Virus Outbreak Colorado

This April 16, 2020, photo shows a closed sign hanging in the window of a coffee house since a statewide stay-at-home order was put into effect to stop the spread of the new coronavirus in Denver. Colorado's unemployment rate rose sharply to 4.5% in March, and a much bigger spike is expected as the state economy slows even more amid the coronavirus pandemic, officials said in a report Friday, April 17, 2020. 

A federal judge has dismissed a Denver man’s lawsuit, filed four days after the statewide stay-at-home order took effect in March, seeking to overturn various COVID-19 restrictions in Colorado and in the city of Denver.

On March 30, Michael Lawrence filed a federal complaint against Gov. Jared Polis and Mayor Michael Hancock, alleging coronavirus-related restrictions violated the state and federal constitutions. Lawrence, representing himself, also claimed the COVID-19 pandemic was not nearly as severe or problematic as health authorities portrayed it. 

“Wuhan flu does not constitute a crisis in Colorado,” Lawrence said at the time, referring to the Chinese city where the novel coronavirus originated. As of Saturday, nearly 4,000 Colorado residents have died from the disease.

In his lawsuit, Lawrence, a former restaurant worker, challenged occupancy limitations and other restrictions for restaurants. He also alleged the COVID-19 orders precluded his ability to travel, and that he has had to scuttle planned travel to Kansas City, to North Carolina and even to attend Mass.

Lawrence further argued the state could have achieved its desired public health outcome through “less restrictive means, such as the Swedish government has implemented.” On Saturday, Bloomberg reported that Stockholm’s intensive care capacity was 99% full and healthcare worker resignations totaled 500 a month, after the country opted against a lockdown and relied on voluntary measures to address the pandemic.

In asking for dismissal of the case, the state referenced the 1905 U.S. Supreme Court decision of Jacobson v. Massachusetts, in which the Court upheld a Massachusetts law allowing cities to mandate vaccinations against smallpox. The justices determined that if such laws had real connections to a public health crisis, a community had the right to protect itself from an epidemic of disease.

U.S. District Judge Daniel D. Domenico, in a Dec. 4 order, acknowledged that while a public health emergency did not suspend the Constitution, many executive actions related to the crisis could nonetheless survive judicial scrutiny.

“As this court has recognized in this case and elsewhere, local governments have broad powers to act during an emergency to secure public health and safety,” he wrote.

In October, Domenico granted two Denver-area churches exemption from capacity limits and mask wearing during the exercise of religious activities, writing that there appeared to be disparate treatment of faith houses compared to secular businesses. Although the Supreme Court had previously upheld restrictions on houses of worship, the rushed addition of Justice Amy Coney Barrett in October resulted in a 5-4 decision last month overturning New York’s attendance limits on congregations.

Similarly, in his order in the Lawrence case, the judge was sympathetic to Lawrence’s general contention about the infringement of public health orders on constitutional rights.

“The court shares his concern that what were initially understood as short-term measures have now stretched into the better part of a year,” Domenico wrote. “There is a real danger to civil liberties if courts simply defer to government decisions about what constitutes a public-health emergency and what those governments are allowed to do about it.”

Colorado’s stay-at-home order expired one month after its issuance, followed by a “Safer at Home” phase and finally a “dial” framework prescribing various levels of restrictions depending on a county’s COVID-19 caseload.

“All these orders have since expired and been replaced by less restrictive orders, due in part to the success of the stay-at-home orders Plaintiff still challenges,” the state wrote in its request to dismiss the lawsuit.

To Lawrence’s specific claims that the restrictions adversely affected his liberties, Domenico found there to be no prohibition on Lawrence’s travel, and no evidence that state authorities tried to punish or prevent anyone from leaving Colorado during the pandemic.

Although Lawrence likely suffered financial harm from his employer restaurant’s closure, he did not have a legally protected interest in continued employment there. His restaurant could have chosen to stay open, even under adverse regulations, and, Domenico added, “the State has not outlawed Mr. Lawrence’s profession or imposed any particular restrictions on his employment. “

Finally, the judge ruled Lawrence did not have standing to challenge regulations on employers. Domenico declined to review Lawrence’s claims based on Colorado’s constitution and laws, instead permitting him to bring those allegations forward in state court.

Frederick R. Yarger, a former solicitor general for Colorado, said the ruling, along with similar ones across the country, shows the difficulty of successfully challenging COVID-19 regulations.

"Judges are most concerned when there’s an argument that a person or group, like a church, has been singled out for unfavorable treatment compared to other groups," Yarger said. "Unless a lawsuit credibly makes that kind of claim, courts continue to give governors, mayors and other elected officials a significant amount of leeway to address the COVID-19 pandemic.”

In July, Lawrence told Colorado Politics that the numbers of deaths was “grossly inflated,” and that relative to its April peak in infections, “COVID-19 has not even reached the level of an epidemic in Colorado, much less an emergency.”

Although the summer months experienced relatively low infection rates, in mid-October the state surpassed its April high for infections and has not returned to that level since.

Lawrence indicated to Colorado Politics after Domenico's ruling that he intended to amend his complaint and pursue the challenge further, while still calling into question the seriousness of the pandemic.

"If one considers that 94% of all COVID-19 deaths involve comorbidities, according to the CDC, then for those of us under 65 and with no health problems, there are virtually no deaths at all from COVID-19," Lawrence said. A Reuters fact check has found that claim to be false.

The governor's office and the Denver Department of Public Health and Environment did not immediately provide comment on the court ruling.

The case is Lawrence v. Polis et al.

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