England condemned the lawless executive power in Moscow

from Ranch v. City of MoscowAs decided last week by Judge Morrison England (D. Idaho):

Plaintiffs Gabriel Wrench, Shawn Bohnet and Rachel Bohnet … commenced this action against defendants in Moscow …, a political subdivision of the State of Idaho. [and Moscow officials] … the alleged constitutional injury was sustained when the plaintiffs participated in a September 2020 protest and religious gathering…

On March 20, 2020, in the early stages of the COVID-19 pandemic, the Moscow City Council approved an “Emergency Powers Ordinance” … granting the mayor the power to enact emergency public health orders to combat the spread of the virus. However, this Ordinance specifically excludes the following:

Unless otherwise specifically prohibited by a public health emergency order duly enacted by the Mayor, the following activities shall be exempt from the scope of such order: 1. Speech, press, assembly, and any and all expressive and cooperative activities protected by the United States and Idaho Constitutions; /or religious activities.

On July 1, 2020, pursuant to ordinance, the Mayor issued revised Public Health Emergency Order No. 20-03. The order provided in relevant part that “[e]Most persons in the City of Moscow” must: (1) “wear a face covering that covers their nose and mouth when in an indoor or outdoor public setting where 6-foot physical distance cannot be maintained with non-households. members”; or (2) “must, whenever possible, maintain a 6-foot physical distance from family members when in a place open to the public.” Violation of the order was a misdemeanor.

When the ordinance was enacted, the City believed it applied to religious or expressive activities or, more generally, to every person in the City who engaged in all activities in a public setting. Somehow, every single city official involved ignored the exclusionary language included in the ordinance requiring the mayor to make clear that the ordinance also applies to all constitutionally protected expressive and cooperative activities.

Accordingly, when city officials were made aware in September 2020 that a local church was planning to protest the ordinance and hold a “psaltery” outside in the City Hall parking lot, they began preparing to enforce the ordinance themselves. In anticipation of the event, the city painted dots six feet apart in that parking lot so attendees could make sure they were keeping proper distance if they chose not to wear a mask. Law enforcement officials were instructed to exercise their discretion in enforcing the order if they observe any violations as well as how to properly write and issue citations.

The day of the event arrived, and all three plaintiffs attended the protest. They refused to wear masks or physically distance themselves from attendees who were not members of the same family. They refused (at least initially) to provide identification to officials. Three plaintiffs were peacefully arrested and cited for violating the order. The Bohnets were also cited for resisting or obstructing an officer, based on their refusal to identify themselves.

A local magistrate judge later determined probable cause and upheld the arrest and citations after providing a probable cause affidavit that referred only to the warrant and not the ordinance, and defendant Warner chose to proceed with plaintiff’s trial. Plaintiffs then moved to dismiss all claims on the ground that their conduct was excluded from the reach of the injunction in light of the exclusions set forth in the ordinance.

In response, the City itself moved to dismiss the criminal charges, and the state court granted that motion, but not before spending hundreds of thousands of dollars in plaintiffs’ legal defense fees. The City has since invalidated the ordinance section citing applicable exclusions and vacated that ordinance as well.

Meanwhile, the plaintiffs have commenced this action by asserting claims for violation of their First Amendment rights, including freedom of speech, expressive association, petition to the government, and free exercise of religion, which are also allegedly protected under Idaho state law.

Defendants’ motion initially turns on the underlying ground that the Ordinance and Order were ambiguous as to whether they reached Plaintiffs’ conduct. It follows, according to defendants, that a substantive First Amendment analysis is warranted and should be resolved in their favor.

That is simply wrong. The City Code could not have been clearer: under a plain reading of the ordinance in conjunction with the ordinance, all expressive activity was excluded from masking or distancing orders because such conduct was not expressly addressed in the ordinance. In other words, during the relevant period, participants in expressive or cooperative behavior did not require masking or distancing. Plaintiffs should not have been arrested in the first place, and the constitutionality of what the City thought was the code is irrelevant.

Absent a violation of the order or any other law, it is also not clear what justification the plaintiffs had for impeaching them to identify themselves or obstruct them. All of the aforementioned current problems for the city. Therefore, the magistrate judge’s probable cause finding was based on incomplete information, i.e. the magistrate judge was not provided with any reference to the ordinance and instead cited only the ordinance as the basis for plaintiffs’ arrest. Prosecutors’ charging decisions were similarly flawed.

That said, the plaintiffs’ claims are not without their own problems. For example, the court failed to see how individual officers could be held liable for constitutional violations when they were clearly briefed by experts on the applicable law and advised that the order should be enforced in the event the plaintiffs. Since the order is no longer effective, and since the plaintiff should not have been arrested in the first place, it is also questionable whether the plaintiff can show any entitlement to declaratory or injunctive relief.

Regardless, and in any event, that defendants’ motion is granted [for Summary Judgment] Relying almost entirely on the flawed legal theory that the ordinance and order could be construed to include plaintiff’s conduct, the court declined to consider the arguments therein and the motion was denied without prejudice. Before refiling any motions, however, this Court directs the parties to attend a settlement conference.

Courts generally prefer to let the parties direct their own case, but this is one of the most novel situations the court faces. Given that the plaintiff was wrongfully arrested, the City indisputably erred in interpreting its own code, the City consequently misadvised its officers on the application of the code, and the plaintiffs are so far justified in their request for damages, this case need not look inside a courtroom. Everyone concerned should be prepared to step back from their respective positions and negotiate in good faith….

Congratulations Eric G. Kardal and William F. Mohrman (Mohrman, Kardal & Erickson, PA) and Michael Jacks (Jacks Law Office), who represent the plaintiffs.