Judge Upholds Emergency Orders

A federal judge has turned down a complaint from a local bar owner alleging that the mayor and the governor have violated her constitutional right to free assembly during the pandemic.

The court’s rationale? The emergency orders limiting the size of social gatherings are not ​“arbitrary” or ​“unreasonable” or ​“a plain, palpable invasion of rights,” but rather appropriate actions for government to take during a public health emergency.

U.S. District of Connecticut Judge Michael Shea issued that ruling Tuesday in the case Michael Amato, Joy Monsanto, and 50’s Lounge, LLC v. Mayor Justin Elicker and Governor Ned Lamont.

Shea denied the temporary restraining order and preliminary injunction requested by Amato and Monsanto, who run the Westville bar and lounge 50’s on Fitch.

The suit was filed in federal court in early April by the law firm of local civil rights attorney Norm Pattis.

Click here to read Shea’s full decision. The court ruling was first reported on Wednesday by the Hartford Courant.

The complaint itself alleged, among other concerns, that Elicker’s emergency order limiting social gatherings to no more than 10 people and Lamont’s emergency order limiting social gathering to no more than five people during the pandemic violated the bar owners’ 1st Amendment rights to freedom of assembly.

In his ruling, Shea quickly dismissed the plaintiffs’ concern with Elicker’s order, which he said was superseded by Lamont’s stricter order.

The judge then reached back to a 1905 Supreme Court decision in a case called Jacobson v. Commonwealth of Massachusetts to explain why he believes that Lamont’s Executive Order 7N holds water.

That 1905 case involved a Massachusetts law allowing municipalities to mandate the vaccination of inhabitants. When a resident refused to accept his town’s mandatory small pox vaccination, the court sided with the town, ruling that ​“a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” including by ​“enact[ing] quarantine laws and health laws of every description.”

Over a century later, Shea wrote, that same legal rationale holds true for Lamont’s five-person-limit executive order during the Covid-19 pandemic.

“The COVID-19 pandemic constitutes the sort of public health crisis — or ​‘epidemic of disease which threatens the safety of [a community’s] members’ — contemplated by the Jacobson court,” he wrote.

“The Order states that the restriction on the size of gatherings is imposed in light of recommendations from the CDC and the Connecticut Department of Public Health to implement ​‘community mitigation strategies to increase containment of the virus and to slow transmission of the virus’ and an increase in ​‘COVID-19 infections and resulting hospitalizations . . in recent days, at the same time that residents of areas with high infection rates have arrived in Connecticut, creating a need to enact further mandatory distancing measures to limit the rate of spread of the disease.’”

Shea continues to write that this executive order is not ​“arbitrary” or ​“unreasonable” or ​“beyond all question, a plain, palpable invasion of rights.”

It doesn’t not altogether limit the plaintiffs from assembling with other people, nor does it limit whom the plaintiffs may assemble with.

“Courts have upheld more extreme measures taken in response to public health needs, including quarantines, which limit a person’s right to assemble with any other person.”

“Therefore,” Shea concludes, ​“under the Jacobson standard, I conclude that Executive Order 7N is within the state’s power to protect
public health during an epidemic and is not a ​“plain, palpable” invasion of the Plaintiffs’ right to freedom of assembly.”

“Horse And Buggy” Justice

When asked for a comment on Shea’s ruling, Pattis told the Independent by text message Thursday morning, ​“The ruling relies heavily on the sole US Supreme Court case to come close to the issue, decided before World War I.

“By that anachronistic standard prohibition is legal, women can’t vote and discrimination is accepted social custom.

“Judge Shea’s decision is the equivalent of driving a horse and buggy down the interstate and should offend any sane person trying to navigate the highway today.”