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Fojo Law Files Lawsuit Challenging Keene’s Face Mask Ordinance and Governor Sununu’s Emergency Order Requiring Face Masks for Gatherings of 100 or More People, Requests Order Enjoining Both Measures

This morning, we filed a lawsuit in the United States District Court for the District of New Hampshire challenging the City of Nashua’s recent enactment of an ordinance requiring individuals to wear face masks and Governor Sununu’s Emergency Order #63, which requires individuals to wear face masks in certain gatherings of 100 people or more.

The lawsuit, filed on behalf of three Keene business owners (Ian B. Freeman, Malaise Lindenfeld, and Aria DiMezzo), challenges (1) the City of Keene’s enactment of an ordinance (O-2020-09-A) requiring individuals who enter any business, who are present in any outdoor area serviced by a business, or who enter or are present in the common areas of any business, or in the common areas of any residential building with three or more units, to wear face masks or coverings; and (2) Governor Sununu’s Emergency Order #63, which requires individuals to wear face masks in certain gatherings of 100 people or more.  The lawsuit, like the first action we filed on behalf of Mary Rivard, and the lawsuit challenging the Governor’s order closing schools and implementing remote instruction, also includes an emergency motion for a temporary restraining order enjoining the Governor and the City from enforcing the order and the ordinance, respectively.

More specifically, the lawsuit addresses two main concerns.

First, the purpose for, and supposed “emergency” underlying, Governor Sununu’s original shutdown orders in March 2020 was that New Hampshire needed to “slow the spread” of the Coronavirus so the state’s healthcare system would not be overwhelmed.  Over several months later, there is no question New Hampshire’s hospitals never reached capacity, and New Hampshire’s curve had “flattened” and never spiked at all.  Indeed, as of this writing, the City of Keene has fewer than five current COVID-19 cases, and just 39 total cases since March.  Despite these facts, the City and the Governor have continued to pass overbroad and intrusive measures that violate individuals Constitutional rights and are not appropriately tailored to combatting the virus.

Second, this lawsuit targets a troubling issue concerning the City’s enactment of the ordinance requiring face masks.  The City lacked the statutory authority to enact such an ordinance, and it is preempted by Governor Sununu’s numerous emergency orders regulating the state’s response to the Coronavirus.  Despite these limitations, the City adopted this ordinance after initially proposing (and then withdrawing) it earlier this year.

In addition to these problems, both measures are overbroad and violate several of our clients’ (and other citizens’) Constitutional rights.  We are seeking an emergency order restraining the City and Governor Sununu from enforcing them.