Constitutional Rights and COVID

Potter Handy, LLP is a consumer and civil rights law firm. We are interested in representing business owners in their claims for violations of their Constitutional rights. To know more, fill out our business interruption claim form located on this page.

All across the country variations of “stay at home” orders have been issued, forcing business owners to close their doors and suffer significant economic loss. This is occurring in rural Counties where there have been few confirmed cases of COVID-19. Businesses are continuing to suffer catastrophic economic damage and there is no end in sight. These orders are unconstitutional on multiple grounds.

The Constitution of California gives the Governor, cities and counties “police power” and thus, the authority to make and enforce laws to protect public health and safety. See Cal. Const. Article XI Section 7; Miller v. Board of Public Works, 195 Cal. 477 (1925). However, this authority is restricted by the United States Constitution, including the 5th Amendment’s “Takings Clause”, as well as Due process and Equal Protection.

The Fifth Amendment of the United States Constitution includes a provision known as the Takings Clause, which states that “private property [shall not] be taken for public use, without just compensation.” The “stay at home” orders force “non-essential” businesses to cease operation, amounting to a partial or complete regulatory taking of private property. Yet, in violation of the Takings Clause, no business owners have been compensated for the forced shutdown.

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” While many “non-essential” businesses can operate safely, follow health and safety guidelines, and maintain social distancing, business owners were not given the opportunity to raise these points. The “stay at home” orders deprived business owners of their rights and liberties in operating their businesses without affording them a constitutionally adequate hearing to present their case to not be shut down and thereby, violated their right to Due Process of law.

The Equal Protection Clause of the 14th Amendment to the U.S. Constitution provides “nor shall any State […] deny to any person within its jurisdiction the equal protection of the laws”. The Equal Protection Clause ensures that persons similarly situated must be similarly treated. The state government violated the Equal Protection Clause in issuing the “stay at home” orders by drawing an arbitrary distinction between “essential” and “non-essential” businesses. This distinction is not related to a legitimate governmental objective. This distinction is not based on whether the business can operate safely.

The arbitrary nature of the “essential” classification is evidenced by the differences in what qualifies as “essential” among different cities and counties. For example, Kohl’s department store can operate curbside pickup in some cities and not others, despite the fact the nature of the business is exactly the same in all cities. Likewise, the capricious nature of the classification is further evidenced by the fact that what qualifies as “essential” has changed since the orders have been in place. While “essential” businesses continue to operate and turn a profit, “non-essential” businesses have been forced to shut down regardless of whether the businesses can operate within health and safety guidelines, in violation of the Equal Protection Clause.

When a government practice restricts fundamental rights, it is subject to “strict scrutiny” and can be justified only if it furthers a compelling government purpose, and, even then, only if no less restrictive alternative is available. Strict scrutiny under the Equal Protection Clause applies here. The “stay at home” orders do not satisfy strict scrutiny, because their arbitrary classifications are not narrowly tailored measures that further compel government interests. Moreover, there are less restrictive means for achieving the goals, such as allowing the non-essential business to continue running when they can operate safely.

Article 1, Sections 1 of the California Constitution provides, in pertinent part: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” The “stay at home” orders have deprived business owners of the use, enjoyment and ability to operate their businesses based on a discriminatory classification as “Non-Essential” businesses.

Shutting down businesses in localities where no evidence of exposure to COVID-19 has been discovered, and that are otherwise able to operate while following health and safety guidelines, is oppressive interference with the personal liberty of business owners.

For the reasons stated above, it is sighted that the “stay at home” orders are unconstitutional and business owners are owed injunctive relief against the orders allowing them to open up and compensation for their losses.

To know more, fill out our business interruption claim form located on this page.