From JC

Yesterday, we received a terrific judicial decision from another unlikely place — the Ninth Circuit, which before Trump’s historic appointments, lawyers used to lampoon as the “Ninth Circus.” But the Ninth has become one of the most reliable protectors of Constitutional freedom from the worst excesses of the pandemic. Yesterday’s decision added to the Court’s admirable library of liberty.

In Health Freedom Defense Fund vs. Los Angeles United School District, the Court of Appeals overturned the federal court’s dismissal of a lawsuit by LAUSD teachers over the District’s 2021 vaccine mandate, which has continued, in fits and starts, ever since. The decision included three remarkable features.

First, LAUSD tweaked its strict vaccine mandate after the plaintiffs sued the first time. The tweak allowed a ‘testing alternative.’ The LAUSD then successfully argued the plaintiff’s first case was moot. Right after that first case got dismissed, LAUSD promptly revoked its testing alternative. So the poor, exhausted plaintiffs re-filed and sued again.

Again the federal court dismissed their case, this time on the merits. The plaintiffs appealed. Then, following a contentious appellate hearing, having enjoyed its first go around, the LAUSD again rescinded its vaccine requirement and again asked for the case to be dismissed as moot.

But the Court of Appeals saw right through that cynical ploy:

LAUSD’s pattern of withdrawing and then reinstating its vaccination policies is enough to keep this case alive. Twice LAUSD has withdrawn its policy only after facing some litigation risk.
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.
This case is not moot.
Next, in a wonderful development, the Court distinguished the horrible, ancient Supreme Court case the government wielded like a club during the pandemic, Jacobson vs. Massachusetts. You’ll love the reason why—because Jacobson was about vaccines, and the covid shots aren’t really vaccines:

The district court held, applying rational basis review under Jacobson, that the Policy satisfied a legitimate government purpose. But the district court’s analysis diverges from Jacobson.
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. The Court explained that the “principle of vaccination” is “to prevent the spread of smallpox.”
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.”
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.
The justices were skeptical of the government’s evidence of vaccine benefits:

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, even more encouragingly, in a concurring opinion, one of the judges recognized a Constitutionally protected liberty interest in refusing unwanted medical treatment:

The district court further erred by failing to realize that these allegations directly implicate a distinct and more recent line of Supreme Court authority, in which the Court has stated that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from [the Court’s] prior decisions.”
In Washington v. Glucksberg, the Court explained that Cruzan’s posited “‘right of a competent individual to refuse medical treatment’” was “entirely consistent with this Nation’s history and constitutional traditions,” in light of “the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment.”
Given these statements in Glucksberg, the right described there satisfies the history-based standards that the Court applies for recognizing “fundamental rights that are not mentioned anywhere in the Constitution.”
The Supreme Court’s caselaw thus clarifies that compulsory treatment for the health benefit of the person treated—as opposed to compulsory treatment for the health benefit of others—implicates the fundamental right to refuse medical treatment.
This reasoning is a legal earthquake. For years, we anti-mandate lawyers have argued that the covid mandates were unconstitutional. But the government lawyers have always argued “there is no Constitutional right not to take a vaccine.”

Now, a federal appellate judge — one step below the Supreme Court — just cut through the confusion like a hot needle through butter, agreeing with our arguments. Since the shots are not vaccines, Jacobson does not apply. Since they don’t protect others, mandated shots are legalized battery.

It is the concurrence heard round the world. It’s taken three years to reach this point, which is lightning speed in the law. As I keep saying, this is not over.