A group of San Francisco employees who refer to themselves as the United SF Freedom Alliance, or USFA, including one named firefighter, have filed suit against the City and County of San Francisco seeking to block the vaccine mandate. The suit claims San Francisco’s vaccine mandate for government employees is illegal, but relies upon a rather novel argument explained below.
The suit was filed last week in San Francisco County Superior Court. Besides the USAF, one firefighter (Jessica Kwok-Bo Lindsey), two police officers, two transits employees, one sheriff’s deputy, one plumber for the parks and recreation department, and one EMA employee were named as plaintiffs. In addition to the municipality, Fire Chief Jeanine R. Nicholson, Police Chief William Scott, the city’s HR director, and the city’s health officer were named as defendants.
The crux of the plaintiffs’ argument appears to be that because the vaccine cannot control the Delta strain of COVID19, and because the death rate from COVID is relatively low, the vaccine mandate is illegal. Here is how they lay out their argument:
- Over 99.8% of all those with COVID survive.
- Those who survive obtain robust and durable natural immunity.
- The natural immunity so obtained is superior to COVID vaccine-induced immunity.
- The COVID vaccines are ineffective against the Delta strain of COVID, which the CDC states is the dominant (>99%) strain throughout the United States.
- The CDC acknowledged that the vaccinated and unvaccinated are equally likely to spread the virus.
- The vaccines only reduce symptoms of those who contract COVID, but not transmission of the virus. They are, therefore, treatments, and not vaccines as that term has always been defined in the law.
- The CDC changed its definitions of “vaccine in August 2021.
- The CDC formerly described vaccination as “the act of introduction a vaccine into the body to produce immunity to a specific disease.”
- The definition has since been changed and now reads: “the act of introducing a vaccine into the body to produce protection to a specific disease.”
- This is a critical factual and legal distinction.
- Legal authority to mandate medical treatment only derives under public health regulations.
- As the CDC holds that Delta is the only strain; that the shots do not stop the transmission of Delta; and that vaccination is mere “protection” against a disease and not “immunity” against the disease; claiming there is a public health mandate is fallacious.
- The COVID vaccines cause a significantly higher incidence of injuries, adverse reactions, and deaths than any prior vaccines that have been allowed to remain on the market, and, therefore, pose a significant health risk to recipients, who are, by definition, healthy when they receive the COVID vaccines; and
- Since, according to the CDC, the COVID vaccines do not prevent the infection or transmission of COVID, while at the same time, also according to the CDC, they result in a massively anomalous (1000% higher) number of adverse events and deaths, there is no justification in the law for mandating them, and the City’s mandate must therefore be struck down.
The complaint goes on to allege the same causes of action we have seen in previous suits: due process violations, equal protection violations, violations of the American with Disabilities Act, and similar state law claims.
As my regular readers know, I generally do not editorialize but that is something I always reserve to right to do. When information appears to be patently inaccurate, I think it prudent to go beyond what is alleged so as not to further contribute to the spread of misinformation. This has nothing to do with my personal beliefs about the privacy and freedom of choice issues in play here. This is science. The data is what the data is. Relative to the allegation in the complaint that 99.8% of those with COVID survive, that number does not jive with any reputable sources of information I was able to locate. While the information is surprisingly variable depending on the source, the death rate appears to range between 3.4% of known cases worldwide (WHO, 2021), down to an estimated 1.4% of actual infections (estimation necessary because many with minor cases of the disease do not get tested). My analysis using data from this web site – Worldometers – that lists 4,995,895 deaths wordwide out of 246,245,208 total cases yielding a death rate of 2.03% as of today. An AP fact check put the number at 1.8%. More on AP. All these numbers ignore the greater risk among certain populations. Here is more FactChecking from Politifact.
Compare these numbers to the prevalence of paralysis and death from polio – where vaccines were universally embraced by most when they were introduced: less than 1% of children infected with polio develop paralysis, and among that percentage, only 2-5% will result in death. See CDC for more. No doubt the numbers climb in other demographics – but perspective on frequency of death/severe illness is important. Even a death rate less than 1% is deeply concerning, and not something to be trivialized.
As to the allegation that natural exposure to COVID produces a more robust immune response, the jury is out on that issue, and will likely remain out for a bit longer. As a biology major and someone who has studied advanced bacteriology and immunology in graduate school, the truthful answer to that question may take several more years for us to full understand. Here is more on that.
The bottom line is something I could repeat virtually every day and in every blog post here in Fire Law (which is why I don’t keep mentioning it – it should go without saying): allegations made in a lawsuit are allegations and nothing more. They are not proof. They may be true, they may be false, but they should not be relied upon beyond acknowledging the fact that one side in a lawsuit earnestly believes – and perhaps actively desires others to believe – them to be true.
It is unfortunate that this statistical “numbers game” may distract from the legitimate questions otherwise raised about the rights of individuals compared to the rights of the community.
Here is a copy of the complaint: