Appeals Court Revives Case Against COVID-19 Vaccine Requirement

Authored by Zachary Stieber via The Epoch Times (emphasis ours),

A U.S. appeals court on June 18 revived a case against a COVID-19 vaccine mandate issued by a city in Washington state under a proclamation from state officials.

A man received a dose of the Pfizer COVID-19 vaccine in downtown Seattle on Jan. 24, 2021. (Grant Hindsley/AFP via Getty Images)

Firefighters who applied for exemptions to the Spokane mandate “plausibly assert that the individual city defendants applied the proclamation arbitrarily and capriciously, and that they thereby showed callous disregard to the firefighters’ Free Exercise rights,” U.S. Circuit Judge Ryan Nelson wrote in the ruling.

Spokane officials imposed the mandate on health care providers after Washington Gov. Jay Inslee, in a 2021 proclamation, ordered providers to be fully vaccinated against COVID-19. Spokane firefighters have emergency medical technician licenses, so they fell under the mandate.

Firefighters who submitted exemptions on religious or medical grounds sued the city and state after the city refused to accommodate them. City officials said that employing unvaccinated personnel would delay emergency response times, posing a scenario where an unvaccinated technician was dispatched to a patient requiring hands-on care. The unvaccinated technician could not “safely … provide” the care, “negatively impact[ing] response time and likely requir[ing] the city to dispatch additional resources,” lawyers for the city said in a brief.

Dr. Joel Edminister, medical director for the Spokane Fire Department, said that science supported imposing the mandate to achieve herd immunity, pointing to a non-peer-reviewed paper from the U.S. Centers for Disease Control and Prevention that concluded, in one county in California for about two months, unvaccinated people comprised most of the known COVID-19 cases and hospitalizations.

The firefighters disagreed. Some of them recovered from COVID-19, giving them immunity similar to that conferred by vaccination, they said in a brief. The city could have also accommodated them by moving them to different roles or requiring testing and masking in lieu of vaccination, they said.

Several neighboring cities granted accommodations to firefighters, plaintiffs noted, and under pre-existing agreements, those cities send firefighters to Spokane to work at certain times. That means Spokane firefighters were being treated differently than firefighters from outside the city, in violation of the U.S. Constitution’s 14th Amendment, the firefighters said in their complaint.

U.S. District Judge Thomas Rice ruled in favor of the city and state officials in 2022. He said the mandate served “a legitimate government purpose, which is to slow the spread of COVID-19” and that the proclamation applied to all city employees, meaning it did not violate the 14th Amendment’s equal protection clause.

“Plaintiffs cannot overcome the Proclamation’s legitimate purpose with complaints that the availability of accommodations within the City of Spokane differ from those available elsewhere,” Judge Rice wrote.

That decision was erroneous, Judge Nelson, writing for a panel of the U.S. Court of Appeals for the Ninth Circuit, said in the new ruling.

“Spokane implemented a vaccine policy from which it exempted certain firefighters based on a secular criterion—being a member of a neighboring department—while holding firefighters who objected to vaccination on purely religious grounds to a higher standard,” Judge Nelson wrote.

“Had Spokane subjected unvaccinated out-of-department firefighters to the same standard, its implementation of the vaccine policy might well be generally applicable. But that is not this case. By continuing to work with unvaccinated firefighters from surrounding departments, Spokane undermined its interest and destroyed any claim of general applicability.”

A policy must be shown to be neutral and generally applicable, or it is subject to the highest level of scrutiny by the courts.

Under that level of scrutiny, policies must be the least restrictive means of furthering a government interest.

The mandate was not the least restrictive means of stemming the spread of COVID-19, Judge Nelson said. The city, for instance, could have required testing and masking, or considered post-infection immunity, he wrote.

The appeals court reversed the lower court ruling and remanded the case back to Judge Rice.

“We are grateful for a very thoughtful opinion,” Nathan Arnold, an attorney representing the firefighters, told The Epoch Times via email. “We are pleased to have an opportunity to continue seeking redress for these public servants, and many other similarly situated individuals, in defense of their civil liberties.”

A lawyer for the defendants did not respond to a request for comment.

U.S. Circuit Judge Daniel Collins joined Judge Nelson. Judge Michael Daly Hawkins said in a dissent that he would have upheld Judge Rice’s ruling.

“The complaint also alleges that other cities and entities adopted different policies and the city defendants had pre-existing mutual aid agreements with some neighboring fire departments. The complaint then predicts that, as a result of those pre-existing mutual aid agreements, some unvaccinated firefighters from neighboring departments may operate within the city of Spokane,” he said.

“In my view, these allegations are insufficient to plausibly show that the proclamation, as implemented by the city defendants, is not neutral or generally applicable.”