STATE OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

STEVE MARSHALL 501 WASHINGTON AVENUE
ATTORNEY GENERAL MONTGOMERY, AL 36130
(334) 242-7300
WWW.AGO.ALABAMA.GOV

April 30, 2020

Dear Mayor Woodfin and Members of the Birmingham City Council,

Over the past 48 -hours, my Office’s COVID-19 Response Teams have been
overwhelmed with calls related to the City’s ordinance requiring citizens to wear
masks. I write to ask that you reconsider your intention to enforce the ordinance
with fines or jail time.

Throughout this pandemic, we have endeavored to gi ve law enforcement the

best possible guidance regarding the criminal enforcement of state and local
health orders/ordinances. Our advice has been consistent —there is no doubt that
law enforcement has the lawful authority to enforce these orders, but in the se
unprecedented times, restraint must be exercised, and arrests should be reserved
for extraordinary circumstances. With your announcement that the mask
requirement will be enforced, I am concerned that Birmingham law enforcement
officers are going to be p laced in a very difficult position and may feel pressure
to divert limited manpower and resources away from more direct threats to public
safety.

Furthermore, the ordinance’s requirement that face coverings or masks be

worn “at all times . . . when in public places within the City of Birmingham” is
excessive in relation to the recommendation given by the Centers for Disease
Control (“CDC”), on which the ordinance purports to rely. The ordinance
accurately recites that the “CDC recommends wearing cloth face coverings in
public settings where other social distancing measures are difficult to maintain,
for example, grocery stores, pharmacies and other b usinesses people must visit to
acquire goods and services necessary to maintain their comfort and well -being.” 1
Yet, the ordinance requires people to wear face coverings or masks “at all times
. . . when in public places,” which the ordinance defines as “[ a]ny place other
than an individual’s home or personal vehicle.” The ordinance does not limit the
duty to wear a face covering or mask to only those public settings where social
distancing is difficult to maintain.

As a result , the enforcement of this ordinance in some instances could prove

to be unconstitutional. For example, if an individual were fined or arrested for
not wearing a mask in an office building where he or she was working alone —
which would appear to be a violation of an ordinance —the City would likely not
be able to show that the required wearing of a mask in that context was sufficiently
related to a valid public health purpose.
1
The CDC’s recommendations on wearing face masks can be found at https://www.cdc.gov/coronavirus/2019-
ncov/prevent-getting-sick/cloth-face-cover.html.
 My objective in writing you, therefore, is two -fold: 1) to ask that you
reconsider enforcement of this ordinance and ensure that law enforcement has
clear guidance from you in this regard; and 2) to raise your awareness of the high
volume of constitutional questions and concerns that my Office has received in
the last day and a half, in order to give you the best op portunity to protect your
City against unnecessary litigation.

This request is submitted with due respect for both your authority and your
valid concerns about the unique health threat that your residents are facing.

Sincerely,

Steve Marshall
Attorney General