Former student files lawsuit against Cal Poly and San Luis Obispo County over his suspension due to COVID-19 measures violations

Published June 26, 2023 12:58 pm

SAN LUIS OBISPO COUNTY, Calif. – A former Cal Poly student filed a federal civil rights lawsuit against the university as well as San Luis Obispo County, claiming a violation of his federal and state rights when the school indefinitely suspended him for refusing to follow its implemented COVID-19 measures.

Former Electrical Engineering student and plaintiff, Elijah Behringer, attended Cal Poly for two years until the school denied him access to classes and university facilities in January of 2022, according to the filed complaint.

Behringer's complaint stated he refused to adhere to Cal Poly's COVID-19 emergency measures including wearing a cloth or plastic mask over his mouth and nose during class, and undergoing either COVID-19 vaccination or routine collection of genetic material for COVID-19 testing.

Portions of Behringer's suit are included throughout this article to allow for his claims to be clearly understood and should not be considered an endorsement of his claims.

Behringer's belief in the efficacy of any vaccinations is the root of his claimed harms from Cal Poly and San Luis Obispo County Public Health officials, though he makes no claims about other vaccination requirements in his suit.

So, all vaccines, regardless of “full approval” or “emergency use authorization,” are experimental medical drugs and require informed consent for use on a patient. Indeed, no vaccination—let alone by a “COVID vaccine”—may be legally required of a student to attend public universities or schools.
Behringer

According to Cal Poly's Immunizations page, incoming students for the Fall 2023 semester are required to provide proof of vaccination for a variety of non-COVID-19 diseases such as Hepatitis B.

For students that live on campus, vaccination records, or titer blood tests for specific antibodies are required for five specific diseases including: Measles, Mumps, and Rubella(MMR); Varicella(Chickenpox); Tetanus, Diptheria, and Pertussis(Tdap); Meningococcal Conjugate; and Meningococcal B.

In this context, did the threat of a pandemic justify these orders as an invocation of legitimate emergency power? No. Only the California Legislature is permitted to pass laws or delegate authority in declaration of an emergency. State officials other than legislators are forbidden from creating new law or declaring public health emergencies no matter the circumstance, except as permitted within the regulatory authority conferred by legislation such as the California Emergency Services Act. Yet this authority is constrained by the California Constitution
Behringer

The suit does not name any federal officials or agencies nor challenge their authority to issue Public Health Emergency (PHE) declarations. The relevant federal legislative authority is quoted below.

The Secretary of the Department of Health and Human Services (HHS) may, under section 319 of the Public Health Service (PHS) Act, determine that: a) a disease or disorder presents a public health emergency (PHE); or b) that a public health emergency, including significant outbreaks of infectious disease or bioterrorist attacks, otherwise exists.
U. S. Department of Health and Human Services

The U. S. Constitution clarifies the authority that federal legislation has over state laws and mandates and binds regional federal judges in what is referred to as the "Supremacy Clause".

The complaint said Behringer requested an exemption to allow him to go to class without adhering to the measures listed above, but Cal Poly denied his request and suspended him indefinitely in January, 2022.

When Elijah rejected the demands of all these orders, did the university comport with due process by indefinitely suspending him or barring his access to class? No.
Behringer

The President of Cal Poly issued a Presidential Order about COVID-19 requirements for students on Dec. 17, 2020 which included regular testing for unvaccinated students, wearing protective face masks, as well as consequences for failure to comply including, "Failure to comply with ongoing COVID-19 testing will result in a student’s loss of access to in-person campus services including in-person classes, recreation center, library, campus dining, and all other student services."

Behringer's lawsuit listed four federal counts and 10 state counts as follows:

Federal Count 1 – Violation of procedural due process under the Fourteenth Amendment of the U.S. Constitution
Federal Count 2 – Domestic terrorism under USA PATRIOT Act §802 and 18 U.S.C. §2331
Federal Count 3 – Deprivation of rights under color of law under 18 U.S.C §242 and 42 U.S.C. §1983
Federal Count 4 – Conspiracy against rights under 18 U.S.C. §241 and 42 U.S.C. §1985(3), with neglect to prevent under 42 U.S.C. §1986
State Count 1 – Criminal profiteering by extortion under Penal Code §186 and Penal Code §518
State Count 2 – Interference with university attendance under Penal Code §602.10
State Count 3 – Willful and malicious interference with movement in public spaces under Penal Code §647c
State Count 4 – Administering a medical experiment in violation of informed consent under Health and Safety Code §24175(a)
State Count 5 – Practicing medicine without authorization under Business and Professions Code §2052
State Count 6 – Conspiracy under Penal Code §182
Penal Code §182. All Defendants are liable under this statute.
State Count 7 – Violation of the Unruh Civil Rights Act under Civil Code §51 and the Ralph Civil Rights Act under Civil Code §51.7
State Count 8 – Violation of express consent for testing of genetic material under Civil Code §56.182
State Count 9 – Violation of California Constitution, Article I, Section 1
State Count 10 – Violation of Tom Bane Civil Rights Act under Civil Code §52.1 for invading rights protected by the California and U.S. Constitutions

The complaint names the following parties: Cal Poly, Cal Poly President Jeffrey Armstrong, University Administrators Tina Hadaway-Mellis, Valla Hardy, and Amy Gode, San Luis Obispo County, and County Health Officer Penny Borenstein.

The University acknowledged receipt of the complaint, but declined to comment or respond to specific questions outlined.

Matt Lazier, Assistant Vice President for Communications and Media Relations for Cal Poly explained,

"[G]iven that legal proceedings are ongoing and because FERPA [Family Educational Rights and Privacy Act] and other privacy laws strictly limit the information the university can share or discuss publicly related to specific students."

Behringer does cite that the Cal Poly student handbook entitles him to a hearing prior to a denial of access, and the University's Office of Student Rights and Responsibilities webpage states students have the right to a hearing if a student, "doesn't agree to proposed sanctions".

In any case, Elijah was entitled to a notice and a hearing from Cal Poly administrators before loss of his university education. A formal hearing where he could voice his complaints and rebut the decision to ban him from class was never entertained. So, under a façade of authority, his denial of access to class violated the requirement of procedural due process expected from state public officials under the Fourteenth Amendment of the U.S. Constitution.
Behringer

Within the complaint's conclusion section, the plaintiff wrote the following without citing any health measure efficacy studies or Centers for Disease Control and Prevention recommendations.

"Threatening populations into wearing suffocating material and getting injected with laboratory concoctions doesn’t only fail to preserve the public welfare, it is catastrophic to the public welfare. Likewise, those people who assaulted Elijah’s freedom and terminated his education—all while parroting hollow appeals to 'science' and 'safety'—have a lot to answer for."
Behringer

Peer-reviewed studies on the use of facemasks in response to COVID-19 in the short and long term confirm their efficacy.

By extorting tens of thousands of students, staff, and faculty into undergoing invasive medical procedures in exchange for government funding, Cal Poly acted as an apparatus of organized crime (see paragraph 17 and footnote 5 on page 7, Exhibit 2 on page 32, and Exhibit 3 on page 40). The only legitimate purpose of government is to protect property ownership, including the sanctity of the body. Neither San Luis Obispo County nor Cal Poly had any legitimate interest in using medical devices to molest massive numbers of people—with no basis in any intelligible emergency.
Behringer

The relief section stated Behringer was subjected to $41,433.19 in costs toward his degree incurred before Cal Poly indefinitely suspended him from class.

Detailing costs incurred prior to his removal from campus activities as harms in need of indemnification from the Central District of California call into question the entire system of for-cost public education.

Behringer simultaneously cites his loss of access as worse than some criminal convictions stating, "In addition to the costs of wasted time and money, it has been said that the indirect costs of a suspension from university may be worse than those of some criminal convictions".

The lawsuit listed "on the issue of relief," the plaintiff requests:

a jury trial on all triable issues,
judgment against Cal Poly, Jeffrey Armstrong, Tina Hadaway-Mellis, Valla Hardy, Amy Gode, San Luis Obispo County, and Penny Borenstein, on all counts pleaded in the List of Counts within this complaint,
compensatory damages of at least $41,433.19
threefold the compensatory damages in accordance with the civil remedies afforded to victims of terrorism under 18 U.S.C. §2333 as pleaded in this complaint under 18 U.S.C. §2331,
a proper punitive damages award to deter the type of misconduct outlined in this complaint,
any applicable statutory damages or penalties,
compensation for any fees and costs of suit, and
any other relief found just and reasonable by this Court.

This is a developing story. More information will be provided as updates come into the newsroom.