The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Right to Privacy Challenge to L.A. City Employee COVID Vaccine Mandate Can Go Forward,

though the city may yet prevail later in the case, if it can show enough facts justifying the mandate.


From Wednesday's Firefighters4Freedom v. City of L.A. (see here for more on the non-privacy-based challenges in the case), a part of the opinion that all three judges endorsed:

Firefighters4Freedom, a nonprofit corporation "whose mission is to support the constitutional rights of firefighters in the City of Los Angeles during the COVID-19 pandemic," sued the City of Los Angeles over the City's 2021 COVID-19 vaccine mandate for City employees. Firefighters4Freedom sought declaratory and injunctive relief based on allegations the vaccine mandate exceeded the City's authority under its police powers, violated the firefighters' right to privacy under the California Constitution, and violated the firefighters' due process rights….

"Unlike the federal Constitution, the California Constitution expressly recognizes a right to privacy: 'All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.'" …

In Hill v. NCAA (Cal. 1994) the Supreme Court articulated a two-part inquiry to determine whether the plaintiff's right to privacy under article I, section 1 has been violated. First, the plaintiff must demonstrate … "'(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.'" "Second, if a claimant satisfies the threshold inquiry, '[a] defendant may prevail in a state constitutional privacy case by negating any of the three elements … or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.' [Citation.] 'The plaintiff, in turn, may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests.'" …

Firefighters4Freedom alleged City firefighters have a legally protected privacy interest in their bodily integrity…. The right to bodily integrity (also called personal autonomy) is protected under article I, section 1 of the California Constitution. (See In re Qawi (Cal. 2004) ["The right of privacy guaranteed by the California Constitution, article I, section 1 'guarantees to the individual the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity.'"].) …

The City suggests the vaccine mandate did not implicate a legally protected privacy interest because "the City is not forcing any City employee to get a COVID-19 vaccine against their will." Instead, the City argues, the vaccine mandate allows City employees to "get the vaccine or apply for an exemption or deferral, or seek employment elsewhere." The City cites four federal court decisions, three of which address liberty interests under federal due process law, and one of which asserts a privacy claim under the Fourteenth Amendment of the United States Constitution. None of those cases supports the City's contention Firefighters4Freedom's cause of action does not allege a legally protected privacy interest under the California Constitution, which is "broader and more protective of privacy than the federal constitutional right …."

Moreover, the California Supreme Court has recognized legally protected privacy interests in cases where the plaintiffs were not "forced" to succumb to an alleged invasion of privacy. For example, Hill involved a drug testing requirement for college athletes, and Sheehan involved a policy requiring football fans to submit to a pat search before entering a stadium. That the athletes in Hill could have quit playing sports, and the fans in Sheehan could have stopped going to games, did not negate the privacy interests in those cases. Similarly, that City firefighters could quit their jobs instead of getting a COVID-19 vaccine does not eliminate the firefighters' privacy interest in their bodily integrity….

Whether the Alleged Expectation of Privacy Is Reasonable Cannot Be Determined on Demurrer

"A 'reasonable' expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms." Thus, a "plaintiff's expectation of privacy in a specific context must be objectively reasonable under the circumstances, especially in light of the competing social interests involved." "Even when a legally cognizable privacy interest is present, other factors may affect a person's reasonable expectation of privacy. For example, advance notice of an impending action may serve to "'limit [an] intrusion upon personal dignity and security'" that would otherwise be regarded as serious…. In addition, customs, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy." "Finally, the presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant."

Firefighters4Freedom alleged the City firefighters' expectation to be free from compulsory COVID-19 vaccination was reasonable because "the City has never had a vaccination requirement for public employment before now and the City has never disciplined, much less fired, a firefighter for declining an injection. The only compulsory vaccination laws adopted in California during the past century concerned certain vaccines that children need to attend school. Those laws do not undermine city firefighters' expectation of privacy in their bodily integrity." The trial court ruled "the ongoing global COVID-19 public health emergency poses a countervailing state interest sufficient to render the firefighters' privacy expectations unreasonable." The court relied on (improperly) judicially noticed facts to find that a scientific consensus on COVID-19 data supported using the vaccines to fight the spread of the virus and that the firefighters' privacy concerns were unreasonable because the scientific evidence was "overwhelming."

As discussed [see this post], the trial court erred in taking judicial notice of these facts. The court also failed to consider other relevant factors, such as competing social interests and relevant customs and practices. Because there was no evidence regarding these factors (indeed, there was no evidence at all), the trial court could not determine whether the firefighters' expectation of privacy was reasonable as a matter of law.

Whether the Alleged Invasion of Privacy Is Sufficiently Serious Cannot Be Determined on Demurrer …

[T]here is no evidence in the record (or, again, any evidence at all) concerning the factors a court must consider in making [this] determination…. "Whether appellants can prove an invasion of privacy 'sufficiently serious in … nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right' [citation] remains to be seen when the parties' evidence is produced on a motion for summary judgment or at trial." …

Whether the City Can Prove a Countervailing Interest Justifies an Invasion of Privacy Cannot Be Determined on Demurrer …

We acknowledge, and Firefighters4Freedom does not seriously dispute, the City's interests in protecting the general public from contagious diseases and providing a safe and healthy workplace are compelling. But the existence of countervailing interests does not end the inquiry. The relative strength of the countervailing interests and whether the vaccine mandate "substantively furthers" them are mixed questions of law and fact that the court cannot analyze in the absence of an evidentiary record.

In Mathews v. Becerra (Cal. 2019) the Supreme Court held a cause of action for invasion of privacy was not subject to demurrer because the parties had not introduced evidence on disputed issues, including whether countervailing interests justified the alleged invasion of privacy. The plaintiffs in Mathews were therapists and counselors who alleged that a provision of the Child Abuse and Neglect Reporting Act violated their patients' right to privacy by requiring the therapists to inform law enforcement or child protection agencies whenever their patients voluntarily disclosed they had accessed child pornography. The legislation was intended "to protect children from abuse and neglect." The Supreme Court stated: "No one disputes that the principal purpose of the reporting requirement—preventing the sexual exploitation and abuse of children—is a weighty one. [Citation.] The main issue on which the parties disagree is whether the reporting requirement actually serves its intended purpose." "With no facts developed at this stage of the litigation, we are unable to evaluate these competing claims as to whether the reporting requirement serves its intended purpose."

Similarly, Firefighters4Freedom does not dispute the City's stated purpose for adopting the vaccine mandate. But it does dispute whether the vaccine mandate is designed to achieve its goals. The trial court ruled the vaccine mandate was constitutionally valid based on the fact (of which the court took judicial notice) the mandate serves the purpose of "combat[ting] the spread of SARS-CoV-2 among the general population." Because the trial court erred in taking judicial notice of that fact, there is no way to determine whether the vaccine mandate justified the alleged invasion of privacy….

The City asserts that, because the vaccine mandate "directly relates to health care," we should apply a "'presumption of constitutional validity'" that, the City says, Firefighters4Freedom cannot overcome…. [But] California law does not defer to the Legislature (or, here a city council) "when a statute intrudes on a privacy interest protected by the state Constitution." Instead, "it is our duty to independently examine the relationship between the statute's means and ends." This duty exists regardless of the legislation's subject matter.