District Attorney George Brauchler Says Governor's Face Mask Order Doesn't Change Law
DENVER (CBS4) - Gov. Jared Polis issued a statewide mask mandate Thursday, as the number of COVID-19 cases show what he calls a "significant uptick." Last week, Polis said the state has little capability to enforce face coverings. Now, the mask mandate is statewide and so are the questions about enforcement.
During his news conference, Polis said "If somebody were to run into a store naked or without a mask, they are trespassing. This gives that store the ability to call local law enforcement to enforce a trespassing charge and keep customers and employees safe."
Some Colorado sheriff's offices, including Weld and El Paso counties, have said they're not going to enforce the governor's statewide mask mandate, but there's been little clarification on what enforcement would entail.
"We all spent hours yesterday scrambling, trying to figure out what this means for us. What are the expectations of the governor? What are the expectations of any other level of government? What are we being called to do? Will this show up in court or not?" said George Brauchler, 18th Judicial District Attorney.
In a tweet Thursday, Brauchler wrote: "Let's be clear, the governor cannot expand the existing crime of trespassing. He may be making suggestions, but they carry no legal weight whatsoever."
The statewide mask mandate is an executive order, and those orders have the force of the law, but trespassing already exists in the law. Brauchler says this order should be backed by the Colorado Department of Public Health and Environment.
"Any private business owner always had the ability to refuse service to patrons under certain circumstances. We've all heard of 'no shoes, no shirt, no service.' This is no different than that. 'No mask, no shirt, no shoes, no service,'" said Brauchler. "The governor's words should either carry the force of law or they shouldn't be called an order. They should be called guidance or recommendations."
CDPHE has not made Gov.Polis' executive mask mandate order for the state of Colorado a Public Health Order.
In a statement to CBS4, CDPHE says: "Executive orders have the force and effect of law, so they do not need a public health order to be enforceable. People who do not comply with the executive order may be subject to civil or criminal penalties. If you try to enter a store without a mask and refuse to leave upon demand, you may be prosecuted for trespassing."
Mask mandates have long been in place for much of Colorado, but few citations have been issued. City leaders, like Denver Mayor Michael Hancock said penalizing Coloradans was never the point – and Polis says neither is this mandate.
"The enforcement of those ordinances, they're not widely enforced. But the clarity and messages of those ordinances, and the areas that have them, have successfully increased mask wearing by 15%" said Polis during his news conference Thursday.
In addition to requirement people ages 11 and up to wear face coverings when inside non-residential spaces, the order also says Coloradans must wear masks while using or waiting for public and non-personal transportation services.
"One of the provisions says if you're waiting for a bus, waiting for the train – you have to wear a mask. That's an order for the public health department. I don't see how that's enforceable. I don't see how law enforcement can take that person into custody or order them to wear a mask," said Brauchler.
Brauchler says nothing in Polis' executive order, outside of government buildings, changes the law as it existed two days ago.
"The governor lacks the authority to expand the definition or elements of trespass. I don't know what he was trying to accomplish here. To me, this feels a lot like "wear the damn mask" with the state seal on top of it. That's it," said Brauchler.
The order overrides all the decisions by local governments which were opting out of their county's health department orders. More than half of all states in the country already have some type of mask-wearing mandate.
Polis' statewide mask requirement applies to all Coloradan age 11 and older unless someone has a medical condition or disability that prevents them from wearing a mask.
RELATED: Colorado Lawmaker Threatens To Sue Gov. Polis Over Statewide Face Mask Mandate
