A judge said Monday he is leaning toward denying a preliminary injunction sought by a group of Los Angeles firefighters who sued the city asking to be paid pending due process hearings before possible termination for refusing to be vaccinated against the coronavirus.
Los Angeles Superior Court Judge Michael P. Linfield did not immediately rule on the matter.
The lawsuit was filed Sept. 17 by the nonprofit Firefighters4Freedom Foundation, alleging the city’s directive, among other things, violates their constitutionally protected right to privacy. After hearing arguments, Linfield, speaking before an audience that included some firefighters, said he was taking the case under submission and would have a ruling within 48 hours.
In his tentative ruling issued Sunday, the judge took issue with the some of the language used by plaintiffs’ attorneys in their court papers, particularly where it was claimed, “Though nobody knew it at the time, the COVID-19 pandemic would lead to the greatest restrictions on liberty in American history.”
Linfield called the comment a “mere assertion of counsel” and not evidence.
“More importantly, this assertion by counsel is just plain wrong,” Linfield wrote. “While COVID restrictions might impinge on the liberty of Americans, they pale in comparison to the enslavement of tens of millions of African Americans, the murder and forced relocation of millions of Native Americans and the imprisonment of more than 115,000 Japanese Americans during World War II.
“More importantly, any harm to the firefighters who refuse to be vaccinated is vastly outweighed by the life-threatening harm of permitting over a hundred unvaccinated firefighters to continue living, eating and sleeping with fellow firefighters at over 106 city firehouses.”
Attorney Scott J. Street, on behalf of the firefighters, told the judge his clients are not asking that the vaccination ordinance not be enforced or that firefighters placed on leave for being unvaccinated be put back on duty. He said they just want to continue being paid while they await their termination due process hearings.
“What they really need is their livelihood, their pay check,” Street said.
But Deputy City Attorney Jennifer Gregg countered that under the emergency coronavirus declaration made by the city, there was a specific finding that the city lacked the funds to pay the unvaccinated while also paying overtime to their replacements.
Two LAFD firefighters offered sworn declarations in support of the preliminary injunction.
“I do not want to get the shot and do not intend to get it,” says Battalion Chief Robert L. Kilpatrick, a 34-year LAFD veteran, in a declaration filed Wednesday. “I have personal and medical reasons for my decision and believe I have a right to privacy under the California Constitution to make those decisions for myself. I believe that the forced disclosure of my personal medical information violates my right to privacy.”
Kilpatrick says he was placed off-duty without pay on Nov. 12.
“I have a family and cannot afford to wait that long without pay,” Kilpatrick says. “I will be forced to leave my job and give up the protections I earned while serving the people of the city of Los Angeles.”
LAFD Fire Engineer Mark Muus, a co-founder of Firefighters4Freedom and a 13-year department veteran, says in his declaration brought Wednesday that he was one of more than 130 firefighters placed on unpaid leave on Dec. 9 for refusing to be vaccinated.
“Aside from the recent discipline I received for refusing the vaccine, I have not been disciplined for any wrongdoing as an employee of Los Angeles City Fire Department,” Muus says. “I have no other history of discipline.”
Firefighters4Freedom has more than 900 members, according to Muus, who says he and his fellow unvaccinated firefighters have not heard when they may receive any due process hearings.
“Based on my discussions with other firefighters for the city of Los Angeles, many unvaccinated firefighters are working every day,” Muus says. “Some firefighters requested and received religious or medical exemptions to the vaccine. Other firefighters were simply lucky and were not placed on administrative leave.”
The City Attorney’s Office has offered several sworn declarations in rebuttal, including that of Battalion Chief Scott Quinn, commander of the LAFD’s risk management section. He oversees the department’s data collection efforts related to members who are infected with COVID-19 and the measures taken in support of safe working environments.
Despite all the steps taken, 1,134 department members tested positive for the coronavirus from March 15, 2020, to Dec. 8 of this year, according to Quinn. Quinn further says he believes that based on the data collected from the inception of the COVID-19 pandemic in March 2020 until the present, there is a “firefighter to firefighter spread in the workplace” of the coronavirus.
On any given day, the number of firefighters who are off work and in isolation due to COVID-19 exposure has varied from 0 to 186, according to Quinn.