Motion Filed to Halt Pennsylvania Governor Wolf’s Draconian COVID-19 Restrictions

(Harrisburg, Pa. – October 7, 2020) – Late yesterday, the American Freedom Law Center (AFLC) filed a motion for a preliminary injunction in its civil rights lawsuit against Pennsylvania Governor Tom Wolf, the Pennsylvania Attorney General, and Dr. Rachel Levine, the Secretary of Health for the Pennsylvania Department of Health, seeking to preliminarily enjoin the Pennsylvania contract tracing program and the Governor’s and Secretary of Health’s mask mandate.

The lawsuit was filed last month in the U.S. District Court for the Middle District of Pennsylvania on behalf of four citizens who object to the draconian restrictions imposed by these government officials.

AFLC Co-Founder and Senior Counsel Robert Muise commented:

“The government’s response to this declared pandemic cannot be permitted to undermine our system of constitutional liberties or the system of checks and balances protecting those liberties.  It is the government’s burden to justify its encroachment on fundamental rights.  It is not a private citizen’s burden to prove his freedom, which is guaranteed by the Bill of Rights.”

AFLC Co-Founder and Senior Counsel David Yerushalmi added:

“Unfortunately, it appears that once a government official yells ‘pandemic’ in a crowded government theatre, the public safety interest takes precedent over the Bill of Rights and the public’s liberty and we’re expected to run for the exits like sheep.  We are committed to restoring law and order, which begins by restoring our Constitution as the supreme law of the land.  The Bill of Rights does not take second chair to executive orders issued by a power-hungry, left-wing governor and his minions.”

AFLC’s motion seeks to enjoin (halt) the Governor’s and the Department of Health’s contract tracing program and mandate to wear face masks, arguing that these restrictions infringe upon fundamental liberties protected by the First, Fourth, and Fourteenth Amendments.

Regarding the challenge to the contact tracing program, which two of the plaintiffs and their family had to endure after one of the plaintiffs went to see a doctor for a simple sinus infection, resulting in a “positive” COVID-19 test and the subsequent receipt of a letter from the Department of Health demanding every family member to quarantine (house arrest) for 14 days and to remain 6 feet from each other in their own home under threat of law enforcement action, the motion argues, in part, as follows:

As evidenced by the way in which the contact tracing program was enforced against the [plaintiffs], the program cannot survive this “most demanding test.” [strict scrutiny].  While the government has a substantial (some would argue compelling) interest in protecting public health against the virus, the contact tracing program is not “necessary” nor the “least restrictive means” of doing so.  As the facts involving the [plaintiffs] demonstrate, the threat of spreading the virus among family members had already dissipated by the time the quarantine was ordered (indeed, [the plaintiff who tested positive] had already been cleared to return to work by his state government employer).  There was no determination made by the government (nor any effort or requirement to make such a determination) that: (1) the “positive” test of [the plaintiff] was accurate or properly administered; (2) that [the plaintiff] was infectious (which he obviously was not); (3) that any of the [plaintiffs or family members] were infectious (or had antibodies for that matter); (4) that anyone was, in fact, ill (none of them were); (5) that anyone posed a threat of spreading the virus (they didn’t); or (6) that anyone was a member of the demographic mostly likely to need hospitalization (none of them were).  Yet, the entire . . . family was placed under house arrest subject to burdensome restrictions without the government having to justify its actions in any way.

The Orwellian contact tracing program grants the government extraordinary power to impose draconian restrictions on individuals that infringe upon their fundamental liberties and private associations.  Through this program, the government uses its authority to inquire into and search out the private associations of individuals.

The breadth of government power under the contact tracing program forces individuals to keep their children from attending public schools in person; to avoid seeking medical treatment; and to avoid businesses, restaurants, and other public or social events that may keep rosters, lists, video or other ways to document persons who entered the business establishment or attended the event.  The program also forces individuals to avoid worship services.  In short, to avoid being trapped in this government system, individuals must curtail their fundamental freedoms.

Moreover, in the case of the plaintiffs that were subjected to the program, it required them to maintain social distancing among family members living in the same household.  Because the program curtails the freedom of association, it must satisfy strict scrutiny, which it cannot.

Regarding the challenged mask mandate, the plaintiffs object to wearing a mask on the basis that it has become a symbol of government oppression during this highly politicized pandemic, and the efficacy of a mask is highly questionable.  In sum, the mandate is compelling them to express a message with which they disagree.  Indeed, Governor Wolf and another left-wing politician were caught on a hot mic joking about how wearing a mask is “political theater.”  The plaintiffs also object because the mask mandate presumes that all persons are sick, which they are not, and it is forcing them to become the government’s patient without their consent.  In this regard, the mask is violating their personal autonomy and bodily integrity.

As set forth in the motion:

On June 3, 2020, Defendant Wolf, in an admitted violation of his own executive orders, marched in a Black Lives Matter (“BLM”) protest.  Defendant Wolf joined hundreds of demonstrators as they marched through Harrisburg, Pennsylvania to protest the police killing of George Floyd—some of the protestors were not wearing masks and social distancing was not practiced.  Defendant Levine defended Defendant Wolf’s actions, claiming that regardless of the pandemic order, “people have the right to protest, and to demonstrate, and the right to free speech.”  Defendant Levine stated further that Defendant Wolf is “not restricting people’s right to protest,” adding that “[t]here are all obviously significant social issues that are present, that people feel that they need to have a voice, and so the governor is always supportive of that and is participating.”  (Redman Decl. ¶ 12).  Here, Plaintiffs feel the “need to have a voice” by not wearing the mandated mask in public.  Defendants are willing to overlook the potential spreading of this virus via mass BLM public protests because they consider the message to be about “significant social issues.”  Plaintiffs’ protest is similarly about a significant social issue—the protection of liberty from government tyranny.  Allowing one protest message (with attendant dangers of spreading the virus), but prohibiting Plaintiffs’ protest (with an alleged danger of spreading the virus) is a viewpoint-based restriction—the most egregious form of content discrimination.

As the motion also highlights, this example exposes Governor Wolf’s exaggeration of the risk of the virus.  If this virus was as deadly as the governor and his Secretary of Health claim it to be, there would be no viewpoint exceptions, and Governor Wolf would not have marched in the BLM protest.

As the motion establishes, science and data do not support the panic and hysteria surrounding the virus that left-wing politicians seek to create during this election year—a narrative they promote to maintain power and one which the universal wearing of masks promotes by creating a visual image that the virus is worse that what it is.  Per the facts established in the motion:

[P]ursuant to the government’s COVID-19 data available as of September 22, 20202, the percentages are shockingly low.  The population of Pennsylvania is approximately 12.8 million.  The number of COVID-19 cases (confirmed and probable to give the government the benefit of the doubt) in Pennsylvania is 151,646.  The total number of deaths is 8,023.  Accordingly, the percentage of people in Pennsylvania with confirmed or probable COVID-19 is only 1.18% of the population.  The death rate is far less—it is .0626% of the population.

Muise concluded:

“History teaches that we will look back on these draconian restrictions imposed by left-wing politicians as gravely wrong, overruled in the court of history, and having no place in law under the Constitution.  We pray that our judge will not wait for history and will enjoin these restrictions and thus defend freedom now.”