US judge rejects request to overturn state ban on Capitol protests

Plaintiffs challenging Gov. Gavin Newsom's orders designed to fight the coronavirus have faced a key difficulty: Those orders keep changing.

This was evident Tuesday a when U.S. District Judge John A. Mendez began a telephonic hearing on dueling motions in a case seeking to overturn a state ban on protesting on state property.

"Is anything going on today that I need to know, since they seem to change on a daily basis?" Mendez asked the parties. "Has the governor issued any more proclamations?"

The hearing concerned a motion for reconsideration brought by the plaintiffs and a motion to dismiss by attorneys from the state. Mendez chided both sides at times, but ultimately granted partial relief to the state, and encouraged the plaintiffs to appeal.

Citing the 11th Amendment, he dismissed claims under the California Constitution brought by the plaintiffs. But he allowed First and 14th Amendment claims to go forward in Givens v. Newsom, 2:20-cv-00852-JAM-CKD (E.D. Cal., filed April 27, 2020).

The California Highway Patrol rescinded the protest ban a month ago. Attorneys with the California Department of Justice then filed a motion seeking to stop reconsideration of Mendez's order declining to enjoin the policy, declaring the matter moot. But the plaintiffs filed a statement with the court stating they wanted to go forward with the hearing because the policy could be reinstated at any time.

Deputy Attorney General Amie L. Medley began by noting there are no current restrictions on the kinds of outdoor protests at the State Capitol the plaintiffs stated they wanted to hold. A CHP calendaring website showed three outdoor Capitol events over the next week, a fraction of the usual number, but stated events could be scheduled if physical distancing measures are followed.

Mendez then asked plaintiffs' attorney Gregory R. Michael if his clients had taken advantage of the change to hold their rallies. Michael, an associate with Dhillon Law Group Inc. in San Francisco, said no, adding the case still raised issues of "chilled speech."

"I don't understand, because there's no chill on their speech right now," Mendez said. "They can go get a permit."

Michael replied his clients are also challenging Newsom's March 19 Executive Order N-33-20, the stay-at-home order allowing the permit ban. Newsom's order remains in effect after Mendez rejected a temporary restraining order in May, and allows the state to discriminate against some viewpoints, Michael said.

"Since the court's May 8 order, the defendants have revealed their ability and willingness to engage in content-based discrimination, expressly by encouraging Black Lives Matter protests while those protests were in plain violation of the orders they enforced against the plaintiffs," Michael said.

Mendez replied the protests in the wake of the death of George Floyd while in Minneapolis police custody prior to lifting the ban aren't relevant. None of them had permits but were "simply allowed to go on," Mendez replied, rather than police opting to forcibly remove "thousands of people."

The judge went on to say the plaintiffs failed to show "a content-based restriction." He issued a ruling from the bench stating he would not reconsider the case and would instead let the 9th U.S. Circuit Court of Appeals take up a May 18 petition by the plaintiffs.

Mendez also rejected Michael's contention the court lacked the jurisdiction to dismiss state law claims while the case is on appeal because "11th Amendment immunity is not part of your appeal." But he added that decision could also be appealed.

"I think for the most part the 9th Circuit is going to have the focus of your attention from this point forward," Mendez said.