This afternoon I filed a federal lawsuit against the West Virginia Governor and against Putnam County, and their health department inspector, on behalf of the Bridge Cafe & Bistro, located in Hurricane, West Virginia. We are seeking money damages and attorney’s fees for First Amendment retaliation, after Putnam County threatened my clients with closure in response to their Facebook post expressing their opinions and policies pertaining to the Governor’s mask mandate. We are also suing the Governor and asking the Court to declare the mask mandate, as well as the “Stay at Home Order” unconstitutional and unenforceable.

We believe it’s unconstitutional under the First Amendment, as the mask debate has become just that – political speech. We also believe they are in violation of the 14th Amendment due process clause because they’re an arbitrary deprivation of my clients’ property interests wholly without due process of law. Moreover, they’re also a violation of the Equal Protection Clause of the 14th Amendment, because they treated restaurants in Putnam County, where only two deaths have occurred in over 6 months of the virus, just the same as they treated restaurants where the virus had a greater impact.

Additionally, we believe yesterday’s ruling from Judge Stickman in the Western District of Pennsylvania makes a good case that a Governor unilaterally choosing who is “essential” and who is “non-essential” in smoky rooms, rather than through an open, defined and rational process, is itself a constitutional violation. The Governor cannot enact legislation, period. Not in a time of war; not in a “State of Emergency” which has lasted over 6 months. The sole process for enactment of new laws in West Virginia is via the state legislature, according to the state Constitution. To the extent that counties attempt to enforce unconstitutional and unenforceable executive orders as if they were laws, we believe they can be sued for money damages under Section 1983.

Here’s the actual lawsuit which was filed this afternoon in the U.S. District Court for the Southern District of West Virginia. It doesn’t yet have a case number:

And…we’re off…. First media reports:

https://wvrecord.com/stories/555093294-putnam-county-restaurant-owners-challenge-state-s-stay-at-home-order-mask-mandate

https://www.wsaz.com/2020/09/15/federal-lawsuit-filed-against-wva-governors-office-and-some-county-officials-for-restaurant-mask-mandate/

https://www.herald-dispatch.com/news/hurricane-restaurant-challenges-wv-governors-covid-19-mandates/article_11a73129-4f6e-5021-a955-810de5e358aa.html