"It was not practically possible for the Governor to put in place policies that had no negative impact on individuals' freedom of religion, speech, and assembly.”

Between March and June 2020, the Governor of Delaware issued a number of orders imposing several restrictions to limit the spread of COVID-19; some of such restrictions limited the number of attendees and restricted the activities in houses of worship.

Two church pastors filed suit claiming that the above restrictions violated their rights under both the Delaware and the United States Constitutions and sought damage for such violations.

By decision of 28 August 2023, the Superior Court of Delaware dismissed plaintiffs’ suit, alleging that the Governor was entitled to immunity with respect to all the complaints. First, the Court held that the complaints under the US Constitution were covered by qualified immunity. In this respect, the Court noted that, to be entitled to qualified immunity, a government official must show that a reasonable government officer, confronted with the facts alleged by the plaintiff, could reasonably have believed that his actions did not violate some settled constitutional rights. On the contrary, to prove that the government official is not entitled to immunity, the plaintiff must show that the government official violated a constitutional right and that that right was clearly established at the time of the alleged violation. That being said, the Court held that at the time of issuing the challenged restrictions there was no clear consensus among federal or state courts that the Governor’s actions were unlawful. “In fact, decisions issued around the country found that, during this time period, the law was wholly unsettled as to whether officials could issue certain restrictions for the purpose of preventing the spread of the coronavirus that may have also curtailed individuals'” constitutional rights, the Court stated. Accordingly, the Governor was entitled to qualified immunity.

The Court also held that the complaints under the State Constitution were covered by immunity under the State Tort Claims Act (STCA), which exempts state employees from civil liability for acts or omissions taken in their capacity as such. The Court noted that the state’s emergency management act provided the Governor with broad discretion to implement orders to protect the health and safety of its citizens from the COVID-19 pandemic. Since the immunity provided by the (STCA) applied to discretionary acts, the plaintiffs’ claims were barred under such statute. The Court further noted that “some degree of error on the part of the Governor and other state officials was inevitable, but the Emergency Management Act permits a margin of error for the circumstances the Governor faced. Considering the imperfect knowledge that the Governor had when making these policy decisions, the nature of transmission, and the need to reduce the alarming rate of infection, it was not practically possible for the Governor to put in place policies that had no negative impact on individuals' freedom of religion, speech, and assembly”.

Reference: In Re COVID-related restrictions on religious services, Superior Court of Delaware, 28 August 23.

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