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Although unpublished, the appellate court’s 53-page opinion marks a pivotal moment in the fallout from Covid policy.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.
