HARRISBURG – After a federal judge’s recent rejection of their bid to prevent enforcement of Gov. Tom Wolf’s face mask mandate statewide and the state’s contact tracking system for COVID-19, two Pennsylvania couples have appealed the denial to the U.S. Court of Appeals for the Third Circuit.
Chad Parker, Rebecca Kenwick-Parker, Mark Redman and Donna Redman first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Sept. 3 versus Governor Tom Wolf, Attorney General Josh Shapiro and Secretary of Health Dr. Rachel Levine, all of Harrisburg.
“Pursuant to the mask mandate, individuals are required to wear a face mask when outdoors and unable to consistently maintain a distance of six feet from individuals who are not members of the same household and when in any indoor location where members of the public are generally permitted,” the suit stated.
“However, the propaganda message from defendants Wolf and Levine is that masks are required anytime an individual leaves the home. Defendant Wolf creates conflict between citizens when he publicly states that people are required to wear masks every time they leave home, but then purposely excludes the ‘unless six feet apart’ component of the mask mandate.”
The suit added that for many citizens, including the plaintiffs, a face mask is “a symbol of oppression and an attempt by the government to control the citizenry” and the suit further accused Wolf of “acting like a monarch over the lives of Pennsylvanians.”
The plaintiffs filed a motion for preliminary injunction on Oct. 6, claiming they suffer “irreparable harm” while the policies complained of continue to be enforced, and requested an injunction to prevent such enforcement.
UPDATE
U.S. District Court for the Middle District of Pennsylvania Judge John E. Jones III denied the injunction request on Dec. 11, ruling that it was unlikely to succeed on its merits and that the plaintiffs had not shown a cognizable restriction of violation of their constitutional rights.
“Nearly nine months, and quickly approaching a full year, into this global pandemic, we are all fatigued. We have not been able to hug our loved ones, attend school or work in-person, or frequent our favorite restaurants and local businesses. All of our lives have changed drastically, and, indeed, many of us are weary of continued mitigation efforts. But our Constitution does not permit us to consider such frustrations without concrete, particularized, and non-hypothetical allegations that are capable of full resolution by this court,” Jones said.
“The present lawsuit expresses real and significant constitutional concerns – which we do not take lightly. But some legal actions, no matter how well-intended and no matter how passionately litigated, cannot be adjudged by a court of limited jurisdiction. This is one of those cases. Because plaintiffs have not suffered an injury sufficient to warrant judicial review, we must deny the motion.”
Due to the plaintiffs continuing to suffer irreparable harm in not receiving the requested injunction as a matter of law, the plaintiffs have appealed the denial to the Third Circuit, where it remains pending.
One day prior to the federal court ruling denying the injunction request, Wolf announced strong COVID-19 containment measures, including the prohibition of indoor dining at restaurants, which will last until Jan. 4.
Since the pandemic began, Pennsylvania has reported 529,335 cases of COVID-19, with the virus causing over 12,000 deaths statewide.
For counts of the right of association under the 1st and 14th Amendments, due process under the 14th Amendment, equal protection under the 14th Amendment, the guarantee clause under Article IV, Section 4 of the U.S. Constitution, the right to privacy/due process under the 14th Amendment, unlawful search and seizure under the 4th Amendment and freedom of speech under the 1st Amendment, the plaintiffs are seeking a declaration that the defendants violated plaintiffs’ fundamental constitutional rights as set forth in this complaint; an injunction to enjoin defendants’ enforcement of the challenged restrictions as set forth in this complaint; to award plaintiffs their reasonable attorneys’ fees, costs, and expense, and the granting of such other and further relief as this Court should find just and proper.
The plaintiffs are represented by Andrea L. Shaw of the Law Offices of Andrew H. Shaw in Carlisle, plus Robert J. Muise of the American Freedom Law Center, in Ann Arbor, Mich.
The defendants are represented by Karen Mascio Romano, Keli M. Neary and Nicole J. Boland of the Pennsylvania Attorney General’s Office, in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 1:20-cv-01601
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com