The U.S. Constitution is the supreme law of the land but says nothing about requiring people to wear masks. But legal experts agree that states have broad authority to intervene and issue mandates in certain circumstances such as public health emergencies.
Even so, Barton County Sheriff Brian Bellendir said he won’t be enforcing Gov. Laura Kelly’s latest executive order that has more Kansans wearing face masks in public. And he says he has the law on his side.
The executive order goes into effect at 12:01 a.m. Friday.
Back on Monday, Gov. Kelly announced her intention to sign an executive order Thursday. After two days of fielding numerous calls, Bellendir issued a statement:
“After consultation with legal counsel and reading the governing statutes, it has become evident the Sheriff’s Office would not be able to enforce the order,” he said. Based on House Bill 2016 which amends the governing statute, KSA 48-939, violation of the statute carries a civil penalty, not a criminal penalty. The Sheriff’s Office does not investigate nor enforce civil actions, he said.
“Based on review of the statutes, the Barton County Sheriff’s Office will not be enforcing the non-wearing of masks or using any of our resources to respond to calls simply because someone is not wearing a mask,” he said. “We will continue to respond to crimes and emergencies as needed.”
Attorney General Derek Schmidt also issued updated guidance to law enforcement and prosecutors on enforcement of emergency orders.
Schmidt also cited House Bill 2016. Under that bill, “individual counties may elect to adopt provisions that are ‘less stringent’ than a governor’s order. If an individual county has done so, then the governor’s emergency order may not be enforced in that county, even by a civil lawsuit.”
The new law also authorizes the attorney general to bring enforcement actions, Schmidt said.
“The attorney general’s office will defer to the decisions of local county and district attorneys and has no plans to bring our own enforcement actions simply for not wearing a mask,” Schmidt said. “I think the better approach is to leave any enforcement to local authorities who know their communities best and to give Kansans information and encouragement and trust them to make wise decisions. So here’s what I encourage: Be safe on this Independence Day weekend, use common sense and caution to keep yourself and others healthy, heed the advice of the CDC and other public health experts, and wear a mask for now whenever you’re in a public setting and cannot maintain a safe distance from other people.”
Wichita attorney Marty Keenan, a former Great Bend resident who has also taught criminal justice courses at the college level, said some rules are enforceable in theory but not in practice.
“I agree completely with Sheriff Bellendir. It’s a civil matter and not a criminal matter,” Keenan said. “I would be shocked if any law enforcement official west of Salina even pretended to enforce the executive order.”
Keenan said people who decide that wearing a mask is the right thing to do will choose to do so.
“The governor’s order is wildly unpopular and I understand that,” he said. “I think wearing a mask is a good Christian thing to do,” he said, adding it’s a way to “love your neighbor as yourself.”
A copy of Gov. Laura Kelly’s Executive Order is available athttps://governor.kansas.gov/wp-content/uploads/2020/07/20200702093130003.pdf
A copy of A copy of Attorney General Derek Schmidt’s memorandum is available at https://bit.ly/2YRbFXG.