The owners of a New Haven lounge filed a lawsuit on April 3 against Mayor Justin Elicker and Gov. Ned Lamont challenging the validity of COVID-19 shutdown measures.
The lawsuit, filed by local law firm Pattis & Smith, alleges that citywide lockdown orders issued by the state and the mayor in the wake of the pandemic violate constitutional rights. Joy Monsanto and Michael Amato, the plaintiffs and proprietors of 50’s Lounge, located at 50 Fitch St., are also accusing Elicker of defamation and intentional infliction of emotional distress in the suit. They claim that Elicker unfairly and inaccurately slammed the establishment for remaining open in violation of the city’s social distancing orders, which had ramped up in the week in question.
“This [lawsuit] is an action that demonstrates the vital need, even in unprecedented times, to scrutinize the motives and rationales given by leaders who ask for public sacrifices of civil liberties,” reads the civil complaint. “Rather than rising to the opportunity to lead during a legitimate health crisis, Mayor Elicker instead weaponized growing fears about the pandemic to brutally attack the Plaintiffs’ and their business.”
The defendants are seeking monetary damages for emotional distress and indifference to the truth, in addition to a declaratory judgement invalidating state restrictions on businesses and gatherings.
According to the chronology set out by Monsanto and Amato’s complaint, 50’s Lounge decided to hold their last, pre-booked event — a birthday celebration — on March 14 and close down the establishment the next day. The March 14 event was one day after Elicker issued a half-occupancy order for local establishments, but one day before that order went into effect. Monsanto and Amato emphasized that fully closing the lounge on March 14 had been a “voluntary closure implemented to help flatten the curve of the coronavirus.”
In a press conference on March 20, Elicker specifically criticized three businesses for violating his orders. In addition to 50’s, Elicker mentioned Middletown Cafe and Nica’s Market — which reduced its occupancy that day, according to the New Haven Independent — and said that he would dispatch police to enforce his directives.
“We’ve had complaints about 50 Fitch St.” Elicker said at his March 20 press conference. “I will continue to highlight the businesses that are not practicing social distancing and not complying with our orders.”
It is unclear which specific order Elicker was referencing. He declined the News’ request for comment on the matter, citing the ongoing lawsuit. On March 19, the day before the press conference, Elicker restricted gatherings to ten or fewer individuals. His half-occupancy order went into effect four days prior.
A WNTH broadcast on March 20 cited a photo provided by “a representative for Mayor Justin Elicker” depicting a large crowd in 50’s. The broadcast drew a connection between this photo and Elicker’s 10-person order, saying that the order was a response to noncompliance of prior directives.
The broadcast indicated that the photo was taken on March 15 — after the mayor’s half-occupancy order went into effect, and while the strongest numerical cap governing New Haven was a 250-person order from Lamont. Lamont restricted gatherings to 50 people on March 16.
But the plaintiffs contest the timestamp presented by WNTH, claiming that the photo was taken “many days earlier” than the March 20 broadcast. The date of the photo is blurred out on the WNTH broadcast. The New Haven Independent cited a photo from the night in question that has a March 15 timestamp and a caption referring to “last night.”
The suit claims that Elicker displayed “actual malice” in slandering 50’s — with “conduct [that] was either intentional or undertaken with deliberate and reckless indifference to the truth” — and seeks to prove that the mayor was motivated by political and racial factors. The restaurant claims to have served Elicker’s political rivals and hosted former Mayor Toni Harp’s campaign events in the 2019 election in which Elicker was her challenger. Monsanto is black and the suit asserts that Elicker defamed the restaurant because of her “actions in restoring minority communities.”
“We were an easy target and we feel he did this to satisfy the neighbors of Westville Village who have a strong dislike of [our] establishment based on race,” Monsanto told the News. “Our reputation has been destroyed and the integrity of the establishment was destroyed because of this. [Elicker] went on national TV and purposefully targeted us.”
However, the plaintiffs have not yet provided concrete evidence of a racial motivation. The mayor did not appear on the broadcast in question — rather, the broadcast displayed footage from his press conference. The mayor also has not specifically indicated that his 10-person order was a response to noncompliance by local businesses.
That order — which applies to a range of community, civic and leisure activities, with exceptions for social and religious gatherings — came on the heels of an analogous 50-person order from Gov. Ned Lamont, and was motivated by increased concerns about COVID-19 community spread, according to a press release.
In addition to accusing Elicker of targeting 50’s for personal reasons, the suit calls all COVID-19 shutdown orders into question. The suit asserts that social distancing measures — aimed at stemming the surge of COVID-19 infections — are unconstitutional, and specifically violate rights of assembly, freedom of association, and the right to pursue a living.
“Despite it being a crisis, now is not the time for everybody to lose their minds and just unthinkingly and blindly give up rights and liberties,” Kevin Smith, the lawyer representing Monsanto and Amato, told the News in an interview. “If these orders are valid, and [Elicker and Lamont] have good reasons for doing so, they should have no fear of putting it before the court.”
Smith said that it was unclear whether the mayor or the governor had compelling reasons for implementing these stringent shutdown orders. He said that the selection of certain numbers — such as the restriction of gatherings to 50 people and later 10 — and the definition of essential workers appeared arbitrary and were unexplained. For these reasons, Smith maintained that it was essential to put these rapidly implemented emergency orders through judicial review, in order to ascertain whether they were in line with the Constitution.
The state’s definition of “essential” includes healthcare and related industries as well as the Department of Homeland Security’s 16 critical infrastructure sectors. Businesses who do not meet requirements can appeal their classification.
However, regardless of whether or not Elicker and Lamont’s orders are constitutional, Smith said there was no justification for Elicker to accuse 50’s of remaining open when the owners claim they had closed days earlier of their own volition.
City and state officials began regulating crowd sizes in early March, heeding CDC advice. Elicker postponed large city events and discouraged gatherings of 100 or more on March 9 — an action without legal teeth. Gov. Ned Lamont issued his own order three days later, declaring a state of emergency and capping gatherings across the state at 250 people. In response to Lamont’s emergency declaration, Elicker issued a half-occupancy order on March 13. The order, which applied to establishments with capacities greater than 16, went into effect on March 15.
Lamont reduced the statewide cap to 50 on March 16. New Haven reduced numbers further on March 19, banning gatherings of more than ten. The order applied to the same set of establishments that Lamont’s earlier order did — Elicker’s action “largely mirrors” his state counterpart in scope, a city press release said. Affected gatherings included a range of community, civic and leisure activities, with exceptions for social and religious gatherings.
On the state side, Lamont issued a statewide stay-at-home order on March 23, banning all non-essential congregations for households and businesses. The most recent directive came from Hartford on March 26; non-social, non-religious gatherings of more than five people are banned in Connecticut.
Lamont’s office did not immediately respond to the News’ request for comment but declined a request from the New Haven Independent, citing the case’s ongoing status.
Lamont previously cited constitutional and statutory powers in enacting his COVID-19 executive orders. Elicker cited both state statutes and the city’s code of ordinances.
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