Case 3:20-cv-05206-FLW-DEA Document 1 Filed 04/28/20 Page 1 of 7 PageID: 1

RECEIVED
DAVID BEHAR
403 Water Street APR 2 202V
Temple, PA 19560
Tel: 610.389.1716
Email: dbehar322gmai1.com CLF:K

PlaintffIn Propria Persona

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DAVID BEHAR,

Plaintiff,

V.

PHILIP MURPHY, in his official capacity as

Governor of the State of New Jersey; and Civil Action No.
PATRICK I. CALLAHAN, in his official
capacity as State Director of Emergency
Management and as Superintendent of the
New Jersey State Police,

Defendants.

COMPLAINT

Plaintiff DAVID BEHAR (“Plaintiff’), for his Complaint against defendant PHILIP

MURPHY in his official capacity as Governor of New Jersey (the “Governor”) and against

defendant PATRICK J. CALLAHAN in his official capacity as State Director of Emergency

Management and as Superintendent of the New Jersey State Police (“Defendant Callahan”)

(collectively, “Defendants”), hereby alleges as follows:

PRELIMINARY STATEMENT

1. This is an action seeking a declaratory judgment and a preliminary and permanent

injunction preventing Defendants from taking any action to implement or enforce Executive

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Order No. 107 and its subsequent executive and administrative orders (the “New Jersey

Orders”), which were issued by the Governor on March 21, 2020, to the extent that it prohibits

travel and seasonal guest house rentals without just compensation.

2. A novel coronavirus has caused a pandemic illness that is spreading throughout

the world, including the United States and the State of New Jersey. Public officials are taking

action to attempt to contain and mitigate this illness. It is unclear how long it will take for this

pandemic illness to run its course. Estimates have ranged from one month to 18 or more months.

3. In response, despite the fact that there are far more serious contagious epidemics

in the United States and in the State of New Jersey, and despite the fact that it remains unknown

what the true denominator of the mortality rate of novel coronavims is, and despite the fact that

other jurisdictions have had complete success in eradicating the coronavirus simply by

quarantining those who tested positive for the illness while allowing all others to go about their

lives as usual, Defendants, through a series of Executive Orders and their subsequent

administrative amendments (the “New Jersey Orders”), shut down all non-essential businesses,

required citizens to stay at home, and prohibited travel to certain areas. An unknown, but

substantial fraction of essential workers allowed to travel are positive for the virus. Half will

have no symptoms. These will travel to their jobs providing intimate care to vulnerable, frail,

elderly populations. These will handle groceries and liquor bottles to be picked up by many

buyers. These essential, asymptomatic workers, that have not been tested but are positive for the

corona virus will spread the virus. They will do so as if there were no futile travel restrictions.

Their infected charges and customers will spread their infections throughout their institutions,

workplaces, and families.

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4. Plaintiff owns property located at 9600 Atlantic Ave., Margate, NJ 08402 (the

“Property”). For years, Plaintiff has rented the Property to a tenant for seasonal usage from

Memorial Day through Labor Day for $26,000.00.

5. Due to the New Jersey Orders, Plaintiff has been forced to return the deposit on

the rental to the tenant and cancel the rental, since the New Jersey Orders prohibit seasonal

rentals of guest houses.

6. The source of authority for the Governor to issue the New Jersey Orders is

N.J.$.A. App. A:9-34, which reads:

App.A:9-34. Emergency powers of Governor

The Governor is authorized to utilize and employ all the available
resources of the State Government and of each and every political
subdivision of this State, whether of men, properties or instrumentalities,
and to commandeer and utilize any personal services and any privately
owned property necessary to avoid or protect against any emergency
subject to the future payment of the reasonable value of such services and
privately owned property as hereinafter in this act provided.

7. As a direct and proximate result of the New Jersey Orders, the Property has

effectively lost all of its economic value, thereby entitling Plaintiff to just compensation.

Plaintiff has lost possession of the Property, since he cannot rent it, reach it, nor enter it.

PARTIES

8. Plaintiff David Behar, M.D. is a resident of Pennsylvania and owns a property

located at 9600 Atlantic Ave., Margate, NJ 08402 (“the New Jersey property”).

9. Defendant Philip Murphy is the Governor of New Jersey and, as such, is

responsible, in whole or in part, for the implementation and enforcement of the laws and policies

complained of herein. Governor Murphy is sued in his official capacity.

10. Defendant Patrick J. Callahan is the State Director of Emergency Management

and the Superintendent of the New Jersey State Police.

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JURISDICTION AND VENUE

11. This Court has subject matter jurisdiction over Plaintiffs’ claims under 28 U.S.C.

§ 1331 and 1343.

12. Plaintiff seeks remedies under 2$ U.S.C. § 1651, 2201, and 2202 and 42 u.s.c.
§ 1983 and 198$.

13. This Court has jurisdiction over Defendants because Defendants are residents of

New Jersey.

14. Venue is proper in this Court under 2$ U.S.C. § 139 1(b)(1) and (2) because

Defendants reside within the judicial district, and it is the judicial district in which a substantial

part of the events giving rise to the claim occurred.

EXECUTIVE ORDER NO. 107 AND SUBSEQUENT ORDERS

15. On March 21, 2020, Defendant Governor Murphy issued Executive Order No.

107, which in pertinent part ordered that:

22. In accordance with N.J.S.A. App. A:9-33, et seq., as supplemented

and amended, the State Director of Emergency Management, who is
the Superintendent of State Police, through the police agencies under
his control, to determine and control the direction of the flow of
vehicular traffic on any State or interstate highway, municipal or county
road, and any access road, including the right to detour, reroute, or
divert any or all traffic and to prevent ingress or egress from any area
that, in the State Director’s discretion, is deemed necessary for the
protection of the health, safety, and welfare of the public, and to
remove parked or abandoned vehicles from such roadways as
conditions warrant.

16. Penalties for violations of Executive Order No. 107 include imprisonment for a

term not to exceed 6 months and/or a fine not to exceed $1,000.00. NJ.S.A. App. A:9-49.

17. On April 4, 2020, Defendant Callahan issued Administrative Order No. 2020-8

which amended Executive Order No. 107 to allow municipalities and counties to impose

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additional restrictions in response to the coronavims pandemic on the ability of hotels, motels,

guest houses, or private residences. This Administrative Order has directly led to Plaintiff losing

the ability to rent out, to travel to, and to possess the Property.

TifE POLITICAL RATIONALE FOR THE EXECUTIVE ORDER

1$. Shutdowns were all started by Democratic governors, in an election year.

Republican governors followed because of a flocking effect. They did so to destroy the

achievements of the Trump administration, including a high stock market and low

unemployment rate. This ordinary cold virus was a pretextual use of the law.

19. The sensational media coverage resulted in the violation of the anecdotal fallacy.

Violations of any formal fallacy are irrational. One can put each crash in the headlines with

descriptions of the sufferings of the victim and of his family to scare people about driving. It is

unethical for journalists to not present the fact that people drove a billion miles for each of those

horrific events, and that many lesser crashes took place. Under those circumstances it would be

likewise irrational to ban driving. Similarly, if an old lady fell and cracked her skull with her

brains visible on the sidewalk, it would be irrational to ban walking.

20. Demands for mass testing before reopening the economy, when statistically valid

sampling is sufficient, are irrational and unsupported by science.

CLOSURE UNDERMINES GOVERNMENT INTENT AND THE PUBLIC WELFARE

21. The jurisdictions with the most Draconian lockdown measures have had the

greatest number of deaths. Sweden and the New York City area have the same population and

Stockholm has a greater population density than New York City. But Sweden has had no

shutdown and a tenth the amount of deaths as New York City. The shutdown itself may have

killed ten thousand New Yorkers.

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22. The lockdown of young people who do not get sick delays the development of

population immunity. Infected young people could also donate more plasma with antibodies to

save very sick, vulnerable patients. It is striking that the jurisdictions with the strictest

shutdowns have the most cases. The politically- and rent-seeking-motivated shutdown is the

cause of high case numbers.

COUNT ONE - DECLARATORY JUDGMENT

23. Plaintiff incorporates by reference the allegations of the preceding paragraphs as

if fully set forth herein.

24. The fifth Amendment provides that “property [shall not] be taken for public use,

without just compensation.” u.s. CONST. amend. V.

25. This Fifth Amendment’s takings clause applies against the State of New Jersey

under u.s. CONSI. amend XIV.

26. Executive Order No. 107 and Administrative Order No. 2020-8 prohibit Plaintiff

from renting the New Jersey property, thereby completely depriving Plaintiff of all economically

beneficial use and value of the Property.

27. The New Jersey Orders manifest a taking of Plaintiffs property in contravention

of the protections afforded by the United States Constitution.

28. The New Jersey Orders further violate the United States Constitution by

prohibiting ingress and egress from Plaintiffs Property as well as to engage in interstate travel.

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PRAYER

WHEREFORE, Plaintiff prays for the following relief:

1. Declaratory judgment that the New Jersey Orders violate the Fifth and Fourteenth

Amendments as well as the Commerce Clause to the extent that they operate to flatly prohibit

travel and seasonal guest house rentals;

2. A preliminary and/or permanent injunction restraining Defendants and their

officers, agents, servants, employees, and all persons in concert or participation with them who

receive notice of the injunction, from enforcing Executive Order No. 107 to the extent that it

operates to flatly prohibit travel and seasonal guest house rentals;

3. Attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and

4. Such other and further relief, including injunctive relief, against all Defendants, as

may be necessary to effectuate the Court’s judgment, or as the Court otherwise deems just and

equitable.

Respectfully submitted,

Dated: April 20, 2020 By: /s/ DAVID BEHAR

David Behar

PlaintffIn Propria Persona

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JS44 (Rev.06/17) Case 3:20-cv-05206-FLW-DEA Document 1-1 Filed 04/28/20 Page 1 of 1 PageID: 8
CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEJC PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County ofResidence offfrst Listed Plaintiff Berks, PA County ofResidence offirst Listed Defendant Mercer, NJ
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CD1iMNTIbI StS,UE HE IdtAT1ON OF
THE TRACT t3f NLfVVEb. ‘

(c) Attorneys (Firm Name, Address, and Telephone Number,) Attorneys (If Known)

AI8:3O_.............,M
IL BASIS OF JURISDICTION (Place an “X”in OneBoxOnlv) III. CITIZENSHIP OF PRIN’%
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(44 (Place an K” in one Box for Plaint ill
and One Box for Defëndantj
El 1 U.S. Government Federal Question PTF DEF PTF DEF
Plaintiff (US. Government Not a Party) Citizen of This State El I El 1 Incorporated or Principal Place El 4 El 4
of Business In This State

El 2 U.S. Government El 4 Diversity Citizen of Another State El 2 El 2 Incorporated and Principal Place El 5 El 5
Defendant (Indicate Citizenship ofParties in Item III) of Business In Another State

Citizen or Subject of a El 3 El 3 foreign Nation El 6 El 6

Foreign Country
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L CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
El 110 Insurance PERSONAL INJURY PERSONAL INJURY El 625 Drug Related Seizure El 422 Appeal 2$ USC 158 El 375 false Claims Act
El 120 Marine El 310 Airplane El 365 Personal Injury - of Property 21 USC 881 El 423 Withdrawal El 376 Qui Tam (31 USC
El 130 Miller Act El 315 Airplane Product Product Liability El 690 Other 28 USC 157 3729(a))
El 140 Negotiable Instrument Liability El 367 Health Card El 400
State Reapportionment
El 150 Recovery of Overpayment El 320 Assault, Libel & Pharmaceutical PROPERTY RiGHTS El Antitrust
410
& Enforcement of Judgment Slander Personal Injury El 820 Copyrights El Banks and Banking
430
El 151 Medicare Act El 330 Federal Employers’ Product Liability El 830 Patent El 450
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El 152 Recovery of Defaulted Liability El 368 Asbestos Personal El 835 Patent Abbreviated
- El Deportation
460
Student Loans El 340 Marine Injury Product New Drug Application El Racketeer Influenced and
470
(Excludes Veterans) El 345 Marine Product Liability El 840 Trademark Corrupt Organizations
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of Veteran’s Benefits El 350 Motor Vehicle El 370 Other fraud El 710 Fair Labor Standards El 861 HIA (1395ff) 1 490 Cable/Sat TV
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El 190 Other Contract Product Liability El 380 Other Personal El 720 Labor/Management El $63 DIWC/DIWW (405(g)) Exchange
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El 240 Torts to Land El 443 Housing) Sentence 26 USC 7609 Agency Decision
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