The company that owns a firearm store on Atlanta Highway filed a lawsuit against the Athens-Clarke County government challenging the constitutionality of the recently passed shelter-in-place ordinance, which aims to slow the spread of COVID-19.
The ACC Mayor and Commission enacted the ordinance on March 19, requiring residents to stay home unless they are on essential business such as caring for the elderly or minors or grocery shopping.
The ordinance will not be legally enforced against people at this time, but businesses that are not deemed essential and choose to stay open may be fined or forced to close.
The lawsuit, filed by Clyde Armory Inc. on March 24, alleges that the ordinance is an overstep of power and violates the equal protection and due process clauses as well as the right to bear arms in both the U.S. and Georgia constitutions.
“The effect of the declaration on the residents of Athens-Clarke County goes well beyond simply restricting movement or curfew — it is nothing less than a quarantine of tens of thousands of people who are not infected with the coronavirus nor have they been exposed to the coronavirus,” the lawsuit reads.
The business is run by Andrew Clyde, a candidate for Georgia’s 9th Congressional District. Athens-based lawyers Kevin Epps and Morris Wiltshire represent Clyde.
“This lawsuit is brought on behalf of Clyde Armory, but quite honestly it’s on behalf of all Athens-Clarke County citizens and businesses trying to survive and live their lives,” Epps said.
Alleged constitutional violations
The ACC ordinance lists essential businesses that are excluded from the shelter-in-place restrictions. Gun stores are not specified in this list, which the lawsuit considers a violation of the Second Amendment.
However, in another list created by ACC, which was last updated on March 23, gun stores are included as essential business.
While the lawsuit acknowledges this update, it says any changes on this document “are being made without any commission meetings, vote or public hearings and are based on the subjective opinions of an unknown source.”
The updates are not included in the official text of the ordinance, and Epps said this creates confusion with residents as to what is considered “essential” for business or outings.
The lawsuit says the distinction between non-essential and essential “arbitrarily and irrationally discriminates” against businesses, violating equal protection by treating some businesses differently than others without a valid reason.
“There’s a lot of young adults still in Athens whose livelihoods are based on their ability to work,” said Epps, noting closures in the service and retail industries. “I would argue to you that all occupations are essential to people’s livelihood.”
According to the lawsuit, the ordinance violates due process because residents have no way of challenging it.
The lawsuit also alleges that ACC overstepped its powers by trying to enact regulations that should be left to federal or state governments.
Different municipalities having different shelter-in-place ordinances makes it confusing and difficult for residents to follow them, Epps said.
“If the [state or federal] government or CDC makes this decision, we have to honor that,” said Epps, calling ACC’s decision to enact the ordinance too hasty.
The lawsuit said any county regulation is preempted by state law because Gov. Brian Kemp declared a public health emergency for the entire state. The Georgia Department of Public Health has the primary responsibility for responding to public health emergencies, the lawsuit said, not individual counties.
One day before the lawsuit was filed, Kemp announced a limited, statewide shelter-in-place policy. The policy bans gatherings of 10 or more people unless they can practice social distancing, and orders a two-week shelter in place for people at high risk of contracting severe illness from the disease.
His order also closed all bars and nightclubs and gave the DPH the authority to close any business that does not comply with social distancing guidelines.
“While we have taken strategic, direct action today, I am calling on my fellow citizens to fight this virus with everything you’ve got,” Kemp said Monday. “We are all part of this solution.”
In a March 19 address, Kemp noted federal, state and local leaders “are working hard to make the right calls and keep people safe.” The state has given no indication that any locality has violated state regulations by implementing COVID-19 policies.
District 7 Commissioner Russell Edwards posted about the lawsuit in the Athens COVID-19 Resources and Discussion Facebook group, encouraging residents to voice their opposition to the commission. Within hours, the post received more than 100 comments, mostly expressing outrage at the lawsuit.
“As a Commissioner, I must help decide the best way to spend government resources to respond to this lawsuit,” Edwards said in an email. “We all seek the best way forward to fight the Coronavirus pandemic, so I appreciate the robust discussion and input from citizens.”
Epps said he and Wiltshire both have received calls about the lawsuit but said most are positive.
The lawsuit says the ordinance’s harm to business owners and employees outweighs any potential harm caused if the court orders ACC to stop enforcing the ordinance.
Even President Donald Trump said the efforts to curb the virus could have negative effects on the economy.
WE CANNOT LET THE CURE BE WORSE THAN THE PROBLEM ITSELF. AT THE END OF THE 15 DAY PERIOD, WE WILL MAKE A DECISION AS TO WHICH WAY WE WANT TO GO!— Donald J. Trump (@realDonaldTrump) March 23, 2020
He was referring to the “15 Days to Slow the Spread” guidelines put out by the White House, which were issued March 16.
The White House recommended residents help slow COVID-19 by working from home, avoiding unnecessary travel and following CDC guidelines. It says residents should also follow directions from local and state authorities.