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).
Today my colleague from Kentucky, Chris Wiest, received an awesome ruling from the Circuit Court of Boone County declaring that all of Governor Andy Bashear’s emergency orders and actions are unconstitutional and void. The ruling was in the state-court challenge to the governor’s emergency powers executive orders, filed by Wiest on behalf of Beans Cafe’ & Bakery.
Dr. Stephen Petty, an actual expert in masks, testified at the trial about their uselessness under the circumstances in which they’re being idolized. Here’s an excerpt from the order pertaining to Dr. Petty. For those bureaucrats and social media tyrants who would censor this, this is from an actual court order issued today. Not that you care:
Stephen E. Petty, P.E., CIH, testified as an expert and was accepted as such without objection. Mr. Petty has served as an expert witness in approximately 400 cases relating to toxic or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. He also served as an epidemiology expert for the plaintiffs in the Monsanto “Roundup” cases, and for those in the Dupont C8 litigation. In connection with his service as an expert, he was deposed nearly 100 times and has provided court testimony in approximately 20 trials. 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. Mr. Petty helped write the rules on risk assessment for the State of Ohio and has trained Ohio’s risk assessors.
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.”61 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.”62 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.”64 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.
The judge summarizes the situation nicely:
It is obvious from even a cursory review that the orders issued over the past fifteen months “attempt to control” and seek “to form and determine future rights and duties” of Kentucky citizens. These included ordering the closure of all businesses, except those the Governor deemed essential. He ordered churches closed, prohibited social gatherings, including at weddings and funerals, prohibited travel, and through CHFS, even prohibited citizens from receiving scheduled surgeries and access to medical care. And then there is the order that everyone wear a mask. These are, undeniably, attempts to control, set policy, and determine rights and duties of the citizenry. Except in those instances where the federal courts have stepped in, Defendants assert authority to modify or re-impose these orders at their sole discretion. Consider, for example, the recent modification of the mask mandate. It orders persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for others. That is setting policy and determining future rights and duties.
At the hearing, Defendants took exception to the Attorney General’s characterization of the Governor’s actions as a “lockdown,” and argued that prohibiting persons from entering those restaurants is not the same as ordering that they be closed. But that doesn’t minimize the impact on those who lost their businesses as a result, or those in nursing homes condemned to spend their final hours alone, deprived of the comfort from loved ones (or even any real contact with humanity), or those citizens who the Governor prohibited from celebrating their wedding day with more than ten persons, or those he forced to bury their dead alone, without the consoling presence of family and friends (and who likewise were deprived of paying their final respects), or those persons who were barred from entering church to worship Almighty God during Holy Week, and even Easter Sunday, or those persons who were denied access to health care, including cancer-screenings, or those denied entry into government buildings (which they pay for with their taxes) in order to obtain a necessary license, and who were forced to wait outside for hours in the sweltering heat, or rain, purportedly to keep them from getting sick.
What the people have endured over the past fifteen months—to borrow a phrase from United States District Judge Justin R. Walker—“is something this Court never expected to see outside the pages of a dystopian novel.” Yet, Defendants contend that the Governor’s rule by mere emergency decree must continue indefinitely, and independent of legislative limits. In effect, Defendants seek declaratory judgment that the Constitution provides this broad power so long as he utters the word, “emergency.” It does not. For this Court to accept Defendant’s position would not be honoring its oath to support the Constitution; it would be tantamount to a coup d’état against it.
Yes, life is now a dystopian novel. Let’s hope this patriot judge’s order stands up on appeal in the state appellate courts in Kentucky. And thanks to Chris Wiest and the AG of Kentucky for fighting the good fight. The order notes that the permanent injunction against the governor goes into effect on June 10, 2021 at 5:00 p.m.
Today we filed suit against Enlivant, a Chicago company who owns and operates an assisted living facility in Greenbrier County, West Virginia operating as Seasons Place Assisted Living. On June 1, 2021 they terminated my client, Stephanie McCutcheon, for refusing to take an unapproved non-mandatory vaccine for COVID-19.
This is the letter Stephanie received from the Human Resources Director in Chicago after complaining about the company’s verbal vaccine mandate. As you can see, knowing it was a violation of federal law to mandate the vaccine, they attempted to frame her termination as a resignation.
Given that it appears to be a form letter, they have apparently done this to other employees. They have assisted living facilities in numerous states.
Our legal theory is a state-law based claim of retaliatory discharge. Basically, as everyone knows, West Virginia is an at-will employment state. However, there was an exception created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), which provides that:
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.
The State Supreme Court has defined the areas from which “public policy” may derive:
“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.”
See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015)
So federal laws and regulations may form the basis of “public policy.” Now whether that public policy is “substantial” depends on whether it’s “widely regarded as to be evident to employers.” No doubt that requirement is met in this case. A quick google search will reveal an enormous amount of discussion and advice regarding the legality of employers mandating the vaccine. But we shall see….
Here’s the lawsuit, in full, which lays out the facts and law pertaining to the COVID-19 vaccines at the current time:
We are asking for an expedited hearing for a preliminary injunction enjoining Enlivant from terminating employees for choosing not to take a non-mandatory, unapproved vaccine, and directing that my client be re-hired, as well as a declaration that a private employer may not terminate or take adverse action against employees for choosing not to take the COVID vaccine. We are also seeking money damages, punitive damages and attorney fees.
Today we filed suit in the case of the “Outlaw Barber,” Winerd “Les” Jenkins, a 73 year old combat veteran and former 27-year Deputy U.S. Marshall, who was arrested for refusing to close his barbershop during the Governor’s lockdown in April of 2020. We filed a Section 1983 civil rights lawsuit in federal court, in the Northern District of West Virginia.
When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.
His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.
He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer. The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order.
We asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. It’s already been assigned a case number. Read it for yourself:
U.S. District Judge Reed O’Connor, a George W. Bush nominee, said he believes plaintiff Philip Greer, a cafe owner, is likely to succeed in his lawsuit against the Small Business Association as he granted a request for a temporary restraining order (TRO).
Thus, the Court concludes that the government has failed to prove that it likely has a compelling interest in “remedying the effects of past and present discrimination” in the restaurant industry during the COVID-19 pandemic. For the same reason, the Court finds that Defendants have failed to show an “important governmental objective” or “exceedingly persuasive justification”9 necessary to support a sex-based classification. See Resp. 24, ECF No. 9. Having concluded Defendants lack a compelling interest or persuasive justification for their racial and gender preferences, the Court need not address whether the RRF prioritization program is narrowly tailored or substantially related to those particular interests. Accordingly, the Court concludes that Plaintiffs are likely to succeed on the merits of their claim that Defendants’ use of race-based and sex-based preferences in the administration of the RRF violates the Equal Protection Clause of the Constitution
As we discussed in yesterday’s episode of Freedom is Scary, the national’s leading industrial hygiene expert, Stephen E. Petty, P.E. CIH., C.S.P. of EES Group, Inc., is an actual expert in the use of masks. The science shows the reason that the virus spread in total disregard for widespread mask usage: because masks do nothing to stop the spread of the virus.
The science shows that COVID-19 virus particles are less than 1 micron in size, which is 4,000 times smaller than the diameter of a single human hair. These particles, which infect people through inhalation into the lungs, are so small, that when exhaled into an indoor room, it will take hours, and most likely days, to drop the five feet from one’s mouth to the floor. But there are actual solutions, which science provides to us, but which are being ignored by the the media and government officials.
Dr. Petty holds both a B.S. and an M.S. in Chemical Engineering, both with honors. He has an M.B.A. He was a Senior Research Scientist at Battelle. He was the Senior Research Engineer at Colombia Gas. He was the President of EES Group, an engineering company in Colombus, Ohio. He has a CIH national certification, as well as a C.S.P. certification and is a licensed Professional Engineer in Ohio, Florida, Pennsylvania, West Virginia, Kentucky and Texas. He served as a national exposure/PPE expert in more than 400 cases, including Monsanto Roundup and DuPont C-8. He’s also an Adjunct Professor at Franklin University and holds 9 U.S. Patents. He holds membership in all the Industrial Hygiene professional associations, as well as the American Institute of Chemical Engineers.
“Industrial Hygiene” is “That science and art devoted to the anticipation, recognition, evaluation, and control of those environmental factors or stressors arising in or from the workplace, which may cause sickness, impaired health and well-being, or significant discomfort among workers or among the citizens of the community. So, it’s the scientific field associated with exposure, PPE and warnings. It has nothing to do with dentistry. Unfortunately, this field has been mostly ignored by the media and the Government, who has relied on medical doctors, who are not trained in exposure and PPE. That’s beginning to change. But not quickly enough.
Exposure can occur in 4 ways: inhalation, dermal, ingestion and intravenous. Obviously, lower concentrations of exposure are better, and less time of exposure is better. Dr. Petty has four main points to exposure:
Personal Protective Equipment (PPE) is the least desirable way to protect people.
Masks are not PPE.
Scientific evidence suggests COVID-19 particles are mostly small aerosols – not droplets, which would mean respirators, rather than masks, are needed to protect the lungs (which makes the 6′ rule effectively meaningless).
Smaller particles are likely a greater cause of disease since they get past PPE and can reach deep into the lungs.
What DOES work are Engineering controls of dilution and destruction.
Thus, the least effective option of minimizing exposure is PPE. then minimizing exposure distance and time, and then engineering controls designed to dilute, destroy or contain the particles.
Masks, as we have been mandated to wear, are not “respirators.”
Despite telling the public to wear masks, OSHA admits they are not protective:
The CDC also tells the public to wear masks, but also admits they are not protective:
In other words, masks don’t meet any of the OSHA respiratory protection standards that are used in the workplace. Yet we’re being forcibly subjected to them, as are our children. The public has been told that COVID-19 particles fall to the ground within 6 feet, and therefore can safely “social distance.” However, OSHA has admitted otherwise:
To the extent that COVID-19 is aerosol, masks do absolutely nothing. A study from the National Academy of Sciences Press establish that most of the COVID-19 particles emitted from those infected are aerosols, or consisting of 0.3 to 0.5 microns. “Droplets” consist of particles much greater in size than aerosols. The science shows however, that most COVID-19 particles are aerosols, not droplets. As such, they are less than 1 micron in size.
The NASP paper concluded that “the proportion of small respiratory droplets (i.e., aerosols) [were the majority of particles exhaled in all subjects]….”
Exactly how tiny is a micron? It’s 4,000 times smaller than a single human hair.
The National Academy of Sciences Press paper also concluded that there may be an elevated risk of the airborne transmission of COVID-19 by way of the very small droplets that transmit through conventional masks and traverse distances far exceeding the conventional social distancing standards of 2 meters, or around 7 feet, and that exhaled aerosol numbers appear to be not only an indicator of disease progression, but a marker of disease risk in non-infected individuals.
These particles are so small, that the length of time they remain airborne effectively renders “social distancing” irrelevant to the indoor spread of COVID-19. An aerosol COVID-19 particle, the majority of which are less than 1 micron in size, takes hours, and even days, to fall just from mouth-level to the ground.
Aerosols (very small particles of less than 5 microns) can stay suspended in air for hours to days.
Since they stay suspended for so long, they can actually accumulate in concentration in indoor air, rather than dropping out to the ground as one would assume with “droplets.”
This effectively renders the 6 foot rule of social distancing useless; this also renders masks essentially useless, since they don’t filter out aerosols and can’t seal the gaps around the edges.
Imagine the virus as a gnat flying through a wall made out of chain link fence, which also has open windows and doors (which represents the gaps around the edges of the mask). There is literally nothing stopping or restricting the free and open travel of the gnat through the “wall.”
On February 15, 2021, almost a year after the beginning of the pandemic and state of emergency mandates, 13 physicians and scientists with expertise in aerosol science, occupational health and infectious diseases wrote to the CDC, as well as to the COVID response team at the White House and Dr. Fauci, asking them to investigate the implications of aerosols. They advised that:
For many months it has been clear that transmission through inhalation of small aerosol particles in an important and significant mode of COVID-19 virus transmission. They additionally warned that numerous studies have demonstrated that aerosols produced through breathing, talking and singing are concentrated close to the infected person and can remain in the air and viable for long periods of time and travel long distances within a room – sometimes even farther.
They further noted that although the CDC recognized back in October that COVID-19 was spread through inhalation of aerosols as a route of infection, most CDC guidance and recommendations have not yet been updated or strengthened to address and limit inhalation exposure to small aerosol particles. They noted that the CDC continues to use the outdated and confusing term “respiratory droplets” to describe both larger propelled droplet sprays and smaller inhaleable aerosol particles.
To make a long letter short, they informed the nation’s so-called health experts that CDC guidance and recommendations do not include the control measures necessary for protecting the public, and workers, from inhalation exposure to COVID-19.
So we know that with aerosols, masks do not protect you, or others. Masks have been ordered along with an emotional appeal to wear a mask to protect others, or so that you can go see your grandkids, or go in a store – or whatever. Instead of arguing over masks and trying to convince those who have been propagandized that they don’t work, he proposes actual solutions which do work: dilution or destruction:
So being outside when possible and increasing fresh air ventilation actually does work. But the other thing that works is destruction. Technology exists which can destroy viruses from indoor spaces, such as needle point ionization technology.
As a country, we’ve taken out more debt in the past 12 months than we did from the beginning of the pandemic, all the way to 1776. How many lives could have been saved, or still could be saved, if even some of the billions of dollars wasted could have gone to purchase ventilation systems and needle point ionization technology for our elderly population? Instead, we’re convincing people to have a false senses of security in wearing a mostly-useless mask.
In recent days, the CDC has finally begun to admit that the virus is spread through aerosols of 5 microns and less, which may take days to settle, yet they nevertheless stick to mask usage based solely on the existence of larger droplets, in addition to aerosols:
Research shows that the particle size of SARS-CoV-2 is around 0.1 micrometer (μm). However, the virus generally does not travel through the air by itself. These viral particles are human-generated, so the virus is trapped in respiratory droplets and droplet nuclei (dried respiratory droplets) that are larger. Most of the respiratory droplets and particles exhaled during talking, singing, breathing, and coughing are less than 5 μm in size…..
Collectively these particles are capable of remainingairborne for hours and are most associated with deep lung penetration.
In other words, masks aren’t going to be able to stop the aerosol spread of the virus, but we want you to continue wearing masks, because they will stop “trapped” particles in larger droplets, i.e., close-range spitting in each other’s mouths. But if your’e close enough to do that, and aerosol particles can get through the masks and linger in the air for hours, what difference does that make, since it’s already deeply penetrated your lungs?
But this is much more dangerous than just a futile exercise in COVID theater and self-congratulations about caring for those around you. Take a look at the German study which was released showing that children are being harmed by the forced usage of masks. 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 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%).
What are the benefits of this mandate, even if masks did work in stopping a spread, that could possibly justify this collateral damage? And what about the emotional damage? A 2010 paper from Harvard University observed the damage that can be caused by exposing them 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.”
potential increased risk of self-contamination due to the manipulation of a face mask and subsequently touching eyes with contaminated hands;
potential self-contamination that can occur if non- medical masks are not changed when wet or soiled. This can create favourable conditions for microorganism to amplify;
potential headache and/or breathing difficulties, depending on type of mask used;
potential development of facial skin lesions, irritant dermatitis or worsening acne, when used frequently for long hours;
difficulty with communicating clearly;
a false sense of security, leading to potentially lower adherence to other critical preventive measures such as physical distancing and hand hygiene;
poor compliance with mask wearing, in particular by young children;
waste management issues; improper mask disposal leading to increased litter in public places, risk of contamination to street cleaners and environment hazard;
difficulty communicating for deaf persons who rely on lip reading;
disadvantages for or difficulty wearing them, especially for children, developmentally challenged persons, those with mental illness, elderly persons with cognitive impairment, those with asthma or chronic respiratory or breathing problems, those who have had facial trauma or recent oral maxillofacial surgery, and those living in hot and humid environments.
Why are we subjecting our children to forced mask usage in our schools when they do nothing to stop aerosol COVID-19 particles from being either exhaled or inhaled, and where if present, they could be floating around inside a classroom for hours, or even days? Given the evidence that children are being harmed, and even subjected to an increased possibility of infection through using them, such policies are truly irrational, misguided and dangerous.
Here’s the live video from Freedom is Scary Ep. No. 54, where I discuss litigation strategy to save the children from masks with civil rights lawyers, Chris Wiest from Kentucky, and Andy Fox from Tennessee:
Update on the Federal Covid Tyranny Challenge: The Governor filed a motion to dismiss our lawsuit, and we responded yesterday. I think Samuel Adams said it best on October 14, 1771:
“The liberties of our country, the freedom of our civil constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or be cheated out of them by the artifices of false and designing men.”
Here’s the Governor’s motion to dismiss our federal lawsuit on behalf of the Bridge Cafe & Bistro Restaurant, challenging the Stay at Home Order and the Mask Mandate:
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. ”