S. Bay United Pentecostal Church v. Newsom

494 F.Supp.3d 785

SOUTH BAY UNITED PENTECOSTAL CHURCH, et al., Plaintiffs,

v.Gavin NEWSOM, in his official capacity as the Governor of California, et al., Defendants.

Case No. 20-cv-00865-BAS-AHG

United States District Court, S.D. California.

Signed October 14, 2020

Filed October 15, 2020

Charles S. LiMandri, Milan Louis Brandon, II, LiMandri & Jonna LLP, Jeffrey M. Trissell, Freedom of Conscience Defense Fund, Paul Michael Jonna, Law Offices of Charles S. LiMandri, APC, Rancho Santa Fe, CA, Harmeet K. Dhillon, Dhillon & Smith LLP, Mark Philip Meuser, Dhillon Law Group, Inc., San Francisco, CA, for Plaintiffs.

Attorney General, State of California Office of the Attorney General, San Diego, CA, Lisa J. Plank, California Attorney General, San Francisco, CA, Todd Grabarsky, California Attorney General's Office, Los Angeles, CA, for Defendants Gavin Newsom, Xavier Becerra, Sonia Angell.

Timothy M. White, Office of County Counsel, San Diego, CA, for Defendants Wilma J. Wooten, Helen Robbins-Meyer, William D. Gore.

ORDER DENYING PLAINTIFFS’ RENEWED MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION (ECF No. 53)

Cynthia Bashant, United States District Judge

I. INTRODUCTION

This case arises from the State of California's efforts to limit the spread of the novel severe acute respiratory syndrome-related coronavirus (SARS-CoV-2) that has upended society. The illness caused by the virus, coronavirus disease 2019 (COVID-19), has killed more than ten thousand people in California and sickened many more. There is no known cure, widely available effective treatment, or approved vaccine for the disease. And because people infected with the virus may be asymptomatic, they may unintentionally infect others around them. Therefore, physical distancing that limits physical contact is essential to slow the spread of the virus.

To ensure physical distancing, the Governor of California has issued a series of restrictions on public gatherings. This case centers on the restrictions for in-person, indoor religious worship services. Plaintiffs South Bay United Pentecostal Church and Bishop Arthur Hodges III allege these restrictions violate their constitutional rights by limiting their ability to freely exercise their religion.

An earlier version of California's restrictions prohibited Plaintiffs from holding any in-person worship services. In May 2020, Plaintiffs asked the Court to enjoin those restrictions while this case proceeded. After the Court denied Plaintiffs’ request for extraordinary relief, they appealed to the Court of Appeals for the Ninth Circuit and concurrently requested an emergency injunction, which was denied. Plaintiffs next asked the Supreme Court for emergency relief, but it, too, denied their request. Plaintiffs later requested that their appeal be sent back to this Court to allow the Court to reconsider whether California's restrictions should be enjoined in light of new developments. The Ninth Circuit granted their request.

Now before the Court is Plaintiffs’ renewed motion for a temporary restraining order or preliminary injunction. In San Diego County, California's restrictions currently limit Plaintiffs’ indoor worship services to 25% of building capacity or 100 people, whichever is fewer. The restrictions also forbid group singing and chanting indoors. Thus, the challenged restrictions are more nuanced and lenient than the rules the Court previously considered in May. Plaintiffs now argue, however, that California's "scientific pronouncements" are "largely baseless," and that by "all reasonable scientific measurements," the COVID-19 health emergency "has ended." (ECF No. 61 at 1:12–15.) They also argue the State's restrictions treat certain secular businesses more favorably than religious organizations and have been enforced in a discriminatory manner. Consequently, Plaintiffs argue the restrictions regarding indoor worship services and singing are unconstitutional and should be enjoined before trial.

California paints a different picture of the current circumstances. It stresses the crisis is ongoing and filled with uncertainty. California highlights that COVID-19 infections and deaths surged after the Court considered Plaintiffs’ first request to enjoin the State's rules. And although Plaintiffs’ renewed motion cites that "[a]s of July 14, 2020, California ha[s] only reported a total of 7,227 deaths from COVID-19," the State points out that this count had swelled to 12,407 as of August 31, 2020. (State's Opp'n 9:18–21, ECF No. 57; see also Renewed Mot. 1:24–25, ECF No. 53-1.) California argues "these numbers are enormous, far greater than the number of people killed in the 9/11 terrorist attacks and those who lost their lives in Hurricane Katrina." (State's Opp'n 9:21–23.) The State also claims Plaintiffs "ignore the reason for why the State has been able to slow the spread of the disease: the imposition of the very types of public health restrictions that Plaintiffs ask the Court to enjoin." (Id. 10:14–17.) "Enjoining restrictions because they have proven effective in curbing COVID-19 would be ‘like throwing away your umbrella in a rainstorm because you are not getting wet,’ " the State argues. (Id. 10:26–28 (citing Shelby Cty. v. Holder , 570 U.S. 529, 590, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) (Ginsburg, J., dissenting)).) Therefore, both California and the County of San Diego urge the Court to again refuse Plaintiffs’ request for extraordinary relief.

Ultimately, the Court concludes Plaintiffs have not met their burden to demonstrate they are entitled to a preliminary injunction—"an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Therefore, for the following reasons, the Court DENIES Plaintiffs’ renewed motion for a temporary restraining order or preliminary injunction.

II. BACKGROUND

A. SARS-CoV-2

Transmission. Although much remains uncertain about the novel coronavirus, "there is consensus among epidemiologists that the most common mode of transmission of SARS-CoV-2 is from person to person, through respiratory droplets such as those that are produced when an infected person coughs or sneezes, or projects his or her voice through speaking, singing and other vocalization." (Dr. Watt Decl. ¶ 27, ECF No. 57-2¹ ; accord Dr. Rutherford Decl. ¶ 28, ECF No. 57-3.² ) The virus can also "live on certain surfaces for a period of time, suggesting that fomite transmission (through touching a surface where the live virus is present) is possible," but this method of transmission "is not believed to be a common method by which individuals can be infected by the virus." (Dr. Watt Decl. ¶ 29; see also Dr. Rutherford Decl. ¶ 30.) There is also "broad consensus that people who are not experiencing symptoms can still spread SARS-CoV-2." (Watt Decl. ¶ 30; see also id. ¶ 31; Dr. Rutherford Decl. ¶¶ 20–32.) "Therefore, individuals who themselves may have been unknowingly infected by others can themselves become unknowing transmitters of the virus." (Dr. Watt Decl. ¶ 32; accord Dr. Rutherford Decl. ¶ 27.)

Gatherings. Group gatherings increase the risk of transmission of the virus. (Dr. Watt Decl. ¶¶ 37–43; see also Dr. Rutherford Decl. ¶¶ 47–52.) "The more people that gather, the higher the likelihood that an infected person will be present. Also, the larger the gathering, the higher the number of people who may be secondarily infected by that infected person." (Dr. Watt Decl. ¶ 42; see also Dr. Rutherford Decl. ¶ 47.) "Evidence indicates the risk of transmission at a gathering increases when individuals are in close proximity to one another for an extended period." (Dr. Watt Decl. ¶ 43.) The transmission risk also "increases with both the length of time the gathering lasts and the proximity of people to each other at the gathering." (Id. )

Indoor Gatherings and Singing. Although gatherings increase the risk of transmission of the virus, this risk "is much higher when the gathering takes place indoors rather than outdoors." (Dr. Watt Decl. ¶ 43; Dr. Rutherford Decl. ¶ 50 ("There is a lower risk of COVID-19 transmission when a group gathering takes place outdoors; there is a much decreased likelihood of aerosolized transmission of the virus outdoors because aerosolized particles will dissipate into the atmosphere.").) There is also "scientific consensus that vocalization, even normal speech, produces aerosols, and that louder and more forceful expression such as singing and chanting produces more aerosols." (Dr. Watt Decl. ¶ 45.) "Most scientists believe that group singing, particularly when engaged in while in close proximity to others in an enclosed space, carries a high risk of spreading the COVID-19 virus through the emission of infected droplets (which typically travel < 6 feet) and aerosols." (Id. ; see also Dr. Rutherford Decl. ¶ 54 (explaining that engaging in "singing, chanting, shouting, and speaking loudly ... in an indoor or enclosed space" increases the risk of transmission).)

Given the foregoing, religious "services and similar cultural events, particularly those taking place in an enclosed space, involve a heightened level of risk of COVID-19 transmission." (Dr. Watt Decl. ¶ 72; accord Dr. Rutherford Decl. ¶ 57.) "The characteristics of such events that cause the increased risk of transmission include: being indoors, bringing together a large group of people, having close proximity between individuals, gathering for an extended duration, and having substantial singing and vocalizing that generally takes place at the events." (Dr. Watt Decl. ¶ 72; see also Dr. Rutherford Decl. ¶ 57 ("Based on my knowledge, experience and study of the relevant publications, attending indoor worship services (and similar cultural events, which are included in this discussion) presents an exceptionally high risk of COVID-19 transmission because they involve a combination of many high risk factors").)

COVID-19. "The virus can cause...