Limits on number of people that can congregate in-person not enforceable — for now

A federal judge this week denied Gov. Tom Wolf’s motion to uphold limitations on in-person gatherings while administration officials work to appeal a Sept. 14 ruling that said some of the governor’s COVID-19 mitigation orders were unconstitutional.

Judge William S. Stickman, district court judge of the Western District of Pennsylvania, rejected Wolf’s request to stay the court’s ruling that business closure mandates, stay-at-home requirements and limitations on in-person gatherings violated the constitutional rights on citizens.

In his memorandum filed on Tuesday, Stickman reaffirmed his contention that Wolf and Health Secretary Rachel Levine violated citizens’ First Amendment’s right of assembly and the due process and equal protection clauses of the 14^th Amendment with statewide orders intended to contain the spread of COVID-19.

Tuesday’s ruling means 25-person caps on indoor gatherings and 250-person caps on outdoor gatherings are not enforceable while Wolf and Health Secretary Rachel Levine appeal the court’s decision. It was the latest development in the ongoing court battle between four western counties and businesses who sued Wolf and Levine in May over their alleged violations of civil liberties with COVID-19 containment orders.

“The administration is disappointed with the decision and has filed an appeal,” said Wolf spokesperson Lyndsay Kensinger in an emailed statement. Kensinger said the Court’s decision is “especially worrying” as Pennsylvania could face a challenging resurgence of COVID-19 and the flu in the fall and winter.

Since the commonwealth transitioned out of March’s business closure and stay-at-home orders, the only remaining restrictions impacted by last week’s ruling were on indoor and outdoor gatherings, which have been limited to 25 and 250, respectively.

“This court ruling is limited to the business closure order and the stay at home orders issued in March, which were later suspended, as well as the 25-person indoor and 250-person outdoor gathering limitations,” Kensinger said, adding that current restrictions on business occupancy requirements remain in place.

In Wolf’s motion to stay the order, he argued the ruling makes it difficult for state officials to manage the pandemic effectively and could result in the deaths of Pennsylvanians.

Stickman, appointed by President Donald Trump in May of 2019, remained unconvinced. Why should hundreds of people be allowed to gather indoors to shop, as permitted by percentage-based occupancy requirements, Stickman queried, but no more than 25 be allowed to attend an indoor lecture?

Stickman argued that the administration’s actions demonstrate that “they do not believe gatherings exceeding their numeric caps will necessarily cause such harm.” Stickman cited Wolf’s decision to appear at a protest in June in apparent violation of his own limit on outdoor events.

Stickman also pointed to a confidentiality agreement between the state Department of Health and the organizers of a large auto flea market in Carlisle that allowed the event to take place in April.

The confidentiality agreement, which was made part of the case record following FOIA requests that disclosed it to the public, revealed the Health Department agreed to allow the event to proceed with an indoor capacity of “the lesser of 250 individuals or 50% of the maximum building capacity,” and an outdoor capacity limit of no more than 20,000 — well above the 25 and 250 caps.

The administration’s treatment of the car show and large public protests across the commonwealth, Stickman said, undermine its argument that “imminent and irreparable harm” will occur absent their ability to impose numeric occupancy caps.

Wolf said he’s confident the Sept. 14 ruling will be successfully appealed since two other federal judges upheld the legality of the administration’s actions in cases earlier this year.

“While the federal government dithered, Pennsylvania took action,” Wolf said in response to the Court’s Sept. 14 decision. “Our hospitals were never overwhelmed and research tells us thousands of lives were saved.”