By Dave Simpson, Law360 – June 25, 2020 – A California federal judge denied a bid to temporarily restrain Los Angeles County from its COVID-19 contact tracing plan, ruling Thursday that a county resident and a Beverly Hills sushi restaurant challenging the plan are unlikely to succeed on their First and Fourth Amendment claims.
U.S. District Judge Stephen V. Wilson denied the preliminary bid from Sasabune Beverly Hills and Nargiza Lutz, finding Lutz has no reasonable expectation of privacy under the Fourth Amendment for information she hands over to businesses that are operating under the county’s order.
“Her contact information, once provided to any of the entities subject to the county’s order, constitutes business records of those businesses, no longer subject to her privacy interest,” Judge Wilson said.
As for Sasabune, the restaurant hasn’t shown that the county will actually seek a warrant to gain access to the requested information in the event that the restaurant refuses to turn it over, the judge said.
“The court cannot find a substantial likelihood of success on the merits based on the arguments plaintiff Sasabune has made on this claim, because there is no current evidence that the county will unconstitutionally apply the terms of the order in practice,” he said.
Lutz and Sasabune filed their complaint on June 20, two days after the county’s order took effect. In particular, the order asks places of worship, office worksites, restaurants, and other types of businesses and organizations to collect contact information from visitors.
The complaint alleged the order’s permission of contact tracing — a process in which the government attempts to track the locations of individuals who have tested positive for the coronavirus — establishes an unconstitutional warrantless search regime, in violation of the Fourth Amendment. Additionally, Lutz claimed the order violates her First Amendment rights by infringing on her freedom of association.
On Thursday, Judge Wilson said Lutz’s First Amendment challenge was also unlikely to succeed.
“Plaintiff’s patronage of local businesses, and the accompanying identifying information she may be required to disclose, is purely commercial, and therefore does not raise First Amendment concerns,” he said.
Additionally, she failed to show that disclosing her contact information to a business will place any burden on her associational rights, he said.
Judge Wilson also said the plaintiffs failed to show the likelihood of irreparable harm and, additionally, the public interest is “overwhelmingly served by denying” the temporary restraining order.
Amnon Siegel of Miller Barondess LLP, which is representing the county, said contact tracing is a key component of the county’s fight against transmission of COVID-19.
“The court’s order clearly recognizes the broad discretion afforded to the county of Los Angeles in making decisions to protect the public health during the pandemic,” Siegel said. “The county is taking necessary actions to prevent the spread of the virus.”
The plaintiffs are represented by Christian Elias Kernkamp of Kernkamp Law APC.
The county is represented by Amnon Z. Siegel and Jason H. Tokoro of Miller Barondess, LLP.
The case is Miura Corporation et al. v. Muntu Davis, case number 2:20-cv-05497, in the U.S. District Court for the Central District of California.