Ramsek v. BeshearRamsek v. Beshear
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Trust us. That is the position the Governor takes in this case. Trust us, as policy makers, to make the best decisions for the citizens of the Commonwealth in responding to a pandemic. In large measure the Governor is right. The political branches, the policy makers, are far better provisioned than judges to gather the information needed to make informed decisions.
But in one respect the Governor is wrong. His power is not absolute. When it comes to restrictions on our liberty, courts must not accept as sufficient whatever explanation is offered. In exercising its constitutional function, it is not enough to simply “trust” the conclusion of the political process that a restriction is necessary or right. The teaching of the cases is clear. Even in times of crisis, the Constitution puts limits on governmental action.
As explained below, a blanket prohibition on gathering in large groups to express constitutionally protected speech is unconstitutional. When liberty is at stake, policy makers must be more precise.
On March 19, 2020, as part of broader efforts to “flatten the curve,” acting Secretary of the Cabinet for Health and Family Services Eric Friedlander, issued an order prohibiting “mass gatherings.” [R. 1-4.] Per Secretary Friedlander‘s Order, mass gatherings include “any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” Id. Some activities which necessarily involve large groups of individuals were excluded. “[A]irports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other spaces where persons may be in transit” were not included within the definition of “mass gathering,” nor were “typical office environments, factories, or retail or grocery stores[.]” Id. As Plaintiffs emphasize, protests are not included in this list of exemptions. [R. 6-1 at 4.]
Plaintiffs are four Kentucky residents who are deeply concerned about Governor Beshear‘s actions in response to Covid-19 and desire to express their views through protesting. [R. 6-1 at 1–2.] On April 15, approximately 100 individuals organized a protest at the State Capitol during the Governor‘s press conference. [R. 1 at ¶ 30.] Concerned about the Commonwealth‘s economy, protestors expressed their opposition to the restrictions the Governor has put in place during the coronavirus pandemic. Id. In response, Governor Beshear took steps to minimize the impact of the protests during his daily press conference. Id. at ¶ 31. The Kentucky State Police (KSP) restricted the public‘s access to the area on the southeast side of the Capitol building where the Governor‘s briefings take place. Id. They placed saw-horse barriers on the patio of the Capitol and encircled the lawn outside the Governor‘s office suite with yellow tape. Id. A sign attached to the barrier states, “Pursuant to 200 K.A.R. 3:020, the Kentucky
During the Governor‘s daily briefing on April 16, further measures were taken by the State Health Commissioner, Dr. Steven Stack, when he released a public announcement in regard to in-person mass gatherings at the Capitol. Id. at ¶ 33. Dr. Stack created an alternative option for people to protest on Capitol grounds, in which people may drive-in and drive-through the top floor of the Capitol parking garage. Id. However, “participants must remain in their vehicles, in designated parking areas and follow Centers for Disease Control and Prevention (CDC) recommendations.” Id. Dr. Stack said, “these options allow people to use their voices and be heard while protecting the public health.” Id. For Plaintiffs, this alternative is not good enough. They complain that the designated area only has space for approximately 300 vehicles and is too far away from the Capitol to be seen or heard. Id. at ¶ 35. Plaintiffs also argue these accommodations are accommodations in name only.
According to Plaintiffs, at a rally held on May 2, KSP blocked streets surrounding the Capitol to prevent drive-through protesting, and eventually blocked off the entire perimeter of the protest. Id. at ¶¶ 41, 45. Plaintiff Ramsek complains that he attempted to utilize the designated zone, but police blocked the entrance of the parking garage. Id. at ¶ 42. Defendants disagree with these allegations and state that these areas were accessible on that date. [R. 19 at 8–9.] They explain that certain entrances and exits were blocked in order to ensure an orderly flow of traffic during the protest, in consideration of both social distancing and safety protocols.
Over the next month, there were many changes to restrictions as the Commonwealth started to gradually reopen. On May 8, two district courts in Kentucky issued orders that preliminarily enjoined the Governor from enforcing the prohibition on mass gatherings with
This brings the Court back to the present case. Plaintiffs filed their Complaint on May 10 [R. 1] and Motion for Temporary Restraining Order (TRO) [R. 6] on May 12, which the Court ultimately denied on May 15 [R. 10]. Following the initial hearing, Plaintiff Ramsek submitted an application to hold an event on the Capitol grounds on May 23.1 [R. 19 at 8.] After reviewing the application, Defendants tried to negotiate with Plaintiffs in regard to the restrictions protestors would need to follow if the permit were granted. Under Defendants’ proposal, protestors would have access to the upper or top level of the parking structure next to
Thereafter, the Court denied Plaintiffs’ Emergency Motion for Preliminary Injunction, finding that Plaintiffs lacked standing. [R. 22.] Plaintiffs appealed this decision to the Sixth Circuit [R. 23] and requested this Court issue an injunction pending appeal [R. 24], which was also denied [R. 27]. On May 23, the Sixth Circuit entered an order concluding Plaintiffs do have standing, and granting, in part, their motion for an injunction pending appeal. [R. 29.] The Sixth Circuit enjoined Defendants from prohibiting protesters from gathering for drive-in and drive-through protests but did not determine whether Plaintiffs may conduct in-person protests. Id. On May 29, the Sixth Circuit vacated this Court‘s order denying Plaintiffs’ preliminary injunction and determining Plaintiffs lacked standing. [R. 31.] The Sixth Circuit remanded the case for additional findings of fact and conclusions of law “concerning a prohibition on in-person protests and whether there are features of large in-person protests that distinguish them from other mass gatherings, such as at retail venues, which the Order permits, and church, which our prior decisions permit.” Id.
In light of the Sixth Circuit Opinion, Plaintiffs filed an Emergency Motion for Discovery requesting to depose Dr. Steven Stack in order to develop the factual record. [R. 30.] The Court held a telephonic status conference on June 1, at which the parties discussed the potential impact of the recent Supreme Court decision in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (May 29, 2020) (Mem). The Court directed the parties to file simultaneous briefing in regard to this issue and Plaintiffs’ Motion for Expedited Discovery in preparation for a hearing held on June 4. [R. 33.]
Following the hearing, the Court granted Plaintiffs’ Motion for Expedited Discovery and ordered Plaintiffs to promptly notice Dr. Steven Stack for deposition in regard to the issue of differences between in-person protests and other mass gatherings currently allowed under the Mass Gatherings Order. [R. 38.] During the deposition, Dr. Stack confirmed that the orders issued during the pandemic are generated based on his assessment of risks and how to best minimize the risks of spreading the virus. [R. 43 at 9.] Dr. Stack emphasized that “large mass gatherings are an elevated risk of spreading this infection.” Id. at 97. The risk of transmission of disease and infection increases as the crowd grows larger and spacing between individuals becomes more difficult. Id. at 58. The virus can be spread by droplets from coughing, sneezing, speaking, shouting and singing. Id. at 12–13. While Kentucky‘s Mass Gathering Order prohibits gathering in groups of more than ten, Dr. Stack explained that the CDC defines “mass gathering” as a group of more than 250 people. Id. at 68.2
As Dr. Stack inferred, outdoor gatherings are less risky than indoor gatherings. Id. at 50–51. Many regulated activities such as church services and restaurants have 33% capacity requirements, but these are only for indoor gatherings. Id. at 28–33, 39–40. There are no limits on the number of people who can attend permitted outdoor activities, such as church and auctions, as long as they keep six feet apart and adhere to the regulations. Id. at 36–38. Office-
Dr. Stack testified that control measures could be placed on protests, but his concern was that previous protests were not organized to encourage precautions of social distancing and mask wearing. Id. at 56. Social distancing, mask wearing, and handwashing are the most important measures to minimize the risk of infection during such gatherings, but they are hard to enforce on a large crowd. Id. at 61. Dr. Stack also explained that transitory activities, such as grocery stores, are less risky than communal activities, such as church, factories, or offices. Id. at 84. The Court ordered simultaneous briefing upon the parties’ receipt of the deposition transcript. [R. 38.] Limited discovery and simultaneously briefing are now complete. [R. 43; R. 44; R. 45.]
II
A
This is an odd case. It is odd because other than a disagreement about access to the Capitol grounds in Frankfort on one occasion, there is no evidence in the record that Plaintiffs have faced any sanction for having exercised their First Amendment rights related to protest-related gatherings. Actually, no one has.
Once more, the Governor has expressly declared that even though violating an order of the Executive Branch is punishable as a misdemeanor, he will not seek that consequence for anyone. So, the position of the Executive Branch is that you must not assemble in large groups to protest but there will be no legal consequence if you do.
Words aside, it is difficult to see how the Secretary‘s order is anything but advisory. Nevertheless, the plain language of the order is proscriptive. And this Court is bound to accept as settled that these Plaintiffs have standing despite a lack of specific injury. [R. 29.]
In South Bay, plaintiffs filed suit challenging the application of California‘s stay-at-home order to in-person religious services. See S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 939 (9th Cir. 2020). After both the district court and Ninth Circuit denied plaintiffs’ application for injunction pending appeal, the Supreme Court similarly denied relief in a 5-4 decision. 140 S. Ct. 1613. Chief Justice Roberts issued a concurring opinion, which was not joined by any other Justice, expounding on the reasons for denial.3 See id. Defendants now contend this concurring opinion “decisively resolves this case.” [R. 36 at 2.] Plaintiffs disagree, arguing that Justice Roberts’ opinion “does not create any precedent, much less binding precedent.” [R. 35 at 5.]
The Court finds that, while informative, Justice Roberts’ concurring opinion does not create precedent which controls in this case. To start, Justice Roberts analyzed a different executive order as it concerned a separate First Amendment right in a distinct factual
On review, a denial of injunctive relief pending appeal by the Supreme Court is similar in many ways to a denial of a writ of certiorari. See, e.g., Teague v. Lane, 489 U.S. 288, 296 (1989); see also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1181 (1996) (Scalia, J. dissenting). Like a denial of writ of certiorari, a variety of considerations underlie a denial of injunctive relief—considerations beyond simply the merits of the case. See, e.g., Janklow, 517 U.S. at 1181 (Scalia, J. dissenting) (describing such decisions as “discretionary (and unexplained) denials“); Brown v. Gilmore, 533 U.S. 1301 (2001) (Rehnquist, C.J.). Indeed, in Respect Maine PAC v. McKee, the Supreme Court explained that to warrant such relief “demands a significantly higher justification than a request for a stay, because unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” 562 U.S. 996 (2010) (cleaned up). The legal principles applied by the Supreme Court in this context lead naturally to a conclusion that, like opinions accompanying the denial of certiorari, opinions accompanying the denial of injunctive relief pending appeal “cannot have the same effect as decisions on the merits.” Teague, 489 U.S. at 296; see also Janklow, 517 U.S. at 1181 (Scalia, J. dissenting) (explaining the impropriety of lower courts possibly giving authoritative effect to a two-Justice opinion concurring in a denial of an injunctive relief pending appeal).
Notwithstanding the above considerations, certain lower courts have accorded significant weight to Justice Roberts’ concurring opinion, without any extended analysis of the precedential considerations laid out above. See, e.g., Calvary Chapel Lone Mountain v. Sisolak, No. 2:20CV00907RFBVCF, 2020 WL 3108716, at *2 (D. Nev. June 11, 2020). At the very least, if
So, what was the basis for Justice Roberts’ decision? Defendants argue that Justice Roberts’ concurrence “conclusively explains that state elected officials have broad latitude to enact public health measures . . . .” [R. 36 at 2.] True, in analyzing the California restrictions, Justice Roberts found they “appear[ed] consistent with the Free Exercise Clause of the First Amendment.” Id. And, he further explained that a state has broad latitude in restricting social activities in times of emergency which “should be subject to second-guessing” only where those broad limits are exceeded. Id. But Justice Roberts’ analysis must be viewed in light of the standard applied.
Accordingly, the Court declines to accord too broad of a precedential effect to Justice Roberts’ concurrence in South Bay. A narrow reading is required and simply leads to the conclusion that Justice Roberts found that it was not “indisputably clear” that the California law restricting in-person religious services violated the Free Exercise Clause. While informative, this conclusion does not create precedent which controls in this case.
Also relevant is the Sixth Circuit‘s recent teaching on similar issues. In Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), and Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020), the Sixth Circuit reviewed the constitutionality of the Mass Gatherings Order at issue in this case. In both instances, plaintiffs argued they could show a likelihood of success on the merits in proving that the Mass Gatherings Order violated the Free Exercise Clause as applied to church services. The Sixth Circuit agreed, finding that the Mass Gatherings Order had “several potential hallmarks of discrimination.”5 Maryville Baptist, 957 F.3d at 612–14; Roberts, 958 F.3d at 413.
B
To issue a preliminary injunction, the Court must consider: 1) whether the movant has shown a strong likelihood of success on the merits; 2) whether the movant will suffer irreparable harm if the injunction is not issued; 3) whether the issuance of the injunction would cause substantial harm to others; and 4) whether the public interest would be served by issuing the injunction. Overstreet v. Lexington–Fayette Urban County Government, 305 F.3d 566, 573 (6th Cir. 2002) (citations omitted). The Court of Appeals clarified that, “[w]hen a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor.” City of Pontiac Retired Employees Ass‘n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir.2012)). However, even if the plaintiff is unable “to show a strong or substantial probability of ultimate success on the merits” an injunction can be issued when the plaintiff “at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued.” In re Delorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).
1
Plaintiffs’ alleged irreparable injury is a violation of their First Amendment rights. [R. 6-1 at 5.] The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably assemble, and to petition the Government for a redress of grievances.”6
Of course, these rights are not absolute. See Citizens for Tax Reform v. Deters, 518 F.3d 375, 375 (6th Cir. 2008). There is a push and pull between the public‘s privileges and the government‘s power to regulate in this arena. “[T]he First Amendment does not guarantee the right to communicate one‘s views at all times and places or in any manner that may be desired.” Heffron v. Int‘l Soc. For Krishna Consciousness, 452 U.S. 640, 467 (1981). At the same time, “to preserve this freedom, government entities are strictly limited in their ability to regulate private speech in such ‘traditional public fora.‘” Pleasant Grove v. Summum, 555 U.S. 460, 469 (2009) (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985)).
Although the First Amendment protects several categories of rights, it is often difficult in practice to determine where one right ends and the next begins. This is particularly true with
a
“The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.” Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 44 (1983). Plaintiffs wish to gather in protest on the Kentucky State Capitol grounds. The parties agree the state Capitol grounds are a public forum.7 Public forums are places “which by long tradition . . . have
The unprecedented nature of the times in which we live, and the complexity of constitutional law generally, make the regulation challenged here difficult to place. The challenged Order explicitly prohibits “mass gatherings” which “include any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based,8 or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.” [R. 1-4.]. The Supreme Court has instructed that “[t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of
Here, the Order prohibiting mass gatherings existed prior to Plaintiffs’ message. In fact, Plaintiffs’ protest—and their beliefs about fully reopening the economy—are a response to the Order. Governor Beshear may disagree with the content of the protestors’ message, but it cannot be said it was enacted with the intent to suppress Plaintiffs’ political point of view. Nor has it been used to stifle the political expression of others. In the wake of the death of George Floyd in Minneapolis, the Black Lives Matter movement migrated to Kentucky. Mike Stunson, Kentuckians Protested for George Floyd, Breonna Taylor Last Weekend. See the Scenes, LEXINGTON HERALD-LEADER (June 1, 2020), http://www.kentucky.com/news/state/kentucky/article 243161386.html. Although public demonstrations have been occurring almost daily throughout Kentucky, there have been no reports of any enforcement actions taken against participants for violating the Mass Gathering Order. In fact, Governor Beshear attended and spoke at a Black Lives Matter rally on June 5, 2020. [R. 45 at 6.]
Plaintiffs imply the lack of enforcement and the Governor‘s attendance is further evidence of discriminatory treatment against Plaintiffs. They go too far. Perhaps if Plaintiffs had been prosecuted for gathering to protest coronavirus restrictions this argument would be justified. But as previously explained, other than a disagreement about access to the Capitol grounds in Frankfort on one occasion, there is no evidence in the record that the Plaintiffs have faced any sanction for having exercised their First Amendment rights.
The First Amendment does not regulate government speech. “The First Amendment prohibits Congress and other government entities and actors from ‘abridging the freedom of speech‘; the First Amendment does not say that Congress and other government entities must abridge their own ability to speak freely.” Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (citing Pleasant Grove v. City of Summum, 555 U.S. 460, 467 (2009)). Although Plaintiffs’ briefs do not attempt to address the distinction between private and government speech, the Governor‘s official press briefings are government speech not subject to First Amendment scrutiny. See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2248 (2015). Despite Plaintiffs’ attempts to manufacture it, there is no evidence in the record that the Governor “adopted a regulation of speech because of disagreement with the message it conveys.” Rock Against Racism, 491 U.S. at 791.
Far from an interdiction on political speech, the Mass Gatherings Order is one of many orders issued by the state designed to curb the spread of the coronavirus by limiting Kentuckians’ interactions with one another, thereby decreasing opportunity for spread. [See R. 43-4; R. 43-5; R. 43-6; R. 43-7; R. 43-10.] And although the Court does not believe it is Defendants’ objective, by prohibiting gatherings, the Order incidentally prohibits public political protests like Plaintiffs‘. This matters, because this case is not just about what is being said in
Still, Plaintiffs argue that the Mass Gatherings Order is a content-based restriction on speech because it permits people to “gather” in some places—namely, airports, bus stations, and grocery stores—but not others, such as the Capitol grounds for purpose of political protest. [R. 6 at 16.] There is nuance here, and unlike the Sixth Circuit, this Court has had the benefit of time to grapple with it. The First Amendment protects the freedom of assembly just as much as it protects freedom of speech. And the right to freedom of speech also covers expressive conduct, which is “conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294 (1984). Restrictions on either must be content-neutral and narrowly tailored to serve a significant government interest.
Plaintiffs’ previous and future-planned protests are plainly speech. Also, it is easy to see how simply gathering together, in a time where gathering is prohibited due to a global pandemic, might fall under the umbrella of “expressive conduct” if one‘s intent is to protest that prohibition. But Plaintiffs do not go so far as arguing that individuals making regular use of airports, bus stations, and grocery stores are doing so with an intention to communicate anything. Unlike an individual protesting on the Capitol lawn, one who is grocery shopping or traveling is not, by
Supreme Court precedent constrains the Court to conclude that the Mass Gatherings Order is a content-neutral time, place, and manner restriction on Kentuckian‘s First Amendment rights. It restricts the manner in which Plaintiffs may protest by prohibiting large gatherings. And it circumscribes the time Plaintiffs may gather in protest to the duration state of emergency declaration. But it only incidentally does either. Because it is content-neutral, the Order will be upheld if the Governor can show it is “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry Educ. Ass‘n, 460 U.S. at 46.
b
Plaintiffs do not dispute that the Governor has a significant interest in protecting Kentuckians from Covid-19. They simply argue the Governor has gone too far in his pursuit of that interest. Based upon the record before it, the Court agrees. Plaintiffs are likely to succeed in showing that the Mass Gatherings Order is not narrowly tailored.
A regulation is narrowly tailored if it promotes the significant government interest without unnecessarily abridging speech. See Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1666 (2015). Under immense time pressure, the Sixth Circuit reasoned that the Mass Gatherings
A blanket ban on large gatherings, including political protests, is not the only way to protect the public health. Clearly, policymakers have some tools at their disposal which will help mitigate the spread of coronavirus while still allowing Kentuckians to exercise their First Amendment freedoms. As Dr. Stack explained in his deposition, maintaining a social distance of six feet, wearing masks, and frequent and thorough handwashing each help to reduce the likelihood of transmission of coronavirus from person to person. [R. 43 at 72.] The Commonwealth has required implementation of these tools in places like restaurants, office buildings, and auctions, but continues to wholly prohibit gatherings for political protest above a set number no matter the circumstance. See id.
This is problematic. Defendants are correct that there are certain attributes of political protests that make it inherently more difficult to contain spread of the coronavirus; they are organic, there is little ability to monitor who comes and who goes, people travel out of their communities to attend, and people who are impassioned tend to shout, sing, and embrace. [R. 43
As it currently stands, the state is enjoined from prohibiting drive-through protests, provided those participating practice social distancing. [R. 29 at 6.] With this Order, they are also enjoined from enforcing the prohibition on mass gatherings as it relates to in-person, political protests. Now, using the tools available, Defendants must amend the Mass Gatherings Order to allow for both drive-through and in-person protests in a manner consistent with the medical and scientific realities, while bearing in mind the constitutional protections accorded such behavior. The Court expressly declines to opine on what such an Order might include.
As the Sixth Circuit recognized before remand, the panel had “no way to determine what the facts are concerning a prohibition on in-person protests and whether there are features of large in-person protests that distinguish them from other mass gatherings[.]” [R. 31 at 1.] With the deposition testimony of Dr. Stack, this Court has the benefit of more facts than were available to the Sixth Circuit. And their Order granting injunction pending appeal hinted that more flexibility in the context of in-person protests might be constitutionally required. That is precisely the type of policymaking best left to Defendants, and they are ordered to engage in it. In the case of political protests, it is suspect that a generally applicable ban of groups larger than ten—or fifty, beginning June 29—is narrowly tailored, when nothing but the size of the gathering is taken into consideration. Defendants must devise a way to utilize mitigation measures such as social distancing, mask wearing, handwashing, and a recommendation for
c
In reaching this conclusion, the Court is cognizant of the rule espoused in Jacobson v. Massachusetts and Chief Justice Roberts’ reasoning in his concurring opinion in South Bay. See supra section II.A. In Jacobson, the Supreme Court considered whether, when faced with an outbreak of smallpox, the city of Cambridge could constitutionally require its adult residents to receive vaccinations against the disease. See Jacobsen, 197 U.S. at 25–26. Those who refused to vaccinate were subjected to a fine. Id. at 26. Although the defendant argued the law was an invasion of his liberty and violative of due process, the Supreme Court upheld the vaccination requirement based on public health concerns. Id. at 39.
Thus, Jacobson allows states considerable leeway in enacting public health measures during a public health emergency, provided “the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.‘” In re Abbott, 954 F.3d 772, 784–85 (5th Cir. 2020)
Justice Roberts echoed that sentiment, recognizing, “[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” South Bay United Pentecostal Church v. Newson, 140 S. Ct. 1613. Therefore, public officials should be afforded wide latitude “to act in areas fraught with medical and scientific uncertainties.” Id. Justice Roberts goes on to say that “[w]here those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” Id.
Defendants argue that Jacobson and Justice Roberts’ concurrence in South Bay “decisively resolve[] this case.” [R. 36 at 2.] Defendants contend they have not exceeded the “broad limits” of Jacobson, and therefore this Court should not “engage in an impermissible second-guessing of the Mass Gatherings Order[.]” Id. at 5. Further, Defendants read Justice Roberts’ opinion in South Bay as “expressly forbid[ding] this sort of probing review” into the facts underlying Defendants’ policy decisions undertaken through the deposition of Dr. Stack. Id. at 6.
The Court has already addressed what it thinks is the precedential value of Justice Roberts’ concurrence in South Bay. Supra section II.A. And while courts should refrain from second-guessing the efficacy of a state‘s chosen protective measures, “an acknowledged power of a local community to protect itself against an epidemic . . . might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to
III
If you think about it, the very nature of a pandemic threatens our liberty in every conceivable way. A perfect response would require everyone to stay put and limit contact with everyone else. But that is not the world we live in.
Policy makers are necessarily balancing interests. And courts should give them deference to do this difficult and important task. While that deference may be robust in a time of crisis it is not absolute. The Governor has gone too far here. The Motion for a Preliminary Injunction [R. 6] will be GRANTED.
This the 24th day of June, 2020.
Gregory F. Van Tatenhove
United States District Judge