Retaliation for False Claims of Religious Beliefs Made to Avoid Vaccinations Don’t Violate First Amendment
As a result of the COVID-19 pandemic, Los Angeles County issued an order that required its firefighters and other healthcare workers to get vaccinated by September 30, 2021. Those with opposite, approved religious beliefs, however, were exempt from the order, if they passed an interview with the County’s health department, under penalty of perjury. Plaintiffs claim that John Mirisch, a Beverly Hills City Council member and former three-time mayor, posted “intimidating” messages on Twitter (now X) and in a local newspaper, alleging some firefighters would lie under oath about their religious beliefs in order to avoid vaccination.
After the deadline passed, one of the plaintiffs/appellants, Josh Sattley, was fired for refusing to get vaccinated. The other, Ettore Berardinelli, Jr., was granted an exemption but switched to a lesser assignment that he claimed would hamper his advancement in the fire department. Both firefighters sued Mirisch, based on his alleged intimidation in the media. They lost when Los Angeles Superior Court Judge Barbara M. Scheper ruled in favor of Mirisch, sustaining his demurrers because his public statements “were insufficient as a matter of law to state a claim for First Amendment retaliation.”
Scheper said that when Mirisch used the word “if” to describe firefighters’ committing perjury he did not threaten legal sanctions that would support a claim of First Amendment retaliation. Scheper added that allowing a First Amendment retaliation claim based on Mirisch’s comments would “ignore the competing First Amendment rights of respondent as a public official.” She then dismissed Mirisch as a defendant with prejudice after another hearing in November. Two other defendants were also dismissed, and only the causes of action against Mirisch were at issue in the appeal.
Mirisch’s communications with the media, to which Scheper referred, said he was expressing his “surprise and disappointment” when the Beverly Hills Firefighters Association (BHFA), their union, asked the City Council for “help in allowing their members to circumvent the County’s vaccine mandate.” Mirisch wrote that the mandate was legal, protected the community, and should be allowed “as a matter of both policy and ethics.” He wrote that the City Council was “unwilling to help the firefighters get around the County mandate; it seems that a large number of anti-vaxxer Beverly Hills firefighters are trying to take things into their own hands.”
In fact, he continued, 30% of the firefighters had submitted exemption requests, 23 of which were based on alleged religious exemptions. He called this “nothing short of an attempt to manipulate the system on a massive scale,” and explained that religious exemptions “are meant for deeply held and sincere religious convictions.” He charged that “they are not hall passes for those who don’t want to take the vaccine, however strong those feelings are or whatever conspiracy theories they may believe.”
Mirisch also reminded readers that a mandatory health department interview would be conducted with penalties for perjury. He concluded, “From my perspective any firefighter caught lying under oath trying to avoid this protective measure should be terminated for cause, as beyond showing a willingness to expose our Community to unnecessary risk, they would be unfit in my eyes to represent Beverly Hills.”
A unanimous three-justice panel of Division Two of California’s Second District Court of Appeal affirmed Scheper’s dismissal on March 6, based first on Title 42 of the United States Code U.S.C §1983, which gives people the right to sue state government employees for civil rights violations. Justice Victoria M. Chavez authored the opinion. Under the U.S.C. section, in order to prevail, plaintiffs must show the conduct was committed by someone “under the color of state law” and it “deprived the plaintiff of a constitutional right,” in this case the First Amendment.
Plaintiffs claim that Mirisch retaliated against them when he “publicly accused” them of lying and being “anti-vaxxers who wanted to circumvent the County Health Mandate.” They said that the defendant/respondent acted “with specific intent to coerce” them “into violating their conscience and getting the Covid (sic) shot to save their jobs.” They said his speech contained “threats” and claimed it violated their First Amendment rights and “chilled” their free speech when Mirisch accused them of lying and threatened them with prosecution by the government. They filed both demurrers and anti-SLAPP (Strategic Lawsuits Against Public Prosecution) motions, claiming mandatory vaccines were a matter of public interest.
Appellants’ second cause of action was based on California Civil Code §51.2, also known as The Bane Civil Rights Act (Bane Act). This Act forbids anyone from “interfering by force or threats of violence with federal or state constitutional or statutory rights,” possibly exposing violators to criminal penalties. Regarding this issue, plaintiffs claimed that Mirisch’s comments “led them to reasonably believe they would be fired or prosecuted if they continued to assert religious obligations” in violation of the Bane Act. They said Mirisch’s comments were “a nonviolent threat with severe consequence” that prevented them from asserting their constitutional rights.
Appellate Justice Chavez, in affirming Scheper’s dismissal, explained that’ retaliation claims against government speech “warrant a cautious approach.” She said that Mirisch’s speech was neither part of a “campaign of harassment” nor did it “intimate that some form of punishment or adverse regulatory action would follow” as required by legal precedent. In fact, no form of punishment was mentioned at all.
In regard to alleged violations of the Bane Act, Chavez pointed out that “Speech alone is not sufficient to support an action… except upon a showing that…violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.” Mirisch’s speech, she noted, contained no threats of violence against appellants.
The opinion next turned to appellants’ anti-SLAPP claims. Chavez said there had to be a connection between the challenged statements and the issue of public interest. Appellants argued that they were not public figures, so their words should not be “matters of public interest.” Chavez reasoned that they were not even mentioned by name, nor were they singled out. Rather, Mirisch merely wrote about “firefighters as a whole.” Thus, the opinion said appellants’ claims “lack minimal merit.
The trial court’s dismissals were affirmed, and Sattley will have to seek employment elsewhere, while Berardinelli, his co-plaintiff, can remain at the post that he claims will give him less chance of promotion, or join Sattley in looking for another job.
