Lawrence v. Polis

505 F.Supp.3d 1136

Michael LAWRENCE, Plaintiff,

v.Jared POLIS, Governor of the State of Colorado; Jill Ryan, Executive Director of the Colorado Department of Public Health and Environment; Michael Hancock, Denver Mayor; and Bob McDonald, Executive Director of the Denver Department of Public Health and Environment, Defendants.

Civil Action No. 1:20-cv-00862-DDD-SKC

United States District Court, D. Colorado.

Signed December 4, 2020

Michael Lawrence, Denver, CO, pro se.

Friedrick C. Haines, Michael T. Kotlarczyk, Colorado Attorney General's Office, Denver, CO, for Defendant Jared Polis.

Michael T. Kotlarczyk, Michael D. McMaster, Colorado Attorney General's Office, Denver, CO, for Defendant Jill Ryan.

Conor Daniel Farley, David Charles Cooperstein, Denver City and County Attorney's Office, Denver, CO, for Defendant Bob McDonald.

Conor Daniel Farley, David Charles Cooperstein, Wendy J. Shea, Denver City and County Attorney's Office, Denver, CO, for Defendant Michael Hancock.

ORDER GRANTING MOTIONS TO DISMISS AND DENYING PLAINTIFF'S SECOND MOTION FOR PRELIMINARY INJUNCTION

Daniel D. Domenico, Judge

Pro se Plaintiff Michael Lawrence brings claims alleging that various public-health orders issued by Colorado and Denver officials¹ in response to the ongoing COVID-19 pandemic violate the United States Constitution, the Colorado Constitution, Colorado statute, and the Denver Municipal Code. He seeks money damages and preliminary and permanent injunctions prohibiting enforcement of Defendants’ orders in their entirety. Defendants oppose the pending motion for preliminary injunction and have moved to dismiss Mr. Lawrence's complaint. Defendants’ motions are granted, Mr. Lawrence's claims are dismissed, and his motion for a preliminary injunction is denied.

PROCEDURAL HISTORY

On March 30, 2020, Mr. Lawrence filed his original complaint in this action against the State of Colorado, Governor Jared Polis, the Colorado Department of Public Health and Environment, the Denver Department of Public Health and Environment, and Denver Mayor Michael Hancock. [Compl., Doc. 1.] Mr. Lawrence alleged that the public-health orders Defendants had issued to curb the spread of COVID-19 violated his rights under the United States Constitution, and he sought to preliminarily enjoin enforcement of the orders that were in effect at that time. [See id. ] The court denied Mr. Lawrence's first request for a preliminary injunction. [Order Denying 1st Req. for Prelim. Inj., Doc. 19.]

Since that time, Mr. Lawrence has amended his complaint twice. [See 1st Am. Compl., Doc. 23; 2d Am. Compl., Doc. 59.] Mr. Lawrence no longer alleges claims against the State of Colorado or the state and city health departments. He has added as defendants Jill Ryan and Bob McDonald, the executive directors of the state and city health departments, respectively. [See 2d Am. Compl., Doc. 59.] In addition to his claims under the federal Constitution, Mr. Lawrence now also alleges that Defendants’ public-health orders violate the Colorado Constitution, Colorado statute, and the Denver Municipal Code. [See id. ] He has also filed a second motion for a preliminary injunction based primarily on his contention that the COVID-19 pandemic no longer constitutes a public-health emergency, to the extent it ever did. [See 2d Mot. for Prelim. Inj., Doc. 46.]

Defendants move to dismiss Mr. Lawrence's Second Amended Complaint, contending, among other things, that Mr. Lawrence lacks standing to bring many of his claims, that the complaint does not state plausible legal claims, and that Defendants are entitled to qualified immunity from many of the asserted claims. [See City's Mot. to Dismiss, Doc. 61; State's Mot. to Dismiss, Doc. 63.]

After examining the parties’ briefs and the record, the court has determined that it is unnecessary to hold a hearing on the pending motions.

FACTUAL BACKGROUND

On March 5, 2020, the first presumptive cases of COVID-19 were identified in Colorado.² On March 10, Governor Polis declared an emergency in the State, and on March 12, Mayor Hancock declared a local emergency in the City.³ [See Exec. Order D 2020 003, Doc. 11-1; EOC 100, Doc. 11-2.] These emergency declarations have since been extended numerous times, and Governor Polis, Director Ryan, and Director McDonald have issued a series of executive orders and public-health orders to slow the spread of COVID-19 in Colorado and Denver.

When Mr. Lawrence filed his original complaint in March, Governor Polis had issued Executive Order D 2020 017, which directed implementation of a set of protective measures dubbed "Stay at Home." [See Order Denying 1st Req. for Prelim. Inj., Doc. 19 at 5-8.] Governor Polis later issued Executive Orders D 2020 044 and D 2020 091, dubbed "Safer at Home," and Executive Order D 2020 127, dubbed "Protect Our Neighbors." The Safer at Home and Protect Our Neighbors orders eased some of the previous Stay at Home restrictions, depending on the COVID-19 case metrics within individual Colorado communities. Director Ryan and the City issued corresponding public-health orders implementing the restrictions directed by the Governor's executive orders. When Mr. Lawrence's Second Amended Complaint was filed, Denver was subject to the Safer at Home set of restrictions.

Since that time, Governor Polis issued Executive Order D 2020 235, which directs that his previous Stay at Home, Safer at Home, and Protect Our Neighbors orders be combined and harmonized into a single "COVID-19 Dial" framework. Director Ryan issued, and the City adopted, Public Health Order 20-36, which implements this COVID-19 Dial. Denver's COVID-19 metrics currently place the City under the "Level Red: Severe Risk" set of restrictions in Public Health Order 20-36. The City has also imposed additional restrictions beyond those set forth in the State's orders.

Defendants have routinely updated and amended their public-health orders as new information about the SARS-CoV-2 virus and the COVID-19 disease becomes available, and as infection rates fluctuate in Denver and throughout the State.⁴ These frequent updates present the court and Mr. Lawrence with a moving target. Mr. Lawrence's Second Amended Complaint references only Defendants’ public-health orders issued back in March and April, including the now-expired Stay at Home orders. [See 2d Am. Compl., Doc. 59 at ¶¶ 12-19.] The complaint does, however, note that "defendants’ orders ... have recently eased up a little," which the court interprets as a reference to the Safer at Home orders that were in effect at the time the complaint was filed.⁵ [Id. at ¶ 22.] Those orders have now been superseded by the COVID-19 Dial orders.

For purposes of assessing the pending motions, the court will consider the public-health orders that are currently in effect: (1) Governor Polis's Executive Order D 2020 265⁶ and Director Ryan's Public Health Order 20-36;⁷ and (2) the City's December 1, 2020 public-health order.⁸ The "Level Purple: Extreme Risk" set of restrictions in Public Health Order 20-36 is similar to the restrictions imposed by the Stay at Home orders that are explicitly referenced in the Second Amended Complaint. Compare [4th Am. PHO 20-24 (Apr. 9, 2020), Doc. 61-2], with 2d. Am. PHO 20-36, supra note 7, § II(G). And the restrictions imposed at Levels Blue through Red in Public Health Order 20-36 are similar to the restrictions imposed by the Safer at Home orders that were in effect at the time the Second Amended Complaint was filed and that are implicitly referenced in the complaint. Compare [8th Am. PHO 20-28 (June 30, 2020), Doc. 51-2], with 2d Am. PHO 20-36, supra note 7, §§ II(C)-(F). The differences between the previous Stay at Home and Safer at Home orders and their counterparts in the currently operative COVID-19 Dial orders do not materially affect the court's analysis of the issued raised in Defendants’ motions to dismiss or Mr. Lawrence's motion for a preliminary injunction.

Although the particulars of Defendants’ previous and currently operative public-health orders are not identical, each set of orders has included the type of restrictions that Mr. Lawrence primarily takes issue with in his Second Amended Complaint: occupancy limitations and other restrictions on restaurants’ operation. At the currently operative Level Red of the COVID-19 Dial, the State's orders limit restaurants to outdoor in-person dining, along with curbside, takeout, and delivery services. 2d Am. PHO 20-36, supra note 7, § II(F)(2)(h). Outdoor in-person dining is restricted to groups of people from the same household spaced at tables six feet apart. Id. Alcohol sales must stop at 8:00 p.m. for on-premises consumption, and at 10:00 p.m. for takeout and delivery services. Id. The currently operative City order adopts the State's restrictions and imposes additional restrictions that are not pertinent to the motions at issue. DDPHE Order, supra note 8. Mr. Lawrence alleges that the restaurant where he works has closed because it cannot be profitable under the restrictions imposed by Defendants, thus depriving him of the ability to work and causing him to lose wages. [2d Am. Compl., Doc. 59 at ¶¶ 20-22, 24.]

MOTIONS TO DISMISS

I. Applicable Law

A. Motion to Dismiss Standards

Defendants move to dismiss Mr. Lawrence's claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

The court has subject-matter jurisdiction only over actual "cases or controversies." See U.S. Const. art. III, § 2. The Supreme Court has made clear that this imposes a standing requirement on all litigants. In order to have standing to bring his claims, Mr. Lawrence must show that: (1) he has suffered some actual or threatened injury as a result of Defendants’ public-health orders; (2) the injury is traceable to those orders; and (3) the injury is likely to be redressed if his requested relief is granted. See Valley...