Lewis v. Cuomo

• Docket Number: 20-CV-6316 CJS
• Decision Date: 08 December 2021
• Parties: BRANDON LEWIS, THE FIRING PIN, LLC, SHANNON JOY, JAMES OSTROWSKI, STEPHEN FELANO, DUANE WHITMER, SETH DUCLOS, and LISA REEVES, doing business as Big Red Barber Shop, Plaintiffs v. ANDREW M. CUOMO, individually and as Governor of New York, LETITIA JAMES, individually and as Attorney General of the State of New York, KEITH M. CORLETT, individually and as Superintendent of the New York State Police and EMPIRE STATE DEVELOPMENT CORPORATION, Defendants
• Court: U.S. District Court — Western District of New York

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BRANDON LEWIS, THE FIRING PIN, LLC, SHANNON JOY, JAMES OSTROWSKI, STEPHEN FELANO, DUANE WHITMER, SETH DUCLOS, and LISA REEVES, doing business as Big Red Barber Shop, Plaintiffs v. ANDREW M. CUOMO, individually and as Governor of New York, LETITIA JAMES, individually and as Attorney General of the State of New York, KEITH M. CORLETT, individually and as Superintendent of the New York State Police and EMPIRE STATE DEVELOPMENT CORPORATION, Defendants

No. 20-CV-6316 CJS

United States District Court, W.D. New York

December 8, 2021

DECISION AND ORDER

CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE

INTRODUCTION

Plaintiffs filed this action to challenge various aspects of the Covid-19 “lockdown” imposed in the State of New York beginning in March 2020. Specifically, Plaintiffs maintain that the New York State Legislature's decision in response to the Covid-19 pandemic, to hastily amend New York State Executive Law § 29-a to grant greater emergency powers to former Governor Andrew Cuomo (“the Governor” or “Cuomo”), and Cuomo's subsequent issuance of various executive orders pursuant to that law, as well as his later delegation of powers to “unelected officials throughout the State, ” was unlawful and violated their federal constitutional rights. Apart from challenging the process by which Cuomo came to exercise such emergency powers, Plaintiffs also contend that Cuomo's executive orders imposed unconstitutional restrictions on their federal constitutional rights. Defendants, meanwhile, maintain that the actions taken by the legislature and Cuomo were perfectly lawful, and that the executive orders did not violate any federal constitutional provision. Plaintiff's claims are primarily against Cuomo, though they also maintain that State Attorney General Letitia James (“James”), former New York State Police Superintendent Keith Corlett (“Corlett”) and the Empire State Development Corporation (“ESDC”) were involved in the alleged constitutional violations. Now before the Court are motions to dismiss by James, Corlett and ESCD. (ECF Nos. 20 &amp 23).^[1] For the reasons discussed below, the applications are granted.^[2]

BACKGROUND

On May 15, 2020, Plaintiffs commenced this action with the filing of a Complaint purporting to seek vindication of various rights guaranteed by the U.S. Constitution which, Plaintiffs contend, Defendants opportunistically violated (based on their political and philosophical opposition to those rights, especially Second Amendment rights) while ostensibly responding to the Covid-19 Pandemic. The Complaint identifies the particular rights at issue as

various rights, including natural rights, protected by the United States Constitution, including the right of public and religious assembly under the First Amendment, the right to keep and bear arms under the Second Amendment, the right to be free from unlawful seizures under the Fourth Amendment, the right to operate a business under the Fifth and Fourteenth Amendments, and the right secured by the Fifth, Ninth, Tenth and Fourteenth Amendments and the Guarantee Clause to be free of all restrictions unlawfully decreed by the Governor in response to the coronavirus (Covid-19) pandemic.

Compl. ¶ 1. The Complaint purports to seek relief from this Court “pursuant to 28 U.S.C. §§ 2201, 2202, 42 U.S.C. § 1983.”

The Complaint recites that “[o]n March 2, 2020, apparently in response to the Coronavirus [outbreak], the New York State Legislature passed a bill amending Section 29-a of the Executive Law to increase the Governor's powers to deal with a broad array of emergencies.” The Complaint maintains that this amounted to an illegitimate delegation of legislative power to Cuomo by the Legislature. The Complaint states that Cuomo, armed with these additional powers, proceeded to issue a series of executive orders limiting the operation of, and access to, institutions and establishments where people would ordinarily congregate, such as churches, synagogues, schools, places of employment, movie theaters, shopping malls, restaurants, amusement parks, bowling alleys, gun shops, barber shops and hair salons. The Complaint refers to these various restrictions collectively as “the lockdown.” The Complaint notes that Cuomo further issued executive orders requiring citizens to wear face coverings in various settings. Further, the Complaint indicates that on May 11, 2020, Cuomo purported to delegate “his emergency powers to regional committees and officials, [giving them] vast discretion to continue any of his emergency decrees, ” thereby “unlawfully delegat[ing] the very same legislative powers that were unlawfully delegated to him.”

The Complaint maintains that this entire series of events was unlawful, and, in particular, that the delegations of legislative power, first by the legislature and then by Cuomo, were “all in violation of due process and the Guarantee Clause” of the U.S. Constitution. More specifically as to this point, the Complaint states:

169. On March 2, 2020, the State Legislature passed a bill that gave the Governor unprecedented powers to rule by decree in vaguely defined emergency situations.

170. The law had previously given the Governor only the power to suspend statutes in such cases.

171. The statute [New York Executive Law § 29-a] improperly delegates wholesale legislat[ive] power to the Governor which was delegated by the people only to the Legislature and only under strict procedural requirements including dividing the legislative power into two separate houses, the Senate and the Assembly, and requiring their election by district every two years and by dispersing that power among what is currently 213 legislators. NY Constitution, Article III, Section 1, et seq.; Cf., German Enabling Act of 1933 (“Laws enacted by the Reich government shall be issued by the Chancellor and announced in the Reich Gazette.”)

172. The State Constitution gives all legislative power to the Legislature only.

173. Thus, the Governor has no legal authority or jurisdiction to issue directives and all such directives are null and void ab initio just as they would be if issued by any other of the other 19, 440, 469 other residents of New York.

174. In addition to the Governor and his agents violating other specific provisions of the Bill of Rights and Constitution, for them to impose legal obligations, legal coercion and various penalties on citizens, without the slightest hint of legal authority is a violation of due process under the 5th and 14th Amendments to the Constitution as well as the Guarantee Clause (“The United States shall guarantee to every state in this union a republican form of government.” Article IV)

175. Thus, the Governor's orders closing businesses, limiting public assembly, religious gatherings, forcing people to wear masks in public, etc. are all illegal.

Compl. at ¶ ¶ 169-175.

“The complaint seeks an injunction against all of the Governor's [Covid-19] executive orders and a declaration that the statute [Executive Law § 29-a] is unconstitutional.” Pl. Memo of Law (ECF No. 31) at p. 13. Plaintiff's challenge to § 29-a, however, is not limited to the context of the Covid-19 Pandemic. Rather, Plaintiffs object to the statute's grant of power to the Governor in all the enumerated emergency situations, and particularly those involving “terrorism” and “cyber events.” More broadly, the Complaint contends that the Defendants, and primarily Cuomo, with the complicity of the Democrat-controlled New York Legislature, used the Covid-19 pandemic as an “excuse” to take rights from New York's citizens. See, Complaint at ¶ 2 (“The Governor and the Legislature have used a serious pandemic as an excuse to revoke a long list of natural rights of the people of the State, which rights are unalienable and guaranteed by the United States Constitution.”). Indeed, the Complaint alleges that Defendants engaged in a “bloodless coup against the constitution.” Complaint at ¶ 9 (“To be blunt, a bloodless coup against the constitution has been undertaken by the State itself.”).

Apart from the alleged unconstitutionality of the delegation of legislative power, the Complaint contends that the various Executive Orders that Cuomo issued pursuant to that delegation (which closed businesses, forbade public gatherings and required face coverings) were themselves unconstitutional. In that regard, the Complaint contends that the Covid-19 outbreak did not provide a sufficient justification for the executive orders, since “[t]here is little if any solid data to show that locking down society yields a better result with respect to the virus, than merely taking precautionary measures” aimed at those most vulnerable to the illness, namely, persons who are elderly and in poor health.

According to the Complaint, “[a]llowing younger and healthier people at low risk to resume normal activities and develop herd immunity while encouraging those at high risk to take precautionary measures is not only the best and most rational strategy but one that does not impinge on constitutional rights.” The Complaint further asserts that “[t]here is exactly zero evidence that this lockdown is on the whole . . . beneficial to society, to the economy or to our overall health and welfare.” To the contrary, the Complaint alleges that the lockdown has had devastating effects on society. See, Complaint at ¶ 191 (“The Governor's unlawful lockdown of society and the economy, mirrored in most other states by their own governors, has devastated American society and its economy.”). The Complaint asserts that the lockdown was especially unnecessary with regard to upstate New York, which Plaintiffs contend has become “a political colony of downstate.”

Alternatively the Complaint alleges that to the extent the lockdown...