In Amato v. Elicker, No. 3:20-cv-464 (MPS), 2020 WL 2542788 (D. Conn. May 19, 2020), the court denied injunctive relief to the co-owners and operators of 50's Lounge LLC against Connecticut Gov. Ned Lamont and New Haven Mayor Justin Elicker in relation to their emergency executive orders, including ones limiting restaurants, bars and private clubs to serving food and alcohol for off-premises consumption and limiting the number of people who may gather for social or recreational purposes. The plaintiffs averred that the orders present a great financial hardship to the business, but they voluntarily closed their restaurant before the orders required it. Because of this and because the plaintiffs offered no allegations or testimony that the lounge would reopen if the court grants a favorable ruling, the court determined that they lack standing to challenge Executive Order No. 7D, prohibiting on-premises consumption and banning non-essential gatherings. Even if they had standing, the court added that they also failed to prove irreparable harm because they failed to allege that permanent closure of their business is likely or imminent. They added that plaintiffs are unlikely to succeed on their First Amendment claim because the order has a real or substantial relation to public health and safety, and the action is not "beyond all question, a plain, palpable invasion of rights." States may "institute extraordinary measures to protect public health." As to Executive Order No. 7N limiting gatherings and the plaintiffs' right to assemble and associate with customers and friends, the court assumed standing and irreparable harm of a First Amendment right, but once again found that the plaintiffs are unlikely to succeed for the same reason and under a stricter level of review on their First Amendment claims. In his ruling, U.S. District Judge Michael Shea stated, "[E]ven if the plaintiffs did have a First Amendment right to associate in person, I would find that Executive Order 7N was a reasonable state action ... or was otherwise constitutional under traditional First Amendment analysis ... ."
In Henry v. DeSantis, No. 20-cv-80729-SINGHAL, 2020 WL 2479447 (S.D. Fla. May 14, 2020), the court denied relief to a Palm Beach County resident who was laid off from Pit Row (a bar) and Buffalo Wild Wings during COVID-19 and sued Florida Gov. Ron DeSantis, alleging that the effect of his allegedly unconstitutional executive orders was to close her places of employment and cause her to lose her jobs. The court determined that the resident lacked standing as there was no form of relief from the court that would secure the resident's re-employment at either of her former employers. In addition, the court determined that the plaintiff could not sufficiently allege causation because the source of her injury was her employers' decision to reduce their workforce, not the governor's actions. The executive orders prohibited food services businesses from offering the sale of food and alcohol for on-premises consumption, but they were always able to offer take-out and to-go alcoholic sales. Furthermore, the court determined that the executive order that restricted free movement in four southeastern Florida counties was rationally related to a legitimate government interest in ensuring public health and slowing the spread of COVID-19 in a highly concentrated region, and thus withstood rational basis review for purpose of equal protection analysis. Furthermore, the court determined that the plaintiff had no generalized right of social association under the First Amendment and no fundamental due process right to a job. The court dismissed claims for various violations of Florida's Constitution under the Eleventh Amendment.
In McCarthy v. Cuomo, No. 20-cv-2124, 2020 WL 3286530 (E.D. N.Y. June 18, 2020), the court denied injunctive relief to Blush Gentleman's Club against certain executive orders issued by New York Gov. Andrew Cuomo, prohibiting gatherings of more than 50 people; banning restaurants and bars from serving food or beverages on-premises; and requiring businesses to reduce the in-person workforce at work locations by 50 percent, then 100 percent with exceptions for essential businesses. The plaintiff also sued the federal government to enjoin the U.S. Department of the Treasury from enforcing an eligibility requirement of the Paycheck Protection Program (PPP), precluding his business from applying. The court determined that the plaintiff had no likelihood of success on its 1) Fourth Amendment unreasonable seizure claim for lack of any law enforcement investigation; 2) First Amendment free speech or peaceful assembly claim because the plaintiff's business was not targeted, the orders were content neutral and the orders were narrowly tailored to serve a significant governmental interest; (3) Fifth Amendment takings claim because the orders do not deny the plaintiff all economically beneficial use of his property, 4) due process and equal protection claims because the plaintiff identified no deprivation or any property right or violation of a fundamental right nor reliance on a suspect classification; or 5) Article IV claim to a republican form of government under the guarantee clause because it does not provide the basis for a justiciable claim. The court dismissed the plaintiff's state law claims as barred by the Eleventh Amendment and claims against federal defendants because the statute does not provide a cause of action against them.
In Lawrence v. Colorado, No. 1:20-cv-00862-DDD-SKC, 2020 WL 2737811 (D. Colo. April 19, 2020), the court denied injunctive relief to the plaintiff who complained that as a result of emergency orders 1) the restaurant where he works as a cook closed, causing him to lose wages; 2) the church he attends ceased conducting in-person Mass, preventing him from taking Communion; 3) he was unable to visit with friends or assemble with others outside his home; and 4) he was unable to travel by car. The court determined that temporary moratoria on various business activities, including those of the plaintiff's employer, are not compensable takings (particularly to an employee, rather than the business owner). Furthermore, to the extent that the plaintiff lost wages due to an unconstitutional taking, those harms are compensable with money damages and thus are not irreparable. The court also determined that the plaintiff failed to show that being denied visits with friends and associates under the circumstances was a "plain and palpable deprivation of any recognized constitutional right." Last, the court determined that the plaintiff lacked standing to challenge the orders under the free exercise clause, because the Catholic bishops canceled in-person Mass before the orders were issued, and the plaintiff failed to show that if the court were to enjoin enforcement of the orders, his church would begin to offer the public Mass and Eucharist.
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