"It is our contention that Herculean efforts were made to encourage and remind people to move along" rather than congregate in ways that violated social distancing guidelines, says Randy Corporon, a lawyer and KNUS radio personality who previously represented the owners of C&C Breakfast and Korean Kitchen, a Castle Rock eatery that was temporarily closed (and castigated by Colorado Governor Jared Polis) after a video of its unauthorized Mother's Day opening went viral.
"There were Jefferson County Public Health officials on the ground who, rather than assisting in those efforts or pointing to a hot spot or an area that could use some immediate attention, did nothing except snap pictures and build a case," Corporon continues. "I asked both of the health officials who testified how they would have had the Bandimeres enforce as opposed to encouraging, reminding and nudging, and neither of them had an answer."
A GoFundMe page to solicit donations for the Bandimere legal defense (more than $44,000 has been pledged to date) notes that the facility is spread over more than 160 acres and has a typical capacity of 23,500 people. However, the page's introduction states, "Public Health 'Orders' purport to limit the facility to 175 people per event with other strict requirements for social distancing and limits on food service, masking, etc."
There were undeniably many more people than that at the July 4 "God and Country Rally for America," which featured jet cars, fireworks and prayer. But Corporon contends that COVID-19 public-health orders issued by the state and jurisdictions such as Jefferson County "have been implemented in an improper and unconstitutional way that tries to create one-size-fits-all rules. The limitation to 175 people makes no sense in a public park or a mega-church or at Bandimere Speedway. It's not fair, it's arbitrary, and it doesn't weigh and balance the impact of these lockdowns in a county that's actually doing very, very well."
This last assertion epitomizes the difference in the way that Corporon and Jeffco officials view the county's virus statistics. The attorney sees the current number of fourteen hospitalizations in Jefferson County as an indication that standards should be loosened, while health officials are so alarmed by rising case counts that at 5 p.m. yesterday, July 14, they instituted an emergency order calling for mandatory mask usage in any public setting where six feet of social distancing isn't possible.
While Corporon isn't personally sold on the necessity of donning facial coverings, he says that every entrance to Bandimere on July 4 had signage "saying, 'Enter at your own risk' and referring to the virus and the CDC guidelines — and there were multiple bullet points, including to wear a mask." Many people chose to ignore this last piece of advice, but during the hearing, Corporon recalls, "I asked the health experts, including the one who was there on the Fourth of July, apparently only to gather evidence, 'Did you ask anyone to put their mask back on? Did you encourage anyone to wear a mask? What would you have had the Bandimeres do if they encouraged people to wear a mask and they declined?' And again, there was no answer."
On top of that, announcements about social distancing and the like were made every fifteen minutes during the event, and markings were placed around the speedway to demonstrate six-foot gaps — and yet "we have been threatened with a contempt citation," Corporon says.
He doubts this accusation will stick.
"A contempt citation requires a willful violation of a court order, and case law makes it clear that the court order has to be pretty clear and unambiguous," Corporon notes. "But even though the court's temporary restraining order is clear and unambiguous, basically all it did was require the Bandimeres to comply with public health orders — and there's a great lack of clarity and a lot of ambiguity in those orders."
Furthermore, "the testimony of the public health officials support the Bandimere family's position that they were in regular contact with the public health director, and in the last conversation he had with them, he had thought that given the size of the facility and the efforts they had put in place to socially distance and remind people of their personal responsibilities, etc., the event they were expecting would probably be okay," Corporon concludes. "All of that makes it difficult to sustain contempt against the Bandimeres over the Fourth of July."