Tony Ramsek v. Andrew Beshear, 989 F.3d 494

Background

In March–June 2020 Kentucky Gov. Andy Beshear issued a broad "Mass Gathering Order" limiting many gatherings to ten people to address COVID-19; violations were misdemeanors under state law.
Tony Ramsek and others protested Beshear’s shutdown policies at the State Capitol in larger groups; state police erected barriers and urged protesters to remain in cars in a parking garage.
The Sixth Circuit previously enjoined restrictions on drive‑in and drive‑through religious gatherings (Maryville) and allowed some in‑person religious services (Roberts); Ramsek sued seeking injunctions against enforcement of the Order as to Capitol protests.
While litigation was pending, hundreds gathered for a Black Lives Matter protest at the Capitol; Governor Beshear attended, spoke to the crowd, and publicized his attendance despite the Order’s limits—conduct which highlighted likely content‑based, as‑applied enforcement.
The district court preliminarily enjoined the Order as to in‑person protests (finding the Order not narrowly tailored); before this Court resolved the appeal, Beshear rescinded the Order.
The Sixth Circuit dismissed the appeal as moot, refused to vacate the district court’s preliminary injunction (Munsingwear), and remanded to the district court to address remaining issues, including the risk of prosecution for past violations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of the appeal after rescission of the Order	Rescission doesn’t moot the appeal because plaintiffs still face a realistic possibility the Order could be reinstated while the case is pending	Rescission moots the appeal because the Order is "off the books" and Beshear disclaims future enforcement	Appeal is moot: rescission eliminated any reasonable possibility the Order would be reinstated while district proceedings continue; appeal dismissed for lack of jurisdiction
Mootness of the entire case given potential prosecution for past violations	Threat of criminal prosecution for past violations (one‑year statute of limitations) keeps the case live and requires final relief	Governor disclaims enforcement and argues repeal negates live controversy	Court declines to find the whole case moot; remands to district court to determine whether further relief is needed because Governor may lack unilateral power to prevent prosecution by prosecutors or police
First Amendment challenge (facial and as‑applied/content‑based)	Order is a content‑based (or at least not narrowly tailored) restraint on speech and assembly; selective enforcement against anti‑shutdown protesters but not BLM protesters shows content discrimination	Order is a content‑neutral time/place/manner restriction justified by public health and narrowly tailored to serve significant interests	Court did not reach the merits on appeal (appeal mooted); opinion notes strong as‑applied First Amendment concerns based on Governor’s selective treatment and the district court had preliminarily enjoined in‑person protest prohibitions
Whether the preliminary injunction should be vacated under Munsingwear because the case was mooted	Plaintiff opposes vacatur and wants the district court ruling to stand	Governor asks for vacatur, citing changed circumstances and equities	Vacatur denied: equitable reasons and the Governor’s voluntary action causing mootness bar Munsingwear vacatur (he cannot gain vacatur after mooting the appeal himself)

Key Cases Cited

De Jonge v. Oregon, 299 U.S. 353 (1937) (First Amendment protects the right to peaceable political assembly)
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (time, place, and manner restrictions must be narrowly tailored to serve significant government interests and leave open ample alternatives)
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (Sixth Circuit injunction allowing drive‑in religious gatherings during COVID‑19)
Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (Sixth Circuit injunction permitting certain in‑person religious services during COVID‑19)
McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453 (6th Cir. 1997) (standard for assessing whether an injunction appeal remains live)
Ohio v. EPA, 969 F.3d 306 (6th Cir. 2020) (Article III mootness principles; courts lack power to decide cases that cannot affect litigants’ rights)
U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18 (1994) (Munsingwear doctrine and vacatur principles when cases become moot on appeal)
United States v. Munsingwear, Inc., 340 U.S. 36 (1950) (establishing vacatur practice when review is frustrated by intervening events)
Speet v. Schuette, 726 F.3d 867 (6th Cir. 2013) (standard for facial First Amendment challenges requiring substantial number of unconstitutional applications)
Radiant Global Logistics, Inc. v. Furstenau, 951 F.3d 393 (6th Cir. 2020) (discussing Munsingwear and when equitable vacatur is appropriate)