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Reckless Business Owners Are Citing a Constitutional 'Freedom to Work'

Barbers, gym owners, and restaurant owners say illegally reopening is their constitutional right. Legal scholars say they're wrong.

by Alex Norcia
May 13 2020, 4:35pm

Illustration by Hunter French

Jacob Lewis had wanted to put an American flag on the top of his gym anyway. So when he reopened his business in defiance of the government on the first weekend of May, he did just that. For added flair, he also placed a large cutout of the Constitution next to the entrance, where people could pose for photos before working out.

Lewis is a co-owner of the Gym in Victorville, a city in California's high desert between Los Angeles and Las Vegas. A self-proclaimed conservative, he has since gained recent notoriety for his public act, as it's still illegal for nonessential businesses like his to be up and running in the state. Lewis isn't afraid, because he no less than believes he is at the beginning of an ideological battle for the soul of the nation. As a result, Lewis plans to indefinitely fight California Governor Gavin Newsom's coronavirus stay-at-home order. He sees it as his "constitutional right" to do so, since he and others like him should have the "freedom to work." Plus, he said, he is providing a mental-health service to his community.

Local news stations have already interviewed Lewis numerous times, and he and his business partner estimate that 200 businesses have reached out in support. "They're calling me and thanking me and saying, 'You gave us a way,'" Lewis told VICE.

"I know what this is going to start," he continued. "Actually, it's not what I think this is going to start—it's what it did start."

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Among Americans of a certain conservative bent, Lewis is one of many new faces of a growing movement—one in which rebel businesses are recklessly reopening against the wishes of politicians, scientists, public-health officials, and sometimes even their own customers and employees. Despite frequent warnings from experts that the country doesn't have the testing capacity to ease shelter-in-place restrictions yet, more and more nonessential business owners have started defying their state's stay-at-home orders by reopening—a move that threatens to increase the country's COVID-19 death toll.

"They're making a big mistake," Newsom said of the reopening businesses like Lewis' at a press conference last Thursday. "They're putting their public at risk. They're putting our progress at risk."

The primary justification for the reopenings could be financial, or born out of a concern for employees. But a growing number of barbers, hair stylists, gym owners, and restaurateurs are almost posting their fight as something else too: a constitutional issue.

"It's something I'll never see again in my life," said Lindsey Graham, a hair stylist who illegally reopened in Oregon. "There were at least 50 supporters with signs and American flags chanting 'thank you' and 'we need to work.'"

"We are standing for America, small businesses, the Constitution and against the overreach of our governor in Colorado!!" the owners of Colorado restaurant C&C Coffee and Kitchen wrote on Saturday in a tweet that tagged the president. One day later, on Mother's Day, a video went viral that showed the inside of the packed and reopened restaurant, where practically no one appeared to be obeying social-distancing guidelines or wearing a mask (the regional health department has since ordered the business to shut down).

Days earlier, Alabama police arrested a local chiropractor who had seen patients in the gym he also owns—a constitutional affront, according to the chiropractor's lawyer. A man in Flagstaff, Arizona, has sued Republican Governor Doug Ducey, under the argument that the stay-at-home order is unconstitutional. A barber in Minnesota, Milan Dennie, told VICE that he reopened under the same constitutional principle.

Small businesses have undeniably suffered during the coronavirus pandemic. But legal scholars who spoke to VICE pushed back against the business owners' claims, emphasizing that there is no explicit amendment in the Constitution that protects the right to work.

If there was, "every unemployed American over the past several decades would have quite a substantial case against federal, state, and local governments," said James Hodge, the director of the Center for Public Health Law and Policy at Arizona State University.

"What the Constitution preserves is the government's ability to protect public health," Hodge added. "It's life or death. There's a compelling interest to save lives."

But that hasn't stopped a collection of small businesses in Pennsylvania from suing Governor Tom Wolf on constitutional grounds, invoking the Fifth Amendment and claiming that the government seized their property without financial restitution and due process. (The Supreme Court has ordered Wolf to respond to the lawsuit.)

Fifteen small businesses that make up the Free Minnesota Small Business Coalition have similarly challenged Minnesota Governor Tim Waltz's executive stay-at-home order, arguing in a lawsuit that big-box retailers like Target should not be prioritized over small businesses and that Waltz's policy is subsequently, you guessed it, unconstitutional.

Erick Kaardal, the attorney for the coalition, said in a statement at the end of April that the "consequence" of the governor's "unconstitutional categories is massive suffering for small businesses on an unprecedented scale."

Steven Collis, a research fellow at Stanford's Constitutional Law Center, said that business owners could find some line of defense in the 14th Amendment. Originally passed to guarantee freed slaves equal protection under the law, it bars states from "deny[ing] to any person within its jurisdiction the equal protection of the laws."

Collis said that since states have separated businesses into essential and nonessential businesses, it was fair to wonder why certain companies received one designation or the other, but added that the argument wouldn't likely hold up in any court because the government could produce justifiable reasons for doing so. (You don't need to get your haircut, say, but you need to buy food.)

Barber Juan Desmarais hasn't been too worried about the details since he officially reopened Primo's Barbershop in Vacaville, California, against government orders on May 1. Police promptly gave Desmarais a cease-and-desist order to close after he first officially reopened, but he has refused to do so. A Trump-supporting former cop himself, he said has been cutting hair in his shop with the lights dimmed ever since California first shuttered nonessential businesses in March and that some of his own clients are cops.

"I'm allowed to pursue life, liberty, and happiness," Desmarais told VICE. "I believe in the Constitution," he continued. "I'm allowed to retain my property and possessions."

When hair stylist Lindsey Graham (no relation) reopened Glamour Salon in Oregon's capital city of Salem last week, she did so with a press conference surrounded by a crowd of people waving the American flag. "It's something I'll never see again in my life," Graham said. "There were at least 50 supporters with signs and American flags chanting 'thank you' and 'we need to work.'" (Graham repeatedly characterized herself as apolitical to VICE, and said that she did expect a crowd to gather outside her salon.)

"There's no way someone could pinpoint that a person got it in my shop, and it's not like I'm dragging anybody in here," Desmarais said, adding that the decision to go out was an individual's alone. "Everyone has to take responsibility for their own actions."

Most of the small business owners interviewed by VICE said they didn't fear the hundreds and maybe thousands of dollars in fines, or any other legal consequence of reopening. The civil penalties can vary by state, but the worst outcome, lawyers said, would be losing their business licenses for good—a possibility, especially if more and more businesses reopen illegally. Still, many of them said that they think tickets will all eventually be thrown out, or that the revenue they'll make reopening will offset the fines.

"I was a cop for a long time," Desmarais said. "I know what they can and can't do. California suspended all bail schedules. They're not even booking people. I could probably commit a crime—a real crime—and nothing would happen."

Collis, the Stanford lawyer, said any business that was reopening illegally should not expect leniency from a judge, especially if coronavirus cases, hospitalizations, or deaths increase in their area of business.

"Imagine if they open up," he said, "and the virus spreads."

The penalties could become more severe with time should people remain open during the coronavirus' second wave, according to Hodge, the Arizona State professor, which the Centers for Disease Control and Prevention has predicted could be even deadlier. Some people might even lose their business licenses for good, Hodge suspected.

When asked by VICE if he was concerned about customers contracting the coronavirus in his shop, Desmarais said no.

"There's no way someone could pinpoint that a person got it in my shop, and it's not like I'm dragging anybody in here," Desmarais said, adding that the decision to go out was an individual's alone. "Everyone has to take responsibility for their own actions."

Lewis, who runs the California gym, similarly said he believes in personal responsibility and has said that he is not encouraging his members to violate shelter-in-place laws. Rather, he wants to place the decision to be left to his customers, not the government.

The stance appears to be increasingly common, regardless of the potential for death. An organization representing California hair stylists and barbers has said it would sue the state if any salons lose their licenses for illegally opening. The owner of a brewery in Maine is serving food and drinks even after the state took away his health license. In Michigan, a barber said that he would close only if "Jesus walks in or until they arrest me."

Paul Zimmerman runs the Red Maple Inn, a hotel and restaurant in the rural mill town of Guilford, Maine, which recently gained national attention after President Donald Trump tapped a local manufacturer to produce cotton swabs for coronavirus testing.

During the first weekend of May, he decided to let his customers drink and eat in the patio area six feet apart. Zimmerman, a Republican, contends the state of the crisis in his particular area shouldn't necessitate shutdown. But his decision came at a tenuous time for the state, as it recently had its highest ever single-day increase of cases.

At one point on a Saturday evening in early May, Zimmerman estimated that 60 people were at his business. It was around then, he remembered, that the liquor board came by and issued him a citation.

"I'm going to keep the tickets rolling in," Zimmerman said. "Some day if you ever get to Maine to look at my building, I'll make sure they're covering a wall. I'm going to make a special area just for them."

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This article originally appeared on VICE US.

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