501 WASHINGTON AVENUE MONTGOMERY, AL 36130 (334) 242-7300 WWW.AGO.ALABAMA.GOV
S
TATE OF
A
LABAMA
O
FFICE OF THE
A
TTORNEY
G
ENERAL
STEVE MARSHALL
ATTORNEY GENERAL
April 30, 2020 Dear Mayor Woodfin and Members of the Birmingham City Council, Over the past 48-hours,
my Office’s
COVID-19 Response Teams have been
overwhelmed with calls related to the City’s ordinance requiring citizens to wear
masks. I write to ask that you reconsider your intention to enforce the ordinance with fines or jail time. Throughout this pandemic, we have endeavored to give law enforcement the best possible guidance regarding the criminal enforcement of state and local health orders/ordinances. Our advice has been consistent
—
there is no doubt that law enforcement has the lawful authority to enforce these orders, but in these unprecedented times, restraint must be exercised, and arrests should be reserved for extraordinary circumstances. With your announcement that the mask requirement will be enforced, I am concerned that Birmingham law enforcement officers are going to be placed in a very difficult position and may feel pressure to divert limited manpower and resources away from more direct threats to public safety.
Furthermore, the ordinance’s requirement that face coverings or masks be worn “at all times . . . when in public places within the City of Birmingham” is
excessive in relation to the recommendation given by the Centers for Disease
Control (“CDC”), on which
the ordinance purports to rely. The ordinance
accurately recites that the “CDC recommends wearing cloth face coverings in
public settings
where other social distancing measures are difficult to maintain
, for example, grocery stores, pharmacies and other businesses people must visit to acquire goods and services necessary to maintain their comfort and well-
being.”
1
Yet, the ordinance requires people to wear face coverings or masks “at all times . . . when in public places,” which the ordinance defines as “[
a]ny place other
than an individual’s home or personal vehicle.” The ordinance does not limit the
duty to wear a face covering or mask to only those public settings where social distancing is difficult to maintain. As a result, the enforcement of this ordinance in some instances could prove to be unconstitutional. For example, if an individual were fined or arrested for not wearing a mask in an office building where he or she was working alone
—
which would appear to be a violation of an ordinance
—
the City would likely not be able to show that the required wearing of a mask in that context was sufficiently related to a valid public health purpose.
1
The CDC’s recommendations on wearing face masks can be
found at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html
.
My objective in writing you, therefore, is two-fold: 1) to ask that you reconsider enforcement of this ordinance and ensure that law enforcement has clear guidance from you in this regard; and 2) to raise your awareness of the high volume of constitutional questions and concerns that my Office has received in the last day and a half, in order to give you the best opportunity to protect your City against unnecessary litigation. This request is submitted with due respect for both your authority and your valid concerns about the unique health threat that your residents are facing. Sincerely, Steve Marshall Attorney General