459 F.Supp.3d 1302
E.D. Cal.2020Background
- Plaintiffs Ron Givens and Christine Bish applied to the California Highway Patrol for permits to hold in-person protests/rallies at the State Capitol; both permits were denied under Governor Newsom’s March 19, 2020 statewide stay-at-home order and Department of Public Health guidance prohibiting gatherings.
- Plaintiffs sought a temporary restraining order (TRO) to enjoin enforcement of the ban as to their planned gatherings (they proposed events of ~500–1,000 attendees and said they would follow CDC guidance).
- The Court held a TRO hearing on May 7, 2020 and denied the TRO on May 8, 2020, finding plaintiffs unlikely to succeed on the merits and thus not meeting the Winter standard for emergency relief.
- The court concluded the statewide order and the CHP’s moratorium on permits are a valid exercise of emergency public-health police power (applying Jacobson), and constitute a content-neutral time, place, and manner restriction that is sufficiently tailored and leaves alternative channels (online and in‑car protests).
- The court also rejected plaintiffs’ vagueness/due-process and California liberty arguments, found the petition/assembly claims coextensive with the speech claim, and declined to reach the remaining injunction factors because plaintiffs failed the likelihood-of-success threshold.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of stay-at-home order under state emergency powers | Order is arbitrary and exceeds police powers; not sufficiently related to public health | Order bears a real and substantial relation to slowing COVID-19 spread and is within emergency authority | Upheld under Jacobson standard; plaintiffs unlikely to succeed |
| Free Speech (prior restraint/time/place/manner) | Blanket moratorium on CHP permits is an unconstitutional prior restraint and not narrowly tailored | Moratorium is content-neutral TPM regulation serving significant public-health interest and leaves alternatives | Moratorium is content-neutral TPM, sufficiently tailored here; speech claim unlikely to succeed |
| Freedom of Assembly / Petition the Government | Ban impermissibly restricts right to peaceably assemble and to petition officials at the Capitol | Restrictions are aimed at virus suppression, not expression; alternatives remain | Assembly and petition claims fail for same reasons as speech claim; unlikely to succeed |
| Due Process (vagueness) & California liberty right | Order is vague (e.g., instructs public to "heed" directives) and infringes liberty without individualized findings | The order, read with the incorporated Public Health Officer order, is mandatory and gives fair notice; generalized quarantine is necessary during pandemic | Order is not unconstitutionally vague; liberty claim fails as alleged (plaintiffs unlikely to succeed) |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (U.S. 1905) (upholding state emergency public-health police power and setting deferential review standard in epidemics)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (U.S. 2008) (standard for preliminary injunctions/TROs)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (narrow tailoring and substantial-governmental-interest test for time, place, manner restrictions)
- Thomas v. Chicago Park District, 534 U.S. 316 (U.S. 2002) (content-neutral permit schemes in traditional public fora)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (alternative injunction test: serious questions + balance sharply in plaintiff's favor)
- Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (analysis of public fora and TPM regulations)
- Santa Monica Nativity Scenes Committee v. City of Santa Monica, 784 F.3d 1286 (9th Cir. 2015) (blanket bans applicable to all speakers are content-neutral)
- Edge v. City of Everett, 929 F.3d 657 (9th Cir. 2019) (heightened vagueness/specificity concerns when First Amendment rights implicated)
- Grayned v. City of Rockford, 408 U.S. 104 (U.S. 1972) (void-for-vagueness doctrine)
- Borough of Duryea v. Guarnieri, 564 U.S. 379 (U.S. 2011) (distinguishing petition clause from speech clause)
- De Jonge v. Oregon, 299 U.S. 353 (U.S. 1937) (freedom of assembly as a fundamental right)
- Stuhlbarg Intern. Sales Co. v. John D. Brushy & Co., 240 F.3d 832 (9th Cir. 2001) (TRO and preliminary injunction standards are the same)
- United States v. Salerno, 481 U.S. 739 (U.S. 1987) (facial-challenge "no set of circumstances" test)