A Boulder man has filed a lawsuit against the city and the state alleging that the stay-at-home orders in response to the COVID-19 pandemic violate his rights to freedom of movement, of assembly and of religion, asserting that “there are no exceptions in the constitution for emergencies.”

Benjamin K. Piilani wrote in his complaint that the economy is interconnected and that no person could distinguish between “essential” and “nonessential” activities that should continue during an emergency. Although he admitted that the goal of the orders may have merit, the method of requiring home sheltering with many exceptions was not “narrowly tailored.”

He cited a potential fine or imprisonment for leaving his home to exercise his constitutional right to assemble in a faith group or to freely move, a punishment which does not fit the crime, in his opinion.

“No proof exists that these Orders are effective in controlling the spread of COVID-19,” Piilani claimed. “Defendants know less than they should and all projections come with uncertainty”.

On Monday, Gov. Jared Polis explained in a televised address that positive cases of the virus were doubling every five to six days instead of every two days, which he attributed to distancing behavior. 

“That is a remarkable achievement by the people of this state,” he said. “I want to thank each and every one of you who has been taking this seriously. You are truly helping to turn the tide against this virus.”

A Denver man previously filed a similar lawsuit against Mayor Michael Hancock and Polis challenging the state and local orders, and argued that they were destroying the state’s economy and depriving him of his livelihood and his freedom to attend church services. At the time, Polis’s office said that he could not comment on pending litigation.

Jane S. Brautigam, the city manager for Boulder who issued a stay-at-home order on March 24 and is a named defendant in Piilani’s claim, did not immediately respond to a request for comment.

Alleging that there is no clear and present danger, Piilani in his lawsuit concluded that “there are no exceptions in the constitution for emergencies.” However, he seemed to concede the unpopularity of that argument at a time when nearly 200 Coloradans have died from COVID-19.

“During a time of national distress, Plaintiff appears to be a ‘jerk and pariah’ by filing this Complaint,” Piilani wrote.

Alan Chen, a professor at the University of Denver’s Sturm College of Law, felt that the Boulder and Denver lawsuits were “highly likely” to be dismissed. “To the extent that any person’s constitutional rights are being impaired by the stay-at-home orders, they are likely to be overridden by the real and compelling government interest in preventing deaths from COVID-19,” Chen said.

He added that the alleged infringement on freedom of religious exercise does not single out any one religion, and would not violate the First Amendment. Although governments can use a crisis as a pretext to violate civil rights, such as the internment of Japanese Americans during World War II, a perceived emergency does affect courts’ application of the law.

“There are numerous examples of the Supreme Court deferring to government action that would be impermissible in non-emergency situations because of the exigencies of war, economic devastation, or other unforeseeable situations,” Chen said.

Piilani v. Colorado