Wednesday, Aug 10, 2022

Courts Uphold Civil Liberties in Covid Lawsuits

 

Civil rights advocates in recent weeks and months have won several important victories across the United States in Covid 19-related lawsuits, some of them at the U.S. Supreme Court level.

Each of these legal triumphs affirms constitutional rights and civil liberties that are under attack today in various parts of the country.

With these court victories, state attorneys general, legislators and religious liberty groups have pushed back against government agencies that continue to claim “emergency powers” to enact Covid legislation, even as the pandemic has waned and dozens of states have cancelled Covid restrictions.

‘Quarantine Camps’ Struck Down

In a landmark case in early July, New York State Supreme Court Judge Ronald Ploetz struck down N.Y. Governor Hochul’s “quarantine camp” regulation as unconstitutional—a violation of separation of powers and of existing New York State law.

Hochul’s Regulation 2.13 allowed the government to create quarantine camps and to detain healthy people inside them.  According to the now-voided regulation, health officials were permitted to remove people from their homes and isolate them in quarantine camps, without any proof the individuals were infected with a contagious disease.

The judge highlighted that Hochul’s protocol marked a severe escalation from existing health measures already in place to an unprecedented encroachment on personal liberty.

“The Commissioner [under Rule 2.13] has unfettered discretion to issue a quarantine or isolation for anyone, even if there is no evidence that person is a carrier of the disease. Forced detention is a severe deprivation of individual liberty, far more egregious than other measures such as mask wearing,” the judge wrote.

Judge Ploetz cited the fact that New York already has an established law governing isolation and quarantine—Public Health Law 2010—which strikes a reasonable balance between individual rights of due process and the need for public safety.

He notes that in Rule 2.13 there is “no such Constitutional due process protections, merely lip service.”

A detained person would be allowed to hire an attorney to counteract the accusations against him but only from his place of detention, the judge wrote.

“These protections are after-the-fact and would force the detainee to exercise these rights at a time when he or she is already detained, possibly isolated from home and family, and in a situation where it might be difficult to obtain legal counsel in a timely manner,” the opinion read.

“Involuntary quarantine may have far-reaching consequences such as loss of income (or employment) and isolation from family,” the judge wrote, adding that “no scientific data or expert testimony” was presented during oral argument to prove that Rule 2.13 was a necessary response to combat Covid-19.

Executive Branch Usurping Role of Lawmaker

The plaintiffs in the case were NY State Senator George Borrello, Assembly members Michael Lawler and Chris Tague, and an organization called Uniting NYS. They sued Governor Kathy Hochul and the NY Department of Health for using the executive powers of office to promulgate laws, usurping the prerogatives of the state legislature.

“Governor Hochul was acting the part of lawmaker – a clear violation of the separation of powers,” Sen. Borrello said.

The plaintiffs slammed Gov. Hochul’s protocol as ‘inhumane” –a nightmarish scenario that “belonged in a book or movie, but had no place in a free society.”

Rule 2.13 gave the New York commissioner of public health the power to enforce these regulations with the help of the police, even on the basis of a mere suspicion that a person might have been exposed to Covid infection.

“Isolations may include those at home, or in residential or temporary housing, subject to what the public health authority issuing the order determines is appropriate.” Rule 2.13 states. A clause in the rule empowered the health authority to use local law enforcement to assist in implementing the detention and quarantining of people being singled out.

That means “the DOH commissioner, not an independent magistrate, was empowered to set the terms, duration, and location of the detention without the person’s right to a review or due process,” the plaintiffs protested in the brief.

The proposed regulation was adopted first as an emergency regulation on February 22, 2022 and has been repeatedly renewed at 90-day intervals through July 20, 2022. It has also been published in the New York State Register for permanent adoption through the “rulemaking process.”

Dangerous Precedent

“The expansive emergency powers that were given to the Executive Branch during the pandemic set a dangerous precedent that was ripe for abuse,” Senator Borrello explained in an interview with Spectrum News. “That is what occurred here. Reluctant to relinquish the unrivaled authority that accompanied New York’s ‘state of emergency,’ the governor sought to improperly use the agency ‘rulemaking process’ as another conduit for unilateral control.”

“If we allowed that to occur unchallenged, it would be inviting further violations of the constitutional separation of powers,” the senator said.

The senator read from the list of dozens of so-called “communicable diseases” enumerated in the governor’s protocol under Rule 2.13, including many conditions such as food poisoning, rabies, toxic shock syndrome and others that are unquestionably non-contagious.

“They can amend this list (with other diseases) any time they want, stripping away the protections afforded by NY State law, and the person accused of being infected has no ability to counter the accusations,” Borrello said.

Lifting A Page From China’s Script

Elaborating on how the governor’s rule, if left on the books, would actually play out in real time, Sen. Borello described a hypothetical scenario in which a local health official could raid a person’s home and say, “I believe your child was exposed to rabies, and we have to remove him.”

“Where are you taking him?” the family would plead.

“We’ll let you know.”

“When is he coming back?

“We’ll let you know.”

Off they would go with their victim, offering no proof the child actually had rabies, and no explanation of how rabies could be classified as “a communicable disease.”

“This abuse of power is something we see in China today,” Borrello said, referring to police actions captured on video in Shanghai and other cities where law-abiding Chinese citizens—both the healthy and unhealthy—are locked into their homes or brutally herded to detention camps.

“We saw this abuse of power early in the pandemic, with [then Governor] Cuomo forcing patients who tested Covid positive to enter nursing homes, leading to the deaths of thousands and thousands of nursing home patients,” Borrello asserted.

“We saw this with his draconian enforcement rules, where he empowered ‘Covid enforcement officers’ to hand out fines and cease and desist letters at whim, sometimes just acting out their own political vendetta,” Borrello continued in the Spectrum News interview.

“This is the kind of abuse that happens when executives are given sweeping powers to alter and create their own laws and rules,” Sen. Borrello said. “We’re still operating in New York in a ‘state of emergency’ right now. Is that really justified?”

‘Outrageous Overreach’

“Today’s ruling is a major win for the rule of law, our individual liberties, and the separation of powers,” Assemblyman Michael Lawler said, calling Rule 2.13 “an outrageous government overreach and abuse of power.”

NY State Assemblyman Chris Tague said the regulation was “unconstitutional and inhumane. One would think such a frightening policy could only be fictional, but it was proposed by our state Health Department and cannot be allowed to stand.”

“This decision will send a message to all agencies, here in New York and in other states as well, that the Executive Branch cannot violate separation of powers by making regulations that conflict with our laws and our Constitution,” said attorney Bobbie Cox, Esq. of Cox Lawyers, PLLC, who represented the petitioners.

Hochul told local media after the ruling was handed down that she would be appealing the court’s decision, stating, “We feel very confident that if we appeal this, we will be successful.”

Noting that NY DA Letitia James has in fact filed an appeal, Borrello called on the governor and the attorney general “to support the will of the people and their constitutional freedoms by abiding by this decision…There is no ambiguity in the ruling and pushing it further through the courts will be an unnecessary waste of taxpayer resources.”

Fired Health Care Workers Win Historic Covid Settlement

In another victory for civil liberties, health care workers who were fired for not getting a Covid shot have won a $10.3 million settlement, reported the Liberty Counsel, a religious rights litigation group.

This class action settlement providing a total of $10,337,500 to hundreds of employees as well as the opportunity for them to return to work, is the first of its kind in the nation involving Covid shot mandates.

The settlement against NorthShore University Health System was filed last week in the federal Northern District Court of Illinois, on behalf of more than 500 current and former health care workers. These doctors, nurses, medical technicians and aides faced discrimination by being denied religious exemptions from the Covid shot mandate, according to the law firm.

As part of the settlement agreement, NorthShore will also change its policy to provide religious accommodations in every position across its numerous facilities, according to the Center Square.

In addition, employees who were terminated because of their religious objections will be eligible for rehire if they apply within 90 days of the final settlement, and they will retain their previous seniority level.

If the settlement is approved by the court and all the affected employees file timely claims, employees who were terminated or resigned due to refusing the Covid injection will receive approximately $25,000 each, according to Liberty Counsel.

Employees who were forced to accept the injection against their religious beliefs to keep their jobs will receive approximately $3,000 each.

Millions In Payouts When It Should Have Cost Them Nothing

The lawsuit dates back to October 2021, when about a dozen employees of Northshore sued the hospital system for denying their religious exemption request in regard to the hospital’s Mandatory Covid-19 Vaccination Policy.

Their attorneys, Liberty Counsel, first sent a demand letter to NorthShore on behalf of the workers who had religious objections to the policy.

“If NorthShore had agreed then to follow the law and grant religious exemptions, the matter would have been quickly resolved and it would have cost the hospital nothing,” the firm said in a press release. “When they instead denied all religious exemptions, our clients chose to file a lawsuit along with a motion for a temporary restraining order and injunction.”

“The drastic policy change and monetary relief required by the settlement will bring a strong measure of justice to NorthShore’s employees, who were forced to choose between their conscience and their jobs,” Liberty Counsel vice president Horatio Mihet said.

“It is especially gratifying that this first class-wide Covid settlement protects health care workers who are heroes who daily give their lives to protect and treat their patients,” he added. They are needed now more than ever.”

The settlement should also serve as a warning to employers across the nation that they violate Title VII at their own peril. Title VII is a section of the Civil Rights Act that prohibits employment discrimination based on race, color, religion, gender and national origin.

It has been cited in various lawsuits protesting employers’ refusals to honor religious exemptions to vaccine mandates to the same degree as medical exemptions are being honored.

Civil Liberties Cases That Reached The Supreme Court

Several other legal battles have scored key wins for individual liberty and autonomy in the past six months. Other cases have chipped away at the power of federal and state authorities to mandate Covid vaccines for certain categories of employees, or thwarted a governor’s ability to declare emergencies.

One of the most well-known of these cases was decided in January of this year, when the U.S. Supreme Court blocked the Biden administration’s vaccine mandate on companies with more than 100 employees.

Another case taken up by the Supreme Court was a lawsuit brought by First Liberty Institute together with the Institute for Justice against the state of Maine. The case, Carson v. Makin, protested a law passed in Maine that banned families from using tuition assistance to send their children to religious schools.

The Supreme Court held that this exclusion is unconstitutional. It affirmed that states cannot discriminate in student-aid programs against parents who want to send their children to religious schools—a ruling that was widely hailed by Jewish religious communities across the country.

In Wisconsin, a conservative legal center won a case before the state Supreme Court that stripped local health departments of the power to close schools as means of stemming the spread of Covid disease.

In another Wisconsin case, the Institute for Law & Liberty won a state Supreme Court ruling that found Democratic Gov. Tony Evers’ declaration of back-to-back “states of emergency” unlawful.

In Missouri, Attorney General Eric Schmitt, who is running for U.S. Senate, has sued and sent cease and desist letters to dozens of school districts over mask mandates, and set up an email address where parents could report schools that imposed such mandates.

The majority of his suits did not reach the trial stage as “almost all of those school districts dropped their mask mandates,” Schmitt told KHN news outlet.

“Our efforts have been focused solely on preserving individual liberties, clawing power away from health bureaucrats and returning it to the people so they can make their own choices,” Schmitt said in a written response to KHN questions.

U.S. Court of Appeals Blocks Vaccine Mandate for Navy SEALs

A group of Navy SEALs (Special Sea, Land and Air Forces) that has been locked in a legal battle over vaccine mandates since January, won a second victory in its fight which could ultimately go all the way to the Supreme Court, attorneys for the plaintiffs say.

The vaccine mandate requires Navy service members to be fully vaccinated by Nov. 28. The SEALs say the vaccine mandate violates their religious freedom and that they have been unjustly denied religious exemptions.

Attorneys with First Liberty Institute, an advocacy group, filed the lawsuit against President Joe Biden, the Department of Defense, the Secretary of Defense and the Secretary of the Navy.

The U.S. Court of Appeals for the Fifth Circuit denied a request from the Navy for an emergency stay of an injunction that prevented Naval authorities from taking action against the SEALS in question.

That ruling upheld an earlier injunction issued by Judge Reed O’Connor of U.S. District Court for the Northern District of Texas.

“The Navy service members, in this case, seek to vindicate the very freedoms they have sacrificed so much to protect,” O’Connor’s ruling reads. “The pandemic provides the government no license to abrogate those freedoms. There is no Covid-19 exception to the First Amendment. There is no military exclusion from our Constitution.”

“[Evidence] suggests that the Navy has effectively stacked the deck against even those religious exemptions supported by commanding officers and military chaplains,” the three-judge Court of Appeals panel said.

“Events around the world remind us daily that there are those who seek to harm America. Our military should be welcoming service members, not forcing them out because of their religious beliefs,” said Mike Berry, director of First Liberty Institute, noting that “the fight is far from over.”

“The purge of thousands of religious service members is not just devastating to morale, but it harms America’s national security,” Mr. Berry said. “It’s time for our military to honor its constitutional obligations and grant accommodations for service members with sincere religious objections to the vaccine.”

 

*****

60,000 National Guard And Reserve Soldiers Face Discharge

Roughly 40,000 National Guard and 22,000 Reserve soldiers who refuse to take the Covid-19 vaccines have been cut off from their military benefits, according to the U.S. Army. At least 3,000 of these soldiers have filed for a religious exemption but were denied, Army statistics show.

“Soldiers who refuse the vaccination without an approved exemption request are subject to adverse administrative actions,” an Army spokesperson said in a statement. That means being discharged, having to pay back scholarships, education or other training costs, or even facing court martial, reported The Center Square.

Those requesting religious exemptions usually cite one of two objections: the fact that Covid vaccines may contain fetal cells or stem cells of dead infants which some churches forbid; or that accepting any injection into the body of foreign substances is not permitted, especially when there are concerns about the shots’ safety.

To prove the sincerity of their religious beliefs, servicemen requesting exemptions typically express their willingness to forfeit opportunities for the most preferred military deployments and choice assignments, thereby lessening the “risk” of an unvaccinated person spreading potential infection to vaccinated fellow servicemen.

This of course ignores the irony that Covid vaccines are now understood by scientists to be wholly ineffective in preventing transmission or infection.

Refusal Of Religious Exemption is the Norm

Regardless of the reasons cited, refusal of religious exemption requests is the norm across all branches of the armed services, reported Liberty Counsel and the Thomas More Society. These organizations have sued the government on behalf of military members whose religious exemption requests were summarily denied.

The lawsuit contends that despite religious freedom protections in the U.S. Constitution and the Religious Freedom Restoration Act of 1993, hardly any religious exemptions of the many thousands submitted in all branches of the armed forces have been approved.

Jonathan Hullihan, a Navy officer for 13 years and the lead attorney for a Texas civil liberties litigation group, told The Center Square that across all branches, U.S. military recruitment and retention rates are falling to historic lows, and the current policies mandating vaccines are partially responsible.

“This is threatening America’s all-volunteer force and the ability of the United States to respond to threats around the world,” he said. “We are losing many of our best soldiers with real combat and leadership experience from the Iraq and Afghanistan theaters of war, which cannot be replaced.”

Because National Guard and reserve personnel supplement active-duty forces in times of national emergencies, he contends that forcing 60,000 out of the Army “will directly threaten the national security of the United States with training and operational readiness.”

“If military leadership fails to portray a candid assessment to the Biden Administration that its vaccine mandates directly threaten the National Security, Congress must intervene.”

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