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California Court Reversal On Covid Vaccine Mandates Provides A Roadmap For Fighting Medical Tyranny
The Federalist ^ | 06/27/2023 | Scott J. Street

Posted on 06/27/2023 9:27:46 PM PDT by SeekAndFind

The 53-page opinion provides a framework for defeating mandates now and in the future.

Last week, a three-judge panel on California’s Second District Court of Appeals revived a case brought by a group of Los Angeles firefighters who challenged the City of Los Angeles’ Covid-19 vaccine mandate. The decision reversed a lower court’s ruling that dismissed the case because the judge found the firefighters’ allegations regarding the safety and efficacy of the Covid shots implausible, ignoring the settled rule that, at the pleading stage, judges must accept all factual allegations as true.

(Disclaimer: I am one of the lawyers representing the firefighters in this case and the lawyer primarily responsible for drafting the appeal.)

Although unpublished, the appellate court’s 53-page opinion marks a pivotal moment in the fallout from Covid policy. As I have written before, leftist institutions such as the American Civil Liberties Union and the California judiciary have always championed individual freedom, even in emergency situations (“emergency” being a term of art that is subject to manipulation, of course). In fact, the lower-court judge in the firefighters’ case, Michael Linfield, wrote a book about this. He quoted two of the United States’ most liberal jurists, William Brennan and Thurgood Marshall, who wrote in a famous dissent that “grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

Unfortunately, the left abandoned their principles during the pandemic. We might have expected that from politicians like California Gov. Gavin Newsom and President Joe Biden, establishment puppets who lacked the discipline or intellectual curiosity to question public health alarmists. (I litigated one of the first successful lockdown-related cases against Newsom, for a coalition of gym owners who challenged California’s arbitrary closure of gyms during the early stages of the pandemic.) Judges should have known better. After all, the California Code of Judicial Ethics requires that they “uphold the integrity and independence of the judiciary.” It requires that they “perform the duties of judicial office impartially, competently and diligently.”

At minimum, that meant applying California’s pleading standards faithfully. Those standards are famously low, lower than the federal standards, which the Supreme Court, led by its conservatives, keeps heightening. In a California state court, a plaintiff who pays the filing fee and alleges facts that, assumed to be true, state any plausible claim, gets to gather evidence and present that evidence to a judge or jury. He gets his day in court.

Criticism of Appellate Court

Linfield did not do that in the firefighters’ case. The appellate court criticized the judge’s efforts to circumvent California’s pleading rules in taking judicial notice that the Covid shots are “safe and effective.” The appellate court noted that “the court did not explain what it meant by ‘safe’ or ‘effective.’”

For example, many of the government documents the City of L.A. had relied on in the case said public health officials did not know how effective the Covid shots would be, especially against the omicron variant, much less future Covid variants. And, as to the shots’ safety, the court of appeal explained that “the documents the trial court judicially noticed repeatedly stated the vaccines were ‘safe,’ but they also acknowledged ‘common side effects’ and ‘rare’ but ‘serious safety problems.’”

That echoes something my partners and I said throughout the pandemic: How can a medical treatment be “safe and effective” if there are known side effects and potentially serious safety issues? How can it be unreasonable for people — especially firefighters, who must meet rigorous fitness standards — to say they do not want to put that substance in their body? And how can judges, especially judges in California, which has a state constitutional right to privacy that explicitly protects a person’s interest in bodily autonomy, ignore those concerns? How can they kick those people out of court before they have had a chance to litigate?

I don’t think there is any one reason for that — although in Linfield’s case, political bias seemed apparent (he compared people who question the safety and effectiveness of the Covid shots to Trump supporters who question the 2020 election results). This decision should set them straight. Although unpublished, it reads like a published opinion and provides a roadmap for people to challenge Covid mandates in California.

The opinion also clarifies something that has been lost in the details of Covid litigation: State and federal law are not identical. They may be similar, but they are not the same, especially in the early stages of litigation. Those differences can be dispositive in a tough case like this one.

Finally, remember that appeals provide an important check on arbitrary exercises of judicial power. They can take time but, with the right lawyers and judges who care about the law, they are often worth it. And with the Covid pandemic behind us, they should provide us with more decisions like this one, decisions that dig into the details and that properly recognize the scope of individual freedom in America, especially as it relates to personal autonomy.


Scott Street is a Democratic lawyer and consultant in Los Angeles. He regularly writes about legal and political issues.


TOPICS: Culture/Society; Front Page News; Government; News/Current Events; US: California
KEYWORDS: bigpharma; california; californication; covaxtruth; covid; covid1984; covidtruth; mandates; scamdemic; tyranny; vaccine; vaccinemandate

1 posted on 06/27/2023 9:27:46 PM PDT by SeekAndFind
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To: SeekAndFind

What is a democratic lawyer?

He might be a democrat lawyer, but he represents unions and smells money, rightfully so


2 posted on 06/27/2023 9:35:46 PM PDT by algore
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To: SeekAndFind

bookmark


3 posted on 06/27/2023 11:47:09 PM PDT by dadfly
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To: SeekAndFind

ping


4 posted on 06/28/2023 5:18:41 AM PDT by gleeaikin (Question authority!.)
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To: SeekAndFind; 2ndreconmarine; Fitzcarraldo; Covenantor; Mother Abigail; EBH; Dog Gone; ...
Infectious Disease ping ; Article of legal interest and especially "emergency conditions" imposed

SeekAndFind :
(From the article) :" The 53-page opinion provides a framework for defeating mandates now and in the future.

5 posted on 06/28/2023 6:40:11 AM PDT by Tilted Irish Kilt
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To: SeekAndFind

.


6 posted on 06/28/2023 9:22:12 AM PDT by sauropod (“If they don’t believe our lies, well, that’s just conspiracy theorist stuff, there.”)
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To: SeekAndFind

Thanks for providing a direct link to the decision itself. Interesting reading, that.


7 posted on 06/28/2023 11:10:19 AM PDT by zeugma (Stop deluding yourself that America is still a free country.)
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To: SeekAndFind
Excerpt from the ruling...

“Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, § 7.) Apart from this limitation, the ‘police power [of a county or city] under this provision . . . is as broad as the police power exercisable by the Legislature itself.’” (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885; see Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, 1118.) A county or city “may use its police powers to do ‘“whatever will promote the peace, comfort, convenience, and prosperity” of [its] citizens . . . , [and these powers] should “not be lightly limited.”’” (San Diego County Veterinary Medical Assn. v. County of San Diego (2004) 116 Cal.App.4th 1129, 1135.) When a county’s or city’s action “‘is challenged as not being a valid exercise of police power, all presumptions favor its validity, and it will be upheld unless its unconstitutionality clearly and unmistakably appears.’” (Ibid.)

Courts will ordinarily uphold an ordinance enacted under a city’s police powers if the ordinance satisfies two requirements: (1) “‘it is reasonably related to promoting the public health, safety, comfort, and welfare’” and (2) “‘the means adopted to accomplish that promotion are reasonably appropriate to the purpose.’” (Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 72 (Sunset Amusement); accord, Duarte Nursery, Inc. v. California Grape Rootstock Improvement Com. (2015) 239 Cal.App.4th 1000, 1009.) Thus, “[i]n determining the validity of a legislative measure under the police power our sole concern is with whether the measure reasonably relates to a legitimate governmental purpose,” and legislation “is within the police power if its operative provisions are reasonably related to the accomplishment of” that purpose. (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 158, 160 (Birkenfeld).)

Personally, I find this wording to be frightening in breadth. Sure seems to me that all but the most evil, and draconian would be upheld as a "police power". No wonder this country is becoming such an authotarian craphole.

8 posted on 06/28/2023 11:41:36 AM PDT by zeugma (Stop deluding yourself that America is still a free country.)
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To: SeekAndFind

good article,thanks
i hope everyone who fired someone or threatened one’s job over a vax mandate can get at least 1 year in prison.


9 posted on 06/28/2023 11:58:30 AM PDT by CarolinaReaganFan
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