The Kansas Justice Institute has won another victory for liberty. Linn County, in the wake of a federal lawsuit and hearing before a judge, has rescinded its contact tracing order requiring county businesses to gather personally-identifying information from anyone who enters — and hand it over on demand.

According to a release from KJI — which, like the Sentinel, is owned by the Kansas Policy Institute — Linn County’s health department has issued a new health order that respects the Fourth Amendment rights on citizens and visitors. The new order allows for businesses to request a warrant or other judicial approval before certain records are disclosed during the COVID pandemic; businesses may turn them over voluntarily as well.

Both plaintiffs on the case moved to have their lawsuit dismissed. Jackie Taylor owns and publishes the Linn County News, while Linda Jo Hisel owns and operates Nana Jo’s Café in Linn County.

“I’m happy we found a workable solution for the citizens of the county,” Taylor said in the release. “Linn County ultimately did the right thing with this new order and we’re glad Kansas Justice Institute was there to help.”

Sam MacRoberts, litigation director for the Kansas Justice Institute

KJI Litigation Director Samuel G. MacRoberts, who represented Taylor and Hisel, said this was about the Constitution.

“This case was about Linn County understanding that constitutional rights cannot be ignored,” he said. “Even during a pandemic, we’re happy to stand up with Kansans to protect their rights and liberties.”

The original order, required, in part, certain types of businesses to “encourage curbside pick-up,” but in-store customers are allowed only on an appointment basis and businesses are required to, “maintain the following information on each in-store customer which includes Customer Name, Phone Number, Date of Visit, Arrival Time and Departure Time. This information must be kept and made available to the Linn County Public Health Department upon request for the purposes of Contact Tracing for a minimum of 30 days from time of visit.”

As the Sentinel reported after the lawsuit was filed on May 10, KJI argued that the requirement to turn over such records without a warrant was a violation of both the Fourth, and 14th amendments.

A hearing on a temporary restraining order was held by Judge Holly Teeter of the U.S. District Court of Kansas on the afternoon of May 15th.

Hisel said it was about privacy.

“We’re a close-knit community and my customers are like family,” she said. “I don’t want to put anyone’s health in jeopardy but I’m not going to put anyone’s privacy in jeopardy either.”

Olathe attorney Ryan Kriegshauser, who joined KJI in the suit agreed.

“In this pandemic, we must find the correct balance between safety and civil rights,” he said. “To do that we must vigorously push back when government oversteps like Linn County did here.”

MacRoberts said overreach like this would discourage contact tracing by alienating the people who the order was meant to help.

 “In order for contact tracing to be effective, the community must be willing to participate,” he said. “Heavy-handed mandates and threats won’t work here.”  

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