Bannister v. Ige et al

Filing 27

ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION re 6 - Signed by JUDGE JILL A. OTAKE on 7/22/2020. (emt, )COURT'S CERTIFICATE of Service - The Parties have been served electronically to the email addresses listed on the Notice of Electronic Fiing (NEF). Additionally, a copy of the order shall be served by First Class Mail to Brock Tyler Bannister at the address of record on July 22, 2020.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

BROCK TYLER BANNISTER,
Plaintiff,
vs.

CIVIL NO. 20-00305 JAO-RT
ORDER DENYING PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTION

DAVID IGE, et al.,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION
Pro se Plaintiff Brock Tyler Bannister (“Plaintiff”), a South Carolina
resident, challenges Defendant Governor David Ige’s (“Defendant Ige”)
Emergency Proclamations regarding COVID-19 as unconstitutional under the
Fourteenth Amendment to the Constitution. Plaintiff requests injunctive relief in
the form of an exemption from the 14-day quarantine for himself, his wife, and his
two minor children. For the following reasons, the Court DENIES Plaintiff’s
Motion for Preliminary Injunction.1

1

Because the Motion will be moot if not addressed before the conclusion of
Plaintiff’s quarantine, the Court handles it on an expedited basis. A request of this
nature would ordinarily be presented as a motion for temporary restraining order.

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BACKGROUND
Like many states across the nation and countries around the world, Hawai‘i
has issued a series of Emergency Proclamations “to limit the spread of COVID–19,
a novel severe acute respiratory illness” with “no known cure, no effective
treatment, and no vaccine.” S. Bay United Pentecostal Church v. Newsom, 140 S.
Ct. 1613, 1613 (2020) (mem.) (Roberts, C.J., concurring). Further complicating
efforts to contain COVID-19 is the fact that individuals who are “infected but
asymptomatic . . . may unwittingly infect others.” Id.
The United States leads the world in COVID-19 cases and deaths by a large
margin, with 3,935,211 cases and 142,595 deaths, see https://coronavirus.jhu.edu/
map.html (last visited July 22, 2020), and nearly all states are experiencing
increases. See https://www.npr.org/sections/health-shots/2020/03/16/816707182/
map-tracking-the-spread-of-the-coronavirus-in-the-u-s (last visited July 22, 2020).
I.

Factual History
A.

Bannister Family

Plaintiff and his family arrived in Honolulu on July 9, 2020 and are subject
to the State’s 14-day quarantine through July 23, 2020.2 Compl. at 2. Plaintiff is
vacationing at a rental home in Laie for 36 days, or until August 13, 2020, at a cost

2

At the July 17, 2020 Status Conference, defense counsel explained that the 14day count starts the day after arrival.
2

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of $10,508.68. Id. He complains that the quarantine—of which he was aware
before traveling here—will cause him to lose 40% of his vacation time in Hawai‘i.
Id. According to Plaintiff, “[t]ime is a finite resource, and each minute that [he] and
[his] family spend under a mandatory quarantine, which [he] believe[s] the law
demonstrates to be unlawful, steals from [them] precious moments that [they] will
never gain back and no amount of money can purchase.” Id. at 6.
B.

Emergency Proclamations

As COVID-19 appeared in Hawai‘i, Defendant Ige issued an Emergency
Proclamation on March 4, 2020, authorizing the expenditure of State monies, and
suspending specified Hawai‘i statutes. See https://governor.hawaii.gov/wpcontent/uploads/2020/03/2003020-GOV-Emergency-Proclamation_COVID-19.pdf
(last visited July 22, 2020).
On March 21, 2020, Defendant Ige issued a Second Supplementary
Proclamation that imposed a 14-day quarantine, effective March 26, 2020,
applying to all persons entering Hawai‘i, both residents and non-residents alike,
with a few exceptions related to emergency and critical infrastructure functions.
See https://governor.hawaii.gov/wp-content/uploads/2020/03/2003152ATG_Second-Supplementary-Proclamation-for-COVID-19-signed.pdf (last visited
July 22, 2020). Defendant Ige’s Eighth Supplementary Proclamation, issued on
May 18, 2020, excepted from the quarantine individuals entering Hawai‘i “by
3

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recreational boats which have been at sea for at least 14 consecutive days before
entering State waters and have no persons on board that are ill or are exhibiting
symptoms of COVID-19.” https://governor.hawaii.gov/wp-content/uploads/
2020/05/2005088-ATG_Eighth-Supplementary-Proclamation-for-COVID-19distribution-signed.pdf (last visited July 22, 2020).
In his Ninth Supplementary Proclamation issued on June 10, 2020,
Defendant Ige extended the interstate quarantine until July 31, 2020. See
https://governor.hawaii.gov/wp-content/uploads/2020/06/2006097A-ATG_NinthSupplementary-Proclamation-COVID-19-distribution-signed.pdf (last visited July
22, 2020).
On June 25, 2020, Defendant Ige announced the August 1, 2020
implementation of the trans-Pacific pre-testing program, which allows travelers to
avoid quarantine by supplying a negative COVID-19 test obtained within 72 hours
of arrival in Hawai‘i. ECF No. 25-6 (Decl. of Bruce S. Anderson, Ph.D) ¶ 8.
Those with temperatures exceeding 100.4 or exhibiting other signs of infection will
undergo secondary screening and be offered a COVID-19 test. Id. Due to
uncontrolled outbreaks in the continental United States, an increase in Hawaii’s
cases, interruption to testing supplies, and an anticipated uptick in cases when
schools reopen in August, Defendant Ige delayed the program until September 1,
2020. See https://governor.hawaii.gov/newsroom/latest-news/office-of-the4

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governor-news-release-governor-ige-announces-pre-trav/ (last visited July 22,
2020). He correspondingly extended the quarantine until September 1, 2020 in a
Tenth Supplementary Proclamation issued on July 17, 2020. See https://governor.
hawaii.gov/wp-content/uploads/2020/07/2007090-ATG_Tenth-SupplementaryProclamation-for-COVID-19-distribution-signed.pdf (last visited July 22, 2020).
II.

Procedural History
Plaintiff commenced this action on July 10, 2020, suing Defendant Ige and

the State (collectively, “Defendants”), alleging that Defendant Ige’s
Emergency Proclamations violate his and his family’s due process, equal
protection, and liberty rights under the Fourteenth Amendment. Compl. at 3–5.
Plaintiff requests an injunction preventing the enforcement of the quarantine for
himself and his family, as well as $300.25 in damages for each day they are subject
to quarantine and $25,000.00 in punitive damages. Id. at 6.
Plaintiff filed the present Motion on July 13, 2020. ECF No. 6.
LEGAL STANDARD
To obtain preliminary injunctive relief, a plaintiff must establish: (1) a
likelihood of success on the merits; (2) a likelihood of irreparable harm in the
absence of preliminary relief; (3) the balance of equities tips in favor of the
plaintiff; and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Where, as here, the
5

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government is a party, the last two factors merge. See Drakes Bay Oyster Co. v.
Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
The Ninth Circuit also employs a “sliding scale” approach to preliminary
injunctions, under which “the elements of the preliminary injunction test are
balanced, so that a stronger showing of one element may offset a weaker showing
of another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
2011). The issuance of a preliminary injunction may be appropriate when there are
“‘serious questions going to the merits’ and a balance of hardships that tips sharply
towards the plaintiff . . . so long as the plaintiff also shows that there is a likelihood
of irreparable injury and that the injunction is in the public interest.” Id. at 1135.
Injunctive relief is “an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief”; it is “never awarded as
of right.” Winter, 555 U.S. at 22, 24 (citations omitted). “[C]ourts ‘must balance
the competing claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief,’” and should be particularly
mindful, in exercising their sound discretion, of the “public consequences in
employing the extraordinary remedy of injunction.” Id. at 24 (citations omitted).
Moreover, mandatory injunctions ordering affirmative action by a defendant,
which is what Plaintiff requests here, go “well beyond simply maintaining the
status quo . . . [and are] particularly disfavored.” Marlyn Nutraceuticals, Inc. v.
6

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Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quoting
Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979), as amended
(1980)). Mandatory injunctions are “subject to heightened scrutiny and should not
be issued unless the facts and law clearly favor the moving party,” Dahl v. HEM
Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993) (citation omitted), or “extreme or
very serious damage will result.” Park Vill. Apartment Tenants Ass’n v. Mortimer
Howard Tr., 636 F.3d 1150, 1160 (9th Cir. 2011) (citation omitted). They “are not
issued in doubtful cases.” Id. (citation omitted). “The court’s finding of a strong
likelihood that plaintiffs would succeed on the merits of their claims also evidences
a conclusion that the law and facts clearly favor plaintiffs, meeting the requirement
for issuance of a mandatory preliminary injunction.” Katie A., ex rel. Ludin v. Los
Angeles County, 481 F.3d 1150, 1157 (9th Cir. 2007) (citation omitted).
DISCUSSION
Plaintiff requests an injunction exempting him and his family3 from the 14day quarantine. ECF No. 6 at 1. The Court notes that it recently addressed similar

3

Plaintiff’s wife and children are not parties to the action. Thus, any relief could
only be awarded to Plaintiff. Moreover, even if Plaintiff named his family as
parties, he could not act on their behalf, because he is not an attorney. See Compl.
at 2 (“I am not a lawyer[.]”). “[A] non-lawyer ‘has no authority to appear as an
attorney for others than himself.’” Johns v. County of San Diego, 114 F.3d 874,
877 (9th Cir. 1997) (citation omitted). This extends to parents and their minor
children. See id. (holding that “a parent or guardian cannot bring an action on
behalf of a minor child without retaining a lawyer”).
7

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challenges to the Emergency Proclamations in Carmichael v. Ige, Civil No. 2000273 JAO-WRP, 2020 WL 3630738 (D. Haw. July 2, 2020). Because Plaintiff
does not present any persuasive arguments or authority requiring the Court to
depart from the Carmichael order, much of the analysis herein mirrors Carmichael.
I.

Plaintiff is Not Entitled to Injunctive Relief
A.

Strong Likelihood of Success on the Merits/Serious Questions Going
to the Merits

Defendants argue that Plaintiff has not established a likelihood of success on
the merits because his claims are barred by the Eleventh Amendment and fail
under Jacobson v. Massachusetts, 197 U.S. 11 (1905), and the Equal Protection
Clause.
1.

Eleventh Amendment Immunity

To the extent Plaintiff seeks damages from Defendants, his claims are barred
by the Eleventh Amendment. “The Eleventh Amendment shields unconsenting
states from suits in federal court,” K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962,
974 (9th Cir. 2015) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54
(1996)), and bars individuals from bringing lawsuits against a state or an
instrumentality of a state for monetary damages or other retrospective relief. See
Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 865 (9th Cir. 2016).
Furthermore, it “applies regardless of the nature of relief sought and extends to
state instrumentalities and agencies.” Krainski v. Nevada ex rel. Bd. of Regents of
8

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Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (citing Papasan v.
Allain, 478 U.S. 265, 276 (1986)). Suits against state officials in their official
capacities are likewise barred because they constitute suits against the state itself.
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Eleventh Amendment immunity is not absolute, however. Congress may
abrogate a state’s immunity, or a state may waive immunity. See Clark v.
California, 123 F.3d 1267, 1269 (9th Cir. 1997). And under the Ex parte Young
exception, “private individuals may sue state officials in federal court for
prospective relief from ongoing violations of federal law, as opposed to money
damages, without running afoul of the doctrine of sovereign immunity.” Koala v.
Khosla, 931 F.3d 887, 895 (9th Cir. 2019) (citing Va. Office for Prot. & Advocacy
v. Stewart, 563 U.S. 247, 254–55 (2011)). Ex parte Young is based on the
proposition “that when a federal court commands a state official to do nothing
more than refrain from violating federal law, he is not the State for sovereignimmunity purposes.” Va. Office for Prot. & Advocacy, 563 U.S. at 255 (citation
omitted). It does not apply “when ‘the state is the real substantial party in
interest.’” Id. (citation omitted). Thus, while the Eleventh Amendment bars
Plaintiff from seeking prospective injunctive relief against the State, he may pursue
his claims against Defendant Ige for prospective injunctive relief from ongoing
violations of his Fourteenth Amendment rights.
9

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2.

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Fourteenth Amendment Violations

As in Carmichael, Chief Justice Roberts’ concurrence in South Bay United
Pentecostal Church v. Newsom informs the Court’s analysis. 140 S. Ct. 1613
(Roberts, C.J., concurring). Chief Justice Roberts recognized that the
“Constitution principally entrusts ‘[t]he safety and the health of the people’ to the
politically accountable officials of the States ‘to guard and protect.’” Id. (quoting
Jacobson, 197 U.S. at 38) (alteration in original). The latitude of officials “must
be especially broad” when acting “in areas fraught with medical and scientific
uncertainties.” Id. (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)).
If officials do not exceed these broad limits, “they should not be subject to secondguessing by an ‘unelected federal judiciary,’ which lacks the background,
competence, and expertise to assess public health and is not accountable to the
people.” Id. at 1613–14 (quoting Garcia v. San Antonio Metro. Transit Auth. 469
U.S. 528, 545 (1985)). This is particularly true when “a party seeks emergency
relief in an interlocutory posture, while local officials are actively shaping their
response to changing facts on the ground.” Id. at 1614. In such circumstances,
“[t]he notion that it is ‘indisputably clear’ that the Government’s limitations are
unconstitutional seems quite improbable.” Id.
Courts presented with emergency challenges to governor-issued orders
temporarily restricting activities to curb the spread of COVID-19 have consistently
10

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applied Jacobson to evaluate those challenges. See Carmichael, 2020 WL
3630738, at *5 (collecting cases). According to Jacobson, the liberties secured by
the Constitution do “not import an absolute right in each person to be, at all times
and in all circumstances, wholly freed from restraint. There are manifold restraints
to which every person is necessarily subject for the common good.” Jacobson, 197
U.S. at 26. It is a “fundamental principle that persons and property are subjected to
all kinds of restraints and burdens in order to secure the general comfort, health,
and prosperity of the state.” Id. (citation and internal quotations marks omitted).
When an epidemic of disease threatens the safety of a community’s members, it
“has the right to protect itself.” Id. at 27. And commensurate with that right is a
state’s authority “to enact quarantine laws and health laws of every description.”
Id. at 25 (internal quotations marks omitted).
Defendant Ige’s Emergency Proclamations—purporting to protect public
health during the COVID-19 pandemic—are not susceptible to Plaintiff’s
constitutional challenges unless they have “no real or substantial relation to” the
crisis or are “beyond all question, a plain, palpable invasion of rights secured by
the fundamental law.”4 Jacobson, 197 U.S. at 31 (citations omitted). Indeed,
“Jacobson instructs that all constitutional rights may be reasonably restricted to

4

Plaintiff argues that Jacobson requires the satisfaction of additional factors:
(1) reasonableness; (2) not affecting people of other states; and (3) legislative
enactment. ECF No. 6 at 2. The Jacobson test does not include these factors.
11

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combat a public health emergency.” In re Abbott, 954 F.3d 772, 786 (5th Cir.
2020). And “the judiciary may not ‘second-guess the state’s policy choices in
crafting emergency public health measures.’” In re Rutledge, 956 F.3d 1018, 1029
(8th Cir. 2020) (quoting Abbott, 954 F.3d at 784).
a.

Real or Substantial Relation to Public Health

The Court already determined in Carmichael that Defendant Ige
successfully demonstrated “that his Emergency Proclamations have a real or
substantial relation to the public health crisis caused by the COVID-19 pandemic.”
Carmichael, 2020 WL 3630738, at *6 (discussing the Declarations of Dr. Sarah
Park, Hawaii’s State Epidemiologist and Dr. Steven Hankins, Lead Coordinator for
Emergency Support Function-8 with the Hawai‘i Emergency Management
Agency); see also ECF No. 25-3 (Park Decl.) ¶¶ 9, 16–17, 19–20, 28, 30; ECF No.
25-4 (Hankins Decl.) ¶¶ 7, 10–11. The jump in COVID-19 cases and deaths in
Hawai‘i since the issuance of the Carmichael order lends further support to the
quarantine.5 And the alarming resurgence of cases on the mainland, both before,
see ECF No. 25-3 ¶¶ 22, 29, 40, and after the Court issued Carmichael only
buttresses Defendant Ige’s position here.

5

Compare https://health.hawaii.gov/coronavirusdisease2019/ (last visited July 22,
2020) (1,418 cases and 24 deaths), with Carmichael, 2020 WL 3630738, at *1 (946
cases and 18 deaths as of July 2, 2020) (citation omitted)).
12

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Plaintiff has not attempted to refute Defendant Ige’s proffered bases for the
Emergency Proclamations, all of which have a real or substantial relation to public
health. It is not the Court’s role to “usurp the functions of another branch of
government,” Jacobson, 197 U.S. at 28, by second-guessing the State’s bases for
formulating and extending public health and safety measures. Rather, it is “the
duty of the constituted authorities primarily to keep in view the welfare, comfort,
and safety of the many, and not permit the interests of the many to be subordinated
to the wishes or convenience of the few.” Id. at 29.
b.

Plain, Palpable Invasion of Rights Secured by the
Constitution

The Court now considers the second Jacobson inquiry: whether the
Emergency Proclamations are “beyond question, in palpable conflict with the
Constitution.”6 Jacobson, 197 U.S. at 31 (emphasis added). And more precisely,
whether they cause a “plain, palpable invasion” of Plaintiff’s Fourteenth
Amendment rights. Id. The Court concludes they do not, whether under
traditional levels of scrutiny or Jacobson’s highly deferential standard.

6

“Although courts have not yet defined the precise contours of this standard, it
plainly puts a thumb on the scale in favor of upholding state and local officials’
emergency public health responses.” Prof’l Beauty Fed’n of Cal. v. Newsom, No.
2:20-cv-04275-RGK-AS, 2020 WL 3056126, at *7 (C.D. Cal. June 8, 2020)
(citation omitted).
13

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i.

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Due Process

Plaintiff alleges that the quarantine violates his liberty right to free
movement without due process because he is forced to quarantine without
scientific proof that he has contracted or been exposed to COVID-19. Compl. at 3.
Plaintiff is unlikely to succeed on the merits and fails to raise serious questions
going to the merits.
The substantive component of the Due Process Clause of the Fourteenth
Amendment “protects certain individual liberties from state interference.”
Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir. 2018) (alteration in original)
(citations omitted). “[O]nly those aspects of liberty that we as a society
traditionally have protected as fundamental are included within the substantive
protection of the Due Process Clause.” Id. (citation omitted). Therefore,
substantive due process is “largely confined to protecting fundamental liberty
interests, such as marriage, procreation, contraception, family relationships, child
rearing, education and a person’s bodily integrity, which are ‘deeply rooted in this
Nation’s history and tradition.’” Id. (citations omitted); see also Engquist v. Or.
Dep’t of Agric., 478 F.3d 985, 996 (9th Cir. 2007) (“A threshold requirement to a
substantive or procedural due process claim is the plaintiff’s showing of a liberty
or property interest protected by the Constitution.” (citation omitted)).

14

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Plaintiff cannot show that a lack of opportunity to prove that he is not
infected with COVID-19 violates his due process rights. Plaintiff appears to
contend that Defendant Ige’s actions amount to a constitutional violation under
Jacobson because he imposed the quarantine, a complete restraint, in lieu of other
“partial restraints” like face masks and social distancing. ECF No. 6 at 2–3. But
the Emergency Proclamations have mandated social distancing and the use of face
masks. And even if they did not, the use of masks and social distancing—which
are not restraints—address different concerns than the quarantine. Mask use and
social distancing are employed to minimize the spread of COVID-19 within the
community as businesses and activities resume, while the quarantine seeks to limit
the importation and spread of COVID-19. As here, a temporary quarantine can be
instituted in certain areas when evidence shows that unlimited travel there would
directly and materially interfere with the safety and welfare of that area. See Zemel
v. Rusk, 381 U.S. 1, 15–16 (1965).
Even applying strict scrutiny,7 the quarantine is “narrowly tailored to
promote a compelling governmental interest.” Nunez ex rel. Nunez v. City of San
Diego, 114 F.3d 935, 946 (9th Cir. 1997) (citing Plyler v. Doe, 457 U.S. 202, 217
(1982)); see Soto-Lopez, 476 U.S. at 904 & n.4 (citations omitted). Defendant Ige

7

The Court is skeptical that strict scrutiny applies because Plaintiff has not
identified a legitimate fundamental interest.
15

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imposed the quarantine to prevent the importation and spread of COVID-19 and to
avoid overwhelming the health care system, which are compelling state interests.
And the quarantine is narrowly tailored because asymptomatic individuals can
spread the disease, COVID-19 has an estimated 14-day incubation period, and
despite Plaintiff’s belief to the contrary,8 it is unclear that there are less restrictive
means to achieve Defendant Ige’s stated interests.
Although Defendant Ige has delayed the trans-Pacific pre-testing program
until September 1, 2020, once executed, it will allow travelers to waive the

8

Plaintiff argues that the 14-day quarantine is not the least restrictive means
because: (1) per the Centers for Disease Control (“CDC”), 14 days is the
maximum incubation period for COVID-19, with 97.5% of individuals developing
symptoms within 11.5 days and a median time of four to five days from exposure
to symptom onset; and (2) individuals subject to federal public health orders have
the right to have quarantine reassessed after 72 hours. Compl. at 4. Plaintiff
additionally contends that Defendants cannot prove that an increase in cases is
attributable to a spread in the disease as opposed to an increase in testing. ECF
No. 26 at 2. Plaintiff has not suggested that he has expertise in the medical or
infectious disease fields, and has not offered an expert opinion on the quarantine’s
necessity, so the Court rejects his personal opinions about whether COVID-19 is in
fact spreading or what constitutes the least restrictive means for Defendant Ige to
minimize the spread of COVID-19. Defendant Ige imposed the 14-day period
(versus a five-day or 11.5-day quarantine) at the recommendation of Hawaii’s
State Epidemiologist. ECF No. 25-3 ¶ 20 (selecting 14 days because it is the
maximum incubation period and an individual not showing symptoms at the end
of the period would be extremely unlikely to remain infectious). And testing all
arriving travelers upon arrival or at some point thereafter is simply unfeasible at
this time “due to unstable test and personal protective equipment supplies and
insufficient laboratory capacity, both public and private laboratories combined.”
Id. ¶ 25.
16

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quarantine requirement if they obtain a negative COVID-19 test within 72 hours of
arrival and provide proof upon landing.9 ECF No. 25-6 ¶ 8. Any traveler
exhibiting signs of infection will undergo secondary screening and be offered a
COVID-19 test at the airport. Id. Accordingly, based on the record presently
before it, the Court finds that the quarantine survives strict scrutiny and Plaintiff
cannot at this time establish a likelihood of success or raise a serious question
going to the merits of his due process claim.
ii.

Equal Protection

Plaintiff alleges that the quarantine violates his equal protection rights
because travelers who have been at sea for 14 days are exempt, as are travelers
arriving from August 1, 2020 who can provide negative COVID-19 test results.10
ECF No. 6 at 3; Compl. at 5. For the first time in his Reply, Plaintiff challenges
the exemption granted to students attending college. ECF No. 26 at 4. The Court
declines to consider this argument because it is not presented in the Complaint.11

9

The future implementation of the trans-Pacific pre-testing program does not
undercut the reasonableness of the restrictions currently in place. What will be
feasible in September is not viable now because certain benchmarks have yet to be
met. ECF No. 25-3 ¶ 28. As seen in the short time since the Court decided
Carmichael, circumstances can change dramatically, requiring adjustments.
10

As discussed, Defendant Ige has delayed the trans-Pacific pre-testing program
until September 1, 2020.
11

The Court recognizes that the exemption arose after Plaintiff filed his
Complaint, but he cannot amend his claims through a Reply brief.
17

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“The Equal Protection Clause of the Fourteenth Amendment commands that
no State shall ‘deny to any person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons similarly situated should be
treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)
(quoting Plyler, 457 U.S. at 216). The Supreme Court has “repeatedly held that ‘a
classification neither involving fundamental rights nor proceeding along suspect
lines . . . cannot run afoul of the Equal Protection Clause if there is a rational
relationship between disparity of treatment and some legitimate governmental
purpose.’” Cent. State Univ. v. Am. Ass’n of Univ. Professors, 526 U.S. 124, 127–
28 (1999) (alteration in original) (citations omitted); Nat’l Ass’n for the
Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049
(9th Cir. 2000).
Plaintiff’s allegations do not implicate any fundamental rights or suspect
classifications and there is a rational relationship between Defendant Ige’s
classifications and the legitimate purpose of protecting the health of Hawaii’s
residents and visitors. Unlike travelers arriving by plane, individuals arriving by
recreational boat after 14 or more days at sea have effectively completed a
quarantine.12

12

Plaintiff mistakenly views the mode of transportation as the distinguishing
factor, see ECF No. 26 at 4, when it is the 14-plus days of isolation that excepts
(continued . . .)
18

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Regarding the trans-Pacific pre-testing program, legitimate reasons exist for
establishing a future implementation date. It is part of a multilayered risk
mitigation strategy, designed to limit the COVID-19 risk to a level that is
manageable for Hawaii’s healthcare infrastructure. ECF No. 25-6 ¶ 7. Plaintiff’s
expectation that the program is long overdue—or at a minimum should be
selectively available to him before other travelers—does not make the quarantine
unconstitutional.
Plaintiff questions Defendant Ige’s motivations for continuing to “oppress”
travelers through quarantine because Dr. Bruce Anderson, Director for the Hawai‘i
Department of Health, confirmed in a June 25, 2020 declaration that the State has
been prepared to manage the risk posed by reopening to travelers. ECF No. 26 at
5. But Dr. Anderson did not confirm that the State was already prepared; rather, he
said the State had been working tirelessly to reopen safely and to develop a
multilayered mitigation strategy. ECF No. 25-6 ¶¶ 6–7. He represented that the
State was still finetuning the trans-Pacific pre-testing program which—when

(. . . continued)
recreational boaters arriving in Hawai‘i from the quarantine. Interestingly,
Plaintiff presents a hypothetical under which travelers by recreational boat would
be infectious for longer than 14 days if an individual infects another individual on
day 10 of the journey. Compl. at 5. Yet for his family’s purposes, he suggests that
the number of days from exposure to symptom onset would be far fewer than that
mandated by the quarantine, see id. at 4, notwithstanding their exposure to
countless people during their travel to Hawai‘i.
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coupled with the other layers of the risk mitigation strategy such as robust contract
tracing, thermal scanning, and health questionnaires—could sufficiently mitigate
the risk. Id. ¶¶ 7, 10. Notably, the declaration is from approximately one month
ago and circumstances have since changed. Any suggestion that Defendant Ige is
currently acting contrary to Dr. Anderson’s representations from last month is
unsupported. For these reasons, Plaintiff cannot establish a likelihood of success
on the merits of his equal protection claim nor has he raised serious questions
going to the merits.
In sum, Plaintiff fails to show a likelihood that he would succeed on the
merits of his claims, let alone a strong likelihood of success, as is required for a
mandatory injunction. Plaintiff similarly fails to raise serious questions going to
the merits of any of his claims. Consequently, Plaintiff is not entitled to injunctive
relief.
B.

Irreparable Harm

“At a minimum, a plaintiff seeking preliminary injunctive relief must
demonstrate that it will be exposed to irreparable harm.” Caribbean Marine Servs.
Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citation omitted). As a
prerequisite to injunctive relief, “a plaintiff must demonstrate immediate
threatened injury”; a speculative injury is not irreparable. Id. (citations omitted).
“Irreparable harm is . . . harm for which there is no adequate legal remedy, such as
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an award of damages.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068
(9th Cir. 2014) (citation omitted). “[A]n alleged constitutional infringement will
often alone constitute irreparable harm,” Monterey Mech. Co. v. Wilson, 125 F.3d
702, 715 (9th Cir. 1997) (citation omitted), but not if “the constitutional claim is
too tenuous.” Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th
Cir. 1984).
Plaintiff argues only that he and his family suffer irreparable harm every
moment they remain quarantined. ECF No. 6 at 1. He urges:
No amount of money can adequately compensate us for the loss
of time, enjoyment, and liberty we have lost; not to mention the
emotional distress we have experienced being treated like
prisoners[13] in our own country without any proof that we
violated any law or were, under the circumstances, infected with
COVID-19 or other communicable disease.
Id. at 1–2. These conclusory and unsubstantiated allegations fail to establish
irreparable harm. Plaintiff knew full well that Hawai‘i has a mandatory 14-day
quarantine before he traveled here. Yet he voluntarily decided to proceed with his
vacation.
C.

Balance of Equities/Public Interest

Plaintiff contends that the imposition of the requested injunction would
cause little personal hardship to Defendant Ige and that he has had more than

13

The Court observes that prisoners are not typically confined in vacation rentals.
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sufficient time to develop and execute a plan to reopen the State to visitors. ECF
No. 6 at 3. In assessing whether Plaintiff establishes that the balance of equities tip
in his favor, “the district court has a ‘duty . . . . to balance the interests of all parties
and weigh the damage to each.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138
(9th Cir. 2009) (citation omitted). When an injunction’s impact “reaches beyond
the parties, carrying with it a potential for public consequences, the public interest
will be relevant to whether the district court grants the preliminary injunction.” Id.
at 1139 (citations omitted). “The public interest inquiry primarily addresses
impact on non-parties rather than parties.” League of Wilderness Defs./Blue
Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014)
(citation omitted). It also requires the Court to “consider whether there exists some
critical public interest that would be injured by the grant of preliminary relief.”
Cottrell, 632 F.3d at 1138 (citation omitted); Stormans, 586 F.3d at 1139
(“[C]ourts . . . should pay particular regard for the public consequences in
employing the extraordinary remedy of injunction.” (citation omitted)).
Here, the equities weigh heavily against Plaintiff. Notwithstanding his
efforts to paint a picture of undue suffering and hardship, Plaintiff’s primary
grievance is that he cannot enjoy all 36 days of his Hawai‘i vacation without

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restrictions.14 Again, Plaintiff knew about the mandatory quarantine but decided to
travel here anyway and now asks to be exempted from a requirement imposed on
all incoming travelers, including residents, merely because he purportedly has no
symptoms of COVID-19,15 is not aware16 of being exposed to anyone with
COVID-19, and believes he is not a danger to public health in Hawai‘i. ECF No. 6
at 1.
Plaintiff’s desire to obtain preferential treatment for himself and his family
cannot override the community’s interest in preserving its health and well-being.
Plaintiff’s assertion that the requested injunction would not cause hardship to
Defendant Ige is not well taken. The quarantine is meant to protect Hawai‘i and
Plaintiff’s premature release from quarantine could cause harm to the community,
as there is no assurance he is not infected with COVID-19.

14

Plaintiff also points to the $10,508.68 price tag for his vacation rental, but the
Court is confused as to how Plaintiff’s decision to expend those funds furthers his
argument.
15

One of the most concerning aspects of COVID-19 is that asymptomatic
individuals can transmit the disease. ECF No. 25-3 ¶ 12.
16

Unawareness is no consolation given South Carolina’s COVID-19 numbers,
coupled with Plaintiff and his family’s possible exposure during their travel from
South Carolina to Hawai‘i. See https://www.scdhec.gov/infectious-diseases/
viruses/coronavirus-disease-2019-covid-19/sc-testing-data-projections-covid-19
(last visited July 22, 2020) (74,761 cases and 1,242 deaths).
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Incredibly, Plaintiff contends that visitors are “better experienced in how to
avoid getting sick and transmitting COVID-19 to others (such as wearing masks
and social distancing), as evidenced by the fact that they originate from areas
harder hit than Hawai‘i and yet remain healthy.” ECF No. 6 at 3–4. But by
“healthy,” he really means “without symptoms.” And, as stated, COVID-19’s
pervasiveness is due in large part to asymptomatic spread. Plaintiff also posits that
the quarantine does not serve the public interest because visitors annually
outnumber residents 10.42 million to 1.42 million. Id. at 4. However, the ability
for visitors to vacation without a quarantine does not outweigh residents’ rights to
health and safety. This community, not visitors, would bear the public
consequences of a COVID-19 outbreak, which would quickly overwhelm Hawaii’s
healthcare system and resources, and Hawaii’s geographical isolation would
further exacerbate the crisis. The quarantine has arguably allowed Hawaii’s
COVID-19 numbers to remain among the lowest in the nation. See
https://www.npr.org/sections/health-shots/2020/03/16/816707182/map-trackingthe-spread-of-the-coronavirus-in-the-u-s (last visited July 22, 2020).
In these unprecedented times, it is not the Court’s role to second-guess the
decisions of state officials who have the expertise to assess the COVID-19
pandemic and institute appropriate measures to minimize its impact to this
community. See Stormans, 586 F.3d at 1139 (“[When] an injunction is asked
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which will adversely affect a public interest . . . the court may in the public interest
withhold relief until a final determination of the rights of the parties, though the
postponement may be burdensome to the plaintiff.” (alteration in original) (citation
omitted)). Under these circumstances, an injunction granting Plaintiff an early
release from quarantine would not be in the public’s interest.
CONCLUSION
For the reasons stated herein, the Court HEREBY DENIES Plaintiff’s
Motion for Preliminary Injunction. ECF No. 6.
IT IS SO ORDERED.
DATED: Honolulu, Hawai‘i, July 22, 2020.

CIVIL NO. 20-00305 JAO-RT; Bannister v. Ige, et al.; ORDER DENYING PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION

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