[00:00:00] Speaker 01:
Thank you.

[00:00:00] Speaker 02:
Thank you both for your arguments.

[00:00:05] Speaker 02:
All right, the next matter on calendar is Keith Wilkins versus Steve Herron 24-80.

[00:00:11] Speaker 02:
Each side has 15 minutes.

[00:00:27] Speaker 04:
Good morning, Your Honors.

[00:00:28] Speaker 04:
My name is Stephen Jankos, representing Keith Wilkins.

[00:00:32] Speaker 04:
I'd like to reserve five minutes for rebuttal.

[00:00:37] Speaker 04:
Scores of challenges to COVID vaccine mandates have been rejected by the courts across the country based on Jacobson versus Massachusetts, and the conclusion that a rational basis test applies to that consideration.

[00:00:52] Speaker 04:
This district court did the same.

[00:00:54] Speaker 04:
It relied on Jacobson.

[00:00:56] Speaker 04:
However, after this court's opinion in Health Freedom Defense versus Calvallo in June of this year, Jacobson is inapplicable.

[00:01:11] Speaker 04:
That court found that Jacobson relied on, was based on a health, public health rationale.

[00:01:19] Speaker 04:
And when the plaintiff in that case pled that the COVID vaccines do not confer immunity, that wipes out the public health rationale.

[00:01:28] Speaker 04:
There's no rational basis to mandate a vaccine that does not confer immunity.

[00:01:34] Speaker 02:
Well, OK, but Jacobson upheld a vaccine mandate over the defendant's objections that

[00:01:40] Speaker 02:
the vaccine was ineffective and unsafe.

[00:01:42] Speaker 02:
So for the purposes of qualified immunity, how could we determine that Mr. Wilkins had a clearly established right to refuse a vaccine or wear a mask during the pandemic?

[00:01:57] Speaker 02:
Because qualified immunity has got two prongs.

[00:01:59] Speaker 02:
So I don't see how it was clearly established.

[00:02:05] Speaker 04:
It's clearly established because he is a human being.

[00:02:11] Speaker 04:
And you cannot mandate an experimental drug on a human being.

[00:02:15] Speaker 02:
And that is a some- Clearly established ties to case law.

[00:02:21] Speaker 04:
The Nuremberg Trials, Your Honor.

[00:02:23] Speaker 04:
The Nuremberg Trials established that under God you cannot experiment on human beings.

[00:02:32] Speaker 04:
Now that was the doctors in that case.

[00:02:35] Speaker 03:
Can you cite to a Supreme Court or a Ninth Circuit case or actually any circuit case?

[00:02:40] Speaker 03:
that would help you in your clearly established law analysis?

[00:02:46] Speaker 04:
No, because no government until COVID came along was stupid enough to mandate a experimental drug.

[00:02:59] Speaker 04:
Has never happened before.

[00:03:01] Speaker 04:
The only case where that happened was in the case of the military in the District of Columbia.

[00:03:12] Speaker 04:
And the judge in that case said, I'm not going to make servicemen guinea pigs to test experimental drugs.

[00:03:23] Speaker 04:
So the Nuremberg code, the doctors at Nuremberg objected.

[00:03:30] Speaker 03:
The problem is, let's stay with the doctrine of qualified immunity for a moment.

[00:03:34] Speaker 03:
There's a lot there.

[00:03:35] Speaker 03:
You started your argument with the Jacobson argument.

[00:03:40] Speaker 03:
That's fine.

[00:03:40] Speaker 03:
So I take it that you view that to be one of your stronger arguments.

[00:03:45] Speaker 03:
But in order for qualified immunity not to apply, you've got the point to clearly establish case law.

[00:03:52] Speaker 03:
So in the absence of that, then the administrators get qualified immunity.

[00:03:56] Speaker 03:
Isn't that the current state of the law?

[00:03:58] Speaker 04:
Well, I have two responses to that.

[00:04:01] Speaker 04:
One is in other jurisdictions, not the Ninth Circuit, qualified immunity does not apply to premeditated acts.

[00:04:09] Speaker 04:
So qualified immunity is justified on a police officer reacting quickly under stress in a dangerous situation.

[00:04:15] Speaker 04:
That's the rationale for qualified immunity.

[00:04:18] Speaker 04:
And Justice Thomas has commented, why should that same rationale apply to something that's a premeditated act where they had time to make a decision?

[00:04:25] Speaker 04:
So qualified immunity should not apply in a case of a premeditated act.

[00:04:31] Speaker 04:
I recognize that the Ninth Circuit is on the other side of that point, so you have to follow that precedent.

[00:04:41] Speaker 04:
But a juice quotient's right is so fundamental that the doctors at Nuremberg who said, you can't prosecute me under this because of ex post facto law,

[00:04:55] Speaker 04:
And the chief judge of the Supreme Court, who is there, said, no, this is under God.

[00:05:02] Speaker 04:
You should have known.

[00:05:04] Speaker 04:
There is no qualified immunity for a juice cogen's right, which is above all other law.

[00:05:09] Speaker 04:
You should have known what they told the doctors.

[00:05:13] Speaker 04:
And that's true for every human being in the world, because the Nuremberg Code applies to all states.

[00:05:23] Speaker 02:
Can we talk about?

[00:05:28] Speaker 02:
the Monell claim.

[00:05:30] Speaker 02:
All right.

[00:05:31] Speaker 02:
And I'm going to ask your friend on the other side to address this as well.

[00:05:36] Speaker 02:
That it appears that they're claiming they were applying state law that was binding on the municipality at the time.

[00:05:51] Speaker 02:
And the state law that we're talking about here does not appear to have been enacted until after your client was either put on administrative leave or actions were taken.

[00:06:05] Speaker 02:
So I'm curious what state law we're talking about that they were applying.

[00:06:10] Speaker 04:
They were applying the vaccine mandate that happened before.

[00:06:18] Speaker 04:
My client was put on leave, and before Ben Lepine School District instituted their policy, it was the mandate by Governor Brown that all doctors, all medical workers, and all school teachers.

[00:06:36] Speaker 02:
I think that they were applying some other law that happened after he was actually put on leave, so I'm curious.

[00:06:44] Speaker 04:
Well, there was a series of temporary

[00:06:47] Speaker 04:
rules that Oregon put into place, and they stretched from August of 2021 into 2022.

[00:06:57] Speaker 04:
But it was August of 2021 that that mandate went into effect, and it had a deadline to get to comply, I think it was October 21st of 2021.

[00:07:08] Speaker 02:
So are you aware of any case holding that a municipality may be liable under Monell merely for enforcing a state law that was binding on the municipality?

[00:07:20] Speaker 04:
Yes.

[00:07:20] Speaker 04:
Evers.

[00:07:21] Speaker 04:
Evers versus County of Custer, 745 Fed 2nd, 1196, Ninth Circuit, 1984.

[00:07:29] Speaker 04:
So there is a circuit split.

[00:07:30] Speaker 04:
Ninth Circuit says that there is no good faith exception to faithfully following orders from the state, a higher authority.

[00:07:40] Speaker 04:
But Evers says the policy of 1983 is not to protect municipalities.

[00:07:46] Speaker 04:
It's to protect individuals.

[00:07:48] Speaker 04:
from who are wronged by the misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.

[00:08:00] Speaker 04:
So the Ninth Circuit.

[00:08:02] Speaker 00:
I guess I slightly disagree with your characterization of there being a circuit split, as more as there being a distinction in the circumstances of these cases.

[00:08:12] Speaker 00:
So there's when the municipality has discretion

[00:08:18] Speaker 00:
and how they're enforcing state law, we say that there can be a manel liability.

[00:08:24] Speaker 00:
But in our cases where the municipality had no discretion and there was simply a straight mandate that this municipality do something,

[00:08:34] Speaker 00:
We said there cannot be Monell liability.

[00:08:36] Speaker 00:
So where in your case is there?

[00:08:39] Speaker 00:
Do you have a case where there was no discretion?

[00:08:43] Speaker 00:
And we found Monell liability?

[00:08:46] Speaker 00:
Or was there discretion here?

[00:08:48] Speaker 04:
I don't understand that to be a distinction.

[00:08:53] Speaker 04:
I think a distinction is whether they were enforcing a law

[00:08:58] Speaker 04:
In other words, they were pulling someone over on the street or something, or whether they had a policy, whether they institute their own policy or whether they institute their own policy.

[00:09:07] Speaker 02:
Your complaint alleges that Mr. Wilkins was placed on unpaid leave in February 2021.

[00:09:13] Speaker 02:
That was before the state regulatory vaccine and mandates took effect.

[00:09:18] Speaker 02:
If you had a chance to amend, I understand that the district court dismissed this without leave to amend.

[00:09:24] Speaker 02:
You didn't get a chance to amend.

[00:09:27] Speaker 02:
If you had a chance to amend, could you allege facts to show that Mr. Wilkins was placed on unpaid leave pursuant to some policy or custom of the district, and if so, what would you allege?

[00:09:43] Speaker 02:
I want your offer of proof on that.

[00:09:46] Speaker 02:
uh... i really have to look back at the complaint as i pretty sure this is twenty twenty two were talking about uh... but well if you wanna if you want leave to amend on the nail claim it was just met so what more could you allege

[00:10:02] Speaker 02:
I just went through what you alleged.

[00:10:04] Speaker 04:
That it was the policy of Ben Lepine School District to enforce, to mandate vaccines.

[00:10:14] Speaker 02:
But what policy, do you have written down policies?

[00:10:17] Speaker 02:
What do you have?

[00:10:20] Speaker 04:
That's what I could amend with specifics in various communications from Ben Lepine School District to my client.

[00:10:28] Speaker 04:
And communications, I could specify the communications between my clients.

[00:10:33] Speaker 00:
Would the allegation be that they had a policy independent of the state law, or they just had a policy of following the state law?

[00:10:42] Speaker 04:
They had a policy of implementing the vaccine mandate.

[00:10:48] Speaker 00:
From the state.

[00:10:49] Speaker 04:
I don't even know they referred to the state law.

[00:10:52] Speaker 04:
Their excuse now is that they're following state law.

[00:10:55] Speaker 04:
But I have to go back and look.

[00:10:59] Speaker 04:
But my belief is they mandated policy based on, I mean, of course, they were spurred on by the state law.

[00:11:08] Speaker 03:
But that fact that they have a policy is- Let me try again, because I'm not sure if I got your answer or understood your answer to Judge Callahan's question.

[00:11:19] Speaker 03:
You amended once as a matter of right below, right?

[00:11:23] Speaker 03:
And the amended complaint doesn't allege any policy

[00:11:29] Speaker 03:
or custom that's independent of state law.

[00:11:32] Speaker 03:
So if you were given an opportunity to amend law, amend right now one more time, would you be able to come up with any additional allegations of a custom or policy independent of the policy to implement state law?

[00:11:49] Speaker 04:
It was not independent of state law.

[00:11:51] Speaker 04:
They created the policy because of the state law.

[00:11:56] Speaker 04:
But it is still, once they create a policy,

[00:11:59] Speaker 04:
when it's their policy, when it's municipal policy, there's no excuse, basically.

[00:12:07] Speaker 04:
There's no qualified immunity for those acts.

[00:12:18] Speaker 04:
They could have not followed state law.

[00:12:24] Speaker 04:
They could have not followed state law and recognized that the Nuremberg Code is the supreme law of the land.

[00:12:31] Speaker 04:
And you can't mandate people to take experimental drugs.

[00:12:34] Speaker 04:
They could have done that.

[00:12:35] Speaker 02:
OK.

[00:12:36] Speaker 02:
So you're down to three minutes.

[00:12:38] Speaker 02:
Would you like to reserve?

[00:12:40] Speaker 04:
Yes.

[00:12:40] Speaker 02:
OK.

[00:12:41] Speaker 02:
Thank you.

[00:12:42] Speaker 02:
All right.

[00:12:42] Speaker 02:
We'll hear from the district.

[00:12:51] Speaker 02:
Good morning.

[00:12:52] Speaker 01:
Good morning.

[00:12:53] Speaker 01:
May it please the court, Beth Plass on behalf of Steve Herron, Chad Lowe, Stephen Cook, Paul Dean, and the Ben Lepine School District.

[00:13:01] Speaker 01:
The court should affirm the dismissal of all claims in Mr. Wilkamp's complaint without leave to replede.

[00:13:07] Speaker 02:
Well, let me let me go back on this because the plaintiff alleges that he was placed on unpaid leave in February 2021 before the state's regulatory vaccine and mask mandates took effect.

[00:13:18] Speaker 02:
Why shouldn't we grant him leave to amend with respect to Monell?

[00:13:22] Speaker 02:
policy or custom and requirement because the state law that you said you were relying on didn't come into effect till after he was placed on administrative leave so I don't understand that.

[00:13:36] Speaker 01:
Well I think that the plaintiff certainly has argued throughout this case and I can give you some citations to the record that his injuries were caused by the state law and that the district was following the state law.

[00:13:46] Speaker 03:
Can you pull the microphone down just a little bit?

[00:13:49] Speaker 03:
Thank you.

[00:13:50] Speaker 01:
that the complaint is clear, there's no dispute that the alleged injuries that this plaintiff is relying on are cause by.

[00:13:58] Speaker 02:
But the law that you said you were enforcing was after he was put on administrative leave.

[00:14:03] Speaker 02:
So what were you enforcing in February 2021 when he was put on leave?

[00:14:10] Speaker 01:
I believe that would be the mask mandates and not the vaccine mandates, but I don't think it's clear from the plaintiff's complaint that that's what was going on.

[00:14:20] Speaker 01:
But I think it is clear, and there's certainly no dispute in paragraph 31 of his amended complaint, paragraph 16.

[00:14:26] Speaker 02:
So there was no vaccine mandate in 2021?

[00:14:30] Speaker 01:
The vaccine mandate is...

[00:14:34] Speaker 01:
the date that it came into effect or that school officials were required to enforce it.

[00:14:42] Speaker 02:
Do you get what I'm saying here?

[00:14:44] Speaker 02:
You're saying he got put on administrative leave because he wouldn't get vaccinated and he wouldn't wear a mask, right?

[00:14:51] Speaker 01:
I think that he was put on that.

[00:14:53] Speaker 02:
And the state law didn't come into effect until after he got put on administrative leave.

[00:14:57] Speaker 02:
So I'm trying to address that February 2021 period to the August 2021 period and find out what your policy was.

[00:15:07] Speaker 02:
What were you enforcing if it wasn't in effect?

[00:15:10] Speaker 01:
So there are two policies at issue here.

[00:15:12] Speaker 01:
There is a mask mandate that the state issued that we were enforcing.

[00:15:16] Speaker 01:
And I think that's what triggered Mr. Wilkins to go on leave.

[00:15:21] Speaker 01:
And then subsequent to that, I believe it was issued in August, but the requirement to get vaccinated

[00:15:28] Speaker 01:
was issued and the requirement to become vaccinated.

[00:15:31] Speaker 01:
The school district was mandated to require that by October of twenty twenty one.

[00:15:36] Speaker 01:
So the impetus to putting Mr. Wilkins on leave was his refusal to comply with the mask requirement.

[00:15:42] Speaker 02:
So that's kind of so it didn't have anything to do with a vaccine.

[00:15:45] Speaker 01:
Correct because the district wasn't mandating the vaccine until after the state the district in fact never did the district is only following state law.

[00:15:53] Speaker 02:
So do you have any of your own policy is what do you have any policies.

[00:15:59] Speaker 01:
There's no allegations in the complaint about policies of the school district.

[00:16:05] Speaker 01:
The allegations in the complaint, again, are alleged to be that the district was doing this at the direction of the state.

[00:16:14] Speaker 01:
And again, it's in the record plaintiff's excerpt at 22, which is the amended complaint, paragraph 31.

[00:16:20] Speaker 01:
the Excerpt 29, paragraph 63 of the complaint, and the whole briefing is essentially that the school district was complying with, was enforcing a state mandate.

[00:16:33] Speaker 02:
So if the plaintiff or the appellant here just argued that your Monell argument is foreclosed by Evers, I asked for a case, and I'm sure you're familiar with Evers v. Kester.

[00:16:46] Speaker 02:
So what's your response to his argument that Evers forecloses?

[00:16:51] Speaker 01:
It doesn't.

[00:16:52] Speaker 01:
And I think that the court already sort of explained the distinction.

[00:16:57] Speaker 01:
In the case law, I think we cited a number of out-of-circuit cases for this very point.

[00:17:03] Speaker 01:
And the appellants cited Evers.

[00:17:05] Speaker 01:
And if you read those cases, the threat is generally this.

[00:17:09] Speaker 01:
If an alleged constitutional violation is the very thing mandated by the statute,

[00:17:14] Speaker 01:
then a municipal entity can't be liable under Monell because there's no policy choice by the local body that caused the violation if the challenge is to the very thing authorized.

[00:17:25] Speaker 01:
Now, if the question is instead, is the challenge to the manner in which it was implemented, then that is something that potentially

[00:17:35] Speaker 01:
a municipal entity could be liable for.

[00:17:38] Speaker 01:
And that's exactly Evers.

[00:17:40] Speaker 01:
In fact, in Evers, a state statute permitted a county to issue declarations creating road easements over private land, and the county did that.

[00:17:49] Speaker 01:
And the county ultimately was not able to escape Monell liability, because in that case, they imposed that, I think easement is the wrong term, but generally easement, without providing notice and an opportunity to be heard.

[00:18:02] Speaker 01:
The challenge in Evers was not a challenge to road easements, period.

[00:18:08] Speaker 01:
It was a challenge to the procedure by which they imposed it.

[00:18:12] Speaker 02:
Let me ask you about the due process vaccine claim.

[00:18:16] Speaker 02:
Do you dispute that under Health Freedom Defense Fund, the district court erred in dismissing the due process claim with respect to the vaccine mandate?

[00:18:26] Speaker 02:
And if so, on what basis?

[00:18:30] Speaker 01:
I do think that the court should still uphold the due process claim for a number of reasons.

[00:18:36] Speaker 02:
OK.

[00:18:37] Speaker 02:
You jumped right ahead.

[00:18:39] Speaker 01:
Sure.

[00:18:39] Speaker 02:
My question was, do you dispute that under Health Freedom Defense Fund, which we're currently bound by, while it's not final at this stage, do you dispute that the district court erred in dismissing the due process claim with respect to the vaccine mandate?

[00:18:56] Speaker 01:
I don't think the court couldn't have procedurally because that case was issued after, but you could find, I mean, you could.

[00:19:05] Speaker 01:
I would say that you shouldn't.

[00:19:07] Speaker 02:
Well, it's on the books right now.

[00:19:08] Speaker 01:
Right.

[00:19:10] Speaker 01:
I think health freedom is distinguishable on a number of grounds.

[00:19:13] Speaker 01:
Of course, first, the issue was about an actual school district's policy that was mandating vaccines.

[00:19:20] Speaker 01:
It wasn't tied to this.

[00:19:21] Speaker 01:
I think it's California is where it originated.

[00:19:24] Speaker 01:
So it wasn't tied to a state mandate.

[00:19:26] Speaker 01:
So it's distinguishable there.

[00:19:28] Speaker 01:
And the school district had some bad behavior on shifting to try to avoid review by this very court.

[00:19:35] Speaker 01:
But it's true that the plaintiffs allege that the vaccine did not stop the spread of the vaccine, but the court takes pains to say that all the court had at its disposal in that case was that allegation.

[00:19:48] Speaker 01:
There was nothing on the school side of the ledger about why, and the score

[00:19:53] Speaker 01:
The court in that case specifically said there was nothing judicially noticeable for it to refer to, it doesn't say even if we were going to apply rational basis, but it says there's basically nothing in the record.

[00:20:08] Speaker 01:
Here it's the complete opposite.

[00:20:11] Speaker 01:
The rules themselves that the school district was enforcing give the justification for the vaccine, including stopping the spread.

[00:20:19] Speaker 01:
The emergency use authorization rules that Mr. Wilkins has relied on repeatedly in this case state that emergency use authorization can only be given when medications are effective in diagnosing, treating, or preventing disease.

[00:20:36] Speaker 02:
Well, we're in a different place right now than we were back in, you know, and I mean, I think all of us here lived through 2020 when it started and everything, you know, that we all

[00:20:48] Speaker 02:
And many of us have been poked many times by now with vaccines.

[00:20:54] Speaker 02:
And many of us have also gotten COVID, even though we've had vaccines.

[00:21:00] Speaker 02:
So is there something different about now than it was back then?

[00:21:06] Speaker 02:
I mean, people

[00:21:07] Speaker 02:
You know, I think many people thought at the time that we were all going to die and that the vaccines were going to work in a way that we wouldn't get COVID and any number of things.

[00:21:18] Speaker 02:
And now the science is a little, there's more, it's a lot more contested.

[00:21:24] Speaker 02:
So is there something that he can allege now that it's, we're in a different place now than we were back then.

[00:21:32] Speaker 02:
And the science is in a different place.

[00:21:34] Speaker 02:
And we do have this health freedom case.

[00:21:38] Speaker 02:
Should he be allowed an opportunity to amend?

[00:21:42] Speaker 01:
Well, he didn't ask for an opportunity to amend in the district court in response to our motion to dismiss.

[00:21:48] Speaker 01:
He didn't ask for an opportunity to amend, I believe, in his opening brief or in his reply brief.

[00:21:53] Speaker 01:
So I think the answer is no.

[00:21:54] Speaker 01:
And I think if the court is considering that, it should be quite specific about what that could possibly be, given that there has never been a request.

[00:22:02] Speaker 01:
There have not been clear answers about what those allegations might be.

[00:22:05] Speaker 02:
But if, let's say, depending on how we read Health Freedom,

[00:22:10] Speaker 02:
If we read that to say that there could be an opportunity to amend, he didn't know about health freedom at the time previously, right?

[00:22:24] Speaker 01:
But he does allege in his complaint that the vaccines are not effective.

[00:22:29] Speaker 01:
So I don't think that that matters.

[00:22:31] Speaker 01:
It's not material to the court's decision.

[00:22:33] Speaker 01:
And of course, our beginning argument here is that there certainly should be qualified immunity for the individuals.

[00:22:39] Speaker 01:
And second of all, the Monell liability issue is not impacted by health freedom at all.

[00:22:45] Speaker 00:
And if we were to agree with that, that even

[00:22:50] Speaker 00:
Given health freedom, it didn't come early enough to prevent, to provide clearly established law here, right?

[00:23:00] Speaker 00:
So then there would be qualified immunity and then the monella liability.

[00:23:04] Speaker 00:
I understand your argument.

[00:23:05] Speaker 00:
Is there anything left after that?

[00:23:08] Speaker 01:
Well, again, I think that what's left is carefully reading health freedoms, pointing to the absence of any judicially noticeable facts.

[00:23:21] Speaker 01:
And the school district just had nothing to point to.

[00:23:23] Speaker 01:
And here- Right.

[00:23:24] Speaker 01:
Does he have any claims left?

[00:23:26] Speaker 01:
No, no, I think I think not because all of the claims in the complaint in this case are 1983 claims against the individuals and against the the Penn-Lapine School District and So the Monell issue and the qualified immunity issue and I think we've talked a lot about the the vaccine the substantive due process claims over the vaccines and the mask I think the the

[00:23:53] Speaker 01:
It's really clear that the First Amendment claim related to compelled conduct for wearing a mask is foreclosed by Jacobs v. Clark County and the Supreme Court case in Fair.

[00:24:04] Speaker 01:
And the FDA claim is, you know, there's no private right of action under a long line of Ninth Circuit cases to bring a claim to enforce an alleged right given by that statute.

[00:24:20] Speaker 01:
And furthermore, it just doesn't apply to my clients.

[00:24:25] Speaker 01:
Continuing on the health freedom issue, again, I pointed out a couple examples, but I also wanted to note that in Mr. Wilkins' own submissions, he cites to a number of sources from the FDA.

[00:24:40] Speaker 01:
An example would be in his own adendum at page 154 that says that the Pfizer vaccine at the time that this was implemented

[00:24:49] Speaker 01:
was active for immunization to prevent COVID-19.

[00:24:52] Speaker 01:
So that's another distinguishing factor from what the court had before it in health freedom.

[00:24:59] Speaker 01:
I think Jacobson, going back to Jacobson but squaring it with health freedom, it talks about if you have competing views about science or studies related to vaccine requirements, the court has to assume that when the statute in question was passed, the legislature was not unaware of competing theories.

[00:25:17] Speaker 01:
and was compelled out of necessity to choose between them.

[00:25:21] Speaker 01:
And so I think it was completely appropriate for the court, given the record before it, the allegations in the complaint, and what the plaintiff himself included in it, to resolve this case on a rational basis with what it had.

[00:25:34] Speaker 01:
And finally, as to health freedom itself, I just want to point out some things that Jacobson talks about that health freedom does not.

[00:25:46] Speaker 01:
Jacobson itself talks about that smallpox vaccines were, quote, to render smallpox less dangerous to those who contract it.

[00:25:56] Speaker 01:
And then the footnote in that case, the very ending

[00:25:59] Speaker 01:
conclusion talks about the history of vaccines and studies that have been done and one of the things that it notes is that the English Royal Commission found the vaccine modified the character of the disease and render it less fatal.

[00:26:13] Speaker 01:
So I think it's a little bit too narrow to limit Jacobson to just vaccines that prevent transmission because that's not what Jacobson itself said.

[00:26:23] Speaker 01:
In short, I think my clients are certainly entitled to qualified immunity and I think the court should uphold the grant of the dismissal of the school district because it was just enforcing a mandatory policy and there's no challenge to the discretion in which my clients have done so.

[00:26:45] Speaker 02:
Thank you.

[00:26:53] Speaker 04:
So the sequence of events, I want to clarify.

[00:26:57] Speaker 04:
My client was first put on administrative leave, as the complaint says, before the vaccine mandate due to his resistance to the mask mandate.

[00:27:09] Speaker 04:
And so that was the school district's rule.

[00:27:13] Speaker 04:
And they have no state law that backs up that rule that he wear a mask.

[00:27:23] Speaker 04:
Then he was kept on leave.

[00:27:27] Speaker 02:
So there wasn't a state rule about wearing a mask?

[00:27:30] Speaker 04:
I don't believe so, Your Honor.

[00:27:33] Speaker 04:
There was.

[00:27:33] Speaker 04:
I don't know the timeline exactly of those rules.

[00:27:41] Speaker 04:
He was then kept on administrative leave when the vaccine mandate came out in October of 2021.

[00:27:54] Speaker 04:
The district court in this case did not apply in immunities.

[00:27:57] Speaker 04:
They're asking you to apply immunity to a case that it did not rule was entitled to immunity.

[00:28:04] Speaker 04:
And Health Freedom changed the entire landscape for this litigation, because every case has been dismissed like the district court did on Jacobson.

[00:28:15] Speaker 04:
And Health Freedom said, no, when you plead that the Baxteens do not confer immunity,

[00:28:21] Speaker 04:
then Jacobson does not apply, period.

[00:28:24] Speaker 04:
That's what they said.

[00:28:25] Speaker 04:
And we pled at length that the vaccines don't confer immunity.

[00:28:33] Speaker 04:
The statutory claim, section 564, Congress, when it wrote the emergency youth authorization statute, did not forget to include informed consent.

[00:28:52] Speaker 04:
It didn't say, wipe out all the prior history, the Belmont report, everything that says that you get informed consent when you're dealing with experimental drugs.

[00:29:05] Speaker 04:
No court has looked at the tests for determining whether there is a private right of action under 1983.

[00:29:14] Speaker 04:
They've not applied the

[00:29:22] Speaker 04:
that the test of weather

[00:29:26] Speaker 04:
even if there is a provision of Section 564 which says all rights under this should be prosecuted by the United States.

[00:29:36] Speaker 04:
But that's not comprehensive.

[00:29:38] Speaker 04:
No court has actually gone through the elements of the test to assess whether Wilkins does have a private action.

[00:29:46] Speaker 02:
Since we don't have questions, you need to be mindful, because you're basically out of time.

[00:29:50] Speaker 02:
So please wrap up your comments in the next minute.

[00:29:58] Speaker 04:
I'm basically done unless there's any further questions.

[00:30:04] Speaker 02:
Okay, this matter will then stand submitted.

[00:30:07] Speaker 02:
Thank you.

[00:30:08] Speaker 02:
And this court is in recess for the week.

[00:30:11] Speaker 02:
Now I know the students, you've

[00:30:16] Speaker 02:
been very well behaved and we try to be well behaved as well.

[00:30:22] Speaker 02:
The panel itself is going to take a brief recess.

[00:30:25] Speaker 02:
We're going to do some discussions.

[00:30:27] Speaker 02:
Our law clerks are going to talk to you right now and then we will come out and we'll have a brief discussion with you at that point.

[00:30:35] Speaker 02:
Thank you for joining us and we'll be back.

[00:30:37] Speaker 02:
And I know that we've got several law clerks here that will begin the discussion.

[00:30:45] Speaker 02:
And we also have the career law clerk who's clerking for us today, Ms.

[00:30:52] Speaker 02:
Dodds, that you can direct this as far as that goes.

[00:30:55] Speaker 02:
Thank you.