Assert your rights and reopen your business today. You have plenty of legal reasons for doing so — just as you have plenty of grounds to sue officials for their seemingly lawless throwing you in the poorhouse and taking your livelihood without compensation.
By David Tulis / NoogaRadio 92.7 FM
You’ve probably had the most troubling month in your life personally and financially in the CV-19 panic of 2020. It appears to be the state’s worst month since it was founded on June 1, 1796. The actions of Gov. Bill Lee to “fight” the new strain of flu have thrown 400,000 people out of work and decimated the commerce and travel of millions of people, with businesses reporting loss of gross receipts between 50 percent and 100 percent. His emergency orders have trimmed F$5 billion from the Tennessee GDP, a lowball estimate.
I am not an attorney, don’t practice law, don’t give legal advice and don’t have a law business. If you want legal advice find an attorney downtown or on another planet where the law may actually matter.
But here are grounds upon which you might stand today and reopen your business.
Necessity is a defense in the commission of a crime if the life to be saved or the benefit to be obtained far outweighs the wrong of which one is accused. Necessitas, quod cogit, defendit. The necessity is a defence to what necessity compels one to do — as when houses are blown up to stay a conflagration (Gibson’s Suits in Chancery).
You reopen business on account of necessity, to avoid personal and financial disaster. No jury or judge in a bench trial would convict you, as your accuser could show no one had been injured by the reopening of your shop — especially if you played your part in the good faith theater of “distancing” and the like.
In Black’s Law dictionary, 4th edition. “NECESSITY. Controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct.”
2. Quarantine statute ignored
Was it legal to order you to shut down your business when there is no evidence of your having been sick or any of your customers being sick?
The quarantine law gives the governor’s health commissioner power to isolate the sick.
The power to confine people against their will is a police power serving the health, safety and welfare of the general public.
The power of quarantine has two requirements.
➤ The activity of the commissioner in fighting a disease spread must be done with the “least inconvenience” to “commerce and travel.” Did Gov. Bill Lee and Mayor Andy Berke obey this requirement at Tenn. Code Ann. § 68-1-201, power to quarantine?
No — they ignored the statute in its entirety as they are operating under a conflicting theory of government. They have acted as if they believed somehow they can impose their will upon the people apart from this mechanism.
➤ The law is aimed at the sick specifically and not at the healthy generally. Officials have it backwards. At law, the quarantine power works upon epidemiologically sick people and those with whom they have a close physical proximity. The law is imposed upon people one by one, particularly and individually. It is imposed on any one of the people who is sick and unwilling to self-isolate and separate from the general population to avoid spread.
This power is coercive and is subject to due process requirements. The right of legal defense and objection belong to the citizen. Due process is a guaranteed property right. The citizen can assert his right to be free of this power, and the state has the authority to put on trial (sessions court) any person against whom it wishes to use the “jailing” of quarantine.
Mayor and governor have pivoted the law. They have swung its narrow beam 180 degrees. From narrow focused use upon the certifiably contagious sick to the out-of-focus broad use against the general public (asymptomatic).
3. Law operates individually, not en masse
In our law, the police power and the judicial power do not operate apart from either probable cause or a trial or a conviction after trial. The state does not have a generalized or promiscuous power against private citizens apart from a civil emergency.
In ordinary times, the state has power upon citizens — but on those who enter into a relationship with it for a privilege, whether a professional occupation, for example, or the use of cars and trucks as motor vehicles so they can work as shippers (via driver licenses).
The state also gains power over individuals if they commit crimes or offenses under law. By committing an offense, one bringself him into view of the magistrate, the officer and the court.
Governor and mayor effectively have departicularized the operation of law. They have pretended that the law can be applied to people generally, en masse, without individuation and without specific personal due process. They are imposing this police and judicial power on the people as a unit, as if the people are a plastic, moldable form of non-individuated groups encompassing the whole population.
This abuse is morally wrong and legally untenable. I have demanded the grand jury investigate the mass house arrest program as a crime.
4. Defense under supreme law
We know Tennessee’s emergency power cannot be used as they have because of two things.
➤ The health law touching on tuberculosis patients. This law describes a trial of a person who has TB but who refuses to cooperate. He is tried and convicted of being sick, and thus becomes subject to police power and confinement until cured.
Without there being a conviction of a recalcitrant, noncompliant or contumacious ill person, that person cannot be coerced into being anywhere or going anywhere. The TB protocol is important because it is rooted in our common law rights protected in Tennessee’s supreme law.
➤ The Tennessee constitution — your defense to reopening your business today.
Ask Messrs. Berke and Lee if their actions and words respect or abrogate the Tennessee bill of rights. If they say their EOs abrogate these provisions in the public emergency, you can ignore them because their acts are not just voidable but void, and unconstitutional. If they say their EOs respect these rights to free assembly, religion and movement, then the orders have no real effect because they don’t attempt to abrogate (nullify) or derogate (reduce or pare) your right to be free from martial law or any infringement of religious practice or free assembly.
You have these rights, they admit, and nothing they’ve done denies you their exercise.
So flip the “closed” sign in your window to “open.” Unlock the door. Advertise your availability to serve at NoogaRadio 92.7 and other outlets. Welcome your familiars to come in and do business.
These rights are supreme and the government’s job is to protect and defend them.
5. Arbitrary & capricious acts?
Perhaps the most compelling point of your defense — or your lawsuit claiming damages — is that executive orders have at their heart an arbitrary and capricious component which makes them invalid.
To make a distinction between essential and non-essential business, between essential and non-essential activity, is arbitrary and capricious.
American law does not tolerate anything that is whimsical, injurious to one party over another without their being legally distinct. A hairdresser such as Rhonda Thurman has equal standing before the law as a Wal-Mart, a drugstore or a newspaper office.
6. Interstate commerce, contract protection
Another two areas of defense as you reopen your business is that you have out-of-state customers whom you have a right to serve. Is the State of Tennessee impeding interstate commerce? If so, its edicts are unconstitutional because no state or municipality has the power to impede interstate commerce, which is federally protected.
Another area of your defense is your right to be free from state action that interrupts lawful contracts. The U.S. constitution at Article 1 section 10 says “No state shall *** pass any *** law impairing the obligation of contracts.” Arguably, an executive order is not a law, but these documents claim to have the power of law and result in impairment of your rights in the fulfillment of your legal obligations under contract.
7. No guilty mind
You open your business today with a clear heart and untroubled conscience. An important point, because if you rely on law for your actions, you cannot be convicted of a crime because you have no criminal intent, or mens rea. State accusers routinely fail to allege mens rea (guilty mind) as an essential element of the charge. They don’t try to prove mens rea at trial. You have a clear defense on this point. A study of “essential elements” at law indicates that the failure to allege in the charging instrument (police citation, indictment) and prove beyond a reasonable doubt all the essential elements of the offense — including mens rea — is fatal to the prosecution.
Guilty intent in your opening your salon has to be alleged and then it has to be proven. You can show easily that you are relying on published documents to inform your intent — namely laws and constitutions. This informing of your intent is your defense. You violated no law; rather, your accusers are violating the law.
Executive orders themselves are an insufficient basis upon which to create against you a liability and known duty that you violated. The accuser must prove you had a known duty to act — but intentionally violated that known duty. Executive orders appear to be aimed at executive agencies over which a governor has charge, or, perhaps, a mayor has charge. The emergency law affixes a penalty provision (58-2-120) saying “any person *** violating any order, rule or regulation promulgated pursuant to this chapter commits a [c]lass A misdemeanor.” But how one becomes liable for performance under an EO issued under Title 58, and apart from due process, is unclear — thus giving grounds for defense at trial under the “void for vagueness” standard of law.
They cannot be rightly understood to be directed against members of the noncriminal, nonconvicted, healthy and private members of the general public.
8. Not a proper emergency
On Friday I interview attorney Joe Manuel, a libertarian practitioner of civil remedies who says Gov. Lee has acted outside the scope of Tenn. Code Ann. § Title 58, chapter 2, disasters, emergencies and civil defense. The links are below. A review of the 62 pages of law indicates the following:
➤ An emergency may include “disease outbreaks and epidemics,” fire, flood, storm, drought, earthquakes and other events as well as ”enemy attack, sabotage, terrorism, civil unrest, or other action impairing the orderly administration of government” (see the law’s definitions). It may “[include] natural, technological, terrorist acts, and manmade disasters, all of which threaten the life, health, and safety of its people; damage and destroy property; disrupt services and everyday business and recreational activities; and impede economic growth and development.” (Tenn. Code Ann. § 58-2-102, legislative intent)
➤ The emergency in its substance must be worse than the remedy in its substance. A remedy has to account for the life, property, ”everyday business” and “economic growth and development” of the people, and cannot abolish these activities.
➤ The emergency power must be focused on the area in which the emergency is located. Two counties with no CV-19 patients cannot legally be subject to an emergency power. Many counties have one or two patients who have the virus, yet all are subject to the statewide lockdown by Gov. Lee.
➤ The governor is denied martial law authority in the bill of rights, article 1, section 25, that holds “[t]hat martial law, in the sense of the unrestricted power of military officers, or others, to dispose of the persons, liberties or property of the citizen, is inconsistent with the principles of free government, and is not confided to any department of the government of this state.” Gov. Lee is denied the power to declare generalized martial law, which he has done.
The emergency law says “nothing in this chapter shall be construed *** to (4) Limit, modify, or abridge the authority of the governor to proclaim martial rule ***.” In other words his power for martial law, denied by the constitution, is not “limited [further]” or “modified” (altered) by the statute. He has no power for martial law, period, so clearly nothing can ‘limit” what Gov. Lee doesn’t have. He lacks such military power as he is enacting today, despite what a careless reading of 58-2-105 might imply.
Your rights under Berke, Lee ruin