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Judge tosses lawsuit against Boston rule requiring proof of vaccination in indoor public places, not because it's expired, but because the case should never have been brought to begin with

A federal judge today dismissed a lawsuit by 19 people against the city's requirement that they show proof of Covid-19 vaccination in most indoor public spaces because they failed to prove they were actually harmed by the rule.

In her ruling, US District Court Judge Angel Kelley wrote that none of the 19 people, including two Boston Police officers, had "standing" to bring the case, so no $6 million verdicts for any of them, let alone a declaration that the Boston Public Health Commission is "unconstitutional" and should be abolished for the temerity of ordering many public indoor places to check the vaccination status of any potential patrons between Dec. 20, 2021 and Feb. 28, 2022.

The fact that Plaintiffs here were subject to by a mandate is not the same as being injured by it. Plaintiffs, who were affected by the limitations of the Order may have been inconvenienced, but this is not the same as suffering a personal injury. Furthermore, the Order was directed at entities operating indoor food services, entertainment, and gyms. None of the Plaintiffs, aside from those who owned businesses, would have been subject to the order's enforcement mechanism. Moreover, none of the plaintiffs who did own businesses covered by the Order allege being fined or subjected to any enforcement action proscribed in the order.

She added:

The facts provided by Plaintiffs here fail to establish that any personal injury suffered is traceable to the challenged order.

Kelley got into the cases of each of the 19 specific people, including Shana Cottone, a suspended BPD sergeant who helped organize protests outside Mayor Wu's house and who alleged she was publicly humiliated when, during one of the other anti-vax protests she helped organized barged into a Fenway Regina Pizzeria, which then called 911 when she got obstreperous in her demand to be allowed to stay inside without proving she had been vaccinated.

The embarrassment and distress Cottone suffered at the pizza establishments are not tied to any action taken by Defendants. Neither are the consequences Officer Cottone suffered as a result of actions undertaken independently by the Boston Police Department.

One of the people who accompanied Cottone on her trip to the Regina was fellow plaintiff and Wu bullhorn-screamer Catherine Vitale. In her case, Kelley concluded:

Plaintiff Vitale alleges she was refused service at several Boston restaurants after refusing to show proof of vaccination. In one such incident at Regina's Pizzeria, police were called, and Vitale was embarrassed and left the restaurant on her own volition. Vitale's alleged injury is insufficient to establish standing because she does not allege any actions were taken against her by any of the named Defendants and there are no allegations anyone forced her to leave the restaurant.

In other cases, Kelley continued, people who claimed they would have been blocked from entry to certain establishments had they tried to enter did not, in fact, try to enter them, so their arguments were more hypothetical than grounded in the sort of actual experience courts require for cases such as this.

Plaintiff Joel Greenberg is a Lyft driver who needs to frequently stop for food in order to maintain safe blood glucose levels. According to Greenberg, this meant that he was unable to stop for breaks in Boston and had to drive for Lyft in the suburbs, where there was lower demand for drivers and thus lower pay. Greenberg, however, does not provide any allegations that he stopped for breaks in Boston and attempted to enter any establishments covered by the order. Furthermore, the Order itself exempts those who enter an establishment briefly such as to pick up food. As such, Greenberg has not pleaded an injury in fact. ...

Plaintiff Demurchyan alleges that he was unable to eat at any covered entities and had to restrict where he could meet with business clients or friends in Boston and missed certain meetings. He does not, however, allege that he made any concrete plans to meet anyone in Boston and was denied from doing so. Nor does he allege that his business suffered as a result of missing meetings or scheduling them elsewhere.

Then there was the Mass. General nurse who alleges she lost her job for refusing to get vaccinated. If so, Kelley wrote, her issue is with Mass. General, not with the Boston Public Health Commission (and, in fact, the nurse is part of a separate suit against Mass. General Brigham). Ditto, the judge continued, for a hotel employee who allegedly lost her job, because hotels were not even covered by the city order:

[S]o any vaccination mandate and resulting adverse consequences, cannot be traced to Defendants here, as they would have come from [the hotel worker]’s employer, who is not a part of this litigation.

And that goes for the North End restaurant owner and health club owner, both of whom said they either lost business or had to hire extra help to check patrons' vaccination statuses.

Plaintiffs do not allege that had the Order not been in place, their businesses would not have suffered anyway. Customers may have independently decided not to frequent Plaintiffs' gym or restaurants for any number of reasons, including in order to avoid crowded indoor spaces due to public health concerns regarding COVID-19 transmission. Mendoza and Dunton also fail to allege that the staffing changes they made caused them any harm. While Dunton also alleges he believes he was required to hire additional staff to check the vaccination status of patrons, this does not suffice to establish causation, as he does not allege any specific details about his hiring or incurred costs, only that he believes this was the case. Additionally, the Order did not require covered premises from making any staffing changes.

And so:

The injuries alleged by each plaintiff are too tenuous to be fairly traced to the Defendants’ actions. Therefore, the plaintiffs have failed to establish constitutional standing.

In a footnote, Kelley also brushed aside the suit's contention that the public-health commission is unconstitutional as "plainly false," because the commission was not created by some mayoral hand waving but by an act of the state legislature and that the US Supreme Court "has authorized states to create local bodies, like the BPHC, to take actions to protect the public’s health and [be] given deference in judicial review of those actions."

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PDF icon Complete ruling219.9 KB


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Boston created the first board of health, which was headed up by none other than Paul Revere. Now there's a guy who knew the real meaning of liberty, not like these poor misguided souls.

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Revere essentially invented the concept!

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You can expect Cottone and Vitale to continue living off of the taxpayers until they can find another scam.

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I think the vaccination law was a great and important idea. But I don't buy the judge's argument that nobody was harmed.

Why should someone have to attempt to violate the rules to prove they were harmed by them? Barging into a restaurant without being vaccinated and being thrown out is bad and risky for everyone involved, including the other people in the restaurant whom the law was intended to protect.

Being denied pizza by following the rules should be enough proof of harm. But it's overwhelmingly worth it for the public health benefit.

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This wasn't a class-action suit brought on behalf of large numbers of people and the judge wasn't making some overarching statement about the entirety of government action during the pandemic.

This was a suit brought by 19 specific people about very specific things they alleged were done to them because of the emergency order. What the judge said was that none of these 19 specific people provided any actual evidence that they were specifically harmed by the Boston Public Health Commission and its emergency order.

You may not like it, but that's just how federal law works: If you claim somebody or something has harmed you, you have to show some very specific proof of how you were harmed. Saying you were worried you couldn't meet clients at a Boston restaurant because you refuse to get vaccinated is just not the same as providing evidence that, in fact, you actually did try to enter some restaurant and were turned away or even manhandled out the door.

But as long as we're talking about government actions during the pandemic, I suspect that had it come to it, the judge would have said the commission had every right to promulgate the order.

I base that on both her closing footnote, about how the commission was founded by an act of the legislature, and case law, going back to the Supreme Court's Jacobson v. Massachusetts ruling in 1905, that governments have the right to promulgate emergency orders to deal with public-health emergencies. There have been any number of Covid-related cases, both here and across the country, in which courts all the way up to the Supreme Court, have upheld that principle.

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She actually got and ate her pizza. They posted video of it.

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gobsmackingly stupid, willfully ignorant timeline.

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I'm not saying they are all republicans but this is definitely a product of GQP thinking such as 'My beliefs are the only reality that matters'.

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