In the case of the County of Butler, et al, v Thomas Wolf, the District Court for the Western District of Pennsylvania was asked to decide if Governor Wolf’s lockdown and shutdown orders violated the Constitution of the United States. While much of the analysis and reasoning Judge Stickman used was constitutionally flawed, he did come to a constitutionally sound conclusion.
As with most cases of this type, I am frustrated with the repeated attempts to use the First Amendment of the U.S. Constitution against the states. The first five words of that amendment clearly state that it applies to the actions of Congress, and thereby the federal government.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Constitution, Amendment I
I’ve also come to expect judges at both the state and federal level to place the opinions of their fellow judges above even the supreme law of the land. And Judge Stickman, sadly, did exactly that. While reviewing this case I found numerous instances of flawed jurisprudence, but was pleased to find that Judge Stickman did come to the constitutionally sound conclusion that Governor Wolf’s orders violate the Fourteenth Amendment to the Constitution.
42 USC § 1983: Civil action for deprivation of rights
Three groups of plaintiffs, the County Group, the Political Group, and the Business Group, all sued Governor Wolf in civil court listing five (5) counts of violations under 42 U.S.C. § 1983, claiming violations of the First Amendment, along with the Due Process and the Equal Protections clauses of the Fourteenth Amendment. (One of the counts claimed a violation of the Takings Clause of the Fifth Amendment, but that was not covered in the opinion.) The County Group was found not to have standing; since counties are creations of the state and not the Constitution of the United States, they do not posses rights protected by that document. The Political and Business groups however, do have standing.
The fact that they sued under 42 U.S.C. § 1983 is important for two reasons. First, while the plaintiffs are claiming Governor Wolf violated the Constitution, they did not claim he did anything criminal. This means that while the court could find for the plaintiffs, there would be no direct consequences for Governor Wolf. My guess is this is the second reason why they chose this route, because it’s easier to win a civil case than a criminal one. If they had pressed criminal charges under 18 USC § 242 Deprivation of rights under color of law, they would have to have proved beyond a reasonable doubt that Governor Wolf had willingly subjected them to the deprivation of rights protected by the Constitution under color of law. While winning under 42 U.S.C. § 1983 is easier, I believe that it will take several government officials being charged under 18 USC § 242 for them to realize that the American people will no longer stand for their illegal behavior.
State Police Powers
Defendants contend that the gathering limits pass constitutional muster because they are legitimate exercises of Defendants’ police power in an emergency situation and are content‐neutral. (ECF No. 66, p. 24). They contend that “[e]ven in a traditional public forum, the government may impose content-neutral time, place and manner restrictions provided that the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of the information.”
County of Butler, et al, v Wolf
One of the reason the Federalists opposed the creation of a Bill of Rights was the fear that someone would claim the authority to regulate them if they were written down. This idea that a state’s police powers gives them the authority to violate someone’s rights, as long as they are “content neutral” and “justified”, is in direct contradiction of the language of the Constitution.
Under First Amendment jurisprudence, a non-content‐based restriction is not subjected to strict scrutiny, but still must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Perry, 460 U.S. at 45. Here, the Court credits the fact that Defendants’ actions were undertaken in support of a significant government interest‐managing the effects of the COVID‐19 pandemic in the Commonwealth. The congregate limitations fail scrutiny, however, because they are not narrowly tailored. The Supreme Court explained that “the requirement of narrow tailoring is satisfied ‘so long asthe . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799
County of Butler, et al, v Wolf
If the First Amendment applied to the states, the current “First Amendment jurisprudence” is a perfect example of placing the opinion of judges above the language of the law.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Constitution, Amendment I
Notice that the First Amendment doesn’t say the Congress shall make no law unless there is an emergency or unless it is needed to fulfill a “significant government interest”. In fact, I contend there’s only one “significant”, or as it’s more often stated, “compelling government interest”: That of protecting the rights of the people.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
Declaration of Independence
Due Process
Plaintiffs assert that the components of Defendants’ orders closing “non‐life-sustaining” businesses and imposing a lockdown violated their liberties guaranteed by the Due Process Clause of the Fourteenth Amendment. Substantive due process is not an independent right, but rather, a recognition that the government may not infringe upon certain freedoms enjoyed by the people as a component of a system of ordered liberty. Here, Plaintiffs assert two grounds whereby Defendants’ orders violated substantive due process‐in the imposition of a lockdown and in their closure of all businesses that they deemed to be “non-life‐sustaining.”
County of Butler, et al, v Wolf
The Constitution doesn’t mention “substantive” due process or “procedural” due process, just “due process”.
nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV, Section 1
So, what is this due process?
DUE, adjective
Owed; that ought to be paid or done to another. That is due from me to another which contract, justice or propriety requires me to pay, and which he may justly claim as his right.
Webster’s 1828 Dictionary
PROCESS, noun
In law, the whole course of proceedings, in a cause, real or personal, civil or criminal, from the original writ to the end of the suit.
Webster’s 1828 Dictionary
Or as The Free Legal Dictionary states:
due process
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
The Free Legal Dictionary Online
Rather than diving into the swamp of judicial opinions, what the court should have been asking itself is: Was Governor Wolf following a process that safeguarded the legal rights of the individual citizens of the Commonwealth of Pennsylvania?
Plaintiffs argue that the lockdowns effectuated by the stay‐at-home orders violate their substantive due process rights secured by the Fourteenth Amendment. They contend that the orders do not impose traditional disease control measures, such as quarantine or isolation, but rather involuntarily, and without due process, confine the entire population of the Commonwealth to their homes absent a specifically approved purpose. Plaintiffs contend that the lockdown violated their fundamental right to intrastate travel and their freedom of movement. Plaintiffs further argue that, while the power to involuntarily confine individuals is generally strictly limited by law, Defendants’ lockdown was overbroad and far exceeded legitimate government need and authority. They conclude that even compelling state interests “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”
County of Butler, et al, v Wolf
The proper argument, from a constitutional standpoint, is not whether the act was too broad. Instead, government is forbidden from depriving people of their life, liberty, or property without due process of law. Period. No exceptions. Since the act applied to everyone, not just those who could possibly be a danger to others, and since there was not even an attempt made to seek legal justification for the effective house arrest of the people of the Commonwealth, not only was due process not followed, but the state claimed the authority to throw out at least parts of the Constitutions of both the Commonwealth of Pennsylvania and the United States of America.
Lockdowns
Defendants attempt to justify their extraordinary “mitigation” efforts by pointing to actions taken to combat the Spanish Flu pandemic a century ago. Ms. Boateng testified that, in response to the Spanish Flu, “much of the same mitigation steps were taken then, the closing of bars, saloons, cancellation of vaudeville shows, as they called them, and cabarets, the prohibition of large events. So some of these same actions that we’re taking now had been taken in the past.” (ECF No. 75, pp. 203-04). But an examination of the history of mitigation efforts in response to the Spanish Flu ‐ by far the deadliest pandemic in American history ‐ reveals that nothing remotely approximating lockdowns were imposed.
County of Butler, et al, v Wolf
Ms. Boateng, the Executive Deputy Secretary of the Pennsylvania Department of Health, claims that the actions taken by Governor Wolf and his administration are nothing new. Judge Stickman noted that’s far from the historic truth. In fact, he went on to make an interesting comparison of the reactions many in this country have taken in response to COVID-19.
The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-l9 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China ‐ a nation unconstrained by concern for civil liberties and constitutional norms ‐ started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective.
County of Butler, et al, v Wolf
Judge Stickman points out that these lockdowns across the country look more like something from Communist China, or another dictatorship unconcerned with civil liberties, than from the land of the free and the home of the brave.
The stay‐at‐home orders far exceeded any reasonable claim to be narrowly tailored. Defendants’ orders subjected every Pennsylvanian to a lockdown where he or she was involuntarily committed to stay-at-home unless he or she was going about an activity approved as an exception by the orders. Even in the most recent, and currently applicable, iteration of Defendants’ orders, while the operation of the stay-at‐home provisions is “suspended,” it is not rescinded and may be re‐imposed at any time at the sole discretion of Defendants. Thus, Defendants’ orders have created a situation where the default position is lockdown unless suspended at their will. When in place, the stay‐at‐home order requires a default of confinement at home, unless the citizen is out for a purpose approved by Defendants’ orders. More over, this situation applied for an indefinite period of time. This broad restructuring of the default concept of liberty of movement in a free society eschews any claim to narrow tailoring.
County of Butler, et al, v Wolf
Judge Stickman is looking to satisfy the opinions of previous courts that allow an infringement of rights for a sufficient government interest, as long as it’s narrowly tailored. However, he cannot find anything narrowing or limiting, much less one that would comply with the prohibition included in the supreme law of the land.
The Court declares, therefore, that the stay-at-home components of Defendants’ orders were and are unconstitutional. Broad population‐wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of a lockdown may render this a high bar, indeed.
County of Butler, et al, v Wolf
Shutdowns
As with the lockdown, Defendants’ shutdown of all “non-life-sustaining” businesses is unprecedented in the history of the Commonwealth and, indeed, the nation. While historical records show that certain economic activities were curtailed in response to the Spanish Flu pandemic, there has never been an instance where a government or agent thereof has sua sponte divided every business in the Commonwealth into two camps ‐ ‘life-sustaining” and “non-life‐sustaining” ‐ and closed all of the businesses deemed “non-life‐sustaining” (unless that business obtained a discretionary waiver).
County of Butler, et al, v Wolf
As with the lockdowns, the shutdowns of businesses on this scale is unprecedented. While the plaintiffs claimed this was a violation of their liberty, it’s also a violation of their property.
That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called. …
If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the influence will have been anticipated, that such a government is not a pattern for the United States.
James Madison, For the National Gazette, 27 March 1792
As Judge Stickman noted previously in his opinion, these are the tactics of a tyrannical government, not those of the public servants of a free people.
Conclusion
I believe Judge Stickman brought the matter to a fine and eloquent point in his conclusion.
The Court closes this Opinion as it began, by recognizing that Defendants’ actions at issue here were undertaken with the good intention of addressing a public health emergency. But even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair‐weather freedoms‐in place when times are good but able to be cast aside in times of trouble. There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional.
County of Butler, et al, v Wolf
This blatant violation of the most basic tenants of a Constitutional Republic is so egregious I hope the people of the Commonwealth not only remove Governor Wolf as soon as legally possible, but that they press federal charges under 18 USC § 242. For that matter, I hope citizens in every jurisdiction who is or has suffered under these despotic lockdown, shutdown, and mandatory mask orders, will rise up, press charges, and remove from office those vile dictators who implemented them. If we simply stand by and watch while those in government trample our rights, we condemn not only ourselves, but our children, to a life of servitude, serfdom, and misery. Rather, let us take a lesson from Captain John Parker at the Battle of Lexington. When the British commander ordered his militia to disarm and disperse, Captain Parker gave the order:
Stand your ground.
Do not fire unless fired upon.
But if they mean to have war, let it begin here!
John Parker, Captain, Massachusetts Militia, Battle of Lexington, April 19th, 1775
Who in America today will stand their ground? Not to initiate violence, but to be prepared to defend themselves, even from their government. Who is willing to fight today, when we can still do so at the ballot box and in the courtroom? Because if we won’t stand now, what will our children say of us when they are forced to fight on the battlefield for the rights we so flagrantly threw away?
