Governor installs mask order

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Law enforcement not the enforcing agents of mandate

 

By David Timmerman, Correne Martin and Steve Prestegard

 

Wisconsin Gov. Tony Evers declared a health emergency, ordering everyone in the state to wear a face covering when indoors anywhere outside their home where they’re unable to socially distance. The mandate started Aug. 1 and goes until Sept. 28.

The rollout, and who was expected to enforce it, led to local law enforcement announcing it was not under their purview.

Evers makes the call

Last Thursday afternoon, Gov. Evers made the announcement putting the mask order in place, unless rescinded or extended.

“While our local health departments have been doing a heck of a job responding to this pandemic in our communities, the fact of the matter is, this virus doesn’t care about any town, city, or county boundary, and we need a statewide approach to get Wisconsin back on track,” said Gov. Evers. “We’ve said all along that we’re going to let science and public health experts be our guide in responding to this pandemic, and we know that masks and face coverings will save lives. While I know emotions are high when it comes to wearing face coverings in public, my job as governor is to put people first and to do what’s best for the people of our state, so that’s what I am going to do.”

“The statewide effort to combat this virus worked before,” said Evers, but “the tide has turned” in a “surge of new cases.

The order requires anyone 5 or older to wear a face covering in a public “enclosed space.” Exceptions include eating, drinking, sleeping, swimming or working as a lifeguard; communicating with people hard of hearing when “communication cannot be achieved through other means;” “a service that requires the temporary removal of the face covering,” including dentistry; work for which the face mask would endanger safety; to confirm an individual’s identity in such places as financial institutions; or where banned by federal or state law. 

Another exception includes “while an individual is giving a presentation for an audience … when actively speaking.”

Exceptions also include people with “trouble breathing;” sensory sensitivities to wearing a face covering; and those who are unconscious, incapacitated or “otherwise unable to remove the face covering without assistance.”

Department of Health Services secretary-designee Andrea Palm said Thursday, the DHS Badger Bounce Back COVID-19 Case Indicators, which classify counties as high-, moderate- or low-risk based on COVID activity over the previous two weeks, classified 61 of the state’s 72 counties as high-risk, and only two as low-risk. 

One possible reason for the order may be that there was a surge in state cases in July, after a drop in June. The seven-day daily average for the state dropped to under 300 in mid-June after the then-high of 420 at the end of May, before shooting up to 844 at the end of July.

Keeping track of community spread is going to diminish as federal funding for community testing sites in the state is ending within the week. Originally slated to have ended in July, the Trump Administration extended funding into August.

Lacking clarity causes issues

During the announcement for the mask order, there was a lack of detail on how the order would be enforced, and who was expected to do so. This left county and municipal agencies scrambling for what their duty was in this order.

By Friday morning, Grant County Health Director Jeff Kindrai had more direction from state and legal counsel, and the answer was that for local agencies, their abilities to enforce the order were very limited.

“Our intent would be to educate and request compliance first,” Kindrai stated. “After discussion with state and local legal counsel, at this time, we do not feel that citations can be issued.”

He continued, “however, violations can be investigated and referred to the District Attorney for consideration for prosecution. I anticipate that this will be reserved for blatant violations after other means such as education are unsuccessful.”

One day after Evers made the order announcement, and less-than-one-day before it was to go into effect, the state gave more details on the order.

Wisconsin Attorney General Josh Kaul informed local officials with his opinion: “unlike the ‘Safer at Home’ order, violations of the Governor’s face covering order, standing alone, are not subject to criminal penalty.” 

Instead, an intentional violation is enforceable through a civil forfeiture of no more than $200. Such a violation may be reported to a local public health official for follow-up or to a district attorney, who has statutory authority under Wis. Stat. § 978.05(2) to prosecute state forfeiture actions, according to Kaul’s formal opinion.

But beyond a direct fine or suit, Kindrai said not complying with the mask order can have a significant impact on a business. He pointed out that many businesses have had to close due to spread among employees or patrons, and “the damage to our economy has been bad enough already. It increases the chances of your employees getting sick and exposing their families, and if that is not bad enough, it increases health care costs and health insurance premiums and may put a strain on our health care system for others that need it.”

Kindrai said area counties have seen increased mask usage over the past months,” Kindrai answered. There are 32 states that passed face covering regulations, and President Trump has increased his support on wearing a mask when not being able to socially distance. 

“The goal is to slow the spread of illness, not to prosecute people,” he said.

Kindrai went on to say that research indicates if face coverings are worn, it is 5.6 times less likely to spread COVID-19. 

Law enforcement jump into the fray

How was Evers’ mandate to be enforced? Area law enforcement officials jumped out to say…not them.

Grant County Sheriff Nate Dreckman released a statement Thursday evening: 

“As the sheriff, I am granted broad discretion in the enforcement of laws and will not take any action on this order as the sheriff’s office doesn’t have the resources, nor is it clear who has actual enforcement power,” Dreckman said in the release. 

He pointed out that people should not take his statement as negating the effectiveness of mask-wearing, and to listen to advice from the health department.

Dreckman said responses from district attorneys from across the state placed the enforcement on the health department.

Dreckman, as well as Crawford County Sheriff Dale McCullick, explained that their officers would only respond  to calls from businesses having problems with individuals when trying to enforce their own mask orders.

McCullick stated, “We will respond to complaints from businesses and private residences who require a face covering to enter their premises and an individual refuses to either put on a face mask or leave.

“Please do not call the Crawford County Sheriff’s Department (for this reason) unless you are the owner/manager of a business or residence.”

Prairie du Chien Police Chief Kyle Teynor said, “I support wearing masks.  I also support legislation that is enforceable.  I have told my common council that if they are considering similar mandates, local ordinances should be brought to a vote, the public should be allowed comment and proper notification should take place. The questions originate in Madison and our state legislature and Governor’s office need to work together to come up with a comprehensive plan.

“Again, I support the use of masks and I support our local public healths efforts to manage the impact of this pandemic on our community.”

Teynor added, there have been very few days since March 15 that local law enforcement administrators haven’t met with public health—sometimes twice a day—in an effort to support them and communicate a mutual understanding of goals.  He expects that to continue.

David Timmerman is the editor of the Grant County Herald Independent, in Lancaster. Steve Prestegard is the editor of the Platteville Journal. Both are sister papers to the Courier Press—all Morris Newspaper publications.

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