By Hailey Konnath

Law360 (December 23, 2020, 9:50 PM EST) -- A Pennsylvania federal judge declined Wednesday to preliminarily block the city of Philadelphia's COVID-19 safety restrictions banning large public gatherings, ruling that the veterans group challenging the measures is unlikely to win its suit claiming its First Amendment rights have been violated.

The Philadelphia Vietnam Veterans Memorial Society had taken issue with the city's policy of refusing to issue permits to gatherings of 50 or more people. In October, the top federal prosecutor in Philadelphia threw his support behind the suit, arguing that the policy stands in stark contrast to the city's willingness in recent months to allow public protests over racial injustice.

The veterans had sought a preliminary injunction blocking the regulation. But U.S. District Judge Nitza I. Quiñones Alejandro ruled Wednesday that the group hasn't shown a likelihood of success on the merits of its constitutional claims.

The city has argued that the July moratorium that the veterans had pointed to in their suit was merely an unofficial policy statement lacking the force of law, and the veterans have presented no evidence to rebut that contention, Judge Quiñones Alejandro said in her order.

"In the absence of any rebuttal from plaintiff, this court cannot conclude that plaintiff has presented an actual and justiciable case or controversy with respect to the moratorium and/or a likelihood of success on its challenge thereto," she said.

And since then, the city has rescinded those restrictions by issuing new, superseding guidance, the judge said. That guidance limits outdoor gatherings and events to 10 percent of maximum capacity of the space, or 10 people per 1,000 square feet, according to the city's website. 

"By implicitly and explicitly rescinding the moratorium (which alone had no legal effect), defendants have already provided plaintiff the relief it sought in its underlying motion with respect to the July 14, 2020, moratorium," Judge Quiñones Alejandro said.

The veterans group also took issue with regulations issued in November, but the judge found that it was similarly unlikely to prevail on those claims. The restrictions "appear sufficiently narrowly tailored to serve the government's significant interests in reducing the spread of COVID-19," she said.

And the group hasn't proven irreparable harm, Judge Quiñones Alejandro said. Even if it had, "this court cannot conclude that plaintiff's alleged harm outweighs the potential harm to the general public if the restriction is lifted," she said.

Philadelphia Mayor Jim Kenney said in a statement Wednesday that he is pleased with the ruling, which reaffirms the city's ability to curb the spread of COVID-19 by placing reasonable restrictions on large outdoor events and gatherings."

"Our administration will continue to do whatever is in the best interest of our residents and their health," he said. 

Jason Gosselin, counsel for the veterans group, told Law360 that he agrees that the city's retreat from the moratorium provides the relief the Philadelphia Vietnam Veterans group was seeking.

"But we do not agree that the city's eleventh-hour change in policy — while facing a lawsuit — moots the issue as a legal matter," he said. 

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 it's all come crashing to a halt in the midst of the pandemic and related safety restrictions, the veterans said.

Specifically, Philadelphia 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, 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. Despite crowds that have been estimated in the thousands, or even tens of thousands, Kenney said that such demonstrations were exempt from the city's moratorium on public events, per the suit.

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

Meanwhile, 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 continue to spike.

In late October, U.S. Attorney William McSwain called it a "double standard," saying it 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.

Representatives with the mayor's office and counsel for the veterans group didn't immediately return requests for comment late Wednesday. The DOJ doesn't typically comment on pending litigation.

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

The federal 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's Civil Rights Division.

Philadelphia's mayor is represented by Diana Cortes and Craig Gottlieb of the city's law department.

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

--Additional reporting by Matt Fair. Editing by Bruce Goldman.

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