1 21

- 2 514

- c v Geller v. Hochul
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY O RDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square , in the 2 City of New York, on the 1 8 t h day of J a n u a r y , two thousand twenty

- t hree

. 3 4 PRESENT: ROSEMARY S. POOLER , 5 RAYMOND J. LOHIER, JR. , 6 BETH ROBINSON, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 PAMELA GELLER , 10 11 Plaintiff

- Appell ant , 12 13

v. No. 21

- 2 514

- c v 14 15 KATHLEEN COURTNEY HOCHUL, in her 16 official capacity as Governor of the State of New 17 York , MAYOR ERIC ADAMS, individually and 18 in his official capacity as Mayor of the City of 19 New York , and COMMISSIONER KEECHANT L. 20 SEWELL , individually and in h er official capacity 21 as Police Commissioner of the City of New York, 22 232 Defendant s

- Appell ees

. * 1

------------------------------------------------------------------ 2 FOR PLAINTIFF

- APPELLANT: D AVID Y ERUSHALMI 3 (Robert J. Muise, on the 4 brief ) , American 5 Freedom Law Center, 6 Washington, D.C. 7 8 FOR DEFENDANT

- APPELLEE HOCHUL : S ARAH L. R OSENBLUTH , 9 Assistant Solicitor 10 General ( Barbara D. 11 Underwood , Solicitor 12 General , Andrea Oser, 13 Deputy Solicitor 14 General, on the brief ), for 15 Letitia James , Attorney 16 General of the State of 17 New York , Albany , NY 18 19 FOR DEFENDANTS

- APPELLEE S I NGRID R. G USTAFSON , 20 ADAMS & SE WELL : Assistant Corporation 21 Counsel ( Richard P. 22 Dearing , Zachary S. 23 Shapiro , Assistant 24 Corporation Counsel , on 25 the brief ), for Sylvia O. 26 Hinds

- Radix, 27 Corporation Counsel of 28 the City of New York, 29 New York, NY 30 31

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Mayor Eric Adams is automatically substituted for former Mayor Bill de Blasio as Defendant

- Appellee and Commissioner Keechant L. Sewell is automatically sub stituted for former Commissioner Dermot Shea as Defendant

- Appellee.3 Appeal from a judgment entered in the United States District Court for the 1
Southern District of New York ( Edgardo Ramos , Judge ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3

AND DECREED that the judgment of the District Court is AFFIRMED in part 4
and the appeal is DISMISSED in part

. 5

Pamela Geller appeals from a judgment entered on September 2 7 , 2021 in 6
the United States District Court for the Southern District of New York ( Ramos , 7

J. ) , granting motions to dismiss her facial and as

- applied First Amendment and 8

Fourteenth Amendment claims challenging COVID

- 19

- related New York State 9
and New York City exec utive orders restricting public gathering s

. We assume 10
the parties’ familiarity with the underlying facts and the record of prior 11
proceedings, to which we refer only as necessary to explain our decision to 12

affirm in part and dismiss the appeal in part. 13

I. Gel ler’s Claims Against th e Governor 14
We begin with Geller’s appeal of the District Court’s dismissal of her 15
claims against New York State Governor Hochul , which we dismiss as moot. “A 16
case is moot when the issues presented are no longer live or the parties lack a 17
legally cognizable interest in the outcome.” Tann v. Bennett , 807 F.3d 51, 52 (2d 184 Cir. 2015) (quotation marks omitted). When a case is moot, it “must be 1

dismissed, even if the case was live at the outset but later events rendered it moot 2
on appeal.” Id. (quotation marks omitted). 3

In June 2021 the Governor rescinded New York State ’s executive orders 4
restricting public gatherings because of COVID

- 19

. See 9 N.Y.C.R.R. § 8.210

. As 5
this Court has previously recognized: 6

c ourts will find a case moot after a defendant voluntarily 7 discontinues challenged conduct only if (1) it can be said with 8 assurance that there is no reasonable expectation that the alleged 9

v iolation will recur , and (2) interim

. . . events have completely and 10 irrevocably eradicated the effects of the alleged violation. 11 Am. Freedom Def. Initiative v. Metro. Transp. Auth. , 815 F.3d 105, 109 (2d Cir. 12
2016) (quotation marks omitted). Because the New York State l egislature also 13
rescinded the Governor’s authority to issue new COVID

- 19

- related executive 14

orders in the future, see 2021 N.Y. Sess. Laws ch. 71 § 4, and Geller’s complaint as 15
to the Governor sought only declaratory and prospective relief, we conclude that 16

the Governor has “carried [her] heavy burden of persuasion with respect to 17

the

. . . voluntary cessation doctrine,” see Am. Freedom Def. Initiative , 815 F.3d at 18

110 (quotation marks omitted) , and we dismiss as moot Geller’s appeal of the 19

District Court’s dismissal of her claims against the Governor

. 20

215 II. Geller’s Claims Against the Mayor and Police Commissioner 1

We next turn to Geller’s appeal of the District Court’s dis missal of her 2

claims against New York City ’s Mayor and Police Commissioner

. 3

a. Facial First Amendment Challenge 4

We conclude that the District Court’s order in Geller v. de Blasio , No. 20

- 5
3566, 2020 WL 2520711 (S.D.N.Y. May 18, 2020) (“ Geller I ”) collaterally estopped 6

Geller from pursuing a facial challenge to the City’s executive orders in this case

. 7
Collateral estoppel applies where : 8
(1) the identical issue was raised in a previous proceeding; (2) the 9 issue was actually litigated and decided in the previous proceeding; 10 (3) the part [ ies ] had a full and fair opportunity to litigate the issue; 11 and (4) the resolution of the issue was necessary to support a valid 12 and final judgment on the merits. 13 Wyly v. Weiss , 697 F.3d 131, 141 (2d Cir. 2012) (quotation marks omitted)

. 14
On appeal, Geller contests only the first requirement , arguing that Geller I 15

did not raise an identical issue

. We disagree

. T he central questions raised in 16

Geller I are the same as those raised in this case : what is the appropriate standard 17

of review for assessing First Amendment challenges to the City’s public

18
gathering restrictions and how do those restrictions fare under that standard? As 19

the d istrict c ourt recognized in denying Geller’s motion for a temporary 20
restraining order (“ TRO ”) in Geller I , “ ‘ [c] onsideration of the merits is virtually 216 indispensable in the First Amendment context, where the likelihood of success 1
on the merits is the dominant, if not the dispositive, factor. ’ ” Geller I , 2020 WL 2

2520711, at *3 ( quoting N

. Y. Progress & Prot. PAC v. W alsh , 733 F.3d 483, 488 (2d 3
Cir. 2013) )

. In response, Geller argues that the essential fact s “ changed 4
dramatically” after Geller I with the advent of the Black Lives Matter protests , 5

and that the issues in Geller I and this case are not identical for that reason

. 6
Appellant’s Br. 34

– 36

. But a facial challenge “considers only the text of the [law] 7
itself, not its application to the particular circumstances of an individual.” Field 8
Day, LLC v. Cnty

. of Suffolk , 463 F.3d 167, 174 (2d Cir. 2006). G eller does not 9
argue that the text of the executive orders challenged here is different from the 10

text of the executive order at issue in Geller I such that collateral estoppel should 11
not apply

. A nd a lthough the circumstances surrounding the B lack Lives Matter 12
protests may be relevant to Geller’s as

- applied challenge, they are not relevant to 13
the question of whether collateral estoppel precludes her facial challenge

. For 14

these reasons , we conclude that this case raises the same issues as Geller I

. 15
We also conclude that the remaining three requirements for collateral 16
estoppel are satisfied . First, the constitutionality of the City’s public

- gathering 17

restrictions under the First Amendment was actually litigated and decided in 187 Geller I

. See Geller I , 2020 WL 2520711, at * 3

– 5

. Second, t he partie s do not 1
dispute on appeal that they had a full and fair opportunity to litigate the 2
constitutionality of the City’s public

- gathering restrictions under the First 3

Amendment during the TRO hearin g. A nd third , the parties do not dispute that 4

the resolution of questions concerning the constitutionality of the City’s public

5
gathering restrictions under the First Amendment was necessary to support a 6
valid and final judgment on the merits in the TRO hearing . A t the request of the 7
parties, the d istrict c ourt entered final judgment for the Mayor and Police 8

Commissioner on all of Geller’s claims. Id. at * 5

. 9

W e therefore affirm the District Court’s judgment with respect to Geller’s 10

facial challenge. 11

b. As

- Applied First Amendment Challenge 12

Next, we conclude that Geller lacks standing to bring her as

- applied First 13

Amendment challenge

. “To establish Article III standing, a plaintiff must 14

have

. . . suffered an injury in fact.’” Silva v. Farrish , 47 F.4 th 78, 86 (2d Cir. 2022) 15
(quoting Spokeo , Inc. v . Robins , 578 U.S. 330, 338 (2016) ) . “Those claiming a ‘ risk 16

of future harm ’ may seek ‘forward

- looking , injunctive relief to prevent the harm 17
from occurring’ but only if ‘the risk of harm is sufficiently imminent and 188 substantial.’” Id. (quoting TransUnio n LLC v. Ramirez , 141 S. Ct. 2190, 2210 1
(2021)). In the First Amendment context, “ [ s ] elf

- censorship is immune to an ‘ as 2
applied ’ challenge , for it derives from the individual’s own action s , not an abuse 3
of government power. ” City of Lakewood v. Plain Dealer Pub. Co. , 486 U.S. 750, 4
757 (1988)

. 5

At best, Geller has alleged only that she engaged in self

- censorship. She 6
did not allege that she filed a permit to protest, that she actually protested, or 7
that she was ever prosecuted or threate ne d with prosecution for protesting

. And 8
the City has formally represented before this Court that Geller will not be 9
prosecuted or threatened with prosecution under the City’s public

- gathering 10

restrictions in the future. Because Geller has not demonstrated that she suffers a 11
risk of harm that is “sufficiently imminent and substa ntial , ” Silva , 47 F.4 th at 86 12
(quotation marks omitted) , we dismiss for lack of standing her appeal of the 13

District Court’s dismissal of her as

- applied challenge

. 14

c. Fourteenth Amendment C hallenge 15
Finally, we conclude that Geller failed to state a claim of selective 16

enforcement under the Fourteenth Amendment’s E qual P rotection Clause

. To 17
prevail on her claim , Geller must allege (1) that she was “treated differently” 189 than the Black Lives Matter protesters, (2) that she was “similarly situated” to 1

them , and (3) that the “differential treatment was based on impermissible 2

considerations.” See Cine SK8, Inc. v. Town of Henrietta , 507 F.3d 778, 790 (2d 3
Cir. 2007) (quotation marks omitted)

. Geller has not even allege d that the City 4

has enforced its public

- gathering restrictions against any protest e rs , including 5

Geller and the B lack Lives Matter protesters, since the Black Lives Matter 6
protests began

. We therefore agree with the District Court that Geller failed to 7

state a claim of selective enforcement , and we affirm its dismissal of that claim. 8

We have considered the remainder of Geller ’s arguments and conclude 9
that they are without merit. For the foregoing reasons, we DISMISS Geller’s 10
appeal with respec t to her claims against the Governor and her as

- applied First 11
Amendment claims against the Mayor and Police Commissioner, and we 12

otherwise AFFIRM the judgment of the District Court. 13

FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15