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Anti-maskers fighting Pennsylvania mandates face steep court climb

Mootness may doom a challenge to Pennsylvania's mandate for facial coverings and contract tracing in the coronavirus pandemic, despite arguments from one lawyer that “the mask has become a symbol of government tyranny.”

PHILADELPHIA (CN) — The Third Circuit looked unlikely Thursday to slap an injunction against coronavirus-safety measures that expired over the summer.

Chad Parker and Mark Redman, along with their wives, challenged the mandates in court this time last year and now seek a reversal after facing defeat. In a December ruling, U.S. District Judge John E. Jones III highlighted how Covid-19 had claimed 12,066 lives in Pennsylvania alone, while leaving more than half a million sickened.

In 2021, those numbers have continued to climb, but so too has acceptance of the vaccines found to prevent severe infection of the novel virus. Meanwhile, Pennsylvania voters passed ballot questions this spring that curtailed their governor's power to make such emergency declarations in the future.

Republicans control the Legislature in the Keystone State, but last year's mask mandate and contact-tracing orders came from Governor Tom Wolf, a Democrat.

Sean Kirkpatrick, the senior deputy attorney general representing the state, told a three-judge panel at oral arguments Thursday that the case is incontrovertibly moot given that mask rules expired in the summer and are unlikely to come up again thanks to the new legislative checks.

“We have three vaccines that are very effective and widely available,” he said. “The governor's authority to declare that emergency declarations has been cabined by amendments to the Pennsylvania Constitution, so frankly I don't know the basis for my friend saying the governor can reinstate a mandate.”

Representing the Parkers and the Redmans, attorney Robert Muse with the firm Levi Firestone insisted that the threat his clients face is as pressing as ever. 

“They can always go back to their own ways," Muse said of the state. "There's nothing that's prohibiting the health department or the governor from tomorrow reinstating the mandate. In fact we know from the way these goalposts keep changing."

As noted by Kirkpatrick, however, the possibility of unconstitutional harm must be a certainty to qualify for court intervention.

“I want to remind everyone that this is a motion for preliminary injunction. An injunction, especially a preliminary injunction, is a scalpel, not a sword,” Kirkpatrick said. “So, what is at issue is whether the District Court abused its discretion in denying a specific request to enjoin certain orders.”

As for the risk of Muse's clients hearing from someone involved with tracing the contacts of people exposed to the virus, “there is no enforcement mechanism to force someone to answer the phone,” Kirkpatrick noted.

“In order to have standing there has to be a likelihood that the injury will reoccur … a Rube Goldberg-like series of dominoes has to fall in order for the Parker family or the Redman family to experience contract tracing again,” Kirkpatrick continued.

Last year's complaint noted that the Parkers did hear from contact tracing last year after the family patriarch returned to work despite testing positive for Covid-19 one day earlier.

The Parkers note that they were homeschooling their six children before and during the pandemic but that contract tracing forced them to jettison plans to send their oldest to school in person last year. The Redmans have concerns about contact tracing as well, holding up the program as the reason why they did not send their teenage twins to the classroom last year.

Explaining this position Thursday, Muse explained how the Parkers got a threatening letter from the state saying that they might have to deal with law enforcement if they didn’t follow the quarantine orders after the positive diagnosis.

“If I'm a private person, I'm looking at that letter and I'm saying the law enforcement's going to go to this is, this is a direct threat and this wasn't a suggestion. The language of the letter is pretty harsh. It does come with penalties,” Muse said.

Kirkpatrick emphasized the letter from contact tracing looks pretty different today. The one that the Parkers got came in June 2020 “while this disease was still being figured out,” using CDC guidelines, the lawyer added.

U.S. Circuit Judge Michael Chagares asked Muse to respond to the state's argument about the duties of private individuals when it comes to dealing with contact tracing.

“The letter is a piece of paper, you don't have to follow it. What's your response that, to the point you don't have to answer the phone?” the George W. Bush appointee asked.

“You are mandated under the public health code to abide by the terms of that letter, irrespective of whether or not they go to court,” Muse said.

“The fact of the threat is it alone, and you have to stay six feet from a family member, under this letter subject to law enforcement enforcing that, that's heavy handed," the lawyer continued. "My client has standing, the court should issue the injunction."

Muse nonetheless stipulated that no one in Pennsylvania has suffered any legal fallout to date for violating the terms of a contact-tracing letter.

Suggesting the threat of selective enforcement, however, Muse argued that Governor Wolf acted in defiance of his own stay-at-home order in June 2020 when he marched at a Black Lives Matters protest, while wearing a mask, alongside thousands of others, some of whom were not wearing masks.

“Where's the science that says that's OK, but it's not OK to protest the mask mandate by not wearing one?” Muse said. “There's no science on that at all. That is is pure political politics. The mask has become the political symbol of this entire pandemic.”

U.S. Circuit Judge Paul Matey, a Trump appointee, offered to "unpack that argument."

"Let's assume your client perceives it as a message of tyranny or oppression," Matey said. "Is that you have to show that that's what the government intends the message to be perceived as? Or is it simply enough that someone sincerely ascertains the message as having that content?”

Muse replied that it's from the perspective of the one on the other end. “You're forcing them to wear this symbol… this is not the equivalent of a seatbelt,” he continued.

U.S. Circuit Judge Thomas Hardiman, a George W. Bush appointee, rounded out the panel Thursday.

Last year's ruling from Judge Jones noted that the courts have a duty to tackle justiciable constitutional violations, during proclaimed emergencies or otherwise.

“We are all fatigued ... and, indeed, many of us are weary of continued mitigation efforts," he wrote. "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.”

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