This article was originally published by The Defender — Children’s Health Defense’s News & Views Website.
(Children’s Health Defense) — Former New York City firefighter O’Brian Pastrana, who was forced to retire after he was diagnosed with permanent heart damage following the mandated COVID-19 shot, is not entitled to financial compensation for his losses, a federal judge ruled last week.
U.S. District Judge Brian M. Cogan ruled that none of Pastrana’s fundamental rights were violated when he was denied a medical exemption – even though he experienced a severe reaction to the first shot – and compelled to either get fully vaccinated or be fired by the New York City Fire Department (FDNY).
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Cogan said the vaccine mandate wasn’t to blame for Pastrana’s injury, as he claimed. “In this case, Pastrana always had a choice between receiving the vaccine and keeping his job.”
Pastrana also “was free to decide between taking the vaccine or seeking different employment” in another department or a neighboring state, Cogan ruled. And he was “free not to receive the second dose of the COVID-19 vaccine, potentially sacrificing his career.” As a result, the city can’t be held accountable for his injuries, Cogan ruled.
Based on the facts presented, Cogan granted the city’s motion for summary judgment, ruling in the city’s favor without a trial.
Christina Martinez, one of Pastrana’s attorneys, said the court sidestepped the unconstitutional conditions doctrine, which prohibits the government from conditioning a public benefit, like employment, on the waiver of a constitutional right.
She said:
Here, the Court found that the “fundamental right to bodily integrity” wasn’t implicated because Mr. Pastrana could have walked away from his job rather than take the second dose. But that ignores both the facts and the law. Mr. Pastrana didn’t just lose his job – he lost his health.
He suffered a serious allergic reaction to the first dose, sought a medical exemption, and was told by the city that he had to take the second dose anyway. After complying, he developed myocarditis and was forced into disability retirement. That is not a free choice; it’s coercion.
Attorney Sujata Gibson, also representing Pastrana, said Pastrana didn’t leave his job. He stayed, followed the rules, and was injured by his employer’s policy. She said:
So the question is, can an employer require you to do something that they understand could kill or harm you without having to prove it is necessary or compensate you when you are hurt? This court said yes.
‘My life has been slowly but surely deteriorating’
Pastrana received his first dose of the vaccine on October 29, 2021. He immediately experienced an anaphylactic reaction, including hives, swelling of the lips and other symptoms that persisted for weeks.
He was treated in an emergency room (ER), and later seen by a doctor with the FDNY who attributed Pastrana’s symptoms to the COVID-19 vaccine. The symptoms persisted and were intermittently severe, causing Pastrana to return to the ER multiple times and take time off work.
Despite his injury, the FDNY doctor refused to grant Pastrana a medical exemption for the second shot unless he could present an allergy test proving he was allergic to the vaccine.
Pastrana went to an allergist, who said the allergy test could not be administered because Pastrana was taking medication to keep his ongoing allergy symptoms at bay.
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Pastrana said he chose to get the second dose, on November 23, 2021, so he could keep his job and support his family. He experienced serious heart damage and was forced into retirement. Pastrana gets a small disability benefit, which pays 50 percent of his salary, minus taxes.
He said he now struggles physically and is unable to support his wife and small children.
“Everything for me has been a struggle since I became injured,” Pastrana told The Defender. “Since 2021, my life has been slowly but surely deteriorating and has been only getting worse.” He added:
My wife is picking up overtime every day she has off, trying to make ends meet. I’m unable to hold down work due to my physical limitations due to the worsening of the debilitating illnesses I now suffer from.
My wife’s vehicle was repossessed two weeks ago. Bills are building … things are getting turned off left and right. I’ve been able to get by, borrowing from family members, but who knows how long I can do that. Foreclosure seems inevitable.
‘Lack of humanity’ in the decision ‘signals a very, very bleak future’
Cogan based his decision in part on the 1905 U.S. Supreme Court ruling in Jacobson v. Massachusetts, which he said established that there is no fundamental right to reject a vaccine mandate.
However, Gibson said the Jacobson decision also held that no mandate can be put in place unless there is an adequate medical exemption. She said:
Jacobson‘s medical exemption requirement is consistent with Nuremberg. It goes with our most basic human rights. It just shocks the conscience to say that you can be required to subject yourself to a medical intervention that’s going to hurt or kill you. But now this court has said that that’s no longer true.
You don’t need a medical exemption. It doesn’t need to be adequate. And there is no remedy if you are hurt or killed. Worse, the government need not even prove the sacrifice was necessary. It is something the U.S. Court of Appeals for the 2nd Circuit has hinted at before, and it is really scary.
The lack of humanity in decisions like this signals a very, very bleak future if we don’t fight.
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When the Jacobson ruling was issued, the penalty for violating the mandate was a $5 fine – equivalent to about $182.65 today. At that time, Gibson said, the same constitutional rights people are entitled to today didn’t exist. Nuremberg was still decades away. Since then, the courts have defined the right to refuse medicine as fundamental.
More importantly, she said, Jacobson said there are certain circumstances where it would be unconstitutional to ask someone to get vaccinated against their will.
“And the one example provided of such a circumstance where it would be clearly unconstitutional was if somebody was medically unfit for the vaccine and was at risk of serious harm or death,” Gibson said.
In Pastrana’s case, everyone agreed he had been seriously injured by the first dose and would likely be more seriously injured by the second shot. Yet the city refused to accommodate him, she said.
Gibson added:
In Jacobson, the court said that not only would it be unconstitutional but “cruel and inhuman in the last degree” to ask someone like that to get vaccinated, even being subject to a $5 fine would be unconstitutional. Here we’re talking about subjecting someone to a loss of his entire career, which itself is a protected right.
The judge ruled that it was rational for the FDNY to require an allergy test to avoid arbitrarily granting or denying medical exemptions. He also said it would have been reasonable for the city to deny Pastrana an accommodation even after an allergy test if it thought that decision would better serve public health and safety.
“As Jacobson established over 100 years ago, the needs of the community can outweigh the desire for an exception for one individual,” the judge wrote. “The same is true here.”
Gibson asked, “At what point does this not become like The Hunger Games? Just something really sick and twisted.”
In 1905, she noted, people also had far fewer workplace protections:
In today’s environment, where we have all these heightened workplace protections, for the court to say that it’s constitutional, not just for an employer, but for the government to force civil servants to risk harm or death to have a medical intervention that’s probably going to kill or harm them severely to serve. It is quite chilling.
This article was originally published by The Defender — Children’s Health Defense’s News & Views Website under Creative Commons license CC BY-NC-ND 4.0. Please consider subscribing to The Defender or donating to Children’s Health Defense.
