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To all you Yahoos who think you have a constitutional right to congregate during a pandemic

To all you Yahoos who think you have a constitutional right to congregate during a pandemic

The short of it is that you don’t.

For at least the last few hundred years, the law has recognized the government’s responsibility to protect the public health via its police powers. That job primarily falls to the states under the 10th Amendment, which provides that all powers not expressly granted to the federal government resides in the states.

There are many cases where state and the federal government have been allowed to lock-up people considered dangerous to the health, welfare or safety of the public. I have discussed the Korematsu case, where over 100,000 Japanese Americans were rounded up and interned in camps away from population areas. The fact that half of them were American citizens didn’t help them one bit. The Supreme Court said that was fine.

You all know that in Jacobson, the City of Cambridge was allowed to compel small pox vaccination (sort of, since there was a $5 penalty if you didn’t vaccinate). The Supreme Court also allowed Kansas to civilly detain a sexual predator after the end of the predator’s criminal incarceration, in order to protect the safety of its citizens.

Most of you probably don’t know that there were widespread contagious disease epidemics during colonial times, mainly yellow fever. In 1798, the Pennsylvania governor issued a ban on travel between New York and Philadelphia.

What about my constitutional rights of freedom to associate, worship and my freedom to do whatever I please?

The rub is that all such rights are not absolute and conditional on other competing rights. Constitutional jurisprudence mostly involves the courts weighing competing constitutional rights. Often, these cases involve the government’s ability to restrict individual rights. In the context of a government’s exercise of its police powers to protect the public health and welfare, the government almost always wins, except in the communicable disease litigation, where you can pretty much delete the “almost.”

As I repeatedly say in these posts, the CONSTITUTION IS NOT A SUICIDE PACT and the individual’s right to freedom of movement will always lose to the rights of the public to health and safety.

A corollary is that individuals don’t get to decide what is necessary to protect the public health. In other words, you can do what you want to yourself as long as you are not adversely affecting other people, and you don’t get to decide whether what you are doing adversely affects other people (in public at least).

So, do you have a First Amendment right to attend church during a pandemic where there is a shelter-in place order?

That would be a hard no.

Last week, a New Yorker filed a federal lawsuit arguing just that, namely that the shelter in place order unconstitutionally interfered with his right to worship. He didn’t get a TRO, and he will not get a preliminary injunction from the judge, who ironically, is most likely reviewing the papers from her home, due to the shelter-in place order.

How about a constitutional association right to drink beer with your friends in a public park?

Another hard no.

What judge in her right mind is going to overturn a shelter-in-place order which is supported by the local and statement government and the responsible governmental health authorities and which has hospitalized tens of thousands of people around the world and is killing people at an alarming acceleration?

What about the fact that there is a guy from Stanford and a couple other scientists from impressive universities who say that the shelter-in-place thing is an overreaction/not justified by the data?

Doesn’t matter. Government officials make these decisions. That is the way it works in every country regardless of the system of government. Outside experts can voice their opinions and can have influence on the relevant government public health officials, but that’s about as far as it goes.

How does that change?

I suppose when it becomes so unpalatable to the public that the politicians have to overrule health officials. Trump sent some recent feelers out about reopening the country by Easter, but he was forced to back down due to the push-back from the state and local government authorities. These types of decisions have to be made by consensus.

Is this whole coronavirus hysteria overblown?

I certainly hope it turns out to be overblown, but for now, all responsible government officials think their concern and the restrictions imposed are justified. We will have a better idea in the next few weeks.

A special note to the vaccine concerned

If you are vaccine concerned and/or hate big pharma, there will be some especially tough times for you in the future. The world and your rights are going to look quite different in the post-coronavirus world. Influence makers are talking about things now which a few months ago wouldn’t have been taken seriously.

There are places in the world like Africa where you can’t get in without proof of whatever are the required vaccinations. That will probably expand once there is a coronavirus vaccine, especially if there are multiple waves of the pandemic like there was with the Spanish flu. And speaking of which, the second wave of the Spanish flu was far more deadly than the first. Hopefully that will not be the case with this contagion, but I would bet it is on the minds of the public health officials.

Sadly, this is going to put the whole California medical exemption issue is a whole new context. I suspect many of you already know and fear that. But that is a discussion for another day.

For now, my advice is do not make the problem worse, because the worse it is/becomes, the worse it will be for you down the road.

Follow the recommendations of the authorities, and let’s see what happens.

Rick Jaffe, Esq

How far can the government go to restrict your movement and the first (idiotic) test case is filed

How far can the government go to restrict your movement and the first (idiotic) test case is filed

People want to know how much can the government really restrict their movements. Can the government really stop healthy people from congregating?

I think the short answer to both is yes, at least in the short term, and at least until some court says otherwise, and for reasons I will discuss, I do not see a court overturning a government shelter-in-place order anytime soon. (Ok, maybe that wasn’t such a short answer.)

There are both federal and state law issues and overlapping jurisdictions, theoretically. I say theoretically because as of today, Sunday March 22, 2020, there is no federal quarantine or shelter-in-place order, though the federal government has the power via the CDC and Surgeon General’s office to issue such orders.

Because we are a federal system government, in general, the feds directly control entry into the country and movement between states (via the Commerce clause), while the individual states control movement within the state.

Here is one of the key federal regulations:

Ҥ264. Regulations to control communicable diseases
(a) Promulgation and enforcement by Surgeon General
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

(b) Apprehension, detention, or conditional release of individuals
Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General

(c) Application of regulations to persons entering from foreign countries
Except as provided in subsection (d) of this section, regulations prescribed under this section, insofar as they provide for the apprehension, detention, examination, or conditional release of individuals, shall be applicable only to individuals coming into a State or possession from a foreign country or a possession.

(d) Apprehension and examination of persons reasonably believed to be infected
(1) Regulations prescribed under this section may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.
For purposes of this subsection, the term “State” includes, in addition to the several States, only the District of Columbia.

(2) For purposes of this subsection, the term “qualifying stage”, with respect to a communicable disease, means that such disease—
(A) is in a communicable stage; or
(B) is in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.”
(emphasis added)

Here is the URL for the CDC’s “Specific Laws and Regulations Governing the Control of Communicable Diseases” which lays out all the laws and regulations applicable to this kind of situation. It is worth looking at.

But the bottom line is that as of now, there is no federal anything with respect to freedom of movement or quarantine, shelter-in-place, yet, (at least if you are currently in the United States.)

Up until now, the shelter-in-place orders have been by city or area (the first was the Bay area) or more recently, states (California, and the mid-Atlantic states, and Illinois).

AB 262: Does it apply?

The Cali. VC community experienced a high degree of panic in the last fall when the legislature passed AB 262. They feared the new law would be used by the local Cali public health departments to take away their unvaccinated children. My view was that was not the intended purpose of the bill, and that the law was really about conveying information and clarifying the decision-making chain of command in the event of an epidemic, so the VC community did not need to be worried about AB 262 in terms of their unvaccinated medically fragile children.

Well, we are in the beginning stages of a pandemic, so I guess it is time to refocus on AB 262, as it might provide the starting point to the answer in California as to how far the state can go. The answer is pretty damm far.

Here is the operative provision of the new state law:

Section 120175.5 is added to the Health and Safety Code, to read:
Section 120175.5 is added to the Health and Safety Code, to read:
(a) During an outbreak of a communicable disease, or upon the imminent and proximate threat of a communicable disease outbreak or epidemic that threatens the public’s health, a local health officer shall do both of the following:
(b) In addition to the actions required under subdivision (a), the local health officer may issue orders to other governmental entities within the local health officer’s jurisdiction to take any action the local health officer deems necessary to control the spread of the communicable disease.
(emphasis added)


Of course, AB 262 does not itself set out enforcement mechanisms, as those are set out by the local health regulations. In my prior post, I linked and explained what the LA Country quarantine rules looked like. I won’t repeat them here, but here is the link to the prior post.

Do people have no legal rights to challenge these rules?

Look, any one can sue any one for anything at any time (as long as the courts are open or accept filings I suppose), and in fact, the first lawsuit challenging a shelter-in-place order was filed a few days ago. As expected, the TRO was denied and the case is apparently set for a preliminary injunction hearing maybe next week. Here is the article upon which I am basing this.

I think this lawsuit is really stupid, given that we are at the beginning of a pandemic where fear and an overwhelming desire for prophylaxis (“flattening the cure”), rather than an actual catastrophic event (like hundreds of thousands of deaths) is driving the narrative and government action.

What do these folks expect a judge – who is no doubt practicing self-distancing – to do? Go against the national sentiment and say the personal rights of a few people to associate are more important than protecting citizens from death from a plague which most experts think could happen? What judge is going to make a decision which could harm tens of thousands of lives?

As I keep saying, the Constitution is not a suicide pact, and the speech, association and religious rights of the few will always lose to the rights of the many to public health and safety. That was true during the SB 277 legal challenges when the issue was a relatively abstract concept of herd immunity, and it is a zillion times more true during an actual “pandemic.”

There is another saying, bad cases make bad law

So, these three idiots (and their idiot attorney) are going to force a judge to deny their preliminary injunction. Hopefully, they will have the belated good sense to walk away. If they don’t, maybe they continue to litigate the case, or maybe they try for an interlocutory appeal (i.e., an appeal before the end of the entire case, and not being a lawyer in that state, I don’t know whether that’s possible under their rules of court and procedure). If they do, then we will have appellate court authority on the issue. My prediction is that an appeal will go against them citing of course Jacobson. But you really don’t need a crystal ball to see that coming.

Look, there may come a time and place where legal challenges will be necessary, but it’s not now, and not on a direct challenge to a shut-in order.

So, if not now, when?

The time will come, hopefully in the next few weeks to a month, when the fear of the worst-case scenario is past or almost past. At that point, if the government restrictions appear to be unnecessarily oppressive to most people and many experts, AND if the enforced self-isolation/ quarantine becomes indefinite and is by fiat of individuals or the few, (even if they are judges), that might be the time for legal action. I say this because judges generally defer to public health officials and the government to ensure public health, and are reluctant to engage in second-guessing, in general, much more so during an epidemic like what faced the City of Cambridge in Jacobson, and even more so during a pandemic.

If there is to be a successful lawsuit, I predict that it will not be based on First Amendment rights to associate, because as indicated, that right will never win over the public’s right to safety and health, especially during a pandemic.

Rather, it will take a stronger right. The strongest right there is (in my opinion anyway) is the intersection between due process and habeas corpus. Meaning, if they start quarantining people indefinitely without a method of judicial redress, that is when I think the courts will show-up and protect people, and not a moment before.

Rick Jaffe, Esq.

Being prepared for Government overreach and medical mandates in times like these

Being prepared for Government overreach and medical mandates in times like these

I received the following email, and I thought it was worth responding to in a post.

“I hope you and yours are well and staying safe from the viral insanity.
I wonder if you have any advice on being prepared for overreach and medical mandates in times like these? I like to have at least a flexible plan.
I just finished reading Suzanne Somers’ “Knockout”, and watching Real Stories’ coverage on Stanislaw Burzynski… my cousin is currently seeing Dr Burzynski after a cancer diagnosis. I am so very grateful for your heroic and tireless efforts. Thank you. Deeply.
And keep it up, PLEASE!
(name deleted)

(Note: I helped Suzanne a little with her book “Knockout” which help was graciously acknowledged in her acknowledgements, and I represented Dr. Burzynski for many of his legal travails over the course of several decades.)

Some of my recent Stoller updates have indirectly addressed this issue, but the email I just received gave me the idea and reason to address the issue directly.

First piece of advice: Don’t go crazy, don’t over react and keep your powder dry, for now

Right now, what the federal, state and local authorities are doing in the face of the coronavirus pandemic seems reasonable and prudent, at least right now, albeit these actions are unprecedented, in scale or scope.

Let’s see what happens in a couple weeks. It is possible these current efforts will “flatten the curve”, or as the sceptics will say, that the whole thing was overblown. Many of you think the latter, but we should know in the next few weeks if that’s the case.

Second Piece of Advice: Let the experts and the thought leaders do their jobs

There are already rumblings amongst highly credentialed medical types at some of the most prestigious medical institutions (Stanford, Yale and others) questioning whether we are overreacting at the expense of our economic well-being. But as stated, it is too early to tell, but we will have a better idea in a few weeks, most likely. For sure, repost these opinion pieces from the medical elite published in mainstream media. They are a good counterpoint.

Third Piece of Advice: Be vigilant for efforts to suspend civil rights

Look, the government has a great deal of power in public health crises, like the power to issue shelter-in-place orders, and the power to quarantine. I’ve recently read how the Department of Justice is floating an idea that the chief justices of courts be given the right to indefinitely quarantine individuals, without judicial review. That is where I draw the line. If that actually becomes proposed legislation, that would be a point where massive social activism would be necessary.

Similarly, any other attempt to suspend the rule of law in the current circumstances, and by that, I mean where the current total deaths are a fraction of the annual deaths from the flu. I think that is important because any such attempts to restrict actual civil rights would be based on the fear of what could happen, rather than what is actually happening. On the other hand, if we start having hundreds of thousands of people die of this in a short time, then all bets are off, civil rights wise.

Generalized, the worse it gets, the more the government, (even the Trump administration which appears to be beloved by so many in the VC community) will attempt to further restrict movement and have the behavior of citizens conform to the new norms established by the public health authorities. At some point, enough will be too much, unless as stated, we start having crazy numbers of deaths (compared to annual flu deaths, which people either did not know about or accept).

Fourth piece of advice: Be mindful and vigilant of what comes next, and watch out for the Useful Idiots, (for those who have seen Homeland).

I think our country faces a far greater danger than the actual coronavirus, but I will address that in the next post.

But for now, don’t go crazy, keep your powder dry, wait, but be vigilant.

Rick Jaffe, Esq.

New Hearing date set in Stoller Case

New Hearing date set in Stoller Case

here is the update:

Rick Jaffe, Esq.

Kind and heartening words from a GL Reader

Kind and heartening words from a GL Reader

A semi retired attorney just send me an very nice email after finishing my book.
here it is:

“Attorney Jaffe,

I’m an older, semi-retired Indiana lawyer who just finished reading your book, Galileo’s Lawyer. What a superb book! Very inspiring in many ways. I want to thank you for your gallant (I use that word purposefully) efforts on behalf of ALL of America. Most will never see or know of your efforts on their behalf, but really, you’ve done a service in much of your career, for all of us. Some of us are perhaps in a better position to appreciate what you’ve done. In defending some of the clients you’ve represented, you’ve defended millions of Americans. (I’d argue that in a real sense you’ve defended and benefited ALL Americans, but that would take a book to unwrap.) As a lawyer who has tangled in federal court with corporate giants (Civil Rights arena), I can appreciate better than the average reader, some of the enormous hurdles you’ve had to overcome in some of those cases. You’ve done some incredible work.

Wanted to send this “thank you” note of appreciation, not just for the book. It was a delightful read, yes. But my thanks is more in appreciation for the work you’ve done. I finally learned with age, that one of the things I should have done more of when I was younger was to thank people along my journey of life who have given something of value to me or mine or humanity. Read your book and realized this was one of those MUST “thank you’s” in my life.

Would God some younger lawyers would read Galilio’s Lawyer and be inspired as to what a man or woman of courage, who really gets focused and intense about his or her cases can do. We need a nation full of Jaffe-like lawyers.”

Nice to hear especially in light of the upcoming Stoller board hearing, in no small part because of the thousands of families who might be directly or indirectly affected by the case. More about the status of the case n a little bit.

Rick Jaffe, Esq.

Ken Stoller’s Medical Board Vaccine Exemption Case Update

Ken Stoller’s Medical Board Vaccine Exemption Case Update

Here is the latest update:

Here is the power point we are submitting.


Rick Jaffe, Esq.



The New Jersey Legislature did not have the votes to pass the bill to remove the religious exemption, so the sponsors did not bring the bill up for a vote late Monday, January 13, 2020.

It is officially dead for this legislative session.

Congrats to the many thousands of people who showed up in Trenton, and the many more thousands of people who participated remotely via Facebook.

This effort should become the model for political activism in the fight against mandatory vaccination. Hopefully the activists in the states with upcoming battles will adopt these techniques and garner the national support which the New Jersey activists tapped into.

Maybe, just maybe between this and all of the hoppla from the recent WHO meeting in which many of the world’s leading vaccine experts finally admitted the lack of adequately safety testing, maybe things will start to change.

Spoiler alert:

I am predicting that the WHO recent statements will be front and center in Dr. Ken Stoller’s Medical Board hearing which takes place in March.

Double spoiler alert: there is a small chance that the judge will hear from SB 277 and SB 276’s author who convinced physicians that they could write exemptions based on the genetic problems of a child’s cousin. Maybe he’ll get to explain what he meant by that and all the other stuff he told the public which didn’t turn out to be the case.

Stayed tuned for further updates!

Rick Jaffe, Esq.

Update on Ken Stoller’s lawsuit against the Medical Board (and others): We’re still in the game!

Update on Ken Stoller’s lawsuit against the Medical Board (and others): We’re still in the game!

Here is the latest update on Ken Stoller’s Lawsuit against the Medical Board (formerly against the San Francisco City Attorney)

If you want to see the proposed Second Amended Complaint with the update claims based on the illegalities uncovered. here it is:

Rick Jaffe, Esq

10 days into California SB 276/714: Where are We? (updated September 28/2019 on the effective date of the new law)

10 days into California SB 276/714: Where are We? (updated September 28/2019 on the effective date of the new law)

Because of the rush job to comply with the Governor’s late demands to Change SB 276, the law which is in effect, which is basically SB 714, has generated more confusion, but it has also created a small amount of hope than would have been the case under SB 276.

The two biggest examples of this is that under SB 276, all vaccine medical exemptions had to be entered into CAIR to have continued validity. Either by design or mistake, SB 714 eliminated or did not carry over that requirement.

The other big thing where I think the Governor intended to help the vaccine concerned is the provision that a grandfathered medical exemption would remain in effect through an entire “grade span” and could only be revoked if the physician writing it has been sanctioned by the board. I think a revocation of a grandfathered non-CAIR filed exemption should follow the process set up in Section 120372. However, I suppose it is possible to take the other position, namely that the department of health will automatically revoke all exemptions written by a disciplined physician. So far, this only concerns one physician (that I know of, but I hear there is at least one more), but for sure there will other physicians who may be sanctioned in the next year or two. How many, remains to be seen.

Another issue which has caused some uncertainty is whether changing schools in the middle of a grade span requires obtaining a new medical exemption (“ME”). I do not see anything in the statute about “check points”, so anyone saying that an ME is required in changing school because a new school is a “check point” is not using the correct statutory language under SB 714. I think this position is based on the notion that “continued enrollment” means enrollment in a particular school, such that if you change schools, even in the middle of a grade span, you are not in “continued enrollment.” I understand the point, but, as a matter of statutory interpretation, if the legislature wanted to require a new ME when changing school, it would have or should have just said so explicitly. Of course, maybe it was just bad draftsmanship.

However, the fact that there is a different interpretation out there from a highly regarded vaccine concerned group highlights a bigger problem. Even if I am right on a technical legal/statutory interpretation question and would be proven right by the courts, the fact that there is another possible interpretation might lead a few, some, or many schools to disallow ME’s for transfer students within a grade span. So, I think it is possible and even likely that some families will find that their child’s ME will not be accepted by a new school, based on this other interpretation. Ultimately, I still think that the courts will not accept this alternative interpretation, but that will take time and money to find out.

The other major area of confusion relates to when the new law takes effect. I think the law is already in effect (or at least has an important practical effect on physicians comtemplating writing medical exemptions post passage of SB 276/714. However, the operative provisions for families phase-in over time.

I think the effect of the law right now, regardless of whether or not it is technically in effect, is that whatever argument there was or might have been that SB 277 allowed broader than FDA contraindication, is now over. Physicians who want to stay out of trouble should use the standard of care manifest in the new law because the new law clarified what the authors said was in the old law. Let me put it another way. Pan and almost all pediatric experts didn’t think SB 277 changed the standard of care for writing medical exemptions. A small group of vaccine concerned doctors said it did and used the language and the statements of the authors to support that broader view. SB 276/714 make clear that the standard of care is the standard of care and closed the loop claimed by the vaccine concerned physicians and the VC community in general. Using that loop hole might possibly keep a doctor out of trouble for exemptions written before the passage date of SB 276/714 but it won’t for ME’s written after passage, because physicians are now on notice about what is required of them, regardless of the technical effective date of the new law. Therefore, I think that doctors should follow the standards set forth in SB 714 in considering a medical exemption.

But the absolute biggest unresolved question I have is whether any of the exact language in the bill will matter to schools. My fear is that some schools will use the notion of revocation and not accepting ME’s (which the department of public health can do for physicians in trouble with the medical board) to simply refuse to accept ME’s which are valid under the current law, until they have been subjected to the review and revocation process including the appeal.

That is what I think could be the next big thing/the other shoe to drop. That would make all the legal analysis moot until the action is challenged in court. And that is one reason I am unwilling to engage in private consultations with families about their particular situation. I am just not sure that a legal analysis of the statute is meaningful at this point.

The other issue is the whole San Diego subpoena of ME’s from schools and the letter the school district wrote to parents of the medically vaccine exempt. I hear from a few sources that there is about to be a legal action filed. More about that situation another time. (Now I hear there will be a hearing on Monday, September 23, 2019. Details to follow when available.

Rick Jaffe, Esq.



The new California vaccine exemption law only has an obvious immediate effect on physicians contemplating writing new exemptions. Families with vaccine medical exemptions have some time to figure things out, especially families with all their kids currently in school.

There will be legal challenges which will take months to resolve, if not longer. Analysis, planning and strategic thinking are what’s needed. Not emotion or panic.

Because of what I think are some technical defects in the law, there are not definitive answers to some of your questions, and some facets of the new law are going to depend on how the schools and public health department interpret defects and poor drafting of a law which was substantially changed at the very last minute.

If your kids are in school now, you don’t need an answer right this minute to every question about what’s going to happen to your medical exemption next year or the year. As indicated, some of those answer will only be known once the authorities start interpreting and applying the law.

So take a breath, exchange ideas with community members and see what ideas/workarounds are out there, and don’t panic!

Rick Jaffe, Esq.