3rd Circ. Reinstates Pa. Crowd Size Virus Restrictions For Now

By Matt Fair
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Law360 (October 1, 2020, 3:14 PM EDT) -- A Third Circuit panel agreed Thursday to reinstate Pennsylvania's pandemic-related restrictions on crowd sizes while the court hears an appeal from Democratic Gov. Tom Wolf challenging a district judge's decision last month declaring the emergency measures unconstitutional.

In an order inked by Chief Judge D. Brooks Smith, a three-judge panel granted a motion from the Wolf administration asking that the lower court's decision striking down the restrictions be stayed while the appeals process plays out before the Third Circuit.

The appeals court did not comment on the case in granting the stay motion.

Wolf asked for the stay last week after U.S. District Judge William Stickman IV ruled in mid-September that emergency business closure orders and crowd size limitations imposed as a result of the ongoing COVID-19 pandemic violated freedom of assembly and due process guarantees under the First Amendment and Fourteenth Amendment.

The state mandated the closure of non-life-sustaining businesses and inked broad stay-at-home orders in mid-March as the novel coronavirus began spreading in earnest across Pennsylvania.

Since then, however, Wolf's administration has slowly eased restrictions on a county-by-county basis over the past weeks and months as the number of new cases has gone down.

But even as many restrictions have been rolled back, Judge Stickman said in his decision that the governor, even if he had been well intentioned, had no constitutional grounds to have imposed the restrictions in the first place.

While the lower court shot down a stay motion from the Wolf administration in the days after the decision was handed down, the state went on to ask the Third Circuit to reinstate what it said were its life-saving restrictions.

"The district court in its analysis downplayed the severity of the global pandemic, inhibiting the commonwealth's ability to protect the health and lives of its residents," the state said in its motion last week. "An immediate stay of that order is desperately needed pending this appeal to protect those lives."

The challengers, which include several businesses and a group of Republican lawmakers, said in a brief Wednesday that there had been no medical evidence presented in the case that scrapping the restrictions would cause any irreparable harm.

Instead, they argued that the alleged infringement of individual constitutional rights should be the court's paramount concern.

"There is no time in our history that the continued infringement upon and violation of the citizens' constitutional rights can be said to further the public's interest," the challengers said.

Thomas King III, an attorney with Dillon McCandless King Coulter & Graham LLP representing the challengers, said he was disappointed by the court's order.

"We are disappointed with the stay but not at all deterred in our bid to overturn the governor's unconstitutional orders," he said. "We will now proceed to a full argument before the Third Circuit."

A representative for the governor's office did not return a message seeking comment.

The Third Circuit has ordered the state to submit briefs on the merits of its appeal by Nov. 4.

The commonwealth is represented by Attorney General Josh Shapiro and J. Bart DeLone, Claudia Tesoro, Sean Kirkpatrick and Daniel Mullen of the Office of Attorney General.

The challengers are represented by Thomas King III, Thomas Breth, Ronald Elliott and Jordan Shuber of Dillon McCandless King Coulter & Graham LLP.

The case is County of Butler et al. v. Governor of Pennsylvania et al., case number 20-2936, before the U.S. Court of Appeals for the Third Circuit.

--Editing by Stephen Berg.

Update: This story has been updated to include a comment from an attorney for the challengers.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

County of Butler, et al v. Governor of Pennsylvania, et al

Case Number



Appellate - 3rd Circuit

Nature of Suit

3440 Other Civil Rights

Date Filed

September 23, 2020

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