HomeMy WebLinkAbout2020CV2192 - DONNA WALTER & MARK MILLIMAN V. GOVERNOR JARED POLIS, JEFFREY J. ZAYACH, TOM GONZALEZ, AND DARIN ATTEBERRY - 019 - LETTER REQUESTING LEAVE TO FILE MOTION TO DISMISS BY JEFFREY ZAYACHCase 1:20-cv-02192-RBJ Document 19 Filed 09/18/20 USDC Colorado Page 1 of 2
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under the undisputed facts of this case. Even if wearing a face covering could be considered an
involuntary medical treatment, such treatment is constitutionally permissible when it is
administered for the purpose of preventing the spread of contagious disease. Reynolds v. McNichols,
488 F.2d 1378, 1382-83 (10th Cir. 1973).
Further, the requirement to wear a face covering does not present sufficient communicative
elements to establish a First Amendment claim based on freedom of speech. See Antietam
Battlefield KOA v. Hogan, Civil Action No. CCB-20-1130, 2020 U.S. Dist. LEXIS 88883, at *31
(D. Md. May 20, 2020). Even assuming the applicability of the First Amendment to these
circumstances, the face covering order does not violate Plaintiffs’ right to free speech because it was
adopted to serve compelling state interests, unrelated to the suppression of ideas. Specifically,
slowing the spread of COVID-19 is a compelling governmental interest. Id. at *33.
Conferral
The undersigned counsel for the Director, along with counsel for the Governor and the City of Fort
Collins, spoke with Mark Patlan, the attorney for Plaintiffs, on August 26, 2020 and again on
September 16, 2020. Defendants’ counsel advised Mr. Patlan of their plans to file motions to dismiss
and the grounds for those motions. The parties generally agreed that the issues could not be
resolved through alternative processes or further amendment of the complaint.
The Director requests that the Court grant him leave to file a motion to dismiss in this case.
Sincerely,
David Hughes
Deputy County Attorney
Case 1:20-cv-02192-RBJ Document 19 Filed 09/18/20 USDC Colorado Page 2 of 2