Mayor of New York City Sued for Discriminatory ‘Key To NYC’ Vaccine Mandate

by Carolyn Hendler, JD

Published February 22, 2022 | Law, Federal & State Courts

New York Mayor, Eric Adams, has been sued by 18 plaintiffs including five Orthodox Jews and a Roman Catholic who are suing on behalf of their minor children over the ‘key to NYC’ vaccine mandate. The plaintiffs, who are suing the mayor in federal district court in Brooklyn, claim that the vaccine passport system is an “unprecedented abuse of power.”¹

The vaccine passport system, which former mayor Bill de Blasio executed as an emergency executive order two years ago,² is now being operated by Mayor Adams and prohibits all unvaccinated persons from having access to public spaces and social life available in the city. The plaintiffs allege that the

vaccine passport system violates the 1^st, 4^th and 14^th Amendments of the U.S. Constitution and creates a two-tiered system whereby the unvaccinated are deprived of their constitutional rights. The plaintiff’s attorney said:

The intention and effect of Key to NYC is to create a two-tiered society in the city of New York, in which those who decline to be vaccinated against COVID-19 will be reduced to the status of second-class citizens, deprived of normal social life until they consent to injection. Never in the history of this country, nor in the history of pandemics generally, has any government declared an entire class of citizens personae non gratae based on refusal to be vaccinated, much less with vaccines now known to be ineffective at preventing transmission of a communicable disease and to be unnecessary for children, who have an infinitesimal risk of death from COVID-19.³

COVID Vaccines Can’t Prevent Transmission, Should Not Be Required

The ‘Key to NYC’ system requires every business owner in New York City to enforce the mayor’s vaccine passport rules and forbids any patron or employee from entering their establishment if they have not received a minimum of one dose of the COVID-19 vaccine. No religious or medical exemptions are acknowledged or permitted.⁴ As of Dec. 14, 2021, New Yorkers five to 11 years of age were required to show proof of at least one dose of COVID vaccine and by Dec. 27, those 12  years old and older needed to show proof of two doses of COVID vaccines in order to enter, “covered facilities.”⁵ Fines for breaking these rules start at $1,000 and escalate up to $5,000 with repeat offenses.⁶

In their 96-page Complaint, the plaintiffs point out that the COVID vaccines have failed to prevent infection with or the transmission of the most recent variants of COVID.

As the head of the CDC declared last September, during the predominance of Delta: “They [the vaccines] continue to work well for Delta, with regard to severe illness and death- they prevent it. But what they can’t do is prevent transmission.” In fact, there is no hard evidence that the COVID vaccines ever did prevent transmission, nor did the manufacturers ever warrant that they would, as opposed to allegedly ameliorating symptoms. That is all the more so with Omicron. (Emphasis in the original)⁷

Accordingly, the plaintiffs contend that because the vaccines have proven ineffective at preventing transmission of the latest COVID variants, that the reasoning behind the ‘Key to NYC’ program is to punish the unvaccinated.⁸ Citing a study by Johns Hopkins University that found that the lockdowns did more harm than good by having a “devastating effect” on the economy and no noticeable effect on decreasing COVID deaths,⁹ the plaintiffs’ attorney, Christopher Ferrara, said, “We’ve never seen anything like it in the history of this country; the damage they caused is beyond human calculation.”

Fetal Cell Lines Used in COVID Vaccine Research & Development

The plaintiffs’ objection to the COVID vaccines are due to religious reasons. While the COVID vaccines do not contain fetal tissue like some other vaccines, fetal cell lines were used in the research and development of the vaccines.¹⁰

According to Ferrara, ironically, one of the plaintiffs escaped communism in the Soviet Union to live in what he thought was a free city in a free country, only to be told he must show his papers upon trying to enter the Javits Convention Center.¹¹

The complaint reads:

Never in the history of this country, nor in the history of pandemics generally, has any government declared an entire class of citizens personae non gratae based on refusal to be vaccinated—much less with vaccines known to be ineffective at preventing transmission of a communicable disease and to be unnecessary for children, who have an infinitesimal risk of death from COVID-19.¹²

It is Not the First Time the ‘Key to NYC’ Has Been Challenged

This is not the first lawsuit filed against the mayors for the ‘Key to NYC’ vaccine mandate. Over the summer, the Independent Restaurant Owners Association Rescue (IROAR) representing about 50 restaurants and gyms in Staten Island and Brooklyn brought a lawsuit against Mayor de Blasio alleging that the vaccine passport system is arbitrary, discriminatory and severely impacted their ability to conduct businesses.¹³

The IROAR argue that the ‘Key to NYC’ is unfair and arbitrary because it only applies to restaurants and gyms and not grocery stores, pharmacies, hair salons or other public gathering places where the risk of contracting the virus would be similar. In addition, the restaurant owners argue that performers such as singers or comedians performing in a bar or club do not need to show proof of vaccination unless they are New York City residents or residents of the ‘Key to NYC’ establishment.¹⁴ The plaintiff’s point out that using NYC’s own data, only 1.7 percent of total cases were contracted in a bar, while nearly three quarters of the cases can be attributed to private gatherings, yet bars and restaurants are unfairly targeted with restrictions.¹⁵

Allegations of Segregation and Discrimination

Some restaurant owners argue that allowing vaccinated dinners to eat inside while forcing the unvaccinated to sit outside is segregation akin to banning customers from coming inside if they are black or gay. Because certain demographics in the population are less likely to be vaccinated, many contend that the vaccine mandate is discriminatory.¹⁶ Fox News’ Tucker Carlson questioned,

Weren’t we told it’s racist to require ID for voting, but now it’s not racist to require ID for people to go inside of buildings in our largest city? So what does this mean for the 72 percent of young African Americans who are not vaccinated? They’re not going to be able to go anywhere. So this policy, by the principles of equity, has a disparate impact. That’s the phrase they use to describe racism in action. It affects some groups more profoundly than others. And the group most affected by this is young African Americans.¹⁷

According to the complaint, ‘the Key to NYC’ is arbitrary due to the fact that the Centers for Disease Control and Prevention (CDC) has admitted that COVID transmissible among the vaccinated as well as the unvaccinated. The complaint sets forth that it is “an uncontested fact that unvaccinated and vaccinated individuals can both contract COVID and the so-called ‘Delta’ variant, further illustrating the arbitrariness of this executive order.”¹⁸

Mayor de Blasio responded to the lawsuit saying, “If you want to experience all the greatness that New York City has you can just get the vaccine,’ he said. ‘This is the way we stay heathy and bring back our city fully.”¹⁹

New York State and Other Big Cities Lift Vaccine Mandates

The city of Philadelphia no longer requires vaccines for indoor dining effective immediately.²⁰ As of Feb. 10, 2022, Minneapolis and St. Paul have lifted their vaccine or test emergency rules and mask mandates.²¹ Chicago and Cook Counties announced a similar roll-back of their COVID restrictions including lifting the vaccine and mask mandate.²² Washington, DC will rescind its requirement that forced people to show proof of vaccination and wear masks starting Mar. 1.²³ And, while the state of New York has lifted their mask requirement, the key to NYC remains in place.²⁴ All eyes remain on the mayor of New York City as to whether the ‘key to NYC’ program will also be rolled back.

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