Thread by @hamill_law

Wow. The 9th Circuit decision in Health Freedom Defense Fund v. Carvalho is a thing of beauty... Thread:

Much like LADPH and other authoritarian government agencies, LAUSD had a pattern of withdrawing and then reinstating its vaccination policies.
According to the Court, this pattern was enough to keep the case alive.
"The record supported a strong inference that LAUSD waited to see how the oral argument in this court proceeded before determining whether to maintain the Policy or to go forward with a pre-prepared repeal option.
LAUSD expressly reserved the option to again consider imposing a vaccine mandate. Accordingly, LAUSD has not carried its heavy burden to show that there is no reasonable possibility that it will again revert to imposing a similar policy." The mootness argument was rejected.

Then, we get to the real juice.
"[T]he district court misapplied the Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), in concluding that the Policy survived rational basis review.
Jacobson held that mandatory vaccinations were rationally related to preventing the spread of smallpox.
Here, however, plaintiffs allege that the vaccine does not effectively prevent spread but only mitigates symptoms for the recipient and therefore is akin to a medical treatment, not a “traditional” vaccine.
Taking plaintiffs’ allegations as true at this stage of litigation, plaintiffs plausibly alleged that the COVID-19 vaccine does not effectively “prevent the spread” of COVID-19. Thus, Jacobson does not apply."

At this point I'm stunned that the 9th Circuit wrote a decision that would have been banned by Twitter, Meta, and all mainstream media outlets. Schiff must be losing his mind.

OH MY GOD.
"According to a declaration submitted by Plaintiffs’ counsel, LAUSD’s attorney turned to him as they were leaving the courtroom and said, “What are you going to do when we rescind the mandate?” That same day, LAUSD’s Superintendent (the Superintendent) submitted to the LAUSD Board (the Board) of Education a proposal to repeal the mandate. Twelve days later, (the Board) voted to rescind the Policy by a six to one vote, with one abstention. This lawsuit was mentioned by members of the public at the meeting of the Board. Indeed, one commenter played excerpts from the publicly available audio recording of the oral argument in this court."

THIS IS IN THE DECISION. Brutal for LAUSD and its lawyers.

Now come Jackie Goldberg's famous comments:
"Board President Goldberg said that she had a “foot in [the] camp with Dr. McKenna.” Id. (1:13:12 – 1:15:12). While she acknowledged that the virus was now “endemic,” she also said she did not regret imposing the mandate for “one moment, not 30 seconds, not one tiny bit.” Id. (1:13:15–22). When the vote on the repeal was called, she voted, “Reluctantly, yes.” Id. (1:18:23–26)."

🔥🔥 "We held oral argument on the morning of September 14, 2023, where LAUSD’s counsel was vigorously questioned. That same day LAUSD submitted a report recommending rescission of the Policy. Twelve days later, LAUSD withdrew the Policy. Litigants who have already demonstrated their willingness to tactically manipulate the federal courts in this way should not be given any benefit of the doubt. LAUSD’s about-face occurred only after vigorous questioning at argument in this court, which suggests that it was motivated, at least in part, by litigation tactics."

Onto the merits:
"The district court relied on Jacobson to hold that the Policy was rooted in a legitimate government interest. (citation). But Jacobson does not directly control based on Plaintiffs’ allegations. In Jacobson, the Supreme Court balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease. (citation). The Court explained that the “principle of vaccination” is “to prevent the spread of smallpox.” (citation). Because of this, the Court concluded that the State’s interest superseded Jacobson’s liberty interest, and the vaccine requirement was constitutional."

"The district court reasoned that “Jacobson does not require that a vaccine have the specific purpose of preventing disease.” (citation). It acknowledged Plaintiffs’ allegations that the vaccine did not “prevent transmission or contraction of COVID-19.” (citation). But it declared that “these features of the vaccine further the purpose of protecting LAUSD students and employees from COVID-19,” and thus “the Policy survives rational basis review.”"

Now the meat: "This misapplies Jacobson. Jacobson held that mandatory vaccinations were rationally related to “preventing the spread” of smallpox. (citation). Jacobson, however, did not involve a claim in which the compelled vaccine was “designed to reduce symptoms in the infected vaccine recipient rather than to prevent transmission and infection.” (citation). The district court thus erred in holding that Jacobson extends beyond its public health rationale—government’s power to mandate prophylactic measures aimed at preventing the recipient from spreading disease to others—to also govern “forced medical treatment” for the recipient’s benefit."

"At this stage, we must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true. (citation). And, because of this, Jacobson does not apply. LAUSD cannot get around this standard by stating that Plaintiffs’ allegations are wrong. Nor can LAUSD do so by providing facts that do not contradict Plaintiffs’ allegations. It is true that we “need not [] accept as true allegations that contradict matters properly subject to judicial notice.” (citation). But even if the materials offered by LAUSD are subject to judicial notice, they do not support rejecting Plaintiffs’ allegations. LAUSD only provides a CDC publication that says “COVID-19 vaccines are safe and effective.” But “safe and effective” for what? LAUSD implies that it is for preventing transmission of COVID-19 but does not adduce judicially noticeable facts that prove this."

👀

Finally: "This case is not moot. And the district court wrongly applied Jacobson to the substantive due process claim. Thus, we vacate the district court’s order and remand. VACATED AND REMANDED."

Full decision: cdn.ca9.uscourts.gov/datastore/opin…

This is not my case. Counsel on this case:
Good guys: John W. Howard (argued) and Scott J. Street, JW Howard Attorneys LTD., San Diego, California;
George R. Wentz, Jr., The Davillier Law Group LLC, New Orleans, Louisiana; for Plaintiffs-Appellants.

Authoritarian government: Connie L. Michaels (argued), Littler Mendelson PC, Los Angeles, California; Carrie A. Stringham, Littler Mendelson PC, San Diego, California; for Defendants-Appellees.

ALSO, Elizabeth Robles (sp?) is a hero for playing the oral argument before the LAUSD board meeting. This strategic move helped disprove LAUSD's arguments re: mootness. This clip is cited in a footnote in the 9th Circuit decision: youtube.com/live/qQf_y77un…