by Jon Sanders
Research Editor and Senior Fellow, Regulatory Studies, John Locke Foundation
Earlier this week, as part of his series on why it it critical to amend the state’s Emergency Management Act, my colleague Jon Guze discussed Waldron v. Cooper, a lawsuit filed by a private bar owner against Gov. Roy Cooper’s arbitrary and unfair lockdown order against her particular kind of business. Guze found the complaint well-drafted and the counts rather compelling. A snippet:
In the first counts, the complaint asserts that Cooper’s arbitrary and unjustified discrimination against private bar owners violates the EMA itself, which states that, “State and local governmental bodies and other organizations and personnel who carry out emergency management functions are required to do so in an equitable and impartial manner.”
In the second and third counts, the complaint asserts that the discrimination violates Sections 1 and 19 of Article I of the North Carolina State Constitution, which declare that no one may be deprived of “the enjoyment of the fruits of their labor” without due process and that no one may be denied “the equal protection of the laws.”
Clearly Ms. Waldron is in the right on all three of these counts. As the complaint points out, no matter how deferential a standard one chooses to apply, Cooper’s discriminatory treatment of private bar owners is clearly illegal because it is based, not on reliable evidence showing that private bars cannot operate safely under the standards that apply to other bars, but on the fact that the latter attract more tourists, employ more people, and generate more revenue than the former.
Yesterday, Jan. 27, Cooper issued another Executive Order (extending his last order, which had added a curfew and tighter mask restrictions along with his ongoing personal and business restrictions — and still making no consideration of whether such actions are creating greater harm than good) that added a new section of justifications, clearly spurred by those counts.
Read these for your amusement (with emphasis added):
WHEREAS, in Bars (as defined in Executive Order No. 181), people’s risk of spreading COVID-19 is higher for many reasons, including because people traditionally engage in activities in Bars that result in increased respiratory effort, because people traditionally mingle in Bars and are in close physical contact for an extended period of time, and because people are less cautious when they drink alcoholic beverages; and
WHEREAS, these risks are mitigated, although not eliminated, in outdoor spaces where air circulates freely; and
WHEREAS, regression analyses have shown that new COVID-19 infections surge after Bars are reopened, and the rate of new COVID-19 infections falls when Bars are closed; and
WHEREAS, moreover, a statistical analysis of University of Wisconsin students determined that a predictor of whether a dormitory would have a high infection rate was how geographically close that dormitory was to the town’s collection of Bars; and
WHEREAS, moreover, a Washington Post study of cellphone location data determined that, following Bar reopening, the level of foot traffic in Bars had a statistically significant relationship with the level of increase in COVID-19 cases in the following weeks; and
WHEREAS, across the country, COVID-19 spread has been repeatedly linked to Bars, including, for example, incidents where 200 cases were linked to an East Lansing, Michigan Bar, 100 cases were linked to a Baton Rouge, Louisiana Bar outbreak, 73 cases were linked to a single Bar in St. Cloud, Minnesota, and 20 cases were linked to a Washington State karaoke Bar even though it used extensive social distancing measures; and
WHEREAS, an analysis of exposures among people with known COVID-19 showed that people with COVID-19 were four times as likely to have gone to a Bar than those without known COVID-19; and
WHEREAS, there is now emerging evidence that a new variant of the coronavirus, recently detected in North Carolina, is more transmissible and may lead to increased disease severity; and
WHEREAS, therefore, in light of the evidence of heightened risk for the transmission of COVID-19 posed in the indoor areas of Bars, as outlined herein and in the undersigned’s previous executive orders, it remains reasonable and necessary to continue the temporary closure of Bars for indoor consumption for the duration of this Executive Order
It won’t fly.
Not only because it doesn’t address the other two counts (related to the Emergency Management Act and abuse thereof), but also because these are weak justifications months — nearly a year — after the fact of the governor shutting down those businesses. Mere excuse-fishing at this point.