The Covid vaccination mandate for the military does not exempt the National Guard. Oklahoma v. Biden, 2021 U.S. Dist. LEXIS 246534 (W.D.Okla. Dec. 28, 2021). As to the Fourth Amendment claim:
iii. The Fourth Amendment.
Plaintiffs argue that the “vaccine mandate is an unconstitutional search and seizure of the person under the Fourth Amendment. In its search and seizure of unvaccinated federal employees, it impermissibly restrains the liberty of the person.” Motion, at 22. These arguments both misconceive and trivialize the Fourth Amendment.
The Fourth Amendment argument invites, first, a step back to look at the forest instead of the trees. Service members have, for a very long time, been required (on pain of discharge for failure to comply with lawful orders) to take vaccinations deemed necessary in the interest of military readiness. Yet plaintiffs do not cite a single Fourth Amendment case questioning, or even addressing, the power of the government, as an employer (civilian or military), to require vaccinations. That lack of supporting authority is unsurprising.
A governmental action alleged to constitute a Fourth Amendment search is not a “search” in the sense required by that amendment unless it is “an attempt to find something or to obtain information.” United States v. Jones, 565 U.S. 400, 408, n. 5 (2012). That is not this case.
That leaves “seizure.” Understandably, almost all Fourth Amendment “seizure” cases arise in the criminal context. A seizure of a person, for purposes of the Fourth Amendment, occurs when “the officer, by means of physical force or show of authority, terminates or restrains [a person’s] freedom of movement.” Brendlin v. California, 551 U.S. 249, 254 (2007) (cleaned up). Deprivation of freedom (usually freedom of movement) is the key. Employment-related “deprivations” of freedom happen every day. They are not coercive in the sense required by the Fourth Amendment and are not actionable as “seizures.” Guard members “are not being coerced to give up a fundamental right since there is no fundamental right to refuse vaccination.” Smith v. Biden, 2021 WL 5195688, at *8 (D.N.J. Nov. 8, 2021). The result is the same with a traditional (and narrower) seizure analysis. Plaintiffs argue that “vaccination is impossible unless a person’s movement is restrained.” Reply, at 10, n. 3. If there has been a deprivation of freedom of movement, the brevity of the encounter becomes important. Terry v. Ohio, 392 U.S. 1 (1968). Thus, for instance, “a routine traffic stop” is a “relatively brief encounter” which does not amount to a seizure sufficient to violate the Fourth Amendment. Knowles v. Iowa, 525 U.S. 113, 117 (1998). An involuntary encounter as brief as the length of time it takes to roll up a sleeve and receive a vaccination will not suffice to constitute a seizure within the traditional and fairly narrow meaning of “seizure” as that term is used in the Fourth Amendment.
The military vaccination mandate, as applied to the Guard, does not amount to a Fourth Amendment seizure.
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VII. CONCLUSION
The Oklahoma Adjutant General asserts, with the concurrence of the Governor, that, with the vaccine mandate, “the Executive Branch are aggressively encroaching on the sovereignty, laws, public policy, and resources of the State of Oklahoma.” Doc. no. 36, at 6. This bespeaks a fundamental misapprehension as to the allocation of authority over the Guard as a specifically-designated reserve component of the armed forces of the United States.
The court has carefully considered the relevant constitutional, statutory and regulatory authorities and has concluded, quite readily, that the military vaccination mandate is valid and enforceable as applied to the Guard and that, consequently, the Governor and his co-plaintiffs have not demonstrated a likelihood of success on the merits. The motion for preliminary injunction, doc. no. 9, is accordingly DENIED.
Having denied the motion, the court cannot but note the potential consequences, for individual Guard members, of failure to comply with the vaccine mandate. Those consequences range (among other possibilities) from loss of periodic pay to involuntary separation from the Guard. Loss of one or two paychecks is one thing, serious though that may be in individual cases. What the court cannot ignore is the potentially devastating effect of involuntary separation (either as a result of direct action or as a result of continuing loss of pay), especially where, as appears to be the case here, the individual non-compliant Guard members did not have the benefit of well-informed leadership at the highest level of the Oklahoma Guard. The court strongly urges the defendants to give every consideration to providing a brief grace period-to facilitate prompt compliance with the vaccination mandate–before directly or indirectly taking action which would end the military careers of any Oklahoma Guard members.
