Federal Judge Strikes Down Gov.'s Lockdown As Unconstitutional

By Ralph Cipriano
for BigTrial.net

In Pittsburgh yesterday, U.S. District Court Judge William Stickman struck down Nanny State Gov. Tom Wolf's seven-month-old lockdown as blatantly unconstitutional. 

For the past seven months, the overreaching governor and his faithful sidekick, Health Secretary Rachel Levine, have been pressing their knees on the collective windpipes of citizens in the Commonwealth. 

Until a federal judge yesterday took 66 pages to explain to Wolf and Levine that because of their "well-intentioned efforts" to save the citizens from a virus, many of the citizens could no longer breathe. And that some of the businesses that the citizens formerly owned had expired.

In his opinion, Judge Stickman said that although he believed Wolf and Levine had "good intentions," "good intentions are not alone enough to uphold governmental action against a constitutional challenge."

"Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good --- especially in a time of emergency," the judge wrote.

"In an emergency, even a vigilant public may let down its guard over its constitutional liberties, only to find that liberties, once relinquished, are hard to recoup and that restrictions -- while expedient in the face of an emergency situation -- may persist long after immediate danger has passed."

In conclusion, the judge wrote that "even in an emergency, the authority of government is not unfettered." And that "the liberties protected by the Constitution are not fair-weather freedoms -- in place when times are good, but able to be cast aside in times of trouble."

The case of the County of Butler, et al, v. Thomas Wolf, et al, was filed in May by four Western Pennsylvania county -- Butler, Fayette, Green and Washington --  as well as individual business owners and lawmakers.

In his opinion, Judge Stickman noted that the emergency measures originally promulgated by Wolf and Levine in March were initially viewed as "temporary measures necessary to 'flatten the curve,'" and protect hospitals from being overrun with coronavirus patients.

When that didn't happen, Wolf suspended the "harshest measures," the judge noted, but the citizens of Pennsylvania "remain subject to the re-imposition of the most severe provisions at any time." 

And instead of setting an end for their emergency measures, Wolf and Levine view their "disease mitigation restrictions upon the citizens of Pennsylvania as a 'new normal' and they have no actual plan to return to a state where all restrictions are lifted."

Yes, when we you give public officials new powers, typically they're reluctant to give them up.

In his opinion, the judge quoted Sam Robinson, the governor's deputy chief of staff, when he was asked if there was a way to move the state from the so-called green phase to a state where there would be no restrictions.

In response, Robinson testified that the continuing restrictions constituted a "new normal."

"Even when the existing restrictions are replaced, it appears to be the intent of defendants to impose and/or keep in place some ongoing restrictions," the judge wrote. Then he quoted Robinson testifying, "It may be that the whole -- you know, that whole system is replaced with just very limited restrictions."

To the judge, this is where Wolf and Levine crossed the line.

"Courts are generally willing to give temporary deference to temporary measures aimed at remedying a fleeting crisis," the judge wrote. "But that deference cannot go on forever."

"It is no longer March," the judge wrote. "It is now September and the record makes clear that defendants have no anticipated end-date to their emergency interventions."

The judge also found that Wolf's policy limiting indoor gatherings to 25 people, and outdoor gatherings to 250, violated the constitutional "right of assembly."

The judge reminded Wolf and Levine that the "right of assembly is a fundamental right enshrined in the First Amendment," which says, "Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the government for a redress of grievances."

The judge pointed out that the state of Pennsylvania has nearly 14 million residents spread across 67 counties that include "dense urban areas," "small towns and vast expanses of rural communities."

"The virus's prevalence varies greatly over the vast diversity of the Commonwealth -- as do the resources of the various regions to combat a population proportionate outbreak," the judge wrote.

"Despite this diversity," the judge wrote, the orders of Wolf and Levine "take a one-size fits all approach." 

The judge also said state law regarding restricts the imposition of quarantines to be limited to the "period of time equal to the longest usual incubation period of the disease."

"The lockdown plainly exceeded that period," the judge wrote. "Not only are the lockdowns like the one imposed by Defendants' stay-at-home orders unknown in response to any previous pandemic or epidemic," they also weren't recommended by the Centers for Disease Control and Prevention, the judge noted.

"The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country," the judge wrote. "They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. they were unheard of by the people in this nation until this year."

"The lockdowns are, therefore, truly unprecedented from a legal perspective," the judge wrote. 

The judge said that the lockdowns imposed by Wolf and Levin were "intrusions into the fundamental liberties of the people of this Commonwealth," and were "quite simply, unprecedented in the American constitutional experience."

"In other words, in response to every prior epidemic and pandemic," the judge wrote, including the Spanish Flu, the state and federal governments have never taken measures "locking down their citizens."

"Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional," and of a "draconian nature," the judge wrote. "As with the lockdown, the defendants' shutdown of all 'non-life sustaining' businesses is unprecedented in the history of the Commonwealth, and, indeed, the nation."

"A total shutdown of a business with no end-date and with the specter of additional, future shutdowns can cause critical damage to business's ability survive, to an employee's ability to support himself/herself, and add a government-induced cloud of uncertainty to the usual unpredictability of nature and life."

The judge wrote about that because of Wolf and Levine's lockdown, one of the plaintiffs, R.W. McDonald & Sons, a small business, lost $300,000 in revenue and is "financially devastated." Another plaintiff, a hair salon lost $150,000, the judge wrote.

Another problem with the lockdown, the judge wrote, was tha Wolf and Levine never defined what constituted a "life-sustaining" business.

"I'm not sure that we wrote down anywhere what 'life-sustaining' meant," Robinson, the governor's deputy chief of staff, is quoted by the judge as saying. 

"I don't believe that we spent a lot of time around the formality of enshrining a definition somewhere," Robinson testified, as quoted by the judge. "We were working quickly to provide clarity to the public as to how to prevent the spread of then disease and protect public health."

In other words, we had good intentions. But with their good intentions, Wolf and Levine crushed the fortunes of thousands of businesses throughout the state. Without ever defining what essential and non-essential businesses were.

In his opinion, the judge pointed out the hypocrisy of Wolf and Levine's orders, where products or services performed by businesses deemed non-essential were available in stores that were deemed "life-sustaining."

For example, R.W. McDonald & Sons sold small appliances and furniture, the judge wrote. But since they were deemed non-essential, they were ordered to close. While "larger retailers selling the same products, such as Lowes, The Home depot, Walmart and others remained open," the judge wrote.

The result for R.W. McDonald & Sons was a loss in revenue of $300,000.

Or as the judge put it, Wolf and Levine "were exercising real governmental authority in a way that could [and did] critically wound or destroy the livelihoods of so many in the Commonwealth." At the very least, the judge wrote, the citizens deserved "an objective plan" that clearly defined essential and non-essential.

Instead, the citizens were subject to the "arbitrary design, implementation, and administration of the business shutdowns" as engineered by Wolf and Levine, the judge wrote.

"It is paradoxical that in an effort to keep people apart," Wolf and Levine's "business closure orders permitted to remain in business the largest retailers with the highest occupancy limits."

In imposing their arbitrary and draconian measures, the judge wrote, Wolf and Levine decided "who could work and who could not, who would earn a paycheck and who would be unemployed -- and for some -- which businesses would live, and which would die. This was truly unprecedented."

"An economy is not a machine that can be shut down and restarted at will by government," the judge wrote. "It is an organic system made up of free people each pursuing their dreams. the ability to support oneself is essential to free people in a free economy."

"Closing R.W. McDonald & Sons did not keep at home a consumer looking to buy a new chair or lamp, it just sent him to Walmart," the judge wrote.

"Refusing to allow the salon plaintiffs to sell shampoo or hairbrushes did not eliminate the demand for those products," the judge wrote, "it just sent the consumer to Walgreens or Target."

"The distinctions [of essential and non-essential businesses] were arbitrary in origin and application," the judge wrote. "They do not rationally relate to defendants' own stated goal. They violate the Equal Protection Clause of the Fourteenth Amendment."

In conclusion, the judge wrote that "even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms -- in place when times are good, but able to be cast aside in times of trouble."

"The solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment," the judge wrote. "The Constitution cannon accept the concept of a 'new normal' where the basic virtues of the people can be subordinated to open-ended emergency mitigation measures."

"Rather, the Constitution sets certain lines that may not be crossed, even in an emergency," the judge wrote. The actions of Wolf and Levine, "crossed those lines," the judge wrote. "It is the duty of the court to declare those actions unconstitutional."