Order Denying Emergency Motions for TRO and Preliminary Injunction — Calvary Chapel v. Sisolak (D. Nev.)

Record facts

U.S. District Court for the District of Nevada · No. 3:20-cv-00303-RFB-VCF · Doc. 43 · 2020-06-11 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
DISTRICT OF NEVADA 
* * * 
 
CALVARY CHAPEL DAYTON VALLEY 
 
Plaintiff(s), 
 
v.  
 
STEVE SISOLAK  
AARON  FORD  
FRANK HUNEWILL 
 
Defendant(s). 
Case No. 3:20-cv-00303-RFB-VCF 
 
ORDER 
 
 
 
 
I. 
INTRODUCTION 
Before the Court are Plaintiff Calvary Chapel Dayton Valley’s (“Calvary” or “Plaintiff”) 
Emergency Motions for a Temporary Restraining Order and Preliminary Injunction. ECF Nos. 9, 
19. For the following reasons, the Court denies both motions without prejudice.  
II. 
PROCEDURAL BACKGROUND 
  Plaintiff brought its initial complaint on May 22, 2020 and filed the operative amended 
complaint on May 28, 2020. ECF Nos. 1, 8. The complaint brought facial and as-applied First and 
Fourteenth Amendment challenges to Governor Sisolak’s emergency directives in response to the 
COVID-19 pandemic. Id.  Plaintiff filed a motion for a temporary restraining order and preliminary 
injunction on May 28 and May 29, 2020. ECF Nos. 9, 19. The Court denied Plaintiff’s motion to 
consider the motions on an expedited basis. ECF Nos. 16, 23. Defendant Steve Sisolak responded 
to the motions on June 2, 2020. ECF Nos. 9, 19.  Defendant Frank Hunewill joined Defendant 
Sisolak’s response on that same date. ECF No. 32.  Plaintiff filed a supplement to its motion on 
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June 4, 2020 and Defendant Sisolak responded on June 7, 2020. ECF Nos. 38, 39. The Court held 
a hearing on the motions on June 9, 2020. This written order now follows.   
III. 
FACTUAL BACKGROUND 
The Court makes the following findings of fact. Calvary Chapel Dayton Valley is a 
Christian church in Dayton, Nevada that has operated since February 5, 2006. Calvary believes 
that the Bible commands Christians to gather together in person for corporate prayer and worship. 
On March 16, 2020, in response to the ongoing coronavirus pandemic, Calvary suspended in-
person worship services. However, Calvary sincerely believes that online services and drive-in 
services thwart the Bible’s requirement of in-person services for corporate worship, and some 
church attendees do not have internet access and therefore are not able to participate in online 
services. Calvary therefore wishes to resume in-person services. 
On May 26, 2020, Defendant Governor Sisolak announced that Nevada would enter “Phase 
Two” of its reopening. To that end, he issued Emergency Directive 021 on May 28, 2020 
(hereinafter the “Emergency Directive” or “Directive”). The Emergency Directive permits several 
categories of business and social activity to resume, subject to different restrictions. For example, 
Section 10 of the directive prohibits gatherings in groups of more than fifty people in any indoor 
or outdoor areas. Emergency Directive 021, § 10. Communities of worship and faith-based 
organizations are allowed to conduct in-person services so long as no more than fifty people are 
gathered, while respecting social distancing requirements. Id. at § 11. Section 20 similarly limits 
movie theaters to a maximum of fifty people. Id. at §20. Section 35 of the Emergency Directive 
allows casinos to reopen at 50% their capacity and subject to further regulations promulgated by 
the Nevada Gaming Control Board. Id. at § 35.  
 
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IV. 
LEGAL STANDARD  
The analysis for a temporary restraining order is “substantially identical” to that of a  
preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush & Co., Inc., 240 F.3d 
832, 839 n.7 (9th Cir. 2001). A preliminary injunction is “an extraordinary remedy that may only 
be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. 
Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must 
establish four elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely 
suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in 
its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & 
Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter, 
555 U.S. 7, 20 (2008)). A preliminary injunction may also issue under the “serious questions” test. 
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (affirming the 
continued viability of this doctrine post-Winter). According to this test, a plaintiff can obtain a 
preliminary injunction by demonstrating “that serious questions going to the merits were raised 
and the balance of hardships tips sharply in the plaintiff’s favor,” in addition to the other Winter 
elements. Id. at 1134-35 (citation omitted). 
V. 
DISCUSSION 
The Court denies the motions because it finds that Plaintiff has not demonstrated a 
likelihood of success on its First Amendment Free Exercise claim. The Court examines both the 
facial and as-applied challenges to the Emergency Directive. The Court incorporates by reference 
its findings made on the record, which shall be construed consistent with this written ruling.  
 
  
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a. Facial Challenge  
The Free Exercise Clause of the First Amendment provides that “Congress shall make no 
law respecting an establishment of religion or prohibiting the free exercise thereof.” Am. Family 
Ass’n, Inc v. City & Cty. of San Francisco, 277 F.3d 1114, 1123 (9th Cir. 2002) (citing U.S. Const. 
amend. I). A regulation or law violates the Free Exercise clause when it is neither neutral nor 
generally applicable, substantially burdens a religious practice, and is not justified by a substantial 
state interest or narrowly tailored to achieve that interest. Id. (citing Church of Lukumi Babalu 
Aye, Inc. v. Hialeah, 508 U.S. 520, 531 – 32 (1993)).  
The Constitution principally entrusts “[t]he safety and the health of the people” to the 
politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 
197 U. S. 11, 38 (1905). When state officials “undertake[ ] to act in areas fraught with medical and 
scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 
U. S. 417, 427 (1974). 
The Supreme Court examined the relationship between COVID-19 related executive orders 
and the Free Exercise Clause in its recent order in South Bay United Pentecostal Church v. 
Newsom, No. 19A1044, 2020 WL 2813056 (May 29, 2020). In South Bay, the Supreme Court 
denied an application for injunctive relief enjoining enforcement of a portion of the California 
governor’s executive order to limit the spread of COVID-19. Id. The order limited attendance at 
places of worship to 25% of building capacity or a maximum of 100 attendees. Id. at 1. The 
Supreme Court found that the restrictions appeared consistent with the Free Exercise Clause of the 
First Amendment. Id. Chief Justice Roberts first noted that “[s]imilar or more severe 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 
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extended periods of time.” Id. Chief Justice Roberts then explained that the “[o]rder exempts or 
treats more leniently only dissimilar activities, such as operating grocery stores, banks or 
laundromats, in which people neither congregate in large groups nor remain in close proximity for 
extended periods.” Id. Finally, Chief Justice Roberts concluded that, “[t]he precise question of 
when restrictions on particular social activities should be lifted during the pandemic is a dynamic 
and fact-intensive matter subject to reasonable disagreement,” and that when elected officials “act 
in areas fraught with medical and scientific uncertainties,” their latitude “must be especially 
broad.” Id. (internal citations omitted). “When 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. (internal 
citations omitted).  
The Court finds  the holding in South Bay applicable to this case and holds that the 
Emergency Directive is neutral and generally applicable and does not burden Plaintiff’s First 
Amendment right to free exercise. Consequently, the Court finds that Plaintiff has not 
demonstrated a likelihood of success on the merits of its claim.  
Calvary argues that the Defendants in this case, based upon the plain language of the 
Emergency Directive, have violated the First Amendment by ‘exceeding the limits’ of their 
authority during a public health crisis. Calvary bases its argument on alleged differential treatment 
between itself and other secular organizations/activities. Calvary points to several secular 
businesses that it insists engage in comparable activity in which people gather in large groups and 
remain in close proximity for large periods of time, including casinos, restaurants, nail salons, 
massage centers, bars, gyms, bowling alleys and arcades, all of which are allowed to operate at 
50% of official fire code capacity. Calvary specifically focuses on casinos and includes photos in 
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its briefing of crowded casino gaming centers, after the state reopened them on June 4. Given that 
any social behavior increases the risk of covid-19 transmission, Calvary argues, there is no 
scientific or medical reason to distinguish between places of worship and other comparable 
activities.  
 The Court agrees that church services may in some respects be similar to casinos, in that 
both are indoor locations in which a large number of people may remain in close proximity for an 
extended period of time. The Court, however, disagrees that casinos are actually treated more 
favorably than places of worship. During this phased reopening of Nevada by the Governor, 
casinos are subject to substantial restrictions and limitations required by the Nevada Gaming 
Control Board which exist in addition to and in conjunction with the requirements and oversight 
provided by the Emergency Directive. See Emergency Directive, § 35; Addendum to April 21, 
2020 Policy Memorandum posted May 29, 2020; 2020-30 Updated Health and Safety Policies for 
Reopening after Temporary Closure posted May 27, 2020; Health and Safety Policy for the 
Resumption of Gaming Operations Nonrestricted Licensees posted May 27, 2020;  Procedures for 
Reopening after Temporary Closure Due to COVID-19 posted April 21, 2020, Gaming Control 
Board. Such additional regulatory policies set forth requirements related not only to the social 
distancing and placement of table games or slot machines in the casino, for example, but they also 
set forth requirements regarding training of the employees, financial operations and other internal 
operations of casinos. Id. These casinos are also subject to regular and explicit inspection of all 
aspects of the respective casino’s reopening plan. Id. Indeed, gaming companies are one of the few 
categories of organizations in which the directive specifically discusses enforcement and 
punishment alternatives for violating the directive and concomitant promulgated regulations. 
Emergency Directive, §35.  Casinos are therefore subject to heightened regulation and scrutiny 
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under these guidelines in comparison to churches, regardless of the difference in occupancy cap.  
The Court finds that while Calvary focuses on the fifty-person cap, it fails to consider the totality 
of restrictions placed upon casinos in their comparative analysis. Thus, even if the Court were to 
accept casinos as the nearest point of comparison for its analysis of similar activities and their 
related restrictions imposed by the Governor, the Court would nonetheless find that casinos are 
subject to much greater restrictions on their operations and oversight of their entire operations than 
places of worship.  
The Court also finds that other secular entities and activities similar in nature to church 
services have been subject to similar or more restrictive limitations on their operations. The Court 
notes that church services consist of activities, such as sermons and corporate worship, that are 
comparable in terms of large numbers of people gathering for an extend period of time to lectures, 
museums, movie theaters, specified trade/technical schools, nightclubs and concerts. All of these 
latter activities are also subject to the fifty-person cap or remain banned altogether under 
Emergency Directive. See Emergency Directive, §§  20, 22, 27, 30, 32.  Given that there are some 
secular activities comparable to in-person church services that are subject to more lenient 
restrictions, and yet other activities arguably comparable to in-person church services that are 
subject to more stringent restrictions, the Court cannot find that the Emergency Directive is an 
implicit or explicit attempt to specifically target places of worship. Lukumi, 508 U.S. at 534 
(striking down city council ordinance that specifically targeted and forbid animal sacrifices made 
by a particular religious group). Additionally, whether a church is more like a casino or more like 
a concert or lecture hall for purposes of assessing risk of COVID-19 transmission is precisely the 
sort of “dynamic and fact-intensive” decision-making “subject to reasonable disagreement,” that 
the Court should refrain from engaging in. South Bay, 2020 WL 2813056, at * 1. As the Court 
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finds that the Emergency Directive is neutral and generally applicable, there is no facial Free 
Exercise challenge, and Calvary has therefore not demonstrated a likelihood of success on the 
merits of this claim.  
b. As-Applied Free Exercise Challenge: Selective Enforcement 
 
In its briefing Calvary also brings an as-applied challenge selective enforcement claim. 
Specifically, Calvary points to statements made by the Governor and the Attorney General 
regarding recent protests to argue that the section of the Emergency Directive banning more than 
fifty people from gathering, whether inside or outside, is not being enforced against secular 
activity. Calvary also includes photographs from casinos which appear to indicate violations of the 
social distancing requirements of the Directive and photos from Fremont Street in downtown Las 
Vegas in which it appears that far more than fifty people have gathered.  
First, the Court is not persuaded that outdoor protest activity is similar to places of worship 
in terms of the nature of the activity and its ability to be regulated. Outdoor protests involve 
dynamic large interactions where state officials must also consider the public safety implications 
of enforcement of social distancing. That is to say that such enforcement could result in greater 
harm than that sought to be avoided by the Directive. The choice between which regulations or 
laws shall be enforced in social settings is a choice allocated generally to the executive, not the 
judiciary, absent clear patterns of unconstitutional selective enforcement.  
Moreover, the Court finds that Calvary has not provided a sufficient evidentiary basis for 
its as-applied challenge. For a selective enforcement claim, it is not enough for Calvary to 
demonstrate that the directive is intermittently not being enforced against secular activities. 
Calvary must also demonstrate that Defendants are only enforcing the directive against places of 
worship. See Stormans, Inc v. Wiseman, 794 F.3d 1064, 1083 (9th Cir. 2015) (finding no evidence 
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of selective enforcement against religiously affiliated pharmacies in enforcement of drug delivery 
rules). The Plaintiffs have not presented evidence of such a pattern of selective enforcement. While 
images of crowded casinos attached to its submission may raise a potential future issue of selective 
enforcement, the Court must have more evidence than this to find a likelihood of success on the 
merits of a selective enforcement claim.  
The Plaintiff’s selective enforcement claim is premature. The story of the enforcement of 
these directives has yet to be written.  Indeed, the primary official tasked with enforcing the 
Emergency Directive in Lyon County is the Lyon County Sheriff. Defendant Sheriff Frank 
Hunewill has indicated through counsel that he has no intention of using limited law enforcement 
resources to enforce the directive against Calvary or other places of worship. Calvary has presented 
no evidence indicating that it has been subject to actual enforcement by the Sheriff or any other 
law enforcement officer.  Calvary therefore has not demonstrated a likelihood of success on the 
merits of its selective enforcement claim. If Calvary does in fact have evidence of selective 
enforcement against it, nothing in this order shall prohibit it from returning to the Court with that 
evidence and filing a new motion for a preliminary injunction.  
/ / / 
 
 
 
 
 
 
 
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VI. 
CONCLUSION  
IT IS THEREFORE ORDERED that Plaintiff’s Emergency Motion for Temporary 
Restraining Order and Emergency Motion for Preliminary Injunction (ECF Nos. 9, 19) are 
DENIED.   
IT IS FURTHER ORDERED that the Motion for Leave (ECF No. 41) is DENIED 
without prejudice. The Court does grant Plaintiff leave to file a new subsequent motion for 
injunctive relief in which it may provide more evidence for an as-applied challenge to the 
Emergency Directive. The Court finds that full briefing would be appropriate for consideration of 
any additional evidence presented by any party.  
DATED June 11, 2020. 
 
 
 
 
 
 
 
 
__________________________________ 
 
 
 
 
 
 
 
RICHARD F. BOULWARE, II 
 
 
 
 
 
 
 
UNITED STATES DISTRICT JUDGE 
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