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Case Name High Plains Harvest Church v. Polis FA-CO-0009
Docket / Court 1:20-cv-01480 ( D. Colo. )
State/Territory Colorado
Case Type(s) Speech and Religious Freedom
Special Collection COVID-19 (novel coronavirus)
Case Summary
COVID-19 Summary: This is a suit brought by a church against the State of Colorado's enforcement of stay-at-home orders, including the policy prohibiting in-person religious activities. Following a Supreme Court decision denying a similar application for injunctive relief, plaintiffs withdrew their ... read more >
COVID-19 Summary: This is a suit brought by a church against the State of Colorado's enforcement of stay-at-home orders, including the policy prohibiting in-person religious activities. Following a Supreme Court decision denying a similar application for injunctive relief, plaintiffs withdrew their request for injunctive relief. They later filed an amended complaint and a renewed motion for TRO and preliminary injunction, which was denied on June 16.


The "safer at home" executive orders issued by Colorado Governor Jared Polis in response to the outbreak of COVID-19 prohibited religious gatherings of over 10 people. High Plains Harvest Church, a small, rural church, and one of its pastors alleged that the orders violated their First and Fourteenth Amendment rights. Represented by private counsel, plaintiffs sued Governor Polis and the Executive Director of the Colorado Department of Public Health and Environment in the U.S. District Court for the District of Colorado under 42 U.S.C.§ 1983 on May 25, 2020. The plaintiffs, who simultaneously filed a motion for temporary restraining order (TRO), sought declaratory and injunctive relief, as well as attorneys' costs and fees. The case was assigned to Judge Raymond P. Moore and Magistrate Judge Michael E. Hegarty.

The plaintiffs alleged that the executive orders were unconstitutional both facially and as-applied, violating their freedom of religion, freedom of speech, and equal protection rights. The plaintiffs asserted that the orders burdened their sincerely held religious beliefs by "permit[ing] other similarly situated businesses or non-religious entities to continue while prohibiting faith-based gatherings." Moreover, the plaintiffs claimed that the orders violated their "freedom of speech by prohibiting them from engaging in religious speech through their church services." Finally, plaintiffs contended that the orders, which permitted "critical businesses" such as grocery, gun, and hardware stores to remain open, violated their equal protection rights by "impermissibly discriminat[ing[ between certain non-religious gatherings and religious or faith-based gatherings." Plaintiffs sought an injunction or TRO enjoining defendants from enforcing the executive orders against plaintiffs and an order declaring the orders unconstitutional. 2020 WL 2630282.

In their May 28 response to the motion for TRO, defendants asserted that "the purpose of these orders is to protect the public from the COVID-19 pandemic," not to target or discriminate against plaintiffs' first amendment rights. Defendants argued that the plaintiffs had "no reasonable likelihood of success on the merits of their claims" because the orders were enacted in good faith and in furtherance of public safety.

The next day, the United States Department of Justice filed a statement of interest, stating that "The Court should grant the plaintiffs’ motion for a temporary restraining order, and Plaintiffs’ group prayer should be allowed to proceed without fear of prosecution." The DOJ explained "that because Colorado appears to be treating similarly situated non-religious activity, such as in-person dining in restaurants, better than places of worship these actions may constitute a violation of the church’s constitutional right to the free exercise of religion."

That same day, the Supreme Court, in South Bay United Pentecostal Church v. Newsom, denied an application for injunctive relief similar to the relief sought in this case. There, the Supreme Court stated that the "restrictions [on places of worship] appear consistent with the Free Exercise Clause of the First Amendment."

On May 30, in light of the Supreme Court's decision, the plaintiffs withdrew the request for preliminary relief. On June 1, the defendants filed a status report containing draft guidelines for restrictions on places of worship. The guidelines suggested an indoor capacity of no more than 50% or 50 people, along with social distancing, masks, and sanitation measures.

In the next few days, thousands of people protested police violence. On June 10, the plaintiffs filed an amended complaint, alleging that the defendants “permitted and encouraged these protest gatherings while continuing to impose draconian restrictions on religious gatherings.” Concurrently, they filed a renewed motion for a temporary restraining order and a preliminary injunction.

The court denied the motion on June 16, stating that the "notion that the non-enforcement of social distancing during a protest means that the State is engaged in a variety of constitutional misconduct directed at religious institutions is far from apparent" and that "the assertion that Defendants are treating Plaintiffs differently from comparable secular gatherings is 'improbable.'"

On June 30, the plaintiffs filed yet another motion for a preliminary injunction, which again focused on the ongoing mass protests against law enforcement. The plaintiffs' argued that the state's refusal to stop the protests amounted to a de facto exemption to a public health order. The plaintiffs alleged that the exemption made enforcement of the order against the plaintiffs unjustified. The court again denied to provide preliminary relief on August 10, 2020. The court again cited South Bay United Pentecostal Church v. Newsom, in addition to Calvary Chapel Dayton Valley v. Sisolak. 140 S.Ct. 2603. While the plaintiffs attempted to distinguish the earlier cases on the ground that this case involved public officials discriminating against plaintiffs in favor of protestors. However, the court did not find this argument compelling, stating that it found an even stronger reason to distinguish between religious services and mass protests than the basis to distinguish between religious services and secular gathering places such as bars, casinos, and gyms. Since challenges to the latter distinctions had been denied preliminary relief by the Supreme Court, the court here denied preliminary relief against the former. The court also found no evidence that the state had encouraged protests or created any de facto exemptions to its orders. The court therefore concluded that the plaintiffs had failed to establish a likelihood of success on the merits of their case and denied the motion.

On August 11, 2020, the plaintiffs' appealed the denial of the preliminary injunction to the Tenth Circuit (USCA Case Number 20-1280) and moved for a preliminary injunction pending the appeal in the district court. In their motion in the district court, the plaintiffs reiterated their earlier arguments for a preliminary injunction. Since the standard for an injunction pending appeal is the same as the standard used in evaluating motions for preliminary injunctions, the district court denied the motion for an injunction pending appeal on August 18. Three days later, the plaintiffs moved for an injunction pending appeal in the Tenth Circuit.

On November 11, 2020, the Tenth Circuit denied the plaintiffs' motion for an injunction pending the appeal. 835 Fed.Appx. 372. The court reasoned that the plaintiffs had failed to make a strong showing that they were likely to succeed on the merits of the appeal. The Tenth Circuit, using the same standard as it would when reviewing the grant or denial of a preliminary injunction, analyzed whether the district court had abused its discretion in denying the preliminary injunction. The court found that the plaintiffs had not shown that the district court erred in its factual finding that the defendants had not created a de facto exemption from public health orders for the protests. The court concluded that the plaintiffs had failed to show that the public health orders are subject to heightened scrutiny or that they were likely to succeed on the merits of their constitutional claims under a lesser level of scrutiny.

On December 4, 2020, the plaintiffs applied to the Supreme Court for injunctive relief through Justice Gorsuch. On December 15, the Supreme Court, construing the application as a writ of certiorari, vacated the district court's denial of a preliminary injunction and remanded the case to the Tenth Circuit with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63. Justices Kagan, Breyer, and Sotomayor dissented from the order. Justice Kagan, writing for the dissenters, stated that the case was moot since Colorado had lifted all capacity limits on worship services.

Back in the district court, the plaintiffs filed a notice of settlement and a request for a stay in the case on January 15, 2021. On the same day, the court temporarily stayed the case until February 15, 2021. On February 12, the parties stipulated to a dismissal of the action without prejudice. The court dismissed the case the same day. The Clearinghouse does not have access to the private settlement at this time.

The case is now closed.

Aaron Gurley - 06/05/2020
Averyn Lee - 06/20/2020
Nicholas Gillan - 12/01/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Equal Protection
Free Exercise Clause
Freedom of speech/association
Content of Injunction
Preliminary relief denied
Defendant-type
Hospital/Health Department
Discrimination-area
Accommodation / Leave
Discrimination-basis
Religion discrimination
General
Religious programs / policies
Plaintiff Type
Non-profit religious organization
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Executive Director of the Colorado Department of Public Health and Environment
Governor of Colorado
Plaintiff Description A small church in Colorado and one of its pastors
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Form of Settlement Private Settlement Agreement
Voluntary Dismissal
Filed 05/25/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
D. Colo.
10/26/2021
1:20-cv-1480
FA-CO-0009-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D. Colo.
05/25/2020
Verified Complaint [ECF# 1]
FA-CO-0009-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
05/28/2020
Reply in Support of Plaintiffs' Motion for Temporary Restraining Order and Motion for Preliminary Injunction [ECF# 26]
FA-CO-0009-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
05/29/2020
The United States' Statement of Interest in Support of Plaintiffs' Motion for Temporary Restraining Order and Motion for Preliminary Injunction [ECF# 28]
FA-CO-0009-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/10/2020
Verified First Amended Complaint [ECF# 34 (& 34-1 to 34-3)]
FA-CO-0009-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/10/2020
Plaintiffs' Renewed Motion for Temporary Restraining Order and for Preliminary Injunction [ECF# 35 (& 35-1)]
FA-CO-0009-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/12/2020
State Defendants' Opposition to Plaintiffs' Renewed Motion for Temporary Restraining Order and For Preliminary Injunction [ECF# 39 (& 39-1 to 39-13)]
FA-CO-0009-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/16/2020
Order [ECF# 41] (2020 WL 3263902)
FA-CO-0009-0007.pdf | WESTLAW | Detail
show all people docs
Judges Hegarty, Michael E. (D. Colo.) [Magistrate] show/hide docs
FA-CO-0009-9000
Moore, Raymond Paul (D. Colo.) show/hide docs
FA-CO-0009-0007 | FA-CO-0009-9000
Plaintiff's Lawyers Arrington, Barry Kevin (Colorado) show/hide docs
FA-CO-0009-0001 | FA-CO-0009-0002 | FA-CO-0009-0004 | FA-CO-0009-0005 | FA-CO-0009-9000
Defendant's Lawyers Buckley, Emily B. (Colorado) show/hide docs
FA-CO-0009-0006 | FA-CO-0009-9000
Hanlon-Leh, Natalie Marie (Colorado) show/hide docs
FA-CO-0009-0006 | FA-CO-0009-9000
Kuhn, W. Eric (Colorado) show/hide docs
FA-CO-0009-0006 | FA-CO-0009-9000
Lorch, Ryan K. (Colorado) show/hide docs
FA-CO-0009-0006 | FA-CO-0009-9000
Olson, Eric (Colorado) show/hide docs
FA-CO-0009-0006 | FA-CO-0009-9000
Weiser, Philip J. (Colorado) show/hide docs
FA-CO-0009-0006
Other Lawyers Dreiband, Eric S. (District of Columbia) show/hide docs
FA-CO-0009-0003
Dunn, Jason R. (Colorado) show/hide docs
FA-CO-0009-0003
Maugeri, Alexander V. (Colorado) show/hide docs
FA-CO-0009-0003
Treene, Eric W. (District of Columbia) show/hide docs
FA-CO-0009-0003 | FA-CO-0009-9000

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