Newport Beach councilman files his own beach closure lawsuit against Gov. Gavin Newsom
Newport Beach City Councilman Kevin Muldoon individually sued Gov. Gavin Newsom in federal court Monday over Newsom’s hard beach closure targeting Orange County.
Muldoon, acting on his own behalf and footing his own legal costs, has been a vocal proponent of lifting the weeks-long lockdown to stem the coronavirus pandemic and restarting the flow of California’s economy. He called Newsom’s directive, handed down on Thursday and put into effect the next day, unconstitutional.
The gubernatorial order only affects Orange County and the reopening date for Newport is unclear, although several neighboring cities have received permission from the state for limited beach reopenings this week.
“Defendants have shown by their actions a willingness to ignore and to violate the fundamental civil rights of California residents,” the lawsuit reads. “Their actions ... are persistent and capable of repetition unless they are enjoined by this court.”
The suit also lists California Attorney General Xavier Becerra, Governor’s Office of Emergency Services Director Mark Ghilarducci and California Natural Resources Agency Secretary Wade Crowfoot as co-defendants. The suit seeks legal fees and that the closures be blocked.
Muldoon’s suit alleged violations of the second-term councilman’s freedom to travel, due process, equal protection, right to liberty and a state-protected right to access navigable waters — even though Orange County has relatively low numbers of cases of COVID-19, the potentially fatal respiratory disease caused by the coronavirus, and related deaths, particularly compared to other coastal Southern California counties both where beaches are open and closed.
It is separate of a lawsuit the cities of Huntington Beach and Dana Point, along with four Huntington and Newport businesses, filed within hours of Newsom’s announcement. Newport did not join that case, filed in Orange County Superior Court, but the City Council, Muldoon included, voted Saturday to file a brief in support.
Muldoon’s own suit argues there is “no rational scientific basis for the beach closures,” citing studies on the virus’ behavior and disease statistics from regional public health departments.
“Since the initial outbreak of COVID-19 in the United States in February and March 2020, the federal government’s projections of the anticipated national death toll related to the virus has decreased substantially, by an order of magnitude,” the complaint reads. “Despite such revisions, defendants have increasingly restricted — where not outright banned — plaintiff’s engagement in constitutionally-protected activities.”
The city of Huntington Beach gets approval from the state to reopen beaches Tuesday, five days after Gov. Gavin Newsom ordered them shut down.
The governor’s office did not immediately respond to a request for comment on the latest lawsuit.
Beaches have become a flashpoint in sweeping statewide stay-at-home orders handed down in mid-March. Starting in late March, Newport officials closed several coastal amenities, including its piers, boardwalks and beach parking, but were hesitant to close the beach itself.
Then, on the weekend of April 24-26, a heat wave enticed lockdown-weary residents to beaches around Orange County, where most cities had left the sand accessible and the Board of Supervisors had just reopened county-run beaches. The turnout was well-documented. Widely circulated photos and videos of the shore in Newport and Huntington Beach appeared to show dense throngs not practicing physical distancing or wearing face coverings.
Los Angeles County’s beaches remain closed. San Diego and Ventura counties, which had been closed until the same weekend, remain open with some restrictions.
Newport officials countered press images with their own taken by police from a helicopter during Saturday’s peak appearing to show much looser crowds, and at Tuesday’s City Council meeting, lifeguards said Friday and Saturday drew about 40,000 people each day. By contrast, the Fourth of July draws between 100,000 and 130,000.
The suit also posits that studies show “that the closure of public beaches would not only be of no benefit to preventing the transmission of COVID-19 or death from it — it could actually be detrimental to such efforts.”
Laguna Beach city beaches opened Tuesday to active sand and water use and will remain open on weekdays only, from 6 a.m. to 10 a.m. The city initially approved the limited reopening of city beaches prior to Gov. Gavin Newsom’s mandated closures of Orange County beaches.
This cites a Chinese study of COVID-19 clusters in Wuhan, China, the outbreak’s epicenter, that concluded outdoor transmissions were few and rare and a U.S. Department of Homeland Security claim that sunlight and high temperatures could rapidly destroy a COVID-19 particle. It also suggests that being cooped up can harm physical and mental health.
Further, the Centers for Disease Control and Prevention’s official mitigation guidelines for COVID-19 make no mention of closing public parks or beaches, and World Health Organization and European CDC guidelines also advise against “internal travel restrictions” during a pandemic because they have little effect on reducing transmission, while imposing major social and economic costs.
At the same Newport council meeting Tuesday — where the council considered but on a split vote rejected fully closing its beaches in response to the prior weekend’s visitation — Mayor Will O’Neill cited Los Angeles County Department of Public Health figures showing that Malibu had 216 known cases of COVID-19 per 100,000 residents at the time and Santa Monica had 167 per 100,000 people. Newport had about 108 COVID-19 cases per 100,000 residents; neighboring Huntington Beach had 89 per 100,000 people, according to the OC Health Care Agency.
Similarly, Muldoon’s suit points to death rates for Los Angeles, San Diego and Ventura counties out of populations overall — .0131% for Los Angeles, .0043% for San Diego and .0022% for Ventura as of Tuesday. For Orange County, the rate is .0019% for 61 deaths out of 3.2 million residents.
Meanwhile, Huntington Beach faced an early setback Friday when a Superior Court judge denied its immediate request to block the closure. That case is set to return to court May 11 for another crack at lifting the restrictions.
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