Federal Court Holds Pennsylvania's Shutdown Order Unconstitutional: Stay-at-Home Order

More on this interesting decision (and one that takes a much less government-friendly approach than many other recent decisions on these general topics).

|The Volokh Conspiracy |

I blogged below about the general analysis in Judge William S. Stickman IV's decision in County of Butler v. Wolf (W.D. Pa.), as well as its application to the gatherings ban. But the court also struck down the Governor's order to "stay-at-home except as needed to access, support or provide life sustaining business, emergency, or government services"; that order, the court concluded, violates substantive due process:

Although this nation has faced many epidemics and pandemics and state and local governments have employed a variety of interventions in response, there have never previously been lockdowns of entire populations—much less for lengthy and indefinite periods of time…. [T]he lockdown effectuated by the stay­at-home orders is not a quarantine. A quarantine [under Pennsylvania law] requires, as a threshold matter, that the person subject to the "limitation of freedom of movement" be "exposed to a communicable disease." Moreover, critically, the duration of a quarantine is statutorily limited to "a period of time equal to the longest usual incubation period of the disease." The lockdown plainly exceeded that period….

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." 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.

Records show that on October 4, 1918, Pennsylvania Health Commissioner B. Franklin Royer imposed an order which closed "all public places of entertainment, including theaters, moving picture establishments, saloons and dance halls and prohibit[ed] all meetings of every description until further notice." The order left to local officials the decision on whether to cancel school and/or religious services. The restrictions were lifted on November 9, 1918…. [S]tate and local mitigation measures were of similarly short durations across the nation. While, unquestionably, states and local governments restricted certain activities for a limited period of time to mitigate the Spanish Flu, there is no record of any imposition of a population lockdown in response to that disease or any other in our history….

[Still,] just because something is novel does not mean that it is unconstitutional….

[I]n Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990). In Lutz, the Third Circuit examined a municipal ordinance regulating car cruising and unequivocally held that "the right to move freely about one's neighborhood or town, even by automobile, is indeed, 'implicit in the concept of ordered liberty' and 'deeply rooted in the Nation's history.'" … [The Third Circuit applied intermediate scrutiny to the cruising ordinance, but t]he Court wonders whether the lockdown effectuated by the stay-at-home provisions of Defendants' orders are of such a different character than the municipal car cruising ordinance as would warrant the imposition of strict scrutiny.

{[And courts have also] long recognized that beyond the right of travel, there is a fundamental right to simply be out and about in public. City of Chicago v. Morales (1999) (striking down an antiloitering ordinance aimed at combatting street gangs and observing that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment."). See also Papachristou v. Jacksonville, 405 U.S. 156, 164-65 (1972) (citing a Walt Whitman poem in extolling the fundamental right to loiter, wander, walk or saunter about the community); Bykofsly v. Borough of Middletown, 429 U.S. 964 (1976) (Marshall, J., dissenting) ("The freedom to leave one's house and move about at will is of the very essence of a scheme of ordered liberty, … and hence is protected against state intrusions by the Due Process Clause of the Fourteenth Amendment.") (internal citation and quotation marks omitted)); Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) (referencing Papachristou and stating "[t]he right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society.").} …

While the Third Circuit applied intermediate level scrutiny to the limited time, place and manner restrictions on the right to intrastate travel imposed by the [anti-cruising] ordinance at issue, there are substantial grounds to hold that strict scrutiny should apply to the stay-at-home provisions of Defendants' orders. The intrusions into the fundamental liberties of the people of this Commonwealth effectuated by these orders are of an order of magnitude greater than any of the ordinances examined in right to travel cases, loitering and vagrancy cases or even curfew cases.

Defendants' stay-at-home and business closure 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. This is, quite simply, unprecedented in the American constitutional experience. The orders are such an inversion of the usual American experience that the Court believes that no less than the highest scrutiny should be used.

However, the Court holds that the stay-at­-home orders would even fail scrutiny under the lesser intermediate scrutiny used by the Third Circuit in Lutz. A critical element of intermediate scrutiny is that the challenged law be narrowly tailored so that it does "not burden more conduct than is reasonably necessary." 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…. 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. Moreover, 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.

In addition, the lack of narrow tailoring is highlighted by the fact that broad, open-ended population lockdowns have never been used to combat any other disease. In other words, in response to every prior epidemic and pandemic (even more serious pandemics, such as the Spanish Flu) states and local governments have been able to employ other tools that did not involve locking down their citizens. Although it is the role of the political branches to determine which tools are suitable to address COVID-19, the 2017 CDC guidance highlights the fact that governments have access to a full menu of individual and community interventions that are not as intrusive and burdensome as a lockdown of a state's population.

Finally, the Court observes that the suspension of the operation of the stay-at-home order highlights that it "burdens more conduct than is reasonably necessary." In other words, Defendants are currently using means that are less burdensome to the rights of a free people.

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.

The court also held that the challenge to the stay-at-home order is not moot, even though it has been "suspended," because it hasn't been withdrawn outright and may yet be reinstated. I'm not sure whether the court's decision, either on the substance or the mootness, was sound, but I thought it worth passing along. I also have a separate post on the court's striking down the business shutdown order.

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  1. It restores some faith to see this official articulation of what should be common sense.

  2. Good. This absurd political hoax can finally come to an end.

    The data do not support the socialist tyranny imposed upon us by these deranged Biden Voters.

    1. Ah yes, the ‘hoax’ that has killed 195k of your fellow Americans in the last seven months.

      You don’t deserve to speak or to be heard.

      1. Someone’s butthurt and gullible. Awww…

      2. More to the point: 195K deaths is not nearly as dramatic as you and others think. It is far fewer than die from heart disease and cancer, and a bad flu season approaches that level.

        Even more to the point: it is wildly inaccurate. It is less than excess deaths, which tells the observant observer that both figures are pretty vague and almost useless. It also includes a whole lot of deaths with COVID-19, not just deaths from COVID-19.

        And finally, the average age of even that wildly inflated statistic is over 80, and the younger you are, the less likely to be infected, to be symptomatic, to be infectious, and to die.

        So take your drama elsewhere. Come back with some actual arguments, legal, medical, or something better than butthurt alarmism.

        1. Regarding your flu claims:

          https://www.cdc.gov/flu/about/burden/index.html#:~:text=While%20the%20impact%20of%20flu,61%2C000%20deaths%20annually%20since%202010.

          Not a single statement you made is accurate, so kindly go fuck yourself.

          Better yet, go lick some doorknobs until you get COVID.

          1. https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index.htm

            55+ account for 139,009 of the 175,886 deaths. That’s 80% of the deaths.

            And note the weasel wording it’s “Deaths Involving COVID”.

            Deaths involving COVID.

        2. It is really too bad you aren’t among the 195k dead.

          It wouldn’t be “nearly as dramatic as you and others think.”

          After all, people die of other causes.

          1. After all, people die of other causes.
            We should shut everything down until there are no deaths from any cause.

      3. What is the minimum number of deaths that you see as justifying these measures? It is 195k exactly? Some lower number? Any number greater than zero?

        You don’t deserve to breathe.

        1. I’ve heard “if it saves one life”, so any action that saves a life is worth the cost.

        2. The minimum number to justify these lockdown measures? Multiple millions. Several studies that looked at the increase in suicides, domestic violence and other consequences of putting this many people into longer isolation and economic crisis have estimated that the lockdown measures are causing approximately 10 times as many deaths as they are saving.

          1. No such studies exist. 200k people have died from covid in the U.S. You think that 2 million more people have died of suicide and domestic violence?

  3. 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…. 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. Moreover, 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.

    To me, this was the essence. The lockdown confined us as a default. Totally backwards. It is lamentable that it took this long for a judge to finally say in an opinion what many have been saying for some time now.

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