As Backlash Grows, Legal Challenges to Lockdown Unlikely to Succeed, Say Experts

April 9, 2020 Updated: April 9, 2020

News Analysis

A backlash appears to be brewing among Americans who question the wisdom of curtailing their rights to move freely and assemble in order to combat the CCP virus, experts consulted by The Epoch Times said.

The nation’s governors have invoked sweeping emergency powers to combat the virus that causes the disease COVID-19. Most Americans are now under stay-at-home orders that are intended to fight the contagion by minimizing human interaction.

As of April 7, about 95 percent of the U.S. population, or 306 million people, were under some form of lockdown. Forty-two states, the District of Columbia, Guam, and Puerto Rico have issued stay-at-home orders. Some metro areas, such as Tulsa, Oklahoma; Jackson, Wyoming; and Salt Lake City, are subject to locally issued orders, according to a Business Insider tally.

Government officials say the lockdowns, in which many states are threatening to fine and imprison violators, are critical components in the effort to “flatten the curve,” or prevent the healthcare system from being overwhelmed.

They have been influenced by scientists who say such measures must be taken to prevent mass fatalities.

“Public health is an inexact science” whose tools are “hammers, not scalpels,” said epidemiologist Raywat Deonandan of the Interdisciplinary School of Health Sciences at the University of Ottawa.

Pandemic responses can seem “heavy-handed and overreaching,” but they are “the best alternative to a likely scenario of widespread suffering and death,” Deonandan told The Epoch Times.

“No one loves this solution. But as with all crises, the choice is always up to the people how they wish to face this challenge: with discipline and freedom, or with flagrancy and resulting curtailed rights.”

The limiting of those rights on public health grounds has led to quarantine enforcement actions that have been raising eyebrows.

Nevada Gov. Steve Sisolak, a Democrat who has banned gatherings of more than 10 persons, is threatening to crack down on large family gatherings. “This isn’t the time to have an Easter dinner of 23 people in your immediate family,” he reportedly said.

A Colorado man was arrested for playing T-ball with his wife and 6-year-old daughter in a reportedly empty park. The man, Matt Mooney, complained that the police were not wearing proper safety attire when they detained him.

A man was arrested for paddle-boarding alone in the ocean a few miles away from the Lost Hills, California, sheriff’s station. Some miles away in Manhattan Beach, a surfer who ignored police warnings was issued a $1,000 citation. Los Angeles Mayor Eric Garcetti, a Democrat, announced that customers not wearing face coverings at grocery and drug stores and in taxis can be legally refused service effective April 10.

Vermont has directed large big-box retailers to stop selling “nonessential” items in their stores because doing so generates “significant shopping traffic,” which “increases the risk of further spread of this dangerous virus,” said Lindsay Kurrle, the state’s secretary of state. Among the nonessential items are clothing, toys, sports equipment, beauty supplies, and those related to arts and crafts.

Hair stylists are not allowed to operate in Oklahoma, even if they are working inside homes, according to the governor’s office. Breea Clark, mayor of Norman, Oklahoma, is now requiring residents to limit shopping to odd or even days, based on the individual’s home address.

Some of the more heavy-handed approaches to virus containment have come out of New York and California.

New York Mayor Bill de Blasio, a Democrat, has threatened to permanently close houses of worship that continue to hold public services, a move critics say violates the free-exercise clause of the First Amendment.

California Gov. Gavin Newsom, also a Democrat, raised the possibility of imposing martial law in his state March 17.

Timothy Snowball, an attorney at Pacific Legal Foundation, said Newsom was “almost flippant” when he raised the possibility of martial law.

“We don’t have a complete breakdown, so it was outrageous for Newsom to mention it,” he told The Epoch Times.

Across the country, governments are “instituting measures now that a month ago we would have thought were insane,” he said.

But lawsuits aimed at rolling back emergency powers are likely to get a rough ride in court, he said, because state governments have a lot of leeway during emergencies.

The U.S. Constitution protects the inherent “police powers” of the states to regulate health, safety, and morals, Snowball said.

Curt Levey, president of the Committee for Justice, told The Epoch Times that “every power grab is always preceded by a declaration of a crisis. No one ever says, ‘I’m going to grab more power because I love power.’”

The rules imposed by governors are in many cases “vague enough that they encourage arbitrary enforcement.” Policemen are being forced to make “arbitrary, subjective decisions” by these rules, he said.

Levey wasn’t optimistic that legal challenges would strike down those rules. “Short term? No, they take a while to work their way through the courts, even if we are talking about preliminary injunctions. Judges are influenced by public opinion, and right now, people are afraid to stand up to the overreach.”

“So much of the government reaction is based on panic that I almost don’t recognize the country I’m seeing,” Levey said.