Givens et al v. Newsom et al

Filing 18

ORDER signed by District Judge John A. Mendez on 5/8/2020 DENYING #5 Motion for TRO. (Zignago, K.)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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RON GIVENS, an individual;
CHRISTINE BISH, an
individual,

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Plaintiffs,
v.

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2:20-cv-00852-JAM-CKD

ORDER DENYING PLAINTIFFS’
APPLICATION FOR A TEMPORARY
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.

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No.

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.
No. 1.

Compl., ECF

Plaintiffs allege the stay at home order enacted by

Governor Newsom to slow the spread of Coronavirus Disease 2019
(“COVID-19”) impermissibly infringes upon their constitutional
rights to speak, assemble, and petition the government.

They

further allege that the order infringes upon their due process

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rights and their right to liberty under the California

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Constitution.

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Plaintiffs then filed an application for a temporary

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restraining order.

Application for TRO (“TRO”), ECF No. 5.

They

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request the Court enjoin enforcement of the State order so they

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may hold political demonstrations, rallies, protests, and

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religious services1 in compliance with the Centers for Disease

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Control’s (“CDC”) social distancing guidelines.

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Plaintiffs also request the Court order Defendants to issue them

TRO at 2.

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permits so they may proceed with their planned protests and

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rallies at the State Capitol.

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Id.

The Court held a hearing on the TRO application on May 7,

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2020.

After considering the papers filed in support of and in

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opposition to the request, and argument presented at the hearing,

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for the reasons set forth below, the Court DENIES Plaintiffs’

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Application for a Temporary Restraining Order.

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I.

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BACKGROUND

On December 31, 2019, the World Health Organization (“WHO”)

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China Country Office learned of cases of a pneumonia of unknown

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cause.

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COVID-19 was later identified as the cause.

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infections were but squalls preceding a hurricane.

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COVID-19 has infected over three and a half million and killed

WHO, COVID-19 Situation Report (January 21, 2020).
Id.

Those initial
To date,

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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.
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over 250,000 people worldwide.

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(May 7, 2020).

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crisis, Governor Newsom issued a statewide “stay at home order.”

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See Ex. A to Compl., ECF No. 1–1.

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March 19, 2020.

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home or at their place of residence except as needed to maintain

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continuity of operations of federal critical infrastructure

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services.”

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the public health of Californians” by “mitigat[ing] the impact of

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COVID-19.”

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WHO, COVID-19 Situation Report

Responding to this ever-evolving public health

Id.

Id. ¶ 1.

The order went into effect on

It directs California residents “to stay

The order’s stated purpose is “to protect

Ex. A to Compl. ¶ 1.

To that end, the order directs residents to “heed the

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current State public health directives.”

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health officials have determined that “all gatherings” of any

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size and in any “indoor or outdoor space” “should be postponed or

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canceled.”

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Prevention of COVID-19 Transmission for Gatherings, March 16,

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2020.

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professional, social, and community gatherings regardless of

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their sponsor.”

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notice.”

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Id.

State public

Cal. Dep’t of Pub. Health, Guidance for the

This determination “applies to all non-essential

Id.

The order is in effect “until further

Ex. A to Compl. ¶ 1.

Givens works for the Sacramento County Gun Club.

Compl.

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¶ 8.

As COVID-19 infections increased, the Gun Club experienced

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a surge in firearm sales.

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COVID-19 protective measures, the California Department of

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Justice began to experience a backlog in processing the

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background checks required for firearm purchasers.

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Givens seeks to protest these delays at the California State

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Capitol.

Id. ¶ 24.

Id. ¶ 27.

Busy enforcing the state’s

Id. ¶¶ 25–29.

He submitted a permit application to the
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California Highway Patrol’s (“CHP”) permit office on April 22,

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2020.

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¶ 34.

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Id. ¶ 31.

The CHP denied his permit application.

Compl.

Bish, on the other hand, is campaigning to be California’s

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U.S. Representative for its Sixth Congressional District.

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¶ 41.

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hold a political rally at the California State Capitol.

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¶ 43.

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Id.

On April 23, 2020, Bish applied to the CHP for a permit to

The CHP also denied Bish’s permit application.

Id.
Id. ¶ 45.

The CHP denied Plaintiffs’ permits pursuant to the State’s

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ban on mass gatherings.

Ex. A to Opp’n ¶ 10.

Under this

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directive, the CHP may not issue any permits that would authorize

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gatherings barred by the State’s stay at home order.

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Plaintiffs challenge the State order, facially and as applied,

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alleging it violates their freedom of speech, freedom to

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assemble, and freedom to petition the government under the United

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States and California constitutions.

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violates their right to liberty under the state constitution.

Id.

They also argue the order

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II.

OPINION

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A.

Judicial Notice

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District courts may take judicial notice of “a fact that is

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not subject to reasonable dispute because it: (1) is generally

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known within the trial court’s territorial jurisdiction; or (2)

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can be accurately and readily determined from sources whose

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accuracy cannot reasonably be questioned.”

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201(b).

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filings and other matters of public record,”

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Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir.

Fed. R. Evid.

To this end, a court may take judicial notice “of court

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Reyn’s Pasta

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2006), including “government documents available from reliable

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sources on the internet,”

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Vacaville, No. 2:17-cv-00524-KJM-KJN, 2017 WL 3840265, at *2 n.1

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(E.D. Cal. Sept. 1, 2017).

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California River Watch v. City of

Plaintiffs request the Court take judicial notice of: (1)

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Executive Order 2020-18, from the Executive Department of the

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State of Arizona, signed by Governor Douglas Ducey on March 13,

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2020; and (2) Stay at Home Order, from the Department of Public

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Health for the State of Ohio, signed by Director Amy Acton on

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March 22, 2020.

Plaintiffs’ Request for Judicial Notice, ECF

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No. 16.

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proper subjects of judicial notice.

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Plaintiffs’ requests.

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“the contents of the documents, not the truth of those

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contents.”

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(C.D. Cal. April 23, 2020).

The government documents Plaintiffs reference are both
The Court therefore GRANTS

In doing so, the Court judicially notices

Gish v. Newsom, No. EDCV 20-755-JGB(KKx), at *2

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B.

Legal Standard

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Temporary restraining orders are emergency measures,

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intended to preserve the status quo pending a fuller hearing on

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the injunctive relief requested, and the irreparable harm must

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therefore be clearly immediate.

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Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th

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Cir. 2006).

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order is identical to the standard for issuing a preliminary

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injunction.

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887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see Stuhlbarg Intern.

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Sales Co., Inc. v. John D. Brushy & Co., Inc., 240 F.3d 832, 839

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n.7 (9th Cir. 2011).

Fed. R. Civ. Proc. 65(b)(1); see

The standard for issuing a temporary restraining

Lockheed Missile & Space Co. v. Hughes Aircraft Co.,

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Plaintiffs seeking these forms of injunctive relief must

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demonstrate (1) that they are likely to succeed on the merits,

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(2) that they are likely to suffer irreparable harm in the

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absence of preliminary relief, (3) that the balance of equities

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tips in their favor, and (4) that an injunction is in the public

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interest.

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1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Def.

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Council, 555 U.S. 7 (2008)).

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also issue temporary restraining orders when there are “serious

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questions going to the merits” and a “balance of hardships that

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tips sharply towards the plaintiff” so long as the remaining two

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Winter factors are present.

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Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

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Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d

In the Ninth Circuit, courts may

Alliance for Wild Rockies v.

When applying either test, courts operate with the

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understanding that a temporary restraining order, much like a

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preliminary injunction, is an “extraordinary and drastic

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remedy.”

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propriety of a temporary restraining order, in particular,

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hinges on a significant threat of irreparable injury [] that

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must be imminent in nature.”

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JGB(KKx), 2020 WL 1979970, at *3 (April 23, 2020) (citing

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Simula, Inc. v. Autoliv, Inc., 175 F.3d. 716, 725 (9th Cir.

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1999); Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668,

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674 (9th Cir. 1988)).

Cf. Munaf v. Geren, 553 U.S. 674, 690 (2008).

“The

Gish v. Newsom, No. EDCV 20-755-

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C.

Analysis

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Plaintiffs request the Court enjoin Defendants from

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enforcing the State stay at home order against their permit

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applications to hold protests and political rallies at the State
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Capitol.

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the four conventional Winter factors for injunctive relief.

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allowed to protest or hold a rally, Plaintiffs maintain they

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would follow “the Center for Disease Control’s social distancing

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guidelines.”

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TRO at 1–2.

Plaintiffs contend they satisfy each of
If

TRO at 18.

This Court finds, however, that Plaintiffs have failed to

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demonstrate a likelihood of success on the merits of their

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claims because the State order, and the CHP’s denial of their

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permit applications, are within the scope of the State’s

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emergency powers to fight the spread of COVID-19.

See Opp’n at

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6–12.

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the State order does not violate Plaintiffs’ rights.

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20.

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questions going to the merits of these eight claims.

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result, the Ninth Circuit’s “serious question” analysis does not

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provide Plaintiffs an alternative avenue for preliminary relief.

Moreover, even under traditional constitutional analysis,
Id. at 12–

For the same reasons, Plaintiffs also fail to raise serious

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1.

As a

Likelihood of Success on the Merits / Serious

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Questions Going to the Merits

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a.

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Emergency Powers

“Upon the principle of self-defense, of paramount

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necessity, a community has the right to protect itself against

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an epidemic of disease which threatens the safety of its

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members.”

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11, 27 (1905).

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hundred years ago, but they remain relevant today.

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the Supreme Court upheld a state’s exercise of its general

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police powers to promote public safety during a public health

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crisis.

Jacobson v. Commonwealth of Massachusetts, 197 U.S.
The Supreme Court penned those words over a

Id. at 25.

In Jacobson,

A state’s police power entails the
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authority “to enact quarantine laws and ‘health laws of every

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description’”—even under normal circumstances.

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normal circumstances, however, state regulations enacted

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pursuant to a general police power must, “always yield in case

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of conflict” to both the Constitution and permissible exercises

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of federal authority.

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Id.

Under

Id.

But in abnormal circumstances, “[t]he authority to

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determine for all what ought to be done in [] an emergency must

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[be] lodged somewhere or in some body.”

Id. at 27.

It is not

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“unusual nor [] unreasonable or arbitrary” to invest that

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authority in the state.

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the function of another branch of government if it adjudged, as

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a matter of law, that the mode adopted under the sanction of the

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state, to protect the people at large was arbitrary, and not

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justified by the necessities of the case.”

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of this principle, when a state exercises emergency police

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powers to enact an emergency public health measure, courts will

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uphold it unless (1) there is no real or substantial relation to

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public health, or (2) the measures are “beyond all question” a

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“plain, palpable invasion of rights secured by [] fundamental

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law.”

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Id.

Moreover, “the court would usurp

Id. at 28.

In view

Id. at 30.

This standard has endured.

Courts continue to apply it

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when reviewing emergency public health measures enacted pursuant

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to emergency police powers.

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(C.D. Cal. 2020) (citing Jacobson, 197 U.S. at 31); Robinson v.

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Attorney General, No. 20-11401-B, WL 1952370, at *8 (11th Cir.

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April 23, 2020) (same); In re Abbott, No. 20-50296, 2020 WL

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1911216, at *16 (5th Cir. 2020) (same); Legacy Church, Inc. v.

See, e.g., Gish, WL 1979970 at *5

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Kunkel, No. CIV 20-0327 JB/SCY, 2020 WL 1905586, at *40 (D. N.M.

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April 17, 2020) (same); Hickox v. Christie, 205 F.Supp.3d 579,

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591-93 (D. N.J. 2016) (same).

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In this case it is uncontroverted that the State’s stay at

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home order bears a real and substantial relation to public

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health.

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infected 58,815 and killed 2,412.

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Cal. Dep’t of Pub. Health (May 6, 2020).

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COVID-19 is known to quickly spread from person to person.

Here in California, as of May 6, 2020 COVID-19 has
See COVID-19 By the Numbers,
The virus that causes
Watt

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Decl. ¶¶ 9–10, ECF No. 13.

Unchecked, it can spread

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exponentially and can endure over ten transmission cycles,

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causing one person to be responsible for 1,024 other infections.

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Id. ¶ 10.

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contribute to COVID-19’s spread.

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and the Department of Public Health directives it incorporates,

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seek to slow down the rate of transmission by drastically

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reducing the number and size of all gatherings.

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simple, [the State] want[s] to bend the curve, and disrupt the

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spread of the virus.”

Many who are infected show no symptoms but still
Id. ¶ 13.

The State’s order,

The “goal is

Ex. A to Compl. ¶ 1.

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Starting in December 2019, “California began working

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closely with the national Centers for Disease Control and

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Prevention, the United States Health and Human Services Agency,

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and local health departments to monitor and plan for the

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potential spread of COVID-19 to the United States.”

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(citing Medley Decl., ECF No. 11).

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to question expert determinations on the efficacy of reducing

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gatherings in lowering the number of new infections.

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Jacobson, 197 U.S. at 30 (“[I]t is no part of the function of a
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Opp’n at 3

The Court is in no position

See

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court . . . to determine which of two modes was likely to be the

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most effective for the protection of the public against

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disease.”); see also In re Abbott, 954 F.3d at 777.

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Having to concede that the State’s order relates to public

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health, Plaintiffs contend only that the blanket ban on CHP

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permits for protests or rallies at the State Capitol “is beyond

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all question, a plain, palpable, invasion of fundamental rights

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protected by the First and Fourteenth Amendments.”

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But their argument fails to convince this Court that the State’s

TRO at 7.

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total ban on public demonstrations is not a proper exercise of

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the State’s emergency powers.

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its mandate to “guard with firmness every right appertaining to

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life, liberty, or property as secured to the individual by the

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supreme law of the land.”

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the context of this public health crisis, the judiciary must

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afford more deference to officials’ informed efforts to protect

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all their citizens, especially their most vulnerable, against

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such a deadly pandemic.

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Gish, 2020 WL 1979970, at *4-5.

This Court does not take lightly

Jacobson, 197 U.S. at 38.

But, in

See Jacobson, 197 U.S. at 28-32, 34-38;

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The State’s ban on public gatherings—namely ones where

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upwards of 500 or 1,000 people may be in attendance—flows from a

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larger goal of substantially reducing in-person interactions.

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See Opp’n at 3–4.

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the means used to achieve it, do not bear a “real and

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substantial relationship” to preventing widespread transmission

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of COVID-19.

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further explained below, this Court finds that Plaintiffs have

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not shown that the State’s order is “beyond all question” a

Plaintiffs have not shown how this goal, and

See Jacobson, 197 U.S. at 30.

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Moreover, as

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“plain, palpable invasion of rights secured by [] fundamental

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law.”

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likely to succeed on their challenge to the State’s stay at home

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order as an impermissible exercise of emergency police powers.

Id. at 30.

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b.

Thus, the Court finds Plaintiffs are not

Free Speech Clause

The First Amendment, as incorporated against the states

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through the Fourteenth Amendment, states that “Congress shall

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make no law . . . abridging the freedom of speech . . . or the

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right of people peaceably to assemble.”

U.S. CONST. Amend. I;

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see also Lovell v. City of Griffin, 303 U.S. 444, 450 (1938)

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(holding that the First Amendment’s prohibitions also apply to

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state and local government rule-makers).

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afforded by the First Amendment are nowhere stronger than in

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streets and parks, both categorized for First Amendment purposes

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as traditional public fora.”

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F.3d 1029, 1035–36 (9th Cir. 2009).

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Capitol building are chief among traditional public fora.

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to California’s state government, the grounds are “especially

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important locales for communication among the citizenry” and a

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place for the citizenry to convey important messages to its

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lawmakers.

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“The protections

Berger v. City of Seattle, 569
The grounds of the State
Home

Id. at 1036.

Even so, “certain restriction on speech in the public parks

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are valid.”

Id. (internal quotation marks and citations

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omitted).

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matter censorship, but [a] content-neutral time, place, and

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manner regulation of the use of a public forum,” it may be

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permitted.

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(2002); see also Berger, 569 F.3d at 1036.

Specifically, when the restriction “is not subject-

Thomas v. Chicago Park Dist., 534 U.S. 316, 322

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And while “[t]he

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California Constitution provides protections for speakers in

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some respects broader than those provided by the First Amendment

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of the Federal Constitution,” with regard to “permissible

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restrictions on expression in public fora,” the state

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constitution adopts the federal test.

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387 F.3d 850, 856 (9th Cir. 2004) (internal quotation marks and

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citation omitted).

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standards to resolve both inquiries. See id. at 857–58.

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Kuba v. 1-A Agric. Ass’n,

Accordingly, the Court looks to federal

Plaintiffs argue the State’s order acts as an impermissible

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prior restraint on protected speech.

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while Defendants do not dispute that State’s order restricts

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speech before it occurs, they argue the temporary moratorium on

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issuing permits is nonetheless a permissible time, place, and

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manner restriction.

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See Opp’n at 8–10.

And

See Opp’n at 12–15.

The State’s order, and the resulting moratorium on permits,

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are, beyond question, content-neutral.

Pursuant to the State’s

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order, the CHP is temporarily denying all permits for any in-

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person gatherings at the State Capitol.

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¶ 10.

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are content-neutral.”

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City of Santa Monica, 784 F.3d 1286, 1295 n.5 (9th Cir. 2015).

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That the State’s order permits a limited number of persons to

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leave their homes so they may report the news and deliver

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religious services via streaming or other technology is

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inapposite.

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on all permits for in-person gatherings applies to all

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applicants.

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constitutionality of this restriction on speech at the State

See Ex. A to Opp’n

By definition, “blanket bans applicable to all speakers
Santa Monica Nativity Scenes Comm. v.

See Reply at 4–5.

The CHP’s temporary moratorium

Thus, the Court agrees with Defendants that the

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Capitol turns on whether it is a valid time, place, or manner

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restriction.

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content-neutral permit scheme regulating speech in a public

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forum need not adhere to prior restraint procedural

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requirements).

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See Thomas, 534 U.S. at 322 (finding a park’s

To be sure, a content-neutral regulation may nonetheless

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run afoul of the Constitution.

A permissible time, place, or

8

manner restriction must also: (1) be narrowly tailored to serve

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a significant governmental interest; and (2) leave open ample

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alternative channels for communication of the information.

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Berger, 569 F.3d at 1036 (citing Ward v. Rock Against Racism,

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491 U.S. 781, 791 (1989)).

13

restriction must not “burden substantially more speech than is

14

necessary” to achieve a substantial government interest.

15

491 U.S. at 799.

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alternatives is a relevant consideration in determining whether

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the fit between ends and means is reasonable.”

18

at 1041 (internal quotation marks and citation omitted). But the

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government “need not [use] the least restrictive or least

20

intrusive means” available to achieve its legitimate interests.

21

Ward, 491 U.S. at 798.

To be narrowly tailored, the

Ward,

“[T]he existence of obvious, less burdensome

Berger, 569 F.3d

22

Admittedly, a blanket ban on the issuance of CHP permits

23

for an unspecified period does not intuitively ring of narrow

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tailoring.

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crisis is necessarily wider than usual.

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this Court clearly demonstrates that in-person gatherings

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increase the spread of COVID-19.

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attempt to comply with the CDC’s recommendations.

But “narrow” in the context of a public health
The evidence before

This is true even when people

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See Watt

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Decl. ¶ 17.

2

fool-proof way to prevent the virus from spreading at in-person

3

gatherings: prohibiting in-person gatherings.

4

objective “is not to exclude communication of a particular

5

content, but to . . . prevent uses that are dangerous.”

6

534 U.S. at 322.

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people would be dangerous.

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9

The State’s stay at home order advances the only

The State’s

Thomas,

At present, gatherings of large groups of

Plaintiffs assert they could hold protests and rallies
“with no more risk than other activities” by following CDC

10

guidelines, but a close examination of the evidence before this

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Court, including Plaintiffs’ permit applications, belies this

12

claim.

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1,000 people in attendance at his protest.

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Meanwhile, Plaintiff Bish expects 500 people in attendance and

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plans to play music, hire food trucks, distribute handouts,

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offer food and water, and set up balloons, chairs, tables, and

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tents.

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Plaintiffs can confidently say they “have never contracted

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COVID-19” and could prevent anyone who has from attending their

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gatherings.

21

ECF No. 5–3; TRO at 15.

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record demonstrates that these gatherings put Plaintiffs and

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others at significantly higher risk than many other prohibited

24

activities. Watt Decl. ¶¶ 15-18.

25

Exs. A–B to Lyons Decl., ECF No. 12.

Ex. A to Lyons Decl.

Givens expects

Ex. B to Lyons Decl.

Further, it is unclear how

Givens Decl. ¶ 14, ECF No. 5–2; Bish Decl. ¶ 10,
Contrary to Plaintiffs’ contention, the

Defendants have conceded that Plaintiffs may plan in-car

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protests, “filling streets and honking horns as other groups

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have done during the COVID-19 pandemic.”

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the State’s order explicitly allows this means of protest does
14

Opp’n at 14.

Whether

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not impact the Court’s determination on the sufficiency of its

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tailoring.

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facially and as applied, to the extent that it prevents them

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from hosting in-person gatherings at the State Capitol.

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at 1–2.

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protests, that is not the basis upon which Plaintiffs allege the

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order is unconstitutional as applied to them.

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in-car protests render the order facially invalid.

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on a facial challenge, a plaintiff must show there is “no set of

Plaintiffs challenge the stay at home order,

See TRO

So, even if the State’s order prohibits in-car

Nor does a ban on
To succeed

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circumstances” under which the law could be constitutionally

11

applied.

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Plaintiffs have not met that burden.

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and manner restriction must be narrowly tailored, it does not

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require the “least restrictive means” possible.”

15

at 798.

16

United States v. Salerno, 481 U.S. 739, 745 (1987).
Although a time, place,

Ward, 491 U.S.

The California Department of Public Health has determined

17

that, to slow the rate of COVID-19 infections, gatherings—

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especially of the scale Plaintiffs propose—should temporarily

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cease.

20

Prevention of COVID-19 Transmission for Gatherings, March 16,

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2020.

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would ensure comparable levels of safety.

23

based alternative, the Court lacks any basis to enjoin the

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State’s informed emergency response.

25

finds the State’s prohibition on large gatherings and temporary

26

moratorium on CHP permits are narrowly tailored to serve, at

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minimum, a significant governmental interest.

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1979970 at *6 (holding that preventing the spread of COVID-19 is

See Cal. Dep’t of Pub. Health, Guidance for the

Plaintiffs have not proposed a more tailored option that

15

Absent an evidence-

Accordingly, the Court

See Gish, WL

1
2

in fact a compelling state interest).
Finally, a temporary moratorium on the issuance of CHP

3

permits does not foreclose all channels of communication.

4

Defendants argue, “Plaintiffs remain free to use online and

5

other electronic media to stage their rallies and make their

6

protests.”

7

audience is presently at home, this may be a more effective way

8

of communicating their messages.

9

Defendants concede that Plaintiffs may plan in-car protests

10
11

Opp’n at 13.

As

Indeed, given much of their intended

without fear of reprisal.

Further, as mentioned above,

Opp’n at 14.

Considering the persistent threat of COVID-19, the Court

12

finds the State’s stay at home order, and the resulting

13

moratorium on CHP permits, are content-neutral time, place, and

14

manner regulations designed to slow its spread.

15

therefore unlikely to succeed on the merits of their free speech

16

claim.

17
18

c.

Plaintiffs are

Freedom of Assembly Clause

The First Amendment guarantees that “Congress shall make no

19

law . . . abridging . . . the right of the people to peaceably

20

assemble.”

21

be denied without violating those fundamental principles which

22

lie at the base of all civil and political institutions.”

23

Jonge v. Oregon, 299 U.S. 353, 364 (1937) (internal citation

24

omitted).

25

certain restrictions.

26

stated that constitutional rights “may at times, under the

27

pressure of great dangers” be restricted “as the safety of the

28

general public may demand.”

U.S. CONST. Amend. I.

The right to assemble, “cannot

De

However, the right to assemble is still subject to
Again, in Jacobson, the Supreme Court

197 U.S. at 29.
16

“[T]his settled

1

rule allows the state to restrict, for example, one’s right to

2

assemble.”

3

marks and citation omitted).

4

Legacy Church, WL 1905586 at *25 (internal quotation

Today, the freedom of association has largely subsumed the

5

freedom of assembly.

See Roberts v. U.S. Jaycees, 468 U.S. 609,

6

618.

7

First Amendment must demonstrate that they are asserting their

8

right to associate “for the purpose of engaging in those

9

activities protected by the First Amendment—speech, assembly,

Parties bringing an expressive-association claim under the

10

petition for the redress of grievances, and the exercise of

11

religion.”

12

absolute right and can be infringed upon if that infringement

13

is: (1) unrelated to the suppression of expressive association;

14

(2) due to a compelling government interest; and (3) narrowly

15

tailored.

Id.

The right to expressive association is not an

Id. at 623.

16

For the reasons discussed above, the State’s stay at home

17

order and the CHP’s temporary moratorium on permits are wholly

18

unrelated to the suppression of expressive association.

19

flow from the State’s interest in slowing the spread of COVID-

20

19.

21

expressive association.

22

protecting California’s residents from “[a] global pandemic and

23

its local outbreak amount to a compelling state interest.”

24

Legacy Church, WL 1905586 at *40.

25

Both

The State’s order seeks to suppress the virus, not
And, as is now well-established,

Finally, just as the State’s order does not prohibit

26

substantially more speech than necessary to protect public

27

health, it also does not prohibit substantially more expressive

28

association than is necessary to advance this same objective.
17

1

Plaintiffs are unlikely to succeed on the merits of their

2

freedom of assembly claim.

3

d.

4

Petition Clause

The First Amendment protects “the right of the

5

people . . . to petition the Government for redress of

6

grievances.”

7

Pa. v. Guarnieri, 564 U.S. 379, 382 (2011).

8

speech and petition share substantial common ground.

9

388.

U.S. CONST. Amend. I; see also Borough of Duryea,
The rights of

They are thought of as “cognate rights.”

Id. at

Thomas v.

10

Collins, 323 U.S. 516, 530 (1945).

Nonetheless, there are

11

subtle differences between the two.

12

allows citizens to express their ideas, hopes, and concerns to

13

their government and their elected representatives, whereas the

14

right to speak fosters the public exchange of ideas that is

15

integral to deliberative democracy as well as to the whole realm

16

of ideas and human affairs.”

17

388.

18

petition is generally concerned with expression directed to the

19

government seeking redress of a grievance.”

“The right to petition

Borough of Duryea, 564 U.S. at

While both advance personal expression, “the right to

Id.

20

Defendants argue that Plaintiffs have not raised any

21

concerns in connection with their petition claim distinct from

22

those that are addressed by their freedom of speech and assembly

23

claims.

24

allows Plaintiffs to air a grievance to the government.

25

question then becomes: what grievances do Plaintiffs hope to

26

air?

27

delays in firearm background checks.

28

Lyons Decl.

Opp’n at 16.

The Court agrees.

The right to petition
The

At first blush, it seems Givens seeks to protest the
See Compl. ¶ 2; Ex. B to

And Bish seeks to promote herself as a candidate
18

1

while protesting the State’s stay at home order.

2

¶ 2; Ex. A to Lyons Decl.

3

Plaintiffs’ overriding grievance is their inability to host in-

4

person gatherings under the State’s order and the CHP’s

5

temporary moratorium.

6

See Compl.

But upon closer inspection,

Plaintiffs’ right to petition claim specifically states:

7

“The Orders and Defendants’ enforcement thereof violate the

8

Petition Clause of the First Amendment . . . . ”

9

Meanwhile, in their reply, Plaintiffs’ only rebuttal is that,

10

“[j]ust as the Orders impermissibly limit free speech and the

11

right to peaceably assemble, they also impermissibly limit

12

Plaintiffs’ right to petition.”

13

Plaintiffs suggest that the grievances they seek to air to the

14

government are anything but their present inability to gather in

15

person at the State Capitol.

16

presume there is always an essential equivalence in the two

17

Clauses or that Speech Clause precedents necessarily and in

18

every case resolve Petition Clause claims[,]” “[i]nterpretation

19

of the Petition Clause must be guided by the objectives and

20

aspirations that underlie the right.”

21

U.S. at 388 (emphasis added).

22

Reply at 10.

Compl. ¶ 68.

Nowhere do

And, while courts “should not

Borough of Duryea, 564

Plaintiffs’ goal is to regain the ability to speak and

23

assemble on the grounds of the State Capitol.

As a result,

24

their Petition Clause claim is inextricably intertwined with

25

their Speech Clause and Assembly Clause claims.

26

analysis for each of those claims therefore necessarily applies

27

here.

28

similarly unlikely to succeed on the merits.

The Court’s

It follows that Plaintiffs’ right to petition claim is

19

1
2

e.

Due Process Clause

“It is a basic principle of due process that an enactment

3

is void for vagueness if its prohibitions are not clearly

4

defined.”

5

(1972).

6

Process Clause of the Fourteenth Amendment to the United States

7

Constitution because it is “vague as to what precisely is being

8

ordered, and what actions may result in criminal penalties,

9

fines, imprisonment.”

Grayned v. City of Rockford, 408 U.S. 104, 108

Plaintiffs allege the State’s order violates the Due

Compl. ¶ 77.

However, “[c]ondemned to

10

the use of words, we can never expect mathematical certainty

11

from our language.”

12

point on it: perfect clarity and precise guidance have never

13

been required even of regulations that restrict expressive

14

activity.”

15

2019) (internal quotation marks and citations omitted).

16

Grayned, 408 U.S. at 110.

“To put a finer

Edge v. City of Everett, 929 F.3d 657, 664 (9th Cir.

Accordingly, the vagueness doctrine implicates two related

17

requirements.

“First, laws must give the person of ordinary

18

intelligence a reasonable opportunity to know what is

19

prohibited, so that he may act accordingly.”

20

quotation marks and citation omitted).

21

required here is “fair notice of the conduct a statute

22

proscribes.”

23

omitted).

24

“an even greater degree of specificity and clarity of laws is

25

required.”

26

Cir. 1986) (internal citation omitted).

27

“whether language is sufficiently murky that speakers will be

28

compelled to steer too far clear of any forbidden areas.”

Id. (internal

Typically, all that is

Id. (internal quotation marks and citation

But when First Amendment freedoms are in the balance,

Kev, Inc. v. Kitspa Cty., 793 F.2d 1053, 1057 (9th

20

Courts must instead ask

Edge,

1

929 F.3d at 664 (internal quotation marks and citation omitted).

2

The second requirement “aims to avoid arbitrary and

3

discriminatory enforcement and demands that laws provide

4

explicit standards for those who apply them.”

5

(internal quotation marks and citation omitted).

6

Id. at 665

Plaintiffs’ argument focuses on the use of the word “heed”

7

in the State’s order.

See TRO at 13.

8

because the State’s order instructs the public merely to “heed”

9

to public health directives, “it does not appear to order

10

compliance therewith.”

11

current State public health directives” might be understood as a

12

recommendation, the remainder of the State’s order, and the

13

incorporated health directives, are unambiguous.

14

and as part of, the request to heed to public health directives,

15

Governor Newsom, bolded and uppercase, states, “IT IS HEREBY

16

ORDERED . . . .”

17

request to heed follows immediately thereafter.

18

“heed,” “ordered” is unquestionably mandatory.

19

Id.

Plaintiffs argue that,

While the request to “heed the

Just before,

See Ex. A to Compl. ¶ 1 (emphasis added).
Id.

The

Unlike

Next, the State’s order incorporates the “Order of the

20

State Public Health Officer.”

21

Public Health Officer and Director of the California Department

22

of public health “order[s] all individuals living in the State

23

of California to stay home or at their place of residence except

24

as needed to maintain continuity of operations of the federal

25

critical infrastructures.”

26

the language of the State’s order, the Court is not persuaded

27

that Plaintiffs might realistically interpret it as permitting

28

groups of 500 to 1,000 to meet, in person, for any purpose other

Id.

Id.

Within that order, the State

Thus, looking exclusively at

21

1

than those defined as “needed to maintain continuity of

2

operations of federal critical infrastructure.”

3

Even considering the greater degree of clarity required

4

when First Amendment freedoms are involved, the language is not

5

so vague as to compel Plaintiffs’ “to steer too far clear of any

6

forbidden areas.”

7

therefore unlikely to succeed on the merits.

8
9

f.

Edge, 929 F.3d at 664.

This claim is

Right to Liberty

Finally, Plaintiffs contend that the State’s stay at home

10

order violates their right to liberty under Article I, Section 1

11

of the California Constitution.

12

to the principle that, in California, public health officials

13

seeking to place an individual in quarantine must have

14

“‘reasonable ground[s] [] to support the belief’ that the person

15

so held is infected.”

16

(1948) (citing Ex Parte Arata, 52 Cal. App. 380, 385 (1921)).

17

Plaintiffs cite Jew Ho v. Williamson, 103 F.10 (C.C.D. Cal.

18

1900), wherein the court found that sealing off an entire

19

section of San Francisco to prevent the spread of the bubonic

20

plague was “unreasonable, unjust, and oppressive.”

21

In so arguing, Plaintiffs cite

Ex Parte Martin, 83 Cal. App. 2d 164, 167

Id. at 26.

Both cases relied upon by Plaintiffs are easily

22

distinguishable and of little precedential value to this Court.

23

Ex Parte Martin involved the quarantine of two individuals in

24

jail after passing through a place of prostitution, and Jew Ho

25

involved a racially-motivated and scientifically-unfounded

26

quarantine of San Francisco’s Chinatown.

27

83 Cal. App. 2d at 166; Jew Ho, 103 F.10 at 23, 26.

28

are clearly inapposite.
22

See Ex Parte Martin,
These cases

1

The Court agrees with Defendants that, requiring public

2

health officials in the current pandemic to “identify specific

3

individuals who carry the virus and order only them to stay home

4

would not be feasible.”

5

more aggressive testing and contact-tracing, neither of which

6

the State, at present, has the capacity to do.

7

current public health crisis differs toto coelo from San

8

Francisco’s discriminatory quarantine of Chinatown.

9

Plaintiffs fails to support this claim in any meaningful way, it

10

Opp’n at 17.

That would require far

Moreover, the

Because

is unlikely to succeed on the merits.

11

2.

12

Remaining Factors

A district court may not grant a plaintiff’s motion for a

13

temporary restraining order if the request fails to show the

14

plaintiff is likely to succeed on the merits of a claim or, at

15

least, raises serious questions going to the merits of that

16

claim.

17

632 F.3d at 1135.

18

The Court need not consider the remaining factors in denying

19

their request.

20

See Winter, 555 U.S. at 20; Alliance for Wild Rockies,
Plaintiffs here did not make either showing.

Gish, WL 1979970, at *7.

The Court is well aware that the State’s stay at home order

21

being challenged by these Plaintiffs is burdensome, and even

22

devastating, to many.

23

toll.

24

asked to make to protect the state’s most vulnerable flow from a

25

constitutional executive order.

26

the challenge posed by that order is a true measure of our

27

humanity.

28

///

This pandemic has undoubtedly taken its

But the sacrifices all California residents are being

And our willingness to rise to

23

1

III. ORDER

2

For the reasons set forth above, the Court DENIES

3

Plaintiffs’ Application for a Temporary Restraining Order.

4
5

IT IS SO ORDERED.
Dated: May 8,2020

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