“No Knocks” are in the news following the Breonna Taylor shooting case. What is a “No Knock” warrant and when/how are they legal under federal constitutional law? One of my favorite topics. By favorite I mean that if I was a middle eastern dictator they would flow freely. This has been in the news now following the Breonna Taylor case. I’ll offer some analysis on that case, and also answer other civil rights constitutional law questions, if you have any – since this is LIVE.
Podcast version (audio only):
“No Knock” Warrants and Civil Rights Q&A – FIS Live Ep. 16 – thecivilrightslawyer.com –
Freedom is Scary
“No Knocks” are in the news following the Breonna Taylor shooting case. What is a “No Knock” warrant and when/how are they legal under federal constitutional law? One of my favorite topics. By favorite I mean that if I was a middle eastern dictator they would flow freely. This has been in the news now following the Breonna Taylor case. I’ll offer some analysis on that case, and also answer other civil rights constitutional law questions, if you have any – since this is LIVE.This is the FREEDOM IS SCARY livecast Episode 16. Please join me. It seems to be happening every Monday evening……thecivilrightslawyer.com
Searches and Seizures in the Home and No-Knock Warrants, i.e., the “Knock and Announce” Requirement, Generally:
In the Home: No Warrant? Presumptively Illegal: Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. On the other hand, outside a person’s home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.”
Outside the Home: No Warrant? No Need unless REP: To the contrary, the U.S. Supreme Court has found that no presumption exists outside the home, because a person does not have a reasonable expectation of privacy for most “places” outside one’s own home. These unprotected “places” include bank accounts, curbside trash, “open fields,” surrounding one’s home, and so on.
Search of home with a warrant: presumptively legal: So since the inverse is true, all searches of a home, made pursuant to a warrant are presumptively reasonable. The standard for a warrant requires only that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” It is still a requirement, obviously, that police officers tell the truth when they make their search warrant applications. If it is discovered that false information was intentionally provided to the magistrate, the warrant will be fraudulent, and therefore ineffective. At which point, we’re back to the search being presumptively unreasonable. During the execution of a lawfully-obtained search warrant, officers may temporarily seize the inhabitants of the structure being searched, including handcuffing them.
There is a default “knock and announce” requirement under the Constitution, though it frequently is ignored. Can officers make, or apply, for a no knock entry just b/c the homeowner has a CCW? Check out the 4th Circuit case out of West Virginia, Bellotte v. Edwards (4th Cir. 2011), authored by Judge Wilkinson. Judge Gregory was also on the panel:
The knock-and-announce requirement has long been a fixture in law. Gould v. Davis, 165 F.3d 265, 270 (4th Cir. 1998). Before forcibly entering a residence, police officers “must knock on the door and announce their identity and purpose.” Richards v. Wisconsin, 520 U.S. 385, 387 (1997)….
“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards, 520 U.S. at 394. The Supreme Court has admonished that “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Id. We have thus required a particularized basis for any suspicion that would justify a no-knock entry. See United States v. Dunnock, 295 F.3d 431, 434 (4th Cir. 2002)…..
Of course, the absence of a no-knock warrant “should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.” Richards, 520 U.S. at 396 n.7. But where, as here, the officers faced no barrier at all to seeking no-knock authorization at the time they obtained a warrant, “a strong preference for warrants” leads us to view their choice not to seek no-knock authorization with some skepticism. United States v. Leon, 468 U.S. 897, 914 (1984)….
To permit a no-knock entry on facts this paltry would be to regularize the practice. Our cases allow officers the latitude to effect dynamic entries when their safety is at stake, but the Fourth Amendment does not regard as reasonable an entry with echoes, however faint, of the totalitarian state…..
It should go without saying that carrying a concealed weapon pursuant to a valid concealed carry permit is a lawful act.The officers admitted at oral argument, moreover, that “most people in West Virginia have guns.” Most importantly, we have earlier rejected this contention: “If the officers are correct, then the knock and announcement requirement would never apply in the search of anyone’s home who legally owned a firearm.” Gould, 165 F.3d at 272; accord United States v. Smith, 386 F.3d 753, 760 (6th Cir. 2004); United States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993). We recognized over a decade ago that “[t]his clearly was not and is not the law, and no reasonable officer could have believed it to be so.” Gould, 165 F.3d at 272.
We received the brief from the lawyers for Putnam County, West Virginia in the Michael Walker case, the AR-15 open carry case currently pending at the Fourth Circuit. In case you haven’t seen it, here’s the video of the interaction at issue in the case:
The primary issue in dispute is whether a police officer can stop, detain and run a criminal background check, on an individual safely and lawfully openly-carrying an AR-15 style rifle. Putnam County’s law enforcement is arguing essentially that the AR-15 is a weapon of mass murder and warfare, and that it’s inherently suspicious of criminal conduct. Here are a few nuggets from their brief:
Finally, Mr. Walker’s argument that AR-15 style rifles may not be treated differently than less deadly firearms for reasonable suspicion purposes holds no basis in law, and is contrary to the public safety and intuitive sense. Different firearms have different utilities, purposes, and common uses, and their presence therefore draws different inferences. An AR-15 has more killing power, and is more commonly used in indiscriminate public gun violence than many more commonplace sporting or self-defense weapons, and therefore raises a greater concern for public safety in context. The fact that the AR-15 is so notoriously popular among the deadliest mass shooters also raises reasonable concerns over a copycat mass shooting. Objects need not be illegal for their presence, in appropriate context, to contribute to reasonable suspicion, and there is no reason for bearers of AR-15 style rifles to receive special protection.
“Killing Power?” Is that a scientific unit of measurement. If shotguns are okay, or a bolt-action hunting rifle is okay, then I wonder if they’re aware that an AR-15 uses a .223 caliber diameter round, which is unlawful to use for hunting in some states because it’s too small of a caliber, and therefore not deadly enough for game such as deer (as compared to the good ‘ole .308 or .270 Winchester calibers, etc., etc.).
This is a suburban residential and commercial area which is unsuitable for hunting or target shooting, and Mr. Walker was not wearing any items of blaze orange, or anything else which would signal to an observer that his intention was hunting. (See id.). Furthermore, this interaction occurred in February, when almost no commonly hunted animals, with the exception of noxious pests, are in season. Nor is an AR- 15 a weapon commonly used for hunting, such as a deer rifle or shotgun, or carried for self-defense, such as the handgun possessed by Mr. Troupe in Black. I
Was I the only one who just saw something happen on the news recently involving an AR-15 openly carried for self-defense, and used in self-defense? I think I recall something like that in the news. I bet this is also news to all their law enforcement officers in their county, and surrounding counties, who have an AR-15 in the police cruisers. Those are for hunting, right? Definitely not self defense. It appears that they just don’t like the AR-15:
The mass shooter’s preference for AR-15’s is because, as former U. S. Marine infantry officer and author of “The Gun,” a history of assault rifles and their effects upon security and war, C. J. Chivers, wrote in a February 28, 2018 New York Times column: When a gunman walked into Marjory Stoneman Douglas High School on Feb. 14, he was carrying an AR-15-style rifle that allowed him to fire upon people in much the same way that many American soldiers and Marines would fire their M16 and M4 rifles in combat. See Chivers, C. J., Larry Buchanan, Denise Lu, and Karen Yourish, With AR-15s, Mass Shooters Attack With the Rifle Firepower Typically Used by Infantry Troops, The New York Times (Feb. 28, 2018),
In sum, AR-15 style rifles give the wielder the capability to kill more people in a shorter amount of time than more commonplace styles of firearm, making it an appealing choice for a would-be mass shooter whose goal is exactly that, and a greater danger to public safety than would more commonplace, less-powerful, lower-capacity firearms, such as shotguns or handguns.
How is a .223 caliber rifle “more powerful” than a .308 bolt action hunting rifle? I wonder if they know that the M-60 machine gun is chambered in .308? I wonder if they know that our military has snipers who kill human beings with what are essentially hunting rifles chambered in the same caliber as hunting rifles, such as .308 caliber? They don’t chamber sniper rifles in .223 caliber found in AR-15s, because they are not powerful enough. Complete hogwash……
As discussed in prior sections of this brief, AR-15 style rifles have been featured in substantially all of the deadliest mass shootings in this decade. Mass murderers in Las Vegas and Orlando have killed and wounded over one hundred people in a single event with AR-15. Revolvers and bolt-action deer rifles do not share that infamy. It is therefore reasonable to infer that a person attempting to copycat a mass shooting would likely use the weapon of choice of mass shooters. If officers are concerned about a potential mass shooter, certainly they would justifiably be more concerned by a person carrying an AR-15 than one of the many firearms more commonly used for hunting or self-defense. Different inferences may be reasonably drawn from the presence of different firearms, because different firearms are used for different things: a person viewed at a gun range carrying a shotgun may be presumed to be there to shoot clay pigeons, whereas a person carrying a rifle is almost certainly not.
This is coming from the first county in the State of West Virginia to declare itself a “Second Amendment Sanctuary.” L.O.L. Also, by the way, there was no indication whatsoever that there was any indication or concern that Michael Walker could have been a copycat mass-murderer. That was all made up by lawyers after the lawsuit was filed. The entire incident was filmed. The entire 911 transcript exists. There was nothing that day to concern law enforcement, nor which did concern law enforcement, that Michael was a threat to a school. It was merely harassment for openly carrying a lawful and safely carried AR-15 style rifle.
Next we get to file a Reply Brief, responding to their response. At that point it will be in the hands of the Court. They can hold oral arguments, or rule on their briefs.
My thoughts on the Ruth Bader Ginsburg drama. There are 3 currently living retired Supreme Court justices: Sandra Day O’Connor, Anthony Kennedy, and David Souter. Each of these still-living former justices chose to retire, rather than to remain on the bench until death. RGB was perhaps the most left-wing partisan justice ever to serve on the Court, so understandably, she made the purposeful choice to stay on as long as possible. Therefore, it was her choice to politicize the vacancy which would be created by her death. In fact, her last words, as relayed by her granddaughter, were purportedly, “My most fervent wish is that I will not be replaced until a new president is installed.”
First of all, presidents are elected – not installed – and secondly, the seat belongs to the American people. It never belonged to her. It’s not her seat; it’s not the Democrats’ seat; it’s not the left’s seat; it’s not the right’s seat; it’s the people’s seat. Assuming that RBG actually said that, she didn’t just say wait until after the election, but rather, she wants to wait until Donald Trump’s successor takes office. She’s therefore expressing her desire that Trump notreplace her. If she said that, it wouldn’t be the first time that she’s knocked Trump, and it’s frankly sad to think that a man she disliked was the last thing on her mind in her final moments, rather than the granddaughter she was purportedly speaking to.
There can be no doubt that the Constitution provides the that the President is tasked with nominating someone new to fill the vacancy, subject to the advice and consent of the U.S. Senate. The only issue is the timing.The Constitution doesn’t necessarily provide, or require, that federal judgeships last until “death,” per se. What does the Constitution say about this? Article III is the part of the Constitution which lays out the constitutional foundation of the judicial branch, which leaves the logistics to Congress:
Article 3, Section 1 The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Thus, a justice serves “during good behavior.” So for life in general, but not necessarily. And it gives Congress the responsibility of organizing the federal judiciary. In fact, one of the first things Congress did in 1789 when it set up shop, is to set up the federal judiciary – including a Supreme Court, with then-6 justices. Of course, we now have 9, though Democrats have been threatening to increase the number (which RBG has gone on the record as opposing, even if done by Democrats).
The language about “holding offices during good behaviour” has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of “treason, bribery, or other high crimes and misdemeanors.” Only fifteen judges have ever been impeached (that is, formally accused by the House of Representatives) and only eight have been convicted and removed from office. For practical purposes, any judge who does not commit a crime (or do something equally bad) has “lifetime tenure” and will stay in office until he or she dies or voluntarily steps down. And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries.
Let’s look at the science behind it. There was a study done in 2010 on retirement vs. death-in-office of Supreme Court justices, noting that it was a “small but extremely important social group” which had not been previously studied in this way.
[S]ome observers have long asserted—and others have long denied—that the timing of justices’ resignations from the Court, and even the probability that they die in office, reflect a highly politicized process that, like their nominations, revolves around political compatibility between the individual jurist and the incumbent president of the United States as well as personal circumstances of justices, such as vitality (i.e., health, wellness), age, personal finances, and job tenure (i.e., length of service on the Court; see, e.g., French 2005). We call this assertion the politicized departure hypothesis.
The politicized departure hypothesis is based on (1) the observation that a justice’s retirement—particularly if it occurs early in a president’s term of office—allows the incumbent president to nominate the replacement for that justice, (2) the belief that justices tend to be loyal to the party of the president who appointed them to the Court, and (3) the conjecture that justices tend to display this loyalty by timing their resignations to give a president of that party the opportunity to appoint their judicial successor. Thus, the politicized departure hypothesis is as follows: (1) Other things equal, if the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice is more likely to resign from the Court than at times when these two conditions are not met.
The study found that history has shown that, despite the ability to generally stay until death, as end-of-life nears, with the existence of a pension, justices have tended to retire, rather than die in office. Those who have chosen to stay until death are dedicated politicos, as one of my college professors (Dr. Lanier) used to call them, acting not in their own personal best interests, but rather for pure politics. I think he used to say, “Don’t kid yourselves, these people are seasoned politicos.” Turning to the study at hand, the average service period of a SCOTUS justice over the course of the last 230 years of American jurisprudence has been about 25 years. According to the science, as the age of a justice advances, the expected annual odds of their retirement are about a 6% chance per additional year of life. Then comes the politics, which skews the numbers according to the political party of the president vs. the justice:
If the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice has odds of resignation that are about 2.6 times higher than when these two conditions are not met.
In addition, political climate effects on death in office are consistent with the politicized departure hypothesis. When the incumbent president is of a different party than the president who appointed the justice, then the justice’s death-in-office odds are about tripled, compared with when the appointing president and the incumbent president are members of the same party.
That’s the category RBG fits into. The likelihood of RGB dying in office based purely on the politics of replacing her, was about 3 times higher than the likelihood of her having retired had Trump not won in 2016. That seems about right to me. She’s had cancer for some period of time. Had Hillary won in 2016, it seems rational to believe she would have voluntarily retired sometime after November of 2016. Still though, RGB’s choice bucks the trend. Looking at history, the trend seems to have been towards increasing voluntary retirement of Supreme Court justices, rather than through death, which was more pervasive in the 19th century:
The evidence shows that RGB was a diehard politico. She went against the grain in choosing not to retire, and instead to attempt to outlive a Trump presidency. Her anti-Trump politics were well-known.
Washington (CNN) Supreme Court Justice Ruth Bader Ginsburg’s well-known candor was on display in her chambers late Monday, when she declined to retreat from her earlier criticism of Donald Trump and even elaborated on it.”He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Ginsburg had told a Times reporter, “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president. For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.”
Mind you, she made these comments about Trump before he was elected. They were made during the 2016 election – only months away from election day. Wisely, she publicly apologized:
Supreme Court Justice Ruth Bader Ginsburg apologized Thursday for comments she made about Donald Trump in The New York Times over the weekend. “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” she said in a statement. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”
I can agree with that sentiment. Particularly inappropriate was the fact that she said this not while Trump was President, but during the campaign. So she’s not criticizing the Executive Branch, she ‘s criticizing a candidate. That seems dangerous to me. By all accounts she was extremely smart, and was an effective proponent of her point of view. She certainly wasn’t afraid of having her own opinions. You may not know this, because the media probably hasn’t spoken of it much, but RBG also criticized Colin Kaepernick, calling his national anthem kneeling/protest “dumb” – though she later apologized for that too.
You may have seem memes about RBG in reference to advising Egypt away from copying the U.S. Constitution…. In a 2012 interview with an Arabic television station, RBG publicly reccomended that the Egyptians, after overthrowing their old government, NOT look to the U.S. Constitution as a model for their new government. This wasn’t taken out of context, either. Don’t just read the meme, or a biased “fact-check” article. Go ahead and read her full quote:
Ruth Bader Ginsburg, Jan. 30, 2012: You should certainly be aided by all the constitution writing that has gone on since the end of World War II. I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa — that was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the U.S. Constitution, Canada has the Charter of Rights and Freedoms — dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world?
In her own words, as a sitting Supreme Court justice, she prefers the South African constitution, or the Canadian “Charter of Rights and Freedoms,” neither of which include any real right of the people to bear arms. South Africa itself is a hot-mess, and has a constitution which is full of problems, including the fact that it created a socialistic system of government control of over 700 businesses, as well as a disaster as far as racial relations goes. Canada’s ultra-leftwing charter is like taking the radical left’s social justice platform and turning it into constitutional law. It may be good from the left’s political perspective, but it would be antithetical to the governmental constraint and limited government required from the U.S. Constitution.
Clearly RGB knew it would be much easier for the left to impose their agenda on a populace without a constitution such as ours in place. That’s her opinion, which is likely the reason she chose to play politics until the very end. The beauty and the genius of the U.S. Constitution is that its can be amended at any time. Bad stuff can come out. Good stuff can go in. You just have to follow the process – which requires broad support by the people. It’s not something done by swamp creatures alone.
Therefore the question is not whether the President should nominate a new justice – it’s whether the President should delay doing so, just in case he loses the election, because political pressure from the opposition is demanding it. There is no constitutional basis for such a request – only politics. This, mind you, is coming from the same political opposition who impeached the President, in an election year. The President needs only to ask himself one question. What would the Democrats do? There’s his answer.
The fact is, ladies and gentlemen, the distance between this platform and the slave plantation, from which I escaped, is considerable — and the difficulties to be overcome in getting from the latter to the former, are by no means slight. That I am here to-day is, to me, a matter of astonishment as well as of gratitude. You will not, therefore, be surprised, if in what I have to say I evince no elaborate preparation, nor grace my speech with any high sounding exordium. With little experience and with less learning, I have been able to throw my thoughts hastily and imperfectly together; and trusting to your patient and generous indulgence, I will proceed to lay them before you.
This, for the purpose of this celebration, is the 4th of July. It is the birthday of your National Independence, and of your political freedom. This, to you, is what the Passover was to the emancipated people of God. It carries your minds back to the day, and to the act of your great deliverance; and to the signs, and to the wonders, associated with that act, and that day. This celebration also marks the beginning of another year of your national life; and reminds you that the Republic of America is now 76 years old. I am glad, fellow-citizens, that your nation is so young. Seventy-six years, though a good old age for a man, is but a mere speck in the life of a nation…..
Fellow Citizens, I am not wanting in respect for the fathers of this republic. The signers of the Declaration of Independence were brave men. They were great men too — great enough to give fame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men. The point from which I am compelled to view them is not, certainly, the most favorable; and yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.
They loved their country better than their own private interests; and, though this is not the highest form of human excellence, all will concede that it is a rare virtue, and that when it is exhibited, it ought to command respect. He who will, intelligently, lay down his life for his country, is a man whom it is not in human nature to despise. Your fathers staked their lives, their fortunes, and their sacred honor, on the cause of their country. In their admiration of liberty, they lost sight of all other interests.
They were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was “settled” that was not right. With them, justice, liberty and humanity were “final;” not slavery and oppression. You may well cherish the memory of such men. They were great in their day and generation. Their solid manhood stands out the more as we contrast it with these degenerate times.
How circumspect, exact and proportionate were all their movements! How unlike the politicians of an hour! Their statesmanship looked beyond the passing moment, and stretched away in strength into the distant future. They seized upon eternal principles, and set a glorious example in their defense. Mark them!…..
At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could I reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.
Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival…….
Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes. Is slavery among them? Is it at the gateway? or is it in the temple? It is neither. While I do not intend to argue this question on the present occasion, let me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it. What would be thought of an instrument, drawn up, legally drawn up, for the purpose of entitling the city of Rochester to a track of land, in which no mention of land was made? Now, there are certain rules of interpretation, for the proper understanding of all legal instruments. These rules are well established. They are plain, common-sense rules, such as you and I, and all of us, can understand and apply, without having passed years in the study of law. I scout the idea that the question of the constitutionality or unconstitutionality of slavery is not a question for the people. I hold that every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one. Without this right, the liberty of an American citizen would be as insecure as that of a Frenchman……
Now, take the Constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery……
He ended the speech with this poem:
God speed the year of jubilee The wide world o’er When from their galling chains set free, Th’ oppress’d shall vilely bend the knee,
And wear the yoke of tyranny Like brutes no more. That year will come, and freedom’s reign, To man his plundered fights again Restore.
God speed the day when human blood Shall cease to flow! In every clime be understood, The claims of human brotherhood, And each return for evil, good, Not blow for blow; That day will come all feuds to end. And change into a faithful friend Each foe.
God speed the hour, the glorious hour, When none on earth Shall exercise a lordly power, Nor in a tyrant’s presence cower; But all to manhood’s stature tower, By equal birth! That hour will come, to each, to all, And from his prison-house, the thrall Go forth.
Until that year, day, hour, arrive, With head, and heart, and hand I’ll strive, To break the rod, and rend the gyve, The spoiler of his prey deprive — So witness Heaven! And never from my chosen post, Whate’er the peril or the cost, Be driven.
This afternoon I filed a federal lawsuit against the West Virginia Governor and against Putnam County, and their health department inspector, on behalf of the Bridge Cafe & Bistro, located in Hurricane, West Virginia. We are seeking money damages and attorney’s fees for First Amendment retaliation, after Putnam County threatened my clients with closure in response to their Facebook post expressing their opinions and policies pertaining to the Governor’s mask mandate. We are also suing the Governor and asking the Court to declare the mask mandate, as well as the “Stay at Home Order” unconstitutional and unenforceable.
We believe it’s unconstitutional under the First Amendment, as the mask debate has become just that – political speech. We also believe they are in violation of the 14th Amendment due process clause because they’re an arbitrary deprivation of my clients’ property interests wholly without due process of law. Moreover, they’re also a violation of the Equal Protection Clause of the 14th Amendment, because they treated restaurants in Putnam County, where only two deaths have occurred in over 6 months of the virus, just the same as they treated restaurants where the virus had a greater impact.
Additionally, we believe yesterday’s ruling from Judge Stickman in the Western District of Pennsylvania makes a good case that a Governor unilaterally choosing who is “essential” and who is “non-essential” in smoky rooms, rather than through an open, defined and rational process, is itself a constitutional violation. The Governor cannot enact legislation, period. Not in a time of war; not in a “State of Emergency” which has lasted over 6 months. The sole process for enactment of new laws in West Virginia is via the state legislature, according to the state Constitution. To the extent that counties attempt to enforce unconstitutional and unenforceable executive orders as if they were laws, we believe they can be sued for money damages under Section 1983.
Here’s the actual lawsuit which was filed this afternoon in the U.S. District Court for the Southern District of West Virginia. It doesn’t yet have a case number:
Even assuming it was constitutional, it doesn’t work. The virus is/was going to take its course. Where the lockdown measures were most tyrannical, the virus spread at the same rate, or even worse. Then there’s the unintended consequences and side effects of keeping people locked down, and destroying their small businesses, which is the reason why we weren’t supposed to attempt lockdowns in the first place.
POST-VIDEO UPDATE: I will be filing a federal lawsuit on behalf of the Bridge Cafe & Bistro in Putnam County, West Virginia, challenging the constitutionality of both the “Stay at Home Order” as well as the Governor’s “Mask Mandate.” You may recall this restaurant’s Facebook post expressing their First Amendment protected speech pertaining to the concept of forcing people to cover their faces:
This social media post, on what is obviously an intense political topic of current days, resulted in the Putnam County Health Board (they’re located in Hurricane, West Virginia) threatening administrative closure, for which they physically inspected the restaurant twice for mask compliance, and then charged them for it. They were dragged through the (actual) media, and through social media, in response to the substantive content of their speech, which is allowable for private citizens to do, but is a big no-no for the Government. Because, the First Amendment. Here’s some of the media aftermath:
Threatened with closure if they didn’t change the content of their opinions, and comply with the unconstitutional “Mask Mandate,” they had no choice but to comply:
We’re suing in federal district court for First Amendment retaliation, under Section 1983, and we’re also challenging the constitutionality of the “Mask Mandate” itself, as well as the “Stay at Home Order,” as it applies to this restaurant and the family who owns it. I’ll post the Complaint as soon as it’s filed. Due to the great timing, we’re now incorporating some of today’s ruling out of Pennsylvania. More about that below:
UpdateNo. 2: Today a federal judge in the Western District of Pennsylvania issued an opinion striking down the Pennsylvania Governor’s order closing “non-life-sustaining” (i.e., non-essential) businesses, as well as the order restricting large gatherings. It was a great opinion, and great timing as well, since we can now incorporate some of it into our federal lawsuit against the West Virginia Governor. It’s not binding in any way in our federal courts, since Pennsylvania is in a separate federal circuit. But it will be great guidance for the Court, and it also incorporates some of the federal rulings in Kentucky, which clipped the wings of their tyrant governor. Some of the highlights:
The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China—a nation unconstrained by concern for civil liberties and constitutional norms—started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective…..
As with the lockdown, Defendants’ shutdown of all “non-life-sustaining” businesses is unprecedented in the history of the Commonwealth and, indeed, the nation. While historical records show that certain economic activities were curtailed in response to the Spanish Flu pandemic, there has never been an instance where a government or agent thereof has sua sponte divided every business in the Commonwealth into two camps—“life-sustaining” and “non-life- sustaining”—and closed all of the businesses deemed “non-life-sustaining” (unless that business obtained a discretionary waiver). The unprecedented nature of the business closure—even in light of historic emergency situations—makes its examination difficult from a constitutional perspective. It simply does not neatly fit with any precedent ever addressed by our courts. Never before has the government exercised such vast and immediate power over every business, business owner, and employee in the Commonwealth. Never before has the government taken a direct action which shuttered so many businesses and sidelined so many employees and rendered their ability to operate, and to work, solely dependent on government discretion. As with the analysis of lockdowns, the unprecedented nature of the business shutdowns poses a challenge to its review. Nevertheless, having reviewed this novel issue in light of established Due Process principles, the Court holds that the business closure orders violated the Fourteenth Amendment….
An economy is not a machine that can be shut down and restarted at will by government. It is an organic system made up of free people each pursuing their dreams. The ability to support oneself is essential to free people in a free economy. The late Justice William O. Douglas observed: The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. The American ideal was stated by Emerson in his essay on Politics, ‘A man has a right to be employed, to be trusted, to be loved, to be revered.’ It does many men little good to stay alive and free and propertied, if they cannot work. To work means to eat. It also means to live. For many it would be better to work in jail, than to sit idle on the curb. The great values of freedom are in the opportunities afforded man to press to new horizons, to pit his strength against the forces of nature, to match skills with his fellow man. Barsky v. Board of Regents of University of State of New York, 347 U.S. 442, 472 (1954) (Douglas, J, dissenting). In a free state, the ability to earn a living by pursing one’s calling and to support oneself and one’s family is not an economic good, it is a human good.
There was a good article from the Mises Institute, The Evidence Keeps Piling up: Lockdowns Don’t Work, by Ryan McMaken. Here in West Virginia, our it seems that it was our Governor’s proudest life achievement so far, that he “shut down” the state, and then got to create an entire new form of government, which he titled, “The Comeback.” At least while mommy and daddy legislature is still in hiding….. As McMaken noted:
I’ve been saying, that since West Virginia’s greatest cause of death – one of the worst in the country – is heart disease. Yet our morbidly obese governor obviously doesn’t appreciate that fact. Our usual number of deaths due to heart disease floats just under 5,000. I wonder what it’s going to be this year? We’ll see, but it’s going to be high. This has been the year of the politician and the bureaucrat protecting themselves against the peasants. As McMaken describes, this was planned way in advance, during the Bush Administration, but at the time they viewed the concept of social distancing as “impractical, unnecessary and politically infeasible.” Now we have things like this occurring in a Presidential election:
One of the reasons the Bush bureaucrats decided a lockdown was infeasible is because lockdowns don’t work:
There is more than one reason, but one major reason is that lockdowns have never been shown to be particularly effective. And this lack of success in containment must also be weighed with the very real costs of forced isolation.
There are no historical observations or scientific studies that support the confinement by quarantine of groups of possibly infected people for extended periods in order to slow the spread of influenza. A World Health Organization (WHO) Writing Group, after reviewing the literature and considering contemporary international experience, concluded that “forced isolation and quarantine are ineffective and impractical.” Despite this recommendation by experts, mandatory large-scale quarantine continues to be considered as an option by some authorities and government officials.
The interest in quarantine reflects the views and conditions prevalent more than 50 years ago, when much less was known about the epidemiology of infectious diseases and when there was far less international and domestic travel in a less densely populated world. It is difficult to identify circumstances in the past half-century when large-scale quarantine has been effectively used in the control of any disease. The negative consequences of large-scale quarantine are so extreme (forced confinement of sick people with the well; complete restriction of movement of large populations; difficulty in getting critical supplies, medicines, and food to people inside the quarantine zone) that this mitigation measure should be eliminated from serious consideration.
But despite the 2006 conclusion, as the paper noted, politicians and bureaucrats don’t necessarily act in the best interests of people, or the nation, but rather in their own personal best interests. They will choose the fork in the road that increases their power – even if it decreases the freedom of the citizenry. That’s the clear explanation surrounding the West Virginia Governor. Clearly he’s adept at acting in his own best interests. He doesn’t pay his taxes. He doesn’t pay his bills. He obtained 24 MILLION DOLLARS IN PPP MONEY for his companies, and so on. Are we to believe that he took control over an entire state government just because he loves us, and he can’t bear to see us suffer? Where was his empathy when he was stiffing regular people and small businesses on his bills? When he said, here in West Virginia, “we’re all in this thing together,” he didn’t mention anything about the fact that the had lawyers and accountants behind the scenes getting him 24 million bucks while the rest of us peasants suffer, did he?
It’s about a power grab – not about saving lives. The evidence shows that lockdowns don’t work. They didn’t work:
Measuring from the start of the year to each state’s point of maximum lockdown—which range from April 5 to April 18—it turns out that lockdowns correlated with a greater spread of the virus. States with longer, stricter lockdowns also had larger Covid outbreaks. The five places with the harshest lockdowns—the District of Columbia, New York, Michigan, New Jersey and Massachusetts—had the heaviest caseloads.
Donald Luskin, The Wall Street Journal
There are other studies, as the Misis Institute listed:
A July study published by The Lancet concluded: “The authors identified a negative association between the number of days to any lockdown and the total reported cases per million, where a longer time prior to implementation of any lockdown was associated with a lower number of detected cases per million.”
In April, T.J. Rogers looked at “a simple one-variable correlation of deaths per million and days to shutdown” and found that “The correlation coefficient was 5.5%—so low that the engineers I used to employ would have summarized it as “no correlation” and moved on to find the real cause of the problem. (The trendline sloped downward—states that delayed more tended to have lower death rates—but that’s also a meaningless result due to the low correlation coefficient.)”
In May, Elaine He at Bloomberg showed “there’s little correlation between the severity of a nation’s restrictions and whether it managed to curb excess fatalities.”
In an August 1 study, also published by The Lancet, the authors concluded, “Rapid border closures, full lockdowns, and wide-spread testing were not associated with COVID-19 mortality per million people.”
The evidence shows that there was no stopping the activity of the virus, where it was already present. Not even the incredibly-obnoxious virtue-signaling step of redoing your social media profile picture with you wearing a mask, had any positive effect on the pandemic. It was nothing more than political speech. Political speech which politicized a virus. The evidence shows nothing governments did, which had any effect on the virus where it was already present:
In a paper published with the National Bureau of Economic Research (NBER), authors Andew Atkeson et al.found that covid-19 deaths followed a similar pattern “virtually everywhere in the world” and that “Failing to account for this familiar pattern risks overstating the importance of policy mandated NPIs (non pharmaceutical intervention) for shaping the progression of this deadly pandemic.”
So does this weak correlation between lockdowns and effect on COVID justify the tyrannical actions of governors across the United States, and most especially here in West Virginia?
Extraordinary measures require extraordinary evidence. And the burden of proof is on those who seek to use the coercive power of the state to force people into their homes, cripple the economy, and abolish countless basic freedoms for the duration. Have the advocates for lockdowns made their case? It’s hard to see how they have. For one, advocates for lockdowns need to present obvious and overwhelming evidence that lockdowns bring big benefits far in excess of the no-lockdown approach. They have not done so. Moreover, they have not shown that a lack of lockdowns is anywhere near as dangerous as they have claimed in the name of pushing lockdowns to begin with. We can already see what the no-lockdown scenario looks like. It looks like Sweden, and that’s a better outcome than many prolockdown regimes can claim. Governments are nonetheless likely to continue claiming their lockdowns worked. In ancient days, a witch doctor might perform a rain dance on Tuesday and claim credit when it rained on Wednesday. Lockdowns are increasingly looking like the modern equivalent of a rain dance.
That’s what Governor Justice is doing. He’s doing a rain dance for the public. Some thank him for it. Some hate him for it. And all suffer for it. Well, except the (executive branch) politicians and bureaucrats…..
Following many instances of violence, rioting and intimidation in recent months, I’ve seen it said by some of the participants, usually members of so-called Antifa, or BLM, or affiliated groups, the conduct is justified under the auspices that they were engaged in the righteous act of “fighting fascists.” They had no choice. But, as that one guy in Princess Bride once said, you keep saying that word, but I don’t think you understand what that word means . . . .
What is Fascism?
Benito Mussolini created the Fasci Italiani di Combattimento, the precursor to the fascist party, on March 23, 1919 in Milan, Italy. It was basically violent authoritarianism, but with a new name. Basically, using squads of violent militant supporters, they beat and killed their fellow Italians until they complied with their political agenda.
The word “fascism” comes from the Italian word, “fascio,” which means “bundle” – i.e., bundles of people. In ancient Rome, the “fasces” was a bundle of wood with an ax head, which was carried by leaders. We’re often told by the modern leftist movements, involving BLM and Antifa, that you’re either with us, or against you. In other words, you cannot be neutral. This isn’t a new idea. In fact, it’s a classic component of both fascist and communist political movements and regimes. Ruth Ben-Ghiat, an expert on first fascist dictator Benito Mussolini and a professor of History and Italian Studies at New York University, explained in a Time Magazine article last year:
“On March 23, 1919, the Fasci Italiani di Combattimento — a group that grew out of a number of earlier movements that had also used the image of the fascio in their names — met for the first time in Piazza San Sepolcro in Milan. At this rally, Mussolini said that membership in the new group “commits all fascists to sabotaging the candidacies of the neutralists of all parties by any means necessary.”
“Mussolini thought that democracy was a failed system. He thought that liberty of expression and liberty of parties was a sham, and that fascism would organize people under state power,” Ben-Ghiat says. “Their idea was you would be freer because you wouldn’t have any class consciousness. You’re just supposed to worship the nation. It’s nation over class.”
Violence was seen as beneficial to society. Those who did not conform to the ideas, or join the group, were seen as disruptive, and therefore subject to violence.
Who was Mussolini before being the first fascist dictator?
Mussolini was a journalist. He founded the Milan-based newspaper, Il Popola d’Italia, after he left the ranks of the Italian Socialist Party, where he advocated militarism and irredentism (a movement to reunify parts of what was supposed to be “Italy”similar to what Hitler was attempting to do in reunifying the Nazi perception of the true “Germany”). He created an offshoot of socialism, and was very much a socialist, as far as policy goes. The word “socialist” was displayed on the newspaper’s masthead until 1918. See Philip Morgan (2003), Fascism in Europe, 1919-1945, New York: NY: Routledge, p. 27.
So were the fascists also socialists?
Viewed in the context of World War I, Mussolini was a socialist, but disagreed with the Socialist Party on issues of foreign policy – namely, whether to go to war. He left the party when he went to fight in World War I. Accordingly, the fascists declared the socialists to be the enemy over their anti-war policies. Other than the foreign policy issue of whether to fight a war, their domestic policies were substantially the same. This formed the prototype for Hitler’s vision of the Third Reich:
“In the past, there was this idea that Mussolini copied Hitler, but it was actually the other way around for a very long time,” she adds. “Mussolini was in power 11 years before Hitler. He had things all worked out by the time Hitler came to power. Hitler was [initially seen as] a total loser. No one wanted to buy Mein Kampf. No one was interested in him. Then the Great Depression came, and he boomed. [Fascism] is a very important part of Nazism. It began with Hitler wanting to adapt what Mussolini had created. Hitler was such a fan of Mussolini; he was writing him, trying to get an autographed picture, trying to meet him.”
Therefore, fascists were socialists who wanted to go to war. Nazis modeled themselves on the fascists. Consequently, Nazis were socialists – hence their name, The National Socialist German Workers’ Party. Only in English, did we refer to them as just “Nazis.” They were a militaristic, pro-war, socialist party, in Germany.
Were the fascists also communists?
Looking back at the creation of fascism, the Russian Revolution had just occurred, and Mussolini feared the spread of communism would threaten his rise to power. Like the socialists, the communist party didn’t so much differ with him all that much on domestic policies, but they weren’t Mussolini.
“The main way the fascists got to power was by killing off and intimidating what was the largest and most popular party, the Socialist Party,” Ben-Ghiat explains. “Squadrists — terrorists who would descend upon towns in trucks, uniformed in black shirts — had knives and they killed thousands of people in the years 1919 to 1922. The killing went on after Mussolini became prime minister.”
Authoritarian regimes maintain power by force and suppression of opposing ideas and enemies – even if similar. Both communism and fascism glorify an autocratic, centralized and all-powerful government, suppressing individualism. The individual is meaningless in both forms of government. Whereas communism the government owns all means of production and land, fascism allows nominal private ownership – subject to the all-powerful ability of the central government to restrict or destroy such ownership, or course. This looks a lot like the current state of affairs in communist China, where nominal ownership is allowed – if the state allows it because the owner is useful to the state.
Both communism and fascism abolish the concept of religion. The central government – the party, or the State – are the new religion. Again, the large distinction is that “communism” is an international movement, designed to spread beyond borders, like a virus seeking power within each of its new hosts. For obvious reasons, such a movement was the enemy to Benito Mussolini. Italy was not open to the infection of communism, because Benito Mussolini was the sole dictator in Italy – not the Marxists in the Soviet Union.
At the core, fascism and communism both were political viruses designed to spread and take over new territory. Communism sought to spread everywhere. Italian fascism sought to reclaim what Mussolini believed to be his inheritance from the Roman Empire and the Italian Renaissance. Nazism would likewise seek the restoration of traditional lands – “breathing space” – which in turn brought race and ethnicity as a central policy issue. Communism, on the other hand, sought to overwhelm everyone, everywhere, equally destructive to all races and classes of people. Thus, Italian fascists, who didn’t threaten Nazi fascists, and vice versa, were natural allies because they each claimed separate territories. For the same reason, they both opposed the spread of communism. Because such a spread would challenge their primary purposes of maintaining authoritarian dictatorships over their specific geographical area of traditional and cultural importance.
Again, they weren’t all that opposed to each other when it comes to domestic policy goals. Mussolini had originally praised the Bolsheviks in the Russian Revolution of 1917 and publicly referred to himself in 1919 as the “Lenin of Italy.” See Peter Neville, Mussolini, Oxon, England, UK; New York: NY, Routledge, 2004, p. 36; Denis Mack Smith, Modern Italy: A Political History, University of Michigan Press, 1997, first publish in 1959, p. 284.
The Blackshirts were the paramilitary wing of the National Fascist Party, and known as the Squadrismo. They were based upon the Arditi, which was an elite group of Italy’s World War I troops, whose loyalty Mussolini had sought, and obtained. The Blackshirts was largely comprised of affluent intellectuals, rather than peasants, or laborers. They were black uniforms, and used violence and intimidation against Mussolini’s political opponents – growing more violent over time, as Mussolini’s power increased.
Hitler later copied Mussolini, creating his own version of blackshirts – the Brownshirts, who became the Nazi storm troopers.
During the high tide of “squadrismo,” members of the Fasci Italiani di Combattimento movement, who would form the official Fascist party by 1922, mobilized tens of thousands, even hundreds of thousands, of Italian men who carried out thousands of acts of brutal violence within their own communities and neighboring cities, towns, villages, and hamlets…. Fascist attacks against Socialists, according to Benito Mussolini, were like assaults “on an Austrian trench.” He declared, “This is heroism…This is the violence of which I approve and which I exalt. This is the violence of Fascism.”
Like the literal “fascists,” many modern leftist groups, such as BLM and Antifa, have ironically themselves adopted fascist tactics (which in reality are equally attributable to communists). They haven’t reached the level of the Blackshirts, as of yet, but the Blackshirts didn’t build their new Rome in a day. As Mussolini rose in power and strength, so too rose the level of their violence and intimidation:
Fascists interrupted meetings, beat elected officials, and made impossible the work of local government. Socialists in particular were intimidated, threatened, and even beaten until they resigned. The consequences for the Socialist Party, which was entirely unprepared to counter organized, paramilitary violence, were disastrous….
Throughout northern and central Italy, Fascists replicated this feat. Having conquered major provincial centers, Fascists spread out into small towns and hamlets. Major cities provided launching points for attacking other cities. Having consolidated power in these places, the squads then moved into more peripheral areas…. The peasant leagues, cooperatives, labor halls, and social clubs—the entire infrastructure of the Socialist “state”—were intensely parochial institutions, organized around popular, charismatic political and labor leaders.8
Fascist squads thus practiced highly personal, localized strategies of violence and intimidation, attacking the most prominent and influential “subversives” within a given province, town, or comune. Fascists sometimes beat these men, occasionally with homicidal intent, but perhaps more commonly intimidated them until they were forced to leave town, thereby decapitating their organizations. The Fascists spent their weekends chasing prominent peasant leaders across the countryside.
The Blackshirt playbook was really not a whole lot different than “terrorism” as it became to be defined in the post-millineum – albeit, without the religion. It was all about instilling fear, or rather terror, in the minds of the enemy. Not just the enemy either, but in the minds of their innocent family members at home:
Thus, life for labor leaders became terror-filled, especially because Fascists did not limit their attacks to the public sphere. Nowhere was safe. Late at night, 10, 30, or even 100 Blackshirts, as these squad members became known, sometimes traveling from neighboring towns, might surround a home, inviting a Socialist, anarchist, or Communist outside to talk. If they refused, the Fascists would enter forcibly or threaten to harm the entire family by lighting the house on fire.9
In small towns, where everyone knew everyone, Fascists inflicted ritual humiliation on their enemies, a powerful strategy of terror understood by all. Blackshirts forced their opponents to drink castor oil and other purgatives, and then sent them home, wrenching with pain and covered in their own feces. In some cases, squads forced their enemies to defecate on politically symbolic objects: pages of a speech, a manifesto, a red flag, and so on. After administering a castor oil treatment, Fascists sometimes drove prominent anti-Fascist leaders around in lorries in order to reduce them in the eyes of their own supporters.10 They also accosted their opponents in public, stripped them naked, beat them, and handcuffed them to posts in piazzas and along major roadways.11
Although individual working-class leaders might have been willing to live under the constant threat of physical attacks, most were unwilling to subject their families to such danger. Deprived of leadership, meeting places, offices, records, and sympathetic Socialist town councils, the landless peasantry became subject to the landowners’ conventional tactics of strike breaking and intimidation. Having broken the leagues, the Fascists then forced the laborers into “politically neutral” (Fascist) syndicates. Vulnerable peasants had little choice but to join….
The squadrists’ most explicit goal—destroying “Bolshevism”—was rapidly achieved, yet the violence continued unabated. Only by perpetuating this “revolutionary” situation could the Fascist movement undermine the liberal state and continue its push for political power. Additionally, at the local level, violence and criminality persisted more or less independent of any immediate larger political goals. The power of the Ras and the bonds of squadrist camaraderie depended on Fascists sustaining a state of lawlessness and initiating new attacks.12 Illegal activities increased feelings of belonging and emotional interdependence among squadrists, making it more difficult for individual Blackshirts to pull out of the squads or refrain from violent acts. Any retreat, any return to normalcy, would have required dealing with potentially serious legal and psychological consequences.13 Violence thus became cyclical and self-sustaining. Squads perpetuated the environment of terror by constantly identifying new victims. Not surprisingly, due to its intimate nature, Fascist violence was shaped by local conditions: petty feuds, personal rivalries, and other motives beyond mere class warfare.
Scenes of burning and stomping on flags, national, cultural and historic symbols…. It’s all a performance, shrewdly designed to have an effect on the minds of the people who would otherwise be neutral. Remember, you’re either with us, or against us:
Having “conquered” and “pacified” Socialist communities, Fascists next asserted domination over the political and symbolic use of public space. The Fascists tore down red flags, busts of Marx, and Socialist slogans, replacing them with the Italian flag, busts of the king, and the fasces. Marches, parades, and political ceremonies reinforced the perception that the Fascists now dominated public spaces only recently occupied by Socialists. This “performance” of Fascist dominance intimidated real and potential enemies, while also fostering cohesion and solidarity among the Blackshirts. It also served to reassure the provincial bourgeoisie that their dominant social position had been restored. Conservative and even moderate liberal provincial newspapers expressed support for the Blackshirts, praising their “patriotism” and respect for “law and order.”
The new Fascist “state within a state” was very different from the preceding two years of Socialist hegemony. Through illegal violence, rather than elections, Fascists controlled government administration and destroyed the offices, newspapers, and cultural and social organizations of the Socialists, trade unions, and peasant leagues. Cyclical violence directed against local leaders prevented Socialists from reorganizing. Mass demonstrations, supported by the police and property-owning classes, were patriotic, reaffirming the primacy of the nation over internationalism. Politically, economically, and socially, traditional elites had reasserted their dominance over the laboring classes….
Fascists also raided the homes of nationally prominent politicians—including the former prime minister, Francesco Nitti—throwing their books and furniture out the window and lighting the pile on fire. Meanwhile, in the provinces, Fascists seized control of local administrations that had resisted up until then. By the end of 1922, Fascists or pro-Fascists controlled virtually every communal administration in Italy. Finally, the freedom of the press was severely curtailed. In the days following Oct. 28, 1922, Fascists prevented most major dailies from publishing news of events.
On Oct. 29, 1922, the Italian king appointed Mussolini prime minister. Mussolini presided over a mixed cabinet consisting of Fascists, Nationalists (who were absorbed by the Fascists in 1923), Liberals, and Popolari. Many political elites assumed that a Mussolini government would bring an end to two years of violent disorder, but it did not. By taking the portfolio of minister of the Interior for himself, he controlled the Italian police. Political violence in the years after the March on Rome continued to serve the same purposes as before: it suppressed opposition, replaced Socialist and non-Fascist administrations, and extended Fascist control over the rest of Italy. Mussolini occasionally decried the illegal activities of the squads, but they operated as the motor that drove his government along the road to dictatorship.
In 1932, Antifaschistische Aktion (a.k.a., Antifa) was formed in the Weimar Republic by members of the Communist Party of Germany. The modern-day “Antifa” has appropriated their name and a modified version of their logo. They’re not the only ones. The Maoist Communist Party in China did the same, along with other later Marxist authoritarian regimes and groups. It’s been a common tactic utilized by communists ever since the 1930s. While 1932 Germany did indeed have a problem with actual fascists in the government, in true communist fashion, the epithet “fascist” didn’t necessarily refer only to a Nazi. Rather, it was used to describe capitalist society in generally and virtually any anti-Soviet or anti-Stalinist activity or opinion. The term anti-fascist became ubiquitous in Soviet and communist party usage, where it became synonymous with the party line. See Pike, David (1982). “German Writers in Soviet Exile, 1933–1945”. The American Historical Review. 88 (1): 8–9. doi:10.1086/ahr/88.1.133-a. ISSN 1937-5239.
Thus, when the “Antifa” rioters, or the BLM “peaceful protestors” are engaging in what appears to be violence and/or intimidation, similar to what the Blackshirts used to do, they justify their actions utilizing a theory that the ends justifies the means, because they’re “fighting fascists.” The big difference between 2020 United States and 1932 Europe, is that they literally are not fighting fascists. There are many things. But they literally are not fighting fascists. Fascists are not Republicans, nor Maga-hat-wearing Trump supporters. No historical component of the United States had anything to do with fascists, except being the actual one’s to finally destroy the literal fascists – Nazi Germany and Mussolini’s Italy. And also the Soviet Union, which is basically the same thing, as far as domestic policy goes. Fascists do not promote, protect and preserve religion. Fascists do not believe in the natural rights of man to life, liberty and the pursuit of happiness. Antifa is literally fighting against non-fascists. Whether they’re neutral, or Maga-hat-wearers, or whether they’re so-called right-wing militia types, they’re literally not fascists. If they were, they’d probably be the best of friends, because in theory, they only disagree on foreign policy issues. And even Trump, the head fascist of 2020, is vocally anti-war compared to his Republican Neocon predecessors.
So what’s the end-goal? Where is this all going? What does Antifa/BLM/communism want? Just as history tells us what fascism is, and what communism is, by what their actions have been in the past, and how they were created and maintained their power, history also teaches where they will take us, if given the opportunity.
Spanish Civil War
The culmination of the real fascists in 1930s Europe, competing with the real communists of 1930s Europe, as well as communists led by the Soviet Union, resulted in a civil war of epic proportions in Spain, which illustrated the real end-game of so-called anti-fascist groups. This is where the want to go, assuming they are sufficiently supplied and supported. It lasted from 1936 to 1939. An unknown number of people, from 500,000 to one million, would die in the war, ending in an even-more brutal dictatorship which would rule Spain well into the 1970s.
Leading up to the Spanish Civil War, there was an eerily familiar environment of violence and polarization. According to Stanley Payne, by July 1936, the situation in Spain had deteriorated massively. Spanish commentators spoke of chaos and preparation for revolution, foreign diplomats prepared for the possibility of revolution, and an interest in fascism developed among the threatened. Payne states that, by July 1936:
“The frequent overt violations of the law, assaults on property, and political violence in Spain were without precedent for a modern European country not undergoing total revolution. These included massive, sometimes violent and destructive strike waves, large-scale illegal seizures of farmland in the south, a wave of arson and destruction of property, arbitrary closure of Catholic schools, seizure of churches and Catholic property in some areas, widespread censorship, thousands of arbitrary arrests, virtual impunity for criminal action by members of Popular Front parties, manipulation and politicisation of justice, arbitrary dissolution of rightist organisations, coercive elections in Cuenca and Granada that excluded all opposition, subversion of the security forces, and a substantial growth in political violence, resulting in more than three hundred deaths.”
Payne & Palacios 2014, p. 117.
Society was severely polarized, with constant confrontations between the left and the right (i.e., the communists and fascists, so more accurately left vs. other left):
Laia Balcells observes that polarization in Spain just before the coup was so intense that physical confrontations between leftists and rightists were a routine occurrence in most localities; six days before the coup occurred, there was a riot between the two in the province of Teruel. Balcells notes that Spanish society was so divided along Left-Right lines that the monk Hilari Raguer stated that in his parish, instead of playing “cops and robbers”, children would sometimes play “leftists and rightists.”
Balcells, Laia. Rivalry and revenge. Cambridge University Press, 2017. pp. 58–59.
The government was allowing one side to commit acts of violence and to destroy property, and to get away with it, while the other side would be prosecuted. In addition, there was a purposeful class warfare and social justice propaganda, bringing tensions to a boiling point:
Within the first month of the Popular Front’s government, nearly a quarter of the provincial governors had been removed due to their failure to prevent or control strikes, illegal land occupation, political violence and arson. The Popular Front government was more likely to persecute (i.e., prosecute) rightists for violence than leftists who committed similar acts…
Workers increasingly demanded less work and more pay. “Social crimes” – refusing to pay for goods and rent – became increasingly common by workers, particularly in Madrid. In some cases this was done in the company of armed militants. Conservatives, the middle classes, businessmen and landowners became convinced that revolution had already begun.
Seidman, Michael (2011). The Victorious Counter-revolution: The Nationalist Effort in the Spanish Civil War. University of Wisconsin Press.
Tragically, the Spanish Civil War was characterized by the inability for historians to even determine the number of people who died in the process. Both sides utilized what were essentially death squads, killing both civilians and combatants. Maybe the one thing that everyone can agree on, is that Spain was destroyed in the process, and never really recovered.
We’ve already had one Civil War, and there can be no doubt, if you look at the history of communist “anti-fascists,” that’s where they want to take us.
Kamala Harris is now the VP candidate. You may have heard her bring up the topic of systematic inequality, or injustice. Look no further than her achievements as a career prosecutor, and many others like her across the nation, to find evidence that those things indeed exist. They really do.
Harris was a district attorney in San Fransisco from 2004 to 2011. She stood out there by being tough on crime in the form of prosecuting truant school children, sending letters to San Fransisco parents each year, threatening them with citations. She sponsored a 2010 law making it a misdemeanor crime for parents whose children miss 10 percent of a school year without an excuse the State deemed acceptable. She opposed efforts to reduce mandatory minimum prison sentences. She opposed the effort to legalize marijuana in California.
She served California Attorney General from 2011 to 2017, where at least 1,560 people were incarcerated for marijuana related offenses in those years. She fought against new DNA testing in order to determine whether death row inmate, Kevin Cooper, who many believed had been wrongfully convicted. If there’s any chance at all that he is actually innocent, what is the harm in checking the DNA? According to the New York Times, over 600 criminal cases had to be dismissed over a corrupt laboratory technician who had been accused of “intentionally sabotaging” results in criminal prosecutions. Harris and her prosecutors tried to withhold this evidence from defense lawyers – and got caught.
In 2014, she declined to take a position on a ballot initiative to reduce certain low-level felonies to misdemeanors and laughed at a reporter who asked if she would support the legalization of marijuana.
That case is not an outlier. Ms. Harris also fought to keep Daniel Larsen in prison on a 28-year-to-life sentence for possession of a concealed weapon even though his trial lawyer was incompetent and there was compelling evidence of his innocence. Relying on a technicality again, Ms. Harris argued that Mr. Larsen failed to raise his legal arguments in a timely fashion. (This time, she lost.)
She also defended Johnny Baca’s conviction for murder even though judges found a prosecutor presented false testimony at the trial. She relented only after a video of the oral argument received national attention and embarrassed her office. And then there’s Kevin Cooper, the death row inmate whose trial was infected by racism and corruption. He sought advanced DNA testing to prove his innocence, but Ms. Harris opposed it. (After The New York Times’s exposé of the case went viral, she reversed her position.)
In “The Truths We Hold,” Ms. Harris’srecently published memoir, she writes: “America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice.” She ironically claims in the book, “I know this history well — of innocent men framed, of charges brought against people without sufficient evidence, of prosecutors hiding information that would exonerate defendants, of the disproportionate application of the law.”
Indeed, I have also seen it first hand. The fact is that we have over-criminalized everything in this country. And who has it harmed the most? As I wrote about back in January, it didn’t start out this way. The Constitution was initially ratified in 1788. By 1790, we had only 30 federal crimes in existence, which consisted of the basics: treason, piracy, counterfeiting, murder, and so on. At that time, there was no concept in our law of the possession of an object being illegal in and of itself. That was imported from Sharia Law and Far-East authoritarian regimes, such as you see in the laws of Singapore.
The first modern drug law in the western world was in England in 1868. The first law against drug possession in the U.S. wasn’t until 1875, from San Francisco, where it was attempted to stop the Chinese immigrants from enjoying their “opium dens.” Politicians will be politicians, and now as of 2015, we now have over 5,000 federal crimes on the books – up quite a ways from the original 30 in the America as created by our founding fathers. In total, that’s 27,000 pages of descriptions of federal crimes in the U.S. code books. Although the U.S. consists of only about 5% of the world population, we incarcerate around 25% of the world’s prisoners. 40% of those are Black Americans. See The Overcriminalization of America, Charles G. Koch and Mark V. Holden, January 7, 2015.
Our laws in America derived from English common law. Courts today still turn to the old English common law to resolve some questions of law. It might surprise you to learn that the prosecution of crimes in our mother country was originally a private matter, rather than public. There was no real police force anywhere. Nor an army of prosecutors. The first real police force was created in 1829, and then that was only in London. The criminal justice system itself, was mostly privately operated and funded. So there was no such thing as a police force. And there was no such thing as career prosecutors, such as Kamala Harris.
Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial.
In some ways, their system for criminal prosecution was similar to our system of civil prosecution. Under both, it is the victim who ordinarily initiates and controls the process by which the offender is brought to justice. There is, however, at least one major difference between the two systems. If the victim of a tort succeeds in winning his case, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged, transported, or possibly pardoned. The damage payment in civil law provides the victim with an incentive to sue. There seems to be no corresponding incentive under the 18th century system of private criminal prosecution.
Possession crimes were used against Black Americans, throughout the Jim Crow era, by depriving them of the right to possess firearms.
The anxiety about gun control, i.e., the regulation of gun possession, arises from this tension, this uncertainty amongthose who once clearly identified themselves with the policers in their effort to control undesirables.
Privileged members of thepolitical community are appalled to find themselves treated bythe law, if not necessarily by its enforcers, as presumptively dangerous, and therefore as vagrants, felons, aliens, and “negroes.” Pointing to the Second Amendment, they challenge the state’s claim to original ownership of guns as dangerous instruments,with possession to be delegated to those deemed worthy. Men of “good moral character” balk at the requirement that they demonstrate their moral fitness to a state official.
They are, in short, experiencing the very sense of powerlessness so familiar to the traditional objects of police control. Now, they too are the outsiders who find themselves confronted with the arbitrary discretion of a superior power, the state. And this sense of alienation only grows when these state-defined sources of danger realize that state officials are exempt from the general prohibition of possession.
And again, if you want to look at systematic injustice and inequality, look no further than those individuals who have signed their names to the documents charging the people imprisoned across the county, as well as the arguments made in the courtroom to put them there. Somewhere along the way, we decided to over-criminalize America, to the point at which the Government tells us what plants, or even ideas, we can, or cannot possess. Regarding Harris’ statement in her book about the danger of prosecutors, the lady doth protest too much, methinks….
A Maryland state employee was just fired for political opinions he privately posted on Facebook. Freedom of Speech is a vital part of our Republic; so important that our Founding Fathers put it right no. 1 in the Bill of Rights – in the First Amendment. The right to express your opinions on political issues of the day, without the government punishing us for doing so. However, this is exactly what’s been happening on social media, as illustrated by the case of Arthur “Mac” Love, a former state employee in Maryland, who was just fired for posting political opinions and political memes on and from his private Facebook page.
Some intolerant left-leaning politicians in Maryland decided that opposing, or conservative, points of view could not be expressed by a state employee, and pressured the Governor of Maryland to fire this man, which he abruptly did, apologizing for having an employee who expressed speech that many would deem unpopular or controversial.
However, Americans have a right to freedom of speech, do they not? If they suffer retaliation for their free speech expressions, even on social media, that’s called First Amendment Retaliation, and is a civil rights violation, just as being unnecessarily beaten or shot by the police is, and justice can be sought through a civil lawsuit under 42 U.S.C. 1983.
Join me in Freedom is Scary, Episode 10, on this very topic. Live on here, Youtube, or Facebook.