Ohio’s COVID-19 lockdown is illegal, a state judge ruled today, because it exceeds the powers granted by the statute under which it was imposed. Responding to a May 8 lawsuit filed by the 1851 Center for Constitutional Law on behalf of 35 gyms, Lake County Court of Common Pleas Judge Eugene Lucci enjoined Ohio Department of Health Director Amy Acton from penalizing the plaintiffs or similar businesses for violating the lockdown, provided “they operate in compliance with all applicable safety regulations.”
In issuing her business closure and stay-at-home orders, Acton relied on a statute that gives her department “ultimate authority in matters of quarantine and isolation.” Lucci concluded that Ohio’s lockdown does not meet the legal requirements for “isolation,” which is defined as “the separation of an infected individual from others during the period of disease communicability,” or a “quarantine,” which is defined as “the restriction of the movements or activities of a well individual or animal who has been exposed to a communicable disease during the period of communicability of that disease.” A quarantine is supposed to last only as long as “the usual incubation period of the disease”—two to 14 days, in the case of COVID-19.
By contrast, Lucci writes, “The director has quarantined the entire people of the state of Ohio, for much more than 14 days. The director has no statutory authority to close all businesses, including the plaintiffs’ gyms, which she deems non-essential for a period of two months. She has acted in an impermissibly arbitrary, unreasonable, and oppressive manner and without any procedural safeguards.”
Gov. Mike DeWine already planned to let gyms and fitness centers reopen next Tuesday, subject to social distancing and other COVID-19 precautions. But Lucci’s injunction adds to the smattering of court decisions recognizing that state officials must comply with the law even when they are responding to a public health emergency.
In this case, Acton purported to criminalize a wide range of previously legal conduct, threatening violators with a $750 fine and up to 90 days in jail. But those misdemeanor penalties are legally authorized only for people who violate orders that fit within the health department’s statutory powers. Lucci concluded that Acton’s orders did not.
“The general public would be harmed if an injunction was not granted,” Lucci writes. “There would be a diminishment of public morale, and a feeling that one unelected individual could exercise such unfettered power to force everyone to obey impermissibly oppressive, vague, arbitrary, and unreasonable rules that the director devised and revised, and modified and reversed, whenever and as she pleases, without any legislative guidance. The public would be left with feelings that their government is not accountable to them.”
In addition to the injunction, the plaintiffs are seeking compensation for lost income and legal costs.
“Constitutions are written to prevent governments from arbitrarily interfering in citizens’ lives and businesses,” 1851 Center Executive Director Maurice Thompson said in response to the ruling. “On that front, the call to action is clear: The governor and health director may no longer impose their own closures and regulations and write their own criminal penalties to enforce those regulations and closures. We remain available to serve those who are caught in the state’s tangled web of unlawful orders.”
While Lucci focused on the statutory provision addressing quarantines, Case Western Reserve law professor Jonathan Adler suggests in a Volokh Conspiracy post that another, more general provision of the law, allowing “special or standing orders or rules…for preventing the spread of contagious or infectious diseases,” could be read to authorize the lockdown. Replying by email, Thompson says that interpretation would improperly delegate legislative powers to the executive branch. “That section is vague, broad, and unconfined,” he writes. “It fails to place guardrails on administrative authority, especially when [the law] authorizes imposition of criminal penalties for any disobedience of ‘any order’ made pursuant thereto, without more.”
As soon as state and local officials realized they could create draconian, constitutional violations of civil liberties and get away with it, they quickly held a competition to see which one could do the worst.
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Every single government official who engaged in this criminal misconduct should be held accountable.
This country was shut down over a virus with a 98% recovery rate. 26 million Americans are now unemployed. People lost their jobs, homes, livelihoods, and businesses because of this induced panic. The economic impact will take years to overcome.
The coronavirus will come and go. But the government will never forget how easy it was to take control of your life; to control every event, restaurant, sports facility, classroom, church, and even if you are allowed to leave your house.
Remember that if the government tries to pull another manufactured crisis.