Geller v. Hochul
| Decision Date | 24 September 2021 |
| Docket Number | 20 Civ. 4653 (ER) |
| Parties | PAMELA GELLER, Plaintiff, v. KATHY HOCHUL, in her official capacity as Governor of the State of New York, BILL de BLASIO, individually 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 |
In Spring 2020, as New York City quickly became the global epicenter of the COVID-19 pandemic, then-Governor Andrew Cuomo and Mayor Bill de Blasio issued a series of executive orders prohibiting “non-essential gatherings.”[1] Pamela Geller has brought this action under the First and Fourteenth Amendments against the Governor, de Blasio, and New York City Police Department Commissioner Dermot Shea (with Mayor de Blasio, the “City”), challenging the executive orders in place as of June 17, 2020, the date this case was filed.[2] Before the Court are the Governor's and the City's (collectively, “Defendants”) motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons discussed, Defendants' motions are GRANTED.
Well over a year after the first COVID-19 case was recorded in New York, the breadth and severity of the COVID-19 pandemic has been well-documented.[3] This case, however, arises from actions taken by City and State officials in the early months of the pandemic.
On March 1, 2020, the first case of COVID-19 was recorded in New York City.[4] On March 7, 2020, the Governor declared a State of Emergency following the report of seventy-six confirmed cases statewide.[5] By March 20, 2020, over 7, 000 confirmed infections had been reported statewide, and the Governor announced the New York State on PAUSE initiative which included the first of a series of Executive Orders (“E.O.s”) restricting non-essential gatherings as well as closing all non-essential private businesses and governmental activities.[6]
On March 23, 2020, the Governor issued E.O. 202.10, which provided that “[n]on-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) are canceled or postponed at this time.” ¶ 21.[7] The terms of this order were to remain in place for thirty days unless terminated or modified at a later date. ¶ 20. Following several short-term extensions of E.O. 202.10, the Governor issued E.O. 202.32 on May 21, 2020, which modified E.O. 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.” ¶ 25. The following day, the Governor issued E.O. 202.33, which extended the loosening of these restrictions to any non-essential outdoor gathering of ten or fewer individuals for any lawful reason. ¶ 26. On June 13, 2020, the Governor extended these restrictions to July 13, 2020, through E.O. 202.41.
On June 15, 2020 the Governor issued E.O. 202.42. This order extended E.O. 202.41 to July 15, and further modified it to permit non-essential outdoor gatherings of up to twenty-five individuals for any region that had reached Phase Three of New York State's phased reopening plan. ¶ 29. However, Geller alleges that, because New York City was in Phase One of the State's reopening plan at the time she filed her Complaint, the 10-person gathering restriction set forth in E.O. 202.41 still applied to her. ¶ 30.
Mayor de Blasio also issued several executive orders consistent with the Governor's E.O.s during this time. On March 25, 2021, he issued Executive Order 103, which provided in relevant part that “any non-essential gathering of individuals of any size for any reason shall be cancelled or postponed.” ¶ 34.
This order was subsequently extended on several occasions. On May 24, 2020, the Mayor issued E.O. 115, which incorporated the ten-person gathering restriction set forth in the Governor's E.O. 202.33, discussed above. ¶ 41.[8]
The upshot is that, at the time the Complaint was filed, public gatherings in New York City were restricted to ten people based on both the City and State E.O.s in place. However, at the time the motions to dismiss were filed on January 26, 2021, New York City had reached Phase 4 of the State's reopening plan and permissible public gatherings were expanded to fifty people. See Governor Cuomo Announces New York City Cleared by Global Health Experts to Enter Phase Four of Reopening Monday, July 20th, New York State (July 17, 2020), https://www.governor.ny.gov/news/governor-cuomo-announces-new-york-city-cleared-global-health-experts-enter-phase-four-reopening (last visited Sept. 23, 2021); see also Doc. 49 at 3. The Court also takes judicial notice of the fact that, as of June 15, 2021, the Governor had lifted all remaining restrictions on public gatherings following a series of incremental changes. See Governor Cuomo Announces COVID-19 Restrictions Lifted as 70% of Adult New Yorkers Have Received First Dose of COVID-19 Vaccine, New York State (June 15, 2021), https://www.governor.ny.gov/news/governor-cuomo-announces-covid-19-restrictions-lifted-70-adult-new-yorkers-have-received-first (last visited Sept. 23, 2021). Thus, no further gathering restrictions are presently in effect.
Geller alleges that, at a press conference on May 4, 2020, the Mayor “publicly and officially announced that the ‘shut down' imposed by the executive orders included the suspension of the right to publicly protest in the City.” ¶ 38. Geller alleges that this is when she learned that public protests were considered “non-essential” activity under the applicable executive orders. Defendants have not contested that the E.O.s apply to public protest activity.
Geller is a self-described “champion of the First Amendment.” ¶ 10. She is president of the American Freedom Defense Initiative, a nonprofit organization, and is a published author and conservative blogger and activist. Id. She alleges that, prior to the May 4, 2020 press conference, she had “planned for and begun to organize participation” in a public protest of the various executive orders discussed above. ¶ 56. The protest was to include “between 25 and 100 people standing silently with face coverings, observing social distancing protocols, and holding signs conveying their protest message.” Id. She further alleges that, when she learned of Defendants' position that protests of this sort were considered “non-essential” activity, she cancelled her planned protest activity. ¶ 57. She alleges that her protests would have taken place “on the City streets” and “the public sidewalks surrounding City Hall plaza.” ¶ 59.
On May 25, 2020, George Floyd, an unarmed Black man, died in police custody in Minneapolis, Minnesota after a police officer knelt on his neck, sparking protests against police brutality across New York City and the rest of the country. ¶ 49. Geller alleges that Defendants have “embraced the content and viewpoint” of the message of these protestors, whom the parties largely refer to as the “Black Lives Matter” or “BLM” protestors.[9] ¶ 50. In support, she cites several press releases and other public statements by Defendants.
Geller also cites to several reported instances of New York City police officers either kneeling or joining hands with the BLM protestors, including then-New York City Police Chief Terence Monahan, and comments by de Blasio acknowledging this conduct. ¶¶ 52-54. At a press conference, de Blasio made the following statement:
Geller cites to these statements and incidents as...
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