(CN) — An attorney for California residents who were denied permits to protest coronavirus public health orders at the state capitol told a Ninth Circuit panel Tuesday his clients’ appeal isn’t moot just because the protest ban has been lifted.
Christine Bish and Ron Givens sued Governor Gavin Newsom this past April after being separately denied permits for large protests on state Capitol grounds against the governor’s stay-at-home order, a move officials contemplated as a measure to combat the novel coronavirus pandemic.
Bish, a former Republican candidate for political office, attended an April 20 rally at the Capitol where protesters — who did not follow the state’s social distancing rules — demanded an end to public health orders.
Following that rally, the California Highway Patrol denied subsequent permit requests because any rally was prohibited under health orders. The CHP also found it could not timely process firearms background checks for attendees.
In May, U.S. District Judge John Mendez denied Givens and Bish’s request for a temporary restraining order, finding the state has expanded powers during emergencies under the 1905 U.S. Supreme Court ruling Jacobson v. Commonwealth of Massachusetts.
The state did not unfairly target protests against the health orders and was simply seeking to suppress viral spread, Mendez found.
On appeal, attorneys for Givens and Bish argued state officials shunned their attempt to shape protest policy that abided by health orders, only to later endorse mass demonstrations against police violence.
“There is no pandemic exception to the Constitution,” the plaintiffs said in their appellate brief. “State officials have criminalized public demonstrations, rallies, and protests across California, but only for those holding one point of view.”
During oral argument Tuesday, their attorney D. Gill Sperlein told the three-judge Ninth Circuit panel that although his clients could conceivably hold a rally now, their First Amendment rights remain under threat since health orders banning protests could be reissued.
“Maybe today or tomorrow that total ban could go into effect,” Sperlein said. “What period of time could be more important for citizens to address their government than in times of crisis like this?”
Givens and Bish want to hold a rally — while practicing physical distancing and with face coverings mandated — with at most 1,000 attendees. But current state restrictions cap attendance at 200 people, Sperlein said.
U.S. District Judge Jon S. Tigar, sitting on the panel by designation from the Northern District of California, asked Sperlein why the panel shouldn’t remand the case to Mendez where the issue could be addressed in a preliminary injunction hearing.
“Even if the 200-person maximum capacity was unreasonable, shouldn't it be litigated in district court first?” Tigar, a Barack Obama appointee, asked Sperlein.
Sperlein said he wants the panel to weigh in on what legal test best analyzes the conflict and that he understood Mendez’s order to say that a motion for preliminary injunction “wouldn’t be any good.”
U.S. Department of Justice attorney Alexander Maugeri argued in support of Givens and Bish and asked the panel to weigh in on the First Amendment concerns, arguing the state health orders amounted to a “startling” ban on protest.
“This statewide ban burdens substantially more speech than is necessary,” Maugeri said, adding the panel should vacate Mendez’s ruling and remand.
California Department of Justice attorney Joshua A. Klein told the panel the state’s restrictions were shorter than federal orders and that so-called protest bans were “viewpoint and content neutral.”
Klein also said the Ninth Circuit has no jurisdiction over the appeal because Givens and Bish chose not to proceed with a preliminary injunction, which would have allowed the state to fully brief its position. At the temporary restraining order stage of proceedings, the record is thinner given the need for expedited review by the court, Klein said.
“There is no statutory jurisprudence for their appeal,” Klein said, adding there’s no need for the Ninth Circuit to weigh in on First Amendment concerns at this stage.
Tigar told Klein waiting to take up an appeal until after preliminary injunction proceedings could protect the state’s “fairness interest.”
Klein said the state would not commit to barring itself from issuing future protest bans in accordance with health guidelines given the evolving nature of the pandemic.
U.S. Circuit Judge Richard A. Paez, a Bill Clinton appointee, asked Klein whether the court should vacate Mendez’s ruling.
Klein told Paez a vacatur would have no “practical effect” on the issue and that the panel should instead dismiss the appeal or affirm Mendez’s ruling.
Senior U.S. Circuit Judge Ferdinand Francis Fernandez, a George H. W. Bush appointee, rounded out the panel.
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