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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.”

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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.”

  • The county commies should have released a statement, “this serves as a reminder that we will do everything to take away your Constitutional rights and if we can, take away the rights granted by your Creator.”

  • The statement released by “the county” shows their intent to remind any of us who might consider dissenting, that we, the people, (and that includes those in the surrounding small towns,) are subject to the whims of these hapless, heavy handed city and “county of Gainesville” commissioners, and that we must submit to our rulers…
    “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.”

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  • Maybe someone should question Childers’ credentials. Neither he nor the county commissioners have any knowledge of medical practices but claim to know more than the Health Department Director.. He obviously enjoys his “cake” job and doesn’t want to fall the way of his predecessors.

      • My apologies to Mr Childers. My bad, good catch from Jennifer. It was late. Swain’s credentials should be questioned. He knows who butters his bread and he does work at the mercy of the commie commission.

  • I appreciate their willingness to bring the challenge.

    The biggest issue to me are the health risks from wearing masks. Wearing a mask, even a surgical mask, causes a person to rebreath some of their exhaled CO2, causing an increase in blood CO2, a decrease in O2 saturation, and a decrease in blood ph. These effects don’t seem to bother many people, but are a problem for many others, causing dizziness and fatigue. What are the long-term risks from these physiological changes? What is that doing to peoples’ brains?

    This study examines that problem in surgeons during surgeries of up to 4 hours.

    http://scielo.isciii.es/pdf/neuro/v19n2/3.pdf

  • Remember all of these comments and statements by the County Commissioners during the next few elections. We get what we elect…ultimately it is up to us. We can certainly see different approaches to the same problem in other jurisdictions. It is a good time for each of us, in my view, to reflect on what we want in our local Government.

  • Hmmmmm…A lot of big brother going on out there…Apples new i-phone
    Operating system will have contact tracing tracing on it,
    Face masks interfere with facial recognition cameras,
    Vaccine may have RF chip in them (the kind that people put in their pets)…they will know who you are when you enter Walmart from facial recognition, the RF chip, or your phone through contact tracing, etc….the forces that be
    Want you to tagged with a number by any means possible.
    Is this checkmate? Did they talk about this in the greatest
    Story ever told which is the Bible?

  • To all the ignorant “ mouth breather” comments I say this: Alachua is a blue county. Based in intelligence and knowledge. in science, research and medical expertise.
    Don’t like it leave. Go to Gilchrist, Levy or any number of red counties and breathe all over each other. The people who are risking their lives working in restaurants, grocery stores and many other similar places may have to come on contact with over 100 people a day. Your selfish inconsiderate ignorance is putting their lives at risk. This is about Health. About life and death. Put your guns and your flags down for a moment and open your mind for a change.

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