Challenge to Nassau County Anti-Mask Ordinance Fizzles, Because …

(1) the particular plaintiffs, who wore masks for health reasons, were excluded from the ordinance's operation, and (2) the risk that officials would misapply the ordinance to them wasn't sufficient to give them preenforcement standing.

Today's decision by Judge Joan Azrack (E.D.N.Y.) in G.B. v. Nassau County dealt with a challenge to Nassau County's Mask Transparency Act, which generally makes it a misdemeanor to wear "any mask or facial covering whereby the face or voice is disguised with the intent to conceal the identity of the wearer" in "any sidewalk, walkway, alley, street, road, highway or other public right-of-way or public property or private property without the consent of the owner or tenant." The Act also expressly excludes, among other things, "facial coverings worn to protect the health or safety of the wearer."

Plaintiffs challenged the Act, arguing that they were disabled and needed to wear a mask for medical reasons:

Plaintiffs … have disabilities. S.S. has common variable immunodeficiency, kidney disease, respiratory impairments, and post-viral syndrome. G.B. has cerebral palsy, asthma, and uses a wheelchair for mobility. Plaintiffs' disabilities increase their risk of serious side effects and death from airborne illnesses. "Since the COVID-19 pandemic," Plaintiffs have worn masks when they leave their homes "to protect [themselves] from illness."

And that, the court concluded, meant they lacked standing to challenge the law:

Plaintiffs fail to sufficiently demonstrate that their "intended future conduct is 'arguably proscribed by the statute' they wish to challenge." … Plaintiffs wear masks to protect themselves from illness. That is expressly excluded from the MTA's reach by its health and safety exception. Plaintiffs also do not wear masks in the manner proscribed by the MTA, namely, "with the intent to conceal the identity of the wearer." Plaintiffs "lack standing to challenge the [MTA] because, simply put, it does not apply to them."

Nor could they prevail on the theory that the law would be "misapplied or ignored by law enforcement:

Plaintiffs' contentions fail on the facts and law. Factually, they ignore that law enforcement guidance (1) emphasizes the MTA does "not apply to facial coverings worn to protect the health or safety of the wearer," (2) instructs that "State and Federal case law with regard to standards of proof and the [Fourth A]mendment should be observed," and (3) requires that "[t]he totality of circumstances and [required] elements of suspicion should ALWAYS be articulated" before even stopping an individual or directing them to remove a mask.

In any event, legally, "a party alleging that its conduct could be proscribed by the challenged statute cannot rely on an argument that the statute might be misconstrued by law enforcement." That is, asserting law enforcement will misapply a law to a given plaintiff "proves too remote or attenuated" to confer standing….

Plaintiffs insist that Nassau County has already enforced the MTA in a manner that "exclude[es] Plaintiffs from the public sphere." In support of that argument, Plaintiffs rely on Nassau County Legislator Carrié Solages's recent social media posts that (1) "asked respectfully" that each attendee at his September 18, 2024, political rally comply with the MTA by "not wear[ing] a mask to conceal your face" and (2) included a flyer for the rally that said in the bottom right corner "No Facemask."

But these posts do not amount to actual or threatened enforcement against Plaintiffs (or even against any other citizens). Plaintiffs offer no evidence that Legislator Solages is part of the executive branch of Nassau County or that he otherwise plays a role in enforcing the MTA. And, even assuming arguendo that social media posts from a single Legislator could somehow have potential relevance to Nassau County's enforcement of the MTA, Legislator Solages's posts contain a "respectful[]" "ask[]"—not a demand—for compliance with the MTA. Similarly, the "No Facemask" statement on the flyer also does not remedy Plaintiffs' failure to satisfy the controlling [legal] standard.

The MTA criminalizes masks that are worn only "with the intent to conceal the identity of the wearer" and explicitly excludes masks "worn to protect the health or safety of the wearer." The "No Facemask" statement on a political flyer from a single Legislator does not alter the clear language of the MTA. The MTA does not "arguably proscribe" all facemasks….

Finally, Plaintiffs contend that they have standing due to anticipated harassment from non-party civilian citizens who are hostile toward mask wearing. The argument fails for each standing element even when independently assessed outside the governing [legal] framework. First, Plaintiffs do not sufficiently demonstrate that they will imminently suffer this hypothetical harassment, which precludes it from being a cognizable injury in fact. Second, the harassment would not be "fairly traceable" to Nassau County enacting the MTA; instead, it would be "the result of the independent action of some third party not before the court.'" That Plaintiffs acknowledge anti-mask hostilities took place before the MTA was adopted confirms that conclusion. Third, and relatedly, it is thus unclear how the relief Plaintiffs seek, declaring the MTA void and enjoining Defendants' enforcement of it, is "likely" to "redress[]" the civilian anti-mask harassment that Plaintiffs acknowledge predated the MTA.

There might well be plausible constitutional challenges to the Nassau ordinance, as well as serious practical problems with enforcement. I expect that they will fail, given Second Circuit and New York state precedent. See Church of the American Knights of the KKK v. Kerik (2d Cir. 2004) and People v. Bull (N.Y. App. Term 2004) (involving "self-proclaimed anarchist[]" May Day demonstrators). But they would need to be brought by plaintiffs other than these ones.