Critics of Gov. Cuomo’s pandemic orders hope to capitalize on Supreme Court ruling
Western New York opponents of New York Governor Andrew Cuomo’s measures to control the spread of the novel coronavirus said Monday that a recent Supreme Court ruling may help further their cause.
The nation’s highest court temporarily barred New York State from enforcing strict attendance limits at houses of worship in areas designated as COVID-19 hot spots in a decision released on Nov. 25. The ruling is preliminary, but prominent Libertarian attorney James Ostrowski said it leaves the governor vulnerable to more legal challenges.
“The whole lockdown regime is now open to scrutiny, and we think that, frankly, there’s going to be more lawsuits,” Ostrowski said. “What the state really needs to do [and what] we recommend in one of our briefs is to say ‘Withdraw these illegal orders,’ because, frankly, the potential liability the state’s building up, the state can’t pay.”
Ostrowski is himself a plaintiff and the attorney in one such lawsuit, Lewis v. Cuomo, which was filed in May in the U.S. District Court for the Western District of New York. He held a press conference in a rainy Niagara Square outside Buffalo City Hall Monday along with two fellow plaintiffs in the same lawsuit: Erie County Libertarian Party Chair Duane Whitmer and founder of the Second Amendment advocacy group 2ANYS Steve Felano. WBFO spoke to all three men by phone Monday.
“This per curiam ruling very much strengthens our case,” said Felano, referring to the unsigned majority Supreme Court opinion. “We believe that it’s [Lewis v. Cuomo] gonna move much more quickly now that that opinion has been released, and we also believe that the governor has attempted to downplay the significance of this decision and really hasn’t been truthful with everybody. He says about this issue being moot and then also that it’s not gonna have long term impact, [but] I think it very much will.”
Cuomo described the Supreme Court ruling as “moot” and “irrelevant” last week because the restrictions applied to two specific coronavirus red zones in Brooklyn no longer classified as such. He also said the decision did not impact the state’s restrictions on mass gatherings. Still, the decision signals a marked shift to the right for the Supreme Court, which now holds a clear conservative majority with the addition of Justice Amy Coney Barrett.
“If you read the Supreme Court decision carefully, it basically says that the lockdown regime cannot discriminate against protected rights in the Bill of Rights,” Ostrowski said. “That decision had to do with religious freedom, which is one of our causes of action [in Lewis v. Cuomo], but we also have a cause of action related to the right of public assembly,” in addition to the right to bear arms.
In light of the Supreme Court ruling, Ostrowski said he plans to file a motion this week for a summary ruling in Lewis v. Cuomo. The district court has not yet said when it plans to address the case, which both Ostrowski and Whitmer said was frustrating.
“I’m hoping that this gets our judge and our lawsuit active and moving so we can see a judgement here soon,” Whitmer said. “It’s been a handful of months. I’ve seen cases come and go and ours is still pending. It’s getting a little bit ridiculous.”
Ostrowski and Whitmer also said they were both present at a Nov. 20 meeting at Athletes Unleashed in Orchard Park that was held in defiance of the governor’s executive order limiting non-essential gatherings to no more than 10 people. Gym owner Robby Dinero was fined $15,000 by the Erie County Department of Health for that incident, and Dinero announced Monday that he is also filing a lawsuit challenging the state’s COVID-19 restrictions.
The case over New York State’s limits on religious gatherings now heads to the 2nd U.S. Circuit Court of Appeals.