DOJ Joins Fight Against Philly's Pandemic Crowd Limits

By Matt Fair
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Law360 (October 30, 2020, 5:09 PM EDT) -- The top federal prosecutor in Philadelphia on Friday threw his support behind a lawsuit from a local veterans group challenging the constitutionality of an ongoing ban on large public gatherings that the city is enforcing to help curb the spread of the coronavirus.

U.S. Attorney William McSwain said that the city's policy of refusing to issue permits to gatherings of 150 or more people stood in stark contrast to its willingness in recent months to allow public protests over racial injustice.

"This is a case about more speech, not less," McSwain said. "The city's double standard — whereby it treats protests one way and any other First Amendment gathering a completely different way — is illogical, favors particular messages, does not serve public health purposes, and is unconstitutional."

McSwain's office and the U.S. Department of Justice's Civil Rights Division filed a letter of interest as part of the lawsuit filed Friday by the Philadelphia Vietnam Veterans Memorial Society alleging that the city's ongoing ban on large public gatherings violated its First Amendment rights.

According to its complaint, the group regularly participates in parades and other events to honor Vietnam War veterans, and provides honor guards and rifle teams at funerals.

But all that has come to a stop as a result of the pandemic and ongoing restrictions the city is imposing on public gatherings in a bid to stop the spread of COVID-19.

Under its restrictions, the city is refusing to issue permits or sign off on other approvals for special events or public gatherings of 50 or more people through at least the end of February.

At the same time, however, spontaneous large-scale demonstrations have sprung up in the city in recent months as residents have protested the police killing of George Floyd in Minnesota and other incidents of racial injustice.

In just the last week, the city has seen sustained protests after Philadelphia police shot and killed a Black man who was wielding a knife while undergoing an apparent mental health crisis.

Despite crowds that have been estimated in the thousands, or even tens of thousands, Mayor Jim Kenney said that such demonstrations were exempt from the city's moratorium on public events, the complaint says.

"These demonstrations are no different than traditional parades that would ordinarily require a permit," the group's complaint says. "Yet, the city has permitted the former without restriction and it has banned the latter entirely."

City spokesman Mike Dunn said the restrictions were an important part of helping to keep the virus at bay, and are doubly important now as cases begin to swell once again.

"It's unfortunate that the U.S. attorney has incited a lawsuit to challenge the city's COVID-19 safety measures at one of the most dangerous times in our pandemic," he said. "Philadelphia is currently experiencing the start of what looks like another large wave of COVID-19 cases. The Health Department is reporting an average of more than 350 new cases of the virus every day. This is the highest level of new cases since the first week of May, when our hospitals were on the verge of being overwhelmed. The only reason that the virus was beaten back at that time was the measures that the city implemented to limit public congregation and promote social distancing. Efforts to further roll back these common sense, life-saving restrictions will exacerbate the situation, leading to more infections, hospitalizations, and deaths."

The veterans group is represented by John Bloor of Faegre Drinker Biddle & Reath LLP.

The government is represented by William McSwain, Gregory David, Eric Gill and Jacqueline Romano of the U.S. Attorney's Office for the Eastern District of Pennsylvania and Eric Dreiband, John Daukas and Alexander Maugeri of the U.S. Department of Justice Civil Rights Division.

Counsel information for the city was not immediately available.

The case is Philadelphia Vietnam Veterans Memorial Society v. Jim Kenney et al., case number 2:20-cv-05418, in the U.S. District Court for the Eastern District of Pennsylvania.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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