Modesto’s battle over mask wearing at public protests will carry on in the courts, the city council’s majority decided Tuesday in approving money to defend the city against a high-stakes lawsuit.
The 6-1 vote allows City Hall to spend up to $349,500 fighting a lawsuit brought two weeks earlier challenging a local ban on face coverings during public gatherings.
Silently dissenting in the vote was Councilman Chris Ricci.
Councilman Eric Alvarez said he feels a mandate to protect the neighborhoods he represents, including downtown and south Modesto. Councilman Jeremiah Williams applauded Alvarez, and the other council members said nothing.
No one in the audience spoke in support of the local ordinance, while 13 people urged its repeal. Some predict the city will waste the money defending a law that courts long ago deemed unconstitutional.
Resident Nora Garcia criticized the council’s “stubborn failure to see reason,” and Modesto’s Harlan Diven said the council has “turned Modesto into an ACLU test case.”
The American Civil Liberties Union of Northern California brought the lawsuit on behalf of the Pacific Media Workers Guild and three individuals, one of whom was among five people in masks arrested by Modesto police at a June 14 ICE Out rally.
A 1978 court ruling declared mask bans unconstitutional, but three cities – Modesto, Oakland and Lomita – enacted local bans anyway. None has enforced those laws except Modesto, and charges against those defendants were dropped at their first court proceeding.
The Modesto council last year asked for advice from its Community Police Review Board, which urged a repeal of the ordinance. But the council in December opted to keep the mask ban when Police Chief Brandon Gillespie said it’s an important tool to help police keep crowds safe.
At the time, Gillespie said people hiding behind masks can become more aggressive, potentially leading to violence. Temperature-lowering tools help keep everyone safe at public assemblies, not just those seeking anonymity, the chief and the city’s First Amendment attorney argued.
At the April 7 meeting, Alvarez said he must consider how best to protect thousands of his constituents relying on leaders for safety despite “passionate testimony” of those in the audience.
“Public safety first,” he said.
In addition to banning face coverings at public gatherings, the ordinance also prohibits large sticks, glass or metal water bottles, umbrellas with pointy ends, hardshell bicycle and motorcycle helmets and tactical gear like vests. It allows medical masks, religious garb and costume masks.
Modesto’s law could prevent journalists covering rallies from protecting themselves with equipment such as gas masks as widely recommended by media organizations, the lawsuit contends.
According to its agenda, the city council was to discuss the lawsuit behind closed doors before the April 7 open session, but emerged with no announcement.
The vote in open session allows City Hall to spend up to $349,500 on “litigation defense and trial counsel” in the lawsuit.
A case management conference – a procedural hearing involving lawyers and a judge – is scheduled for July 27 in Stanislaus Superior Court.