Motion For Injunction Pending Appeal - Roberts

Case: 20-5465 Document: 12 Filed: 05/06/2020 Page: 1
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
THEODORE JOSEPH ROBERTS, : Case No. 20-5465

et. al. : Trial Case No. 2:20-CV-00054-WOB
Plaintiffs/Appellants :
v. :
ROBERT NEACE, et. al. :
Defendants/Appellees :
EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

I. Introduction
Plaintiffs (a regular congregant and two visitors to Easter services at the
Maryville Baptist church), by and through Counsel, move for an emergency
injunction pending appeal, pursuant to FRAP 8, both (i) on their right to attend in-
person church services, and (ii) for an injunction enjoining Defendants from
criminally prosecuting or quarantining Plaintiffs for having attended in-person
church services on Easter Sunday.1
The unconstitutional threats faced by Plaintiffs are solely as a result of their
free exercise of their closely held religious beliefs in attending an Easter Sunday
service on April 12, 2020. On May 4, 2020, and despite the uncontradicted
evidence that Plaintiffs practiced appropriate social distancing while at the service,
1
As the rules require, all evidence and other materials required to decide this
motion are attached hereto.
1
the District Court granted in part and denied in part their motion for a preliminary
injunction.
Specifically, Plaintiffs challenged Governor Beshear’s COVID-19 travel ban
which the District Court found unconstitutional and enjoined. [Opinion, RE#46,
PAGEID#825-839, Injunction, RE#47, PAGEID#840]. However, in the same
opinion, the District Court refused to apply strict scrutiny and found that Governor
Beshear’s order on mass gatherings, which banned all faith-based gatherings
without exception but created numerous secular exceptions, was neutral and
generally applicable, and thus constitutional under the Free Exercise Clause. [Id.].
This decision was issued with the full benefit of, and contrary to, the holding and
reasoning set forth in, the Opinion and Order issued over the weekend in Maryville
Baptist Church, Inc., et. al. v. Beshear, Case No. 20-5427, 2020 U.S. App. LEXIS
14213, ---F.3d ---, (May 2, 2020) (“Maryville”).
As a result of the District Court’s decision, on May 4, 2020, Plaintiffs
moved in the District Court for an injunction pending appeal under FRAP 8.
[Motion for Injunction pending appeal, RE#49, PAGEID#859-862]. On May 5,
2020, the District Court perfunctorily denied this relief by simply reiterating its
decision on the preliminary injunction as the basis for denial. [Order Denying
Motion, RE#53, PAGEID#899].
2
II. Factual Background
Plaintiffs are practicing Christians who testified to their sincerely held
religious beliefs concerning in-person worship, particularly on Easter Sunday.
[Am. Verified Compl, RE#6, PAGEID#72; Dec. Roberts, RE#7-2, PAGEID#150-
155; Declaration Daniel, RE#7-3, PAGEID#150-155; Declaration O’Boyle, RE#7-
4, PAGEID#160-164].2
Defendants, who include Boone County Attorney and prosecutor Bob
Neace, Governor Andrew Beshear, and Secretary Friedlander, were all sued in
their official capacities as they all are intimately involved with the enforcement of
the challenged orders. [Am. Verified Compl, RE#6, PAGEID#72-73; Declaration
Roberts, RE#7-2, PAGEID#150-155].
By way of background, on March 19, 2020, in response to COVID-19, the
Governor issued an order ( the “mass gatherings ban”) that prohibited some, but
not all, public gatherings. [Am. Verified Compl., RE#6, PAGEID#74-75, and
Exhibit D thereto, PAGEID#99-100]. The Governor’s exercise in word play could
not be more clear. On the one hand, his order provided that “[a]ll mass gatherings
are hereby prohibited.” But then, in paragraph 3 of the same order, he exempted a
number of purely secular activities from this definition. As enumerated in
2
As required by the appellate and local rules, all evidentiary materials are attached
hereto.
3
paragraph 3, and for the avoidance of doubt, a mass gathering does not include
“normal operations at airports, bus and train stations, medical facilities, libraries,
shopping malls and centers, or other spaces where persons may be in transit.” Id.
“It also does not include typical office environments, factories, or retail or grocery
stores where large numbers of people are present, but maintain appropriate social
distancing.”3 Id.
The mass gatherings ban referenced K.R.S. 39A and/or K.R.S. Chapter 214
as authority for its promulgation. [Am. Verified Compl., RE#6, PAGEID#76, and
Exhibit D, PAGEID#99-100]. Both of those Chapters contain criminal penalties.
K.R.S. 39A.990 (Class A misdemeanor for any violations of orders); K.R.S.
220.990 (Class B misdemeanor for any violations of orders). K.R.S. 39A.190
gives police officers authority to “arrest without a warrant any person violating or
attempting to violate in the officer’s presence any order or administrative
regulation made pursuant to” KRS Chapter 39A. The Governor also created the
“COVID-19 Reporting Hotline” and requested that Kentuckians call it “for
complaints about noncompliance with coronavirus mandates.” Id. at PAGEID#81.
In his evening briefings after promulgating the mass gatherings ban, the
Governor made clear that he was going to target religious services for quarantine
3
Yet another notable exception appears to be the Governor’s own daily press
conference, where reporters and members of the media gather daily in a “do as I
say, not as I do” scenario. Id.
4
notices, apart from other gatherings. [Am. Verified Compl., RE#6, PAGEID#78;
Declaration Roberts, RE#7-2, PAGEID#150-155].4
Specifically, the Governor spoke about “mass gatherings”, but then admitted
he was talking about “less than seven churches” statewide. Id. He also admitted
that he had been “focused a lot on an individual church or pastor.” [Id. Video, at
the 35:44-39:35 mark]. He admitted he was sending out enforcers to take and
record the license plate number of church attendees and then would force those
attendees to quarantine. Id. The Governor admitted that the prohibition on “mass
gatherings” applied to “in-church” services. Id. at 49:39-51:28. Further, in
response to a reporter’s questions, he stated that these enforcement activities
applied only to the Easter weekend services and church services. Id. at 1:08:00 to
1:08:07. Governor Beshear then carried out his threats.
On Easter Sunday, April 12, 2020, Plaintiffs TJ Roberts, Randall Daniel, and
Sally O’Boyle attended Easter church service at Maryville Baptist Church, in
Hillview, Bullitt County Kentucky. [Am. Verified Compl., RE#6, PAGEID#76;
Declaration Roberts, RE#7-2, PAGEID#150-155]. They each did so pursuant to
sincerely held religious beliefs that in-person church attendance was required,
particularly on Easter Sunday. [Id.; Declaration Roberts, RE#7-2, PAGEID#150-
4
https://www.youtube.com/watch?v=SJVDhu38S68&feature=youtu.be (last
visited 4/16/2020). This statement can be found at between the 35:44-39:35 mark.
5
155; Declaration Daniel, RE#7-3, PAGEID#156-159; Declaration O’Boyle, RE#7-
4, PAGEID#160-164].
While at the service, each ensured appropriate social distancing and took
other measures appropriate for the circumstances in accordance with CDC
Guidelines.5 Id. Among other things, they each sat six feet away from other
congregants at the service, wore masks covering their faces, and did not have
personal contact with others attending. Id. No evidence exists that anyone with
COVID-19 was in attendance at any of the April 12, 2020, Easter services. Id.;
Declaration Roberts, RE#7-2, PAGEID#150-155; Declaration Daniel, RE#7-3,
PAGEID#156-159; Declaration O’Boyle, RE#7-4, PAGEID#160-164.
When Plaintiffs TJ Roberts, Randall Daniel, and Sally O’Boyle exited the
service, they found on their windshield the following notice (“Quarantine and
5
https://www.cdc.gov/coronavirus/2019-
ncov/community/organizations/index.html (last visited 4/13/2020);
https://www.cdc.gov/coronavirus/2019-
ncov/community/organizations/guidancecommunity-faith-organizations.html
(last visited 4/13/2020).
6
Prosecution Notice”), placed there by Kentucky State Troopers:
Id.
Other than sending state troopers to churches, the evidence established that
no enforcement action occurred as to other “mass gatherings” reported to the
Governor. Two witnesses provided uncontradicted declarations demonstrating the
selective targeting of the Plaintiffs’ exercise of their closely held religious beliefs
and practices. [Declaration Stanley, RE#7-5, PAGEID#165-166; Declaration Cox,
RE#7-6, PAGEID#156-159; Supp. Declaration Cox, RE#18-1, PAGEID#273-
274].
Not surprisingly, and without contradicting Plaintiffs’ proof, Defendants
placed evidence of record that they did enforce the Governor’s non-essential
business ban as to non-essential businesses. [Declaration Perry, RE#24-5,

7
PAGEID#373-375]. But, when it came to enforcement of the mass gatherings ban,
Defendants engaged in a sleight of hand: they indicated they received 70
complaints, but did not indicate whether they responded to any of those 70
complaints. Id. Also, Defendants admitted that they dispatched state police to
faith-based mass gatherings, but did not state whether they dispatched state police
to any other “mass gatherings”. [Declaration Brewer, RE#24-4, PAGEID#371-
372].
None of the Plaintiffs have displayed any symptoms of the COVID-19
disease, and, to the best of their knowledge, they do not have the COVID-19
disease. [Am. Verified Compl., RE#6, PAGEID#79; Declaration Roberts, RE#7-2,
PAGEID#150-155; Declaration Daniel, RE#7-3, PAGEID#156-159; Declaration
O’Boyle, RE#7-4, PAGEID#160-164].
All of the Plaintiffs refuse to self-quarantine, as required by the Quarantine
and Prosecution Notice, unless and until they have a diagnosis of having contracted
COVID-19, which none of them have. Id. In light of the notice, Plaintiffs TJ
Roberts, Randall Daniel, and Sally O’Boyle reasonably fear prosecution and/or the
equivalent of house arrest if, in the exercise of their constitutional rights, they
should attend further in-person church services. Id.
III. Law and Argument
8
A. The District Court erred in failing to grant an injunction where it

disregarded a published decision by this Court issued only two days
before.
1. Preliminary injunction standard
When deciding whether to issue a preliminary injunction, a court must
consider the following four factors: (1) Whether the movant has demonstrated a
strong likelihood of success on the merits; (2) Whether the movant would suffer
irreparable harm; (3) Whether issuance would cause substantial harm to others;
and (4) Whether the public interest would be served by issuance.
Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998). These "are factors to be
balanced, not prerequisites that must be met." In re DeLorean Motor Co., 755 F.2d
1223, 1229 (6th Cir. 1985).
When analyzing a motion for preliminary injunction, "the 'likelihood of
success' prong is the most important [factor] and often determinative in First
Amendment cases." Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009); see also
Aristotle Pub. v. Brown, 61 F. App'x 186, 188 (6th Cir. 2003). With respect to the
‘likelihood of success’ prong, and because First Amendment rights are at issue, it
is the Defendants, not Plaintiffs, who bear the burden of establishing the
constitutionality of the challenged legislation. U.S. v. Playboy Entm't Group, Inc.,
529 U.S. 803, 816 (2000).
9
2. Plaintiffs demonstrated a likelihood of success on the merits, but

the District Court disregarded the most recent precedent of this
Court in holding otherwise
The First Amendment protects the “free exercise” of religion, and
fundamental to this protection is the right to gather and worship. See W. Va. State
Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); Cantwell v. Connecticut, 310
U.S. 296 (1940). Because of this fundamental protection, “a law burdening
religious practice that is not neutral or not of general application must undergo the
most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 546 (1993). The requirements to satisfy this scrutiny are so high that the
government action will only survive this standard “in rare cases,” and the
government bears the burden of proof. Id.
This fundamental protection applies regardless of how others feel about the
wisdom of exercising these rights, such as whether one considers them essential or
not, or life sustaining or not. “Although the practice of [in-person church service
during a COVID-19 outbreak] may seem abhorrent to some, religious beliefs need
not be acceptable, logical, consistent, or comprehensible to others in order to merit
First Amendment protection.’” Id. at 531, quoting Thomas v. Review Bd. of
Indiana Employment Security Div., 450 U.S. 707, 714 (1981).
As the Supreme Court observed in Hialeah, “[i]n addressing the
constitutional protection for free exercise of religion, our cases establish the
10
general proposition that a law that is neutral and of general applicability need not
be justified by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice.” 508 U.S. 520, 531,
quoting Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
872 (1990). “Neutrality and general applicability are interrelated, and, as becomes
apparent in this case, failure to satisfy one requirement is a likely indication that
the other has not been satisfied.” Id. However, a law failing to satisfy both of
these requirements must be justified by a compelling governmental interest and
must be narrowly tailored to advance that interest. Id.
The Hialeah Court began by addressing neutrality. It noted that “to
determine the object of a law, we must begin with its text, for the minimum
requirement of neutrality is that a law not discriminate on its face.” Id. at 533.
Specifically, “a law lacks facial neutrality if it refers to a religious practice without
a secular meaning discernible from the language or context.” Id.
Here, the “mass gatherings ban” bans all faith-based mass gatherings, but
then exempts a list of purely secular ones. As noted, the Governor’s mass
gatherings ban initially provides that “[a]ll mass gatherings are hereby prohibited,”
and then goes on to define “[m]ass gatherings” to 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;
11
concerts; festivals; conventions; fundraisers; and similar activities.” (emphasis
added). So, the calling out of faith-based gatherings here demonstrates the lack of
neutrality on its face. But making the matter even more problematic, and for the
avoidance of any doubt, the only exemption is for a number of purely secular
activities.
Specifically, the mass gatherings ban continues: “[f]or the avoidance of
doubt, a mass gathering does not include normal operations at airports, bus and
train stations, medical facilities, libraries, shopping malls and centers, or other
spaces where persons may be in transit. It also does not include typical office
environments, factories, or retail or grocery stores where large numbers of people
are present, but maintain appropriate social distancing.” (emphasis added).6 In
other words, the plain text of the Governor’s mass gatherings ban leaves no doubt
it lacks facial neutrality. At this point, the Defendants cannot meet their burden of
constitutionality.
But, even if the law were facially neutral, which it is not, the inquiry does
not end “with the text of the laws at issue.” Hialeah, 508 U.S. 520, 534. Mere
“facial neutrality is not determinative.” Id. That is because the Free Exercise
6
These de jure exceptions are only for secular purposes. There are no faith-based
exceptions. As noted, there appears to be at least one de facto exception as the
Governor’s own daily press conference involving reporters and members of the
media is a clear example of “do as I say, not as I do”.
12
Clause even "forbids subtle departures from neutrality", and "covert
suppression of particular religious beliefs." Id. (emphasis added). “Official action
that targets religious conduct for distinctive treatment cannot be shielded by mere
compliance with the requirement of facial neutrality.” Id. "The Court must survey
meticulously the circumstances of governmental categories to eliminate, as it were,
religious gerrymanders." Id.
Any under-inclusivity and/or overbreadth of the challenged legislation is
constitutionally significant. Id. at 535-539. Thus, where government restricts
conduct protected by the First Amendment (which certainly is the case here), but
“fails to enact feasible measures to restrict other conduct producing substantial
harm or alleged harm of the same sort, the interest given in justification of the
restriction is not compelling.” Id. at 546-547.
In other words, if crowded conditions allowing more easy transmission of
the corona virus are the concern here, then the permissibility of mass gatherings at
shopping malls, bus and train stations, medical facilities, libraries, and convenience
stores all demonstrate a significant under-inclusivity problem. Once again, and the
Governor’s word play aside, quite clearly the requirement of general applicability
is not met here where there is no ban on gatherings of 10 or more at those secular
establishments exempted from the mass gatherings ban, but where harm “of the
same sort” can quite easily occur.
13
Even if the challenged orders were facially neutral and generally applicable,
which they are not, it is also not permissible under the First Amendment to target
enforcement towards religious groups to the exclusion of other groups.
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719, 1731
(2018). As in Masterpiece, the Governor’s enforcement action of sending armed
state troopers to an Easter service to place Quarantine and Prosecution Notices on
people’s windshields, and to not do so at other non-exempt “mass gatherings,”
demonstrates a Free Exercise violation.
In Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2002), this Court observed that
“[i]f the law appears to be neutral and generally applicable on its face, but in
practice is riddled with exemptions or worse is a veiled cover for targeting a belief
or a faith-based practice, the law satisfies the First Amendment only if it
‘advance[s] interests of the highest order and [is] narrowly tailored in pursuit of
those interests.” Id. Ultimately, this Court properly concluded that “at some point,
an exception-ridden policy takes on the appearance and reality of a system of
individualized exemptions, the antithesis of a neutral strict scrutiny.” Id. In other
words, “a double standard is not a neutral standard.” Id.
In rendering its decision, the Ward Court favorably cited then Judge Alito’s
opinion in Fraternal Order of Police Newark Lodge No.12 v. City of Newark, 170
F.3d 359,365-67 (3d Cir. 1999) (Alito, J.) (invalidating a police department policy,
14
ostensibly adopted to promote unity within the department, that only barred some
officers from growing beards where the policy exempted officers who could not
shave for medical reasons, but not officers who could not shave for religious
reasons).
Here, as was the case in both City of Newark and in Ward, the Governor’s
mass gatherings ban is “riddled with exemptions” for secular “mass gatherings,”
but bans all faith-based “mass gatherings”, such as in-person church services. As
such, it violates the Free Exercise Clause. Likewise, the Governor’s uneven and
targeted enforcement carried out with state police dispatched to churches, but not
to other locations where violations of the mass gatherings ban were repeatedly
reported, as well as the Governor’s own damning admissions at his news
conference of targeting church services, raise identical concerns to those tackled by
this Court in Ward and should result in the same outcome.
The Governor’s mass gatherings ban is nothing more than an
unconstitutional attempt to redefine some mass gatherings as not “mass
gatherings” by simply saying so (someone needs to tell the Corona virus about
these exempt locations). This “word play” becomes quite clear as it is undisputed
the order contains no restrictions on the total number of people who are permitted
to be in airports, bus and train stations, medical facilities, libraries, shopping malls,
shopping centers, and other spaces where persons may be in transit. The order also
15
contains no restrictions on the amount of time those people can be
stationary/sitting at these locations. These “individualized exemptions” clearly
demonstrate the discriminatory nature of the Governor’s order.
Take air travel: passengers go to the airport, per airline and TSA
recommendations, an hour before their flights. Generally, passengers are crowded
in a confined area at their gates to hear any boarding announcements and to simply
wait for their flights. Then, they board their planes (or buses or trains as far as
those exemptions are concerned) and they sit in close proximity to others (less than
a foot apart), for hours at a time. Despite this reality, and with a stroke of the
Governor’s pen, somehow these are not mass gatherings. Why? Because the
Governor says so. A value judgment has been made that this travel is essential,
whereas the exercise of closely held religious liberty is not.
And office environments and factories? Again, people frequently
congregate in those settings. However, there is no limit on how long someone can
stay in those settings, and no limit on the number of people who can be in those
settings. Yet again, a value judgment has been made: paid work (well at least
some of it) is essential. The exercise of closely held religious liberty is not.
That leaves us with the recent decision in Maryville Baptist Church, Inc., et.
al. v. Beshear, Case No. 20-5427, 2020 U.S. App. LEXIS 14213, ---F.3d ---, (May
2, 2020). As this Court observed in Maryville “[d]iscriminatory laws come in
16
many forms.” Id. “Outright bans on religious activity alone obviously count.” Id.
But “[s]o do general bans that cover religious activity when there are exceptions
for comparable secular activities.” Id. “As a rule of thumb, the more exceptions to
a prohibition, the less likely it will count as a generally applicable, non-
discriminatory law.” Id., citing Ward, 667 F.3d at 738. "At some point, an
exception-ridden policy takes on the appearance and reality of a system of
individualized exemptions, the antithesis of a neutral and generally applicable
policy and just the kind of state action that must run the gauntlet of strict scrutiny."
Id. at 740.
Leaving no doubt about the appropriate level of scrutiny, this Court then
stated that “the Governor's orders do not seem to survive strict scrutiny,
particularly with respect to the ban on outdoor services.” Id. “The question, then,
is one of general applicability.” Id.
The real question goes to exceptions. The Governor insists at the outset that
there are "no exceptions at all." Appellee Br. at 21. But that is word play.
The orders allow "life-sustaining" operations and don't include worship
services in that definition. And many of the serial exemptions for secular
activities pose comparable public health risks to worship services. For
example: The exception for "life-sustaining" businesses allows law firms,
laundromats, liquor stores, and gun shops to continue to operate so long as
they follow social-distancing and other health-related precautions. R. 1-7 at
2-6. But the orders do not permit soul-sustaining group services of faith
organizations, even if the groups adhere to all the public health guidelines
required of essential services and even when they meet outdoors. Id.
(emphasis added).
17
But restrictions inexplicably applied to one group and exempted from

another do little to further these goals and do much to burden religious
freedom. Assuming all of the same precautions are taken,… Why can
someone safely walk down a grocery store aisle but not a pew? And why can
someone safely interact with a brave deliverywoman but not with a stoic
minister? The Commonwealth has no good answers. While the law may take
periodic naps during a pandemic, we will not let it sleep through one. Id.
Plaintiffs here “do not seek to insulate themselves from the Commonwealth's
general public health guidelines.” Id. “They simply wish to incorporate them into
their worship services.” “They are willing to practice social distancing.” Id. “They
are willing to follow any hygiene requirements.” Id. “The Governor has offered no
good reason so far for refusing to trust the congregants who promise to use care in
worship in just the same way it trusts accountants, lawyers, and laundromat
workers to do the same.” Id. “Are they not often the same people, going to work
on one day and attending worship on another?” Id. “If any group fails, as
assuredly some groups have failed in the past, the Governor is free to enforce the
social-distancing rules against them for that reason.” Id.
“Risks of contagion turn on social interaction in close quarters; the virus
does not care why they are there.” Id. “So long as that is the case, why do the
orders permit people who practice social distancing and good hygiene in one place
but not another?” Id. “If the problem is numbers, and risks that grow with greater
numbers, then there is a straightforward remedy: limit the number of people who
can attend a service at one time.” Id.
18
Here, Governor Beshear offers no good reason, or any reason at all, for
refusing to trust the congregants who promise to use care in worship just the same
way he “trusts accountants, lawyers, and laundromat workers to do the same.” Id.
As for the District Court, these 2-day old pronouncements by this Court
make its decision and analysis on the likelihood of success, and its finding that the
Governor’s order was neutral and generally applicable, utterly astounding.
[Opinion, RE#46, PAGEID#825-839]. In a half-hearted attempt at consideration
of this Court’s directives, the District Court poorly reasoned that this Court
“expressly limited its holding to drive-in church services,” and “[had this] Court
felt that such a broader injunction was warranted, it was within its power to so
order. This Court thus does not find that opinion to control the outcome here.”
[Opinion, RE#46, PAGEID#833-834].
In contrast, this Court in Maryville did not find that the Governor’s orders
were neutral and generally applicable. Rather, this Court found that the
Governor’s orders likely violated the First and Fourteenth Amendments and were
discriminatory violations of the Free Exercise Clause, “especially with respect to
drive-in services.” And, while the “especially” language demonstrated the
overreach of the Governor’s ban as applied to drive-in services, this Court in no
way limited its holding to such services.
19
In fact, in rejecting the application of strict scrutiny, the District Court
violated the bedrock foundation of our legal system that a “District Court, of
course, [is] bound by Circuit precedent.” Panetti v. Quarterman, 551 U.S. 930,
961 (2007); Timmreck v. United States, 577 F.2d 372, 373 n.6 (6th Cir. 1978),
overruled on other grounds by United States v. Timmreck, 441 U.S. 780, (1979)).
3. An injunction should issue under the other injunction factors as to

in-person church services, and Plaintiffs have attached, in
consultation with Counsel for the Church and Pastor Roberts, just
such an order
To the extent that the moving party can establish a likelihood of success on
the merits of its constitutional claims, it also has established irreparable harm as a
result of the deprivation of the claimed free speech rights. Connection Dist. Co. v.
Reno, 154 F.3d 281, 288 (6th Cir. 1998) (quoting Elrod v. Burns, 427 U.S. 347,
373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)). The Supreme Court has repeatedly
recognized that the loss of constitutional rights, for even minimal periods of time,
“unquestionably constitutes irreparable injury.” Id. (quoting Elrod v. Burns, 427
U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)). The same is true of
Equal Protection. Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d
566, 578 (6th Cir. 2002) ("Courts have also held that a plaintiff can demonstrate
that a denial of an injunction will cause irreparable harm if the claim is based upon
a violation of the plaintiff's constitutional rights."). Having demonstrated
20
likelihood of success, Plaintiffs also have demonstrated irreparable harm from the
enforcement of the unconstitutional statutes – either facially – or as applied.
As far as harm to others, Courts have long held that there is simply no harm
to others if state and local officials must obey the Constitution. Mich. Chamber of
Commerce v. Land, 725 F. Supp. 2d 665 (E.D. Mich. 2010). See, also, Foster v.
Dilger, 2010 U.S. Dist. LEXIS 95195 (EDKY 2010) (no substantial harm to others
where constitutional rights at stake); ACLU v. McCreary County, 96 F. Supp. 2d
679 (ED KY 2000).
As for the fourth factor, the public interest always strongly favors the
vindication of constitutional rights and the invalidation of any state action which
infringes on those rights or chills their confident and unfettered exercise. Mich.
Chamber of Commerce v. Land, 725 F. Supp. 2d 665 (E.D. Mich. 2010). "It is in
the public interest not to perpetuate the unconstitutional application of a statute."
Martin-Marietta Corp. v. Bendix Corp., 690.
With respect to these other factors, this Court recently observed in
Maryville:
The balance is more difficult when it comes to in-person services.

Allowance for drive-in services this Sunday mitigates some harm to the
congregants and the Church. In view of the fast-moving pace of this
litigation and in view of the lack of additional input from the district court,
whether of a fact-finding dimension or not, we are inclined not to extend the
injunction to in-person services at this point. We realize that this falls short
of everything the Church has asked for and much of what it wants. But that
is all we are comfortable doing after the 24 hours the plaintiffs have given
21
us with this case. In the near term, we urge the district court to prioritize
resolution of the claims in view of the looming May 20 date and for the
Governor and plaintiffs to consider acceptable alternatives. The breadth of
the ban on religious services, together with a haven for numerous
secular exceptions should give pause to anyone who prizes religious
freedom. But it's not always easy to decide what is Caesar's and what is
God's—and that's assuredly true in the context of a pandemic. Id. (emphasis
added).
Here, the District Court had the full benefit of this Court’s 2-day old
decision in Maryville and, instead of issuing a narrowly tailored injunction after
consultation with the parties, which is what this Court directed in Maryville, or
directed the Governor to consider these alternatives, the District Court ignored this
Court’s holding altogether.
Likewise, Governor Beshear and Secretary Friedlander have ignored this
Court’s order. Following the submission of this Court’s decision in Maryville to
the District Court, Defendants filed another supplement consisting of a status order
from Judge Hale. [RE#44, RE#44-1; PAGEID#819-823]. That filing, and the
Governor’s hubris in filing it and his statements within in, is a stark demonstration
that without an express order from this Court, these Defendants are not going to
permit in-person church services no matter what proper social distancing protocols
are followed. Likewise, it does not appear that Judge Hale will issue such an
order. [RE#44-1; PAGEID#822-823].
Two final points need to be made. First, the “other factors” weigh heavily
in favor of Plaintiffs in terms of an injunction enjoining Defendants from

22
criminally prosecuting or quarantining Plaintiffs for their having attended church
on Easter Sunday. Given the likelihood of success on the merits, there is literally
no harm to others or to the public interest in not issuing such an injunction.
Second, when it comes to Plaintiffs’ attendance at an in-person service, we
have tendered, as an exhibit, conditions that this Court could impose in such an
injunction to more closely meet the other factors. It would, of course, have been
helpful to have crafted this with the input of Defendants. Instead, they will brook
no compromise in their assault on the First Amendment.
Given these circumstances, “no one can fairly doubt that time is of the
essence.” Maryville, 2020 U.S. App. LEXIS 14213. That is because this “case
will become moot just over three Sundays from now, May 20, when the Governor
has agreed to permit places of worship to reopen.” Id. In light of the record
herein, an injunction should issue. We have proposed an appropriate order.
IV. Conclusion
Plaintiffs motion under FRAP 8 should be granted.
Respectfully submitted,
/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
23
chris@cwiestlaw.com
/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
513-312-9890
/s/Robert A. Winter, Jr. __________

Robert A. Winter, Jr. (KBA #78230)
P.O. Box 175883
Fort Mitchell, KY 41017-5883
(859) 250-3337
robertawinterjr@gmail.com
Attorneys for Plaintiffs/Appellants
CERTIFICATE OF SERVICE
I certify that I have served a copy of the foregoing upon Counsel for the
Defendants, this 6th day of May, 2020, by filing same with the Court via its
CM/ECF system, which will provide notice to all parties Counsel.
24
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Case: 20-5465 Document: Filed:Filed:
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:20cv054 (WOB-CJS)
THEODORE JOSEPH ROBERTS,

ET AL. PLAINTIFFS
VS. MEMORANDUM OPINION AND ORDER
HON. ROBERT NEACE,

ET AL. DEFENDANTS
Plaintiffs Theodore Joseph Roberts, Randall Daniel, and Sally
Boyle bring this action challenging the constitutionality of
certain measures instituted by the Commonwealth of Kentucky in
response to the COVID-19 public health crisis.
Specifically, plaintiffs Daniel and Boyle allege that the ban
on “mass gatherings” as applied to in-person church attendance
violates their right to freedom of religion under the First
Amendment. (Doc. 6, ¶¶ 56-66). Plaintiff Roberts alleges that
restrictions on out-of-state travel violate his fundamental
liberty interest and thus his right to substantive due process.
(Id. ¶¶ 67-73). Plaintiffs further allege that the Travel Ban
violates their right to procedural due process. (Id. ¶¶ 74-79).
This matter is before the Court on plaintiffs’ emergency
motion for temporary restraining order and motion for preliminary

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injunction (Doc. 7). The Court previously heard oral argument on
these motions and took the matter under submission. (Doc. 33).
By agreement of the parties, the Court now issues the
following Memorandum Opinion and Order ruling on plaintiffs’
motion for preliminary injunction.1
Factual and Procedural Background
A. Challenged Restrictions
On March 6, 2020, Kentucky Governor Andrew Beshear began
issuing a series of Executive Orders placing restrictions on
Kentucky citizens as part of an effort to slow the spread of the
COVID-19 virus in the Commonwealth. (Am. Compl. ¶¶ 13-23).
As relevant here, on March 19, 2020, Governor Beshear issued
an Executive Order prohibiting all “mass gatherings.” (Am. Compl.
Exh. D). The Order states: “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.” The Order
states that mass gatherings do not include “normal operations at
The Court acknowledges that Governor Beshear has filed a

1
notice stating that beginning on May 20, 2020, “faith-based

organizations will be permitted to have in-person services at a
reduced capacity, with social distancing, and cleaning and hygiene
measures implemented and followed.” (Doc. 40). Given that this
date is nearly three weeks away, the Court concludes that an
expeditious ruling herein is still warranted.
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airports, bus and train stations, medical facilities, libraries,
shopping malls and centers, or other spaces where persons may be
in transit,” as well as “typical office environments, factories,
or retail or grocery stores where large numbers of people are
present, but maintain appropriate social distancing.” (Id.).
Subsequent Executive Orders closed non-life-sustaining retail
businesses; banned most elective medical procedures; shut down
additional businesses for in-person work; and placed further
restrictions on retail establishments that were allowed to remain
open. (Am. Compl. ¶¶ 18-23).
On March 30, 2020, the Governor issued an Executive Order
banning Kentucky residents from travelling out of state, except
when required for employment; to obtain groceries, medicine, or
other necessary supplies; to seek or obtain care by a licensed
healthcare provider; to provide care for dependents, the elderly,
or other vulnerable person; or when required by court order. (Am.
Compl. Exh. H). The Order also required any Kentuckian in another
state for reasons other than those set forth in the exceptions to
self-quarantine for fourteen days upon returning to Kentucky.
(Id.).
Finally, on April 2, 2020, Governor Beshear issued an
additional Executive Order expanding the travel ban to require
residents of states other than Kentucky who travel into the

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Commonwealth for reasons outside the above exceptions also to self-
quarantine for fourteen days. (Am. Compl. Exh. I).
B. Bases for Plaintiffs’ Claims
Notwithstanding the ban on mass gatherings, on Easter Sunday,
April 12, 2020, plaintiffs attended in-person church services at
Maryville Baptist Church in Hillview, Bullitt County, Kentucky.
(Am. Compl. ¶ 27). Plaintiffs allege that they did so in accord
with their sincerely held religious beliefs that in-person church
attendance was required, and that they observed appropriate social
distancing and safety measures during the service. (Id. ¶¶ 28-
29).
Upon exiting the church, plaintiffs found on their vehicle
windshields a Notice informing them that their presence at that
location was in violation of the “mass gathering” ban. (Am. Compl.
¶ 32). Plaintiffs allege that the notices were placed there by
the Kentucky State Police at the behest of Governor Beshear, who
had stated that he was going to target religious services for such
notices. (Id. ¶ 33-34).
The Notice states that the recipient is required to self-
quarantine for fourteen days and that the local health department
will send them a self-quarantine agreement. In bold, the notice
continues: “Failure to sign or comply with the agreement may result
in further enforcement measures,” and “Please be advised that KRS
39A.990 makes it a Class A misdemeanor to violate an emergency

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order.” (Id. ¶ 32). Plaintiffs subsequently received such
documentation from the Kentucky Cabinet for Health and Family
Services, Department for Public Health. (Doc. 37 at 5-6).
With regard to the Travel Ban, plaintiff Roberts alleges that
the ban prevents him from travelling to Ohio and Indiana for a
variety of personal reasons that do not fall within the exceptions
found in Governor Beshear’s orders. (Am. Compl. ¶ 40).
Analysis
“A preliminary injunction is an ‘extraordinary remedy never
awarded as of right.’” Adams & Boyle, P.C. v. Slatery, - F.3d -,
No. 20-5408, 2020 WL 1982210, at *7 (6th Cir. April 24, 2020)
(quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24,
(2008)). “Rather, the party seeking the injunction must prove: (1)
that they are likely to succeed on the merits of their claim, (2)
that they are likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips in their
favor, and (4) that an injunction is in the public interest.” Id.
A court considering whether to grant a preliminary injunction must
therefore “balance the competing claims of injury and must consider
the effect on each party of the granting or withholding of the
requested relief.” Id. (citation omitted).

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A. Mass Gathering Ban
The Court first considers plaintiffs’ claim that Kentucky’s
ban on mass gatherings impermissibly infringes their First
Amendment right to the free exercise of religion.
The Free Exercise Clause of the First Amendment, which has
been applied to the States through the Fourteenth Amendment,
provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531 (1993).
“A law that is neutral and of general applicability need not
be justified by a compelling governmental interest even if the law
has the incidental effect of burdening a particular religious
practice.” Id. A law is not neutral if it “discriminates against
some or all religious beliefs or regulates or prohibits conduct
because it is undertaken for religious reasons.” Id. at 533.
Stated differently, neutrality is lacking where “the object of a
law is to infringe upon or restrict practices because of their
religious motivation.” Id.
Further, as to general applicability, the Supreme Court noted
in Lukumi that “all laws are selective to some extent,” and that
reality does not render a law constitutionally suspect. Id. at
542. Rather, the First Amendment inquiry, again, focuses on

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whether the government is selectively imposing “burdens only on
conduct motivated by religious belief.” Id. at 543.
A law that fails to satisfy the neutrality and general
applicability requirements “must be justified by a compelling
governmental interest and must be narrowly tailored to advance
that interest.” Id. 531-32.
With these principles in mind, it is abundantly clear that
the “object or purpose of” Kentucky’s mass gathering ban is not
“the suppression of religion or religious conduct.” Lukumi, 508
U.S. at 533. To the contrary, the plain text of the challenged
order categorically bans all “mass gatherings” as a means of
preventing the spread of a life-threatening virus. The
illustrative examples set forth are sweeping: “community, civic,
public, leisure, faith-based, or sporting events; parades;
concerts; festivals; conventions; fundraisers; and similar
activities.” (Doc. 6-4 at 1).
Plaintiffs do not argue that the State has permitted any other
of the cited examples of mass gatherings to take place; rather,
plaintiffs argue that certain businesses that the government has
allowed to remain open present similar health risks. That, of
course, is a judgment call, but what is missing is any evidence
that Kentucky has conducted the essential/non-essential analysis
with religion in mind. Lukumi, 508 U.S. at 543.

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Moreover, there is an undeniable difference between certain
activities that are, literally, life sustaining and other that are
not. Food, medical care and supplies, certain travel necessary to
maintain one’s employment and thus income, are, in that sense,
essential. Concerts, sports events, and parades clearly are not.
And while plaintiffs argue that faith-based gatherings are as
important as physical sustenance, as a literal matter, they are
not life-sustaining in the physical sense.
As the Sixth Circuit observed just recently in the context of
this pandemic, it “is imperative in such circumstances that judges
give legislatures and executives—the more responsive branches of
government—the flexibility they need to respond quickly and
forthrightly to threats to the general welfare, even if that
flexibility sometimes comes at the cost of individual liberties.”
Adams & Boyle, P.C. v. Slatery, — F.3d —, No. 20-5408, 2020 WL
1982210, at *1 (6th Cir. April 24, 2020).
Does the mass gathering ban have the effect of preventing
plaintiffs who comply with it from attending in-person church
services? Yes. Does the ban do so because the gatherings are
faith-based? No.
For this reason, another Kentucky federal court hearing a
case brought by the church attended by plaintiffs recently denied
the church’s motion for a temporary restraining order, finding
that the church had not demonstrated a likelihood of success on

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the merits of its First Amendment claim. See Maryville Baptist
Church, Inc. v. Beshear, — F. Supp.3d -, No. 3:20cv278, 2020 WL
1909616 (W.D. Ky. April 18, 2020). The relief sought by the church
was the same: in-person services with no state-imposed
restrictions.2
The Court notes that just two days ago the Court of Appeals
for the Sixth Circuit overruled, in part, Judge Hale’s denial of
the temporary restraining order. (Doc. 41-1). However, the Sixth
Circuit expressly limited its holding to drive-in church services:
The Governor and all other Commonwealth officials are

hereby enjoined, during the pendency of this appeal,
from enforcing orders prohibiting drive-in services at
the Maryville Baptist Church if the Church, its
ministers, and its congregants adhere to the public
health requirements mandated for “life-sustaining”
entities.
Id. at 10 (emphasis added). And the Court stated: “[W]e are
inclined not to extend the injunction to in-person services at
this point.” Id. Had the Court felt that such a broader injunction
2
Another court granted plaintiffs a temporary restraining order
where the City of Louisville had banned drive-in church services,
which the plaintiffs wished to attend on Easter. See On Fire
Christian Center, Inc. v. Fischer, — F. Supp. 3d —, No. 3:20cv264,
2020 WL 1820249, at *8 (W.D. Ky. April 11, 2020). Although
plaintiffs here make a passing reference in their Complaint to
drive-in services, that is not the relief they seek, nor have they
suggested it as a compromise. The Court also notes that Governor
Beshear, at the Court’s invitation, filed an amicus curiae brief
in that case stating his position that his “mass gathering” ban
does not prohibit drive-in religious services where proper safety
protocol are observed. See Case No. 3:20cv264, Doc. 27. The issue
in On-Fire was thus different than the one before this Court.
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was warranted, it was within its power to so order. This Court
thus does not find that opinion to control the outcome here.
In his opinion, Judge Hale also considered the church’s claim
under the Kentucky Religious Freedom Restoration Act, which
invokes the more demanding “compelling interest” test. Judge Hale
concluded that, even under that standard, the church did not
demonstrate a likelihood of success. Id. at *3.
This Court agrees. The current public health crisis presents
life-or-death dangers. Plaintiffs are not alone in having their
lives and activities disrupted by it and the measures that our
federal and state governments have taken to address it. Indeed,
it is hard to imagine that there is any American that has not been
impacted. But unless a law can be shown to have religion within
its cross-hairs, either facially or in application, the fact that
religious practices are impinged by it does not contravene the
First Amendment.
For these reasons, the Court concludes that plaintiffs have
not shown a likelihood of success on their merits of their First
Amendment claim, and their motion for preliminary injunction on
that basis will be denied.3
3
For the same reasons, the Court also concludes that plaintiffs
have failed to satisfy the remaining preliminary injunction
factors.
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B. Travel Ban4
After careful review, the Court concludes that the Travel Ban
does not pass constitutional muster. The restrictions infringe on
the basic right of citizens to engage in interstate travel, and
they carry with them criminal penalties.
The “‘constitutional right to travel from one State to
another’ is firmly embedded in our jurisprudence.” Saenz v. Rose,
526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S.
745, 757 (1966)). Indeed, the right is “virtually unconditional.”
Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643 (1969)). See
also United States v. Guest, 383 U.S. 745, 757 (1966) (“The
constitutional right to travel from one State to another ...
occupies a position fundamental to the concept of our Federal
Union. It is a right that has been firmly established and
repeatedly recognized.”).
To be valid, such orders must meet basic Constitutional
requirements. As the Supreme Court has stated:
(E)ven though the governmental purpose be legitimate and

substantial, that purpose cannot be pursued by means
that broadly stifle fundamental personal liberties when
the end can be more narrowly achieved. The breadth of
legislative abridgment must be viewed in the light of
less drastic means for achieving the same basic purpose.
4 Prospective injunctive relief against State defendants is proper

under the doctrine of Ex Parte v. Young, 209 U.S. 123 (1908).
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Page ID#: 836
Aptheker v. Sec. of State, 378 U.S. 500, 508 (1964) (quoting NAACP
v. Alabama, 377 U.S. 288, 307-08 (1964)).
“Ordinarily, where a fundamental liberty interest protected
by the substantive due process component of the Fourteenth
Amendment is involved, the government cannot infringe on that right
‘unless the infringement is narrowly tailored to serve a compelling
state interest.’” Johnson v. City of Cincinnati, 310 F.3d 484,
502 (6th Cir. 2002) (quoting Washington v. Glucksberg, 521 U.S.
702, 721 (1997)). See also Adreano v. City of Westlake, 136 F.
Appx. 865, 870-71 (6th Cir. 2005) (discussing arbitrary and
capricious aspect of substantive due process claim); Pearson v.
City of Grand Blanc, 961 F2d 1211, 1217 (6th Cir. 1992) (similar).
The travel restrictions now before the Court violate these
principles. They have the following effects, among others:
1. A person who lives or works in Covington would violate
the order by taking a walk on the Suspension Bridge to the
Ohio side and turning around and walking back, since the state
border is several yards from the Ohio riverbank.
2. A person who lives in Covington could visit a friend in
Florence, Kentucky (roughly eight miles away) without
violating the executive orders. But if she visited another
friend in Milford, Ohio, about the same distance from
Covington, she would violate the Executive Orders and have to
be quarantined on return to Kentucky. Both these trips could

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be on an expressway and would involve the same negligible
risk of contracting the virus.
3. Family members, some of whom live in Northern Kentucky
and some in Cincinnati less than a mile away, would be
prohibited from visiting each other, even if social
distancing and other regulations were observed.
4. Check points would have to be set up at the entrances to
the many bridges connecting Kentucky to other states. The I-
75 bridge connecting Kentucky to Ohio is one of the busiest
bridges in the nation. Massive traffic jams would result.
Quarantine facilities would have to be set up by the State to
accommodate the hundreds, if not thousands, of people who
would have to be quarantined.
5. People from states north of Kentucky would have to be
quarantined if they stopped when passing through Kentucky on
the way to Florida or other southern destinations.
6. Who is going to provide the facilities to do all the
quarantining?
The Court questioned counsel for defendants Beshear and
Friedlander during oral argument about some of these
potential applications of the Travel Ban, and counsel indeed
confirmed that the Court’s interpretations were correct.
(Doc. 38 at 9-13).
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Page ID#: 838
The Court is aware that the pandemic now pervading the
nation must be dealt with, but without violating the public’s
constitutional rights. Not only is there a lack of procedural
due process with respect to the Travel Ban, but the above
examples show that these travel regulations are not narrowly
tailored to achieve the government’s purpose. See Johnson v.
City of Cincinnati, 310 F.3d 484, 503 (6th Cir. 2002) (“[I]f
there are other, reasonable ways to achieve those goals with
a lesser burden on constitutionally protected activity, a
State may not choose the way of greater interference. If it
acts at all, it must choose ‘less drastic means.’”) (quoting
Dunn v. Blumstein, 405 U.S. 330, 343 (1972)).5
5Minor amendments to the regulations might alleviate the problems.

For example, the Ohio travel regulations only restrict travel into
that state by a person who intends to “stay” in the state. While
the word “stay” is perhaps vague, it certainly implies an intent
to remain in the state at least 24 hours, so that persons stopping
while driving through the state or changing planes at the airport
would not face the risk of being unnecessarily quarantined for 14
days.
Further, the Ohio provisions are requests for the most part and
recite that they have been issued for the “guidance” of the public.
Nor do they apply “to persons who as part of their normal life
live in one state and work or gain essential services in another
state.”
Ohio’s rules, therefore, do not appear overbroad and have a

rational basis for combating the coronavirus, while still
preserving the population’s constitutional rights.
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Therefore, a preliminary injunction will enter declaring the
Travel Ban orders invalid and prohibiting their enforcement.
Therefore, having reviewed this matter, and the Court being
advised,
IT IS ORDERED that:
(1) Plaintiffs’ motion for a preliminary injunction (Doc. 7)
be, and is hereby, GRANTED IN PART AND DENIED IN PART;
(2) Plaintiffs shall post a bond in the amount of $1000.00.
See Fed. R. 65 (c); and
(3) A preliminary injunction consistent with this Memorandum
Opinion and Order shall enter concurrently herewith.
This 4th day of May 2020.

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ET AL. PLAINTIFFS
VS. PRELIMINARY INJUNCTION
HON. ROBERT NEACE,

ET AL. DEFENDANTS
Pursuant to the Memorandum Opinion and Order entered
concurrently herewith, which declares unconstitutional the Travel
Ban promulgated by The Honorable Andrew Beshear, Governor of the
Commonwealth of Kentucky, in conjunction with the COVID-19
emergency,
The Court hereby PRELIMINARILY RESTRAINS AND ENJOINS The
Honorable Andrew Beshear, Governor of the Commonwealth of Kentucky
and all other persons in active concert or participation with him,
from enforcing Executive Order 2020-258 and Executive Order 2020-
266, paragraphs 8-9, pending further Order of the Court.

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EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
THEODORE JOSEPH ROBERTS, et. al. : Case No. 2:20-CV-00054-WOB

Plaintiffs :
v. :
Defendants :
NOTICE OF APPEAL
Plaintiffs, by and through Counsel, give notice of appeal of the District Court’s decision
on the Preliminary Injunction and the Preliminary Injunction [RE#46; RE#47], entered this 5th
day of May, 2020 (attached hereto), to the United States Court of Appeals for the Sixth Circuit.

859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
tbruns@bcvalaw.com
513-312-9890

P.O. Box 175883
(859) 250-3337
1
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robertawinterjr@gmail.co
Attorneys for Plaintiffs
I certify that I have served a copy of the foregoing upon Counsel for the Defendants, this
4th day of May, 2020.

2
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825


ET AL. PLAINTIFFS
VS. MEMORANDUM OPINION AND ORDER
HON. ROBERT NEACE,

ET AL. DEFENDANTS
Plaintiffs Theodore Joseph Roberts, Randall Daniel, and Sally
Boyle bring this action challenging the constitutionality of
certain measures instituted by the Commonwealth of Kentucky in
response to the COVID-19 public health crisis.
Specifically, plaintiffs Daniel and Boyle allege that the ban
on “mass gatherings” as applied to in-person church attendance
violates their right to freedom of religion under the First
Amendment. (Doc. 6, ¶¶ 56-66). Plaintiff Roberts alleges that
restrictions on out-of-state travel violate his fundamental
liberty interest and thus his right to substantive due process.
(Id. ¶¶ 67-73). Plaintiffs further allege that the Travel Ban
violates their right to procedural due process. (Id. ¶¶ 74-79).
motion for temporary restraining order and motion for preliminary

46 12
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826
injunction (Doc. 7). The Court previously heard oral argument on
these motions and took the matter under submission. (Doc. 33).
By agreement of the parties, the Court now issues the
following Memorandum Opinion and Order ruling on plaintiffs’
motion for preliminary injunction.1
Factual and Procedural Background
A. Challenged Restrictions
On March 6, 2020, Kentucky Governor Andrew Beshear began
issuing a series of Executive Orders placing restrictions on
Kentucky citizens as part of an effort to slow the spread of the
COVID-19 virus in the Commonwealth. (Am. Compl. ¶¶ 13-23).
As relevant here, on March 19, 2020, Governor Beshear issued
an Executive Order prohibiting all “mass gatherings.” (Am. Compl.
Exh. D). The Order states: “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.” The Order
states that mass gatherings do not include “normal operations at
The Court acknowledges that Governor Beshear has filed a

1
notice stating that beginning on May 20, 2020, “faith-based

organizations will be permitted to have in-person services at a
reduced capacity, with social distancing, and cleaning and hygiene
measures implemented and followed.” (Doc. 40). Given that this
date is nearly three weeks away, the Court concludes that an
expeditious ruling herein is still warranted.
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827
airports, bus and train stations, medical facilities, libraries,
shopping malls and centers, or other spaces where persons may be
in transit,” as well as “typical office environments, factories,
or retail or grocery stores where large numbers of people are
present, but maintain appropriate social distancing.” (Id.).
Subsequent Executive Orders closed non-life-sustaining retail
businesses; banned most elective medical procedures; shut down
additional businesses for in-person work; and placed further
restrictions on retail establishments that were allowed to remain
open. (Am. Compl. ¶¶ 18-23).
On March 30, 2020, the Governor issued an Executive Order
banning Kentucky residents from travelling out of state, except
when required for employment; to obtain groceries, medicine, or
other necessary supplies; to seek or obtain care by a licensed
healthcare provider; to provide care for dependents, the elderly,
or other vulnerable person; or when required by court order. (Am.
Compl. Exh. H). The Order also required any Kentuckian in another
state for reasons other than those set forth in the exceptions to
self-quarantine for fourteen days upon returning to Kentucky.
(Id.).
Finally, on April 2, 2020, Governor Beshear issued an
additional Executive Order expanding the travel ban to require
residents of states other than Kentucky who travel into the

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828
Commonwealth for reasons outside the above exceptions also to self-
quarantine for fourteen days. (Am. Compl. Exh. I).
B. Bases for Plaintiffs’ Claims
Notwithstanding the ban on mass gatherings, on Easter Sunday,
April 12, 2020, plaintiffs attended in-person church services at
Maryville Baptist Church in Hillview, Bullitt County, Kentucky.
(Am. Compl. ¶ 27). Plaintiffs allege that they did so in accord
with their sincerely held religious beliefs that in-person church
attendance was required, and that they observed appropriate social
distancing and safety measures during the service. (Id. ¶¶ 28-
29).
Upon exiting the church, plaintiffs found on their vehicle
windshields a Notice informing them that their presence at that
location was in violation of the “mass gathering” ban. (Am. Compl.
¶ 32). Plaintiffs allege that the notices were placed there by
the Kentucky State Police at the behest of Governor Beshear, who
had stated that he was going to target religious services for such
notices. (Id. ¶ 33-34).
The Notice states that the recipient is required to self-
quarantine for fourteen days and that the local health department
will send them a self-quarantine agreement. In bold, the notice
continues: “Failure to sign or comply with the agreement may result
in further enforcement measures,” and “Please be advised that KRS
39A.990 makes it a Class A misdemeanor to violate an emergency

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order.” (Id. ¶ 32). Plaintiffs subsequently received such
documentation from the Kentucky Cabinet for Health and Family
Services, Department for Public Health. (Doc. 37 at 5-6).
With regard to the Travel Ban, plaintiff Roberts alleges that
the ban prevents him from travelling to Ohio and Indiana for a
variety of personal reasons that do not fall within the exceptions
found in Governor Beshear’s orders. (Am. Compl. ¶ 40).
Analysis
“A preliminary injunction is an ‘extraordinary remedy never
awarded as of right.’” Adams & Boyle, P.C. v. Slatery, - F.3d -,
No. 20-5408, 2020 WL 1982210, at *7 (6th Cir. April 24, 2020)
(quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24,
(2008)). “Rather, the party seeking the injunction must prove: (1)
that they are likely to succeed on the merits of their claim, (2)
that they are likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips in their
favor, and (4) that an injunction is in the public interest.” Id.
A court considering whether to grant a preliminary injunction must
therefore “balance the competing claims of injury and must consider
the effect on each party of the granting or withholding of the
requested relief.” Id. (citation omitted).

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A. Mass Gathering Ban
The Court first considers plaintiffs’ claim that Kentucky’s
ban on mass gatherings impermissibly infringes their First
Amendment right to the free exercise of religion.
The Free Exercise Clause of the First Amendment, which has
been applied to the States through the Fourteenth Amendment,
provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531 (1993).
“A law that is neutral and of general applicability need not
be justified by a compelling governmental interest even if the law
has the incidental effect of burdening a particular religious
practice.” Id. A law is not neutral if it “discriminates against
some or all religious beliefs or regulates or prohibits conduct
because it is undertaken for religious reasons.” Id. at 533.
Stated differently, neutrality is lacking where “the object of a
law is to infringe upon or restrict practices because of their
religious motivation.” Id.
Further, as to general applicability, the Supreme Court noted
in Lukumi that “all laws are selective to some extent,” and that
reality does not render a law constitutionally suspect. Id. at
542. Rather, the First Amendment inquiry, again, focuses on

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whether the government is selectively imposing “burdens only on
conduct motivated by religious belief.” Id. at 543.
A law that fails to satisfy the neutrality and general
applicability requirements “must be justified by a compelling
governmental interest and must be narrowly tailored to advance
that interest.” Id. 531-32.
With these principles in mind, it is abundantly clear that
the “object or purpose of” Kentucky’s mass gathering ban is not
“the suppression of religion or religious conduct.” Lukumi, 508
U.S. at 533. To the contrary, the plain text of the challenged
order categorically bans all “mass gatherings” as a means of
preventing the spread of a life-threatening virus. The
illustrative examples set forth are sweeping: “community, civic,
public, leisure, faith-based, or sporting events; parades;
concerts; festivals; conventions; fundraisers; and similar
activities.” (Doc. 6-4 at 1).
Plaintiffs do not argue that the State has permitted any other
of the cited examples of mass gatherings to take place; rather,
plaintiffs argue that certain businesses that the government has
allowed to remain open present similar health risks. That, of
course, is a judgment call, but what is missing is any evidence
that Kentucky has conducted the essential/non-essential analysis
with religion in mind. Lukumi, 508 U.S. at 543.

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Moreover, there is an undeniable difference between certain
activities that are, literally, life sustaining and other that are
not. Food, medical care and supplies, certain travel necessary to
maintain one’s employment and thus income, are, in that sense,
essential. Concerts, sports events, and parades clearly are not.
And while plaintiffs argue that faith-based gatherings are as
important as physical sustenance, as a literal matter, they are
not life-sustaining in the physical sense.
As the Sixth Circuit observed just recently in the context of
this pandemic, it “is imperative in such circumstances that judges
give legislatures and executives—the more responsive branches of
government—the flexibility they need to respond quickly and
forthrightly to threats to the general welfare, even if that
flexibility sometimes comes at the cost of individual liberties.”
Adams & Boyle, P.C. v. Slatery, — F.3d —, No. 20-5408, 2020 WL
1982210, at *1 (6th Cir. April 24, 2020).
Does the mass gathering ban have the effect of preventing
plaintiffs who comply with it from attending in-person church
services? Yes. Does the ban do so because the gatherings are
faith-based? No.
For this reason, another Kentucky federal court hearing a
case brought by the church attended by plaintiffs recently denied
the church’s motion for a temporary restraining order, finding
that the church had not demonstrated a likelihood of success on

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the merits of its First Amendment claim. See Maryville Baptist
Church, Inc. v. Beshear, — F. Supp.3d -, No. 3:20cv278, 2020 WL
1909616 (W.D. Ky. April 18, 2020). The relief sought by the church
was the same: in-person services with no state-imposed
restrictions.2
The Court notes that just two days ago the Court of Appeals
for the Sixth Circuit overruled, in part, Judge Hale’s denial of
the temporary restraining order. (Doc. 41-1). However, the Sixth
Circuit expressly limited its holding to drive-in church services:
The Governor and all other Commonwealth officials are

hereby enjoined, during the pendency of this appeal,
from enforcing orders prohibiting drive-in services at
the Maryville Baptist Church if the Church, its
ministers, and its congregants adhere to the public
health requirements mandated for “life-sustaining”
entities.
Id. at 10 (emphasis added). And the Court stated: “[W]e are
inclined not to extend the injunction to in-person services at
this point.” Id. Had the Court felt that such a broader injunction
2
Another court granted plaintiffs a temporary restraining order
where the City of Louisville had banned drive-in church services,
which the plaintiffs wished to attend on Easter. See On Fire
Christian Center, Inc. v. Fischer, — F. Supp. 3d —, No. 3:20cv264,
2020 WL 1820249, at *8 (W.D. Ky. April 11, 2020). Although
plaintiffs here make a passing reference in their Complaint to
drive-in services, that is not the relief they seek, nor have they
suggested it as a compromise. The Court also notes that Governor
Beshear, at the Court’s invitation, filed an amicus curiae brief
in that case stating his position that his “mass gathering” ban
does not prohibit drive-in religious services where proper safety
protocol are observed. See Case No. 3:20cv264, Doc. 27. The issue
in On-Fire was thus different than the one before this Court.
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was warranted, it was within its power to so order. This Court
thus does not find that opinion to control the outcome here.
In his opinion, Judge Hale also considered the church’s claim
under the Kentucky Religious Freedom Restoration Act, which
invokes the more demanding “compelling interest” test. Judge Hale
concluded that, even under that standard, the church did not
demonstrate a likelihood of success. Id. at *3.
This Court agrees. The current public health crisis presents
life-or-death dangers. Plaintiffs are not alone in having their
lives and activities disrupted by it and the measures that our
federal and state governments have taken to address it. Indeed,
it is hard to imagine that there is any American that has not been
impacted. But unless a law can be shown to have religion within
its cross-hairs, either facially or in application, the fact that
religious practices are impinged by it does not contravene the
First Amendment.
For these reasons, the Court concludes that plaintiffs have
not shown a likelihood of success on their merits of their First
Amendment claim, and their motion for preliminary injunction on
that basis will be denied.3
3
For the same reasons, the Court also concludes that plaintiffs
have failed to satisfy the remaining preliminary injunction
factors.
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B. Travel Ban4
After careful review, the Court concludes that the Travel Ban
does not pass constitutional muster. The restrictions infringe on
the basic right of citizens to engage in interstate travel, and
they carry with them criminal penalties.
The “‘constitutional right to travel from one State to
another’ is firmly embedded in our jurisprudence.” Saenz v. Rose,
526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S.
745, 757 (1966)). Indeed, the right is “virtually unconditional.”
Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643 (1969)). See
also United States v. Guest, 383 U.S. 745, 757 (1966) (“The
constitutional right to travel from one State to another ...
occupies a position fundamental to the concept of our Federal
Union. It is a right that has been firmly established and
repeatedly recognized.”).
To be valid, such orders must meet basic Constitutional
requirements. As the Supreme Court has stated:
(E)ven though the governmental purpose be legitimate and

substantial, that purpose cannot be pursued by means
that broadly stifle fundamental personal liberties when
the end can be more narrowly achieved. The breadth of
legislative abridgment must be viewed in the light of
less drastic means for achieving the same basic purpose.
4 Prospective injunctive relief against State defendants is proper

under the doctrine of Ex Parte v. Young, 209 U.S. 123 (1908).
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Aptheker v. Sec. of State, 378 U.S. 500, 508 (1964) (quoting NAACP
v. Alabama, 377 U.S. 288, 307-08 (1964)).
“Ordinarily, where a fundamental liberty interest protected
by the substantive due process component of the Fourteenth
Amendment is involved, the government cannot infringe on that right
‘unless the infringement is narrowly tailored to serve a compelling
state interest.’” Johnson v. City of Cincinnati, 310 F.3d 484,
502 (6th Cir. 2002) (quoting Washington v. Glucksberg, 521 U.S.
702, 721 (1997)). See also Adreano v. City of Westlake, 136 F.
Appx. 865, 870-71 (6th Cir. 2005) (discussing arbitrary and
capricious aspect of substantive due process claim); Pearson v.
City of Grand Blanc, 961 F2d 1211, 1217 (6th Cir. 1992) (similar).
The travel restrictions now before the Court violate these
principles. They have the following effects, among others:
1. A person who lives or works in Covington would violate
the order by taking a walk on the Suspension Bridge to the
Ohio side and turning around and walking back, since the state
border is several yards from the Ohio riverbank.
2. A person who lives in Covington could visit a friend in
Florence, Kentucky (roughly eight miles away) without
violating the executive orders. But if she visited another
friend in Milford, Ohio, about the same distance from
Covington, she would violate the Executive Orders and have to
be quarantined on return to Kentucky. Both these trips could

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be on an expressway and would involve the same negligible
risk of contracting the virus.
3. Family members, some of whom live in Northern Kentucky
and some in Cincinnati less than a mile away, would be
prohibited from visiting each other, even if social
distancing and other regulations were observed.
4. Check points would have to be set up at the entrances to
the many bridges connecting Kentucky to other states. The I-
75 bridge connecting Kentucky to Ohio is one of the busiest
bridges in the nation. Massive traffic jams would result.
Quarantine facilities would have to be set up by the State to
accommodate the hundreds, if not thousands, of people who
would have to be quarantined.
5. People from states north of Kentucky would have to be
quarantined if they stopped when passing through Kentucky on
the way to Florida or other southern destinations.
6. Who is going to provide the facilities to do all the
quarantining?
The Court questioned counsel for defendants Beshear and
Friedlander during oral argument about some of these
potential applications of the Travel Ban, and counsel indeed
confirmed that the Court’s interpretations were correct.
(Doc. 38 at 9-13).
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The Court is aware that the pandemic now pervading the
nation must be dealt with, but without violating the public’s
constitutional rights. Not only is there a lack of procedural
due process with respect to the Travel Ban, but the above
examples show that these travel regulations are not narrowly
tailored to achieve the government’s purpose. See Johnson v.
City of Cincinnati, 310 F.3d 484, 503 (6th Cir. 2002) (“[I]f
there are other, reasonable ways to achieve those goals with
a lesser burden on constitutionally protected activity, a
State may not choose the way of greater interference. If it
acts at all, it must choose ‘less drastic means.’”) (quoting
Dunn v. Blumstein, 405 U.S. 330, 343 (1972)).5
5Minor amendments to the regulations might alleviate the problems.

For example, the Ohio travel regulations only restrict travel into
that state by a person who intends to “stay” in the state. While
the word “stay” is perhaps vague, it certainly implies an intent
to remain in the state at least 24 hours, so that persons stopping
while driving through the state or changing planes at the airport
would not face the risk of being unnecessarily quarantined for 14
days.
Further, the Ohio provisions are requests for the most part and
recite that they have been issued for the “guidance” of the public.
Nor do they apply “to persons who as part of their normal life
live in one state and work or gain essential services in another
state.”
Ohio’s rules, therefore, do not appear overbroad and have a

rational basis for combating the coronavirus, while still
preserving the population’s constitutional rights.
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Therefore, a preliminary injunction will enter declaring the
Travel Ban orders invalid and prohibiting their enforcement.
Therefore, having reviewed this matter, and the Court being
advised,
IT IS ORDERED that:
(1) Plaintiffs’ motion for a preliminary injunction (Doc. 7)
be, and is hereby, GRANTED IN PART AND DENIED IN PART;
(2) Plaintiffs shall post a bond in the amount of $1000.00.
See Fed. R. 65 (c); and
(3) A preliminary injunction consistent with this Memorandum
Opinion and Order shall enter concurrently herewith.

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ET AL. PLAINTIFFS
VS. PRELIMINARY INJUNCTION
HON. ROBERT NEACE,

ET AL. DEFENDANTS
Pursuant to the Memorandum Opinion and Order entered
concurrently herewith, which declares unconstitutional the Travel
Ban promulgated by The Honorable Andrew Beshear, Governor of the
Commonwealth of Kentucky, in conjunction with the COVID-19
emergency,
The Court hereby PRELIMINARILY RESTRAINS AND ENJOINS The
Honorable Andrew Beshear, Governor of the Commonwealth of Kentucky
and all other persons in active concert or participation with him,
from enforcing Executive Order 2020-258 and Executive Order 2020-
266, paragraphs 8-9, pending further Order of the Court.

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EASTERN DISTRICT OF KENTUCKY (at Covington)
THEODORE JOSEPH ROBERTS :
c/o Christopher Wiest, Esq.
25 Town Center Blvd, STE 104 :
:
AND
:
RANDALL DANIEL
c/o Christopher Wiest, Esq. :
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017 :
AND
:
SALLY O’BOYLE
c/o Christopher Wiest, Esq. :
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017 :
On behalf of themselves and :

All others similarly situated
:
PLAINTIFFS
:
v.
:
HON. ROBERT NEACE
2970 Union Square :
Burlington, KY 41005
In His Official Capacity Only as Boone Co. :
Attorney
:
On behalf of himself and all other
County Attorneys :
AND
:
HON. ANDREW BESHEAR
700 Capitol Avenue, Suite 100 :
Frankfort, KY 40601
In His Official Capacity Only :
AND :
1
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ERIC FRIEDLANDER :
275 E. Main Street, 5W-A
Frankfort, KY 40621 :
In His Official Capacity Only
:
DEFENDANTS :
AMENDED VERIFIED CLASS ACTION COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF FOR CONSTITUTIONAL VIOLATIONS
Plaintiffs Theodore Joseph Roberts (“TJ”), Randall Daniel (“Randall”), and Sally O’Boyle
(“Sally”) (collectively “Plaintiffs”), for their Verified Class Action Complaint for Declaratory
and Injunctive Relief (the “Complaint”), state and allege as follows:
INTRODUCTION
1. This action involves the deprivation of Plaintiffs’ First, Fifth, and Fourteenth Amendment
rights, as well as the rights set forth in Article IV of the Constitution regarding privileges and
immunities, by the official capacity Defendants named herein. This action involves the
response actions by the official capacity Defendants herein to COVID-19 ( the disease
caused by the Coronavirus). Admittedly, COVID-19 presents a serious threat to public
health and, equally admittedly, Defendants have a degree of discretion available to them to
deal with this public health threat. Those tools, however, are not limitless. As the facts and
circumstances in this Complaint reveal, Defendants have gone too far, and beyond the limits
the Constitution permits.
2. Notably, of course, in times of public panic and fear, egregious violations of fundamental
rights have been permitted throughout the history of this Country. Korematsu v. United
States, 323 U.S. 214 (1944). Typically, it is only well after the fact that we have recognized
the error of doing so. Trump v. Hawaii, 138 S.Ct. 2392 (2018).
2
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PARTIES
3. Theodore Joseph Roberts (“TJ”) is a recent college graduate who has pursued work, both
paid and unpaid in the political arena. He is a devout Christian, and until the recent COVID-
19 outbreak, was a regular and frequent attendee at church, typically attending between once
a week to several times a week. He has sincerely held religious beliefs that in person
attendance at church is central to his faith. His official residence is at an apartment located in
Burlington, KY 41005, in Boone County, Kentucky, where he is registered to vote and where
his vehicle is registered to. Nevertheless, until December, 2019, he stayed in the dormitories
at Transylvania University. After that, and to the present, he has stayed with his
grandparents at an address at East Bend Road, in Burlington, Kentucky, also in Boone
County, Kentucky.
4. Randall Daniel resides in Shepherdsville, Kentucky, in Bullitt County, County. He has
sincerely held religious beliefs that in person attendance at church is central to his faith.
Until the recent COVID-19 outbreak, he was a regular and frequent attendee at church,
typically attending every Sunday.
5. Sally O’Boyle resides in Morehead, KY 40351, in Rowan County, Kentucky. She has
sincerely held religious beliefs that in person attendance at church is central to her faith.
Until the recent COVID-19 outbreak, she was a regular and frequent attendee at church,
typically attending every Sunday.
6. Defendant Hon. Robert Neace is the duly elected Boone County Attorney, who is duly
authorized to bring and file misdemeanor cases in and for Boone County Kentucky. He is
sued in his official capacity only, and is sued in a representative official capacity under FRCP
23 for all other county attorneys in the Commonwealth of Kentucky.
3
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7. Defendant Hon. Andrew Beshear is the duly elected Governor of Kentucky. He is also sued
in his official capacity only.
8. Defendant Eric Friedlander is the acting Secretary of the Cabinet for Health and Family
Services, and is also sued in his official capacity only.
9. Among other things, Defendants enforce and are charged with the enforcement or
administration of Kentucky’s laws under KRS 39A, and KRS 220, including the orders and
actions complained of herein.
JURISDICTION AND VENUE
10. Subject matter jurisdiction over the claims and causes of action asserted by Plaintiffs in this
action is conferred on this Court pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1988, 28 U.S.C.
§1331, 28 U.S.C. § 1343, 28 U.S.C. §§ 2201 and 2202, and other applicable law.
11. Venue in this District and division is proper pursuant to 28 U.S.C. §1391 and other
applicable law, because much of the deprivations of Plaintiffs’ Constitutional Rights
occurred in counties within this District within Kentucky, and future deprivations of their
Constitutional Rights are threatened and likely to occur in this District.
Additional Allegations Concerning Standing
12. Defendants are empowered, charged with, and authorized to enforce and carry out
Kentucky’s emergency power laws and health related laws under K.R.S. 39A and KRS
Chapter 220. Moreover, Defendants actually do enforce and administer these laws.
FACTS COMMON TO ALL CLAIMS
Background on Kentucky’s Responses to COVID-19 to date
4
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13. On March 6, 2020, Governor Andrew Beshear issued a state of emergency Executive Order
2020-215. Among other things, this Order declared an emergency for COVID-19 in and for
Kentucky. See Exhibit A, hereto.
14. Throughout March, 2020, the Governor and/or his designees issued a number of
recommendations to persons and businesses that are not challenged in this action concerning
COVID-19.
15. On March 16, 2020, in response to COVID-19, the Governor and/or his designees limited
restaurants to carry-out or pickup or delivery service only. See Exhibit B, hereto.
16. On March 17, 2020, in response to COVID-19, the Governor and/or his designees shut down
certain businesses that involved public congregation, while leaving open a number of other
businesses deemed “essential”. See Exhibit C, hereto. These “essential” businesses that
were permitted to remain open included industrial manufacturing, construction, retail,
consumer goods, gas stations, and hotels.
17. On March 19, 2020, in response to COVID-19, the Governor and/or his designees prohibited
some, but not all, public gatherings. See Exhibit D, hereto. On the one hand, the Order
provided that “[a]ll mass gatherings are hereby prohibited.” “[m]ass gatherings” included
“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.” The order then exempted a
number of activities from this definition. For the avoidance of doubt, a mass gathering does
not include normal operations at airports, bus and train stations, medical facilities, libraries,
shopping malls and centers, or other spaces where persons may be in transit. It also does not
5
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include typical office environments, factories, or retail or grocery stores where large numbers
of people are present, but maintain appropriate social distancing.1
18. On March 22, 2020, the Governor and/or his designees shut down additional “non-life
sustaining” retail establishments to in-person traffic, but left other “life sustaining” retail
open. See Exhibit E, hereto.
19. On March 23, 2020, the Governor and/or his designees banned most2 elective medical
procedures. See Exhibit F, hereto.
20. On March 25, 2020, the Governor and/or his designees shut down additional businesses for
in-person work, while leaving others open. See Exhibit G, hereto.
21. On March 30, 2020, the Governor and/or his designees banned out of state travel with four
exceptions: (i) when required for employment; (ii) to obtain groceries, medicine, or other
necessary supplies; (iii) to seek or obtain care by a licensed healthcare provider; (iv) to
provide care for dependents or the elderly or other vulnerable persons; or (v) when required
by court order. See Exhibit H, hereto.
22. On April 2, 2020, the Governor and/or his designees expanded the Exhibit H Order, which
places anyone coming from out of state, subject to exceptions, into quarantine. See Exhibit
I, hereto. Collectively, Exhibits H and I are known as the “Travel Ban.”
1
Yet another notable exception appears to be the Governor’s own daily press conference, where
reporters and members of the media gather daily in a “do as I say, not as I do” scenario.
2
A notable exception, though it does not appear on the face of the Order itself, is the provision of
abortion services by Kentucky’s abortion providers. Witnesses have photographed the continued
operation of these businesses throughout this crisis, unimpeded, often without social distancing,
and in crowded conditions.
6
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23. And on April 8, 2020, the Governor and/or his designees placed further restrictions on retail
establishments that limited shopping to one adult per household (with exceptions such as for
dependent children). See Exhibit J, hereto.
24. Most of the aforementioned executive orders reference K.R.S. 39A and/or K.R.S. Chapter
214 as authority for their promulgation.
25. Both of those Chapters contain criminal penalties, such as K.R.S. 39A.990, establishing as a
Class A misdemeanor any violations of orders issued under that Chapter, and K.R.S.
220.990, which generally provides as a Class B misdemeanor for any violations of orders
under that Chapter. K.R.S. 39A.190 gives police officers authority to “arrest without a
warrant any person violating or attempting to violate in the officer’s presence any order or
administrative regulation made pursuant to” KRS Chapter 39A.3
The Plaintiffs’ Activities
26. Plaintiffs reincorporate the preceding Paragraphs as if fully written herein.
27. On Sunday April 12, 2020, Easter Sunday, Plaintiffs TJ Roberts, Randall Daniel, and Sally
O’Boyle attended Easter church service at Maryville Baptist Church, in Hillview, Bullitt
County Kentucky.
28. They each did so pursuant to sincerely held religious beliefs that in-person church attendance
was required, particularly on Easter Sunday.
29. Each ensured appropriate social distancing and took other measures appropriate for the
circumstances in accordance with CDC Guidelines, while at the service.4 Among other
3
For the avoidance of all doubt, at this time, Plaintiffs are only challenging the prohibitions
against in-person church services, and Plaintiff Roberts is challenging the Travel Ban.
4
https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/index.html (last visited
4/13/2020); https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/guidance-
community-faith-organizations.html (last visited 4/13/2020).
7
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things, they each sat six feet away from other congregants at the service, wore masks
covering their faces, and did not have personal contact with others attending.
30. At the time, there were between 11 and 50 persons in Bullitt County5 with a COVID-19
diagnosis, out of a population of 81,676.6 In other words, 0.06% of the population had a
diagnosis.
31. At the time, no one attending the Maryville Baptist Church was diagnosed with COVID-19,
including the Plaintiffs, and no evidence exists that anyone with COVID-19 was in
attendance at any of the April 12, 2020 Easter services.
32. When Plaintiffs TJ Roberts, Randall Daniel, and Sally O’Boyle exited the service, they found
on their windshield the following notice (“Quarantine and Prosecution Notice”), placed there
by Kentucky State Troopers:
5
https://govstatus.egov.com/kycovid19 (last visited 4/13/2020)
6
https://www.census.gov/quickfacts/fact/table/bullittcountykentucky,KY/PST045218 (last
visited 4/13/2020).
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33. In his evening briefings, the Governor made clear that he was going to target religious
services for these notices, apart from other gatherings. Based on the activity of the Kentucky
State Police on April 12, 2020, the Governor carried out his threat.
34. Kentucky State Police have solely been dispatched by the Governor, and those reporting to
him and acting at his behest, to harass, charge, intimidate, and threaten the churchgoers from
Maryville Baptist Church and other church services, and not to any other public gatherings,
including, without limitation, the Governor’s own public daily gathering where he gives his
press release.
35. Among other things, the Quarantine and Prosecution Notice requires a self-quarantine of two
weeks, and threatens criminal action against any vehicle owner whose vehicle was found at
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the church, including each of the Plaintiffs. It does so regardless of whether: (i) any Plaintiff
has contracted the disease; (ii) there is any particular assessment of the likelihood of
contracting the disease from the activity in question; and (iii) Plaintiffs took the safety
precautions as described above so as to make their contracting the disease unlikely.
36. None of the Plaintiffs have displayed any symptoms of the COVID-19 disease, and, to the
best of their knowledge, they do not have and have not contracted the COVID-19 disease.
37. All of the Plaintiffs refuse to self-quarantine as required by the Quarantine and Prosecution
Notice, unless or until they have a diagnosis of them having contracted COVID-19, which
none of them have.
38. Plaintiffs TJ Roberts, Randall Daniel, and Sally O’Boyle reasonably fear prosecution if they
should attend further church services in light of the notice.
39. Further, all Plaintiffs fear prosecution and/or the equivalent of house arrest with quarantine,
in light of the Quarantine and Prosecution Notice.
40. Absent the Travel Ban, Plaintiff TJ Roberts, who resides and lives in Boone County, would
temporarily travel to Ohio, in contravention of the Travel Ban, to: (i) conduct unpaid
volunteer work all while complying with social distancing requirements; (ii) recreate all
while complying with social distancing requirements; (iii) associate with others in Ohio all
while practicing social distancing requirements; (iv) to visit Mr. Bruns office for the purpose
of pursuing this lawsuit; and (v) due to the proximity of Plaintiff to the border, take trips to
Indiana and/or Ohio for a variety of purposes, including simply to drive through Indiana
and/or parts of Ohio to reach other locations in Kentucky, all while practicing social
distancing requirements. All of the aforementioned activities are currently permitted under
Ohio’s and Indiana’s COVID-19 response actions.
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41. The Travel Ban, Quarantine and Prosecution Notice, and other executive orders issued by the
Governor do not provide a process by which the individual Kentuckian will be notified if
they are charged or accused of a violation of the orders, do not provide any mechanism to
challenge or appeal any such determinations, and do not provide any process at all to
challenge the facts and circumstances of such orders.
42. The Travel Ban, Quarantine and Prosecution Notice, and other executive orders issued by the
Governor do not provide any right or opportunity for the individual Kentuckian to be heard if
the individual is ordered to be quarantined, or detained, or otherwise punished for violating
the Travel Ban. They also do not provide the individual Kentuckian with a right to be heard
by a fair and independent tribunal if the citizen is ordered to be quarantined, or detained, or
otherwise punished for violating the orders. The orders provide no right to appeal a
quarantine, detention, or punishment or to appeal an order to quarantine pursuant to the
orders.
43. The orders do not provide Kentuckians with the right to present evidence, the right to know
the evidence opposing them, the right to cross-examine, the opportunity for counsel, or the
right to have a record.
44. During the COVID-19 outbreak, Governor Beshear and the other Defendants have actively
enforced the Governor’s Executive Orders, including ordering sheriff’s deputies to forcibly
quarantine at least one Kentuckian who attempted to travel.
45. Upon information and belief, multiple Kentuckians in Louisville have been ordered to wear
ankle monitors to ensure their government-imposed quarantine, even though they have not
tested positive for COVID-19.
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46. On the same day that the Governor instituted the Travel Ban, he also created the “COVID-19
Reporting Hotline” and requested that Kentuckians call it “for complaints about non-
compliance with coronavirus mandates.”
The Fundamental Right To Travel
47. The United States Supreme Court held that the “constitutional right to travel from one State
to another” is firmly embedded in this nation’s jurisprudence. Saenz v. Roe, 526 U.S. 489,
498 (1999) (citing U.S. v. Guest, 383 U.S.747, 757 (1966)). In 1958, the United States
Supreme Court found that “The right to travel is a part of the liberty of which the citizen
cannot be deprived without due process of law under the Fifth Amendment.” Kent v. Dulles,
357 U.S. 116, 125 (1958). “The constitutional right of interstate travel is virtually
unqualified.” Califano v. Aznavorian, 439 U.S. 170, 176 (1978) (citing United States v.
Guest, 383 U.S. 745, 757-758 (1966); Griffin v. Breckenridge, 403 U.S. 88, 105-106 (1971)).
“[T]he constitutional right to travel from one State to another, and necessarily to use the
highways and other instrumentalities of interstate commerce in doing so, occupies a position
fundamental to the concept of our Federal Union.” United States v. Guest, 383 U.S. 745, 748
n.1 (1966). “For all the great purposes for which the Federal government was formed, we are
one people, with one common country. We are all citizens of the United States; and, as
members of the same community, must have the right to pass and repass through every part
of it without interruption, as freely as in our own States.” Smith v. Turner, 48 U.S. 283, 492
(1849) (Taney, C.J., dissenting).
The Freedom of Religion
48. The First Amendment protects the “free exercise” of religion, and fundamental to this
protection is the right to gather and worship. See W. Va. State Bd. of Educ. v. Barnette, 319
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U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts ... [such as
the] freedom of worship and assembly.”).This protection was incorporated against the states
in Cantwell v. Connecticut, 310 U.S. 296 (1940). Because of this fundamental protection, “a
law burdening religious practice that is not neutral or not of general application must undergo
the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S.
520, 546 (1993). The requirements to satisfy this scrutiny are so high that the government
action will only survive this standard in rare cases and the government bears the burden of
meeting this exceptionally demanding standard. Id. “[T]he minimum requirement of
neutrality is that a law not discriminate on its face.” Id.at 533.
49. Defendants’ prohibition of any in person church services, in the name of fighting Covid-19,
is not generally applicable. There are numerous exceptions to the March 19, 2020 Order,
such as an exception for factories, or attending establishments like shopping malls, where far
more people come into closer contact with less oversight.
Class Allegations
51. The actions and violations herein complained of affect millions of Kentuckians.
52. Pursuant to FRCP 23(a), (i) the class is so numerous that joinder of all members is
impracticable (with millions of potential Plaintiffs); (ii) there are questions of law or fact
common to the class; (iii) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and (iv) the representative parties will fairly and
adequately protect the interests of the class.
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53. Pursuant to FRCP 23(b): (i) prosecuting separate actions by or against individual class
members would create a risk of: (A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible standards of conduct for the
party opposing the class; (B) adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to protect their
interests; and (ii) the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.
54. Plaintiffs seek both a Plaintiff class, consisting of those persons who desire to violate the
prohibitions on gathering for in-person church service, but who would practice appropriate
social distancing if permitted to do so, as well as those persons who desire to violate the
travel ban, and a Defendant class consisting of the named Defendants and all other County
Attorneys in Kentucky.
Injunctive Relief
55. Plaintiffs have and continue to have their fundamental constitutional rights violated by these
official capacity Defendants, each of whom is personally involved with the enforcement
and/or threatened enforcement of the challenged orders. Plaintiffs will be irreparably harmed
if injunctive relief is not issued. Further, the public interest is served by the vindication of
constitutional rights, and the weighing of harms warrants issuing injunctive relief.
COUNT I – Violation of the First Amendment – Freedom of Religion (42 U.S.C. 1983)
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57. The First Amendment of the Constitution protects the “free exercise” of religion.
Fundamental to this protection is the right to gather and worship. See W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them as legal principles to be applied by
the courts...[such as the] freedom of worship and assembly.”). The Free Exercise Clause was
incorporated against the states in Cantwell v. Connecticut, 310 U.S. 296 (1940).
58. As the Supreme Court has noted, “a law burdening religious practice that is not neutral or not
of general application must undergo the most rigorous of scrutiny.” Church of the Lukumi
Babalu Aye, Inc.v. Hialeah, 508U.S. 520, 546 (1993).
59. Defendants have prohibited in -person religious services, have threatened criminal penalties
for holding such services, and have thus substantially burdened Plaintiffs’ religious exercise.
“[T]he minimum requirement of neutrality is that a law not discriminate on its face.” Id. at
533.
60. Defendants’ restrictions have specifically and explicitly targeted in-person religious
gatherings and are thus not neutral on their face.
61. Relatedly, government action is not generally applicable if its prohibitions substantially
under-include non-religiously motivated conduct that might endanger the same governmental
interest that the law is designed to protect. Id.at 542-46.
62. Defendants’ prohibition of drive-in church services in the name of enforcing social
distancing is not generally applicable. There are numerous exceptions to the orders that
Defendants are not cracking down on, such as establishments like retail stores for essential
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goods, factory work in critical sectors, and other examples, where far more people come into
closer contact with less oversight.
63. Laws and government actions that burden religious practice and are either not neutral or not
generally applicable must satisfy a compelling governmental interest and be narrowly
tailored to achieve that end. Id. at 546.
64. Defendants’ mandate is not “narrowly tailored” because the ban on in-person religious
services is absolute, not accounting for services, like that attended by the Plaintiffs, where the
CDC and Kentucky Cabinet guidelines are carefully adhered to, and thus satisfy the public
health concerns to which the guidelines are directed.
65. Requiring Plaintiffs to abstain from religious gatherings, despite substantial modifications to
satisfy the public health interests at stake, violates Plaintiffs’ Constitutional right to free
exercise of their religion.
66. By issuing and enforcing the orders banning in-person church service gatherings, Governor
Beshear and the other Defendants, each acting under color of state law, are depriving and
will continue to deprive Plaintiffs and other similarly situated Kentuckians of rights secured
by the United States Constitution, including the First and Fourteenth Amendments to the
United States Constitution, in violation of 42 U.S.C. § 1983.
COUNT II – Violation of the Fundamental Right to Travel – (42 U.S.C. 1983) (Plaintiff
TJ Roberts)
68. The Travel Bans violate the right to substantive due process as guaranteed by the Fifth,
Ninth, and Fourteenth Amendments to the United States Constitution in that the Travel Bans,
both on their face and as they would be applied to Plaintiffs, impinge upon the fundamental
liberty interest in one’s right to interstate travel. See U.S. v. Guest, 383 U.S. 747 (1966).
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69. The right of adults to engage in interstate travel is a fundamental liberty interest. That right is
one that is, objectively speaking, deeply rooted in this nation’s history and tradition and one
that is implicit in the concept of ordered liberty.
70. The Travel Bans are not narrowly tailored, nor are they the least restrictive means for
advancing whatever governmental interest that the Defendants may clam the law advances.
71. The Travel Bans significantly hinder, if not deprive, many individuals from their ability and
right to interstate travel.
72. The Travel Bans have and will cause a chilling effect on interstate travel.
73. By issuing and enforcing the Travel Bans, Governor Beshear and the other Defendants, each
acting under color of state law, are depriving and will continue to deprive Plaintiffs and other
similarly situated Kentuckians of rights secured by the United States Constitution, including
Article IV, Section II, as well as the Fifth, Ninth, and Fourteenth Amendments to the United
States Constitution, in violation of 42 U.S.C. § 1983.
COUNT III – Procedural Due Process – (42 U.S.C. 1983)
75. “[T]here can be no doubt that at a minimum [procedural due process] require[s] that
deprivation of life, liberty or property by adjudication be preceded by notice and opportunity
for hearing appropriate to the nature of the case.” Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950).
76. “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349
U.S. 133, 136 (1955).
77. “Procedural due process rules are meant to protect persons not from the deprivation, but from
the mistaken or unjustified deprivation of life, liberty, or property. Thus, in deciding what
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process constitutionally is due in various contexts, the Court repeatedly has emphasized that
“procedural due process rules are shaped by the risk of error inherent in the truth-finding
process....” Carey v. Piphus, 435 U.S. 247, 259 (1978) (citing Mathews v. Eldridge, 424 U.S.
319, 344 (1976)).
78. By issuing and enforcing the Travel Bans and other orders, without any process to appeal a
determination or an order to quarantine, Governor Beshear and the other Defendants herein
are depriving and will continue to deprive Plaintiffs and other similarly situated Kentuckians
of the right to procedural due process secured by the Fifth and Fourteenth Amendments to
the United States Constitution in violation of 42 U.S.C. § 1983, thereby causing them harm.
79. Plaintiffs are therefore entitled to a declaration of the unconstitutionality of the Travel Bans,
both on their face and as applied, and injunctive relief prohibiting the enforcement of the
Travel Bans.
Generally
80. Defendants abused the authority of their respective offices and, while acting under color of
law and with knowledge of Plaintiffs’ established rights, used their offices to violate
Plaintiffs’ Constitutional rights, privileges, or immunities secured by the Constitution and
laws.
81. Thus, under 42 U.S.C 1983, Plaintiffs seek declaratory relief and injunctive relief. Pursuant
to 42 U.S.C. 1988, Plaintiffs further seek their reasonable attorney fees and costs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs demand judgment against Defendants as prayed for, including:
A. That this Court issue a declaration that the challenged orders are unconstitutional.
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B. That this Court enter permanent injunctive relief to prohibit enforcement of the
challenged orders.
C. Certify a class as provided in the Complaint
D. That Plaintiffs be awarded their costs in this action, including reasonable attorney fees
under 42 U.S.C. § 1988; and
E. Such other relief as this Court shall deem just and proper.

859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
tbruns@bcvalaw.com
513-312-9890

P.O. Box 175883
(859) 250-3337
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,,-
CABINET FOR HEALTH AND FAMILY SERVICES

OFFICE OF LEGAL SERVICES
Andy Beshear 275 East Main Street, 5W-B Eric C. Friedlander

Governor Frankfort, KY 40621 Acting Secretary
502-564-7905
502-564-7573 Wesley W. Duke
www.chfs.ky.gov
General Counsel
ORDER
March 19, 2020
On March 6, 2020, Governor Andy Beshear signed Executive Order 2020-215, declaring a state of
emergency in the Commonwealth due to the outbreak of COVID-19 virus, a public health emergency.
Pursuant to the authority in KRS 194A.025, KRS 214.020, KRS Chapter 39A, and Executive Orders
2020-215 and 2020-243, the Cabinet for Health and Family Services, Department of Public Health,
hereby orders the following directives to reduce and slow the spread of COVID-19:
1. All mass gatherings are hereby prohibited.
2. 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.
3. For the avoidance of doubt, a mass gathering does not include normal
operations at airports, bus and train stations, medical facilities, libraries,
shopping malls and centers, or other spaces where persons may be in transit. It
also does not include typical office environments, factories, or retail or
grocery stores where large numbers of people are present, but maintain
appropriate social distancing.
4. Any gathering, regardless of whether it is a mass gathering prohibited under

this Order, shall to the extent practicable implement Centers for Disease
Control guidance, including:
• maintaining a distance of 6 feet between persons;
KentuckyUnbridledSpirit.com An Equal Opportunity Employer M/F/D

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VERIFICATION
I, Theodore Joseph Roberts, pursuant to 28 U.S.C. 1746, declare under penalty of perjury that I
have reviewed the foregoing Complaint, that I am competent to testify in this matter, that the
facts contained therein are true and correct, and are based information personally known and
observed by me.
Executed on _____4/14/2020_____________.
___ ________________________
Theodore Joseph Roberts

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COVINGTON DIVISION

Plaintiffs :
v. :
Defendants :
DECLARATION OF THEODORE JOSEPH ROBERTS

Pursuant to 28 U.S.C. §1746, the undersigned, Theodore Joseph Roberts, makes the following
declaration, under penalty of perjury under the laws of the United States of America, that the
facts contained herein are true and correct and based upon my personal knowledge:
My name is Theodore Joseph Roberts, and I am one of the Plaintiffs in this action. I
reside in Boone County, Kentucky.
I am a practicing Christian with the sincerely held religious belief that in-person
attendance at church is required by sacred Scripture, especially during Holy Week and
culminating in the celebration of Easter. Numerous passages of sacred Scripture define
my belief, including Hebrews 10:25, which urges that believers “not neglect[t] to meet
together;” and Acts 2:42, which, for believers, requires devotion to the teachings of the
Apostles and to communal fellowship and prayer.,UHJXODUO\DWWHQGFKXUFKVHUYLFH
I have witnessed Governor Beshear’s daily briefing to the press during the Coronavirus
outbreak. I have witnessed more than 10 people gather every day in Frankfort for more
than an hour (the Governor, his staff, and more than 10 reporters) and where it appears
that people are closer than six feet together. I also witnessed his April 10, 2020 daily
1
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briefing to the press.1 In it, he speaks about “mass gatherings” but then admits that he is
talking about “less than seven churches” statewide. He also admits that he has been
“focused a lot on an individual church or pastor.” (at the 35:44-39:35 mark). He admits
he is sending out enforcers to take and record the license plate number of church
attendees and then will force those attendees to quarantine. He quotes scripture that he
says supports his position, and claims that other houses of worship believe the same
dogma he does that in-person attendance at religious services is not required. Id.
Governor Beshear likewise informs listeners that the prohibition on “mass gatherings”
applies to “in-church” services. Id. at 49:39-51:28. Further, in response to a reporter’s
questions, he states that these enforcement activities apply only to the Easter weekend
services and church services. Id. at 1:08:00 to 1:08:07.
4. On Sunday April 12, 2020, Easter Sunday, I, along with Randall Daniel, and Sally
O’Boyle and others, attended the church service at Maryville Baptist Church, in Hillview,
Bullitt County, Kentucky. I did so pursuant to my sincerely held religious belief that in-
person church attendance was required, particularly on Easter Sunday.
5. While at the service, Mr. Daniel, Ms. O’Boyle and I each followed appropriate social
distancing and other measures in accordance with CDC Guidelines.2 Among other
things, I sat at least six feet away from the other congregants at the service. I wore a
mask to this service, and so did Mr. Daniel and Ms. O’Boyle. I did not have personal
contact with any others attending. The service was not crowded (I would estimate there
1
https://www.youtube.com/watch?v=SJVDhu38S68&feature=youtu.be (last visited 4/16/2020).
2
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were between forty and fifty people present, with a building capacity that was
approximately three to four times that), leaving plenty of space for people to spread out,
which they did.
6. Church leadership appeared to take the COVID issue seriously, in that they had the choir
and other celebrants of the service spaced six feet apart, and it appeared that the church
interior had been sanitized prior to the service.
7. It is my understanding that no member of the Maryville Baptist Church has been
diagnosed with COVID-19. It is also my understanding that no one attending the Easter
service has COVID-19. I have never received a diagnosis of COVID-19 and I have no
symptoms that would concern me for such a diagnosis.
8. After Mr. Daniel, Ms. O’Boyle and I exited the service, we each found on our
windshields the following notice (“Quarantine and Prosecution Notice”), placed there by
Kentucky State Troopers:
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9. In fact, that Quarantine and Prosecution Notice was placed on every car windshield in the
parking lot. It is my understanding from the state police that churches were the only
group targeted by the Governor for enforcement.
10. Among other things, the Quarantine and Prosecution Notice requires a two week self-
quarantine by, and threatens criminal prosecution of, any vehicle occupant and anyone in
the occupant’s household. It does so regardless of whether: (i) any Plaintiff has
contracted the disease; (ii) there is any particular assessment of the likelihood of
contracting the disease from the activity in question; and (iii) any Plaintiffs took the CDC
recommended safety precautions so as to make their contracting the disease unlikely.
11. I have not displayed any symptoms of the COVID-19 disease and, to the best of my
knowledge, I do not have the COVID-19 disease.
12. Unless or until I have a diagnosis of COVID-19, which I do not have, or I have
symptoms associated with it, I refuse to self-quarantine.
13. In light of the Quarantine and Prosecution Notice, I reasonably fear prosecution as a
result of having attended church on Easter Sunday, and as a result of attending further
church services as my faith requires of me.
14. I also fear prosecution, and/or the equivalent of house arrest with quarantine, in light of
the same Quarantine and Prosecution Notice.
15. Absent the Governor’s travel ban, I would temporarily travel to Ohio, in violation of the
Travel Ban, to: (i) conduct unpaid volunteer work all while complying with social
distancing requirements; (ii) recreate all while complying with social distancing
requirements; (iii) associate with others in Ohio all while practicing social distancing
requirements; (iv) visit Mr. Bruns’ office for the purpose of pursuing this lawsuit all
4
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while practicing social distancing requirements; and (v) due to my proximity to the state
border, take trips to Indiana and/or Ohio for a variety of purposes, including simply to
drive through Indiana and/or parts of Ohio in order to reach other locations in Kentucky,
and all while practicing social distancing requirements. All of these activities are
currently permitted under Ohio’s and Indiana’s COVID-19 response actions.
16. The Travel Ban, Quarantine and Prosecution Notice, and other executive orders issued by
the Governor, do not provide a process by which the individual Kentuckian will be
notified if they are charged or accused of a violation of the orders, do not provide any
mechanism to challenge or appeal any such determinations, and do not provide any
process at all to challenge the facts and circumstances of such orders.
the Governor, do not provide any right or opportunity for the individual Kentuckian to be
heard if the individual is ordered to be quarantined, or detained, or otherwise punished for
violating the Travel Ban. These executive orders do not provide the individual
Kentuckian with a right to be heard by a fair and independent tribunal if the citizen is
ordered to be quarantined, or detained, or otherwise punished for violating the orders.
The executive orders provide no right to appeal a quarantine, detention, or punishment.
18. The executive orders do not provide Kentuckians with the right to present evidence, the
right to know the evidence opposing them, the right to cross-examine, the opportunity for
counsel, or the right to have a record.
19. During the COVID-19 outbreak, Governor Beshear and Mr. Friedlander have actively
enforced the Governor’s executive orders, including ordering sheriff’s deputies to
forcibly quarantine at least one Kentuckian who attempted to travel.
5
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20. Upon information and belief, multiple Kentuckians in Louisville have been ordered to
wear ankle monitors to ensure their government-imposed quarantine, even though they
have not tested positive for COVID-19.
21. On the same day that the Governor instituted the Travel Ban, he also created the
“COVID-19 Reporting Hotline” and requested that Kentuckians call it “for complaints
about non-compliance with coronavirus mandates.”
22. In the last three days, I went to a gas station and convenience store to see if they were
open and whether the occupants were practicing appropriate social distancing. I observed
that people were able to pay cash to the clerk where they were closer than six feet from
each other. I also observed that more than 10 people could congregate at the store, and
that people could buy non-essential goods such as lottery tickets.
Pursuant to 28 U.S.C. §1746, I declare under penalties of perjury under the laws of the United
States of America that the foregoing Declaration is true and correct to the best of my knowledge
and belief and that such facts are made based on my personal knowledge.
Executed on ____4/16/2020____________. ________
Theodore Joseph Roberts
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COVINGTON DIVISION

Plaintiffs :
v. :
Defendants :
DECLARATION OF SALLY O’BOYLE

Pursuant to 28 U.S.C. §1746, the undersigned, Sally O’Boyle, makes the following declaration,
under penalty of perjury under the laws of the United States of America, that the facts contained
herein are true and correct and based upon my personal knowledge:
1. My name is Sally O’Boyle, and I am one of the Plaintiffs in this action. I reside in
Morehead, Kentucky.
2. I am a practicing Christian with the sincerely held religious belief that in-person
attendance at church is required by sacred Scripture, especially during Holy Week and
culminating in the celebration of Easter. I regularly attend church.
3. I have witnessed Governor Beshear’s daily briefing to the press during the Coronavirus
outbreak. I have witnessed more than 10 people gather every day in Frankfort for more
than an hour (the Governor, his staff, and more than 10 reporters) and where it appears
that people are closer than six feet together.
4. On Sunday April 12, 2020, Easter Sunday, I attended the church service at Maryville
Baptist Church, in Hillview, Bullitt County, Kentucky. I did so pursuant to my sincerely
held religious belief that in-person church attendance was required, particularly on Easter
Sunday.
1
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5. While at the service, I followed appropriate social distancing and other measures in
accordance with CDC Guidelines.1 Among other things, I sat at least six feet away from
the other congregants at the service. I wore a mask to this service. I did not have
personal contact with any others attending. The service was not, leaving plenty of space
for people to spread out, which they did.
6. Church leadership appeared to take the COVID issue seriously, in that they had the choir
and other celebrants of the service spaced six feet apart, and it appeared that the church
interior had been sanitized prior to the service.
7. It is my understanding that no member of the Maryville Baptist Church has been
diagnosed with COVID-19. It is also my understanding that no one attending the Easter
service has COVID-19. I have never received a diagnosis of COVID-19 and I have no
symptoms that would concern me for such a diagnosis.
8. After I exited the service, we each found on our windshields the following notice
(“Quarantine and Prosecution Notice”), placed there by Kentucky State Troopers:
1
2
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9. In fact, that Quarantine and Prosecution Notice was placed on every car windshield in the
parking lot.
10. Among other things, the Quarantine and Prosecution Notice requires a two week self-
quarantine by, and threatens criminal prosecution of, any vehicle occupant and anyone in
the occupant’s household. It does so regardless of whether: (i) any Plaintiff has
contracted the disease; (ii) there is any particular assessment of the likelihood of
contracting the disease from the activity in question; and (iii) any Plaintiffs took the CDC
recommended safety precautions so as to make their contracting the disease unlikely.
11. I have not displayed any symptoms of the COVID-19 disease and, to the best of my
knowledge, I do not have the COVID-19 disease.
3
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12. Unless or until I have a diagnosis of COVID-19, which I do not have, or I have
symptoms associated with it, I refuse to self-quarantine.
13. In light of the Quarantine and Prosecution Notice, I reasonably fear prosecution as a
result of having attended church on Easter Sunday, and as a result of attending further
church services as my faith requires of me.
14. I also fear prosecution, and/or the equivalent of house arrest with quarantine, in light of
the same Quarantine and Prosecution Notice.
the Governor, do not provide a process by which the individual Kentuckian will be
notified if they are charged or accused of a violation of the orders, do not provide any
mechanism to challenge or appeal any such determinations, and do not provide any
process at all to challenge the facts and circumstances of such orders.
the Governor, do not provide any right or opportunity for the individual Kentuckian to be
heard if the individual is ordered to be quarantined, or detained, or otherwise punished for
violating the Travel Ban. These executive orders do not provide the individual
Kentuckian with a right to be heard by a fair and independent tribunal if the citizen is
ordered to be quarantined, or detained, or otherwise punished for violating the orders.
The executive orders provide no right to appeal a quarantine, detention, or punishment.
17. The executive orders do not provide Kentuckians with the right to present evidence, the
right to know the evidence opposing them, the right to cross-examine, the opportunity for
counsel, or the right to have a record.
4
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Executed on: 4-17-2020
5
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COVINGTON DIVISION

Plaintiffs :
v. :
Defendants :
DECLARATION OF STEVEN STANLEY

Pursuant to 28 U.S.C. §1746, the undersigned, Steven Stanley, makes the following declaration,
under penalty of perjury under the laws of the United States of America, that the facts contained
herein are true and correct to the best of my knowledge and belief and that such facts are made
based on my personal knowledge:
1. My name is Steven Stanley. I am a resident of Morehead, Kentucky.
2. I am a devout Christian, Board Certified Nurse Practitioner, and Pastor. One of the
things that I feel strongly about is that I am against all abortions, regardless of the reason,
but particularly against elective abortions where the life of the mother is not at risk.
3. To that end, I engage in a Ministry through offering free help, resources, and adoption to
abortive mothers at EMW Women’s Surgical Center, in Louisville Kentucky, for years,
where abortions are regularly performed. I have engaged in this Ministry for years.
4. I have had the opportunity to routinely witness and observe the operations at EMW
Women’s Surgical Center, in Louisville Kentucky, including after Governor Beshear
issued his executive orders that banned mass gatherings and banned elective medical
procedures.
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5. I have witnessed mass gatherings at this facility, where over thirty or more people
routinely gather. I have also witnessed this same facility not practice safe social
distancing, in that the people are closer than six feet together and I have seen people
sitting on the window sills because of the lack of room in the facility.
6. I, and others, have reported this ongoing activity to the Governor’s COVID-19 reporting
hotline several times, and each time I have done so, there has never been any
enforcement activity, investigation activity, no state police dispatched, and no other
enforcement related activity. I am frustrated by this lack of enforcement, because I have
observed these people in close proximity to each other, not social distancing, and I think
if any of them acquired COVID-19, they would spread it to others, and put my family,
and the public, at risk.
4/16/2020
Executed on ____________________. _______________________________
Steven Stanley
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4-16-2020
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UNITED STATES DISTRICT COURT

AT COVINGTON
THEODORE JOSEPH ROBERTS, et al., )

)
Plaintiffs, )
)
v. ) Civil Action No. 3:20-cv-00054-WOB-CJS
) Electronically filed
HON. ROBERT NEACE, in his official )
capacity only as Boone County Attorney, )
et al., )
)
Defendants. )
GOVERNOR ANDY BESHEAR’S AND SECRETARY ERIC FRIEDLANDER’S

NOTICE OF FILING OF SUPPLEMENTAL AUTHORITY
Come now Defendants, Governor Andy Beshear and Acting Secretary Eric Friedlander,
in their official capacities, by and through counsel, and provide supplemental authority for the
Court’s consideration.
On May 2, 2020, in a Per Curiam Opinion, the Sixth Circuit Court of Appeals in
Maryville Baptist Church, Inc. et al. v. Andy Beshear, No. 20-5427, enjoined Governor Andy
Beshear and all other Commonwealth officials from prohibiting drive-in services by Maryville
Baptist Church, Inc., which, as the record in this action clearly demonstrates, the Governor has
not prohibited, but along with public health officials has instead encouraged. (Doc. 41-1.) Unlike
in this action, plaintiffs in that case alleged that Kentucky State Police officers placed notices of
violation on attendees of both drive-in and in-person services, filed claims under the Kentucky
Religious Freedom Restoration Act that require stronger judicial scrutiny of state action, and
alleged other orders entered by the Governor provided additional exceptions to the mass
gatherings order. Yet, even with those additional factual allegations and claims, the Sixth Circuit
only enjoined enforcement of the mass gatherings order to the extent it prohibits drive-in
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services. The Per Curiam Opinion does not allow Maryville Baptist Church, Inc. to have in-
person services. Thus, the Sixth Circuit did not rule on the only mass gathering to which
Plaintiffs’ claims relate: in-person services. Further, the Sixth Circuit expressly stated that the
case involving Maryville Baptist Church, Inc. – the same church at issue here – will be moot on
May 20, 2020, when faith-based services will be permitted to resume in-person services at a
reduced capacity. (Id. at 3).
Governor Beshear and Secretary Friedlander also request that the Court consider the May
4, 2020 Order of the United States District Court for the Western District of Kentucky (attached
as Exhibit A), recognizing that the Sixth Circuit Per Curiam Order did not enjoin enforcement of
the mass gatherings prohibition with respect to in-person services and acknowledging that
Governor Beshear and public health officials have repeatedly encouraged drive-in and virtual
faith-based services.
If the plaintiffs in Maryville Baptist Church could not obtain injunctive relief from the
prohibition on in-person services from the Sixth Circuit, the Plaintiffs here cannot obtain the
relief they seek.

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/s/ S. Travis Mayo

La Tasha Buckner
General Counsel
S. Travis Mayo
Chief Deputy General Counsel
Taylor Payne
Deputy General Counsel
Laura Tipton
Marc Farris
Office of the Governor
700 Capitol Avenue, Suite 106
Frankfort, KY 40601
(502) 564-2611
LaTasha.Buckner@ky.gov
travis.mayo@ky.gov
taylor.payne@ky.gov
laurac.tipton@ky.gov
marc.farris@ky.gov
Counsel for Governor Andrew Beshear
/s/ Wesley Duke (with permission)

Wesley W. Duke
Executive Director
Office of Legal Services
David T. Lovely
Cabinet for Health and Family Services
275 East Main Street 5W-A
Frankfort, KY 40621
(502) 564-7042
WesleyW.Duke@ky.gov
davidt.lovely@ky.gov
Counsel for Acting Secretary Eric Friedlander
I hereby certify that on May 4, 2020, I electronically filed the foregoing Notice of Filing
of Supplemental Authority the Court’s CM/ECF system, causing counsel of record to be served.
/s/ S. Travis Mayo

S. Travis Mayo
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EXHIBIT A
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MARYVILLE BAPTIST CHURCH, INC.

and DR. JACK ROBERTS, Plaintiffs,
v. Civil Action No. 3:20-cv-278-DJH-RSE
ANDY BESHEAR, in his official capacity as

Governor of the Commonwealth of Kentucky, Defendant.
* * * * *
ORDER
This case was filed at 4:40 p.m. on Friday, April 17, 2020, with a motion for temporary
restraining order and preliminary injunction accompanying the complaint. (Docket No. 1; see
D.N. 3) Plaintiffs Maryville Baptist Church and Jack Roberts sought to prevent Kentucky
Governor Andy Beshear from enforcing a ban on mass gatherings—an emergency measure taken
in response to the COVID-19 pandemic—insofar as the ban prohibits church services. (See D.N.
3) The Court ruled on Plaintiffs’ motion little more than twenty-four hours later, denying a
temporary restraining order on the ground that the Governor’s ban applies to all mass gatherings—
i.e., faith-based gatherings are not singled out. (D.N. 9) Plaintiffs filed proof of service on April
22, and the Court referred the case to Magistrate Judge Regina S. Edwards for scheduling and
discovery management the following day. (D.N. 14) After the defendant entered his appearance
on April 24, Judge Edwards promptly set the case for a status conference. (D.N. 19)
Approximately one week after the Court’s ruling on the motion for temporary restraining
order, Plaintiffs filed a notice of appeal (D.N 16) and an emergency motion for preliminary
injunction pending appeal (D.N. 17). They filed a similar motion with the Sixth Circuit Court of
1
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EXHIBIT A
Appeals, which issued a per curiam order granting the motion in part. See Maryville Baptist
Church, Inc. v. Beshear, No. 20-5427 (6th Cir. May 2, 2020), ECF No. 15-2.
The Sixth Circuit concluded that it had subject-matter jurisdiction over the appeal. Id. at
2-3. It also noted that “[t]he case will become moot” on May 20, 2020, when revised guidelines
for houses of worship are set to take effect. Id. at 3. The court temporarily enjoined Beshear and
other Commonwealth officials “from enforcing orders prohibiting drive-in services at the
Maryville Baptist Church if the Church, its ministers, and its congregants adhere to the public
health requirements mandated for ‘life-sustaining’ entities.”1 Id. at 10. The Sixth Circuit did not
enjoin enforcement of the ban with respect to in-person services. See id.
The Sixth Circuit has assumed jurisdiction of the case while also directing this Court to
“prioritize resolution of the claims.” Id. at 10. The Court will therefore proceed with its expedited
schedule. To the extent the Court may act “to aid the appellate process,” Williamson v. Recovery
Ltd. P’ship, 731 F.3d 608, 626 (6th Cir. 2013) (citing Cochran v. Birkel, 651 F.2d 1219, 1221 (6th
Cir. 1981)), it will do so. Accordingly, it is hereby
ORDERED that this matter is set for a telephonic status conference on May 4, 2020, at
3:00 p.m. The Court’s deputy clerk will contact counsel with call-in information. The parties
shall be prepared to revisit the briefing schedule previously set in this matter and to discuss the
necessity of creating a record to aid in the appellate process.

May 4, 2020
David J. Hale, Judge

United States District Court
1
The impact of the injunction is arguably negligible since, as set forth in the Governor’s brief,
“Governor Beshear and public health officials have repeatedly encouraged drive-in and virtual
faith-based services, so long as social distancing and hygiene measures are implemented and
followed.” Maryville Baptist Church, No. 20-5427 (May 1, 2020), ECF No. 13-1, at 7. This
apparent factual dispute illustrates the need for discussion between the Court and counsel regarding
whether and how to establish the factual record necessary to resolution of Plaintiffs’ claims.
2
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COVINGTON DIVISION

Plaintiffs :
v. :
Defendants :
EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

Plaintiffs, by and through Counsel, move for an emergency injunction pending appeal, on
their right to attend in-person church services, pursuant to FRAP 8. The grounds are those set
forth in their Motion [RE#7], their Reply [RE#30], and the Commonwealth of Kentucky, through
its Attorney General’s Amicus Brief [RE#43]. They also rely on the Sixth Circuit’s recent
decision in Maryville Baptist Church, Inc. v. Beshear [RE#41]. They reincorporate these
materials, and the evidence supporting them, fully as if written herein.
Plaintiffs fully recognize the futility of this exercise, and that moving for this relief likely
meet the requirements of impractability under FRAP 8(a)(2)(A)(i), as the Court has already ruled
on the merits of this claim, and ruled that the Governor’s mass gathering ban was neutral and
generally applicable, and thus did not need to meet strict scrutiny. [RE#46]. Plaintiffs mean no
disrespect to the Court, or its recent decision, in so moving. Nevertheless, Appellate Rule 8
requires that Plaintiffs typically move for such relief in this Court first prior to applying for such
relief in the Court of Appeals, and Plaintiffs do so now.
1
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859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
tbruns@bcvalaw.com
513-312-9890

P.O. Box 175883
(859) 250-3337
I certify that I have served a copy of the foregoing upon Counsel for the Defendants, this
4th day of May, 2020, by filing same with the Court via its CM/ECF system, which will provide
notice to all parties Counsel.

2
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Page ID#: 861

COVINGTON DIVISION

Plaintiffs :
v. :
Defendants :
ORDER GRANTING MOTION FOR INJUNCTION PENDING APPEAL

Plaintiffs’ Motion for an Order Granting them an injunction pending appeal is hereby granted.
Defendants are enjoined from enforcing Governor Beshear’s orders that prohibit Plaintiffs from
attending and worshiping in an in-person worship service provided the following measures are
adhered to in such service:
(1) Splitting out pews and marking designated sitting areas to keep non-cohabitating
congregants and families at least six feet apart before, during, and after the worship
service;
(2) Marking multiple entrances to encourage socially distanced foot traffic;
(3) Propping doors open to prevent the need for congregants to touch doors while entering
and exiting the church or sanctuary; •
(4) Suspending passing offering plates and bulletins;
(5) Actively discouraging handshaking or other social touching;
(6) Offering hand sanitizer throughout the building;
(7) Providing face masks to offer to any interested persons.

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(8) No church members are known to have had any contact with known COVID-19
confirmed cases;
(9) Attendees will be advised to perform temperature checks at home on all attendees prior to
attending the service. Individuals that are ill or have fevers will not attend;
(10) High-risk individuals will be asked not to attend the in-person service;
(11) The in-person service will be limited to 50% of the normal building capacity;
(12) Ventilation will be increased as much as possible, opening windows and doors, as
weather permits;
(13) These procedures will be communicated to church members in advance of the
service;
(14) If Church leadership becomes aware of a clear, immediate, and immanent threat
to the safety of the attendees or cannot follow the protocols listed above, the gathering
will be immediately disbanded.
IT IS SO ORDERED:
_____________________________
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ET AL. PLAINTIFFS
VS. ORDER
HON. ROBERT NEACE,

ET AL. DEFENDANTS
motion to stay (Doc. 49), and for the reasons stated in this
Court’s Memorandum Opinion and Order (Doc. 46),
IT IS ORDERED that plaintiffs’ motion to stay (Doc. 49) be,
and is hereby, DENIED.

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
THEODORE JOSEPH ROBERTS, : Case No. 20-5465

et. al. : Trial Case No. 2:20-CV-00054-WOB
Plaintiffs/Appellants :
v. :
Defendants/Appellees :
INJUNCTION PENDING APPEAL (proposed order)

Defendants, their officers, agents, servants, employees, attorneys and those
acting in concert with them, are hereby enjoined from enforcing Governor
Beshear’s orders that prohibit Plaintiffs from attending and worshiping at an in-
person worship service provided the following measures are adhered to during
such service by all those attending:
(1) Take steps to direct and encourage all cohabitating congregants and families
to remain at least six feet apart before, during, and after the worship service;
(2) Mark multiple entrances to encourage socially distanced foot traffic;
(3) Prop doors open, weather permitting, to prevent the need for congregants to
touch doors while entering and exiting the church or sanctuary;
(4) Suspend passing offering plates and bulletins;
(5) Actively discourage handshaking or other social touching;

(6) Offer hand sanitizer throughout the building;
(7) No church members will be permitted to attend who are known to have had
any contact with known COVID-19 confirmed cases;
(8) Attendees will be advised to perform temperature checks at home on all
attendees prior to attending the service and individuals that are ill or have
fevers will be asked to self-identify, and, if known, will not attend;
(9) High-risk individuals will be asked not to attend the in-person service;
(10) The in-person service will be limited to 50% of the normal building
capacity;
(11) Ventilation will be increased as much as possible, opening windows and
doors, as weather permits;
(12) These procedures will be communicated to church members in advance of
the service;
IT IS SO ORDERED:
_____________________________

Motion For Injunction Pending Appeal - Roberts

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Case: 20-5465 Document: 12 Filed: 05/06/2020 Page: 1

IN THE UNITED STATES COURT OF APPEALS

THEODORE JOSEPH ROBERTS, : Case No. 20-5465

EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

Plaintiffs (a regular congregant and two visitors to Easter services at the

Maryville Baptist church), by and through Counsel, move for an emergency

criminally prosecuting or quarantining Plaintiffs for having attended in-person

church services on Easter Sunday.1

The unconstitutional threats faced by Plaintiffs are solely as a result of their

Specifically, Plaintiffs challenged Governor Beshear’s COVID-19 travel ban

PAGEID#825-839, Injunction, RE#47, PAGEID#840]. However, in the same

Beshear’s order on mass gatherings, which banned all faith-based gatherings

14213, ---F.3d ---, (May 2, 2020) (“Maryville”).

As a result of the District Court’s decision, on May 4, 2020, Plaintiffs

[Motion for Injunction pending appeal, RE#49, PAGEID#859-862]. On May 5,

Motion, RE#53, PAGEID#899].

II. Factual Background

Plaintiffs are practicing Christians who testified to their sincerely held

religious beliefs concerning in-person worship, particularly on Easter Sunday.

[Am. Verified Compl, RE#6, PAGEID#72; Dec. Roberts, RE#7-2, PAGEID#150-

155; Declaration Daniel, RE#7-3, PAGEID#150-155; Declaration O’Boyle, RE#7-

Defendants, who include Boone County Attorney and prosecutor Bob

the challenged orders. [Am. Verified Compl, RE#6, PAGEID#72-73; Declaration

Roberts, RE#7-2, PAGEID#150-155].

By way of background, on March 19, 2020, in response to COVID-19, the

Exhibit D thereto, PAGEID#99-100]. The Governor’s exercise in word play could

number of purely secular activities from this definition. As enumerated in

Exhibit D, PAGEID#99-100]. Both of those Chapters contain criminal penalties.

K.R.S. 39A.990 (Class A misdemeanor for any violations of orders); K.R.S.

220.990 (Class B misdemeanor for any violations of orders). K.R.S. 39A.190

attempting to violate in the officer’s presence any order or administrative

“COVID-19 Reporting Hotline” and requested that Kentuckians call it “for

complaints about noncompliance with coronavirus mandates.” Id. at PAGEID#81.

Declaration Roberts, RE#7-2, PAGEID#150-155].4

gatherings” applied to “in-church” services. Id. at 49:39-51:28. Further, in

response to a reporter’s questions, he stated that these enforcement activities

1:08:07. Governor Beshear then carried out his threats.

Sally O’Boyle attended Easter church service at Maryville Baptist Church, in

Hillview, Bullitt County Kentucky. [Am. Verified Compl., RE#6, PAGEID#76;

Declaration Roberts, RE#7-2, PAGEID#150-155]. They each did so pursuant to

particularly on Easter Sunday. [Id.; Declaration Roberts, RE#7-2, PAGEID#150-

155; Declaration Daniel, RE#7-3, PAGEID#156-159; Declaration O’Boyle, RE#7-

other measures appropriate for the circumstances in accordance with CDC

Declaration Roberts, RE#7-2, PAGEID#150-155; Declaration Daniel, RE#7-3,

PAGEID#156-159; Declaration O’Boyle, RE#7-4, PAGEID#160-164.

Prosecution Notice”), placed there by Kentucky State Troopers:

no enforcement action occurred as to other “mass gatherings” reported to the

Governor. Two witnesses provided uncontradicted declarations demonstrating the

and practices. [Declaration Stanley, RE#7-5, PAGEID#165-166; Declaration Cox,

RE#7-6, PAGEID#156-159; Supp. Declaration Cox, RE#18-1, PAGEID#273-

Not surprisingly, and without contradicting Plaintiffs’ proof, Defendants

business ban as to non-essential businesses. [Declaration Perry, RE#24-5,

PAGEID#373-375]. But, when it came to enforcement of the mass gatherings ban,

Defendants engaged in a sleight of hand: they indicated they received 70

to any other “mass gatherings”. [Declaration Brewer, RE#24-4, PAGEID#371-

None of the Plaintiffs have displayed any symptoms of the COVID-19

disease. [Am. Verified Compl., RE#6, PAGEID#79; Declaration Roberts, RE#7-2,

PAGEID#150-155; Declaration Daniel, RE#7-3, PAGEID#156-159; Declaration

O’Boyle, RE#7-4, PAGEID#160-164].

All of the Plaintiffs refuse to self-quarantine, as required by the Quarantine

should attend further in-person church services. Id.

III. Law and Argument

A. The District Court erred in failing to grant an injunction where it