US judge unlikely to block governor’s ban on Capitol protests

A federal judge in Sacramento said Thursday he is inclined to block the governor's ban on protests on state property and that those who violate the order risk criminal prosecution.

U.S. District Judge John A. Mendez also repeatedly urged the parties to work out a settlement on their own in Givens v. Newsom, 2:20-cv-00852-JAM-CKD (E.D. Cal., filed April 27, 2020).

Attorneys debated for well over an hour before Mendez ordered a break. But the California Department of Justice's team, lead by Deputy Attorney General Amie L. Medley, barely spoke during much of the hearing.

Instead, Mendez repeatedly peppered plaintiffs' counsel with questions, including about what a safe protest might look like in the coronavirus era. When he returned after 20 minutes, he said he would soon issue a written order. But he also confirmed the old adage that the side that gets the questions is likely to lose that round.

"I don't think it will come as much of a surprise to the plaintiffs that in all likelihood I'm going to deny a motion for a restraining order under the facts and circumstances of this specific case," Mendez said.

The judge went on to praise both sides for filing well-reasoned briefs and emphasized the litigation is still in a "very, very early" phase. But he also noted events outside the court, specifically the several dozen people gathered at the Capitol just a few blocks away to protest the ban and Gov. Gavin Newsom's other stay-at-home orders. This event was far smaller than the hundreds who gathered in defiance of the ban last week.

"I'm well aware that there may be demonstrations in violation of the current order. ... They do run the risk of criminal prosecution," Mendez said.

References to other court cases also permeated the proceedings, in particular over Newsom's ban in in-person religious gatherings. At the heart of these debates appeared to be a disagreement on whether protests and religious services should be considered essential, like trips to the grocery store or news reporters out working on stories.

"We're not just talking about the right to speech, but of the rights of individuals to receive that message, especially in a time of really fundamental changes that are going on, " plaintiffs' attorney D. Gill Sperlein argued. "At those times, it's more precious than ever that citizens be granted the right to challenge the government."

Mendez later engaged in a back and forth with Sperlein and another plaintiffs' counsel, Harmeet K. Dhillon, over what options the state has and what a safe protest might look like. They replied that alternatives like protesting from cars or on Zoom cannot really be compared to the right to hold an in-person protest.

But Mendez replied this was not the same as proving protests were safe or essential.

"You can't compare what your clients want to a group of reporters, to people shopping. ... You have to compare what your clients want to sporting events, concerts," Mendez said.

The judge went on to note the insidious nature of the virus, which is easily spread by people who lack symptoms. At one point he asked if protest participants would be willing to quarantine themselves for two weeks afterward, a condition which everyone appeared to agree was untenable.