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.

COVID Tyranny: the truth, and why we need our elected representatives to do their job

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.

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
A screenshot of Dr. Risch’s profile on Yale’s website.

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.

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
A description of Dr. Risch’s experience on Yale’s website.

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.

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535

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. 

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535

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.

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535

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

Read it for yourself:

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.

West Virginia Supreme Court Denies our COVID Executive Order Lawsuit

So, we just received this order from the West Virginia Supreme Court in my email inbox.They denied our Petition for Writ of Mandamus. No explanation was given. That’s unfortunate. I spent 40 pages explaining why the Governor’s orders violated the State Constitution. So far nobody has explained why I’m wrong.

This is the end of the line for the petition for a writ of mandamus. It will be up to my clients, but we could seek injunctive relief from a state circuit court. Of course that will end up back at the Supreme Court either way it goes.

I’ll keep my glass half full and assume that they only denied it because they want us to take it to a trial court first, so they can rule on an appeal of a circuit court judge, rather than in the context of an original jurisdiction writ of mandamus. I’m looking at federal options as well on behalf of some private businesses who were victimized by this tyranny.

ATV laws in West Virginia and McDowell County, W. Va.

So a few days ago, I represented a guy down in McDowell County, West Virginia, on a misdemeanor charge of driving on a two-lane road in an ATV/UTV/side-by-side. West Virginia law allows you to do this. But apparently there is confusion, or ignorance, in the local sheriff’s department and/or prosecutor’s office. We were forced to have a trial, which resulted in a not guilty verdict. Here’s the actual criminal complaint charging my client with the non-crime of operating an ATV on a two-lane road in West Virginia:

Clearly this police officer was wrong about the law.

W. Va. Code Section 17F-1-1 allows ATVS to:

  1. Operate on any single lane road (most roadways in rural West Virginia).
  2. Operate on a two-lane road for a distance of 10 miles or less, so long as the ATV it is either on the shoulder of the road, or as far to the right on the pavement as possible if there is insufficient shoulder to ride on, and at a speed of 25 mph or less, in order to travel between “a residence or lodging and off-road trails, fields and areas of operation, including stops for food, fuel, supplies and restrooms.” If operated at night, an ATV must be equipped with headlights and taillights, which must be turned on – obviously. Read it for yourself, here: https://www.wvlegislature.gov/WVCODE/Code.cfm?chap=17f&art=1

So, slightly confusing and a few grey areas, but if you’ve been around the Hatfield & McCoy Trails, you know that it’s necessary to use a two-lane road at times to get where you need to go on an ATV. And in other counties, where there are no Hatfield & McCoy Trails, we still need to go down two-lanes at times to get from one place we’re allowed to ride, to another (whether farms/fields/one-lanes/gas stations, etc.)

Me negotiating down a black diamond trail in the Hatfield & McCoy Trail system. Pocahontas Section, I believe.

Unfortunately however, when we arrived to court on this particular case, the prosecutor looked at me in amazement when I told her that the client hadn’t committed a crime, even assuming all the allegations in the criminal complaint are true. She said dismissively that the client could plead guilty and pay the fines. Of course, I said, “no way, Jose.”

So we had a trial. During the trial, the charging police officer testified that no ATVs are ever allowed to be on a two-lane road, and that his supervisor instructed him, in accordance with this, to “clear” ATVs from the roads, because the Hatfield & McCoy system was closed by the Governor due to COVID-19.

But that has nothing to do with the statute. The Governor can’t change the ATV laws by executive order; nor did he attempt to. Accessing the H&M trails isn’t the only reason ATVs are used in West Virginia. The officer cited 17F-1-1 as his legal authority to “clear the roads.” But in reality, the law still says what it says. Therefore, the magistrate judge correctly found my client not guilty.

There had been no allegations of unsafe or improper operation of the ATV – just that he was on a double yellow line. The officer testified that he didn’t know where the client was coming from – nor where he was going. He had no evidence that my client had been illegally operating on the H&M trail system. The complaint itself corroborates this. It didn’t mention anything other than the fact that he caught him on a two-lane.

However, there were facts pertaining to the officer’s conduct. He got angry and took the citation back, after the mayor of the town where this occurred – Northfork – apparently said that ATVs were welcome and allowed in her ATV-friendly town. Muttering the “F word,” the officer left the city hall, confiscated citation in hand. The testimony at trial was that about an hour later, the officer showed up at my client’s residence – the client wasn’t even home at the time – and threw the citation inside the empty, parked ATV in the driveway. That wasn’t the reason for the not guilty verdict, just a bizarre way to re-issue a ticket. But in any event, it was a non-crime, so the verdict was rightly “not guilty.”

Following the trial, I posted on Facebook that my client had been found not guilty, and that the Governor’s tyrannical executive orders had no effect on the state’s ATV laws, and expressed disbelief that the local sheriff’s department and prosecutor’s office would hassle ATV riders, when that’s really the only thing the local economy has going for it at this point. Did I bash a county by saying this? No, facts are facts. I said nothing about the county, unless you’re referring to the sheriff’s department and the prosecutor’s office prosecuting an innocent man for a non-crime.

Let’s look at the facts though…..

To argue that McDowell County doesn’t have a crisis economy is to stick your head in the sand. Pointing this out is not bashing, nor exploiting, the county. Anyone who makes such an accusation, is either ignorant, or a willing propagandist. Hell, in 1963 – I’ll repeat: 1963 – President John F. Kennedy said:

I don’t think any American can be satisfied to find in McDowell County, West Virginia, 20 or 25 percent of the people of that county out of work, not for 6 weeks or 12 weeks, but for a year, 2, 3, or 4 years.

The situation has only worsened there. McDowell County has been classified as a “food desert” by the USDA. In 2017, there were two full-sized grocery stores serving the county’s 535 square miles. The only Walmart super center in the county closed in 2016 Coyne, Caity (April 7, 2018). “In McDowell County ‘food desert,’ concerns about the future”Charleston Gazette-Mail. Retrieved January 19, 2020. I don’t know that I’ve ever seen another closed Walmart anywhere in the country.

Vacant Walmart building in Kimble, W.Va.
CREDIT ROXY TODD/ WVPB; https://www.wvpublic.org/post/what-happens-when-walmart-closes-one-coal-community#stream/0

State officials estimate that there are between 5,000 to 8,000 abandoned homes and buildings in McDowell County alone that need to come down. Legislation was introduced this year to fund the removal of many of these “blight” areas. See https://www.register-herald.com/opinion/editorials/editorial-removing-blight-swope-s-measure-important-to-west-virginia/article_6d4359cf-8b21-5430-9769-2f874e8fee9b.html They’ve been working on this for years. From a newspaper article from 2015:

WELCH — For years, it has been difficult for McDowell County officials to recognize the obvious fact that deserted and dilapidated structures countywide represent a negative image for visitors to the county.

“U.S. Route 52 is the gateway to our county,” Harold McBride, president of the McDowell County Commission said during a press conference Friday morning at the McDowell County Public Library in Welch. “It looks like a Third World country,” he said and added that most of the dilapidated buildings are owned by people who live outside the state and “think they have something.”

https://www.bdtonline.com/news/officials-and-coal-operators-work-to-remove-blighted-structures/article_e4961188-00f9-11e5-86d4-4b27287a4886.html?mode=jqm

From the Charleston Gazette in 2013:

There were 100,000 people in McDowell County in 1950. Today, there are about 22,000 residents,” Altizer said.From 2000 to 2010, McDowell County’s population dropped by nearly 20 percent, from 27,329 people to 22,064 people, according to the U.S. Census Bureau.”It is so sad we are losing so much population. Half of our homes are on homestead exemption, which lowers property taxes for people who are over 65 or disabled,” Altizer said during a recent interview in the McDowell County Courthouse.Today, Altizer said, most income to county residents come from coal and natural gas jobs, or from checks retired people receive — Social Security, black lung, the Veterans Administration and United Mine Workers.”The monthly West Virginia Economic Survey prepared by Workforce West Virginia recently reported there were about 6,000 people working in the county, many of them with government jobs or fast-food jobs. We have an older population today. And there are not new jobs here,” Altizer said.”Coal and gas are keeping us going. 

https://www.wvgazettemail.com/business/mcdowell-county-fighting-long-term-decline/article_cb381937-e129-59fd-8d7d-f1fb88dbe6a1.html

Here’s an interesting article, with photos from an actual photographer, rather than the few I snapped with my obsolete iPhone. Take a look for yourself and determine if the few pictures I snapped were somehow misleading about the blight in the county:

https://architecturalafterlife.com/2018/01/12/welcome-to-welch/

From the article:

This decline in work lead to the creation of modern era food stamps. The Chloe and Alderson Muncy family of Paynesville, McDowell County were the first recipients of modern day food stamps in America. Their household included 15 people. The city of Welch, and crowds of reporters watched as Secretary of Agriculture Orville Freeman delivered $95 of federal food stamps to Mr. and Mrs. Muncy on May 29, 1961. This was an important moment in history, as it was the first issuance of federal food stamps under the Kennedy Administration. This federal assistance program continued to expand for years to come, and is commonly used across the United States today.

https://architecturalafterlife.com/2018/01/12/welcome-to-welch/

Fortunately for the county, in 2018, the state opened two new trail connections in McDowell County. From a May, 2018 newspaper article:

WELCH — Two new ATV trail connections opening today in McDowell County will give visitors direct access to the city of Welch and the town of Kimball, the Hatfield-McCoy Regional Recreation Authority’s executive director said Tuesday.

“As of in the morning (today), we’ll have the town of Kimball and the city of Welch will be connected to the Hatfield-McCoy Trail in the Indian Ridge system,” Executive Director Jeffrey Lusk said. “This will allow riders of the trails to go into those communities to get food and fuel and to stay. These are two new towns that weren’t on the system. Up until today, the only two towns that were connected were Northfork and Keystone….

The new Warrior Trail will connect with Gary and Welch. ATV riders will be able to travel from the town of Bramwell to the town of War starting on Labor Day, he added. More lodging opportunities are needed to help McDowell County’s communities benefit from the increase ATV tourism traffic.

“We’re opening the Warrior Trail System up on Labor Day Weekend,” Lusk said. “We’re in desperate need of places to stay in War, Gary and Welch come Labor Day Weekend.

Tourism traffic continues to grow on the Hatfield-McCoy Trail’s overall system, Lusk stated. Last year, overall permit sales were up by 15.1 percent, and both Mercer and McDowell Counties had the highest growth in sales. 

https://www.bdtonline.com/news/new-trail-links-opening-on-hatfield-mccoy/article_6d82ce36-5e22-11e8-a13b-a3912708cd04.html

Being an ATV rider myself, I know first hand how the community benefits from the ATV economy. Local entrepreneurs now have opportunities to open ATV resorts, restaurants, and other businesses, which cater to ATV riders. ATV riders bring money. These new ATVs are 15-30k vehicles, each, when it comes to the side-by-sides, and not far off from that for the individual four wheelers. Watch them drive in. They’re driving 70k trucks, pulling 10k trailers, in many instances. They’ve invested heavily in the hobby. They spend money, not only on their equipment, but on food, lodging, gas, and so on. And they come from all over. I’ve even seen guys who drove all the way from Mexico to ride these trails.

Riding somewhere down there….

Some of them even invest in local real estate, such as the client I represented in this case, who loved the community so much, he bought his own place. But go on and attack me for daring to “bash” McDowell County…. So let’s continue with some facts, instead of knee-jerk emotion.

What are some of the side effects of the economic problems?

Of 3,142 counties in the U.S. in 2013, McDowell County, West Virginia ranked 3,142 in the life expectancy of both male and female residents. See http://www.healthdata.org/sites/default/files/files/county_profiles/US/2015/County_Report_McDowell_County_West_Virginia.pdf,; see also https://en.wikipedia.org/wiki/McDowell_County,_West_Virginia

 Males in McDowell County lived an average of 63.5 years and females lived an average of 71.5 years compared to the national average for life expectancy of 76.5 for males and 81.2 for females. Moreover, the average life expectancy in McDowell County declined by 3.2 years for males and 4.1 years for females between 1985 and 2013 compared to a national average for the same period of an increased life span of 5.5 years for men and 3.1 years for women…..

Then there’s the drug problem. In 2015, McDowell County had the highest rate of drug-induced deaths of any county in the U.S., with 141 deaths per 100,000 people. The rate for the U.S. as a whole is only 14.7 deaths per 100,000 people. (Same citation).

So back to my original point. There’s 99 problems there, and ATVs ain’t one of them. So why hassle ATV riders when they’re bringing money, jobs and fun into the local economy?

Again, ATVs are allowed on single lane roads in West Virginia, and are also allowed on two-lane roads, to get from one place they’re allowed to operate, to another place they’re allowed to operate, so long as it’s a distance of 10 miles or less, and so long as they operate on the shoulder, or as far as the right as possible, and under the speed of 25 mph. Counties and cities in West Virginia are granted the authority by the legislature to increase ATV freedoms. Other than interstate highways, they can authorize ATVs to use two lanes within their jurisdictions with no restrictions whatsoever. That would be what signage would refer to as being “ATV Friendly.”

That’s the law anyways. Whether or not law enforcement and prosecutors in any particular county care or not…. well that’s a different issue.

“Possession” as a Crime. Beware the do-gooders.

It’s been in the news the past few days, that the West Virginia Legislature is considering a bill which would legalize marijuana in the state. Introduced by the Democrats, it’s been the subject of knee-jerk criticism by many who claim to have conservative principles. This is yet another illustration of how many so-called conservative politicians misunderstand the conservative principle of “less government,” and even more importantly, the obscure concept of “liberty.”

Now, I have no desire to smoke anything but cigars, but stop and think for a moment . . . . Speaking of liberty, I wonder how Patrick Henry, George Washington, Benjamin Franklin,  or Alexander Hamilton, would have felt about the prospect of a legislature enacting laws criminalizing the possession of a particular plant? What about the criminalization of any object, just in general?

The Constitution, which all elected politicians took an oath to defend, and which all lawyers and judges took an oath to defend, was ratified in 1788. As of 1790, we had exactly thirty (30) federal crimes on the books. See Crimes Act of 1790. The crimes at that time were treason, misprision (concealing) of treason, piracy, counterfeiting (manufacturing), interference with diplomatic immunity, passport obstruction or assault on an ambassador, murder, manslaughter, mayhem (unlawfully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose or a lip, or cut off or disable any limb or member of any person….), larceny, misprision (concealment) of felony, obstruction of dissection, corruption of judicial records, perjury and subornation, judicial bribery, obstruction of judicial process, and prison break.

In 18th century, and early 19th century western civilization, criminalization of the possession of objects, drugs, alcohol, etc., was not a thing at all. On the other hand, the outlawing of drug and alcohol possession had long been a central component of Sharia Law, and Muslim dictatorships, as well as in regimes in the Far East:

The prohibition on alcohol under Islamic Sharia law, which is usually attributed to passages in the Qur’an, dates back to the 7th century. Although Islamic law is often interpreted as prohibiting all intoxicants (not only alcohol), the ancient practice of hashish smoking has continued throughout the history of Islam, against varying degrees of resistance. A major campaign against hashish-eating Sufis was conducted in Egypt in the 11th and 12th centuries resulting among other things in the burning of fields of cannabis . . . .

A number of Asian rulers had similarly enacted early prohibitions, many of which were later forcefully overturned by Western colonial powers during the 18th and 19th centuries. In 1360, for example, King Ramathibodi I, of Ayutthaya Kingdom (now Thailand), prohibited opium consumption and trade. The prohibition lasted nearly 500 years until 1851, when King Rama IV allowed Chinese migrants to consume opium. While the Konbaung Dynasty prohibited all intoxicants and stimulants during the reign of King Bodawpaya (1781–1819). As the British colonized parts of Burma from 1852 they overturned local prohibitions and established opium monopolies selling Indian produced opium.

In late Qing Imperial China, opium imported by the British East India Company was consumed by all social classes in Southern China. Between 1821 and 1837, imports of the drug increased fivefold. The drain of silver to India and widespread social problems that resulted from this consumption prompted the Chinese government to attempt to end the trade. This effort was initially successful, with the destruction of all British opium stock in June 1839 (see Destruction of opium at Humen). However, to protect their commerce, the British declared war on China in the First Opium War. China was defeated and the war ended with the Treaty of Nanking, which protected foreign opium traders from Chinese law.

The first modern drug law in the western world was in England in 1868.  The first law against drug possession in the U.S. wasn’t until 1875, from San Francisco, where it was attempted to stop the Chinese immigrants from enjoying their “opium dens.”

Politicians will be politicians, and now as of 2015, we now have over 5,000 federal crimes on the books – up quite a ways from the original 30 in the America as created by our founding fathers. In total, that’s 27,000 pages of descriptions of federal crimes in the U.S. code books. Although the U.S. consists of only about 5% of the world population, we incarcerate around 25% of the world’s prisoners. 40% of those are Black Americans. See The Overcriminalization of America, Charles G. Koch and Mark V. Holden, January 7, 2015.

As for state politicians keeping themselves busy attempting to keep their constituents safe, Arizona has over 4,000 statutory state-level crimes on its books (that’s in addition to the 5,000 federal crimes); North Carolina, where I went to law school, has added five sections to its criminal code each year since Wortd War II, and its legislature has added 318 new crimes since 2009 alone.” Anyone can be a criminal when there’s 5,000+ crimes to choose from:

The story of fisherman John Yates presents a second concern commonly raised about overcriminalization: arbitrary or abusive prosecution. Prosecutors brought charges against Yates and secured a felony conviction for a violation of the “anti-document-shredding” provision of the Sarbanes-Oxley Act. What did Mr. Yates do to deserve time in a federal prison? He threw three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal regulations, in effect destroying evidence. While the Supreme Court overturned his conviction eight years later, not everyone facing a similar situation has the chance to have the Supreme Court hear their case.

Our country was born out of the English common law, and where there is a void, our courts still look to the English common law for clarification on may topics of criminal law. It might surprise you to learn that the prosecution of crimes in our mother country was originally a private matter, rather than public.  There was no real police force anywhere.  Nor an army of prosecutors. The first real police force was created in 1829, and then that was only in London. The criminal justice system itself, was mostly privately operated and funded:

England in the 18th century had no public officials corresponding to either police or district attorneys. Constables were unpaid and played only a minor role in law enforcement. A victim of crime who wanted a constable to undertake any substantial effort in order to apprehend the perpetrator was expected to pay the expenses of doing so. Attempts to create public prosecutors failed in 1855 and again in 1871; when the office of Director of Public Prosecution was finally established in 1879, its responsibilities were very much less than those of an American district attorney, now or then. In 18th century England a system of professional police and prosecutors, government paid and appointed, was viewed as potentially tyranical and, worse still, French.

Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial.

In some ways, their system for criminal prosecution was similar to our system of civil prosecution. Under both, it is the victim who ordinarily initiates and controls the process by which the offender is brought to justice. There is, however, at least one major difference between the two systems. If the victim of a tort succeeds in winning his case, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged, transported, or possibly pardoned. The damage payment in civil law provides the victim with an incentive to sue. There seems to be no corresponding incentive under the 18th century system of private criminal prosecution.

See Making Sense of English Law Enforcement in the 18th Century, Santa Clara University School of Law, 2 U. Chi. L. Sch. Roundtable 475 (1995).

Somewhere we left our English common law heritage, and the heritage of western civilization itself, to embrace becoming a police state society, seeking to control every aspect of human life. Anglo-American criminal law did not seek to control, or somehow enhance society, but rather to punish violators, reimburse victims, and to prevent future misconduct.

It was the authoritarian regimes of the Middle East and the Far East, which for centuries kept their subjects under their control, and which is a criminal justice model based on what they see as enhancing the community, in the form they see as most proper. As Professor Dubber wrote, the inevitable result of this sort of a police vs. citizen dichotomy is a divided nation:

In the communitarian approach to the question of police control, the battle lines are clearly drawn. On the one hand is the community of potential victims, the insiders. On the other hand is the community of potential offenders, the outsiders. The boundaries of these communities are not fluid. One either belongs to one community or the other. And it is the duty of the community of potential victims to identify those aliens who have infiltrated its borders, so that they may be expelled and controlled, and their essential threat thereby neutralized.

Policing Possession: The War on Crime and the End of Criminal Law, Markus Dirk Dubber, Journal of Criminal Law and Criminology, Vol. 91, Issue 4 (2001).

And here we are then, a divided country, full of people who would probably get along just fine as individuals, but who have been turned into competing interest groups in the politics of the criminal justice system.

Possession crimes were used against Black Americans, throughout the Jim Crow era, by depriving them of the right to possess firearms. The legacy of doing so, still reverberates today, constantly. This is where the so-called Constitution-loving conservatives suddenly realize, what a minute, you mean they can do that to me too?  But, but, but, I’m a law abiding citizen . . . .

The anxiety about gun control, i.e., the regulation of gun possession, arises from this tension, this uncertainty amongthose who once clearly identified themselves with the policers in their effort to control undesirables.

Privileged members of thepolitical community are appalled to find themselves treated bythe law, if not necessarily by its enforcers, as presumptively dangerous, and therefore as vagrants, felons, aliens, and “negroes.” Pointing to the Second Amendment, they challenge the state’s claim to original ownership of guns as dangerous instruments,with possession to be delegated to those deemed worthy. Men of “good moral character” balk at the requirement that they demonstrate their moral fitness to a state official.

They are, in short, experiencing the very sense of powerlessness so familiar to the traditional objects of police control. Now, they too are the outsiders who find themselves confronted with the arbitrary discretion of a superior power, the state. And this sense of alienation only grows when these state-defined sources of danger realize that state officials are exempt from the general prohibition of possession.

Id. at page 92. The point is, you can’t claim to value the Constitution, and the original intent of the Framers, just because you support the Second Amendment, while at the same time supporting the world’s largest collection of criminal laws, criminalizing everything from the plants you like, to the thoughts in your mind. Imagine telling George Washington that a modern day Virginian can’t even distill, or possess, his own whiskey, for his own personal use, without permission from the government . . . . That’s where we’ve ended up, thanks to generation of do-gooders.

And it can always get worse, if the politicians are allowed to continue creating new criminal law violations in order to shape society how they think it ought to look.  You might think the unsuccessful “War on Drugs,” in the U.S. has been bad.  But take a look at Singapore. 70% of their executions are for drug related offenses, including possession. Singapore’s “Misuse of Drugs Act” creates a presumption of trafficking based on amounts possessed by defendants.  This law allows police to search people’s homes and their persons without a search warrant, and based only on a police officer having suspicion. It also allows police to forcibly perform drug screens of anyone they suspect of drug use. Each listed drug has its own “mandatory death penalty” threshold. In other words, if you possess 30 grams of cocaine, the penalty is mandatory execution. If you possess 500 grams of marijuana, the death penalty is also mandatory. As little as 15 grams of marijuana is presumed trafficking and may lead to life in prison. Even with these Draconian anti-drug laws, drug abuse in Singapore still exists, and is still increasing. See also Singapore’s drug problem compounded by online availability, Channel News Asia, National Edition, Dec. 13, 2019.

Make no mistake, at the current trajectory, this is where we’re headed.  The Washington Post ran an opinion piece in March of 2018, praising Singapore, claiming that they were winning the “War on Drugs.” It reads like the Singaporean version of “Baghdad Bob” authored it.  Yet, as recently as a month ago, Asian news outlets reported that drug use is increasing there. Beware the do-gooders, and remember, just because a politician is elected, doesn’t mean he has to do anything. Hell, do nothing. That’d be great.  Or better yet, start taking some damned laws off the books.

 

Hyprocracy, politicians, and the Constitution

As a constitutional lawyer, I’m a failure if my adherence to the Constitution changes according to politics. Should it be any different for politicians, who take the same oath to defend the Constitution of the United States? Should principles change according to whom they are being applied to? Of course not. Here are some facts:

During President Obama’s presidency, there were 10 TIMES more covert drone strikes than under Bush.

“A total of 563 strikes, largely by drones, targeted Pakistan, Somalia and Yemen during Obama’s two terms, compared to 57 strikes under Bush. Between 384 and 807 civilians were killed in those countries….” (https://www.thebureauinvestigates.com/…/obamas-covert-drone…)

So this wasn’t even counting strikes in Afghanistan. This was drone killings in sovereign countries, with whom we were not at war; and nor was there any congressional authorization or oversight of these drone killings. “Obama also began an air campaign targeting Yemen. His first strike was a catastrophe: commanders thought they were targeting al Qaeda but instead hit a tribe with cluster munitions, killing 55 people. Twenty-one were children – 10 of them under five. Twelve were women, five of them pregnant.” (Id.)

On March 19, 2011, Obama literally invaded the sovereign country of Libya, unilaterally approving airstrikes. There had been no congressional authorization. From a 2019 Politico piece looking back on the disaster:

“Obama said the military action sought to save the lives of peaceful, pro-democracy protesters who found themselves the target of a crackdown by Libyan dictator Moammar Gaddafi.”

“Speaking on March 28 at the National Defense University in Washington, Obama said: “The United States and the world faced a choice. Gadhafi declared he would show ‘no mercy’ to his own people. He compared them to rats and threatened to go door to door to inflict punishment. In the past, we have seen him hang civilians in the streets, and kill over a thousand people in a single day.”

“It was not in our national interest to let that [massacre] happen. I refused to let that happen.”

“But Kuperman, an associate professor at the LBJ School of Public Affairs at the University of Texas at Austin, held in his article that the NATO allies’ assessment turned out to be premature.”

“As he put it: “In retrospect, Obama’s intervention in Libya was an abject failure, judged even by its own standards. Libya has not only failed to evolve into a democracy; it has devolved into a failed state. Violent deaths and other human rights abuses have increased severalfold.”

“Rather than helping the United States combat terrorism, as Gadhafi did during his last decade in power, Libya [began to serve] as a safe haven for militias affiliated with both al-Qaida and the Islamic State of Iraq (ISIS). The Libya intervention has harmed other U.S. interests as well: undermining nuclear nonproliferation, chilling Russian cooperation at the U.N., and fueling Syria’s civil war.”

(Politico: THIS DAY IN POLITICS
Obama approves airstrikes against Libya, March 19, 2011
By ANDREW GLASS 03/19/2019 – 3/19/19: https://www.politico.com/…/barack-obama-libya-airstrikes-12…)

You may ask yourself, was Pelosi in Congress then? Yes she was. Was Manchin a U.S. Senator then? Yes he was. He’s been there since 2010. Shifty Schiff? Yep. So did they show the same concerns then, about actual airstrikes against a sovereign country for the purpose of regime change, and which led to a disastrous regime change? Let’s see…..

Congress actually did pass a resolution at that time, directing the President, pursuant to the War Powers Resolution, to remove all U.S. military armed forces from the country of Libya. There was a roll call vote on June 3, 2011. Any guesses on whether Nancy Pelosi voted for it? She voted “Nay,” meaning allowing U.S. forces to stay inside Libya with no congressional authorization, and for no real national security benefit to the U.S., since Obama said it was just to help innocent protesters (who turned out to be ISIS by the way – an innocent mistake on his behalf I’m sure).

Guess who else voted against the resolution? Shifty Schiff. In fact, most of the Democrats voted against it. Manchin couldn’t vote, because he was in the Senate, not the House, where the vote took place. Also, it failed in the House because the Democrats voted against it. Man they seem to have really become more concerned with the Constitution and the limitation of presidential war powers since then…. Coincidence, I’m sure.

So what was Joe Manchin’s opinion about the Libya disaster? In March of 2011, according to the Charleston Gazette, he was “concerned” but thought the President had legal authority to do it:

“Sen. Joe Manchin, D-W.Va., said Monday he was concerned about U.S. military operations in Libya.”We don’t have a good record of getting in and out,” Manchin said during a stop at the University of Charleston.Manchin did not, however, raise specific questions about the mission or President Barack Obama’s decision to begin operations there. The mission appears designed to protect the rebellion against Libyan leader Moammar Gadhafi.Manchin said even though Obama did not seek congressional approval to launch operations against Libya, he had been told the president had the authority to do so.”

(https://www.wvgazettemail.com/…/article_81ecbc65-dc81-575a-…)

I guess Congress is only really a necessary component if the POTUS is a Republican; a Democrat President has the legal authorization for not only one drone strike, but 563, and also to literally invade a country.

Did Manchin ever speak out against Obama, or criticize him for the 563 drone strikes in Pakistan, Somalia, and Yemen? Again 563. 563 drone strikes….. Not that I could find. To his credit, he did vote no for confirmation on the federal judgeship of the guy responsible for the memo authorizing Obama to drone strike a 16 year old American citizen, but other than that, crickets…..