A panel of the U.S. Ninth Circuit Court of Appeals in Pasadena on Tuesday will hear a First and 14th Amendment case stemming from actions taken by Gov. Gavin Newsom to stop the spread of the coronavirus.
The appeal in Ron Givens v. Gavin Newsom is the result of a lower court’s denial of injunctive relief in an action alleging that Newsom’s stay-at-home order, enacted to slow the spread of COVID-19, violated Givens’ First Amendment and Due Process rights.
Givens and Christine Bish sued Newsom, California Attorney General Xavier Becerra, and two other state officials for depriving plaintiffs of their First and 14th Amendment rights.
“In times of crisis, governments often seek to curtail fundamental constitutional rights such as the right to assemble and petition the government. It is precisely at these times that those rights become the most important,” said D.Gill Sperlein, a lead attorney for the plaintiffs.
The First Amendment guarantees free speech, including the right to peacefully protest.
The 14th Amendment to the U.S. Constitution, ratified in 1868, granted citizenship to all persons born or naturalized in the United States — including former slaves— and guaranteed all citizens due process and “equal protection of the laws.”
According to the lawsuit, under Newsom’s order mandating all residents to “heed current state public health directives,” requiring people to stay at home, neither the governor’s order nor state public health directives exempt demonstrations, protests, or other First Amendment-protected activities from enforcement.
Givens also protests the state’s failure to process background checks for those purchasing firearms, as well as employment background checks for gun stores, which he claims deprives Californians of their Second Amendment rights.
Bish intends to protest the extent and duration of the state’s shelter-in-place order.
According to the pair’s lawyers, the governor has specifically ordered the California Highway Patrol to deny protest and rally permits at the State Capitol, a core First Amendment speech venue. The governor’s orders thus deny all California residents the right to exercise their First Amendment rights to free speech, free assembly, and petition the government.
In June, the U.S. Department of Justice invoked protests over the killing of George Floyd to argue in court that California’s restrictions on in-person protests related to the coronavirus pandemic should be invalidated.
The DOJ’s argument is contained in an amicus brief that was filed in the U.S. Court of Appeals for the Ninth Circuit. The document was submitted to support Givens and Bish, who were denied permits to stage protests against Newsom’s COVID-19 executive orders.
The plaintiffs are also seeking a temporary restraining order and a preliminary injunction.
Both Givens and Bish intend to hold their protests outside, on state Capitol grounds, in a safe and socially-distant manner. The California Highway Patrol denied plaintiffs’ respective applications to use state Capitol grounds for their planned demonstrations depriving them of their First and 14th Amendment rights, Givens and Bish argue.
“At a time when Californians are rightfully questioning the duration and extent of the stay at home orders, which are unevenly enforced and which have resulted in other constitutional challenges, Governor Newsom has reacted to citizen protests not by addressing widespread concern, but simply by shutting down protest at the Capitol altogether, making no reasonable accommodations for this fundamental function in a free society,” said Harmeet K. Dhillon, chief executive officer of the Center for American Liberty. Dhillon’s law firm, Dhillon Law Group Inc., represents the plaintiffs.
“Our lawsuit seeks to vindicate several core First Amendment rights — the right to free speech, to assemble, and to petition the government. The government is also violating fundamental equal protection and due process rights,” Dhillon said.
“We will be seeking a temporary restraining order in federal court ordering that our clients and other citizens be permitted to protest safely and peacefully again, as is their right under both the California and U.S. Constitutions,” he said.