Nine Oregon State Police troopers and more than two dozen state firefighters on Friday sued Gov. Kate Brown over her COVID-19 vaccine mandate for state workers.
The lawsuit was filed on behalf of the Fraternal Order of Police, as well as Troopers Todd Burke, Dan Chichester, Cory Sweet, Jered Coates, Michael Hansen, Brian Glaser, Major Crimes Team Sgt. Darin LaDick, Sgt. Mike Berland and Capt. Ryan Martin. They live around the state, from Portland to Prineville.
An association representing firefighters based in Klamath Falls is also named as a plaintiff. The firefighters work at Kingsley Field, home of the 173rd Fighter Wing of the Oregon Air National Guard.
The suit seeks to stop the enforcement of Brown’s mandate and comes two days after an Oregon State Police trooper based in Bend announced on social media that he would defy the order.
Trooper Zachary Kowing was placed on paid leave Wednesday after the video, which he took in uniform and in his patrol car, came to light.
The lawsuit was filed in Jefferson County Circuit Court, where one of the troopers lives.
A spokeswoman for Brown declined to comment on the suit.
“This lawsuit has nothing to do with the efficacy of the vaccine at this point,” said Dan Thenell, the lawyer representing the troopers and firefighters. “It has to do with having their jobs held over their heads.”
The troopers and firefighters allege that Brown’s order, which applies to executive branch employees, including all employees working for all Oregon state agencies, violates state and federal Constitutional right to free expression.
“With very few exceptions, none of which apply here, all speech and expressive conduct are constitutionally protected,” the lawsuit says. “Plaintiffs’ right to control their own medical destinies is both expressive speech in the form of opposition to the COVID-19 vaccine, and expressive conduct in opposition to the vaccine mandate.”
The employees allege that state law prohibits employers from requiring vaccines as a condition of employment and that firing state workers for failing to comply with Brown’s order is illegal.
“The individual plaintiffs are Executive Branch employees … who want to exercise control over their own medical treatment and are being forced to choose between their rights privileges and liberties as citizens on the one hand and their employment, careers, and financial futures on the other,” the suit says.
The suit comes as Oregon suffers a deadly surge of COVID-19 cases fueled by the highly contagious delta variant. Hospitals and their intensive care units have filled to capacity and over, especially in counties with high rates of unvaccinated people.
According to the latest data released by the Oregon Health Authority, 2,449 new cases and 27 deaths were reported Thursday. The state noted that 84% of cases between Aug. 22 and Aug. 28 were unvaccinated people.
Longtime Portland labor lawyer Will Aitchison expressed skepticism about the merits of a legal challenge to the mandate, accusing Thenell in a blistering letter late last month of circulating false information to police and firefighters. Aitchison told Thenell that he is involved in negotiations over mandates on behalf of police in multiple states and that mandatory vaccine programs do not violate the state and federal constitution or state law.
“Early indications are that employees who are terminated for non-compliance with a vaccine program may be unable to collect unemployment insurance and, in some states, may even face loss of police certification,” he wrote to Thenell in a letter obtained by The Oregonian/OregonLive. “These drastic consequences put a premium on the accuracy of our advice as lawyers. The last thing we want is for Oregon (Fraternal Order of Police) members and other public employees to have false hopes in litigation challenging vaccine mandates.”
Thenell told The Oregonian/OregonLive that Aitchison offered his views before reading the lawsuit. Thenell said he apprised police and firefighters about the legal landscape involved in challenging the mandate.
“They have gone into this lawsuit with eyes very wide open about the strength and weaknesses,” he said. “No one has provided false hope. No one has provided guarantees. I don’t file frivolous lawsuits.”
Lewis & Clark Law School professor Tung Yin called the lawsuit’s First Amendment claims “problematic” because the governor’s order does not prohibit the troopers and firefighters from speaking or writing about their opposition to the vaccines.
“Nothing prevents them from speaking their beliefs,” he said. He said the question is whether their refusal to comply constitutes free speech “or it is simply that they don’t want the vaccine?”
