TONY RAMSEK, FRANK HARRIS, THEODORE JOSEPH ROBERTS, and TONY WHEATLY v. ANDREW G. BESHEAR, Governor of Kentucky, ERIC FRIEDLANDER, Acting Secretary of the…

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0053p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TONY RAMSEK, FRANK HARRIS, THEODORE JOSEPH
ROBERTS, and TONY WHEATLY,
Plaintiffs-Appellees,
v.
ANDREW G. BESHEAR, Governor of Kentucky, ERIC
FRIEDLANDER, Acting Secretary of the Cabinet for
Health and Family Services, and STEVEN STACK,
Commissioner for the Kentucky Department of Public
Health, in their official capacities only,
Defendants-Appellants.
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No. 20-5749
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 3:20-cv-00036—Gregory F. Van Tatenhove, District Judge.
Argued: January 12, 2021
Decided and Filed: March 3, 2021
Before: SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for
Appellants. Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC, Crestview
Hills, Kentucky, for Appellees. ON BRIEF: Taylor Payne, Travis Mayo, Laura Tipton, Amy
D. Cubbage, Marc Farris, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, Wesley W.
Duke, David T. Lovely, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort,
Kentucky, for Appellants. Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC,
Crestview Hills, Kentucky, Thomas B. Bruns, BRUNS, CONNELL, VOLLMAR &
ARMSTRONG, LLC, Cincinnati, Ohio, Robert A. Winter, Jr., Fort Mitchell, Kentucky, for
Appellees. Matthew F. Kuhn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,
Frankfort, Kentucky, for Amicus Curiae.
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_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Over the last year, governments at all levels have
employed a range of precautionary measures in an attempt to curb the COVID-19 pandemic. In
Kentucky, Governor Andrew Beshear’s pandemic response included instituting a “Mass
Gathering Order.” By its terms, the Order prevented groups larger than ten in number from
assembling for certain purposes.
Challenging that Order in federal court, plaintiffs alleged that the Order, both facially and
as applied, violated their First Amendment rights to free speech and assembly. Later
developments would reveal that, at least in an as-applied context, plaintiffs had been the victims
of a textbook First Amendment violation, given Governor Beshear’s content-based application of
the Order. For while Governor Beshear discouraged plaintiffs—through means including the
threat of prosecution—from holding a mass gathering at the State Capitol to express their views
opposing his COVID-19-related restrictions, he at the same time welcomed a large group of
Black Lives Matter protestors to the State Capitol, even going so far as to speak to those
protestors despite their plain violation of the Order.
On related grounds, the district court preliminarily enjoined enforcement of the Order.
But before that decision could be fully litigated before us, Governor Beshear withdrew the Order.
That action renders this appeal moot, as we are without a live controversy to resolve. To the
extent plaintiffs claim that a threat of prosecution for their past violations of the Order keeps the
broader case alive, we remand the case to the district court to determine what further relief, if
any, is proper.
BACKGROUND
Kentucky confirmed its first case of COVID-19 nearly a year ago, on March 6, 2020.
That same day, Governor Beshear declared a State of Emergency. See Ky. Exec. Order No.
2020-215. As part of his efforts to combat the emergency, Governor Beshear issued the
aforementioned Order prohibiting “mass gatherings.” “Mass gatherings” were broadly defined

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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; concerts;
festivals; conventions; fundraisers; and similar activities.” These activities were completely
prohibited under an initial version of the Order. In a revised version, Governor Beshear allowed
each of the proscribed activities to proceed so long as there were no more than ten participants.
Individuals who failed to comply with the Order were subject to criminal sanctions. See Ky.
Rev. Stat. Ann. § 39A.990.
While broad in scope, the Order left many activities unaffected. Locations permitted to
operate “normal[ly]” included “airports, bus and train stations, medical facilities, libraries,
shopping malls and centers, or other spaces where persons may be in transit” along with “typical
office environments, factories, or retail or grocery stores[.]” According to Governor Beshear,
those activities were exempted because of their “life-sustaining” nature.
1. An incident between Governor Beshear and, as they describe themselves, a group of
“opponents of the unconstitutional shutdown,” gave rise to this lawsuit. On April 15, 2020,
approximately 100 individuals, including Tony Ramsek, gathered on the grounds of the State
Capitol to protest Governor Beshear’s restrictions ordered in response to the COVID-19
pandemic. The protest coincided with Governor Beshear’s daily press briefing held to address
developing public health-related issues. Despite the press conference taking place inside the
State Capitol, the protestors’ voices could be heard in the background.
To prevent interference with future press conferences, the Kentucky State Police
restricted the public’s ability to access the side of the Capitol building where the Governor
delivered his daily briefings. Officers placed barriers around the area and attached a sign stating:
“Pursuant to 200 K.A.R. 3:020, the Kentucky State Police has deemed this area a restricted zone.
No one is permitted past this point. Failure to adhere to this Regulation may result in Criminal
Penalty under K.R.S. 511.070.” As an alternative to protesting on Capitol grounds, Governor
Beshear’s top health advisor authorized protestors to drive to the top floor of a public parking
garage to protest while remaining in their cars.

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Ignoring both that instruction as well as the Order, Ramsek and others continued to hold
in-person protests on and around the lawn of the State Capitol. And Governor Beshear, for his
part, did not shy away from expressing his disapproval of those acts. In response to a protest on
April 25, Governor Beshear denounced the protestors, referring to their activities as “illegal.”
During another press conference, Governor Beshear, responding to a reporter asking whether
protestors should “expect enforcement,” remarked, “we’ll see.” Nonetheless, Ramsek and others
continued to participate in protests on Capitol grounds.
2. As these events were unfolding at the State Capitol, Governor Beshear was entangled
in litigation challenging other aspects of the Order. On May 2, 2020, we granted an injunction
on appeal to allow faith-based mass gatherings that would otherwise have violated the Order, so
long as the gatherers remained in their vehicles. See Maryville Baptist Church, Inc. v. Beshear,
957 F.3d 610, 616 (6th Cir. 2020) (per curiam). A week later, we granted an injunction that
permitted in-person faith-based services that would otherwise have violated the Order. Roberts
v. Neace, 958 F.3d 409, 416 (6th Cir. 2020) (per curiam).
Not long thereafter, Ramsek and a handful of other “opponents of the unconstitutional
shutdown” filed suit to enjoin enforcement of the Order preliminarily and permanently to the
extent it prohibited protests by more than ten persons on Capitol grounds. According to Ramsek,
the Order, both on its face and in application, violated plaintiffs’ First Amendment guarantees of
assembly and free speech. The Order, Ramsek emphasized, allowed certain kinds of large
gatherings, for example, at a shopping mall or an accounting firm, but not at the State Capitol.
Ramsek also highlighted the specific protests he and others had engaged in at the Capitol, as well
as Governor Beshear’s response, which included placing blockades on Capitol grounds and
increasing the presence of State Police as well as instructing the protestors to stay in their
vehicles in a parking garage. The district court denied preliminary injunctive relief on the
ground that Ramsek did not have standing. The district court also denied an injunction pending
appeal.
Ramsek appealed those decisions to this Court. We in turn concluded that Ramsek had
standing and granted in part his motion for an injunction pending appeal. Ramsek v. Beshear,
No. 20-5542, at 3, 6 (6th Cir. May 23, 2020) (Order). As we explained there, Ramsek

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demonstrated a likelihood of success on the merits, at least in part, because the Order was likely
a content-based regulation of speech. Id. at 4. We thus enjoined Governor Beshear from
prohibiting protesters from gathering for drive-in and drive-through protests. Id. at 6. As to in-
person protests, however, in light of their unique risks as perceived at the time of appeal, we
could not say, “on . . . exceptionally short notice,” that such a ban failed strict scrutiny. Id. at 5.
But see id. at 6 (Suhrheinrich, J., concurring in part and dissenting in part) (maintaining that
limiting the injunction to in-car protests “does not go far enough in protecting the plaintiffs’
rights under the First Amendment” because “Kentucky’s citizens should be trusted to exercise
their First Amendment rights in a way that adheres to generally applicable public health
guidelines” (citations omitted)). We thus vacated the district court’s order and remanded the
case for additional findings of fact and conclusions of law “concerning a prohibition on in-person
protests and whether there are features of large in-person protests that distinguish them from
other mass gatherings, such as at retail venues, which the Order permits, and churches, which our
prior decisions permit.” Ramsek v. Beshear, No. 20-5542, at 1 (6th Cir. May 29, 2020) (Order).
3. An intervening series of events thickened the legal plot underlying Ramsek’s claims.
Less than two weeks after we preliminarily enjoined drive-in and drive-through protests, but
before the district court granted the preliminary injunction regarding in-person protests, a protest
in support of “Black Lives Matter” took place at the Capitol. During that demonstration,
hundreds of individuals gathered on the Capitol lawn. Yet far from attempting to dissuade this
group of protestors, Governor Beshear instead attended the rally, even going so far as to speak to
the large crowd assembled at the Capitol. And far from raising the specter of prosecution after
the fact, Governor Beshear instead tweeted a picture of him standing before the large, non-
socially distanced crowd on the Capitol lawn. A second picture showed him reaching over a
column to sign an autograph. Neither at the time of the protest nor during the course of this
litigation has Governor Beshear asserted that the Black Lives Matter protest was permitted under
his Order. Much to the contrary, his top health expert acknowledged that Governor Beshear in
fact violated the Order by attending the Black Lives Matter protest.
4. On June 24, the district court extended the preliminary injunction of the Order to in-
person protests. Ramsek v. Beshear, 468 F. Supp. 3d 904, 921 (E.D. Ky. 2020). Employing

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settled First Amendment principles, the court first determined that the Order, on its face, was
content-neutral, as the exempted conduct was not expressive in nature. Id. at 917–18. While
neutral in content, the Order, the district court concluded, was nonetheless not narrowly tailored,
id. at 918–19, and thus failed intermediate scrutiny. See Perry Educ. Ass’n v. Perry Loc.
Educators’ Ass’n, 460 U.S. 37, 45 (1983) (holding that content-neutral time, place, and manner
restrictions on speech must be “narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication”).
Governor Beshear appealed the decision. But before the case could be argued in this
Court, the Governor rescinded the Order. In response, we ordered briefing on whether a live
controversy exists. On that front, Ramsek argues that the case is not moot because he could still
be prosecuted for his prior violations of the Order. As a result, he says, this case is not moot
while the statute of limitations has yet to run. Governor Beshear, on the other hand, believes the
case is moot because the Order is “off the books,” and because he has asserted that he would not
enforce the Order against those engaging in expressive conduct. Nonetheless, Governor Beshear
asks that we vacate the preliminary injunction. He cites two grounds to support that request.
One is that the equities favor vacatur. The other is that “the injunction would continue to have
an ‘adverse effect’ on Defendants and the people of the Commonwealth they represent” were it
permitted to stand, a claim Governor Beshear makes despite likewise disclaiming any future
attempt to resuscitate the Order.
ANALYSIS
1. At the heart of Ramsek’s case is a claim that Governor Beshear’s Mass Gatherings
Order violated his right to assemble and to free speech protected by the First Amendment to the
United States Constitution. Those bedrock constitutional guarantees ensure “the opportunity for
free political discussion, to the end that government may be responsive to the will of the people
and that changes, if desired, may be obtained by peaceful means.” De Jonge v. Oregon, 299 U.S.
353, 365 (1937) (holding that a state may not violate the right to peacefully assemble). Ramsek
claims that the Order was unconstitutional on its face, meaning that, in the First Amendment
context, he must “demonstrate . . . that a substantial number of instances exist in which the [law]
cannot be applied constitutionally.” Speet v. Schuette, 726 F.3d 867, 873 (6th Cir. 2013)

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(internal quotation omitted). He likewise claims that the Order was unconstitutional in its
application in that enforcement of the Order was threatened against him based solely on the
content of his speech.
As to the latter claim, Ramsek highlights the fact that while the Order was used as a
means to discourage him and his colleagues from protesting at the State Capitol to oppose
Governor Beshear’s COVID-19-related measures, it was not invoked against Black Lives Matter
protestors who engaged in a similar effort, albeit with a different message, one that sought to
bring awareness to the use of violence against the Black community. Notable here is the fact that
Ramsek’s claims turn on Governor Beshear’s very own actions. At the same time he left open
the possibility of an enforcement action against Ramsek and his fellow “anti-lockdown”
protestors due to their gathering on Capitol grounds, Governor Beshear personally greeted the
Black Lives Matter protestors when they gathered at the Capitol. In fact, Governor Beshear went
so far as to speak to the latter group, and to later promote through social media their protest and
his participation therein. Threatening sanctions based upon the content of a group’s political
speech is a quintessential violation of the rights of free speech and assembly.
We cannot reach a claim’s merits, however, if there is no case or controversy. See U.S.
CONST. art. III, § 2. For instance, if a case is moot, we lack jurisdiction to proceed. Ohio v.
EPA, 969 F.3d 306, 308 (6th Cir. 2020) (“[U]nder Article III, the ‘federal courts are without
power to decide questions that cannot affect the rights of litigants in the case before them.’”
(quoting DeFunis v. Odegaard, 416 U.S. 312, 316 (1974))). To assess whether a case is moot,
we ask “whether the relief sought would, if granted, make a difference to the legal interests of
the parties.” McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir.
1997) (en banc) (quoting Crane v. Ind. High Sch. Athletic Ass’n, 975 F.2d 1315, 1318 (7th Cir.
1992))).
Governor Beshear contends that this appeal is now moot in light of his decision to rescind
the Order. In the district court, Ramsek secured a preliminary injunction of the Order, the
purpose of which “is to prevent any violation of [Ramsek’s] rights before the district court enters
a final judgment.” See Ohio, 969 F.3d at 309. Whether Governor Beshear’s appeal of the
preliminary injunction is moot thus “depends on whether there remains a reasonable possibility

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that the [Order] will again become effective in [Kentucky] while this case remains pending in the
district court.” See id. Given Governor Beshear’s representations that he has no intention to
reinstate the Order (or similar restrictions), the answer is no. With the lifting of the Order,
Ramsek has achieved the relief he sought through this litigation—the Order is “off the books,”
Pleasant View Baptist Church v. Beshear, No. 20-6399, 2020 WL 7658397, at *1 (6th Cir. Dec.
21, 2020), and Ramsek is free to protest in groups greater than ten, subject to health and safety
precautions. And, critically, we see no reasonable possibility that that the Order will be
reinstated while the district court considers any remaining matters.
2. While the appeal of the preliminary injunction decision has been mooted by the
Order’s withdrawal, that does not necessarily render the entire case moot. After all, mootness as
to this appeal may not speak to mootness of the underlying case. See Ohio, 969 F.3d at 309
(citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 394–95 (1981)) (emphasizing “the distinction
between mootness as to a preliminary-injunction appeal and mootness as to the case as a
whole”). As to the underlying case, Ramsek believes that a live dispute remains. All parties
agree that Ramsek violated an executive order, a misdemeanor under Kentucky Revised Statute
§ 39A.990, which carries a one-year statute of limitations. Ky. Rev. Stat. Ann. § 500.050(2).
Believing that a law’s repeal does not immunize a past violator from prosecution, Ramsek
worries that until that one-year period expires, the threat of prosecution lives on, necessitating
final injunctive relief. Cf. Ky. Rev. Stat. Ann. § 446.110 (explaining that the repeal of a law
does not vacate prior offenses against it).
That worry gives us enough pause to decline to find the entire case moot. We accept
Governor Beshear’s representation that he will not enforce the Order against Ramsek (or any
others who engaged in expressive conduct that violated the Order). But enforcement of the
Order to discourage or halt protesting differs from prosecuting one for violating the Order. And
it is not clear that Governor Beshear has the authority to control prosecution decisions. The
Kentucky State Police seemingly could file a criminal complaint and seek to arrest Ramsek for a
past violation on its own accord. See Ky. R. Cr. P. (Rcr) 2.02, 2.04. And Kentucky county
attorneys, not the Governor, prosecute misdemeanor violations. See Ky. Rev. Stat. Ann.
§ 69.210; Commonwealth v. Vibbert, 397 S.W.3d 910, 915 (Ky. Ct. App. 2013) (“As a rule, the

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county attorney is responsible for prosecuting all misdemeanors . . . .”). Governor Beshear’s
commitment, in other words, may not give Ramsek the security he deserves.
It bears noting, however, that as currently postured, the federal courts may not be
positioned to grant Ramsek the freedom he seeks from the threat of arrest and prosecution.
Neither the Kentucky State Police nor any county attorney in the Commonwealth is a party to
this suit. Given the uncertainty over these various underlying questions surrounding the threat of
prosecution, we withhold judgment on whether the case as a whole is moot, whether any
amendment to the complaint is appropriate, and whether further injunctive relief is necessary to
protect Ramsek’s rights. The district court, in the first instance, can wade through these and any
other remaining issues between the parties on remand. E.g., Compl. at ¶ 98, Ramsek, 468 F.
Supp. 3d at 904 (requesting attorney fees and costs).
3. Having concluded that the appeal is moot, we turn to Governor Beshear’s request that
we vacate the preliminary injunction. As the Supreme Court has explained in its Munsingwear
line of cases, “[a] party who seeks review of the merits of an adverse ruling, but is frustrated by
the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” U.S.
Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994); see also United States v.
Munsingwear, Inc., 340 U.S. 36, 39–40 (1950). The Munsingwear doctrine serves to prevent a
lower-court judgment from having preclusive effect when the merits are unable to be considered
on appeal. See Radiant Glob. Logistics, Inc. v. Furstenau, 951 F.3d 393, 397 (6th Cir. 2020) (per
curiam). And according to Governor Beshear, the “vagaries of circumstance” associated with
the fluid COVID-19 pandemic required the Order to be lifted, leaving it unfair to allow the
injunction to stand despite being mooted.
Two considerations, however, weigh against Governor Beshear’s request. One is that we
typically do not vacate a preliminary injunction in that it “has no preclusive effect.” Id.
(quotation omitted). Another is that equity does not support vacatur when the losing party is the
cause of a case becoming moot. See U.S. Bancorp Mortg. Co., 513 U.S. at 25. Having lost in
the district court, Governor Beshear then withdrew the Order before his appeal could be
resolved, vitiating the need for this Court to examine the lawfulness of the preliminary
injunction. With that in mind, it would be unfair to then reward Governor Beshear by vacating

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the district court’s preliminary injunction ruling, which the Governor asserts is harmful to his
interests. Id. (“The denial of vacatur is merely one application of the principle that ‘[a] suitor’s
conduct in relation to the matter at hand may disentitle him to the relief he seeks.’” (quoting
Sanders v. United States, 373 U.S. 1, 17 (1963))). Governor Beshear, in other words, cannot use
his withdrawal of the Order as both a shield to defend (on mootness grounds) against Ramsek’s
request that we affirm the preliminary injunction, and then as a sword to strike it down through
vacatur of the decision in the district court. Because Governor Beshear’s action mooted this
appeal, he is not entitled to Munsingwear vacatur. We therefore decline to vacate the
preliminary injunction.
CONCLUSION
We dismiss this appeal for lack of jurisdiction, as the appeal is now moot. We remand
the case to the district court to decide what further relief, if any, is appropriate.

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