Lafayette doctor shares opposition to West Lafayette mask mandate in email sent to city

Dr. Casey Pickerill questioned the constitutionality and scientific support of the West Lafayette mask mandate. Mayor John Dennis continues to defend the mandate, saying he consulted lawyers and health leaders.

Posted: Sep 16, 2020 1:31 AM
Updated: Sep 16, 2020 12:37 PM

WEST LAFAYETTE, Ind. (WLFI) - The message that has come consistently from the local health community is that mask wearing, social distancing and proper hygiene are key to slowing the spread of coronavirus. However, one Lafayette doctor questions West Lafayette's decision to issue a mask mandate.

According to his website, Dr. Casey Pickerill is a family medicine doctor who has his own practice in Lafayette. A spokesperson for Franciscan Health confirmed he is a member of their medical staff, and that he served as the Chair of the Franciscan Alliance Western Indiana Board from 2011-2013.

He sent an email on September 4th to the West Lafayette Clerk's email with the subject line "mask mandate." West Lafayette City Councilman Nick DeBoer shared the email with News 18. Councilman DeBoer and West Lafayette Mayor John Dennis confirmed that in most case, messages sent to official government emails are public record.

Dr. Pickerill's email reads, "Please stay within your authority boundaries. Trust the citizenry to use common sense in living our lives. There is no unequivocal scientific evidence to support your policy."

"Part of my job is looking after the public's health and safety," said Mayor Dennis.

He issued the executive order on July 13th. That's just nine days before Governor Holcomb joined several other Midwest states in issuing a statewide mandate. Several other Indiana communities had acted before the governor issued the statewide mandate too, including the cities of Evansville and Bloomington. Marion, Elkhart, LaGrange and St. Joseph Counties had also issued a mask mandate.

Mayor Dennis said he consulted with the Tippecanoe County Health Department and with leading doctors from Franciscan Health and IU Health about the effectiveness of wearing masks.

"The science is clear," he said. "And so I felt that for our community because we wanted to be consistent with what was going on at Purdue University, I thought that it was imperative that I go ahead and make the masks mandatory."

The university released the Protect Purdue Plan on June 12th. On page 9 of the plan, it states that all students, staff and faculty must wear a face mask on campus when social distancing isn't possible. It also says failure to comply with the rules of the plan can result in disciplinary action.

The Centers for Disease Control published an article titled "Effectiveness of Cloth Masks for Protection Against Severe Acute Respiratory Syndrome Coronavirus 2" on July 22nd. The article explains the historical use of masks. It says healthcare workers have been using cloth face coverings since the early 20th century to stop the spread of disease, and that infection rates were lower among the workers who used the masks. The article says cloth masks should be a last resort to medical masks and respirators in a healthcare setting. It says cloth masks are not as effective as medical masks. 

The CDC released a press release on July 14th calling on Americans to wear masks to prevent the spread of coronavirus. The release says after an editorial was published by the Journal of the American Medical Association, the "CDC reviewed the latest science and affirms that cloth face coverings are a critical tool in the fight against COVID-19 that could reduce the spread of the disease, particularly when used universally within communities. There is increasing evidence that cloth face coverings help prevent people who have COVID-19 from spreading the virus to others."

Mayor Dennis said he worked with the city attorney to make sure the mandate was legally sound.

"When we crafted the executive order, that was crafted by our city attorney," he said. "He and I sat down and went through some bullet points, he referenced a lot of other material to make sure it was appropriate and constitutional."

As we previously reported, a lawsuit filed against the City of West Lafayette went before a local judge. Judge Sean Persin ruled against the fining aspect of the mandate since it didn't have the city council's approval. However last Tuesday, the city council voted unanimously in support of the mandate on two separate readings. The lawsuit previously filed against the city has now been dropped since the city council's vote.

News 18 did reach out to Dr. Pickerill via email. We asked if he did not support wearing masks as an effective way of slowing the spread coronavirus, if he wears a mask while treating his patients and if he could explain how the City of West Lafayette is overstepping its authority. We also asked if he would like to talk on camera about this.

He replied, quote: "Speaking as a citizen. Let's frame it this way rather than your way: You show me how it's constitutional. I respect my patients' wishes and wear a mask."

The American Constitution Society released an article on June 3rd titled "Face-Covering Requirements and the Constitution." The article acknowledges that mask mandates can cause legal issues for people with disabilities or pre-existing conditions where masks may not be safe to wear. It also acknowledges that mask mandates could be seen as an infringement on First Amendment rights.

The article says, "...while courts must be deferential to the need to protect public health, courts must also be vigilant against abuses of public health powers. To do that they must ask what is reasonable, look at the public health evidence, and be attuned to the pre-textual or abuse of power."

This ACS article also references history. It says face mask ordinances can be dated back to the 1918 flu that devastated the United States. Mandates during this time could be enforced by citations and fines. It says in general, courts would defer back to the state and local elected officials on mask mandates.

ACS cites the 1905 Supreme Court Case Jacobson v. Massachusetts as an important precedent that many courts today refer back to when questioning the legality of a mask mandate during coronavirus pandemic.

A research article posted by the University of Maryland Center of Health and Homeland Security on July 7th breaks down this case. In the early 1900's, a city in Massachusetts mandated that all people 21 and older must get a small pox vaccine, or face a fine of $5. It says a man named Henning Jacobson refused to comply, claiming his health had suffered as a result of a previous vaccine, violated the 14th Amendment due process clause and that the mandate was a violation of his personal liberty protected by the constitution.

In this case, the Supreme Court ruled 7-2 in favor of a the state of Massachusetts. The article says, "The Court determined that the Massachusetts statute did not violate the 14th Amendment. In addition, the Court reasoned that under the 10th Amendment’s state police powers, states have the authority to enact reasonable legislative regulations to protect public health and safety which the Massachusetts statute sought to achieve."

Dr. Pickerill works in the same practice building as Tippecanoe County Health Officer, Dr. Jeremy Adler. Dr. Adler hosts the county health department's biweekly COVID-19 press briefings. At these meetings, he has been consistently vocal about the importance of wearing masks. Dr. Daniel Wickert from Franciscan Health and Dr. James Bien from IU Health Arnett represent our local hospitals at these briefings. They have also continued to echo Dr. Adler on this matter. 

News 18 reached out to Dr. Adler for comment. He replied Wednesday morning with the following statement.

"While I have a great deal of respect for my partner, we clearly disagree on this. There is ample scientific evidence supporting the wearing of face coverings to help prevent the spread of Covid-19, which is why they are recommended by the CDC and World Health Organization. Face coverings are one of the most important tools we have to fight this pandemic."

Mayor Dennis said he received a lot of communication from the community about this mandate in the last few months. He said about 20% of the messages have been against the mandate while about 80% have been in favor. He said he would rather overly aggressive rather than complacent when it comes to fighting this invisible threat.

"I deeply love my community," he said. "I felt that if I was going to take a step off the ledge it was going to be towards the benefit of my community and that's exactly what I did."

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