# Spell v. Edwards

> District Court, M.D. Louisiana · January 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10192115

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** January 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10192115

## How later opinions describe it (automated extraction)

- affirming petitioner’s conviction of bigamy and rejecting petitioner’s defense that he “believed it to be his religious duty” to marry a second time

## Opinion text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MARK ANTHONY SPELL, ET AL. CIVIL ACTION

VERSUS

JOHN BEL EDWARDS, ET AL. NO. 20-00282-BAJ-EWD
C/W NO. 21-00423-BAJ-EWD

RULING AND ORDER
As detailed in the Court’s prior orders, these consolidated actions challenge
Louisiana’s statewide crowd-size limits on indoor gatherings implemented in
response to the COVID-19 pandemic, on the basis that such limits restrict Plaintiffs’
First Amendment right to religious assembly. On November 10, 2020 the Court
dismissed Civil Action No. 20-00282 (the lead case), determining that Plaintiffs failed
to establish a constitutional violation because the Constitution permits reasonable
restrictions on fundamental rights during public health emergencies—including
rights guaranteed by the First Amendment’s Free Exercise Clause—and because
Louisiana’s crowd-limits on indoor gatherings were reasonably related to suppressing
the deadly COVID-19 virus. (Doc. 95).
On July 6, 2021, the U.S. Court of Appeals for the Fifth Circuit vacated this
Court’s November 10 dismissal order, and remanded with instructions to reconsider
Plaintiffs’ First Amendment Free Exercise Clause claim in light of new guidance from
the U.S. Supreme Court, specifically, Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020), South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716
(2021) (hereinafter, “South Bay II”), and Tandon v. Newsom, 141 S. Ct. 1294 (2021).
(Doc. 112).
Now, with the benefit of the Supreme Court’s guidance, the Court reaches the
same result as before: Plaintiffs’ consolidated actions will, again, be dismissed. In

short, the Supreme Court’s most recent jurisprudence cannot save Plaintiffs’ claims
for injunctive relief because the challenged restrictions have expired on their own
terms and there is no indication whatsoever that crowd-size limits on indoor assembly
will be reinstated. Thus, an injunction is a moot point. Further, Plaintiffs’ demand
for damages fails because there is not now, and never has been, a “clearly established”
right to unrestricted religious assembly, and at all relevant times Defendants
reasonably believed that they were acting within the constitutional limits set by the

Supreme Court and the Fifth Circuit. Thus, Defendants are shielded from liability by
qualified immunity.
I. RELEVANT BACKGROUND
The Fifth Circuit’s July 6 remand order directs the Court to reconsider
Plaintiffs’ Free Exercise Clause claim in light of “the Supreme Court’s recent cases
regarding how the Free Exercise Clause applies in the particular context of state-
imposed COVID-19 restrictions on religious worship.” (Doc. 112 at 5). Although the

Court’s prior orders have already recounted much of the factual background that
produced the instant dispute, for ease of reference the Court highlights the following
facts in fulfillment of its mandate from the Circuit.
A. Louisiana implements countermeasures to combat the
spread of COVID-19, including statewide crowd-size limits on
indoor gatherings
On March 11, 2020, Louisiana Governor John Bel Edwards issued an
Executive Proclamation declaring a statewide public health emergency in response
to the rapid spread of the novel coronavirus SARS-CoV-2, aka COVID-19. See La.
Exec. Dep’t, Proclamation No. 25 JBE 2020 (Mar. 11, 2020).1 Thereafter, this original

Proclamation begat a series of unprecedented restrictions on civil liberties as state
officials, guided by federal and state public health authorities (including the Centers
for Disease Control and Prevention and the Louisiana Department of Health),
devised and implemented public health countermeasures to reduce transmission of
COVID-19 and combat the imminent and deadly threat of the global pandemic.
Beginning March 13, 2020, such countermeasures included crowd-size limits
on indoor gatherings. Specifically, the Governor’s March 13 Proclamation limited all

“gatherings in a single space at the same time where individuals will be in close
proximity to one another” to no more than 250 people. Id., Proclamation No. 27 JBE
2020 § 1 (Mar. 13, 2020). Thereafter, on March 16, the Governor reduced the
permissible gathering size to no more than 50 people. Id., Proclamation No. 30 JBE
2020 § 1 (Mar. 16, 2020). These initial crowd-size limits expressly exempted “normal
operations at locations like airports, medical facilities, shopping centers or malls,

office buildings, factories or manufacturing facilities, or grocery or department
stores.” Id. The March 16 Proclamation did, however, close all casinos, video poker
establishments, movie theaters, bars, and fitness centers and gyms, and prohibited
on-site consumption of food and beverages at restaurants. Id, Proclamation No. 30

1 The Governor’s various Proclamations referenced herein are available at
https://gov.louisiana.gov/index.cfm/newsroom/category/23 (last visited January 12, 2022).
JBE 2020 §§ 2-3.
The Governor’s crowd-size limits on indoor gatherings were most restrictive
from March 22 to May 15, 2020, reflecting heightened concerns regarding the rate at

which COVID-19 was spreading throughout Louisiana, and corresponding concerns
that the State’s health care facilities would be quickly overwhelmed by seriously ill
COVID-19 patients. During this eight week period, the Governor imposed a series of
statewide “stay-at-home” orders, directing all individuals to “stay home unless
performing an essential activity.” Id., Proclamation Nos. 33 JBE 2020 § 3 (Mar. 22,
2020); 41 JBE 2020 (Apr. 2, 2020); 52 JBE 2020 (Apr. 30, 2020) (collectively, the
“Stay-at-Home Orders”). Notably, the Governor’s Stay-at-Home Orders expressly

defined “[g]oing to and from an individual’s place of worship” as an “essential
activity,” id. § 3(E), yet also prohibited indoor gatherings of groups exceeding 10
people, id. § 2. The Stay-at-Home Orders also closed various “nonessential
businesses,” including “[a]ll places of public amusement, whether indoors or
outdoors,” “[a]ll personal care and grooming businesses,” and “[a]ll malls, except for
stores in a mall that have a direct outdoor entrance and exit that provide essential

services and products.” Id. § 4. Still, however, the Stay-at-Home Orders exempted
airports, hospitals, office buildings, manufacturing facilities, and grocery stores from
the 10-person crowd limit.
Beginning May 16, 2020, as the first wave of COVID-19 cases receded, the
Governor moved Louisiana into Phase 1 of “re-opening.” See id., Proclamation No. 58
JBE 2020 (May 14, 2020) (the “Phase 1 Order”). The Phase 1 Order marked a turning
point in the Governor’s response to the pandemic by implementing a gradual re-
opening of businesses and lifting the State’s most severe restrictions on indoor
gatherings. Relevant here, churches and other faith-based organizations were

allowed to resume operations at “25% of the total occupancy as determined by the
State Fire Marshal, counting both the number of employees and members of the
public present in the building at one time.” Id. § 2(G). Further, churches and other
faith-based organizations were expressly permitted to continue holding outdoor
services without size limits, provided that they adhered to social distancing measures
set forth in the State Fire Marshal’s May 1, 2020 Interpretive Memorandum. Id. §
2(G)(4)(b); see also Interpretive Mem. 2020-24, Office of State Fire Marshall (May 1,

2020), http://sfm.dps.louisiana.gov/doc/interpmemos/im_2020-24.pdf. By contrast, all
indoor and outdoor public amusement venues remained closed. Id. § 2(E).
On June 4, 2020, the Governor moved the State into Phase 2 of re-opening. See
La. Exec. Dep’t, Proclamation No. 74 JBE 2020 (June 4, 2020) (the “Phase 2 Order”).
Again, the Phase 2 Order eased crowd-size limits on churches and faith-based
organizations, allowing religious assemblies to operate indoors at 50% of total

occupancy, and to operate outdoors without limitation. See id. § 2(G)(4). Still, all
indoor and outdoor public amusement venues remained closed. Id. § 2(E). The
Governor ultimately extended the Phase 2 Order four times, until September 10,
2020. See id., Proclamation Nos. 83 JBE 2020 (June 25, 2020), 96 JBE 2020 (July 23,
2020), 101 JBE 2020 (Aug. 6, 2020), 110 JBE 2020 (Aug. 26, 2020).
Due to a second surge of COVID-19 case numbers in the summer of 2020, on
July 11 the Governor issued additional Phase 2 mitigation measures to address the
“increased risk of infection at large gatherings . . . where strict social distancing is
unable to occur.” Id., Proclamation No. 89 JBE 2020 (July 11, 2020). This July 11

Proclamation reinstated prohibitions against on-premises consumption of food or
drink at bars, and imposed a 50-person limit on indoor and outdoor secular
gatherings, but expressly exempted churches and other faith-based organizations from
such limits. Id. §§ 2-3.
On September 11, 2020 the Governor moved the State into Phase 3 of re-
opening. See id., Proclamation Nos. 117 JBE 2020 (Sept. 11, 2020); 123 JBE 2020
(Sept. 17, 2020), 134 JBE 2020 (Oct. 8, 2020), 143 JBE 2020 (Oct. 22, 2020), 158 JBE

2020 (Nov. 5, 2020) (collectively, the “Phase 3 Order”). The Phase 3 Order permitted
churches and faith-based organizations to operate indoors at 75% of total capacity,
and to continue outdoor operations unabated. Id. § 2(D)(4). Sports venues were
permitted, for the first time, to host events at 25% capacity, and event centers and
reception halls were allowed to operate at the lesser of 50% of total occupancy or 250
people. Id. § 2(D)(7), (8). Other places of public amusement, including concert and

music halls, remained closed. Id. § 2(B)(1).
Beginning in early November 2020, Louisiana experienced a third surge of
COVID-19 cases. As a result, the Governor returned Louisiana to a modified Phase
2, reducing the crowd-size limit on most businesses, including restaurants, shopping
malls, and gyms, from 75% to 50% of total capacity. See id., Proclamation No. 168
JBE 2020 § 2(D) (Nov. 24, 2020) (the “Modified Phase 2 Order”). The Governor’s
Modified Phase 2 Order did not reduce the crowd-size limit for churches or other
faith-based organizations, which were allowed to continue operating indoors at 75%
of capacity, and outdoors without limitation. See id., § 2(D)(4).

Louisiana remained under these modified Phase 2 restrictions until the
Governor returned the State to Phase 3 on March 2, 2021. See id., Proclamation Nos.
209 JBE 2020 (Dec. 22, 2020), 6 JBE 2021 (Jan. 12, 2021), 29 JBE 2021 (Mar. 2, 2021).
Notably, the March 2, 2021 Phase 3 Order removed all indoor capacity limits on
religious assemblies. See id., § 2(D). At the same time, however, the March 2
proclamation required “face covering[s] over the nose and mouth when inside … any
other building or space open to the public, whether indoor or outdoor.” See id., § 3(A).

Religious organizations were not exempted from this statewide mask mandate. See
id., § 3(B).
Since March 2, 2021 the Governor’s proclamations have imposed no crowd-size
limits on religious assemblies, despite Louisiana having experienced a deadly fourth
wave of COVID-19 cases in summer 2021 (driven by the more contagious Delta
variant), and having experienced a rapidly surging fifth wave of COVID-19 cases in

December 2021 and January 2022 (driven by the even more contagious Omicron
variant). See id., Proclamation Nos. 66 JBE 2021 (Mar. 30, 2021), 79 JBE 2021 (Apr.
27, 2021), 85 JBE 2021 (May 14, 2021), 93 JBE 2021 (May 25, 2021), 117 JBE 2021
(June 22, 2021), 131 JBE 2021 (July 21, 2021). Notably, hospitalizations for COVID-
19 during the Delta and Omicron surges far exceeded those which prompted the
Governor’s early restrictions on indoor assembly.
The statewide mask mandate expired on April 27, 2021, with limited
exceptions for schools, prisons, and public transportation facilities. See id.,
Proclamation Nos. 66 JBE 2021 (Mar. 30, 2021).

B. Plaintiffs hold indoor worship services in violation of
Louisiana’s crowd-size limits on indoor gatherings and are
cited with misdemeanor summonses
Life Tabernacle Church, headed by Pastor Spell, is an evangelical Christian
congregation that hosts weekly worship services attended by more than 2,000
members. (Doc. 58 at ¶ 25). Pastor Spell and Life Tabernacle Church believe that the
Bible unequivocally commands them to worship in person, and therefore have
continued weekly indoor services unabated throughout the COVID-19 pandemic,
notwithstanding Louisiana’s COVID-19 limits on indoor gatherings. (Doc. 58 at ¶¶
26-30). Early in the pandemic—i.e., when the Governor’s crowd-size limits were most
restrictive—Plaintiffs’ resistance drew considerable attention, and ultimately
resulted in Pastor Spell being issued six misdemeanor summonses by the Central,
Louisiana Police Department, under the supervision of Chief of Police Roger
Corcoran. (See id. at ¶¶ 38-40). These misdemeanor summonses alleged six separate
violations of Louisiana’s crowd-size limits on indoor gatherings, each occurring

between March 17 and March 29, 2020 (id. at ¶ 38), when the Governor transitioned
the State from a 50-person limit on indoor gatherings to the 10-person limit set forth
in the Stay-at-Home Orders. See Proclamation Nos. 30 JBE 2020; Proclamation No.
33 JBE 2020. Allegedly, Plaintiffs’ resistance also prompted East Baton Rouge Parish
Sheriff Sid Gautreaux to threaten Pastor Spell with arrest if he continued holding
church services. (Id. at ¶ 32).
C. This Court rejects Plaintiffs’ original challenge to Louisiana’s
indoor crowd-size limits, determining that they are
reasonably aimed to stop the spread of COVID-19
On May 7, 2020, Plaintiffs filed their original Complaint in this Court, naming
various Defendants in their official and individual capacities, including Governor
Edwards, Chief Corcoran, and Sheriff Gautreaux.2 (Doc. 1). At its core, Plaintiffs’
Complaint alleged that the Governor’s indoor crowd-size limits implemented in
response to COVID-19 violated their First Amendment rights to freely assemble and
to worship in the manner required by their evangelical faith. (Doc. 1 at ¶¶ 43-73).3
Relevant here, Plaintiffs sought immediate (and permanent) injunctive relief
prohibiting Defendants from enforcing the Governor’s indoor crowd-size limits, and

unspecified “compensatory, nominal, punitive, and other damages.” (Id. at p. 30).
On May 14, 2020, the Court held a hearing to determine whether Plaintiffs
were entitled to a temporary restraining order prohibiting enforcement of the
Governor’s crowd-size limits. (Doc. 60). At the conclusion of the hearing, the Court
denied injunctive relief against Chief Corcoran and Sheriff Gautreaux, but took
Plaintiffs’ request as to Governor Edwards under advisement. (Id.).

2 Plaintiffs’ original Complaint also named Central, Louisiana Mayor David Barrow, Baton
Rouge Mayor Sharon Weston Broome, and Louisiana Nineteenth Judicial District Court
Judge Fred Crifasi as Defendants. (Doc. 1 at ¶¶ 6, 8, 10). Plaintiffs voluntarily dismissed
these Defendants on May 12, 2020. (Docs. 23, 24).
3 Plaintiffs further alleged that the Governor’s Proclamations violated their First
Amendment right to free speech by “restrict[ing] Pastor Spell from speaking to his
congregation and the members of his congregation from speaking to him,” and violated their
Fourteenth Amendment right to equal protection by “treat[ing] Plaintiffs differently from
other similarly situated businesses and non-religious entities on the basis of the content and
viewpoint of the gatherings that Pastor Spell and Life Tabernacle Church hold.” (Doc. 1 at
¶¶ 76, 83). Plaintiffs’ Complaint also sets forth various state law claims, essentially mirroring
the federal claims outlined above. (Id. at ¶¶ 85-113).
Thereafter, on May 15, the Court entered its written Order denying Plaintiffs’
request as to Governor Edwards as well, determining that Plaintiffs were unlikely to
prevail in their constitutional claims because constitutional rights are not unlimited

and may be reasonably restricted by the State in response to public health
emergencies, and because the crowd-size limits at issue were reasonably aimed to
stop the spread of COVID-19. (Doc. 46 at pp. 5-13). In reaching this conclusion, the
Court was guided by the U.S. Supreme Court’s decision in Jacobson v. Massachusetts,
which rejected a challenge to Massachusetts’ compulsory smallpox vaccination law
and stated (without qualification) that “[t]he possession and enjoyment of all rights
are subject to such reasonable conditions as may be deemed by the governing

authority of the country essential to the safety, health, peace, good order, and morals
of the community.” 197 U.S. 11, 26 (1905) (quoting Crowley v. Christensen, 137 U.S.
86, 89 (1890); see also Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (“The
right to practice religion freely does not include liberty to expose the community or
the child to communicable disease or the latter to ill health or death.”).
Even more to the point, the Court’s analysis of Plaintiffs’ action was instructed

by the Fifth Circuit’s freshly-minted (April 7, 2020) decision in In re Abbott, where
the Circuit rejected a constitutional challenge to Texas’s COVID-19 restrictions on
“non-essential surgeries and procedures” (including abortions), and expressly
affirmed that “all constitutional rights may be reasonably restricted to combat a
public health emergency,” including “one’s right to peaceably assemble, [and] to
publicly worship.” In re Abbott, 954 F.3d 772, 786-88 (5th Cir. 2020). The Fifth
Circuit’s reasoning in Abbot left no doubt that the merits of Plaintiffs’ Free Exercise
Clause claim must be judged against a “reasonableness” standard—indeed, the
Circuit said so explicitly, stating: “Jacobson governs a state’s emergency restriction

of any individual right, not only the right to abortion. The same analysis would apply,
for example, to an emergency restriction on gathering in large groups for public
worship during an epidemic.” Id. at 778 n.1 (citing Prince, 321 U.S. at 166–67). To
drive the point home, the Circuit outlined the test for determining the
constitutionality of restrictions on fundamental rights during public health
emergencies as follows:
The bottom line is this: when faced with a society-threatening epidemic,
a state may implement emergency measures that curtail constitutional
rights so long as the measures have at least some “real or substantial
relation” to the public health crisis and are not “beyond all question, a
plain, palpable invasion of rights secured by the fundamental law.”
[Jacobson, 197 U.S. at 31]. Courts may ask whether the state’s
emergency measures lack basic exceptions for ‘extreme cases,’ and
whether the measures are pretextual—that is, arbitrary or oppressive.
Id. at 38. At the same time, however, courts may not second-guess the
wisdom or efficacy of the measures. Id. at 28, 30.
Jacobson remains good law.
In re Abbott, 954 F.3d at 784–85.
Plaintiffs did not immediately appeal this Court’s May 15 order. Instead, on
May 29, 2020 Plaintiffs filed their First Amended And Supplemental Complaint,
which amplified and supplemented allegations set forth in their original Complaint.
(Doc. 58). Plaintiffs’ Amended Complaint also added state law claims for wrongful
imprisonment and defamation against Chief Corcoran, each related to Chief
Corcoran’s enforcement of the Governor’s crowd-size limits and statements to the
media regarding the same. (See Doc. 58 at ¶¶ 152-53).
On June 5, 2020, Plaintiffs finally appealed this Court’s May 15 order, and
sought a TRO from the Fifth Circuit. The Fifth Circuit promptly rejected Plaintiffs’

gambit, and likewise determined that Plaintiffs’ request for injunctive relief was
meritless, but for a different reason: An injunction would be meaningless—and,
therefore, Plaintiffs’ request was moot—because the Governor’s most restrictive
crowd-size limits had already expired. Spell v. Edwards, 962 F.3d 175, 179–80 (5th
Cir. 2020) (hereinafter, “Spell I”). Relevant here, the Circuit explained that because
the challenged crowd-size limits expired naturally, Defendants’ actions were not
susceptible to concerns that they ceased their “unlawful conduct” merely to avoid

accountability. Id. at 179. Further, the Circuit held that Plaintiffs could not establish
the “capable of repetition, but evading review” exception to the mootness doctrine
because there was no indication “that the Governor might reimpose another
gathering restriction on places of worship.” Id. at 180. Rather, the Circuit observed
that “[t]he trend in Louisiana has been to reopen the state, not to close it down. To be
sure, no one knows what the future of COVID-19 holds. But it is speculative, at best,

that the Governor might reimpose the ten-person restriction or a similar one.” Id.
Having rejected Plaintiffs’ claims to injunctive relief, the Circuit remanded Plaintiffs’
case to this Court for adjudication of Plaintiffs’ claims for damages. Id.
Upon return to this Court, Governor Edwards, Chief Corcoran, and Sheriff
Gautreaux sought dismissal of Plaintiffs’ Amended Complaint. In sum, Defendants
argued that Plaintiffs’ allegations were too conclusory to state any actionable
constitutional claim; that, in any event, the Governor’s crowd-size limits (and
Defendants’ efforts to enforce them) passed constitutional muster; and, finally, that
even if Plaintiffs’ constitutional claims were actionable, Defendants were shielded

from individual liability by the qualified immunity doctrine because each Defendant
acted in good faith based on a reasonable belief that existing constitutional law
permitted crowd-size limits aimed to slow the spread of a highly-transmissible virus.
(Docs. 74, 78, 80). In support of their qualified immunity defense, Defendants
observed that in Abbot—issued just one month before Plaintiffs filed suit—the Fifth
Circuit unequivocally instructed that “all constitutional rights may be reasonably
restricted to combat a public health emergency.” In re Abbott, 954 F.3d at 786.

On November 10, 2020, this Court issued its first order dismissing Plaintiffs’
action on the merits. (Doc. 95). Consistent with the reasoning set forth in the Court’s
May 15 order denying Plaintiffs’ request for a TRO, the Court’s November 10 order
explained that Plaintiffs’ claims failed because the Constitution permits reasonable
restrictions on indoor religious gatherings when such limits are aimed to address a
public health emergency, and the Governor’s crowd-size limits were reasonably

targeted to reduce transmission of COVID-19. (Id.). Notably, in addition to the
authorities cited above, the Court’s November 10 dismissal order was guided by Chief
Justice Roberts’ May 29, 2020 concurrence in South Bay I, where the Supreme Court
denied injunctive relief to a group of California plaintiffs challenging virtually
identical COVID-19 crowd-limits imposed by California’s Governor. In relevant part,
the Chief Justice explained:
Although California’s guidelines place restrictions on places of worship,
those restrictions appear consistent with the Free Exercise Clause of the
First Amendment. Similar or more severe restrictions apply to
comparable secular gatherings, including lectures, concerts, movie
showings, spectator sports, and theatrical performances, where large
groups of people gather in close proximity for extended periods of time.
And the Order exempts or treats more leniently only dissimilar
activities, such as operating grocery stores, banks, and laundromats, in
which people neither congregate in large groups nor remain in close
proximity for extended periods.
The precise question of when restrictions on particular social activities
should be lifted during the pandemic is a dynamic and fact-intensive
matter subject to reasonable disagreement. Our Constitution principally
entrusts “[t]he safety and the health of the people” to the politically
accountable officials of the States “to guard and protect.” Jacobson v.
Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[]
to act in areas fraught with medical and scientific uncertainties,” their
latitude “must be especially broad.” Marshall v. United States, 414 U.S.
417, 427 (1974). Where those broad limits are not exceeded, they should
not be subject to second-guessing by an “unelected federal judiciary,”
which lacks the background, competence, and expertise to assess public
health and is not accountable to the people. See Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528, 545 (1985).
That is especially true where, as here, a party seeks emergency relief in
an interlocutory posture, while local officials are actively shaping their
response to changing facts on the ground. The notion that it is
“indisputably clear” that the Government’s limitations are
unconstitutional seems quite improbable.
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020)
(Roberts, C.J., concurring in denial of application for injunctive relief) (hereinafter
“South Bay I”).
Having determined that Plaintiffs’ constitutional claims failed, this Court
dismissed Plaintiffs action with prejudice, without addressing whether Defendants’
individual acts were shielded by qualified immunity.
D. Plaintiffs’ challenge is resuscitated by the Fifth Circuit in
response to intervening Supreme Court guidance
Plaintiffs appealed the dismissal of their original action. As their appeal was
pending, the U.S. Supreme Court issued temporary injunctive relief in three separate
religious liberty cases challenging similar crowd-size limits in New York and
California. Collectively, these three decisions called into question the basis of this
Court’s November 10 dismissal order.

First, in Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court
enjoined New York’s Governor from enforcing 10- and 25-person indoor occupancy
limits against religious congregations in New York City. Relevant here, the Court
held that such occupancy limits were not “neutral” and of “general applicability”
because they exempted “essential” businesses, and that therefore any such
restrictions “must satisfy ‘strict scrutiny,’” meaning “that they must be ‘narrowly
tailored’ to serve a ‘compelling’ state interest.” 141 S. Ct. at 67 (quoting Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)). The Court
further determined that while “[s]temming the spread of COVID–19 is
unquestionably a compelling interest,” the plaintiff congregations were likely to
succeed on the merits of their challenge because New York’s occupancy limits were
“more severe than has been shown to be required to prevent the spread of the virus
at the applicants’ services,” and because “less restrictive rules … could be adopted to

minimize the risk to those attending religious services,” including “maximum
attendance … [limits] tied to the size of the church or synagogue.” Id.
Second, on February 5, 2021, the Supreme Court issued its decision in South
Bay II, the sequel to the Court’s May 29, 2020 South Bay I decision recounted above.
This time, in a brief (one-paragraph) opinion, the Court enjoined California’s
Governor from enforcing California’s ban on all indoor worship services. Notably,

however, the Court denied injunctive relief “with respect to … percentage capacity
limitations” on religious services, specifically stating that the Governor was “not
enjoined from imposing a 25% capacity limitation on indoor worship services.” South
Bay II, 141 S. Ct. at 716.
Third, on April 9, 2021, the Supreme Court issued its decision Tandon v.
Newsom, which prohibited California’s Governor from enforcing California’s ban on
at-home religious gatherings of more than three households. Here, the Supreme

Court set forth a more precise blueprint for judicial review of Free Exercise Clause
cases in the COVID-19 era:
First, government regulations are not neutral and generally applicable,
and therefore trigger strict scrutiny under the Free Exercise Clause,
whenever they treat any comparable secular activity more favorably
than religious exercise. It is no answer that a State treats some
comparable secular businesses or other activities as poorly as or even
less favorably than the religious exercise at issue.
Second, whether two activities are comparable for purposes of the Free
Exercise Clause must be judged against the asserted government
interest that justifies the regulation at issue. Comparability is
concerned with the risks various activities pose, not the reasons why
people gather.
Third, the government has the burden to establish that the challenged
law satisfies strict scrutiny. To do so in this context, it must do more
than assert that certain risk factors are always present in worship, or
always absent from the other secular activities the government may
allow. Instead, narrow tailoring requires the government to show that
measures less restrictive of the First Amendment activity could not
address its interest in reducing the spread of COVID. Where the
government permits other activities to proceed with precautions, it must
show that the religious exercise at issue is more dangerous than those
activities even when the same precautions are applied. Otherwise,
precautions that suffice for other activities suffice for religious exercise
too.
Fourth, even if the government withdraws or modifies a COVID
restriction in the course of litigation, that does not necessarily moot the
case. And so long as a case is not moot, litigants otherwise entitled to
emergency injunctive relief remain entitled to such relief where the
applicants remain under a constant threat that government officials will
use their power to reinstate the challenged restrictions.
Tandon, 141 S. Ct. at 1296-97 (quotation marks and citations omitted).
Applying these principles, the Supreme Court held that California’s restriction
on at-home religious gatherings was subject to strict scrutiny analysis because
California allowed comparable secular activities to proceed without a three-
household restriction, and because there was no evidence that such secular “activities
pose a lesser risk of transmission than [plaintiffs’] proposed religious exercise at
home.” Id. at 1297. Further California could not prove that its restriction was
narrowly tailored to achieve its compelling interest in suppressing COVID-19 because
the State offered no explanation “why it could not safely permit at-home worshipers
to gather in larger numbers while using precautions used in secular activities.” Id.
Finally, the Court explained that the Tandon plaintiffs’ challenge was not moot
because the Governor’s restriction on home worship remained in place for at least one
more week, and because California officials maintained a history of “moving the
goalposts,” suggesting that “heightened restrictions” could be reinstated at any time.
Id. Thus, the Tandon plaintiffs were likely to prevail in their challenge, and
injunctive relief would still serve its purpose of protecting the plaintiffs’
constitutional rights. Id.
On July 6, 2021, three months after the Supreme Court’s Tandon decision, the
Fifth Circuit issued its Judgment and Mandate vacating this Court’s November 10
dismissal order. (Doc. 112). The Circuit’s accompanying opinion observed that at the

time this Court dismissed Plaintiffs’ action, it lacked “the benefit of considering the
Supreme Court’s recent cases regarding how the Free Exercise Clause applies in the
particular context of state-imposed COVID-19 restrictions on religious worship.” (Id.
at 5). Accordingly, the Circuit remanded with instructions to re-examine Plaintiffs’
Free Exercise Clause claim in light of Roman Catholic Diocese of Brooklyn, South Bay
II, and Tandon. (Id. at 5-6). Notably, the Circuit expressly avoided stating an
“opinion on the merits of this case or the immunity defenses raised by the defendants,

which the district court should review in the first instance.” (Id. at 5).
E. Plaintiffs file a second lawsuit in state court as their appeal
of their original lawsuit is pending
One final wrinkle complicates the procedural history of this case. On April 6,
2021—as their appeal of the November 10 dismissal order was still pending—
Plaintiffs filed a second lawsuit asserting identical constitutional claims in Louisiana
state court. (Civil Action No. 21-cv-00423, Doc. 1-2, hereinafter, the “state court
action”). Apart from passing references to Governor Edwards’s statewide mask-
mandate and the Louisiana Legislature’s intermittent attempts to override the
Governor’s pandemic response measures, there is no meaningful difference between

Plaintiffs’ state court action and their original federal action. On May 7, 2020,
Defendants removed Plaintiffs’ state court action to this District, where it was
consolidated for all purposes with Plaintiffs’ original action. (Civil Action No. 21-cv-
00423, Docs. 1, 15).
F. Defendants renew their motions to dismiss, notwithstanding
the Supreme Court’s intervening decisions in Roman
Catholic Diocese of Brooklyn, South Bay II, and Tandon
This nearly brings us up to speed. Now before the Court are renewed motions
to dismiss submitted by Governor Edwards, Sheriff Gautreaux, and Chief Corcoran.
Collectively, Defendants’ Motions seek wholesale dismissal of both the original
federal action and the new state court action. In chronological order of filing, these
Motions are as follows:
 Chief Corcoran’s Motion To Dismiss Pursuant To Rule 12(b)(6)
(Doc. 10), filed in the state court action, Civil Action No. 21-00423;
 Sheriff Gautreaux’s Motion to Dismiss (Doc. 11), filed in the state
court action, Civil Action No. 21-00423;
 Sheriff Sid Gautreaux’s Second Motion To Dismiss Plaintiffs’ First
Amended And Supplemental Complaint (Doc. 117), filed in the
original action, Civil Action No. 20-00282;
 Chief Corcoran’s Second Motion To Dismiss Pursuant To Rule
12(b)(6) (Doc. 118), filed in the original action, Civil Action No. 20-
00282;
 Governor Edwards’s Motion To Dismiss Plaintiffs’ First Amended
And Supplemental Complaint On Remand From Fifth Circuit
(Doc. 119), filed in the original action, Civil Action No. 20-00282; and
 Governor Edwards’s Motion To Dismiss (Doc. 13), filed the state court
action, Civil Action No. 21-00423.
The arguments raised in Defendants’ respective Motions are essentially the
same between the two consolidated actions.4 Plaintiffs have submitted one omnibus

4 For clarity the Court will refer to Defendants’ respective Motions simply as “Governor
Edwards’s Motions,” “Sheriff Gautreaux’s Motions,” and “Chief Corcoran’s Motions.” Unless
specifically noted otherwise, all record citations herein will refer to the docket as it appears
in the original federal action, Civil Action No. 20-00282.
response opposing Defendants’ Motions. (Doc. 121). Governor Edwards and Sheriff
Gautreaux have each filed reply memoranda in further support of their Motions.
(Docs. 122, 123).

For reasons explained below, Defendants Motions—all six of them—will each
be granted, and Plaintiffs’ consolidated actions will, again, be dismissed with
prejudice. In sum, even taking into consideration the Supreme Court’s most recent
guidance, Plaintiffs’ claims for injunctive relief remain moot because there is no
indication whatsoever that the Governor will reinstate restrictions limiting Plaintiffs’
ability to gather for worship. Additionally Plaintiffs’ claims for damages fail because
constitutional law as it existed throughout the early months of the COVID-19

pandemic indicated that capacity restrictions on indoor gatherings were “consistent
with the Free Exercise Clause of the First Amendment.” See South Bay I, 140 S. Ct.
at 1613; see also In re Abbott, 954 F.3d at 786 (“all constitutional rights may be
reasonably restricted to combat a public health emergency”). Thus, it was not clearly
established that the Governor’s Proclamations ran afoul of the First Amendment
when they were issued, and the Defendants’ acts to enforce the same are shielded

from liability by the qualified immunity doctrine.
II. DISCUSSION
A. Standard
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against
the legal standard set forth in Rule 8, which requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

B. Analysis
1. The Court assumes that Plaintiffs have stated an
actionable Free Exercise Clause claim
The Fifth Circuit remanded Plaintiffs’ action to this Court to determine in the
first instance whether the Governor’s Proclamations (and Chief Corcoran’s and
Sheriff Gautreaux’s actions to enforce them) violate the First Amendment’s Free
Exercise Clause by imposing crowd-size limits on worship services while at the same
time expressly allowing airports, hospitals, office buildings, manufacturing facilities,
and grocery stores to continue operations without such limits.
In light of the Supreme Court’s guidance in Roman Catholic Diocese of
Brooklyn, South Bay II, and Tandon, the Court will assume that Plaintiffs’
allegations show that the challenged Proclamations treat religious assemblies less

favorably than “comparable” secular assemblies, “and therefore trigger strict scrutiny
under the Free Exercise Clause.” Tandon, 141 S. Ct. at 1296. Further, the Court will
assume that the challenged Proclamations fail the strict scrutiny analysis because,
as in Tandon, less-restrictive COVID-19 precautions applicable to “comparable”
secular assemblies—such as mandatory vaccination, social distancing, and facial
coverings—would also suffice to reduce the risk of COVID-19 transmission at worship

services. See id. at 1297. As such, the Court will assume that Plaintiffs have stated
the basic elements of an actionable Free Exercise Clause claim.
That is not the end of the inquiry, however, because to survive dismissal
Plaintiffs must still show that they are entitled to relief—whether in the form of an
injunction or damages. Here, Plaintiffs’ claims falter for reasons explained below.

2. Plaintiffs’ claims to injunctive relief are moot
The Court’s November 10 dismissal order determined that Plaintiffs’ claims to
injunctive relief are moot because the challenged Proclamations have all expired on
their own terms and there is no indication whatsoever that they will be reinstated.
(Doc. 95 at 9-10).5 The intervening months have validated this conclusion. As
illustrated above, all restrictions on religious assembly were lifted as of March 2,
2021. Since then, Louisiana has endured a deadly fourth wave of COVID-19 driven

by the more contagious Delta variant, and has recently entered into a fifth wave of
COVID-19 driven by the even more contagious Omicron variant, yet no additional
crowd-size limits have been imposed on religious assemblies. Rather, time and
experience have reinforced that “[t]he trend in Louisiana has been to reopen the state,
not to close it down,” making it even more speculative now to suggest that Plaintiffs
might endure similar restrictions in the future. See Spell I, 962 F.3d at 180.
Accordingly, Plaintiffs claims to injunctive relief are moot and must be dismissed.

Tandon is the only intervening Supreme Court opinion to directly address the
issue of mootness in the context of COVID-19 restrictions on religious assembly. As

5 To recall, the Fifth Circuit reached the same conclusion five months earlier, in its original
opinion rejecting Plaintiffs’ request for a TRO. See Spell I, 962 F.3d at 179 (“[A] statute that
expires by its own terms does not implicate [concerns of litigation posturing by the
Defendants]. Why? Because its lapse was predetermined and thus not a response to litigation.
So unlike a postsuit repeal that might not moot a case, a law’s automatic expiration does.”).
indicated above, Tandon instructs that “even if the government withdraws or
modifies a COVID restriction in the course of litigation, that does not necessarily
moot the case. And so long as a case is not moot, litigants otherwise entitled to

emergency injunctive relief remain entitled to such relief where the applicants
‘remain under a constant threat’ that government officials will use their power to
reinstate the challenged restrictions.” Tandon, 141 S. Ct. at 1297. But even Tandon
does not dictate a different result here. Why? Because the factual circumstances that
caused the Supreme Court to issue injunctive relief in Tandon were dramatically
different. First, in Tandon, the challenged restrictions remained in effect for at least
one more week when the Supreme Court issued its injunction. Tandon, 141 S. Ct. at

1297. Here, all restrictions on Plaintiffs’ ability to congregate expired on March 1,
2021, more than ten months ago. Second, and more important, the Tandon Court
simply did not credit California’s argument that similar restrictions would not be
reinstated after their expiration, given California’s “track record of ‘moving the
goalposts’” in its response to the pandemic. See id. Here, in stark contrast, since the
Governor issued the Phase 1 Order on May 16, 2020—twenty months ago—

Louisiana’s unwavering trend has been to lift restrictions on religious assembly.
Again, no one knows what the future of COVID-19 holds. But Louisiana’s track record
makes it speculative, at best, that the Governor might reimpose similar restrictions
in the future. See Spell I, 962 F.3d at 180.
3. Plaintiffs’ claims to damages are defeated by the
qualified immunity doctrine
Qualified immunity shields a government official from liability for civil
damages “when an official’s conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” City of
Escondido, Calif. v. Emmons, 139 S. Ct. 500, 503 (2019). Its intended purpose is to

strike a balance “between the interests in vindication of citizens’ constitutional rights
and in public officials’ effective performance of their duties” by making it possible for
government officials “reasonably [to] anticipate when their conduct may give rise to
liability for damages.” See Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting
Davis v. Scherer, 468 U.S. 183, 195 (1984)). Put differently, “[q]ualified immunity
gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions. When properly applied, it protects ‘all but the

plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563
U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The Fifth Circuit’s two-pronged test for qualified immunity asks (1) “whether
the facts, viewed in the light most favorable to the party asserting the injury, show
that the official’s conduct violated a constitutional right,” and (2) “whether the right
was ‘clearly established.’” Cunningham v. Castloo, 983 F.3d 185, 190-91 (5th Cir.

2020). A court may analyze these prongs in either order, and resolve the case on a
single prong. Id. at 190.
Relevant here, to determine whether a constitutional or statutory right was
“clearly established” at the time of the alleged violation, the Court looks for guidance
from controlling Supreme Court and Fifth Circuit authority. See McClendon v. City
of Columbia, 305 F.3d 314, 329 (5th Cir. 2002). “[I]n the absence of directly controlling
authority, a ‘consensus of cases of persuasive authority’ [from other Circuits] might,
under some circumstances, be sufficient to compel the conclusion that no reasonable
officer could have believed that his or her actions were lawful.” Id. (quoting Wilson

v. Layne, 526 U.S. 603, 604 (1999)). “We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional question beyond
debate.” al-Kidd, 563 U.S. at 741.
Importantly, “[a] right is ‘clearly established’ only if it ‘is sufficiently clear that
every reasonable official would have understood that what he is doing violates that
right.’” Cunningham, 983 F.3d at 191 (quoting Mullenix v. Luna, 577 U.S. 7, 11
(2015)). The “right must be defined with specificity,” not “at a high level of generality.”

Emmons, 139 S. Ct. at 503 (quotation marks omitted). The “salient question” is
“‘whether the state of the law at the time of the state action gave the state actors fair
warning that their alleged treatment of the plaintiff was unconstitutional.’”
McClendon, 305 F.3d at 329 (quoting Roe v. Texas Dep’t of Protective & Regul. Servs.,
299 F.3d 395, 409 (5th Cir. 2002)); see also Mullenix, 577 U.S. at 12 (“The dispositive
question is whether the violative nature of the particular conduct is clearly

established.” (quotation marks omitted)). The “clearly-established” prong imposes a
“demanding standard” that “is difficult to satisfy.” Cunningham, 983 F.3d at 191.
Applying this framework, the Court determines that each of the remaining
Defendants are entitled to qualified immunity.
a. Governor Edwards
In their omnibus Opposition, Plaintiffs specify the constitutional right they
seek to vindicate as “the right for their entire congregation to meet in person in the
church building.” (Doc. 121 at 12). For present purposes, the Court will assume that
such a right exists and, further, that the Governor’s indoor crowd-size limits violated
that right.

Still, Plaintiffs’ Free Exercise Clause claim fails because, even now, the “right
for [Plaintiffs’] entire congregation to meet in person in the church building” is not
“clearly established.”6 In fact, at all relevant times during the course of this litigation,

6 Significantly, Plaintiffs fail to identify even one case from any jurisdiction that establishes
an unrestricted constitutional “right for [Plaintiffs’] entire congregation to meet in person in
the church building.” (Doc. 121 at 12). Instead, they insist such a right flows directly from
the First Amendment’s text, which, in relevant part, states “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof[.]” (Doc. 121
at 14). Yet, the Supreme Court has long rejected such a literal interpretation of the First
Amendment, and has long refused to place categorical limits on government authority,
particularly in the context of public health emergencies. See Jacobson, 197 U.S. at 29 (“There
is, of course, a sphere within which the individual may assert the supremacy of his own will,
and rightfully dispute the authority of any human government, especially of any free
government existing under a written constitution, to interfere with the exercise of that will.
But it is equally true that in every well-ordered society charged with the duty of conserving
the safety of its members the rights of the individual in respect of his liberty may at times,
under the pressure of great dangers, be subjected to such restraint, to be enforced by
reasonable regulations, as the safety of the general public may demand.”); Prince, 321 U.S.
at 166–67 (“The right to practice religion freely does not include liberty to expose the
community or the child to communicable disease or the latter to ill health or death.”); see also
In re Abbott, 954 F.3d at 778 (“all constitutional rights may be reasonably restricted to
combat a public health emergency”). Indeed, as indicated above, even Tandon rejects the view
that the First Amendment must at all times be afforded its literal meaning, insofar as
Tandon requires only that occupancy limits on religious assemblies withstand strict scrutiny
in order to pass constitutional muster. See Tandon, 141 S. Ct. at 1296.
On a related note, there is no basis whatsoever to Plaintiffs’ argument that the First
Amendment removes issues of religious liberty from the State’s “jurisdiction” to regulate.
(Doc. 121 at 1 (“The text, history, and leading precedents concerning the Religion Clauses of
the First Amendment show that the civil government has no jurisdiction to tell a church
whether it may meet or not.”). Again, the Supreme Court has long dismissed such assertions,
because to remove issues of religious liberty from the State’s “dominion” “would be to make
the professed doctrines of religious belief superior to the law of the land, and in effect to
permit every citizen to become a law unto himself. Government could exist only in name
under such circumstances.” Reynolds v. United States, 98 U.S. 145, 153, 167 (1878) (affirming
petitioner’s conviction of bigamy and rejecting petitioner’s defense that he “believed it to be
his religious duty” to marry a second time).
controlling authorities indicated that crowd-limits on indoor religious gatherings are
constitutional, provided they satisfy the correct standard of constitutional review.
Early in the COVID-19 pandemic, when the Governor imposed his most

restrictive crowd-limits, controlling authorities instructed that such limits were
constitutional as long as they satisfied a “reasonableness” analysis. Specifically, on
May 29, 2020, one week after the Governor issued his first Stay-at-Home Order
limiting indoor gatherings to 10 people, the Supreme Court decided South Bay I,
which declined to enjoin virtually identical restrictions imposed by California’s
Governor. Notably for present purposes, Chief Justice Roberts’ South Bay I
concurrence expressly rejected “[t]he notion that it is ‘indisputably clear’ that the

Government’s limitations are unconstitutional”—calling the idea “quite improbable.”
South Bay I, 140 S. Ct. 1614. Moreover, as indicated above, the Chief Justice’s
concurrence tacitly endorsed the reasonableness review of emergency public health
restrictions originally set forth more than 100 years ago in Jacobson, stating:
The precise question of when restrictions on particular social activities
should be lifted during the pandemic is a dynamic and fact-intensive
matter subject to reasonable disagreement. Our Constitution principally
entrusts “[t]he safety and the health of the people” to the politically
accountable officials of the States “to guard and protect.” Jacobson v.
Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[]
to act in areas fraught with medical and scientific uncertainties,” their
latitude “must be especially broad.” Marshall v. United States, 414 U.S.
417, 427 (1974). Where those broad limits are not exceeded, they should
not be subject to second-guessing by an “unelected federal judiciary,”
which lacks the background, competence, and expertise to assess public
health and is not accountable to the people. See Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528, 545 (1985).
Id. at 1613–14.
One week later, in Abbot, the Fifth Circuit drove the point home, stating
expressly that “all constitutional rights may be reasonably restricted to combat a
public health emergency,” including “one’s right to peaceably assemble, [and] to
publicly worship,” and, further, that “the same” reasonableness analysis originally

set forth in Jacobson would apply “to an emergency restriction on gathering in large
groups for public worship during an epidemic.” In re Abbott, 954 F.3d at 778 n.1, 786.
South Bay I and Abbot illustrate that when the Governor imposed his strictest
numerical limits on indoor worship, the controlling authorities held that the
constitution allowed such restrictions provided that they “have at least some ‘real or
substantial relation’ to the public health crisis and are not ‘beyond all question, a
plain, palpable invasion of rights secured by the fundamental law.’” In re Abbott, 954

F.3d at 784–85 (quoting Jacobson, 197 U.S. at 31). As explained in the Court’s
original November 10 dismissal order, indoor capacity limits are plainly related to
stopping the spread of COVID-19. Moreover, such temporary emergency restrictions
are not so unconscionable that they are “beyond all question, a plain, palpable
invasion of rights secured by the [Free Exercise Clause],” id., especially in light of
Supreme Court and Fifth Circuit precedent counseling the opposite. See Prince, 321

U.S. at 166–67 (“The right to practice religion freely does not include liberty to expose
the community or the child to communicable disease or the latter to ill health or
death.”); In re Abbott, 954 F.3d at 778 (“‘[U]nder the pressure of great dangers,”
constitutional rights may be reasonably restricted ‘as the safety of the general public
may demand.’ That settled rule allows the state to restrict, for example, one’s right
to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”
(quoting Jacobson, 197 U.S. at 29)).
In short, when the Governor issued his strictest limits on indoor worship in
March 2020, it was not at all clear that he acted unconstitutionally. Quite the

opposite: controlling authorities indicated that the Governor’s crowd limits were
constitutional. Even if, ultimately, the Governor’s judgment was “mistaken,” it was
well supported by existing law, and therefore “reasonable.” See al-Kidd, 563 U.S. at
743. Governor Edwards is plainly entitled to qualified immunity for his most
restrictive (10-person) limits on indoor worship services set forth in the Stay-at-Home
Orders. Id.
It follows that the Governor’s less restrictive limits implemented in the ensuing

months were also “reasonable,” and therefore also shielded by qualified immunity. In
fact, the first signal that indoor capacity limits on religious assemblies were
presumptively unconstitutional unless they passed strict scrutiny did not arrive until
November 25, 2020, when the Supreme issued its Roman Catholic Diocese of Brooklyn
opinion. But even that case did not clearly establish the “right for [Plaintiffs’] entire
congregation to meet in person in the church building.” (Doc. 121 at 12). True, the

Supreme Court enjoined New York’s 10- and 25-person indoor occupancy limits
against religious congregations; at the same time, however, the Supreme Court
expressly endorsed “maximum attendance … [limits] tied to the size of the church or
synagogue.” Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 67. When Roman
Catholic Diocese of Brooklyn was decided, Louisiana’s 10-person indoor occupancy
limit was obsolete, having expired six months earlier, on May 15, 2020. Rather, in
November 2020, Governor Edwards’ Proclamations allowed Louisiana congregations
to operate at 75% occupancy—i.e., a maximum attendance limit “tied to the size of
the church or synagogue.” Thus, even after Roman Catholic Diocese of Brooklyn, it

was reasonable for the Governor to believe that Louisiana’s effective 75% occupancy
limit was constitutional under existing law.
Two months later, on February 5, 2021, the Supreme Court issued South Bay
II. But, again, this opinion fell well short of clearly establishing a right to unfettered
religious assembly. South Bay II enjoined California’s ban on all indoor religious
assemblies, but expressly denied injunctive relief “with respect to … percentage
capacity limitations” on religious services, specifically stating that California was

“not enjoined from imposing a 25% capacity limitation on indoor worship services.”
South Bay II, 141 S. Ct. at 716. In February 2021, Governor Edwards’ Proclamations
allowed Louisiana congregations to operate at 75% occupancy. South Bay II’s express
endorsement of a 25% capacity limit made it reasonable for the Governor to believe
that a 75% capacity limit was also constitutional.
All crowd-size restrictions on religious assembly in Louisiana expired on

March 1, 2021. The Supreme Court did not issue its decision in Tandon until April 9,
2021, five weeks later. But even Tandon does not clearly endorse the unbridled right
to assemble that Plaintiffs seek. In fact, Tandon contemplates that the State may still
impose capacity limits on religious assemblies, provided that such limits satisfy strict
scrutiny. Tandon, 141 S. Ct. at 1296.
In sum, there is not now, and never has been a “clearly established”
constitutional “right for [Plaintiffs’] entire congregation to meet in person in the
church building.” (Doc. 121 at 12). Moreover, as illustrated above, for the entire
period encompassed by the Governor’s gradually decreasing restrictions on indoor

worship, controlling authority counseled that the effective indoor crowd-limits in
place at any given time were constitutional. Accordingly, even assuming that
Plaintiffs have stated an actionable Free Exercise Clause claim, the Governor is
entitled to qualified immunity for any and all unconstitutional acts forming the basis
of such claim, and all claims for damages against the Governor must be dismissed.7
b. Chief Corcoran and Sheriff Gautreaux
It follows that Chief Corcoran and Sheriff Gautreaux are also entitled to

qualified immunity for their enforcement of the Governor’s indoor capacity limits.
“Police are charged to enforce laws until and unless they are declared
unconstitutional,” Michigan v. DeFillippo, 443 U.S. 31, 38 (1979), and “an arrest
made in good faith reliance on a statute not yet declared unconstitutional is valid
regardless of the actual constitutionality of the ordinance.” United States v. Carden,
529 F.2d 443, 445 (5th Cir. 1976). The Governor’s Proclamations were issued
pursuant to his executive authority under the Louisiana Homeland Security and

7 In reaching this conclusion, the Court does not consider what impact, if any, the Governor’s
statewide mask mandate would have on the analysis. Plaintiffs’ opposition fails to brief the
issue, and therefore it is waived under the Court’s Local Rules. See M.D. La. LR 7(d); see also
Gray v. City of Denham Springs, No. 19-cv-00889, 2021 WL 1187076, at *5 (M.D. La. Mar.
29, 2021) (Jackson, J.) (“The Court will not speculate on arguments that have not been
advanced, or attempt to develop arguments on [a party’s] behalf.” (quotation marks and
alterations omitted)).
Emergency Assistance and Disaster Act, La. R.S. § 29:721, et seq., and the Louisiana
Health Emergency Powers Act, La. R.S. § 29:760, et seq., and have the full force and
effect of law. La. R.S. § 29:724(A). At no point were the Governor’s Proclamations

declared unconstitutional. Accordingly, when they acted to enforce the Governor’s
crowd-size limits, Chief Corcoran and Sheriff Gautreaux each reasonably believed
that they acted pursuant to valid laws. Thus, Chief Corcoran and Sheriff Gautreaux
are each also entitled to qualified immunity, and all claims for damages against them
must be dismissed.
C. State Law Claims
Once again the Court has dismissed all federal claims. Accordingly, there is no

basis to exercise federal question jurisdiction, and the Court must decide whether to
maintain jurisdiction over Plaintiffs’ pendant state law claims. In making this
determination, the Court “look[s] to the statutory factors set forth by 28 U.S.C. §
1367(c), and to the common law factors of judicial economy, convenience, fairness,
and comity.” Enochs v. Lampasas Cty., 641 F.3d 155, 159 (5th Cir. 2011). “When a
court dismisses all federal claims before trial, the general rule is to dismiss any
pendent claims.” Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999).

Here, all factors favor dismissing Plaintiffs state law claims. These remaining
claims raise novel issues of Louisiana law—specifically whether the Louisiana
Constitution protects Plaintiffs from the Governor’s crowd-size limits—and obviously
predominate over the nonexistent federal claims. See Enochs, 641 F.3d at 159.
Moreover, judicial economy, convenience, fairness, and comity are each served by
allowing Louisiana’s courts to address Plaintiffs’ state law claims in the first instance,
particularly because as the Louisiana Supreme Court has recently issued a
supervisory writ granting review of Pastor Spell’s challenge to the misdemeanor
summonses issued under the Governor’s Proclamations. See State v. Spell, 2021-

00876 (La. 12/7/21), 2021 WL 5801052. The issues presented in Pastor Spell’s state
court criminal proceeding necessarily overlap with those presented here, and are
deserving of a state court adjudication unencumbered by a parallel federal civil
proceeding.
Accordingly, the Court will follow the “general rule” and also dismiss all of
Plaintiffs’ state law claims. Bass, 180 F.3d at 246.
III. CONCLUSION

Accordingly, consistent with the reasoning set forth herein,
IT IS ORDERED that Sheriff Sid Gautreaux’s Second Motion To Dismiss
Plaintiffs’ First Amended And Supplemental Complaint, appearing as Doc.
117 in Civil Action 20-cv-00282-BAJ-EWD, be and is hereby GRANTED.
IT IS FURTHER ORDERED that Chief Corcoran’s Second Motion To
Dismiss Pursuant To Rule 12(b)(6), appearing as Doc. 118 in Civil Action 20-
cv-00282-BAJ-EWD, be and is hereby GRANTED.

IT IS FURTHER ORDERED that Governor Edwards’s Motion To Dismiss
Plaintiffs’ First Amended And Supplemental Complaint On Remand From
Fifth Circuit, appearing as Doc. 119 in Civil Action 20-cv-00282-BAJ-EWD, be
and is hereby GRANTED.
IT IS FURTHER ORDERED that Chief Corcoran’s Motion To Dismiss
Pursuant To Rule 12(b)(6), originally appearing as Doc. 10 in Civil Action
21-cv-00423-BAJ-EWD, be and is hereby GRANTED.
IT IS FURTHER ORDERED that Sheriff Gautreaux’s Motion to Dismiss,
originally appearing as Doc. 11 in Civil Action 21-cv-00423-BAJ-EWD, be and

is hereby GRANTED.
IT IS FURTHER ORDERED that Governor Edwards’s Motion To Dismiss,
originally appearing as Doc. 13 in Civil Action 21-cv-00423-BAJ-EWD, be and
is hereby GRANTED.
IT IS FURTHER ORDERED that all federal claims set forth in Civil Actions
20-cv-00282-BAJ-EWD and 21-cv-00423-BAJ-EWD be and are hereby DISMISSED
WITH PREJUDICE.

IT IS FURTHER ORDERED that the Court declines to exercise
supplemental jurisdiction over any state law claims set forth in Civil Actions 20-cv-
00282-BAJ-EWD and 21-cv-00423-BAJ-EWD and that all such state law claims be
and are hereby DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §
1367(c).
A final judgment will be entered separately.

Baton Rouge, Louisiana, this 12th day of January, 2022

_____________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192115. Public record. Not legal advice.