As COVID-19 cases surged in New Hampshire in recent months, a federal judge affirmed local communities’ authority to require masks in public places, dismissing claims by three area residents that those rules violated their constitutional rights.
In an Aug. 10 decision, U.S. District Judge Landya McCafferty said the trio — Aria DiMezzo and Ian Freeman, both of Keene, and Malaise Lindenfeld of Nelson — lacked standing to bring the case because they hadn’t shown they suffered, or were likely to suffer, specific harm due to mask mandates enacted by the city of Keene and the state.
The plaintiffs, McCafferty ruled, didn’t prove that those restrictions kept them from exercising their religious beliefs, expressing themselves in public or gathering to protest the masking measures, as they claimed in their lawsuit last year.
“Plaintiffs do not identify any concrete, specific instance in which they will be required to do, or prevented from doing, any of these things,” she wrote. “They merely state what they believe the ordinance and orders require them (and others) to do and object to compliance with those perceived requirements.”
DiMezzo, Freeman and Lindenfeld — all of whom have a history of supporting libertarian causes and candidates — sued the city and Gov. Chris Sununu in September 2020 over the local and state mask mandates, respectively, claiming the rules were overbroad and that both entities had overstepped their legal authority. The restrictions also deprived them and others, they argued to the federal court in Concord, of the freedom to choose whether to cover their face in public.
Under emergency powers Sununu invoked during the pandemic, he signed an executive order in August 2020 requiring anyone in a scheduled gathering of at least 100 people to wear a mask. Keene officials enacted an ordinance the same month that mandated face coverings in all indoor public spaces as well as outdoor spaces where business was conducted and social distancing was difficult, with establishments facing possible fines for allowing someone to enter unmasked. Both measures contained certain exemptions, including for young children.
Public health experts have said face coverings help limit the spread of the airborne respiratory virus, which the Centers for Disease Control and Prevention says has caused more than 700,000 deaths nationally.
In their lawsuit, however, DiMezzo, Freeman and Lindenfeld accused Sununu of “invoking a feigned ‘public health’ crisis” to enact the statewide mandate, which the governor later expanded to include most public spaces. The three sought to challenge those additional regulations in their lawsuit, too.
The state rules expired in April and Keene’s ordinance in June amid rising vaccination rates and a large decline in COVID-19 cases, which later spiked again.
DiMezzo, Freeman and Lindenfeld said in court filings that the regulations prevented them from participating in church services, citing other federal court rulings last year that blocked measures meant to limit the virus’ spread at religious gatherings. (Unlike the mask mandates in Keene and New Hampshire, those measures put restrictions on houses of worship not imposed on other organizations — a practice the U.S. Supreme Court found unconstitutional earlier this year.)
In her ruling, McCafferty concluded the penalties that DiMezzo, Freeman and Lindenfeld faced under the mask mandates were “no different than that faced by the general public.” She also noted that all three plaintiffs attended an August 2020 rally in Keene, which drew more than 100 people, to protest the mask requirements and that none wore masks — despite the state and local rules.
“It appears from the plaintiffs’ own complaint that the measures they challenge have had no effect on their conduct,” she wrote. “This strongly suggests they have suffered no injury in fact.”
Freeman acknowledged Monday that the mask mandates “didn’t keep me from doing anything.”
But he pushed back on McCafferty’s ruling, telling The Sentinel that just because he wasn’t penalized for flouting those rules doesn’t mean he lacks standing to challenge them. Freeman, who like DiMezzo faces federal charges in a separate case over his involvement in a local cryptocurrency exchange, said New Hampshire’s COVID-related restrictions caused Lindenfeld to close two restaurants — Audrey’s Cafe in Dublin and Piedra Fina in Marlborough — last year.
“Whether or not a cop puts handcuffs on you is not a factor in whether there’s harm done,” he said.
Freeman said the plaintiffs’ Manchester-based attorney, Robert Fojo, didn’t respond to their questions about appealing McCafferty’s ruling before the 30-day deadline to do so, making the civil case “dead in the water.” Fojo, who also represented a Nashua resident last year in a failed lawsuit against that city’s mask mandate, said he notified Freeman and the others of the judge's decision and communicated their options for appeal.
New Hampshire communities can still require people to wear face coverings, even as the state of emergency that Sununu declared last year has expired, a spokeswoman for the state’s attorney general told The Sentinel last month.
At least two have taken advantage of that authority: Hanover adopted new rules in August requiring people to wear face masks indoors, after its previous mandate had expired earlier, and Lebanon has since enacted a similar policy, according to reporting by The Valley News. Local officials in both communities said the measures were needed with COVID-19 cases there rising, due largely to the virus’ more contagious delta variant.
Infection rates in Cheshire County — where 63 percent of eligible residents are vaccinated — have risen since July though fell slightly in recent weeks, according to data published by the CDC.
City Councilor Randy Filiault said Tuesday that Keene officials have no plans to bring back a community-wide mask mandate. Filiault, who first proposed that policy last year, said last month that officials were in “ wait-and-see mode” on new restrictions and have been monitoring the situation closely.
“Most councilors honestly would prefer not to institute a mandatory mask mandate, and are, for now, allowing business owners to implement their own if they choose to,” he said at the time.
This article has been changed to correct information about the actions of the plaintiffs' attorney during the 30-day window to appeal the court ruling and updated with the attorney's response.