Are COVID Indemnity Laws Void if a State’s Emergency Declaration is Overturned?

Kentucky’s Emergency Order Declared Unconstitutional.

David Horowitz wrote an article on Wednesday, June 9th, analyzing the court decision holding the state’s COVID restrictions unconstitutional.

https://www.theblaze.com/op-ed/horowitz-ky-judge-rules-gov-beshears-covid-mask-orders-unconstitutional-in-breakthrough-lawsuit

From the article:

“On Tuesday [June 8th], Boone County, Kentucky, Circuit Judge Richard A. Brueggemann issued a permanent injunction against all of Gov. Andy Beshear’s COVID restrictions, including the mask mandate. Unlike the few judicial victories for civil liberties over the past year, this one was broad and sweeping, as it declared these mandates unconstitutional. In granting declaratory relief to a store owner who didn’t want to enforce masks on customers, Judge Brueggemann ruled that “all emergency orders imposed by said Defendants, or that are being continued by said Defendants, are unconstitutional, void and without any legal effect.”

What’s the Effect of the Ruling?

Also from the article:

“While much of the lawsuit stemmed from the fact that the governor ignored specific bills passed by the legislature, and some states did not pass these laws, this ruling still creates the foundation for broad constitutional lawsuits against the remaining federal mandates on airplanes. This ruling establishes the fact that mask mandates can no longer withstand even a rational basis test, much less intermediate or strict scrutiny.

Aside from constitutional challenges, this ruling also forms a solid foundation for challenging these edicts – both at the federal and state levels – on grounds that they are circumventing the legislative process. The judge noted that “what has been ordered by the Governor’s emergency decrees constitute Legislation,” a charge that really applies to both the CDC and state governments.”

Risk Management Conclusions.

Many states passed laws promising to indemnify businesses that get sued by people who believe they were harmed as a consequence of COVID restrictions.

It seems likely that the indemnity laws would become unenforceable if the underlying emergency order is overruled.

Mandating mask use in a store is now clearly the business owner’s choice. There is no legal protection any longer from the state in the unlikely situation someone is harmed by that mask mandate in that store.

The more likely problem for the business owner is a loss of customers. Many people have grown weary of masks and want to get back to life as usual. Business owners have no excuse any longer that the state mandated its mask requirement, and might want to instead allow informed adults to use their own judgment – or risk declining business.

Thank you!

Michael Oswald

michael@msochartered.com

www.msochartered.com

Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.

© 2021 Michael S. Oswald

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