2021 Police Benevolent Asso V Police Benevolent Asso PETITION 1

FILED: RICHMOND COUNTY CLERK 10/25/2021 09:38 AM INDEX NO.
85224/2021
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/25/2021
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF RICHMOND
POLICE BENEVOLENT ASSOCIATION OF THE
CITY OF NEW YORK, INC., on behalf of its members,
PATRICK J. LYNCH, as President of the Police
Benevolent Association of the City of New York, Inc.,
DANIEL MURRO, CORY PILZER, CHRISTIAN
PINEZ, ZANETA BOJARSKA, TIANA GUGLIAMO, Index. No. ________
THOMAS LEONARDO, MICHAEL GAGLIANO,
DANIEL ORLEANS, and MATT NALWASKY, ORAL ARGUMENT
REQUESTED
Plaintiffs-Petitioners,
-against-
BILL DE BLASIO, in his official capacity as Mayor of

the City of New York; DAVID CHOKSHI, in his official
capacity as Health Commissioner of the City of New
York; DERMOT SHEA, in his official capacity as Police
Commissioner of the City of New York; NEW YORK
CITY DEPARTMENT OF HEALTH AND MENTAL
HYGIENE, NEW YORK CITY BOARD OF HEALTH,
and NEW YORK CITY POLICE DEPARTMENT,
Defendants-Respondents.
VERIFIED PETITION
MICHAEL T. MURRAY GOLENBOCK EISEMAN ASSOR BELL &

Office of the General Counsel of PESKOE LLP
the Police Benevolent 711 Third Avenue, 17th Floor
Association of the City of New New York, New York 10017
York, Inc.
125 Broad Street Attorneys for Plaintiffs-Petitioners
New York, New York 10004
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FILED: RICHMOND COUNTY CLERK 10/25/2021 09:38 AM INDEX NO. 85224/2021
Plaintiffs-Petitioners Police Benevolent Association of the City of New York, Inc.
(“PBA”), on behalf of its members, Patrick J. Lynch, as President of the PBA, Daniel Murro, Cory
Pilzer, Christian Pinez, Zaneta Bojarska, Tiana Gugliamo, Thomas Leonardo, Michael Gagliano,
Daniel Orleans, and Matt Nalwasky, for their Verified Petition against defendants-respondents Bill
de Blasio, in his official capacity as Mayor of the City of New York (“Mayor”), David Chokshi,
in his official capacity as Health Commissioner of the City of New York (“Health Commissioner”),
Dermot Shea, in his official capacity as Police Commissioner of the City of New York (“Police
Commissioner”), the New York City Department of Health and Mental Hygiene (“DOHMH”), the
New York City Board of Health (“Board”), and the New York City Police Department (“NYPD”),
allege as follows:
INTRODUCTION
1. The City of New York threatens to impose on the NYPD police an arbitrary and
capricious COVID-19 vaccine mandate (the “Vaccine Mandate” or the “Mandate”). See Exhibit
1. The Vaccine Mandate is far broader and more coercive than measures adopted by the federal
government and other states and municipalities, and the City rolled out the Mandate at a time of
low and declining COVID-19 infection rates in the City. On the day the Mandate was announced,
infection rates had declined 14% over the past 14 days and hospitalization rates had declined 20%.
The City has provided no explanation, much less a rational one, for the need to violate the
autonomy and privacy of NYPD police officers in such a severe manner, on the threat of
termination.
2. In marked contrast with other policies throughout the country, the Vaccine Mandate
itself contains no express exceptions for health or religion. The City has since provided guidance
in the form of “FAQs” suggesting that employees would have only a few days to request and prove
the need for an accommodation, and that the City would grant accommodations only on extremely
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narrow grounds. See Exhibit 2 (the “Guidance”). The Vaccine Mandate also ignores the success
of the NYPD’s existing “Vax or Test” program, which has proven effective in protecting the
community and the operations of the NYPD, while respecting the privacy and autonomy of
individual officers’ personal medical decisions. The Vaccine Mandate is also unnecessary given
that the majority of the NYPD police force has already been vaccinated and that many others have
natural immunity, having recovered from COVID-19.
3. For more than a month, unvaccinated NYPD officers have been subject to a weekly
testing requirement. The NYPD’s current regime parallels the impending federal OSHA
vaccination mandate, which will allow for weekly testing as an alternative to vaccination. And
regardless, the Vax or Test program has proven adequate, as case numbers, hospitalizations, ICU
admissions, and deaths from COVID-19 have all declined. The Vax or Test policy was adopted
with full knowledge of COVID-19 variants, was deemed sufficient when implemented, and has
proven to be sufficient in practice.
4. Since the Vax or Test policy was implemented, there have been no changes in
circumstances that would require the City to impose a blanket vaccination mandate. NYPD police
officers are not a major source of transmission of COVID-19. The Health Commissioner has
identified no data that would suggest that NYPD police officers have become a material source of
transmission, or that the Vax or Test policy has failed to protect police officers and the community
at large.
5. In imposing the Vaccine Mandate, Respondents also ignored the wide prevalence
of natural immunity among uniformed NYPD officers, as well as substantial evidence that
naturally immune adults pose no greater threat for reinfection or transmission than vaccinated
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adults. This failure is irrational and indefensible. The Commissioner has simply neglected to
analyze relevant empirical data or make any meaningful cost-benefit comparisons.
6. The penalty for violating the Vaccine Mandate is severe: the City’s Guidance
makes clear that after being placed on unpaid leave, unvaccinated officers will be terminated,
incurring the loss of salary, pension, and benefits. Respondents fail to demonstrate why any
interests the Mandate may advance outweigh this extraordinary deprivation. This, too, is arbitrary
and capricious.
7. The City’s Vaccine Mandate is far broader than those tried elsewhere in the
country. Unlike OSHA’s impending standard and many state and local vaccination mandates, the
Vaccine Mandate fails to specify exceptions for medical issues, disability, and sincere religious
belief. Many unvaccinated officers have legitimate religious and medical reasons not to be
vaccinated. These interests are protected by federal, state, and city statutes, and regardless, the
failure to accommodate these individuals in a meaningful way is arbitrary and capricious under
state law. There is simply no good reason for these omissions, and they are another example of
Respondents’ failure to balance the Vaccine Mandate’s potential benefits with its certain
detriments.
8. The City’s Guidance suggests that many legally required accommodations will be
denied. According to the Guidance, “[m]edical or religious accommodations will only be granted
in limited circumstances.” Exhibit 2, ¶ 21. The Guidance vests individual employment officers
with complete discretion to grant or deny such accommodations, id., and neither the Mandate nor
the Guidance provides any justification for restricting legally required accommodations to “limited
circumstances.” In an apparent effort to squeeze employees and narrow the window during which
they may assert their statutory rights, the Guidance, which was issued in the evening of October
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21, 2021, gives employees only until October 27, 2021, to apply for an accommodation, facing
leave without pay if they cannot demonstrate through hastily compiled “documentation” that they
would be entitled to a legally required accommodation. Id. ¶ 25. And any requests filed after
October 27, 2021, will still subject the officer to unpaid leave until the request is decided, and,
even if they are granted, such requests are ineligible for any accommodation except for weekly
testing. Id. ¶¶ 24–25.
9. The mandate gives officers until 5 p.m. on October 29, 2021, to be vaccinated or
be placed on unpaid leave. The harm they face is immediate, irreparable, and far in excess of any
conceivable harm to Respondents from delaying the Vaccine Mandate.
10. The Vaccine Mandate is therefore arbitrary, capricious, contrary to law, and an
abuse of Respondents’ discretion. It must be overturned.
PARTIES
11. Plaintiff-Petitioner PBA is the designated collective bargaining agent for
approximately 24,000 police officers in the NYPD. The PBA negotiates and advocates on police
officers’ behalf with the City and the NYPD in matters of policy, terms and conditions of
employment, and all matters relating to police officers’ general welfare. The core function of the
PBA is to advocate for, and protect and advance the rights and interests of, police officers. The
Vaccine Mandate at issue applies to the PBA’s members and is squarely within the organizational
purposes of the PBA.
12. Over 2,000 of the PBA’s members reside in Richmond County, and hundreds of
the NYPD’s uniformed members are assigned to NYPD precincts in Richmond County.
13. Plaintiff-Petitioner Lynch is the duly elected President of the PBA.
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14. Plaintiff-Petitioner Daniel Murro is an NYPD police officer in the 120th Precinct
in Staten Island. Officer Murro has been an NYPD police officer for approximately 4 ½ years.
He also resides in Staten Island.
15. Plaintiff-Petitioner Cory Pilzer is an NYPD police officer in the 120th Precinct in
Staten Island. Officer Pilzer has been an NYPD police officer for approximately 9 ½ years. He
also resides in Staten Island.
16. Plaintiff-Petitioner Christian Perez is an NYPD police officer in the 120th Precinct
in Staten Island. Officer Perez has been an NYPD police officer for almost 7 years. He also
resides in Staten Island.
17. Plaintiff-Petitioner Zaneta Bojarska is an NYPD police officer in the 120th Precinct
in Staten Island. Officer Bojarska has been an NYPD police officer for approximately 5 ½ years.
She also resides in Staten Island.
18. Plaintiff-Petitioner Tiana Gugliamo is an NYPD police officer in the 122nd
Precinct in Staten Island. Officer Gugliamo has been an NYPD police officer for almost 7 years.
She also resides in Staten Island.
19. Plaintiff-Petitioner Thomas Leonardo is an NYPD police officer in the 122nd
Precinct in Staten Island. Officer Leonardo has been an NYPD police officer for over 9 years. He
20. Plaintiff-Petitioner Michael Gagliano is an NYPD police officer in the 122nd
Precinct in Staten Island. Officer Gagliano has been an NYPD police officer for over 16 years.
He also resides in Staten Island.
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21. Plaintiff-Petitioner Daniel Orleans is an NYPD police officer in the 122nd Precinct
in Staten Island. Officer Orleans has been an NYPD police officer for approximately 4 years. He
22. Plaintiff-Petitioner Matt Nalwasky is an NYPD police officer in the 122nd Precinct
in Staten Island. Officer Nalwasky has been an NYPD police officer for approximately 17 ½ years.
He also resides in Staten Island.1
23. Defendant-Respondent Mayor Bill de Blasio, sued in his official capacity, is the
chief executive officer of the City of New York. The Mayor is the architect and proponent of the
Vaccine Mandate.
24. Defendant-Respondent David Chokshi, sued in his official capacity, is the
Commissioner of the DOHMH. The Health Commissioner promulgated the Vaccine Mandate in
coordination with the Mayor’s directives.
25. Defendant-Respondent Dermot Shea, sued in his official capacity, is the Police
Commissioner of the City of New York. The Police Commissioner has responsibility for enforcing
the Vaccine Mandate against NYPD police officers.
26. Defendant-Respondent DOHMH is an agency of the City of New York established
pursuant to New York City Charter § 551(a), which has responsibility for and authority over the
Vaccine Mandate.
27. Defendant-Respondent the Board is an 11-member Board within the DOHMH,
established pursuant to New York City Charter § 553, which has responsibility for and authority
over the Vaccine Mandate.
1
Officers Murro, Pilzer, Pinez, Bojarska, Gugliamo, Leonardo, Gagliano, Orleans, and Nalwasky are
collectively referred to herein as the “Individual Petitioners.”
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28. Defendant-Respondent NYPD is the duly authorized police agency for the City,
established pursuant to New York City Charter § 431, which has been charged with implementing
the Vaccine Mandate for police officers.
JURISDICTION AND VENUE
29. This Court has subject matter jurisdiction to hear this matter pursuant to Articles
78, 30, and 63 of the CPLR.
30. Venue lies in Richmond County pursuant to CPLR §§ 7804(b), 506(b), and 504(3)
because, inter alia, it is where the material events took place and where Petitioners’ causes of
action arose.
FACTUAL BACKGROUND
The COVID-19 Pandemic
31. Nineteen months ago, on March 12, 2020, the Mayor declared a state of emergency
for New York City, following the first confirmed case of COVID-19 in the City. 2 In the months
that followed, COVID-19 killed thousands of New Yorkers and forced the City’s economy to grind
to a halt.
32. As first responders, NYPD officers never ceased working on the front lines to keep
the City safe. Their work involved continual exposure to COVID-19 at a time when the disease
was incredibly dangerous and not fully understood. Not surprisingly, at least approximately
10,000 of the NYPD’s 35,000 uniformed members contracted and recovered from COVID-19.
33. The worst of the pandemic is now well past in New York City. Positive tests,
hospital admissions, ICU admissions, and deaths are all mere fractions of their peaks, and at least
2
NYC Office of the Mayor, Emergency Executive Order No. 98 (Mar. 12, 2020) (available at
https://www1.nyc.gov/assets/home/downloads/pdf/executive-orders/2020/eeo-98.pdf).
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85% of adults in New York City have received at least one dose of the vaccine. 3 As of October
22, 2021, over a 7-day average: (i) the percentage of positive tests per day was 1.46%; and (ii)
there were 0.67 new hospitalizations per 100,000 individuals. 4 Additionally, data available as of
October 7, 2021 showed 35% of hospital beds remained available. 5 The following chart reflects
COVID-19 hospitalization trends in New York City as of October 19, 2021 6:
3
NYC Health, COVID-19: Data (available at https://www1.nyc.gov/site/doh/covid/covid-19-data-
vaccines.page).
4
NYC, COVID-19: Data (available at https://www1.nyc.gov/site/doh/covid/covid-19-data.page).
5
NYS, COVID-19 Regional Metrics Dashboard (available at https://forward.ny.gov/covid-19-regional-
metrics-dashboard). The current hospital occupancy rate is well within normal, as the optimal occupancy
rate for large hospitals is commonly considered to be 80–85%. See Hamid Ravaghi, et al., Models and
Methods for Determining the Optimal Number of Beds in Hospitals and Regions: A Systematic Scoping
Review, BMC Health Servs. Research 20 (Mar. 6, 2020) (available at
https://bmchealthservres.biomedcentral.com/articles/10.1186/s12913-020-5023-z).
6
NYS, Daily Hospitalization Summary by Region (available at https://coronavirus.health.ny.gov/daily-
hospitalization-summary).
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34. Unsurprisingly, given this trend, on June 24, 2021, the Governor of New York
permitted New York’s State Disaster Emergency with respect to the COVID-19 pandemic to
expire.7
35. In contrast to the Governor, the Mayor has continued to wield emergency powers
by continuing his declaration of a state of emergency beyond its nineteenth month. 8
36. On July 26, 2021, the Mayor proclaimed via press conference that “every single
city employee will be expected to be either vaccinated or be tested weekly.” 9 Three days later, the
Mayor stated that “[w]e are going to keep pushing mandates of all kinds. . . . Go as far as you can
go . . . . So, mandates are what’s coming.” 10 He was and remains determined to push blanket
vaccine mandates regardless of the actual circumstances and regardless of the fact that less onerous
policies may work, and in fact have proven to work.
The Vax or Test Program
37. On August 31, 2021, the Mayor issued Executive Order No. 78, which established
a mandatory vaccination or weekly test requirement for all City employees, effective September
13, 2021. See Exhibit 3. On September 10, 2021, the NYPD issued a detailed COVID-19 testing
policy for unvaccinated police officers, which the NYPD supplemented on September 24, 2021.
See Exhibits 4 & 5. To assist police officers with complying with this testing requirement, the
7
NYS, Governor Cuomo Announces New York Ending COVID-19 State Disaster Emergency on June 24
(June 23, 2021) (available at https://www.governor.ny.gov/news/governor-cuomo-announces-new-york-
ending-covid-19-state-disaster-emergency-june-24).
8
NYC Office of the Mayor, Emergency Executive Order No. 247 (Sep. 24, 2021) (available at
https://www1.nyc.gov/office-of-the-mayor/news/247-001/emergency-executive-order-247).
9
NYC Officer of the Mayor, Transcript: Mayor de Blasio Holds Media Availability (July 26, 2021)
(available at https://www1.nyc.gov/office-of-the-mayor/news/517-21/transcript-mayor-de-blasio-holds-
media-availability).
10
NYC Office of the Mayor, Transcript: Mayor de Blasio Appears Live on Hot 97 (July 29, 2021)
(available at https://www1.nyc.gov/office-of-the-mayor/news/529-21/transcript-mayor-de-blasio-appears-
live-hot-97).
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NYPD Medical Division set up COVID-19 testing sites at five NYPD facilities, and all NYPD
facilities offer officers self-administered COVID-19 PCR tests.
38. NYPD Operations Order 43 provides detailed procedures to ensure compliance
with the testing requirement through use of the self-administered tests. See Exhibit 5. These
procedures require police officers to register for the self-administered test at the time of testing
and request the test kit from the designated supervisor, who in turn confirms the member’s
registration and instructs the member in providing identifying information on the test vial and
appropriately administering the test. The supervisor must also log his or her observation of the
self-administered test. The Operations Order also contains detailed procedures to secure and log
the completed tests and deliver them to the Medical Division to be processed by Quest Diagnostics.
And when the member receives the test results from Quest, he or she is required to upload the
results to the NYPD’s Centralized Personnel Resource system, and, if positive, immediately notify
the Medical Division. Police officers have complied with these policies without issue.
39. There is no evidence of any widespread COVID-19 infection or transmission by or
among NYPD police officers since the “Vax or Test” policy has been in place. To the contrary,
all evidence establishes that the policy has proven effective, and it has struck the appropriate
balance between encouraging vaccination and respecting the medical autonomy of the NYPD
officers.
40. Moreover, even prior to the Vax or Test policy, the data shows that police officers
were not a meaningful source of COVID-19 transmission. The State’s contact-tracing data shows
that the Public Sector (defined as all of police, fire, EMS, military) amounted to just 1% of COVID-
10
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19 transmissions in the State.11 And that percentage is certainly far less now, because that data
was compiled before vaccines were available.
The Vaccine Mandate
41. On October 20, 2021—three months after the Mayor announced his commitment
to a mandatory vaccination policy, six weeks after the adoption of Vax or Test, and at a time when
COVID-19 infection rates are in decline across the City—Respondents issued the Vaccine
Mandate, which requires all officers to be vaccinated against COVID-19 by 5 p.m. on October 29,
2021, as a condition of their employment. See Exhibit 1.
42. The Vaccine Mandate relies on generalized findings that do not support the
draconian imposition of the Vaccine Mandate on all police officers in the NYPD. It also
completely ignores the evidence demonstrating the effectiveness of the existing Vax or Test policy
and that there is no public health need for a Vaccine Mandate for NYPD police officers.
43. For example, the Mandate references general statements from the CDC or data from
months ago, showing generally the effectiveness of vaccines and the emergence of variants earlier
this year. The Mandate recites that according to the CDC, “‘variants of concern’ have emerged in
the United States,” “vaccination is an effective tool to prevent the spread of COVID-19,” and from
“between January 17 and August 7, 2021, people who were unvaccinated or not fully vaccinated
accounted for 96.1% of COVID-19 cases.” Even if these generalized statements are true, none of
them explains the adoption, in October 2021, of the Vaccine Mandate.
44. Most notably, Respondents acknowledge the existence of the Vax or Test policy
but do not explain why it is insufficient. Likewise, Respondents cite the CDC’s views on
11
NY1, What New York’s Contact Tracing Data Show (Dec. 11, 2020) (available at
https://spectrumlocalnews.com/nys/central-ny/ny-state-of-politics/2020/12/11/what-new-york-s-contact-
tracing-data-show).
11
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vaccination and quote President Biden’s September 9, 2021, executive order on vaccination, but
completely ignore the fact that the federal government’s proposed solution for American workers
has been to adopt regulations that are similar to the existing Vax or Test program. None of the
information cited in the Vaccine Mandate is new or warrants replacing the Vax or Test program
with a Mandate. Indeed, all of the cited information was well known when the City implemented
the Vax or Test policy in the first place on September 13, 2021.
45. Indeed, the Vax or Test policy has been successful in controlling COVID-19 in the
NYPD notwithstanding the existence of variants. The Mandate does not provide any data to
suggest otherwise. It is telling that the Mandate cites no data relating to individuals such as police
officers after the Vax or Test policy was in place.
46. Moreover, the Mandate fails to provide data regarding COVID infections,
hospitalizations, or deaths for those with natural immunity, and thus Respondents have not
provided any justification for extending a Vaccine Mandate to such individuals.
47. And the data from the Yale study referenced in the Vaccine Mandate in fact directly
undermines the need for the Mandate. As an initial matter, this Yale study was cited in the Mayor’s
Executive Order No. 78 as a basis for the Vax or Test policy, and thus does not provide a basis,
now, for changing that policy to a Mandate. See Exhibit 3. Moreover, the data pertaining to
vaccination “through July 1, 2021,” necessarily describes the positive health impact that has come
from the voluntary administration of vaccinations, since the first mandates for other City
employees did not take effect until September 2021. Thus, this data only shows that the voluntary,
widespread adoption of vaccinations has substantially reduced COVID-19 infections,
hospitalizations, and deaths. But the study does not provide support for the proposition that
12
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imposing a new vaccine mandate on police officers, when the vast majority of the population is
already vaccinated or naturally immune, would have a material impact on public health.
48. The Vaccine Mandate also refers to President Biden’s vaccination policy, but again,
the Vaccine Mandate is considerably broader and more coercive than the impending OSHA
standards which, like the Vax or Test policy, will allow for weekly testing of unvaccinated
employees. See Exhibit 6.
49. The Vaccine Mandate neither contains nor refers to any empirical analysis of the
current conditions of New York City or the NYPD. Among other things, it fails to take into
account that: police officers are not a material source of COVID-19 transmission; natural
immunity is prevalent among the NYPD’s ranks; and the Vax or Test regime has been successful.
50. The Mandate also all but ignores the rights of police officers under the
Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, Title VII of the Civil
Rights Act of 1964, and the New York State and City Human Rights Laws. These statutes prohibit
the NYPD from discriminating against its employees on the bases of religion or disability and
require the NYPD to implement reasonable accommodations for employees whose religious
practices or medical condition prevents them from fulfilling conditions of their jobs.
51. Regulations issued by the U.S. Equal Employment Opportunity Commission
(“EEOC”) confirm that workplace rules on COVID-19 vaccinations implicate these rights. The
EEOC has issued guidance confirming that in appropriate circumstances, “Title VII and the ADA
require an employer to provide reasonable accommodations for employees who, because of a
disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for
13
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COVID-19, unless providing an accommodation would pose an undue hardship on the operation
of the employer’s business.”12
52. The EEOC provides examples of reasonable accommodation for employees who
are entitled to an exemption from a vaccine mandate, including that “an unvaccinated employee
entering the workplace might wear a face mask, work at a social distance from coworkers or non-
employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to
telework, or finally, accept reassignment.”13
53. The New York City Commission on Human Rights (“NYCCHR”) has similarly
confirmed that, “[e]ven in the midst of a pandemic, protections against discrimination under the
NYCHRL remain in effect.” The NYCCHR expressly adopted the relevant provisions of the
EEOC COVID-19 Guidance. 14
54. While the Vaccine Mandate provides that it should not be construed to prohibit
“reasonable accommodations otherwise required by law,” this statement fails to prevent the
potentially discriminatory effects of the Mandate on protected classes of employees. This
tautological provision gives no guidance to employees, managers, or the NYPD about what kinds
of “accommodations” may be available, or when, how, and under what circumstances an
accommodation can be obtained. It fails to identify what accommodations will be appropriate for
qualified unvaccinated officers or how to appeal an incorrect determination. It vests individual
supervisors with unbridled, unguided discretion in issuing or withholding legally required
12
U.S. EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other
EEO Laws, at K.1 (available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-
ada-rehabilitation-act-and-other-eeo-laws) (“EEOC COVID-19 Guidance”).
13
EEOC COVID-19 Guidance at K.2.
14
NYCCHR, COVID-19 & Employment Protections (July 2, 2021) (“NYCCHR Guidance”) (available at
https://www1.nyc.gov/site/cchr/community/covid-employment.page).
14
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accommodations. The Mandate’s failure to include ordinary, boilerplate exemptions for legally
protected classes violates federal law and is arbitrary and capricious.
55. The absence of this information, combined with the fact that the Mandate was
announced only 10 days before the deadline for compliance, fails reasonably to ensure that medical
and religious rights to exemptions and appropriate accommodations are preserved in a meaningful
way.
56. The Mandate itself is silent on what accommodations may be provided or the
procedures therefor. In the evening of October 21, 2021, the City released the Guidance, in the
form of a “Frequently Asked Questions” document, which states that “[m]edical or religious
accommodations will only be granted in limited circumstances.” Exhibit 2, ¶ 21. It puts the onus
on individual employment officers to grant or deny such accommodations. Id. Even under the
Guidance, the City’s stance toward legally required accommodations is hostile at best. And the
Guidance leaves it to individual employment officers to determine how to implement that hostility.
It is far from assured that an “FAQ” document has the force of law or binds the City’s agencies in
their implementations of the Mandate. But even assuming this Guidance fills in the Mandate’s
many blanks, even the Guidance is contrary to the letter and spirit of Title VII, the Rehabilitation
Act, the ADA, and the New York State and City Human Rights Laws, which require employers to
engage in a collaborative, individualized process to accommodate qualified employees.
57. According to the Guidance, employees entitled to an accommodation must apply
for one before October 27, 2021, and will be placed on leave without pay if they are unable to
demonstrate their entitlement to an accommodation. Id. ¶ 25. This short deadline presents an
unreasonable restriction that contravenes the statutory requirements that accommodations result
15
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from a collaborative effort between the employer and the eligible employee and that they
adequately reflect each employee’s individual situation.
58. For any requests filed after October 27, 2021, the officer is placed on unpaid leave
until the requested is decided, and such requests are ineligible for any accommodation except for
weekly testing. Id. ¶¶ 24–25. In other words, any employee who is unable to document his or her
need for an accommodation within mere days of the issuance of the Guidance will be penalized
with unpaid leave and deprived of the right to an accommodation that is appropriate to the
employee’s circumstances. It follows that even those officers who the City concedes are legally
entitled to an accommodation but cannot produce documentation by this inexplicably short
deadline will be placed on unpaid leave, and, when they return, will have forfeited their rights to
an individualized accommodation and a collaborative process to determine which accommodation
may be best. This decision violates the civil rights statutes and is arbitrary and capricious.
59. Even informed by the City’s Guidance, the Vaccine Mandate also entirely ignores
the fact that nearly a third of the NYPD’s uniformed members are already immune due to prior
COVID-19 infection. Indeed, the Vaccine Mandate stands in stark contrast to the Commissioner’s
order in 2019 imposing a measles vaccine mandate for certain communities in Brooklyn, which
contained a medical exemption and did not apply to persons who “can demonstrate immunity to
the disease.”15
60. The Vaccine Mandate provides no justification for forcing vaccination on officers
who are already immune to COVID-19. Indeed, Respondents ignored ample data showing that
15
DOHMH, Order of the Commissioner (Apr. 9, 2019) (available at
https://www1.nyc.gov/assets/doh/downloads/pdf/press/2019/emergency-orders-measles.pdf).
16
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natural immunity provides equal or better protection against severe infection compared with
vaccination.
61. A large study in Israel, for example, demonstrated that naturally acquired COVID-
19 convalescence immunity was at least equivalent to vaccine-acquired immunity in preventing
infection, morbidity, and mortality. In particular, the study of 187,549 unvaccinated COVID-19
positive individuals who tested positive between June 1, 2020, to September 30, 2020, and who
were monitored through March 20, 2021, revealed that only 894 (0.48%) were re-infected. The
authors concluded, “Our results question the need to vaccinate previously-infected individuals.” 16
62. The Cleveland Clinic reinforced the findings of the Israeli study in a similar study
of its own employees. The Cleveland Clinic found zero COVID-19 re-infections during a five-
month follow-up of 1,359 infected, but unvaccinated, employees, and unequivocally concluded
that “[i]ndividuals who have had SARS-CoV-2 infection are unlikely to benefit from COVID-19
vaccination.”17
63. A recent CDC analysis of an outbreak among a group of mine workers in French
Guiana found that 60% of fully vaccinated miners suffered breakthrough infections compared to
zero among those with natural immunity. 18
64. Additionally, a Washington University study reported that even a mild COVID-19
infection resulted in long-lasting immunity, specifically rebutting concerns that natural immunity
16
Yair Goldberg, et al., Protection of Previous SARS-CoV-2 Infection is Similar to that of BNT162b2
Vaccine Protection: A Three-Month Nationwide Experience in Israel (Apr. 24, 2021) (available at
https://www.medrxiv.org/content/10.1101/2021.04.20.21255670v1.full-text).
17
Nabin K. Shrestha, et al., Necessity of COVID-19 Vaccination in Previously Infected Individuals (June
5, 2021) (available at https://www.medrxiv.org/content/10.1101/2021.06.01.21258176v2.full-text).
18
Nicolas Vignier, et al., Breakthrough Infections of SARS-CoV-2 Gamma Variant in Fully Vaccinated
Gold Miners, French Guiana, 2021, 27(10) Emergency Infectious Diseases Journal (Oct. 2021) (available
at https://wwwnc.cdc.gov/eid/article/27/10/21-1427_article).
17
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from COVID-19 may be short lived, concluding: “Overall, our results indicate that mild infection
with SARS-CoV-2 induces robust antigen-specific, long-lived humoral immune memory in
humans.”19
65. The Mandate offers nothing to refute these studies or to justify requiring police
officers who are already naturally immune to receive the vaccine.
66. The Vaccine Mandate also provides no justification for the deadline of October 29,
2021 (just 10 days from when the Mandate was issued). And, despite its status as a response to an
ostensible emergency, it does not provide an end date or duration.
Irreparable Harm and Balance of Equities
67. The Vaccine Mandate will impose irreparable harm on police officers. A police
officer with sincerely held medical, health, or religious concerns with the vaccine will face
irreparable harm if forced to submit to vaccination prior to the Court’s determination whether a
the Vaccine Mandate is unlawful. These officers have rights to medical autonomy and religious
observance that would be violated by forcing them to submit to a vaccination. Once a vaccination
occurs, that bell cannot be un-rung.
68. Pursuant to the Vaccine Mandate, those police officers who exercise their right to
refuse vaccination will now lose their employment and associated benefits, such as seniority,
pension benefits, and health care coverage for themselves and their families. The police officers
and their families will suffer a severe and incalculable emotional toll. These losses are irreparable
and cannot be remedied.
19
Jackson S. Turner, et al., SARS-CoV-2 Infection Induces Long-Lived Bone Marrow Plasma Cells in
Humans, Nature 595, 421-25 (May 24, 2021) (available at https://www.nature.com/articles/s41586-021-
03647-4).
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69. Hardworking police officers who put their lives on the line for this City throughout
the pandemic, and who are willing to continue the Vax or Test policy in the interim, should not
have to suffer the loss of their pay and hard-earned benefits simply for declining a new vaccine
while the validity and enforceability of the Vaccine Mandate is subject to litigation.
70. In addition, there is no risk of public harm from an injunction. A few thousand
unvaccinated police officers will not have a material effect on public health in a City of nine
million, and Respondents have not shown to the contrary. NYPD police officers are not a major
source of transmission of COVID-19. Almost a third of the police force already has immunity due
to prior COVID-19 infection. Unvaccinated police officers will still be required to test weekly
pursuant to stringent procedures. They are required to wear masks while working and socially
distance where possible. Much of their work is outdoors, and most of their interactions are with
individuals who are vaccinated or eligible to receive the vaccine. Police officers have not suddenly
become a public health risk.
71. Indeed, Respondents through their conduct have acknowledged that there is no
genuine urgency for this Mandate for police officers. Despite the Mayor’s public comments in
July, Respondents have waited three months to adopt a Vaccine Mandate for most public
employees and over one month after announcing vaccine mandates on teachers and Department of
Education employees. The City’s delay in adopting the Vaccine Mandate—even while COVID-
19 cases in the City decline—demonstrates that there will be no harm to Respondents from
delaying the Mandate while this case is heard.
72. Immediate relief is also necessary to ensure that officers who are legally entitled to
an accommodation have a genuine opportunity to exercise their rights. The Mandate and
subsequently released Guidance impose an indefensibly short deadline on such officers, giving
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them all of a few days to gather documentation of their beliefs or conditions and to produce that
documentation to their employer. Officers who are unable to comply by the deadline will be placed
on unpaid leave, and, even if their requests are ultimately granted, they will have forfeited their
rights to an individualized accommodation and a collaborative process to determine which
accommodation may be best. An injunction is necessary to protect the rights of officers with
legitimate accommodation claims and will impose no material inconvenience to Respondents.
73. While temporarily enjoining the Vaccine Mandate for police officers will not have
a material impact on public health, permitting the Vaccine Mandate to go forward, resulting in the
suspension and/or termination of employment of NYPD police officers and decimating morale
among the remaining police force, poses a serious risk to public safety. And Respondents would
have this occur right before one of the busiest seasons in the City, making the NYPD’s difficult
job even harder.
FIRST CAUSE OF ACTION

(Request for Relief under CPLR Article 78)
74. All previous allegations are incorporated by reference.
75. The Vaccine Mandate is arbitrary and capricious and an abuse of discretion and
must be set aside under CPLR § 7803.
76. The Vaccine Mandate is not reasonable or rational, and Respondents have
failed to identify a rational basis for it, particularly as applied to police officers. They have
failed to show that the Mandate is based on a rational, documented, empirical determination or
that it bears a rational relationship to its stated purpose for police officers. This is true in at least
six ways.
77. First, Respondents failed to demonstrate why the Vax or Test policy is insufficient
to accomplish any legitimate goals sought by the Vaccine Mandate, particularly given the absence
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of any data showing that police officers have been the source of any meaningful COVID-19
transmission since the Vax or Test policy was implemented (or prior for that matter). In fact, all
facts and data cited as purported grounds for the Vaccine Mandate were known at the time the Vax
or Test policy was implemented. Vax or Test was deemed sufficient at that time, and it has proven
sufficient in practice. Indeed, even one of the sources Respondents rely on, the Biden
Administration, is currently adopting a similar program that would allow for a testing option.
78. Second, Respondents did not consider that police officers work in various
environments, many of them outdoors for much of the day, and that they predominantly interact
with individuals who are vaccinated or vaccine-eligible.
79. Third, Respondents failed to address the fact that almost a third of NYPD
uniformed members are naturally immune against COVID-19 and that natural immunity confers
protection comparable, if not superior, to vaccination. Respondents failed to balance any marginal
benefit of a blanket vaccine mandate against rights to bodily integrity or any other interest.
80. Fourth, the Vaccine Mandate fails to balance its putative benefits against the
punishment of terminating officers’ employment and depriving them of all the benefits and
privileges of employment.
81. Fifth, the omission of specific exceptions, accommodations, and procedures in the
Vaccine Mandate for disabilities, medical conditions, pregnancy, and sincerely held religious
beliefs renders the Vaccine Mandate arbitrary and capricious. The Vaccine Mandate’s conclusory,
perfunctory savings clause fails to grant officers sufficient rights against the Mandate and, in any
events, fails to apprise them of their rights. It vests their superiors with unfettered, unguided
discretion in granting or refusing accommodations. These failures are particularly unreasonable
and egregious since the Vaccine Mandate was announced only 10 days before its arbitrarily
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determined compliance deadline. Even assuming the Guidance has the force of law, it further
seeks to narrow the scope of legally required accommodations by providing that they may be
granted only under “limited” circumstances.
82. Sixth, Respondents’ decision to force accommodation-eligible employees to
document and apply for accommodations within just days after the announcement of the policy
has no basis in reason or fact. And an employee who is unable to meet the Mandate’s unreasonable
deadline faces unpaid leave and gives up his or her right to an individualized accommodation and
a collaborative process to determine which accommodation may be best. This, too, has no basis
in reason or fact.
83. The Vaccine Mandate lacks a rational basis and is not appropriately tailored to any
perceived issue, and thus it should be declared and ordered invalid as arbitrary and capricious and
an abuse of discretion, and Respondents should be temporarily, preliminarily, and permanently
enjoined from implementing or enforcing it against the PBA’s members and the Individual
Petitioners.
SECOND CAUSE OF ACTION

(Violation of Title VII of the Civil Rights Act)
85. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to
exclude or to suspend an employee, or otherwise to discriminate against, any individual because
of his . . . religion.” 42 U.S.C. §2000e-2(c)(1). Title VII requires an employer to reasonably
accommodate an employee’s sincere religious observances and practices, unless such an
accommodation would impose an undue hardship on the employer.
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86. Title VII protects police officers’ rights to obtain religious exemptions from the
Vaccine Mandate and requires the NYPD to evaluate exemption requests and determine through
an interactive process whether reasonable accommodations can occur.
87. Certain of Petitioners’ members have sincerely held religious convictions that
prevent them from being vaccinated against COVID-19. These members have informed their
employer of their concerns or would inform their employer of their concerns if given a reasonable
opportunity to do so. Nonetheless, the Vaccine Mandate does not expressly confer an exemption
for sincerely held religious beliefs and fails to specify the kinds of accommodations that may be
available, or when, how, and under what circumstances an accommodation can be obtained. The
Mandate’s failure to provide this information, and the fact that it was announced only 10 days
before the deadline for compliance, fails reasonably to ensure that religious exemptions and
appropriate accommodations are preserved as statutorily required. The Vaccine Mandate threatens
to dismiss otherwise qualified employees who are prevented from executing their jobs only
because they cannot comply with the Mandate. There are reasonable alternatives to vaccination
that do not impose an undue burden on the employer, including the existing Vax or Test policy.
88. The Vaccine Mandate does not specify what religious exemptions will be provided
under the Vaccine Mandate, the procedures to request a religious exemption or to obtain an appeal
from an adverse determination, or what accommodations are available as an alternative to the
Vaccine Mandate for those eligible for an exemption.
89. The Guidance only confirms the City’s intention to deny eligible officers their
statutory rights. It admits the City’s hostility toward accommodation rights by prescribing
accommodations only in “limited” circumstances. It imposes an unnecessary, arbitrary deadline
on eligible officers to document their lawful entitlement to an accommodation. And it forces
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officers who are unable to meet its ridiculous deadline to go on unpaid leave and to forgo their
right to an individualized accommodation arrived at through a collaborative process.
90. Petitioners are entitled to a declaration and order that the Vaccine Mandate does
not reasonably protect police officers’ rights to religious exemptions and accommodations and
therefore violates Title VII, and the Mandate’s implementation and enforcement should be
temporarily, preliminarily, and permanently enjoined as to the PBA’s members and the Individual
Petitioners.
THIRD CAUSE OF ACTION

(Violation of the Rehabilitation Act and the Americans with Disabilities Act)
92. As recipients of federal funding and as local government agencies, the DOHMH
and the NYPD are subject to section 504 of the Rehabilitation Act of 1973 and to Title I of the
Americans with Disabilities Act of 1990. Those statutes provide that an employer can compel an
employee to undergo medical inquiries and examinations when this is both related to job
performance and consistent with a business necessity. The EEOC has confirmed that a standard
requiring COVID-19 vaccination is subject to ADA’s requirement that such vaccination be both
job related and consistent with business necessity. 20
93. There is no “business necessity” for a Vaccine Mandate for NYPD police officers.
To the contrary, the NYPD has been operating without issue under the existing Vax or Test policy.
94. Moreover, the Rehabilitation Act and the ADA require employers to provide
reasonable accommodations to disabled employees and prohibit employers from discriminating
20
EEOC COVID-19 Guidance at K.5.
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against employees on the basis of a disability. Therefore, the Rehabilitation Act and the ADA
protect police officers’ rights to obtain medical exemptions from the Vaccine Mandate.
95. The Rehabilitation Act and the ADA require the employer to evaluate any
exemption request and determine through an interactive process whether reasonable
accommodations can be provided, and the employee must be provided a reasonable opportunity to
submit such requests.
96. Certain of Petitioners’ members have medical conditions constituting disabilities
that render vaccination inappropriate for them. Certain members have informed their employer or
if given a reasonable opportunity, would inform their employer of their disabilities. Nonetheless,
the Vaccine Mandate fails to specify what kinds of accommodations may be available, or when,
how, and under what circumstances an accommodation can be obtained. The Mandate’s failure to
provide this information, and the fact that it was announced only 10 days before the deadline for
compliance, fails reasonably to ensure that medical exemptions and appropriate accommodations
are preserved as statutorily required. The Vaccine Mandate threatens to dismiss otherwise
qualified employees who are prevented from executing their jobs only because they cannot comply
with the Vaccine Mandate. There are reasonable alternatives to vaccination that do not impose
undue burden on the employer, including the existing Vax or Test policy.
97. The Vaccine Mandate does not specify what medical exemptions will be provided
under the Vaccine Mandate, the procedures to request a medical exemption or to obtain an appeal
from an adverse determination, or what accommodations are available as an alternative to the
Vaccine Mandate for those eligible for an exemption.
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not reasonably protect police officers’ rights to medical exemptions and accommodations and
therefore violates the Rehabilitation Act and the ADA, and the Mandate’s implementation and
enforcement should be temporarily, preliminarily, and permanently enjoined as to the PBA’s
members and the Individual Petitioners.
FOURTH CAUSE OF ACTION

(Violation of the New York State and City Human Rights Laws)
101. The New York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. §290 et seq.,
and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §8-101 et seq.,
make it unlawful for an employer such as the NYPD to discriminate against an employee in the
terms, conditions, or privileges of employment based on, inter alia, disability or religious creed.
102. Moreover, the NYSHRL and NYCHRL require an employer to reasonably
accommodate an employee’s disability or sincere religious observances and practices, unless such
an accommodation would impose an undue hardship on the employer. Therefore, the NYSHRL
and NYCHRL protect police officers’ rights to obtain medical and religious exemptions from the
Vaccine Mandate.
103. The NYSHRL and NYCHRL require the employer to evaluate any exemption
request and determine through an interactive process whether reasonable accommodations can be
provided, and the employee must be provided a reasonable opportunity to submit such requests.
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104. Certain of Petitioners’ members have medical conditions constituting disabilities
that render vaccination inappropriate for them, and others have sincerely held religious convictions
that prevent them from being vaccinated against COVID-19. Certain members have informed, or,
given a reasonable opportunity, would inform their employer of their disabilities or convictions.
Nonetheless, the Vaccine Mandate fails to specify what kinds of accommodations may be
available, or when, how, and under what circumstances an accommodation can be obtained. The
Mandate’s failure to provide this information, and the fact that it was announced only 10 days
before the deadline for compliance, fails reasonably to ensure that medical and religious
exemptions and appropriate accommodations are preserved as statutorily required. The Vaccine
Mandate threatens to dismiss otherwise qualified employees who are prevented from executing
their jobs only because they cannot comply with the Vaccine Mandate. There are reasonable
alternatives to vaccination that do not impose undue burden on the employer, including the existing
Vax or Test policy.
105. The Vaccine Mandate does not specify what medical or religious exemptions will
be provided under the Vaccine Mandate, the procedures to request a religious or medical
exemption or to obtain an appeal from an adverse determination, or what accommodations are
available as an alternative to the Vaccine Mandate for those eligible for an exemption.
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not reasonably protect police officers’ rights to medical and religious exemptions and
accommodations and therefore violates the New York State and City Human Rights Laws, and the
Mandate’s implementation and enforcement should be temporarily, preliminarily, and
permanently enjoined as to the PBA’s members and the Individual Petitioners.
FIFTH CAUSE OF ACTION

(Violation of the Due Process Clause of the Fourteenth Amendment of the United States
Constitution)
109. The Due Process Clause of the Fourteenth Amendment prohibits states from
“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const.,
Amend. XIV, §1. Police officers possess both a liberty interest in their bodily integrity and a
liberty and property interest in their employment.
110. The U.S. Supreme Court has recognized that forced medication is a battery and that
informed consent is required for medical treatment. The longstanding right of informed consent
encompasses the right of a competent adult to refuse medical treatment.
111. The PBA’s members, including the Individual Petitioners, also have a
constitutionally protected right to pursue their occupation as police officers. The PBA’s members,
including the Individual Petitioners, completed significant education and special training to obtain
employment as police officers in the NYPD. There is no meaningful comparable employment to
being an NYPD police officer. The NYPD is the largest, best trained, most effective, and most
technologically advanced law enforcement agency in the United States.
112. No other vaccinations are required for eligibility to become a police officer.
Therefore, NYPD police officers have a longstanding, reasonable expectation that their public
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employment and positions will not be conditioned on vaccination, particularly a vaccine that has
been in use for less than a year.
113. The Vaccine Mandate is shocking to the conscience because it affects not only the
right to bodily integrity, but police officers’ right to pursue their employment, for which they have
undergone substantial training and personal sacrifice, and for which they have a long-standing
expectation that forced inoculation would not be imposed as a condition to continued employment.
The Vaccine Mandate in fact does not afford police officers a valid option to decline, because
police officers must either forego their constitutional right to bodily integrity by taking the
unwanted vaccine, or they must forego their constitutional right to pursue their chosen occupation.
114. Moreover, the unconstitutional conditions doctrine forbids burdening constitutional
rights by coercively withholding benefits, including government employment, from those who
seek to exercise them.
115. The Vaccine Mandate violates the unconstitutional conditions doctrine because it
burdens officers’ constitutional rights by prohibiting continued employment as NYPD police
officers if they exercise their right not to receive the vaccine.
116. To circumvent police officers’ constitutional rights, Respondents are required to
show, by clear and convincing evidence, a compelling reason for imposing the Vaccine Mandate
on NYPD police officers and that the infringement was achieved by the least restrictive means.
Respondents are unable to make this showing for all of the reasons set forth in this Petition,
including: the effectiveness of the NYPD’s existing Vax or Test policy; the substantial population
of police officers who are already immune; the fact that NYPD police officers are not a meaningful
source of transmission of COVID-19; the nature of police officer duties that largely involve work
outdoors, in large spaces, and/or with individuals who are vaccinated or eligible for the vaccine;
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and the fact that current New York City COVID-19 data undermines any public health necessity
warranting a vaccine mandate for NYPD police officers at this juncture, as vaccination rates are
very high and infections and hospitalizations are down substantially across the City.
117. At a minimum, intermediate scrutiny applies because of the special constitutional
sensitivity presented by the novel circumstances of this case. Respondents must show that the
Vaccine Mandate for police officers is substantially related to an important government interest.
The burden is on Respondents to make this showing, which they cannot do for all of the reasons
alleged in this Petition.
118. Even if rational basis review applied, the Vaccine Mandate for police officers fails
for all the reasons alleged in this Petition.
119. There is no rational basis to conclude that all or even most of the police officers
subject to the Vaccine Mandate pose any greater threat to public safety than members of the general
population who are not subject to a vaccine mandate.
120. There is no rational basis to conclude that the existing Vax or Test policy is not
sufficient with respect to police officers to reasonably protect public safety.
121. The Vaccine Mandate unreasonably fails to provide an opt-out or alternative for the
substantial population of police officers who already have immunity as a result of prior COVID-
19 infection.
122. The absence of any directive or standard for determining the duration of the
Vaccine Mandate also renders it constitutionally deficient.
123. Petitioners are entitled to a declaration and order that the Vaccine Mandate is illegal
and void because it violates police officers’ rights under the U.S. Constitution, and to temporary,
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preliminary, and permanent injunctive relief enjoining Respondents from implementing or
enforcing the Vaccine Mandate against the PBA’s members and the Individual Petitioners.
SIXTH CAUSE OF ACTION

(Violation of the Due Process Clause of Article I, §6 of the New York Constitution)
125. Article I, §6 of the New York Constitution prohibits the State and local
governments from depriving any person of “life, liberty or property without due process of law.”
126. The Vaccine Mandate infringes on multiple constitutional rights of police officers
protected by the New York Constitution, including the right to bodily integrity and the right to
pursue their profession as NYPD police officers. Police officers possess both a liberty interest in
their bodily integrity and the liberty and property interests associated with their employment by
the City.
127. The Due Process Clause of the New York Constitution protects bodily integrity.
128. It is a firmly established principle of New York law, co-extensive with the Due
Process Clause of the New York Constitution, that every individual of adult years and sound mind
has a right to determine what shall be done with his or her own body and to control the course of
medical treatment. New York law recognizes the right to make decisions concerning one’s own
body as a fundamental right.
129. The right to refuse medical treatment has been recognized as a fundamental right
in New York.
130. The fundamental right to bodily integrity is particularly implicated by the COVID-
19 vaccine because the COVID-19 vaccine has been in public use for less than a year, and there
can be no dispute that the vaccine’s long-term effects have not been studied and cannot be studied
because of the vaccine’s novelty. In these circumstances, forcing the vaccine on individuals who
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are opposed to it creates sincerely felt, serious distress and mental harm, and may cause physical
harm.
131. The PBA’s members, including the Individual Petitioners, also have a
constitutionally protected right to pursue their occupation as NYPD police officers. The PBA’s
members, including the Individual Petitioners, worked long and hard and completed education and
special training to obtain employment as police officers in the NYPD. There is no meaningful
comparable employment to being an NYPD police officer. The NYPD is the largest, best trained,
most effective, and most technologically advanced law enforcement agency in the United States.
132. No other vaccinations are required for eligibility to become a police officer.
Therefore, NYPD police officers have a longstanding, reasonable expectation that their public
employment and positions will not be conditioned on vaccination, particularly a vaccine that has
been in use for less than a year.
133. The Vaccine Mandate is shocking to the conscience because it affects not only the
right to bodily integrity, but police officers’ right to pursue their employment, for which they have
undergone substantial training and personal sacrifice, and for which they have a long-standing
expectation that forced inoculation would not be imposed as a condition to continued employment.
The Vaccine Mandate in fact does not afford police officers’ a valid option to decline, because
police officers have to either forego their constitutional right to bodily integrity by taking the
unwanted vaccine, or they must forego their constitutional right to pursue their chosen occupation.
134. Moreover, the unconstitutional conditions doctrine forbids burdening constitutional
rights by coercively withholding benefits, including government employment, from those who
seek to exercise them.
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135. The Vaccine Mandate violates the unconstitutional conditions doctrine because it
burdens police officers’ constitutional rights by prohibiting continued employment as NYPD
police officers if they exercise their right not to receive the vaccine.
136. Under New York constitutional law, the fundamental right to make decisions
concerning one’s own body may only be overcome by a compelling State interest. To circumvent
police officers’ constitutional rights, Respondents are required to show a compelling reason for
imposing the Vaccine Mandate on NYPD police officers and that this infringement was achieved
by the least restrictive means. Respondents are unable to make this showing for all of the reasons
set forth in this Petition, including: the effectiveness of the NYPD’s existing Vax or Test policy;
the substantial population of police officers who are already immune; the fact that NYPD police
officers are not a meaningful source of transmission of COVID-19; the nature of police officer
duties that largely involve work outdoors, in large spaces, and/or with individuals who are
vaccinated or eligible for the vaccine; and the fact that current New York City COVID-19 data
undermines any public health necessity warranting a vaccine mandate for NYPD police officers at
this juncture, as infections and hospitalizations are down substantially across the City.
137. At a minimum, intermediate scrutiny applies because of the special constitutional
sensitivity presented by the novel circumstances of this case. At issue is a new vaccine, and the
implication of multiple constitutional rights. Respondents must show that the Vaccine Mandate
for police officers is substantially related to an important government interest. The burden is on
Respondents to make this showing, which they cannot do for all of the reasons alleged in this
Petition.
138. Even if rational basis review applied, the Vaccine Mandate for police officers fails
for all of the reasons alleged in this Petition.
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139. There is no rational basis to believe that all or even most of the police officers
subject to the Vaccine Mandate pose any greater threat to public safety than members of the general
population who are not subject to a vaccine mandate.
140. There is no rational basis to believe that the existing Vax or Test policy is not
sufficient with respect to police officers to reasonably protect public safety.
141. The Vaccine Mandate unreasonably fails to provide an opt-out or alternative for the
substantial population of police officers who already have immunity as a result of prior COVID-
19 infection.
142. The absence of any directive or standard for determining the duration of the
Vaccine Mandate also renders it constitutionally deficient.
143. Police officers face imminent loss of their public employment unless they give up
their constitutionally protected rights.
144. Petitioners are entitled to a declaration and an order that the Vaccine Mandate for
police officers is illegal and void because it violates police officers’ rights under the New York
Constitution, and to temporary, preliminary, and permanent injunctive relief enjoining
Respondents from implementing or enforcing the Vaccine Mandate against the PBA’s members
and the Individual Petitioners.
RELIEF REQUESTED
WHEREFORE, Petitioners request that this Court enter an Order and Judgment:
(a) Temporarily, preliminarily, and permanently enjoining and restraining
Respondents and all persons acting on their behalf or in concert with them, in any manner or by
any means, from implementing or enforcing the Vaccine Mandate against the PBA’s members and
the Individual Petitioners;
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(b) Declaring that, as applied to the PBA’s members and the Individual Petitioners, the
Vaccine Mandate violates federal, state, and city law and is arbitrary and capricious and an abuse
of discretion;
(c) Vacating the Vaccine Mandate as applied to the PBA’s members and the Individual
Petitioners as contrary to law, arbitrary and capricious, and an abuse of discretion;
(d) Awarding Petitioners costs and attorneys’ fees, including, without limitation,
pursuant to 42 U.S.C. § 1988; and
(e) Granting such other and further relief as the Court deems just and proper.
Dated: New York, New York

October 22, 2021
Respectfully submitted,
MICHAEL T. MURRAY GOLENBOCK EISEMAN ASSOR

Office of the General Counsel of BELL & PESKOE LLP
the Police Benevolent
Association of the City of New By: /s/Jacqueline G. Veit
York, Inc. Jacqueline G. Veit
125 Broad Street Matthew C. Daly
New York, New York 10004
711 Third Avenue
Of Counsel: New York, New York 10017
Gaurav I. Shah (212) 907-7300
Dave Morris
Andrew J. Dempster Attorneys for Plaintiffs-Petitioners
Alex Reynoso

Admission pending.
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2021 Police Benevolent Asso V Police Benevolent Asso PETITION 1

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2021 Police Benevolent Asso V Police Benevolent Asso PETITION 1

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FILED: RICHMOND COUNTY CLERK 10/25/2021 09:38 AM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

BILL DE BLASIO, in his official capacity as Mayor of

MICHAEL T. MURRAY GOLENBOCK EISEMAN ASSOR BELL &

Plaintiffs-Petitioners Police Benevolent Association of the City of New York, Inc.

natural immunity, having recovered from COVID-19.

proven to be sufficient in practice.

analyze relevant empirical data or make any meaningful cost-benefit comparisons.

testing. Id. ¶¶ 24–25.

conceivable harm to Respondents from delaying the Vaccine Mandate.

abuse of Respondents’ discretion. It must be overturned.

11. Plaintiff-Petitioner PBA is the designated collective bargaining agent for

purposes of the PBA.

13. Plaintiff-Petitioner Lynch is the duly elected President of the PBA.

He also resides in Staten Island.

also resides in Staten Island.

resides in Staten Island.

She also resides in Staten Island.

18. Plaintiff-Petitioner Tiana Gugliamo is an NYPD police officer in the 122nd

She also resides in Staten Island.

19. Plaintiff-Petitioner Thomas Leonardo is an NYPD police officer in the 122nd

also resides in Staten Island.

20. Plaintiff-Petitioner Michael Gagliano is an NYPD police officer in the 122nd

He also resides in Staten Island.

also resides in Staten Island.

He also resides in Staten Island.1

24. Defendant-Respondent David Chokshi, sued in his official capacity, is the

coordination with the Mayor’s directives.

the Vaccine Mandate against NYPD police officers.

26. Defendant-Respondent DOHMH is an agency of the City of New York established

27. Defendant-Respondent the Board is an 11-member Board within the DOHMH,

over the Vaccine Mandate.

the Vaccine Mandate for police officers.

JURISDICTION AND VENUE

78, 30, and 63 of the CPLR.

The COVID-19 Pandemic

COVID-19 hospitalization trends in New York City as of October 19, 2021 6:

by continuing his declaration of a state of emergency beyond its nineteenth month. 8

policies may work, and in fact have proven to work.

The Vax or Test Program

facilities offer officers self-administered COVID-19 PCR tests.

38. NYPD Operations Order 43 provides detailed procedures to ensure compliance

39. There is no evidence of any widespread COVID-19 infection or transmission by or

was compiled before vaccines were available.

The Vaccine Mandate

2021, as a condition of their employment. See Exhibit 1.

them explains the adoption, in October 2021, of the Vaccine Mandate.

officers after the Vax or Test policy was in place.

provided any justification for extending a Vaccine Mandate to such individuals.

widespread adoption of vaccinations has substantially reduced COVID-19 infections,

employees. See Exhibit 6.

51. Regulations issued by the U.S. Equal Employment Opportunity Commission

require an employer to provide reasonable accommodations for employees who, because of a

of the employer’s business.”12

telework, or finally, accept reassignment.”13

EEOC COVID-19 Guidance. 14

potentially discriminatory effects of the Mandate on protected classes of employees. This

of “accommodations” may be available, or when, how, and under what circumstances an

qualified unvaccinated officers or how to appeal an incorrect determination. It vests individual

supervisors with unbridled, unguided discretion in issuing or withholding legally required

protected classes violates federal law and is arbitrary and capricious.

engage in a collaborative, individualized process to accommodate qualified employees.

57. According to the Guidance, employees entitled to an accommodation must apply