Are Shelter in Place Ordinances Constitutional?

Andrew Clyde
Andrew Clyde (R), owner of Clyde Armory, is running for US Congress in District 9.

Clyde Armory, a local gun shop, is suing the Athens-Clarke County Unified Government over the Shelter in Place Ordinance implemented last week.

UPDATE 4/7/20: This lawsuit has been dismissed.

Clyde argues that the ordinance, designed to stop the spread of COVID-19, is “unduly intrusive” and a violation of both the Georgia and US Constitution. It specifically mentions the due process clause of the 5th Amendment and the equal protection clause of the 14th Amendment.

Shelter in place orders like these are going up all over the country, including in the entire state of California. It’s hard to imagine that a judge would rule all of these orders unconstitutional since that may cost thousands or tens of thousands of lives. Athens has 24 confirmed COVID-19 cases (as of 3/26) and we have even experienced our first death from the disease this week. This is a true emergency.

The Legal Justification for Government Action

Over 20 counties and cities throughout Georgia have passed some kind of emergency restrictions in response to COVID-19. On the surface, these actions are justified by use of police power to make and enforce laws related to public health and welfare. Police power is granted to the states under the 10th Amendment, and states can, in turn, grant this power to local governments.

As noted by the Georgia Municipal Association (GMA), Georgia counties are explicitly authorized by the state to make laws “for the promotion of health, and for quarantine.” County Boards of Public Health can issue quarantine orders, but the burden of proof is on the county to show that someone is infected or has been exposed to the disease. So, it’s possible this power might not be totally applicable to a county-wide shelter in place order where individuals aren’t specifically quarantined.

In their FAQ designed to provide some clarity around these issues for local governments, GMA also discussed a case regarding an emergency situation in Vienna, Georgia, after a tornado struck the city in 1999. The Georgia Appeals Court upheld Vienna’s curfew. A curfew is not exactly the same as a 24-hour shelter in place order like the one we have in Athens; it’s more strict. In a curfew, people are not allowed to leave their homes at all during certain hours, but currently people in Athens are under no such compulsion. That seems to suggest that individuals could not successfully sue over Athens’ shelter in place order. How about a business?

ACC’s Shelter in Place Ordinance Might Be Strictly Scrutinized

The law around these issues is complex. Things are made even murkier by the lack of comparable situations to the one we’re currently experiencing. One thing we do know is the test courts might use to determine the merit of a lawsuit like this. It’s called “strict scrutiny.” This test requires that the government show there’s an important public interest involved, if it takes an action to close businesses, for example. The government would also have to show that the law is focused on solving the specific problem at hand, and isn’t arbitrary or overly broad.

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Well, stopping the spread of a deadly disease certainly seems like an important public interest. The Clyde lawsuit argues that “there is no rational basis that requires gun stores to cease their business operations” and that closing gun stores “is not substantially related to public health, safety or general welfare,” but this seems untrue. Any place where people gather could be a place where COVID-19 is spread. If the ordinance commissioners passed is broad, it’s broad because it needs to be. However, the accusation of arbitrariness might stick in this case. Why are some businesses closed and not others? This could be considered a violation of the equal protection rights defended by the 14th Amendment. It’s not completely clear how the courts will rule.

But Does Clyde have Standing to Sue?

While the suit raises interesting constitutional questions, Clyde Armory might not have the standing to sue after all.

Gun shops are in fact considered “essential” businesses by ACC staff. They’re allowed to remain open. Clyde Armory itself was open and selling guns at the time the lawsuit was filed. It would be difficult for them to argue they are being harmed by the ordinance. Even if the Clyde complaint is dismissed in Superior Court, it’s still possible that a different business considered “non-essential” could decide to sue. It’s theoretically possible that they could even win, as unlikely as that seems. No judge wants to be responsible for endangering the public. If there is some deficiency in the current laws that would prevent government action to protect the public in a crisis, most people would probably want that law changed rather than allow a deadly disease to spread more quickly.

How about we take a close look at these laws after the pandemic is over, maybe?

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