State's Response to Plaintiff's Supplement Brief — Calvary Chapel v. Sisolak (D. Nev.)

Record facts

UNITED STATES DISTRICT COURT · No. 3:20-cv-00303-RFB-VCF · Doc. 39 · 2020-06-07 · Docket on CourtListener

Full text

Page 1 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AARON D. FORD 
Attorney General 
CRAIG A. NEWBY (Bar No. 8591) 
  Deputy Solicitor General 
State of Nevada 
Office of the Attorney General 
100 North Carson Street 
Carson City, Nevada 89701-4717 
(775) 684-1100 (phone) 
(775) 684-1108 (fax) 
Email: CNewby@ag.nv.gov 
  
Attorneys for State Defendants 
 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEVADA 
 
 
CALVARY CHAPEL DAYTON VALLEY 
 
 
Plaintiff, 
vs. 
STEVE SISOLAK, in his official capacity 
as Governor of Nevada, et al., 
 
Defendants. 
Case No. 3:20-cv-00303-RFB-VCF 
 
 
RESPONSE TO PLAINTIFFS’ 
SUPPLEMENT 
 
Pursuant to this Court’s minute order (ECF No. 33), Defendants Steve Sisolak, in 
his official capacity as the Governor of Nevada and Aaron D. Ford, in his official capacity 
as Attorney General of Nevada (collectively “Defendants”) hereby submit the following 
response to Plaintiff Calvary Chapel Dayton Valley’s (“Plaintiff” or “Calvary”) June 4, 2020 
supplement. 
This response is made and based upon all matters of record herein, the 
Memorandum of Points and Authorities submitted herewith, and upon such oral 
arguments as the court may allow at the time of hearing of this matter    
DATED this 7th day of June, 2020. 
AARON D. FORD 
Attorney General 
 
By: /s/ Craig A. Newby 
 
 
 
CRAIG A. NEWBY (Bar No. 8591) 
Deputy Solicitor General 
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 1 of 11

 
Page 2 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MEMORANDUM OF POINTS AND AUTHORITIES 
I. 
INTRODUCTION 
This Court issued the following Order following the filings of Defendants’ opposition 
to the emergency motion for temporary restraining order and preliminary injunction: 
 
If the Plaintiff is seeking alternative or modified relief beyond 
that requested in its Emergency Motion for Temporary 
Restraining Order and Preliminary Injunction (ECF No. 
19), IT IS ORDERED that the Plaintiff must file a supplement to 
the Motion by June 3, 2020. 
   
ECF No. 33 (emphasis added). 
 
Calvary’s “supplement” does not identify “alternative or modified relief.”  Instead, 
following an extension for a medical emergency, Calvary submitted a reply brief that 
submits thirty-one new exhibits, including a declaration that seeks to opine on medical and 
scientific issues.  This is improper for a reply brief, much less one that seeks emergency 
injunctive relief.   
In any event, Calvary’s supplement does not change the neutral and generally 
applicability of the emergency directives to similar mass gatherings.  It is not the place of 
Calvary, its counsel, or this Court, to second guess the emergency decisions empowered to 
the State’s elected leaders during this crisis.   
Because Calvary has not met its high burden for obtaining injunctive relief, its 
emergency motion should be denied.   
II. 
THE DIRECTIVES ARE NEUTRAL AND GENERALLY APPLICABLE 
The United States Supreme Court upheld California’s temporary restrictions on the 
number of attendees at religious services.  See South Bay United Pentecostal Church, et al. 
v. Newsom, et al. Case No. 19A1044, 2020 WL 2813056 at *1 (May 29, 2020), attached to 
the Opposition as Exhibit B.  When doing so, the Court noted that California’s temporary 
restrictions “apply to comparable secular gatherings, including lectures, concerts, movie 
showings, spectator sports, and theatrical performances, where large groups of people 
gather in close proximity for extended periods of time.  Id.   
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 2 of 11

 
Page 3 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Here, Nevada has temporary emergency restrictions on comparable secular 
gatherings, each implemented prior to the Supreme Court’s recent decision.  Public 
attendance is prohibited for all musical performances, live entertainment, concerts, 
competitions, sporting events, and any events with live performances.  Ex. A to the Opp. 
at § 22.  In short, religious services are being treated better than “lectures, concerts, … 
spectator sports, and theatrical performances.”  “Movie showings,” the last comparable 
gathering identified by the Supreme Court, are limited to no more than 50 people, no better 
than religious services.  Id. at § 20.  Similar restrictions to the lesser of 50 people or 50% 
occupancy exist for museums, art galleries, zoos, aquariums, trade schools, and technical 
schools to the lesser of 50 people or 50% occupancy.  Id. at §§ 30, 32.  Good cause exists for 
the distinction: mass gatherings have a higher risk of COVID-19 transmission than general 
commerce.   
Rather than acknowledge the similarities between the activities identified as 
comparable by the Supreme Court, Calvary belatedly attempts to do two things in its 
supplement that are outside the scope of what this Court requested.  First, Calvary 
attempts to argue it should be treated the same as non-restricted gaming licensees or 
outraged protestors of George Floyd’s death.  This is mistaken, as Nevada has rational 
reasons for reopening its most highly-regulated industry and for how to address public 
unrest.   
Second, Calvary attempts to substitute its scientific judgment for Nevada’s Chief 
Medical Officer, through the submission of a medical declaration Calvary could have 
submitted when filing its request for emergency relief.  The Supreme Court recognizes that 
it is not the place of a court to substitute its policy determinations for those of the elected 
leaders of Nevada, who are empowered to make difficult, emergency decisions regarding 
public safety and are subject to democratic accountability if the People ultimately disagree 
with those decisions.  South Bay, 2020 WL 2813056 at *1.  There is a scientific basis for 
Nevada’s staged efforts at reopening; Calvary is not entitled to substitute its judgment for 
Nevada’s elected leaders.   
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 3 of 11

 
Page 4 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
For the foregoing reasons, this motion should still be denied. 
 
A. 
Nevada Gaming Establishments, as Privileged Licensees, are Subject 
to Heightened Regulation and Discipline, Justifying Different 
Treatment than Faith-Based Organizations 
Calvary argues that casinos are being treated better than churches.  Supp. at  
2:19-20.  Gaming, as the most highly-regulated business industry within Nevada, are being 
treated differently than churches.  And for good reason.  The right to hold a non-restricted 
gaming license is a privilege.  NRS 463.0129(2).  Nevada has “strict regulation” of, inter 
alia, persons “related to the operation of licensed gaming establishments...”  NRS 
463.0129(1)(c).  All places where gaming is conducted are to be “assisted to protect the 
public health, safety, morals, good order and general welfare of the inhabitants of the 
State…”  NRS 463.0129(1)(e).  Nevada’s legislature described the vital role that gaming 
plays in our State’s economy and to the welfare of its citizens.  NRS 463.0129(1)(a).   
Nevada’s legislature created the Commission and the GCB.  NRS 463.022, 030.  The 
Commission and the GCB are to administer the provisions of the Nevada Gaming Control 
Act to protect the public interest consistent with Nevada policy.  NRS 463.140(1).  The GCB 
has “full and absolute power” to recommend to the Commission that a finding of suitability 
be revoked.  NRS 463.1405(3).  This Commission “has full and absolute power and 
authority” to revoke a finding of suitability.  NRS 463.1405(4).  This “full and absolute 
power and authority” includes “pursuing disciplinary action to limit, condition, suspend, 
and/or revoke a license, and/or impose a monetary fine against a licensee in accordance 
with the Gaming Control Act” for violation of Directive 021.  Ex. A to the Opp. at § 35.   
Here, to reopen, non-restricted licensees were required to submit detailed reopening 
plans for review and approval by the Nevada Gaming Control Board.  See Health and Safety 
Policies for Resumption of Gaming Operations – Nonrestricted Licensees (May 27, 2020) at 
2, attached hereto as Exhibit D.  “Nevada Gaming Control Board Agents may be present 
to observe some or all of these procedures.”  Policy Memorandum – Procedures for 
Reopening after Temporary Closure due to COVID-19 (Apr. 21, 2020) at 6, attached hereto 
as Exhibit E.  More importantly, the Nevada Gaming Commission has full authority to 
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 4 of 11

 
Page 5 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
enforce the required reopening plans and related health requirements with its existing 
enforcement personnel.1  See Directive 021 (Ex. A to the Opp.) at § 35.   
In contrast, because religion is a fundamental right, not a privilege, its facilities are 
not subject to heightened regulation and enforcement.  There is no such corresponding 
regulatory agency for religious-specific facilities that can be immediately repurposed 
towards enforcing emergency health directives in this context.  This is a good thing and 
something on which the parties likely agree.     
Instead, as described in some detail by the Lyon County Sheriff’s joinder, 
enforcement of Directive 021 is generally left to local law enforcement, subject to their 
prioritization of resources.  As set forth by the Lyon County Sheriff’s joinder, enforcement 
of Directive 021 is prioritized similarly to other complaints received by citizens for other 
alleged incidents.  Prioritization of limited resources by law enforcement has led to an 
emphasis in certain Nevada jurisdictions on protests against the killing of George Floyd.  
Choosing to reopen a highly regulated industry, that is subject to significant regulatory 
control that allows for a rapid shutdown if a second COVID-19 outbreak arises, makes 
sense.  This policy determination warrants deference from a court, as “[o]ur Constitution 
principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable 
officials of the States ‘to guard and protect.’”  South Bay, 2020 WL 2813056 at *1 (quoting 
Jacobson, 197 U.S. at 38).     
Further, Calvary speculates on the nature of gaming activity today versus what it 
was prior to COVID-19, relative to its plan for larger church services.  Supp. at 5:1–26.  It 
ignores the establishment-specific plans each has that has been reviewed and approved by 
existing regulatory bodies.  It also ignores the lack of time limitation that a religious service 
may continue.  It also ignores the difference between congregating together with active, 
                            
1 It also ignores Lyon County, instead relying on pictures of Fremont Street 
Experience and a downtown casino.  There, the Carson Plains Casino plans on reopening 
Saturday, June 6 at 9 a.m.  See  https://carsonplainscasino.net/ (last accessed June 5, 2020).  
In any event, regulatory authority over the pictured establishments lies with the Nevada 
Gaming Commission and it would be inappropriate for Defendants to comment on whether 
or what discipline may occur premised on the pictures.   
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 5 of 11

 
Page 6 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shared communication, versus gaming activities, which now often involve sitting at a 
socially-distant gaming machine.2  Here, where “officials ‘undertake [ ] to act in areas 
fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’”  
South Bay, 2020 WL 2813056 at *1 (quoting Marshall v. United States, 414 U.S. 417, 427 
(1974)).  “Where those broad limits are not exceeded, they should not be subject to second-
guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and 
expertise to assess public health and is not accountable to the people.’”  Id. (quoting Garcia 
v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985)).   
Under these temporary circumstances, Nevada is entitled to deference on its 
regulated, limited reopening of non-restricted gaming establishments.   
 
B. 
Calvary’s Policing Priorities are Misplaced and Not Subject to Court 
Review 
 
Here, Calvary takes issue with Defendants’ approach to protests arising from the 
tragic killing of George Floyd.  Supp. at 7:1–8:27.  These are spontaneous, peaceful protests 
arising from the public’s outrage at George Floyd’s killing by a police officer, as seen on 
video.  Without dispute, these events have raised serious discussions pertaining to policing 
and race.  In addition to these peaceful protests, others have attempted to co-opt these 
peaceful protests with acts of violence.  A Las Vegas Metropolitan Police officer has been 
seriously wounded.  In Reno, to disperse looting, police were required to use tear gas and 
other non-lethal methods.    
It is in this context that Calvary argues that Defendants’ inability to prevent 
spontaneous protests or to force local law enforcement to arrest all those who violated 
Directive 021 implies that Defendants are favoring protestors over church services.  Supp. 
at 9:1–11.  This is ridiculous.  Defendants, as elected leaders, are attempting to address 
important community issues while also calming a volatile situation.  As noted by the Lyon 
                            
2 Defendants have already addressed the difference between mass gatherings most 
similar to religious gatherings versus commerce, including indoor malls and restaurants, 
which already have some distancing between groups of people already included.  They will 
not repeat themselves here.   
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 6 of 11

 
Page 7 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
County Sheriff, local law enforcement has the right to prioritize how it enforces laws.  Here, 
rather than potentially begetting more protest and potential violence by using police 
officers to engage in mass enforcement of Directive 021, local law enforcement is 
emphasizing preserving public safety.  Making efforts to maintain a safe community is not 
a restriction on the content of anyone’s expression.  Further, as noted in Defendants’ 
opposition, there has been no limitation on Calvary’s ability to express its beliefs to its 
members and through the world.  Calvary is only limited on the size of any service, rather 
than the number of services and the ability to communicate in multiple ways.   
In short, the purported refusal to arrest protestors does not constitute a violation of 
Calvary’s First Amendment rights.   
C. 
Houses of Worship, as a Mass Gathering, Have Higher Risks 
Belatedly, Calvary submits a declaration asserting that there is no “scientific or 
medical reason that a religious service that follows the guidelines issued by the CDC would 
pose a more significant risk of spreading [COVID-19] than gatherings or interactions at 
other establishments or institutions.”  Supp. at 10:6–13.  Dr. Flanagan, among his other 
activities, is a permanent Catholic deacon.  See Ex. 44 to the Supp. at p. 14; see also Smith, 
Peter Jesser, Doctor: Keep Calm and Take Practical, Prayerful Action Amid Coronavirus, 
NATIONAL CATHOLIC REGISTER (Mar. 4, 2020), a true and correct copy of which is attached 
hereto as Exhibit F.    
Nevada’s Chief Medical Officer respectfully disagrees, believing that “[i]n-person 
worship services pose specific risks for disease transmission.”  Decl. of Ihsan Azzam, Ph.D, 
M.D., M.P.H., Chief Medical Officer for Nevada (June 7, 2020) at ¶ 22, attached hereto as 
Exhibit G hereto.  As stated previously: 
 
When it comes to gatherings, the risk is not just based on how 
many people there are, but rather how closely they are gathered 
and how they are interacting with each other.  The risk does not 
disappear in smaller gatherings.  It’s the distance and 
precautions that will make the difference.  
See Social Distancing (last accessed May 27, 2020); 
https://nvhealthresponse.nv.gov/info/event-organizers/ (emphasis added).   
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 7 of 11

 
Page 8 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In any event, Calvary, its counsel, and this Court are not allowed to substitute their 
policy judgment for that of elected Nevada officials during this public health emergency.  
South Bay, 2020 WL 2813056 at *1.  Because there is a public health justification for 
Directive 021 during this emergency, the Court should reject Calvary’s efforts to substitute 
their own policy judgment here.   
III. 
JACOBSON PROVIDES DISCRETION FOR EXERCISING EMERGENCY POWERS 
Calvary attempts to distinguish Jacobson, without addressing any of the cases faced 
by courts throughout the United States affirming its viability to the same issue before this 
Court.  Supp. at 10:18–12:2.  Only in passing does Calvary attempt to rewrite Chief Justice 
Roberts’ opinion in South Bay to be more to its liking, by contorting the comparison between 
comparable secular activities for the proposition that it must “not single out rights or 
persons for disfavored treatment.”  Supp. at 11:19–12:2.  Jacobson, as recognized by the 
Supreme Court in South Bay, is the acknowledgement that power to address public health 
emergencies lies with state elected officials, not litigants and courts, and that there is 
additional deference to state elected officials while addressing these public health 
emergencies.  South Bay, 2020 WL 2813056 at *1. 
Here, on a rational basis, Nevada has treated mass gatherings differently than 
commerce, including gaming.  Under such circumstances, the motion should be denied.   
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 8 of 11

 
Page 9 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IV. 
CONCLUSION 
Following scientific evidence and federal guidelines, Nevada has implemented social 
distancing to protect Nevadans from COVID-19 to mitigate the risk of exposure and spread.  
There is a rational basis for treating religious services the same as other mass gatherings 
and differently than commercial activities on a temporary basis.   
Accordingly, the motion should be denied.  
Dated: June 7th, 2020. 
AARON D. FORD 
Attorney General 
 
By: /s/ Craig A. Newby 
 
 
 
CRAIG A. NEWBY (Bar No. 8591) 
Deputy Solicitor General 
State of Nevada 
Office of the Attorney General 
555 E. Washington Avenue, Suite 3900 
Las Vegas, NV  89101  
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 9 of 11

 
Page 10 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CERTIFICATE OF SERVICE 
I certify that I am an employee of the State of Nevada, Office of the Attorney General, 
and that on this 7th day of June, 2020, I electronically filed the foregoing document, 
RESPONSE TO PLAINTIFF’S SUPPLEMENT, with the Clerk of the Court by using 
the CM/ECF system. 
 
Participants in the case who are registered CM/ECF users will be served by the 
CM/ECF system. 
 
 
 
/s/ Kristalei Wolfe  
 
Kristalei Wolfe 
 
State of Nevada, 
 
Office of the Attorney General 
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 10 of 11

 
Page 11 of 11 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INDEX OF EXHIBITS 
 
EXHIBIT 
NO. 
EXHIBIT DESCRIPTION 
NUMBER OF PAGES 
D 
Health and Safety Policies for Resumption of 
Gaming Operations – Nonrestricted Licensees 
(May 27, 2020)  
7 
E 
Policy Memorandum – Procedures for Reopening 
after Temporary Closure due to COVID-19 (Apr. 
21, 2020)  
6 
F 
Smith, Peter Jesser, Doctor: Keep Calm and 
Take Practical, Prayerful Action Amid 
Coronavirus, NATIONAL CATHOLIC REGISTER 
(Mar. 4, 2020) 
6 
G 
Declaration of Ihsan Azzam, Ph.D, M.D., Chief 
Medical Officer for Nevada 
5 
 
 
 
 
 
 
Case 3:20-cv-00303-RFB-VCF   Document 39   Filed 06/07/20   Page 11 of 11

File and source

File

gov.uscourts.nvd.143509.39.0.pdf

Size

217,550 bytes

SHA-256

68807a43e5f790ccd0c24f3ea05c26289558569b9669534e3e074de88d22faea

Our copy

gov.uscourts.nvd.143509.39.0.pdf

Original

archive.org