While Gov. Larry Hogan has issued orders slowly reopening the state following a series of closures due to COVID-19, the lawsuit filed against him and other state officials continues along two separate but related paths.
On May 20, U.S. District Judge Catherine C. Blake issued a decision denying a preliminary injunction filed by several plaintiffs on May 2, including delegates Warren Miller (R-Carroll, Howard), Dan Cox (R-Carroll, Frederick) and Neil Parrott (R-Washington), as well as 10 pastors and other church representatives, two former members of the U.S. military, two businesses and the group Reopen Maryland, LLC, alleging a number of U.S. and Maryland constitutional violations against Hogan and his administration.
The day following that decision, the plaintiffs filed an appeal to the Fourth Circuit Court of Appeals and on May 26, filed an amended complaint in the original district court case. Both of those actions are now pending.
In the case before the Fourth Circuit the original plaintiffs, now appellants in that case, filed an emergency motion for an injunction or for a stay of the district court proceedings pending appeal on June 11 and the defendants/appellees filed a response to the motion on June 22.
In the emergency motion, the appellants argue that there is a difference of medical opinion regarding Hogan’s shutdown orders and that such shutdowns are causing “an irreversible mass casualty event.” In part, appellant’s cite a CNBC interview of the Director of the National Institute of Allergy and Infectious Diseases Dr. Anthony Fauci, who said in that interview that “stay at home orders [are] causing irreparable damage.” They also cite to Dr. Scott W. Atlas who wrote that “isolation policies now have no basis in lowering risk of death from COVID-19.”
Appellants also cite to an article in Forbes magazine that reported that 600 physicians are saying that nationwide lock-downs are causing a mass casualty incident.
In their motion, appellants also argue that executive orders from county executives throughout the state are in conflict, with some counties implementing more restrictive measures than the governor’s executive orders. They further argue that the governor is violating the rights of reverends and congregants in the state by violating their free exercise rights.
Appellants finally argue the stay-at-home orders, large gathering and facial covering orders have no basis in either state statute or constitutionally based executive powers as well as arguments under the U.S. Constitution’s commerce clause.
For their response, the appellees argue that the Fourth Circuit should deny appellant’s request in part because the orders they are seeking to enjoin are no longer in effect due to the fact Hogan has loosened restrictions throughout the state.
The appellees further argue that the state has a paramount interest in preserving lives during the COVID-19 outbreak and therefore the actions of the governor are constitutional. They also argue that the governor’s orders are neutral as they pertain to gatherings and do not violate religious liberty principles.
The appellees further argue that the governor’s orders met the test for permissible time, place and manner restrictions and the distinction between essential and non-essential businesses has a rational basis in protecting public health.
While the appeal is ongoing, the underlying case is still proceeding as well following the filing of the plaintiff’s amended complaint.
In the defendant’s motion to dismiss the amended complaint, they argue that the plaintiffs have “offered this Court nothing more of substance to support their claims…”
More specifically the defendant’s argue that Dr. Fauci’s comments to CNBC brought forward by the Plaintiffs is actually more balanced than the plaintiff’s portray them and that the “thrust” of Fauci’s comments actually describe precisely what Maryland is doing.
Many of the defendant’s other arguments effectively mirror arguments made previously in the district court case and before the Fourth Circuit.
In their response to the defendant’s motion in the district court case, filed Friday, the plaintiffs also make many of the same arguments they have made previously, but they also argue that the recent protests over the death of George Floyd, “where photos show hundreds of people are demonstrating without social distancing or masks, while at the same time banning churches, legislators and businesses from gatherings of more than 10 people, indicate his executive orders are mistreating churches, businesses and individuals…”