Nashville FOP president calls police enforcement of mask mandate 'draconian'

Posted at 4:14 PM, Jul 15, 2020
and last updated 2020-07-15 23:44:56-04

NASHVILLE, Tenn. (WTVF) — The Nashville Fraternal Order of Police is pushing back against using police officers to enforce Davidson County's mask mandate, calling the assignment "draconian."

In a letter sent to Nashville FOP members, organization president James Smallwood said he has reached out to the Mayor's office and the Metro Public Health Department to express concern with the decision to have officers issue citations to those not following the mandate.

"In a climate where law enforcement is being criticized for over-policing the community, we are being told to assume the role of draconian enforcers of a mask mandate by virtue of citation or arrest," the letter reads. "This simply is not acceptable."

The Metro Board of Health passed a motion to require masks to be worn in public which went into effect on June 29. There are a few exceptions to the mandate.

Metro police said they would begin enforcement of the mandate on Wednesday. As of June 29, officers had been passing out pamphlets to inform the public on the mask requirement.

Now, if someone refuses to wear a mask, they could face a $50 fine or misdemeanor citation.

The department said officers would focus on Lower Broadway due to the recent surge in cases near the downtown area.

A press release from the Metro Nashville Police Department on enforcing masks said, "persons failing to comply with the mandatory mask order will be subject to a Metropolitan Government civil citation, which, upon adjudication by a General Sessions judge, could result in a $50 fine. A person who refuses to sign/accept a civil citation is subject to the issuance of a State of Tennessee misdemeanor citation (failure to comply with the Health Department’s order is also a Class C misdemeanor)."

The press release did not mention arrests.

Chris Song from Mayor John Cooper's office released the following statement in response:

"The Mayor and the public rely on our police to keep our city safe. This duty extends to our coordinated fight against COVID-19. As announced last month, after more than two weeks of education and awareness efforts, we have now moved into the enforcement phase of our mask requirement. We are in the middle of a pandemic and this effort is going to take all of us working together."

Read the FOP president's full letter below:

Brothers & Sisters,

Today the we (sic) learned that, by order of the Mayor and Metro Health Department, the Metropolitan Nashville Police Department was expected to begin enforcing the mask mandate via citation and/or arrest.

We have already reached out to the Mayor’s office and are actively expressing the significant concerns we have with this decision.

In a climate where law enforcement is being criticized for over policing the community, we are being told to assume the role of draconian enforcers of a mask mandate by virtue of citation or arrest.

This simply is not acceptable.

It would be no more acceptable for the Mayor’s office to require officers to issue a traffic citation for every single traffic stop we conduct (A vast majority of which are addressed with warnings).

Officers are expected to use reasonable discretion when it comes to the enforcement of minor infractions such as this.

I trust that each of you have the ability to exercise that discretion while encountering the community each day.

Let me be absolutely clear, the COVID-19 pandemic is a very serious issue and we should all be taking every precaution necessary to ensure we are slowing the spread of this virus.

We should be wearing masks, washing our hands and taking every opportunity available to us to educate the public about newly implemented orders and the potential consequences for not following them before taking any enforcement action.

If you are satisfied that a warning will correct future behavior, discretion is advised.

Also, keep in mind that many individuals you encounter, especially in the downtown area, may not be residents of Davidson County and may be completely unaware of the mask mandate in our city.

Please ensure you are taking ample time to educate them and ensure they understand this new requirement before considering enforcement action.

If you are satisfied that a warning will correct future behavior, discretion is advised.

In any instance where you encounter an individual who is not wearing a mask and are considering whether or not to take enforcement action, please make sure you take ample time to ensure they do not fall into one of the exception clauses listed here:

A face covering is not required in the following settings and circumstances:

  • Within one's own residence or another's residence;
  • By any child aged twelve years or less. Any child aged two years or less shall not wear a Face Covering because of the risk of suffocation. Parents and caregivers must supervise use of Face Coverings by children to avoid misuse;
  • By persons who cannot medically tolerate wearing a Face Covering. No person declining to wear a Face Covering because of a medical condition shall be required to produce verifying medical documentation;
  • Within one's own or another’s motor vehicle, provided the vehicle is not being used for public transportation or a vehicle for hire;
  • Within educational institutions, public and private K-12 schools, private colleges and universities, trade schools, post-secondary, and technical colleges, provided K-12 schools comply with the conditions in Nashville Plan: A Framework for a Safe, Efficient and Equitable Return to School, as outlined at [];
  • By persons working alone in separate office spaces or in non-public workplaces that have more than adequate area for social distancing based on the size of and number of people in the space (either indoors or outdoors).

Such persons must be prepared to wear a Face Covering when interacting with others in groups of 6 or more persons or in groups of any size where social distancing of more than six (6) feet cannot be consistently maintained;

· When wearing a Face Covering poses a safety risk or security risk. "Safety risk" includes, but is not limited to, where wearing a Face Covering may pose a risk to persons working on ladders or at height, wearing other respiratory protection, engaging in heavy physical exertion, operating heavy equipment, or operating in an environment where a Face Covering hinders communications.

“Security risk includes, but is not limited to, an activity or transaction where establishing the identity of the customer or employee is important.

However, employers are encouraged to structure work to promote social distancing and limit close contact as much as possible within workplaces where Face Coverings may pose such risks;

  • When eating or drinking in public at a restaurant, bar, or other food or beverage establishment;
  • While outdoors in public spaces unless maintaining a physical distance of six feet from persons who are not members of the same household or residence is not feasible;
  • While engaged in outdoor work or recreation, such as swimming, walking, hiking, bicycling, or running, unless maintaining a physical distance of six feet from persons who are not members of the same household or residence is not feasible;
  • While in a place of worship. Places of worship are strongly encouraged to follow the health guidelines in paragraph 3 of Governor Lee’s Executive Order No. 38, issued on May 22, 2020; and
  • While in a building or indoor space owned, managed, or leased by the State of Tennessee or federal government.

Again, as you have these encounters, I encourage you to continue to maximize the opportunity for discretion and warn and educate those persons when doing so is reasonably likely to correct the violation.

Arresting an individual for not wearing a mask should be an absolute last resort.

The many variables and risks, to include the potential necessary use of force and personal injury, that come with effecting an arrest should be considered when weighing the options available to you and making a determination on enforcement action for an infraction of this degree.

It is a challenging time to be in law enforcement and we are asked to make split second decisions based on our training and experience.

Unfortunately, even when we make the right decision, if an event turns viral, support from those who have asked us to enforce the laws they have made is lacking.

Ask yourself, if a mask enforcement incident turned viral, regardless of whether or not your actions were reasonable, will the leaders of this city be standing up at the next press conference supporting you?

Please make sure you review the policy disseminated by the department thoroughly and that you understand it.

If you dont, ask your supervisor for clarification before taking action.

Ensure you have offered ample warnings so that people understand the newly implemented rule change and make sure that, if it becomes absolutely necessary to cite or arrest a member of the public, that there is no room to question your actions in the court of public opinion.

James Smallwood