When law enforcement and/or code enforcement come into your business to enforce unconstitutional covid restrictions, or even duly enacted criminal statutes, can you kick them out? Do they need a warrant?
One of the issues I’ll be litigating against the West Virginia Governor tomorrow morning in federal court, is whether his mask mandate and threats of arrest and business closure are unconstitutional because they order and encourage violation of the Fourth Amendment.
The Supreme Court long has recognized that the Fourth Amendment’s prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. See v. City of Seattle, 387 U.S. 541, 543, 546, 87 S.Ct. 1737, 1739 1741, 18 L.Ed.2d 943 (1967). An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable, see Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). This expectation exists not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative inspections designed to enforce regulatory statutes. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-313, 98 S.Ct. 1816, 1820-1821, 56 L.Ed.2d 305 (1978).
There may be some exceptions for heavily regulated business, such as coal mines. In Lesueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261 (4th Cir. 2012), the Fourth Circuit held that public officials may conduct warrantless searches of coal mines in Virginia, pursuant to the authorization to do so in Virginia’s Mineral Mine Safety Act, Va. Code Ann. 45.1-161.292:54(B), only because mining is a “heavily regulated industry” and because “certain conditions are met.” These conditions, set forth in the Supreme Court case of New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636 (1987), require that such an inspection program “provide a constitutionally adequate substitute for a warrant.” Id. at 702. The Fourth Circuit applied the Supreme Court’s holding in New York v. Burger, requiring a statutory program in place to be subjected to analysis. See generally, New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). This could, and probably does, create an issue area around restaurant regulation. We shall see…..
Here is the Governor’s response to our Emergency Motion for Temporary Restraining Order and Preliminary Injunction, which is set for hearing in federal court on Monday morning. It was just filed last night, and I’m working on filing a reply, which is due by this afternoon.
You’ll notice that they argue that the Governor’s words are meaningless – that only his actual written executive orders should be reviewed, according to his lawyers. Throughout the response they mention that the Governor is utilizing some vague concept of executive emergency power. However, there is no such thing. They essentially argue that there is nothing the federal judiciary can do to stop him. We’ll see……
Today the West Virginia Governor issued yet another Executive Order – E.O. 77-20, which has “amended” the existing “mask mandate” issued by him in July. He’s now issued hundreds of pages of executive orders since first declaring a state of emergency back in March. He now mandates that everyone wear a mask in “all public indoor places,” presumably referring to any structure inhabited by “the public,” as it now seeks to force property owners and small businesses to enforce his unconstitutional edicts, and will punish them for not doing-so.
Even worse than the order itself, are the comments the Governor made when informing the peasants about his new law.
“Beginning at midnight tonight, I will issue a mandatory requirement to wear a face covering indoors in all public buildings at all times. This is not just when social distancing cannot be maintained, this is mandatory wearing your face covering in all buildings, at all times, other than your home,” Justice said.
So, while the order itself uses weaker and more ambiguous language, the Governor’s direct threats to the public said “all public buildings.” The actual order says “when individuals are able to physically isolate in a physically separate office or other space when no others are present….” As usual, the tyrant places responsibility for enforcement of his edicts on the already-suffering small businesses, as well as the employees. Although the order didn’t mention it, he says the next step is “closure” of the business for non-enforcement.
He also (apparently waiving attorney-client privilege) says that his lawyers said that if the peasants don’t follow his order, business owners are to call the police. Moreover, if someone isn’t following his order, “they’re obstructing justice,” presumably the misdemeanor criminal charge of obstructing an officer. He also threatened that business owners/operators who don’t follow and enforce his order will also be charged with misdemeanor criminal obstruction (which is punishable by up to a year in jail).
The governor also warned that if business owners don’t enforce his rules, “the next step will have to be closure.”
Justice also signaled law enforcement, citing conversations with legal counsel.
If patrons don’t follow the order, Justice told business owners to call the police. And if someone isn’t following the mask mandate, they’re obstructing justice, Justice said. The governor also said an obstruction of justice charge would apply to business owners/operators that are flaunting the rule.
By the way, there is no such thing as “obstruction of Justice” in West Virginia. I’m not convinced he wasn’t referring to himself in the third person when he said that, but in any event, “obstruction of an officer” is the crime on the books in West Virginia, and it’s a misdemeanor which carries a maximum sentence of one year in jail. Fortunately, it’s not as vague as the federal crime of “obstruction of justice,” and actually requires a court to look at what the officer who was allegedly obstructed was investigating. Generally, if it is a felony crime under investigation, you “obstruct” an officer by lying to him or failing to identify yourself, under some circumstances. If it’s a misdemeanor, you are allowed to lie, or fail to identify yourself, generally. You cannot commit “obstruction” in West Virginia by doing something you are legally allowed to do. Read all about it in the controlling West Virginia case on “obstruction” in State v. Carney. In any event, only the legislature could amend the obstruction statute.
Meanwhile, the Governor has chosen not to call a special session of the legislature, and instead, has continued to rule by executive fiat, which is unconstitutional under the West Virginia Constitution. This cannot be allowed to continue. Numerous friends and clients of mine have resolved to file suit as soon as possible. We will file a challenge in West Virginia State Courts, as well as possibly federal court. We previously filed a challenge before the State Supreme Court, but were denied the relief we requested – probably on procedural grounds. We will begin the suit in the lower Circuit Court so as to avoid any technical procedural defenses. There must be a ruling on this constitutional crisis, in both the state and federal courts.
Here’s the original lawsuit we filed, if you want to read in detail my explanation on why these executive orders are in blatant violation of our West Virginia Constitution. We do already have one federal challenge pending on behalf of the Bridge Cafe & Bistro Restaurant in Putnam County, West Virginia. That case is still pending, and you can read the federal lawsuit in full at the link, as well as the explanation of why the E.O.’s are unconstitutional on federal grounds.
So far the petitioners will be the following State legislators: S. Marshall Wilson, Michael Azinger, Jim Butler, Thomas M. Bibby, and Mark Dean. In addition, we will include a representative sample of patriotic West Virginia owned small businesses, such as restaurants, gyms, and barber shops/hair salons. We may also include churches and private schools. There will be other private plaintiffs as well, including Tabitha Simmons who has thankfully started a gofundme fundraiser to cover legal expenses. I’ve already spoken with one other experienced WV lawyer who has agreed to assist on the case, and would like to bring in more (possibly Civil Rights lawyers from other states, if we can raise the money). So if you can help Tabitha raise the funds needed, please do. 100% of the funds will go towards this litigation against the tyrannical actions of the Governor. Here is the link:
Additionally, I will be on the Tom Roton Morning Show to discuss this new tyranny, first thing Monday morning – at around 8:00 a.m., I believe. We may also be planning a protest at the State Capitol, or possibly elsewhere. So please stay tuned……
ETA 11/16/20: We are putting together a legal team to file suit as soon as possible. For those of you small business owners concerned about the Governor’s threats to close your business and have you arrested, etc.., we believe this may implicate federal 4th Amendment protections. The Governor has threatened criminal arrest and prosecution for violations of his “mask mandate.” You are within your rights to ask for a warrant and to refuse consent to any government official entering your home or business pursuant to the Governor’s executive order. That won’t stop them, necessarily. But they will make themselves defendants in lawsuits afterwards. We believe this is applicable to county health officials as well. Video footage may be crucial.
Live Video on the Fight: Monday evening, 5:30 pm, Eastern:
ETA 11/17: BREAKING: Yesterday we filed an emergency motion for a temporary restraining order and preliminary injunction in the Bridge Cafe & Bistro case, challenging the constitutionality of the Governor’s Friday statements and his new enhanced mask mandate. The Southern District of WV just now ordered the Governor to respond by 5pm this Thursday, and scheduled a hearing for November 23 at 10 am in federal court in Huntington.
The Civil Rights Lawyer’s analysis of the absolutely savage questioning of Andrew McCabe by Sen. Ted Cruz on Tuesday. McCabe is the former deputy director of the FBI, recently fired following an inspector general’s investigation. He completely embarrasses himself and the DOJ. Top men. Top men. Cruz, on the other hand, has a pretty good performance. It’s harder than it looks.
I had two separate federal civil rights lawsuits where excessive force incidents were captured on video by the exact same camera. One of them resulted in an epic legal drama, which established law still used today. In fact, this case is now discussed in two different law school text books on civil rights law. It was an amazing journey, and I spent several years in Parkersburg, West Virginia litigating these cases.
The first video was the “Sawyer” case. Here was my quote from the front page of the Charleston Gazette newspaper, back when the appellate decision was issued:
“Today the citizens of West Virginia, Maryland, Virginia North Carolina and South Carolina have more constitutional protections than they did yesterday,” John Bryan, Sawyer’s attorney, wrote in a statement.
“As a result of today’s ruling, which affirmed the District Court for the Southern District of West Virginia, law enforcement officers will be taught to treat people differently, and that if they fail to do so, there will be consequences. Because of Brian Sawyer, and the federal court system, millions of people have more freedom. And that is something I am very proud of.”
Here is the order issued by the Southern District of West Virginia, throwing out the jury verdict, and finding as a matter of law, that the officer committed excessive force. I still haven’t heard of anything like this happening in any other case:
And here is the Fourth Circuit opinion affirming the order. Despite being labeled “unpublished,” as per the court rules, this opinion has now made its way into two different law school text books on civil rights law:
Join me for Episode No. 26 of FREEDOM IS SCARY, live. Constitutional law, liberty and justice, LIVE on both Youtube and Facebook, tonight at 6PM Eastern.
Post 2020 Election legal analysis, constitutional law and civil rights law Q&A, feelz, predictions , conspiracy theories, pending cases, and also why West Virginia is a great place to be. Submit your comments, questions and observations in the live chat.
Here’s a long-overdue update on the James Dean case, out of Wayne County, West Virginia. If you’re wondering what has taken so long, the West Virginia Medical Examiner’s Office took over a year to issue the death certificate.
Election Day! Who knows what’s going to happen tonight and the next few days. Understand your state’s “Stand Your Ground” law, if it has one. And if not, understand what the self defense laws are in your state. As of January 1, 2020, 34 states have stand-your-ground laws or have expanded castle doctrine to apply beyond the home. Eight states have expanded castle doctrine to motor vehicles or the workplace.
“There is nothing so likely to produce peace as to be well prepared to meet an enemy.”
– George Washington
“The right of self-defense never ceases. It is among the most sacred, and alike necessary to nations and to individuals.”
– James Monroe, Second annual message to Congress, November 16, 1818
“Our nation was built and civilized by men and women who used guns in self-defense and in pursuit of peace. One wonders indeed, if the rising crime rate, isn’t due as much as anything to the criminal’s instinctive knowledge that the average victim no longer has means of self-protection.”
– Ronald Reagan
The criminal does not expect his prey to fight back. May he never choose you, but, if he does, surprise him.
– Jeff Cooper
“Though violence is not lawful, when it is offered in self-defense or for the defense of the defenseless, it is an act of bravery far better than cowardly submission.”
– Mahatma Gandhi
Standard castle doctrine states that a person in his or her own home does not have a duty to retreat prior to using force, including deadly force, in self-defense.
‘STAND YOUR GROUND’ LAW
A stand-your-ground law varies by state, and generally provides that people may use deadly force when they reasonably believe it to be necessary to defend against a threat of death, serious bodily harm, and other serious crimes, differing slightly between states, without there being a duty to retreat before using such deadly force in self-defense.
It is generally required that the individual who is standing his ground be in a place where he or she is lawfully present. Stand-your-ground laws generally cannot be invoked by someone who is the initial aggressor, or who is otherwise engaged in criminal activity. The exact details vary by jurisdiction.
YE OLD DUTY TO RETREAT
The alternative to stand your ground is “duty to retreat.” In states that implement a duty to retreat, even a person who is unlawfully attacked (or who is defending someone who is unlawfully attacked) may not use deadly force if it is possible to instead avoid the danger with complete safety by retreating.
Even duty-to-retreat states generally follow the “castle doctrine,” under which people have no duty to retreat when they are attacked in their homes, or (in some states) in their vehicles or workplaces.
BREAKDOWN OF STATES
Laws in at least 25 states allow that there is no duty to retreat an attacker in any place in which one is lawfully present.
(Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.)
At least ten of those states include language stating one may “stand his or her ground.” (Alabama, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Oklahoma, Pennsylvania and South Carolina.)
Pennsylvania’s law, amended in 2011, distinguishes use of deadly force outside one’s home or vehicle. It provides that in such locations one cannot use deadly force unless he has reasonable belief of imminent death or injury, and either he or she cannot retreat in safety or the attacker displays or uses a lethal weapon.
Idaho’s law, passed in 2018, expanded the definition of justifiable homicide to include not only defending one’s home against an intruder, but also defending one’s place of employment or an occupied vehicle.
Self-defense laws in at least 23 states (Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee West Virginia and Wisconsin) provide civil immunity under certain self- defense circumstances.
Statutes in at least six states (Hawaii, Missouri, Nebraska, New Jersey, North Dakota and Tennessee) assert that civil remedies are unaffected by criminal provisions of self-defense law.
*In 2018, the Ohio House and Senate voted to override the Governor’s veto of House Bill 228. The bill places the burden of disproving a self-defense claim on the prosecution.
WEST VIRGINIA, SPECIFICALLY:
West Virginia is a “stand your ground state,” and does not require a person to retreat before using force, including deadly force:
(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
W. Va. Code § 55-7-22(a)-(d).
Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances:
– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony;
– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force.
W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012).
STILL NO BOOBY TRAPS:
Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g).