HomeMy WebLinkAbout2020CV2192 - DONNA WALTER & MARK MILLIMAN V. GOVERNOR JARED POLIS, JEFFREY J. ZAYACH, TOM GONZALEZ, AND DARIN ATTEBERRY - 001 - COMPLAINT1
IN THE UNITED STATES DISTRICT COURT 1
FOR THE DISTRICT OF COLORADO 2
3
Civil Action No. 1:20-cv-2192 4
5
DONNA WALTER, and 6
MARK MILLIMAN, 7
8
Plaintiff(s), 9
10
v. 11
12
GOVERNOR JARED POLIS, in his official capacity as Governor of Colorado, 13
JEFFREY J. ZAYACH, in his official capacity as Executive Director, Boulder County Public 14
Health, 15
TOM GONZALEZ, in his official capacity as Director, Larimer County Dept. of Health & 16
Environment, 17
DARIN ATTEBERRY in his official capacity as City Manager, City of Fort Collins. 18
19
Defendant(s). 20
21
22
23
COMPLAINT 24
25
Plaintiffs Donna Walter and Mark Milliman, by and through the undersigned counsel, file 26
this Complaint for Declaratory and Injunctive Relief against Defendants Governor Jared Polis, 27
Boulder County Public Health Executive Director Jeffrey J. Zayach, Larimer County Public 28
Health Director Tom Gonzalez, and Fort Collins City Manager Darin Atteberry, in their official 29
capacities, and allege as follows: 30
31
GOVERNOR JARED POLIS 32
33
1. Plaintiff Donna Walter is a natural person and a resident of the city of Fort Collins in 34
Larimer County, Colorado. 35
2. Plaintiff Mark Milliman is a natural person and a resident of Boulder County, Colorado. 36
3. The plaintiffs seek declaratory and injunctive relief to enjoin the governor’s executive 37
orders D 2020-138 and D 2020-092. 38
4. Executive order D 2020-138 (hereafter “EO-138”) is a statewide face covering order that 39
requires healthy people to wear face coverings to prevent them from spreading the 40
COVID-19 virus. Plaintiffs allege that requiring healthy individuals to wear symbolic 41
face coverings is compelled speech in violation of the First and Fourteenth Amendments 42
and impermissibly violates plaintiffs’ federal constitutional and statutory rights. 43
5. Executive order D 2020-092 (“EO-092”) authorizes “operators of places of public 44
accommodations … [to] deny admittance or service and require the removal of any 45
individual who fails to wear a medical or non-medical face covering”. Plaintiffs allege 46
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this is private enforcement of compelled speech under color of state law, in violation of 47
the First and Fourteenth Amendments of the U.S. Constitution, that exposes businesses to 48
liability under 42 U.S.C § 1983 and impermissibly violates plaintiffs’ federal 49
constitutional and statutory rights. 50
BOULDER COUNTY PUBLIC HEALTH EXECUTIVE DIRECTOR JEFFREY J. ZAYACH 51
52
6. Plaintiff Mark Milliman seeks declaratory and injunctive relief to enjoin Boulder County 53
Public Health Order 2020-04 (hereafter “BCPHE-2020-04”). 54
7. BCPHE-2020-04 requires heathy individuals entering commercial businesses to wear 55
face coverings. Plaintiffs allege that requiring healthy individuals to wear symbolic face 56
coverings is compelled speech in violation of the First and Fourteenth Amendments and 57
impermissibly violates plaintiff’s federal constitutional and statutory rights. 58
FORT COLLINS CITY MANAGER DARIN ATTEBERRY 59
60
8. Plaintiff Donna Walter seeks declaratory and injunctive relief to enjoin Fort Collins 61
Emergency Regulation 2020-18. 62
9. FC-2020-18 requires heathy individuals entering commercial businesses to wear face 63
coverings and makes it a criminal misdemeanor to refuse to wear a face mask but 64
continue to remain in the area. Plaintiffs allege that requiring healthy individuals to wear 65
symbolic face covering is compelled speech in violation of the First and Fourteenth 66
Amendments and impermissibly violates plaintiff’s federal constitutional and statutory 67
rights. 68
LARIMER COUNTY PUBLIC HEALTH DIRECTOR TOM GONZALEZ 69
70
10. Plaintiff Donna Walter seeks declaratory and injunctive relief to enjoin Larimer County 71
Seventh Public Health Order (hereafter “LPH-07”). 72
11. LPH-07 requires that healthy individuals wear face coverings when entering businesses. 73
Plaintiffs allege that requiring healthy individuals to wear symbolic face coverings is 74
compelled speech in violation of the First and Fourteenth Amendments and 75
impermissibly violates plaintiff’s federal constitutional and statutory rights. 76
JURISIDICTION AND VENUE 77
78
12. This Court has original jurisdiction over the subject matter of this action pursuant to 28 79
U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution 80
and laws of the United States. 81
13. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because Defendants 82
reside in this district and because a substantial part of the events and omissions giving 83
rise to the claims herein occurred in this district. 84
14. This Court has the authority to enter a declaratory judgment and to provide injunctive 85
relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. 86
§§ 2201 and 2202. 87
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PARTIES 88
89
15. Plaintiff Mark Milliman is a resident of Boulder County, Colorado. 90
16. Plaintiff Donna Walter is a resident of the City of Fort Collins in Larimer County, 91
Colorado. 92
17. Defendant Jared Polis is the Governor of Colorado. As Governor, he is vested with the 93
executive power of the state. CO. CONST., art. IV, § 2. 94
18. Defendant Jeffrey J. Zayach is Executive Director of Boulder County Public Health. 95
19. Defendant Tom Gonzalez is Larimer County Public Health Director. 96
20. Defendant Darin Atteberry is Fort Collins City Manager. 97
21. Defendants Polis, Zayach, Gonzalez, and Atteberry are sued in their official capacities 98
only. 99
STATEMENT OF FACTS 100
101
22. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to remedy deprivations of 102
rights, privileges, or immunities secured by the Constitution and laws of the United 103
States. 104
23. On March 11, 2020, the World Health Organization (WHO) declared the COVID-19 105
outbreak a pandemic. D. Cucinotta D, M. Vanelli, WHO Declares COVID-19 a 106
Pandemic, (2020), available at https://pubmed.ncbi.nlm.nih.gov/32191675/. 107
24. On March 16, UK Imperial College published a COVID-19 research report. Imperial 108
College COVID-19 Response Team, Report 9: Impact of non-pharmaceutical 109
interventions (NPIs) to reduce COVID-19 mortality and healthcare demand (2020), 110
available at https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-111
fellowships/Imperial-College-COVID19-NPI-modelling-16-03-2020.pdf, 112
25. The imperial College report warned that 2.2 million Americans would die of COVID-19 113
if government didn’t close schools and businesses. Id.at 7. 114
26. The lead author, Prof. Neil Ferguson, later resigned in disgrace from a British scientific 115
advisory committee after he broke self-quarantine to have sex with a married woman he 116
met online. Anna Mikhailova, Exclusive: Government scientist Neil Ferguson resigns 117
after breaking lockdown rules to meet his married lover, THE TELEGRAPH, May 25, 118
2020, available at https://www.telegraph.co.uk/news/2020/05/05/exclusive-government-119
scientist-neil-ferguson-resigns-breaking. 120
27. Prof. Ferguson’s Imperial College computer model was “totally unreliable”, according to 121
experts who studied it. Peter Aitken, Imperial College model Britain used to justify 122
lockdown a 'buggy mess', 'totally unreliable', experts claim, FOX NEWS, May 16, 2020, 123
available at https://www.foxnews.com/world/imperial-college-britain-coronavirus-124
lockdown-buggy-mess-unreliable. 125
28. It is impossible to use the model to reproduce the same results from the same data, 126
according to University of Edinburgh experts who tested Prof. Ferguson’s model. Id. 127
29. Dr. Tony Fauci and Dr. Deborah Birx used the Imperial College model to argue for 128
unprecedented US economic lock downs. Sheri Fink, White House Takes New Line After 129
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Dire Report on Death Toll, NEW YORK TIMES, March 16, 2020, available at 130
https://www.nytimes.com/2020/03/16/us/coronavirus-fatality-rate-white-house.html. 131
GOV. JARED POLIS EXECUTIVE ORDER D 2020 017 132
133
30. On March 25, Gov. Jared Polis issued Executive Order D 2020 017 (EO-017), a “stay at 134
home” lock down order that closed non-essential businesses. Executive Order D 2020 135
017, available at 136
https://drive.google.com/file/d/1ppYkzwOR7wAo5Aw9PhS7PiMU4vGVcPLN/view?usp137
=sharing. 138
31. EO-017 stated, “The virus that causes COVID-19 is spread primarily by close contact 139
between people and through respiratory droplets when an infected person coughs or 140
sneezes” (emphasis added). Id.at 1. 141
BOULDER COUNTY PUBLIC HEALTH ORDER 2020-04 142
143
32. On May 2, Boulder County Public Health Executive Director Jeffrey J. Zayach issued 144
Boulder County Public Health Order 2020-04 (“BPH-2020-04”). Boulder County Public 145
Health Order 2020-04, available at https://assets.bouldercounty.org/wp-146
content/uploads/2020/06/2020-04-extension-of-masking-order-0629.pdf. 147
33. BPH-2020-04 requires people in Boulder County to wear face coverings. Id. 148
34. BPH-2020-04 requires healthy people to wear face coverings. Id. 149
35. BPH-2020-04 defines “Face Covering” to mean “a covering made of cloth, fabric, or 150
other soft or permeable material”. Id. 151
36. BPH-2020-04 threatens violators with fines and imprisonment. Id. 152
37. BPH-2020-04 is of indefinite duration. Id. 153
38. BPH-2020-04 is predicated on a finding that “people can be infected with the COVID-19 154
virus and be asymptomatic yet still be contagious”. Id. 155
39. BPH-2020-04 finds that “Many people with COVID-19 have mild symptoms and do not 156
recognize that they are infected and contagious and that they can unintentionally infect 157
others”. Id. 158
LARIMER COUNTY SEVENTH PUBLIC HEALTH ORDER 159
160
40. On May 30, Larimer County Public Health Director Tom Gonzalez issued a Seventh 161
Public Health Order (“LPH-07”). Larimer County Seventh Public Health Order, 162
available at https://www.larimer.org/sites/default/files/uploads/2020/public-health-face-163
covering-order.pdf. 164
41. LPH-07 requires that “Individuals must wear face coverings at all times except when a 165
face covering inhibits the individual’s ability to participate in certain activities or to eat or 166
drink … [or] participate in a physical fitness activity”. 167
42. LPH-07 requires healthy people to wear face coverings. Id. 168
43. LPH-07 states that “One proven way to slow the transmission is for individuals to wear a 169
mask or other facial covering”. Id. 170
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44. LPH-07 states that, “The primary transmission of COVID-19 is now known to be droplet-171
based, and the transmission largely occurs in the first seven days after infection, when 172
people are largely asymptomatic.” (emphasis added). Id. 173
45. LPH-07 requires businesses to enforce the face covering order unless they implement 174
Alternative to Face Covering requirements. Id. 175
46. LPH-07 threatens violators with fines or imprisonment. Id. 176
47. LPH-07 is of indefinite duration. Id. 177
FORT COLLINS CITY EMERGENCY REGULATION 2020-18 178
179
1. On May 1, Fort Collins City Manager Darin Atteberry issued Emergency Regulation, 180
2020-18 (“FC-2020-18”). Emergency Regulation 2020-18, available at 181
https://www.fcgov.com/eps/files/2020-18-extending-and-amending-the-face-coverings-182
requirement.docx.pdf?1594996287. 183
2. FC-2020-18 requires all persons entering commercial businesses to wear face coverings. 184
Id. 185
3. FC-2020-18 requires healthy people to wear face coverings. Id. 186
4. FC-2020-18 discourages medical face coverings. Id. 187
5. FC-2020-18 recommends cloth face coverings. Id. 188
6. FC-2020-18 makes it a criminal misdemeanor to refuse to wear a face mask and continue 189
to remain in the area or property. Id. 190
7. Fort Collins City Manager’s Office spokesperson Honore Depew said the burden falls on 191
the business owners of Fort Collins to make sure their customers and visitors are 192
following the law. Dillon Thomas, Fort Collins Issues Face Covering Order Amid 193
Coronavirus Pandemic, CBS 4 DENVER, May 1, 2020, available at 194
https://denver.cbslocal.com/2020/05/02/fort-collins-coronavirus-face-coverings. 195
8. Honore Depew said, “They have the responsibility to ensure, if a patron comes in their 196
store, that patron is complying with the face covering order. And, it is their responsibility 197
not to serve that person if they refuse to wear a face covering.” Id. 198
9. FC-2020-18 is of indefinite duration. Id. 199
GOVERNOR’S EXECUTIVE ORDER D 2020-092 200
201
10. On June 4, Gov. Polis issued Executive Order D 2020-092 (“EO-092”). Executive Order 202
D 2020 092, available at 203
https://drive.google.com/file/d/1ETYsBaJPl2wvv0RRnjIHpr38UnZ8pski/view. 204
11. EO-092 authorizes “operators of places of public accommodations … the discretion to 205
deny admittance or service and require the removal of any individual who fails to wear a 206
medical or non-medical face covering”. Id. 207
12. EO-092 makes no exception for healthy individuals. Id. 208
TRI-COUNTY PUBLIC HEALTH ORDER 0708 209
210
13. On July 8, Tri-County Health Department issued a public health order (hereafter “TCH-211
0708”). Public Health Order Requiring Facial Coverings, available at 212
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https://www.tchd.org/DocumentCenter/View/7407/Tri-County-Health-Department-213
Public-Health-Order-Requiring-Facial-Coverings. 214
14. TCH-0708 requires face coverings to be worn in public where social distancing cannot be 215
maintained. Id. 216
15. TCH-0708 requires healthy people to wear face coverings. Id. 217
16. TCH-0708 provides that, “Face coverings may be factory-made, sewn by hand, or be 218
improvised from household items, including but not limited to, scarfs, bandanas…” Id. 219
17. TCH-0708 makes an exception for individuals “when exercising in a gym or fitness 220
center”. Id. 221
18. TCH-0708 requires private enforcement by businesses, providing that “Any business 222
open to the public that permits an individual to enter or remain in the business or on its 223
premises without a required face covering may be subject to the suspension or revocation 224
of its license…” Id. 225
19. TCH-0708 makes a finding that “Persons can be infected with COVID-19 and be 226
asymptomatic yet still contagious” (emphasis added). Id. 227
20. TCH-0708 applied to Adams County, Arapahoe County, and Douglas County. Id. 228
21. Tri-County Health Executive Director Dr. John M. Douglas had recommended a mask 229
order only for Adams County. Blair Miller, Douglas County commissioners move to 230
leave Tri-County Health Department over mask mandate, July 9, 2020. 231
GOVERNOR’S EXECUTIVE ORDER D 2020-138 232
233
22. On July 16, Gov. Polis issued Executive Order D 2020-138 (“EO-138”). Executive 234
Order D 2020-138, available at 235
https://drive.google.com/file/d/13S9bLuKZbMVmHPucQnekVyOY2k6gYRa9/view?usp236
=sharing. 237
23. EO-138 is a statewide mask order requiring non-medical face coverings. Id. 238
24. EO-138 states that “widespread mask use is a low cost and highly effective way to reduce 239
the spread of COVID-19 infections by as much as 65%”. Id. 240
25. EO-138 requires that healthy individuals wear face coverings. Id. 241
26. EO-138 threatens violators with civil or criminal penalties. Id. 242
27. EO-138 amends and extends the governor’s June 4 “public accommodations” order, EO-243
092. Id. 244
28. EO-138 expands on EO-092 private enforcement of mask orders under color of state law, 245
adding criminal trespass charges against individuals who refuse to wear face coverings in 246
a business. Id. 247
MASK EFFECTIVENESS 248
249
29. The New England Journal of Medicine reported that “We know that wearing a mask 250
outside health care facilities offers little, if any, protection from infection.” Michael 251
Klompas, M.D., M.P.H., Universal Masking in Hospitals in the Covid-19 Era, NEW 252
ENGLAND JOURNAL OF MEDICINE, May 21, 2020, available at 253
https://www.nejm.org/doi/full/10.1056/NEJMp2006372. 254
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30. The chance of catching Covid-19 from a passing interaction in a public space is minimal. 255
Id. 256
31. According to OSHA, cloth face coverings are not considered personal protective 257
equipment (PPE). https://www.osha.gov/SLTC/covid-19/covid-19-faq.html 258
32. Cloth face masks will not protect the wearer against airborne transmissible infectious 259
agents due to loose fit and lack of seal or inadequate filtration. Id. 260
ASYMPTOMATIC SPREAD 261
262
33. On June 8, WHO epidemiologist Maria Van Kerkhove called asymptomatic spread “very 263
rare”, based on data from countries who tracked asymptomatic cases. Jacqueline 264
Howard, Coronavirus spread by asymptomatic people 'appears to be rare,' WHO official 265
says, CNN, June 9, 2020, available at 266
https://www.cnn.com/2020/06/08/health/coronavirus-asymptomatic-spread-who-267
bn/index.html 268
34. Ms. Van Kerkhove is the World Health Organization's technical lead for coronavirus 269
response and head of the emerging diseases and zoonoses unit. Id. 270
35. Ms. Van Kerkhove faced a backlash for her comments. Sarah Boseley, WHO expert 271
backtracks after saying asymptomatic transmission 'very rare', THE GUARDIAN, June 272
9, 2020, available at https://www.theguardian.com/world/2020/jun/09/who-expert-273
backtracks-after-saying-asymptomatic-transmission-very-rare. 274
36. Ms. Van Kerkhove maintained that real-world data suggested that asymptomatic spread 275
of COVID-19 is very rare. Id. 276
37. Ms. Van Kerkhove said she didn’t mention estimates of up to 40% asymptomatic spread 277
because “those are from models”. Id. 278
COUNT I 279
(Executive Order D 2020-092 Violates First Amendment Free Speech Protections and 42 U.S.C. 280
§ 1983) 281
282
38. Plaintiffs reallege all preceding paragraphs as if fully set forth herein. 283
39. The First Amendment protects freedom of thought against state action, including the right 284
to speak and the right to refrain from speaking. Board of Education v. Barnette, 319 U.S. 285
624, 645 (Murphy, J., concurring) (1943). The right to speak and the right to refrain 286
from speaking are components of “individual freedom of mind.” Id., at 637 (Jackson, J). 287
Both good and evil men have waged struggles to coerce uniformity of support for some 288
idea thought essential in that time and place. Governmental pressure for unity causes 289
bitter strife as to whose unity it shall be. Id., at 641. Compulsory unification of opinion 290
achieves only the unanimity of the graveyard. The First Amendment was designed to 291
avoid that end by avoiding those beginnings. Id., at 640. 292
40. The State’s interest in disseminating beliefs, however widely held, cannot outweigh an 293
individual’s First Amendment right to avoid becoming messenger. See, e.g., Wooley v. 294
Maynard, 430 U.S. 705, 706 (Burger, J.) (1977). The First Amendment protects the right 295
of individuals to hold a point of view different from the majority and refuse to foster. Id., 296
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at 715. The State cannot compel speech without a countervailing interest sufficiently 297
compelling to justify that compelled speech. Id., at 716. 298
41. Private enforcement of unconstitutional measures exposes private businesses to financial 299
liability for violating civil rights under color of state law. 42 U.S.C. § 1983. Private 300
entities and individuals may be subject to liability under 42 USC § 1983 if plaintiffs can 301
show that they (1) acted pursuant to the coercive power of the State or are controlled by 302
the State; (2) willfully participated in joint activity with the State or their functions are 303
entwined with state policies; or (3) have been delegated a public function by the State. 42 304
U.S.C. § 1983, Jones v. Nickens, 961 F. Supp. 2d 475 (E.D. N.Y. 2013). Under the 305
“public function test,” a private party can be characterized as a state actor, for § 1983 306
purposes, if the plaintiff establishes that, in engaging in the challenged conduct, the 307
private party performed a public function that has been traditionally the exclusive 308
prerogative of the State. 42 U.S.C. § 1983. Aldrich v. Ruano, 952 F. Supp. 2d 295 (D. 309
Mass. 2013). 310
42. EO-092 authorizes businesses to deny service to healthy people who refuse to wear face 311
coverings. 312
43. EO-092 impermissibly violates the plaintiffs’ First and Fourteenth Amendment and 313
statutory rights because forcing healthy people to wear symbolic face coverings violates 314
First Amendment protections against compelled speech. Forcing people to wear non-315
medical and cloth face coverings is compelled symbolic speech because these face 316
coverings are not PPE and are not effective at preventing the spread of COVID-19. 317
Forcing healthy people to wear face coverings is compelled speech because healthy 318
people do not spread COVID-19 except in very rare circumstances. The Defendant’s 319
compelled speech mandate can be justified by no countervailing interest because healthy 320
people are unlikely to spread COVID-19 and the prescribed masks are ineffective. 321
44. EO-092 private enforcement exposes private businesses to financial liability for violating 322
First Amendment free speech rights under color of state law. Because this face covering 323
mandate is unconstitutional compelled speech, private businesses who enforce it do so 324
acting pursuant to the coercive power of the state. Private entities and individuals may be 325
subject to liability under 42 USC § 1983 for enforcing unconstitutional face covering 326
mandates. 327
45. Defendants have acted and, unless enjoined, will act under color of state law to violate 328
plaintiffs’ rights to free speech protections under the First Amendment. In doing so, 329
Defendant exposes private businesses to financial liability under 42 U.S.C. § 1983. 330
46. Plaintiffs have standing to challenge EO-092 because they suffer injury-in-fact from its 331
enforcement. Plaintiffs are permitted to challenge laws infringing on free expression 332
whether their own rights of free expression are violated, because those laws very 333
existence may cause others not before the court to refrain from constitutionally protected 334
speech or expression. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). 335
47. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to 336
their constitutional rights unless Defendant is enjoined from enforcing EO-092. 337
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48. The injury to plaintiffs’ First Amendment rights by EO-092 enforcement outweighs any 338
injury sustained by Defendant as a result of injunctive relief because enforcement of 339
unprecedented face covering mandates on the healthy has no public health benefit. 340
49. Injunctive relief would not adversely affect public policy or the public interest because 341
enforcement of unprecedented face covering mandates on the healthy has no public 342
health benefit. 343
COUNT II 344
(Executive Order D 2020-138 Violates First Amendment Free Speech Protections and 42 U.S.C. 345
§ 1983) 346
347
50. Plaintiffs reallege all preceding paragraphs as if fully set forth herein. 348
51. EO-138 is a statewide order mandating that healthy people wear non-medical face 349
coverings. EO-138 relies on EO-092 private enforcement by expanding enforcement 350
powers to include criminal trespass charges against individuals who refuse to wear face 351
coverings in a business. 352
52. EO-138 impermissibly violates the plaintiffs’ First and Fourteenth Amendment and 353
statutory rights because forcing healthy people to wear symbolic face coverings violates 354
First Amendment protections against compelled speech that cannot be justified by any 355
countervailing interest. 356
53. EO-138 private enforcement exposes private businesses to financial liability for enforcing 357
unconstitutional face covering mandates under color of state law. 42 USC § 1983. 358
54. Plaintiffs have standing to challenge EO-138 because they suffer injury-in-fact from its 359
enforcement and because EO-138’s very existence may cause others not before the court 360
to refrain from constitutionally protected speech or expression. Broadrick v. Oklahoma, 361
413 U.S. 601, 612 (1973). 362
55. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to 363
their constitutional rights unless Defendant is enjoined from enforcing EO-138. 364
56. The injury to plaintiffs’ First Amendment rights by EO-138 enforcement outweighs any 365
injury sustained by Defendant as a result of injunctive relief because enforcement of 366
unprecedented face covering mandates on the healthy has no public health benefit. 367
57. Injunctive relief would not adversely affect public policy or the public interest because 368
enforcement of unprecedented face covering mandates on the healthy has no public 369
health benefit. 370
COUNT III 371
(Boulder County Public Health Order 2020-04 Violates First Amendment Free Speech 372
Protections and 42 U.S.C. § 1983) 373
374
58. Plaintiffs reallege all preceding paragraphs as if fully set forth herein. 375
59. BPH-2020-04 is a Boulder County order mandating that healthy people wear non-376
medical face coverings. BPH-2020-04 plainly doesn’t require effective face coverings 377
because its definition of “face covering” includes “a covering made of cloth, fabric, or 378
other soft or permeable material” that offer little or no protection against viral spread. 379
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60. BPH-2020-04 impermissibly violates the plaintiffs’ First and Fourteenth Amendment and 380
statutory rights because forcing healthy people to wear symbolic face coverings violates 381
First Amendment protections against compelled speech that cannot be justified by any 382
countervailing interest. 383
61. Plaintiff Mark Milliman has standing to challenge BPH-2020-04 because he suffers 384
injury-in-fact from its enforcement and because BPH-2020-04’s very existence may 385
cause others not before the court to refrain from constitutionally protected speech or 386
expression. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). 387
62. Plaintiff Mark Milliman has no adequate remedy at law and will suffer serious and 388
irreparable harm to his constitutional rights unless Defendant is enjoined from enforcing 389
BPH-2020-04. 390
63. The injury to plaintiff Mark Milliman’s First Amendment rights by BPH-2020-04 391
enforcement outweighs any injury sustained by Defendant as a result of injunctive relief 392
because enforcement of unprecedented face covering mandates on the healthy has no 393
public health benefit. 394
64. Injunctive relief would not adversely affect public policy or the public interest because 395
enforcement of unprecedented face covering mandates on the healthy has no public 396
health benefit. 397
COUNT IV 398
(Fort Collins Emergency Regulation 2020-18 Violates First Amendment Free Speech Protections 399
and 42 U.S.C. § 1983) 400
401
65. Plaintiffs reallege all preceding paragraphs as if fully set forth herein. 402
66. FC-2020-08 is a Fort Collins emergency regulation mandating that healthy people wear 403
face coverings. FC-2020-08 plainly doesn’t require effective face coverings because it 404
discourages medical face coverings and recommends cloth face coverings. 405
67. FC-2020-08 impermissibly violates the plaintiffs’ First and Fourteenth Amendment and 406
statutory rights because forcing healthy people to wear symbolic face coverings violates 407
First Amendment protections against compelled speech that cannot be justified by any 408
countervailing interest. 409
68. City of Fort Collins expressly place the burden of FC-2020-18 enforcement of FC-2020-410
18 on Fort Collins business owners, exposing them to financial liability for enforcing 411
unconstitutional face covering mandates under color of state law. 42 USC § 1983. 412
69. Plaintiff Donna Walter has standing to challenge FC-2020-08 because she suffers injury-413
in-fact from its enforcement and because FC-2020-08’s very existence may cause others 414
not before the court to refrain from constitutionally protected speech or expression. 415
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). 416
70. Plaintiff Donna Walter has no adequate remedy at law and will suffer serious and 417
irreparable harm to her constitutional rights unless Defendant is enjoined from enforcing 418
FC-2020-08. 419
71. The injury to plaintiff Donna Walter’s First Amendment rights by FC-2020-18 420
enforcement outweighs any injury sustained by Defendant as a result of injunctive relief 421
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because enforcement of unprecedented face covering mandates on the healthy has no 422
public health benefit. 423
72. Injunctive relief would not adversely affect public policy or the public interest because 424
enforcement of unprecedented face covering mandates on the healthy has no public 425
health benefit. 426
COUNT V 427
(Larimer County Seventh Public Health Order Violates First Amendment Free Speech 428
Protections and 42 U.S.C. § 1983) 429
430
73. Plaintiffs reallege all preceding paragraphs as if fully set forth herein. 431
74. LPH-07 is a Larimer County Public Health Order mandating that healthy people wear 432
face coverings. LPH-07 evinces little seriousness attempt to limit plainly doesn’t require 433
effective face coverings because it makes exceptions for participation in physical fitness 434
activities where an individual is more likely to spread infection. 435
75. LPH-07 impermissibly violates the plaintiffs’ First and Fourteenth Amendment and 436
statutory rights because forcing healthy people to wear symbolic face coverings violates 437
First Amendment protections against compelled speech that cannot be justified by any 438
countervailing interest. 439
76. LPH-07 requires businesses to enforce the face covering order, exposing them to 440
financial liability for enforcing unconstitutional face covering mandates under color of 441
state law. 42 USC § 1983. LPH-07 frees businesses from enforcing an illegal mandate by 442
paying only by implementing other countermeasures. 443
77. Plaintiff Donna Walter has standing to challenge LPH-07 because she suffers injury-in-444
fact from its enforcement and because LPH-07’s very existence may cause others not 445
before the court to refrain from constitutionally protected speech or expression. 446
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). 447
78. Plaintiff Donna Walter has no adequate remedy at law and will suffer serious and 448
irreparable harm to her constitutional rights unless Defendant is enjoined from enforcing 449
LPH-07. 450
79. The injury to plaintiff Donna Walter’s First Amendment rights by LPH-07 enforcement 451
outweighs any injury sustained by Defendant as a result of injunctive relief because 452
enforcement of unprecedented face covering mandates on the healthy has no public 453
health benefit. 454
80. Injunctive relief would not adversely affect public policy or the public interest because 455
enforcement of unprecedented face covering mandates on the healthy has no public 456
health benefit. 457
PRAYER FOR RELIEF 458
459
WHEREFORE, Plaintiffs ask this Court to enter a judgement in their favor and provide the 460
following relief: 461
a. A declaratory judgment declaring that Executive Order EO-092 violates First 462
Amendment free speech protections, U.S. CONST. amend I. 463
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b. A declaratory judgment declaring that Executive Order EO-138 violates First 464
Amendment free speech protections, U.S. CONST. amend I. 465
c. A declaratory judgment declaring that Boulder County Public Health Order BPH-466
2020-04 violates First Amendment free speech protections, U.S. CONST. amend 467
I. 468
d. A declaratory judgment declaring that Fort Collins Emergency Regulation FC-469
2020-08 violates First Amendment free speech protections, U.S. CONST. amend 470
I. 471
e. A declaratory judgment declaring that Larimer County Public Health Order LPH-472
07 violates First Amendment free speech protections, U.S. CONST. amend I. 473
f. A permanent injunction prohibiting the Governor from implementing, 474
administering, and enforcing Executive Order EO-092. 475
g. A permanent injunction prohibiting the Governor from implementing, 476
administering, and enforcing Executive Order EO-138. 477
h. A permanent injunction prohibiting Boulder County Public Health Executive 478
Director Jeffrey J. Zayach and Boulder County Public Health from implementing, 479
administering, and enforcing Executive Order BPH-2020-04. 480
i. A permanent injunction prohibiting Fort Collins City Manager Darin Atteberry 481
and the City of Fort Collins from implementing, administering, and enforcing 482
Emergency Regulation FC-2020-18. 483
j. A permanent injunction prohibiting Larimer County Public Health Director Tom 484
Gonzalez and Larimer County Public Health from implementing, administering, 485
and Larimer County Public Health Order LPH-07. 486
k. An order requiring Defendants to pay Plaintiffs' reasonable attorney's fees, 487
including litigation expenses and costs; and 488
l. Awarding Plaintiffs such other and further relief as this court deems just and 489
proper. 490
CERTIFICATION AND CLOSING 491
492
Under Federal Rule of Civil Procedure 11, by signing below, I certify to the best of my 493
knowledge, information, and belief that this complaint: (1) is not being presented for an improper 494
purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; 495
(2) is supported by existing law or by a nonfrivolous argument for extending, modifying, or 496
reversing existing law; (3) the factual contentions have evidentiary support or, if specifically so 497
identified, will likely have evidentiary support after a reasonable opportunity for further 498
investigation or discovery; and (4) the complaint otherwise complies with the requirements of 499
Rule 11. 500
501
s/Mark C. Patlan 502
Mark C. Patlan, Esq. 503
1001-A E. Harmony Rd, #330 504
Fort Collins, CO 80525 505
Telephone: (970) 981-3344 506
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Fax: (949) 266-8730 507
Email: mpatlan@patlanlaw.com 508
Attorney for Plaintiffs 509
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