Commey v. De Blasio

Background

Aaron Commey, proceeding without a lawyer, sued Eric Adams in his official capacity as Mayor of the City of New York. Commey challenged the “Key to the City” Executive Order, which required patrons of establishments offering indoor entertainment, food, fitness, and certain event-space services to show proof that they had received an approved COVID-19 vaccine.

Commey alleged that the order violated the First and Fourteenth Amendments. In support of his request for emergency relief, he stated that he could not use his gym membership, attend sporting events or movie theaters, eat inside restaurants, or participate in political events and gatherings held in covered spaces. He argued that these restrictions caused irreparable harm by interfering with his rights to receive ideas, associate and assemble, and receive substantive and procedural due process.

Commey’s motion also referred to freedom of religion and to the Fourteenth Amendment’s substantive-due-process guarantee and the Eighth Amendment’s ban on cruel and unusual punishment. The court stated that he had not alleged facts supporting his standing to bring those claims, including facts showing that he had not received a vaccine for religious reasons or that he had been prevented from obtaining or keeping employment.

Motion and legal standard

The court interpreted Commey’s filing as seeking only a temporary restraining order, not a preliminary injunction. The court explained that the standards are the same for both forms of relief. Commey therefore had to show that he was likely to succeed on the merits, likely to suffer irreparable harm without relief, that the balance of equities favored him, and that an injunction would serve the public interest. He could also satisfy the merits requirement by showing serious legal questions warranting litigation together with a sharply favorable balance of hardships.

Court’s analysis

The court concluded that Commey had not shown either a likelihood of success or sufficiently serious legal questions combined with a sharply favorable balance of hardships. It relied on decisions from courts in the circuit that had rejected or found unlikely to succeed similar First Amendment, religious-freedom, association, assembly, and due-process challenges to COVID-19 restrictions, including challenges to the same Executive Order.

The court therefore found that Commey was unlikely to succeed on his constitutional claims. The opinion denied his motion for a temporary restraining order. It did not enter a final ruling resolving the underlying constitutional claims.

Disposition

The court denied Commey’s motion for a temporary restraining order. It stated that, if Commey served Adams within 90 days after filing the complaint, he could renew his request for preliminary relief by filing a motion for a preliminary injunction, to which Adams would have an opportunity to respond. The Clerk was directed to mail Commey a copy of the order and note service on the docket.