Pasco County, Florida, once-again, where we now get to see the body cam footage from where the cops served an eviction at the wrong house. The body cam footage is hilarious:
Category Archives: Uncategorized
Run Out of Town for Loitering? – Is That Constitutional?
Quite a few people sent me this video of Travis Heinze being told to leave Turtle Lake, Wisconsin, for “loitering.” I’m pretty sure I watched this play out in Rambo First Blood. Is this constitutional? Loitering ordinances have been misused by law enforcement for many years. The problem is, they create a criminal offense based on one’s mere presence in a public place, with the lack of any criminal intent. Therefore the police get total power to define who is a criminal, and who is acting lawfully. Of course, this can, and is, misused by police. Which is why the federal courts have addressed the constitutionality of these statutes.
Here’s the Turtle Lake loitering ordinance:
Footage Released of WV Judge Pulling Gun in Courtroom
I posted a video about a month ago titled, “WV Judge Pulls Gun . . . Then it Gets Weird.” This was about West Virginia Circuit Court Judge David Hummel. Here’s the first video:
That video involved recent allegations from a lawyer that a judge had pulled out a gun in the courtroom, while on the bench during a hearing, displaying it and setting it on the bench, pointed in the direction of a lawyer who ultimately complained, sparking investigations, media reports and threats of a lawsuit. There’s been a few updates in the reporting since the video. There was insinuation that video footage existed in this case. So now that’s been confirmed, and some footage has been released pursuant to a FOIA, and I have it. And I’ll show it to you. But there’s been a few other updates as well.
The Daily Beast has been reporting on this, as has the West Virginia Record.
In their August 18 story, the Daily Beast reported that they obtained the video, which they previously hinted existed, and that it confirms via the Court’s surveillance footage, that Judge Hummel indeed displayed a pistol in his courtroom in Wetzel County, West Virginia during a hearing on March 12.
This was a hearing involving controversial litigation pertaining to gas and oil rights. The case pitted gas and oil companies – and their Texas lawyers – against local landowners.
In their original July 16 story, the Beast alleged that Judge Hummel “whipped out his handgun, waved it in the air, and left it on the bench with the barrel pointing directly at the corporate lawyers who had irritated him.” The allegations had been provided to them by Lauren Varnado, the Texas lawyer who had been standing at the podium when the incident occurred.
According to the Beast reporter, this is Judge Hummel’s initial phone response to these allegations:
“There is no incident… I absolutely, categorically deny I had a gun that day in the courtroom,” he said. “It was just me and the attorneys. I had no reason to have a firearm that day… I’ve never shown a gun in my courtroom to anybody. I don’t want them to know that I have it. I do not display my firearm at any time during trial.”
Then, the reporter wrote, minutes later, the judge called back and said he now recalled having a holstered gun on him beneath his robe during the trial the previous week. He maintained however, that it never ever came out of the holster during the trial.
Then the judge called back a third time, now acknowledging that he showed something to the attorneys that day in the courtroom, but that it wasn’t a gun. He claimed it was a “small, red first aid kit.”
The local prosecuting attorney, Timothy Haught, has already responded to the existence of the footage. He stated in a letter to the complaining attorney that he has reviewed the video and that he sees no criminal wrongdoing. “What I saw on the video tape was Judge Hummel displaying his firearm for a few seconds. It did not appear to me that he pointed his firearm at [the complaining lawyer] or threatened [the complaining lawyer] with the same….”
The prosecuting attorney, at the very least, has represented that he has concluded that a gun was displayed by the judge in the courtroom. This contradicts the judge’s statements to the reporter, assuming he made them.
The complaining attorney is Texas lawyer, Lauren Varnado, who represents the oil company. In a follow up letter to Varnado, the prosecutor further remarked that he found nothing that constitutes a violation of West Virginia’s Criminal Code” and that he didn’t see, or hear, a threat, nor did he observe the judge directly point the firearm at Varnado.
Let’s take a look at the actual surveillance footage released by the Daily Beast, and see for ourselves. In the video, which incorrectly displays the local time an hour ahead, Judge Hummel is seen starting the court session around 9 a.m. One minute into the hearing, he is seen briefly waving it in the air as he speaks to the lawyers.
Remember, Judge Hummel, according to the original story, repeatedly told the Daily Beast “it never happened.” They said that when reached by phone, “he initially professed shock at the allegations.”
The footage corroborates the complaining attorney’s initial allegations to some extent. It shows him pull out the gun and wave it around for a second, and then set it on the bench. Is it then pointed in the direction of the attorney? It’s hard to tell from the video. But it doesn’t look like it to me – at least not in this segment of video. To the extent that the judge has indeed denied displaying the gun, the footage appears to completely contradict his recollection of the events.
Whether or not a crime was committed by the judge, judicial ethics violations may have been committed, and an investigation by the judicial disciplinary authorities is ongoing. The Daily Beast quoted Rutgers law school professor Ronald Chen, who also criticized the local prosecutor for “trying to run interference for the judge.”
“Frankly, whether what he did would have satisfied the criminal definition of ‘brandishing’ or not seems to be besides the point… to make contact with a potential witness but one who has not complained—and essentially try to wave her off does not seem to be appropriate.” “
After the first story was published, Lauren Varnado received a letter from attorneys representing the judge that suggested he might be suing her personally for speaking out about what happened. They’ve issued a cease and desist letter, but to my knowledge, no lawsuit has been filed.
The West Virginia Record has reported on other issues surrounding Judge Hummel which have come to light, including him accusing children of lying in a neglect case, as well as allegations he might have violated state law in personally obtaining oil and gas interests.
In a recent State Supreme Court opinion, Hummel was chastised by the Court for improper behavior by conducting interviews of children, wherein he accused a 7 year old of lying, reducing the child to tears, and then appears to have coerced an even younger child to implicate the parent in a plot to fabricate allegations of abuse.
In another recent story, it was reported that Judge Hummel had obtained oil and gas interests while serving as a court official. State law expressly prohibits court officials from obtaining right to minerals from tax deeds. Moreover, he then presided over the oil and gas dispute case involving Varnado, in which he apparently failed to disclose the interests, and also failed to recuse himself.
The judicial disciplinary investigation is ongoing, and I have no doubt there will be another update to come. Legitimacy is the currency of the courts. Setting aside the issues of whether prosecutors are going to criminally charge their fellow elected officials, evidence that a sitting judge has lied about allegations of misconduct, call into questions thousands of pending and former court cases involving that judge. This needs to be resolved. We’ll just have to wait and see the results of the pending judicial disciplinary investigation.
Police Caught on Doorbell Video Removing FJB Flag
A video went viral on Tik Tok showing Ring doorbell camera footage of a police officer removing a family’s “F” Joe Biden flag from its display on the front of the home. The homeowner explained in a subsequent video that he had been previously threatened with arrest for good ‘ole disorderly conduct if he continued to display the flag. Is this a violation of the First Amendment? What about the Fourth Amendment?
Back in February, I discussed the “F” the police T-shirt case out of Ohio, where the 6th Circuit issued an opinion denying qualified immunity to police officers sued for arresting a man for “disorderly conduct” for wearing a shirt containing protected First Amendment speech. In that case, the Court made very clear that police academies have to stop teaching young officers that any use of profanity is disorderly conduct. To the contrary, the law is clear that the First Amendment protects the use of profanity, so long as it’s unaccompanied by other conduct that could be construed as disorderly. Thus, the use of the “F word” in and of itself cannot be criminal conduct.
“It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’”Cohen v. california scotus 1971
Not only can the “F word” be used, but it can be used to verbally criticize the police. Or, in this case, Joe Biden. As the U.S. Supreme Court has held, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state….”
Moreover, expressing criticism of a sitting U.S. President, via use of a flag, is pure First Amendment protected activity. The homeowner mentions in his follow up video that he had researched the town ordinances, and none were applicable, but rather that the mayor lived down the street and held an opposing political ideology. I’ll note that, even if there were a town ordinance, it would be unconstitutional, as a violation of the First Amendment. Now an HOA would be another matter, potentially. Why? Because that’s a private organization, and therefore cannot violate the First Amendment.
Also, what about the Fourth Amendment? As I’ve explained numerous times, the front porch of your home, which would include a flag sticking out of it, is considered part of your home – your castle – for Fourth Amendment purposes. If a police officer walks up and seizes a part of your home – something off of it – is that a seizure? You better believe it. Is it illegal? Illegal in this context means “unreasonable.” Unreasonable, when it comes to your home, is defined with a question: was there a warrant? No, then it’s illegal as a violation of the Fourth Amendment.
WV Judge Admonished for Illegal Arrest and Strip Search of Correctional Officers
A West Virginia Circuit Court Judge was publicly admonished by the Judicial Investigation Commission for ordering the arrest of two correctional officers, who were transporting an inmate appearing before the Court. The two COs were arrested by sheriff’s deputies, for supposedly failing to obey a verbal order to transport an inmate to a different jail. The COs were then strip searched and incarcerated in their correctional officer uniforms. The Commission found probable cause that the Judge violated Rules 1.1, 1.2, 1.3, 2.2, 2.5(A) and 2.8(B) of the Code of Judicial Conduct. That includes, “compliance with the law,” ” confidence in the judiciary,” “avoiding abuse of the prestige of judicial office,” “impartiality and fairness,” “competence, diligence and cooperation,” and “decorum [and] demeanor….”
The inmate being transported by the officers had been involved in a physical altercation in jail prior to the transport. Upon seeing the inmates injuries, the judge ordered the two transporting officers to return the inmate to a different jail, rather than the one in which she was already incarcerated. One of the officers responded that he would have to call his supervisor first. The judge then “summarily ordered both of them taken into custody and incarcerated for civil contempt.” He then “ordered the prosecutor to ‘right quickly prepare an Order’ stating that the officers had ‘refused to abide by the court order.'” However, the officers never refused. One officer said nothing. The other never refused, but correctly responded that he would have to call his supervisor, according to state policy.
The officers were escorted from the courtroom, taken into custody and detained. They were required to surrender their weapons to deputies, permitted to call their supervisors and relay a situation report. They were then taken to the county holding facility. While there, the officers were subject to strip searches. Their badges, shoestrings, wallets and watches were confiscated. Following the strip searches, the officers were directed to put their uniforms back on and were told that they were going to be placed in uniform in a cell with six inmates. At some point during all of this, they were also handcuffed….
The Respondent Judge has 14 days after receipt of the public admonishment to file a written objection, in which case formal charges will be filed with the State Supreme Court.
UPDATE: Media Report: https://wvrecord.com/stories/624649670-circuit-judge-receives-public-admonishment-for-holding-two-correctional-officers-in-contempt
The case against m@sk m@ndates in schools
As the Taliban takes over control of Afghanistan, women in that country are facing compulsory masking of their bodies and faces, in accordance with Sharia Law. Simultaneously, in West Virginia, and across the U.S., school boards are being confronted by angry parents who are pleading with them not to mandate the forcible masking of children in accordance with the strange new religion of mask virtue we’re now facing in America. I’ve previously discussed the fact that masks do nothing to stop the spread of COVID, in general, and that they’re in fact harming children. I encourage you to review that post, as much of the information in it has already been used to defeat mandates in the State of Kentucky (as explained below), and hopefully soon, in West Virginia.
Liberty and freedom aside, mask mandates in schools are pointless, from a common sense perspective, as well as a scientific perspective. And as Galileo said, “In questions of science, the authority of a thousand is not worth the humble reasoning of a single individual.”
- Children play almost no role in spreading COVID
- Children are at extremely low risk
- Masks don’t stop the spread of COVID in schools
- Forced masking harms children
Supreme Court Justice Clarence Thomas has written about the concept of liberty, in general, as we have defined it in America, and before the Founding, in English history and jurisprudence, dating back to the signing of the Magna Carta, as at its core, the “freedom from physical restraint.” The freedom to breathe, without physical restraint over the mouths of our children, is liberty guaranteed to us not only by our Founding Fathers, our English common law heritage, but also as a natural right given by God.
This information is excerpted by the lawsuit(s) we’re getting ready to file challenging school-level mask mandates being implemented in certain counties around West Virginia. The filed versions, which will be posted here in their entirety, after filing, will contain the actual footnote citations to this material. All of this information is documented.
CHILDREN PLAY ALMOST NO ROLE IN SPREADING COVID-19
A study on the spread of COVID-19 in the Icelandic population in 2020 failed to find a single incident of child-to-adult transmission in over 600 SARS-CoV-2 positive people who were included in the study. The researchers used genome-sequencing and contract tracing to identify the manner of the disease’s spread through the community. The genome-sequencing allowed the researchers to definitively conclude that none of the cases spread from a child to an adult.
Another study from Korea of 107 pediatric cases and 248 household contacts failed to find a single instance of a child infecting an adult with COVID-19. In fact, the study found only one instance of a child infecting anyone, except for one case of a 16 year old infecting a 14 year old sibling. Interestingly, both of the siblings’ parents tested negative.
Sweden did not close schools during either Spring or Fall of 2020 when they received waves of COVID-19 transmissions. They did not require that students or teachers wear masks. The results of a country-wide survey was published on February 18, 2021. The analysis showed that deaths in Sweden’s school children did not increase in the four months of the study period relative to any other period, despite school children being unmasked and attending school. Moreover, it found that nationally, fewer than 10 preschool teachers, and 20 schoolteachers who contracted COVID during the period received intensive care. Fortunately, none of the teachers died. The study showed that the relative risk to teachers versus other professions was, in the case of preschool teachers, 1.1, and for other teachers, 0.43 percent.
The nationwide Swedish results are corroborated by other studies which have found that spending time with children no only doesn’t place adults at greater risk, but is actually protective to the adults. A recent study from the U.K. of more than 12 million adults, shows that while people who lived with children were at no higher risk of contracting COVID-19, for those under 65, they were 25% less likely to die. For those over 65, there was no difference in outcomes.
Several recent studies have shown that when in-school transmission does occur, teachers (who have been masked) are central to those transmission networks. A recent CDC report investigated nine clusters across six school districts in Cobb County, Georgia. Of those nine clusters, eight involved a teacher. In the one cluster where a student was the sole index case, the student only infected other students. Notably all of the children infected were masked all day, except during lunch, which was taken in the classroom.
A recent study in the German state of Rhineland-Palatinate, a state with a population of 4.1 million, 1,492 schools and 406,000 school age children, concluded that transmission from teachers was four times higher than from students. Moreover, when a teacher was infected, they were 14 times more likely to transmit the disease to another teacher, rather than a student. The study also concluded that a teacher who contracted COVID-19 was 2.5 times more likely to transmit the disease to a child, than a child to a teacher.
CHILDREN ARE AT EXTREMELY LOW RISK
Based on the CDC’s estimated number of infections by age through December 26, 2020, COVID-19 poses a significantly lower risk to school age children than the flu. For children age 5 through 17, data shows that COVID-19 is 1/4 as deadly as the common flu.
CDC data also shows that on average, people dying of COVID-19 had multiple co-morbidities (3.8). In New York City, data shows that of all deaths, only 0.5% of them occurred in people who did not have a comorbidity. Antibody studies of those infected established that 1.6 million people in New York City had been infected. Even among the older age groups, the risk of death for healthy people from COVID is similar to that of dying in childbirth – 3 out of 10,000 – and several times higher than their risk of dying by accidental death.
On May 19, 2021, New York magazine published a story highlighting new studies showing that the pediatric hospitalization numbers for COVID have likely been dramatically inflated throughout the country. The first study, published in the official journal of the American Academy of Pediatrics, was conducted by Stanford researchers and examined 117 reputed COVID hospitalizations among those under 18 at a children’s hospital in Northern California. They found that just 7.7% exhibited severe illness and 12.8% critical illness. Overall, 45% were classified as “unlikely to be caused by SARSCoV2,” and it appears that most of the others weren’t suffering life-threatening illness.
The second study, published in the same journal, found in America’s fifth-largest hospital that, among patients younger than 22, 40% had “incidental infection,” only 47% were “potentially symptomatic,” and just 14% were “significantly symptomatic.” They further found that “Fifty-five percent of incidental and 47% of potentially symptomatic patients had at least one identified comorbidity, while 90% of significantly symptomatic patients had at least one.”
As Drs. Monica Gandhi and Amy Beck wrote in a commentary for Hospital Pediatrics that accompanied the two studies, “Taken together, these studies underscore the importance of clearly distinguishing between children hospitalized with SARS-CoV-2 found on universal testing versus those hospitalized for COVID-19 disease.” They further conclude that the data also “greatly overestimate the true burden of COVID-19 disease in children.”
In addition to the revelations that pediatric hospitalizations have been wrongly attributed to COVID, the CDC has stated based on an analysis of death certificates that 35.2% of all reputed pediatric COVID deaths “could not be plausibly categorized as either a chain-of-event or significant contributing condition.”
MASKS DON’T STOP THE SPREAD OF COVID IN SCHOOLS
On June 8, 2021, the Boone Circuit Court in the Commonwealth of Kentucky issued a judgment order following extensive litigation and an evidentiary hearing held on May 17, 2021 in a lawsuit against the Governor of Kentucky, challenging his executive orders pertaining to COVID, including his mask mandate. On June 15, 2021, that order was expanded to apply statewide in Kentucky.
At the May 17 evidentiary hearing in that case, Stephen E. Petty, P.E., CIH, testified as an expert witness on the issue of the validity of mask mandates as a measure to prevent the spread of COVID-19. The Court noted that Mr. Petty has previously served as an expert witness in approximately 400 cases related to toxic or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. The Court also noted that he served as an expert in the Monsanto “Roundup” cases, and for those in the Dupont C8 litigation, and that in connection with his service as an expert, he was deposed nearly 100 times and has provided court testimony in approximately 20 trials. The Court found that Mr. Petty holds nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health Agency.
The Court made the following findings regarding Mr. Petty’s testimony:
Mr. Petty explained that the field of his expertise is “to anticipate and recognize and control things that could hurt people, everything from making them sick to killing them.” He testified that, in this context, he has analyzed the use of masks and social distancing in connection with Covid-19. He testified that both the six-foot-distancing rule, and mask mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In addition, masks are not respirators and lack the limited protections that respirators can provide.
The N-95 respirator, which he states is in the bottom class of what may be classified as a respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further explained that an N-95 will not even filter above .3 microns if it is not used in accordance with industry standards. Among the requirements, respirators must be properly fitted to seal along the face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are often utilized as surgical masks, are “not intended to keep infectious disease from either the surgeon or from the patient infecting each other” but only to catch the “big droplets” from the surgeon’s mouth.”
According to Mr. Petty, masks have no standards, are not respirators, and do not even qualify as protective equipment. In contrast, respirators have standards, including rules that state respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent saturation. In addition, standards for respirators also require users to obtain a medical clearance because the breathing restriction can impair lung function or cause other problems for persons having such limitations. Putting those persons in a respirator can harm their well-being.
Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to “big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr. Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it becomes completely ineffective if 3% or more of the contact area with the face is not sealed.
Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are commonly worn by persons with facial hair, and may be contaminated due to repetitive use and the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever, either to the wearer or others.
He explained that the big droplets fall to the ground right away, the smaller droplets will float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty testified that the duration of time that particles remain suspended can be determined using “Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a six-foot rule have any meaning?”
Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear masks. However, he called this “at best dishonest.” As an example on this, he pointed to CDC guidance documents where, on page 1, it recommends wearing a mask; but then on page 6, admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne particles.” According to Mr. Petty, those agencies have smart individuals who know better. Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny aerosols. And on this, he states that he insisted that fact early on. He also points to a more recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that could be aerosols . . . .”
Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University out of Palo Alto. According to that study, “both the medical and non-medical face masks are ineffective to block human-to-human transmission of viral and infectious diseases, such as SARS, CoV-2 and COVID-19.” The Court finds the opinions expressed by Mr. Petty firmly established in logic. The inescapable conclusion from his testimony is that ordering masks to stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot- distancing requirements fare no better.
While the American CDC was being “dishonest,” the European CDC recently posted an update to their masking guidance, advising that, “Evidence for the effectiveness of non-medical face masks, face shields/visors and respirators in the community is scarce and of very low certainty.”
In May of 2020, the CDC published a report on non-pharmaceutical measures for protecting against pandemic influenza in non-healthcare settings. After reviewing all of the studies worldwide, the CDC found “no reduction in viral transmission with the use of face masks”:
Although mechanistic studies support the potential effect of hand hygiene or face masks, evidence from 14 randomized controlled trials of these measures did not support a substantial effect on transmission of laboratory-confirmed influenza. We similarly found limited evidence on the effectiveness of improved hygiene and environmental cleaning.
In mid-2020, one of the world’s foremost influenza researchers, Dr. Donald Milton was quoted in the New York Times observing that, “We’ve been studying the flu for 102 years and still don’t know for sure how it’s transmitted.” In the study itself, Dr. Milton elaborates:
Influenza virus is a pathogen of global health significance, but human-to-human transmission remains poorly understood. In particular, the relative importance of the different modes of transmission (direct and indirect contact, large droplet, and aerosols (airborne droplet nuclei)) remains uncertain during symptomatic and asymptomatic infection.
Infection control guidance for pandemic and seasonal influenza assumes that most transmission occurs during symptomatic infection, predominantly via large droplet spread at short range. Thus, social distancing measures are often proposed to mitigate the spread and impact of a pandemic; and hand washing and respiratory etiquette are promoted to reduce transmission. Evidence to support the possibility of aerosol transmission has grown over recent years and leads to controversies about when and if filtering facepiece respirators (and other precautions designed to prevent inhalation of aerosols) versus surgical masks (mainly capable of reducing large droplets and some fine particles) should be used to protect healthcare workers, particularly during a severe pandemic.
While the CDC was clinging to an outdated understanding of flu transmission, a large number of scientists proactively forced their hand, along with the World Health Organization (“WHO”), to finally acknowledge that aerosol transmission of COVID was a major, and perhaps the dominant, method of transmission for the disease.
In another study by Dr. Donald Milton, he discusses the inefficacy of masks in containing aerosol virus particles:
Together the studies show that surgical masks can limit the emission of large droplet spray and aerosol droplets larger than 5 µm. However, surgical masks are not as efficient at preventing release of very small particles. It is well known that surgical masks are not effective for preventing exposure to fine particles when worn as personal protection. We had hypothesized that when used as source control, exhaled droplets might be large enough prior to evaporation to be effectively captured, primarily through impaction. This appears to be true for virus carried in coarse particles. But the majority of virus in the exhaled aerosol appear to be in the fine fraction that is not well contained.
Dr. Milton wrote that, if aerosol droplets are smaller than 5 microns, “It is well known that surgical masks are not effective for preventing exposure to fine particles when worn as personal protection,” and that “the majority of virus in the exhaled aerosol appear to be in the fine fraction that is not well-contained.”
A 2013 study showed that 87% of infectious aerosols were less than 4.7 microns, which is smaller than what is effectively trapped by a surgical mask, and suggested re-evaluation of then-existing WHO guidelines on the efficacy of surgical masks in the prevention of virus transmission in healthcare settings. That study didn’t further define the size of virus particulates below the threshold of 4.7 microns – though other studies have.
A 2008 study found that during normal breathing, significant amounts of virus was shed, and that “over 87% of the exhaled particles were under 1 [micron] and less than 0.1% were larger than 5 [micron].” The authors estimated that the majority of the aerosols were less than 0.5 micron, which is ten times less than the 5 micron level that Dr. Milton notes as being the threshold below which surgical masks are no longer effective.
A 2018 study further demonstrated that the majority of infectious virus was found in fine aerosols, and that the primary source of generation for those aerosols was simply breathing – not speaking – and showed “that sneezing is rare and not important for – and that coughing is not required for – influenza virus aerosolization.”
A June 2020 study from two Wuhan hospitals showed that COVID virus particles were of similar size to traditional influenza particles. The study reported that COVID virus was found in aerosols between 0.2 and 0.5 microns.
The CDC relied on a study from the American Chemical Society for their double-masking recommendation, as well as their multi-layer homemade mask recommendation. However, the study data shows that with 1% gaps (which are much smaller than what is observed in real life), the filtration of N-95 masks drops between 12% and 34%, depending on particle size; surgical masks drops down to 44-50%, and the homemade cotton/silk masks drops to around 20%. The argument that “even a little protection is good,” is flawed. Research suggests that it’s the smallest particles, carrying the least amount of virus which are the most infectious and cause the most severe disease as they deposit deep within the lungs, and that they can be infectious at very low doses – as little as 300 to 3000 viral copies. Moreover, normal breathing produces roughly 38,000 viral copies within the fine aerosols in a half hour.
A study performed in the 1980s, to assess the effectiveness of surgical masks at containing particles during surgery, found that when placing “tracer” particles on the inside of the mask, in every single case, these particles were subsequently found in the patient’s wound. These “tracer” particles were much larger than COVID particles just by virtue of the fact that they were observed through a microscope. The aerosols that appear to carry COVID and flu are substantially smaller than what can be observed through a microscope.
Emerging empirical evidence establishes that mask mandates have not worked. Rational Ground performed a county-by-county analysis of case growth for those counties with mask mandates, and those without, between 5/15 and 12/15. The results are shown below. Nationally, cases were roughly 40% higher, 27 cases/day/100,000, in those counties with mask mandates, vs. 17 cases/day/100,000 in those counties without.
After Texas lifted their mask mandate on March 3, 2021, new COVID cases dropped by 49% through April 7. Meanwhile in Michigan, New York and New Jersey, cases rose by 60% and were 333% higher than Texas.
In West Virginia, there wasn’t a single day after the issuance of the mask mandate where cases were lower than they were before it. In fact, cases rose 1789% afterwards. West Virginia’s hospitalizations for COVID coincidentally happened to follow the same natural curve as neighboring states with a similar climate (IL, IN, KS, MO and OH).
The prestigious Annals of Internal Medicine published a Danish mask study which examined the difference in SARS-CoV-2 infection rates among people who did not receive a recommendation to wear a mask, compared to people who did receive a recommendation to wear a mask. The results of this massive real-life controlled experiment show that the group that received a recommendation to wear surgical masks in April experienced a 0.38% lower infection rate than the control group that did not wear masks. That is about one-third of one percent, which is so low that it could just be statistically random variances that demonstrate no definitive efficacy even to that infinitesimal level. There was a total of roughly 3,000 people in each group of the study, which would make this the largest study ever conducted on the efficacy of a mask recommendation. “The recommendation to wear surgical masks to supplement other public health measures did not reduce the SARS-CoV-2 infection rate among wearers by more than 50% in a community with modest infection rates, some degree of social distancing, and uncommon general mask use,” concluded the authors. “The data were compatible with lesser degrees of self-protection.”
In accordance with this, the past 10 randomized controlled trials identified by the CDC on the spread of influenza showed zero efficacy of mask-wearing against the flu.
In a July 2020 CDC study, 85% of those convalescent COVID patients surveyed reported that they wore masks always or most of the time during the lead-up to their infection period. More than 70% of those outpatient individuals who tested positive reported always wearing masks. Just 3.9% reported never wearing a mask.
The CDC survey illustrates the reality of COVID transmission around the world, which for the most part took place after strict mask mandates had already been in place.
Before the masking issue became political, Dr. Anthony Fauci scoffed at the notion that wearing masks would serve any use in the COVID pandemic. “There’s no reason to be walking around with a mask,” he told “60 Minutes” on March 8, 2020. “The masks sold at drugstores aren’t even good enough to truly protect anyone,” Fauci told USA TODAY’s editorial board on Feb. 17. “If you look at the masks that you buy in a drug store, the leakage around that doesn’t do much to protect you. … Now, in the United States, there is absolutely no reason to wear a mask.” Several weeks later, Surgeon General Jerome Adams, appearing on “Fox & Friends” on March 31, 2020, stated that studies showed that medical students who wear masks touch their faces 23 times more often, and thus one has to assume that “wearing a mask improperly can actually increase your risk of getting disease.”
FORCED MASKING HARMS CHILDREN
The states with the strictest mask mandates also happen to be the states with the fewest children learning in-person. The myth being perpetuated by the CDC that they know how to control COVID, has robbed roughly half of the children in the U.S of more than a year’s education.
The first results of a German study of over 26,000 children and adolescents show 68% of parents reported impairments in their children as a result of forced mask-wearing, including the following side effects: irritability (60%), headache (53%), difficulty concentrating (50%), decreased happiness (49%), malaise (42%), impaired learning (38%), and fatigue (37%). The data reported 49.3% less happy children and 44% children who do not want to go to school anymore. 25.3% of the children stated they have developed new anxieties. In each case, children in the age category 7-12 years were affected most. In additional, there is the “fear of stigmatization both by wearing and not wearing a mask in the social environment.” Many parents also reported nightmares and anxiety disorders that relate to masked people whose facial expressions and identity are not recognizable to the children.
A 2010 paper from Harvard University observed that damage can be caused by exposing children to endless fear and anxiety: “Ensuring that young children have safe, secure environments in which to grow, learn, and develop healthy brains and bodies is not only good for the children themselves but also builds a strong foundation for a thriving, prosperous society,” wrote the National Scientific Council on the Developing Child for Harvard University. “Science shows that early exposure to circumstances that produce persistent fear and chronic anxiety can have lifelong consequences by disrupting the developing architecture of the brain.”
Data released on June 11, 2021 by the CDC shows that suicide attempts by children 12 to 17 years old spiked substantially during the pandemic, including a rise of 50.6% for girls from February 2021 through March of 2021. The study theorizes that the stresses of the COVID-19 pandemic may have been toxic to the mental health of young people. They noted that, “Young persons might represent a group at high risk because they might have been particularly affected by mitigation measures, such as physical distancing (including a lack of connectedness to schools, teachers, and peers)….”
Dr. Mary Rutherford testified as an expert witness in the area of public health medicine at the evidentiary hearing in Boone Circuit Court. Dr. Rutherford obtained her master’s degree in public health at John Hopkins University, with a focus on epidemiology. She worked for Dr. Fauci for a total of nine years, the first six at National Institute of Allergy and Infectious Diseases, and the latter three at the National Institute of Health. She co-authored an international, peer reviewed article titled, “Multi-treatment of Early Ambulatory High Risk SARS/COV-2 Infection.” She testified that she has treated nearly 100 patients for COVID-19 in her private practice. She is board certified in addiction medicine, and is the past Chair and current board member of the American Academy of Family Physicians.
Dr. Rutherford testified that studies analyzing the effect of government mandates on COVID infection rates, hospitalizations and deaths, formed the basis for her opinion that “government actions such as border closures, full lockdowns and a high rate of COVID-19 testing, were not associated with statistically significant reductions in the number of critical cases or overall mortality.” She also testified that “the strigency of measures settled to fight pandemia, including lockdown, did not appear to be linked with the death rate.” Moreover, Dr. Rutherford opined that government interventions actually lead to more deaths overall, and that instead, the focus should have been only on those determined to be high risk, such as those over 70 years of age. Dr. Rutherford testified that, in her opinion, “the government’s actions have inflicted more harm and death.”
Researchers in Germany conducted a blinded randomized controlled trial of 45 children wearing masks and measured the baseline carbon dioxide levels during inhalation and exhalation behind various masks as compared to the levels of unmasked children. The results are concerning:
We measured means (SDs) between 13 120 (384) and 13 910 (374) ppm of carbon dioxide in inhaled air under surgical and filtering facepiece 2 (FFP2) masks, which is higher than what is already deemed unacceptable by the German Federal Environmental Office by a factor of 6. This was a value reached after 3 minutes of measurement. Children under normal conditions in schools wear such masks for a mean of 270 (interquartile range, 120-390) minutes. The Figure shows that the value of the child with the lowest carbon dioxide level was 3-fold greater than the limit of 0.2 % by volume. The youngest children had the highest values, with one 7-year-old child’s carbon dioxide level measured at 25 000 ppm. (Emphasis added.)
The German researchers concluded that there is a concern of forced mask wearing causing hypercapnia, and as such, children should not be forced to wear masks.
Common sense dictates that children forcibly masked in school settings engage in substantial mask re-usage. In some circumstances, such as re-using already-worn masks, mask usage can cause more harm than good. A study published in the Physics of Fluids scientific journal demonstrated that wearing a used mask is potentially riskier than wearing no mask at all. Researchers found that wearing a mask “significantly slows down” airflow and alters “particle motions near the face,” making people using already-worn masks more vulnerable to inhaling aerosols in the nasal region.
A group of parents contacted a lab because they were concerned about the potential of contaminants on masks that their children were forced to wear all day. They sent their kids’ face masks to the lab for analysis. The press release issued on June 16, 2021 announced that the following “11 alarmingly dangerous pathogens” were found on the masks:
- • Streptococcus pneumoniae (pneumonia)
- • Mycobacterium tuberculosis (tuberculosis)
- • Neisseria meningitidis (meningitis, sepsis)
- • Acanthamoeba polyphaga (keratitis and granulomatous amebic encephalitis)
- • Acinetobacter baumanni (pneumonia, blood stream infections, meningitis, UTIs— resistant to antibiotics)
- • Escherichia coli (food poisoning)
- • Borrelia burgdorferi (causes Lyme disease)
- • Corynebacterium diphtheriae (diphtheria)
- • Legionella pneumophila (Legionnaires’ disease)
- • Staphylococcus pyogenes serotype M3 (severe infections—high morbidity rates)
- • Staphylococcus aureus (meningitis, sepsis)
Half of the masks were contaminated with one or more strains of pneumonia-causing bacteria. One-third were contaminated with one or more strains of meningitis-causing bacteria. One-third were contaminated with dangerous, antibiotic-resistant bacterial pathogens. In addition, less dangerous pathogens were identified, including pathogens that can cause fever, ulcers, acne, yeast infections, strep throat, periodontal disease, Rocky Mountain Spotted Fever, and more.
At this point, what difference does it make?
In the time of C.S. Lewis, fear of nuclear annihilation was the fear of the day. Rather than let the fear destroy our lives, Lewis argued that, when nuclear annihilation comes, if it does, let it find us doing useful things, and leading productive lives:
“In one way we think a great deal too much of the atomic bomb. ‘How are we to live in an atomic age?’ I am tempted to reply: ‘Why, as you would have lived in the sixteenth century when the plague visited London almost every year, or as you would have lived in a Viking age when raiders from Scandinavia might land and cut your throat any night; or indeed, as you are already living in an age of cancer, an age of syphilis, an age of paralysis, an age of air raids, an age of railway accidents, an age of motor accidents.’
“In other words, do not let us begin by exaggerating the novelty of our situation. Believe me, dear sir or madam, you and all whom you love were already sentenced to death before the atomic bomb was invented: and quite a high percentage of us were going to die in unpleasant ways. We had, indeed, one very great advantage over our ancestors — anesthetics; but we have that still. It is perfectly ridiculous to go about whimpering and drawing long faces because the scientists have added one more chance of painful and premature death to a world which already bristled with such chances and in which death itself was not a chance at all, but a certainty.
“This is the first point to be made: and the first action to be taken is to pull ourselves together. If we are all going to be destroyed by an atomic bomb, let that bomb when it comes find us doing sensible and human things — praying, working, teaching, reading, listening to music, bathing the children, playing tennis, chatting to our friends over a pint and a game of darts — not huddled together like frightened sheep and thinking about bombs.
They may break our bodies (a microbe can do that) but they need not dominate our minds.” – C.S. Lewis
Masks do nothing to stop the spread of COVID and are harming children
As we discussed in yesterday’s episode of Freedom is Scary, the national’s leading industrial hygiene expert, Stephen E. Petty, P.E. CIH., C.S.P. of EES Group, Inc., is an actual expert in the use of masks. The science shows the reason that the virus spread in total disregard for widespread mask usage: because masks do nothing to stop the spread of the virus.
The science shows that COVID-19 virus particles are less than 1 micron in size, which is 4,000 times smaller than the diameter of a single human hair. These particles, which infect people through inhalation into the lungs, are so small, that when exhaled into an indoor room, it will take hours, and most likely days, to drop the five feet from one’s mouth to the floor. But there are actual solutions, which science provides to us, but which are being ignored by the the media and government officials.
Dr. Petty holds both a B.S. and an M.S. in Chemical Engineering, both with honors. He has an M.B.A. He was a Senior Research Scientist at Battelle. He was the Senior Research Engineer at Colombia Gas. He was the President of EES Group, an engineering company in Colombus, Ohio. He has a CIH national certification, as well as a C.S.P. certification and is a licensed Professional Engineer in Ohio, Florida, Pennsylvania, West Virginia, Kentucky and Texas. He served as a national exposure/PPE expert in more than 400 cases, including Monsanto Roundup and DuPont C-8. He’s also an Adjunct Professor at Franklin University and holds 9 U.S. Patents. He holds membership in all the Industrial Hygiene professional associations, as well as the American Institute of Chemical Engineers.
“Industrial Hygiene” is “That science and art devoted to the anticipation, recognition, evaluation, and control of those environmental factors or stressors arising in or from the workplace, which may cause sickness, impaired health and well-being, or significant discomfort among workers or among the citizens of the community. So, it’s the scientific field associated with exposure, PPE and warnings. It has nothing to do with dentistry. Unfortunately, this field has been mostly ignored by the media and the Government, who has relied on medical doctors, who are not trained in exposure and PPE. That’s beginning to change. But not quickly enough.
Exposure can occur in 4 ways: inhalation, dermal, ingestion and intravenous. Obviously, lower concentrations of exposure are better, and less time of exposure is better. Dr. Petty has four main points to exposure:
- Personal Protective Equipment (PPE) is the least desirable way to protect people.
- Masks are not PPE.
- Scientific evidence suggests COVID-19 particles are mostly small aerosols – not droplets, which would mean respirators, rather than masks, are needed to protect the lungs (which makes the 6′ rule effectively meaningless).
- Smaller particles are likely a greater cause of disease since they get past PPE and can reach deep into the lungs.
- What DOES work are Engineering controls of dilution and destruction.
Thus, the least effective option of minimizing exposure is PPE. then minimizing exposure distance and time, and then engineering controls designed to dilute, destroy or contain the particles.
Masks, as we have been mandated to wear, are not “respirators.”
Despite telling the public to wear masks, OSHA admits they are not protective:
The CDC also tells the public to wear masks, but also admits they are not protective:
In other words, masks don’t meet any of the OSHA respiratory protection standards that are used in the workplace. Yet we’re being forcibly subjected to them, as are our children. The public has been told that COVID-19 particles fall to the ground within 6 feet, and therefore can safely “social distance.” However, OSHA has admitted otherwise:
To the extent that COVID-19 is aerosol, masks do absolutely nothing. A study from the National Academy of Sciences Press establish that most of the COVID-19 particles emitted from those infected are aerosols, or consisting of 0.3 to 0.5 microns. “Droplets” consist of particles much greater in size than aerosols. The science shows however, that most COVID-19 particles are aerosols, not droplets. As such, they are less than 1 micron in size.
The NASP paper concluded that “the proportion of small respiratory droplets (i.e., aerosols) [were the majority of particles exhaled in all subjects]….”
Exactly how tiny is a micron? It’s 4,000 times smaller than a single human hair.
The National Academy of Sciences Press paper also concluded that there may be an elevated risk of the airborne transmission of COVID-19 by way of the very small droplets that transmit through conventional masks and traverse distances far exceeding the conventional social distancing standards of 2 meters, or around 7 feet, and that exhaled aerosol numbers appear to be not only an indicator of disease progression, but a marker of disease risk in non-infected individuals.
These particles are so small, that the length of time they remain airborne effectively renders “social distancing” irrelevant to the indoor spread of COVID-19. An aerosol COVID-19 particle, the majority of which are less than 1 micron in size, takes hours, and even days, to fall just from mouth-level to the ground.
- Aerosols (very small particles of less than 5 microns) can stay suspended in air for hours to days.
- Since they stay suspended for so long, they can actually accumulate in concentration in indoor air, rather than dropping out to the ground as one would assume with “droplets.”
- This effectively renders the 6 foot rule of social distancing useless; this also renders masks essentially useless, since they don’t filter out aerosols and can’t seal the gaps around the edges.
Imagine the virus as a gnat flying through a wall made out of chain link fence, which also has open windows and doors (which represents the gaps around the edges of the mask). There is literally nothing stopping or restricting the free and open travel of the gnat through the “wall.”
On February 15, 2021, almost a year after the beginning of the pandemic and state of emergency mandates, 13 physicians and scientists with expertise in aerosol science, occupational health and infectious diseases wrote to the CDC, as well as to the COVID response team at the White House and Dr. Fauci, asking them to investigate the implications of aerosols. They advised that:
For many months it has been clear that transmission through inhalation of small aerosol particles in an important and significant mode of COVID-19 virus transmission. They additionally warned that numerous studies have demonstrated that aerosols produced through breathing, talking and singing are concentrated close to the infected person and can remain in the air and viable for long periods of time and travel long distances within a room – sometimes even farther.
They further noted that although the CDC recognized back in October that COVID-19 was spread through inhalation of aerosols as a route of infection, most CDC guidance and recommendations have not yet been updated or strengthened to address and limit inhalation exposure to small aerosol particles. They noted that the CDC continues to use the outdated and confusing term “respiratory droplets” to describe both larger propelled droplet sprays and smaller inhaleable aerosol particles.
To make a long letter short, they informed the nation’s so-called health experts that CDC guidance and recommendations do not include the control measures necessary for protecting the public, and workers, from inhalation exposure to COVID-19.
So we know that with aerosols, masks do not protect you, or others. Masks have been ordered along with an emotional appeal to wear a mask to protect others, or so that you can go see your grandkids, or go in a store – or whatever. Instead of arguing over masks and trying to convince those who have been propagandized that they don’t work, he proposes actual solutions which do work: dilution or destruction:
So being outside when possible and increasing fresh air ventilation actually does work. But the other thing that works is destruction. Technology exists which can destroy viruses from indoor spaces, such as needle point ionization technology.
As a country, we’ve taken out more debt in the past 12 months than we did from the beginning of the pandemic, all the way to 1776. How many lives could have been saved, or still could be saved, if even some of the billions of dollars wasted could have gone to purchase ventilation systems and needle point ionization technology for our elderly population? Instead, we’re convincing people to have a false senses of security in wearing a mostly-useless mask.
In recent days, the CDC has finally begun to admit that the virus is spread through aerosols of 5 microns and less, which may take days to settle, yet they nevertheless stick to mask usage based solely on the existence of larger droplets, in addition to aerosols:
Research shows that the particle size of SARS-CoV-2 is around 0.1 micrometer (μm). However, the virus generally does not travel through the air by itself. These viral particles are human-generated, so the virus is trapped in respiratory droplets and droplet nuclei (dried respiratory droplets) that are larger. Most of the respiratory droplets and particles exhaled during talking, singing, breathing, and coughing are less than 5 μm in size…..
Collectively these particles are capable of remaining airborne for hours and are most associated with deep lung penetration.https://www.cdc.gov/coronavirus/2019-ncov/community/ventilation.htmlhttps://www.cdc.gov/coronavirus/2019-ncov/community/ventilation.html
In other words, masks aren’t going to be able to stop the aerosol spread of the virus, but we want you to continue wearing masks, because they will stop “trapped” particles in larger droplets, i.e., close-range spitting in each other’s mouths. But if your’e close enough to do that, and aerosol particles can get through the masks and linger in the air for hours, what difference does that make, since it’s already deeply penetrated your lungs?
But this is much more dangerous than just a futile exercise in COVID theater and self-congratulations about caring for those around you. Take a look at the German study which was released showing that children are being harmed by the forced usage of masks. The first results of a German study of over 26,000 children and adolescents show 68% of parents reported impairments in their children as a result of mask-wearing, including the following side effects: irritability (60%), headache (53%), difficulty concentrating (50%), decreased happiness (49%), malaise (42%), impaired learning (38%), and fatigue (37%).
What are the benefits of this mandate, even if masks did work in stopping a spread, that could possibly justify this collateral damage? And what about the emotional damage? A 2010 paper from Harvard University observed the damage that can be caused by exposing them to endless fear and anxiety: “Ensuring that young children have safe, secure environments in which to grow, learn, and develop healthy brains and bodies is not only good for the children themselves but also builds a strong foundation for a thriving, prosperous society,” wrote the National Scientific Council on the Developing Child for Harvard University. “Science shows that early exposure to circumstances that produce persistent fear and chronic anxiety can have lifelong consequences by disrupting the developing architecture of the brain.”
Additionally, the World Health Organization (WHO) lists the potential harms and disadvantages of mask use by healthy people:
- potential increased risk of self-contamination due to the manipulation of a face mask and subsequently touching eyes with contaminated hands;
- potential self-contamination that can occur if non- medical masks are not changed when wet or soiled. This can create favourable conditions for microorganism to amplify;
- potential headache and/or breathing difficulties, depending on type of mask used;
- potential development of facial skin lesions, irritant dermatitis or worsening acne, when used frequently for long hours;
- difficulty with communicating clearly;
- potential discomfort;
- a false sense of security, leading to potentially lower adherence to other critical preventive measures such as physical distancing and hand hygiene;
- poor compliance with mask wearing, in particular by young children;
- waste management issues; improper mask disposal leading to increased litter in public places, risk of contamination to street cleaners and environment hazard;
- difficulty communicating for deaf persons who rely on lip reading;
- disadvantages for or difficulty wearing them, especially for children, developmentally challenged persons, those with mental illness, elderly persons with cognitive impairment, those with asthma or chronic respiratory or breathing problems, those who have had facial trauma or recent oral maxillofacial surgery, and those living in hot and humid environments.
Why are we subjecting our children to forced mask usage in our schools when they do nothing to stop aerosol COVID-19 particles from being either exhaled or inhaled, and where if present, they could be floating around inside a classroom for hours, or even days? Given the evidence that children are being harmed, and even subjected to an increased possibility of infection through using them, such policies are truly irrational, misguided and dangerous.
Here’s the live video from Freedom is Scary Ep. No. 54, where I discuss litigation strategy to save the children from masks with civil rights lawyers, Chris Wiest from Kentucky, and Andy Fox from Tennessee:
Come back with a warrant: a discussion on Fourth Amendment rights in the home
March 23, 2020 Executive Order by the West Virginia Governor: what are essential businesses and operations?
The Walker Open Carry Case Turns Into a Fight Over the “AR-15”
UPDATE 2/5/20: Here’s our reply to the defense theory of Anti-AR-15:
Central to the Reply is newly discovered evidence. The defendant police officers argued to the Court that even though there’s no indication of it from the video, they actually weren’t checking to see if Michael Walker was a person prohibited from possessing a firearm, but rather that he was a potential school shooter, because it was “morning,” and a school some undetermined distance down that road was “in session.”
Well, the video was originally broadcasted on Facebook Live. Somebody was able to go back and screenshot it, and as it turns out – oops – it was actually 6:00 p.m…. I guess that explains the crickets around the 2:50 mark on the video.
So, here’s the response we received from Putnam County in response to our pretrial motion asking the Court to stop the Putnam County deputies from presenting anti-AR-15 propaganda and irrelevant media reports of mass shootings at the jury trial in the Michael Walker Open Carry case.
Here was my last update, wherein I posted our motion to exclude the unrelated matters from trial, if you haven’t been following along.
This response is an outrageous attack on the Second Amendment, which ironically was filed by lawyers for West Virginia’s first so-called “Second Amendment Sanctuary” county – Putnam County. Yesterday we all appeared at the federal courthouse in Huntington, West Virginia, for the pretrial hearing on various motions, including this one.
It was almost surreal to hear the other side argue to the Court that by virtue of the fact that Michael was safely carrying a completely legal AR-15 style rifle, in a non-threatening manner, that police should be able to search and seize him just because the AR is the “preferred weapon of mass shooters,” and so on. Citing news media reports about the Parkland shooting. They actually argued in court, that it would not have been suspicious if he had a shotgun, or a handgun. It was mentioned that AR-15s aren’t used for hunting in West Virginia. Which is of course completely false, and besides the point.
This is a reality check for people who value the Second Amendment, as well as the Fourth Amendment. If you live in the Fourth Circuit: West Virginia, Virginia, Maryland, North Carolina, or South Carolina, unless there’s a SCOTUS opinion on point, your constitutional interpretation/law comes from the Fourth Circuit. We’re on the edge….
Right now U.S. v. Black (2013), written by a federal appellate judge who is a staunch defender of the Second Amendment, Judge Gregory, whom I’ve had the honor of arguing in front of, protects citizens who open carry firearms in open carry states. The police cannot harass you, detain you, search you, seize you, just by virtue of the fact you have a firearm. As we know from the past, that was the original purpose of gun control measures in many of the southern states, such as North Carolina (which is where US v. Black came out of).
Black was narrowed by US v. Robinson in 2017, which said that anyone in a vehicle lawfully stopped for whatever traffic violation, or pre textual reason whatsoever, can be disarmed and searched, because firearm possession automatically makes you dangerous. Judge Gregory wrote an amazing dissent in that en banc opinion, which specifically mentions this scenario as it pertains to West-by-God-Virginia. However, that wasn’t extended to open carriers who are not already legitimately subjected to a forced encounter with police. Well, they’re now trying to extend this to open carriers through anti-AR-15 propaganda.
If they succeed, guess what can happen next time thousands of open carriers bring their ARs to the state capitol in peaceful protest and free speech? It’s game on if law enforcement wants to disarm you, run your background checks, search your pockets, etc. As Judge Gregory warned in the Robinson case dissent:
In my view, states have every right to address these pressing safety concerns with generally applicable and evenhanded laws imposing modest burdens on all citizens who choose to arm themselves in public. For instance, many states—though not West Virginia— seek to reconcile police safety and a right to public carry through “duty to inform” laws, requiring any individual carrying a weapon to so inform the police whenever he or she is stopped,4 or in response to police queries.5 And if a person fails to disclose a suspected weapon to the police as required by state law, then that failure itself may give rise to a reasonable suspicion of dangerousness, justifying a protective frisk.
West Virginia, however, has taken a different approach, permitting concealed carry without the need for disclosure or temporary disarmament during traffic stops. For the reasons described above, I do not believe we may deem inherently “dangerous” any West Virginia citizen stopped for a routine traffic violation, on the sole ground that he is thought to have availed himself fully of those state-law rights to gun possession. Nor, in my view, does the Fourth Amendment allow for a regime in which the safety risks of a policy like West Virginia’s are mitigated by selective and discretionary police spot-checks and frisks of certain legally armed citizens, by way of pretextual stops or otherwise. Cf. Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (invalidating discretionary spot-checks of drivers for licenses and registrations in furtherance of roadway safety). Absent some “specific, articulable suspicion of danger” in a particular case, see United States v. Sakyi, 160 F.3d 164, 168–69 (4th Cir. 1998), West Virginia’s citizens, including its police officers, must trust their state’s considered judgment that the benefits of its approach to public gun possession outweigh the risks. See Northrup, 785 F.3d at 1133.
. . .
That is particularly so given that West Virginia does not require that people carrying firearms inform the police of their guns during traffic or other stops, even if asked. See supra at 50. Where a state has decided that gun owners have a right to carry concealed weapons without so informing the police, gun owners should not be subjected to frisks because they stand on their rights. Cf. Northrup, 785 F.3d at 1132 (“impropriety” of officer’s demand to see permit for gun being brandished in public is “particularly acute” where state has not only legalized open carry of firearms but also “does not require gun owners to produce or even carry their licenses for inquiring officers”). Under a different legal regime, different inferences could be drawn from a failure to answer an officer’s question about a gun. See supra at 50–11. But I do not think we may presume dangerousness from a failure to waive—quickly enough—a state-conferred right to conceal a weapon during a police encounter.
Again, I recognize that expanded rights to openly carry or conceal guns in public will engender genuine safety concerns on the part of police officers, as well as other citizens, who more often will find themselves confronting individuals who may be armed.
But where a sovereign state has made the judgment that its citizens safely may arm themselves in public, I do not believe we may presume that public gun possession gives rise to a reasonable suspicion of dangerousness, no matter what the neighborhood. And because the rest of the circumstances surrounding this otherwise unremarkable traffic stop do not add appreciably to the reasonable suspicion calculus, I must conclude that the police were without authority to frisk Robinson under Terry’s “armed and dangerous” standard.
Accordingly, I dissent.
United States v. Robinson, 846 F.3d 694, 714, 716 (2017).
Don’t forget that Heller, i.e., the Second Amendment, has not yet been extended outside one’s home. It hasn’t been applied to open carry yet, or anywhere outside the home in the Fourth Circuit – nor by SCOTUS. See United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), other courts are divided on the question, compare Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (recognizing that the “right to keep and bear arms for personal self-defense … implies a right to carry a loaded gun outside the home”); Palmer v. Dist. of Columbia, 59 F.Supp.3d 173, 181–82 (D.D.C. 2014) (holding that Second Amendment right recognized in Heller extends beyond home), with Peruta v. Cnty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (“[T]he Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public.” (emphasis added)); Young v. Hawaii, 911 F.Supp.2d 972, 990 (D. Haw. 2012) (“[L]imitations on carrying weapons in public do[ ] not implicate activity protected by the Second Amendment.”); Williams v. State, 417 Md. 479, 10 A.3d 1167, 1178 (Md. 2011) (holding that regulations on carrying firearms outside the home are “outside of the scope of the Second Amendment, as articulated in Heller and McDonald“).
So, are Montani Semper Liberi, or not? It remains to be seen. Right now, definitely not in Putnam County. And if they get their way, neither here, nor our neighbors in Virginia, and below…..