Judge Issues Injunction Against LA County; Never Mind

Last week I covered Los Angeles Superior Court Judge James Chalfant's instruction to the Los Angeles County health department to return to his courtroom December 8 to provide actual research on the reasons to ban outdoor dining as a COVID lockdown measure. On Tuesday, this didn't go well for the county.

The judge had little sympathy for the county's arguments and sided with the [plaintff, the California Restaurant Association]. At one point, Chalfant said the county's arguments about being unable to confirm a link between outdoor dining and coronavirus might have flown early in the pandemic but not anymore.

"I am shocked that in nine months, [government officials] have not looked seriously at outdoor dining," Chalfant said. "I am not laying this at the county's feet but that is a failure of government."

. . . Attorneys for the plaintiffs claimed the outdoor dining ban would do little or nothing to stop the rising tide of coronavirus cases. [Plaintiff Mark] Geragos called the outdoor dining ban "feel-good political theater."

Judge Chalfant appeared to agree with that sentiment. At one point, he told L.A. County's attorney, "You want to look like you're doing something so you're restricting outdoor dining."

However, the injunction applies only to an LA County ban on outdoor dining, which was imposed independently by the county not long before Gov Newsom imposed a set of regional bans based on hospital ICU caoacity, which I covered in part yesterday. This in turn sets up an entirely new set of restrictions that overlays a still-in-effect set of color-coded restrictions imposed on counties based on COVID statistics.

The practical effect is that, although the injunction applies to the county's ban on outdoor dining, the separate state ban on the same thing is still in effect.

A different situation was resolved by going through political channels to get Gov Newsom to revise a decree.

Democrat California Governor Gavin Newsom reversed course on closing playgrounds because of the coronavirus after citizens and even his left-wing colleagues and supporters called foul on depriving children of the opportunity to play outdoors.

. . . “According to the state’s updated guidance, playgrounds located at schools that remain open for in-person instruction, that are not accessible by the general public, may also remain open, as long as they follow state guidance for schools and school-based programs,” Fox reported.

It sounds as though the modification to Newsom's order was very, very narrowly tailored to accommodate the particlar situation of a crony or small group of cronies. As we saw last week, apparently a favored TV producer was able to set up outdoor catering at a film location right next to a restaurant whose outdoor dining had been closed by the governor's order.

What we've seen in places like California is that an intricate and multi-layered set of extra-legislative, and increasingly extra-judicial, controls has sprouted up with remarkable speed. Although some remedies seem to be on the horizon, it isn't going to be an easy matter to clear this up. And a vaccine isn't going to solve a thing.

Fool Me Once

On December 2, Joe Biden announced there may be 250,000 further deaths due to COVID between 'now and January'. Now, Joe has had a history of adding a zero here and there to his estimates, but this one was widely published without challenge, and at least 250,000 isn't 250,000,000. But is even this number remotely reasonable?

It took eight months, between March and the end of October, for the US to reach a total of 250,000 COVID deaths. And keep in mind that health authorities throughout this time have repeated that COVID deaths are calculated as any death in which the decedent tested positive for COVID, whatever the underlying cause. Someone killed in a skydiving accident would be a COVID death if he tested positive. Someone who died in a hospice from terminal cancer would be a COVID death that way.

On December 5, there were 2,190 COVID deaths that day in the US. which seems to be generally consistent with the totals in recent weeks. (The numbers jump around in the low four figures.) Since this is December 9, we have 22 days remaining in December.

If COVID deaths continue at the December 5 rate, there will be only 48,180 deaths between now and January, not 250,000. This is off by 80%. Put another way, for there to be 250,000 deaths between now and January, there would need to be over 11,000 US deaths per day. The trend since Joe's announcement on December 2 has nevertheless been chatter in the low four figures. We aren't seeing these numbers.

Actually, this is the classic "if present trends continue" fallacious argument that used to be taught in middle school.

Let's recall that last March, the Imperial College COVID model, which drove early US policy, forecast 2 million US deaths. Joe seems to be making forecasts based on similar premises, which, within even a week of his making them, are pretty clearly not proving out.

Another issue from last March is the estimates of hospital ICU capacity that drove President Trump to send Navy hospital ships to New York and Los Angeles. The original intent, recall, was for them to provide additional intensive care capacity to allow local hospitals to devote their own units to the predicted flood of COVID patients. But the flood never materialized, and the ships were not actualy needed. As of late April, the Mercy "had treated a few dozen non-coronavirus patients for everything from heart and lung conditions to gastrointestinal problems," and it left Los Angeles in May.

However, Gov Newsom is using what appear to be similar wildly inflated estimates of ICU capacity to impose a new lockdown on California. This appears to disregard normal hospital practice and seems to be a repeat of the wild overestimates from last March:

In any given year, most parts of California reach 90% ICU capacity in December. This is usually due to the surge in flu cases, but the flu is allegedly non-existent this year, replaced on paper by the more lucrative COVID-19 diagnoses preferred by hospitals. They knew it was coming, which is why they made moves separate from the state to increase ICU capacity. But without the state’s help, there was no way they were going to stay below the Governor’s 85% threshold. And they were okay with that.

Dr. Brad Spellberg, Chief Medical Officer at the Los Angeles County-USC Medical Center, said, “Where we typically run well above 90% of our ICU beds occupancy because we’re such a busy trauma center. And this is taking us to almost capacity.”

In other words, in California, ICU capacity never falls below 90% in December, so why treat 2020 as an emergency? In addition, hospitals do reconfigure their facilities to meet demand in any case. It's completely unclear why a lockdown is needed to avert a problem that is quite possibly non-existent. Newsom justifies the lockdown based on "projections" and "models", but it's unclear how those differ from the ones that sent unneeded hospital ships to New York and Los Angeles last March.

But last spring, people thought this was a completely new situation and took the authorities' word for things.

Fool me twice, shame on me.

No California Policy Movement After Supreme Court Signals

On November 25, the US Supreme Court ordered a preliminary injunction in Roman Catholic Diocese of Brooklyn v. Cuomo, holding that New York may not enforce 10- or 25-person congregation-size limits on certain Catholic churches and Orthodox synagogues, pending further Supreme Court litigation. On December 3, the justices sent the dispute between the Harvest Rock International Ministry and California Gov. Gavin Newsom back to the 9th US Circuit Court of Appeals to further consider the case in light of its Movember 23 ruling.

However, as one commentator put it, this effectively changes nothing for California churches.

Vacating the district court decision leaves the Governor's order in full effect. Another two or three full months could elapse before this case gets back to the Supreme Court. Harvest Rock remains subject to the very regime they sought emergency relief on. This punt leaves the church in a very difficult place.

In response, on December 3,

Lawyers for a church with more than 160 congregations across California said they would seek an immediate court order Thursday allowing indoor worship after the Supreme Court told a lower federal court to reexamine state coronavirus restrictions on church services.

So far, there's no news on that front.

Also on December 3, Gov Newsom announced a completely new state lockdown scheme based on models of hospital ICU capacity in regions of the state. As far as anyone can tell, this overlays the existing color-coded scheme based on COVID case statistics by individual counties and does not replace it,

The new guidance allows travel to "important activities" like "worship", but it restricts worship services in all affected regions to outdoors-only, instead of limited worship indoors in a small number of counties. The bottom line appears to be that fewer areas will allow any indoor worship at all.

What the Su[preme Court telegraphed is that, whatever the restrictions the state imposes, they can't single out houses of worship for special treatment. Currently under the color code system, indoor worship is prohibited over most of the state, but much of the retail industry is allowed to operate indoors, albeit under capacity reatrictions. If Target or Home Depot can operate, even at 20% capacity, a church should be able to hold indoor services at 20% capacity as well.

However, Abp Cordileone seems to have been aware of his dilemma in last week's statement quoted here:

We prefer not to go to court to win this fight. We prefer, and have been working hard for a long time to achieve, resolving this impasse with mutual understanding and respect. That would save a lot of valuable time and resources. It would also help to build up good will.

Right now, it seems to me that the Supreme Court signals have put the nonconforming megachurches in a pretty good position, because tjey're continuing to operate indoors without "permission", amd their legal cases for continuing to do so look a lot better. On the other hand, efforts by the churches that play by the full set of rules are likely to be delayed for months, leaving the moral enforcers in a continuing position of power, for however long that lasts.

Remarks by Abp Cordileone earlier this fall suggest that attempts by the archdiocese to submit plans for reopening indoor worship, no matter how carefully worked out, are simply ignored by the authorities.

Another California Megachurch Is Not With The Program

Over the weekend, I found out about a fourth megachurch in Southern California that's been holding indoor services without social distance since the summer. This is Awaken Church in San Diego County. Last week, San Diego County health authorities issued advisories warning that the three campuses of the church had had a COVID "outbreak".

According to the church's pastor, Jurgen Matthesius. the county was anything but transparent. According to the link,

Matthesius said the advisory didn’t inform the church how many people tested positive as part of the outbreak, or even who they were. Awaken Church later found out it was just three people.

Pastor Matthesius said 2,800 people call the Balboa campus “home,” and that he doesn’t know how just three people can constitute an outbreak at his church.

Another version differs, but not by much:

As of Thursday, the three church outbreaks constitute 65 COVID-19 cases.

Whether it's three cases at one campus or 65 at all three, we're talking about what appear to be positive tests only, with no symptoms, out of thousands. California health authorities have been very broad in using the term "outbreak" elsewhere. At least in Los Angeles County, three cases can constitute an "outbreak" if in someone's judgment that's what it is. The LA County Health Department found three cases at Grace Community Church, and the LA Times crusaded against the church for its "outbreak".

According to the Times' own report, there have only been three confirmed cases of COVID-19 at Grace Community Church in Sun Valley.

Jenna Ellis, the attorney representing MacArthur and his church, said in a statement, "Three very mild positive tests among more than 7,000 people is hardly news. 0.0004 or 0.043% is not an 'outbreak.' The L.A. Times and others' grossly misleading and fear-mongering headlines aim to mischaracterize Grace Community Church as irresponsible and a superspreader."

The county was forced to issue an announcement rescinding the designation:

We are glad to announce that we received a notice from the Los Angeles County Department of Public Health on Thursday, November 12, saying that we have been cleared of COVID-19 outbreak. After a thorough investigation, Public Health officials have decided to rescind all outbreak related requirements and restrictions on Grace Community Church.

On one hand, this follows the pattern of moral panics, in which moral entrepreneurs, in this case the county health department, worked in concert with media to spread hysteria. Apparently under legal threat, the county was forced to back down.

But on the other hand, megachurch worship services, where thousands assemble indoors without masks, don't social distance, and even shake hands and hug at the peace, actually result in very few infections, whether it's three in two individual cases, or 65 in parishes countywide.

Los Angeles County, for instance, has had 450,000 "cases" in a population of 3.99 million, which gives a case rate of 0.1%. The case rate at Grace Community Church, according to Jenna Ellis, is 0.043%, less than half the county rate. I would guess that similar studies of case rates for churchgoers in just about any denomination would be roughly equivalent -- your chances of being infected at church, even indoors and without a mask, are less thn half your chances of being infected doing anything else.

The first thing that comes to mind is that from a Christian perspective, going to church regularly is a habit of virtue, which leads to prudence. Leaving anything else aside, wouldn't developing prudent habits lead to general better health? Why would a health department discourage this?

Southern California Pushes Back

Per the Desert Sun,

Riverside County Sheriff Chad Bianco has issued a video statement decrying Gov. Gavin Newsom's plans to impose shutdowns across the state due to surging COVID-19 cases, and repeating his objection to penalizing those who don't follow the new protocols.

Bianco said his department won't be "blackmailed, bullied or used as muscle against Riverside County residents in the enforcement of the governor's orders."

The video, which was published on the department's YouTube channel and shared through its social media, shows Bianco in uniform. He accuses Newsom of having a "dictatorial attitude" and being "extremely hypocritical."

Bianco called the stay-at-home orders "flat-out ridiculous."

Los Angeles County Sheriff Alex Villanueva "will not instruct his deputies to enforce a new statewide stay-at-home order announced Thursday that could force businesses to temporarily shut down as coronavirus cases continue to soar."

"I want to stay away from business [sic] that are trying to comply, they bent over backwards to modify their operations to conform to these orders and then they have the rug yanked out from under them, that's a disservice, I don't want to make them more miserable," he told Fox affiliate, KTTV-TV, according to a tweet.

The Orange County Sheriff restated his existing policy on lockdown enforcement:

Orange County Sheriff Don Barnes said Saturday that his deputies would not be enforcing the regional stay-at-home order that has been issued for Southern California.

"Compliance with health orders is a matter of personal responsibility and not a matter of law enforcement,'' Barnes said in a statement. "The Orange County Sheriff's Department will remain consistent in our approach.

"Orange County Sheriff's deputies will not be dispatched to, or respond to, calls for service to enforce compliance with face coverings, social gatherings, or stay-at-home orders only."

The San Bernardino County Sheriff's Office has announced it will not enforce the lockdown orders:

The San Bernardino County Sheriff’s Department is aware of the state’s plan to modify the Stay At Home Order depending on the fluctuation of ICU bed availability/capacity in our region. We will continue to work closely with our county and city partners to best serve our communities. As has been the case since we were initially faced with the difficulties of living and working through this pandemic together, our goal is to educate and gain voluntary compliance regarding Public Health orders.

Sheriffs elsewhere in the state have taken similar positions, although many are simply restating positions they've had for much of the year.

A video from a Los Angeles restaurant owner went viral over the weekend:

Angela Marsden, the owner of Pineapple Hill Saloon and Grill, posted a video on social media after she saw production tents and tables set up in a parking lot just a few feet from the outdoor dining area she's not allowed to use.

People involved in the television production crew were seen dining under the tents.

A basic problem with the lockdown orders is that state and local leadership shows by its own behavior that they don't believe the restrictions are necessary. If Newsom believed either indoor or outdoor dining were dangerous, he wouldn't have attended the pre-Thankstiving party at a Napa restaurant, without a mask. If Mayor Garcetti believed outdoor dining was dangerous, he wouldn't have allowed a TV production company to have catering, after he'd banned it for the plebs. Nor, of course, would the TV producers have eaten there.

What we're looking at is failing leadership, with key players, such as local sheriffs, no longer on board with policies, while the leaders, insisting that the continuing violations of their own orders are just isolated mistakes, simply continue an established pattern of hypocrisy.

Instead, over the past weeks, the state, county, and city authorities have issued panicked updates to their restrictions every few days, resulting in conflicts, misunderstandings, and absurdly unenforceable edicts. The mayor's latest ukase reads in part:

All travel, including, without limitation, travel on foot, bicycle, scooter, motorcycle, automobile, or public transit is prohibited, subject to the exceptions in Paragraph V.

Observation over the past few days indicates that nobody is taking this seriously; people are going on with their lives. This is simplly not leadership as it is generally understood.

An LA Judge Asks Questions

Los Angeles County Superior Court Judge James Chalfant is asking questions few others have posed -- just what is the "science" behind the lockdown orders being promulgated in many US states? LA County banned outdoor dining at restaurants this week in response to a surge in COVID cases. While there is sketchy evidence for COVID transmission at indoor restaurants, there is apparently none at all in the literature for outdoor dining. Banning any restaurant business just before Christmas is, of course, economically disastrous. The judge thinks there ought to be good reasons to do it.

The Daily News reports Los Angeles Superior Court Judge James Chalfant “appeared sympathetic” to separate lawsuits seeking to lift the restriction filed by the California Restaurant Association and famed attorney Mark Geragos, who owns the Engine Co. No. 28 restaurant in downtown L.A. However, according to the outlet, “Chalfant said he was reluctant to issue an order that could have a major impact on public health without first reviewing scientific data about the danger of coronavirus transmission at an outdoor dining establishment.”

He scheduled another hearing for next Tuesday when public health officials will have an opportunity to bring forth information that backs up their decision to issue such a directive.

“An order to show cause means that Los Angeles County, which has banned outdoor dining at restaurants, must finally step forward and show evidence linking outdoor dining to the ongoing rise in coronavirus cases,” said Jot Condie, president and CEO of the California Restaurant Association. “Their order was arbitrary and targeted restaurants unfairly, without supporting evidence.”

“It is our expectation that if the county is unable to produce evidence justifying this decision, then outdoor dining should be allowed to resume as soon as the stay-at-home order is lifted.”

Wednesday's hearing covered a great deal of ground. Another story gives more detail:

The county, Chalfant said, provided a declaration from Public Health Chief Medical Officer Dr. Jeffrey Gunzenhauser. He said the county could be overwhelmed with Covid-19 patients but didn’t offer anything to back up his conclusion.

The basis for those conclusions are vital to the county’s argument, Chalfant said.

. . . The county’s attorney Amnon Siegel told Chalfant it would be difficult to provide the “type of scientific certainty and precision” on data the court seeks because infections and hospital bed availability are based on projections that often change.

Chalfant agreed it’s a fluid situation, but not when it comes to intensive care unit beds.

“Those are fixed. It’s not hard to estimate the number of ICU beds,” said Chalfant.

Chalfant said the county also did not provide any evidence it took a risk-benefit analysis on the harm its health order could have on the economy and the mental well-being of Angelenos who lost jobs or can’t go out to eat at a restaurant.

“Which is frankly a big hole” in the county’s case, said Chalfant.

. . . he asked why the county didn’t have more information on the risks of outdoor dining, nine months into the pandemic.

This last question is one other key players are finally beginning to ask -- why, after nearly a year of COVID, do the highly paid health experts still know so little about the virus and how it's spread? Where is the actual research behind all the unprecedented restrictions?

Judge Chalfant has also presided over the separate Grace Community Church case, where he has allowed that church to continue to hold indoor services while the case moves through the system.

What's Going On In California?

As far as I'm aware, none of the usual suspects among the California civil authorities has made any direct statement about either the November 25 US Supreme Court ruling in Diocese of Brooklyn v Cuomo, or the December 3 ruling in Harvest Rock Church, et al. v Newsom The impression I have is that the LA County Health Department was fully aware of the November 25 ruling and what it telegraphed when it issued a new lockdown order on Nov 27 that prohibited all public and private gatherings "except for faith based services and protests, which are constitutionally protected rights."

The worship service exception under the constitution was completely new.

On the other hand, both LA Mayor Garcetti and Gov Newsom have been in a new lockdown frenzy. Garcetti issued new stay-at-home orders on November 17, which he said at the time were to be in effect "for the next two to three weeks." But two to three weekw later, viz, just yesterday, he announced even stricter orders. prohibiting most walking, driving, travel on public transport, bikes, motorcycles, or scooters.

No meention of going to church, though. He left that out.

Meanwhile, also yesterday, Gov Newsom added a whole new criterion to his color-coded lockdown scheme. ICU capacity, which apparently now supplements cases, hospitalizations, and deaths, and conveniently will kick in "within days"":

Regions of California where hospitals are in danger of overload will be subject to a new stay-at-home order, with some parts of the state projected to reach that point later this week, Gov. Gavin Newsom announced Thursday.

The new order will apply in regions where available intensive care unit capacity drops below 15%, according to the Newsom administration.

. . . In regions where intensive care unit capacity falls below the threshold, the new stay-at-home order will bar nonessential gatherings and require people to stay at home as much as possible to avoid transmitting the virus. It will allow people to continue with essential activities like going to the doctor, buying groceries and picking up takeout.

Newsom's order, like Garcetti's, makes no mention of church services. San Francisco Abp Cordileone, noted here as a leader of the free exercise movement, issued this statement after the Dec 3 Supreme Court ruling:

[T}he Supreme Court clearly ruled governments may not favor secular indoor activities, such as indoor retail, over worship. The same restrictions must, at a minimum, be applied to both.

. . . Worship is not less important than shopping for shoes; it is certainly more important to people’s spiritual and psychological health; it is a natural and Constitutional right, and we Catholics have shown for months that we can worship safely–with masks, social distancing, ventilation, and sanitation.

We prefer not to go to court to win this fight. We prefer, and have been working hard for a long time to achieve, resolving this impasse with mutual understanding and respect. That would save a lot of valuable time and resources. It would also help to build up good will.

Let my people worship.

It's hard to decouple the increasingly hysterical and draconian threats of new lockdowns from Newsom and Garcetti from the recent Supreme Court decisions, even though they seem to make an effort not to mention them.

The problem is, and the Nov 27 opinions from the Court make this point, that the civil authorities have had almost a year to solve the virus. But as of December, Gov Newsom is making the same pleas he made last April, in the same words, "We intend to bend the curve".

What was that about doing the same thing over and over while expecting a different result? The frenzied, throw-everything-at-the-wall approach speaks of panic and fecklessness. But it sounds as though key players are losing patience.