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Lawsuits swell as owners, from gun shops to golf courses, demand to open

  • NEW YORK TIMES
                                A putting green at the Blueberry Hill Golf Club in Russell, Penn., on Thursday.

    NEW YORK TIMES

    A putting green at the Blueberry Hill Golf Club in Russell, Penn., on Thursday.

Blueberry Hill Public Golf Course & Lounge became a community institution almost the day it opened in western Pennsylvania in 1961, with one generation of players succeeding the next on the wooded, undulating course bordering the Allegheny National Forest.

It had its share of misfortune: Last spring a tornado roared through its 400 acres, leaving $100,000 in damages across its 18 holes. With spring now budding early, Jim Roth, the general manager, anticipated a boom year even as coronavirus fears escalated — people still needed exercise, didn’t they?

“I thought I had a little bright light starting to shine, then somebody turned the light bulb off,” Roth said.

That somebody, as far as he was concerned, was Gov. Tom Wolf of Pennsylvania. On March 19, Wolf introduced an initiative to categorize businesses as “life-sustaining” or not, shuttering golf courses among the latter.

So Roth sued, joining a lawyer, a Realtor, a logger, a politician and a laundry owner in demanding that the governor not hold absolute power to open and shut segments of the Pennsylvania economy like a spigot.

“I do not understand why Mr. Wolf is able to deem this business life-sustaining and this one not,” Roth said. “I think the governor might have overstepped his boundaries.”

It is a growing refrain across the United States as more governors invoke their “police powers” to take extraordinary measures to protect public health. Some Americans, many hoping to protect their livelihoods and others suspicious of such sweeping powers, are turning to the courts.

Various political leaders and civic organizations have criticized the measures as excessive and bound to hurt the U.S. economy, a line abandoned by President Donald Trump but still maintained by some allies.

“We have to focus on keeping people employed,” Devin Nunes, the California congressman and top Republican on the House Intelligence Committee, told Fox News this week. “I will tell you this, if we don’t start to get people back to work in this country over the next week to two weeks, I don’t believe that we can wait until the end of April.”

Some of those suing their state governments seek redress for specific, local grievances, as with the golf course or in a similar suit in Pennsylvania being pursued by a company that says it is the country’s oldest manufacturer of orchestra-quality bells and chimes. Those lawsuits and one in Arizona are rooted in the Fifth Amendment, which requires due process and guarantees compensation for property seized by the government.

Other constitutional amendments have been invoked in several lawsuits in recent weeks attempting to force open gun stores or argue that measures to curb the virus should not outweigh rights like freedom of assembly and religion.

“Those may be serious, but they may also be part of an attempt to make an argument in the press about overreach,” said Tom Burke, a political science professor at Wellesley College who studies the politics of litigation.

History dating back to the time of 15th century plagues shows that lawsuits typically plummet during pandemics, Burke said, for the obvious reason that courts are closed. But legal experts anticipate a tidal wave of court activity afterward — especially in fields like insurance and debt collection — because of the economic dislocation caused by the pandemic.

Suits meant to preserve long-established rights often do not prove popular in times like this, with the public endorsing the need to make health a priority.

Dan Hynes, a lawyer and local politician in New Hampshire, was taken aback by the reaction when he sued Gov. Chris Sununu in state court, claiming that even the initial restrictions limiting the size of public gatherings like church services were an infringement on basic rights including freedom of religion and freedom of assembly.

Negative comments flooded into his social media accounts and those of the three other plaintiffs. “Knock it off,” wrote one woman on Facebook. “You can harm others with your sheer ignorance. Or, you can be a good member of a community and society.”

Merrimack Superior Court threw the suit out.

In Pennsylvania, Marc Scaringi, the lawyer for the golf course and others, said that the state’s Disease Prevention and Control Law, last amended in 1959, targets infected individuals. It does not refer to pandemics nor grant the governor the extensive power he is claiming under “other catastrophes,” Scaringi said, especially without due process. Finally, the list of banned businesses seemed to change at random, with even some of his original plaintiffs removed, he argued in court papers.

At the golf course, Roth said he recognized that the measures were for the public good, but exercise was beneficial, too, and he was ready to modify the rules. He could limit golf carts to one per person or even force players to walk, for example, and bar touching the flags.

Across the United States, closing gun shops provoked a series of lawsuits arguing that the measure violated the Second Amendment right to bear arms. Critics filed lawsuits in New York, New Jersey, Pennsylvania, Georgia, Texas and California, where the National Rifle Association was one plaintiff.

David Jensen, the lawyer in a New Jersey case, said his clients were not necessarily arguing that gun shops be allowed to open but that a route be found to allow some gun sales. “You cannot close off the ability of anyone to acquire a firearm,” he said.

Representatives for Everytown for Gun Safety and Moms Demand Action, allied organizations that lobby for stricter gun laws, countered that nothing in the Second Amendment suggested that gun stores enjoy special treatment during a public health crisis.

“Governors should not be pressed into declaring gun stores essential,” said John Feinblatt, president of Everytown for Gun Safety.

Defending First Amendment rights led to lawsuits in various states including New York, Maine, Georgia, Texas and New Mexico.

In New Mexico, the president of the Albuquerque Tea Party, Leland Taylor, filed a federal lawsuit claiming that the emergency orders issued by the governor, Michelle Lujan Grisham, violated the rights to worship and free assembly, among others.

Taylor initially claimed that the virus was not serious enough to warrant such emergency orders, calling it “not as egregious an infection as reported” and one with a “100%” cure rate by using an inexpensive anti-malarial. That echoed statements from Trump about the use of anti-malarial drugs in combination with antibiotics that his own experts later denied.

“This is a frivolous lawsuit based on extremely ​dangerous misinformation that, if widely disseminated, will do nothing but worsen this crisis in New Mexico and lead to more illness and death,” Nora Meyers Sackett, the spokeswoman for the governor, said in an email.

With courts shuttered, plaintiffs usually hope that emergency injunctions or similar measures will win them a quick hearing on the phone. It is hard to prevail in any case, however, over government measures designed to protect public health, legal experts said.

“The general pattern in the middle of a crisis is that courts are very deferential,” said Burke, the political scientist.

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