From Rench v. City of Moscow, decided last week by Judge Morrison England (D. Idaho):
Plaintiffs Gabriel Rench, Sean Bohnet, and Rachel Bohnet … initiated this action against Defendants City of Moscow …, a political subdivision of the State of Idaho [and Moscow officials] … for constitutional injuries purportedly sustained when Plaintiffs participated in a September 2020 protest and religious gathering….
On March 20, 2020, during the initial stages of the COVID-19 pandemic, the Moscow City Council approved an "Emergency Powers Ordinance," … granting the mayor the authority to enact emergency public health orders to combat the spread of the virus. That Ordinance, however, specifically excluded the following:
Unless otherwise specifically prohibited by a Public Health Emergency Order duly enacted by the Mayor, the following activities shall be exempt from the scope of such order: 1. Any and all expressive and associative activity that is protected by the United States and Idaho Constitutions, including speech, press, assembly, and/or religious activity.
On July 1, 2020, pursuant to the Ordinance, the mayor enacted Amended Public Health Emergency Order No. 20-03 …. The Order provided, in pertinent part, that "[e]very person in the city of Moscow" must either: (1) "wear a face covering that covers their nose and mouth when in any indoor or outdoor public setting where the 6-foot physical distancing is not able to be maintained with non-household members"; or (2) "when in places that are open to the public, shall maintain 6-foot physical distancing from a non-household member, whenever possible." Violation of the Order was a misdemeanor.
When the Order was enacted, the City believed that it applied to religious or expressive activities or, more generally, to every person in the City engaged in all activities in a public setting. Somehow, every single City official involved overlooked the exclusionary language included in the Ordinance requiring that the mayor make explicit that the Order was intended apply to all constitutionally protected expressive and associative activity as well.
