Appeals court rules Alachua County mask mandate is “presumptively unconstitutional”

BY JENNIFER CABRERA

Governmental mask mandates in the 32 counties in the First District of Florida must now be presumed to be unconstitutional after yesterday’s ruling by the First District Court of Appeals (1st DCA) on a lawsuit brought by business owner Justin Green against Alachua County.

The lawsuit was originally filed on May 8, 2020, only days after Robert “Hutch” Hutchinson, then-Chair of the Alachua County Commission, instituted a county-wide mask mandate. Eighth Judicial Circuit Judge Donna Keim denied a request for an emergency injunction on May 21, and Jeff Childers, Green’s attorney, appealed to the 1st DCA. 

Oral arguments in the case were presented on November 23, 2020, and Childers has been waiting since then for a ruling. On May 21, 2021, after Alachua County’s mask mandate expired, Childers assumed the lawsuit was moot and filed a “Suggestion of Mootness” with the 1st DCA.

So Childers was surprised to learn early yesterday afternoon that an opinion had been issued in the case, and he was even more surprised that it “was everything I could ever have asked for in my wildest dreams… You might get a win like this once in a lifetime,” as he wrote today on his Medium page. 

The opinion was written by Judge Adam Scott Tanenbaum, who was appointed to the 1st DCA by Governor Ron DeSantis on October 16, 2019; Tanenbaum substituted in for Judge Scott Makar, who was appointed by Governor Rick Scott in 2012, after the oral arguments, but Tanenbaum wrote in the opinion that he “has viewed the recording of that argument—and of course has considered the briefs—in full.”

Tanenbaum began by describing the mask mandate in Alachua County, using terms like “fiats,” “diktats,” and “whispering informants”: “Under these fiats, any person in the county had to wear a government-approved face-covering to patronize a restaurant, grocery store, or retail establishment; visit or work on a construction site; or use public transit. The diktats also required that a person cover his face in any location ‘where social distancing measures are not possible.’ One consequence for being caught without a mask was a fine. Another consequence was being subjected to whispering informants, impelled by county-designed publicity like the following proposed signage encouraging citizens to inform on their disobedient neighbors.” Tanenbaum even included a picture of Alachua County’s mandated sign in the order.

Tanenbaum wrote that “The threat of government-sponsored shaming was not an idle one” and that the mask mandate “until recently seemed like it might never end.” The judge further stated that although Green recently suggested that the matter is now moot, the Court disagreed: “Because of the nature of the various emergency orders that we have seen and the county’s continued commitment to public mask-wearing, we are not convinced that this is the last that we will see of this issue.”

Florida’s constitutional right to privacy and “right to be let alone”

Childers decided from the beginning that he would base the lawsuit on Florida’s strong right to privacy, rather than whether masks worked or not, and Tanenbaum wrote that Judge Keim’s decision to not grant an emergency injunction was incorrect because when a temporary injunction motion is based on a privacy challenge, any law that implicates privacy “is presumptively unconstitutional” and “must be subject to strict scrutiny and justified as the least restrictive means to serve a compelling government interest.” Specifically, this puts the burden of proof on the defendant, not the plaintiff; in this case, this means that the County, in this situation, would have to prove that masks work to reduce infections and are the least restrictive means to reduce COVID-19 infections in the County.

In the appellate hearing, the County’s lawyer, Jack Ross, made arguments about motorcycle helmet laws, and Judge Keim leaned on that argument in her opinion, but Tanenbaum wrote that “The trial court simply looked at the right asserted by Green too narrowly, relying on the wrong privacy jurisprudence. The right to be let alone by government does exist in Florida, as part of a right of privacy that our supreme court has declared to be fundamental… As we are about to explain, the supreme court has construed this fundamental right to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect not to be forced by the government to put something on his own face against his will.”

Tanenbaum then reviewed some history of the “right to be let alone” and the right of privacy in the Florida Constitution’s Declaration of Rights, which states in part: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Tanenbaum writes that the  Florida Supreme Court has defined the Florida Constitution’s guarantee of bodily and personal inviolability to include “the inviolability of something so intimate as one’s own face. A person then reasonably can expect to be free from governmental coercion regarding what he puts on it.”

Tanenbaum’s analysis is based on a previous case, Gainesville Woman Care, which held that a waiting period before an abortion was a “significant restriction on a woman’s right to seek an abortion.” In that case, the Florida Supreme Court “took [1st DCA] to task for not strictly adhering to its prior directives for handling such appeals,” specifically “placing the initial evidentiary burden on [the plaintiffs].”

Tanenbaum carefully says that “we are not saying that the mask mandate in fact was unconstitutional,” but that if Green persists in his challenge “to some new mask mandate that the county adopts, the trial court would have to start its analysis with this presumption of unconstitutionality.” He also certified a conflict with the Fourth DCA on the issue, setting up the possibility that the Florida Supreme Court might take up the issue. 

Tanenbaum concludes with this paragraph: “It would behoove the trial court also to consider that while article I, section 23 ‘was not intended to provide an absolute guarantee against all governmental intrusion into the private life of an individual,’… ‘even in a pandemic, the Constitution cannot be put away and forgotten.’… And there is this warning from William Pitt the Younger, roughly paraphrasing a similar sentiment in John Milton’s Paradise Lost: ‘Necessity is the plea for every infringement of human freedom.’” (Citations omitted)

Decision is binding on government entities in the 32 counties in the 1st Judicial District of Florida

Childers’ post says that the decision is binding on government entities within the 1st Judicial District of Florida, which covers 32 counties: Alachua, Baker, Bay, Bradford, Calhoun, Clay, Columbia, Dixie, Duval, Escambia, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, Suwannee, Taylor, Union, Wakulla, Walton and Washington Counties. 

He continues: “So, the City of Gainesville can’t make its employees wear face masks if they aren’t vaccinated. They can’t make citizens wear masks to get into City Hall. Nor can Shands, or UF, or Santa Fe College, or K-12 public schools, and so on. If they persist, they will be in defiance of the law.”

As Childers writes, “This is the very first appellate decision in the entire country finding that masking is unconstitutional. To borrow a metaphor from [the University of Florida’s] Dr. Lauzardo, nobody else has managed to get the football across the goal line anywhere else. Not yet, anyway. Maybe this decision, even if it’s subsequently reversed, will be an encouragement to other courts and other judges.” Childers has been writing for some time about “cracks in the dam” of COVID-19 restrictions, and he now says, “Maybe this is where the foundations of the dam are finally swept away.”

You can read the full ruling here.