A Florida city wants the judge who tossed out their “vaxx or axe” mandate to reconsider because she made a mistake.
Lawyers for Gainesville, Florida said Eighth Circuit Court Judge Monica Brasington had applied “the wrong legal standard” when ruling the city couldn’t require vaccines. They filed a motion Monday asking her to reconsider her opinion. A close reading of Judge Brasington’s ruling, however, shows she didn’t say the city was not allowed to require vaccinations. The judge ruled against the city because the city’s lawyers didn’t present evidence to support their claim.
“The City had an opportunity to present evidence that would show that this Vaccine Mandate was the least restrictive means to meet a compelling government interest,” Brasington opined in her September 22 six-page ruling. “The City did not do that and, in fact, did not present any evidence, at all. Therefore, the Court is required to find that the City failed to meet its burden of proving that the Vaccine Mandate furthers a compelling state interest in the least restrictive way.”
The City shall not enforce the Vaccine Mandate policy
The City shall not terminate or discipline any employee for failure to comply with the Vaccine Mandate
Days after Brasington’s ruling, the State of Florida sent the city a letter, warning it was in violation of state law that prohibits governments from requiring proof of vaccination or recovery from COVID-19. Any violations by the city would cost $5,000 for each employee required to provide that information, wrote Florida Department of Health employee Doug Woolief.
City employees rejoiced after receiving a city email saying the vaccination requirement would be dropped, along with requirements to wear masks and for citizens to wear masks when in the presence of city employees. Joy became trepidation with Monday’s motion to reconsider.
Gainesville attorney Jeff Childers represents 250 city employees. Childers told The Epoch Times he wasn’t worried, because the arguments and facts of the already-decided case hadn’t changed. He sounded nonplussed about the city’s request, reasoning it was something he probably would have done if he was in their shoes.
“It’s not unheard of for judges to reverse themselves,” Childers acknowledged. “But it’s rare, because the judge would have to say, ‘I got it wrong the first time.’” In his opinion, the filing shows the city plans to appeal the decision but needs more time than its 14-day window to prepare.
In his Thursday response to the city’s motion, Childers said their attorneys are just rehashing the arguments they raised at the original hearing but this time, they combined it with a variety of:
references to evidence not in the record
citations to inapplicable authority, and
wild speculation about the potential future direction of Supreme Court law
In the landmark 1905 case Jacobson v. Massachusetts, the United States Supreme Court upheld the authority of states to enforce compulsory vaccination laws. That bedrock principal has been the bulwark of mandates issued by counties, states and the federal government.
Childers said he parsed the court’s opinion in Jacobson about three months ago and believes he’s found the key to unlock victory using the very same case against municipalities imposing mandates.
“They’d convinced everybody, even me,” he said. “Jacobson has such archaic language, and it’s hard to read. You really have to unpack it.” State laws about privacy and bodily autonomy are the key, he believes. That belief helped convince the Circuit Court to toss Gainesville’s mandate.
Childers argued the court needed to consider his clients’ right to privacy enumerated in Florida’s Constitution.
The judge agreed the right to privacy is explicitly contained in the Declaration of Rights of the state’s Constitution, which means it is considered a fundamental right. Therefore, the government can only infringe that right if necessary to accomplish a compelling government interest. Even then, it must use the least restrictive means necessary to serve that interest, a legal principle known as the “strict scrutiny” standard of review.
“Therefore, this court must determine whether the City’s Vaccine Mandate implicates Plaintiffs’ fundamental right to privacy, such that the Vaccine Mandate should be reviewed under the strict scrutiny standard of review,” Brasington said.
She reasoned Florida law says a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to relevant decisions concerning one’s health. The judge then noted federal law considers compelled physical intrusion into the human body an invasion of bodily integrity that implicates constitutionally protected privacy interests.
The ruling further noted the Covid-19 vaccinations Gainesville wanted to mandate would use an intramuscular injection that can reasonably be considered a form of medical treatment and/or a medical procedure. Gainesville’s mandate appears to interfere with city employees’ fundamental right to privacy.
“If a challenged law implicates Florida’s right to privacy, the burden shifts to the government to prove that the law furthers a compelling state interest in the least restrictive way —also known as the “strict scrutiny” standard,” reasoned Brasington. She added the standard also applies in instances when the government employer seeks to enforce workplace policies.
“If the government fails to put on evidence of its compelling state interest, as the City failed to do here, the Court is not required to (and, in fact, cannot) make factual findings that the government has any compelling state interest,” concluded the judge, noting the government botched it when they could have presented evidence its mandate met the strict scrutiny standard.
The judge said that analyzing injunctions based on privacy challenges is much different than the normal injunction. Because the City failed to offer evidence of a compelling state interest to justify infringing the employees” right to privacy, the injunction inquiry is done. The court established the likelihood of success based on the merits by the threshold determination that the challenged law implicates a privacy right.
Childers thinks his success can scale to the national level and has been communicating with more than 100 lawyers around the country. Besides the vaccination fight in Gainesville, he is now leading, or helping with, 13 other cases challenging vaccine or school mask mandates in Florida, Georgia, California and South Carolina.
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