Falcone v. Dickstein

92 F.4th 193

George FALCONE, Appellant in No. 22-2701 v. Neil DICKSTEIN, Personally and in his capacity as the Superintendent of Freehold Public Schools;

Michelle Lambert, Personally and in her capacity as the President of the Freehold Board of Education;

Michael S. Amoroso, Personally and in his capacity as the Vice President of the freehold board of education;

Jennifer Patten, Personally and in her capacity as a member of the freehold board of education;

Debra Costanza, Personally and in her capacity as a member of the freehold board of education;

Elena O'Sullivan, Personally and in her capacity as a member of the freehold board of education;

Mary Cozzolino, Personally and in her capacity as a member of the freehold board of education;

Meg Thomann, Personally and in her capacity as a member of the freehold board of education;

Neil Gargiulo, Personally and in his capacity as a member of the freehold board of education;

Kerry Vendittoli, Personally and as a member of the freehold board of education;

Freehold Board of Education; Freehold Township Police Department;

Myroslav Alfeldi, Personally and in his capacity as a freehold township police officer;

John Does 1-25, Said names being fictitious

Gwyneth K. Murray-Nolan, Appellant in No. 22-2702 v. Scott Rubin; Kurt Petschow; Lisa Carbone; Terry Darling; Brett Dryer;

William Hulse; Nicole Sherrin Kessler; Maria Loikith; Patrick Lynch;

Kristen Mallon; Cranford Board of Education; Jennifer Osbourne;

Sciarrillo Cornell Merlino McKeever and Osbourne LLC; John Does 1-25;

ABC Defendants 1-25; Anthony Sciarrillo; Cranford Police Department;

Nadia Jones; Robert Chamra; Dennis McCaffery; Lesli Rice; Anthpny Giannico

No. 22-2701

No. 22-2702

United States Court of Appeals, Third Circuit

Argued on September 27, 2023

Opinion filed: February 5, 2024

Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action Nos. 3-22-cv-00921 and 2-22-cv-00801), District Judges: Hon. Peter G. Sheridan and Hon. Evelyn Padin

Ronald A. Berutti (Argued), Murray-Nolan Berutti, 136 Central Avenue, 2^nd Floor, Clark, NJ 07066, Counsel for Appellants

Ruby Kumar-Thompson (Argued), Cleary Giacobbe Alfieri & Jacobs, 169 Ramapo Valley Road, Upper Level 105, Oakland, NJ 07436, Eric L. Harrison (Argued), Methfessel & Werbel, 2025 Lincoln Highway, Suite 200, Edison, NJ 08818, Eileen M. Ficaro (Argued), Gregory S. Hyman, Brandon L. Wolff, Kaufman Dolowich & Voluck, 1650 Market Street, One Liberty Place, Suite 4800, Philadelphia, PA 19103, John F. Gillick (Argued), Martin Kane & Kuper, 180 Tices Lane, Suite 200, Building B, East Brunswick, NJ 08816, Kevin T. Fitzpatrick, Wood Smith Henning & Berman, 222 E. 41st Street, New York, NY 10017, Counsel for Appellees

Before: KRAUSE, ROTH and AMBRO, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

In the wake of the COVID-19 pandemic, federal, state, and local governments scrambled to implement policies to control the spread of the disease. These measures—which included mandates to wear face masks in public indoor spaces such as schools, businesses, and restaurants—spawned skepticism and debate. Some objectors voiced their discontent online, some turned to their elected representatives, and some asked the courts to intervene. Others took less trodden paths.

The plaintiffs in the consolidated cases before us, two New Jersey parents, chose to express their opposition through multiple means. One was to attend school board meetings while refusing to wear a mask in what they believed was a symbolic protest against masking requirements in schools. Their conduct led not to debate or policy changes but to a summons and an arrest.

The plaintiffs sued. The summons or arrest, they claimed, were retaliation for exercising their First Amendment rights. The District Court in both cases dismissed the complaints, though on different grounds.

For the reasons that follow, we reverse and remand the Court's order against George Falcone and affirm the Court's order against Gwyneth Murray-Nolan. A question shadowing suits such as these is whether there is a First Amendment right to refuse to wear a protective mask as required by valid health and safety orders put in place during a recognized public health emergency. Like all courts to address this issue, we conclude there is not.

I. Background

On March 9, 2020, New Jersey Governor Phil Murphy declared a state of emergency in response to the quickly spreading coronavirus known as COVID-19. N.J. Exec. Order No. 103; Falcone App. 61-68. As we now know, it primarily spreads through airborne particles that accumulate in enclosed spaces, respiratory droplets produced when a person coughs, sneezes, or talks, and occasionally through contact with objects contaminated with the virus. How COVID-19 Spreads, CDC (Aug. 11, 2022), https://perma.cc/EPP9-AUWT. Individuals infected with COVID-19 can spread the disease while asymptomatic or pre-symptomatic, making the virus difficult to control. Over the course of the ensuing months, Governor Murphy issued a series of Executive Orders to monitor and curb its spread. One of them mandated that New Jersey schools "maintain a policy regarding mandatory use of face masks by staff, students, and visitors in the indoor portion of the school district premises," except, for example, when an individual qualifies for and obtains a medical exemption. N.J. Exec. Order No. 251 (Aug. 6, 2021). The mandate was aimed at resuming in-person teaching and other activities while reducing transmission of the virus and protecting unvaccinated individuals. Falcone App. 83. In preparation for the 2021-2022 school year, New Jersey School Districts—including the Freehold Township and Cranford Township School Districts—implemented mandatory indoor masking policies consistent with the Executive Order.

COVID-19 has since become endemic (that is, regularly recurring in particular areas or communities), and the statewide school mask mandate has been terminated. See N.J. Exec. Order No. 292 (Mar. 2, 2022). But litigation related to masking policies has not. In the cases before us, the plaintiffs separately brought suit against various groups of defendants claiming they were unlawfully retaliated against for protesting policies adopted by their local Boards of Education related to mandatory masking in schools. The cases stem from similar sets of facts and involve related issues of law, so we have consolidated them for review.

On appeal from the dismissal of a complaint, we take the factual allegations as true.

A. George Falcone

Falcone brought suit under 42 U.S.C § 1983 and the New Jersey Civil Rights Act ("NJCRA"), N.J. Stat. Ann. § 10:6-2(c), against the Superintendent of Freehold Public Schools, various members of the Freehold Township Board of Education ("BOE" or "Board"), as well as the Freehold Township Police Department and one of its officers, Myroslav Alfeldi ("Police Defendants").¹ Falcone opposed the mandatory masking policy adopted by the Freehold BOE and voiced that opposition at Board meetings and via social media. Falcone App. 16. He "sought to drum up popular support for serving notice on the Board" that it was "liable for harming children with the mask mandate." Id. Some or all of the defendants allegedly knew of Falcone's vocal opposition and activities.

On February 8, 2022, the Freehold BOE held an indoor public meeting on School District premises. Joined by around fifteen other maskless individuals, Falcone entered the building without a mask "with the well[-]known intent to engage in protected political speech and activity regarding unmasking." Id. They were advised to wear a mask or else the meeting would not begin. In an "overt and obvious political protest against the Board's masking policies," Falcone responded that he would not put on a mask. Id. at 17. Some members of the BOE then called the Freehold Township Police Department for backup. When Officer Alfeldi arrived and insisted that Falcone wear a mask, he responded "that he was engaged in constitutionally protected activities, including his remaining unmasked, and that he would not put on a mask unless defendant Alfeldi advised that he would be arrested for not doing so." Id. Officer Alfeldi assured Falcone that he would not be arrested, so he remained maskless. Moments before the Board convened, Falcone "served what he believed were legal papers on each Board member." Id. He then spoke at the podium for public citizen speakers—still maskless—and was approached by a second police officer who again directed him to wear a mask. Falcone responded by pointing out that the officer himself was unmasked.

Following the meeting, Officer Alfeldi allegedly issued a summons and complaint charging Falcone with defiant trespass in violation of N.J. Stat. Ann. § 2C:18-3b(1), a misdemeanor. He was the only person among all maskless attendees to receive a summons, which he alleges was "clearly" in retaliation for his "protected political and symbolic speech, and organization thereof." Falcone App. 18. Two weeks later, the Board held another meeting. But when Falcone and several others attended it (again maskless) to "protest . . . defendants' actions and policies," the Board and Superintendent canceled the meeting. Id. at 19.

Falcone's lawsuit followed.² He alleged the Freehold Defendants unlawfully retaliated against him for exercising his First Amendment rights and deprived him of substantive due process.³ They did so by (1) issuing, or conspiring to cause issuance of, a summons for trespass "in retaliation for hi[s] organizing and leading a constitutionally protected political and symbolic protest against the Board's masking policies," Falcone App. 19; Dist. Ct. Dkt. 13 at 20, and (2) canceling the second BOE meeting "with the purpose of depriving the plaintiff of his rights to speak," Falcone App. 20; Dist. Ct. Dkt. 13 at 20. He requested compensatory and punitive damages as well as injunctive relief. Falcone App. 20-21.

The Freehold Defendants moved to...