The Volokh Conspiracy
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England Condemns Lawless Executive Power in Moscow
From Rench v. City of Moscow, decided last week by Judge Morrison England (D. Idaho):
Plaintiffs Gabriel Rench, Sean Bohnet, and Rachel Bohnet … initiated this action against Defendants City of Moscow …, a political subdivision of the State of Idaho [and Moscow officials] … for constitutional injuries purportedly sustained when Plaintiffs participated in a September 2020 protest and religious gathering….
On March 20, 2020, during the initial stages of the COVID-19 pandemic, the Moscow City Council approved an "Emergency Powers Ordinance," … granting the mayor the authority to enact emergency public health orders to combat the spread of the virus. That Ordinance, however, specifically excluded the following:
Unless otherwise specifically prohibited by a Public Health Emergency Order duly enacted by the Mayor, the following activities shall be exempt from the scope of such order: 1. Any and all expressive and associative activity that is protected by the United States and Idaho Constitutions, including speech, press, assembly, and/or religious activity.
On July 1, 2020, pursuant to the Ordinance, the mayor enacted Amended Public Health Emergency Order No. 20-03 …. The Order provided, in pertinent part, that "[e]very person in the city of Moscow" must either: (1) "wear a face covering that covers their nose and mouth when in any indoor or outdoor public setting where the 6-foot physical distancing is not able to be maintained with non-household members"; or (2) "when in places that are open to the public, shall maintain 6-foot physical distancing from a non-household member, whenever possible." Violation of the Order was a misdemeanor.
When the Order was enacted, the City believed that it applied to religious or expressive activities or, more generally, to every person in the City engaged in all activities in a public setting. Somehow, every single City official involved overlooked the exclusionary language included in the Ordinance requiring that the mayor make explicit that the Order was intended apply to all constitutionally protected expressive and associative activity as well.
Accordingly, when City officials were made aware in September 2020 that a local church was planning a protest against the Order and a "psalm sing" to be held outside in the parking lot of City Hall, they began preparations to enforce the Order itself. In anticipation of the event, the City had dots painted six feet apart in that parking lot so attendees could ensure they were properly distanced if they chose not to wear masks. Law enforcement officers were also instructed to exercise their discretion in enforcing the Order should they observe any violations as well as how to properly write and issue citations.
The day of the event arrived, and all three Plaintiffs participated in the protest. They declined to wear masks or physically distance themselves from attendees who were not members of the same household. They also refused (at least initially) to provide identification to officers. All three Plaintiffs were peacefully arrested and cited for violating the Order. Based on their refusal to identify themselves, the Bohnets were also cited for resisting or obstructing an officer i….
A local magistrate judge subsequently determined probable cause supported the arrests and citations after being provided probable cause affidavits that referenced only the Order and not the Ordinance, and Defendant Warner opted to proceed with Plaintiffs' prosecution. Plaintiffs thereafter moved to dismiss all charges on the basis that their conduct was excluded from the reach of the Order in light of the exclusions set forth in the Ordinance.
In response, the City itself moved to dismiss the criminal charges, and the state court granted said motion, but not before Plaintiffs had incurred several thousand dollars in legal defense fees. The City has since repealed the Ordinance section setting forth the applicable exclusions and terminated the Order as well.
In the meantime, Plaintiffs initiated this action setting forth claims for violation of their First Amendment rights to free speech, expressive association, petition the Government, and free exercise of religion, which are also purportedly protected under Idaho state law….
Defendants' Motion turns primarily on the underlying premise that the Ordinance and Order were ambiguous as to whether they reached Plaintiffs' conduct. It follows, according to Defendants, that a substantive First Amendment analysis is warranted and should be resolved in their favor.
That is simply incorrect. The City's Code could not be more clear: Under a plain reading of the Order in conjunction with the Ordinance, all expressive activity was excluded from the mask or distance mandate because such conduct was not explicitly addressed in the Order itself. In other words, during the relevant time period, those participating in expressive or associative conduct were not required to mask or distance. Plaintiffs should never have been arrested in the first place, and the constitutionality of what the City thought it's Code said is irrelevant.
Absent violation of the Order or any other law, it is also unclear what justification existed for requiring Plaintiffs to identify themselves or for charging them with obstruction. All of the foregoing present problems for the City. So does the fact that the magistrate judge's probable cause finding was based on incomplete information, namely that the magistrate judge was not provided any reference to the Ordinance and instead only the Order was cited as a basis for Plaintiffs' arrests. The prosecutors' charging decisions were likewise flawed.
That said, Plaintiffs' claims are not without their own issues. For example, the Court fails to see how the individual officers can be held liable for constitutional violations when they were explicitly briefed by the experts on the applicable laws and were advised that the Order should be enforced at Plaintiffs' event. Since the Order is no longer in effect in any form, and because Plaintiffs should not have been arrested in the first place, it is also questionable whether Plaintiffs can show any entitlement to declaratory or injunctive relief.
Regardless, and in any event, given that Defendants' Motion [for Summary Judgment] rests almost entirely on the flawed legal theory that the Ordinance and Order could be construed to encompass Plaintiffs' conduct, the Court declines to consider the arguments set forth therein, and the Motion is DENIED without prejudice. Prior to the re-filing of any Motion, however, this Court is ordering the parties to participate in a settlement conference.
The Court typically prefers to let the parties dictate the path of their own litigation, but this is one of the most novel set of circumstances the Court has ever encountered. Given that Plaintiffs were wrongfully arrested, the City indisputably erred in interpreting its own Code, the City consequently misadvised its officers as to the Code's application, and Plaintiffs are so far reasonable in their damages requests, this case should not need to see the inside of a courtroom. It would behoove everyone involved to take a step back from their respective positions and prepare to negotiate in good faith….
Congratulations to Erick G. Kaardal and William F. Mohrman (Mohrman, Kaardal & Erickson, P.A.) and Michael Jacques (Jacques Law Office), who represent plaintiffs.