PHILADELPHIA – A trio of federal appellate court judges have concurred with a Philadelphia trial court, in denying a local organization honoring Vietnam War veterans an injunction to proceed with a memorial parade, against citywide restrictions on gatherings previously implemented due to the COVID-19 pandemic.
On March 23, U.S. Court of Appeals for the Third Circuit judges Joseph A. Greenaway Jr., Peter J. Phipps and Robert E. Cowen ruled that the Philadelphia Vietnam Veterans Memorial Society was properly denied its injunctive relief, in its federal litigation against Philadelphia Mayor Jim Kenney and acting Managing Director of the City, Tumar Alexander.
It all began on July 14, 2020, when the City of Philadelphia’s Office of Special Events issued an event moratorium advising that the Office of Special Events would not “accept, review, process, or approve applications, issue permits, or enter into agreements for special events or public gatherings of 50 or more people on public property through Feb. 28, 2021,” with exceptions made for constitutionally protected activities and demonstrations.
The plaintiff then filed suit against Kenney and Alexander on Oct. 30, 2020, arguing its constitutional rights were being violated through the order and follow-up order issued by the City rescinding the moratorium on Nov. 23 of that year.
However, U.S. District Court for the Eastern District of Pennsylvania Judge Nitza I. Quiñones Alejandro ruled Dec. 23, 2020 that Philadelphia Vietnam Veterans Memorial Society had not shown that it would suffer irreparable harm, if it were not to be granted an injunction allowing it to host its annual parade to honor Vietnam War veterans.
Alejandro said the group did not demonstrate a likelihood of succeeding on the merits of its claims, or of irreparable harm in not being granted the requested injunction.
“Defendants’ restrictions appear sufficiently narrowly tailored to serve the government’s significant interests in reducing the spread of COVID-19. While plaintiff notes public health experts’ warnings that indoor gatherings pose a higher risk of virus transmission than outdoor gatherings, that difference does not necessitate the conclusion that regulations affecting outdoor gatherings are not appropriate or permissible,” Alejandro said.
“As noted, to pass the applicable level of scrutiny, the restrictions need only promote the substantial government interest in reducing the spread of COVID-19. This Court cannot conclude at this stage that limiting outdoor events to 10 persons per 1000 square feet and/or 2000 people total is not aligned with public health guidance recommending both social distancing and limits on public gatherings, even outdoors, to prevent the spread of COVID-19…the restrictions at issue here actually allow parades and other public gatherings, subject to density and maximum capacities.”
Though the defendants filed a motion to dismiss the case on Jan. 15, 2021, Alejandro placed the case in a suspended state – since the plaintiffs appealed her denial of injunctive relief to the Third Circuit, and that proceedings would resume there once the federal appellate court rendered its decision on that particular issue.
In writing for the Third Circuit, Greenaway concurred with the trial court.
“We agree with the District Court’s denial of PVV’s motion for a preliminary injunction against the moratorium. PVV has not shown that it will more likely than not suffer irreparable harm in the absence of a preliminary injunction. Whether the cause is moot or whether PVV lacked standing at the start of this action, the second prong of our analysis requires PVV to show that ‘it is more likely than not to suffer irreparable harm in the absence of preliminary relief.’ PVV cannot make that showing because there is not a sufficient chilling effect,” Greenaway said.
“Importantly, the Nov. 23, 2020 Executive Order expressly rescinded the moratorium providing that the City would not be enforcing permitting requirements for large public gatherings. This means that PVV can now host its parade, which was the impetus for the suit. For these reasons, we will affirm the order of the District Court, based on PVV’s failure to satisfy the requirements for a preliminary injunction – namely, irreparable harm.”
U.S. Court of Appeals for the Third Circuit case 21-1125
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05418
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com