June 4, 2024 – Racine’s mayor did not violate the First Amendment when he denied COVID-19 relief funds to a businessman because the businessman attended a rally protesting Gov. Evers’ “Safer at Home” order, the U.S. Court of Appeals for the Seventh Circuit has ruled.

In Navratil v. City of Racine, No. 23-1208 (May 6, 2024), the Seventh Circuit Court of Appeals also held that denial of the funds was not a violation of substantive or procedural due process.

No Grant for Gift Shop

On March 25, 2020, Gov. Evers issued the “Safer at Home” order which allowed people to go out in public only for essential activities.

In March 2020, after the onset of the pandemic, Denis Navratil applied for an emergency grant from the City of Racine (City) for the gift store he owns with his wife Dimple.

Cory Mason, the City’s mayor, met with an ad hoc committee to review whether grant applications met objective criteria established by the City.

Mason had sole discretion in awarding the grants, and the City did not make grants to every business that met the objective criteria. The Navratils’ business did not receive a grant from the City.

Rally at State Capitol

On April 24, 2020, Navratil applied again for a grant. That was the same day that Navratil attended a rally at the state capitol.

The rally was organized by people opposed to the restrictions imposed by the governor’s Safer at Home order. The state had denied a permit for the rally because the rally violated the Safer at Home order.

While at the rally, Navratil gave an interview to a TV crew. During the interview, Navratil said he thought that the Safer at Home order was hurting small businesses.

Mason saw a broadcast of Navratil’s interview.

‘No’ to Second Grant Application

The City denied the Navratils’ second grant application on May 12, 2020. The next day, the Wisconsin Supreme Court struck down the Safer at Home order.

On June 26, 2020, Mason told The Racine Journal-Times that he’d denied the Navratils’ second grant application because Denis Navratil had attended the April 24 rally at the state capitol.

Mason later told Dimple Navratil that he’d turned down the Navratils’ second grant application because her husband had attended the April 24 rally.

Federal Lawsuit

The Navratils and their LLC, Dimple’s LLC, sued the City in the U.S. District Court for the Eastern District of Wisconsin.

The Navratils claimed that by denying their grant application because Denis Navratil had attended the rally, the City had violated their constitutional rights of free speech, equal protection, and due process.

The district court dismissed some of the claims and granted summary judgment to the City on the others. The Navratils appealed.

Rally Not Protected Speech

Writing for a three-judge panel, Judge David Hamilton concluded that Navratil’s First Amendment claims failed because Navratil’s attendance at the rally wasn’t protected speech – the rally was subject to valid time, place, and manner restrictions.

Those restrictions were the Safer at Home order and the permit requirement.

“The First Amendment protects freedom of speech, the right to assemble peaceably, and the right to petition the government redress of grievances, but those rights are not absolute,” Hamilton wrote.

Navratil argued that the Safer at Home order was too broad to constitute a reasonable time, place, and manner restriction because it banned public gatherings.

“With the benefit of hindsight and additional scientific evidence, we assume that reasonable minds might disagree on whether any particular restrictions among those early responses were the most effective means of stopping the spread of COVID-19,” Judge Hamilton wrote.

“But our analysis is focused on what state and local officials knew at the time.”

Navratil also argued that his attendance at the rally was protected by the First Amendment because the Wisconsin Supreme Court struck down the Safer at Home order after he attended the rally.

But Hamilton turned aside that argument.

“The Safer at Home Order’s later invalidation on state law grounds does not retroactively render Denis’ attendance at the rally protected First Amendment activity,” Judge Hamilton wrote.

No Political Animus

Navratil’s Fourteenth Amendment claims proceeded upon a theory that Mason’s denial of the second grant application was driven by political animus.

Navratil pointed to testimony by the city administrator that Mason had said, during the deliberations of the ad hoc committee on the second round of grant applications, that if he “had anything to say, that [Dimple’s LLC] wouldn’t get a grant.”

“That comment is not evidence of political animus, but only further confirmation that Dimple’s LLC was denied emergency funding due to Denis’ rally attendance,” Hamilton wrote.

The administrator also testified that he thought Mason’s decision on the Navratils’ grant application was political because it was mostly Republicans who opposed the Safer at Home Order and Mason has ties to the Democratic Party.

“[The administrator’s] statement that Dimple’s LLC grant denial was politically motivated was no more than conjecture and supposition that a Democratic mayor must necessarily have animus toward a Republican constituent,” Judge Hamilton wrote.

No Due Process Violation

Judge Hamilton concluded that Navratil’s procedural due process claim failed because he had no property interest in the City grant, which was a discretionary government benefit.

On the substantive due process claim, Navratil argued that the City’s denial of the second grant application because of his attendance at the rally “shocked the conscience.”

But that was an extraordinarily high standard, Hamilton explained – one applicable “only to the most egregious official conduct.”

“It was not unreasonable, and certainly not conscience-shocking, for the City to decide that a business whose key employee violated COVID-19 restrictions should not receive limited COVID-19 emergency funding,” Judge Hamilton wrote.