Of Badges and Blasphemy

... but the police demand your worship.

Sheriff Doug Rader of Missouri's Stone County complains that he is being“attacked” for a “patriotic gesture” – decorating his department's patrol vehicles with the motto “In God We Trust.” By focusing on a largely symbolic controversy, both the sheriff's defenders and detractors are ignoring a more tangible threat – the sheriff's insistence, typical of his profession, that citizens render immediate, unconditional obedience to law enforcement officers as duly appointed ministers of violence on behalf of the divine State.

“Where's our patriotism?” Sheriff Rader theatrically protested during a recent interview on Fox News. “Anytime anybody wants to be patriotic and make a symbol nowadays, they're attacked.... We've come so far from 9/11, it just saddens me.”

Rader is correct in pointing out that many other law enforcement agencies display the phrase – which is the official national motto – on their vehicles. As legal commentator and retired Judge Andrew Napolitano points out, this practice is in compliance with Supreme Court precedents, even though it does prompt objections from proponents of strict separation of church and state (including some believers offended by the profanation of faith through association with the monstrosity called the state).

A more troublesome expression of the worldview that governs Sheriff Rader's department is found on its official website. Prominently displayed on the introductory page is an inventive paraphrase of the familiar (and widely misapplied) verse from chapter 13 of the New Testament's Book of Romans:

“For the `Policeman' does not frighten people who are doing right; but those who doing [sic] evil will always fear him. So if you do not want to be afraid, keep the laws and you will get along well. The `Policeman' is sent by God to help you. But if you are doing something wrong, of course you should be afraid, for he will have you punished. He is sent by God for that very purpose.”

Jessica White, her husband Jordan, and her father-in-law Donny can testify that it isn't necessary to be “doing something wrong” to find oneself on the receiving end of state-consecrated violence inflicted by Stone County Sheriff's deputies. Each of them is completing a three-year term of probation on charges arising from a May 5, 2012 incident in which they were beaten and arrested by deputies who had invaded their property without a warrant or probable cause.

The Whites, who live in Crane, Missouri, were returning from a basketball game when they saw that their driveway was blocked by deputies carrying out a traffic stop on a suspected drunk driver. They were allowed to walk up a forty-yard driveway to the carport, but ordered not to go into the house. Although they were not suspects, they were detained in the interest of that most important of all considerations, “officer safety.”

A few minutes later, two more deputies – Taylor Jenkins and Brandon Flack – arrived on the scene with a police dog. Without a warrant, probable cause, or consent, Jenkins and Flack swaggered onto the property to interrogate the Whites. Understandably, things degenerated very rapidly.

“As the deputy was making the arrest, two individuals from the … residence became loud and aggressive in an attempt to keep the deputy from making the arrest,” asserted an official press release fromthe Sheriff's Office, which was issued a little more than a day later. “Those two individuals were arrested for interfering with an arrest, and resisting arrest.”

“Also a female from the residence who was watching the incident … walked up behind one of the deputies and struck the deputy in the back of the head,” continued the official account. “She was then arrested for Assaulting a Law Enforcement Officer.”

Given that this statement was issued by a law enforcement agency, it isn't surprising that it is severely at variance with the facts, which were captured on video by at least two witnesses.

The SCSO statement conveys the impression that the Whites were trying to impede the arrest of the detained motorist, Thomas Barnett, who was the subject of a municipal warrant. The video documents that Jordan and Donny White became agitated by the uninvited and unwarranted intrusion of Deputies Jenkins and Flack and their weaponized canine.

Without cause or explanation, Jordan was thrown to the ground by the deputy, and then kicked in the genitals. After Donny loudly protested the assault on his son, Flack bellowed: “Get him, Jenkins!”

Seizing Donny, Deputy Jenkins snarled, “Get on the f**king ground!” and threw the man face-down on the cement carport surface.

Jessica, who at the time was an elected alderwoman in Crane, had been trying to reason with the deputies, only to receive vulgar verbal abuse in return. After seeing her husband and father-in-law brutalized without provocation, the small, petite woman intervened directly, striking at Jenkins in a desperate attempt to defend Donny. Flack grabbed Jessica and thrust her to the ground, wounding her leg and inflicting severe, lasting damage to her shoulder in the process. Neighbors looked on in horror as the deputies – acting in violation of use-of-force guidelines – used a Taser to inflict several prolonged “drive-stuns” on Donny, who was prone and handcuffed.

After the Sheriff's Office issued its disinformation-laden press release about the incident,the White family's attorney, John Dale Wiley, provided a detailed account of the officers' abusive behavior to the Springfield News Leader. He also made public a video of the arrests. Two weeks later, deputies Jenkins and Flack responded by filing a lawsuit against the Whites and their attorney. The officers claimed that by exercising the right to publicize abuses and seek redress of grievances, the Whites had subjected their assailants to “defamation.”

The lawsuit accused Wiley of “intentionally, willfully, and maliciously distributing” defamatory statements through the media, and claimed that the Whites were “vicariously liable for the actions and conduct of their agent, servant, employee, and attorney,” who supposedly acted “in the reckless disregard of the rights of [the plaintiffs] to be free from being the victim of defamatory statements.”

Both Jenkins and Flack complained that as a result of the publicity they were “subjected to contempt and ridicule, and … suffered emotional distress, pain, and suffering.”

As Wiley pointed out, the injuries inflicted by the deputies were rather more severe than the hurt feelings they supposedly experienced.

"Donny White [was] subjected to a vicious prolonged Taser attack, despite being handcuffed and being face down on the ground,” declared the attorney. “The deputy [continued] his sadistic torture ignoring Donny's cries begging the deputy to stop." Eyewitness Levi Cook testified that the deputies kicked the shackled, helpless man in the face, leaving behind “a big pile of blood.”

Attorney Richard Crites, who represented Jenkins and Flack, insisted that the assailants were merely carrying out their divine mandate. Reciting from the catechism of Blue Privilege, Crites maintained that Ms. White had a moral obligation to submit to whatever her costumed superiors saw fit to inflict on her and her family: “She reacted because she was drunk. Alcohol and stupidity go like bacon and eggs.... I don't care what Dale Wiley says, you don't have an excuse to go up and hit somebody in the head that's a cop.” (Emphasis added.)

Committing aggressive violence is the priestly prerogative of the police officer. Protecting one's self or a loved one from such violence is an impermissible sacrilege.

Because they had defied commands issued by their heaven-ordained supervisors – and, in Jessica's case, profaned the consecrated body of a divine emissary by coming to the aid of her father-in-law – the Whites were compelled to accept “Alford pleas” for charges including third-degree assault on an officer and resisting or interfering with an arrest. In September 2013 they were sentenced to two years ofunsupervised probation. 

The incident involving the Whites occurred prior to Doug Rader's election as Stone County Sheriff. Neither Jenkins nor Flack is listed on the department's current personnel roster.

One of Rader's first gestures in office was to issue a statement promising Stone County residents that he would protect them against a hypothetical gun-grab by the Obama administration.

Like the decision to place the motto “In God We Trust” on patrol vehicles, that promise was a facile symbolic gesture. He has yet to provide substantive assurances to Stone County residents that he will protect them from the proven threat of criminal violence on the part of his subordinates. 

America long ago ceased to be ruled by a monarchy, and succumbed to a more invasive and violent strain of statism in which police officers are seen as “God’s agents on earth,” to borrow Max Weber’s unironic expression. Throughout the soyuz, police departments and prosecutors have been treating “contempt of cop” as a form of criminal blasphemy.

Scott Boyler, a resident of Evans, New York, is a low-level registered sex offender who was convicted of attempting to receive child pornography. He was recently arrested and jailed for several days not for something he had received, but rather something he had posted online – comments critical of the local police in a website entitled “Lackawanna Police Corruption.” 
 
One of Boyler’s recent posts described an illegal cell phone search conducted by an officer he identified as “Joseph `Pig Face’ Leo.” Leo filed a complaint against Boyler, who was arrested for “aggravated harassment.” That charge was quickly dismissed, as the officer most likely knew it would be. But it did lead to Boyler being incarcerated for several days as summary punishment for lese majeste. which was the objective. Boyler has filed a $1.25 million lawsuit.

“If the courts criminalize this kind of speech, there goes the First Amendment,” predicts Buffalo attorney James Ostrowski, who is representing Boyler. “It’s pure political speech that led to his arrest…. This goes back to colonial days when people got arrested for criticizing the king” – a personage who was supposedly wreathed in sanctity. 
 
Meridian, Idaho resident Matt Townsend faces trial a spurious “witness intimidation” charge — and a potential five-year-prison term — for a Facebook post criticizing an officer who arrested him without cause. Roseville, California resident Dominic Ray Aguilar was charged with making a “terrorist threat” following a post suggesting that a police officer who had killed an unarmed man should likewise face a violent death.
The late Bob Foster, a businessman from Sunriver, Oregon, was hit with a stalking protection order by police officers as retaliation for his peaceful activism (most of which involved speaking out at meetings of the local home owners association). Santaquin, Utah resident Shawn Peterson lost his job as a short-order cook following a social media campaign organized by police unions targeting his restaurant in retaliation for a Facebook post in which Peterson criticized the police. 
 
Only in a police state are people punished for criticizing the police.

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"Don't Miss"

Seattle resident Nathaniel Caylor wears a large, conspicuous metal appliance on the right side of his face, a souvenir of a May 5, 2009 incident in which Seattle Police Officer Eugene Shubeck tried to murder him in front of his twenty-month-old son, Wyatt. The police had arrived in response to a third-party report that Caylor, distraught over the death of his wife, was suicidal.

Following seventeen surgeries – which included bone grafts and the insertion of metal screws and plates to hold together his shattered face – Caylor was offered $1.975 million by the City of Seattle to settle his federal lawsuit. This is believed to be the largest tax victim-supported settlement arising from police misconduct in the history of Seattle, and it prompted the predictable, petulant reaction from the local police union.

“The settlement by the City of Seattle in this case sends a disturbing message to the rank and file of the Seattle Police Department,” pouted Seattle Police Officers Guild President Ron Smith. For the public supposedly served by the local police, the more “disturbing” message is found in the fact that Shubeck remains on the Seattle PD payroll. His impregnable cloak of “qualified immunity” protects him from personal liability, and the unqualified support of the police union provides him with unassailable job security.

As punishment for being on the receiving end of Shubeck's homicide attempt, Caylor was charged with “felony harassment.” At the same time, Caylor was dealing with the seizure of his son by Child Protective Services on the basis of a perjured report by Detective Jeffrey Mudd, who falsely claimed that Caylor had used his son as a “human shield” and had threatened to kill the child.

Schubeck (l.) with patrol partner Bryan Bright.

At the time he pulled the trigger, Schubeck “had observed Mr. Caylor and his son on the balcony, and observed that the boy was in no distress,” wrote U.S. District Judge Richard A. Jones in a May 22, 2013 ruling. 

Drawing on the record of stipulated facts, Judge Jones underscored several other important things that a “reasonable officer” would have known, among which are the following:

*“At no point did Mr. Caylor threaten to harm his son,” but he did express concern “that if the officers forced entry to his apartment, they would hurt his son”;

* “Mr. Caylor's son exhibited no signs of distress when Ofc. Schubeck observed him on the balcony,” and “officers heard no indications of distress from the boy when he and Mr. Caylor were inside the apartment”;

* “Mr. Caylor did not display a weapon or threaten to use a weapon”;

* “Mr. Caylor did not suggest he was attempting `suicide by cop' – instead, he asked Ofc. Schubeck if he was going to shoot him and justify the shooting as `suicide by cop'.”

In the service of Blue Privilege, the Seattle PD and its allies in the court system held disclosure of the relevant facts in abeyance in order to extort a plea from Caylor on a “cover charge.” With his son being held as a hostage and facing the monolithic dishonesty of a police force willing to protect its privileges through perjury, Caylor took an “Alford plea.” This meant that he acknowledged that there was sufficient evidence (in the form of police testimony) to convict him, but he did not admit guilt. Caylor regained custody of his son in 2011. 

During oral arguments before a panel of the 9^th Circuit Court of Appeals in April, Caylor's attorney, Tim Ford, described how Shubeck had created a “death trap” by ordering him to leave his house – then preparing to shoot him if he went back in, without warning him that this would happen. 

"If he comes back on the porch, I’m going to shoot him,” Shubeck told Leslie, according to subsequent sworn testimony.

 

"Don't miss,” Leslie replied – even though he would later insist that he was “shocked” by Shubeck's decision, and that he would not have done likewise.

Evan Bariault, Shubeck's attorney, argued – in effect – that everything that happened during the encounter was Caylor's fault because he had attracted the attention of people who had official permission to use lethal violence. 

 

"The threat to the child represented by the circumstances of this situation –the escalation of this event by Mr. Caylor,” Bariault insisted during oral arguments in defiance of the well-established factual record to the contrary. “The entire time this was taking place that child was in harm’s way because the officers did not know, one, whether Mr. Caylor was going to harm his child, or number two, whether Mr. Caylor was going to engage in a confrontation, a firefight with officers that could also potentially harm that child.”

Bariault's suggestion that a “firefight” was possible reflects the fact that an unloaded shotgun was found in a closet after Shubeck's attempt to kill Caylor, and several officers claimed to have heard him “rack” the weapon at some point. As recognized by Judge Jones, Caylor was never seen holding the weapon, and undisputed testimony confirms that the young child was never in distress, and that Caylor never expressed an intent to harm his son. At one point, according, once again, to undisputed testimony, Caylor told the police, “Don't kick the door in … If you hurt my child, you're going to be in trouble.” 

"The only way they could protect that child was by removing Nathaniel Caylor from that apartment,” Bariault maintained in the apparent belief that the child was safer in the hands of the people who had just tried to kill his father without justification. 

 

The typically self-contradictory police account treated that expression of concern as evidence of both Caylor's “neglect” and his supposedly aggressive disposition toward the uninvited armed strangers who eventually tried to kill him. 

 

"Where potential tragedy lies on both sides of an officer’s decision, that officer is entitled to qualified immunity,” Bariault pontificated during the oral argument. “The lawfulness of Officer Shubeck’s decisions [was] beyond debate.” This is because the “lawfulness” of an officer's actions are based on the calculus of self-justification called the “reasonable officer” standard and the officer's assessment of the “totality of circumstances” – a phrase that casually asserts a cop's situational omniscience. 

 

In the case of Nathaniel Caylor – as in so many others involving what can reasonably be described as a murder or attempted murder by a police officer – the assailant, because of his position, was immune to scrutiny and above criticism. On the other hand, every syllable, gesture, or facial expression on the part of the victim was examined in search of evidence of negligence, culpability, or malice. For instance, the fact that the child was playing with a screwdriver and otherwise untroubled was presented as evidence of Caylor’s supposedly neglectful parenting by people who tried to redirect attention away from the fact that the grieving father was distracted at the time by two armed strangers who were prepared to kill him, and very nearly did so. 

Caylor believes that the scandal-plagued Seattle PD, which is operating under a federal consent decree, “is really making positive strides” in reforming itself, even though “it's a little late in my case.” He told the Seattle Times that Wyatt, who has no memory of the day his father was nearly killed by Officer Shubeck, wants to be a police officer himself. 

 

Astonishingly – if not inexplicably -- Caylor approves of his son's career aspirations, which will probably be revised once the youngster is old enough to understand what his would-be professional peers did to his father.

(This is an expanded version of an essay originally published at The Free Thought Project.)

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First, They Came for the Bar Owners....

 

Mission Accomplished: The shuttered Twilight Room Annex, a casualty of Oregon's anti-Business soviet.

Chris Penner, owner of the Twilight Room Annex club in Portland, Oregon, had bills to pay and a payroll to meet. He called up his business account only to find that it had been completely drained.

“All my money was gone,” Penner later related to the Oregonian newspaper. He was shocked, but not completely surprised, by this development: “I raced to the bank, kind of having an idea what had happened.”

The criminals who had siphoned away Penner's earnings were employed by the Oregon State Department of Revenue, who were enforcing a $400,000 punitive damage award against the bar owner for a supposed act of discrimination based on sexual orientation. His alleged victims were the “Rose City T-Girls,” a “diverse, informal social group” catering to males who “identify” as females. That award was imposed by the Oregon Bureau of Labor and Industry (BOLI), a Soviet-style administrative body whose self-appointed mission is appears to be the annihilation of small businesses. 

In keeping with established procedures, Penner had informed the Bureau of Revenue that he was appealing the BOLI's ruling. 

 

When he rceived no response from the agency, Penner believed that the matter would be put on hold while his case worked its way through the state Court of Appeals. At the same time, he was tormented with persistent suspicions that his bureaucratic tormentors would act without giving him due notice. Those suspicions were fully validated.

“They don't have to notify you,” Penner observed with of the state-licensed larcenists who plundered his bank accounts. “They just sweep in and take the money” – first, $13,000 from his business account, then more than $3,000 from his personal checking account on the following day. Penner was able to save enough of his personal funds to pay his employees in cash before putting up a sign announcing that the club would be closing on the following Saturday.

Penner's business was destroyed because he had tried to save it.

On a typical Friday night, anywhere from eight to 54 “T-Girls” could be found at the Annex Club. Whatever their numbers on a given evening, they were often the only paying customers there. If the club didn't do big business on Friday nights, it couldn't survive. Between 2009 and 2012, annual Friday night sales had declined by more than thirty percent – a formula for extinction in a highly competitive market where profit margins are very small. 

 

Unlike bakers Aaron and Melissa Klein, residents of Gresham, Oregon who face a similarly ruinous financial penalty for declining to create a wedding cake for a same-sex couple, Penner was not a Christian entrepreneur. No religious scruples inhibited him from serving Portland's famously “diverse” marketplace. It was because Penner stumbled over one point that he was deemed guilty of violating the whole “law” of diversity. In the eyes of Oregon's Tolerance Commissariat, he was no better than “homophobes” and other unregenerate heathen. 

 

Being "offended" for profit: Members of the "T-Girls" group.

Uncontested testimony before a “forum” convened by the BOLI documented that the Twilight Annex had “sponsored diverse events in the past such as `a reception for a lesbian marriage'; multiple `pride' events, including events that involved cross-dressers; and `fame' nights for gay, lesbian, and transgendered persons.”

 

Roxy Sugarrush, a member of the T-Girls, said that Penner's club was particularly attractive “because it was a `non-gay' club” and its clientele had included ladies “who played bunco and whom [Sugarrush] would not have met at a gay club.” Several other members of the T-Girls group described the club in similar terms. None of them had been treated with discourtesy by Penner or his employees who, after all, dealt with them as paying customers.

During the seven years that manager Cindy Benton had been employed at the club, acknowledges the BOLI, “no customer who has entered … has been refused service during their visit because of how they were dressed or because of their sexual orientation.”

From the club's perspective, the problem wasn't the presence of the T-Girls, but the absence of other customers. 

 

Penner's supposedly unlawful act did not consist of banishing the cross-dressing customers from his club, but of asking them, politely, not to monopolize it on what had previously been the busiest night of the week. In doing so, he hurt the feelings of people identified as part of a “specially protected class” in a state where monetizing such trivial moments of social awkwardness is one of the few surviving industries. 

 

The Twilight Room was once a thriving venue.

Amid a severe and worsening downturn in his Friday night sales receipts, Penner left two telephone messages with T-Girl “administrator” Cassandra Lynn, described in legal filings as “a male who refers to himself as a `girl' and is married to a female.” 

 

“Unfortunately, due to circumstances beyond my control I am going to have to ask for you … and your group not to come back on Friday nights,” Penner explained in a voice mail left for Cassandra Lynn, organizer of the T City Girls. “I really don't like having to do that but unfortunately it's the area we're in and it's hurting business a lot.” 

 

Acting on Penner's invitation to call him with any questions, Lynn left a message demanding to know what the “real reason” was for the club owner's request – assuming, of course, that it was the product of an unstated, invidious motive.

“There is no underlying reason for asking you folks not to come back other than money,” Penner replied. “Sales on Friday nights have been declining at the bar for the last 18 months. I've done some investigating as to why my sales are declining and there's two things I keep hearing: People think that a) we're a tranny bar or b) that we're a gay bar. We are neither. People are not coming in because they just don't want to be there on a Friday night now.”

Penner had bought the facility, known at the time as the P-Club, from an owner and former business partner who had nearly bankrupted it through mismanagement (leaving a financial mess for which Penner bore the costs). 

Within a year it became clear that the T-Girls had made the bar their de facto private club on Friday nights. 

 

Club manager Cindy Benton testified that female customers “complained … about having to share the women's restroom with the T-Girls,” who despite “identifying” as females were biological males. When the T-Girls were in the club, Benton recalled, it was common to see “customers come in the front door, look around, then leave and not come back.”

Penner wasn't running a church bingo parlor, and he was willing to meet the market as he found it – but he knew the club couldn't survive as a niche establishment. The T City Girls were essentially driving away young females, which meant that young males weren't visiting the club, either. 

 

Practitioners of free market capitalism understand that the purpose of a business is to earn a profit by satisfying the largest population of customers. The Portland SSR, however, is ruled by people who believe that businesses exist to serve the social and political priorities of central planners – and to generate the tax revenue necessary to fund social engineering schemes. 

 

Commissar Avakian.

BOLI Commissioner Brad Avakian is a chromosome-level collectivist and notorious tax “deadbeat,” the latter being the least offensive of his traits. Through his position he exercises plenary power on behalf of “eliminating discrimination” from the marketplace. In practice this requires the destruction of the marketplace and the principle of private property ownership on which it depends. 

 

Nothing in Oregon's anti-discrimination statutes authorizes the Labor Commissioner to award punitive or compensatory damages to a would-be customer who files a discrimination claim against a business owner. 

 

Without statutory authority or judicial precedent, Avakian has devised a novel theory of “law” under which hurt feelings create a cause of action for “damages.” This is supported by a recombinant legal doctrine in which terms and provisions found in the anti-discrimination statutes are fused with the BOLI's previous rulings to provide the Commissioner with whatever “authority” he and his subordinates require to carry out their mission. 

 

The BOLI is not a judicial body, nor an adversarial one. The Commissioner himself files a complaint against a targeted business, which is heard by a “forum” supervised by an administrative law judge. The prosecutor is employed by the agency, as is the official who issues “findings of fact” and imposes awards. 

 

Business owners summoned before the body are unable to know the “law” that will be applied against them: The agency's rules of evidence and procedure are based almost entirely on its own previous rulings, adapted to the needs of the current case. If the complaints against Penner had been filed before an actual court, the accusations would probably have been dismissed on the basis of impermissible vagueness. 

 

One typical example of the BOLI's protean standards of “law” is found on page 38 of the Final Ruling in Penner's case, where Deputy Commissioner Christie Hammond, referring to a 1985 employment discrimination ruling, blithely writes that “The forum adopts the above definition, deleting the word `employment'” – thereby applying previous precedents dealing with workplace discrimination to a case involving alleged denial of service to a customer. 

 

Where the expresion “rule of law” refers to a limitation on government behavior, rather than being used as a phrase to codify whimsical exercise of government power, alterations of that kind are made through legislation, rather than through self-serving pronouncements by an unaccountable functionary. 

 

Elsewhere in the ruling, Sub-commissar Hammond notes that six key terms dealing with discrimination are not defined in the statute, and that “To date, no such rules have been adopted” by the BOLI. In addition, there is “no prior case law interpreting these words in the context [of Oregon anti-discrimination statutes] and neither side offered any legislative history to assist the forum in interpreting them.” For the BOLI, however, “law” is whatever they claim the right to do.

John Locke famously described tyranny as a “the exercise of power beyond right,” a condition that exists when an official “makes not the law, but his will, the rule.” 

Penner didn't break the “law,” because no statute or existing guidelines forbade him to make his polite request of the T-Girls. That “law” was summoned into existence by Commissar Avakian and his comrades in order to make Penner “an offender for a word.” In this case, Penner was made an offender for few sentences spoken in the desperate hope of saving a business that his supposed victims considered valuable until they were offered a way to profit from its destruction. 

 

Cassandra Lynn, who “felt disgraced and extremely humiliated” by Penner's polite voice mail messages, was awarded $50,000 “for the emotional, mental, and physical suffering she experienced as a result of [Penner's] unlawful practices,” decreed the BOLI. Ten other members of the T-Girls group received awards of at least $35,000 each as compensation for similarly disabling contact with words that would have been quickly forgotten by any practicing adult. 

 

"Expert witness" Minter.

To understand the “physical and emotional damages” supposedly inflicted on the T-Girls, the BOLI consulted the “expert” testimony of Shannon Minter, Legal Director of the National Center for Lesbian Rights (who would go on to be appointed by Barack Obama to the Commission on White House Fellowships).

Minter's oracular insights illuminated matters that defied the understanding of the uninitiated – for example, why Amy Lynn (who identifies as “60% Amy and 40% male”), a fragile individual who claims to have lost 15 pounds after exposure to Penner's “hurtful” words, is entitled to $35,000, while Susan Miller (“non-gay male who cross-dresses as a female but is `not transitioning'”) should receive $40,000 after gaining ten pounds for the same reason. 

 

In the proceedings of the BOLI “forum,” the claims made by an “aggrieved person” who belongs to a “specially protected” class are entirely self-ratifying: “An aggrieved person's testimony, if believed, is sufficient to support a claim for mental suffering damages.” 

 

Since the prime directive in proceedings of this kind is to “believe the victim,” every pathos-drenched syllable uttered by the complainants is taken as unassailable evidence. Penner's attorney was denied an opportunity to depose the “victims” under oath, and most of his motions to compel them to answer written interrogatories were denied. Permitting the accused to confront or cross-examine his accusers might interfere with the BOLI's mission to “eliminate discrimination” – and businesses accused of that offense.

Not surprisingly, the BOLI found all eleven “aggrieved persons” to “credible witnesses and the forum has credited their testimony in its entirety.” That testimony consisted entirely of impassioned assertions of subjective “injury.” Penner's testimony was deemed “not credible,” “exaggerated,” and “disingenuous,” and credited “only … when it was undisputed or corroborated by other creditable evidence.”

Unlike the conga line of sobbing pseudo-victims, Penner documented real, quantifiable injury in the form of steadily declining sales receipts. He also produced testimony from witnesses confirming that his business was suffering as a result of the growing perception that it had become a limited-interest establishment catering to sexual minorities. If the victim hierarchy had been arranged differently, a sufficiently inventive attorney might have said that by taking control of the club on Friday nights the T-Girls had created a “hostile environment” for the “cis-gendered.” 

 

The testimony of another witness that Penner had been supportive of “diversity” was disallowed as impermissible “character evidence” on his behalf. Acknowledging that Penner's business policies were non-discriminatory would clutter the straightforward narrative in which he was presented as an incorrigible bigot, and the T-Girls as traumatized victims whose souls had been shattered by his pitiless prejudices. 

 

Predictably, the BOLI's extravagant awards for “emotional damages” are apparently illegal. An analysis produced by the Center for American Progress – which previously employed Shannon Minter, the BOLI's “expert witness” in this case – points out that "A successful complainant in an administrative hearing under the Oregon Equality Act is limited to recovery of actual damages and equitable relief. But a successful plaintiff in a civil action can receive compensatory damages, punitive damages, and attorneys’ fees. There are no caps on damages under the Oregon Equality Act.” (Emphasis added.) 

 

The BOLI, once again, is an administrative entity, not a judicial one. It cannot rule on civil actions. Litigants who complain about discrimination “may only receive punitive damages if they have filed their complaint in court instead of the corresponding administrative agency,” points out the CAP's analysis. 

Acting propio motu, Avakian has, in effect, created a new class of tort in which hurt feelings can justify damage awards in any amount the BOLI considers suitable. The pre-emptive seizure of Penner's accounts created a precedent for extra-judicial enforcement of the BOLI's spurious damage awards. 

 

The BOLI's definition of “law” is as fluid as the sexual identity claimed by Penner's supposed victims. The convergence of ala carte sexuality and self-defined administrative power has produced an uncommonly pure variety of despotism – backed, at least in Portland, by one of the most violent and reform-resistant police departments in the American soyuz. 

 

“From the start of this,” Penner ruefully recalls, “three different lawyers from three different law firms said that no one ever wins against BOLI.” 

 

Chris Penner and the Kleins have little in common apart from being small business owners targeted by Avakian and his comrades. They and other Oregon entrepreneurs confront the prospect of exile or annihilation unless they can destroy the BOLI root and branch. 

Last February, I did a Freedom Zealot Podcast examining the Chris Penner story. Click here to download or listen to that program.  

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Administrative "Law" and the Tyranny of "Tolerance" (Update, July 18)

In most jurisdictions, an entrepreneur could be prosecuted for posting this sign.

See the update below.

In a collectivist society, “offenses” aren’t defined by behavior, but rather by identity. This is compellingly illustrated by cases of Antonio Darden and Elaine Huguenin, New Mexico residents and business owners who, acting in the service of their principles, exercised their property rights by refusing service to potential customers. 

Darden operates a hair salon in Santa Fe, where Republican Governor Susana Martinez has been a regular customer. Darden announced in 2013 that Martinez was no longer welcome in his shop because she didn’t support legal recognition of same-sex marriage. Nor would he share his secret hair coloring formula with the Governor, something he was willing to do for other clients.

“Normally I sell the formula to people if they want to go to a different salon that is cheaper,” Darden explained. “I normally give the formula to clients if they’re moving out of state because I care about my clients. But I would not give that formula to her.” 

Not content to withhold his services from Martinez, Darden – a gay rights activist -- sought to discourage his competitors from taking her money, as well: “I have talked with some of the other hairstylists who’ve emailed me…. They’re major salons here in Santa Fe and they told me they’re following suit with me and she is not welcome in their salons either.” 

Darden earned plaudits, rather than rebukes, for discriminating against Martinez – that is to say, exercising his plenary right as a business owner to refuse service to a would-be customer for any reason he considered suitable, including her views on contemporary political issues. 

Elaine Huguenin’s experience was rather different.

In 2007, Huguenin, a wedding photographer, was approached via email by a woman who wanted to purchase her services for a same-sex commitment ceremony. Huguenin politely declined, explaining: “As a company, we photograph traditional weddings, engagements, seniors, and several other things [sic] such as political photographs and singer’s portfolios.” Asked for clarification, she stated – without elaboration – that “we do not photograph same-sex weddings.” 

Vanessa Willock, the woman who made the inquiry, described Huguenin’s reply as “an expression of hatred.” Huguenin and her husband are devout Christians who subscribe to the conventional view of marriage, but said nothing about their religious views – or their opinion of same-sex unions – in the correspondence with Willock. At the time of this correspondence, the State of New Mexico did not license or recognize same-sex marriages. On the basis of what was in the record, Huguenin simply declined to provide her services at a ceremony the State of New Mexico didn’t deem legitimate. 

Elaine Huguenin and her husband, Jonathan.

Like Darden, Huguenin was discriminating in her choice of customers. Unlike Darden, once she had decided to forego an opportunity to make a profit she didn’t seek to discourage her competitors from extending their services to Willock and her partner. The couple very quickly located another wedding photographer who was willing to provide services – in a ceremony that took place out of state. 

Owing entirely to the identity of the would-be customers as members of a specially protected class, Huguenin was prosecuted by the New Mexico Human Rights Commission, which imposed a $7,000 penalty on her. Most of that money was given to the women whose business Huguenin declined. This meant, in effect, that the state government compelled her to pay for a ceremony that the same state didn’t regard as legitimate. 

The Human Rights Commission, an executive branch agency, ruled that Huguenin’s refusal of service violated the New Mexico Human Rights Act, the purpose of which (in the words of the state supreme court) is “to promote the equal rights of people within certain specified classes.” (Emphasis added.) In substantive terms this means that business owners can refuse service to some would-be clients, but not to those who are designated members of a specially protected class. 

 

Willock (r.) and partner.

Susana Martinez would have qualified for “protected” status as a Latina, but not as someone who espoused political and moral views out of favor with the bien-pensants. Thus Darden was permitted to discriminate against Martinez on the latter basis, and publicly advertise his reasons for doing so, without facing the prospect of punishment. 

It has never been proven that Huguenin discriminated against Vanessa Willock and her partner because of their “sexual orientation.” Owing to the identity of the supposed victims, their perception of the incident was taken as definitive, and Huguenin – who neither injured nor defrauded the couple – was punished for hurting their feelings.

Even SJWs understand property rights -- if only their own.

Where some people are assigned to “specially protected” classes, equal protection under law cannot exist. Thus it is appropriate that controversies of this kind are generally dealt with not through criminal or civil courts, but through administrative bodies, of which the Soviet-style entity called the New Mexico Human Rights Commission is typical. 

Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School, insists that “administrative law” is more honestly described as “extralegal power.” Administrative agencies exercise power “not through law, but outside of it,” Hamburger explained in an address outlining the themes of his recent book, “Is Administrative Law Unlawful?” 

Administrative agencies exist in defiance of the constitutional separation of powers, improperly consolidating functions that were intended to remain discrete. In the New Mexico case described above – as in the more recent case involving a $135,000 damage award against bakers in Oregon who declined when asked to make a wedding cake for a lesbian couple – an executive branch agency exercised a quasi-judicial function. In this way, notes Professor Hamburger, “an agency can be prosecutor, judge, and jury.”

This very common procedure is the modern equivalent of what was called the “inquisitorial process” in the Middle Ages. Hamburger contends that this routine abuse of power was the “original danger the Constitution sought to prevent.” 

Predictably, the legal doctrines justifying the use of administrative law (both at the federal and state levels) were devised during wartime. In its ruling in the 1944 case Yakus v. United States, the US Supreme Court found nothing amiss in the exercise of legislative power by FDR regime’s Price Administrator. Despite the fact that Article One of the US Constitution specifies that “All legislative power herein granted” was to be exercised exclusively by Congress, the Court pretended that an executive branch agency or official could carry out legislative tasks provided that Congress “sufficiently marks the field within which [the official] is to act so that it may be known whether he has kept within it in compliance with the legislative will.”

More P.C. property rights: Long live discrimination!

More concisely put: Once Congress has unlawfully delegated legislative tasks to an administrative agency, the latter can do whatever it can get away with. The US District Court for the District of Columbia invoked Yakus in its 1971 Amalgamated Meat Cutters et al v. US ruling upholding Richard Nixon’s imposition of wage and price controls by executive order. 

As summarized by one legal commentator, the key holding in Amalgamated Meat Cutters was that “aggressive separation of powers is seen as an impractical impediment to modern governance.” Separation of powers is one of the central principles of constitutional governance – or so we were told, and many of us believed, until exposure to Lysander Spooner’s insights disabused at least some of us of the idea that the Constitution could actually protect individual liberty. 

Both of those rulings dealt with the exercise of legislative power by the executive branch. The extra-constitutional delegation of judicial power to “commissioners” actually began much earlier, and grew dramatically during the 1850s. Administrative officials like Commissioner Brad Avakian, the Oregon functionary who imposed the $135,000 damage award in the Sweetcakes by Melissa case, can trace their institutional pedigree to the commissioners who enforced the Fugitive Slave Act. 

Although they had “concurrent jurisdiction with the judges of the Circuit and District Courts of the United States,” and some of them were magistrates, the office of “commissioner” was not part of the judiciary. Like contemporary administrative bodies, the Fugitive Slave Commissions existed outside of the constitutional scheme and exercised powers in defiance of the supposed limits imposed by the Constitution. 

The decision of a commissioner, wrote Chief Justice Roger Taney in United States v. Ferreira (1851), “is not the judgment of a court of justice. It is the award of a commissioner.” This principle applied to the commissioners who ruled on claims filed under the Fugitive Slave Law. Under that measure, any black person could be arrested by a marshal or bounty-hunter on the basis of an affidavit filed by someone describing himself as a slave “owner.” 

As someone “to whom … service or labor may be due,”  a slave “owner” was treated as if his claims were self-ratifying. As an inducement to render the “correct” ruling, slave commissioners were paid $10 when they upheld a claim, but only $5 on the rare occasions they dismissed one. The rulings were almost always made on the basis of identity: A self-identified “owner” was part of a class enjoying special protection, while a black individual was assumed to be part of a class from whom “service” was required.

As Spooner observed, a slave commissioner, “instead of being one of the judges of the United States … is, in law, a mere hired kidnapper, employed and paid by the slave-hunter – and everybody has a right to treat him and his decisions accordingly.”

Public denunciations of the Fugitive Slave Act inspired defenders of the measure to perform cadenzas of theatrical outrage over such impious rebellion against the “rule of law.” 

Whig Senator Joseph R. Underwood of Kentucky rebuked what he called the “arrogance and folly” of those who condemned “the legislation of the majority, and … threaten[ed] resistance and defiance in consequence of an alleged conflict with the law of God.” Whatever moral scruples people had over slavery, Underwood maintained, “It is a duty to submit to the powers that be, and to render unto Caesar the things which are Caesar’s” – which in this case meant facilitating the rendition of black people into the custody of “owners” to whom their “service was due.” Even if the Fugitive Slave Act and similar measures were considered iniquitous, “until repealed, they must be obeyed, or it is the end of government.” 

Senator John Bell of Tennessee discerned “a fanaticism of liberty as well as a fanaticism of religion” among opponents of the Fugitive Slave Act, whom he accused of undermining “the best system of laws ever devised by man.”

Positivist homilies about the supposed duty to submit to the law resonated from pulpits, and editorials devoted to the same theme blackened broadsheets. The rhetorical themes of that era are easily transposed into our own. One suitable recent example was provided by a “progressive” commentator writing in defense of the proposition that administrative bodies can compel Christian business owners to provide services for same-sex weddings, irrespective of their religious scruples because they don’t  really own their business, their labor, or their property.

 

Hoplophobes have property rights, too.

When Christian (or, presumably, Jewish or Muslim) entrepreneurs “choose to open a business and make a profit on that business in this country, they do so with the understanding that they must abide by the laws of the land,” pontificated the writer. “That means zoning laws, tax laws, health and safety laws, and yes, nondiscrimination laws … [because] they are Americans. And even Jesus said, `Render unto Caesar what is Caesar’s.’”

For his part, “Caesar” isn’t bound by nondiscrimination laws, and – as Christian entrepreneurs in New Mexico and Oregon have discovered – Caesar can redefine and expand his powers at whim and apply them capriciously.

Purely on the basis of identity, Caesar – acting through “administrative law” -- can designate some people as members of “specially protected classes” to whom “service is due,” and then compel those not so designated to provide that service, notwithstanding the prohibition on involuntary servitude found in the Thirteenth Amendment.

Consider this question: What Oregon law specifies that $135,000 is a reasonable penalty for the supposed offense committed by a baker who declines to make a wedding cake for a lesbian couple? The Oregon Equality Act of 2007, which was supposedly violated by Aaron and Melissa Klein, contains no provision for punitive damages of any kind. 

The “law” that was used to inflict this judgment on the Kleins was conjured into existence by an “administrative law judge” working on behalf of an executive branch agency presided over by an elected official who acted as the “final arbiter” of a dispute in which his own agency was the plaintiff. 

Under what Oregon is pleased to call the “law,” Commissar Avakian had the discretion merely to issue an order demanding that the Kleins provide the service they had withheld, which would have violated the prohibition against involuntary servitude while leaving them financially viable. Rather than doing so, Avakian and his comrades selected a punishment calculated to destroy the couple’s business, while potentially depriving their family of their home and leaving them enslaved by non-dischargeable debt for the foreseeable future. 

As social schisms grow more pronounced and cultural conflict becomes more acute, some pundits have suggested that America may succumb to a second civil war. While it’s to be hoped that this is mere hyperbole, there’s no honest way to deny that the Tolerance Industry has helped resurrect the legal regime that precipitated the last one.

                             UPDATE: The Truth about the "Sweetcakes by Melissa" Case

This week's Freedom Zealot Podcast about the "Sweetcakes" case has been serialized on YouTube.

Part One:



Part Two:



Part Three:



Part Four:

 Click here to download or listen to this week's Freedom Zealot Podcast.

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