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.

Comments

[Dr. Ed 2]

Nassau County is the portion of Long Island closest to New York City (and where The Great Gatsby was set). Post WWII, it became suburbia -- Levitttown and the rest.

I'm not surprised that they passed this -- between BLM and Team Hamas, I am really not surprised that wealthy Nassau County passed this...

[SRG2]

It's a Republican-majority county.

[Stephen Lathrop]

Perhaps plaintiffs with identifiable medical vulnerabilities should have argued that an anti-mask ordinance exposes them to increased risk, even if they are permitted to go masked as an exception. Given that no mask works perfectly, they suffer increased vulnerability if uncontained contagion is spread by some who would otherwise have been amenable to mask wearing, or compelled to wear masks, for public health reasons.

Thus, if one person in ten suffers chronic vulnerabilities, a notable fraction of total vulnerability in a pandemic would come from the 9 others ordered by the law to go unmasked. That would multiply, potentially by 9-fold, the hazard a vulnerable person is exposed to by failure of his/her own mask to supply complete protection.

Also repellent is the notion that political grandstanding against mask wearing for health reasons gets a pass from the court.

[ReaderY]

But “increased risk” isn’t a basis for standing against these defendants. Standing requires an imminent threat of harm by the named decendants.

Very, very few people not fitting into one of the exception categories continue to wear masks. So the number of people who would stop wearing them as a result of this law will likely be very small. Any claim that adding this tiny number of additional people woul pose any meaningful extra health risk, given the large number of similar people who already don’t wear masks, seems not just speculative but credulity-straining to the point of frivolousnous.

[Stephen Lathrop]

Very, very few people not fitting into one of the exception categories continue to wear masks.

Nonsense. Many folks of Asian extraction habitually wore masks for protection against ordinary contagion prior to the pandemic. Friends, family, and supporters of people with specific health vulnerabilities often wear masks. Folks who do not have special health vulnerabilities nevertheless may fear long-term effects of an otherwise benign Covid infection, and thus wear masks to protect themselves.

Also, do not pretend to be dense. You understand as well as anyone that a politician who appends, "No Masks," to a political promotion intends to attack public health principles, and to attack partisan opponents who support those principles. Perhaps such a malignant fool ought to be at liberty to do that. He should not have legal power to enforce those attacks.

[Aubrey LaVentana]

"Given that no mask works perfectly, they suffer increased vulnerability"

If they are that vulnerable, it is not in their interest to go about in public during a contagion.

[Stephen Lathrop]

Nor is it in their interest to endure years-long quarantine, which in almost every case cannot be maintained to perfection. The need to seek medical care will be a particularly dangerous nexus that can be unavoidable.

[larryseltzer]

It won't be long, I suppose, before someone wearing a keffiyeh wrapped around their face is arrested and claims it's for health reasons. That's where the rubber meets the road on this law.

[CJColucci]

Early in the pandemic, I was standing, at an appropriate social distance, in a line at my local grocery store. Behind me was a neighbor I had seen often before* clad in her customary burka. I remarked that she had been prepared early. From the crinkling around her eyes, I could tell she was smiling.

*It turns out there were two burka-wearing women of the same height and build who lived in the same building. Until I saw the two of them together, I didn't know there were two of them. So I'm never sure which I see when I see just one.

[Stephen Lathrop]

True story. Many decades ago I dated a young woman who got possession of an Afghani wedding burka, very colorful. But a mesh over the face denied a view of even the eyes.

She thought the burka would turn out an amusing party costume, but was surprised and disappointed when almost no one failed to identify her without much delay.

Here is the kicker. She had an identical twin who lived in the same community. Even at first sight, most people could distinguish them accurately. But from photographs, nobody, including their parents and sometimes themselves, could say which was which.

Carriage and gestures count for a lot. If you had put the twin in the Burka, instead of the woman I was dating, I think most people would still have distinguished who it was.