Mask Mandate Challenged

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Mask Mandate Challenged

A pair of plastic surgeons have filed a lawsuit seeking to nullify the Board of Health’s requirement to wear face coverings in public buildings.

by scott barker • July 31, 2020

Two Knoxville plastic surgeons have filed a lawsuit against Knox County and the county’s Board of Health alleging their rights have been violated by the mandate to wear masks in public buildings.

One big hurdle the lawsuit faces is 115 years of legal precedent.

The complaint, filed in Chancery Court on July 24 by lawyer Daniel Herrera, doesn’t address how, exactly, the mandate violates the physicians’ rights but does raise questions about data the Board of Health used to justify its order.

Drs. Steven J. Smith and Jason J. Hall claim the county’s mask mandate, which was passed by the Board of Health on July 1 and went into effect two days later, violates their rights. The doctors are asking that the court nullify the Board of Health’s action.

The complaint specifies Knox County, the Knox County Health Department, the Board of Health, Health Department Director Dr. Martha Buchanan and Board of Health Chair Dr. Jack Gotcher as defendants. 

The lawsuit cites Article I, Section I of the Tennessee State Constitution, which affirms that citizens have the right to “alter, reform, or abolish the government in such manner as they may think proper.” 

The lawsuit goes on to say that the plastic surgeons have the right to “participate in reform, dissent, and other peaceful protests against government actions.” 

The complaint doesn’t, however, explain how the mandate prevents the doctors from dissent or protest. 

Herrera said Thursday evening he would have to get permission from his clients to comment on the litigation. Neither Knox County Mayor Glenn Jacobs nor the Knox County Health Department would comment on the lawsuit.

The lawsuit also claims the Board of Health relied on “faulty data” to arrive at an “arbitrary and capricious” conclusion to institute the mandate. Specifically, the lawsuit points to antibody tests, which are not used for diagnostic purposes, and one type of diagnostic test that has reported false positive results.

There are two types of diagnostic tests for the novel coronavirus — a molecular test and an antigen test. Molecular tests, which typically take days or weeks for confirmation, are highly accurate, according to the U.S. Food and Drug Administration. Antigen tests take less than a day and are accurate when positive results come in, but the FDA says negative results often need to be confirmed with a molecular test.

Since many people who carry the novel coronavirus are asymptomatic, a test is often the only way to know they’ve been infected.

Most tests are conducted by private providers, and it’s not clear how many local tests are molecular and how many are antigen tests. The Knox County Health Department, which uses molecular tests, performs about 16 percent of all tests in the county.

The Health Department treats all positive tests as positive cases, even if subsequent tests are negative. Charity Menefee, director of communicable and environmental disease and emergency preparedness for the Health Department, said on Wednesday that it follows guidelines set by the state Department of Health.

“If you have a positive test and a negative test, we treat that as a positive no matter what,” she said. “There’s no way to know if the positive is right or the negative is right at that point in time.”

One big hurdle the lawsuit faces is 115 years of legal precedent. The U.S. Supreme Court ruled in the 1905 case Jacobson v. Massachusetts that governments could restrict the rights of citizens during public health crises. 

The Jacobson case involved compulsory smallpox vaccines, but its principles have been used in similar health cases to this day. Most recently, the U.S. 5th Circuit Court of Appeals relied on the Jacobson ruling to uphold a Texas restriction on abortion as a nonessential medical procedure during the pandemic.

Tennessee Attorney General Herbert Slatery III, at the request of Knox County District Attorney General Charme Allen, issued an opinion last week — on July 24, the same day the lawsuit was filed — stating that mask mandates are constitutionally defensible, depending on how they are crafted.

Quoting the Jacobson decision, Slatery wrote, “For more than a century, the United States Supreme Court has recognized that ‘a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.’”

The courts use a two-pronged test to see if measures are allowed by the Jacobson ruling — it must have a “real or substantial relation” to the health crisis and it can’t be arbitrary or unreasonable, Slattery wrote.

Herrera, a graduate of Lincoln Memorial University’s Duncan School of Law, is a newly minted lawyer, taking the oath as an officer of the court on April 22. He’s a conservative activist — last year he threatened litigation over Recode Knoxville, the City of Knoxville’s overhaul of its zoning code. 

Herrera is one of County Mayor Glenn Jacobs’ appointees to the Knox County Charter Review Committee, and Jacobs cast the lone dissenting vote on the Board of Health’s mask mandate. Herrera said he did not discuss the lawsuit with the mayor before filing it, and Mike Donila, Jacobs’ communications director, said the lawsuit took the mayor by surprise.

Jacobs informed the Board of Health of the lawsuit at its meeting on Wednesday. He called for a meeting in executive session to discuss the lawsuit — a private meeting with lawyers that is exempt from the Public Meetings Act.