Antietam Battlefield Koa v. Hogan, Civil Action No. CCB-20-1130

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: Catherine C. Blake, United States District Judge
• Citation: 461 F.Supp.3d 214
• Parties: ANTIETAM BATTLEFIELD KOA, et al. v. Lawrence J. HOGAN, et al.
• Decision Date: 20 May 2020
• Docket Number: Civil Action No. CCB-20-1130

461 F.Supp.3d 214

ANTIETAM BATTLEFIELD KOA, et al.
v.
Lawrence J. HOGAN, et al.

Civil Action No. CCB-20-1130

United States District Court, D. Maryland.

Signed May 20, 2020

461 F.Supp.3d 222

John R. Garza, Garza Regan and Associates PC, Rockville, MD, Daniel Lewis Cox, The Cox Law Center, LLC, Emmitsburg, MD, for Antietam Battlefield, SSG Jason Anderson, LCPL Christopher Repogle, Rev. Christopher Ogne, Rev. James Wickham, Rev. Fredrick Caudle, Rev. John Seay, Rev. Gary Cox, Rev. Steven Dixon, Rev. Johnny Hudson, David Serenda, Delegate Warren Miller, Delegate Dan Cox, Delegate Neil Parrott, Reopen Maryland.

John R. Garza, Garza Regan and Associates PC, Rockville, MD, Philip J. McNutt, Law Office of Philip J. McNutt, Washington, DC, Daniel Lewis Cox, The Cox Law Center, LLC, Emmitsburg, MD, for Adventure Park USA, LLC.

John R. Garza, Garza Regan and Associates PC, Rockville, MD, for Rev. Paul Goodwin.

Adam Dean Snyder, Justin E. Fine, Sarah W. Rice, Office of the Attorney General, Kathleen A. Ellis, Office of the Attorney General Department of Health and Mental Hygiene, Baltimore, MD, for Lawrence J. Hogan, Robert J. Neall, Frances B. Phillips, Woodrow W. Jones, III.

MEMORANDUM

Catherine C. Blake, United States District Judge

461 F.Supp.3d 223

The world is now in the grip of a public health crisis more severe than any seen for a hundred years. In the United States, over 1,480,349 people are confirmed to have been infected with coronavirus and over 89,407 people have died from the disease it causes.¹ In Maryland, over 41,546 people have been infected and over 1,963 people have died.²

In the face of this pandemic, Governor Larry Hogan, using the emergency powers granted to him by the state legislature, has issued a series of executive orders designed to slow the spread of the disease and protect the health of Maryland residents. In so doing he has consulted with and relied on the advice of acknowledged public health professionals. Based on that advice and the data related to the rate and number of infections and hospitalizations, the Governor of necessity has made extremely difficult choices that affect the economic health of the state and impose restrictions on individual liberties that, in ordinary times, are freely enjoyed by all Maryland residents.

The plaintiffs in this case ask the court to enjoin the Governor's orders because of their impact on those individual liberties. But, as the Supreme Court explained more than one hundred years ago: "Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others." Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11, 26, 25 S.Ct. 358, 49 L.Ed. 643 (1905). To overturn the Governor's orders, those who disagree with them must show that they have "no real or substantial relation" to protecting public health, or that they are "beyond all question, a plain, palpable invasion of rights secured by the fundamental law."

In these extraordinary times, for the reasons explained below, the plaintiffs have not met their burden. Their motion for a temporary restraining order, treated as a motion for preliminary injunction, has been fully briefed. No oral argument is necessary, and the motion will be denied.³

FACTS AND PROCEDURAL HISTORY

The spread of COVID-19 in Maryland has been rapid since the first case was reported on March 5, 2020. (ECF 26-2,

461 F.Supp.3d 224

Decl. of Clifford Mitchell, Maryland Department of Health ¶ 33). Since then, and as of May 19, 2020, there have been over 41,546 confirmed cases, 7,199 hospitalizations, and 1,963 deaths. Coronavirus Disease 2019 (COVID-19) Outbreak , Maryland Department of Health, https://coronavirus.maryland.gov/. Although the "vast majority of people who contract the virus experience only mild or moderate symptoms," some individuals who contract COVID-19, especially those in high-risk categories, can experience obstruction of the lungs, acute respiratory distress syndrome, or death. (ECF 26-2, Decl. of Mitchell ¶¶ 5–8). High-risk categories include those above the age of 60 or those with underlying conditions such as cancer, diabetes, or heart disease.⁴ (Id. ¶ 8). COVID-19 is believed to be transmitted through respiratory droplets from an infected person, close personal contact, or touching a surface with the virus on it. (Id. ¶ 9). There is currently no vaccine, cure, or proven effective treatment for COVID-19. (Id. ¶ 10).

In response to the COVID-19 pandemic, on March 5, 2020, Governor Larry Hogan issued a Proclamation of Catastrophic Health Emergency, which declared a state of emergency in Maryland, and which was renewed on March 17, 2020, April 10, 2020, and May 6, 2020. (Compl. ¶ 53; Proclamation, Renewal of Declaration of State of Emergency, May 6, 2020). The Governor also issued a series of executive orders prohibiting gatherings of certain numbers of people and ordering the closure of certain businesses, referred to as "stay at home" orders.

This case was filed on May 2, 2020, when the March 30, 2020, executive order was in effect. On May 6, 2020, the Governor issued an amended executive order (EO 20-05-06-01),⁵ under which individuals were generally required to stay at home (subject to certain exceptions, including conducting or participating in essential activities), gatherings of more than ten people were prohibited,⁶ and non-essential businesses were required to remain closed.⁷ But on May 13, 2020, (the day that the plaintiffs filed their reply), the Governor issued an amended order (EO 20-05-13-01). This order still prohibits gatherings of over ten people and orders the closure of certain non-essential businesses, but allows certain outdoor recreation areas and non-essential retail establishments to open, and allows indoor religious services at 50% capacity, subject to certain operating requirements, including complying with social distancing guidance. (EO 20-05-13-01 ¶ III).

461 F.Supp.3d 225

Violation of the order is a misdemeanor "subject to imprisonment not exceeding one year or a fine not exceeding $5,000 or both." (Id. at ¶ VIII). The order will remain in effect until termination of the state of emergency or until it is otherwise rescinded, superseded, or amended. (Id. ). Also relevant to the plaintiffs’ allegations is the order requiring individuals to wear face coverings in retail establishments and on public transportation. (EO 20-04-15-01, April 15, 2020). The coronavirus-related executive orders all reference Title 14 of the Maryland Public Safety Article. Section 14-3A-03 of that title states that, following the declaration of a catastrophic health emergency, the Governor is empowered to "order the evacuation, closing, or decontamination of any facility" and to "order individuals to remain indoors or refrain from congregating."

The plaintiffs are individuals threatened with arrest if they violate the executive orders or who otherwise object to having to comply; businesses that have been deemed non-essential; and religious leaders whose ability to hold religious services has been affected by the orders. State Delegate Daniel Cox alleges that he was threatened with criminal prosecution if he attended or spoke at a Vehicle-Ride Rally to Reopen Maryland on May 2, 2020, which was to protest the Governor's executive orders, because Cox would be violating the prohibition on large gatherings. (Compl. ¶¶ 1, 68). Antietam Battlefield KOA and Adventure Parks USA, LLC have both been deemed non-essential businesses and forced to close, which has caused them to lose substantial amounts of money. (Id. ¶¶ 2, 3, 23, 24, 70). Staff Sergeant Jason Anderson and Lance Corporal Christopher Repogle are veterans who object to the executive orders, particularly the requirement to cover one's face when entering a retail establishment, because it reminds them of the battlefield in Iraq. (Id. ¶¶ 4, 5). Anderson has also been prevented from obtaining needed physical therapy and an injection in his back because of the orders closing "non-essential" health clinics. (Id. ¶ 25; ECF 1-4, Aff. of Anderson ¶ 5).⁸ Plaintiff Reopen Maryland, LLC is a corporation with 22,000 members seeking redress of the alleged ongoing violations of their constitutional rights. (Compl. ¶ 41). Cox and State Delegates Warren Miller and Neil Parrott allege that they have been prevented from freely speaking and meeting with their constituents, campaigning for office (as to Parrott), holding rallies and events, leaving their home except for reasons deemed "essential," and from ensuring as lawmakers that the laws are not suspended. (ECF 32-3, Decl. of Miller; ECF 32-4, Decl. of Parrott; ECF 32-5, Decl. of Cox).

Reverends Christopher Ogne, James Wickham, Fredrick Caudle, Paul Goodwin, John Seay, Gary Pomrenke,⁹ Gary L. Cox, Steven Dixon, and Johnny Hudson,¹⁰ and Deacon David Serenda object to the executive

461 F.Supp.3d 226

orders which prohibit them from holding religious services with more than 10 people, and from attending...