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Law360 (July 27, 2020, 4:13 PM EDT ) New Jersey Gov. Phil Murphy and the state health commissioner said reopening movie theaters in the state poses grave risks of spreading COVID-19 as the officials called on a federal court to keep cinema doors shuttered in the face of a lawsuit from movie theater owners and their trade associations.
The executives on Friday urged the court to reject a bid from the AMC movie theater chain and other plaintiffs for a preliminary injunction lifting the state-ordered shutdown of cinemas, claiming such an order would undermine the state's efforts to contain the spread of a virus that as of the filing date has led to 177,887 confirmed cases and 13,810 deaths in New Jersey.
Murphy and the health commissioner, Judith Persichilli, stressed in their Friday brief that enforcing mask-wearing would be difficult in darkened theaters and that moviegoers would remove their masks to eat popcorn and enjoy other concessions.
Movies also run, on average, about 90 minutes, and most popular films have an average length of two hours, not including the time for previews, the officials noted.
"And sharing a closed-air, confined indoor room for that extended period is exactly the scenario in which COVID-19 most easily spreads," the officials said.
The risk of catching COVID-19 "would extend not just to those who accept that risk and go to the movies, but also to anyone who they later interact with, and then those who they contact, and the next people, and the next," the officials said.
"That is a risk New Jersey cannot yet bear, especially as other states are reclosing or halting reopening of theatres," the brief stated.
U.S. District Judge Brian R. Martinotti cited such measures across the nation in his July 14 ruling denying the plaintiffs' request for a temporary restraining order to immediately block the state officials from enforcing orders to keep theater doors closed due to the pandemic.
The judge called it "noteworthy" that "as plaintiffs file this application, states that initially ordered the re-opening of indoor movie theaters have once again ordered their closure in response to rising COVID-19 infection numbers."
The plaintiffs also include the National Association of Theatre Owners, the National Association of Theatre Owners of New Jersey, Cinemark USA Inc., Regal Cinemas Inc., BJK Entertainment Inc., Bow Tie Cinemas LLC and Community Theaters LLC.
In their July 6 lawsuit against Murphy and Persichilli, the theater owners and trade groups challenged how cinemas in the state have been forced to remain closed while places of worship and other facilities were allowed to reopen to the public.
Murphy and Persichilli countered Friday that theaters presented greater risks than places of worship.
Enforcing a mask mandate is easier at a religious service than during a movie in a dark theater, and it takes worshipers less time to briefly remove masks as part of their service than it does for moviegoers to remove masks to consume food and beverages, the officials said.
The "benefits of reopening movie theatres and houses of worship differ as well," the officials said.
The theater owners and trade associations "do not seriously dispute that movies can be watched safely at home and at a drive-in theatre, which is an important consideration for the state in deciding which indoor premises must be open," the officials said.
"Plaintiffs nevertheless argue that this is not a 'logical' way to distinguish between churches and theatres, because (they say) these alternatives are equally available for houses of worship," the officials said. "That would come as quite a surprise, however, to those who believe their faith commands them to worship in person with their coreligionists."
Counsel for the plaintiffs declined to comment Monday.
The cinemas are represented by Geoffrey S. Brounell, Robert Corn-Revere, Janet Grumer, Martin L. Fineman and John D. Freed of Davis Wright Tremaine LLP.
Murphy and Persichilli are represented by Daniel M. Vannella, Deborah A. Hay, Bryan Edward Lucas, Robert J. McGuire, Jessica Jannetti Sampoli and Michael R. Sarno of New Jersey's Office of the Attorney General.
The case is National Association of Theatre Owners et al. v. Murphy et al., case number 3:20-cv-08298, in the U.S. District Court for the District of New Jersey.
--Editing by Daniel King.
For a reprint of this article, please contact reprints@law360.com.
