Norman Mayor Breea Clark, who has gained statewide attention for imposing some of the most restrictive COVID-19 orders in Oklahoma, participated in a June 1 protest related to the death of Minneapolis resident George Floyd during an arrest.
In doing so, Clark may have violated her own order restricting public gatherings to reduce COVID-19 spread.
Clark’s “Healthier at Home Initiative” includes a May 29 date to enter phase 2 of her plan and then transition to phase 3 starting June 12. In Phase 2, Norman residents are expected to “maximize physical distance from others when in public” and “avoid socializing in groups of more than 25 people.”
Violations of the mayor’s proclamation setting forth the initiative can result in fines of up to $750 and 60 days in jail per violation, although Norman police are “encouraged to use an education, warning, then citation approach to enforcement.”
It appears Clark’s participation in the June 1 event may have violated the group-gathering provisions of her “Healthier at Home Initiative” order.
Clark’s Twitter account includes photos from the event that show at least 17 people were present, and those photos primarily show individuals gathered on a park stage, and not audience members. A photo that ran in the Norman Transcript showed a similar number of audience members, and the paper reported, “Hundreds of local residents gathered to protest the deaths of black people due to police brutality …”
On her Twitter feed, Clark did not address how the protest might conflict (or comply) with her COVID-19 orders. Instead, Clark said she “appreciated the chance to share about improvements the city is making, but more importantly I appreciated the opportunity to listen to the Norman community about the pain, fear & trauma we are once again dealing with.”
The same day that she attended the protest, Clark criticized the Oklahoma State Department of Health after agency officials announced they would not continue to publish COVID-19 data by zip code, city, or long-term care and nursing home facilities.
“Unacceptable,” Clark tweeted. “We’re still in a pandemic. How are we supposed to determine if we can continue moving forward with opening our cities if we don’t have the data?”
Norman officials did not immediately respond to a request for comment regarding whether any official city action was being taken against organizers of the protest for apparent violations of the mayor’s order restricting group gatherings.
Even if Clark participated in an activity that violated her own order, she may have little reason to fear—not simply because she is the mayor, but because her order is probably not legally defensible, according to a recent analysis by Benjamin M. Lepak, a legal fellow with the 1889 Institute.
In that paper, Lepak notes that Clark and the mayors of Oklahoma City and Tulsa “subjected approximately two-thirds of Oklahoma’s population to emergency decrees that severely restricted their freedom, damaged them financially, and undermined their constitutional rights.”
He noted those mayoral decrees “differed significantly from less restrictive policy judgments made by the governor, who was acting pursuant to his constitutional and statutory authorities.”
“At best, the mayors of Oklahoma City, Tulsa, and Norman were on shaky legal ground when they decreed the lockdowns of their cities, and at worst, they lacked authority under Oklahoma law,” Lepak writes.
All three mayors declared a state of emergency and issued what they called “shelter in place” orders that were more restrictive than state orders imposed by the governor. The mayors appeared to claim the legal authority to issue those emergency orders pursuant to city ordinances enacted five decades ago relating to “civil emergencies.”
While the governor’s ability to issue orders that rely on the police power of the state has been construed “expansively” by the Oklahoma Supreme Court, Lepak says that “does not mean the cities possess the same power.” In general, he notes city governments can act only on issues of “purely municipal concern” or pursuant to specific authorization in state law.
“The relevant questions are what specific authority, if any, has been granted cities by statute, and do the emergency powers ordinances comport with those statutory grants of authority?” Lepak writes. “In short, the answer is no. Each mayor claims to be acting pursuant to city ordinances enacted under statutes that either plainly do not have as their purpose the containment of a pandemic, or conceivably contemplate pandemic response but do not confer to cities the types of powers claimed by the mayors.”
He writes that Oklahoma’s Riot Control and Prevention Act of 1968 comes closest to conferring the powers claimed by mayors during the pandemic, but that the “plain and unambiguous language of the Riot Control and Prevention Act makes clear the law’s intent was to control and prevent riots, not to contain the spread of pandemics.”
Clark’s actions during the COVID-19 pandemic have been a source of constant controversy and are often legally problematic.
Under Clark’s directive, the city of Norman ordered the closure of a waste-management business deemed “essential” under federal guidelines, and even ordered an even/odd day schedule of grocery shopping for Norman residents, based on home addresses. Citizens caught shopping on the “wrong” day were threatened with jail time.
When she allowed some shuttered businesses to reopen, but not churches, Clark drew a rebuke from Attorney General Mike Hunter and a United States Attorney, who warned the order violated the equal protection clause of the U.S. Constitution.
And when the owners of four hair salons sued to reopen their businesses, arguing they were being treated differently than similar businesses in Norman, Cleveland County Judge Thad Balkman ruled in favor of the salon owners.