To ticket or not to ticket: Local leaders, police weigh mask mandate

By: Tiffany Esshaki | C&G Newspapers | Published July 16, 2020

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OAKLAND COUNTY — If you’re looking to make or keep friends in 2020, you’d be wise to steer clear of the topic of mask mandates.

Despite scientific data to back the use of face masks to lessen the spread of COVID-19, Michiganders seem split on whether or not they’re willing to wear them, voluntarily or otherwise, in public spaces.

That can make it tough for public servants to create or uphold mandates meant to protect the public, if the public as a whole isn’t on board. Since Gov. Gretchen Whitmer used her executive power to require Michiganders to wear masks while in indoor public spaces and crowded public outdoor spaces July 13, she has struggled to get residents and even some law enforcement agencies to comply.

“From the beginning of this health crisis, Gov. Whitmer has done everything within her legal authority to protect the health and safety of Michiganders,” Tiffany Brown, the spokesperson for Whitmer, said in an email. “Law enforcement officers who ignore the law put the lives of those they are sworn to protect at risk. Face coverings are a simple, effective way to reduce the spread of this deadly disease. During a health crisis that has killed more than 6,000 people across the state, we must all work together to defeat this disease.”

Some people who object to mandatory masks have cited the CDC’s reversal from its original stance that masks wouldn’t help stop the pandemic, fears that masks may make it too hard to breathe or don’t actually work, and a belief that the mandate is an overreach or a violation of their rights.

It’s been largely on operators themselves to enforce masks for employees and customers before the mandate, and that could still be the case. That’s troubling for business owners like Kristin Jonna, the owner of Vinotecca Wine Bar and Restaurant in downtown Birmingham, who has to get tough with customers who don’t want to mask up.

“My staff is a bit scared by how loose our guests seem to be,” Jonna said in June, just after the state entered Phase 4 of reopening. “They have been in contact with hundreds of people … and their fear is ever-present but held at bay because they know they must work. Most guests are not even wearing masks themselves, and a few have asked our staff to take theirs off, which we do not allow.”

 

Prosecutorial discretion
Within days of announcing the mask mandate, a number of law enforcement agencies responded by saying they wouldn’t issue citations to violators, including the Macomb County Sheriff’s Office, which said it will respond to disturbances and trespassing complaints as usual, even if they’re caused by mask disputes, but doesn’t have the “manpower” to enforce mandatory mask wearing.

And the department is well within its right to do that, according to Western Michigan University Cooley Law School Professor David Tarrien.

“They have that prosecutorial discretion. We see that day to day when an officer decides not to arrest someone or charge someone who has marijuana,” Tarrien said. “It’s a little unusual to put forth a blanket policy or blanket statement to say they would never prosecute, but they’re still within their rights.”

Tarrien said the courts have been supportive of Whitmer’s power to go forward with the mandatory mask order.

The Oakland County Sheriff’s Office hasn’t said it won’t enforce the mask mandate, but deputies will continue to refer reports to the county’s health division, as opposed to issuing tickets on-site for that particular violation.

“Nothing has changed from day one for us,” said Undersheriff Mike McCabe, referring to the governor’s original Stay Home, Stay Safe emergency isolation order, which has since been relaxed.

“The governor’s newest order regarding the masks will fall under already long-established OCSO protocols. We will respond to complaints which come into our dispatch center, as we respond to all calls for service. … If there is a possible violation, it is sent to the Health Division. The Health Division then decides what action they will take and whether or not to forward to the Attorney General.”

That might sound like deputies are passing off the responsibility of enforcing the mandate to other agencies, but according to Tarrien, that’s normal in certain cases.

“It’s a fairly well-established process when dealing with areas concerning safety or civil rights discrimination,” Tarrien said. “Generally, an administrative process will have to be gone through before it goes to the general court system, and we’ll see that in everything from a family seeking special education resources for their child to someone seeking disability benefits.”

But how many mask citations will really make it all the way through the process and end up in front of a prosecutor? It’s hard to say. First, a true violation needs to take place: one that doesn’t involve a misunderstanding of the emergency order or another simple fix.

“Well over 92% of the calls we get for violations have been unfounded,” McCabe said.

The Oakland County Health Division did not respond before press time with an estimation as to how many cases it has passed along to the county prosecutor or the state attorney general.

 

Verdict’s still out
Oakland County Prosecutor Jessica Cooper did not return requests for comment, and Ryan Jarvi, the press secretary for Michigan Attorney General Dana Nessel, said it would be unusual for a municipal or county case to make it all the way up to their office.

“Local police agencies and county prosecutors are still the most appropriate authorities to deal with violations of the executive orders, as they are present in the communities they police and deal with complaints about violations of the law each and every day,” Jarvi said in an email. “We trust those professionals to use their authority and discretion in addressing reports of executive order violations.”

There might be some bugs to be worked out as to who might be ticketing mask order violators, but Oakland County Executive David Coulter still encouraged residents to make complaints if they see a public health risk.

“Do two things: first, leave (an establishment) if you’re not comfortable. Second, you can call our hotline at (248) 858-1000 to file a complaint. Our staff will forward the information to the Health Division. The Health Division can then work together with businesses or organizations to issue warning letters as necessary. The lack of compliance will result in referrals to the Prosecutor’s Office, the Michigan Attorney General’s Office, and the Michigan Occupational Safety and Health Administration,” said Coulter during a press briefing July 15.

Those consequences are for genuine violators who know about the mandate and refuse to comply despite having no health condition that prevents them from wearing a mask.

 

Me versus We
Tarrien explained that, in accordance with the Americans with Disabilities Act, businesses have to make reasonable accommodations to those with disabilities. But the reasonable accommodation does not necessarily mean that a business has to let someone with a disability in.

“It depends on the facts on the ground. For instance, if it’s a period where we’re spiking in cases and an order has been put forward by the governor (to wear masks) and you’re in an area where there has been a lot of cases, it could be argued it’s not reasonable — that it’s more dangerous to other people using that business than the person with the disability itself,” he explained. “In that case, the business can refuse to accommodate. Now, if you’re way up north in a place where there are barely any cases reported, you have a less compelling argument.”

By the way, what counts as a disability that would prevent someone from wearing a mask?

It’s not spelled out in Whitmer’s order, and Tarrien said a false ailment to get out of wearing a mask is the same as making a bogus claim for disability benefits: it’s a crime, and if you’re proven later to have lied, there could be legal consequences.

“Plus, it makes you not a terrific person,” Tarrien said with a laugh.

But do those patients need to prove their illness to a shop owner? Definitely not. Tarrien said you’re back in the same Catch 22 situation as before: you’re free not to wear a mask, but the business owner is free to refuse your entry.

“If I could give any guidance to the world during all of this, I would just say don’t partake in shenanigans. (These protections) are supposed to be shields, not swords,” Tarrien said.

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