Filed in federal district court in the Western District of Oklahoma, the suit seeks both a temporary and permanent injunction against enforcement of the ordinance, which was passed by the Guthrie City Council on April 6 in an effort to help limit the spread of COVID-19. The ordinance expires at the end of the day May 5.
Guthrie’s shelter-in-place ordinance requires people to remain in their homes homes unless they are engaged in “essential activities,” which includes activities related to health and safety, obtaining necessary services or supplies, engaging in outdoor activities, going to work at an “essential business,” and a handful of other activities. The ordinance also requires that when people do go outside, they wear a cloth face mask.
The ordinance, with some exceptions, also prohibits gatherings of 10 or more people, including for “social/spiritual” gatherings, and according to the lawsuit, does not make exceptions for worship services that make efforts to mitigate the spread of the disease by requiring social distancing or staying in a vehicle during the service.
“The COVID-19 pandemic has swept across this country. In the interests of public safety, local governments are rushing to enact laws that they believe will protect people,” the lawsuit states. “While public safety is paramount, the Constitution must still be honored. A pandemic does not give local governments a blank check to write whatever laws they want. The Constitution secures fundamental rights regardless of the situation.”
The lawsuit, filed by Oklahoma City attorney Frank Urbanic on behalf of 10 people who live in Guthrie or conduct business in Guthrie, names the city, Mayor Steven Gentling, Police Chief Don Sweger, the City Council, and city prosecutors William Wheeler and Sheri Mueller as defendants.
Phone messages left for Wheeler, Mueller and Gentling by The Frontier on Thursday were not returned.
“There are numerous exceptions to the Ordinance that Defendants are not cracking down on, such as establishments like retail stores, where far more people come into closer contact with less oversight,” the lawsuit states. “It is more lawful for a group of ten people to be in a store purchasing food for their dogs than it is for them to be six feet apart at a religious gathering.”
The suit also cites U.S. Attorney General William Barr’s recent statement that said governments may not impose restrictions on religious activity that do not apply to non-religious activities.
“Requiring Plaintiffs to abstain from its religious gatherings, despite substantial modifications to satisfy the public health interests at stake, violates Plaintiff’s constitutional right to free exercise of religion.”
The ordinance also infringes on the residents’ First Amendment right to assembly, the Fourteenth Amendment’s equal protection and due process clauses, the Commerce Clause of the U.S. Constitution, as well as state laws and constitutional protections, the lawsuit alleges.
The lawsuit also takes issue with the Guthrie ordinance’s requirement that anyone who makes a public outing must also wear a cloth face mask, saying it violates the U.S. Constitution’s Commerce Clause by requiring people to engage in commerce, and cites the 2012 U.S. Supreme Court decision on the Affordable Care Act, Federation of Independent Businesses vs. Sebelius.
“The Ordinance applies to the richest and the poorest alike in Guthrie,” the suit states. “There is no guarantee that everyone within its city limits has a mask that meets the approval of the City of Guthrie. This section of the Ordinance forces Plaintiffs into commerce. Congress is prohibited from forcing individuals into engage in commerce. … A municipality should likewise be prohibited from forcing an individual to engage in commerce when all that person wants to do is leave his or her house.”
The suit also alleges a violation of the Commerce Clause by requiring some businesses to close, arguing that by requiring the businesses in Guthrie to close, the city was interfering with interstate commerce because of purchases by those businesses of goods and services from outside the state.
“Congress has not mandated the closure of any of the above businesses, therefore it is Congress’s intent that these businesses remain free to conduct business interstate,” the suit states. “The City of Guthrie’s prohibition on commerce is in opposition to Congress’s current regulation of interstate commerce and is an unlawful usurpation of Congress’s regulatory power under the Commerce Clause.”
According to the U.S. Centers for Disease Control, social distancing — physical separation of six feet or more between people and limiting contact with others outside of one’s own home — is the best method to help limit the spread of the disease.
As of Thursday, there were 3,017 confirmed positive cases of COVID-19 in Oklahoma, which has resulted in 179 deaths and 622 hospitalizations, according to the Oklahoma Department of Health. Nine of Logan County’s 11 confirmed COVID-19 cases are in Guthrie, according to OSDH, though the county has had no documented deaths from the illness. Nationally, there were nearly 840,000 confirmed cases of the disease and more than 46,500 deaths, according to the U.S. Centers for Disease Control.
The lawsuit is the second such legal action to be filed in the state pushing back against restrictions put in place by municipalities in the wake of the COVID-19 outbreak.
The first, filed against the city of Vinita earlier this month, was voluntarily dismissed last week after the city council amended its ordinance to remove penalties for violating the ordinance and provision that required people to remain in their homes.
On Wednesday, Gov. Kevin Stitt announced some businesses that had previously been closed could re-open starting Friday, and many others would be able to open on May 1 under a three-phase approach. There have also been public rallies in the last two weeks by groups wanting to see the state remove restrictions on businesses at the State Capitol, and at the city halls in Oklahoma City and Tulsa.
Stitt’s plan to begin lifting restrictions faced criticism from some who said the restrictions were being lifted too soon, such as Oklahoma State Medical Association President Dr. George Monks, State Senate Minority Leader Emily Virgin, D-Norman, and Norman Mayor Breea Clark, who said Stitt’s decision was akin to opening the Hunger Games for cities to fight over sales tax and would be “forced to put their economies ahead of the safety of their residents.”
Some mayors, such as Broken Arrow’s Craig Thurmond, have already announced they plan to begin lifting their emergency proclamations by the end of Thursday, while others, such as Tulsa Mayor GT Bynum and Oklahoma City Mayor David Holt, said they will announce plans on how they will move forward on Friday.
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