A group of 19 local lawyers and businesspeople is alleging the Kern County Public Health Services Department’s stay-at-home order is unconstitutional and not authorized by law.

In a letter sent to the Board of Supervisors, the group has requested the order be rescinded and replaced by a “strong recommendation” the public engage in social distancing and wear personal protective equipment.

“This (pandemic) is obviously a serious crisis,” said local attorney Isaac St. Lawrence, who helped write the letter and is one of the 19 signatories. “That being said, it is important that we do not forgo our constitutional rights, that we don’t forgo rights that men and women in the military have given their lives to protect. From a strictly legal point of view, I see us going down a very dangerous path.”

An April 2 order issued by Kern Public Health Officer Kristopher Lyon institutes a variety of coronavirus prevention mandates, including banning private gatherings and serving food in restaurants, making a violation of the order a misdemeanor.

However, the letter claims the legal statutes cited in the order do not give the county broad authority to quarantine. In addition, the letter says the order violates several constitutional rights, including the freedom of religion and the freedom to peaceably assemble. The letter also claims the order violates a property owner’s right to earn a living by use of their property, and the county could be liable for losses incurred.

“This taking of property owner’s rights was without due process, without compensation, and clearly infringes upon the free market of commerce,” the letter states. “Based on a plain reading of the Order, it appears that not only are all ‘non-essential’ healthy Kern County residents placed in quarantine, the U.S. Constitution has also been quarantined.”

Kern public health spokeswoman Michelle Corson said the letter had been referred to the county’s attorneys. Supervisors have not met since the letter was mailed, and St. Lawrence says he has not received a response.

For many of the signatories, the county’s order cut into their core constitutional beliefs.

“What is the difference between shelter-in-place orders and house arrest, other than we get to go to the grocery store?” said Mark Carroll, owner of Carpet Outlet Plus.

He added that a part of the reason why he signed the letter was because he didn’t think the county should have the authority to decide which businesses could be open and which needed to be closed.

“Some of the businesses that have been put in this predicament where they’ve been told no, could operate safely, or at least could operate at some capacity,” he said.

For Cassie Bittle, whose family owns KC Steakhouse, the decision to sign the letter came because she wanted the supervisors to know how she and others felt.

“As people and business owners and residents, if we don’t voice our concerns, how are they supposed to know what they want?” she said, adding that the letter was not meant to be threatening, and that because the county had limited public participation in supervisors meetings, a letter is one of the only options for the public to make their opinions known.

She said she hoped the supervisors would give residents some indication of the plan to reopen the county by May 15.

“We’re not unrealistic,” she added. “We understand that there are new safety procedures that will need to be put into place.”

But if a plan to reopen is not put into place, many businesses fear they will incur permanent damage, and the letter writers — who point out they are taxpayers — worry about the liability the county will expose itself to if nothing changes.

“As we put it in the letter, a lot of what their goals are, as far as that order is concerned, could be achieved by making recommendations, doing education, whether it’s the social distancing, wearing masks,” St. Lawrence said. “They can do it without making it a misdemeanor for five people to meet up in a park.”

Sam Morgen can be reached at 661-395-7415. Follow him on Twitter: @smorgenTBC.

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(46) comments

Dog

Can any of you followers name one time in history when healthy people were quarantined? Ya, didn't think so.

Veritas

I was going to refrain from making a comment, but changed my mind.

SW is right about everything she cited from Jacobson v. Massachusetts (1905). But as with most legal experts(real or self professed?) she neglected to list a relevant part of the opinion given by Justice Harlan. In all fairness to her, his opinion is too long to put in this comment section. He also wrote, “'All laws,' this court has said, 'should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence.”

The real question for now is can the government justify restricting individual liberties without caveat during a public health emergency? The Jacobson opinion instructs that “all constitutional rights may be reasonably restricted to combat a public health emergency.” Based on Jacobson the answer is yes, for now.

This case involved a person who refused to get a small pox vaccination in 1905. Now this is being used to uphold restricting several constitutional rights bluntly during this pandemic on an entire nation. I surmise the 1905 opinion will be interpreted in combination with subsequent high court decisions on individual rights, and we will eventually have new case law from the U.S. Supreme Court as a result. We’ll see.

Masked 2020

well... "new carpet" and "prime rib" just aren't high on my ta-do list this week.....

Gene Pool Chlorinator

I just purchased all new kitchen appliances and got a great deal on them. :)

#Yorkies

Veritas

That is funny, so did I. Maybe I’ll do new flooring next. Thanks for the idea yuckies.

Gene Pool Chlorinator

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BakoBorn

Where do is sign? Time to reopen. Illnesses happen... even death happens. I am not willing to give up a little bit of my freedoms for a little bit of health security. If my customers stay home then that is their freedom to do so. For those of us who want to work, who want to move freely, that don't believe this virus posses the treat that we were told.... we choose to resume living life to the fullest. Sign my name to this letter.

Moardeeb

Tell that to the 1,000,000 people who have been infected in 12 weeks.

Go out, run around, be a selfish idiot, whatever...

jayinbaker

I would sure like to get the names of these 19 attorneys and business people so that when this virus is conquered and we finally get back to some normality, I can shun them and refuse to patronize their businesses. Why should I, or anyone else, contribute to people who jeopardized my health for their own personal financial gains? Constitutional violations? How about my constitutional violations of being subjected by those 19 people who placed me into a precarious threat to my health?

Independent Voter

Did you bother reading the article, JR?

Dog

Why would he use common sense and read the article? His mind is already made up. Hey look, the sky is falling.

BakoBorn

Think their names are on the letter. And boycotting them is certainly your constitutional right. As is it is theirs to express their opinion.

Gene Pool Chlorinator

Would you like a tissue??

Gene Pool Chlorinator

"How about my constitutional violations of being subjected by those 19 people who placed me into a precarious threat to my health?"

Seriously? A little over-the-top, don't you think?

I guess we can declare Bakersfield a sanctuary city against the SIP executive order- I mean if cities can do that to protect people here illegally (in defiance of federal law), why not?

Veritas

Hey Dog, don’t go tryin’ to steal my Chicken Little analogy. LOL

jayinbaker

It is because of people like these lawyers and business people who are more concerned about their financial health than physical health and have defiantly refused to follow the advice of knowledgeable sources and medical professional. You are arrogant, selfish and irresponsible. It is because of people like you who have caused a continuance of the necessity to keep us safe. I am also tired of this isolation, stay at home quarantine. I did my patriotic duty by sacrificing my liberties to help restrict the spread of this Covid19. But I, as well as millions of other conscientious citizens, are now being penalized and punished because of those who were too irresponsible in doing what was right in the first place for the betterment of all. President Trump’s irresponsible actions of self concerns have led millions of his followers to believe that this pandemic is nothing but a “Hoax” or not necessary. His irresponsible actions have indirectly caused hundreds, if not thousands, of deaths. When will the righteous of our society stand up and demand that the violators of this concern be punished. Why should the ones who abided by required strict separation be subjected to being infected and possible death by such blatant abuse by such inconsiderate people. These lawyers and business people are inconsiderate and irresponsible, and should be held responsible if they arrogantly infect others because of their selfishness. It’s called involuntary manslaughter. Maybe these lawyers should be filing law suits against the irresponsible and negligent abusers, not the one attempting to protect society.

Dog

I'm sure these were your same thoughts last year when the flu killed 50,000 people, and back in 2009 when the swine flu killed hundreds of thousands of people. Riiight.

SensibleWoman

I guess those lawyers slept through their Constitution Law class in law school.

In Jacobson v. Massachusetts, a 1905 case in which the Court upheld a compulsory smallpox vaccination law, Justice John Marshall Harlan explained in his opinion for the Court that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Jacobson v. Massachusetts, 197 US 11, 26 (1905).

Justice Harlan’s words in Jacobson echoed the Court’s decision from 15 years earlier in Crowley v. Christensen, in which the Court stated that “the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.” Crowley v. Christensen, 137 US 86, 89–90 (1890).

Later decisions of the Court have not deviated from these commonsense rulings: “There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease.” O’Connor v Donaldson, 422 US 563, 582–583 (1975).

The next time you hear someone complaining that our “freedom” and “liberty” are being “stolen” or that our governor or another is somehow a modern incarnation of a murderous fascist dictator for taking action to protect *all* of us, please know: they’re wrong.

Is all of this inconvenient? Yes. Is it economically devastating? Undoubtedly. But is it unconstitutional? Under current circumstances, absolutely not. Our governor, and (most) others, recognize a simple but inescapable truth: you can recover from economic ruin, but you can’t bring back the dead. Their actions, informed by experts in communicable disease and public health, are based on the fundamental, core principle that animates our Constitution: the well-being of “We the People.”'

Lilyrose

Power on sensiblewoman !

MJF1233

That's why they are called legal opinions. Reasonable conditions requires comparison to existing precedent which isn't like for like. The numerical data from COVID-19 over the last 3 months does not supersede or manifest data from common illnesses such as influenza A & B. If the numbers are similar, which they are no precedent exists for blindly shutting down the entire economy. I can appreciate the argument presented. However, existing case law should be the basis for evaluation vs. exact modeling. There is a happy medium here between what we currently have and what everyone wants. It isn't reasonable to hold the entire state or economy to one standard.

Inconvenient Truth

Care to cite a case where the Supreme Court upheld the involuntary confinement of people who were NOT infected or contagious?

Moardeeb

You're not confined. Run naked in the streets!

Dog

Exactly.

Independent Voter

Just one problem with your argument, Ms. Woman... It supposes there is significant danger to enact the types of lockdown orders we are seeing. I think it can be reasonably debated that there currently ISN'T significant danger. 9/11? I could argue there was significant danger - and we didn't do this. SARS? MERS? Flesh-eating disease? Mad-Cow Disease? Another Justin Bieber tune? All good arguments for sheltering in place - and we didn't. Read through your little pocket-sized copy of the Constitution again, Ms. Woman, then get back to me.

ThinkBigger

9/11 not contagious. SARS- not contagious like Covid- same with MERS and Ebola (however if either of those mutates and becomes airborne lookout- it would be worse then Covid-19 death rate wise) so you’re comparing things that are not equivalent. Might as well compare apples and oranges and it’s no different here- let’s be honest. Facts are the contagion rate and incubation period of Covid sets it apart and makes it unique (per experts and mounds of mindless reading thru various medical journals and studies) which is why THEY didn’t require shelter in place. Difficult when your argument has holes and inequivalencies scattered about

She Dee

Over the years, I have noticed that quite a few of the old standard brick and mortar businesses have been able to operate using the internet. So, what businesses will never be able to be run from home in a "solitary" or "solo" non public atmosphere? This is oh so mind boggling! I cannot think of any.

JR

I just don't get it. These people who are angry about the government doing its job, which, at this time, is saving lives, act like spoiled rebellious teenagers. And I think that's their mentality because they never matured beyond an adolescent stage. Just substitute mom or dad for government, and it's crystal clear where they're coming from. Also, I think they are very angry about something. Again, did their mommy not love them enough? I would say, "Go out there and get sick, if you want to." But that would infringe on my rights and might make me or my family sick. So I say, stay home, you ignorant fools because, apparently, this coronavirus has barely begun to wreak its havoc.

Independent Voter

JR, you and SensibleWoman can stay home! That is your business. Why must you force the rest of us? Let us make our choice, or are you so against personal responsibility that the idea of it terrifies you? I don't need you or Gavin Newsom to interpret the data for me. Leftists have this compulsion to herd the cattle, usually over a cliff. But it has gone too far this time. The numbers on COVID still do NOT live up to the hype and that begs some serious questions as to just what the heck we're doing here.

Moardeeb

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Independent Voter

Excellent! I applaud these individuals for speaking out and taking action. Business owners and citizens need protection from this governmental overreach. This is the first of many such lawsuits. I had seen today that a state representative sued the governor of Illinois on Sunday on similar grounds and a judge sided with the rep against the governor, though just for that individual. The governor there is furious. The Supreme Court will ultimately decide this and I'm certain they will uphold the rights of American citizens.

Lilyrose

Supreme Court will decide ? The same judges that are isolated ? The courts are filled with important decisions. What is this letter ? Not a filing. It will go into archive and maybe from a commercial aspect copies be made into cocktail napkins or printed on souvenir t-shirts and sold at the local airport gift shop.

Independent Voter

There are many lawsuits weaving their way through the courts. Lily, I don't fault you for being totally unaware and being entirely clueless. I know, if it isn't on NPR or Maddie, it isn't worth knowing.

Moardeeb

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Moardeeb

The needs of the many outweigh the needs of the few.

Go to court! Drink some bleach! Nobody cares!

Go out! Get sick! Open up. We ain't comin anyway.

Boris25

Moredumb, again you show your ignorance. According to your "The needs of the many outweigh the needs of the few" logic, you are speaking in favor of the Jim Crow Laws of the old South. The many (Whites) had a need to keep segregation alive and to subjugate the few (Blacks). So, your logic supports that view.

Unionpacific

The shutdown taken by some states violate Interstate Commerce which falls under the Federal government. I am surprised that DC has allowed States to violate these laws. I am sure there are many other Federal Laws ranging from revenue to travel that State regulations have overstepped Federal law. The collateral damage from Shutdowns to the economy and to the health of the people is larger than the infection from Corona. States should have limited their powers to quarantine cities within their states but not shutdown the entire state economy. The impact of shutting down the economy of California is body blow to the nation's economy.

Lilyrose

"is body blow to the nation's economy.". The hamster on the treadmill.

Needed your guns yet, boys? L o l...

Soon enough all will be back to filthy consumption. Plastic carpets, slaughtered cows for k.c. steakhouse, bats , dogs, cats boiled for others....not a change will take place.

Nice letter. Thanks for caring guys....about yourselves.

Gene Pool Chlorinator

Are you still in town? I thought you were going to move??

Lilyrose

Can't move until people like you start cleaning up this town. But you know that already, don't you.

Veritas

“Can't move until people like you start cleaning up this town.” What the heck does that mean in relation to why you “supposedly” can’t leave”. If you really wanted to leave you would, no matter how destitute you claim you are. People like you do it all the time, so stop making excuses and hit the road. I’m sure San Fran will welcome you with open arms.

She Dee

I will take a guess that someone is on the wait list for one of the "clean" moving trucks. Maybe they will need 2 to fit all of their stuff into. Sounds a lot like an episode of hoarders! LOL.

Bodysnatcher

Lilyturd, you and dweebous need to shave your heads, then, put them together and make a bigger a$$ out of yourselves. You stink of "it's all about me", so don't point your stink finger at others who've actually worked for what they have and are on the verge of losing it all. You have the Homer Simpson syndrome in that you feel the first step to failure is trying. You're life must be a real tragedy.

Moardeeb

Dang Liberals with their Math, Readin, Writin and Facts!

Moardeeb

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Zeppo

Unionpacific: You are correct. This is all about ridding the world of Democracy and allowing authoritarianism instead, by those that think they know better for all of us.

Moardeeb

You definitely need some Governance. You are why it was invented.

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