Appeals court hints at ruling in favoring of tossing mass gathering order


FRANKFORT, Ky. (WTVQ) – Although it wasn’t filed publicly until Tuesday, four Kentucky men won a victory of sorts Saturday when a panel of the Sixth Circuit Court of Appeals overturned a lower court and granted an injunction stopping the state from enforcing Gov. Andy Beshear’s mass gatherings order to stop a protest the men were organizing Saturday at the state Capitol.

The state already had said it had no plans to block the protest or take any enforcement steps. (Click here to read the order ramsek appeals court ruling in favor of protesters)

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Citing a previous ruling in a similar complaint brought by Maysville Baptist Church that led to the opening of in-person church services in the state, the three-judge panel said the same exemptions cited in that ruling applied to the protest issue.

“In addition, the Order is  not narrowly tailored: it fails to define the size of the mass gathering that is permitted or allowed. Furthermore, they claim, the Order has been used to foreclose alternative means of
communication. When protestors in cars attempted to drive around the Capitol they were blocked by the Kentucky State Police,” the three judges wrote referring to part of the state’s arguments and the protesters’ response in the case.

“The protestors are likely to succeed in showing that the Order is a content-based restriction. In an earlier case, we held that the Order likely discriminated against religion because the Order at that time permitted citizens to gather in retail stores and airports so long as they
practiced social distancing, but did not permit them to gather for religious services. The same logic applies here—and indeed with more force. Because the Order permits citizens to gather in retail stores, airports, parking lots, and churches, but does not permit them to gather for a protest, it discriminates against political speech,” the judges continued.

“During the pendency of this appeal, the state is enjoined from prohibiting protesters from gathering for drive-in and drive-through protests, provided the protesters practice social distancing  and otherwise comply with the Order’s regulations on lawful gatherings,” they concluded.

The four — Tony Ramsek and Theodore Roberts, both of Boone County, Frank Harris, of Fayette County, and Tony Wheatley, of Mercer County — filed the original lawsuit challenging the mass gatherings order.


FRANKFORT, Ky. (WTVQ) – A federal judge has denied an injunction of the state’s mass gathering rule and says he can’t address constitutional issues raised by four protest organizers because they haven’t yet suffered any harm.

The four — Tony Ramsek and Theodore Roberts, both of Boone County, Frank Harris, of Fayette County, and Tony Wheatley, of Mercer County — have filed a request for a stay of the judge’s ruling so they can appeal to the United States Court of Appeals for the Sixth Circuit.

But their attorney acknowledges the request likely is futile.

“Plaintiffs fully recognize the futility of this exercise, and that moving for this relief likely meet the requirements of impractability” under rules of the courts, the four’s attorney, Christopher Wiest noted in filing the request for a stay and appeal. “The Court has already ruled
on the merits of this claim, and ruled that the Plaintiffs lacked standing. Plaintiffs mean no disrespect to the Court, or its recent decision, in so moving. Nevertheless, (the rule) requires that Plaintiffs typically move for such relief in this Court first prior to applying for such relief in the Court of Appeals, and Plaintiffs do so now.”

The protest the four and others plan for Saturday on the Capitol grounds can go forward. And any issues over how that should be carried out still should be worked out under rules that have been in place even before the coronavirus outbreak.

U.S. District Judge Greg Von Tatenhove issued his 15-page ruling (click here to read the ruling  ramsek denial order) Thursday night after holding a hearing on legal issues earlier Thursday.

He heard arguments Thursday during a hearing with attorneys for four men who say their Constitutional rights are being targeted by the order and attorneys for Beshear and two state administrators who also were named in the lawsuit filed last week.

Lawyers on the staff of Attorney General Daniel Cameron also were present. Cameron has joined the lawsuit in support of the protesters.

“This is hard. Our elected leaders struggle every day with how to govern in the face of a new virus. That virus, COVID-19, does not look exactly like anything we have seen before. What we “know” changes by the day and even the hour. All while lives are lost and disrupted,” Von Tatenhove wrote in his opinion.

“Disagreement about the constitutionality of government actions is inevitable. But federal courts do not have the power to opine on every constitutional tension. For important reasons related to the separation of governmental powers, federal courts are limited to deciding “cases and controversies”.

“As explained below, this case presents a constitutional question but not one the Court has the power to decide. Simply put, a violation of the executive branch order is not linked to any enforcement action before, during, or after the planned protest. The Governor, through counsel, has expressly disavowed any such action. For that reason, Plaintiffs’ Emergency Motion for Preliminary Injunction will be DENIED,” Von Tatenhove wrote.

“As to these Plaintiffs, the record is clear: the order will not be enforced against them for participating in the protest planned for May 23, 2020. This is perhaps recognition on the part of the Governor of the important constitutional considerations at play. In his attempts to flatten the
coronavirus curve, Governor Beshear can be forgiven a constitutional learning curve. None of us have ever done this before. To his credit, as constitutional challenges to Governor Beshear’s public health measures have mounted, he has continued to evolve his stance,” the judge wrote in concluding his order.

“Challenges to the orders prohibiting interstate travel and in-person religious services have spurred amended and modified orders permitting those activities. And although that has not happened here, it behooves the Court to point out that Plaintiffs are getting exactly what they’ve asked for: the freedom to exercise their First Amendment rights, free from enforcement of the Mass Gatherings Order. Even if the Court were to expand its inquiry beyond these particular Plaintiffs, counsel for the Governor stated at the recent hearing that the order would not be enforced against anyone for engaging in a peaceful protest beyond the May 23 protest. Because Plaintiffs have failed to show a likelihood of success in establishing any of the McKay factors, Plaintiffs fail to show a likelihood of success of establishing a credible threat of prosecution. This, of course, is a necessary element to establish injury-in-fact as part of the pre-enforcement standing analysis. The Court therefore finds that, more broadly, Plaintiffs fail to establish a likelihood of success on the merits.

“Litigants in this Court are justified in emphasizing that the Constitution must be followed even in the face of a world pandemic. This case stands for the unremarkable proposition that not only is that true, but it is true in all aspects. Since the Plaintiffs lack standing, the Court lacks the
power to decide the constitutional question. Consequently, Plaintiffs’ Emergency Motion for Preliminary Injunction is DENIED,” the judge concluded.

Click here to read the pevious briefs from both sides in the case: ramsek protest brief    ramsek response to governor    ramsek state response