Geller v. Cuomo

• Decision Date: 03 August 2020
• Docket Number: 20 Civ. 4653 (ER)
• Parties: Pamela GELLER, Plaintiff, v. Andrew CUOMO, in his official capacity as Governor of the State of New York, Bill de Blasio, individual and in his official capacity as Mayor, City of New York, New York, and Dermot Shea, individually and in his official capacity as the Police Commissioner, City of New York, New York, Defendants.
• Court: U.S. District Court — Southern District of New York

476 F.Supp.3d 1

Pamela GELLER, Plaintiff,

v.Andrew CUOMO, in his official capacity as Governor of the State of New York, Bill de Blasio, individual and in his official capacity as Mayor, City of New York, New York, and Dermot Shea, individually and in his official capacity as the Police Commissioner, City of New York, New York, Defendants.

20 Civ. 4653 (ER)

United States District Court, S.D. New York.

Signed August 3, 2020

Robert J. Muise, American Freedom Law Center, Ann Arbor, MI, David Eliezer Yerushalmi, American Freedom Law Center, Brooklyn, NY, for Plaintiff.

Andrew Stuart Amer, James Martin Thompson, New York State Office of the Attorney General, New York, NY, for Defendant Governor Andrew Cuomo.

Aimee Kara Lulich, Glenne Ellen Fucci, New York City Law Department, New York, NY, for Defendants Bill de Blasio, Mayor Bill de Blasio, Dermot Shea, Commissioner Dermot Shea.

OPINION AND ORDER

Ramos, D.J.:

Facing an unprecedented global pandemic and a dangerously surging number of COVID-19¹ cases, Andrew Cuomo, Governor of the State of New York, issued Executive Order No. 202.10 on March 23, 2020, that, in relevant part, banned all non-essential gatherings of individuals of any size for any reason. That original Executive Order was subsequently amended on two occasions, so that as of the date of this order, non-essential gatherings of up to 50 people are permitted in all regions of New York State. On June 17, 2020, Pamela Geller brought this action under the First and Fourteenth Amendments against the Governor, New York City Mayor Bill de Blasio, and New York Police Department Commissioner Dermot Shea (with Mayor de Blasio, the "City"), challenging the restrictions on non-essential gatherings as a violation of her constitutional right to engage in public protest. Now before the Court is Geller's motion for a preliminary injunction enjoining Defendants from enforcing the restrictions on non-essential gatherings so that she can organize a protest of between 25 to 100 people. For the reasons set forth below, Geller's motion is DENIED.

I. Background

A. The COVID-19 Executive Orders

On March 1, 2020, New York State recorded its first case of COVID-19 in New York City. On March 7, 2020, the Governor declared a State of Emergency. At the time, 60 people had tested positive in New York. By March 20, 2020, that number approached 10,000, with over 150 deaths.² On March 20, the Governor announced the New York State on PAUSE initiative, which very generally speaking, closed all non-essential private businesses and governmental activities. This initiative included, as relevant to this case, Executive Orders aimed at restricting non-essential outdoor gatherings.

On March 23, the Governor issued Executive Order No. 202.10 which, in relevant part, banned non-essential gatherings of individuals of any size for any reason. That restriction remained in place until May 21.

On May 21, the Governor issued Executive Order No. 202.32, which modified Executive Order 202.10 to permit non-essential outdoor gatherings of ten or fewer individuals for any religious service or ceremony, or for the purposes of any Memorial Day service or commemoration. The following day, on May 22, the Governor issued Executive Order No. 202.33, which extended the loosening of the gathering restrictions to any non-essential outdoor gathering of ten or fewer individuals for any reason, provided the participants follow appropriate social distancing, cleaning and disinfection protocols.

On June 15, the Governor issued Executive Order No. 202.42, which extended Executive Order No. 202.33 until July 15, and further modified it to permit non-essential outdoor gatherings of up to 25 individuals for any reason, provided that the gathering was in a region that had reached Phase Three of the New York State's reopening plan as described below, and the participants follow appropriate social distancing protocols.

Also on June 15, the Governor issued Executive Order No. 202.45, which permits non-essential gatherings of up to 50 individuals for any reason, provided the gathering was in a region that had reached Phase Four of the re-opening plan, and the participants follow appropriate social distancing protocols.

Since the outbreak of the pandemic, New York City has followed the State's lead in imposing restrictions. See Doc. 25. On March 25, Mayor de Blasio issued an Executive Order No. 103 that provided:

In order to avoid the mass congregation of people in public places and to reduce the opportunity for the spread of COVID-19 any non-essential gathering of individuals of any size for any reason shall be cancelled or postponed.

On May 22, a New York City Police Department General Administration Information memorandum that was issued to all police commanders (the "Enforcement Guidance"), in relevant part, provided:

As of Today, gatherings involving a maximum of 10 people are permissible so long as participants maintain a distance of 6 feet from each other. Examples of the types of 10-person gatherings that are now permissible are religious services, social gatherings, weddings and protests ... If a [member of service] ("MOS") observes a gathering of more than 10 people, MOS should remind the participants that large gatherings are not permitted and order the group to disperse. If the large gathering is egregious and poses a danger to public health, MOS should call for a supervisor to respond to the scene. Enforcement should only be taken as a last resort if the group refuses to comply with an order to disperse from a large dangerous gathering.

See Doc. 28, Ex. E. The City's Executive Order No. 129, issued on July 2, 2020, specifically incorporates "all relevant provisions of Governor Executive Order No. 202 and subsequent orders issued by the Governor."³ Doc. 25 ¶ 6.

The regulations put in place by the City and State have proven to be largely successful. Since April 9, 2020, the number of positive tests per day in New York has declined steadily. On June 29, for example, 46,428 people were tested and only 319 tested positive—a positivity rate below 0.7 percent. See Doc. 27, Ex. W. Due to the success New York State has had in flattening the curve,⁴ the Governor transitioned from the New York State on PAUSE initiative to a re-opening plan that established four "phases" to guide non-essential businesses and offices on how to reopen, with Phase One having the most restrictions on the size of outdoor gatherings and indoor occupancy rates, and Phase Four having the least. See https//forward.ny.gov/ny-forward.

B. The Prior Case

This is Geller's second lawsuit in this Court challenging the COVID-19 restrictions on non-essential gatherings. Geller, a self-described "Champion of the First Amendment," is the president of a non-profit organization named American Freedom Defense Initiative, a published author, a conservative blogger, and a political activist who has successfully organized several political protests in New York City in the past. Compl., Doc. 1, ¶ 10. She has 1,289,034 followers on Facebook,⁵ over 200,000 followers on Twitter,⁶ 108,000 followers on Instagram,⁷ and 28,900 followers on YouTube.^{8 ,9}

On May 7, 2020, Geller filed her first lawsuit against the City, arguing that the City's Executive Order No. 103 banning all non-essential gatherings of any size for any reason violated her First Amendment right to freedom of speech. Geller v. de Blasio ("Geller I "), ––– F. Supp. 3d ––––, 2020 WL 2520711 (S.D.N.Y. May 18, 2020).

Prior to May 4, 2020, Geller allegedly had planned for and begun to organize a public protest of the City's gathering restrictions. Compl., Doc. 1 ¶ 56. The protest was to include between 25 and 100 people standing silently on the public streets of New York City, including the public sidewalks around City Hall plaza, with face coverings, observing social distancing protocols, and holding signs conveying their protest message. Id. However, Geller purportedly canceled her planned protest after a press conference held on May 4 by City Officials ("the May 4 Press Conference") where Mayor de Blasio provided a status report on the impact of the pandemic on the City. Geller I , ––– F.Supp.3d at ––––, 2020 WL 2520711 at *1. After reporting that substantial challenges remained despite progress in combatting the virus, Mayor de Blasio explained that summonses would be issued to people in any substantial gathering. Id. In response to a reporter's question¹⁰ as to whether the City had a "policy as to how to approach ... protests with maintaining freedom of speech, but at the same time maintaining the social distancing," Commissioner Shea explained that protests should not be "taking place in the middle of a pandemic by gathering outside and putting people at risk." Id. Mayor de Blasio followed by stating that "people who want to make their voices heard, there's plenty of ways to do it without gathering in person" and that they should "use all the other tools [they] have to get [their] point across but avoid anything that might put other people in harm's way." Id.

On May 12, Geller filed a motion for a temporary restraining order in Geller I , which Judge Cote denied on the basis that Geller was not likely to succeed on the merits of her First Amendment claim. Id. , at ––––, 2020 WL 2520711 at *2. Recognizing the "special protection" accorded to "speech on matters of public concern," and that the Government's authority to regulate expressive conduct is usually "sharply circumscribed" in traditional public forums, Judge Cote nevertheless held that this protection is not absolute, noting:

Over a century ago, the U.S. Supreme Court taught that a community has the right to protect itself against an epidemic of disease which threatens its members. In such times, judicial scrutiny is reserved for a measure that has no real or substantial relation to the object of protecting the public health, the public morals, or the public safety, or is beyond all question, a plain, palpable invasion of

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