Thomas Renz – Attorney
With many arguing (including myself) that the response to COVID-19 violates numerous Constitutional rights, the follow up question people should be asking is whether there will be liability for these violations and who – if anyone – will be liable. Under the law, it is highly likely that the answer to this question is yes, there is liability, and it will be coming out of the pockets of those most responsible for the violations.
At the time of writing, we are arguing in federal court in an expanding number of states that there is no emergency. An emergency is something that happens and ends – COVID is with us forever. Further, we have laid out in excruciating detail that people have been mislead about the danger of the disease (we do not dispute the disease exists or that people have died from it but rather that official figures are incorrect and/or misleading and do not warrant an emergency declaration). You can see our filings here.
In addition to that, the Supreme Court has held that a number of actions taken – particularly related to restrictions of religious freedoms – have been illegal.
All of this points to the fact that peoples’ rights are likely being violated and, if they are, we go back to the question of liability.
Under 42 USC 1983 an individual may be sued for violating the Constitutional rights of another. This certainly applies to local and state officials and that has recently been reaffirmed in Tanzin v. Tanvir. 592 U.S. _ (2020). This leads to the natural conclusion that it would be very likely that liability would be imposed on state and local officials for Constitutional violations where they are occurring.
In light of the current situation regarding the state and local response to COVID-19 this is a critical consideration. Governors and State Health Department leadership around the nation are pushing rules that seem to be crossing the line in terms of violating individual rights. They are then asking local law enforcement and local health departments to enforce these rules. The problem is that the individuals that enforce these unconstitutional actions may end up personally liable for their actions. Immunity does not apply to actions where individual Constitutional rights are violated so these people may be on the hook for paying for their own lawyers and whatever damages they are responsible for.
This prospect should be terrifying when we consider the amount of damage to various individuals and businesses from the COVID response. While I am not representing anyone being sued in this way, the question I would be asking a potential client that is enforcing a law that is likely unconstitutional is: “Is it worth it?”
This article is the opinion of the author and should not be construed as legal advice. Please consult an attorney for questions about any specific issues.