Judge denies motion for face mask injunction

BY JENNIFER CABRERA

Today, 8th Judicial Circuit Judge Donna Keim denied a request for an emergency injunction on Alachua County’s mandatory mask order. Plaintiff Justin Green brought the lawsuit on the grounds that the order violated the right to privacy in Florida’s Constitution and the First Amendment right to free speech in the U.S. Constitution.

Attorney Jeff Childers argued that under the principle of strict scrutiny, the burden should be on the County to prove that its ordinance is constitutional and that it is narrowly tailored and uses the least restrictive means to actually promote a compelling interest. 

To support that argument, he quoted Paul Myers, Alachua County Administrator for the Florida Department of Health, who told the county commission that there is “no consensus” among health care professionals that face masks are effective and that wearing face masks should be voluntary. Childers suggested a voluntary mask order as a less restrictive measure. Childers also pointed out that over 90% of Florida counties do not have mandatory mask orders, and the rest of the state’s numbers have continued to improve, anyway.

Assistant County Attorney Bob Swain represented the County. He started by talking about the uncertainty of the pandemic: “We don’t know what will happen.” He also questioned Myers’ credentials: “Paul Myers is a state employee.. he is not an employee of Alachua County… His background is not in the delivery of medical care.” He said that “the weight of true medical evidence” lies on the side of the UF doctors and epidemiologists that County Commissioner Ken Cornell has referred to in his comments during county commission meetings. Swain also referred to recent press reports about the firing of a Department of Health employee, implying that the state dashboard information is not trustworthy.

Swain continued, “This is a valid exercise of the police powers of Alachua County during an emergency… the plaintiff doesn’t have a privacy right to potentially infect other people if he doesn’t know that he’s carrying the virus.”

Childers responded that “these are individual rights, not collective rights.” He said Swain was raising “the specter of hypothetical worst-case scenarios” and that there is no evidence that the dashboard data is untrustworthy. He continued, “The court cannot rely on media conspiracy theories… what the courts need to do is enforce the boundaries of the Constitution.”

Swain responded that he wasn’t confident about “the nature of the testing that’s being done… we’re not doing multiple testing… we’re not tracing…”

Judge Keim denied the emergency motion for temporary injunction. She said there was no legal basis or evidentiary basis for the finding that a privacy right is involved and no reasonable expectation of privacy in the places listed in the order (grocery stores, pharmacies, etc.). She added that the case has “no substantial likelihood of success on the merits.” With “no evidence of irreparable harm,” the injunction would not serve the public interest. She said the County has acted within its power “in this emergency situation.”

In a statement released to the press, Childers said that he anticipates filing an appeal to the First District Court of Appeals as soon as Judge Keim enters an order. “Notwithstanding the Judge’s verdict, we believe that fundamental constitutional rights are implicated by the County’s order for every citizen to implement a ‘mitigation device’ into their personal body. As such, the County’s actions should be subject to ‘strict scrutiny’—a standard that the Supreme Court says requires the highest showing by the government proving that its law serves a compelling state purpose.”

Alachua County released a statement saying, “This serves as a good reminder that the County’s Emergency Order requiring mandatory masking is within the County’s authority, and cities are required to follow the Order. Cities may issue orders that are stricter than the County orders, but not more lenient.”