Hailey Mask Order Case

Hailey Mask Order Case

Hailey Mask Order Case

Re: the Legality of Mask Mandates


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Facts of the Case

  • Dates: Sept 27, 2021
  • Location: Hailey, Idaho, USA
  • Court: US District Court of Idaho
  • Case #: 1:21-cv-389
  • Plaintiff: HFDF, Ryan Blaser, Michelle Sandoz, Barbara Mercer, Emily Knowles (& children) & Kendall Nelson
  • Plaintiff Counsel: Alan Shoff, Davillier Law Group

  • Defendant: City of Hailey, Idaho & Martha Burke (Mayor)
  • Trial Type: Complaint for declaratory & injunctive relief- demand for jury trial
  • Judge: TBD
  • Status: Ongoing
  • Verdict: TBD



This is the second Mask Mandate Order and also the second time this is being challenged.

The Health Freedom Defense Fund (HFDF) together with several individual plaintiffs (residents of Blaine County, Idaho) submitted a demand for jury trial in the matter of the mask mandate in schools, which is claimed to be contra to constitutional law and invalid in the light of emergency FDA authorization. [1]

HFDF is a not-for-profit public benefit Wyoming corporation, which opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will. [1]

September 13, 2021, the Hailey city council voted unanimously to reinstitute another unlawful mask mandate upon its citizens. [2]

Health Freedom Defense Fund and its members have opposed Hailey’s unlawful mask mandates since the first mandate was implemented in July of 2020 due to the fact they are unscientific, a violation of federal law, and a violation of basic human rights. Throughout 2021, HFDF sent the city demands to repeal their mask order informing them legal action would come and finally after no action was taken, HFDF sued Mayor Martha Burke and the City of Hailey in May 2021.

The same day the lawsuit was filed, Hailey Mayor Martha Burke issued a new health order removing Hailey’s mask mandate which was followed on May 10th, with a vote by the city council to rescind the mask mandate.

The City has twenty days to respond to the filing.

HFDF president Leslie Manookian said, “Not only are mask mandates illegal, they violate some of our most basic human rights such as the right to determine for ourselves how we stay healthy as well as the right to breathe unhindered and no government official has the right to deprive us of those rights.”



This case challenges the legality and medical efficacy of mask mandates. The Mask Mandate is preempted under the Supremacy Clause by the federal law under which the Food and Drug Administration (“FDA”) issued the Emergency Use Authorization (“EUA”) for mask use, which requires that use of masks must be optional. [1]


Similar complaints for similar reasons have been filed. e.g. IN THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF IDAHO, 15th October 2021, Case No. 1:21-cv-406 [1]


Plaintiff’s Argument

In the US, most masks have been issued under Emergency Use Authorization (EUA) and the terms of the EUA granted by FDA clearly state that the product must not be:

“labeled in such a manner that would misrepresent the product’s intended use; for example, the labeling must not state or imply that the product is intended for antimicrobial or antiviral protection or related uses or is for use such as infection prevention or reduction”. [2]

Thus, the FDA recognizes masks do nothing to stop the spread of viruses or infectious agents. [2]

  1. Not only does FDA acknowledge masks do not prevent the spread of the virus, the terms of the EUA also require that those using the products be given the right to accept or refuse use of the product. See Link. [2]
  2. The FDA has determined that the efficacy of face coverings for reducing or preventing infection from SARS-CoV-2 has not been established, and that it would be misleading to state that they are effective in preventing or reducing such infection.
  3. Similarly, the FDA has stated in three instances that face masks are not intended to reduce or prevent infection:
  4. The product is not intended for any use that would create an undue risk in light of the public health emergency, for example the labeling does not include uses for antimicrobial or antiviral protection or related uses or uses for infection prevention or reduction or related uses and does not include particulate filtration claims. Id. at 7, repeated twice on page 8.

In summary:

  • Masks for prevention of transmission of the virus are only granted emergency approval by the FDA. This requires the use of masks to remain optional, while the normal testing, evaluation, and approval process for use of such masks is ongoing. This process has been illegally bypassed by the FDA due to an emergency. [1]
  • The mask mandate implements a human experiment, while the medical and psychological effects of the masks has not been tested, evaluated, and approved by the FDA under normal procedures. It thus violates Idaho law. [1]
  • The Mask Mandate violates Plaintiffs’ fundamental human rights re 14th Amendment USA [1]
  • The Mask Mandate has been placed in force contrary to the Constitution and laws of the United States. [1]

In Jacobsen vs. Massachusetts, a landmark case on government-mandated medicine, the US Supreme Court unequivocally ruled that there must be clear public health benefit to justify the imposition of a medical mandate. There is little, if any, public health justification in this case as evidence from “gold-standard” mask studies show that facial coverings offer negligible benefit to the wearer or those in their vicinity when it comes to reducing viral transmission among the general population. That evidence even suggests that incorrect or long-term use of masks may increase the risk of transmission, especially with cloth or “community” masks. [3]

When comparing the potential benefit and potential harm of mask mandate policies, it is clear the balance is much more heavily weighted to the harmful side of the equation. [3]


Defendant’s Argument

…More information is needed…


Relevant Prior Judgements/ Cases

As mentioned above the Landmark 1905 Jacobson v Massachusetts, has been cited numerous times in recent courts to justify medical mandates. However this case does not support this. In fact the Supreme Court in 1905, was careful not to violate the right of bodily autonomy and Mr Jacobson was only fined and never vaccinated for Small Pox which was the feared epidemic at the time.

The court also determined that the Small Pox vaccine had nearly 100 years of data to support its efficacy as well as showing that no alternative treatments were available.



…More information is needed…



On November 9, 2021, Idaho news outlet KMVT reported: [4]

Council members decided not to rescind the mask mandate at the Monday meeting because they wanted to stay consistent with what neighboring cities are doing, and the COVID-19 risk level in the county is high. Hailey also sees a lot of tourists during the holiday season.

Mayor Burke said that was a clerical error on her part, but citizens do not need to worry because the health order can be rescinded at any point. The council will revisit and discuss the heath order again in 30 days.

One person who attended the meeting asked the council to rescind the mask mandate because he felt the issue is becoming more about emotion than logic. He said, “If you are worried about getting the virus then you can mask up and be protected, or if you have gotten the vaccination you should be able to be protected…the mandate to me doesn’t do anything right now since half the people I come in contact with are not wearing masks.”


In December, Idaho news outlet KMVT reported: [5]

The mask mandate in Hailey will stay in place through the holidays partially because of ski season and increased travel during the holidays.

A press release from the city says a 30-day review for the mandate will not be on the city council agenda for December. It will remain into Jan. 2022. The order in place now mandates masks for indoor public spaces and when social distancing is not possible outdoors.

The mask mandate is not required to be enforced by businesses, but the city says having it in place has been helpful for businesses.


Further Research

Court Documents:
In the news:



Hailey Mask Ordinance – July 2020

source: Idaho News 6

Mask burning at Idaho Capitol -March 7 2021

source: Bill C-Kole



  1. Complaint Case No. 1:21-cv-389
  2. HFDF Sues Hailey AGAIN Over Mask Mandate
  3. Masks Aren’t Just Ineffective, They’re Dangerous
  4. City of Hailey keeps mask mandate in place
  5. Mask mandate in Hailey to remain in effect through holidays



Blaine County, Consent, Constitution, Emergency Use Authorization, EUA, FDA, Hailey, Health Freedom Defense Fund, HFDF, Idaho, Jacobson, Mandate, masks, Massachusetts, Public Health Emergency Order, Supremacy Clause

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Dr White Censure Case

Re: Legality of Censuring & Ostracizing Employment based on giving professional expert opinions regarding Covid


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Facts of the Case

  • Dates: (Hearing) Nov 4 2021
  • Location: Royal Courts of Justice, London, England
  • Court: The High Court of Justice, Queen’s Bench Division Administrative Court
  • Case #: CO/3095/2021
  • Plaintiff: Dr. Sam White
  • Defendant: The General Medical Council
  • Trial Type: Decision Review of the Interim Orders Tribunal
  • Judge: The Honourable Justice Dove
  • Status: Final Ruling
  • Verdict: For The Plaintiff

** This case was reviewed & edited by the plaintiff Dr White



Dr. Sam White is a UK General Practitioner with over 17 years experience. He now practices independently in functional medicine. In 2020, he was working as a doctor and partner in a Hampshire medical practice. Shortly after the announcement of the pandemic he became concerned about the entire government narrative, and the medical measures being recommended by NHS England for Covid19. He felt it was antithetical to all of his prior understanding of what medicine is, and should be.

He realized that the testing was grossly unreliable and the agenda was moving very rapidly toward experimental anti-Covid immunization injections, referred to as vaccines- developed and brought onto the market under EUA (Emergency Use Authorization). Dr. White’s own research into these gene based therapies had led him to believe they were not safe or efficacious as advertised, and that to administer them to his patients would cause a personal ethical conflict with his doctor’s Hippocratic Oath to ‘first, do no harm’. There had never been a successful Coronavirus vaccine brought to market and the SARS-CoV-1 animal studies (in which all of the animals developed antibody dependent enhancement) had convinced him that the proposed vaccine schedule would be extremely dangerous. He did not want any part of it.

In these circumstances, Dr. White felt he had to resign from his practice in early 2021. He had already written detailed submissions on his research in his five year re-validation and re-licensing with the GMC in late 2020. He had said he would resign if experimental mRNA vaccines were introduced, while safe and proven therapeutics continued to be suppressed. Neither the NHS or GMC took any notice whatsoever and they certainly were not concerned about the content of what he had written. In April 2021, Dr White’s re-licensing for a further 5 years was approved by a ‘Responsible Officer’ acting on behalf of the GMC. Dr White’s concerns only became a problem for NHS England and the GMC when he subsequently posted a video on social media (see below) in June 2021 (1) explaining to the public why he resigned. Dr White’s reasons for resigning only became of concern to the regulator once over 1 million members of the public were privy to his views. Dr White was first suspended by NHS England by emergency order (by the same ‘Responsible Officer’ who just two months prior had recommended his re-licensing) and subsequently also by the GMC.

Among other reasons he explained that …

He could no longer work in his previous roles ‘because of the lies’ surrounding the NHS and government approach to the pandemic which have been ‘so vast’ he could no longer ‘stomach or tolerate’ them. He claimed doctors and nurses were ‘having their hands tied behind their backs’ preventing them from using treatments that had been established as being effective both as prophylaxis from Covid19 infections and as treatments for it.

Once this video went viral,  both the NHS and GMC made allegations that Dr White might be suffering a profound mental health disorder and being disinhibited. They felt able to make such allegations, without any medical assessment whatsoever.

Dr White’s law firm wrote a complaint letter (3) to the Chief Executive of NHS England on 2nd July stating (among other points) that:

My client has instructed me to write to you setting out the complaint that he has been

victimized and harassed for telling the truth by the organization you head.

Clinicians should feel able to voice genuine concerns relating to alleged malpractice

without fear for their ability to practice within the NHS being suspended.

The truth that Dr White is telling may be uncomfortable for you to hear. But hear it you

must. I am instructed to copy this letter to the relevant regulators as well as law enforcement.

No reply was ever received to this letter.

Dr. White’s license to practice was later reinstated, but made conditional on a number of measures with instructions from the Interim Orders Tribunal (IOT) hearing on 17th Aug 2021. Prior to this hearing, Dr White had submitted hundreds of pages of evidence to the tribunal including both expert witness testimony and peer reviewed literature detailing all of the reasoning for each of his claims. By comparison, the GMC relied merely on 18 (out of over 1 million) anonymized complainants citing allegations of ‘misinformation-’ without any evidence that it was indeed, ‘misinformation.’ The IOT commenced proceedings that day by announcing that they were not there to determine ‘matters of fact.’ Despite this, they sided entirely with the GMC, repeating the claim that Dr White was citing misinformation.

These conditions required that he refrain from posting further information about his pandemic views on social media for a period of at least 18 months. The orders were vague and not specified. His solicitor sought clarification but this was denied.

The controversial conditions at the heart of the IOT to impose conditions on his registration were as follows:

“4. He must not use social media to put forward or share any views about the Covid-19 pandemic and its associated aspects.

5. He must seek to remove any social media posts he has been responsible for or has shared relating to his views of the Covid19 pandemic and its associated aspects.”  (6)

In several respects, treatment by his professional body bore remarkable similarities to the fate of Swiss cardiologist, Dr. Thomas Binder, who spoke out in April 2020 and was arrested and subjected to a psychiatric examination while held in custody for one week (2 & 5).

Although Dr. White has fully explained, for example during testimony given to the German Corona Investigative Committee (4), that his views are evidence based and founded on his considerable scientific research, the GMC maintained that he was spreading misinformation that could present a risk to patients.



First case in the UK to overturn an illegal gag order placed on a UK doctor censured by his professional body for posting his scientifically researched views on the Covid crisis on social media.


Plaintiff’s (Claimant’s) Argument

Dr White’s lawyers, led by Francis Hoar instructed by PJH Law, appealed under Article 10 of the Human Rights Act 1998, which states that everyone has the right to freedom of expression, although the law may be subject to conditions or restrictions necessary in a democratic society. Surely doctors should never be silenced in a democratic society? 

Dr White said: “If I lose my ability to speak freely, so will other doctors.” (5)

Important to understand is that the rights and wrongs of Dr. White’s treatment were argued not on the basis of the views he expressed but on the basis of his fundamental human right to free speech.


Defendant’s Argument

The GMC’s argument was represented by Alexis Hearnden

The defendants argument was based on the assertion that Dr. White was spreading ‘misleading information’ that could present a risk to patient health. This extract from the Judge’s summation of the court decision is illustrative of the content:

“- Through a social media video, Dr White spread misinformation and inaccurate details about the Coronavirus and how it is diagnosed and treated, including saying the vaccine is a form of genetic manipulation which can cause serious illness and death and that he advised against wearing masks.


Relevant Prior Judgements

…More information is needed…



The judgement passed by The Honourable Justice Dove on 3rd Dec 2021 restored Dr White’s freedom of speech and the IOT conditions were nullified (5)

(See below for) Sam White’s video to his followers, 3rd Dec. 2021  (7)



This case is not over as far as Dr. White and his lawyers are concerned. Dr. White is  determined to be vindicated in his evidence based scientific assessment of what is the best medical practice for Covid19 prevention / treatment. His lawyers have sent a number of questions addressed to the CEO of NHS England. (8)

This case is not over as far as Dr. White and his lawyers are concerned. Dr. White is determined to be vindicated in his evidence based scientific assessment of what is good for his patients.


His lawyers have sent a (a letter with a) number of questions addressed to the CEO of NHS England … Amanda Pritchard explaining how many of his June predictions had now been proved right. (8)

The letter (8) says that:

the public have had their health, wellbeing and lives put at risk because the NHS adhered to government diktat by cutting the role of primary care and keeping GPs out of the loop with Covid cases throughout 2020. As a consequence of that decision, early diagnosis and treatment was denied to many patients and prophylactic therapeutic treatments, used elsewhere to great effect, were being denied to NHS patients.’

The 12-page letter goes on to say how the introduction of the vaccine passport will compromise informed consent and could prevent patients exercising free will in consenting to vaccination.

It also criticizes masks and says: ‘Wearing face coverings in health care settings had not been properly risk-assessed. There is evidence that masks do harm, particularly children.’ (7)

Dr White’s focus will now: be on protecting children from the experimental mRNA vaccines made by Pfizer and Moderna, as they can cause myocarditis.

He said: ‘The outcomes for myocarditis are not “mild”, as the government like to tell us. It’s a condition that has a 50 per cent mortality rate after five years and 20 per cent after one year. It is extremely serious. It can kill and is a problem for healthy young men who get the vaccine who are at virtually no risk from Covid.

But the guilt has now lifted. I can tell people what’s going on and share the peer review evidence I have. One of the most important bits of information is if you’ve had Covid, your immunity is long lasting and robust, whereas Pfizer vaccine immunity for example, begins to wane after six months. People should be told this before they are vaccinated as part of informed consent, but it is generally ignored.’


Further, a complaint letter (9) was sent on 7th Dec addressed to Charlie Massey, Chief Executive of the General Medical Council. The complaint is about a Doctor Hilary Jones registered with the GMC, who regularly appears on Good Morning Britain news show. The specific question is whether Dr Jones made misleading and untrue statements which posed a risk to patient safety and whether the GMC took sufficient action to establish this or not following an anonymous complaint (E2-7599ZL) lodged with them on 12th August 2021. (ref link).

Further actions are also planned soon.


Further Research



Dr. White Interview -Jan 16, 2022

source: TLA-Vagabond

Dr. White’s Social Media Post, June 4 2021

**banned video**

source: shortXXvids

Dr White’s Testimony to Corona-Ausschuss

source: longXXvids

Dr White Announces Verdict

source: shortXXvids

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Legal Opinion Gibbons

Legal Opinion Gibbons

Legal Opinion

Re: Assumptions by the US Courts are Dangerous


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CoronaCases received this case review summary on Oct. 14th 2021 from Attorney at Law, Peter Gibbons.

It illustrates the court’s assumptions about medical facts which are unsupported by the latest available information and predictably results in significant violations of people’s rights and freedoms.

There are more than 4000 Covid-19 cases reported by LexisNexis [www.lexisnexis.com legal data base] and we have reviewed the first 160 of them (It would probably take about a week to review all 4000+ cases). They fall into various categories, for example, many cases involve prisoner or ICE (Immigration and Customs Enforcement) detainees. We have found recent public employment cases, insurance cases, educational cases, emergency power cases and religious cases, involving lock downs, mandates, business closures, etc.

By far, the cases are premised on the court’s presumptions that

a) the virus is deadly,

b) non-symptomatic people can spread it, and

c) the vaccines are safe and effective.

All of the facts and information relied upon by the courts is apparently now belied by the medical evidence I see everywhere on the internet with the VAERS database proving that these so-called “vaccines” are the most deadly drugs ever to be widely administered to the public.

Our courts have strayed from their primary role to protect the rights of the people against overreach by the other two branches of government. Similarly they have forgotten that the primary purpose of the litigation process is to discover the truth and make judicial rulings based on the truth. In other words, the courts’ highest duty is to find the facts, which will show the truth of the matter. Yet with respect to the so-called “pandemic,” our courts simply accept the official narrative with no further fact finding. Based on my personal experience and observation of other cases, the primary impediment in overcoming such widespread presumptions by the courts has been a lack of on-point declarations and expert medical and scientific opinions, proving that the “official” information being relied upon by the courts is false.

Here are some excerpts from the cases showing the various issues and conclusions of various courts. While many of the cases are from before the introduction of COVID-19 “vaccines,” they all point out a lack of competent expert medical, statistical, and scientific testimony to counter the falsehoods from the WHO, CDC, Fauci or the FDA.

Ex parte Young allows suits for injunctive or declaratory relief against state officials, provided they have sufficient connection to enforcing an allegedly unconstitutional law. Otherwise, the suit is effectively against the state itself and thus barred by the Eleventh Amendment and sovereign immunity. If the official sued is not statutorily tasked with enforcing the challenged law, then the requisite connection is absent and the Young analysis ends.
    In re Abbott, 956 F.3d 696, 709 (5th Cir. 2020)

    “[U]nder the pressure of great dangers,” constitutional rights may be reasonably restricted “as the safety of the general public may demand.” Id. at 29. That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception. See Roe v. Wade, 410 U.S. 113, 154, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) (citing Jacobson); Planned Parenthood v. Casey, 505 U.S. 833, 857, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (same); Gonzales v. Carhart, 550 U.S. 124, 163, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007) (same).1
    In re Abbott, 954 F.3d 772, 778 (5th Cir. 2020)

    The precise question of when restrictions on particular social activities should be lifted [***3]  during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38, 25 S. Ct. 358, 49 L. Ed. 643 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427, 94 S. Ct. 700, 38 L. Ed. 2d 618 (1974). Where those  [*1614]  broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985).
    That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.
    S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-14 (2020)

    To justify its discriminatory treatment of religious worship services, California must show that its rules are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” Lukumi, 508 U. S., at 531-532, 113 S. Ct. 2217, 124 L. Ed. 2d 472. California undoubtedly has a compelling interest in combating the spread of COVID-19 and protecting the health of its citizens. But “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious  [*1615]  freedom.” Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam). What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.
    S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614-15 (2020)[dissent]

    By now, the virus, the resulting pandemic, and the tragic consequences, particularly for persons in close quarters like nursing homes, are familiar to all. COVID-19 is an acute respiratory disease caused by the SARS-CoV-2 betacoronavirus or a virus mutating therefrom. The COVID-19 virus can be transmitted even by persons who display no symptoms.
    Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d 518, 522 (D.N.J. 2020)

    The Constitution does not compel courts to turn a blind eye to the realities of the COVID-19 crisis. For more than a century, the Supreme Court has recognized that HN9 “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Commonwealth of Mass., 197 U.S. 11, 27, 25 S. Ct. 358, 49 L. Ed. 643 (1905); see Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 88 L. Ed. 645 (1944) (“The right to practice religion freely does not include liberty to expose the community . . . to communicable disease.”). During an epidemic, the Jacobson court explained, the traditional tiers of constitutional scrutiny do not apply. Id.; see In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020). Under those narrow circumstances, courts only overturn rules that lack a “real or substantial relation to [public health]” or that amount to “plain, palpable invasion[s] of rights.” Jacobson, 197 U.S. at 31. Over the last few months, courts have repeatedly applied Jacobson’s [**18]  teachings to uphold stay-at-home orders meant to check the spread of COVID-19. See, e.g., Abbott, 954 F.3d at 783-85; Gish v. Newsom, No. EDCV20755JGBKKX, 2020 U.S. Dist. LEXIS 74741, 2020 WL 1979970, at *5 (C.D. Cal. Apr. 23, 2020).
    This is not to say that the government may trample on constitutional rights during a pandemic. As other judges have emphasized, Jacobson preserves the authority of the judiciary to strike down laws that use public health emergencies as a pretext for infringing individual liberties. See, e.g., Abbott, 954 F.3d at 800 (Dennis, J., dissenting) (citing Jacobson, 197 U.S. at 28-29)). Furthermore, Jacobson’s reach ends when the epidemic ceases; after that point, government restrictions on constitutional rights must meet [*994]  traditionally recognized tests. And so, courts must remain vigilant, mindful that government claims of emergency have served in the past as excuses to curtail constitutional freedoms. See, e.g., Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), abrogated by Trump v. Hawaii, –U.S. –, 138 S. Ct. 2392, 2423, 201 L. Ed. 2d 775 (2018).
    Cassell v. Snyders, 458 F. Supp. 3d 981, 993-94 (N.D. Ill. 2020)

    Today, COVID-19 threatens the lives of all Americans. The disease spreads easily, causes severe and sometimes fatal symptoms, and resists most medical interventions. April 30 Order at 1-2. When Governor Pritzker issued the amended stay-at-home rules, thousands of Illinoisans had perished due to the disease. Id. Based on the plethora of evidence here, the Court [**19]  finds that COVID-19 qualifies as the kind of public health crisis that the Supreme Court contemplated in Jacobson and that the coronavirus continues to threaten the residents of Illinois.
    Cassell v. Snyders, 458 F. Supp. 3d 981, 994 (N.D. Ill. 2020)

    Because Defendants are state officials, who have been sued in their official capacities and have raised sovereign immunity, the Eleventh Amendment shields them from Plaintiffs’ state law claims. To be sure, “individual state officials may be sued personally” for federal constitutional violations committed “in their official capacities.” Goodman v. Carter, No. 2000 C 948, 2001 U.S. Dist. LEXIS 9213, 2001 WL 755137, at *9 (N.D. Ill. July, 2, 2001) (citing Ex Parte Young, 209 U.S. 123, 160, 28 S. Ct. 441, 52 L. Ed. 714 (1908)). But that principle does not extend to “claim[s] that officials violated state law in carrying out their official responsibilities.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984).
    Cassell v. Snyders, 458 F. Supp. 3d 981, 999 (N.D. Ill. 2020)

    Accordingly, judicial precedent articulates only three ways for private plaintiffs to circumvent sovereign immunity: (i) suits against state officials for injunctive relief, and, in some cases, money damages, (ii) suits to which states consent; and (iii) suits invoking Congressional statutes pursuant to the Fourteenth Amendment. The Eleventh Amendment permits federal courts to grant injunctions against state officials, even when compliance will cost the state great expense in the future.
    Legacy Church, Inc. v. Kunkel, 455 F. Supp. 3d 1100, 1108 (D.N.M. 2020)

    The Supreme Court has concluded, however, that Congress may authorize suits against states only when it acts pursuant to § 5 of the Fourteenth Amendment. Although Congress enacted § 1983 pursuant to the Fourteenth Amendment, the Supreme Court has concluded that § 1983 provides insufficient indication that Congress intended to override state sovereign immunity:
        [Section] 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress [**92]  considered and firmly decided to abrogate the Eleventh Amendment immunity of the States.
    Quern v. Jordan, 440 U.S. at 345.

    Additionally, because states have concurrent jurisdiction over § 1983 suits, see Maine v. Thiboutot, 448 U.S. 1, 3 n.1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980), the Supreme Court has interpreted § 1983 to conclude that states are not persons for § 1983’s purposes, see Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66-67, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Accordingly, the Eleventh Amendment bars Legacy Church’s suit insofar as Legacy Church seeks relief against the State of New Mexico.
    Legacy Church, Inc. v. Kunkel, 455 F. Supp. 3d 1100, 1144 (D.N.M. 2020)

    COVID-19 is “highly contagious” and transmitted via “several modes,” including close contact with pre-symptomatic, asymptomatic, and symptomatic individuals.
    Bn Farm Ltd. Liab. Co. v. Cincinnati Cas. Co., No. 20-10874-MBB, 2021 U.S. Dist. LEXIS 190966, at *7 (D. Mass. Sep. 16, 2021)

    We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum. Because California’s ban on in-person schooling abridges a fundamental liberty of these five Plaintiffs that is protected by the Due Process Clause, that prohibition can be upheld only if it withstands strict scrutiny. Given the State closure order’s lack of narrow tailoring, we cannot say that, as a matter of law, it survives such scrutiny. We therefore reverse the district court’s grant of summary judgment as to these five Plaintiffs and remand for further proceedings.
    Brach v. Newsom, No. 20-56291, 2021 U.S. App. LEXIS 21912, at *3 (9th Cir. July 23, 2021)

    Plaintiffs allege in Count 8 that Defendants’ proclamations and orders violate Alabama’s separation of powers doctrine. (See Doc. # 40, at 25.) Specifically, they claim that Defendants’ actions are “null and void” because they usurped the role of the legislature, thus violating the Alabama Constitution. In other words, Plaintiffs contend that Defendants—state officials—have violated state law. However, the United States Supreme Court has held that the Eleventh Amendment plainly bars such a claim. See Pennhurst, 465 U.S. at 121 (concluding that HN14 “a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is [barred] by the Eleventh Amendment”) (alteration added). Accordingly, Count 8 is due to be dismissed on Eleventh Amendment immunity grounds.
    Case v. Ivey, No. 2:20-CV-777-WKW, 2021 U.S. Dist. LEXIS 102520, at *35 (M.D. Ala. June 1, 2021)

    Defendants raise the defense of qualified immunity as it relates to Plaintiffs’ claims against them in their individual capacities for money damages. (See Doc. # 42, at 16.) HN15 “The doctrine of qualified immunity protects government officials ‘from [*36]  liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). Qualified immunity serves to balance “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. As a threshold matter, defendants asserting the defense of qualified immunity “must first establish that they were acting within the scope of their discretionary authority when the alleged wrongful acts occurred.” Melton v. Abston, 841 F.3d 1207, 1221 (11th Cir. 2016) (citation omitted). Despite Plaintiffs’ protestations to the contrary (see Doc. # 49, at 3-6), Defendants have established that they acted within the scope of their discretionary authority under the AEMA, the Alabama Code, and Alabama’s police power when they issued orders in response to COVID-19. See supra, at 4-6. Accordingly, “the burden shifts to [Plaintiffs] to establish that qualified immunity is inappropriate.” Melton, 841 F.3d at 1221 (citation omitted).
    HN16 To establish that Defendants are not entitled to qualified immunity, Plaintiffs must [*37]  satisfy two elements: (1) that Defendants’ actions “violated a constitutional right” and (2) the “right was clearly established at the time of the alleged violation.” Patel v. Lanier Cty. Ga., 969 F.3d 1173, 1188 (11th Cir. 2020) (citation and internal quotation marks omitted). “The determination of these elements may be conducted in any order.” Melton, 841 F.3d at 1221 (citing Pearson, 555 U.S. at 236). Here, as to some claims, the complaint’s allegations do not establish that Defendants’ actions violated Plaintiffs’ constitutional rights, thus failing the first element of the qualified immunity test. As to other claims, the complaint’s allegations do not demonstrate a violation of a clearly established constitutional right, thus failing the second element of the qualified immunity test. The subsequent discussion addresses each Count in Plaintiffs’ complaint in turn. Corbitt v. Vickers, 929 F.3d 1304, 1313 (11th Cir. 2019), cert. denied, 141 S. Ct. 110, 207 L. Ed. 2d 1051 (2020).
    Case v. Ivey, No. 2:20-CV-777-WKW, 2021 U.S. Dist. LEXIS 102520, at *35-37 (M.D. Ala. June 1, 2021)

    HOLDINGS: [1]-In a suit brought by unions challenging a city’s implementation of a vaccination mandate against COVID-19, the court held that the city had a non-negotiable managerial prerogative to immediately implement its COVID-19 vaccination mandate; [2]-The court reversed and vacated the restraints PERC placed on the city, including the requirement to negotiate the Negotiable Terms as the restraints imposed on the city under the circumstances impermissibly interfered with the city’s managerial prerogative to protect the health and safety of all its employees and the city residents with whom those employees come into contact.
    In re City of Newark, Nos. A-0146-21, A-0159-21, 2021 N.J. Super. LEXIS 127, at *1 (Super. Ct. App. Div. Sep. 27, 2021)

    We hold that the City has a non-negotiable managerial prerogative to immediately implement its COVID-19 vaccination mandate.
    In re City of Newark, Nos. A-0146-21, A-0159-21, 2021 N.J. Super. LEXIS 127, at *8 (Super. Ct. App. Div. Sep. 27, 2021)

    The question of whether the City has a managerial prerogative is primarily a question of law, which we review de novo. See In re Belleville Educ. Ass’n, 455 N.J. Super. 387, 406, 190 A.3d 487 (App. Div. 2018) (describing question of law as “subject [*10]  to de novo review”); see also Stoney v. Maple Shade Tp., 426 N.J. Super. 297, 307, 44 A.3d 601 (App. Div. 2012) (noting that injunctive relief decisions “are normally reviewed for abuse of discretion,” but “review is de novo where the disputed issue is a question of law”) (citation omitted). Moreover, because there was no evidentiary hearing and the parties are not disputing material facts, we are applying the law to undisputed facts. In essence, the PERC Director accepted the facts in the record and then applied the law to those facts. HN2 In such situations, appellate review is less deferential. See In re Ridgefield Park Bd. of Educ., 244 N.J. 1, 17, 236 A.3d 922 (2020) (observing that “when [a PERC] decision is based on . . . its determination of a strictly legal issue, [appellate courts] are not bound by the agency’s interpretation”) (internal quotation marks omitted).
    In re City of Newark, Nos. A-0146-21, A-0159-21, 2021 N.J. Super. LEXIS 127, at *9 (Super. Ct. App. Div. Sep. 27, 2021)

    In issuing the Executive Order, the Mayor relied on the public health emergency created by COVID-19 and his authority to supervise all City departments and City employees. See N.J.S.A. 40:69A-40. HN4 The Mayor, as the chief executive officer of the City, has the authority to establish policies governing City employees. See N.J.S.A. 40A:61-4(a) (“The mayor shall be the chief executive officer of the city.”). In public employment, that authority is well-established under the concept of a managerial prerogative.
    A managerial prerogative exists when (1) “some statutory or constitutional grant of authority” is delegated to a public employer; (2) a public employer exercises a commonly recognized managerial prerogative, “such as the right to hire or direct the work force;” or (3) a public employer is acting pursuant to a “nondelegable legislative directive.” Bd. of Educ. of Woodstown-Pilesgrove Reg’l Sch. Dist. v. Woodstown-Pilesgrove Reg’l Educ. Ass’n, 81 N.J. 582, 588, 410 A.2d 1131 (1980).
    In re City of Newark, Nos. A-0146-21, A-0159-21, 2021 N.J. Super. LEXIS 127, at *11 (Super. Ct. App. Div. Sep. 27, 2021)

    The Unions focus on the impact of the mandate to some of their members who have chosen not to be vaccinated. That focus, however, ignores the impact their “choice” has on coworkers and their families who have been vaccinated. Just as importantly, it ignores the impact on people with whom unvaccinated City employees come into contact. City police officers and firefighters go to or into homes, businesses, and public places daily where they encounter City residents. Indeed, all public employees interact with members of the public in a variety of settings and circumstances. Many of those residents are children [*20]  under the age of twelve who do not have the option of getting vaccinated at the current time.13 Given the scientifically undisputed risk of spreading this deadly virus, the City has the right to protect the public.
    In re City of Newark, Nos. A-0146-21, A-0159-21, 2021 N.J. Super. LEXIS 127, at *19-20 (Super. Ct. App. Div. Sep. 27, 2021)

     In that regard, it has long been established that there is no constitutional or statutory right to a government job. State-Operated Sch. Dist. of City of Newark v. Gaines, 309 N.J. Super. 327, 334, 707 A.2d 165 (App. Div. 1998) (“Our laws, as they relate to discharges or removal, are designed to promote efficient public service . . . . The welfare of the people as a whole, and not exclusively the welfare of the civil servant, is the basic policy underlying our statutory scheme.”). Consequently, City employees have the right to get vaccinated and keep their jobs or decide that they do not want to work for the common good.
    In re City of Newark, Nos. A-0146-21, A-0159-21, 2021 N.J. Super. LEXIS 127, at *21 (Super. Ct. App. Div. Sep. 27, 2021)

    The Unions have also failed to show that the harm to City employees is greater than the harm to the City. Close to seventy percent of New Jersey adults have been fully vaccinated.15 Responsible health experts uniformly agree that the COVID-19 vaccines are safe and effective. Delaying the implementation of a COVID-19 vaccination mandate puts people who have contact with unvaccinated people at greater risk and is a harm the City has a right to protect against. For those same reasons, the public interest will be furthered, and will not be harmed, by the City’s COVID-19 [*23]  vaccination mandate.
    In re City of Newark, Nos. A-0146-21, A-0159-21, 2021 N.J. Super. LEXIS 127, at *22-23 (Super. Ct. App. Div. Sep. 27, 2021)

    HOLDINGS: [1]-The Governor had the authority to issue an executive order compelling the closure of the physical operations of all non-life-sustaining business to reduce the spread of the novel coronavirus disease, as the pandemic qualified as a “natural disaster” under 35 Pa.C.S. § 7102, thereby triggering the Governor’s powers under 35 Pa.C.S. § 7301; [2]-Petitioners had not shown that a regulatory taking occurred under U.S. Const. amend. V or Pa. Const. art. I, § 10, as the order resulted in only a temporary loss of the use of their business premises; [3]-The order did not violate the right to free speech or assembly under U.S. Const. amend. XIV and Pa. Const. art. I, §§ 7 and 20 as it was tailored to meet the exigencies of the pandemic by restricting in-person gatherings to promote social distancing and did not prohibit alternative means of communication or virtual gathering.
    Friends of Devito v. Wolf, 227 A.3d 872, 876 (Pa. 2020)

Semper Fidelis ad Libertas, Veritas, et Justicia,

Peter Gibbons

Law Office of Gibbons & Associates

Carson City, Nevada



USA, Attorney, Peter Gibbons, opinion, judges

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