Here is the petition for Writ of Mandamus we filed this morning with the West Virginia Supreme Court of Appeals, asking them to force the West Virginia Governor to follow West Virginia law in choosing between the three qualified candidates presented to him by the Wayne County Republican Executive Committee to fill the vacancy in the legislature left by the resignation of Del. Derrick Evans:
Basically, the State Republican party has usurped the powers and authority of the Wayne County Republican voters, by attempting to take away their authority to choose a list of three qualified candidates to present to the Governor to fill the empty seat in the House of Delegates following the January 9 resignation of Del. Derrick Evans.
The Governor was presented with a list of three qualified candidates on January 14. He had five days to choose from the list. Instead the new Acting Chair of the West Virginia Republican Executive Committee took over the process, and created a new list – this time removing one of the three names and inserting a new name. This disenfranchises the Republican voters of the 19th Delegate District in Wayne County. The law is clear however, and places this power solely on the Wayne County Republican committee members – all duly elected by voters in their precinct.
Why is this important? Wayne County hasn’t had a Republican delegate in 100 years. Now that they’ve got one, the Governor is seeking to replace the choices of the voters with his own guy – who is an unvetted, unknown entity, since he didn’t run in the November campaign. Even more importantly, West Virginia law is clear and unambiguous that the local party (and this applies to all parties) gets to make the decision on the list of three to present to the Governor. This was put in place for a reason. To allow it to be thrown to the wayside is to allow a transfer of power from the people at the local level to some smoke-filled back room full of politicians and politicos.
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.
Election Day! Who knows what’s going to happen tonight and the next few days. Understand your state’s “Stand Your Ground” law, if it has one. And if not, understand what the self defense laws are in your state. As of January 1, 2020, 34 states have stand-your-ground laws or have expanded castle doctrine to apply beyond the home. Eight states have expanded castle doctrine to motor vehicles or the workplace.
“There is nothing so likely to produce peace as to be well prepared to meet an enemy.”
– George Washington
“The right of self-defense never ceases. It is among the most sacred, and alike necessary to nations and to individuals.”
– James Monroe, Second annual message to Congress, November 16, 1818
“Our nation was built and civilized by men and women who used guns in self-defense and in pursuit of peace. One wonders indeed, if the rising crime rate, isn’t due as much as anything to the criminal’s instinctive knowledge that the average victim no longer has means of self-protection.”
– Ronald Reagan
The criminal does not expect his prey to fight back. May he never choose you, but, if he does, surprise him.
– Jeff Cooper
“Though violence is not lawful, when it is offered in self-defense or for the defense of the defenseless, it is an act of bravery far better than cowardly submission.”
– Mahatma Gandhi
Standard castle doctrine states that a person in his or her own home does not have a duty to retreat prior to using force, including deadly force, in self-defense.
‘STAND YOUR GROUND’ LAW
A stand-your-ground law varies by state, and generally provides that people may use deadly force when they reasonably believe it to be necessary to defend against a threat of death, serious bodily harm, and other serious crimes, differing slightly between states, without there being a duty to retreat before using such deadly force in self-defense.
It is generally required that the individual who is standing his ground be in a place where he or she is lawfully present. Stand-your-ground laws generally cannot be invoked by someone who is the initial aggressor, or who is otherwise engaged in criminal activity. The exact details vary by jurisdiction.
YE OLD DUTY TO RETREAT
The alternative to stand your ground is “duty to retreat.” In states that implement a duty to retreat, even a person who is unlawfully attacked (or who is defending someone who is unlawfully attacked) may not use deadly force if it is possible to instead avoid the danger with complete safety by retreating.
Even duty-to-retreat states generally follow the “castle doctrine,” under which people have no duty to retreat when they are attacked in their homes, or (in some states) in their vehicles or workplaces.
BREAKDOWN OF STATES
Laws in at least 25 states allow that there is no duty to retreat an attacker in any place in which one is lawfully present.
(Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.)
At least ten of those states include language stating one may “stand his or her ground.” (Alabama, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Oklahoma, Pennsylvania and South Carolina.)
Pennsylvania’s law, amended in 2011, distinguishes use of deadly force outside one’s home or vehicle. It provides that in such locations one cannot use deadly force unless he has reasonable belief of imminent death or injury, and either he or she cannot retreat in safety or the attacker displays or uses a lethal weapon.
Idaho’s law, passed in 2018, expanded the definition of justifiable homicide to include not only defending one’s home against an intruder, but also defending one’s place of employment or an occupied vehicle.
Self-defense laws in at least 23 states (Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee West Virginia and Wisconsin) provide civil immunity under certain self- defense circumstances.
Statutes in at least six states (Hawaii, Missouri, Nebraska, New Jersey, North Dakota and Tennessee) assert that civil remedies are unaffected by criminal provisions of self-defense law.
*In 2018, the Ohio House and Senate voted to override the Governor’s veto of House Bill 228. The bill places the burden of disproving a self-defense claim on the prosecution.
WEST VIRGINIA, SPECIFICALLY:
West Virginia is a “stand your ground state,” and does not require a person to retreat before using force, including deadly force:
(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
W. Va. Code § 55-7-22(a)-(d).
Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances:
– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony;
– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force.
W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012).
STILL NO BOOBY TRAPS:
Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g).
Since I mentioned the event on the Tom Roton Radio Show this morning and referred people to this site for more information, I guess I better post some information. Don’t miss this event. This will be the 2nd LIVE video with me and Marshall Wilson. This coming Monday, October 12, 2020, from 5:00-7:00 pm we will be live in person, and live on live stream at this Youtube link:
Marshall will be taking any and all questions. I’ll make sure that he answers questions coming across Youtube as well. Actually also Facebook, once I get the link up. This will take place outside my Lewisburg, West Virginia office, located on Court Street in downtown Lewisburg, West Virginia (directly across the street from the Lewis Theater). The actual address is 860 N. Court Street, Lewisburg, West Virginia 24901.
Here’s the audio from my radio appearance this morning on the Tom Roton Radio Show:
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.
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.
You probably saw the news that the tech giants are censoring the doctors from the capitol hill press conference yesterday. But, you may have missed the fact that a few days ago a leading researcher – HARVEY A. RISCH, MD, PHD , Professor of Epidemiology at Yale School of Public Health – published an op-ed in Newsweek about a politically-suppressed paper he recently published in the American Journal of Epidemiology. Dr. Risch gave us the astonishing news that we basically already have what amounts to successful and inexpensive cure to COVID-19! But because of politics and corporate greed, the cure (and his research) is being suppressed. I mean, why stop thing now that the governors are just getting their groove on? Am I right?
As professor of epidemiology at Yale School of Public Health, I have authored over 300 peer-reviewed publications and currently hold senior positions on the editorial boards of several leading journals. I am usually accustomed to advocating for positions within the mainstream of medicine, so have been flummoxed to find that, in the midst of a crisis, I am fighting for a treatment that the data fully support but which, for reasons having nothing to do with a correct understanding of the science, has been pushed to the sidelines. As a result, tens of thousands of patients with COVID-19 are dying unnecessarily. Fortunately, the situation can be reversed easily and quickly.
Dr. Risch was flabbergasted that the success of the highly inexpensive Hydroxychloroquine treatment was being downplayed in favor of some potential future vaccine, which no doubt is going to be extremely expensive and difficult to obtain.
On May 27, I published an article in the American Journal of Epidemiology (AJE) entitled, “Early Outpatient Treatment of Symptomatic, High-Risk COVID-19 Patients that Should be Ramped-Up Immediately as Key to the Pandemic Crisis.” That article, published in the world’s leading epidemiology journal, analyzed five studies, demonstrating clear-cut and significant benefits to treated patients, plus other very large studies that showed the medication safety.
Any time I express doubt about the premise that we have to live forever in a “new normal” with restricted liberty and rights, I get mocked for not being an epidemiologist. Well here’s an epidemiologist for you:
Physicians who have been using these medications in the face of widespread skepticism have been truly heroic. They have done what the science shows is best for their patients, often at great personal risk. I myself know of two doctors who have saved the lives of hundreds of patients with these medications, but are now fighting state medical boards to save their licenses and reputations. The cases against them are completely without scientific merit.
He explained that he believes (and this is a shocker) that politics have been injected into what should be a basic medical discussion:
Why has hydroxychloroquine been disregarded?
First, as all know, the medication has become highly politicized. For many, it is viewed as a marker of political identity, on both sides of the political spectrum. Nobody needs me to remind them that this is not how medicine should proceed. We must judge this medication strictly on the science.
And the results are continuing to look good for this inexpensive treatment:
Since publication of my May 27 article, seven more studies have demonstrated similar benefit. In a lengthy follow-up letter, also published by AJE, I discuss these seven studies and renew my call for the immediate early use of hydroxychloroquine in high-risk patients. These seven studies include: an additional 400 high-risk patients treated by Dr. Vladimir Zelenko, with zero deaths; four studies totaling almost 500 high-risk patients treated in nursing homes and clinics across the U.S., with no deaths; a controlled trial of more than 700 high-risk patients in Brazil, with significantly reduced risk of hospitalization and two deaths among 334 patients treated with hydroxychloroquine; and another study of 398 matched patients in France, also with significantly reduced hospitalization risk. Since my letter was published, even more doctors have reported to me their completely successful use.
Want to read the paper for yourself? Here it is. This is the “abstract” summarizing the paper’s research and findings. The research itself, albeit with watermark, follows:
More than 1.6 million Americans have been infected with SARS-CoV-2 and >10 times that number carry antibodies to it. High-risk patients presenting with progressing symptomatic disease have only hospitalization treatment with its high mortality. An outpatient treatment that prevents hospitalization is desperately needed. Two candidate medications have been widely discussed: remdesivir, and hydroxychloroquine+azithromycin. Remdesivir has shown mild effectiveness in hospitalized inpatients, but no trials have been registered in outpatients. Hydroxychloroquine+azithromycin has been widely misrepresented in both clinical reports and public media, and outpatient trials results are not expected until September. Early outpatient illness is very different than later hospitalized florid disease and the treatments differ. Evidence about use of hydroxychloroquine alone, or of hydroxychloroquine+azithromycin in inpatients, is irrelevant concerning efficacy of the pair in early high-risk outpatient disease. Five studies, including two controlled clinical trials, have demonstrated significant major outpatient treatment efficacy. Hydroxychloroquine+azithromycin has been used as standard-of-care in more than 300,000 older adults with multicomorbidities, with estimated proportion diagnosed with cardiac arrhythmias attributable to the medications 47/100,000 users, of which estimated mortality is <20%, 9/100,000 users, compared to the 10,000 Americans now dying each week. These medications need to be widely available and promoted immediately for physicians to prescribe.
Abstract, Early Outpatient Treatment of Symptomatic, High-Risk Covid-19 Patients that Should be Ramped-Up Immediately as Key to the Pandemic Crisis American Journal of Epidemiology, kwaa093, https://doi.org/10.1093/aje/kwaa093 Published: 27 May 2020
So with the West Virginia legislature out of session, and apparently willing to sit this “once-in-our-lifetimes” emergency out, who’s responsibility is it to sort through the facts? Do West Virginians have access to Hydroxychloroquine? Are our medical “Czars” who are making the decisions about whether our businesses get closed or not, reviewing all of the data? Or are they just playing politics?
Do you see why our wise forefathers gave us a system of representative Democracy? We have decision-makers, who have little microphones at their seats so they can argue with each other over disputed facts and policy, with hand little rule-books so that the process is organized. They’re called our delegates, and our senators. We elect them to act on our behalf. And in return they will be accountable to us. Right now nobody is accountable.
“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.” – Thomas Paine.
Why do we have a hysterical governor trying to shut down our economy again, which he’s not allowed to do in the first place? Look at the current death rate statistics by state of COVID-19: West Virginia is way down at the bottom, along with Wyoming, Montana and Alaska. Of course diagnoses will rise with the exponential increase in testing going on. But show me the death rate. Look at the restrictions in New York, New Jersey, or Michigan, who have required masks and every other restriction you can think of, and their death rates are sky-high. I thought we had a vulnerable population? That’s what the Governor said before he issued his unconstitutional “Stay at Home Order.” So if we’ve gotten so many cases, and we’re so vulnerable, why are we at the bottom of the list (along with the other low population rural states) for death rate per 100,000 people?
Our Dear Leader appointed a doctor from WVU as our COVID Czar during this so-called State of Emergency. You’ve seen the same types on the cable news. We didn’t elect doctors from WVU, or anywhere else, to authorize them to control our lives, or take our property without due process. Who do you think stands to gain from all this, in research grants, employment opportunities, profit, and so on? What’s in it for them? Can they just cause the governor to go all hysterical and tyrannical with no questions being asked? With no representation on our behalf? Where are all of our legislators? We are now living in a perpetual “State of Emergency.” Just how many months does a State of Emergency last before the legislature does its job?
Our legislators should be asking questions. The medical industry is going to make a fortune off of COVID-19. This is the same bunch, coupled with their benefactors in government, who charge us astronomical prices for common drugs. They require diabetics, who need insulin to live, to keep having to pay to see a doctor avery few months in order keep renewing their prescriptions. Why? Why in the hell should a diabetic need to renew their prescription for insulin just so some doctor can get their cut every few months? You think the lawyers are bad? The medical system is way worse than the legal system, as far as corruption and conflicts of interest go. Remember our very own Sen. Manchin’s daughter increasing the price of the epipen so high that most people could no longer afford it?
The governor is relying on WVU doctors to tell us what rights we get to have? This is the same WVU that prescribed my wife physical therapy for her shoulder, instead of a necessary surgery which could have saved her shoulder function. When we decided to leave the State medical system and go to UVA, they were flabbergasted at the incompetence of the purported best shoulder surgeon at WVU. The shoulder specialist at UVA took an MRI and was astounded. Immediately, being a teaching hospital, he gathered all the students to look at the MRI film. They’d never seen such a bad tear of anyone’s shoulder. Even the specialist had to bring in a sub-specialist to do the surgery. The shoulder was torn in three places. Her bicep was practically hanging by a thread. That was a Thursday, and she was in surgery on Monday. Yet at WVU, the snotty orthopedic surgeon basically told her to toughen up and quit complaining. He spent maybe 5 minutes with her in total, as opposed to the UVA surgeons, who spent probably hours with her.
We didn’t elect them. Maybe they’re right; maybe they’re not. But we didn’t elect them. And even if we did, the executive branch doesn’t enact laws. Our representatives do. Who need to either do their job, or resign. How many more months are we going to allow one governor to rule our state under a State of Emergency? Our State Constitution specifically provides that it will never been suspended – even in a time of war. So why is it suspended?
I know, I know, I’m not allowed to have an opinion because I’m not an epidemiologist, virologist, or other profession which is about to increase in funding levels…. If medical professionals are never wrong, then why are medical mistakes, made by medical professionals, the third leading cause of death in the U.S., causing at least a quarter million deaths per year?
“People don’t just die from heart attacks and bacteria, they die from system-wide failings and poorly coordinated care,” says the study’s lead author, Dr. Martin Makary, a professor of surgery and health policy at Johns Hopkins University School of Medicine. “It’s medical care gone awry.”
The magnitude of the death toll – roughly 10 percent of U.S. deaths annually – is striking coming, as it does, in an era dominated by efforts to reform the health system to ensure safe, high quality, high-value medical care. Patient safety efforts have failed to gain much traction, Makary says, because there’s no systematic effort to study medical errors or to put effective safeguards in place.
“Throughout the world, medical error leading to patient death is an under-recognized epidemic,” Makary and his co-author, Dr. Michael Daniel, also of Johns Hopkins, write in Tuesday’s British Medical Journal. They define medical errors as lapses in judgment, skill or coordination of care; mistaken diagnoses; system failures that lead to patient deaths or the failure to rescue dying patients; and preventable complications of care.
See Medical Errors Are Third Leading Cause of Death in the U.S., US News Magazine, May 3, 2016. Are doctors infallible? Do doctors even know what the hell they’re talking about yet, based on actual empirical evidence about the COVID-19? No. For all we know, they could be guessing, or playing politics.
I’m not trying to knock doctors. I don’t do medical malpractice. My own father is an orthopedic surgeon, who has spent his life wearing masks, and also bathing in people’s blood (figuratively speaking, lol). But those were always new masks every time. He wasn’t walking around with one constantly, or driving around with one on. Nor organizing his life around it. Tell him about the new cases daily, and he’ll say: show me the death rate. The more you test, the more cases you’ll have.
If it’s really an epidemic, we’ll all get it at some point. Who among us has never had the flu? The most important part of the entire ordeal is, but yeah, did we die? Some will. But I also heard a story while in court this morning, about a guy who got his penis disintegrated in an electrical accident. Shit happens. We move on with our life. None of this is a reason (nor could there ever be a sufficient reason) to end the great experiment in freedom that is America. People have never been safer from death, nor more prosperous, in the entire history of the Earth.
In an obese, unhealthy state, as West Virginia is, why isn’t the Governor concerned with the almost 5,000 deaths per year in our state alone due to heart disease? I’m sure he could think of all sorts of executive orders which actually could help that problem, assuming it were legal for him to do so. He could be like Michael Bloomberg: No 32 ounce sodas (or “pop” as West Virginians generally call it); No more Mountain Dew (the pop, not the sweet nectar of mountain life) because it rots your teeth worse than the meth. Pepperoni rolls could have a mandatory minimum jail sentence. Would these restrictions save lives? Yes. We could have all Michelle Obama school lunches and Michael Bloomberg dinners, and it would no doubt save lives, in the context of heart disease prevention and treatment.
At some point, we’re going to have to say that enough is enough. I’m told that people are about to start getting fired, as well as getting arrested, based on the choice to not wear a mask. All based on the decision of the Governor. We’ll see what happens . . . .
As the attorney for the pending lawsuit against the West Virginia Governor which challenges his executive actions in response to COVID-19, people have asked for my reaction to today’s new mandatory requirement that the peasants of West Virginia are now required to wear masks in public and private buildings.
So it requires masks to be worn in any building outside one’s home, whether publicly or privately owned, unless you’re under the age of 9, have some medical reason which excepts you, or if you’re eating food, or drinking a beverage, or if you are able to “socially distance.” It even seems to allow a Halloween mask to qualify as appropriate under the order. I’m sure he’ll cancel Halloween, so that might be one diamond in a sea of rough (that we can at least use the masks – not that he’ll rob us of Halloween, even though we never needed his permission any of the past Halloweens). It seems to be a situation where the exception is swallowing most of the rule. How do you even enforce such a mandate without definitions of the terms?
I’d love to sue over this, but I highly doubt anyone gets arrested. As such, our currently pending lawsuit probably sufficiently covers this. Even though it’s not an exciting argument, it’s a very clear and simple violation of our State Constitution. We have a tri-cameral form of Republican government. The legislature enacts laws. The governor signs, or vetoes, the laws they enact, and the judicial branch reviews both of their actions to keep them within the confines of the Constitution.
Here, the Governor has unilaterally enacted a new law. You can’t go in a store or any structure other than your own home, unless you’re wearing a mask – even if the mask is useless and pointless. In the end, what’s going to happen here? What’s the point? The Governor gets to do his mask thing, like some of the other governors, and also create some news, appease the numerous Karens on Facebook, who are absolutely terrified to death over everything. And who is going to bear the brunt of attempting to enforce it? I can almost guarantee the police are not going to do a darned thing here. At least I wouldn’t. It will be small businesses across the State who will be forced to decide what to do with this.
Do I close my store? Do I make someone leave if they’re not wearing a mask? What if they say they have a medical reason not to wear one? Is the liability and hassle even worth it? As a shopper, do I just give up on shopping locally and just go back to ordering online? Hell, you can order entire meals now, delivered in a box. As with the other illegal laws he enacted without the legislature, it’s the small businesses that will suffer. And the cherry on the cupcake is the fact that they’ve had no representation. They can’t complain to their elected representatives, because they’ve been powerless – themselves excluded from the entire process.
But, you ask, why is this such a big deal? Do you complain about wearing a seatbelt in your car? Do you know obey the posted speed limits? Do you not use a child safety restraint in your car? Here’s my answer to that. For instance, W. Va. Code Section 17C-15-46, entitled “Child Passenger Safety Devices Required; Child Safety Seats and Booster Seats, is a part of the huge set of written laws by which we’re all bound here in West Virginia, called the “West Virginia Code.” This is the mountain of rules created by our legislature, and signed by past governors. This is what makes it illegal to not drive a little kid around without a children’s car seat. There are many others, requiring the use of seatbelts, helmets on motorcycles, and so on.
Here is the law itself:
W. Va. Code §17C-15-46 provides that:
Every driver who transports a child under the age of eight years in a passenger automobile, van or pickup truck other than one operated for hire shall, while the motor vehicle is in motion and operated on a street or highway of this state, provide for the protection of the child by properly placing, maintaining and securing the child in a child passenger safety device system meeting applicable federal motor vehicle safety standards: Provided, That if a child is under the age of eight years and at least four feet nine inches tall, a safety belt shall be sufficient to meet the requirements of this section.
Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $10 nor more than $20….
So, who decided that child safety seats were necessary, and that children under the age of 8 required one? After all, maybe it should be age 10 and under… or maybe age 7….. The answer is, your elected representatives in the legislature. That’s who. Our legislators are supposed to debate things, right? And then vote on it. Contrast the child safety seat law with today’s new mask law: ages 10 and over have to wear one. Because, safety.
I’m not seeing the difference. The State Constitution provides that the Governor can call the legislature into session if he thinks some new immediate legislation needs to be considered. Our State legislature has not met one time, nor considered one fact or piece of legislation, since the whole COVID crisis began. The Governor has had months and months to do so. But he hasn’t. Why? Because what King in history has ever given up power unnecessarily?
Whatever happened to “The Comeback.” We were “West Virginia Strong” (which he stole from the 2016 flood relief response) and also at some point heading down some confusing and nonsensical phase of “The Comeback,” but now we have to wear masks? The last executive order was opening the State to fairs and festivals…. What the heck? As Zoolander would say, “West Virginia Strong? More like West Virginia weak!” Or, “Montani Semper Liberi? More like Montani Semper Servus.”
Is it a coincidence that, of all the days the Governor does this that Time Magazine reports that Governor Justice’s businesses have received millions of dollars of COVID relief packages?
Billionaire West Virginia Gov. Jim Justice’s family companies received at least $6.3 million from a federal rescue package meant to keep small businesses afloat during the coronavirus pandemic, according to data released by the Treasury Department on Monday.
Justice acknowledged last week that his private companies received money from the program but said he did not know specific dollar amounts. A representative for the governor’s family companies did not immediately return an email seeking comment.
This rings a bell for me. I represented at least one casino-business creditor, who had long been owed money for services already performed by the governor’s casino. We sent a letter threatening to sue. The money just happened to finally come in right about the time the PPP loan cash arrived. I’m not saying it’s aliens, but . . . .
So he’s both making the laws all by himself, and also cashing in on the laws he’s making. No wonder he’s not interested in calling the legislature in. Our case challenging his prior executive orders, which were incorporated into this one in the prefatory clauses, remains pending before the West Virginia Supreme Court. We could still win that case, as they haven’t ruled yet.
If you want to review our case, as well as the Governor’s response, here’s the link, though it’s just a few posts down: