Public safety is more important than Constitution, ex-Fresno judge says of shutdown lawsuits
A former federal judge in Fresno is casting doubt on whether lawsuits against California’s shelter-in-place order could be successful in court.
The lawsuits have become popular among business owners who say the order negatively impacts them financially. Gov. Gavin Newsom imposed stay-at-home orders in March to help slow the spread of coronavirus infections.
A group of business owners recently joined a lawsuit against Newsom and a number of Southern California officials, including Los Angeles Mayor Eric Garcetti. They call for a reopening of all businesses. Similar lawsuits have been filed across the country.
In Fresno, City Councilman Garry Bredefeld has become a leading opponent of the state’s shelter order and has previously threatened to sue the state and the mayor himself over the closure of non-essential businesses.
On Sunday, Bredefeld said he has not filed any lawsuits, but is talking to lawyers. He said the lawsuit by Southern California businesses would have a sweeping effect statewide, if successful.
But former U.S. District Judge Oliver Wanger said there is a “next to zero” chance that any lawsuits challenging the state’s shelter order would be successful.
Opponents of the shelter order cite the Constitution, but Wanger said that part is tricky since protecting the “existence of our population” would cause the Constitution to have no precedent in the public health decisions by state governments. The Constitution grants state’s rights, which would prevent the president or the federal government from ordering nationwide orders or lifting state orders.
“To be candid, the Constitution is subordinated to the need to protect the public,” Wanger said.
When it comes to the debate over “essential” and “non-essential,” Wanger said, plaintiffs may be able to argue that the distinctions are arbitrary and that allowing some businesses to operate while others can’t does not protect the public.
But he added that, overall, the objective of the state’s shelter-in-place order is to protect health by ordering social distancing and other proper hygiene practices. Higher courts have not been able to overturn public health measures.
“That all has to stay in place,” said Wanger, who first appeared on KSEE-24’s Sunday Morning Matters. “Those issues are not going to be legally overturned.”
Newsom has in recent weeks signaled businesses could soon reopen if parts of the state meet requirements outlined to lift restrictions. The City of Fresno extended its shelter order until May 31.
The judge offered advice to Bredefeld if he moved forward with such a lawsuit: “This would neither be an effective use of time or money.”
In a statement, Bredefeld said he respected the judge’s opinion. He added that a successful lawsuit by civil rights attorney Harmeet Dhillon nearly two weeks ago to allow California drive-in church services and an Illinois lawsuit against shelter orders prove another case against California has a chance in court.
He has repeatedly said businesses should be allowed to reopen by following guidelines outlined by the U.S. Centers for Disease Control and Prevention.
“We can fight this virus without destroying the economy and our neighbors’ lives,” Bredefeld said. “These tyrannical and authoritarian actions by government must be stopped. Legal actions must be pursued and people must speak out against these actions.”
A “Freedom Rally” is planned for Wednesday at Fresno City Hall following weeks of protests against the government.
This story was originally published May 3, 2020 at 1:59 PM.
