Sunday, July 24, 2016

The Right to Resist and the Vindication of Julius Holmes

Julius Holmes was in his Macon, Georgia apartment cooking dinner when Officer Rogers arrived to arrest him. 

“I’ll be damned if you will,” Holmes hissed, making a furtive move toward a handgun he had placed on a nearby bed. 

Miraculously, Holmes wasn’t gunned down by Officer Rogers, who simply shoved him aside and seized the gun.

“I’ve come for you, and I am going to carry you even if it takes the whole police force,” Rogers growled.

“It probably will,” Holmes defiantly replied. “Go ahead and call them. I’ll die before I’ll be arrested.”

In many situations of this kind, a Mundane who made such a declaration would be killed, and the incident would be treated as a “suicide-by-cop.” Again, Rogers refrained from the use of deadly force. 

Not taking his eyes away from the non-compliant suspect, Rogers turned to the woman who shared the house with Holmes – who had filed a complaint against him after an argument the previous day – and directed her to call for backup. 

“Give me a summons,” Holmes told Rogers as the officer waited for reinforcements. “I promise to show up in court tomorrow.” 

Rogers grimly shook his head and moved to block the exit. About twenty minutes later he was joined by Officer Jobson, and the two grabbed Holmes by his arms to drag him from the house. 

Somehow Holmes had procured a knife by the time the officers went hands-on with him. Exercising preternatural self-restraint in dealing with armed abductors, Holmes discarded the weapon, rather than using it. Instead, he shrugged off the policemen and dashed back into the house – where he grabbed a shotgun. Once again, he declined to use lethal force. Instead of opening fire, Holmes took flight.

Summoned by the commotion in their neighborhood, a small crowd had congealed outside of the home. 

“Get him! Shoot him!” exclaimed a voice from inside the thickening mob. Concerned that the officers might act on that exhortation, Holmes pivoted in the direction of Officer Jobson, who unloaded four shots in his direction. Two of the bullets fired by the officer wounded Holmes in the extremities, and he was bleeding as he made a desperate dash toward the nearby woods. 

At this point, one member of the crowd, a Mr. Wimberly, decided to deputize himself, peeling off from the group in pursuit of Holmes. Jobson barked a warning about the shotgun – just as the weapon itself spoke. Wimberly, who was about twenty-five feet behind Holmes, fell to the ground, mortally wounded. If he hadn't failed the Tom Joad Test, Wimberly might have lived a long and rewarding life.
When did this become normal?
The gunshot wounds Holmes had suffered were not life-threatening, but they slowed him down long enough for the Macon Police to find and arrest him.

Charged with the murder of Mr. Wimberly, Holmes was convicted of voluntary manslaughter and sentenced to twenty years in the Georgia State Prison. That sentence was imposed in July.

“This court fully understands and appreciates the delicate, difficult, and sometimes dangerous duties which police officers are called upon to perform, and it will uphold and protect them in the legal discharge of their duties,” explained the opinion by appellate Judge C.J. Hill. “But to approve the verdict in this case would be in our opinion a violation of the sacred right of personal liberty, and a disregard of the right to self-defense, which the law guarantees to every citizen….”

During the trial, Holmes did not testify in his own defense, nor did his attorney present a case of any kind. On the facts as presented by the prosecution, Judge Hill declared, “the arrest or attempted arrest was illegal. There was no warrant. The defendant was not `wanted for a state offense, felony or misdemeanor.’ The offense for which he was wanted was a trivial violation of a municipal ordinance. This trivial offense was not committed in the presence of the arresting officers, but the day before a complaint was filed by the [landlady] that the defendant had cursed her” – an act that was described as “disturbing the peace.”

The officers had every opportunity to seek an arrest warrant, if an arrest would have been justified. A bench warrant could have been issued, as Holmes correctly pointed out. 

“A policeman under these circumstances cannot be allowed to dispense with a warrant when making or attempting an arrest any more than other officers of the law,” continued the appellate court’s ruling. When the policemen went into the defendant’s house to arrest him without a warrant, they were trespassers in a double sense – trespassing upon the sacred right of personal liberty, and trespassers upon the right of domicile. The defendant had a legal right to resist both trespasses, and to use in resistance as much force as necessary to make that resistance effective.” (Emphasis added.)

As armed intruders, the officers had no right to threaten Holmes with violence, or to lay hands on him: “When the officers attempting to make the illegal arrest of the defendant forcibly pulled him from his house and endeavored to handcuff him, they were guilty of an assault and battery. The defendant, thus wrongfully and illegally deprived of his liberty, had the right to regain it, and to use all force necessary for that purpose.” 

“The law values human life too highly to give an officer the right to proceed to the extremity of shooting one whom he is attempting to arrest for a violation of a municipal ordinance in order to prevent his escape, even though the offender cannot be taken otherwise,” Judge Hill pointed out. Had Holmes killed one of the officers, the court observed, that would have been an act of justifiable homicide. If Jobson or Rogers had succeeded in fatally shooting Holmes, “such killing would be felonious. Even with a warrant an officer cannot legally kill one who flees from him to avoid arrest for a misdemeanor.” On the same principle, the killing of the self-deputized Mr. Wimberly was “entirely justifiable.” 

“The principles of law which we have announced in the foregoing opinion are not new,” summarized Judge Hill. “They come down to us from the common law. They are well-settled both by the statutes and the decisions of the Supreme Court of this state.” The guilty verdict was “wholly unsupported by any evidence,” and incompatible with the law. 

“Every person has the right to resist an illegal arrest, whether attempted by an officer, or by a private individual, and, in resistance, may use as much force as necessary for the purpose,” Hill emphasized. This right inheres in every individual, “whatever his color or condition.”

Thus it was that Julius Holmes, a black resident of heavily segregated Georgia who had killed a white man while resisting the efforts of two white police officers to arrest him, was set free on November 10, 1908. 

To understand the tenor of the times in which that ruling was handed down, it must be remembered that just two years earlier, Georgia’s capital city had descended into a race riot in which hundreds of homes and businesses were destroyed, middle-class black men and women were dragged from trolley cars and beaten in the streets, and several dozen of them were killed. The state militia was deployed to reinforce the police, which did nothing whatsoever to protect the property of people living in black neighborhoods. 

Like citizens of every color and description in such circumstances, black Atlanta residents took up arms in their own defense

The riot began on a Saturday night, and the violence abated by Sunday morning. The following Monday, “the riot was revived when state troops were informed that Negroes located in the outer city limits were holding a meeting in which community leaders appealed to Negro citizens to defend themselves,” recalled a 1984 Master’s thesis by historian Barbara A. Tagger. The state troops invaded Brownsville, a section of Atlanta where Clark University and Gammon Theological Seminary were located, and where many black residents had fled during the riot. Not surprisingly, they weren’t willing to surrender their guns when the police, backed by the state militia, demanded them. 

After the police opened fire, black citizens shot back. One officer was killed, three others wounded. At least four black citizens were killed as well. Nearly three hundred black residents were arrested and charged with conspiracy to murder police officers. Several of them were murdered in ambushes as they were taken to jail. Meanwhile, the Atlanta police, several hundred newly minted Fulton County Sheriff’s deputies, and roughly 3,000 troops fanned out across Atlanta and the suburbs, conducting door-to-door gun confiscation. 

“In the effort to restore order the military authorities have begun to raid the negro settlements and disarm the negroes,” reported a September 25 New York Times dispatch. “This policy was inaugurated this morning and will continue until every negro in Atlanta and the suburbs is disarmed.” 

A few weeks later a Fulton County Grand Jury was convened to investigate the riot and the criminal charges arising from it. That body, composed of white citizens in a resolutely segregated southern city, lambasted the Atlanta Police Department for displaying “cowardice or active sympathy with the rioters,” describing its actions as “a blot on the fair name and face of Atlanta.”

“When innocent persons were being maimed and murdered no measure was too extreme for their protection,” intoned the panel. As the Georgia State Court of Appeals would recognize two years later, that principle applies to the use of righteous lethal force against police officers who unlawfully threaten the physical liberty of individual citizens, irrespective of “color or condition.” 

More than a century later, Vernon Riddick, a black police chief, in an address to a community gathering at a church in Waterbury, Connecticut, would exhort his largely African-American audience to submit with docility to whatever demand a police officer makes of them. If they are detained without cause, or their homes invaded without a warrant, they should comply with the officers and then “complain later to the department’s internal affairs office” if they “feel” their rights have been violated. 

Chief Riddick’s advice would have caused Julius Holmes to knit his brows in disgusted incredulity – and probably have provoked the same reaction from the arch-segregationist appellate judge who recognized that Holmes had a right to kill a police officer who tried to arrest him without cause. 

This week's Freedom Zealot Podcast examines Hillary Clinton's attempt to frighten people into believing that Trump is Goldwater revisited -- and why we can only wish that this were so:


Dum spiro, pugno!

Tuesday, July 19, 2016

We Have a "Duty" to Submit; They Have No Duty to Protect

“Somebody is going to die tonight,” a visibly agitated Anthony Lord told a close friend on July 16, 2015. Lord, a resident of Benedicta, Maine, was a registered sex offender who displayed symptoms of violent derangement. His anger had been kindled by a voice mail message from the Maine State Police reporting that a woman named Brittany Irish had accused him of sexually assaulting her, and asking him to visit a local barracks to be interviewed about the matter.

Lord’s entirely plausible threat was reported to Jaime Irish, Brittany’s brother. His frantic phone call to Brittany interrupted a conversation in her home with two Maine state troopers. They were discussing both Irish’s sexual assault complaint and her report that the barn at her parents’ home had been set on fire – most likely by Lord, who knew the family well. 

Brittany’s initial relief at the presence of two officers sworn to “serve and protect” her was quickly transmuted into incredulity when the troopers refused a request to deploy officers to watch her and her two small children (who were visiting relatives at another location). Protecting a rape victim and her family against a credible murder threat from an assailant who was also suspected of carrying out a retaliatory arson attack was not a priority worthy of the man-hours it would entail. 

Frantically grasping for whatever reassurance they could get, Brittany and her mother, Kimberly, asked if the police could leave a marked vehicle parked outside the home as a bluff. Even that was seen as an unacceptable expenditure of precious department resources that could be used for more important undertakings, such as traffic enforcement. Indifferently assuring Brittany that they would “keep an eye on the situation,” the troopers drove away.
The fire that destroyed the Irish family’s barn was not the beginning of Lord’s depredations. A few hours earlier he broke into the home of a Silver Ridge man named Kary Mayo, beat him, tied him to a chair, and stole his guns and pickup truck 

Early the following morning, Lord shot his way into the Irish home, killing Brittany’s boyfriend Kyle Hewitt and wounding her mother, who suffers from multiple sclerosis. Brittany, who suffered a superficial gunshot wound to her arm, exited through a bathroom window and tried to escape, but she was chased down by Lord. When a 60-year-old local resident named Carlton Eddy happened by in a truck, Lord flagged him down -- then shot the driver and stole his vehicle. After strangling her into submission, Lord tied the victim up with a seatbelt and sped away

Future murder victim Kyle Hewitt.
For reasons yet to be explained, Lord drove to a nearby lumber yard, where he shot two more men – Clayton McCarthy, who survived, and Kevin Tozier, who did not. As he drove away from the scene, Brittany pleaded with him to take her to the home of his uncle Carl, who was a mutual acquaintance. That Lord did so is another mystifying decision on his part. Displaying a flat affect and saying not a word about his actions, Lord “unloaded the gun like it was something that he was bound and determined to do,” his uncle later recalled.
Shortly thereafter, fourteen police vehicles surrounded the home and took Lord into custody. It is important to recognize that the police didn’t actually arrest the offender: That was accomplished by the victim and the suspect’s uncle. There was no official competence displayed in clearing this case, and just as little valor. All of the risks were borne by the victims, at fatal expense to two of them. Once the danger had abated, the police were eager to take credit for delivering the suspect into the care of the criminal “justice” system. 

It is a long-established principle that police officers and the agencies employing them face no specific or institutional liability when they fail to protect individuals from acts of criminal violence. Brittany Irish’s ordeal resembles that of the victims in the pivotal 1981 decision Warren v. District of Columbia in which the D.C Court of Appeals ruled that it is a “fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.” (Emphasis added.)

In the earlier case, two women contacted police to report an assault on a mutual friend. Officers were dispatched to the address, but – in the interest of that holiest of all considerations, officer safety -- declined to enter the apartment building. The desperate women called again, and this time the department didn't even bother to respond. Acting in the misplaced hope that help was nigh upon arrival, the women opened an apartment window and called out for assistance. This alerted the assailants, who abducted the women at knifepoint.

“For the next fourteen hours,” the court recounts in a clinical summary, “the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands” of their captors. 

The victims were not entitled to civil redress, the court insisted, because “The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists.” 

Brittany Irish, with brother Jaime, displays some of her wounds.
Brittany Irish’s case differs from the one described in that ruling in two significant ways. First, Andrew Lord not only shot, tortured, and sexually assaulted her, he assaulted several other people and murdered two victims after the police had been given detailed, specific advance warning regarding what was about to transpire – and they were in a position to help, but simply could not be bothered to do so.

Secondly, and most importantly, “We contend that the Maine State Police had established a `special relationship’ with Brittany,” attorney Dave Van Dyke told Pro Libertate. “In addition, it is clear that she was seriously harmed as a result of what the case law calls `State-created danger.’”

By contacting Lord and informing him of the sexual assault complaint, and then refusing to provide protection to Brittany, the State Police “acted to increase the threat which existed to Plaintiffs beyond that which otherwise existed,” the lawsuit contends. “Defendants made an implicit and/or express promise to protect Plaintiffs, Plaintiffs relied upon such promise, Defendants failed to fulfill such promise and Plaintiffs were injured thereby, such unfulfilled promise creating a special duty” to protect Brittany and her family. 

It should be pointed out that the conflict that led to Lord’s murder rampage had existed for several years, and Brittany had obtained two restraining orders against him. Following the initial July 14, 2015 sexual assault, Brittany received no assistance whatsoever from the police. She went to a hospital to undergo a rape kit examination; she carefully preserved the clothes she had been wearing as evidence. When she reported the rape on July 15, she was told by the State Police to come in the following morning and file a written complaint.
Attorney Van Dyke.
A few hours after the assault, Brittany had received a text message from Lord asking her to meet him to “talk about what had happened.” This prompted her to suggest to the police that she meet him and elicit a recorded confession from him – if an officer would maintain a discreet distance to ensure her safety. 

“That’s not the way we do it,” an officer explained to her. The preferred approach in such situations, apparently, is to inform a registered violent sex offender with psychotic tendencies that he had been accused of rape, and suggest that he volunteer to talk about it with the police at his leisure. 

After enduring a second rape and witnessing two murders, Brittany delivered the offender to the State Police. The department held a press conference to express perfunctory condolences to the people whom they had failed to protect – and then slammed down the portcullis to prevent critical scrutiny of its actions.
“We made a FOIA request for the official reports and other documents on this case,” Van Dyke told me. “It was denied on the grounds that they are part of an `ongoing investigation.’” Lord’s trial isn’t scheduled until August of 2017, which would give the State Police more than a year to keep those documents from the public. Accordingly, “we decided to file suit and get the documents through discovery,” Van Dyke explained. He is guardedly optimistic that Brittany’s case is strong enough to overcome “the cottage industry in `qualified immunity’” that constantly devises ever more elaborate rationales for failing to hold police officers accountable for their actions – and their derelictions. 

If Brittany Irish had been pulled over by a state trooper who demanded to search her vehicle and person for drugs or cash, she would have been under a state-prescribed duty to submit. This is the kind of “general public service” the police are expected to provide – or, more accurately, to inflict. She cannot opt-out of that “service” without being arrested and possibly killed by those providing it. Those same agents of state-authorized violence, however, opted out of helping Brittany when she and her family needed protection.

Over the past century, the state’s “justice” system has created a lengthy series of judicial precedents intended to discourage “self-help” on the part of people experiencing, or threatened by, criminal violence – whether official or private. Self-help was the only kind available to Brittany and her family, and it proved unavailing when the Maine State Police actively collaborated with a deranged man who tore a bloody swath through two counties.

This week's Freedom Zealot Podcast: 
A citizen being unlawfully deprived of his liberty by a police officer has "the right to regain it, and to use all force necessary for that purpose," ruled the Georgia Court of Appeals. When, and in what context, that ruling was issued might surprise you:

I am deeply grateful for your generous help in keeping Pro Libertate online.

 Dum spiro, pugno!

Sunday, July 10, 2016

Seek Ye First the Protection of Property Rights....

When Screwtape, depicted by C.S. Lewis as a mid-level administrator in hell’s Lowerarchy, gloated that “Prosperity knits a man to this world,” he might well have been thinking of tax-exempt religious corporations. 

The “Utah Compromise” on religious liberty, which was enacted with the conspicuous support of the LDS Church, offers a splendid case study of the depths of cravenness to which a corporate church will descend in order to preserve its tax exemption. The headline selected by the LDS Church-owned Deseret News captures the import of that ignoble legislation: “LDS Church’s chief lawyer says not all religious freedoms should be defended the same.” 

When “rights” become the subject of triage, they cease to be rights, and mutate into conditional, revocable privileges. All legitimate rights are property rights, and all property rights are absolute. They can, and must, be exercised simultaneously by believers, agnostics, and atheists alike, and are reconciled through commerce and contract.

Believers and non-believers of all sexes and gender identities should seek first the protection of property rights, and all other individual liberties will be added unto them.  Arguably the defining liberty is the right to say "no" -- to eschew commerce, as well as engage in it, to accept or decline an invitation to associate with others.
A vulgar expression of a sound principle: The Right to refuse.

In a free society, the officially licensed larceny called “taxation” would not exist, and productive people of all descriptions would keep everything they have earned, saved, or inherited. In an unfree but relatively civilized society, religious institutions (and non-religious charities) would be tax-immune, rather than tax-exempt. The Regime dispenses exemptions in the service of the true purpose of the income tax system, which is social engineering. This was pointed out seventy years ago by Beardsley Ruml, who at the time was Chairman of the Federal Reserve Bank of New York

For corporate churches, tax exemption defines the length of their leash. 

Digested to its essence, the Utah Compromise – which is being presented as a model for other states – treats the public expression of “religious liberty” in the “Love Wins” age in purely institutional terms. Religious individuals are free to believe in traditional views of marriage, sexuality, and “gender” – but only to the extent that those beliefs have no tangible impact on their public conduct, beyond the occasional Facebook post or letter to the editor. Those “core” liberties, furthermore, are highly contingent and subject to further restriction without notice.

The “non-negotiable” core rights supposedly protected by the “Compromise” legislation, explained Elder Lance B. Wickman, General Counsel for the Church of Jesus Christ of Latter-day Saints, consist of the right of religious people to worship privately, in their homes and congregations. They are also “entitled to the same rights of free speech and expression in the public square as nonbelievers,” and should be protected against official discrimination on the basis of belief.

Sermon on submission: Wickman.

Near the “core” can be found “freedoms that pertain to religiously important nonprofit functions carried on by religious organizations,” Wickman continues. This includes the right to make hiring and personnel decisions “based on religious criteria” and to carry out charitable outreach “without substantial interference by government and without being forced to engage in activities that are fundamentally contrary to their beliefs.”

In matters of commerce, however, “our expectations of unfettered religious freedom must be tempered,” Wickman advised. Religious believers are free – at least for now – to practice their faith at home and within the shelter of a government-recognized corporate church, but once they leave the reservation they “must be willing to make prudential compromises.”

“Preserving the ability of business owners to conduct every aspect of their businesses according to their religious beliefs will be impossible,” according to Wickman. “And the Church itself” – in this case, the LDS Church, but the principle can apply to any government-licensed denomination – “is not in a position to fight that fight if doing so comes at the expense of more core religious freedoms. Protecting those freedoms must remain the priority, or we risk losing even them.” (Emphasis added.)

The essence of Wickman’s message to religious believers is this: Be content to pray and worship at home, and within a corporate edifice devoted to that purpose, but also understand that the corporate church will not be an ally if you assert your property rights by declining business opportunities that conflict with your moral values. Yes, the state can force a Christian baker, or florist, or wedding photographer, to offer services for a same-sex-wedding ceremony, because this would be among what Wickman calls “appropriate compromises in the interest of fairness to others and peace.”

“Some might be shocked to hear this,” he continues, “but not all religious freedoms are equally important.” Government-dictated violations of property rights in the name of combating discrimination are “sustainable compromises,” Wickman asserts. But “barring someone from praying in his own home would be an intolerable act of tyranny,” he insists.

To anyone who actually understands and genuinely cherishes individual liberty – not only freedom of conscience, but freedom of association and property rights in principle – both of the impositions to which Wickman refers are intolerable. For Wickman and the corporation he serves, the prime directive is to protect the institutional interests of the church – not the individual liberties of its members. This will require that people who are serious about living according to their convictions, rather than simply discussing them, embrace “sustainable compromises,” which are merely temporizing measures intended to preserve corporate tax exemptions for religious institutions.

This is made clear by Wickman’s admission that “it is now virtually certain that theories once used to deny tax-exempt status to racist organizations eventually will be invoked to challenge the tax-exempt status of churches that as a matter of doctrine reject same-sex marriage or have sexual worthiness standards.”

What Wickman didn’t acknowledge was that the corporate Church he represents has already accepted limitations on its ability to defend its views in the political arena. Robin Fretwell Wilson, the University of Illinois law professor who drafted the “Utah Compromise,” has candidly admitted that the so-called “Grand Compromise bill” involved “the trading of LGBT rights for some modest political speech protections.”

Summarizing the “Grand Compromise” legislation, the New York Times observed that “The bill … [did] not address what has become one of the most divisive questions on gay rights nationwide: whether individual business owners, based on their religious beliefs, can refuse service to gay people or gay couples — for example, a baker who refuses to make a cake for a gay wedding.”

Wickman’s address made it clear that the property rights of private business owners are expendable in the sacred cause of protecting the corporate privileges of tax-exempt religious institutions. That calculation is based upon the assumption that it is possible to placate a movement that has proven to be implacable, as we are reminded by the disposition of a recent civil action in California.

Facing the threat of a spurious class action suit, Spark Network, Inc, which owns and operates a large number of dating websites, agreed to make its ChristianMingle site accessible to homosexual customers. Three years ago, Aaron Werner of Los Angeles and Richard Wright of San Francisco, filed separate complaints claiming that the Christian-oriented dating site violated state anti-discrimination law by offering “men seeking women” and “women seeking men” options.

Those suits, which sought “compensatory, treble and punitive damages,” eventually yielded a joint settlement under which the website would remove the heterosexual language from that dating site – and several others, including dating sites focusing on Catholic, Mormon, and Adventist markets. The company was required to pay each plaintiff $9,000 as a “service award for the efforts on behalf of the Settlement Class,” and nearly a half-million dollars to the attorneys who brokered this act of state-facilitated extortion.
The wolves aren't satisfied with one victim.
Significantly, the same order demanded that Spark, Inc. “will continue to operate Crosspaths which facilitates faith-based same sex matching and that Spark will continue to operate Crosspaths and provide same or similar same sex matching until at least December 21, 2016.”

In other words, Spark did not discriminate against gay people interested in pursuing “faith-based” relationships. The purpose of the suit was not to require an accommodation for gay customers, but to compel the company to discard sites of exclusive interest to heterosexual Christians, because the very existence of such voluntary associations is considered impermissible.

Under the formula described by Wickman, this is an entirely acceptable outcome, because it doesn’t implicate “core” issues, such as the right of a religious individual to pray at home, or the security of a corporate church’s tax exemption. He and others of his persuasion have badly miscalculated if they believe that the cultural totalitarians who promoted that lawsuit will relent until they have broken all non-conforming institutions on the wheel of their malicious ambition.

 This week's Freedom Zealot Podcast examines the hideous Dallas sniper attack and the so-called "War on Police":


Dum spiro, pugno!