Fresno anti-mask protesters don’t have federal law behind them, legal experts say
Legal experts say anti-mask protesters, who have caused several stores to shut down recently, are on shaky legal ground when arguing federal law protects them against wearing a cloth mask inside of a business.
For the last several weeks a group of protesters have descended on several retailers in Fresno to challenge the policy of requiring a mask before being allowed to shop. The business owners and managers have said they are merely abiding by a statewide mandate requiring face masks as a way to limit the spread of the highly contagious coronavirus.
To date, the disease has ravaged the state and has claimed the lives of 37,305 people, according to Johns Hopkins University statistics.
But protests against wearing a mask continue in Fresno. And leading the charge is real estate agent Ben Martin, who uses social media to post videos of he and his mask-less followers defying the rules.
When contacted by The Fresno Bee on Tuesday, Martin said he would call when he was available. He did not.
Last weekend, Martin and about a dozen protesters showed up at Total Wine & More and Sprouts Farmers Market in northeast Fresno. At Sprouts, the protesters got into a shouting match with several customers who got angry that the store was closed when the group arrived.
At Total Wine & More, the group gleefully marched into the store, many with their cell phone cameras on, documenting the moment an employee tells Martin and the others they need to wear a mask. Martin refuses and begins to recite why he doesn’t have to wear a mask. In a video posted to his Facebook page, Martin warns the employee he could be in trouble for asking him to do so.
“Your employer is putting you in a position of being civilly sued for discrimination and also put in jail for discrimination,” Martin said loudly inside the store.
Citing ADA, Civil Rights Act
One of the arguments made by Martin is that federal law prohibits rules requiring masks.. His group and others maintain they are protected by the Americans with Disabilities Act and also the federal Civil Rights Act, two far-reaching laws that protect against discrimination based on disability and discrimination based on race, color, religion, sex, national origin, sexual orientation and gender identity.
Legal experts said the group’s belief that they are protected by superseding federal authority is overreaching and wrong.
“The coronavirus pandemic is the kind of extraordinary circumstance when the public good outweighs individual inconvenience,” said Brandon V. Stracener, senior research fellow, California Constitution Center at UC Berkeley School of Law. “During a viral plague, the state can limit otherwise sacrosanct constitutional rights when those limits are necessary to defend public health. And until public safety is restored, some individual civil liberties may yield to California’s inherent police powers to combat a pandemic.”
Stracener said the ADA also does not provide an avenue for someone who does not want to comply with wearing a mask. Although there are medical exceptions, Stracener said; for instance, a business must make reasonable accommodations for the person with a disability.
That could include ordering your groceries online or giving your list to a store employee to gather your items.
“It does not mean allowing someone to enter your business without a mask to potentially infect your employees and other people,” Stracener said. “It is unfortunate that this has become a wedge political issue. People feel there is a side they have to defend and they are not looking at the community-minded perspective of: ‘I care about my neighbor and I don’t want to make them sick.’”
Threat to employees
Stracener said Martin can always take his case to court to challenge any legitimate ADA claims he has or other channels, such as the Equal Employment Opportunity Commission.
“But, Martin’s threat to store employees about possible arrest is not based on sound legal theory or practice — the intent of that threat is to discourage the employee from taking proper action to secure the safety of other employees and customers from those who won’t take the barest of safety precautions in the midst of a global pandemic,” Stracener said.
Longtime Fresno attorney Anthony P. Capozzi said he also sees no legal basis that gives the protesters the option to not wear a mask in a business during a public health crisis.
“The mask is being required by the state to protect the general public and those working in businesses,” Capozzi said. “I just don’t see what gives them the legal authority to say they don’t need to wear a mask.”
Attorney Larry Donaldson, who represents the Fresno Police Department, was at the grocery store on Saturday answering any questions the officers had about the protest. Donaldson said that while he is not a constitutional law expert he doubted the protesters were on solid legal ground.
“I’ll continue to look into this issue, but my assessment is he (Martin) is probably not correct,” Donaldson said.
This story was originally published January 27, 2021 at 12:45 PM.
