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PANDEMIC WILD GOOSE CHASES:
STRATEGIES LIKELY TO FAIL, AND WHY

by Alan Phillips, J.D.
Disclaimer: For educational purposes only; not intended to be legal advice.


        Information has been spreading around the country on the Internet, radio shows, webinars, etc. promoting strategies for avoiding mandatory pandemic flu vaccines that are likely to fail or be counterproductive.


        It is critical to assess the credibility of assertions to avoid misunderstandings and wasted time. Some sources deliberately dissiminate false information to distract us from constructive responses. Others mean well but err due to misunderstandings about the problem and the law.

        When there are no citations for assertions made, be suspicious. Be skeptical; play "devil's advocate" to avoid time misspent. When in doubt, consult an expert.


Resistance

courthouse     Resistance rarely clearly articulates the problem(s) well, and by definition doesn't put forth a solution. You have to do more than complain about what you don't want, it is critical to indentify precisely what it is you DO want to replace the problem situation. As I tell my kids, if you don't ask for what you want, you are not likely to get it.

     Resistance announced in advance (e.g., via petitions, etc.) is even worse. It may be a prescription for martyrdom and even incarceration. It says, in effect, "bring extra law enforcement when you come to my house, I'm gonna be trouble..."

     If all else fails, resistance may be a best last resort, but it is not an effective proactive strategy. To effectively address the problem of possible mandatory, pandemic vaccines, we first need to recognize that the primary authority is at the state level for state residents in the U.S. It is state laws that allow vaccines to be imposed on state residents without exemptions, and isolation and quarantine to be imposed on us in locations outside of our homes against our will (in many states). These problems won't go away until those laws are changed. Since changing laws is usually a long-term process, we need to take steps to enact changes in policy NOW that are consistent with the changes in law we're working toward in the meantime.


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Injunctions

courthouse     Some injunctions have allegedly been filed around the US, asking the courts to prevent the H1N1 vaccines from being administered. Generally, this and other civil actions are flawed strategies, for the following reasons:
  • To the extent that they rely on claims that the vaccines are harmful, these actions are likely to be dismissed. Supreme Court precedent says that courts can't second-guess state legislatures on the safety and effectiveness of vaccines (Jacobson v. Mass, 197 U.S. 11 (1905)). That is, since these questions were already addressed by the state legislatures, if we have a different assessment, we have to take that to the legislatures, not the courts.
  • If the vaccines are not mandatory for the person(s) requesting the injunction, there may be nothing for the court to restrict. That is, the case may be "moot" unless and until there is an actual mandate.
  • Since vaccines concern administrative matters with state and federal agencies, the "exhaution doctrine" may apply. That is, one may have to "exhaust" one's administrative remedies--address the matter in an administrative proceeding--before it can be taken to state or federal court.
  • Assuming you have followed all proper procedures and get a hearing, you will need expert witnesses to support your position. It is not enough to cite studies, quote researchers, etc. Experts will have to appear in court, and will be outnumbered by healthcare authorities with excellent credentials and strong credibility. You will also have to be prepared to examine and cross-examine your and their experts in such manner that you prove your case. They will have the upper hand--the vaccines are deemed necessary, safe and effective. The burden would be on you to prove otherwise, not on them to prove that the vaccines are safe and effective.
  • Even if successful, an injunction may apply only in the local jurisdiction filed, and may be applicable only to the plaintiff(s) filing the injunction. An injunction issued in your local county or federal district would probably not stop vaccines in the rest of the country.
  • Injuntions may not be impossible--at least one has reached the hearing stage (results pending), but it involved legal and healthcare experts, made specific allegations about legal violations by the FDA, concerned vaccines only for pregnant women, and was filed in the proper D.C. federal court. 
     Here's a 10-5-09 order denying a NJ citizen's injunction, which underscores some of the above concerns: Memorandum Opinion Order

     Given the inherent problems with injunctions and other civil lawsuits, lay people are well-advised to pursue changes in policy and law with steps available to all citizens. For more on this, see the Pandemic Flu: Problems and Solutions.

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Criminal Lawsuits

courthouse     Criminal lawsuits are particularly difficult to pursue. They require:
  • Meeting the "beyond a reasonable doubt" standard;
  • Sufficient evidence to convince a prosecutor to take on the case, and
    finding one willing to go up against the establishment; and
  • Expert witnesses able and willing to go up against the establishment.
     I discourage these not because I believe there could be no grounds for them ultimately, but because the level of proof needed just to get one off the ground would be difficult for most lay people to obtain. But if you do have sufficient proof and know experts that can back it up, then you may have a moral obligation to try to find a willing prosecutor.

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Local Sheriffs

courthouse      The notion that local sheriffs can protect us from the pandemic flu vaccines is getting widespread attention. Statements such as "local sheriffs are the highest authority" and "no one can tell a sheriff what to do" have been asserted with wild abandon. These sure sound good, but unfortunately, these assertions are untrue.

      The support cited for these assertions is a 1997 U.S. Supreme Court case, Printz v. United States, 117 S.Ct. 2365, 138 L.Ed.2d 914, which  held that the U.S. Congress could not require local law enforcement to do hand gun checks under the Brady Bill. This case has absolutely nothing to do with state-mandated emergency pandemic flu vaccines, quarantine or isolation.

     In Printz, the court said that the Brady Bill's requirement that local law enforcement officials conduct hand gun checks amounted to the federal government exercising state executive power, and therefore, that part of the Bill exceeded the federal government's reach and authority. What exactly is "state executive power"? That is the governor's office. In other words, according to Printz, state governors *can* tell local law enforcement what to do. So, clearly, the "no one can tell a local sheriff what to do" theory is erroneous, by the very case being cited as evidence for that proposition.

     As a purely practical matter, it is extremely unlikely that local sheriffs will ban together throughout the U.S. in numbers that would prevent the administration of any emergency vaccines. But even if isolated instances occur in which local sheriffs refuse to enforce emergency orders, not only might they risk losing their jobs (they are, after all, "law enforcement" officers), they can be replaced by federal troops if necessary. The various levels of authority (local, state, federal, international) can each request the assistance of other levels if needed. This is called an RFA, or Request for Assistance. The military could be called in to fill the local law enforcement need. For details, see the Congressional Research Services' document, The Role of the Department of Defense During a Flu Pandemic. And any time the federal government has jurisdiction, federal officials' authority supercedes that of state and local authorities. So again, local sheriffs have little if any ability to protect anyone from emergency vaccines.

     Further assertions suggest that sheriffs can refuse to enforce laws and orders they feel are unconstitutional. However, this kind of discretion is not within the authority of law enforcement officials. Their job is to enforce the law, whether they agree with it or not. Assessing the Constitutionality of any law or order is a job reserved for the judiciary--the courts. Any law enacted or order issued pursuant to current law is deemed to be Constitutional, unless and until it is formally challenged in court and the court rules it to be unconstitutional. For example, state religious exemption statutes requiring membership in an organized religion have been ruled unconsitutional in five states, but similar laws in other states are still valid and enforceable unless and until they are challenged and ruled to be unconstitutional. In Mississippi, a 1979 state Supreme Court case ruled that vaccine religious exemptions are unconstitutional there; so, Mississippi can't have a religious exemption there at all. But religious exemptions are Constitutional in the remaining 49 states--48 of them have one. Again, the Constitutionality assessment is the role of the courts--these are not matters for law enforcement officials.

     Despite this, local sheriffs could have a positive effect on citizens rights if they speak in a unified voice that requests changes in policy and law to give citizens the right to refuse emergency vaccines and other emergency medical protocols, and the right to self-isolate and self-quarantine in their homes if they so choose. Law enforcement officials' clout could have a profound, positive impact. But if they merely "resist", they invite both personal penalties for failing to do their jobs, and causing federal troops to be called in to enforce the emergency orders they refuse to enforce.

     The primary authority is at the state law level--it is the state that may have authority to mandate vaccines without exemptions in a declared emergency and to order citizens to go to government facilities for isolation and quarantine. If your state has these powers and they are unacceptable to you, the answer is to take steps to change the laws--and pending completion of that process, to take steps to change current policy to be consistent with the pending changes in the law. For more on this, see the Pandemic Flu: Problems and Solutions.

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  © January 2010 by  Alan Phillips, Attorney at Law, 828-575-2622