Tandon v. Newsom

• Citation: 517 F.Supp.3d 922
• Decision Date: 05 February 2021
• Docket Number: Case No. 20-CV-07108-LHK
• Court: U.S. District Court — Northern District of California
• Parties: Ritesh TANDON, et al., Plaintiffs, v. Gavin NEWSOM, et al., Defendants.

517 F.Supp.3d 922

Ritesh TANDON, et al., Plaintiffs,

v.Gavin NEWSOM, et al., Defendants.

Case No. 20-CV-07108-LHK

United States District Court, N.D. California, San Jose Division.

Signed February 5, 2021

Robert Edward Dunn, John David Tripoli, Eimer Stahl LLP, San Jose, CA, Amy C. Miller, Pro Hac Vice, John K. Adams, Pro Hac Vice, Ryan J. Walsh, Pro Hac Vice, Eimer Stahl LLP, Madison, WI, for Plaintiffs.

Lara Haddad, California Department of Justice Government Law Section, Los Angeles, CA, Paul E. Stein, Ca State Attorney General's Office, San Francisco, CA, for Defendants Gavin Newsom, Xavier Becerra, Sandra Shewry, Erica Pan.

Jason Matthew Bussey, Robin Michael Wall, Office of the County Counsel San Jose, CA, for Defendants Jeffrey V. Smith, Sara H. Cody.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

Re: Dkt. No. 18

LUCY H. KOH, United States District Judge

Plaintiffs Ritesh Tandon, Terry and Carolyn Gannon, Jeremy Wong, Karen Busch, Maya Mansour, Dhruv Khanna, Frances Beaudet, Julie Evarkiou, and Connie Richards (collectively, "Plaintiffs") sue Defendants Gavin Newsom, the Governor of California; Xavier Becerra, the Attorney General of California; Sandra Shewry, the Acting State Director of the California Department of Public Health; Erica S. Pan, Acting State Public Health Officer of the California; Jeffrey V. Smith, County Executive of Santa Clara County; and Sara H. Cody, Health Officer and Public Health Director of Santa Clara County (collectively, "Defendants"). Plaintiffs bring five claims challenging Defendants’ COVID-19 restrictions: (1) violation of the right to free speech and assembly protected by the First and Fourteenth Amendments; (2) violation of the right to free exercise and assembly protected by the First and Fourteenth Amendments; (3) violation of the right to earn a living under the Due Process Clause of the Fourteenth Amendment; (4) violation of the Equal Protection Clause of the Fourteenth Amendment; and (5) violation of the prohibition on unconstitutionally vague criminal laws.

Before the Court is Plaintiffs’ motion for a preliminary injunction. Plaintiffs argue that they are likely to succeed on the merits of their first four claims, they are likely to face irreparable harm absent an injunction, and the public interest favors an injunction. Having considered the parties’ submissions and oral arguments, the relevant law, and the record in this case, the Court DENIES Plaintiffs’ motion for a preliminary injunction.

I. BACKGROUND

A. The COVID-19 Pandemic

1. The Emergence and Spread of COVID-19

In December of 2019, the novel coronavirus SARS-CoV-2 emerged in the Chinese city of Wuhan. Watt Decl. Exh. 3. That coronavirus spread rapidly worldwide, causing a disease known as Coronavirus Disease 2019 ("COVID-19"). Watt Decl. Exh. 12. On February 7, 2020, about two months after COVID-19 had first been detected in China, Patricia Dowd, a 57-year-old woman living in Santa Clara County, died of COVID-19, becoming the first known COVID-19 death in the United States. Cody Decl. ¶ 10.

There have been 104 million confirmed cases of COVID-19 and 2.2 million deaths from COVID-19 worldwide as of February 3, 2021. See WHO Coronavirus Disease (COVID-19) Dashboard , World Health Organization, available at https://covid19.who.int/.¹ In the United States, as of February 3, 2021, there have been 26 million confirmed cases of COVID-19 and 445,000 deaths; both are the highest numbers of any nation in the world. See COVID Data Tracker , Centers for Disease Control and Prevention, available at https://covid.cdc.gov/covid-data-tracker/#datatracker-home [hereinafter "CDC COVID Data Tracker "]. The United States is projected to face a death toll as high as the number of Americans that were killed in battle in World War II. Rutherford Decl. ¶ 26. Public health experts have stated that the pandemic is the worst in at least one hundred years. Id. ¶¶ 26, 42; Cody Decl. ¶ 71.

Since the pandemic began, the United States has experienced three waves of COVID-19. Currently, the country is in its third wave, the worst wave yet by far. Rutherford Decl. ¶ 109. In recent weeks, case counts and deaths have repeatedly shattered records. On January 8, 2021, more than 314,000 confirmed cases were reported in the United States, a record number. See CDC COVID Data Tracker.

California ("the State") has been particularly affected by the pandemic. As of February 3, 2021, there have been 3.2 million confirmed cases of COVID-19, the highest number of any state in the country, and more than 41,000 deaths, the second most of any state in the country. See CDC COVID Data Tracker ; Tracking COVID-19 in California , California for All, available at https://covid19.ca.gov/state-dashboard/. In Santa Clara County, as of February 3, 2021, there have been 102,836 confirmed COVID-19 cases, and 1,433 people have died from COVID-19. Johns Hopkins University, COVID-19 Status Report , available at https://bao.arcgis.com/covid-19/jhu/county/06085.html.

California has been particularly impacted during the current wave of the pandemic, when cases and deaths have repeatedly shattered records. From November 16, 2020 to December 16, 2020, the number of new cases per day jumped from 9,890 to 53,711. See CDC COVID Data Tracker. Deaths have spiked as well. Prior to the current wave, the record number of deaths per day was 219 on August 1, 2020. Id. However, during the current wave, the record number of deaths per day was 764 on January 22, 2021, or almost four times the previous record. Id.

The current wave of the pandemic has also strained hospital capacity. In recent weeks, the State and various counties, including Santa Clara County, had 0 percent remaining ICU capacity. See About COVID-19 Restrictions , California For All, https://covid19.ca.gov/stay-home-except-for-essential-needs/ (last accessed January 19, 2021); COVID-19 Hospitalizations Dashboard, County of Santa Clara Emergency Operations Center, available at https://www.sccgov.org/sites/covid19/Pages/dashboard-hospitals.aspx. As a result of the current wave, Los Angeles County recently released a memorandum directing that patients not be transported if they go into cardiac arrest

and cannot be revived in the field. See EMS Transport of Patients in Traumatic and Nontraumatic Cardiac Arrest , available at http://file.lacounty.gov/SDSInter/dhs/1100458_Directive_6revTransportofTraumaticandNontraum aticCardiacArrest.pdf.

As of February 3, 2021, Santa Clara County, which has a population of 1.9 million, has 5 percent remaining ICU capacity, which corresponds to just 16 ICU beds. COVID-19 Hospitalizations Dashboard, County of Santa Clara Emergency Operations Center, available at https://www.sccgov.org/sites/covid19/Pages/dashboard-hospitals.aspx; Cody Decl. ¶ 5.

2. How COVID-19 Spreads

COVID-19 is highly contagious. Lipsitch Decl. ¶ 20. It has a reproduction rate of 2 to 6, meaning that, if uncontrolled, each person with COVID-19 spreads it to between two and six others. Id. This reproduction rate causes the number of COVID-19 infections to multiply exponentially. Id. If a virus has a reproduction rate of more than one, the epidemic will grow, and disease and death in the population will increase. Stoto Decl. ¶¶ 10, 12; Watt Decl. ¶ 26.

COVID-19 is transmitted when an individual is exposed to a sufficient dose of the virus to overcome the body's defenses. Watt Decl. ¶ 33. COVID-19 is primarily spread through respiratory droplets from an infected person's nose or mouth. Rutherford Decl. ¶¶ 28–33, Watt Decl. ¶¶ 25–32. Although transmission by contact with an object on which the virus is present is believed to be possible, it is rare. Rutherford Decl. ¶ 31; Watt Decl. ¶ 29.

Instead, individuals are likely to be exposed to a sufficient dose of the virus to be infected when they are in close proximity with an infected person for an extended period of time, which permits viral droplets or particles to move from the infected person to others. Watt Decl. ¶¶ 33, 37–44; Rutherford Decl. ¶ 74. The higher the dose of the virus to which someone is exposed, the more likely they are to become seriously ill. Rutherford Decl. ¶ 34.

COVID-19 can be spread by individuals exhibiting no symptoms. About 40 percent of those who are infected are asymptomatic, but asymptomatic people can still spread the virus. Cody Decl. ¶ 9; Rutherford Decl. ¶ 28; Watt Decl. ¶¶ 30–31; Reingold Decl. ¶ 23. Furthermore, even individuals who develop symptoms are believed to be most contagious the day before they develop symptoms. Watt Decl. ¶ 32.

Because COVID-19 can be spread by individuals who are asymptomatic or presymptomatic, it is difficult to control. Watt Decl. ¶ 32. Many people who are infected are not aware that they are sick, so they do not take the appropriate precautions, such as isolating themselves at home. Rutherford Decl. ¶ 28; Watt Decl. ¶ 32. In addition, people who are healthy are often not able to determine by mere observation whether others they are with are sick. Watt Decl. ¶ 39.

Individuals are likely to be exposed to a sufficient dose of the virus to be infected when they are in close proximity with an infected person for an extended period of time, which permits viral droplets or particles to move from the infected person to others. Watt Decl. ¶¶ 33, 37–44. Accordingly, gatherings, which bring individuals from different households together for an extended period of time, are particularly risky settings for the transmission of COVID-19. Id. ; Rutherford Decl. ¶¶ 60, 76–77; Cody Decl. ¶¶ 34–35.

The more time that a non-infected person spends in close proximity to an infected person, the higher the likelihood that viral particles will move from the infected person to the non-infected person. Watt Decl. ¶¶ 33, 37–44. For this reason, the risk of COVID-19 transmission increases with the duration of the gathering. Rutherford Decl. ¶ 78; Watt Decl. ¶ 43.

The higher the number of households that gather together, the higher potential there is for the...