Givens v. NewsomGivens v. Newsom
Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
RON GIVENS, an individual; No. 2:20-cv-00852-JAM-CKD CHRISTINE BISH, an
individual,
Plaintiffs, ORDER DENYING PLAINTIFFS’ APPLICATION FOR A TEMPORARY v. RESTRAINING ORDER GAVIN NEWSOM, in his official
capacity as Governor State of
California; XAVIER BECERRA,
in his official capacity as
the Attorney General of
California; WARREN STANLEY,
in his official capacity as
Commissioner of California
Highway Patrol; SONIA ANGELL,
in her official capacity as
California Public Health
Officer,
Defendants.
Ron Givens and Christine Bish filed an eight-count complaint against Defendants Governor Gavin Newsom, Attorney General Xavier Becerra, California Highway Patrol Commissioner Warren Stanley, and California Public Health Officer Sonia Angell. Compl., ECF No. 1. Plaintiffs allege the stay at home order enacted by Governor Newsom to slow the spread of Coronavirus Disease 2019 (“COVID - 19”) i mpermissibly infringes upon their constitutional rights to speak, assemble, and petition the government. They further allege that the order infringes upon their due process rights and their right to liberty under the California Constitution.
Plaintiffs then filed an application for a temporary restraining order. Application for TRO (“TRO”), ECF No. 5. They request the Court enjoin enforcement of the State order so they may hold political demonstrations, rallies, protests, and religious services [1] in compliance with the Centers for Disease Control’s (“CDC”) social distancing guidelines. TRO at 2. Plaintiffs also request the Court order Defendants to issue them permits so they may proceed with their planned protests and rallies at the State Capitol. Id.
The Court held a hearing on the TRO application on May 7, 2020. After considering the papers filed in support of and in opposition to the request, and argument presented at the hearing, for the reasons set forth below, the Court DENIES Plaintiff s’ Application for a Temporary Restraining Order.
I. BACKGROUND On December 31, 2019, the World Health Organization (“WHO”) China Country Office learned of cases of a pneumonia of unknown cause. WHO, COVID-19 Situation Report (January 21, 2020). COVID-19 was later identified as the cause. Id. Those initial infections were but squalls preceding a hurricane. To date, COVID-19 has infected over three and a half million and killed over 250,000 people worldwide. WHO, COVID-19 Situation Report (May 7, 2020). Responding to this ever-evolving public health crisis, Governor Newsom issued a statewide “stay at home order.” See Ex. A to Compl., ECF No. 1 – 1. The order went into effect on March 19, 2020. Id. It directs California residents “to stay home or at their place of residence except as needed to maintain continuity of operations of federal critical infrastructure services.” Id. ¶ 1. The order’s stated purpose is “to protect the public health of Californians” by “mitigat[ing] the impact of COVID- 19.” Ex. A to Compl. ¶ 1.
To that end, the order directs residents to “heed the current State public health directives.” Id. State public health offi cials have determined that “all gatherings” of any size and in any “indoor or outdoor space” “should be postponed or canceled.” Cal. Dep ’ t of Pub. Health, Guidance for the Prevention of COVID-19 Transmission for Gatherings, March 16, 2020. This determina tion “applies to all non -essential professional, social, and community gatherings regardless of their sponsor.” Id. The order is in effect “until further notice.” Ex. A to Compl. ¶ 1.
Givens works for the Sacramento County Gun Club. Compl. ¶ 8. As COVID-19 infections increased, the Gun Club experienced a surge in firearm sales. Id. ¶ 27. Busy enforcing the state’s COVID-19 protective measures, the California Department of Justice began to experience a backlog in processing the background checks required for firearm purchasers. Id. ¶¶ 25 – 29. Givens seeks to protest these delays at the California State Capitol. Id. ¶ 24. He submitted a permit application to the California Highway Patrol’s (“CHP”) permit office on April 22, 2020. Id. ¶ 31. The CHP denied his permit application. Compl. ¶ 34.
Bish, on the other hand, is campaigning to be California’s U.S. Representative for its Sixth Congressional District. Id. ¶ 41. On April 23, 2020, Bish applied to the CHP for a permit to hold a political rally at the California State Capitol. Id. ¶ 43. The CHP also denied Bish’s permit application. Id. ¶ 45. The CHP denied Plaintiffs’ permits pursuant to the State’s ban on mass gatherings. Ex. A to Opp’n ¶ 10. Under this directive, the CHP may not issue any permits that would authorize gatherings barred by the State’s stay at home order . Id. Plaintiffs challenge the State order, facially and as applied, alleging it violates their freedom of speech, freedom to assemble, and freedom to petition the government under the United States and California constitutions. They also argue the order violates their right to liberty under the state constitution.
II. OPINION
A. Judicial Notice
District courts may take judicial notice of “a fact that is
not subject to reasonable dispute because it: (1) is generally
known within the trial court’s territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.”
Plaintiffs request the Court take judicial notice of: (1) Executive Order 2020-18, from the Executive Department of the State of Arizona, signed by Governor Douglas Ducey on March 13, 2020; and (2) Stay at Home Order, from the Department of Public Health for the State of Ohio, signed by Director Amy Acton on March 22, 2020 . Plaintiffs’ Request for Judicial Notice, ECF No. 16. The government documents Plaintiffs reference are both proper subjects of judicial notice. The Court therefore GRANTS Plaintiffs’ requests. In doing so, the Court judicially notices “the con tents of the documents, not the truth of those contents.” Gish v. Newsom, No. EDCV 20-755-JGB(KKx), at *2 (C.D. Cal. April 23, 2020).
B. Legal Standard
Temporary restraining orders are emergency measures,
intended to preserve the status quo pending a fuller hearing on
the injunctive relief requested, and the irreparable harm must
therefore be clearly immediate.
Plaintiffs seeking these forms of injunctive relief must
demonstrate (1) that they are likely to succeed on the merits,
(2) that they are likely to suffer irreparable harm in the
absence of preliminary relief, (3) that the balance of equities
tips in their favor, and (4) that an injunction is in the public
interest. Am. Trucking Ass’ns v. City of Los Angeles , 559 F.3d
1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Def.
Council,
When applying either test, courts operate with the
understanding that a temporary restraining order, much like a
preliminary injunction, is an “extraordinary and drastic
remedy.” Cf. Munaf v. Geren,
C. Analysis
Plaintiffs request the Court enjoin Defendants from enforcing the State stay at home order against their permit applications to hold protests and political rallies at the State Capitol. TRO at 1 – 2. Plaintiffs contend they satisfy each of the four conventional Winter factors for injunctive relief. If allowed to protest or hold a rally, Plaintiffs maintain they would follow “the Center for Disease Control’s social distancing guidelines.” TRO at 18.
This Court finds, however, that Plaintiffs have failed to demonstrate a likelihood of success on the merits of their claims because the S tate order, and the CHP’s denial of their permit applications, are within the scope of the State’s emergency powers to fight the spread of COVID-19. See Opp’n at 6 – 12. Moreover, even under traditional constitutional analysis, the State order does not violate Plaintiffs ’ rights. Id. at 12 – 20. For the same reasons, Plaintiffs also fail to raise serious questions going to the merits of these eight claims. As a result, the Ninth Circuit’s “serious question” analysis does not provide Plaintiffs an alternative avenue for preliminary relief.
1. Likelihood of Success on the Merits / Serious Questions Going to the Merits a. Emergency Powers
“Upon the principle of self -defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27 (1905). The Supreme Court penned those words over a hundred years ago, but they remain relevant today. In Jacobson, the Supreme Co urt upheld a state’s exercise of its general police powers to promote public safety during a public health crisis. Id. at 25. A state’s police power entails the authority “to enact quarantine laws and ‘health laws of every description’”— even under normal circumstances. Id. Under normal circumstances, however, state regulations enacted pursuant to a general police power must, “always yield in case of conflict” to both the Constitution and permissible exercises of federal authority. Id.
But in abnormal circumstances, “[t]he authority to determine for all what ought to be done in [] an emergency must [be] lodged somewhere or in some body.” Id. at 27. It is not “unusual nor [] unreasonable or arbitrary” to invest that authority in the state. Id. Moreo ver, “the court would usurp the function of another branch of government if it adjudged, as a matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the ca se.” Id. at 28. In view of this principle, when a state exercises emergency police powers to enact an emergency public health measure, courts will uphold it unless (1) there is no real or substantial relation to public health, or (2) the measures are “beyond all question” a “plain, palpable invasion of rights secured by [] fundamental law.” Id. at 30.
This standard has endured. Courts continue to apply it
when reviewing emergency public health measures enacted pursuant
to emergency police powers. See, e.g., Gish, WL 1979970 at *5
(C.D. Cal. 2020) (citing Jacobson,
591-93 (D. N.J. 2016) (same).
In this case it is uncontroverted that the State’s stay at home order bears a real and substantial relation to public health. Here in California, as of May 6, 2020 COVID-19 has infected 58,815 and killed 2,412. See COVID-19 By the Numbers, Cal. Dep’t of Pub. Health (May 6, 2020). The virus that causes COVID-19 is known to quickly spread from person to person. Watt Decl. ¶¶ 9 – 10, ECF No. 13. Unchecked, it can spread exponentially and can endure over ten transmission cycles, causing one person to be responsible for 1,024 other infections. Id. ¶ 10. Many who are infected show no symptoms but still contribute to COVID- 19’s spread. Id. ¶ 13. The State’s order, and the Department of Public Health directives it incorporates, seek to slow down the rate of transmission by drastically reducing the number and size of all gatherings. T he “goal is simple, [the State] want[s] to bend the curve, and disrupt the spread of the virus.” Ex. A to Compl. ¶ 1.
Starting in December 2019, “California began working
closely with the national Centers for Disease Control and
Prevention, the United States Health and Human Services Agency,
and local health departments to monitor and plan for the
potential spread of COVID- 19 to the United States.” Opp’n at 3
(citing Medley Decl., ECF No. 11). The Court is in no position
to question expert determinations on the efficacy of reducing
gatherings in lowering the number of new infections. See
Jacobson,
Having to concede that the State’s order relates to public
health, Plaintiffs contend only that the blanket ban on CHP
permits for protests or rallies at the State Capitol “is beyond
all question, a plain, palpable, invasion of fundamental rights
protected by the First and Fourteenth Amendments.” TRO at 7. But their argument fails to convince this Court that the State’s total ban on public demonstrations is not a proper exercise of
the State’s emergency powers . This Court does not take lightly
its mandate to “guard with firmness eve ry right appertaining to
life, liberty, or property as secured to the individual by the
supreme law of the land. ” Jacobson,
The State’s ban on public gatherings — namely ones where
upwards of 500 or 1,000 people may be in attendance — flows from a
larger goal of substantially reducing in-person interactions.
See Opp’n at 3– 4. Plaintiffs have not shown how this goal, and
the means used to achieve it, do n ot bear a “real and
substantial relationship” to preventing widespread transmission
of COVID-19. See Jacobson,
b. Free Speech Clause
The First Amendment, as incorporated against the states
through the Fourteenth Amendment, states that “ Congress shall
make no law . . . abridging the freedom of speech . . . or the
right of people peaceably to assemble.”
Even so , “certain restriction on speech in the public parks
are valid.” Id. (internal quotation marks and citations
omitted). Specifically, when the restriction “is not subject -
matter censorship, but [a] content-neutral time, place, and
mann er regulation of the use of a public forum,” it may be
permitted. Thomas v. Chicago Park Dist.,
Plaintiffs argue the State’s order acts as a n impermissible prior restraint on protected speech. See Opp’n at 8– 10. And while Defendants do not dispute that State’s order restricts speech before it occurs, they argue the temporary moratorium on issuing permits is nonetheless a permissible time, place, and manner restriction. See Opp’n at 12– 15.
T he State’s order , and the resulting moratorium on permits,
are, beyond question, content-neutral. Pursuant to the State’s
order, the CHP is temporarily denying all permits for any in-
person gatherings at the State Capitol. See Ex. A to Opp’n
¶ 10 . By definition, “blanket bans applicable to all speakers
are content- neutral.” Santa Monica Nativity Scenes Comm. v.
City of Santa Monica,
To be sure, a content-neutral regulation may nonetheless
run afoul of the Constitution. A permissible time, place, or
manner restriction must also: (1) be narrowly tailored to serve
a significant governmental interest; and (2) leave open ample
alternative channels for communication of the information.
Berger,
Admittedly, a blanket ban on the issuance of CHP permits
for an unspecified period does not intuitively ring of narrow
tailoring. B ut “narrow” in the context of a public health
crisis is necessarily wider than usual. The evidence before
this Court clearly demonstrates that in-person gatherings
increase the spread of COVID-19. This is true even when people
attempt to comply with the CDC’s recommendations. See Watt
Decl. ¶ 17. The State’s stay at home order advances the only
fool-proof way to prevent the virus from spreading at in-person
gatherings: prohibiting in-person gatherings. The State’s
objective “is not to exclude communication of a particular
content, but to . . . prevent uses that are dangerous.” Thomas,
Plaintiffs assert they could hold protests and rallies “with no more risk than other activities” by following CDC guidelines, but a close examination of the evidence before this Court, including Plaintiffs’ permit applications , belies this claim. Exs. A – B to Lyons Decl., ECF No. 12. Givens expects 1,000 people in attendance at his protest. Ex. B to Lyons Decl. Meanwhile, Plaintiff Bish expects 500 people in attendance and plans to play music, hire food trucks, distribute handouts, offer food and water, and set up balloons, chairs, tables, and tents. Ex. A to Lyons Decl. Further, it is unclear how Plaintiffs can confidently say they “have never contracted COVID- 19” and could prevent anyone who has from attending their gatherings. Givens Decl. ¶ 14, ECF No. 5 – 2; Bish Decl. ¶ 10, ECF No. 5 – 3; TRO at 15. Contrary to Plaintiffs’ contention, the record demonstrates that these gatherings put Plaintiffs and others at significantly higher risk than many other prohibited activities. Watt Decl. ¶¶ 15-18.
Defendants have conceded that Plaintiffs may plan in-car
protests, “filling streets and honking horns as other groups
have done during the COVID- 19 pandemic.” Opp’n at 14 . Whether
the State’s order explicitly allows this means of protest does
not impact the Court’s determination on the sufficiency of its
tailoring. Plaintiffs challenge the stay at home order,
facially and as applied, to the extent that it prevents them
from hosting in-person gatherings at the State Capitol. See TRO
at 1 –2. So, even if the State’s order prohibits in -car
protests, that is not the basis upon which Plaintiffs allege the
order is unconstitutional as applied to them. Nor does a ban on
in-car protests render the order facially invalid. To succeed
on a facial challenge, a plaintiff must show there is “no set of
circumstances” under which the law could be constitutionally
applied. United States v. Salerno,
The California Department of Public Health has determined that, to slow the rate of COVID-19 infections, gatherings — especially of the scale Plaintiffs propose — should temporarily cease. See Cal. Dep’t of Pub. Health, Guidance for the Prevention of COVID-19 Transmission for Gatherings, March 16, 2020. Plaintiffs have not proposed a more tailored option that would ensure comparable levels of safety. Absent an evidence- based alternative, the Court lacks any basis to enjoin the State’s informed emergency response . Accordingly, the Court finds the State’s prohibition on large gatherings and temporary moratorium on CHP permits are narrowly tailored to serve, at minimum, a significant governmental interest. See Gish, WL 1979970 at *6 (holding that preventing the spread of COVID-19 is in fact a compelling state interest).
Finally, a temporary moratorium on the issuance of CHP permits does not foreclose all channels of communication. As Defendants argue, “Plaintiffs remain free to use online and other electronic media to stage their rallies and make their protests.” Opp’n at 13. Indeed, given much of their intended audience is presently at home, this may be a more effective way of communicating their messages. Further, as mentioned above, Defendants concede that Plaintiffs may plan in-car protests without fear of reprisal. Opp’n at 14.
Considering the persistent threat of COVID-19, the Court finds the State’s stay at home order, and the resulting moratorium on CHP permits, are content-neutral time, place, and manner regulations designed to slow its spread. Plaintiffs are therefore unlikely to succeed on the merits of their free speech claim.
c. Freedom of Assembly Clause
The First Amendment guarantees that “Congress shall make no
law . . . abridging . . . the right of the people to peaceably
assemble.”
Today, the freedom of association has largely subsumed the
freedom of assembly. See Roberts v. U.S. Jaycees,
For the reasons discussed above, the State’s stay at home order and the CHP’s temporary moratorium on permits are wholly unrelated to the suppression of expressive association. Both flow from the State’s interest in slowing the spread of COVID - 19. The State’s order seeks to suppress the virus, not expressive association. And, as is now well-established, protecting California’s residents from “[a] global pandemic and its local outbreak amount to a compelling state interest.” Legacy Church, WL 1905586 at *40.
Finally, just as the State’s order does not prohibit substantially more speech than necessary to protect public health, it also does not prohibit substantially more expressive association than is necessary to advance this same objective. Plaintiffs are unlikely to succeed on the merits of their freedom of assembly claim.
d. Petition Clause
The First Amendment protects “the right of the
people . . . to petition the Government for redress of
grievances.”
Defendants argue that Plaintiffs have not raised any concerns in connection with their petition claim distinct from those that are addressed by their freedom of speech and assembly claims. Opp’n at 16. The Court agree s. The right to petition allows Plaintiffs to air a grievance to the government. The question then becomes: what grievances do Plaintiffs hope to air? At first blush, it seems Givens seeks to protest the delays in firearm background checks. See Compl. ¶ 2; Ex. B to Lyons Decl. And Bish seeks to promote herself as a candidate while protesting the State’s stay at home order. See Compl. ¶ 2; Ex. A to Lyons Decl. But upon closer inspection, Plaintiffs’ overriding grievance is their inability to host in- person gatherings under the State’s order and the CHP’s temporary moratorium.
Plaintiffs’ right to petition claim specifically states: “The Orders and Defendants’ enforcement thereof violate the Petition Clause of the First Amendment . . . . ” Compl. ¶ 68. Meanwhile, in their reply, Plaintiffs’ only rebuttal is that, “[j]ust as the Orders impermissibly limit free speech and the right to peaceably assemble, they also impermissibly limit Plaintiffs’ right to petition.” Reply at 10. Nowhere do Plaintiffs suggest that the grievances they seek to air to the government are anything but their present inability to gather in person at the State Capitol. And, while courts “should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims[,]” “[i]nterpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right.” Borough of Duryea, 564 U.S. at 388 (emphasis added).
Plaintiffs’ goal is to regain the ability to speak and assemble on the grounds of the State Capitol. As a result, their Petition Clause claim is inextricably intertwined with their Speech Clause and Assembly Clause claims. The Court ’ s analysis for each of those claims therefore necessarily applies here. It follows that Plaintiffs’ right to petition claim is similarly unlikely to succeed on the merits.
e. Due Process Clause
“It is a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not clearly
defined.” Grayned v. City of Rockford,
Accordingly, the vagueness doctrine implicates two related
requirements. “First, laws must give the person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.” Id. (internal
quotation marks and citation omitted). Typically, all that is
required here is “fair notice of the conduct a statute
proscribes.” Id. (internal quotation marks and citation
omitted). But when First Amendment freedoms are in the balance,
“an even greater degree of specificity and clarity of laws is
required.” Kev, Inc. v. Kitspa Cty.,
Plaintiffs’ argument focuses on the use of the word “heed” in the State’s order. See TRO at 13. Plaintiffs argue that, because the State’s order instructs the public merely to “heed” t o public health directives, “it does not appear to order compliance therewith.” Id. While the request to “he ed the current State public health directives” might be understood as a recommendation , the remainder of the State’s order , and the incorporated health directives, are unambiguous. Just before, and as part of, the request to heed to public health directives, Governor Newsom, bolded and uppercase , states, “IT IS HEREBY ORDERED . . . . ” See Ex. A to Compl. ¶ 1 (emphasis added). The request to heed follows immediately thereafter. Id. Unlike “heed,” “ordered” is unquestionably mandatory.
Next, the State’s order incorporates the “Order of the State Public Health Officer.” Id. Within that order, the State Public Health Officer and Director of the California Department of public health “ order[s] all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrast ructures.” Id. Thus, looking exclusively at the language of the State’s orde r, the Court is not persuaded that Plaintiffs might realistically interpret it as permitting groups of 500 to 1,000 to meet, in person, for any purpose other than those defined a s “needed to maintain continuity of operations of federal critical infrastructure.”
Even considering the greater degree of clarity required
when First Amendment freedoms are involved, the language is not
so vague as to compel Plaintiffs’ “to steer too far clear of any
forbidden areas.” Edge,
f. Right to Liberty
Finally, Plaintiffs contend that the State’s stay at home
order violates their right to liberty under Article I, Section 1
of the California Constitution. In so arguing, Plaintiffs cite
to the principle that, in California, public health officials
seeking to place an individual in quarantine must have
“‘ reasonable ground[s] [] to support the belief ’ that the person
so held is infected.” Ex Parte Martin,
The Court agrees with Defendants that, requiring public health officials in the current pandemic to “ identify specific individuals who carry the virus and order only them to stay home would not be feasible.” Opp’n at 17. That would require far more aggressive testing and contact-tracing, neither of which the State, at present, has the capacity to do. Moreover, the current public health crisis differs toto coelo from San Francisco’s discriminatory quarantine of Chinatown. Because Plaintiffs fails to support this claim in any meaningful way, it is unlikely to succeed on the merits.
2. Remaining Factors
A district court may not grant a plaintiff’s motion for a
temporary restraining order if the request fails to show the
plaintiff is likely to succeed on the merits of a claim or, at
least, raises serious questions going to the merits of that
claim. See Winter,
The Court is well aware that the State’s stay at home order being challenged by these Plaintiffs is burdensome, and even devastating, to many. This pandemic has undoubtedly taken its toll. But the sacrifices all California residents are being asked to make to protect the state’s most vulnerable flow from a constitutional executive order. And our willingness to rise to the challenge posed by that order is a true measure of our humanity.
/// III. ORDER
For the reasons set forth above, the Court DENIES Plaintiffs’ Application for a Temporary Restraining Order.
IT IS SO ORDERED.
Dated: May 8,2020
Notes
[1] The complaint does not allege Plaintiffs are injured by being barred from religious services in violation of the First Amendment’s Free Exercise Clause. As a result, Plaintiffs have not sufficiently alleged standing to challenge the State order to the extent it bars in-person religious services.