Re: Assumptions by the US Courts are Dangerous
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: -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; -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: -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; -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; -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)
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