Bryan P. Sears//December 28, 2020
//December 28, 2020
ANNAPOLIS — A temporary restraining order preventing Anne Arundel County Executive Steuart Pittman from closing indoor dining remains in effect as a judge prepares for a second day of testimony in the dispute between the county and restaurant owners.
Anne Arundel Circuit Court Judge William Mulford rejected a motion from attorneys representing the county, who said four restaurant owners had failed to prove that Pittman’s order failed to meet the “rational basis standard.”
“All we have heard medically is from one doctor who is kind of out there on this herd (immunity) issue and advocates opening everything up and letting everyone get infected,” said Hamilton Tyler, a deputy county attorney for Anne Arundel County. “It is a difference of opinion in the doctors and what actions have been taken by the county executive clearly have a rational basis and are entitled to some deferential treatment.”
But Mulford said he did not believe Jayanta Battchacharya, a professor of medicine at Stanford University, had advocated for herd immunity. Battacharya authored a paper called “The Great Barrington Declaration” in which he and others called for a strategy of protecting those most vulnerable to the virus — predominantly the elderly — while allowing society to generally continue and allowing younger people who are more resistant to the more dire effects to develop an infection naturally.
Battacharya said that the method advocated for in his paper or through vaccination all leads to herd immunity.
“The argument is that we’re proposing a strategy that gets us to herd immunity, which is a very odd complaint, an odd thing to say,” he said. “The end point of this epidemic, no matter what we do, is herd immunity. The only issue is how we get there with a minimum amount of lost lives, minimum amount of collateral damage from other policies.”
Four Anne Arundel County restaurant owners — Titan Hospitality, Heroes Pub, Capo LLC and Severna Park Rib Company — filed suit last week in Anne Arundel County Circuit Court seeking an injunction against Pittman’s order closing restaurants.
Battacharya, as well as a biostatistician and a psychologist, testified that the closure of restaurants would not only result in a loss of jobs, perhaps permanently, but would also have deeper impacts, including increased suicides.
Attorneys for Pittman were able to present testimony from one witness, Eili Klein, a professor of emergency medicine at Johns Hopkins, who testified that restrictions on restaurants statewide put in place by Gov. Larry Hogan did slow increases in the state. Being indoors and without masks for an extended period of time in a restaurant was a risky activity, he said.
“I wouldn’t eat in a restaurant, and I wouldn’t recommend to anyone I know that they eat in a restaurant,” he said.
Klein is expected to be crossed-examined on Tuesday. Attorneys for the county are also expected to call County Health Officer Dr. Nilesh Kalyanaraman. Pittman is expected to be the last witness on Tuesday.
Mulford issued the temporary restraining order on Dec. 16, just hours before Pittman’s prohibitions were to take effect. The judge at the time said the restaurant owners demonstrated “immediate and irreparable injury” should Pittman’s order be allowed to take effect.
Mulford wrote that Pittman’s order was “applied in an inconsistent manner. The county executive appears to have relied on a selective interpretation of the data relating to COVID-19 matters that ignores or minimizes other sources of COVID-19 contact and has not clearly explained the overall hospital capacity in Anne Arundel County as it relates to COVID exposure.
“It is clear based on pleadings and affidavits and exhibits that the restrictions on plaintiffs’ businesses were applied in an inconsistent manner from other businesses that contribute significantly to COVID contact sources. In other words, there appears at this stage to be an arbitrary and capricious applications of restrictions on plaintiffs’ businesses when compared to other business activities.”
Similar lawsuits in Baltimore City and Prince George’s and Montgomery counties were rejected as judges there refused to halt similar rules imposed by county leaders.
In a ruling last week, Baltimore City Circuit Court Judge Lawrence Fletcher-Hill wrote that the court would not second-guess Mayor Brandon Scott.
“Both the balance of harm and the public interest also weigh very strongly in favor of (the) defendant here,” Fletcher-Hill wrote. “Although the restaurant industry bears a disproportionate burden in this public health crisis, the mayor is acting in the public interest to prevent illness and even death that will result from increased transmission of the virus. That risk and the need to decrease it through these means outweighs the harm suffered by plaintiffs and presents a powerful public interest in upholding these specific restrictions in the mayor’s executive order.”