Epic Judicial Smackdown!

Philip Holloway, Mask Mandates are presumptively unconstitutional. At least in Florida. In a strongly worded opinion, Florida’s First District Court of Appeal reversed a lower court which had originally ruled in favor of Alachua County’s coronavirus mask mandate.

As Judge Tanenbaum noted, starting in May 2020, Alachua citizen Justin Green “found himself under the yoke of a mask mandate, accomplished through a series of emergency orders from the chair of the board of county commissioners.” Green decided to do what many wish they had done and took the county to court by seeking an injunction against the mask mandate from Judge Dona Keim.

As you have figured out by now, Green won at the court of appeals because the court recognized that – at least in Florida – a citizen has a privacy right that includes the right “to be let alone by government.” Judge Tanenbaum and the 1st District Court of Appeals sent the case back down to Judge Keim to reconsider the injunction in light of this privacy right as described by the Court of Appeals ruling. What Judge Keim may ultimately do – or whether Alachua County asks the Florida Supreme Court to take up the case is anyone’s guess. If nothing else, this ruling is remarkable because it is best described as an epic judicial smackdown.

To understand why this is such a smackdown, you need to know that Judge Keim mistakenly ruled originally that Mr. Green’s privacy right in going naked-faced around town was no greater than the “right of his fellow citizens not to become infected.” The opinion is silent on what evidence Judge Keim may have considered in reaching the conclusion that face coverings work to prevent infection. It’s also important to note that there was never any allegation that Green was ever infected himself with anything. Reading between the lines it sure looks like Judge Keim is making some assumptions on this point – maybe we will learn more at the next hearing.

What is meant by “presumptively unconstitutional?” The short answer is that there is a right to privacy. That right – unlike some other rights – is considered “fundamental” and as such it outranks other less important rights. Any law or “diktat’ issued by a county commissioner that infringes on a fundamental right is presumed to be unconstitutional and will be struck down unless there is a “compelling state interest” and the diktat is narrowly tailored to serve that compelling interest.

So what did Judge Keim get wrong? Well – as it turns out Judge Keim wielded the judicial rubber stamp when she “did not subject the mask mandate to strict-scrutiny analysis, because the court concluded at the threshold that there was no cognizable constitutional right in play. As the trial court put it in its order, “[t]here is no recognized constitutional right not to wear a facial covering in public locations or to expose other citizens of the county to a contagious and potentially lethal virus during a declared pandemic emergency.”

Oops. But there’s more.

The trial court, though, did not assess Florida law to consider Green’s asserted right of privacy. Indeed, it never discussed or even referenced the Florida Constitution’s express guarantee of privacy.

Double oops.

Judge Keim gets a do-over.

Judge Tanenbaum makes many excellent points and everyone should read the entire opinion. But one point Judge Tanenbaum makes about naked faces is a particularly important legal point. You might be wondering what masking has to do with privacy. Well it works like this. A fundamental right to privacy includes complete freedom of a person to control his own body which therefore means “a person can reasonably expect not to be forced by the government to put something on his own face against his will.” Clearly Judge Tanenbaum is telling Judge Keim that the right to facial nakedness is greater that whatever infection risk, if any,  Mr. Green may have posed to his fellow Walmart shoppers.

Like many other lawyers, I have watched and waited over the course of the Covid19 pandemic as lawyers have remained on the sidelines and courts acted as mere rubber stamps in approving any and all manner of arbitrary and legally dubious local, state, and federal edicts.

This is not the first challenge to a mask mandate or other of the patchwork of various COVID protocols we have been living with nor is it likely to be the last. And this ruling admittedly is limited in its own direct impact on anyone other than Mr. Green in his quest to breathe free. But what this ruling does is it shows that some judges will stand up for the constitution and for individual freedom even when doing so may be unpopular.

It is refreshing to know there are at least some in the legal world who understand one core principle:

Even in a pandemic, the Constitution cannot be put away and forgotten.