A COVID tale

A San Francisco outdoor arts festival is saved by some fast legal footwork after City revokes permit due to COVID

2022 May

I’ve had some time to reflect back on the past two years, on my law practice, and how I was lucky enough to have played a part in setting some constitutional boundaries during the COVID pandemic, striking that delicate and important balance between personal freedom and governmental rules made for the good of all.

A time of hope and luck

It was October, 2020. Positive forecasts and great words of a developing vaccine gave us the first rays of hope after seven months of panic hell. Meanwhile, my fiancée and I had completely shut down our lives beginning that past March. No one came to us and we went to no one. Weekly grocery shopping had become an unwanted adventure, like dodging zombies in some Hollywood horror movie.

Luckily, my law practice was on track, mainly due to the pronouncement that the legal sector was going to be considered an “essential business.”

Plus, the government gave me loans to help me ‘stay engaged,” to stem the “shock,” to reduce my panic and help bridge the gap between crisis and normalcy. Sure. I’m in. I’ve practiced law for 26 years, it’s made me a living (some years better than others!) and I believe that laws are generally a good thing to promote.

The call

My old friend, mentor and he-who-gave-me-a-table-in-his-office-to-start-my-solo-law-practice-in-1995, called with a potential civil rights client. I was all ears. I am still in the law business, and still litigating civil rights cases. Any colleague who had, over many years, sent good clients my way, was always going to get my time.

His client was a non-profit arts organization. Its astute director saw COVID coming and how it would impact his organization’s annual fall arts festival. The director applied early, in April of 2020, for a permit to hold his organization’s annual fall festival outdoors so as to avoid COVID transmission.

However, by October, 2020 the political realities had changed in the face of a deadly virus. COVID had become our Frankenstein, our Jaws, our Jason, our worst fears. Enough said. We all know how it has kicked our asses.

Re-thinking its grant of the permit in the spring to my client, the City decided to cancel the event, citing Jacobson v. Massachusetts (1905) 197 U.S. 11, a case about the power of government to invoke emergency powers during a public health emergency, in that case, the smallpox crisis of the late 1800s/early 1900s. (Ward v. Rock Against Racism (1989) 491 U.S. 781.)

Do I take the case?

So, now I have to figure out whether I want to take this case. On one hand, I’m thinking, the government should have all the power it needs to do whatever it thinks is best to keep us alive, but on the other hand, they can’t just cut with a dull and blunt sword.

My “progressive” friends expressed horror at the thought I would challenge the government’s absolute authority to shut down the event, while my more “libertarian” world thought I was doing God’s work.

I wondered, if I took the case, could I live with the tension between my own sympathies for those in charge who I knew were trying their best and the Constitutional principles I had been litigating for over 25 years of my professional career?

I asked myself, was I OK with giving up arts? Didn’t we need that chance to watch and perform arts – audience and consumer in that creative embrace – in the middle of a crisis, to ease and distract us for a minute, to help us re-gain a normal moment so we ourselves could find a pathway back to normalcy?

I looked more closely, started to be more analytical and to cut through my sense of panic and crisis.

The language of the Court in one COVID case struck me, a civil rights advocate, as important: “even in a pandemic, the Constitution cannot be put away and forgotten.” (Roman Catholic Diocese of Brooklyn v. Cuomo (2020) 141 S.Ct. 63,                .)

At that point, there was pretty much clear scientific evidence that while outdoor transmission was possible, it was unlikely. And, I saw that this was a game of odds. The government had to allow certain activities – from consumers gathering food and other necessities, to manufacturers and producers filling the supply chain, to other essential activities necessary to keep us all fed, housed, powered, all with government still in control. There was no perfect lock-down. Choices were being made.

I researched the COVID cases winding their way through the courts, some of which had already had a stop at the U.S. Supreme Court. Most of the cases were brought by organized religions, with bans on indoor religious gatherings leading the litigation. Those plaintiffs argued that the bans violated their First Amendment right to freely exercise their religion without unnecessary government interference. Meanwhile, government was allowing outdoor protests in 2020 (many over police shootings), and those protesters too, invoked the First Amendment right that required the government to have a “compelling” interest to shut down their protected activities.

I dug deeper and read the thick pastiche of emergency, public health regulations that California and San Francisco drafted, re-drafted, updated, revised, re-posted, revised again and re-posted. It was “crisis law.” The government telling us what we could do and what we could not do. On the fly.

Outdoor gatherings were limited to small groups, families only. My client had offered to put small groups of audience members in separate pods around a park to watch the performances. The City said no. I thought that was wrong.

I take the case!

I planned to file for an injunction in federal court, preventing the City from cancelling the permit for this First Amendment-protected event.

I met the client on the 15th of October, a Thursday. The arts event was scheduled to start the following Saturday, the 24th. Not a lot of time to work.

By Friday, the 16th, I had managed to reach the City Attorney’s office and was able to schedule a meeting with their attorneys for Saturday morning, Oct. 17th, at 11:00 a.m. We had hoped to negotiate a compromise, reach a settlement that would allow the arts event to take place, outside, with appropriate social distancing, along with other protocols the City wanted. But, the City and its attorneys weren’t budging. The sky was falling. Come back next year.

The call ended at 11:45 a.m. I called my client and told him the result. He said, “Let’s file.” He then proceeded to literally bike/BART to the East Bay from San Francisco to deliver me a retainer check and sign the retainer agreement.

We filed all the paperwork on Monday, the 19th of October, in the U.S. District Court. (SFIAF et al. v. Breed and Newsom, USDC N.D.CA., # 3:20-cv-07314-JD.) Initially assigned a magistrate judge, I knew defendant would reject the magistrate just to throw a wrench at me and would seek an Article III-appointed judge. They did that, but luckily, I had impressed upon the court and its personnel of the fast-approaching October 24 date, now five days away.

We were still in the game, but the clock was ticking on the event start date with hundreds of artists, staff and audience members waiting eagerly to see what would happen. (Some artists who lived far away had already canceled their trip due to the uncertainty over the permit but numerous local artists were ready to perform along with an audience who had pre-purchased tickets.)

We had a new, Article III judge appointed by Tuesday the 20th, a briefing schedule by Wednesday the 21st, and a hearing on Thursday, the 22nd, just two days before the scheduled event.

At the hearing, via Zoom at 11:00 a.m. that Thursday, the 22nd, the judge signaled to the City that he was going to rule in our favor and suggested we step out of the courtroom and get into a “ZOOM,” talk, and see if we could figure it out ourselves or else he would issue a ruling by the end of the day.

By 1:00 p.m., the City called and told me they would allow the event. The event went on as planned. I watched the video of it later and it made me laugh and happy.

The upshot?

We are still learning what happened to us during this crisis, what impacts it had on our ability to function during a pandemic (not bad), what weaknesses it exposed in our system (some, but again, we hung in there) and what strengths came to the fore (many!!).

I am proud of the courts and of my profession and how the legal system functioned throughout this crisis. Yes, there were delays, missed filings and spotty service issues and all that. But, judges kept their courtrooms open, criminal cases were filed and charged, civil litigants saw their cases moving along, and most importantly, we used an orderly system – our Third Branch – to resolve the fundamental, Constitutional issues of personal freedom versus governmental power.