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Bar’s unusual First Amendment lawsuit against state and local mitigations dismissed after it failed to file response

Wednesday, May 12, 2021

* Last November

U.S. District Judge Staci Yandle must decide whether H’s Bar on West Main in Belleville may assert First Amendment rights of its patrons.

She sounded skeptical at a hearing on a motion for injunction against lockdown enforcers on Nov. 13, but made no ruling.

She told H’s Bar counsel Thomas Maag, “There is some value to creative advocacy sometimes but I’m not seeing it here.”

Maag sued Illinois liquor and gambling regulators on Oct. 30, seeking to reopen H’s Bar so patrons could discuss issues of the day.

He also sued the St. Clair County sheriff’s office and the county health department.

“This is America,” he argued in the suit. “It is not North Korea.”

“Taverns and bars are where Americans for over 200 years have gone to plan protests, wars, and uprising, to plot, argue and discuss events of the day.

“They are for all practical purposes the real soapboxes of America and the successor to the Roman forum.”

* Judge Yandle’s recent order

Plaintiff has not filed responses to the motions, and the time for doing so has passed.

Collectively, Defendants argue that Plaintiffs’ Amended Complaint should be dismissed for lack of subject matter jurisdiction as it fails to allege sufficient facts to establish standing by demonstrating an injury caused by the defendants. The State Defendants also argue that Plaintiff’s Amended Complaint fails to state a claim because (1) the Governor’s Executive Orders pass constitutional scrutiny in a public health crisis and are valid time, place, and manner restrictions; (2) Plaintiff fails to allege sufficient personal involvement by the State Defendants and rest upon a right that does not extend to the Plaintiff’s social associations; (3) Plaintiff fails to sufficiently allege discrimination against a secular entity in favor of a religious one; (4) Plaintiff’s state law claims are barred by the Eleventh Amendment; and (5) the Illinois Emergency Management Agency Act does not limit the State Defendants’ authority to enforce the Governor’s executive orders. […]

The Court may, in its discretion, construe a party’s failure to file a timely response as an admission of the merits of the motion. … Here, having fully considered Defendants’ arguments, the Court deems Plaintiff’s failure to respond as an admission of the merits of the motions. Accordingly, Defendants’ motions to dismiss are GRANTED; Plaintiff’s First Amended Complaint is DISMISSED without prejudice.

[Hat tip: @ChicagoBars]

- Posted by Rich Miller        

11 Comments
  1. - very old soil - Wednesday, May 12, 21 @ 3:18 pm:

    Who was the plaintiff’s attorney?


  2. - very old soil - Wednesday, May 12, 21 @ 3:18 pm:

    duh Sorry about previous post


  3. - Soo. - Wednesday, May 12, 21 @ 3:25 pm:

    Is this another Devore Dud?


  4. - TinyDancer(FKASue) - Wednesday, May 12, 21 @ 3:35 pm:

    =Taverns and bars are where Americans for over 200 years have gone to plan protests, wars, and uprising…=

    Really? Someone actually stood before a judge and said that?
    Give me a break. Find another place. Try a park.


  5. - Homebody - Wednesday, May 12, 21 @ 3:36 pm:

    The attorney is identified in the portion Rich posted.

    “She told H’s Bar counsel Thomas Maag, . . .”


  6. - TheInvisibleMan - Wednesday, May 12, 21 @ 3:36 pm:

    – This is America,” he argued in the suit. “It is not North Korea.” –

    That’s certainly an interesting statement of fact to include in a court filing.

    Orly Taitz now has some competition it would seem.


  7. - fs - Wednesday, May 12, 21 @ 3:41 pm:

    “Judge, this isn’t Russia. Is this Russia? This isn’t Russia, is it? I didn’t think so.”


  8. - Anyone Remember - Wednesday, May 12, 21 @ 4:44 pm:

    ===“There is some value to creative advocacy sometimes but I’m not seeing it here.”===

    Perhaps taking the position that bartenders also function as therapists? /s


  9. - MyTwoCents - Wednesday, May 12, 21 @ 4:58 pm:

    There’s creative advocacy and then there’s this argument. As for the attorney, it appears to be Gordon Maag’s son & he has a sketchy history:
    https://news.bloomberglaw.com/business-and-practice/ex-illinois-appeals-court-judges-son-gets-60-day-suspension


  10. - Union Thug Gramma - Wednesday, May 12, 21 @ 6:27 pm:

    =Taverns and bars are where Americans for over 200 years have gone to plan protests, wars, and uprising…=
    For some reason I don’t see many protests, wars or uprisings doing very well, if strategy is has been planned in a bar, over a couple of beers…or shots….


  11. - @misterjayem - Wednesday, May 12, 21 @ 8:17 pm:

    Taverns and bars are where Americans for over 200 years have gone to plan protests, wars, and uprising, to plot, argue and discuss events of the day.

    They are for all practical purposes the real soapboxes of America and the successor to the Roman forum.

    Therefore, charging me six bucks for a can of Old Style violates my First Amendment rights‼

    – MrJM


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