Some sheriffs say mask order unenforceable

Some sheriffs say mask order unenforceable
 
By Ellen Gerst
Casper Star-Tribune
Via Wyoming News Exchange
 
CASPER — In the aftermath of last week’s statewide mask order, several county sheriffs in Wyoming released statements saying they wouldn’t enforce the mandate. The sheriff s in Big Horn, Converse, Fremont and Sweetwater counties all cited the practical difficulty of enforcing the order on a local level. 
Their concern centers on a provision in the order that exempts people with certain medical conditions from being required to wear masks. The problem is a person doesn’t actually have to prove to anyone that they qualify for the exemption. 
“The way it’s written, you can refuse to wear a mask and that’s the end of it,” Natrona County attorney Eric Nelson said. “As the prosecutor, you would have to prove they don’t have a medical condition. That makes prosecution almost impossible, if not impossible, from a practical standpoint.” 
The order, and others like it, are reviewed by both the Wyoming Attorney General’s office and the state Department of Health before they are issued. But that hasn’t stopped some from questioning their legality. 
Sweetwater County Sheriff John Grossnickle, in a statement released on Facebook within hours of the order’s announcement Monday, questioned not only its enforceability but also its constitutionality. 
“Mandating masks without the consent of voters is contrary to the Declaration of Rights in the Wyoming Constitution,” his statement said. 
The statement generated some backlash, said Sweetwater County Sheriff’s Deputy Jason Mower. He clarified that Grossnickle’s issue with the order has nothing to do with masks, and everything to do with the process of approving a public health order like this. 
“In the Wyoming Constitution, it says we have the right to make our own health care decisions,” Mower said. “It is not voted on, we weren’t involved in the process and there was no consultation in terms of enforcement.” 
State officials say Wyoming law allows them to issue health orders during public health emergencies. Title 35 gives the state health officer power to make “pharmaceutical or therapeutic interventions en masse.” Gov. Mark Gordon declared a state of emergency and public health emergency on March. 3. 
“All health orders go through a review process that includes the Attorney General’s office and the Wyoming Department of Health,” Michael Pearlman, spokesman for the governor, said in an email Wednesday. “So we feel confident about their legal status.” 
The statewide order, according to Pearlman, was modeled after earlier county mandates approved by both the attorney general and State Health Officer Alexia Harrist. 
But legality aside, several sheriffs say the mandate is unenforceable. In a follow-up statement issued Tuesday, Grossnickle and county attorney Dan Erramouspe maintained there is no way “to separate those who are exempt from the mask requirement from those who are willfully violating it.” 
Grossnickle cited section 8(e) of the Sweetwater County Public Health Order 2020-4, which states, “a person is not required to provide any documentation or explanation demonstrating that the person cannot wear a face covering for any medical condition, mental health condition, or disability.” 
This clause, found in one of 11 enumerated exceptions to county mask mandates including Sweetwater County’s Dec. 4 order, exempts those with difficulty breathing or other respiratory issues.
In counties where law enforcement leaders have publicly stated they will not enforce the order, businesses may still report trespassers or other violations to request help from local police. In Sweetwater County, Mower said that although the sheriff disagrees with the validity of the order, the department will respond to calls from businesses. So far, none have come in since the implementation of a county mask order in November.
The order gives business owners the right to refuse service and even trespass anyone from their property who refuses to wear a mask. Police won’t be scanning the streets for maskless shoppers, said Nelson, the Natrona County attorney, but officers can respond to calls from business owners or employees if an uncooperative customer refuses to leave. 
“All our community members should remember the businesses impacted by these orders are responsible for ensuring compliance with the orders,” said Converse County Sheriff Clint Becker in a statement Friday. “It is no different than a business posting a sign saying, ‘No shirt, No Shoes, No Service,’ and refusing service to those who don’t comply.” 
So far, that’s been a rarity. Two weeks after Natrona County’s order went into effect, Casper police said they’d only responded to one such call — and that was resolved without a citation. 
Under state statute, violating the order is technically a criminal offense — but the chances of any mask case being escalated to that level is slim. 
“Our governor is sending a stone message about the current state of affairs in Wyoming. I understand his directive, however my office will not be issuing criminal citations,” Fremont County Sheriff Ryan Lee said in a Thursday statement. 
Kim Deti, spokeswoman for the Department of Health, said she recognizes that enforcement is largely a local issue, but reminds Wyomingites that masks help slow and limit the spread of COVID-19. 
“We would hope Wyoming residents would recognize the seriousness of this pandemic and follow existing orders and recommendations.”