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LA County firefighters can proceed with privacy challenge over vaccine mandate

A federal granted a rare reprieve to LA county employees challenging a mandatory Covid vaccination requirement.

LOS ANGELES (CN) — A group of Los Angeles County firefighters can proceed with their lawsuit alleging that a mandate requiring them to get vaccinated against Covid-19 violates their right to privacy under the California Constitution.

U.S. District Judge Mark Scarsi on Wednesday denied LA County's bid to throw out the firefighters' right-to-privacy claim, saying that the claim was a mixed question of fact and law that he couldn't resolve at this stage of the litigation. The judge dismissed three of the firefighters' other claims, including a violation of due-process claim under the U.S. Constitution, but allowed them to try to revamp these in an amended complaint.

The judge's ruling is a rare victory in the lawsuits that LA city and county firefighters and police have brought over mandates that require them to get vaccinated or lose their job. A California Superior Court judge in February threw out a challenge by LA city firefighters, saying "we do not consult the man on the Clapham bus" to determine whether the vaccines were safe and effective in protecting the health and safety of the public.

Unlike the U.S. Constitution, the California Constitution contains an express right to privacy that includes a person’s medical history and the right "to retain personal control over the integrity of one’s body." But state courts in recent years have ruled that this right isn't sacred and that a compulsory vaccination scheme for schoolchildren doesn't infringe it.

Scarsi noted in his ruling that he disagreed with one of his colleagues on the LA federal court who in January tossed a challenge by a group of LAPD employees, including their California right-to-privacy claim because, that judge said, the police employees couldn't defeat the presumption of constitutional validity of vaccine mandate given the state's interest in preventing the spread of Covid.

"The Court agrees with the Burcham court that the general thrust of California law is that reasonable compulsory vaccination schemes do not violate California’s privacy right," Scarsi said, referring to the judge who dismissed the LAPD lawsuit. "The Court respectfully disagrees over the propriety of dismissing the claim without fact-finding."

Kevin McBride, an attorney representing the county firefighters, said the judge's ruling was "correct and courageous."

The group, LA County Free Foundation, represents 683 firefighters, 212 of whom have received termination notices because they haven't been vaccinated, McBride said, but all of them are still employed.

Scarsi, a Donald Trump appointee, didn't rule on the firefighters request for a preliminary injunction to stop the county from enforcing the vaccination mandate. Given that the judge indicated the merits of their California right-to-privacy claim depends on a factual analysis, McBride said it's not likely the judge will rule on an injunction without a further hearing or trial.

An attorney representing the county in the lawsuit didn't immediately respond to a request for comment on the ruling.

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