Challenges Begin to Coronavirus "Shelter In Place" Ordinances


By:  William J. Linkous, III

On March 24, 2020 a corporation “engaged in the business of purchasing, trading, and selling firearms, ammunition, tools, and other defensive and safety supplies to law enforcement and civilians” filed one of the first lawsuits in Georgia challenging a local government’s “Shelter in Place” ordinance.  The lawsuit, Clyde Armory, Inc. v. Unified Government of Athens-Clarke County et al., Athens-Clarke County Superior Court, lists the government entity as a defendant, as well as both the City/County Manager and the City/County Attorney in their official capacity as additional defendants.  The ordinance challenge is being brought “as applied” to Plaintiff, as well as “as applied” to other gun stores within the Athens-Clarke County jurisdiction.  The lawsuit brings challenges under both the Georgia Constitution, and the Federal Constitution, the latter of which raises the specter that the suit may be removed from Superior Court to Federal Court.

The lawsuit alleges that on March 16, 2020, Governor Brian Kemp declared a state of emergency in Georgia due to the COVID-19 virus pursuant to O.C.G.A. § 38-3-51.  It goes on to allege that on March 19, 2020, Athens-Clarke County passed its “Shelter in Place” ordinance pursuant to O.C.G.A. § 38-3-28.  The lawsuit alleges that although the ordinance might be interpreted to list gun stores as “Essential Activities” under the ordinance’s definition section, gun stores are not clearly listed as “Essential Businesses” allowed to remain open as normal during the state of emergency.  Interestingly, the lawsuit alleges that the City/County website indicates that gun stores are “Essential Businesses” that can remain open, but that the website does not have the force of law.

Calling the ordinance a quarantine, the lawsuit seeks an emergency injunction and declaratory judgment declaring the ordinance as an ultra vires act and an abuse of police powers.  It alleges that the ordinance legislates in an area for which the State of Georgia has enacted general laws in violation of O.C.G.A. § 36-35-3 (a) and complains that the ordinance cannot be appealed in the same manner as violations of state health regulations under state law.  It alleges more specifically that O.C.G.A. § 31-12-2.1 grants the Georgia Department of Public Health the primary responsibility for responding to public health emergencies.  The Plaintiff goes on to allege that the ordinance violates the Due Process and Equal Protection clauses of the U.S. Constitution and the Georgia Constitution, citing to Old South Duck Tours v. Mayor and Aldermen of City of Savannah, 272 Ga. 869 (2000).  The suit also contends that the language of the ordinance is overly broad and vague as to the term “Essential Business” (citing Bullock v. City of Dallas, 248 Ga. 164 (1991)), that the ordinance creates arbitrary and capricious classifications, exceeds the scope of the City/County’s police powers, and violates the U.S. Second Constitutional Amendment right to bear arms, as well as the Georgia Constitution’s similar protections under Article I, Section I, Paragraph VIII.  The lawsuit includes hints at a wider challenge of such ordinances, citing to Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71 (1988) and Truax v. Raich, 239 U.S. 33 (1915) for broader Due Process and Equal Protection concepts under the Fourteenth Amendment.

The lawsuit seeks a declaration that the ordinance is unlawful, and an injunction stopping its enforcement.  It also seeks a declaration that Plaintiff can carry on its business as normal as an “Essential Business,” and seeks attorneys’ fees and costs under 42 U.S.C. § 1988 but does not seek damages.  Ultimately, the resolution of this matter may come down to Federal law, perhaps to be decided in Federal Court.  The Georgia Supreme Court’s 2017 decision in Lathrop v. Deal, 301 Ga. 408 (2017) extended sovereign immunity to injunction and declaratory judgment claims against local governments where the constitutionality of their enactments is at issue, thus creating a possible barrier to the relief Plaintiff is seeking in the Clyde Armory case except as to the Federal claims.  Moreover, because in Georgia suits against local government officials in their official capacity are, in reality, suits against the local government itself, the inclusion of the local government Manager and Attorney would not seem to prevent the application of sovereign immunity to the claims.  In any event, it will be interesting to see whether the COVID-19 crisis ends before the Court can issue a definitive ruling in the Clyde Armory case.

Another lawsuit has been filed in Texas, challenging a “Shelter in Place” order issued by the Mayor of McKinney, Texas, although the basis of that lawsuit appears to be conflicting provisions of pandemic orders.  Last week, the NRA and other Second Amendment groups filed a Federal lawsuit in California to stop instances where local officials interpreted Governor Gavin Newsom’s “Shelter in Place” orders as making gun stores “non-essential.”  In addition, a coalition of gun-rights activists filed a lawsuit earlier this week against New Jersey Governor Phil Murphy under the Second Amendment to the U.S. Constitution for closing gun stores and suspending legally required background checks amid the pandemic.  The same activists are considering whether to file lawsuits against other states and cities that have deemed firearms retailers as “non-essential.”  Interestingly, according to news reports, guns sales have skyrocketed during the pandemic, while crime rates have dropped, particularly in large cities.  Abortion rights groups have also reportedly filed suit in Texas to keep abortion clinics from being designated as “non-essential” businesses.  Local government officials and attorneys should pay close attention as these lawsuits progress, and evaluate their orders and ordinances accordingly.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

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