COVID-19 Emergency Executive Order Leads to Protestor Arrests in Park

November 18, 2021, Department, by James C. Kozlowski, J.D., Ph.D.

2021 December Law Review COVID 19 Emergency Executive Order Leads to Protestor Arrests 410

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In the case of Butler v. City of New York, 2021 U.S. Dist. LEXIS 170311 (S.D. N.Y. 9/8/2021), Plaintiffs Eric Butler and Jacob J. Katzburg brought a federal civil rights lawsuit, alleging their constitutional rights were violated when they were arrested at a protest in a city park. Plaintiffs were protesting the policies New York City Mayor Bill de Blasio had implemented in response to the coronavirus (COVID-19) pandemic. Plaintiffs were arrested for violating an executive order that banned all “non-essential gatherings.”

Facts of the Case

On March 23, 2020, in response to the seriousness, pervasiveness and evolving nature of the COVID-19 pandemic, the Governor of New York issued Executive Order 202.10, which, among other things, declared that all non-essential gatherings of individuals of any size for any reason were cancelled or postponed. Similarly, on March 25, 2020, the Mayor of New York City issued Emergency Executive Order 103 (EEO 103), which provided:

In order to avoid the mass congregation of people in public places and to reduce the opportunity for the spread of COVID-19 any nonessential gathering of individuals of any size for any reason shall be cancelled or postponed.

The Mayor extended the ban on non-essential gatherings several times. The ban was still in effect on May 9, 2020 when Plaintiffs, both residents of New York, gathered around 1 p.m. with approximately 20 other people in City Hall Park in New York City, to protest the executive orders the Mayor had issued in response to the COVID-19 pandemic.

According to Plaintiffs, the protestors attempted to maintain a distance of six feet between themselves, at all times, and several wore face coverings. Plaintiffs also alleged that, while the group was protesting, there were other park goers nearby, though they were not associated with each other.

At approximately 1:35 p.m., members of the New York City Police Department (NYPD) assembled outside the park. After standing outside the park for several minutes, the police formed a line that blocked off one of the entrances to the park. Once inside, the police officers played an audio recording over a loudspeaker, stating: “This is the New York City Police Department. Non-essential gatherings of any kind have been prohibited by the Governor and the Mayor. This gathering is unlawful, and you are ordered to disperse. If you fail to disperse immediately, you are subject to arrest.”

After playing the recording for five minutes, police officers approached Plaintiffs and the other protestors. Plaintiff Katzburg was ordered to leave the park. Katzburg objected, stating the park was open to the public and that he was exercising his First Amendment right to freedom of assembly. NYPD officers then arrested Katzburg. Police officers continued to escort other protesters out of the park. As Plaintiff Butler walked away from the park, he also was arrested. In total, nine protestors, including Plaintiffs, were arrested. Plaintiffs were released from custody later that day, each with a criminal summons.

The Mayor extended the ban on all non-essential gatherings twice more. On May 24, 2020, the ban was modified to permit non-essential gatherings of 10 or fewer individuals, as long as those individuals adhered to applicable physical distancing and cleaning protocols. The capacity limits were incrementally increased until June 15, 2021, when all capacity restrictions in response to the COVID-19 pandemic were lifted. Although New York subsequently entered a fourth surge, in large part due to the Delta variant, no capacity restrictions were reinstated.

Surviving a Motion to Dismiss

In their lawsuit, Plaintiffs alleged enforcement of the executive order “violated their First Amendment rights to freedom of speech, freedom of assembly, and right to petition the government for redress of grievances.” The City filed a motion to dismiss Plaintiffs’ lawsuit.

As noted by the federal district court, to survive the City’s motion to dismiss, the complaint in Plaintiffs’ lawsuit had to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” According to the court, within the context of a motion to dismiss: “A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Further, to survive a motion to dismiss, the court found: “The plaintiff must allege sufficient facts to show more than a sheer possibility that a defendant has acted unlawfully.” Accordingly, the question before the court on the City’s motion to dismiss was “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”

Public Health Regulation

In the motion to dismiss, the City contended the following “deferential framework” established by Supreme Court precedent should control the court’s constitutional analysis in this particular case:

[A] state or local law enacted to protect the public health will survive judicial scrutiny unless it bears no real or substantial relation to the public health, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.

The federal district court agreed that this precedent should govern consideration of Plaintiffs’ First Amendment claims, providing “a workable framework that balances the delicate considerations at play, i.e., responding to the COVID-19 pandemic and maintaining constitutional liberties.”

Accordingly, to overcome the City’s motion to dismiss, the federal district court would require Plaintiffs to show “EEO 103 bears no real or substantial relationship to the public health, or is a plain, palpable invasion of rights secured by fundamental law.” In the opinion of the court, Plaintiffs had failed to do so. As characterized by the court, EEO 103 was based on “the scientific understanding of how the SARS-CoV-2 virus spreads”:

[A]t the time that Plaintiffs were arrested, the scientific and medical communities believed that preventing in-person gatherings, including outdoor ones, was crucial to any strategy of containment, and courts in this District, including this one, agreed with that assessment, and the declining rates of infection following the enactment of EEO 103 validated that assessment at the time.

The court further noted there was “well established” agreement among courts, as well as much of the public that “COVID-19 is a highly infectious and potentially deadly disease.” In this particular instance, the court found “stemming the spread of COVID-19 is unquestionably a substantial government interest” and “EEO 103 was enacted to protect the public health.” As characterized by the court, the City had enacted EEO 103 “to slow the spread of a virus that had at that time hospitalized and killed tens of thousands of New Yorkers and infected hundreds of thousands more, in less than three months’ time.”

Constitutional First Amendment Regulation

As described by the court, “when a regulation is content neutral,” the following standard of judicial review would be applied to determine the constitutionality of a governmental regulation involving First Amendment activities:

[T]he government may implement content-neutral regulations to limit the time, place, or manner of expression, whether oral, written, or symbolized by conduct, even in a public forum [like a public park], so long as the restrictions are reasonable, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.

The court, however, acknowledged “narrowly tailored does not require a regulation to be the least restrictive or least intrusive means.” Instead, the court would find a regulation to be “narrowly tailored so long as it promotes a substantial government interest that would be achieved less effectively absent the regulation and is not substantially broader than necessary.”

Further, in determining content neutrality, the court would consider “whether the government has adopted a regulation of speech because of agreement or disagreement with the message it conveys.”

In applying the applicable analytical framework to determine the constitutionality of this particular emergency executive order, the federal district court determined “EEO 103 is narrowly tailored to serve a significant government interest and leaves open ample alternative challenges for communication”:

Given the severity of the public health crisis, the City has taken measures that are reasonable and narrowly tailored in temporarily prohibiting public gatherings. While a measure restricting all public group activity may not likely be found narrowly tailored in ordinary times, these times are extraordinary. The City has demonstrated that the scientific and medical communities believe that preventing in-person gatherings is crucial to any strategy of containment.

Moreover, those conclusions have only been bolstered since as conditions improved in the city and state while other states that imposed less restrictive measures saw an alarming surge in infection rates and deaths, showing that any progress attained may be fragile.

The court further noted: “[T]he declining rates of infection and death among New Yorkers is evidence not that the gathering ban is overly broad, but rather that it is effective.” In so doing, the court rejected Plaintiffs’ allegation that “subsequent loosening of the gathering restrictions constitutes a tacit admission of guilt” by the City. On the contrary, the court found “the subsequent orders, tied to improving infection rates across the city and state, are evidence that EEO 103 was narrowly tailored, as the restriction was temporary.”

Ample Communication Alternatives

The federal district court also found Plaintiffs had “ample alternative channels for the communication of their information, given that they were free to express their discontent online, through media, or by protesting individually.” While acknowledging “a single person protesting in public is not a perfect substitute for public group protests,” the court held “these alternatives were certainly acceptable given their temporary nature.” Accordingly, the court concluded “EEO 103 was far from a plain, palpable invasion of rights secured by fundamental law” under the First Amendment.

Viewpoint Discrimination

Further, in the opinion of the court, EEO 103 was content neutral “on its face” because the emergency order made “no reference to particular content.” Plaintiffs, however, argued the City “failed to enforce it in a content- and viewpoint-neutral manner.” According to Plaintiffs, “the discriminatory enforcement of EEO 103 was based solely on the content of the message of their protest, i.e., that they were critical of the manner in which Defendants responded to the COVID-19 pandemic.” Moreover, Plaintiffs claimed viewpoint discrimination was clearly evident because the City “did not enforce EEO 103 against other individuals who were at the park, such as those standing around a nearby fountain or walking their dogs, while the protest occurred.”

In response, the City argued Plaintiffs had failed to allege that “the other park goers were engaged in prohibited non-essential gatherings” on the day Plaintiffs were arrested. In so doing, the City emphasized “EEO 103 bars individuals from congregating regardless of the content expressed at their gathering.”

Plaintiffs also asserted “the discriminatory enforcement was even more blatant given the approach taken by Defendants against significantly larger groups that participated in the various protests in the days following the tragic death of George Floyd.” In particular, Plaintiffs pointed to “statements by the Mayor in response to the Black Lives Matter (BLM) protests.” According to Plaintiffs, “the only explanation for the alleged difference in enforcement of EEO 103 against the individuals protesting the murder of George Floyd and the Plaintiffs protesting Defendants’ response to the pandemic is that Defendants favored the former while abhorring the latter.”

In response, the City argued the BLM protests “bore no similarity to Plaintiffs’ gathering” because “the BLM protests involved huge numbers of people.” Accordingly, “from a law enforcement, public safety, or public health perspective,” the City maintained the BLM protests “could not be handled in the same manner in which Plaintiffs’ gathering was addressed.”

Selective Enforcement?

As noted by the federal district court, Plaintiffs had acknowledged “EEO 103 is content neutral on its face.” The question before the court was, therefore, whether EEO 103 was selectively applied in a manner which deprived Plaintiffs of their First Amendment rights.

In this particular instance, the court found the other park goers present during Plaintiffs’ arrest were “unassociated” and, therefore, not “gathering together in violation of the ban on non-essential gatherings.” On the contrary, the court noted: “Nothing about EEO 103 prevented people from individually going to City Hall Park.” As a result, the court concluded “the order could not be enforced against those other park goers.”

Moreover, in the opinion of the federal district court, Plaintiffs had failed to establish that the City favored the message of the BLM protesters. Given “tens of thousands engaged in street demonstrations in New York City on a near daily basis,” the court found the Mayor’s statements in connection with the BLM protests “may reasonably be construed as acquiescing to the inevitability of the protests, rather than actively ‘encouraging’ protests.”

Under such circumstances, the court found “public officials needed to have the flexibility to determine how to enforce the gathering restrictions, and to determine the circumstance under which arrest may or may not be appropriate.” Since the circumstances surrounding Plaintiffs’ arrest and the BLM protests were “drastically different,” the court rejected Plaintiffs’ claim that the evidence supported “a finding of content discrimination” as applied to Plaintiffs.

Void for Vagueness Doctrine

Plaintiffs also had claimed EEO 103 was “void for vagueness, and therefore, violates the due process clause of the Fourteenth Amendment.” As defined by the federal district court, the “void-for-vagueness doctrine” requires a penal statute to clearly define a criminal offense as follows:

(1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement.

While “a law must provide explicit standards,” the court noted, “it need not achieve meticulous specificity, which would come at the cost of flexibility and reasonable breadth”:

The touchstone of the first prong, the notice prong, is whether the statute [or this emergency order], either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal, while the arbitrary enforcement prong requires that a statute give minimal guidelines to law enforcement authorities.

Plaintiffs had argued that EEO 103 was void for vagueness because the emergency executive order “does not define the term ‘non-essential gatherings,’ leaving members of the public with no guidance as to what conduct the order proscribes.”

Since EEO 103 provided an exemption for “essential business or entity providing essential services or functions,” Plaintiffs claimed “a reasonable person might think that a protest falls within the definition of ‘essential,’ given the ordinary meaning of the word and the importance of the right to protest and assemble.” Moreover, Plaintiffs argued the lack of any definition for “non-essential gatherings” allowed the City “to engage in a standardless sweep with the instant arrests, while not arresting the other park goers that day or individuals who attended the BLM protests.” The federal district court found these arguments “unpersuasive”:

By Plaintiffs’ own admission, the very purpose of their gathering was to protest, among other pandemic-related responses, the portion of the emergency executive orders that prohibit “non-essential” gatherings. And as Plaintiffs also allege, prior to arresting Plaintiffs, Defendants played a recording for five minutes that explicitly warned Plaintiffs that they were engaging in a “non-essential gathering,” and that they would be subject to arrest if they failed to disperse.

Within the context of the “void for vagueness doctrine,” the federal district court further determined “EEO 103 satisfies both the notice and arbitrary enforcement prongs”:

Regarding the notice prong, as Plaintiffs acknowledge, EEO 103 incorporates the definition of “essential business or entity providing essential services or functions” in Executive Order 202.6 issued by the Governor on March 18, 2020. Contrary to Plaintiffs’ assertion, a person of reasonable intelligence would know that anything not identified as “essential” was “non-essential.”

Accordingly, since protests were not included within the meaning of “essential,” the court held “a reasonable person” would have noticed and “[understood] that the activity was ‘non-essential,’ and therefore, proscribed by EEO 103.” In addition, the federal district court found “these definitions provide law enforcement authorities with the minimal guidelines necessary to satisfy the arbitrary enforcement prong.” As a result, the court held “Plaintiffs’ void-for-vagueness claims fail as a matter of law.”


Given the substantial relationship between EEO 103 and governmental efforts to address the significant COVID-19 threat to public health, the federal district court found Plaintiffs had failed to allege sufficient facts that might establish a violation of their First Amendment rights at the time of their arrest during the park protest. As a result, the federal district court ordered “all of Plaintiffs’ claims must be dismissed.”

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Click here for Law Review articles archive (1982 to present).