About johnbryanlaw

John H. Bryan is a West Virginia criminal defense and civil rights attorney practicing out of Union, and Lewisburg, West Virginia. For more information, visit his website at www.johnbryanlaw.com.

Federal Judge in NY Blocks State Mandate

A federal judge today temporarily blocked New York state from enforcing a vaccine mandate on health care workers who seek or obtain a religious exemption. Here’s the Complaint, filed by the Thomas More Society on behalf of numerous physicians and other health care professionals who are acting under pseudonyms. The Court issued a Temporary Restraining Order pending the response of the defendants and a hearing on the matter. The basis of the Complaint is failure to provide a religious exception. There are tons of exhibits attached to the Complaint detailing the basis for the religious exception under Christianity.

WV Attorney General Opinion Arguing Mandates are Unconstitutional

On September 10, the West Virginia Attorney General issued an Opinion letter ultimately concluding that vaccine mandates in West Virginia would be unconstitutional in any blanket form – whether public or private employees.

In the end, a law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate our State’s constitution (as it should be properly understood) and violate both state and federal law. The same finding would follow no matter what aspect of “state” government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level. We therefore urge any public entities to comply with such guidance and come into accordance with this opinion.

Likewise, a private employer’s mandate or vaccine-passport requirement may violate federal and state anti-discrimination laws if it does not, at a minimum, provide for appropriate exceptions for those with religious- or disability-based objections.

He urges the Legislature to take action.

For reasons discussed further, the Legislature can undeniably act. In fact, “[t]he Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby.” Syl. pt. 5, State ex rel. Cooper v. Tennant, 229 W. Va. 585, 730 S.E.2d 368 (2012). Ultimately, “[i]t is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation.” Syl. pt. 3 (in part), State v. Dubuque, 239 W. Va. 660, 805 S.E.2d 421 (2017).

Mandate Litigation, Legislation and Political Posturing in West Virginia

While our telephones and email flood with messages from upset parents, angry about the forced masking of our children, an unlikely hero comes to the rescue. However, he completely messed up. He’s attempting to score for the opposing team. Democrat nominee for W. Va. Attorney General in the 2020 election, in the name of allegedly protecting civil rights for multiple children, filed a lawsuit against the Governor and various school entities to attempt to force a comprehensive statewide mask mandate for children. He is essentially suing to force the Governor to issue an emergency executive order.

Where do I begin? If the Supreme Court wouldn’t let me force the Governor to call the legislature into session last year, in lieu of just issuing incessant executive orders, I can’t imagine they would allow an anti-civil rights lawyer to force him to actually issuing an executive order. We can take issue with the scope of the Governor’s emergency powers, but the concept that the Governor gets to issue, or not issue, his own executive orders, seems pretty uncontroversial. Though I suppose it’s having the desired effect of convincing various county school boards to reverse their prior decisions on a local level, which several have apparently done in the past day or so.

At the same time, the Republican leadership in the W. Va. legislature sent a letter to the W. Va. Attorney General official asking him to give an opinion on whether employer vaccine mandates and vaccine passports are in violation of the West Virginia Constitution. First off, it’s the U.S. Constitution that stands any chance of going up against the mandates. Any analysis of the W. Va. Constitution is going to have to begin with the U.S. Supreme Court’s Jacobson case from 1905. Because that would be the first case cited by the W. Va. Supreme Court, should they hear the issue.

Proponents of governmental overreach in the COVID era have consistently pointed to Jacobson as justification for whatever measures the government is undertaking for the purported goals of protecting the health and safety of their citizens, which in turn is utilized by both public and private employers to attempt to mandate vaccines on their employees. Jacobson opined on the role of the U.S. Constitution in controlling state police powers, as understood in 1905, granting states and local governments an affirmative carte blanche to engage in state disease control efforts.

What that means, is that as it currently stands, SCOTUS has said that the U.S. Constitution allows vaccine mandates in the past. So if W. Va. has carte blanche to engage in disease control efforts, the ball is squarely in the State Legislature’s court. No federal court or caselaw is likely going to stop it. The only way to stop broad employer mandates right now, whether public or private, is through legislative action. That is a very real possibility right now in West Virginia, given the fact that numerous state legislators are currently calling for a special session to consider that very legislation.

Regarding Jacobson’s 1905 era values, let’s not forget that Jacobson’s legal rationale led to the case of Buck v. Bell, the infamous 1927 U.S. Supreme Court decision that found no restriction was placed on states’ police powers by the U.S. Constitution regarding a state’s public policy initiative to engage in involuntary sterilization of a woman who was purported to be of low intelligence. 274 U.S. 200 (1927). This decision by the SCOTUS gave the eugenics movement added legitimacy and considerable momentum. By 1931, 28 out of 48 states had adopted eugenic sterilization laws.

Jacobson left the door open for future refinement, conceding that state or local government could exercise police powers in an arbitrary or unreasonable manner. The ensuing future refinement came in the form of 20th century civil liberties which were recognized and developed by the courts. Since Jacobson, the Supreme Court has recognized numerous limits on health and safety regulations, including the right against involuntary restraint, decisions about marriage, contraception, procreation, family relationships, sexual relationships, child rearing and education, as well as the right to refuse life-saving treatment. Nobody is arguing that state police powers retain the ability to suppress any of these now-federally-recognized rights. But they want to leave the forced vaccine part in effect.

In addition to the rights itemized supra, the Supreme Court recognized, and continues to recognize, the right of bodily integrity, which was the category of freedom from government action, the higher order, under which the specific rights described in Roe, as well as Cruzan, fell. E.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 915 (1992) (“One aspect of this liberty is a right to bodily integrity, a right to control one’s person.”). In Cruzan, Chief Justice Rehnquist reiterated in his majority opinion, “every human being of adult years and sound mind has a right to determine what shall e done with his own body….” Cruzan, 479 U.S. at 269.

West Virginia has also recognized the right to bodily integrity as a fundamental right. In the recent decision in Kruse v. Farid, 835 S.E.2d 163 (W. Va. 2019), the West Virginia Supreme Court noted that “all competent patients have the right to refuse medical care,” and that such right “has been recognized by both the United States Supreme Court and by the Legislature of this State.” Id. at 168. The W. Va. Court cited the SCOTUS, at length:

[a]t common law, even the touching of one person by another without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn of the century, this Court observed that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific R. Co. v. Botsford,

141 U.S. 250, 251[, 11 S. Ct. 1000, 1001, 35 L. Ed. 734] (1891). This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body[.]” Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) [, superseded by statute on other grounds as stated in Retkwa v. Orentreich , 584 N.Y.S.2d 710, 154 Misc. 2d 164 (N.Y. Sup. Ct. 1992) ]. The informed consent doctrine has become firmly entrenched in American tort law. See Keeton, Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990).…

[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Cruzan by Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 269-70, 277, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Accord Collins , 517 S.W.3d at 92 (” ‘All competent adults have a fundamental right to bodily integrity. … Included in this right is the right of competent adult patients to accept or reject medical treatment.’ ” (quoting Church v. Perales , 39 S.W.3d 149, 158 (Tenn. Ct. App. 2000) ) (additional citations omitted)). Likewise, the West Virginia Legislature has recognized this personal right to make health care decisions: “Common law tradition and the medical profession in general have traditionally recognized the right of a capable adult to accept or reject medical or surgical intervention affecting one’s own medical condition[.]” W. Va. Code § 16-30-2(b)(1) (LexisNexis 2016).

Kruse v. Farid, 835 S.E.2d 163, 168-69 (W. Va. 2019).

Thus, there is some basis in West Virginia state law in which to oppose mandates. However, it’s still grounded in federal constitutional law. You would expect the legislative leadership to know and understand this. Perhaps it’s just political posturing, sending a hardball to the Attorney General, in order to force him give the ultimate opinion that there’s nothing in the West Virginia Constitution which applies the mandate issues presented. What benefit does that confer to we the people, who are opposed to mandates? I can take the liberty of answering for the Attorney General that what the West Virginia Constitution does say, is that sole legislative power is vested in the legislature. Since SCOTUS believes state police powers control mandate law at the state level, the legislature should have the final say. At least unless our anti-civil rights hero gets his way. But do they have the political will?

Employer Mandate Options? Live Webinar with Attorneys Chris Wiest and Andy Fox

What are the current best options in dealing with the flood of employer mandates? Lawsuit? Quit? Exemptions? Join me for a discussion / webinar with Kentucky Attorney Chris Wiest and Tennessee Attorney Andy Fox. Live at 5:30 p.m. ET

Here’s a sample religious exemption letter courtesy of Chris Wiest, as discussed in the video. It has some Kentucky-specific language in it, but you get the idea:

The case against m@sk m@ndates in schools

As the Taliban takes over control of Afghanistan, women in that country are facing compulsory masking of their bodies and faces, in accordance with Sharia Law. Simultaneously, in West Virginia, and across the U.S., school boards are being confronted by angry parents who are pleading with them not to mandate the forcible masking of children in accordance with the strange new religion of mask virtue we’re now facing in America. I’ve previously discussed the fact that masks do nothing to stop the spread of COVID, in general, and that they’re in fact harming children. I encourage you to review that post, as much of the information in it has already been used to defeat mandates in the State of Kentucky (as explained below), and hopefully soon, in West Virginia.

Liberty and freedom aside, mask mandates in schools are pointless, from a common sense perspective, as well as a scientific perspective. And as Galileo said, “In questions of science, the authority of a thousand is not worth the humble reasoning of a single individual.”

  1. Children play almost no role in spreading COVID
  2. Children are at extremely low risk
  3. Masks don’t stop the spread of COVID in schools
  4. Forced masking harms children

Supreme Court Justice Clarence Thomas has written about the concept of liberty, in general, as we have defined it in America, and before the Founding, in English history and jurisprudence, dating back to the signing of the Magna Carta, as at its core, the “freedom from physical restraint.” The freedom to breathe, without physical restraint over the mouths of our children, is liberty guaranteed to us not only by our Founding Fathers, our English common law heritage, but also as a natural right given by God.

This information is excerpted by the lawsuit(s) we’re getting ready to file challenging school-level mask mandates being implemented in certain counties around West Virginia. The filed versions, which will be posted here in their entirety, after filing, will contain the actual footnote citations to this material. All of this information is documented.

CHILDREN PLAY ALMOST NO ROLE IN SPREADING COVID-19

A study on the spread of COVID-19 in the Icelandic population in 2020 failed to find a single incident of child-to-adult transmission in over 600 SARS-CoV-2 positive people who were included in the study. The researchers used genome-sequencing and contract tracing to identify the manner of the disease’s spread through the community. The genome-sequencing allowed the researchers to definitively conclude that none of the cases spread from a child to an adult.

Another study from Korea of 107 pediatric cases and 248 household contacts failed to find a single instance of a child infecting an adult with COVID-19. In fact, the study found only one instance of a child infecting anyone, except for one case of a 16 year old infecting a 14 year old sibling. Interestingly, both of the siblings’ parents tested negative.

Sweden did not close schools during either Spring or Fall of 2020 when they received waves of COVID-19 transmissions. They did not require that students or teachers wear masks. The results of a country-wide survey was published on February 18, 2021. The analysis showed that deaths in Sweden’s school children did not increase in the four months of the study period relative to any other period, despite school children being unmasked and attending school. Moreover, it found that nationally, fewer than 10 preschool teachers, and 20 schoolteachers who contracted COVID during the period received intensive care. Fortunately, none of the teachers died. The study showed that the relative risk to teachers versus other professions was, in the case of preschool teachers, 1.1, and for other teachers, 0.43 percent.

The nationwide Swedish results are corroborated by other studies which have found that spending time with children no only doesn’t place adults at greater risk, but is actually protective to the adults. A recent study from the U.K. of more than 12 million adults, shows that while people who lived with children were at no higher risk of contracting COVID-19, for those under 65, they were 25% less likely to die. For those over 65, there was no difference in outcomes.

Several recent studies have shown that when in-school transmission does occur, teachers (who have been masked) are central to those transmission networks. A recent CDC report investigated nine clusters across six school districts in Cobb County, Georgia. Of those nine clusters, eight involved a teacher. In the one cluster where a student was the sole index case, the student only infected other students. Notably all of the children infected were masked all day, except during lunch, which was taken in the classroom.

A recent study in the German state of Rhineland-Palatinate, a state with a population of 4.1 million, 1,492 schools and 406,000 school age children, concluded that transmission from teachers was four times higher than from students. Moreover, when a teacher was infected, they were 14 times more likely to transmit the disease to another teacher, rather than a student. The study also concluded that a teacher who contracted COVID-19 was 2.5 times more likely to transmit the disease to a child, than a child to a teacher.

CHILDREN ARE AT EXTREMELY LOW RISK

Based on the CDC’s estimated number of infections by age through December 26, 2020, COVID-19 poses a significantly lower risk to school age children than the flu. For children age 5 through 17, data shows that COVID-19 is 1/4 as deadly as the common flu.

CDC data also shows that on average, people dying of COVID-19 had multiple co-morbidities (3.8). In New York City, data shows that of all deaths, only 0.5% of them occurred in people who did not have a comorbidity. Antibody studies of those infected established that 1.6 million people in New York City had been infected. Even among the older age groups, the risk of death for healthy people from COVID is similar to that of dying in childbirth – 3 out of 10,000 – and several times higher than their risk of dying by accidental death. 

On May 19, 2021, New York magazine published a story highlighting new studies showing that the pediatric hospitalization numbers for COVID have likely been dramatically inflated throughout the country. The first study, published in the official journal of the American Academy of Pediatrics, was conducted by Stanford researchers and examined 117 reputed COVID hospitalizations among those under 18 at a children’s hospital in Northern California. They found that just 7.7% exhibited severe illness and 12.8% critical illness. Overall, 45% were classified as “unlikely to be caused by SARSCoV2,” and it appears that most of the others weren’t suffering life-threatening illness.

The second study, published in the same journal, found in America’s fifth-largest hospital that, among patients younger than 22, 40% had “incidental infection,” only 47% were “potentially symptomatic,” and just 14% were “significantly symptomatic.” They further found that “Fifty-five percent of incidental and 47% of potentially symptomatic patients had at least one identified comorbidity, while 90% of significantly symptomatic patients had at least one.”

As Drs. Monica Gandhi and Amy Beck wrote in a commentary for Hospital Pediatrics that accompanied the two studies, “Taken together, these studies underscore the importance of clearly distinguishing between children hospitalized with SARS-CoV-2 found on universal testing versus those hospitalized for COVID-19 disease.” They further conclude that the data also “greatly overestimate the true burden of COVID-19 disease in children.”

In addition to the revelations that pediatric hospitalizations have been wrongly attributed to COVID, the CDC has stated based on an analysis of death certificates that 35.2% of all reputed pediatric COVID deaths “could not be plausibly categorized as either a chain-of-event or significant contributing condition.”

MASKS DON’T STOP THE SPREAD OF COVID IN SCHOOLS

On June 8, 2021, the Boone Circuit Court in the Commonwealth of Kentucky issued a judgment order following extensive litigation and an evidentiary hearing held on May 17, 2021 in a lawsuit against the Governor of Kentucky, challenging his executive orders pertaining to COVID, including his mask mandate. On June 15, 2021, that order was expanded to apply statewide in Kentucky.

At the May 17 evidentiary hearing in that case, Stephen E. Petty, P.E., CIH, testified as an expert witness on the issue of the validity of mask mandates as a measure to prevent the spread of COVID-19. The Court noted that Mr. Petty has previously served as an expert witness in approximately 400 cases related to toxic or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. The Court also noted that he served as an expert in the Monsanto “Roundup” cases, and for those in the Dupont C8 litigation, and that in connection with his service as an expert, he was deposed nearly 100 times and has provided court testimony in approximately 20 trials. The Court found that Mr. Petty holds nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health Agency. 

The Court made the following findings regarding Mr. Petty’s testimony:

Mr. Petty explained that the field of his expertise is “to anticipate and recognize and control things that could hurt people, everything from making them sick to killing them.” He testified that, in this context, he has analyzed the use of masks and social distancing in connection with Covid-19. He testified that both the six-foot-distancing rule, and mask mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In addition, masks are not respirators and lack the limited protections that respirators can provide.

The N-95 respirator, which he states is in the bottom class of what may be classified as a respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further explained that an N-95 will not even filter above .3 microns if it is not used in accordance with industry standards. Among the requirements, respirators must be properly fitted to seal along the face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are often utilized as surgical masks, are “not intended to keep infectious disease from either the surgeon or from the patient infecting each other” but only to catch the “big droplets” from the surgeon’s mouth.” 

According to Mr. Petty, masks have no standards, are not respirators, and do not even qualify as protective equipment. In contrast, respirators have standards, including rules that state respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent saturation. In addition, standards for respirators also require users to obtain a medical clearance because the breathing restriction can impair lung function or cause other problems for persons having such limitations. Putting those persons in a respirator can harm their well-being. 

Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to “big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr. Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it becomes completely ineffective if 3% or more of the contact area with the face is not sealed. 

Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are commonly worn by persons with facial hair, and may be contaminated due to repetitive use and the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever, either to the wearer or others. 

He explained that the big droplets fall to the ground right away, the smaller droplets will float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty testified that the duration of time that particles remain suspended can be determined using “Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a six-foot rule have any meaning?” 

Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear masks. However, he called this “at best dishonest.” As an example on this, he pointed to CDC guidance documents where, on page 1, it recommends wearing a mask; but then on page 6, admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne particles.” According to Mr. Petty, those agencies have smart individuals who know better. Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny aerosols. And on this, he states that he insisted that fact early on. He also points to a more recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that could be aerosols . . . .” 

Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University out of Palo Alto. According to that study, “both the medical and non-medical face masks are ineffective to block human-to-human transmission of viral and infectious diseases, such as SARS, CoV-2 and COVID-19.” The Court finds the opinions expressed by Mr. Petty firmly established in logic. The inescapable conclusion from his testimony is that ordering masks to stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot- distancing requirements fare no better. 

While the American CDC was being “dishonest,” the European CDC recently posted an update to their masking guidance, advising that, “Evidence for the effectiveness of non-medical face masks, face shields/visors and respirators in the community is scarce and of very low certainty.”

In May of 2020, the CDC published a report on non-pharmaceutical measures for protecting against pandemic influenza in non-healthcare settings. After reviewing all of the studies worldwide, the CDC found “no reduction in viral transmission with the use of face masks”:

Although mechanistic studies support the potential effect of hand hygiene or face masks, evidence from 14 randomized controlled trials of these measures did not support a substantial effect on transmission of laboratory-confirmed influenza. We similarly found limited evidence on the effectiveness of improved hygiene and environmental cleaning.

In mid-2020, one of the world’s foremost influenza researchers, Dr. Donald Milton was quoted in the New York Times observing that, “We’ve been studying the flu for 102 years and still don’t know for sure how it’s transmitted.” In the study itself, Dr. Milton elaborates:

Influenza virus is a pathogen of global health significance, but human-to-human transmission remains poorly understood. In particular, the relative importance of the different modes of transmission (direct and indirect contact, large droplet, and aerosols (airborne droplet nuclei)) remains uncertain during symptomatic and asymptomatic infection.

Infection control guidance for pandemic and seasonal influenza assumes that most transmission occurs during symptomatic infection, predominantly via large droplet spread at short range. Thus, social distancing measures are often proposed to mitigate the spread and impact of a pandemic; and hand washing and respiratory etiquette are promoted to reduce transmission. Evidence to support the possibility of aerosol transmission has grown over recent years and leads to controversies about when and if filtering facepiece respirators (and other precautions designed to prevent inhalation of aerosols) versus surgical masks (mainly capable of reducing large droplets and some fine particles) should be used to protect healthcare workers, particularly during a severe pandemic.

While the CDC was clinging to an outdated understanding of flu transmission, a large number of scientists proactively forced their hand, along with the World Health Organization (“WHO”), to finally acknowledge that aerosol transmission of COVID was a major, and perhaps the dominant, method of transmission for the disease. 

In another study by Dr. Donald Milton, he discusses the inefficacy of masks in containing aerosol virus particles:

Together the studies show that surgical masks can limit the emission of large droplet spray and aerosol droplets larger than 5 µm. However, surgical masks are not as efficient at preventing release of very small particles. It is well known that surgical masks are not effective for preventing exposure to fine particles when worn as personal protection. We had hypothesized that when used as source control, exhaled droplets might be large enough prior to evaporation to be effectively captured, primarily through impaction. This appears to be true for virus carried in coarse particles. But the majority of virus in the exhaled aerosol appear to be in the fine fraction that is not well contained.

Dr. Milton wrote that, if aerosol droplets are smaller than 5 microns, “It is well known that surgical masks are not effective for preventing exposure to fine particles when worn as personal protection,” and that “the majority of virus in the exhaled aerosol appear to be in the fine fraction that is not well-contained.”

A 2013 study showed that 87% of infectious aerosols were less than 4.7 microns, which is smaller than what is effectively trapped by a surgical mask, and suggested re-evaluation of then-existing WHO guidelines on the efficacy of surgical masks in the prevention of virus transmission in healthcare settings. That study didn’t further define the size of virus particulates below the threshold of 4.7 microns – though other studies have.

A 2008 study found that during normal breathing, significant amounts of virus was shed, and that “over 87% of the exhaled particles were under 1 [micron] and less than 0.1% were larger than 5 [micron].” The authors estimated that the majority of the aerosols were less than 0.5 micron, which is ten times less than the 5 micron level that Dr. Milton notes as being the threshold below which surgical masks are no longer effective.

A 2018 study further demonstrated that the majority of infectious virus was found in fine aerosols, and that the primary source of generation for those aerosols was simply breathing – not speaking – and showed “that sneezing is rare and not important for – and that coughing is not required for – influenza virus aerosolization.”

A June 2020 study from two Wuhan hospitals showed that COVID virus particles were of similar size to traditional influenza particles. The study reported that COVID virus was found in aerosols between 0.2 and 0.5 microns.

The CDC relied on a study from the American Chemical Society for their double-masking recommendation, as well as their multi-layer homemade mask recommendation. However, the study data shows that with 1% gaps (which are much smaller than what is observed in real life), the filtration of N-95 masks drops between 12% and 34%, depending on particle size; surgical masks drops down to 44-50%, and the homemade cotton/silk masks drops to around 20%. The argument that “even a little protection is good,” is flawed. Research suggests that it’s the smallest particles, carrying the least amount of virus which are the most infectious and cause the most severe disease as they deposit deep within the lungs, and that they can be infectious at very low doses – as little as 300 to 3000 viral copies. Moreover, normal breathing produces roughly 38,000 viral copies within the fine aerosols in a half hour.

A study performed  in the 1980s, to assess the effectiveness of surgical masks at containing particles during surgery, found that when placing “tracer” particles on the inside of the mask, in every single case, these particles were subsequently found in the patient’s wound. These “tracer” particles were much larger than COVID particles just by virtue of the fact that they were observed through a microscope. The aerosols that appear to carry COVID and flu are substantially smaller than what can be observed through a microscope. 

Emerging empirical evidence establishes that mask mandates have not worked. Rational Ground performed a county-by-county analysis of case growth for those counties with mask mandates, and those without, between 5/15 and 12/15. The results are shown below. Nationally, cases were roughly 40% higher, 27 cases/day/100,000, in those counties with mask mandates, vs. 17 cases/day/100,000 in those counties without. 

After Texas lifted their mask mandate on March 3, 2021, new COVID cases dropped by 49% through April 7. Meanwhile in Michigan, New York and New Jersey, cases rose by 60% and were 333% higher than Texas. 

In West Virginia, there wasn’t a single day after the issuance of the mask mandate where cases were lower than they were before it. In fact, cases rose 1789% afterwards. West Virginia’s hospitalizations for COVID coincidentally happened to follow the same natural curve as neighboring states with a similar climate (IL, IN, KS, MO and OH).

The prestigious Annals of Internal Medicine published a Danish mask study which examined the difference in SARS-CoV-2 infection rates among people who did not receive a recommendation to wear a mask, compared to people who did receive a recommendation to wear a mask. The results of this massive real-life controlled experiment show that the group that received a recommendation to wear surgical masks in April experienced a 0.38% lower infection rate than the control group that did not wear masks. That is about one-third of one percent, which is so low that it could just be statistically random variances that demonstrate no definitive efficacy even to that infinitesimal level. There was a total of roughly 3,000 people in each group of the study, which would make this the largest study ever conducted on the efficacy of a mask recommendation. “The recommendation to wear surgical masks to supplement other public health measures did not reduce the SARS-CoV-2 infection rate among wearers by more than 50% in a community with modest infection rates, some degree of social distancing, and uncommon general mask use,” concluded the authors. “The data were compatible with lesser degrees of self-protection.”

In accordance with this, the past 10 randomized controlled trials identified by the CDC on the spread of influenza showed zero efficacy of mask-wearing against the flu.

In a July 2020 CDC study, 85% of those convalescent COVID patients surveyed reported that they wore masks always or most of the time during the lead-up to their infection period. More than 70% of those outpatient individuals who tested positive reported always wearing masks. Just 3.9% reported never wearing a mask.

The CDC survey illustrates the reality of COVID transmission around the world, which for the most part took place after strict mask mandates had already been in place.

Before the masking issue became political, Dr. Anthony Fauci scoffed at the notion that wearing masks would serve any use in the COVID pandemic. “There’s no reason to be walking around with a mask,” he told “60 Minutes” on March 8, 2020. “The masks sold at drugstores aren’t even good enough to truly protect anyone,” Fauci told USA TODAY’s editorial board on Feb. 17. “If you look at the masks that you buy in a drug store, the leakage around that doesn’t do much to protect you. … Now, in the United States, there is absolutely no reason to wear a mask.” Several weeks later, Surgeon General Jerome Adams, appearing on “Fox & Friends” on March 31, 2020, stated that studies showed that medical students who wear masks touch their faces 23 times more often, and thus one has to assume that “wearing a mask improperly can actually increase your risk of getting disease.”

FORCED MASKING HARMS CHILDREN

The states with the strictest mask mandates also happen to be the states with the fewest children learning in-person. The myth being perpetuated by the CDC that they know how to control COVID, has robbed roughly half of the children in the U.S of more than a year’s education.

The first results of a German study of over 26,000 children and adolescents show 68% of parents reported impairments in their children as a result of forced mask-wearing, including the following side effects: irritability (60%), headache (53%), difficulty concentrating (50%), decreased happiness (49%), malaise (42%), impaired learning (38%), and fatigue (37%). The data reported 49.3% less happy children and 44% children who do not want to go to school anymore. 25.3% of the children stated they have developed new anxieties. In each case, children in the age category 7-12 years were affected most. In additional, there is the “fear of stigmatization both by wearing and not wearing a mask in the social environment.” Many parents also reported nightmares and anxiety disorders that relate to masked people whose facial expressions and identity are not recognizable to the children.

A 2010 paper from Harvard University observed that damage can be caused by exposing children to endless fear and anxiety: “Ensuring that young children have safe, secure environments in which to grow, learn, and develop healthy brains and bodies is not only good for the children themselves but also builds a strong foundation for a thriving, prosperous society,” wrote the National Scientific Council on the Developing Child for Harvard University. “Science shows that early exposure to circumstances that produce persistent fear and chronic anxiety can have lifelong consequences by disrupting the developing architecture of the brain.”

Data released on June 11, 2021 by the CDC shows that suicide attempts by children 12 to 17 years old spiked substantially during the pandemic, including a rise of 50.6% for girls from February 2021 through March of 2021. The study theorizes that the stresses of the COVID-19 pandemic may have been toxic to the mental health of young people. They noted that, “Young persons might represent a group at high risk because they might have been particularly affected by mitigation measures, such as physical distancing (including a lack of connectedness to schools, teachers, and peers)….”

Dr. Mary Rutherford testified as an expert witness in the area of public health medicine at the evidentiary hearing in Boone Circuit Court. Dr. Rutherford obtained her master’s degree in public health at John Hopkins University, with a focus on epidemiology. She worked for Dr. Fauci for a total of nine years, the first six at National Institute of Allergy and Infectious Diseases, and the latter three at the National Institute of Health. She co-authored an international, peer reviewed article titled, “Multi-treatment of Early Ambulatory High Risk SARS/COV-2 Infection.” She testified that she has treated nearly 100 patients for COVID-19 in her private practice. She is board certified in addiction medicine, and is the past Chair and current board member of the American Academy of Family Physicians. 

Dr. Rutherford testified that studies analyzing the effect of government mandates on COVID infection rates, hospitalizations and deaths, formed the basis for her opinion that “government actions such as border closures, full lockdowns and a high rate of COVID-19 testing, were not associated with statistically significant reductions in the number of critical cases or overall mortality.” She also testified that “the strigency of measures settled to fight pandemia, including lockdown, did not appear to be linked with the death rate.” Moreover, Dr. Rutherford opined that government interventions actually lead to more deaths overall, and that instead, the focus should have been only on those determined to be high risk, such as those over 70 years of age. Dr. Rutherford testified that, in her opinion, “the government’s actions have inflicted more harm and death.” 

Researchers in Germany conducted a blinded randomized controlled trial of 45 children wearing masks and measured the baseline carbon dioxide levels during inhalation and exhalation behind various masks as compared to the levels of unmasked children. The results are concerning:

We measured means (SDs) between 13 120 (384) and 13 910 (374) ppm of carbon dioxide in inhaled air under surgical and filtering facepiece 2 (FFP2) masks, which is higher than what is already deemed unacceptable by the German Federal Environmental Office by a factor of 6. This was a value reached after 3 minutes of measurement. Children under normal conditions in schools wear such masks for a mean of 270 (interquartile range, 120-390) minutes. The Figure shows that the value of the child with the lowest carbon dioxide level was 3-fold greater than the limit of 0.2 % by volume. The youngest children had the highest values, with one 7-year-old child’s carbon dioxide level measured at 25 000 ppm. (Emphasis added.)

The German researchers concluded that there is a concern of forced mask wearing causing hypercapnia, and as such, children should not be forced to wear masks.

Common sense dictates that children forcibly masked in school settings engage in substantial mask re-usage. In some circumstances, such as re-using already-worn masks, mask usage can cause more harm than good. A study published in the Physics of Fluids scientific journal demonstrated that wearing a used mask is potentially riskier than wearing no mask at all. Researchers found that wearing a mask “significantly slows down” airflow and alters “particle motions near the face,” making people using already-worn masks more vulnerable to inhaling aerosols in the nasal region.

A group of parents contacted a lab because they were concerned about the potential of contaminants on masks that their children were forced to wear all day. They sent their kids’ face masks to the lab for analysis. The press release issued on June 16, 2021 announced that the following “11 alarmingly dangerous pathogens” were found on the masks:

  • • Streptococcus pneumoniae (pneumonia) 
  • • Mycobacterium tuberculosis (tuberculosis) 
  • • Neisseria meningitidis (meningitis, sepsis) 
  • • Acanthamoeba polyphaga (keratitis and granulomatous amebic encephalitis) 
  • • Acinetobacter baumanni (pneumonia, blood stream infections, meningitis, UTIs— resistant to antibiotics) 
  • • Escherichia coli (food poisoning)
  • • Borrelia burgdorferi (causes Lyme disease)
  • • Corynebacterium diphtheriae (diphtheria)
  • • Legionella pneumophila (Legionnaires’ disease) 
  • • Staphylococcus pyogenes serotype M3 (severe infections—high morbidity rates) 
  • • Staphylococcus aureus (meningitis, sepsis)

Half of the masks were contaminated with one or more strains of pneumonia-causing bacteria. One-third were contaminated with one or more strains of meningitis-causing bacteria. One-third were contaminated with dangerous, antibiotic-resistant bacterial pathogens. In addition, less dangerous pathogens were identified, including pathogens that can cause fever, ulcers, acne, yeast infections, strep throat, periodontal disease, Rocky Mountain Spotted Fever, and more. 

At this point, what difference does it make?

In the time of C.S. Lewis, fear of nuclear annihilation was the fear of the day. Rather than let the fear destroy our lives, Lewis argued that, when nuclear annihilation comes, if it does, let it find us doing useful things, and leading productive lives:

“In one way we think a great deal too much of the atomic bomb. ‘How are we to live in an atomic age?’ I am tempted to reply: ‘Why, as you would have lived in the sixteenth century when the plague visited London almost every year, or as you would have lived in a Viking age when raiders from Scandinavia might land and cut your throat any night; or indeed, as you are already living in an age of cancer, an age of syphilis, an age of paralysis, an age of air raids, an age of railway accidents, an age of motor accidents.’

“In other words, do not let us begin by exaggerating the novelty of our situation. Believe me, dear sir or madam, you and all whom you love were already sentenced to death before the atomic bomb was invented: and quite a high percentage of us were going to die in unpleasant ways. We had, indeed, one very great advantage over our ancestors — anesthetics; but we have that still. It is perfectly ridiculous to go about whimpering and drawing long faces because the scientists have added one more chance of painful and premature death to a world which already bristled with such chances and in which death itself was not a chance at all, but a certainty.

“This is the first point to be made: and the first action to be taken is to pull ourselves together. If we are all going to be destroyed by an atomic bomb, let that bomb when it comes find us doing sensible and human things — praying, working, teaching, reading, listening to music, bathing the children, playing tennis, chatting to our friends over a pint and a game of darts — not huddled together like frightened sheep and thinking about bombs. 

They may break our bodies (a microbe can do that) but they need not dominate our minds.” – C.S. Lewis

Federal Lawsuit Filed in the Creepy Cops Caught on Video Case

The lawsuit was filed today on behalf of Dustin Elswick, against Putnam County, West Virginia, along with four police officers involved in the infamous “Special Enforcement Unit.” These are the cops who were caught on hidden camera searching the inside of Dustin’s home. Although they cut the wire on an outside surveillance camera, they were apparently unaware of the cameras inside the home.

This is a federal “Section 1983” lawsuit alleging the violation of federal constitutional rights; namely, the Fourth Amendment right to be free from unreasonable search and seizure. A warrantless search of your home is automatically unconstitutional in the absence of one of two exceptions: consent, or exigent circumstances (emergency), neither of which apply here. Two prior federal lawsuits have already been filed against the SEU thus far for similar allegations in the Johnson case, as well as the Dillon case. The remedy is an award of money damages, along with reasonable attorney fees and expenses.

There was an internal investigation, as the news reported, but we never received information about the outcome. That sheriff has since been replaced.

Here’s the Complaint:

Here’s the original video:

Here’s the update video:

Report: Family Court Judge Made Improper and False Allegations

We recently obtained a report from the West Virginia Office of Disciplinary Counsel which found that a West Virginia Family Court Judge made improper and false allegations about the judicial disciplinary prosecutors who have been prosecuting a fellow Family Court Judge, Louise Goldston. The report concluded, in part:

It is shocking that a long-standing member of the judiciary bestowed with the honor of being part of the system designed to protect and preserve the integrity of the judicial system would make such baseless accusations designed to solely to impugn the integrity of two members of the West Virginia State Bar. It does not appear that FCJ (Family Court Judge) Stotler conducted any factual investigation into the allegations regarding JDC (Judicial Disciplinary Counsel) before regurgitating the untimely, unsupported allegations made by FCJ (Family Court Judge) Goldston and sending an ex parte communication, written on his official court letterhead, to the Supreme Court. Additionally, the Judicial Branch of government has the exclusive authority to regulate the practice of law in the State of West Virginia, but FCJ Stotler’s letter was also sent to members of the Legislature….

The law is not an arena where we vilify civility, curse through preparation, and denigrate skilled, zealous advocacy.

The ODC investigation commenced after a sitting Family Court Judge, Judge Glen R. Stotler, of the 23rd Family Court Circuit (Hampshire, Mineral and Morgan Counties), also a member of the Judicial Hearing Board that heard the Goldston case, sent a March 25, 2021 letter (on his official court letterhead) to the Chief Justice of the WV Supreme Court, making numerous allegations against the judicial prosecutors in regards to their handling of the Goldston case, and ultimately requesting an investigation into their actions, as well as their termination, “or at the least a serious reprimand.” Here’s a partial shot of the three-page letter:

Not only did he send the letter to the Supreme Court, but he sent it to the Senate Judiciary Committee Chairman, the House Judiciary Committee Chairman, the Court’s administrative office, as well as to the President of the Family Court Judicial Association, Deanna R. Rock, another sitting Family Court Judge.

Here’s the ODC investigation report in its entirety, which details the entire ordeal up to that point, including a discussion of some of the sworn statements taken of the judges involved. It also gives a rare behind-the-scenes look at the judicial disciplinary prosecution procedures, which are usually confidential:

Shockingly, on the same day as this ODC report was issued – May 13, 2021 – the Family Court Judicial Association apparently helped Judge Stotler double-down, by essentially turning his letter into a “Resolution” adopted by the entire Family Court Judicial Association, again making allegations against the JDC and calling for their termination. It’s my understanding that this “Resolution” was effectively sent back by the Supreme Court Clerk’s office as inappropriate. They later retained a lawyer and filed an amicus brief in the Goldston case, which is set for oral arguments next month. Here’s the Resolution:

Perhaps they should have waited maybe one more day to issue their Resolution, since unbeknownst to them, apparently, the Office of Disciplinary Counsel on that same day issued this lengthy report revealing Judge Stotler’s allegations as false, outrageous and highly inappropriate. The ODC report documented that the judicial disciplinary prosecutors were falsely accused, and that perhaps the accuser(s) might want to examine their own misconduct:

The former chair of the JIC (Judicial Investigation Commission) stated he could speak to the abilities and character of Respondent Tarr and Respondent Lanham. He stated as attorneys representing the JIC they have exceedingly difficult jobs as they must not only know the judicial canons but act fearlessly in doing those things as required by their jobs as JDC. The former Chair of the JIC stated that FCJ Stotler’s March 2021 letter demonstrates both an ignorance of the system and a willingness to respond to adverse decisions in an irresponsible manner. The former Chair further opined that the reckless letter required FCJ Stotler’s removal from further service on the Judicial Hearing Board.

Now, an entire body of Family Court Judges have made the same false allegations and requests. Numerous sitting Family Court Judges out there have apparently now engaged in what is described in the report as acting in an ignorant and irresponsible manner, and which raises a serious question as to their fitness to serve in a judicial capacity. But who are they, specifically? They’re hiding behind their supposedly private “Association.” The ODC report, if you read through it, mentions the involvement of then-President of the Family Court Judicial Association, Deanna R. Rock. In fact, it mentions that she apparently assisted Judge Stotler in preparing the letter with the false allegations.

Judge Rock, along with another Family Court Judge, also apparently assisted Judge Goldston with her brief, which included the false statements about the judicial prosecutors:

Did it ever seem like a good idea to get involved in a disciplinary prosecution of a fellow judge and attempt to have the prosecutors fired? What are the potential remedies? Judicial disciplinary complaints? Impeachment proceedings? If Judge Stotler isn’t fit to preside over a judicial disciplinary hearing, then is he, or others who joined him, fit to preside over cases involving people’s children and finances? These questions need to be asked, and there may be some news on that front in the near future.

We have several pending FOIA requests pertaining to this, and hopefully will have more information soon. Meanwhile, the federal civil rights lawsuit against Judge Goldston, and others, remains pending. Read more about the background of this case here:

Another Federal Civil Rights Lawsuit Filed against the Putnam County “Special Enforcement Unit”

This week we filed a second federal civil rights lawsuit against the Putnam County, West Virginia so-called “Special Enforcement Unit.” This is the same “SEU” guys who were featured in the Dustin Elswick video. This case features one of the victims who came forward after the Elswick video became public.

It involves a young man who was visiting a friend’s house, on his way to go fishing. The SEU just happened to raid his friend’s home, without a warrant, keeping my client in handcuffs for an extended period of time while they searched the house. Apparently they found a small amount of pot in the friend’s house and a couple hundred dollars in cash, which they took. No paperwork documenting the event was ever provided in response to our FOIA requests. There were no criminal charges.

We’re alleging multiple civil rights violations, including unreasonable search and seizure and excessive force, in violation of the Fourth Amendment. Here’s the Complaint, in full.

Does the First Amendment Only Apply to Media? Is There a Right to Record?

Do you have to be a journalist to have First Amendment protections to film in public? Is there a right to record police or other government officials in public? Let me tell you what the federal courts have said…..

To record what there is for the eye to see, or the ear to hear, corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public. See PG Publ’g. Co. v. Aichele, 705 F.3d 91, 99 (3d Cir. 2013); Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (quoting Fields v. City of Phila., 862 F.3d 353, 359 (3rd Cir. 2017)).

Under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas. Fields v. City of Phila., 862 F.3d 353, 360 (3rd Cir. 2017) (“The First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material.” (citation omitted)); See also ACLU v. Alvarez, 679 F.3d 583, 599–600 (7th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 651, 184 L.Ed.2d 459 (2012) (holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cell phone); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“[T]he First Amendment protects the act of making film, as there is no fixed First Amendment line between the act of creating speech and the speech itself.” (quotation omitted); W. Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017) (agreeing with several sister circuits that recording the conduct of officials in general is protected First Amendment speech); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir.2011) (holding there is an “unambiguous[ ]” constitutionally protected right to videotape police carrying out their duties in public); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (finding plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest”). 

Furthermore, there can be no doubt that the public has the right to record police officers and government officials from the vantage point of standing on their own private property – and indeed, standing in their own front yard, or within their home.

Can the recordings then be seized by police?

Recently, the Fourth Circuit observed in the context of a claim of seizure of cell phone video footage by law enforcement, that we live “[i]n an era in which cell phones are increasingly used to capture much of what happens in daily life” and that such recordings are protected from seizure by law enforcement under the Fourth Amendment. Hupp v. State Trooper Seth Cook, 931 F.3d 307, 329 (4th Cir. 2019).

But, keep in mind, they could still be subject to seizure without a warrant under the exigent circumstances doctrine…..

Response Brief Submitted in the Enlivant Vaccine Mandate Case

Today we filed our response brief to Enlivant’s motion to dismiss in our wrongful termination lawsuit in McCutcheon v. Enlivant, currently pending in the Southern District of West Virginia. The lawsuit challenges the right of private employers in West Virginia to discharge employees for not taking the EUA vaccine. Here’s the filing.

Seeking to temper the otherwise harsh results that would obtain where a discharge from employment was impelled by the employer’s desire to contravene public policy, an exception to the common law doctrine of at-will employment was established. See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015); See also Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459, 468 (1955) (recognizing that at- will employees serve at will and pleasure of their employers and may be discharged at any time, with or without cause). That exception, created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), provides: 

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.

Id. at 116, 246 S.E.2d at 271, syllabus; Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015). The Court has identified the areas from which public policy may be gleaned:

‘The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government—with us—is factually established.’ 

“To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2, Birthisel, 188 W.Va. at 372, 424 S.E.2d at 607. “Substantial public policy” has been defined by the Supreme Court as “not just recognizable as such but be so widely regarded as to be evident to employers and employees alike.” Id. at 745, 559 S.E.2d at 718. The Court recognized in Syllabus Point 3 of Birthisel that ““[i]nherent in the term ‘substantial public policy’ is the concept that the policy will provide specific guidance to a reasonable person.” 188 W.Va. at 372, 424 S.E.2d at 607. The Court has looked to whether regulations or licensing statutes contained specific provisions that addressed the allegedly improper conduct by the employer. Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 170 (W. Va. 2015). 

Here is their memorandum arguing for dismissal:

Discussion from last night: