you!”

Not all were in full agreement. One person who posted said it won’t be Middletown police but State Police enforcing Wolf’s order and that the mayor “should also tell your business owners the consequences that they may face with insurance liabilities and the possibility of certain licenses being pulled. Which is something that you have no control over.” 

Wolf has said that local police departments and the State Police would enforce the order, although Wolf has said that he thinks criminal citations for violations are unlikely. The State Police's website says that orders can be enforced by local law enforcement as well as State Police.

For the State Police’s Troop H coverage area, of which Dauphin County is a part, there have been 46 warnings since March 23 and only 1 citation. Troop H covers Dauphin, Cumberland, Perry, Franklin and Adams counties. State Police figures did not break down by county where the warnings were issued.

Another person who posted said Curry’s defiance of the governor’s order is “putting all of us at risk” and that Curry “does not deserve to be in that position.” 

The woman’s post led to posts from others who defended the mayor's action.

District attorney's stance

Another person asked if Chardo’s office will be “enforcing” Wolf’s order against business owners.

Chardo on May 9 said that prosecutions for violations of Wolf’s orders related to COVID-19 would occur only in extraordinary circumstances. 

“Using criminal sanctions would not be helpful,” Chardo said. “The criminal law is a blunt instrument and is not ordinarily used for enforcement of a governor’s decree.”

At Chardo’s request, county President Judge John F. Cherry has ordered all prosecutions for alleged violations of the governor’s orders occurring in Dauphin County be consolidated before a single magisterial district judge, being District Judge William C. Wenner.

Chardo on Wednesday said his office to date has not had any prosecutions for violations of the governor’s order. 

Chardo on May 9 also acknowledged that state agencies could take non-criminal action against businesses that open in defiance of the order. These could relate to professional licensing or a civil suit seeking injunctive relief. The DA said his actions address only the criminal aspect of the matter.

Wolf has said that the U.S. Supreme Court and the Pennsylvania Supreme Court have ruled that under the state constitution, he has the power to close businesses during the pandemic. He has said businesses that defy the order and open risk losing their health department certificates, liquor licenses, certificates of occupancy and insurance coverage.

Chardo on Wednesday declined comment when asked about Curry’s statement. The DA said there is no change in his position as reflected in his statements from May 9.

Curry says order no longer needed

“While the virus has successfully devastated us, we have responded in kind. The curve of COVID-19 has flattened,” Curry said in his statement. “We have devastated its spread. As of May 10, 2020 there were only 652 positive cases of COVID-19 in Dauphin County which has a population of roughly 280,000 people, in other words, a rate of approximately 0.2 percent.”

“The surge of our hospitals and the health care system at large has been avoided. For example UPMC announced it had more than enough bed capacity and has allowed patients to proceed with elective procedures and surgeries. Similarly, (the Penn State Health Milton S Hershey) medical center has confirmed it was able to care for COVID-19 patients without being overwhelmed.”

“The goals of Gov. Wolf’s initial mid-March stay at home order have been achieved,” Curry continued in his statement. “Despite that fact the governor’s continued severe restrictions on our businesses and personal lives has been extended until June 4, 2020, a date I personally find politically convenient as it is merely two days after the June 2 primary election for which Gov. Wolf has pushed mail-in voting. Elected officials and law enforcement personnel have questioned the legality and wisdom of Gov. Wolf’s continued restrictions.”

Wolf and Pennsylvania Secretary of State Kathy Boockvar have pushed for state residents to vote by mail-in ballot in the primary. As of early this month, nearly 1 million residents had applied for the ballots.

However, polls will be open June 2 across the state.

Dauphin County secured personal protective equipment kits available for all Election Day workers, including disinfectant antibacterial wipes, sanitary protective gloves, surgical masks, hand sanitizer and microfiber cloths.

The county also has hand sanitizer, isopropyl alcohol screen wipes and sanitary headset covers for voters. Each polling place will follow Centers for Disease Control and Prevention guidelines for disinfecting surfaces and the voting systems, officials said earlier this month.

Although pens will be provided and regularly disinfected, as recommended by the CDC, voters are encouraged to bring their own ball point pens with black or blue ink if they are concerned about safety.