Here is an order we just received a few moments ago from the West Virginia Supreme Court of Appeals granting our motion for expedited relief in the Delegate District 19 Case and ordering the Governor to show cause as to why our Writ of Mandamus should not be granted. The Court set the matter for oral arguments on February 9, 2021 at 2:00 p.m., in person. They also ordered the Governor to respond by February 1 and ordered that:
The issuance of this rule to show cause stays any and all legislative action by any person appointed by the respondent to the West Virginia House of Delegates to fill the vacancy created by the resignation of the delegate from the 19th Delegate District until final resolution of this matter.
I’ll note that February 9 is the day prior to the House of Delegates beginning their 2021 session. The oral arguments have already been placed on the Court’s docket:
The order also noted that, “Justice Wooton, considering the action moot, would not grant the motion for expedited relief or issue a rule to show cause setting the matter for oral argument.”
Here is the petition for Writ of Mandamus we filed this morning with the West Virginia Supreme Court of Appeals, asking them to force the West Virginia Governor to follow West Virginia law in choosing between the three qualified candidates presented to him by the Wayne County Republican Executive Committee to fill the vacancy in the legislature left by the resignation of Del. Derrick Evans:
Basically, the State Republican party has usurped the powers and authority of the Wayne County Republican voters, by attempting to take away their authority to choose a list of three qualified candidates to present to the Governor to fill the empty seat in the House of Delegates following the January 9 resignation of Del. Derrick Evans.
The Governor was presented with a list of three qualified candidates on January 14. He had five days to choose from the list. Instead the new Acting Chair of the West Virginia Republican Executive Committee took over the process, and created a new list – this time removing one of the three names and inserting a new name. This disenfranchises the Republican voters of the 19th Delegate District in Wayne County. The law is clear however, and places this power solely on the Wayne County Republican committee members – all duly elected by voters in their precinct.
Why is this important? Wayne County hasn’t had a Republican delegate in 100 years. Now that they’ve got one, the Governor is seeking to replace the choices of the voters with his own guy – who is an unvetted, unknown entity, since he didn’t run in the November campaign. Even more importantly, West Virginia law is clear and unambiguous that the local party (and this applies to all parties) gets to make the decision on the list of three to present to the Governor. This was put in place for a reason. To allow it to be thrown to the wayside is to allow a transfer of power from the people at the local level to some smoke-filled back room full of politicians and politicos.
Breaking news just this afternoon: the Walker case has been accepted for oral argument by the U.S. Fourth Circuit Court of Appeals, tentatively set for March 8 through March 12, 2021. This is the case with the video showing my client, Michael Walker, walking down the side of a public roadway in Putnam County, West Virginia, on his way coyote hunting. The video is at the link.
This is good news, being that we’re the ones appealing. Most appeals are decided with a written order and no oral argument. The ones with a good likelihood of success, or which are important issues of law, are generally set for oral argument.
Here is the actual filing with the SCOTUS that West Virginia signed onto, along with 15 other states, which was submitted by the Attorney General of Missouri:
This is extremely interesting – not because of the election fraud aspect of it, but because the basis of the entire petition to the Supreme Court is the principle of separation of powers with respect to the powers of state legislatures. This has been the same basis upon which we challenged the West Virginia Governor’s executive orders pursuant to his declaration of a state of emergency. The exact same issue. Additionally, West Virginia also changed election laws without going through the legislature, in which case there could be issues of validity pertaining to the West Virginia election in 2020. In other words, if the popular votes in PA, MI, GA and WI should be invalidated based upon changes in state election laws by their executive branches, instead of their legislative branches, then so should the COVID mandates in those states – as well as in West Virginia – also be unconstitutional for the same reasons.
Here are some excerpts from the arguments in this amicus brief, supporting the Texas lawsuit:
Encroachments on the authority of state Legislatures by other state actors violate the separation of powers and threaten individual liberty. The unconstitutional encroachments on the authority of state Legislatures in this case raise particularly grave concerns…..
In every other context, this Court recognizes that the Constitution’s separation-of-powers provisions are designed to preserve liberty. “It is the proud boast of our democracy that we have ‘a government of laws, and not of men.’” Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting). “The Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of a just Government.” Id. “Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.” Id. “The purpose of the separation and equilibration of powers in general . . . was not merely to assure effective government but to preserve individual freedom.” Id. at 727….
It is no accident that the Constitution allocates such authority to state Legislatures, rather than executive officers such as Secretaries of State, or judicial officers such as state Supreme Courts. The Constitutional Convention’s delegates frequently recognized that the Legislature is the branch most responsive to the People and most democratically accountable. See, e.g., Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. PA. J. CONST. L. 1, 31 (2010) (collecting ratification documents expressing that state legislatures were most likely to be in sympathy with the interests of the people); Federal Farmer, No. 12 (1788), reprinted in 2 THE FOUNDERS’ CONSTITUTION (Philip B. Kurland & Ralph Lerner eds., 1987) (arguing that electoral regulations “ought to be left to the state legislatures, they coming far nearest to the people themselves”); THE FEDERALIST NO. 57, at 350 (C. Rossiter, ed. 2003) (Madison, J.) (stating that the “House of Representatives is so constituted as to support in its members an habitual recollection of their dependence on the people”); id. (stating that the “vigilant and manly spirit that actuates the people of America” is greatest restraint on the House of Representatives).
Democratic accountability in the method of selecting the President of the United States is a powerful bulwark safeguarding individual liberty. By identifying the “Legislature thereof” in each State as the regulator of elections for federal officers, the Electors Clause of Article II, § 1 prohibits the very arrogation of power over Presidential elections by non-legislative officials that the Defendant States perpetrated in this case. By violating the Constitution’s separation of powers, these non- legislative actors undermined the liberty of all Americans, including the voters in amici States.
BRIEF OF STATE OF MISSOURI AND 16 OTHER STATES AS AMICI CURIAE IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO FILE BILL OF COMPLAINT
One could apply these same arguments to point out that West Virginia has been living under a state of government by executive orders, issued by the governor pursuant to his indefinite declaration of a State of Emergency, including orders altering state election law. If PA, GA, WI and MI violated state separation of powers doctrines in changing their state election laws, they – and we – have also done so by changing other state laws through executive COVID mandates. You can’t pick and choose which causes are important enough to violate the separations of powers. If the 2020 election changes required the legislatures approval, then so did the 9 months worth of mask mandates and lockdown orders.
“Missouri, Arkansas, Louisiana, Mississippi, South Carolina and Utah have formally joined Texas in its Supreme Court suit against Georgia, Michigan, Pennsylvania, and Wisconsin—four battleground states who ran illegal and unconstitutional elections,” the state of Texas said in a statement. “The joining states agree with Texas: the defendant states exploited the COVID-19 pandemic to justify unlawfully enacting last-minute changes and ignoring both federal and state election laws, thus skewing the results of the 2020 General Election. ”
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:
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.
Being filed today: I’m representing S. Marshall Wilson, of the West Virginia House of Delegates, three other delegates, and one West Virginia Senator, in their challenge to the West Virginia Governor’s COVID-19 executive orders. Here’s the petition being filed. Press conference at the State Capitol, today at 11:00 a.m.
Update: some footage from the press conference at the State Capitol:
I started a new website called “Use of Force Source” at UseofForceSource.com. The purpose is to establish an online resource to discuss and compile Fourth Circuit federal case law, and U.S. Supreme Court case law on the use of physical force – both police situations and self defense situations. I have already listed a bunch of black letter law on excessive force in the Fourth Circuit (so Virginia, West Virginia, Maryland, North Carolina and South Carolina). It will be a blog format, and will be specific to use of force cases. My intention is to post about specific cases, going over the facts, as well as the law. I also like to listen to the oral argument audio since it gives you much more insight into the case and the reasoning behind the Court’s decisions.
I already posted my first post today, discussing the November of 2013 Fourth Circuit opinion from Ayala v. Wolfe, which was a police shooting case.
