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Monday, July 13, 2020

The Mask Mandate

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Does Mayor Perkins have the authority?

Mayor Perkins has mandated that nearly everyone in the city of Shreveport must wear a mask and maintain social distancing whenever entering any business (unless you meet one of the limited exemptions). Mayor Perkins claims his authority under La. R.S. 29:737 to declare a public health emergency, but this statute does not appear to allow Mayor Perkins to create or define a crime (such as not wearing a mask) or impose penalties (such as having your business water service shut off or your business license revoked) for any business that violates his mask mandate.

So, when Mayor Perkins announces that enforcement of his mask mandate will be “handled by the Shreveport Police Department,” what does that mean, exactly? Does it mean using the powers of arrest and criminal prosecution? Is there any due process or a hearing before a court of law?

Who decides if your water will be cut off or your business will be closed? Will there be warnings first, or will enforcement be immediate? Even those who are cited for not wearing a seatbelt are provided a right to a trial, the right to confront their accusers, the right to subpoena witnesses in their defense, and the right to have a lawyer represent them.

But unfortunately, none of the answers to those questions were addressed in Mayor Perkins’ mask mandate. Nor did it provide any basic protection of due process and fairness under the law.

Even the governor does not have the authority to make up crimes or penalties for anyone who violates his own declaration of a public health emergency, under La. R.S. 29:724(E).

So, if the governor doesn’t have the authority to do this, then what makes Mayor Perkins believe he has the authority to shut off the water supply to a businesses or revoke “a business’s ability to remain open”? Or even require enforcement “to be handled by the Shreveport Police Department”?

In fact, it was all so questionable that Caddo District Judge Craig Marcotte signed a temporary restraining order a few days ago ordering Mayor Perkins to refrain from enforcing his mask mandate because doing so “would put the plaintiffs at significant risk of irreparable damage.”

But in any case, any authority that may be granted to him under La. R.S. 29:737 is not unlimited. The Louisiana Legislature understood this fact so intently that the first sentence of this statute conditions the authority of a mayor to declare a public health emergency based on not diminishing the “rights guaranteed to all persons under the Declaration of Rights of the Louisiana Constitution or the Bill of authority for the Commission to hire their own “law enforcement, regulatory and private agencies to help ensure compliance” with the mask ordinance. So, now we could have a roving band of quasi-law enforcement officers spying, following and intimidating the same local businesses who pay the lion’s share of taxes and provide jobs to our citizens.

So, what Mayor Perkins has done with his mask mandate appears to violate state law, insofar as it creates punishments and penalties for violating his mask mandate, when the law seemingly doesn’t allow him to do such. And his mask mandate also appears to violate both the Louisiana Constitution and the United States Constitution, because the enforcement of his mandates diminishes the rights guaranteed to all persons, such as due process.

And the Commission now has gone and done the same.

You see, it’s not whether or not the wearing of a mask is good or bad or whether it’s a minor inconvenience or not; it’s whether the assertion of power by an elected official to compel you to do so violates the law.

Because we are a nation of laws, not of men.

Louis R. Avallone is a Shreveport businessman, attorney and author of “Bright Spots, Big Country, What Makes America Great.” He is also a former aide to U.S. Representative Jim McCrery and editor of The Caddo Republican. His columns have appeared regularly in 318 Forum since 2007. Follow him on Facebook, on Twitter @louisravallone or by e-mail at louisavallone@mac.com, and on American Ground Radio at 101.7FM and 710 AM, weeknights from 6 - 7 p.m., and streaming live on keelnews.com.


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