{"id":52452,"date":"2020-07-29T00:35:41","date_gmt":"2020-07-29T06:35:41","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/durango-man-battled-covid-19-now-hes-fighting-health-restrictions\/"},"modified":"2026-03-31T03:59:45","modified_gmt":"2026-03-31T09:59:45","slug":"durango-man-battled-covid-19-now-hes-fighting-health-restrictions","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/durango-man-battled-covid-19-now-hes-fighting-health-restrictions\/","title":{"rendered":"Durango man battled COVID-19. Now he\u2019s fighting health restrictions"},"content":{"rendered":"\n

\"Jaime
Jaime McMillan, a Durango investment adviser, said health restrictions meant to slow the spread of COVID-19 have led to lost sales at small businesses and might be challenged as takings without just compensation, a violation of the Fifth Amendment of the Constitution.<\/span>Durango Herald file<\/span><\/figcaption><\/figure>\n<\/p>

Jaime McMillan just overcame a six-week battle with COVID-19, but he\u2019s worried health restrictions are now more of a menace to individual liberties and commerce than the virus is to public health.<\/p>\n

\u201cThe only instrument we have to protect individuals\u2019 liberties is the Constitution. And you can\u2019t protect the health and safety of people by doing a shortcut around the Constitution, and this is coming from someone who\u2019s survived COVID-19,\u201d McMillan said in a phone interview.<\/p>\n

The Fifth Amendment, he said, protects people from being deprived of property without due process of the law or without just compensation.<\/p>\n

Health restrictions in place by the state, the city\u2019s mask ordinances and even guidance from local public health agencies, McMillan says, are now skirting with legal jeopardy as essentially governmental takings from private businesses without compensation and eventually are likely to be challenged in court.<\/p>\n

McMillan, a former constitutional law professor, said governmental takings aren\u2019t confined to eminent domain. The law also protects people and businesses from regulatory takings stemming from enforcement of laws.<\/p>\n

\u201cI think that the federal government can defend itself because you know, whatever you think about the relief packages, we\u2019ve printed something like $5 trillion for relief,\u201d he said, \u201cbut when you look at the health restrictions on restaurants from the state, when you look at the mask ordinance by the city, no one\u2019s considered compensation.\u201d<\/p>\n

While McMillan, 53, who battled COVID-19 for six weeks in March and April, said the discussions might seem academic, the problem is festering and getting more serious with each business, like The Palace Restaurant, which has announced it will close its doors.<\/p>\n

\u201cThere\u2019s a click economy and a brick economy, and we\u2019re in danger of losing our brick economy,\u201d he said.<\/p>\n

The problems with COVID-19 health restrictions are particularly severe in small towns dependent on small businesses, said McMillan, a Durango investment adviser and former candidate for City Council.<\/p>\n

\u201cThe problem in a rural community like Durango, is there\u2019s a big difference in the ability of small businesses to withstand this versus a national chain. Walmart can withstand a diminution of sales that a small business can\u2019t. And it seems our governments in the name of public health don\u2019t recognize that disparity.\u201d<\/p>\n

The chance of any lawsuit emerging from a Durango small business or even a Colorado small businesses might be remote, but McMillan believes some small businesses across the nation are likely to challenge COVID-19 health restrictions as takings under the Fifth Amendment.<\/p>\n

\u201cI think people\u2019s patience will run out at some point. Is anybody going to file a lawsuit? Well, most people don\u2019t have the legal knowledge, the time or the budget, but there will be a lawsuit somewhere.\u201d<\/p>\n

parmijo@durangoherald.com<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

McMillan says orders hurt businesses, may violate Fifth Amendment<\/p>\n","protected":false},"author":1,"featured_media":52453,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[1615,685,28,107,29,668],"naviga_topic":[],"class_list":["post-52452","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-constitution","tag-coronavirus-covid-19","tag-headlines","tag-laws","tag-newsletter","tag-public-health"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/52452","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=52452"}],"version-history":[{"count":1,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/52452\/revisions"}],"predecessor-version":[{"id":88087,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/52452\/revisions\/88087"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/52453"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=52452"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=52452"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=52452"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=52452"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}