Court Blocks El Paso Lockdown Order as Virus Deaths Rise

Pat Austin takes COVID-19 swabs in for testing at the state drive-thru testing location UTEP Monday, Oct. 26, 2020 in El Paso, Texas. (Briana Sanchez/The El Paso Times via AP)

UPDATED Nov. 15, 2020

(CN) — A Texas appeals court on Friday blocked a local lockdown order in the border city of El Paso, where a dramatic coronavirus surge has killed more than 180 people in just the past month and prompted officials to set up mobile morgues to handle the influx of bodies.

El Paso County Judge Ricardo Samaniego — the region’s top elected official, not a judicial officer — issued the temporary lockdown order just before Halloween when the surge had already begun to overwhelm local hospitals, closing or scaling back most businesses and requiring people to stay home except for essential activities.

A group of restaurants and Ken Paxton, the state’s Republican attorney general, quickly sued, arguing Samaniego overstepped his authority by setting up restrictions that went beyond Texas Governor Greg Abbott’s own pandemic-related rules.

In a 2-1 vote Friday, the state’s Eighth District Court of Appeals ruled that Samaniego did not have the authority to overstep the governor under the state’s Disaster Act, which outlines the powers local officials have to respond to emergencies. The ruling came after the same court had already temporarily blocked parts of the lockdown order.

“We reject the county’s paradigm that the governor’s order can set a ceiling for occupancy and the county can then set a floor, with the public required to abide by the more restrictive provision,” Chief Justice Jeff Alley wrote in his opinion for the majority. “If conduct is allowed under the governor’s order, that county cannot prohibit it. If activities are prohibited by the governor’s order, the county cannot allow them.”

Still, Alley wrote that the court would “allow for the possibilities that parties might identify some stand-alone restrictions” in the local lockdown order that do not violate the governor’s rules.

In a statement issued late Friday night, Samaniego indicated he would not appeal the decision.

“Unfortunately, I don’t believe it would be fruitful to continue to pursue litigation options, but I wholeheartedly intend to use my legal authority to do everything possible to save as many lives as I can,” he said.

A spokesperson for Samaniego did not immediately respond to a request for comment or indicate whether the county would appeal.

The legal wrangling has played out amid a dire public health crisis that shows few signs of easing, as more than 1,100 people remain hospitalized with Covid-19 in the area, which has a population of around 839,000.

Five mobile morgues are currently being used in the El Paso region, a city spokesperson said, while another is available if needed and officials have requested yet another four morgue trailers.

Some have pointed to a slight drop in the rate of people testing positive for the virus as a potential bright spot.

The region’s seven-day average positivity rate has fallen by about 4% over the past week. Officials hope that will translate to a slowed pace of hospitalizations in the weeks ahead, though it’s far from certain if that will be the case.

The fight over the lockdown in recent days has served as a kind of eerie reminder of just how persistent the pandemic continues to be.

Dueling narratives about whether the lockdown was a justified response to an emergency or an example of government overreach harkened back to the early days of the pandemic, when lawyers and protesters were busy fighting lockdown orders in other parts of the country.

Samaniego argued the El Paso County order was needed to prevent “unprecedented levels of death” in the community. Others, including El Paso’s mayor, pushed back, saying the lockdown unfairly burdened small business owners and would be too great of an economic hit.

“Business owners have been calling me every day in tears,” Mayor Dee Margo said during a Thursday press conference. “How is the county going to provide financial assistance to the business owners who still have to pay their taxes?”

A nationwide nurses’ union filed a court brief this week supporting the lockdown order, saying the “catastrophic nature of conditions inside El Paso hospitals cannot be overstated.”

“More than fifty [registered nurses] in El Paso County have been infected with Covid-19, and one of our members there has died of Covid,” the group National Nurses United wrote.

The case has also drawn attention from local leaders in other parts of Texas, with officials in Harris, Travis and Fort Bend Counties filing court briefs supporting the lockdown order.

Paxton’s office, meanwhile, warned in court filings that upholding the El Paso lockdown could lead to similar local restrictions across the state’s 254 counties.

“Without swift action by this court or the Texas Supreme Court, other counties may soon follow, precipitating the potential for a collapse of the state’s emergency plan and response by turning a unified strategy into an uncoordinated, disorganized, and conflicting 254-pronged approach that endangers the lives and livelihoods of every Texan,” the state attorneys wrote.

In an impassioned, 32-page dissent to Friday’s ruling, Justice Yvonne Rodriguez wrote that the governor’s attempt to override local officials “violates the small government ethos the Framers wove into the Texas Constitution.”

Rodriguez expressed deep frustration with the fact that the courts had been asked to resolve the dispute during a public health crisis.

“In the seven days this expedited appeal was pending, the County has gone from having one refrigerated mobile morgue for the overflow of bodies to six refrigerated mobile morgues,” she wrote. “How many more mobile morgues will come to El Paso before the Texas Supreme Court is able to render a final answer to the deadly riddle of which leader must yield?”

Paxton called the decision “outstanding.”

“As the Court aptly put, ‘the public cannot have two sets of rules to live by’. A tyrant who thinks he can ignore state law cannot stop that,” Paxton said. “I will not let rogue political subdivisions try to kill small businesses and holiday gatherings through unlawful executive orders.”

The El Paso ruling comes as the nationwide uptick in virus cases has prompted officials in multiple states, including neighboring New Mexico, to bring back their own lockdown measures.

New Mexico Governor Michelle Lujan Grisham said Friday her state was hitting “reset” on its pandemic-related restrictions with a statewide stay-at-home order that includes restrictions on restaurants, bars, “big box” stores and other businesses.

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