Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.1 Page 1 of 128 1 Charles S. LiMandri, SBN 110841 Paul M. Jonna, SBN 265389 2 Jeffrey M. Trissell, SBN 292480 3 LIMANDRI & JONNA LLP P.O. Box 9120 4 Rancho Santa Fe, CA 92067 5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938 6 cslimandri@limandri.com 7 pjonna@limandri.com jtrissell@limandri.com 8 9 Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice* 10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250 11 Chicago, IL 60606 12 Tel: (312) 782-1680 tbrejcha@thomasmoresociety.org 13 pbreen@thomasmorsociety.org 14 *Application forthcoming Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com Attorneys for Plaintiffs 15 Attorneys for Plaintiffs 16 17 UNITED STATES DISTRICT COURT 18 SOUTHERN DISTRICT OF CALIFORNIA 19 SOUTH BAY UNITED PENTECOSTAL CHURCH, a California 20 nonprofit corporation, BISHOP ARTHUR 21 HODGES III, an individual, RABBI MENDEL POLICHENCO, an individual, 22 Plaintiffs, 23 24 v. Case No.: '20CV865 AJB MDD COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF JURY TRIAL DEMANDED 25 GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER 26 BECERRA, in his official capacity as the 27 Attorney General of California, SONIA ANGELL, in her official capacity as 28 California Public Health Officer, WILMA J. Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.2 Page 2 of 128 1 WOOTEN, in her official capacity as Public Health Officer, County of San Diego, 2 HELEN ROBBINS-MEYER, in her official 3 capacity as Director of Emergency Services, WILLIAM D. GORE, in his official 4 capacity as Sheriff of the County of San 5 Diego, KEVIN FAULCONER, in his official capacity as Mayor of the City of San 6 Diego, and DAVID NISLEIT, in his official 7 capacity as the Chief of Police of the City of San Diego, 8 Defendants. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.3 Page 3 of 128 Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one. 1 2 3 4 5 Maryville Baptist Church, Inc. v. Beshear, No. 20-5427 (6th Cir. May 2, 2020) 6 7 8 9 INTRODUCTION 1. It is time. California is one of only eight states whose response to the 10 COVID-19 pandemic has included no accommodation for—hardly even a mention 11 of—the religious rights of its citizens. Now, with the pandemic stabilizing, California 12 has moved from “Stage 1” to “Stage 2.” In the first part of Stage 2, beginning on 13 Friday, May 8, retail and manufacturing may begin reopening—but not places of 14 worship. In the latter part of Stage 2, within a “few weeks,” shopping malls, car 15 washes, pet grooming, offices, dine-in restaurants, schools may reopen—but again, 16 not places of worship. No, churches will be allowed to reopen months later in “Stage 17 3,” at the same time as salons, tattoo parlors, gyms, bars, and movie theaters. But 18 worship is not frivolous entertainment: it is the first right protected in the First 19 Amendment. To be sure, “[t]here is no instruction book for a pandemic. The threat 20 evolves. Experts reevaluate.” On Fire Christian Ctr., Inc. v. Fischer, --- F. Supp. 3d ---, 21 2020 WL 1820249, at *10 (W.D. Ky. 2020). And now it is time to reevaluate 22 California’s approach of dismissing the religious rights of its citizens. 23 2. This new regime, where manufacturing, schools, offices, and childcare 24 facilities can reopen—but places of worship cannot—is mindboggling. The churches 25 and pastors of California are no less “essential” than its retail, schools, and offices to 26 the health and well-being of its residents. More confusing is the placement of worship 27 in Stage 3, alongside hair salons, nail salons, and tattoo parlors. 28 3. There is no attempt at tailoring in California’s new regime, much less 1 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.4 Page 4 of 128 1 narrow tailoring. Every church in the state has been shuttered, and every pastor and 2 congregant placed under house arrest, save for “essential” non-religious activities. 3 This has now gone on for almost a month and a half, with several more months to 4 come, and with no true end in sight. No consideration has been made for church size. 5 No allowance has been made in relation to particular individuals’ risk factors for 6 coronavirus. 4. 7 Defendants have thus intentionally denigrated California churches and 8 pastors and people of faith by relegating them to third class citizenship. Defendants 9 have no compelling justification for their discriminatory treatment of churches and 10 pastors and people of faith, nor have they attempted in any way to tailor their 11 regulations to the least restrictive means necessary to meet any arguable compelling 12 interest. 5. 13 In light of this denigration, this Action presents facial and as-applied 14 challenges to the Governor of California’s March 19, 2020, Executive Order N-3315 20, April 28, 2020, Essential Workforce memorandum, and May 7, 2020, Resilience 16 Roadmap (the “State Orders”); 1 the County of San Diego’s April 30, 2020, Order of 17 the Health Officer and Emergency Regulations (the “County Order”); 2 and the 18 Mayor of San Diego’s March 16, March 30, and April 30, 2020, Executive Orders 19 Nos. 2020-1, 2020-2, and 2020-3 (the “City Orders”) 3—each of which violate the 20 1 Attached hereto as Exhibits 1-1, 1-2, 1-3, and 1-4: 21 https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf; 22 https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf; https://covid19.ca.gov/roadmap/; 23 https://www.gov.ca.gov/2020/05/07/governor-newsom-releases-updated-industryguidance/ 24 2 Attached hereto as Exhibits 2-1 and 2-2: 25 https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiol ogy/HealthOfficerOrderCOVID19.pdf; 26 https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiol 27 ogy/covid19/SOCIAL_DISTANCING_AND_SANITATION_PROTOCOL_040 22020_V1.pdf 28 3 Attached hereto as Exhibits 3-1, 3-2, and 3-3: 2 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.5 Page 5 of 128 1 constitutional rights of Plaintiffs and the people of California (collectively, the 2 “Orders” or the “Reopening Plan”). JURISDICTION AND VENUE 3 4 6. This action arises under 42 U.S.C. § 1983 in relation to Defendants’ 5 deprivation of Plaintiffs’ constitutional rights to freedom of religion, speech, and 6 assembly, due process, and equal protection rights under the First and Fourteenth 7 Amendments to the U.S. Constitution. Accordingly, this Court has federal question 8 jurisdiction under 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction over the 9 claims asserting violations of the California Constitution through supplemental 10 jurisdiction under 28 U.S.C. § 1367(a). This Court has authority to award the 11 requested declaratory relief under 28 U.S.C. § 2201; the requested injunctive relief 12 and damages under 28 U.S.C. § 1343(a); and attorneys’ fees and costs under 42 13 U.S.C. § 1988. 14 7. The Southern District of California is the appropriate venue for this 15 action pursuant to 28 U.S.C. §§ 1391(b)(1) and (2) because it is the District in which 16 Defendants maintain offices, exercise their authority in their official capacities, and 17 will enforce the Orders; and it is the District in which substantially all of the events 18 giving rise to the claims occurred. THE PARTIES 19 20 8. Founded in 1956, Plaintiff South Bay United Pentecostal Church is a 21 California non-profit corporation, located in Chula Vista, California. The Church 22 sues in its own capacity and on behalf of its congregants. It is a multi-national, multi23 cultural congregation. The majority of its members are Hispanic, with the balance 24 consisting of Filipino, Caucasian, African-American, and other ethnic groups. It is an 25 https://www.sandiego.gov/sites/default/files/mayoralexecutiveorder_covid19.pdf; 26 https://www.sandiego.gov/sites/default/files/mkf_executive_order_2020-2_-_327 30-2020_1.pdf; https://www.sandiego.gov/sites/default/files/mkf_executive_order_2020-04-3028 2020_3.pdf 3 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.6 Page 6 of 128 1 open and accepting community that believes all humans are children of God. 2 9. Plaintiff Bishop Arthur Hodges III is a resident of the County of San 3 Diego, California. He has served as the Chief Executive Officer and Senior Pastor of 4 the South Bay United Pentecostal Church for thirty-five years. He also serves as 5 Superintendent for the SoCal District of the United Pentecostal Church International. 6 10. Plaintiff Rabbi Mendel Polichenco is a resident of the County of San 7 Diego, California. He serves as rabbi and director of Chabad of Carmel Valley, 8 located in the City of San Diego, California. He also serves as director of Chabad 9 Without Borders, which operates fifteen Chabad branches in Mexico and three 10 branches in San Diego County. 11 11. Defendant Gavin Newsom is sued in his official capacity as the 12 Governor of California. The California Constitution vests the “supreme executive 13 power of the State” in the Governor, who “shall see that the law is faithfully 14 executed.” Cal. Const. Art. V, § 1. Governor Newsom signed the State Orders. 15 12. Defendant Xavier Becerra is the Attorney General of California. As the 16 State’s chief law enforcement officer, Becerra is responsible for executing the State’s 17 police powers. He is sued in his official capacity. 18 13. Defendant Sonia Angell is California’s Public Health Officer. Under the 19 authority of the State Order, Angell decided which employees in the State are to be 20 “Essential Critical Infrastructure Workers.” She is sued in her official capacity. 21 14. Defendant Wilma J. Wooten is San Diego County’s Public Health 22 Officer. Wooten signed the County Order. She is sued in her official capacity. 23 15. Defendant Helen Robbins-Meyer is made a party to this Action in her 24 official capacity as the Director of Emergency Services, County of San Diego. She 25 signed the County Orders. 26 16. Defendant William D. Gore is made a party to this Action in his official 27 capacity as Sheriff of the County of San Diego. He is responsible for enforcing the 28 State Orders and the County Order. 4 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.7 Page 7 of 128 17. 1 Defendant Kevin Faulconer is the Mayor of San Diego, California. As 2 “the chief executive officer of the City,” he is empowered “[t]o execute and enforce 3 all laws, ordinances, and policies of the City.” S.D. Charter Art. XV, § 265. Mayor 4 Faulconer signed the City Orders. He is sued in his official capacity. 18. 5 Defendant David Nisleit is sued in his official capacity as the Chief of 6 Police of the City of San Diego. He is responsible for enforcing the State Orders and 7 the City Orders. 19. 8 Each and every Defendant acted under color of state law with respect to 9 all acts or omissions herein alleged. 10 FACTUAL ALLEGATIONS 11 Introduction 20. 12 On or about March 13, 2020, President Donald J. Trump proclaimed a 13 National State of Emergency as a result of the threat of the emergence of a novel 14 coronavirus, COVID-19.4 Fear of the coronavirus epidemic has gripped California, 15 the nation, and the world. The coronavirus outbreak has turned the world upside16 down, causing profound damage to the lives of all Americans and to the national 17 economy. 21. 18 In response to the virus, many states imposed “stay-at-home” orders to 19 “flatten the curve” of the spread of the virus. In the vast majority of states, these stay20 at-home orders protected the constitutional rights of churches and religious believers 21 during the coronavirus pandemic. 5 When those orders did not protect their 22 23 24 25 26 27 28 4 https://www.whitehouse.gov/presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ 5 According to a recent article, only nine states did not have religious exemptions from their stay-at-home orders. See Chris Field, 9 states still prohibit religious gatherings during pandemic. All others have religious exemptions for stay-at-home orders, THE BLAZE (Apr. 28, 2020); https://www.theblaze.com/news/states-prohibitreligious-gatherings-pandemic (listing states with no religious protections as: Alaska, California, Idaho, Illinois, Minnesota, New Jersey, New York, Vermont, Washington.) On May 1, 2020, in response to a lawsuit, Illinois removed itself from that list. See Tina Sfondeles, Freedom to worship? Pritzker adds ‘free exercise of religion’ 5 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.8 Page 8 of 128 1 constitutional rights, the Courts quickly corrected them. See, e.g., Maryville Baptist 2 Church, Inc. v. Beshear, --- F.3d ---, 2020 WL 2111316 (6th Cir. 2020) (enjoining order 3 that restricted attendance at religious services); On Fire Christian Ctr., Inc. v. Fischer, -4 - F. Supp. 3d ---, 2020 WL 1820249 (W.D. Ky. 2020) (same); First Baptist Church v. 5 Kelly, --- F. Supp. 3d ---, 2020 WL 1910021 (D. Kan. 2020) (same). 6 22. Those states recognized that, during this pandemic, Americans need the 7 Spirit of Almighty God even more to help them weather these dark times—and that 8 this need is no less “essential” than any other need. They understood that the rules 9 of constitutional interpretation are not as rigidly fixed in a time of national 10 emergency. Jacobson v. Massachusetts, 197 U.S. 11 (1905). “But[, they understood,] 11 even under Jacobson, constitutional rights still exist. Among them is the freedom to 12 worship as we choose.” On Fire Christian Ctr., 2020 WL 1820249, at *8 (citing 13 Jacobson, 197 U.S. at 31). 14 23. Those states had it right. See, e.g., Statement of Attorney General 15 William P. Barr on Religious Practice and Social Distancing (Apr. 14, 2020); 6 16 Memorandum for the Assistant Attorney General for Civil Rights and All United 17 States Attorneys (Apr. 27, 2020). 7 18 24. “To be sure, individual rights secured by the Constitution do not 19 disappear during a public health crisis.” In re Abbott, 954 F.3d 772, 784 (5th Cir. 20 2020). Fundamental and unalienable rights are, by their very nature, “essential”— 21 they are the essential rights which led to the founding of this country and this state. 22 For, “[h]istory reveals that the initial steps in the erosion of individual rights are 23 usually excused on the basis of an ‘emergency’ or threat to the public. But the 24 25 as ‘essential’ activity in new order—but not large gatherings, CHICAGO SUN-TIMES (Apr. 30, 2020, 9:58 p.m.), https://chicago.suntimes.com/2020/4/30/21243640/illinois26 stay-at-home-order-jb-pritzker-free-exercise-religion. 6 27 https://www.justice.gov/opa/pr/attorney-general-william-p-barr-issues-statementreligious-practice-and-social-distancing-0 28 7 https://www.justice.gov/opa/page/file/1271456/download 6 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.9 Page 9 of 128 1 ultimate strength of our constitutional guarantees lies in the unhesitating application 2 in times of crisis and tranquility alike.” United States v. Bell, 464 F.2d 667, 676 (2d 3 Cir. 1972) (Mansfield, J., concurring). 4 25. For more than four hundred years, people have come to America in a 5 quest for religious freedom. Like the Puritans, most of these pilgrims were fleeing 6 religious persecution in Europe. They understood that “[n]o place, not even the 7 unknown, is worse than any place whose state forbids the exercise of your sincerely 8 held religious beliefs.” On Fire Christian Ctr., 2020 WL 1820249, at *2. 9 26. Stretching back to the formation of colonies like Pennsylvania and 10 Rhode Island, where citizens could practice religion in a way that would not be 11 impeded by the government, this basic freedom that was sought by so many colonists 12 was enshrined in the constitutions of the states and, most importantly, in the First 13 Amendment to the United States Constitution: “Congress shall make no law 14 respecting the establishment of religion or prohibiting the free exercise thereof.” 15 U.S. Const. amend I. This religious heritage is evident even today in the names of 16 California’s cities, and specifically the City of San Diego, whose founding 250 years 17 ago by Fray St. Junípero Serra, the City celebrated just last year. 18 27. Yet in March of this year, the Golden State criminalized all religious 19 assembly and communal religious worship. With the pandemic as justification, 20 Governor Newsom and the County and City of San Diego expanded their authority 21 by extraordinary lengths, depriving all Californians of fundamental rights protected 22 by the U.S. and California Constitutions, including freedom of religion, speech, and 23 assembly, and due process and equal protection under the law. 24 28. Unlike forty-two other states issuing stay-at-home orders, California did 25 not mention religion or churches in its executive order. At the State level, the only 26 reference to religious rights was a single line in a 23-page memorandum that clergy are 27 “essential” for “faith-based services that are provided through streaming or other 28 technologies that support physical distancing and state public health guidelines.” (Ex. 7 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.10 Page 10 of 128 1 1-2, at 16.) At the County level, the orders make no reference to religion. (Ex. 2-1, Ex. 2 2-2.) And at the City level, the Mayor “prohibited” “any event or convening that 3 brings together 50 or more people in a single room or a single space at the same time, 4 such as a[] . . . church.” (Ex. 3-1, at 1.) 29. 5 Oddly “mental health workers” could keep their business open for in- 6 person counseling and services.” (Ex. 1-2, at 2.) Thus, California apparently 7 recognized the benefit of providing mental health and substance abuse support 8 services—as long as they are not provided by pastors and churches. 30. 9 At the same time as criminalizing worship—each of the Orders had a 10 paragraph threatening criminal enforcement—the State Order (adopted and expanded 11 upon by the County and City Orders) allowed citizens to gather at liquor stores, pot12 dispensaries, Planned Parenthood, Walmart, CVS, Costco, Home Depot, and many 13 other locations deemed “essential.” The State Order deemed the entirety of the 14 “entertainment industries” essential. (Ex. 1-2, at 23.) 31. 15 This was not a hypothetical situation from an Orwellian novel describing 16 a bleak future—this was the current and very real nightmare endured by millions of 17 religious citizens who maintained the conviction that the faithful practice of regularly 18 gathering together was absolutely “essential.” But those citizens decided to wait 19 anyway. Religious Americans are no less patriotic than any other Americans, and are 20 absolutely willing to do their part to “flatten the curve.” But they are not willing to 21 have their faith denigrated, demeaned, and compared to attending a movie theater. The History of the Executive Orders 22 32. 23 On March 4, 2020, California Governor Gavin Newsom proclaimed a 24 State of Emergency as a result of the threat of COVID-19.8 33. 25 On March 19, 2020, California Governor Newsom issued Executive 26 Order No. N-33-20 in which he ordered that “all residents are directed to 27 8 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE28 Proclamation.pdf. 8 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.11 Page 11 of 128 1 immediately heed the current State public health directives.” (Ex. 1-1.) 34. 2 The state public health directive requires “all individuals living in the 3 State of California to stay home or at their place of residence except as needed to 4 maintain continuity of operations of the federal critical infrastructure sectors. . . .” 9 35. 5 On March 22, 2020, the California Public Health Officer designated a 6 list of “Essential Critical Infrastructure Workers.” (Ex. 1-2.) Included on the list of 7 the “essential workforce” are “faith based services that are provided through 8 streaming or other technology.” 36. 9 Accordingly, this list prohibits all religious leaders from conducting in- 10 person and out-of-home religious services, regardless of the measures taken to reduce 11 or eliminate the risk of the virus spreading. Meanwhile, the list deems the continuity 12 of services provided by coffee baristas, burger flippers, and laundromat technicians to 13 be so necessary for society that these activities are permitted to continue under the 14 State Order, despite the existence of the very same risk Defendants rely on to stymie 15 the exercise of fundamental rights. 37. 16 On April 30, 2020, the County of San Diego issued an Order of the 17 Health Office and Emergency Regulations. (Ex. 2-1.) That order incorporated 18 Governor Newsom’s Executive Order No. N-33-20, and set further guidelines for 19 essential businesses operating in San Diego County. Specifically, that order 20 promulgated the County of San Diego “Social Distancing and Sanitation Protocol” 21 that all essential businesses were required to fill out and adhere to. (Ex. 2-2.) The 22 order also banned all gatherings of “more than one person” except at essential 23 businesses or transit places. (Ex. 2-1, at 4.) 38. 24 On April 30, 2020, the City of San Diego issued Executive Order No. 25 2020-3. (Ex. 3-3.) That order expressly incorporated the State and County orders: 26 “All City residents shall comply with all current direction issued by Executive Order 27 of the Governor of California and by directive of the County Public Health Officer.” 28 9 The State Public Health Directive was included in the text of the State Order. 9 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.12 Page 12 of 128 1 It also extended prior City of San Diego Orders. (Ex. 3-1; Ex. 3-2.) 2 39. The state public health directive, included in Executive Order No. N-33- 3 20, provides that its directives “shall stay in effect until further notice.” 4 40. On April 28, 2020, Governor Newsom held a press conference in which 5 he announced California’s current four stage Reopening Plan, and his intention on 6 how he will modify his Executive Order No. N-33-20. That plan relegates religious 7 services to the bottom of the pile, next to attending the cinema, and prioritizes 8 reopening manufacturing and offices. 9 41. On May 4, 2020, Governor Newsom published a press release in which 10 he announced that Stage 2 of the Reopening Plan—where offices and manufacturing 11 will re-open—will begin, in part, on Friday, May 8, 2020. 12 42. On May 7, 2020, Governor Newsom published his Resilience Roadmap, 13 which provided the means of beginning of Stage 2 of the Reopening Plan on Friday, 14 May 8, 2020. (Ex. 1-3.) 15 Bishop Arthur Hodges and the South Bay United Pentecostal Church 16 17 43. South Bay Pentecostal Church is a reflection of the Chula Vista 18 community. It is a multi-national, multi-cultural congregation. The majority of its 19 members are Hispanic, with the balance consisting of Filipino, Caucasian, African20 American, and other ethnic groups. The congregation represents a cross-section of 21 society, from rich to poor and encompassing people of all ages. The congregation also 22 includes members and visitors who run the gamut of essential workers. These 23 essential workers and service providers receive spiritual support, comfort, guidance, 24 and shelter from our ministry. The Church is an open and accepting community that 25 believes all humans are children of God. 26 44. Bishop Hodges has served as senior Pastor and Bishop of the South Bay 27 Pentecostal Church for thirty-five years. He also serves as a District Superintendent 28 of the United Pentecostal Church International. He oversees more than two-hundred 10 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.13 Page 13 of 128 1 pastors and ministers, representing more than one-hundred churches across 2 Southern California. 3 45. Bishop Hodges’ vocation was settled from an early age. He is the son of 4 a Pentecostal Pastor. His father repeatedly built churches from scratch, establishing 5 the community and moving on to repeat the same process in another town. 6 46. At the age of ten, he felt God calling him to the same ministry. However, 7 sensing the labors of his Father, who was tasked with raising a family, maintaining his 8 electrician business, and serving as a Pastor all at the same time, he understood the 9 tremendous sacrifice that pastors are expected to make. At that age, he was 10 frightened by the burden. As such, he was reluctant to accept God’s call. 11 47. When he was twelve, he attended a youth class. The teacher of that 12 particular class was very passionate about the power of prayer. Frequently, he would 13 end those classes in prayer meetings. At one prayer meeting, Bishop Hodges heard 14 God asking him, “Are you willing to be my preacher? Will you be my minister?” In 15 that moment, he said yes, and the fear of his father’s burden finally left him. 16 However, it would be a number of years before he would make good on that promise. 17 48. Upon graduating from high school, Bishop Hodges believed he would 18 become an airline pilot. However, his father requested that he honor his sacrifices in 19 raising him and asked him to give Bible College a chance. Out of a sense of filial duty, 20 Bishop Hodges enrolled at the Apostolic Bible Institute in St. Paul, Minnesota. While 21 at the Institute, God’s call became too loud to ignore. With a missionary’s zeal, he 22 threw himself into full-time ministry. He began preaching at youth camps, 23 conferences, and other venues, traveling from city to city and state to state, sharing 24 God’s Word with all who would open their hearts to listen. 25 49. Two years later, Bishop Hodges’ father invited him to serve as Assistant 26 Pastor at South Bay Pentecostal Church. Sensing that life on the road was no place to 27 grow a family, and with his wife pregnant with their first child, he agreed to accept 28 the position. The passage of time brought change, and his father once more felt the 11 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.14 Page 14 of 128 1 call to move on to a new church. In his stead, Bishop Hodges was unanimously voted 2 to take his place at South Bay, where he has served ever since. 3 50. Bishop Hodges is a sincere, strong believer that the Bible is the infallible 4 and immutable word of God. This belief is one that he shares with South Bay 5 Pentecostal Church. They believe that there is one God—the creator of all. They 6 practice as best they know how and can according to their abilities and understanding 7 of Scripture. “Not forsaking the assembling of ourselves together, as the manner of 8 some is; but exhorting one another: and so much the more, as ye see the day 9 approaching.” (Hebrews 10:25.) 10 51. The South Bay Pentecostal Church’s model is the New Testament 11 church founded and described in the book of the Acts of the Apostles: “And when 12 the day of Pentecost was fully come, they were all with one accord in one place.” (Acts 13 2:1 [emphasis added].) They believe that “all” being gathered in “one place” is 14 fundamental in order to fulfill Christ’s final charge that “you will be my witnesses.” 15 (Acts 1:8.) Thus, at the Church’s very beginning, they believe that the foundational 16 function of the church, all gathering together with one accord, was established. 17 52. The Book of Acts, which chronicles the founding of the Church, uses 18 the word “together” thirty-one times, thus providing thirty-one reasons for the 19 church to come together with one accord. Being “together” spiritually and physically 20 is key in their preaching, teaching, and worship practice. This experience of 21 worshipping together occurs both in the home and in the communal setting, 22 “continuing daily with one accord in the temple, and breaking bread from house to 23 house.” (Acts 2:46–47 [emphasis added].) 24 53. In observance of this sacred charge and sincerely held religious belief, 25 South Bay Pentecostal Church holds between three and five services each Sunday. The 26 average attendance at some of these services lies between two-hundred and three27 hundred congregants. The Church’s sanctuary can hold up to six-hundred people. 28 54. The services focus on the scriptural charge to be “together”—both 12 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.15 Page 15 of 128 1 spiritually and physically. Services begin with Bible classes spread across different 2 ages and groups. Each class may have between ten and one-hundred participants. 3 When these classes conclude, congregants gather together with one accord for praise 4 and worship. Those with special needs or sickness come forward and stand around 5 the altar, where hands are laid upon them and they are then anointed. This sacrament 6 observes the Scriptural charge to “let them pray over him, anointing him with oil in 7 the name of the LORD.” (James 5:14.) 8 55. The Church believes that the act of laying on hands also assists in 9 conferring, in a real sense, the gift of the Holy Ghost: “And when Paul had laid his 10 hands on them, the Holy Ghost came on them.” (Acts 19:6.) The service concludes 11 with preaching followed by a challenge to physical action, where the congregation is 12 challenged to approach the altar to “come believing, come praying.” As mandated by 13 Scripture, the service concludes with fellowship both inside and outside the 14 sanctuary: “And they continued steadfastly in the apostles’ doctrine and fellowship, 15 and in the breaking of bread, and in prayers.” (Acts 2:42.) 16 56. South Bay Pentecostal Church also perform baptisms, funerals, 17 weddings, and other religious ceremonies. 18 57. They believe Scripture exhorts them to “[r]epent, and be baptized every 19 one of you in the name of Jesus Christ for the remission of sins, and ye shall receive 20 the gift of the Holy Ghost.” (Acts 2:38.) They believe this sacrament of “new birth” 21 cannot be performed on one’s own, or by staying at home. One may repent on their 22 own, but they cannot baptize themselves. They believe there is no justifiable reason for 23 postponing the sacrament of baptism, as it is a necessary part of salvation. 24 58. Since the Orders prohibiting physical religious assembly were put in 25 place, the Church’s ability to carry out its ministry has been dramatically curtailed. 26 Bishop Hodges has neither experienced symptoms of nor been diagnosed with 27 COVID-19. 28 59. These orders forbid the assembly required to come together with one 13 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.16 Page 16 of 128 1 accord. These orders forbid baptism, gathering around the altar, and any form of 2 “being together” that is both physical and spiritual. 3 60. “Zoom Meetings” and other tele-conferencing applications are 4 inadequate substitutes as they curtail a minister’s ability to lay hands upon a 5 congregant or perform a baptism. They also curtail the congregation’s ability to 6 approach the altar, which is central to their experience of faith. 7 61. As a result of the Orders, South Bay Pentecostal Church is prohibited 8 from holding the services mandated by Scripture. These include the important 9 milestone services that mark life events and even the end of a life. 10 62. South Bay Pentecostal Church desires to hold services in a manner that 11 properly protects its congregants so that they may observe the inviolable precepts of 12 Scripture and encourage and comfort one another during these troubling times of the 13 COVID-19 outbreak. The Church’s congregation needs to connect with one another 14 in order to receive the hope and encouragement they need to heal and grow in their 15 faith and in order to observe the Scriptural requirement of gathering together with 16 one accord. 17 63. The Orders’ outright ban on religious services are overbroad and 18 unnecessary because Sunday services, baptisms, and funerals may be held in a 19 manner consistent with the social distancing guidelines. If restaurants, auto 20 mechanics, and marijuana dispensaries are capable of following these guidelines, the 21 congregation of South Bay Pentecostal Church is certainly capable. 22 64. As the below photo demonstrates, South Bay Pentecostal Church 23 possesses a large sanctuary that provides ample room to accommodate the six feet of 24 social distancing required by the County and CDC requirements. Moreover, should 25 the amount of congregants threaten to overwhelm the social distancing guidelines, 26 additional services can be added to accommodate smaller gatherings that would 27 satisfy those guidelines. 28 14 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.17 Page 17 of 128 1 2 3 4 5 6 7 65. In addition, the Church can integrate masks, gloves, screens, veils, and 8 other screening mechanisms in order to protect congregants and inhibit the spread of 9 COVID-19 during all services, including Sunday worship, baptisms, and funerals. 10 Furthermore, the Church will encourage anyone uncomfortable with gathering 11 during the pandemic to stay at home. The Church will also require that anyone who 12 is sick or has symptoms to stay at home. 13 66. In other words, the Church can and will abide by the County’s Social 14 Distancing and Sanitation Protocol, and any other necessary guidelines, just like any 15 other organization. 16 67. These services are essential for the spiritual health of the congregation 17 so that the congregants can exhort one another and the will of God during these 18 difficult times. 19 68. The Church has previously demonstrated its ability to adopt and enforce 20 suitable guidelines for social distancing practices through its work as what may be the 21 largest food distributor to needy people in the South Bay region of San Diego County. 22 Since the closure orders were placed, the Church worked with the Chula Vista Police 23 Department to develop a drive-through food distribution system so that hundreds of 24 cars may drive into and around the Church parking lot. Volunteers are provided 25 masks and gloves and deliver groceries, contact-free, directly into each driver’s trunk 26 or cargo area. During any given week, the Church distributes between three and 27 twelve tons of food. The Church has also been publicly fêted for its efforts by the 28 Mayor of Chula Vista. 15 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.18 Page 18 of 128 1 2 3 4 5 6 7 8 9 10 11 12 69. If the Church is capable of demonstrating and implementing proper 13 social distance protocols for the purposes of food distribution, it is clearly capable of 14 demonstrating and implementing similar protocols when engaging in its Scripturally 15 mandated worship practices. Rabbi Mendel Polichenco 16 17 70. Rabbi Mendel Polichenco is a rabbi of the Jewish faith. It is his mission 18 to educate and inspire passion for Judaism in his congregants. He serves as rabbi and 19 director of Chabad of Carmel Valley, located in San Diego, California. He also serves 20 as director of Chabad Without Borders. 21 71. Rabbi Polichenco’s life’s mission was lovingly formed in the embrace of 22 Argentina’s vibrant Jewish community. From a young age, he knew that it was his 23 vocation to follow in the footsteps of his father. Rabbi Polichenco’s father was a rabbi 24 and prominent leader in their faith community and was responsible for opening a 25 number of Jewish day schools and high schools in their native Buenos Aires. 26 72. In the coming years, Rabbi Polichenco concluded that he must make an 27 absolute commitment to follow in his father’s footsteps. Therefore, he not only 28 became a rabbi, but he also became a builder of communities. Soon after he was 16 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.19 Page 19 of 128 1 ordained, he became the rabbi for the Jewish Community of Tijuana—the first 2 official representative of the Chabad movement in Mexico. As rabbi, he also founded 3 the first and only Jewish Day School in the state of Baja California, which remained 4 open for seven years. Believing that spiritual sustenance must nourish mind, soul and 5 body, he also opened a Kosher restaurant, bakery, and catering service, which 6 operates to this day. Over the coming years, he expanded his activities in Baja 7 California and, ultimately, into the United States. 8 73. Rabbi Polichenco is a sincere, strong believer in the Torah’s mitzvahs. 9 He holds sacred the Torah’s command that “[a]ccording to the law [the rabbinical 10 courts] instruct you and according to the judgment they say to you, you shall do; you 11 shall not divert from the word they tell you, either right or left.” (Deuteronomy 12 17:11.) 13 74. In observance of these precepts and his sincerely held religious beliefs, 14 Rabbi Polichenco holds weekly Shabbat services at Chabad of Carmel Valley in San 15 Diego, California. Approximately three-hundred adults worship at Shabbat. 16 Moreover, he holds midweek Shacharit services. Approximately twenty adult 17 attendees congregate at these weekday services. 18 75. He also performs funerals, Bar Mitzvahs, Bat Mitzvahs, weddings, and 19 other religious ceremonies. 20 76. Jewish services and ceremonies require a quorum of ten men to be 21 present in the same physical space in order for the service or ceremony to commence. 22 This quorum requirement applies to Shabbat, Shacharit, funerals, Bar Mitzvahs, Bat 23 Mitzvahs, and weddings. 24 77. Rabbi Polichenco also teaches weekly classes on the Torah for teenagers 25 and adults. In addition, he offers social services and counseling. 26 78. He serves a congregation that is multi-racial and represents a cross- 27 section of society, from rich to poor and encompassing people of all ages. His 28 congregation also includes members and visitors who run the gamut of essential 17 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.20 Page 20 of 128 1 workers. These essential workers and service providers receive spiritual support, 2 comfort, guidance, and shelter from his ministry. 3 79. He is also the director of Chabad Without Borders, which operates 4 fifteen Chabad branches in Mexico and three branches in San Diego County. 5 80. Since the Orders prohibiting physical religious assembly were put in 6 place, Rabbi Polichenco’s ability to carry out his ministry has been dramatically 7 curtailed. He has been forced to curtail his ministry, as well as that of Chabad of 8 Carmel Valley and Chabad Without Borders, despite the fact that he has neither 9 experienced symptoms of nor been diagnosed with COVID-19. 10 81. These orders forbid the assembly required to hold Shabbat, Shacharit, 11 funerals, Bar Mitzvahs, Bat Mitzvahs, and weddings. This is because allowing a 12 quorum of at least ten men to gather in the same physical space is facially prohibited 13 by the Orders. 14 82. “Zoom Meetings” and other tele-conferencing applications are 15 insufficient for amassing the required quorum to commence a Shabbat or Shacharit 16 service because the rabbinical mitzvahs require that at least ten men be physically 17 present in the same space. If this minimum threshold is not met, a service cannot 18 occur. 19 83. As a result of the Orders, Rabbi Polichenco is prohibited from holding 20 the services mandated by the Jewish faith. These also include the important 21 milestone services that mark life events and even the end of a life. 22 84. It is particularly heartbreaking and tragic for a congregant to lose a 23 parent or child and not be able to say the special prayers of comfort and healing that a 24 Jewish funeral provides. Because the Orders prohibit religious assembly, the required 25 quorum of ten men cannot be marshalled. As a result, Rabbi Polichenco is unable to 26 hold any funerals, and members of his congregation are left to nurse their heartbreak 27 in silence. 28 85. In addition, the orders have forced Rabbi Polichenco to cancel Bar 18 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.21 Page 21 of 128 1 Mitzvahs. As part of the service, a teenage boy is expected to recite extensive 2 portions of the Torah. This requires a full year’s study to memorize these substantial 3 portions for recitation at the Bar Mitzvah service. Such a recitation can only occur on 4 one specific day, depending on the boy’s birthday. Because the Orders prohibit 5 religious assembly, the required quorum of ten men cannot be marshalled. As a 6 result, Rabbi Polichenco is unable to hold any Bar Mitzvahs, and the boys’ years of 7 hard study are wasted. 8 86. Rabbi Polichenco desires to hold services in a manner that properly 9 protects his congregants so that they may observe the inviolable precepts of the 10 mitzvahs, and encourage and comfort one another during these troubling times of the 11 COVID-19 outbreak. His congregation needs to connect with one another in order to 12 receive the hope and encouragement they need to heal and grow in their Jewish faith. 13 87. The Orders are overbroad and unnecessary because Shabbat, Shacharit, 14 funerals, Bar Mitzvahs, Bat Mitzvahs, and weddings may be held in a manner 15 consistent with the social distancing guidelines. If restaurants, auto mechanics, and 16 marijuana dispensaries are capable of following these guidelines, his congregation is 17 certainly capable. 18 88. Chabad of Carmel Valley possesses a very large sanctuary that can 19 accommodate social distances beyond the six feet required by the County and CDC 20 requirements. Chabad of Carmel Valley can accommodate distances of up to ten feet 21 per person. 22 89. Chabad of Carmel Valley also provides space for open air services in a 23 very large garden. This garden can also accommodate social distance requirements. 24 90. In addition, regardless of whether services are held indoors or outdoors, 25 the Chabad can integrate masks, gloves, screens, veils, and other screening 26 mechanisms in order to protect congregants and inhibit the spread of COVID-19. 27 Rabbi Polichenco will also encourage anyone uncomfortable with gathering during 28 the pandemic to stay at home. He will also require that anyone who is sick to stay at 19 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.22 Page 22 of 128 1 home. 2 91. In other words, Rabbi Polichenco can, and will abide by the County’s 3 Social Distancing and Sanitation Protocol, and any other necessary guidelines, just 4 like any other organization. 5 92. These services are essential for the spiritual health of the congregation 6 so that the congregants can exhort one another and the will of God during these 7 difficult times. The Current State of the Pandemic 8 9 93. Due to the unified efforts of the American people, efforts to curb the 10 coronavirus have proven successful. 11 94. The flattening of the curve has been well documented by a medical 12 expert, Dr. George Deglado, M.D., who has been providing medical support and 13 direction to a COVID-19 planning group using Monte Carlo simulations to create 14 accurate planning models—models which have been consistently more accurate than 15 the State’s models. According to Dr. Delgado: 16 17 18 19 20 21 22 23 24 25 26 27 28 It is clear that due to mitigation measures carried out throughout California, the trajectory of the COVID-19 pandemic has been altered; the “curve has been flattened.” . . . Hospitalizations and deaths are both lagging indicators. In fact, deaths reflect infections that started approximately three weeks prior. Except in certain geographic pockets where flareups may occur, level or decreasing hospitalizations and death rates are reassuring that we have reached a plateau or even a decrease in the number of new infections. In California, the statistics support the flattening of the curve. Hospitalizations have remained at a relatively steady level and ICU admissions have trended downward. Deaths have been at a plateau since early April 6 with the daily death count from April 6 to May 2 ranging from 31 to 115 per day. Only one of those days had 100 or more deaths. Eight of those days had 20 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.23 Page 23 of 128 counts less than 50. Again, deaths are the last lagging indicator. 1 2 Los Angeles County has reported about 1,200 deaths (out of California’s approximate total of 2,200). The curve of new deaths has flattened, similar to the California curve. The Monte Carlo model predicts that total deaths in Los Angeles County will be approximately 1,900, for this year. 3 4 5 6 The measure R0 (“R naught”) gives an indication of how many additional persons an infected person can infect. When R0 drops below one, an outbreak loses steam and begins to subside. Our model shows that in Los Angeles County R0 decreased to less than one in early April. 7 8 9 10 95. 11 The flattening is also well documented by Kevin Systrom and Mike 12 Krieger, the founders of Instagram, who have created a website called Rt.live to track 13 the transmission rate nationwide. Like Dr. Delgado, their website shows that the 14 curve has effectively flattened. 10 96. 15 This flattening is also illustrated by a review of the death rates in 16 California. According to publicly available documents, as of July 1, 2019, the 17 population of California is estimated to be 39,512,223 persons. 11 As of May 2, 2020, 18 there are a total of only 2,215 deaths in California. 12 Thus, the probability of dying of 19 COVID-19 in California is 5.6 out of 100,000. A comparison of California with other 20 states by the Statista.com shows that California is doing amazingly well.13 97. 21 The flattening is also well corroborated by reports that California 22 hospitals are laying off their staff because they have very few COVID-19 patients and 23 they are precluded from performing elective procedures (i.e., cancer surgery, heart 24 25 26 27 28 10 https://www.vox.com/recode/2020/4/21/21227855/coronavirus-spreading-bystate-instagram-effective-reproduction-rate 11 https://www.census.gov/quickfacts/fact/table/CA/PST045219 12 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ ncov2019.aspx#COVID-19%20by%20the%20Numbers. 13 https://www.statista.com/statistics/1109011/coronavirus-covid19-death-rates-usby-state/ 21 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.24 Page 24 of 128 1 surgery). 14 98. 2 Finally, the flattening of the curve was impressively illustrated in a 3 graphic published 15 by Elon Musk: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 California’s Four Stage Reopening Plan 21 99. 22 As a result of their unified efforts, Americans began anticipating the day 23 when they could reap the benefits of their hard work—their sacrifice. They began 24 anticipating a lessening of the extreme measures imposed on them by their 25 Governors, and began pushing for that lessening to come soon. 26 14 https://www.kusi.com/palomar-health-to-lay-off-317-employees-citing-lack-of27 revenue/; https://calmatters.org/health/coronavirus/2020/05/health-care-workerslayoffs-california-coronavirus-nurses-furloughs-pay-cuts-hospitals/. 28 15 https://twitter.com/elonmusk/status/1255678979043778560 22 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.25 Page 25 of 128 100. In response to that pressure, on Tuesday, April 27, 2020, Governor 1 2 Newsom held a press conference in which he outlined how we “have not only bent 3 the curve in the state of California, but stabilized it.” 16 As a result, “[t]he reality is, 4 we are just a few weeks away, not months away, from making measurable and 5 meaningful changes to our stay-at-home order.”17 This was supported by Governor 6 Newsom’s later recitation of the statistics: 7 8 9 10 11 12 The number of hospitalizations, 1.4% increase. Um, again, we’re seeing some stabilization, decrease, modest increase, decrease, modest increase, uh, in the total number of people hospitalized. The number of people in ICU’s basically flat from yesterday, just one individual, uh, more than in the last 24 hours in the ICU—so again, stabilization. 18 Towards the end of the press conference, Governor Newsom announced that during 13 a press conference on the next day, he would outline the forthcoming “measurable 14 and meaningful changes to our stay-at-home order.” 15 101. On Wednesday, Aril 28, 2020, Governor Newsom announced that those 16 “meaningful modifications” would come in the form of a four stage plan—with the 17 present situation representing Stage 1. 19 During the press conference, Governor 18 Newsom stressed that “the foundational point of emphasis we want to advance today 19 is phase 2 . . . is in weeks not months, phase 3 and 4, months not weeks.” 20 20 102. During the press conference, Dr. Sonia Angell—the Director of the 21 California Department of Public Health—explained Stage 2 as follows, and showed 22 the following graphic: 23 In stage 2, we’re going to really start focusing on lower risk workplaces, that means gradually opening some of those workplaces with adaptions. These include things like: 24 25 16 https://www.facebook.com/CAgovernor/videos/239711700434134/ at 6:03. Id. at 6:40. 18 27 19 Id. at 25:04. https://www.facebook.com/CAgovernor/videos/524013811808326/ 20 Id. at 48:43. 28 26 17 23 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.26 Page 26 of 128 Retail, allowing for curbside pickup; Manufacturing, which can include things like toys, clothing, other things, furniture, that was not a part of the essential sector; Talking about offices, this can include things like PR firms, and consulting, and other places where telework is not possible, but by modifying the environment itself, it can make it lower risk for individuals; and then ultimately talking about opening more public spaces, things like parks and trails, that may have historically been limited because of our concerns, trying to think about how we can modify that to make them safer for individuals to enjoy the outdoor spaces because we know physical activity is so important to our health, and this is also about health, clearly. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 103. Dr. Angell then described Stage 3 and 4 as follows: “The third stage is 20 21 when we get into those areas that may be higher risk, those sectors that we think will 22 take a lot more modification to adapt in a way that can make them places where people 23 can move with lower risk.”22 “Those are things like getting your hair cut, uh getting 24 your nails done, doing anything that has very close inherent relationships with other 25 people, where the proximity is very close.” 23 “And then ultimately, the space that we 26 21 Id. at 37:29. Id. at 35:22. 23 Id. at 35:52. 28 27 22 24 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.27 Page 27 of 128 1 all look forward to, someday as we move forward and work diligently together, is Stage 2 4, which would be the end of the stay-at-home order. And that’s when we’d be 3 opening all of our highest risk workplaces without modification necessary at that time, 4 because at that time we will know that we have identified a way that we can keep 5 people safe from COVID-19.24 6 7 8 9 10 11 12 13 14 15 104. Then, on May 4, 2020, Governor Newsom issued a press release in 16 17 which he stated that Stage 2 will begin, in part, on Friday, May 8, 2020. According to 18 that press release, only some businesses will be allowed to reopen, like “bookstores, 19 clothing stores, florists and sporting goods stores,” but not yet “offices, seated dining 25 20 at restaurants, shopping malls or schools.” 105. On May 7, 2020, Governor Newsom held a press conference to 21 22 announce the beginning of Stage 2, and the publication of his Resilience Roadmap 23 (Ex. 1-3.) During that press conference, Governor Newsom was asked by a journalist 24 why schools were being prioritized over places of worship. The following exchange 25 followed: 26 24 Id. at 46:49. https://www.gov.ca.gov/2020/05/04/governor-newsom-provides-update-on28 californias-progress-toward-stage-2-reopening/ 27 25 25 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.28 Page 28 of 128 Q: Thank you Governor. Can you clarify why churches and salons are in Stage 3 and not Stage 2. Um, what makes them more high risk than schools, for example? Uh, what factors are you weighing here when you decide what goes into what phase? 1 2 3 4 A: Yeah, we’re, we’re looking at the science, epidemiology, looking again at frequency, duration, time, uh, and looking at low risk-high reward, low risk-low reward, looking at a series of conditions and criteria, as well as best practices uh from other states and nations. 26 5 6 7 8 9 In other words, places of worship are being sidelined because they provide a “low 10 reward” in the eyes of California. 11 106. On May 7, 2020, Governor Newsom also published his Resilience 12 Roadmap online. (Ex. 1-3.) That Roadmap identifies the industries that may open 13 immediately (retail for curbside pickup, manufacturing and logistics), those that will 14 open in a few weeks (shopping malls, car washes, schools, restaurants), and those 15 that cannot open for several months, until Stage 3 is announced (salons, tattoo 16 parlors, gyms, bars, movie theaters, and places of worship). (Ex. 1-3, at 9). For each 17 industry that will be allowed to open in Stage 2, the Roadmap also linked to industry18 specific Pandemic Guidance that the industry must comply with. The industry must 19 both comply with the guidance, and certify to the state that it is in compliance. The 20 Guidance for two industries opening immediately—manufacturing and logistics—is 21 included in Exhibits 1-3. At the same time, Governor Newsom published a press 22 release announcing the Resilience Roadmap, and explaining the same. (Ex. 1-4.) 23 Conclusion 24 107. In full understanding of the public and private danger posed by the 25 coronavirus, churches and people of faith have conducted themselves, and intend to 26 continue conducting themselves, in a manner that adheres to CDC and California 27 guidelines on social distancing and safe gatherings. There is no generic protocol 28 26 https://www.facebook.com/CAgovernor/videos/260976601615609/, at 50:36. 26 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.29 Page 29 of 128 1 published by the State of California, but the County of San Diego’s Order includes a 2 requirement that essential businesses complete and comply with its Social Distancing 3 and Sanitation Protocol. (Ex. 2-2.) Plaintiffs are fully willing to comply with this 4 Protocol—and any reasonable Guidance mandated by the state—but they cannot 5 abide by an indefinite shut down of their churches. 6 108. To be blunt, California’s present regime, which mandates that 7 Californians who need the Spirit of Almighty God settle for the lesser spirits 8 dispensed out of California’s liquor stores, is demeaning and denigrating to all 9 persons of faith. Plaintiffs contend that, at least for their congregants, their 10 assemblies are an “essential service” and should therefore, because of fundamental 11 First Amendment Protections, be treated equal to Stage 2 “essential” businesses. 12 109. California’s targeting of religious adherents and total ban from religious 13 assembly, even in a manner consistent with governmental social distancing 14 guidelines, while permitting similar (and at times even more intimate) social 15 interaction to continue unabated in retail and commercial establishments, flouts the 16 protections of the U.S. and California Constitutions. 17 110. Thus, Plaintiffs bring this case to highlight the troubling erosion of 18 fundamental and cherished liberties wrought by the imposition of the Orders and the 19 Four Stage Reopening Plan, and their unconstitutional enforcement by the California 20 Attorney General and San Diego police. 21 111. Plaintiffs do not seek to discredit or discard the government’s 22 unquestionable interest in doing that task for which it was instituted—protecting the 23 citizenry. But, as is often true in times of crisis and fear, Plaintiffs respectfully submit 24 that to uphold its sworn duties, California has—perhaps unwittingly, perhaps not— 25 stepped over a line the U.S. and California Constitutions do not permit. Plaintiffs 26 thus bring this action to ensure that this Court safeguard the cherished liberties for 27 which millions have fought, bled, and died. For, “[i]f the provisions of the 28 Constitution be not upheld when they pinch as well as when they comfort, they may 27 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.30 Page 30 of 128 1 as well be discarded.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) 2 (Sutherland, J., dissenting). 3 FIRST CLAIM FOR RELIEF 4 Free Exercise Clause of First Amendment to U.S. Constitution 5 (By all Plaintiffs against All Defendants) 6 112. Plaintiffs incorporate by reference all allegations contained in the 7 preceding paragraphs as though fully set forth herein. 8 113. The Orders and Defendants’ enforcement thereof violate the First 9 Amendment, both facially and as-applied to Plaintiffs. The First Amendment of the 10 Constitution protects the “free exercise” of religion. Fundamental to this protection 11 is the right to gather and worship. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 12 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain 13 subjects from the vicissitudes of political controversy, to place them beyond the reach 14 of majorities and officials and to establish them as legal principles to be applied by the 15 courts . . . [such as the] freedom of worship and assembly.”). The Free Exercise 16 Clause applies to the states through the Due Process Clause of the Fourteenth 17 Amendment. Cantwell v. Connecticut, 310 U.S. 296 (1940). 18 114. As the Supreme Court has noted, “a law burdening religious practice 19 that is not neutral or not of general application must undergo the most rigorous of 20 scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). 21 “A law is not generally applicable if its prohibitions substantially underinclude non22 religiously motivated conduct that might endanger the same governmental interest 23 that the law is designed to protect.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 24 (9th Cir. 2015) (citing Lukumi, 508 U.S. at 542–46). “In other words, if a law pursues 25 the government’s interest ‘only against conduct motivated by religious belief,’ but 26 fails to include in its prohibitions substantial, comparable secular conduct that would 27 similarly threaten the government’s interest, then the law is not generally 28 applicable.” Id. 28 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.31 Page 31 of 128 1 115. The Orders and Reopening Plan are neither neutral nor of general 2 application. Defendants’ restrictions have specifically and explicitly targeted religious 3 and “faith-based” services and are thus not neutral on their face. Defendants have 4 prohibited certain public and private gatherings deemed “non-essential,” including 5 out-of-home religious services, while exempting a laundry list of industries and 6 services purportedly “essential” to the government’s various interests, including 7 medical cannabis dispensaries and other medical providers, courts, public utilities, 8 daycare and childcare, and “necessary” shopping. 9 116. In addition to relegating all faith activities to a third-class status (at best), 10 Defendants have threatened criminal penalties for holding in person services, and 11 have thus substantially burdened Plaintiffs’ religious exercise. Defendants have 12 forced Plaintiffs to choose between their sincerely held religious beliefs and their 13 desire to follow secular rules, in many cases imposed by unelected officials. 14 117. Laws and government actions that burden religious practice and are 15 either not neutral or not generally applicable must satisfy a compelling governmental 16 interest and be narrowly tailored to achieve that end. 17 118. Defendants’ mandates are not “narrowly tailored” to further any 18 compelling governmental interest. Defendants have granted numerous special 19 exemptions to their bans on public gatherings and conduct, including for purportedly 20 “essential” businesses and activities, provided that social distancing practices are 21 observed. Since these gatherings may be permitted, there can be no doubt that 22 Defendants must permit Plaintiffs to engage in religious activities and services 23 provided that Plaintiffs also adhere to the social distancing guidelines currently in 24 place. 25 119. Requiring Plaintiffs to abstain from religious gatherings, despite 26 substantial modifications to satisfy the public health interests at stake, violates 27 Plaintiffs’ Constitutional right to free exercise of religion. The state does not have the 28 power under our Constitutional scheme to decree that as to faith activities, 29 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.32 Page 32 of 128 1 “streaming” (for those congregations and parishioners with the wealth and 2 technological acumen to partake of such truncated substitutes) is “good enough” 3 when at the same time the state protects the entertainment industry and media 4 organizations’ First Amendment rights while denying the Plaintiffs their First 5 Amendment rights. 6 120. Plaintiffs have no adequate remedy at law and will suffer serious and 7 irreparable harm to their constitutional rights unless Defendants are enjoined from 8 implementing and enforcing the Orders. 9 121. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 10 declaratory relief and temporary, preliminary, and permanent injunctive relief 11 invalidating and restraining enforcement of the Orders. 12 122. Plaintiffs found it necessary to engage the services of private counsel to 13 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 14 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. 15 SECOND CLAIM FOR RELIEF 16 Free Exercise of Religion of Article I, Section 4, of the Cal. Constitution 17 (By all Plaintiffs against All Defendants) 18 123. Plaintiffs incorporate by reference all allegations contained in the 19 preceding paragraphs as though fully set forth herein. 20 124. In California “[f]ree exercise and enjoyment of religion without 21 discrimination or preference are guaranteed.” Cal. Const. Art. 1, §4. 22 125. “In general, the religion clauses of the California Constitution are read 23 more broadly than their counterparts in the federal Constitution.” Carpenter v. City 24 and County of San Francisco, 93 F.3d 627, 629 (9th Cir. 1996). Courts “therefore 25 review [a] challenge. . . under the free exercise clause of the California Constitution 26 in the same way [they] might have reviewed a similar challenge under the federal 27 Constitution after Sherbert, and before Smith. In other words, we apply strict 28 scrutiny.” Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 562 30 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.33 Page 33 of 128 1 (2004) (citations omitted). 2 126. For the reasons stated in Plaintiffs’ First Claim for Relief, requiring 3 Plaintiffs to abstain from its religious gatherings, despite substantial modifications to 4 satisfy the public health interests at stake, violates Plaintiffs’ free exercise rights 5 under the California Constitution as well. 6 127. Plaintiffs have no adequate remedy at law and will suffer serious and 7 irreparable harm to their constitutional rights unless Defendants are enjoined from 8 implementing and enforcing the Orders, or are enjoined from at least finding religious 9 services to be stage-two “essential.” 10 128. Plaintiffs have found it necessary to engage the services of private 11 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an 12 award of attorney fees and costs pursuant to California Code of Civil Procedure 13 Section 1021.5. 14 THIRD CLAIM FOR RELIEF 15 Establishment Clause of First Amendment to U.S. Constitution 16 (By all Plaintiffs against All Defendants) 17 129. Plaintiffs incorporate by reference all allegations contained in the 18 preceding paragraphs as though fully Set forth herein. 19 130. The Orders and Defendants’ enforcement thereof violate the First 20 Amendment, both facially and as-applied to Plaintiffs. The Establishment Clause of 21 the “First Amendment mandates governmental neutrality between religion and 22 religion, and between religion and nonreligion.” McCreary Cty., Ky. v. Am. Civil 23 Liberties Union of Ky., 545 U.S. 844, 860 (2005) (citing Epperson v. Arkansas, 393 U.S. 24 97, 104 (1968)). The Establishment Clause applies to the states through the Due 25 Process Clause of the Fourteenth Amendment. Everson v. Board of Ed. of Ewing, 330 26 U.S. 1 (1947). 27 131. The Orders, as stated, advance no secular purpose. Defendants have 28 made numerous exceptions to their Orders, permitting the same conduct 31 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.34 Page 34 of 128 1 (counseling) if performed by secular practitioners but not religious ministers. 2 Defendants have also distinguished between religions, permitting services that can be 3 performed via livestream to proceed, but banning all Jewish services that require in4 person participation. It is not for Defendants to determine which faiths may have 5 their services proceed. 6 132. The Orders and Defendants’ ad hoc enforcement of them have the 7 primary effect of inhibiting religious activity. 8 133. Defendants have failed to avoid excessive government entanglement 9 with religion. Defendants permit only some forms of religious observance, such as 10 livestreamed, at-home religious activities. 11 134. There is no historical precedent in the United States for inhibiting 12 religious practices on terms more restrictive than those imposed on identical secular 13 activities, as Defendants do now. 14 135. Plaintiffs have no adequate remedy at law and will suffer serious and 15 irreparable harm to their constitutional rights unless Defendants are enjoined from 16 implementing and enforcing the Orders. 17 136. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 18 declaratory relief and temporary, preliminary, and permanent injunctive relief 19 invalidating and restraining enforcement of the Orders. 20 137. Plaintiffs found it necessary to engage the services of private counsel to 21 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 22 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. 23 FOURTH CLAIM FOR RELIEF 24 Free Speech Clause of First Amendment to U.S. Constitution 25 (By all Plaintiffs against All Defendants) 26 138. Plaintiffs incorporate by reference all allegations contained in the 27 preceding paragraphs as though fully Set forth herein. 28 139. The Orders and Defendants’ enforcement thereof violate the First 32 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.35 Page 35 of 128 1 Amendment, both facially and as-applied to Plaintiffs. 2 140. Under Defendants’ Orders, public gatherings and church services are 3 prohibited. 4 141. Plaintiffs engage in protected speech through worship, religious 5 discussions, singing hymns, and praying with their congregation. 6 142. Defendants’ imposition of the Orders is unreasonable and has a chilling 7 effect on protected speech by outright banning in-person church services at the pain 8 of criminal penalty. Additionally, the City Orders state that “[e]ach individual officer 9 should use their discretion in enforcing this order and always keep the intent of the 10 order in mind.” But the City Orders fail to provide any guidance as to what violations 11 would be prioritized, leaving it up to the officers’ unfettered discretion to decide 12 which violations to enforce. Such a lack of standards along with a grant of such 13 discretion renders the Orders unconstitutional both facially and as they are applied. 14 143. The Orders are unconstitutionally overbroad, and therefore void as a 15 matter of law, both on their faces, and as it is applied. 16 144. Plaintiffs have no adequate remedy at law and will suffer serious and 17 irreparable harm to their constitutional rights unless Defendants are enjoined from 18 implementing and enforcing the Orders. 19 145. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 20 declaratory relief and temporary, preliminary, and permanent injunctive relief 21 invalidating and restraining enforcement of the Orders. 22 146. Plaintiffs found it necessary to engage the services of private counsel to 23 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 24 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. 25 FIFTH CLAIM FOR RELIEF 26 Freedom of Speech of Article I, Section 2, of the Cal. Constitution 27 (By all Plaintiffs against All Defendants) 28 147. Plaintiffs incorporate by reference all allegations contained in the 33 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.36 Page 36 of 128 1 preceding paragraphs as though fully set forth herein. 2 148. In California, “[e]very person may freely speak, write and publish his or 3 her sentiments on all subjects, being responsible for the abuse of this right. A law may 4 not restrain or abridge liberty of speech or press.” Cal. Const. Art. 1, §2. 5 149. “The California Supreme Court has recognized that the California 6 Constitution is ‘more protective, definitive and inclusive of rights to expression and 7 speech’ than the First Amendment to the United States Constitution.” Rosenbaum v. 8 City and County of San Francisco, 484 F.3d 1142, 1167 (9th Cir. 2007). 9 150. For the reasons stated in Plaintiffs’ Fourth Claim for Relief, requiring 10 Plaintiffs to abstain from their religious gatherings, despite substantial modifications 11 to satisfy the public health interests at stake, violates Plaintiffs’ liberty of speech 12 rights under the California Constitution as well. 13 151. Plaintiffs have no adequate remedy at law and will suffer serious and 14 irreparable harm to their constitutional rights unless Defendants are enjoined from 15 implementing and enforcing the Orders. 16 152. Plaintiffs have found it necessary to engage the services of private 17 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an 18 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure 19 Section 1021.5. 20 SIXTH CLAIM FOR RELIEF 21 Violation of First Amendment Freedom of Assembly Clause 22 (By all Plaintiffs against All Defendants) 23 153. Plaintiffs incorporate by reference all allegations contained in the 24 preceding paragraphs as though fully set forth herein. 25 154. The Orders and Defendants’ enforcement thereof violate the First 26 Amendment, both facially and as-applied to Plaintiffs. The First Amendment of the 27 Constitution protects the “right of the people peaceably to assemble.” The Freedom 28 of Assembly Clause was incorporated against the states in De Jonge v. Oregon, 299 34 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.37 Page 37 of 128 1 U.S. 353 (1937). 2 155. “The right of free speech, the right to teach, and the right of assembly 3 are, of course, fundamental rights.” Whitney v. California, 274 U.S. 357, 373 (1927). 4 When a government practice restricts fundamental rights, it is subject to “strict 5 scrutiny” and can be justified only if it furthers a compelling government purpose 6 and, even then, only if no less restrictive alternative is available. See, e.g., San Antonio 7 Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973); Dunn v. Blumstein, 405 U.S. 8 330 (1972). 9 156. By denying Plaintiffs the ability to conduct services, Defendants are in 10 violation of the Freedom of Assembly Clause. Defendants cannot meet the no-less11 restrictive-alternative test. The CDC’s and the County’s social distancing guidelines 12 are appropriate to limit the spread of COVID-19. Imposing more restrictive 13 requirements that target churches while at the same time allowing manufacturing, 14 logistics, offices, retail, and restaurants to open is not the least restrictive means of 15 achieving Defendants’ public safety goals. 16 157. Requiring Plaintiffs to abstain from religious gatherings, despite 17 substantial modifications to satisfy the public health interests at stake, violates 18 Plaintiffs’ Constitutional right to peaceably assemble. 19 158. Plaintiffs have no adequate remedy at law and will suffer serious and 20 irreparable harm to their constitutional rights unless Defendants are enjoined from 21 implementing and enforcing the Orders. 22 159. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 23 declaratory relief and temporary, preliminary, and permanent injunctive relief 24 invalidating and restraining enforcement of the Orders. 25 160. Plaintiffs found it necessary to engage the services of private counsel to 26 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 27 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. 28 /// 35 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.38 Page 38 of 128 1 SEVENTH CLAIM FOR RELIEF 2 Freedom of Assembly of Article I, Section 3, of the California Constitution 3 (By all Plaintiffs against All Defendants) 4 161. Plaintiffs incorporate by reference all allegations contained in the 5 preceding paragraphs as though fully set forth herein. 6 162. In California “[t]he people have the right to . . . assemble freely to 7 consult for the common good.” Cal. Const. Art. 1, §3. 8 163. For the reasons stated in Plaintiffs’ Sixth Claim for Relief, requiring 9 Plaintiffs to abstain from their religious gatherings, despite substantial modifications 10 to satisfy the public health interests at stake, violates Plaintiffs’ right to assemble 11 freely under the California Constitution as well. 12 164. Plaintiffs have no adequate remedy at law and will suffer serious and 13 irreparable harm to their constitutional rights unless Defendants are enjoined from 14 implementing and enforcing the Orders. 15 165. Plaintiffs have found it necessary to engage the services of private 16 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an 17 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure 18 Section 1021.5. 19 EIGHTH CLAIM FOR RELIEF 20 Right to Liberty of Article I, Section 1, of the California Constitution 21 (By all Plaintiffs against All Defendants) 22 166. Plaintiffs incorporate by reference all allegations contained in the 23 preceding paragraphs as though fully set forth herein. 24 167. In California, “[a]ll people are by nature free and independent and have 25 inalienable rights. Among these are enjoying and defending life and liberty, acquiring, 26 possessing, and protecting property, and pursuing and obtaining safety, happiness, 27 and privacy.” Cal. Const. Art. 1, §1. 28 168. California courts have found that Public Health Officials could not 36 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.39 Page 39 of 128 1 quarantine 12 blocks of San Francisco Chinatown because of nine deaths due to 2 bubonic plague. See Jew Ho v. Williamson, 103 F. 10 (C.C. Cal. 1900); Wong Wai v. 3 Williamson, 103 F. 1 (C.C. Cal. 1900). 4 169. In Jew Ho and Wong Wai, the California courts found that there were 5 more than 15,000 people living in the twelve blocks of San Francisco Chinatown who 6 were to be quarantined. The courts found it unreasonable to shut down the ability of 7 over 15,000 people to make a living because of nine deaths. This was one death for 8 every 1,666 inhabitants of Chinatown. 9 170. In Jew Ho, the court stated that it was “purely arbitrary, unreasonable, 10 unwarranted, wrongful, and oppressive interference with the personal liberty of 11 complainant” who had “never had or contracted said bubonic plague; that he has 12 never been at any time exposed to the danger of contracting it, and has never been in 13 any locality where said bubonic plague, or any germs of bacteria thereof, has or have 14 existed.” Jew Ho, 103 F. 10. 15 171. California courts have instead focused on the necessity of there being 16 “reasonable grounds [] to support the belief that the person so held [quarantined] is 17 infected.” Ex parte Martin, 83 Cal. App. 2d 164 (1948). Public Health Officials must 18 be able to show “probable cause to believe the person so held has an infectious 19 disease. . . .” Id. “[A] mere suspicion [of a contagious disease], unsupported by facts 20 giving rise to reasonable or probable cause, will afford no justification at all for 21 depriving persons of their liberty and subjecting them to virtual imprisonment under a 22 purported order of quarantine.” Ex parte Arta, 52 Cal. App. 380, 383 (1921) 23 (emphasis added). 24 172. As stated above, as of May 2, 2020, COVID-19 is responsible for 2,215 25 deaths in California. As of July 1, 2019, the population of California is estimated to be 26 39,512,223 persons. Thus, the probability of dying of COVID-19 in California is 5.6 27 out of 100,000. 28 173. Plaintiffs have never had or contracted said coronavirus, and have not 37 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.40 Page 40 of 128 1 had any contact with individuals who have tested positive. 2 174. Requiring Plaintiffs to abstain from all religious gatherings, despite 3 substantial modifications to satisfy the public health interests at stake, violates their 4 California Constitutional liberty rights. 5 175. Plaintiffs have no adequate remedy at law and will suffer serious and 6 irreparable harm to their constitutional rights unless Defendants are enjoined from 7 implementing and enforcing the Orders. 8 176. Plaintiffs have found it necessary to engage the services of private 9 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an 10 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure 11 Section 1021.5. 12 NINTH CLAIM FOR RELIEF 13 Violation of Substantive Rights in the Due Process Clause of 14 Fourteenth Amendment to U.S. Constitution 15 (By all Plaintiffs against All Defendants) 16 177. Plaintiffs incorporate by reference all allegations contained in the 17 preceding paragraphs as though fully set forth herein. 18 178. The Orders and Defendants’ enforcement thereof violate Plaintiffs’ 19 substantive due process rights secured by the Fourteenth Amendment to the U.S. 20 Constitution. Under the Due Process Clause of the Fourteenth Amendment, no State 21 shall “deprive any person of life, liberty, or property, without due process of law.” 22 The fundamental liberties protected by this Clause include most of the rights 23 enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U.S. 145, 147–149 24 (1968). In addition, these liberties extend to certain personal choices central to 25 individual dignity and autonomy, including intimate choices that define personal 26 identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. 27 Connecticut, 381 U.S. 479, 484–486 (1965). 28 179. Plaintiffs’ rights to freedom of religion, assembly, speech, and travel are 38 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.41 Page 41 of 128 1 fundamental rights protected by the U.S. Constitution. See, e.g., Aptheker v. Secretary 2 of State, 378 U.S. 500, 520 (1964); Kent v. Dulles, 357 U.S. 116, 127 (1958). 3 180. When a government practice restricts fundamental rights such as the 4 right to practice religion freely, assemble peacefully, speak, and travel, it is subject to 5 “strict scrutiny” and can be justified only if it furthers a compelling government 6 purpose, and, even then, only if no less restrictive alternative is available. See, e.g. 7 Memorial Hospital v. Maricopa County, 415 U.S. 250, 257–58 (1974); Dunn v. 8 Blumstein, 405 U.S. 330, 339-341 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 9 (1969), Maher v. Roe, 432 U.S. 464, 488 (1977). 10 181. Strict scrutiny applies to Plaintiffs’ claims because the Orders mandate 11 that Plaintiffs stay at home, impinging on their fundamental rights to freedom of 12 religion, assembly, speech, and travel. These Orders do not permit Plaintiffs to 13 exercise these rights, even while conforming to the CDC and County guidelines for 14 social distancing, unless Defendants deem them “essential” or as participating in 15 “essential” activities. 16 182. Defendants’ mandates are not “narrowly tailored” to further any 17 compelling governmental interest. Defendants have granted numerous special 18 exemptions to their bans on public gatherings, including for purportedly “essential” 19 businesses and activities, provided that social distancing practices are observed; and 20 even for out-of-home religious services during Easter, an important day of religious 21 significance for Christians. Since these gatherings can be permitted, there can be no 22 doubt that Defendants may, and therefore must, permit Plaintiffs to engage in 23 equivalent constitutionally-protected activities provided that Plaintiffs also adhere to 24 the social distancing guidelines. 25 183. Plaintiffs have no adequate remedy at law and will suffer serious and 26 irreparable harm to their constitutional rights unless Defendants are enjoined from 27 implementing and enforcing the Orders. 28 184. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 39 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.42 Page 42 of 128 1 declaratory relief and temporary, preliminary, and permanent injunctive relief 2 invalidating and restraining enforcement of the Orders. 3 185. Plaintiffs found it necessary to engage the services of private counsel to 4 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 5 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. 6 TENTH CLAIM FOR RELIEF 7 Equal Protection Clause of Fourteenth Amendment to U.S. Constitution 8 (By all Plaintiffs against All Defendants) 9 186. Plaintiffs incorporate by reference all allegations contained in the 10 preceding paragraphs as though fully set forth herein. 11 187. The Orders and Defendants’ enforcement thereof violate the 12 Fourteenth Amendment, both facially and as-applied to Plaintiffs. The Fourteenth 13 Amendment of the Constitution provides that “[n]o State shall . . . deny to any 14 person within its jurisdiction the equal protection of the laws.” Equal protection 15 requires the state to govern impartially—not draw arbitrary distinctions between 16 individuals based solely on differences that are irrelevant to a legitimate 17 governmental objection. 18 188. Defendants intentionally and arbitrarily categorize individuals and 19 conduct as either “essential” or “non-essential.” Those persons classified as 20 “essential,” or as participating in essential services, are permitted to go about their 21 business and activities provided certain social distancing practices are employed. 22 Those classified as “nonessential,” or as engaging in non-essential activities, are 23 required to stay in their residence, unless it becomes necessary for them to leave for 24 one of the enumerated “essential” activities. 25 189. Strict scrutiny under the Equal Protection Clause applies where, as here, 26 the classification impinges on a fundamental right, including the right to practice 27 religion freely, the right to free speech and assembly, and the right to travel, among 28 others. 40 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.43 Page 43 of 128 1 190. Defendants cannot satisfy strict scrutiny, because their arbitrary 2 classifications are not narrowly tailored measures that further compelling government 3 interests, for the reasons stated above. 4 191. Plaintiffs have no adequate remedy at law and will suffer serious and 5 irreparable harm to their constitutional rights unless Defendants are enjoined from 6 implementing and enforcing the Orders. 7 192. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 8 declaratory relief and temporary, preliminary, and permanent injunctive relief 9 invalidating and restraining enforcement of the Orders. 10 193. Plaintiffs found it necessary to engage the services of private counsel to 11 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 12 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. 13 ELEVENTH CLAIM FOR RELIEF 14 Vagueness in Violation of the Due Process Clause of 15 Fourteenth Amendment to U.S. Constitution 16 (By all Plaintiffs against All Defendants) 17 194. Plaintiffs incorporate by reference all allegations contained in the 18 preceding paragraphs as though fully set forth herein. 19 195. The Orders and Defendants’ enforcement thereof violate the Due 20 Process Clause of the Fourteenth Amendment, both facially and as-applied to 21 Plaintiffs. 22 196. A regulation is constitutionally void on its face when, as matter of due 23 process, it is so vague that persons “of common intelligence must necessarily guess at 24 its meaning and differ as to its application” Connally v. General Const. Co., 269 U.S. 25 385, 391 (1926); People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1115 (1997). The void 26 for vagueness doctrine is designed to prevent arbitrary and discriminatory 27 enforcement. The problem with a vague regulation is that it “impermissibly delegates 28 basic policy matters to policemen, judges, and juries for resolution on an ad hoc and 41 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.44 Page 44 of 128 1 subjective basis. . . .” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). 2 197. Defendants’ Orders are void for vagueness for the following reasons: 3 a. The State Order provides that individuals are ordered to “heed” 4 State public health directives. The word “heed” is defined by 5 Webster’s Dictionary to mean “to give consideration or attention 6 to”—not specifically to adhere to those directives. Yet, the State 7 Order is widely reported in the media and cited by local and state 8 officials, including the County and City Orders, as compelling 9 compliance with State public health directives to shelter in place 10 unless conducting essential business. The State Order also includes 11 the text of the public health directive, which includes language that 12 ostensibly “order[s]” compliance, creating further ambiguity as to 13 whether Plaintiffs must comply with, or merely heed, the public 14 health directive. Accordingly, the State Order is vague as to what 15 precisely is being ordered, and what actions may result in criminal 16 penalties, fines, or imprisonment. 17 b. The City Orders both prohibit all gatherings, including at churches, 18 while also stating the following: “I hereby issue a strong 19 recommendation, consistent with Centers of Disease Control 20 guidance from March 16, 2020 to avoid non-essential gatherings to 21 the extent possible, to the leaders of the City’s houses of worship and 22 urge them, in the strongest possible terms, to limit gatherings on 23 their premises and to explore and implement ways to practice their 24 respective faiths while observing social distancing practices.” It is 25 ambiguous whether ignoring this “recommendation” will result in 26 prosecution. 27 c. All of the Orders, when issued, were surrounded by statements in 28 press conferences or press releases stating that they can be enforced, 42 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.45 Page 45 of 128 1 but will not always be enforced. And that citizens should police 2 themselves, and that officers should exercise good faith judgment. 3 Thus, without guidance, no reasonable person would know whether 4 his conduct is going to subject him to prosecution. In a March 19, 5 2020, press conference, Governor Newsom stressed that there will 6 be no police enforcement of the State Orders. 27 In March 18, 2020, 7 press conference, the County’s Dr. Wilma Wooten stressed that she 8 was only expecting 80%-90% compliance—which would be 9 sufficient.28 And in a March 20, 2020 press conference, the City’s 10 Police Chief Nisleit stated that “the approach that we are taking” is 11 simply “asking for compliance.” 29 198. As a result of these ambiguities, no reasonable person could understand 12 13 what conduct violates the Orders and might subject that person to criminal penalties. 199. Plaintiffs have no adequate remedy at law and will suffer serious and 14 15 irreparable harm to their constitutional rights unless Defendants are enjoined from 16 implementing and enforcing the Orders. 200. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to 17 18 declaratory relief and temporary, preliminary, and permanent injunctive relief 19 invalidating and restraining enforcement of the Orders. 201. Plaintiffs found it necessary to engage the services of private counsel to 20 21 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of 22 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. 23 /// 24 /// 25 /// 26 27 https://www.facebook.com/CAgovernor/videos/494465634769746/, at 4:00 and 27 34:00. 28 https://youtu.be/sogjrotTCSw, at 1:10:15. 29 https://youtu.be/zIXUA3lrJYk, at 9:33, 14:45. 28 43 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.46 Page 46 of 128 PRAYER FOR RELIEF 1 2 WHEREFORE, Plaintiffs respectfully pray for judgment against Defendants 3 and request the following relief: 4 A. An order and judgment declaring that the Orders, facially and as-applied to 5 Plaintiffs, violate the First and Fourteenth Amendments to the U.S. 6 Constitution and Article 1, Sections 1, 2, and 4 of the California 7 Constitution; 8 B. An order temporarily, preliminarily, and permanently enjoining and 9 prohibiting Defendants from enforcing the Orders except as to requiring 10 Plaintiffs to comply with the County of San Diego’s Social Distancing and 11 Sanitation Protocol, and any other reasonable protocol; 12 C. For attorneys’ fees and costs; and 13 D. Such other and further relief as the Court deems appropriate and just. 14 Respectfully submitted, 15 16 LiMANDRI & JONNA LLP 17 18 Dated: May 8, 2020 19 By: 20 21 ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs 22 23 24 25 26 27 THOMAS MORE SOCIETY Dated: May 8, 2020 By: ____________________ Thomas Brejcha Peter Breen Attorneys for Plaintiffs 28 44 Complaint for Declaratory & Injunctive Relief Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.47 Page 47 of 128 1 DHILLON LAW GROUP INC. 2 3 4 Dated: May 8, 2020 5 6 7 By: ____________________ Harmeet K. Dhillon Mark P. Meuser Gregory R. Michael Attorneys for Plaintiffs 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45 Complaint for Declaratory & Injunctive Relief