Growing up in England, my Indian-born parents encouraged me to read Harper Lee’s 1960 novel, To Kill a Mockingbird. I was ten years old when I watched Gregory Peck portray Atticus Finch in the film adaptation of the book. For me, this monumental character embodied the very best and most courageous aspects of American civil advocates.
Those memories followed me as I grew up and became an American myself.
Earlier this month, attorneys at HoganWillig—a law firm in Buffalo, New York—asked me to provide an expert opinion in defense of almost 100 restaurants seeking to challenge the restrictions imposed by New York Governor Andrew Cuomo, despite the state’s Department of Health recording low COVID-19 transmission rates in restaurants. When asked, I thought of Finch.
Recently, Justice Henry J. Nowak of the Supreme Court of New York State ruled in favor of the petitioners, and restaurants and establishments across Erie County were allowed to reopen for indoor dining, while following necessary COVID-19 protocols and procedures.
While this is a temporary victory, we should be reminded of the threat of government overreach as they disregard any careful consideration of scientific facts.
Speaking from my experience as an intensive care physician who worked for two months at NYU Langone Hospital—Long Island managing critically ill COVID-19 patients, the scientific arguments I presented were accepted as new evidence for the State of New York. In March 2020, the Mineola hospital where we received the first coronavirus patients in Long Island quickly became one of the island’s hotspots, which was home to six of the eight epicenters of the pandemic in New York State. We were the epicenter of the global epicenter of the pandemic.
In drafting my affirmation, I kept in mind those families of patients who lost their lives early in the pandemic, those few patients we were able to save, and current patients who continue to suffer or mourn.
My experience reminded me of Lord Jonathan Sumption, a former Supreme Court Justice of Britain, who has cast scathing attention upon the escalating injustice of government restrictions perpetrated by the powerful upon the vulnerable in the name of scientific logic in what Sumption calls “Government by Decree.”
In addition, as New York state’s small business owners grapple with the power of the state government, I am also reminded of what the fictional Atticus Finch was up against in an Alabama courtroom.
On a daily basis, I see patients and business owners economically penalized by restrictions put in place by politicians who are unaware not only of the erosion of civil liberties but also the decades of negative public health impact which follows economic collapse.
Certainly, during the initial onslaught of the pandemic, New York State faced a pandemic spreading like wildfire, strained hospital capacities and no specific therapeutics. Stringent shelter in place orders and lockdowns made sense. But as the pandemic has advanced, we have learned to mitigate the risks and effectively reduce transmission in public spaces. Household transmission now remains the major driver of spread, with more and more research pointing instead to the escalating harm of lockdowns.
Last month, Gov. Cuomo released eagerly awaited contact tracing data. New York State’s self-reported data based on contact tracing of over 46,000 data points showed that household gatherings accounted for 73.84 percent of the spread of COVID-19 from September to November 2020.
In the same time frame, more than 200,000 additional cases were identified but could not be related to specific exposure. Only 18.6% of cases had reasonable contact tracing to source infection, and of these cases, only a tiny percentage could be related to restaurant exposure.
The next highest incidence of transmission according to this contact tracing snapshot was 7.81 percent from healthcare delivery and 2.02% sourced from higher education students.
In the same data set, 1.43% of new COVID-19 cases come from exposure at bars and restaurants. The State Liquor Authority and New York State Police troopers have closely monitored these industries for months to enforce COVID-19 protocols, including mask compliance and social distancing to reduce community spread.
Clearly the reduced patronage and COVID-19 protocols were controlling spread. This is logical, since mobility data has shown foot traffic decline during this pandemic to only 20% of pre-pandemic levels in restaurants and bars, while grocery store foot traffic has remained at 80% of normal levels.
However, despite repeated assurances claiming Gov. Cuomo sought to make decisions based on science, restaurants were placed on strict lockdown in New York State. New York City indoor dining was closed entirely despite these documented low transmission rates. Unable to make ends meet on take-out and delivery service, even more restaurants began to face permanent closure and collapse.
Led by attorney Corey J. Hogan, owner of HoganWillig, restaurant owners brought a suit against the Governor of New York, the NY State liquor authority, the New York State Department of Economic Development, The Empire State Development Corporation and numerous other state authorities responsible for both the designation of ‘essential status’ and the enforcement of business closures.
I joined their efforts to provide scientific arguments that show not only that restaurants adopting mitigation strategies—hand-hygiene, face mask use, social distancing and reduced capacities—cut down on the risk of disease transmission, but that the majority of transmission has been shown to be related to household transmission. I made similar arguments in defense of New York City’s restaurants seeking reopening at the request of their legal representation, in a suit filed on Friday.
Judge Nowak restored justice through a preliminary injunction regarding a set of restrictions lacking scientific basis. New York City restaurants anxiously await the freedom to operate at 50% indoor capacity in the same manner upstate establishments are now able to do so. But the continuing collapse of large sectors of American business as a result of government by decree is already fueling massive future public health burdens.
As he surveys the economic carnage of New York’s small businesses, the Governor of New York should ask himself, “What would Atticus do?” My guess is that he would continue to push forward with re-openings, with COVID-19 protocols in place, not only with the risks of transmissions in mind but the need for the lifeblood of our great, Empire State—small businesses—to survive.
In these times, we need to remember what Atticus taught his young children: “You never really understand a person until you consider things from his point of view… Until you climb inside of his skin and walk around in it.” When we do that, we will save not only our small business, but our magnificent state.