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In a closed third-floor courtroom with about 70 people watching online, the Lincoln City Attorney's Office laid out its case Wednesday for why a judge should order the closure of Madsen's Bowling & Billiards over flagrant violations of the city's directed health measures. 

Owner Benjamin Madsen fought back in court through his attorneys and on Facebook, challenging mask mandates that he says violate his constitutional rights. 

"So 3 p.m. That's when the fight really begins," he said in a video posted the night before. "I'm standing now. And I'll stand after. They can't make me bend. They can't break me. It's not gonna happen."

But in court, his attorney, J.L. Spray, mentioned Madsen's First Amendment rights only as an aside, choosing instead to focus primarily on interim Lincoln-Lancaster County Health Department Director Pat Lopez, who signed the order.

"At the end of the day, these orders they seek to enforce, including the DHM, are invalid because the person who issued them is invalid," Spray said, alleging Lopez wasn't duly appointed. 

Spray also took the position that the Health Department was preempted by the Nebraska Department of Health and Human Services and blocked from doing anything more restrictive in Lincoln, despite a state law authorizing it. 

He said the city was "out over their skis" by asking the judge not only to order Madsen to comply with the order but also to close the bowling alley until the health director approves of a plan to reopen the business.

Hitting on what would become a key point in the arguments, Spray said there were other remedies available to the city, aside from closing Madsen's. It could've sought a closure order initially or filed a criminal charge against Madsen. 

Chief Assistant City Attorney Chris Connolly said if the city charged Madsen criminally, it didn't solve the problem of preventing the possible spread of the coronavirus.

He said the city had the option of sending in Lincoln police to clear out the business Saturday, when Lopez ordered the bowling alley to shut down for 24 hours over numerous violations of the directed health measure, including not requiring patrons or staff to wear masks indoors. 

"We chose not to do that. We didn't want that circus," Connolly said.

Madsen's stayed open and refused to comply. 

Lancaster County District Judge John Colborn pressed assistant city attorneys on why they didn't seek immediate compliance, considering city municipal code says Lincoln Police and the Lancaster County Sheriff's Office "shall" enforce all orders issued by the health director.

Couldn't the city close the building, either through enforcement by police or deputies, then restrict patrons from coming into the building, "which effectively accomplishes what you're trying to do and that is protect the public," the judge asked.

Colborn said if the city found the bubonic plague in a building, it would just shut the place down; it wouldn't ask a judge to do it. 

Connolly said under the law, the city has an option of asking for an injunction civilly. 

"And that's exactly what we're doing," he said.

In the city's complaint, Connolly said Madsen's hasn't complied with the city's health order since it went into effect July 20. Employees aren't wearing protective face coverings and the business isn't requiring patrons to wear face coverings or comply with 6-foot separations.

Connolly said the pandemic has caused everyone to have to adapt to a new set of rules — including in the courtroom. Madsen had a face shield on, and all the attorneys wore masks, following a general order requiring them in courtrooms in Lancaster County District Court.

But, of all the things the city does, there's nothing more important than protecting the public.  

"These DHMs can be difficult to work with and we understand the frustration that Madsen's is feeling about this, but the protection of the community has to be paramount and must take priority," Connolly said.

He said the city has tried to soften the impact of the rules. 

"The evidence shows that these measures are necessary to have an impact on slowing the disease," Connolly said.

He said if Madsen's had made reasonable efforts to comply, it wouldn't be in court. Instead, it put a finger in the eye of the city, posting a sign telling patrons they could choose not to wear masks.

Colborn took both matters — the city's request for an injunction and Madsen's motion to dismiss it — under advisement. Regardless of the decision, Spray and Connolly agreed they would be back in court.

Outside court, Spray said Madsen’s owners have not been notified of any COVID-19 cases being traced back to the establishment.

“I believe if there had been we would have heard of it,� he said.

Spray said he believes the city is selectively enforcing the law, and he feels optimistic the city would stop trying to close the business if its civil case fails because criminally prosecuting Madsen’s would require overcoming a higher standard of evidentiary proof he doubts it could meet.

Asked whether he’s prepared to face arrest for not complying with the order, Madsen said he didn’t know if anyone is prepared to be arrested.

“I was ready to fight it (Saturday) whatever it took,� he said, “and I think it kind of took a road on its own.�

Photos: Lincoln during the pandemic