Is Sheltering in Place Ordinance Unconstitutional? Man Sues Local Government

An owner of a gun store has filed a lawsuit against a local government in which he is based, claiming that the emergency ordinance to “shelter in place” which was imposed by that government is unconstitutional and “an abuse of police power.”

Is Sheltering in Place Ordinance Unconstitutional? Man Sues Local Government

In response to the 2019 Novel Coronavirus — which is also known as COVID-19 or 2019-nCoV — pandemic, several counties in the state of Georgia have issued emergency ordinances for residents to isolate themselves at home as much as possible in an effort to attempt to slow the spread of the virus, with permission granted for activities such as shopping…

…and Athens-Clarke County is one of them, with its own version of the ordinance in effect as of Friday, March 20, 2020.

Kelly Girtz — who is the current mayor of Athens-Clarke County — explains the mandatory ordinance in this video, among other items related to the coordinated fight of the spread of 2019 Novel Coronavirus.

Girtz considers the lawsuit a distraction as one of the “wasteful filings that lack legal standing”, according to this article written b

As the owner of a business which has been substantially impacted negatively by the emergency ordinance, Andrew Clyde filed the lawsuit, claiming that there is no rational basis which requires gun stores to cease their business operations; and that it violates the Due Process and Equal Protection guarantees of the constitutions of both Georgia and the United States. Clyde Armory is a store which sells firearms and ammunition in Athens.

The “shelter-in-place ordinance’s ‘overly broad and vague’ language allows the the government to arbitrarily decide which businesses are considered ‘essential’ and exempt from the ordinance,” according to the aforementioned article. “Closing gun stores has the same effect as a handgun ban, Clyde maintains, because it ‘interferes with an individual’s right to self-defense.’”

Clyde — who is a candidate seeking to be elected as a Republican member of the House of Representatives of the United States — was one of the people who was responsible for the passage of a bill in Congress known as the Clyde-Hirsch-Sowers RESPECT Act. RESPECT is a loose acronym for the Restraining Excessive Seizure of Property through the Exploitation of Civil Asset Forfeiture Tools Act, which limits the power of the Internal Revenue Service to seize property in the absence of criminal wrongdoing. The bill was signed into law by Donald Trump — who is the current president of the United States — on Monday, July 1, 2019 as part of the Taxpayers First Act.

Civil asset forfeiture is a legal process in which law enforcement officers may — without permission or advance notice — seize assets from anyone who is suspected of being involved with a crime or illegal activity; and the owners of the property which is taken are not necessarily required to be charged with any wrongdoing. You can read more about civil asset forfeiture in this article at The Gate from Thursday, June 9, 2016.

On Friday, April 12, 2013, the Internal Revenue Service had seized $940,313.00 in bank deposits from Clyde, which were allegedly initially deemed as suspicious. Investigators ultimately were unable to prove that any criminal activity occurred; and Clyde eventually had most of his money returned to him.

Athens is the largest city within Clarke County in the state of Georgia; and both are consolidated into one combined government entity — hence the name Athens-Clarke County. It is located approximately 70 miles east northeast of Atlanta; and it is the home to the University of Georgia and largely a college town.

Summary

Is this merely a publicity stunt to support the candidacy of Andrew Clyde to become elected as a member of the House of Representatives of the United States — or does he have a valid point that governments are usurping their authorities in a guise as part of a legitimate worldwide emergency health situation?

This article is the latest in a series pertaining to the 2019 Novel Coronavirus in an effort to get the facts out with information derived from reliable sources — as well as attempt to maintain a reasoned and sensible ongoing discussion towards how to resolve this pandemic.

Other articles at The Gate which pertain to the 2019 Novel Coronavirus include:

A shopping mall remains closed for business amidst the 2019 Novel Coronavirus pandemic. Photograph ©2020 by Brian Cohen.

16 thoughts on “Is Sheltering in Place Ordinance Unconstitutional? Man Sues Local Government”

  1. Dan says:

    Below is one article on this subject of state powers in a health crisis. States do have police powers and in this situation their powers are greater than the federal government but in short they do have limits. I have not read the specifics of what kind of shutdown orders are in place in Georgia but in at least some other states they considered beer distributors to be “essential” operations which to me is an example of how the orders in general are rather arbitrary and without a lot of justification behind duration or how or why they are being applied. Right now most people are terrified so the states are being cut a lot of slack. As this drags on and the spread of the virus become a lot more uneven we may see more challenges.

    Is this guy is grandstanding or not? Maybe or maybe not but keep in mind the gun store ban has been challenged in other states. Whether you agree or not with him is probably a function of your view of the Second Amendment.

    https://reason.com/2020/03/18/police-powers-during-a-pandemic-constitutional-but-not-unlimited/

    1. Brian Cohen says:

      One comment to the article which you linked is rather thought provoking, Dan:

      “What is mentioned in the article is that yes the state can quarantine the sick but where does it have the right to essentially quarantine the healthy under shelter in place laws. The healthy can not make people sick until proven to be a guilty.”

      That is actually a good question…

  2. NB_ga says:

    As a Georgia resident (whose own county was placed under a Shelter in Place ordinance just 14 hours ago), I am similarly confused by what our local governments are erratically considering essential businesses.

    I continue to contend that much of this Covid-19 is hoopla is ridiculous. But if an order is in place, some common sense should be used in assessing what businesses are exempt from closing… the fast food drive-through coffee shop at which my teenagers are employed is essential, but a gun shop is not? The legal ability to obtain fire arms does not seem to be an industry that is superfluous nor do not see how the store in question would be unable maintain safe social distancing requirements – so I really do not see why it needs to be shut down at all.

    It is conceivable that Clyde’s lawsuit (especially given his apparent history of civil liberty activism) could be construed as a convenient advertisement, or even a publicity stunt, in relation to his upcoming Senate bid. That said, the quote from the Mayor in the referenced Athens Banner-Herald article, ““While residents of Athens pull together to protect the health and welfare of everyone in the region, we will not be distracted by wasteful filings that lack legal standing. As I carry my banana peels and coffee grounds to my compost heap, I have room for this too,” he said” is so incredibly arrogant and childish that I find it difficult to support much of anything he says!

    All sides seem to have some guilt in the chaos but I tend err on the side of personal rights and support keeping open any business that can abide by the currently accepted distancing requirements.

    1. Brian Cohen says:

      I stumbled upon this article pertaining to whether gun dealers are considered essential, NB_ga:

      https://reason.com/2020/03/26/do-gun-dealers-count-as-essential-businesses-that-can-stay-open-under-covid-19-lockdowns/

      I agree that the comments by the mayor were not exactly conducive to thoughtful discussion; and I further agree with you pertaining to erring on the side of upholding personal rights — even during an emergency.

      The real test will be once this pandemic — and, moreso, the worry and panic which is currently being fueled — subsides as to whether any permanent damage to personal rights and freedoms has occurred…

      1. NB_ga says:

        Thanks for the article link.

        Especially disturbing are the words of Los Angeles County Sheriff Alex Villanueva… “We will be closing them… They are not an essential function… now you have the mixture of people that are not formerly gun owners, and you have a lot more people at home, and anytime you introduce a firearm in a home, from what I understand from CDC studies, it increases fourfold the chance that someone is gonna get shot.”

        The idea that one sheriff can just decide that this is an opportune time to disallow legal gun ownership by U.S. citizens?! I fear this is just one of many basic rights that will be stripped during this pandemic response and will, quite possibly, remain stripped once the dust has settled. The trauma of the response continues to outweigh the apparently danger of the virus itself.

        1. Joseph N. says:

          That is out-of-date info. The LA sheriff backed down.

          Here is what happened. The State said any business that serves an essential business is an essential business. Then the Governor issued a rule that no locality could use their own list of essential businesses instead of the State’s list. Boom, gun shops can stay open in California.

          1. NB_ga says:

            Thanks for the update @Joseph N! Happy to hear things were cleared up in California. The sheriff’s remarks are scary in any event but glad to learn that the situation was handled. Curious to see how it plays out here in Georgia.

  3. Howard says:

    As a non-gun owner, coastal elite type, I honestly say: Our country needs a LOT more of this.

    Bravo sir. Standing up to a government that has no qualms about enforcing its rule on all of us.

    Love it, hope you win!

    1. Brian Cohen says:

      Although I generally agree with you, Howard, I am not so sure it is as easy as that.

      I understand that in certain jurisdictions, members of the constituency are vehemently demanding that their leaders enforce perceived draconian measures on all of the people within that jurisdiction.

      Brian Kemp — who is the current governor of the state of Georgia — at this time has not ordered all citizens to isolate because he is weighing the demands of some Georgians in some jurisdictions with the needs of other Georgians in other jurisdictions; and I respect that.

      Are leaders enacting seemingly unconstitutional measures for the good of their constituents — or are they kowtowing to pressure in the hopes of continuing their careers in politics and leaving a positive legacy for themselves?

      1. NB_ga says:

        Our local leaders are absolutely succumbing to outside pressure.

        I am not often a fan of Governor Kemp but applauded his relatively level-headed response to the crisis in his press conference earlier this week. But he has been under near constant social media attack since that moment. A local city mayor is quoted as saying, “The citizens have overwhelmingly asked the Council to look out for their interests during this pandemic,” in reference to his recent shelter-in-place order. Very vague terms but essentially giving in to the hysterical as opposed to the more rational call by our governor.

        If nothing else, this pandemic will give us all some valuable guidance in the upcoming election season.

  4. Scott says:

    I think testing these actions in court is a healthy part of our functioning government. Also, even though states do have broad powers, I suspect that many municipalities have grossly overstepped their authority, but the legality probably varies from state to state.

    I live in Denver, and Denver for some reason has far more restrictive orders than Colorado does. I’m definitely seeing the downside of living an area that’s controlled by lefty authoritarians.

  5. John says:

    USA is a free country we enjoy lots of freedoms and rights much more compared to other places in the world but as US citizens we must understand once a “State of Emergency” or “National Emergency” has been declared as in this pandemic all right and freedoms become suspend giving power to those in charge to alter life as we know it until order has been restored. If you don’t like that move out of the USA find a country that you believe will give you the freedoms you desire.

    1. NB_ga says:

      Valid point to a degree. National security is extraordinarily important.

      But intertwined cities and counties can not agree on their new rules, several local municipalities choose to arbitrarily alter the direction of their state governor, and all of the above tend to run counter to the directives of the federal government. The confusion on who is in charge muddles the idea that what we are doing is actually being done for the greater good. Just willingly “giving power to those in charge to alter life” is terrifying, even more so when those in power cannot seem to come to any sort of logical consensus. Even is times of trouble, *blindly* following any command is rarely a good idea.

    2. Dan says:

      I think you misunderstand the nature of our rights. This country was founded on the principle that people have natural rights which in a nutshell are life, liberty and the pursuit of happiness(property). We do not have rights because the government deigns to give or take them away. In fact some objected to the Bill of Rights on the grounds that these rights were by definition protected and that enumerating the rights night lead to them unintentionally ending up being infringed. Accepting a declaration of a state of emergency as automatically valid put us on the road to tyranny. There are limits on our rights(like not being able to falsely yell fire in a crowded theater) but those limits have to have strong justification.

  6. James says:

    Local governments should not be making these decisions. Only the states should decided which businesses should open or close. The area I live is 3 counties and multiple cities. Chaos will result when every municipality is doing something different.

  7. John Waterson says:

    Clyde is absolutely correct that a municipality, county, state or national emergency declared by an executive does not invalidate fundamental freedoms which are central to safeguarding against an emergency in the first place. An attack on freedom is an emergency in itself. Just because the Chinese Government declared an emergency did not legitimize its crackdown and ban on doctors and nurses alerting the public and world about the severity of what we now know as Coronavirus. Speech should never be banned.

    In this case I do understand the sheltering in place orders. It’s one time where government is actually useful and being sensible. It’s dangerous however for courts to rule they are constitutional because that will serve as a pretext for future non pandemic uses and serve as the basis for an even more police state. Clyde is correct in that these designations of what is and is not essential is arbitrary and capricious. Liquor stores are considered essential in NYC while many businesses are not. Buying a means of self defense is as essential as the food and water we need for survival, especially in an emergency as in an emergency you may have to defend your family and be isolated from help.
    In this specific situation with a 2-3% death rate and infrastructure remaining in place, it is effectively a non issue and I am torn between him challenging it. Sometimes it is best to force a ruling one way or the other. I do applaud his courage and for having fought against civil asset forfeiture laws which are a symptom of the war on drugs and government saying you don’t own your own body and have no right to decide what you put in it.

    For non essential businesses I do understand the logic of the government banning commerce using public streets and side walks for access and ordering these non essential businesses closed for a pandemic of this magnitude. People however should never be arrested for walking in the street or congregating on private property even though it is not wise.

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