Case: 3:20-cv-00036-GFVT Doc #: 58 Filed: 08/06/20 Page: 1 of 4 - Page ID#: 877

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT

TONY RAMSEK, et al., )

)
Plaintiffs, ) Civil No. 3:20-cv-00036-GFVT
)
V. )
) ORDER
ANDREW BESHEAR, in his official )
capacity as Governor of Kentucky, et al., )
)
Defendants.

*** *** *** ***

This matter is before the Court upon the Defendants’ Motion to Stay the Preliminary

Injunction Pending Appeal. [R. 52.] On June 24, 2020, this Court granted Plaintiffs’ request for

a preliminary injunction. [R. 47.] Subsequently, Defendants filed an appeal with the United

States Court of Appeals for the Sixth Circuit. [R. 48.] Plaintiffs oppose the motion to stay. [R.

53.] In Defendants’ motion, they ask the Court to stay the preliminary injunction entered on

June 24, 2020 pending the resolution of the merits of their appeal and waive the posting of a

bond. Id. For the reasons that follow, the Court will deny the motion.

Plaintiffs move for an injunction pending appeal under Rule 62(d) of the Federal Rules of

Civil Procedure. The Federal Rules of Civil Procedure grant district courts the power to stay an

injunction pending appeal: “While an appeal is pending from an interlocutory order or final

judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an

injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or

other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(d). In deciding whether

to issue a stay under Rule 62(d), the court must consider the same factors that are traditionally
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considered in determining whether to grant a preliminary injunction. Mich. Coal of Radioactive

Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991); Hilton v. Braunskill, 481

U.S. 770, 776 (1987). These factors are: 1) the likelihood that the party seeking the injunction

will prevail on the merits of the appeal; 2) the likelihood that the moving party will be

irreparably harmed absent an injunction; 3) the prospect that others will be harmed if the court

grants the injunction; and 4) the public interest in granting the injunction. Mich. Coal of

Radioactive Material Users, Inc., 945 F.2d at 153.

Defendants argue that they are likely to prevail on the merits of the appeal for several

reasons. First, Defendants argue once again that South Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613 (May 29, 2020) (Mem) decides this matter. [R. 52-1 at 8.] However,

the Court finds that, while informative, Justice Roberts’ concurring opinion does not create

precedent which controls in this case for the same reasons stated previously. Justice Roberts

analyzed a different executive order as it concerned a separate First Amendment right in a

distinct factual circumstance. Separately, and perhaps most importantly, the Court finds

significant the procedural context in which the Supreme Court acted.

Second, Defendants argue that despite the Court’s findings, the Mass Gatherings Order1

meets the narrowly tailored standard. [R. 52-1 at 6.] Because the Court found the Mass

Gatherings Order to be content-neutral, the Order will be upheld if the Governor can show it is

“narrowly tailored to serve a significant government interest, and leave open ample alternative

1
On March 19, 2020, acting Secretary of the Cabinet for Health and Family Services Eric Friedlander
issued an order prohibiting “mass gatherings.” [R. 1-4.] Per Secretary Friedlander’s Order, mass
gatherings include “any event or convening that brings together groups of individuals, including, but not
limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals;
conventions; fundraisers; and similar activities.” Id. “[A]irports, bus and train stations, medical facilities,
libraries, shopping malls and centers, or other spaces where persons may be in transit” were not included
within the definition of “mass gathering,” nor were “typical office environments, factories, or retail or
grocery stores[.]” Id.
2
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channels of communication.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

46 (1983). However, based upon the record before it, the Court still maintains the position that

the Governor has a significant interest in protecting Kentuckians from COVID-19 but he has

gone too far in his pursuit of that interest. A blanket ban on large gatherings, including political

protests, is not the only way to protect the public health. Policymakers have many tools at their

disposal which will help mitigate the spread of coronavirus while still allowing Kentuckians to

exercise their First Amendment freedoms. As Dr. Stack explained in his deposition, maintaining

a social distance of six feet, wearing masks, and frequent and thorough handwashing each help to

reduce the likelihood of transmission of coronavirus from person to person. [R. 43 at 72.] The

Commonwealth has required implementation of these tools in places like restaurants, office

buildings, and auctions, but continues to prohibit Mass Gatherings for political protest. See id. It

is the right to protest that is constitutionally protected, not the right to dine out, work in an office

setting, or attend an auction. Thus, Kentucky must do better than prohibiting gatherings for

protest outright.

Further, Defendants argue that with cases of COVID-19 rapidly increasing, Defendants

will be irreparably harmed absent a stay and the public will be harmed by the risk of contracting

COVID-19 without the Governor having the authority and deference to take appropriate

measures. [R. 52-1 at 8.] In granting the preliminary injunction, this Court stated that using the

tools available, Defendants must amend the Mass Gatherings Order to allow for both drive-

through and in-person protests in a manner consistent with the medical and scientific realities,

while bearing in mind the constitutional protections accorded such behavior. Thus, this Court

left Defendants discretion to place limitations upon in person protest activities and to amend their

orders to comply. However, the Governor has yet to use his discretion in amending the Mass

3
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Gatherings Order to implement the enforcement of safety measures such as social distancing

during protests. [R. 53 at 2.]

The standard for an injunction pending appeal requires the Court to re-engage with the

analysis that it recently undertook when denying Plaintiffs’ request for a preliminary injunction,

even though there has not been any intervening change in law or fact that would change the

outcome of the Court’s position. This Court issued a decision finding that Plaintiffs

demonstrated a likelihood of success on the merits sufficient to entitle them to a preliminary

injunction. [R. 47.] For the reasons stated in the Court’s Opinion and Order [R. 47], Defendants

have failed to make a showing that would entitle them to such a reversal. Accordingly, it is

hereby ORDERED that Defendants’ Motion to Stay the Preliminary Injunction Pending Appeal

[R. 52] is DENIED.

This the 6th day of August, 2020.