Yesterday, April 29, 2020, Governor Mills issued Executive Order 49 FY 19/20, “An Order to Stay Safer at Home.” The Order incorporates by reference her so-called “restarting plan,” which was announced during a press conference by the Governor earlier this week and aims to reopen the state's economy in stages.
What will likely turn into the most controversial piece of the Governor's newest order is covered in Section V of the order, entitled “Cloth Face Coverings.” The order on face coverings states that “individuals must wear cloth face coverings in public settings where other physical distancing measures are difficult to maintain.”
The Order defines “public settings” as:
- Indoor spaces that are accessible to the public such as grocery stores, retail stores, pharmacies and health care facilities;
- Outdoor spaces such as playgrounds, busy parking lots, and other areas such as lines for take-out service where the public typically gathers in a smaller area; and
- Public transportation such as a taxi, Uber, Lyft, ride-sharing or similar servie; ferry, bus, or train; and any semi-enclosed transit stop or waiting area.
Regardless of your views on donning masks in public (the CDC and the WHO seem to even disagree slightly on the degree to which this is useful) the issuance of a government mandate that applies to all citizens will likely anger many and result in legal issues for some.
The most notably concerning aspect of the Governor using an emergency proclamation to mandate masks is that police will now have the authority to arrest individuals who are not wearing masks in public spaces. It will also become a Class E crime to fail to comply with a direct order from a law enforcement officer to put a mask on.
The Governor's authority to declare a state of emergency is derived from Title 37-B MRS §742, and her authority to issue executive orders in furtherance of her operational control over a state of emergency is derived from 37-B MRS §§741, 742.
To enforce orders issued in order to carry out the Governor's emergency orders and proclamations, 37-B MRS §786(2) grants law enforcement officers the authority to “arrest persons found in violation of any provision of this chapter or any rules promulgated in times of emergency to carry out section 742. In conjunction with that subsection, 37-B MRS §786(1) states that it is a Class E crime to fail to “comply with any just or reasonable order relative to enforcement from a duly appointed law enforcement officer.” Applied to these circumstances, that means starting Saturday if a police officer orders you to put a mask on while getting your first haircut in months, it will be a crime to tell him no.
Maine is not the first state to have its Governor issue such an order. Governors Cuomo and Lamont of New York and Connecticut, respectively, have already issued such orders while using similar language.
A Connecticut attorney has already sued Governor Lamont in federal court for issuing the order in violation of the United States Constitution, but it is of course too early to say how courts will handle challenges to these mandates.
Perhaps the most likely way these orders will be challenged will be through the criminal court system should we begin to see a rash of arrests based on these universal masking orders. The most serious implication of this new order is that now, police will be equipped with an all new pretext to perform an investigatory stop and initiate a “stop and frisk” type encounter with any citizen who is out in public without a mask. Many citizens who would otherwise not be subjected to putting their privacy or their liberty put at risk will find themselves being stopped, questioned, searched, and possibly even jailed.
As I mentioned in a previous post, law enforcement officials said that they would refuse to enforce the stay-at-home order by arresting people found outside, performing excessive investigatory stops, or issuing summonses other than as a measure of last resort. We can only hope that similar restraint is used moving forward, because this new order seriously expands the ability of police to perform stops of citizens on sight by creating a whole new crime that a person can be suspected of.
In the event that you should find yourself stopped for not wearing a mask, you may find that while your rights have not changed, you ability to exercise certain rights will be limited. For example you may find that your ability to refuse this kind of police contact (which would normally be considered arbitrary and unreasonable) will be severely limited. Unless you comply with order to mask up you will not be free to terminate contact with the police whenever you wish, you will be completely at the mercy of the police. If you find yourself in this situation, you absolutely retain your Constitutional right to remain silent, and you do not have to answer any questions (nor should you).
As always, keep calm and remain silent.