Doxxed by a Senator: Free Speech Retaliation by Public Officials

I want to expand on the legal issues presented in yesterday’s video a little more. Yesterday I posted a video on the issue of warning fellow motorists about a speed trap via flashing the lights on your car. If that is protected speech, and as a result of that protected speech, you get pulled over, harassed, arrested, or so on, at that point you may have not just a Fourth Amendment violation, but also a First Amendment violation. More specifically, the cause of action in federal court is called First Amendment Retaliation. It’s a violation of your First Amendment rights to suffer retaliation as a consequence of exercising your rights. This area of the law can be extremely murky. But it can also be straightforward. Like everything else in federal constitutional law, it’s highly fact-dependent.

This can be illustrated by a case I litigated, which pre-dated my Youtube channel, so you won’t find it there – at least before now. Imagine that a private citizen, riding in his work delivery truck, through the West Virginia countryside, sees a vehicle come barreling around him on a stretch of road with a double yellow line, going into a curve. This is filmed by the citizen with his cell phone. He recognizes the vehicle as that of his state senator. He then posts the video to social media, showing and denouncing the senator’s actions to his social media friends. But the senator has his own social media following, which is exponentially larger. In response to the citizen’s video, that senator with a large social media following goes on a rant against the citizen, calling him names, and also then identifying his place of employment – doxxing him, essentially. But he didn’t stop there.

Large numbers of § 1983 complaints allege free speech retaliation claims. These claims frequently give rise to difficult legal issues and sharply contested factual issues. The majority of these claims are asserted by present and former public employees. First Amendment retaliation claims are also asserted by government contractors, individuals subject to criminal prosecution, prisoners, and landowners, among others.

As a general matter, public officials may not respond to “constitutionally protected activity with conduct or speech that would chill or adversely affect [t]his protected activity.” Balt. Sun Co. v. Ehrlich , 437 F.3d 410, 416 (4th Cir. 2006). That is so “even if the act, when taken for different reasons, would have been proper.” ACLU of Md., Inc. v. Wicomico Cty ., 999 F.2d 780, 785 (4th Cir. 1993).

To succeed on a First Amendment retaliation claim, a plaintiff must show: “(1) [the] speech was protected, (2) the alleged retaliatory action adversely affected [the] protected speech, and (3) a causal relationship [existed] between the protected speech and the retaliation.” Raub v. Campbell , 785 F.3d 876, 885 (4th Cir. 2015).

However, a plaintiff must allege the violation of a federal right by a person acting under color of state law. Public officials can theoretically act both under color of law, as well as a private actor not under color of law. The defendant acts under color of state law if he is “a state actor or ha[s] a sufficiently close relationship with state actors such that . . . [he] is engaged in the state’s actions.” Cox v. Duke Energy Inc., 876 F.3d 625, 632 (4th Cir. 2017). Put simply, the defendant acts under color of state law when he “exercise[s] power possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law.” Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019) (internal quotation marks omitted). 

“[T]here is no specific formula for defining state action under this standard.” Rather, Courts evaluate “the totality of the circumstances.” Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006). “If a defendant’s purportedly private actions are linked to events which rose out of his official status, the nexus between the two can play a role in establishing that he acted under color of state law.” In addition, “[w]here the sole intention of a public official is to suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state.” 

In my case, this was the big issue. The senator’s lawyers filed a motion to dismiss. The federal court ended up denying that motion to dismiss, ordering the case to proceed. The Court pointed out that the state senator posted his response video on his official campaign Facebook page that he was using to both share information with his constituents, as well as to campaign for Congress. Thus the social media account generating the alleged retaliation was closely connected to official activities. 

Using that official account and social media following, the Court concluded that an inference was supported that the state senator was using his official position to pressure my client’s employer to fire him. Moreover, the Court found a causal connection between the response video, as well as the phone call to the employer, and my client being fired. He ordered the case to proceed and a subsequent settlement ensued.

Update: WV Judge in Traffic Stop Video: Trial Just Ended

You may remember the West Virginia Circuit Court Judge who was pulled over in a traffic stop by the Moorefield Police Department, resulting in the dash cam footage going viral on various Youtube channels, including my own, which is where it was first released to the public. Judge Carter Williams ended up being formally charged with judicial disciplinary charges. While those charges were pending, Judge Williams got in trouble again due to allegations he left Walmart with merchandise, but without paying. More judicial disciplinary charges were tacked on…. Well, his judicial disciplinary bench trial just ended, following three days of testimony before West Virginia’s Judicial Hearing Board, which is sort of an ethics court comprised of judges and a few appointed citizens.

The bench trial was open to the public and was held in Berkeley County, West Virginia, which is up in the northern panhandle, up near D.C. However, I was unable to view the proceedings because I was actually subpoenaed as a witness, since some of the relevant testimony pertained to the public’s reaction to the judicial misconduct, which is represented in the 2,500 plus comments to the footage on Youtube, first released by me. If you recall, I first obtained the footage via a FOIA request and publicly released it. I ended up not being called though, for whatever reason. The trial ended today, as reported by WV Metronews. The same reporter did watch the proceedings, and in three separate news reports provided some witness testimony quotes. Here’s what we know.

Another Circuit Court Judge in the same judicial circuit testified:

Judge Charles Carl, serving as a witness instead of in his usual role, testified that he was surprised by what he saw in a video of his colleague, Judge Carter Williams, at a traffic stop. “Well, first off, I would say it was out of character for how I know him,” Carl said during a hearing of the Judicial Hearing Board in Martinsburg. “Angry. Agitated. That’s not how I perceive him. That’s not how he acts in court. I just thought he had a bad day.”

https://wvmetronews.com/2022/06/14/judge-is-now-a-defendant-over-allegations-that-he-crossed-ethical-lines-after-traffic-stop/

The town’s former police chief testified:

Moorefield’s former police chief, Steve Reckhart took a call from Judge Williams at home the night of the traffic stop. “He was upset, agitated, and began to tell me about events that had just occurred,” Reckhart testified today. “He was upset with one of the officers, Officer Johnson, because he stopped him for a cell phone violation and went on to elaborate about the cell phone and how it happened to be there. Then he began to tell me about the frustrations with the Moorefield Police Department.” Reckhart also recalled “the fact that he was expressing his displeasure in some of the criminal cases that were being brought to his court and advised that he had some leeway in some of those cases but that he might look at them tighter in the future.”

https://wvmetronews.com/2022/06/14/judge-is-now-a-defendant-over-allegations-that-he-crossed-ethical-lines-after-traffic-stop/

The town’s mayor testified:

Moorefield Mayor Carol Zuber testified that Judge Williams went to her home about 10 p.m. the night of the traffic stop. “He was upset,” Zuber recalled. “He said, ‘You know I really hate to do this to you, but you’ll have to do something with the police officers’ and then proceeded to tell me that he was pulled over because they accused him of holding his cell phone, talking on his cell phone.”She continued, “He made the indication that all of my officers, that I needed to straighten them up. He said they were a bunch of young men, that they were kids.”

https://wvmetronews.com/2022/06/14/judge-is-now-a-defendant-over-allegations-that-he-crossed-ethical-lines-after-traffic-stop/

A retired judge from the same judicial circuit testified:

Former Circuit Judge Donald Cookman, who served on the same circuit where Williams and Carl preside, earlier in his career was chairman of the Judicial Investigation Commission. As the allegations about how Williams had behaved swirled through the community, local officials had turned to Cookman for advice. Cookman testified today that what he saw on the video created an impression. “I was shocked. I was shocked. I’d known Judge Williams for a number of years, actually knew him as an attorney,” Cookman said. “He’s always very respectful, and I was surprised and shocked.” Cookman testified, “I was concerned that it might be a violation of judicial ethics.”

https://wvmetronews.com/2022/06/14/judge-is-now-a-defendant-over-allegations-that-he-crossed-ethical-lines-after-traffic-stop/

And last, but not least, Judge Williams himself took the stand yesterday in his own defense:

“Yesterday, for the first time, out in the hallway during a break, I got to talk to the young man that I was so rude to,” Williams testified today. “For the first time, I got to say I’m sorry. I shook his hand and I said, ‘I’m sorry for this. I’m sorry for all this upset.’” . . . . Williams today acknowledged flying off the handle but denied trying to leverage the authority and prestige of his office. “From Day 1, I said that my conduct on July 11 last year was unbecoming of a judge. I said it was disrespectful and rude,” he testified. He later added, “I made a federal case out of it. Just silly. Made a federal case out of it. I’ve regretted it since and tried to make right on it since.” . . . .

Williams today described the mindset that led him to use that phrasing and make those accusations. “I was in fired up mode,” he said. “For whatever reason on that day, I was gonna defend myself, advocate for myself like Custer on his hill, die there. That’s what it felt like. And that was the mode I was in.” The judge testified that he never said he would change the rulings in his courtroom based on the views he had expressed. “I never said I was going to change my rulings. Wouldn’t have done that, would never do that,” he said.

The judge testified that the past year of allegations has altered his reputation in the community and hurt his family. “So yes, my conduct is what it is. It’ll have to be up to someone else,” he said, referring to the hearing board. “But regardless of that and far beyond that, I’ve had to withstand this and be called a racist in this culture and a thief. That’s just about as bad as you can be called. And I am none of those. I’ve never been. I’m a lot of things. I’m not those. “My actions opened the door for me to be called publicly what I’m not. So my actions did that, yes.”

https://wvmetronews.com/2022/06/15/judge-testifies-in-his-own-ethics-case-im-sorry-for-this/

Now, the Judicial Hearing Board will issue a written recommendation to be forwarded to the West Virginia Supreme Court, which contains the Board’s determination about whether judicial ethics violations were proven by a standard of clear and convincing evidence, and if so, ultimately advising as to the Board’s recommended disciplinary sanctions, which ranges from admonishment to a fine to suspension to loss of his law license.

The State Supreme Court is free to adopt those recommendations, or to completely ignore them. However, in my experience, I believe it’s highly likely that the Supreme Court will defer to whatever findings of fact were contained in the written recommendation. If there’s a dispute regarding the underlying law, the Supreme Court is more likely to stray from the recommendation. In the case of Judge Williams, I’m not aware of there being much of a dispute of law – just disagreement about the level of culpability and appropriate punishment.

West Virginia Attorney General Joins Lawsuit in Georgia Challenging Mandate’s Application to Federal Contractors

West Virginia Attorney General, Patrick Morrisey, filed a lawsuit last week, along with six other states, in federal court in Georgia, challenging Biden’s mandate on behalf of federal contractors. It asserts procedural deficiencies in the federal swamp process, as well as more important constitutional violations, such as violations of separation of powers and principles of federalism. Here is the full lawsuit:

Today Morrissey is expected to file yet another lawsuit challenging the actual OSHA rule created pursuant to Biden’s executive order. I don’t have a copy of it yet, but as soon as I do, I’ll post it here….

Current Status of Exemption Requests for Employer Mandates

We’re getting a huge volume of calls and emails on exemptions to employer mandates. This is the current general information we’ve been providing, which again, is general information. This is all based on federal law. State laws around the country may provide for different, possibly better, protections. We are currently on taking cases in West Virginia. If you’re in Kentucky, you should contact Attorney Chris Wiest, from whom I hijacked some of the below Q&As.

1. Exemption requests: Yes, you need to submit the requests to trigger legal protections.  The only legal exemptions are for medical or religious exemptions.  Yes, you need to make the request even if your employer says they are not taking or accepting them.  Yes you should do so even if your employer is requiring a pastor note and you cannot get one.  The buzz word is that you have a “sincerely held religious belief.”  You should document the what and why of that belief.  The employer can require you to answer questions about the request to determine if it is sincere.  Including asking questions about prior vaccines (if your request is based on aborted fetal cells, be prepared to answer the question on your having received prior vaccines — and answering it that you didn’t know when you received them but now do is an acceptable answer).

You can learn more about the basis for a religious exception, based on the Thomas More Society litigation in New York, here: https://thecivilrightslawyer.com/2021/09/25/religious-exemptions-for-vaccines-under-title-7-and-private-employers-in-the-health-care-field/

You can learn more about the issue of whether an employer gets to question your religious beliefs here: https://thecivilrightslawyer.com/2021/10/07/employers-do-not-get-to-define-religion-in-exemption-applications/


You should also document prior exposure, infection, and any antibody tests.  And send that to the employer to document the fact that giving you an exemption cannot possibly burden the employer.For medical exemptions, you need a doctors note.  It should document your particular medical condition and indicate the threat the vaccine poses to you.  These are going to be the rare exception.


2. They denied my exemption: Ask them to explain what burdens, if any, they expect to suffer from the grant of exemption.


3. What next?: As a practical matter: you are left with two choices after a denial: (a) get fired and pursue a wrongful discharge lawsuit; or (b) get the vaccine. Injunctive relief actions prior to firing may be available if your employer is a governmental entity but these are tricky unless there are blanket denials. We may be able to help in these situations.


If you are FIRED from either a private and government employer and (I) you requested a religious exemption; (II) you documented prior infection and antibodies; and (III) the employer denied the exemption, we may be able to help.


If you’re in West Virginia, the State Legislature just tentatively passed legislation created three state-law based exceptions to both public and private employer mandates. It provides for medical, religious and natural immunity exceptions. It hasn’t yet been signed by the Governor. However, since he proposed the legislation, he is expected to sign it. Unfortunately, it doesn’t become effective law until 90 days after it’s signed (because there wasn’t 2/3 majority vote).

The new law provides that:

(a) A covered employer, as defined in this section, that requires as a condition of continued employment or as a condition of hiring an individual for employment that such person receive a COVID-19 immunization or present documentation of immunization from COVID-19, shall exempt current or prospective employees from such immunization requirements upon the presentation of one of the following certifications:

(1) A certification presented to the covered employer, signed by a physician licensed pursuant to the provisions of §30-3-1 et seq. or §30-14-1 et seq. of this code or an advanced practice registered nurse licensed pursuant to the provisions of §30-7-1 et seq. of this code who has conducted an in person examination of the employee or prospective employee, stating that the physical condition of the current or prospective employee is such that a COVID-19 immunization is contraindicated, there exists a specific precaution to the mandated vaccine, or the current or prospective employee has developed COVID-19 antibodies from being exposed to the COVID-19 virus or suffered from and has recovered from the COVID-19 virus; or

(2) A notarized certification executed by the employee or prospective employee that is presented to the covered employer by the current or prospective employee that he or she has religious beliefs that prevent the current or prospective employee from taking the COVID-19 immunization.

So, in other words, the employer will not have discretion to question the religious sincerity of the employee, which is currently occurring on a wide basis. Therefore, any current religious applications being asserted might as well include a notarized certificate tracking this statutory language. E.g., “I, John Doe hereby certify that I have religious beliefs that prevent me from taking the COVID-19 immunization.” Additionally, any medical exemptions being asserted might as well include a physician’s certification that the employee has antibodies and/or has already suffered from and recovered from the virus.

Many have asked whether this will be applicable to federal employees. This new law applies to “covered employers,” who are defined as follows:

(A) The State of West Virginia, including any department, division, agency, bureau, board, commission, office or authority thereof, any political subdivision of the State of West Virginia including, but not limited to, any county, municipality or school district; or

(B) A business entity, including without limitation any individual, firm, partnership, joint venture, association, corporation, company, estate, trust, business trust, receiver, syndicate, club, society, or other group or combination acting as a unit, engaged in any business activity in this state, including for-profit or not-for-profit activity, that has employees.

So, no it doesn’t appear to apply to federal employees, which would probably be unconstitutional for a couple of reasons. I see no reason why employees of business entities who are federal contractors wouldn’t be covered, to the extent said employees are based in West Virginia and the business activity is based in West Virginia. As for independent federal contractors who are being subjected to the federal mandate, there would be no applicability if they don’t have a business entity as an employer who is engaging in business activity in West Virginia.

Update on the School Bus Drivers Suspended for Attending a Trump Rally

Join me live at 8pm ET tonight for an update on the Jefferson County, West Virginia school bus drivers who were suspended for attended the Trump rally on January 6, 2021. Despite being nowhere near what occurred at the Capitol, they found themselves suspended and accused of misconduct, and then later vindicated. We files suit for First Amendment retaliation. Here’s what’s happened so far in the litigation….. Freedom is Scary, Ep. No. 77. Also available on our Facebook page.

Lawsuit Filed Against Wood County Board of Education Challenging their School Mask Mandate

As I announced on the Tom Roton Show this morning, yesterday afternoon we filed a lawsuit in Wood County Circuit Court (Parkersburg, WV) against the Wood County Board of Education challenging their blanket school mask mandate, which is currently forcibly masking children for prolonged periods of time. The suit was filed on behalf of my clients, John Davis and Felsie Pierce, who have three children currently enrolled in Wood County Schools, who have suffered, and are continuing to suffer, due to the illegal mandate.

In a nutshell, our legal theory is this: Wood County BOE claims that the local health board, the Mid-Ohio Valley Board of Health, has issued the mandate, and they are merely following that requirement. However, the MOVBOH has denied that they issued the mandate. If the MOVBOH had indeed issued the mandate, they would be required to follow due process, which requires notice, a hearing, and so on, as well as oversight by the Wood County Commission, the local elected representatives of these schoolchildren and their parents. That’s the process in place – even before we get to the issue of science or constitutional rights. They didn’t follow the process, and therefore the mandate needs to be struck down immediately. Secondly, even if and when they follow that process, such a mandate still violates the WV Constitution because it violates the bodily autonomy of these children, just like a mandate requiring a medical procedure without the consent of the recipient.

It’s my understanding that other county boards of education in West Virginia have issued school mandates that are likewise illegal. We’ll see what the Wood County Circuit Court does with this case first before proceeding in other counties. We have requested the issuance of an immediate temporary restraining order, until such time as an expedited hearing can take place. Here is the complaint:

Update: it looks like a hearing is being scheduled for the afternoon of Monday, October 18…..

Zoom Discussion: Legal Options for Healthcare Personnel Against Mandates

Former State Delegate and gubernatorial candidate S. Marshall Wilson set up a Zoom discussion for Wednesday, October 13 at 9:00 p.m. with myself and another attorney to discuss the legal options for healthcare personnel in response to the pending mandates across West Virginia. Here’s the log-in information:

Topic: Legal Options for Healthcare Personnel Against Mandates
Time: Oct 13, 2021 09:00 PM Eastern Time (US and Canada)

Join Zoom Meeting
https://us02web.zoom.us/j/3526468683?pwd=ZUhFUGhjU3VXb29Ja243NVNmT2tVdz09

Meeting ID: 352 646 8683
Passcode: M5LWvP
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WV Attorney General Opinion Arguing Mandates are Unconstitutional

On September 10, the West Virginia Attorney General issued an Opinion letter ultimately concluding that vaccine mandates in West Virginia would be unconstitutional in any blanket form – whether public or private employees.

In the end, a law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate our State’s constitution (as it should be properly understood) and violate both state and federal law. The same finding would follow no matter what aspect of “state” government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level. We therefore urge any public entities to comply with such guidance and come into accordance with this opinion.

Likewise, a private employer’s mandate or vaccine-passport requirement may violate federal and state anti-discrimination laws if it does not, at a minimum, provide for appropriate exceptions for those with religious- or disability-based objections.

He urges the Legislature to take action.

For reasons discussed further, the Legislature can undeniably act. In fact, “[t]he Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby.” Syl. pt. 5, State ex rel. Cooper v. Tennant, 229 W. Va. 585, 730 S.E.2d 368 (2012). Ultimately, “[i]t is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation.” Syl. pt. 3 (in part), State v. Dubuque, 239 W. Va. 660, 805 S.E.2d 421 (2017).

Mandate Litigation, Legislation and Political Posturing in West Virginia

While our telephones and email flood with messages from upset parents, angry about the forced masking of our children, an unlikely hero comes to the rescue. However, he completely messed up. He’s attempting to score for the opposing team. Democrat nominee for W. Va. Attorney General in the 2020 election, in the name of allegedly protecting civil rights for multiple children, filed a lawsuit against the Governor and various school entities to attempt to force a comprehensive statewide mask mandate for children. He is essentially suing to force the Governor to issue an emergency executive order.

Where do I begin? If the Supreme Court wouldn’t let me force the Governor to call the legislature into session last year, in lieu of just issuing incessant executive orders, I can’t imagine they would allow an anti-civil rights lawyer to force him to actually issuing an executive order. We can take issue with the scope of the Governor’s emergency powers, but the concept that the Governor gets to issue, or not issue, his own executive orders, seems pretty uncontroversial. Though I suppose it’s having the desired effect of convincing various county school boards to reverse their prior decisions on a local level, which several have apparently done in the past day or so.

At the same time, the Republican leadership in the W. Va. legislature sent a letter to the W. Va. Attorney General official asking him to give an opinion on whether employer vaccine mandates and vaccine passports are in violation of the West Virginia Constitution. First off, it’s the U.S. Constitution that stands any chance of going up against the mandates. Any analysis of the W. Va. Constitution is going to have to begin with the U.S. Supreme Court’s Jacobson case from 1905. Because that would be the first case cited by the W. Va. Supreme Court, should they hear the issue.

Proponents of governmental overreach in the COVID era have consistently pointed to Jacobson as justification for whatever measures the government is undertaking for the purported goals of protecting the health and safety of their citizens, which in turn is utilized by both public and private employers to attempt to mandate vaccines on their employees. Jacobson opined on the role of the U.S. Constitution in controlling state police powers, as understood in 1905, granting states and local governments an affirmative carte blanche to engage in state disease control efforts.

What that means, is that as it currently stands, SCOTUS has said that the U.S. Constitution allows vaccine mandates in the past. So if W. Va. has carte blanche to engage in disease control efforts, the ball is squarely in the State Legislature’s court. No federal court or caselaw is likely going to stop it. The only way to stop broad employer mandates right now, whether public or private, is through legislative action. That is a very real possibility right now in West Virginia, given the fact that numerous state legislators are currently calling for a special session to consider that very legislation.

Regarding Jacobson’s 1905 era values, let’s not forget that Jacobson’s legal rationale led to the case of Buck v. Bell, the infamous 1927 U.S. Supreme Court decision that found no restriction was placed on states’ police powers by the U.S. Constitution regarding a state’s public policy initiative to engage in involuntary sterilization of a woman who was purported to be of low intelligence. 274 U.S. 200 (1927). This decision by the SCOTUS gave the eugenics movement added legitimacy and considerable momentum. By 1931, 28 out of 48 states had adopted eugenic sterilization laws.

Jacobson left the door open for future refinement, conceding that state or local government could exercise police powers in an arbitrary or unreasonable manner. The ensuing future refinement came in the form of 20th century civil liberties which were recognized and developed by the courts. Since Jacobson, the Supreme Court has recognized numerous limits on health and safety regulations, including the right against involuntary restraint, decisions about marriage, contraception, procreation, family relationships, sexual relationships, child rearing and education, as well as the right to refuse life-saving treatment. Nobody is arguing that state police powers retain the ability to suppress any of these now-federally-recognized rights. But they want to leave the forced vaccine part in effect.

In addition to the rights itemized supra, the Supreme Court recognized, and continues to recognize, the right of bodily integrity, which was the category of freedom from government action, the higher order, under which the specific rights described in Roe, as well as Cruzan, fell. E.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 915 (1992) (“One aspect of this liberty is a right to bodily integrity, a right to control one’s person.”). In Cruzan, Chief Justice Rehnquist reiterated in his majority opinion, “every human being of adult years and sound mind has a right to determine what shall e done with his own body….” Cruzan, 479 U.S. at 269.

West Virginia has also recognized the right to bodily integrity as a fundamental right. In the recent decision in Kruse v. Farid, 835 S.E.2d 163 (W. Va. 2019), the West Virginia Supreme Court noted that “all competent patients have the right to refuse medical care,” and that such right “has been recognized by both the United States Supreme Court and by the Legislature of this State.” Id. at 168. The W. Va. Court cited the SCOTUS, at length:

[a]t common law, even the touching of one person by another without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn of the century, this Court observed that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific R. Co. v. Botsford,

141 U.S. 250, 251[, 11 S. Ct. 1000, 1001, 35 L. Ed. 734] (1891). This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body[.]” Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) [, superseded by statute on other grounds as stated in Retkwa v. Orentreich , 584 N.Y.S.2d 710, 154 Misc. 2d 164 (N.Y. Sup. Ct. 1992) ]. The informed consent doctrine has become firmly entrenched in American tort law. See Keeton, Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990).…

[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Cruzan by Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 269-70, 277, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Accord Collins , 517 S.W.3d at 92 (” ‘All competent adults have a fundamental right to bodily integrity. … Included in this right is the right of competent adult patients to accept or reject medical treatment.’ ” (quoting Church v. Perales , 39 S.W.3d 149, 158 (Tenn. Ct. App. 2000) ) (additional citations omitted)). Likewise, the West Virginia Legislature has recognized this personal right to make health care decisions: “Common law tradition and the medical profession in general have traditionally recognized the right of a capable adult to accept or reject medical or surgical intervention affecting one’s own medical condition[.]” W. Va. Code § 16-30-2(b)(1) (LexisNexis 2016).

Kruse v. Farid, 835 S.E.2d 163, 168-69 (W. Va. 2019).

Thus, there is some basis in West Virginia state law in which to oppose mandates. However, it’s still grounded in federal constitutional law. You would expect the legislative leadership to know and understand this. Perhaps it’s just political posturing, sending a hardball to the Attorney General, in order to force him give the ultimate opinion that there’s nothing in the West Virginia Constitution which applies the mandate issues presented. What benefit does that confer to we the people, who are opposed to mandates? I can take the liberty of answering for the Attorney General that what the West Virginia Constitution does say, is that sole legislative power is vested in the legislature. Since SCOTUS believes state police powers control mandate law at the state level, the legislature should have the final say. At least unless our anti-civil rights hero gets his way. But do they have the political will?

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.”

  1. Children play almost no role in spreading COVID
  2. Children are at extremely low risk
  3. Masks don’t stop the spread of COVID in schools
  4. 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