Bit Bar Salem is appealing a federal judge's ruling that it no longer has any case against Gov. Baker's Covid-19 bar on video arcades now that the governor has allowed them to re-open, arguing that if he banned them once, he could ban them again.
Bit Bar, represented by attorney Marc Randazza, sued Baker last month after he allowed casinos, but not video arcades, to re-open as he relaxed more of the state's Covid-19 emergency rules in July.
The arcade, which in addition to traditional stand-up games features tabletop games that let players eat as they control a Pac-Man, said the only difference between casino slot machines and its wares is "the content of the expression in the video game console" and so sued Baker for violating both its First Amendment right to free expression and its Fourteenth Amendment right to equal protection under the law.
In a ruling released this morning, US District Court Judge Richard Stearns dismissed the suit, saying that it became a moot question when Baker issued a new order last month that allowed arcades to re-open - about a week after Bit Bar filed its suit.
Randazza argued that the issue wasn't really moot because Baker had rescinded the arcade ban voluntarily, which meant he could just as easily put it back. Stearns countered that:
[T]he court does not believe that there is any reasonable basis to believe that the specific conduct challenged here - the imposition of greater restrictions on the operation of arcades than certain other Phase III enterprises - will recur if it dismisses this case. Plaintiff's suggestions to the contrary rely on an undue degree of speculation regarding the future course of the virus and the measures Governor Baker may opt to take to counteract its spread. As it would be inappropriate for the court to engage in speculation at this juncture, particularly on a matter of public health, it finds the voluntary cessation doctrine inapplicable and therefore dismisses plaintiff's case as moot.
Not long after Stearns filed his dismissal, Randazza paid the $505 fee to appeal his ruling to the US Court of Appeals for the First Circuit in Boston.
Bit Bar's complaint (1.1M PDF).
State's reasoning to have complaint dismissed (39k PDF)