Citing the state’s progress in fighting COVID-19 infections, the California Highway Patrol has rescinded its ban on protests at the state Capitol and has resumed issuing permits for such gatherings “so long as they follow health and safety guidelines relating to the wearing of masks and physical distancing.”
The disclosure that the CHP’s ban on issuing protest permits has ended comes in a filing in federal court in Sacramento in which the state is seeking dismissal of a lawsuit filed on behalf of two Sacramento residents who were denied permission to hold separate rallies at the Capitol on May 2 and May 3.
The protest ban was issued following an April 20 demonstration at the Capitol by hundreds of people gathered to demand an end to Gov. Gavin Newsom’s stay-at-home order, and the CHP said at the time the ban would remain in place “until public health officials have determined it is safe to gather again.”
The state now says that time has come and the CHP has resumed issuing permits for weddings and demonstrations at the Capitol, which was still largely ringed Wednesday morning by metal gates brought in to keep protesters from gaining access to much of the Capitol grounds.
Despite the decision to rescind the ban, the lawsuit against the CHP and an appeal to the Ninth U.S. Circuit Court of Appeals will continue, according to the lawyer for the plaintiffs, firearms instructor Ron Givens and Republican congressional candidate Christine Bish.
“The right to protest is a core American right that even predates the founding of our country,” said Harmeet Dhillon, a San Francisco attorney and Republican national committeewoman who has filed a number of lawsuits challenging Newsom’s orders during the pandemic. “It’s a very sacred right and it’s important to protect it.”
In May, U.S. District Judge John A. Mendez rejected a request for a temporary restraining order against the ban, citing a U.S. Supreme Court ruling from 1905 that found “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
But Dhillon has appealed and has won support from constitutional scholars who say the ban goes too far as well as from the U.S. Department of Justice, which filed a brief in the Ninth Circuit last week arguing that Mendez “wrongly denied plaintiffs’ request for a TRO.”
“While States have broad authority to protect the public during public-health crises like the COVID-19 pandemic, a State’s authority to protect its citizens does not give it carte blanche to ban peaceful public protests and rallies,” the Justice Department argued.
The department conceded that California has since relaxed much of the governor’s stay-at-home orders, including parts of the protest ban in late May, but added that courts still must decide issues related to the lawsuit.
“California no longer imposes a total ban on peaceful public protests but has since recognized that, even when justified on the basis of public-health concerns, such bans ‘implicate the First Amendment,’” the department argued. “Under the new guidelines, California permits in-person protests of limited size that comply with certain conditions, such as maintaining adequate physical distancing, and strongly recommends, but does not require, masks and cloth face coverings at such events.”
The state, however, argues in a filing made in Sacramento federal court late Tuesday that the case should be dismissed because new policies that took effect last Friday “expressly permit outdoor demonstrations of any size.”
“CHP has updated its policy on permitting for events at the State Capitol to reflect this change,” Attorney General Xavier Becerra’s office wrote. “In other words, there is no longer any statewide prohibition on the kind of in-person rallies Plaintiffs’ seek to conduct, and there is no longer a ban on permits for such rallies at the State Capitol.”
The Capitol has been the target of numerous protest marches in recent weeks over police brutality sparked by the death of George Floyd after a Minneapolis police office kneeled on his neck on Memorial Day for nearly nine minutes. The CHP largely kept protesters from Capitol grounds and other areas statewide using fences and thousands of officers who racked up more than $38 million in overtime costs.
But less spontaneous protests are now being allowed at the Capitol if a permit is issued, and the CHP’s permit page shows a number of gatherings on deck in coming days, including two weddings on Saturday, a “V is for Vaccine” rally set for next Tuesday and a “We the People” protest on Wednesday.
“This protest is for non-violent law abiding citizens that want to join us to fight to get all of our RIGHTS AND FREEDOMS that were granted by your GOD and CAN’T be taken away by any man or woman that walks this Earth,” the permit application for that event states. “Not even Govenor(sic) Gavin Newsom.”