Is Colorado Governor Polis’s Executive Order Requiring Face Masks Legal? Not Likely

 

On July 16th, Colorado’s governor Jared Polis signed Executive Order D 2020 138, requiring individuals in Colorado to wear a non-medical covering over their nose and mouth, subject to several exceptions. Though this is only one in a string of executive orders from the governor (the 138^th executive order this year, and the 136^th concerning COVID-19), this is the first that imposes a mandatory requirement to all citizens of Colorado that leaves no discretion to the citizens. Because it is an executive order, most would assume this means they now have to wear a mask or be punished, but that’s not necessarily the case, and even Colorado’s authorities are unsure if the order can be enforced. Indeed, Mr. Polis himself previously said in relation to this very order that “there’s no ability the state has to enforce it.”[1] So, then, just why is the governor now saying that “this is a law like any other,” is the executive order in fact legal, and do you need to comply?[2]

“there’s no ability the state has to enforce it.”

Governor Polis

Looking to the text of the order, Mr. Polis points to the Colorado Disaster Emergency Act as the legal authority enabling him to order individuals in Colorado to wear a face covering.[3] Under that statute, in relevant part, the governor may declare an emergency and issue executive orders, proclamations, and regulations for the purpose of meeting the dangers to the state and people presented by a specified disaster.[4] To declare an emergency, a disaster must occur or the threat thereof be imminent, which is defined as an “unexpected and imminent threat of widespread or severe damage, injury, or loss of life or property [] and requires an immediate response through the use of state and community resources and procedures.”[5] How widespread or severe the damage or loss of life must be is undefined. Furthermore, once the threat of danger has passed or the disaster has been dealt with to the extent that emergency conditions no longer exist, the governor must terminate the state of disaster emergency by executive order.

Using this criteria, Mr. Polis declared the novel coronavirus a disaster emergency on March 11, 2020. At that time, it was unclear how severe the novel coronavirus would be or how fast it would spread through the population, and Colorado documented its first case nearly a week prior. While reasonable minds could differ, an argument could be made that, based on the scant information available at that time, the threat of widespread or severe loss of life was imminent. Now, however, nearly five months have passed and there is a wealth of information to look to. Considering information now available, it is clear that, though serious, the pandemic did not overwhelm our hospitals and did not deplete our nation’s medical supplies, as was originally feared. Doctors have not had to choose which patients would live or die. Rather, medical professionals have innovated new methods to treat the disease, production for a vaccine has begun, and companies have found ways to meet the increased demand for medical supplies.

When speaking of a disease, severity is most often measured in mortality. Looking to that statistic, in March, shortly after the virus was first reported in the United States, it was estimated that 2.2 million Americans could die if no action was taken to limit the viral spread, and even 1.1 million could die if precautions were put into place.[6] Looking back so far, the virus turned out not nearly that deadly, and “only” 148,866 have died as of July 29, 2020 (1,799 in Colorado), with approximately 665,000 worldwide[7]; even assuming the same rate of deaths for another 12 months, less than 500,000 would perish in the US. To be sure, half a million people dying is no small number and is not a negligible issue, but, to put this into perspective, consider that over the same period nearly 1 million people will die of heart disease in the US alone, nearly another million will die of cancer, and approximately 225,000 Americans will die from chronic lower respiratory disease (often caused by smoking). Neither heart disease, cancer, nor smoking are considered emergency disasters for which Mr. Polis unilaterally issues executive orders.

While these cumulative numbers may seem large and frightening in isolation, past diseases and epidemics can provide context, and only two years ago the 2017-2018 flu killed approximately 80,000 Americans or as many as 650,000 worldwide, which passed unnoticed by most; from 1968 until 1970, the “Hong Kong Flu” pandemic killed approximately 100,000 Americans and 1 million worldwide, an event few will be familiar with; the 1957 flu pandemic killed approximately 1.1 million worldwide and 116,000 in the US (with a population nearly half that today); and about 100 years ago the 1918 Spanish Flu infected an estimated 1/3 of the world’s population and killed nearly 10% to 20% of those who caught it, between 50 and 100 million worldwide, with 675,000 dying in the US alone.

In the past 100 years, the Spanish Flu was the last time a large-scale isolation and quarantine was enforced in the United States.

U.S. Centers For Disease Control and Prevention

In these past 100 years, the Spanish Flu was the last time a large-scale isolation and quarantine was enforced in the United States.[8] While the Spanish Flu was record-setting, the coronavirus has proven not nearly as severe. It’s important to note that, in 1917, the US had a population just over 100 million and the global population just reached 1.9 billion; today the US population is 320 million and the global population broke 7.5 billion. Thus, extrapolating the Spanish Flu to today’s population, it would have killed approximately 2.2 million in the United States and 200 to 400 million worldwide, a situation that the coronavirus very fortunately does not appear remotely likely of causing.

So, to recap, in March it was feared a second Spanish Flu may be imminent, and today evidence indicates the coronavirus is less severe than heart disease or cancer, but seemingly more serious than lower respiratory disease. While it is unclear whether Colorado’s 1,795 coronavirus-related deaths constitutes an unexpected and widespread or severe loss of life requiring an immediate response through the use of state and community resources and procedures, it would seem not to be the case based on the comparisons above. A less popular statistic, though perhaps the most relevant, is the number of people in Colorado who are currently hospitalized for the coronavirus, which is only approximately 245, down from 900 in April.[9] Based thereon, a reasonable argument can be made that the disaster has been dealt with to the extent that emergency conditions no longer exist, or, in other words, that the disease can be sufficiently addressed through the normal functioning of government. Yet, instead of terminating the state of disaster emergency, Mr. Polis instead extended it by another 30 days and enacted the most wide-reaching executive order yet.

As justification, Mr. Polis said the order is intended to complement local mask orders, as well as provide a “state baseline” and “a clarity of messaging.”[10] His past statements shed more light, as he’s previously said that “We don’t know exactly what mask-wearing ordinances will do,” that “We hope that they lead to increased mask usage, we think they will, we encourage,” that “This is the least bad of the options we have at our disposal,” and that “Basically, it’s a practical way to say, ‘Wear a mask.’”[11] Curiously, none of these statements touch on the legal requirements for issuing such an order—an imminent threat of widespread or severe loss of life that requires an immediate response through the use of state and community resources and procedures. If the height of the coronavirus in April did not require this mandate, when 900 people were hospitalized in Colorado, it is not required now when only 250 Coloradoans are hospitalized for the disease in question.[12]

Mr. Polis “does not have the legal authority through an executive order or by other means to require citizens to wear masks.”

Weld County board of commisioners

This sentiment is widely held among those in authority in Colorado, even if it is not widely held among its populace. Approximately one-quarter of Colorado’s 65 counties have gone on record stating that they will not issue tickets or other enforcement actions for those who disobey the mask mandate.[13] This stems from the fact that, as the Weld County Board of Commissioners publicly stated, Mr. Polis “does not have the legal authority through an executive order or by other means to require citizens to wear masks.”[14] Even after this position has been challenged, the Weld County Sherriff’s Office explained further:

“From a law enforcement perspective, the way we interpret the order is we don’t believe we have the authority to fine somebody, ticket somebody, issue a summons or arrest somebody for violating a face-mask mandate, because not wearing a face mask is not against the law, according to Colorado Revised Statutes. As a sheriff’s department, our task is to enforce laws, not to enforce policy. That’s essentially what that order is. It’s like a firm suggestion.”[15]

All of this is not to say that nothing should be done in response to the novel disease we are now facing, only that whatever actions are taken should be taken legally, in full compliance of both the law and the spirit of the United States.[16] While some may think a mask mandate is proper and they would prefer others to wear masks to prevent being exposed to the coronavirus, the harm is in the precedent this illegal order sets for the future. Next time, it won’t be a pandemic that results in the governor issuing executive orders, but a bad seasonal flu. As a Scottish judge once said, “The average age of the world’s greatest civilizations has been 200 years. These nations have progressed through this sequence: From bondage to spiritual faith; From spiritual faith to great courage; From courage to liberty; From liberty to abundance; From abundance to selfishness; From selfishness to apathy; From apathy to dependence; From dependence back into bondage.”[17] Legal limitations on the state executive exist to protect our freedoms; it is not selfish or apathetic to oppose a mask mandate that is outside of these limitations, but it is selfish and apathetic to stand quiet in the face of absolutism simply because we now face of an unknown disease. These same policies can be implemented through the legal rulemaking process, if truly necessary.  

But, does this mean you don’t have to comply with the mandate? As always, that depends on which county you live in and what your situation is. It is most likely that a violation of the mask mandate will not land you in hot water because the governor overstepped his legal authority in issuing the mandate. Similarly, if you’ve been damaged as a result of the mandate, you may have a cause of action against the State for relief. That said, willful refusal to disobey an owner’s requirements on private property can land you in hot water, so don’t think you are immune simply because the governor overstepped his bounds. If you have been personally damaged or have been threatened with prosecution as a result of Mr. Polis’s executive orders, call Elevated Law to speak with an experienced civil rights lawyer.

–By Tony Nasser, Esq., Elevated Law

Tony Nasser is an attorney and founder of Elevated Law, licensed to practice law in Colorado and California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm’s clients or any affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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All links were accessed on August 4, 2020.

[1] https://coloradosun.com/2020/07/16/colorado-statewide-mask-order-jared-polis/
[2] Ibid.
[3] Colorado Executive Order D2020 0138
[4] C.R.S. § 24-33.5-704
[5] C.R.S. § 24-33.5-703; C.R.S. § 24-33.5-704
[6] https://www.washingtonpost.com/health/2020/03/19/coronavirus-projections-us/
[7] https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html
[8] https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html
[9] https://covid19.colorado.gov/hospital-data
[10] https://www.greeleytribune.com/2020/07/16/mask-mandate-greeley-weld-law-enforcement-to-continue-seeking-voluntary-compliance-following-governors-latest-health-order/
[11] https://www.cpr.org/2020/07/10/this-is-where-face-masks-are-required-in-colorado/; https://coloradosun.com/2020/07/16/colorado-statewide-mask-order-jared-polis/; https://www.greeleytribune.com/2020/07/16/mask-mandate-greeley-weld-law-enforcement-to-continue-seeking-voluntary-compliance-following-governors-latest-health-order/
[12] https://covid19.colorado.gov/hospital-data
[13] https://www.coloradopolitics.com/news/enforcement-of-the-mask-mandate-whos-doing-it-who-isnt/article_c92144e8-cc52-11ea-95c8-abf3c540f622.html
[14] https://www.weldgov.com/newsroom/2020_news/b_o_c_c_response_to_gov__polis__executive_order;
See also https://www.scribd.com/document/466954440/Memorandum-Legal-Effect-of-PHO-20-28
[15] https://www.greeleytribune.com/2020/07/28/mask-mandates-and-gathering-sizes-southwest-weld-concert-controversy-brings-questions-clarifications-on-poliss-orders/
[16] See https://pagetwo.completecolorado.com/2020/06/26/weld-county-attorney-says-cdphe-orders-are-not-enforceable-weld-county-commissioners-advised-to-not-play-the-states-waiver-game-advised-to-not-play-waiver-game/
[17] https://www.goodreads.com/quotes/108530-a-democracy-cannot-exist-as-a-permanent-form-of-government