As promised, tonight – Monday evening – at 6:30pm eastern, don’t miss my live cast video, an episode of Freedom is Scary. Available at this link, on Youtube, and on our Facebook page as well. Join the live chat and bring your comments/questions.
In 2018, West Virginia passed a wonderful pro-2nd Amendment piece of legislation, titled HB 4187, a.k.a. the “Parking Lot Bill,” which took effect on June 8, 2018. The bill prohibited businesses from banning firearms from vehicles in their parking lots. It also prohibited the hiring and firing of employees based on their possession of firearms.
About a year later, a national gun control group, which is really “Everytown for Gun Safety,” financed by Michael Bloomberg, using the b.s. name, “Coalition Against Domestic Violence.” Ironically, this group would forcibly disarm the very group they’re supposed to be advocating for. Victims of domestic violence would not have the option of defending themselves with firearms, from their would-be attackers, because they would have their employers enact policies (which corporations generally do) requiring that no firearms can be kept, even in their employees’ parked cars. Here’s the original lawsuit, in its entirety:
West Virginia Attorney General Patrick Morrissey is the named defendant in the suit. His lawyers filed a motion to dismiss.
Last week, U.S. District Judge John Copenhaver denied the motion. I had to read it for myself, since many were instantly outraged. Judge Copenhaver is as good as it gets. He was first appointed by President Ford, and is a workaholic, even in his 90s. I had the honor of trying a jury trial in front of him a few years back. Here is his ruling:
Keep in mind, that this is a ruling in a motion to dismiss – not a ruling on the merits of the challenge. It’s an easy standard for plaintiffs to pass in most cases. So, what were the grounds for allowing the lawsuit to proceed? Even though the gun control group is advocating for the restriction of the individual rights of West Virginia citizens, they’ve disguised their claims as seeking constitutional protections for a collection of domestic violence advocacy groups who are apparently horrified of armed attackers hiding guns in parking lots.
The motion was actually only seeking dismissal on grounds of “standing” and “ripeness,” which are both technical arguments not quite reaching the constitutionality issues. The Court rightly held that groups should be able to challenge the constitutionality of state statutes in federal court, and that they should be able to do so prior to any enforcement actions – not just afterwards. So this is a bit of a nothing-burger. At some point there will need to be a ruling on the constitutional issues.
One of the claims which will need to be decided, isn that the Parking Lot Bill violates the First Amendment – that there’s a free speech component to the being able to prohibit firearms on your business or organization property, if you don’t like guns. It will be interesting to see what happens with that, because it’s not all that different fro the claim we made in the same federal court last week in our challenge of the Governor’s mask mandate. Many laughed when I argued that compliance (or noncompliance) with a mask mandate was protected free speech. So let’s see if this similar argument gets any traction.
Recently, the 2nd Amendment advocacy organization, Gun Owners of America (GOA) submitted a petition to the U.S. Department of Veterans Affairs, on behalf of “over a quarter of a million veterans” who have had, possibly unbeknownst to them, their gun rights stolen from them:
“For years, GOA has fought against VA’s practice of submitting names of veterans who need a fiduciary to the National Instant Check System (NICS), effectively banning these veterans from owning guns,” Aidan Johnston, Director of Federal Affairs for GOA, said. “It’s a disgrace to infringe the rights of those who have taken up arms for our country abroad, only to have that right taken away when they return home.”
Basically, since the Clinton Administration, the VA has been engaging in a policy of proactively causing the loss of gun rights for military veterans who require assistance with the management of their financial affairs, and appoint a fiduciary, such as is common with temporary bouts of PTSD for returning combat veterans. The GOA has been killing it lately in their efforts at protecting the 2nd Amendment. They’re trying to fix this injustice.
The proposed rule would prohibit the VA from transmitting information about a VA beneficiary to law enforcement agencies, and specifically the National Instant Background Check System (“NICS”) run by the Federal Bureau of Investigation, solely and simply due to an appointment of a fiduciary to manage the finances of a beneficiary, without a judicial order in accordance with 18 U.S.C. § 922(g)(4).
Federal law prohibits the receipt or possession of a firearm or ammunition by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution.” 18 U.S.C. § 922(g)(4). Federal law prohibits the receipt or possession of firearms or ammunition by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution” in 18 U.S.C. § 922(g)(4). In 19976 and later in 2014,7 the BATFE expanded the definition of “adjudicated as a mental defective” to also include:
“[a] determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs.”
The problem is, that the VA is triggering this definition via their internal fiduciary determination process, which is occurring wholly without due process or judicial involvement or review.
This low standard, based upon a bureaucratic determination, is not commensurate with the BATFE’s higher standard of a determination by an authority such as a court that a person is for example of subnormal intelligence or a danger to others. The VA’s seriously flawed interpretive guidance sweeps up for reporting to NICS a host of persons who Congress never intended to disarm. Commitments and adjudications are done by the judicial system, not by VA bureaucrats. And the terms “mental defective” and “committed” apply to persons who, as a result of a marked subnormal intelligence or capacity, are permanently unable to function in society and historically were often institutionalized.
So what’s happening is this: a combat veteran returns from deployment and temporarily suffers from mild post-traumatic stress – even temporarily – and even if they rely on a family member to assist them with their finances, or balancing their checkbook, they are coming within the broad Department of Veteran Affairs definition, which is in turn coming within the definition of federal and state criminal statutes prohibiting the possession of firearms on mental health grounds.
This has been happening because, since 1998, the Clinton Administration DOJ began reporting to the FBI, for addition in the NICS index those beneficiaries who require a fiduciary to manage their VA benefits under VA regulations. In 2016, Congress provided for some due process protections in that bureaucratic framework in the “21st Century Cares Act” requiring notice and a hearing, and an opportunity to present a defense. However, the case remains that we are unnecessarily subjecting our veterans to a loss of their gun rights with a lower standards than the rest of the American population.
In contrast to Section 922, which pertains to disarming those “adjudicated as a mental defective or who ha[ve] been committed to a mental institution, 38 C.F.R. § 3.353’s determinations of incompetency pertain to the capacity of a veteran “to contract or to manage his or her own affairs, including disbursement of funds without limitation,”10 for the specific purposes of insurance and disbursement of benefits, and are made according to “the beneficiary’s social, economic and industrial adjustment.” 11 Not only the standard, but the intention and scope of the criminal statute, used to justify reporting veterans in the fiduciary program to the NICS database, differ from those of the VA regulation so substantially as to make clear the inapplicability of the VA fiduciary process as a reasonable determination of “mentally defective” requiring reporting to the NICS database.
The GOA’s proposed change in VA rules would prevent this from happening, and would protect the 2nd Amendment rights of veterans – or at least make them equal to the rest of us. They could still be adjudicated mentally defective, as with anyone else. But there would be no systematic deprivation of rights, such as has existed since 1998.
Then, on top of this, some states have enacted, or attempted to enact, so-called “Red Flag Laws,” such as the one enacted in Virginia, which allows “authorities to convince a judge that a person would be a danger to themselves or others….” and does so in the absence of due process, but rather based on the word of some other individual. What follows, is law enforcement being sent to the individual’s home to confiscate guns. There have already been innocent people killed as a result of these laws, such as occurred in Maryland. The fact is, there are over 1.6 million disabled veterans with service-connected adjudication by the VA of “mental illness,” including one million vets with PTSD. These determinations, if and when made, should be made on a case-by-case basis, and should not be systematic, nor made by bureaucrats at the VA, or elsewhere.
Yesterday, we took the West Virginia Governor to federal court on a challenge against the “Mask Mandate” and “Stay at Home” executive orders following the Governor’s threats on Friday the 13th to start having people arrested and charged with “obstruction of justice.” Fortunately, the Governor backed down from his threats, and the West Virginia Attorney General has joined us in our condemnation of those threats, even before we were able to get to court. I’ll unpack what was said, what the Court ruled, and where we’re going from here.
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.
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.