A federal lawsuit filed by six LAPD employees against the city’s vaccine mandate argues that the requirement violates their constitutional protections against illegal search and seizure without due process, as laid out in the Fourth and Fourteenth Amendments. But a legal expert on vaccine policy says that argument is unlikely to hold up in court.
The suit, which categorizes employee vaccine and testing requirements as a coerced seizure, argues:
“[I]nvasive medical testing, injections, and other bodily intrusions constitute a search within the meaning of the Fourth Amendment. The Constitution protects a person’s right to refuse unwanted medical care. This right is so rooted in our history, tradition, and practice as to require special protection under the Fourteenth Amendment.”
Professor Dorit Reiss of UC Hastings College of the Law says that argument has a fatal flaw. While taking body samples has been considered a form of illegal search, the city’s vaccine mandate is a workplace condition and not legal coercion because there’s no force involved, said Reiss, a vaccine policy expert and member of the Vaccine Working Group on Ethics and Policy.
“Nobody is grabbing them and vaccinating them and nobody is grabbing them and testing them. They are told, 'If you want to work here, you need to either test or get a vaccine.' It's not the same level of coercion," Reiss says.
Even if the plaintiffs argue that workplace conditions are a form of coercion under the law, Reiss says that wouldn’t apply in this case because public health law differs from criminal law.
In criminal law, a warrant or probable cause is needed to conduct a search. “In public health, the special needs doctrine says if the goal is health, we balance the interests,” she says. In short, concern for overall public health would take precedence.
The suit also alleges that the city’s vaccine mandate denies employees due process. Reiss said in these types of legal cases, judges use the reasonableness standard to determine if the rule makes sense in context.
“That's a standard that was used for vaccine ethics and I would be very surprised if anyone said it's unreasonable to require you to test for work because that's the alternative to vaccinating during a pandemic. It's reasonable to ask them to test for COVID during a pandemic," Reiss said.
The lawsuit also claims that “natural immunity” from a previous infection is just as good at protecting against the virus as a vaccine. Health experts say being infected can provide some level of immunity but it can vary significantly from one person to the next, and they point to growing evidence that vaccinating people who have had COVID-19 dramatically increases their protection against re-infection.
LAPD Chief Michael Moore recently called the vaccine mandate “legal” and “enforceable.” He's named as a defendant in the suit, along with L.A. Mayor Eric Garcetti and City Administrative Officer Matthew Szabo.
L.A. City Attorney Mike Feuer issued a video statement Monday in which he said the lawsuit "is much more political statement than it is sound legal argument," and expressed confidence the city will prevail.
"The U.S. Supreme Court, and courts across the country, have upheld vaccination mandates by government and they’ve done so because they said the greater good compels it," he said. "The greater good compels this right now."
Feuer added: “And I want to conclude with this: No first responder should be put in a position of coming into direct contact with a member of the public unless that first responder, unless that city employee, has been vaccinated."
Los Angeles city employees, including those working for the LAPD, are required to be fully vaccinated against COVID-19 by October 1. City employees can opt for weekly coronavirus testing instead but only if they’ve already filed for a medical or religious exemption.
It’s unclear what ramifications city employees will face if they fail to comply with the mandate. The LAPD says about half of its personnel were vaccinated as of June.
