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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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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

also resides in Staten Island.

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

also resides in Staten Island.

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

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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).

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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).

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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)

84. All previous allegations are incorporated by reference.

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)

91. All previous allegations are incorporated by reference.

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.

98. 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

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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

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.

99. Petitioners are entitled to a declaration and order that the Vaccine Mandate does

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)

100. All previous allegations are incorporated by reference.

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.

106. 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

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.

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107. Petitioners are entitled to a declaration and order that the Vaccine Mandate does

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)

108. All previous allegations are incorporated by reference.

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)

124. All previous allegations are incorporated by reference.

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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