Geller v. Cuomo

Background

During the early months of the COVID-19 pandemic, New York State and New York City issued executive orders restricting non-essential gatherings. The orders initially prohibited non-essential gatherings of any size and were later loosened to allow outdoor gatherings of up to ten people. At the time the complaint was filed, the restrictions applied to public gatherings in New York City through the Governor’s Executive Order 202.41 and Mayor de Blasio’s Executive Order 115.

Pamela Geller alleged that she planned a peaceful protest involving between 25 and 100 people wearing face coverings, practicing social distancing, and holding signs criticizing the gathering restrictions. She alleged that she canceled the protest after learning that the defendants considered such activity non-essential. She also alleged that state and city officials favored the viewpoint of protesters associated with the Black Lives Matter protests and selectively enforced the gathering restrictions against people who opposed the COVID-19 policies.

Geller sued Kathy Hochul, in her official capacity as Governor of New York, and Bill de Blasio and Dermot Shea, individually and in their official capacities. The court substituted Hochul for former Governor Andrew Cuomo under Federal Rule of Civil Procedure 25(d). Geller asserted claims under the First and Fourteenth Amendments. The Governor and the City defendants moved to dismiss under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim.

Mootness

The City argued that Geller’s requests for declarations and injunctions were moot because it represented that it would not enforce the gathering limits against her for protests consistent with the allegations in her complaint. The court nevertheless analyzed all of the claims because Geller also sought nominal damages and because the parties had not fully disputed whether all claims against the Governor were moot.

Facial challenge

Geller’s facial challenge attacked the executive orders themselves, rather than only their application to her circumstances. The court held that the challenge was barred by collateral estoppel, also called issue preclusion. That doctrine prevents a party from relitigating an issue that was actually and necessarily decided in an earlier proceeding after the party had a full and fair opportunity to litigate it.

In a prior related proceeding, a court had upheld a substantially similar gathering order that prohibited non-essential gatherings of any size. The court concluded that the earlier decision resolved the same central question presented here: whether COVID-19 public-health interests outweighed Geller’s First Amendment right to protest. The orders challenged in this case were less restrictive because they allowed gatherings of up to ten people, so the court found that the new allegations did not materially change the earlier analysis.

The court rejected Geller’s argument that officials’ statements about the Black Lives Matter protests and the City’s decision not to enforce the limits against her showed that the orders were actually viewpoint-based. It found no plausible allegation of an established policy favoring those protests. It also found that the orders were issued before George Floyd’s death and therefore could not plausibly have been adopted to suppress opposition to the restrictions based on the later protest activity.

The court added that the facial challenge would fail on the merits even if issue preclusion did not apply. It found the orders facially content-neutral because they applied to non-essential gatherings without regard to the message being expressed. Applying the public-health framework from Jacobson v. Massachusetts and, alternatively, intermediate scrutiny, the court held that the restrictions were constitutional. The restrictions served the substantial government interest of limiting COVID-19’s spread, were sufficiently tailored, were temporary and gradually loosened as conditions improved, and left alternative ways to communicate, including smaller gatherings, online activity, media appearances, and individual public protest.

As-applied challenge

An as-applied challenge contends that a law is unconstitutional when applied to a particular person or situation. The court held that Geller’s as-applied challenge was not ripe, meaning that the alleged dispute was not sufficiently concrete for judicial resolution. Geller had not applied for a permit, held the planned protest, taken concrete preparatory steps alleged in the complaint, or interacted with police or other officials. The court therefore found no credible threat that the gathering restrictions would be enforced against her.

The court stated that the as-applied claim would also fail on the merits. Geller’s planned protest involved protected political speech, but the court found the gathering restrictions content-neutral, related to the important goal of combating COVID-19, narrowly tailored to that goal, and accompanied by alternative communication channels. The court also noted Geller’s online presence and concluded that a protest involving 25 to 100 people was not the only effective way for her to express her views.

Selective enforcement and equal protection

Geller also alleged that officials selectively enforced the gathering restrictions in violation of equal protection. To state such a claim, she had to plausibly allege both that she was treated differently from similarly situated people and that the difference was based on an impermissible reason, such as an intent to punish the exercise of constitutional rights.

The court dismissed this theory because Geller had not actually protested or experienced different treatment. She alleged only that she would have been treated differently if she had held the planned protest. The court also found that the large, spontaneous, and sometimes volatile Black Lives Matter protests were not plausibly comparable to Geller’s planned, organized, smaller, peaceful, socially distanced demonstration. Finally, the court found no plausible facts showing that officials favored the Black Lives Matter viewpoint or sought to suppress opposition to the COVID-19 restrictions. The court noted that Geller alleged no specific enforcement action taken by the Governor or state police.

Other issues

Because the court found no constitutional violation, it did not decide whether qualified immunity applied. Qualified immunity can protect government officials from certain damages claims when the alleged conduct did not violate a clearly established constitutional right.

The City separately argued that Geller had not alleged Commissioner Shea’s personal involvement in any constitutional violation. Geller did not respond to that argument in her opposition brief. The court treated the argument as unopposed and granted the City’s motion as to Shea on that additional basis.

Disposition

The court granted the defendants’ motions to dismiss in their entirety and dismissed the case with prejudice. It directed the clerk to terminate the motions and enter judgment for the defendants.