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Federal judge will not stay order that gathering limits are unconstitutional

By The 5 min read

A federal judge found there was no reason to stay his ruling that gathering limits in Pennsylvania are unconstitutional.

Not granting a stay, U.S. District Judge William S. Stickman IV wrote Tuesday, is unlikely to cause irreparable harm.

“It is critical to note that the court did not hold that defendants (Gov. Tom Wolf and Secretary of Health Dr. Rachel Levine) were powerless to enact limitations on gatherings. Rather, the court merely held that the First Amendment will not permit a specific numeric cap on some gatherings while imposing a limitation based on general occupancy on other gatherings,” Stickman wrote.

A May lawsuit initiated by lawmakers, businesses and individuals in Fayette, Greene, Washington and Butler counties challenged the constitutionality of gathering limits (currently 25 indoors and 250 outdoors), stay-at-home and business closure orders. Stickman ruled last week that all three measures are unconstitutional, though stay-at-home and non-life-sustaining business closure orders were suspended several months ago.

Attorneys for Wolf and Levine asked Stickman to stay his ruling while they appealed to the 3rd Circuit Court, but Stickman denied the request and entered his judgment.

Wolf said at a press conference Tuesday officials will move ahead with the appeal, and Levine advised people to continue avoiding large gatherings despite the ruling, referencing gatherings that have resulted in high numbers of cases and deaths.

“It’s not OK,” she said of gathering in large groups. “There are consequences to people’s actions. What this virus has certainly taught us is that we’re all interconnected and you can’t avoid that. This is not a political issue. It’s not a partisan issue. It’s a public health issue. The virus is a biological entity. It’s going to spread and reproduce. That’s what it does.”

She said she is concerned that any large gatherings will cause a surge in cases.

When Wolf issued orders, officials had only limited information to direct their actions. He called his own steps like closing schools and stay-at-home orders “draconian” and the 250-limit on outdoor gatherings “an arbitrary number.”

“We did that because the only thing we knew was the virus seemed to like it when people got together,” he said.

The measures worked, he said, preventing hospitals from being overtaxed and flattening the curve. He cited studies that said the measures prevented thousands of additional cases. Now, he said, hospitalizations are dropping and the data shows Pennsylvania has some of the lowest numbers of the coronavirus compared to other states.

In denying the request for a stay, Stickman said he felt there was little likelihood that attorneys for the state would be successful on appeal, contending they did not offer “any specific evidence” to differentiate between numerical gathering limits and occupancy limits.

He stated that occupancy limits across the state are between 50% and 75% for businesses, and noted Wolf and Levine had just increased restaurant occupancy limits this week.

“(T)here is simply no evidence that would justify, from a constitutional perspective, the disparate treatment of gatherings,” Stickman wrote.

He indicated other federal judges have ruled similarly – striking down COVID-19 gathering limits that were more restrictive than occupancy percentage limits.

While state attorneys contended the decision hampers the “ability to adjust to an uncertain future” and could potentially lead to more deaths, Stickman wrote that there was no evidence to support that argument.

During testimony taken as part of the suit, the judge noted, no witnesses brought by the state were able to explain why gathering limits were necessary when occupancy limits were in place.

“For example, nobody explained why hundreds may gather indoors to shop (the larger the facility, the more people permitted), dozens may dine in a restaurant (again, the larger the restaurant, the more will be permitted), but no more than 25 may attend an indoor lecture, a speech or a wedding,” Stickman wrote.

He also made note of a confidential court settlement reached between the state Department of Health and the operator of a car show that allowed crowds of people beyond gathering limits to attend, and protests across the state.

Wolf himself attended a large protest, Stickman wrote.

“Defendants’ treatment of (the car show) and the large public protests across the commonwealth undermine their current argument that imminent and irreparable harm will occur absent their ability to impose numeric occupancy caps,” Stickman wrote.

He found the record in the case does not explain why some gatherings are acceptable, “but the inability to cap some gatherings in some locations for some purposes will cause the super-spread of COVID-19 and lead to immediate and irreparable harm.”

“The Constitution is the law of the land and protects the rights of all citizens. The public interest would be ill served if the court would grant a stay allowing the unconstitutional measures to remain in place,” Stickman wrote.

Wolf said Tuesday he has not seen people changing their habits after the court order came down on Friday, and does not expect that people will begin holding large gatherings.

“People in Pennsylvania have shown they don’t want to get this disease,” he said. “They’re doing a lot of things, like wearing masks, they’re doing to do a lot of things like practicing social and staying away from crowds.”

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