Governor Andrew Cuomo confused all of New York law enforcement on Saturday by ordering police to enforce his mask order. Anyone caught not socially distancing will be issued a $1000 fine.
“I’ve said to law enforcement all across the state: Enforce the mask executive order,” Cuomo told reporters on Saturday in response to a protest, where people attended without masks to demanded that the state be reopened. “It’s reckless, it’s irresponsible and it’s not about your life, it’s about other people’s lives,” he said.
It's disrespectful to our frontline workers – and to your neighbors – not to wear a mask in public when you can't socially distance.
Why? Because you don't wear a mask to protect yourself. You wear one to protect others.
— Andrew Cuomo (@NYGovCuomo) May 4, 2020
It seems the only police in the state that got that memo are the NYPD and they aren’t divulging under what authority or legal code they can issue such fines. PJ Media reached out to sheriff’s offices in Lawrence County, Ontario County, Monroe County, and several local police departments in upstate New York. None of them had received any guidance or orders to enforce the edicts.
On Sunday, the New York Post reported that 51 citations had been issued in New York City for improper social distancing. But considering there is no law that tells us what social distancing is, the question remains: by what authority did they do so? Commissioner Shea was quoted saying, “In parks specifically yesterday, we issued 43 summonses,” but Shea’s office refused to tell PJ Media what code was placed on those citations or how they were written. Instead of answering that simple question, we were told to submit a FOIA request, which we did. However, due to COVID-19, nothing is open, no one is working, and the chances that anyone will respond to that request in a timely fashion are slim.
A couple days after saying he ordered police to fine New Yorker who don't wear masks @NYGovCuomo showed up in Rochester without a mask. I'll wear one when he does. How about that? pic.twitter.com/iNeagOmYof
— #BelieveEvidence (@MeganFoxWriter) May 5, 2020
Buffalo police told PJ Media they have been encouraging passive use of parks but have not issued any citations for social distancing or not wearing masks. The Rochester Police Union, Locust Club, also said they’ve seen no direction or guidance to enforce such orders. The Monroe County Sheriff’s office issued a statement that said in part, “Wearing a mask in public when unable to maintain the 6 feet social distancing is a NYS Governor’s Executive Order, there is not a local enforcement component for the Executive Order currently.” Reading between the lines, that means there’s no law on the books allowing police to ticket anyone for not wearing a mask or keeping six feet away from others. It begs the question of how the NYPD managed to write those 51 tickets without a lawful statute on the books. Unfortunately, the NYPD wouldn’t answer that question.
A search of the governor’s executive orders pulled up only one that mentions social distancing and it’s not very specific. The order, called “New York State on Pause,” describes 10 guidelines put into practice on March 22 that include staying six feet away from other people, but how law-enforcement could fine people for not doing so is a mystery.
Non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) are canceled or postponed at this time;
Any concentration of individuals outside their home must be limited to workers providing essential services and social distancing should be practiced …at least six feet from others;
The legal problems with enforcing these types of orders are vast. Chad Hummel of Hummel Law in Monroe County would love to get his hands on a social distancing violation case. “The vagueness doctrine under the U.S. Constitution says, ‘In American Constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand or if a term cannot be strictly defined and is not defined anywhere in such law, thus violating the vagueness doctrine.'” Hummel continued, “If a statute can be tossed aside by a judge because it’s vague, imagine what a judge would do to an executive order that was handed down at a press conference?”
The governor has been extremely contradictory when talking about enforcement. When the mask order came down in April, Cuomo said on television that he would not enforce it unless he didn’t get broad compliance. What defines broad? In another statement, he said that lockdown is voluntary and that if 19 million people wanted to leave their homes, they couldn’t be stopped. “That’s your legislative history that defines the intent of the order,” said Hummel. “In my opening and closing argument, I would play that clip. I would put the executive order up on a monitor and then I would play a clip of the governor saying ‘I’m not going to enforce this order I just wrote.’ What’s more vague than that?” Hummel doesn’t pull any punches when it comes to his opinion of Cuomo’s latest overreach. “He’s a big-talking buffoon.”
Lawyers aren’t the only ones who think that the direction is too vague and the governor is to blame. The police aren’t happy about playing the part of Cuomo’s hall monitors either.
“The cowards who run this city have given us nothing but vague guidelines and mixed messages…Nobody has a right to interfere with a police action. But now that the inevitable backlash has arrived, they are once again throwing us under the bus”https://t.co/NKWOnak4xu
— NYC PBA (@NYCPBA) May 5, 2020
The question should be asked until answered. Under what authority and/or statute does the state of New York presume to tell people how far apart to stand and what to wear under pain of punishment? And if there is none, then they should definitely stop doing whatever it is they think they’re doing and get back to putting real criminals in jail.
Thank you for helping stop the spread! Our officers will continue to be out there making sure all NYers are safe.
— NYPD NEWS (@NYPDnews) May 3, 2020
Megan Fox is the author of “Believe Evidence; The Death of Due Process from Salome to #MeToo,” and host of The Fringe podcast. Follow on Twitter @MeganFoxWriter
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