FILED: Bridge Cafe & Bistro’s federal lawsuit against the W. Va. Governor and Putnam County

This afternoon I filed a federal lawsuit against the West Virginia Governor and against Putnam County, and their health department inspector, on behalf of the Bridge Cafe & Bistro, located in Hurricane, West Virginia. We are seeking money damages and attorney’s fees for First Amendment retaliation, after Putnam County threatened my clients with closure in response to their Facebook post expressing their opinions and policies pertaining to the Governor’s mask mandate. We are also suing the Governor and asking the Court to declare the mask mandate, as well as the “Stay at Home Order” unconstitutional and unenforceable.

We believe it’s unconstitutional under the First Amendment, as the mask debate has become just that – political speech. We also believe they are in violation of the 14th Amendment due process clause because they’re an arbitrary deprivation of my clients’ property interests wholly without due process of law. Moreover, they’re also a violation of the Equal Protection Clause of the 14th Amendment, because they treated restaurants in Putnam County, where only two deaths have occurred in over 6 months of the virus, just the same as they treated restaurants where the virus had a greater impact.

Additionally, we believe yesterday’s ruling from Judge Stickman in the Western District of Pennsylvania makes a good case that a Governor unilaterally choosing who is “essential” and who is “non-essential” in smoky rooms, rather than through an open, defined and rational process, is itself a constitutional violation. The Governor cannot enact legislation, period. Not in a time of war; not in a “State of Emergency” which has lasted over 6 months. The sole process for enactment of new laws in West Virginia is via the state legislature, according to the state Constitution. To the extent that counties attempt to enforce unconstitutional and unenforceable executive orders as if they were laws, we believe they can be sued for money damages under Section 1983.

Here’s the actual lawsuit which was filed this afternoon in the U.S. District Court for the Southern District of West Virginia. It doesn’t yet have a case number:

And…we’re off…. First media reports:

https://wvrecord.com/stories/555093294-putnam-county-restaurant-owners-challenge-state-s-stay-at-home-order-mask-mandate

https://www.wsaz.com/2020/09/15/federal-lawsuit-filed-against-wva-governors-office-and-some-county-officials-for-restaurant-mask-mandate/

https://www.herald-dispatch.com/news/hurricane-restaurant-challenges-wv-governors-covid-19-mandates/article_11a73129-4f6e-5021-a955-810de5e358aa.html

New federal lawsuit against the Governor over the continued “mask mandate” tyranny – Freedom is Scary Ep. 13

Enough is enough. On Freedom is Scary, Episode 13, LIVE on Youtube and Facebook, I will discuss the fact that the Governor of West Virginia has left me no choice but to file another lawsuit. (UPDATE: it’s filed: https://thecivilrightslawyer.com/2020/09/15/filed-bridge-cafe-bistros-federal-lawsuit-against-the-w-va-governor-and-putnam-county/?fbclid=IwAR039nWl-txdpdX5WPQa76t9JiRgkWwDGKbicA46VtkUsReuNpZzRUYVNKQ) This time I’m filing in federal court, on behalf of a restaurant who was on the receiving end of our Governor’s tyranny, via his local health department secret police. It’s been proven that lockdowns and other governmental tyranny doesn’t work.

Even assuming it was constitutional, it doesn’t work. The virus is/was going to take its course. Where the lockdown measures were most tyrannical, the virus spread at the same rate, or even worse. Then there’s the unintended consequences and side effects of keeping people locked down, and destroying their small businesses, which is the reason why we weren’t supposed to attempt lockdowns in the first place.

POST-VIDEO UPDATE: I will be filing a federal lawsuit on behalf of the Bridge Cafe & Bistro in Putnam County, West Virginia, challenging the constitutionality of both the “Stay at Home Order” as well as the Governor’s “Mask Mandate.” You may recall this restaurant’s Facebook post expressing their First Amendment protected speech pertaining to the concept of forcing people to cover their faces:

This social media post, on what is obviously an intense political topic of current days, resulted in the Putnam County Health Board (they’re located in Hurricane, West Virginia) threatening administrative closure, for which they physically inspected the restaurant twice for mask compliance, and then charged them for it. They were dragged through the (actual) media, and through social media, in response to the substantive content of their speech, which is allowable for private citizens to do, but is a big no-no for the Government. Because, the First Amendment. Here’s some of the media aftermath:

Threatened with closure if they didn’t change the content of their opinions, and comply with the unconstitutional “Mask Mandate,” they had no choice but to comply:

We’re suing in federal district court for First Amendment retaliation, under Section 1983, and we’re also challenging the constitutionality of the “Mask Mandate” itself, as well as the “Stay at Home Order,” as it applies to this restaurant and the family who owns it. I’ll post the Complaint as soon as it’s filed. Due to the great timing, we’re now incorporating some of today’s ruling out of Pennsylvania. More about that below:

Update No. 2: Today a federal judge in the Western District of Pennsylvania issued an opinion striking down the Pennsylvania Governor’s order closing “non-life-sustaining” (i.e., non-essential) businesses, as well as the order restricting large gatherings. It was a great opinion, and great timing as well, since we can now incorporate some of it into our federal lawsuit against the West Virginia Governor. It’s not binding in any way in our federal courts, since Pennsylvania is in a separate federal circuit. But it will be great guidance for the Court, and it also incorporates some of the federal rulings in Kentucky, which clipped the wings of their tyrant governor. Some of the highlights:

The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China—a nation unconstrained by concern for civil liberties and constitutional norms—started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective…..

As with the lockdown, Defendants’ shutdown of all “non-life-sustaining” businesses is unprecedented in the history of the Commonwealth and, indeed, the nation. While historical records show that certain economic activities were curtailed in response to the Spanish Flu pandemic, there has never been an instance where a government or agent thereof has sua sponte divided every business in the Commonwealth into two camps—“life-sustaining” and “non-life- sustaining”—and closed all of the businesses deemed “non-life-sustaining” (unless that business obtained a discretionary waiver). The unprecedented nature of the business closure—even in light of historic emergency situations—makes its examination difficult from a constitutional perspective. It simply does not neatly fit with any precedent ever addressed by our courts. Never before has the government exercised such vast and immediate power over every business, business owner, and employee in the Commonwealth. Never before has the government taken a direct action which shuttered so many businesses and sidelined so many employees and rendered their ability to operate, and to work, solely dependent on government discretion. As with the analysis of lockdowns, the unprecedented nature of the business shutdowns poses a challenge to its review. Nevertheless, having reviewed this novel issue in light of established Due Process principles, the Court holds that the business closure orders violated the Fourteenth Amendment….

An economy is not a machine that can be shut down and restarted at will by government. It is an organic system made up of free people each pursuing their dreams. The ability to support oneself is essential to free people in a free economy. The late Justice William O. Douglas observed: The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. The American ideal was stated by Emerson in his essay on Politics, ‘A man has a right to be employed, to be trusted, to be loved, to be revered.’ It does many men little good to stay alive and free and propertied, if they cannot work. To work means to eat. It also means to live. For many it would be better to work in jail, than to sit idle on the curb. The great values of freedom are in the opportunities afforded man to press to new horizons, to pit his strength against the forces of nature, to match skills with his fellow man. Barsky v. Board of Regents of University of State of New York, 347 U.S. 442, 472 (1954) (Douglas, J, dissenting). In a free state, the ability to earn a living by pursing one’s calling and to support oneself and one’s family is not an economic good, it is a human good. 

Here’s a .pdf of the 66 page ruling:

Lockdowns Don’t Work, including in West Virginia

There was a good article from the Mises Institute, The Evidence Keeps Piling up: Lockdowns Don’t Work, by Ryan McMaken. Here in West Virginia, our it seems that it was our Governor’s proudest life achievement so far, that he “shut down” the state, and then got to create an entire new form of government, which he titled, “The Comeback.” At least while mommy and daddy legislature is still in hiding….. As McMaken noted:

The toll lockdowns have taken on human life and human rights has been incalculable. Increases in child abuse, suicide, and even heart attacks, all appear to be a feature of mandatory stay-at-home orders issued by politicians who now rule by decree without any legislative or democratic due process. And then, of course, there is the economic toll on employment, which will feed negative impacts into the longer term. The economic burden has fallen the most on the young and on working-class families, whose earners are least able to work from home.

These measures also have made a mockery of basic human rights while essentially expropriating private property. Mom-and-pop business owners were told to shut their doors indefinitely or face arrest. The unemployed were told it was now illegal to work for a living if their careers were deemed “nonessential.” Police officers have beaten citizens for not “social distancing” while mothers have been manhandled by cops for attempting to use playground equipment.

https://mises.org/wire/evidence-keeps-piling-lockdowns-dont-work

I’ve been saying, that since West Virginia’s greatest cause of death – one of the worst in the country – is heart disease. Yet our morbidly obese governor obviously doesn’t appreciate that fact. Our usual number of deaths due to heart disease floats just under 5,000. I wonder what it’s going to be this year? We’ll see, but it’s going to be high. This has been the year of the politician and the bureaucrat protecting themselves against the peasants. As McMaken describes, this was planned way in advance, during the Bush Administration, but at the time they viewed the concept of social distancing as “impractical, unnecessary and politically infeasible.” Now we have things like this occurring in a Presidential election:

WARREN, MICHIGAN – SEPTEMBER 09: With his audience of union leadership and journalists socially distanced to reduce the risk posed by coronavirus, Democratic presidential nominee and former Vice President Joe Biden delivers remarks in the parking lot outside the United Auto Workers Region 1 offices on September 09, 2020 in Warren, Michigan. Biden is campaigning in Michigan, a state President Donald Trump won in 2016 by less than 11,000 votes, the narrowest margin of victory in state’s presidential election history. (Photo by Chip Somodevilla/Getty Images)

One of the reasons the Bush bureaucrats decided a lockdown was infeasible is because lockdowns don’t work:

There is more than one reason, but one major reason is that lockdowns have never been shown to be particularly effective. And this lack of success in containment must also be weighed with the very real costs of forced isolation

https://mises.org/wire/evidence-keeps-piling-lockdowns-dont-work

A 2006 paper was published, called “Disease Mitigation Measures in the Control of Pandemic Influenza,” which cal

There are no historical observations or scientific studies that support the confinement by quarantine of groups of possibly infected people for extended periods in order to slow the spread of influenza. A World Health Organization (WHO) Writing Group, after reviewing the literature and considering contemporary international experience, concluded that “forced isolation and quarantine are ineffective and impractical.” Despite this recommendation by experts, mandatory large-scale quarantine continues to be considered as an option by some authorities and government officials.

The interest in quarantine reflects the views and conditions prevalent more than 50 years ago, when much less was known about the epidemiology of infectious diseases and when there was far less international and domestic travel in a less densely populated world. It is difficult to identify circumstances in the past half-century when large-scale quarantine has been effectively used in the control of any disease. The negative consequences of large-scale quarantine are so extreme (forced confinement of sick people with the well; complete restriction of movement of large populations; difficulty in getting critical supplies, medicines, and food to people inside the quarantine zone) that this mitigation measure should be eliminated from serious consideration.

http://www.liebertpub.com/publication.aspx?pub_id=111

But despite the 2006 conclusion, as the paper noted, politicians and bureaucrats don’t necessarily act in the best interests of people, or the nation, but rather in their own personal best interests. They will choose the fork in the road that increases their power – even if it decreases the freedom of the citizenry. That’s the clear explanation surrounding the West Virginia Governor. Clearly he’s adept at acting in his own best interests. He doesn’t pay his taxes. He doesn’t pay his bills. He obtained 24 MILLION DOLLARS IN PPP MONEY for his companies, and so on. Are we to believe that he took control over an entire state government just because he loves us, and he can’t bear to see us suffer? Where was his empathy when he was stiffing regular people and small businesses on his bills? When he said, here in West Virginia, “we’re all in this thing together,” he didn’t mention anything about the fact that the had lawyers and accountants behind the scenes getting him 24 million bucks while the rest of us peasants suffer, did he?

It’s about a power grab – not about saving lives. The evidence shows that lockdowns don’t work. They didn’t work:

Measuring from the start of the year to each state’s point of maximum lockdown—which range from April 5 to April 18—it turns out that lockdowns correlated with a greater spread of the virus. States with longer, stricter lockdowns also had larger Covid outbreaks. The five places with the harshest lockdowns—the District of Columbia, New York, Michigan, New Jersey and Massachusetts—had the heaviest caseloads.

Donald Luskin, The Wall Street Journal

There are other studies, as the Misis Institute listed:

July study published by The Lancet concluded: “The authors identified a negative association between the number of days to any lockdown and the total reported cases per million, where a longer time prior to implementation of any lockdown was associated with a lower number of detected cases per million.”

In April, T.J. Rogers looked at “a simple one-variable correlation of deaths per million and days to shutdown” and found that “The correlation coefficient was 5.5%—so low that the engineers I used to employ would have summarized it as “no correlation” and moved on to find the real cause of the problem. (The trendline sloped downward—states that delayed more tended to have lower death rates—but that’s also a meaningless result due to the low correlation coefficient.)”

In May, Elaine He at Bloomberg showed “there’s little correlation between the severity of a nation’s restrictions and whether it managed to curb excess fatalities.”

In an August 1 study, also published by The Lancet, the authors concluded, “Rapid border closures, full lockdowns, and wide-spread testing were not associated with COVID-19 mortality per million people.”

https://mises.org/wire/evidence-keeps-piling-lockdowns-dont-work

The evidence shows that there was no stopping the activity of the virus, where it was already present. Not even the incredibly-obnoxious virtue-signaling step of redoing your social media profile picture with you wearing a mask, had any positive effect on the pandemic. It was nothing more than political speech. Political speech which politicized a virus. The evidence shows nothing governments did, which had any effect on the virus where it was already present:

In a paper published with the National Bureau of Economic Research (NBER), authors Andew Atkeson et al.found that covid-19 deaths followed a similar pattern “virtually everywhere in the world” and that “Failing to account for this familiar pattern risks overstating the importance of policy mandated NPIs (non pharmaceutical intervention) for shaping the progression of this deadly pandemic.”

https://mises.org/wire/evidence-keeps-piling-lockdowns-dont-work

So does this weak correlation between lockdowns and effect on COVID justify the tyrannical actions of governors across the United States, and most especially here in West Virginia?

Extraordinary measures require extraordinary evidence. And the burden of proof is on those who seek to use the coercive power of the state to force people into their homes, cripple the economy, and abolish countless basic freedoms for the duration. Have the advocates for lockdowns made their case? It’s hard to see how they have. For one, advocates for lockdowns need to present obvious and overwhelming evidence that lockdowns bring big benefits far in excess of the no-lockdown approach. They have not done so. Moreover, they have not shown that a lack of lockdowns is anywhere near as dangerous as they have claimed in the name of pushing lockdowns to begin with. We can already see what the no-lockdown scenario looks like. It looks like Sweden, and that’s a better outcome than many prolockdown regimes can claim. Governments are nonetheless likely to continue claiming their lockdowns worked. In ancient days, a witch doctor might perform a rain dance on Tuesday and claim credit when it rained on Wednesday. Lockdowns are increasingly looking like the modern equivalent of a rain dance. 

https://mises.org/wire/evidence-keeps-piling-lockdowns-dont-work

That’s what Governor Justice is doing. He’s doing a rain dance for the public. Some thank him for it. Some hate him for it. And all suffer for it. Well, except the (executive branch) politicians and bureaucrats…..

Where is “State of Emergency” in the Constitution

(Update: Life under the new normal of “State of Emergency” government. Why it’s unconstitutional, unAmerican, and the danger ahead. Freedom is Scary, Episode 7. Recorded live on August 19, 2020. Skip ahead to different topics: Discussion about the constitutionality of our “State of Emergency” at about 3:00. Discussion about scientists’ concerns about children wearing masks at 20:15. Discussion about the Franklin Templeton-Gallup Research Project showing an insane level of misinformation about the threat posed by COVID-19 and the economic consequences at 25:15. Really interesting discussion with my brother’s longtime girlfriend, Diana, at around 39:00 discussing life in communist Romania, where she was born and her family still lives, and the similarities to the new normal of 2020 United States. Discussion about wearing masks in public at 1:09:50. Discussion regarding WV School Reopening and the Rainbow Code at 1:11:08. Discussion on suppression of school choice and freedom by governors at 1:25:45. The CDC Director’s opinion about kids and reopening schools at 1:33:45. Separation of powers violations by the governors at 1:41:20. Discussion on the Nanny State and JFK, Democrats, and third world economies here in WV at 1:48:00.)

On March 16, 2020, Gov. Justice declared a “State of Emergency” under W. Va. Code § 15-5-6. In the proclamation, the Governor provided the following substantiation for his declaration of a “State of Emergency”: The COVID-19 epidemic constitutes a disaster under W. Va. Code § 15-5-2; COVID-19 has been deemed a pandemic by the World Health Organization and the President of the United States has declared a national emergency; It is in the best interest of the citizens of West Virginia that we are able to stand up emergency operation centers and allow boards and agencies to suspend certain rules that inhibit them from responding effectively. At that time there hadn’t even been one positive diagnosis in the State.

Fast forward to August 19 – over five (5) months later – and every county in the State of West Virginia is still being ruled by executive fiat, by one man, in what has become an indefinite “State of Emergency” style of government, which so far has lasted 5 months. And there appears to be no end in sight.

So where in the Governor’s proclamation did he mention his constitutional powers, and where in our State Constitution does the phrase “State of Emergency” appear? Moreover, where does the Constitution describe how the Governor gets to become a de-facto dictator, so long as he alleges a disaster zone exists? Even in counties which still after 5 months have had zero deaths from COVID-19, but numerous deaths from all the usual leading causes of death (mostly heart disease)?

Did you know that the legislature is not allowed to delegate their legislative responsibilities to the Governor? So even if an emergency powers statute attempted to do so (which it doesn’t), it would be unconstitutional.

Link to the text of the WV Constitution: https://www.wvlegislature.gov/WVCODE/…https://thecivilrightslawyer.com/

The Freedom is Scary Facebook page: https://www.facebook.com/FreedomIsScary Make sure to join the private group there to help fight for liberty.SHOW LESS

DOCUMENTS discussed in the Livecast:

Masks Don’t Work: Opposing Science

Franklin Templeton-Gallup Research Project by Dr. Sonal Desai, Ph.D.

1. Americans still misperceive the risks of death from COVID-19 for different age cohorts—to a shocking extent;
2. The misperception is greater for those who identify as Democrats, and for those who rely more on social media for information; partisanship and misinformation, to misquote Thomas Dolby, are blinding us from science; and
3. We find a sizable “safety premium” that could become a significant driver of inflation as the recovery gets underway.

Why Democrats Have Started To Cave On Reopening Schools, The Federalist, by Joy Pullman.

If Teachers Unions Really Cared About Kids, They’d Be Demanding Schools Open, The Federalist, by Paula Rinehart.

CDC Director: Threat Of Suicide, Drugs, Flu To Youth ‘Far Greater’ Than Covid, The Daily Wire, By  Amanda Prestigiacomo

The legal challenge to the WV Governor continues

Here’s the live cast video I did yesterday on the ongoing fight against the West Virginia Governor’s COVID related executive orders, such as the so-called “mask mandate” and other restrictions:

There was a great article in The Federalist yesterday by Molly McCann, titled, “Governors Can’t Use Coronavirus To Indefinitely Declare A State Of Emergency. This is exactly what I’ve been saying:

Supreme Court Justice Antonin Scalia often noted that the primary safeguard of our constitutional liberties is the structure of our government. Every banana republic has a bill of rights, he once said, but the strength of the American system is the separation of powers.

At the federal level, there are three separate, co-equal branches of government that must operate together for our representative republic to function properly, and this balance of power is mirrored at the state level. Unhappily, our system today is not functioning as designed.

There’s technically nothing currently protecting us from experiencing what’s happening in Australia right now. A governor – especially in WV – could just order us to stay in our homes indefinitely, and nothing currently in place would be able to stop them. The longer we allow unchecked executive control to continue, the greater the damage to our system of government. We in WV have even less protections than other states when it comes to a governor instituting an indefinite state of emergency power grab. At the very least, we’ll still have the ballot box (if the governors don’t restrict us to mail-in voting, of course):

Most state statutes automatically terminate emergency authority after a 30- or 60-day period, unless specifically extended by the governor. This highlights that emergencies are assumed to be of short duration. Our current quandary is that governors are using COVID as an excuse to extend their authority indefinitely.

If the governors are empowered to declare and continue a state of emergency, what is the remedy? The Founders believed the first and most powerful check on the executive would be the ballot box. In modern practice, one of the best checks on the individual policies an executive contemplates has been the resistance of the electorate in real-time. The coronavirus crisis has once again proved that state and local races matter deeply.

Unfortunately, West Virginia’s emergency statute does not have an automatic shut-off valve. It continues until the Governor steps down from the throne, or until a majority of the legislature votes to stop it. Then we have the issue of the legislature not being in session to do so until February of 2021….

As Ms. McCann opines, when the legislature does get a chance to do its thing, rather than just squabble over federal COVID money, they need to take immediate action to stop future gubernatorial tyrants, who very well may be worse than the one we have right now:

To declare emergencies, to close businesses and confine Americans to their homes, to mandate masks, to limit access to churches, to suspend your civil liberties, the governors point to power enumerated by statute—that is, defined by the legislature. Where the legislature defined the terms, it can redefine the terms. Where they are empowered to do so, state legislatures must begin to declare the emergency at an end, rebuke the governors’ power grabs, and recalibrate the allocation of power to its proper balance among the branches.

Unfortunately, rather than reclaiming authority from governors, many state legislatures right now are fighting over which branch gets to decide how to spend the federal dollars states are receiving in emergency aid. It is not clear that the balance of power will naturally revert to normal any time soon.

(emphasis added)

Under West Virginia law, the legislature may not delegate its core legislative responsibility to a governor. They’ve tried before, and were smacked down by the State Supreme Court. But to the extent that it has done so already, or to the extent that the Governor thinks they did so, it needs to be nipped in the bud as soon as possible. The legislature should completely re-write the emergency powers statute to protect the people. And to protect themselves, frankly.

Freedom is Scary Livecast No. 2 – WV Delegates Jim Butler and S. Marshal Wilson

Today’s “Freedom is Scary” Livecast discussion with West Virginia patriot legislators, Marshal Wilson and Jim Butler. On our lawsuit against the WV Governor, freedom, history, the gubernatorial race, and more.

Download or listen to the audio-only Podcast version: https://thejohnbryanpodcast.podbean.com/e/freedom-is-scary-episode-2-lawsuit-against-wv-governor/

WV Governor’s proposed Travel Ban is unconstitutional

Yesterday our Governor, Jim Justice, in one of his live-stream briefings, threatened to order a travel ban of sorts, where any West Virginia resident who leaves the state will be forcibly tested for COVID-19 and quarantined. Before I even get to the potential Fourth Amendment violations which he’s proposing, the restrictions on interstate travel – that is traveling between states – is about as clear-cut of a violation as you can get.

These are his words:

Mandatory testing and quarantining when residents return to the state from out of state travel “is on the table,” Justice said.

Gov. Justice says mandatory testing and quarantining are ‘on the table’ for out of state travel after increase in COVID-19 cases and hospitalizations

The Governor in Kentucky tried this and was shot-down in federal court. Kentucky attorney, Chris Weist, sued the Kentucky Governor in federal court in response to his “travel ban,” and the Court found it to be clearly unconstitutional. The Kentucky ban “limited the reasons that Kentucky residents could leave the state and required that any person who left the state without a valid reason be self-quarantined for 14-days after their return.”

As outlined in Beshear’s two executive orders, order 2020-206 and 2020-258, individuals were only permitted to leave the state for employment, to receive or provide health care, to obtain groceries or other needed supplies, and when they were required to do so by a court order. The orders also allowed a resident to travel outside the state to assist in caring for the elderly, a minor, dependants, or vulnerable or disabled persons.

Kentucky’s Covid-19 Travel Ban Ruled Unconstitutional

The U.S. District Court for the Eastern District of Kentucky struck it down:

After careful review, the Court concludes that the Travel Ban does not pass constitutional muster. The restrictions infringe on the basic right of citizens to engage in interstate travel, and they carry with them criminal penalties.

The “‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Rose, 526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). Indeed, the right is “virtually unconditional.”Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643 (1969)). See also United States v. Guest, 383 U.S. 745, 757 (1966) (“Theconstitutional right to travel from one State to another … occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established andrepeatedly recognized.”).

Roberts v. Neace, et al., Civil Action No. 2:20-cv-054, E.D. KY., May 4, 2020.

The federal court in Kentucky went on to say that it is possible that it might be constitutional if it were less restrictive. For instance, if it was a “request,” or “guidance,” rather than something that was going to be forcibly enforced. Or at least attempted to be enforced.

The key is that restriction on travel must be narrowly tailored so as to choose the least drastic means of achieving the objective. The federal court in Kentucky gave the following examples of individuals who would be unconstitutionally affected by the Kentucky ban:

  1. A person who lives or works in Covington would violate the order by taking a walk on the Suspension Bridge to the Ohio side and turning around and walking back, since the state border is several yards from the Ohio riverbank.
  2. A person who lives in Covington could visit a friend in Florence, Kentucky (roughly eight miles away) without violating the executive orders. But if she visited another friend in Milford, Ohio, about the same distance from Covington, she would violate the Executive Orders and have to be quarantined on return to Kentucky. Both these trips could be on an expressway and would involve the same negligible risk of contracting the virus.
  3. Family members, some of whom live in Northern Kentucky and some in Cincinnati less than a mile away, would be prohibited from visiting each other, even if social distancing and other regulations were observed.
  4. Check points would have to be set up at the entrances to the many bridges connecting Kentucky to other states. The I- 75 bridge connecting Kentucky to Ohio is one of the busiest bridges in the nation. Massive traffic jams would result. Quarantine facilities would have to be set up by the State to accommodate the hundreds, if not thousands, of people who would have to be quarantined.
  5. People from states north of Kentucky would have to be quarantined if they stopped when passing through Kentucky on the way to Florida or other southern destinations.
  6. Who is going to provide the facilities to do all the quarantining?

Most, if not all, of the same examples would occur here in West Virginia, if the Governor had his way. There can be little doubt that a federal challenge would be successful. The question is, does he care?

ALSO, DON’T FORGET TO SUBSCRIBE BY EMAIL. NO SPAM, JUST POST NOTIFICATIONS.

UPDATE: the Livecast:

Also, here’s the link to the 1969 law review article I discussed:

Constitutional Protection for Freedom of Movement: A Time for Decision by Sheldon Elliot Steinbach, Kentucky Law Journal, 1969

And here’s the quote and cite for the 1849 case I mentioned:

For all the great purposes for which the Federal Government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members ofthe community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.

Smith v. Turner, 48 U.S. 7 283, 292 (1849).

UPDATE 8/18: the podcast audio from the live cast:

https://thejohnbryanpodcast.podbean.com/e/freedom-is-scary-episode-2-lawsuit-against-wv-governor/

FRIDAY FIGHT – LIVE UPDATE

LIVE AT NOON TODAY. Watch here, on Youtube Live, or an Facebook Live.

I haven’t yet begun to fight, is the theme of the week. Many fights are ongoing, and many are waiting on deck. In this video, I give an end-of-the-week update to many of the civil rights cases we’re currently fighting, as well as some of the current real civil rights issues, in my opinion, of course. Some of the thecivilrightslawyer.com blog posts from this week, in case you missed them:

Delegating our Freedom to a Czar: https://thecivilrightslawyer.com/2020…

COVID Tyranny and the Truth: https://thecivilrightslawyer.com/2020…

Radio Interview Responding to the Attorney General: https://thecivilrightslawyer.com/2020… The Imminent Eviction Wave: https://thecivilrightslawyer.com/2020…

Follow on Facebook: https://www.facebook.com/JohnBryanLaw

Note: Maryland’s highest court affirms that police can’t use the smell of marijuana to search and arrest a person

ETA: during the live cast I mentioned my hemp-law-guru who told me about the MD marijuana case. I should have mentioned, that’s Jennifer Mason, Esq. She’s the go-to person for up-to-date hemp law around the country.

The “Imminent Eviction Wave”

The Federal Housing Administration (FHA) was able to stop evictions of renters during the coronavirus pandemic. The Coronavirus Aid, Relief, and Economic Security Act (CARES) also made it unlawful for landlords to evict tenants in federally subsidized or federally backed housing. However, those protections expired on July 24.

Since governors across the country shut down the economy, many streams of income stopped. As a result, renters got behind, or stopped paying rent. Tomorrow, July 31, 25 million Americans will no longer receive their weekly $600.00 federal unemployment checks. The next round, if it happens, will likely be reduced.

West Virginia appears to be ground zero:

The analysis is based on Household Pulse Data from mid-July and it found that some states will be hit harder than others. For example, West Virginia is estimated to have the highest share of renter households facing eviction at close to 60%. Tennessee, Minnesota, Mississippi, Florida and Louisiana are all among the states set to be worst impacted with shares at 50% or higher. Elsewhere, Vermont is the state where renters will be at the lowest risk of eviction, though 22% of them will potentially lose their homes over the course of the crisis. – Forbes 

“It’s like nothing we’ve ever seen,”  said John Pollock, coordinator of the National Coalition for a Civil Right to Counsel. In 2016, there were 2.3 million evictions, Pollock said. “There could be that many evictions in August,” he said. Zero hedge

The WV Supreme Court had suspended evictions in the state (though I don’t see how that’s constitutional) but that was up on May 15. As of now, evictions may proceed. Legal Aid of West Virginia has a good self-help page set up to answer a lot of the questions.

The WV Attorney General also has published a brochure so that you know what your rights are. Just FYI.

http://ago.wv.gov/consumerprotection/Documents/Renters%27%20Rights%20Brochure.pdf

Like the Governor said, “a little overreaction never hurt anybody . . . so long as it saves one life.”

Delegating our Freedom to a Left-Wing University

I watched a little bit of the West Virginia Governor’s daily live press conference. After he finished mumbling, he introduced our “Czar,” Dr. Clay Marsh, who is apparently the person running our State (as a Czar does) this summer, and doing so in the nature of a Far East authoritarian regime. See Singapore. This is being done without any involvement of the “free people” of West Virginia, as our Constitution calls us. Nor our elected representatives.

Our “Czar” speaking to his people today during the live cast.

This is a “Czar” by the way – the first one, actually. His name was Ivan the Terrible. He ruthlessly crushed the Russian aristocracy (you know, like the billionaire coal barons) and established autocratic (dictatorship) rule in Russian, which would continue all the way through modern times.

Who is our unelected Czar? He’s the chief health officer at WVU, overseeing their hospitals and medical school. This may provide some context as to why a Red State governor is acting like a Blue State governor, in terms of unconstitutional restrictions on individual liberties. Like most other public universities in 2020, WVU is a bastion of left-wing politics which is far out of line with the conservative West Virginia populace.

Case in point: Just a few days ago at WVU, the Chief of their campus police department was participating in a Zoom meeting – apparently an “online diversity event – and onlookers observed a #thinblueline flag inside his home. Obviously this is a pro-law enforcement flag. My town has one on the official town welcome/goodbye sign, along with the civic groups and church signs. I think people misunderstand what it actually means. But in any event, it has become a symbol of support for police officers. My criticism has always been that it implies that good cops protect the bad ones. But clearly, it means just pro-police to most people. And now the volunteer fire guys and EMS guys have their own versions. There’s probably twenty types now. It’s certainly nothing you would be surprised to find in the home of a police officer, or a bumper sticker, or whatever.

The Chief and the TBL flag.

This guy wasn’t even publicly flying his flag – it was in his house. His house!

Within hours of this TBL flag being spotted in his home, WVU professors were demanding that he be fired, and he was forced (presumably) to issue an apology, which is still now prominently displayed on WVU’s website.

“I am committed to rebuilding that trust beginning today. I am taking the flag down from my office wall,” he concluded.

Literally a screenshot off WVU’s main website. Taken today.

Even after apologizing, WVU professors were still demanding his resignation. WVU’s English Department professor retweeted the apology and commented that “[t]he Blue Lives Matter flag is associated with white supremacy.”

Professor of Biochemical Genetics, Vagner Benedito, was still calling for his resignation.

Professor Benedito continued his comments, as reported by Campus Reform:

“Campus police chief is a position we all should trust. POC will not be trusting his leadership. Moving forward, he must resign to make sure there is inclusions and equality regarding the police actions on campus!” Benedito wrote.

Benedito told Campus Reform that it while it would be “ludicrous” to expect Chedester to remove the flag from his office, he does “expect the police on campus to defend everyone, including minorities,” and believes that Chedesters’ possession of the flag demonstrates his unwillingness to do so. 

“As you already know, that flag was crafted to oppose the Black Lives Matter movement, even though historically police lives have always mattered while black lives have been taken away by systematic police brutality over and over again,” Benedito said.

Benedito added that he did not find Chedester’s apology letter “convincing.”

“If he was indeed ignorant about its meaning, he should not be in a position of so much power for being so much misinformed about the current situation of the country, especially in matters involving the police,” Benedito told Campus Reform.

“To be clear, the diverse community at WVU and allies are demanding the replacement of WVU Chief Police moving forward,” Benedito said.

https://www.campusreform.org/?ID=15266

If it were me, I would have let them fire me, and then I would have sued them for retaliation against my First Amendment rights to freedom of speech. That would be a very clear case, and it would probably do well (Hint, hint). But there’s much more.

This is the same WVU that is promoting the anti-American “1619 Project,” in an attempt to destroy our history, culture, way of life, and Constitution. This is an effort led by left-wing academics and social justice warriors to “reframe” American history. Instead of America’s founding being 1776, they teach now that the date is 1619, when the first African slaves were brought to Virginia.

https://diversity.wvu.edu/resources-and-training

Never mind the inconvenient truth that the Colony of Virginia attempted to make slavery illegal in 1763, but the bill was vetoed by King George III and Parliament (hence the phrase “no taxation without representation”). In fact, the Declaration of Independence included 27 Grievances, the first of which included complaints that England had stopped American colonies from banning or restricting slavery in their colonies, including Virginia.

In case you didn’t know, the slave trade was a major component of the British economy throughout the 18th century, as well as in the early 19th century. England didn’t even abolish slavery until the 1840s, which I’m sure was wholly unrelated to the reality that the market no longer existed for the most part, due to the loss of many of their colonies in the New World.

Even well known historians are pissed about this.

Over the last few months, a number of respected historians in America have had very critical comments about the New York Times endeavor. Jarrett Stepman, author of The War on History: The Conspiracy to Rewrite America’s Past, has collected the opinions of these historians.

Allen Guelzo is a renowned historian and professor at Gettysburg College. He called the 1619 Project an example of bad history wrapped in destructive ideology. He added that it amounted to a “conspiracy theory” that is attempting to “tarnish capitalism.”

Gordon Wood is a well-known historian of the American Revolution. I have a number of his books on my shelf. He has criticized the 1619 Project in a number of interviews. He said he was surprised that the New York Times could be “so wrong in so many ways.” He is also concerned that the material is “going out into the schools with the authority of the New York Times behind it.” He fears it will “color the views of all these youngsters who will receive the message of the 1619 Project.”

James McPherson is another respected historian. He observed that the project “left most of the history out” and was appalled that it was put together by “people who did not have a good knowledge of the subject.”

The 1619 Project, by Kerby Anderson, Point of View, https://pointofview.net/viewpoints/1619-project/

But this is what WVU is pushing/teaching. Oh, there’s more. Straight off of WVU’s website:

If it isn’t clear to you that WVU is knee deep in left-wing politics and social engineering, there’s a lot more out there on the topic if you care to look. Heck, take a look at the political donations made by WVU employees since the early 90s. Almost all to Democrats.

Let’s look specifically at the WVU Health Sciences, the WVU Medical School and the WVU Health Sciences Center, who’s guiding our feeble leader at the moment:

Again, this is from 1990 to the present. Look at how politically engaged they are. And look who they support. Look who they don’t support. Do you still think there’s no politics involved here? Do you think our Governor even knows he’s being controlled by left-wing academia? And by extension we are being controlled. I suppose the term, “Czar,” isn’t necessarily subtle irony.