Aug 22, 2023

PUBLISHED: | UPDATED: August 22, 2023 at 3:27 p.m. A San Jose church ordered  to pay $1.2 million in fines for defying public health mandates at the height of the pandemic is now suing Santa Clara County, accusing them of unconstitutionally surveilling the non-denominational Christian church and its congregants. The lawsuit, filed Tuesday in the United States District Court for the Northern District of California, by Calvary Chapel and its Pastor Mike McClure alleges the county “embarked on an invasive and warrantless geofencing operation to track residents.” “Our church believes in the rights and privacy of all our members,” McClure said in a statement about the lawsuit. Geofencing uses cell phone data to track its users’ movements. In late 2020 and early 2021, the county used third-party phone data to detect throngs of worshipers inside the Hillsdale Avenue church, according to court documents filed last November. The county’s COVID-19 Business Compliance Unit also parked a car in a neighboring church’s lot on numerous occasions for surveillance purposes. The county’s inspectors made 44 visits to the church between August 2020 and January 2021 and found congregants gathering maskless in large indoor crowds in defiance of public health orders as COVID-19 cases skyrocketed, previous court records showed. The county’s initial orders at the start of the pandemic banned all indoor gatherings. But by May 2020, the church began holding indoor services with anywhere from 100 to 600 maskless individuals . The county used data from the Denver-based company SafeGraph to compare the size of Calvary Chapel’s services from March 2020 to 2021 with other gatherings throughout the county, according to the November 2022 filing. In its lawsuit, the church accuses the county of using geofencing for over a year without a warrant — an operation they called “not just un-American,” but “downright Orwellian.” “This type of expansive geofencing operation is not only an invasion of privacy but represents a terrifying precedent if allowed to go unaddressed,” the lawsuit stated. Calvary Chapel alleges the county specifically targeted the church because of its “ongoing state enforcement action where it sought to weaponize potentially incriminating evidence against Calvary” and that the county has a “history of discrimination against religion and Calvary Chapel San Jose during the COVID-19 pandemic.” “The county consistently imposed harsher restrictions on churches and fined Calvary millions of dollars while overlooking other large gatherings,” the lawsuit said, specifically naming protests, weddings and graduation parties as other supposed offenders. SafeGraph, at the direction of the county, put up two geofences around the church: one around the lawn and parking lots that stretched to adjacent streets, and the other around the church’s buildings, which included the sanctuary, Calvary Christian Academy and ministry housing, according to the lawsuit. The church accuses the county of not narrowing the “search parameters of their geofencing operation,” which they claim allowed the county to gather data from congregants anywhere on the property, including classrooms, the sanctuary, the nursery and bathrooms. Mariah Gondeiro, an attorney for Advocates for Faith and Freedom, which filed the lawsuit on behalf of Calvary Chapel, said the suit was filed to ensure this never happens to another church again. “People of faith should never have to worry about the government spying on them in places of worship,” Gondeiro said in a statement. Former County Counsel James Williams, who took over earlier this year as county executive, previously defended the county’s use of geofencing, asserting it isn’t unusual for enforcement officials to use technology to ensure businesses are in compliance. He maintained, however,  the county did not track individuals’ cell phones at the church. A county spokesperson did not immediately respond to a request for comment. The county and Calvary Church have been locked in a legal battle since 2020 over public health rules. In 2020, the church sued the county, arguing that COVID-19 mandates violated its religious freedoms. In response, the county sued the church, arguing that they owed $2.87 million in fines for violating public health orders. In November 2020, a judge issued a temporary restraining order against the church for gathering despite the public health rules. Since then, the two parties have been engaged in several other back-and-forth legal tussles over the fines in local, state and federal courts. April’s ruling by Santa Clara County Superior Court Judge Evette D. Pennypacker for the church to pay $1.2 million in fines is the latest development in the saga. Though the county sought nearly $3 million in fines, the judge reduced the fine to a specific period — November 2020 to June 2021– when the church was not following the county’s mask policy.