Community Gathers to Remember 3-year-old Killed in September 7, 2021 Charlotte Drive-by Shooting

From http://www.wcnc.com by Ashley Daley, September 9, 2021

CMPD says nearly 150 bullets were sprayed into his home, which also injured his 4-year-old sister.

Family, neighbors, friends and community activists gathered outside 3-year-old Asiah Figueroa’s northwest Charlotte home Wednesday evening, to remember the little boy and to speak out against gun violence.

In the blink of an eye Tuesday night, his mother and father’s worst nightmare became a reality. Figueroa, who was asleep in his bed at his home on Richard Rozzelle Drive, was killed when gunfire erupted.

The Charlotte-Mecklenburg Police Department says nearly 150 bullets were sprayed into his home, which also injured Figueroa’s 4-year-old sister.

The sound of that gunfire may never be forgotten, but Wednesday — if only for a brief time – it was silenced and replaced with sounds of a community rallying together against the violence.

There was prayer. 

“God we’re sick of it, we’re tired and we need you to show up, even right now,” said a pastor in front of the crowd of roughly 50 people who had gathered.

The crowd then held a balloon release. 

Figueroa’s father so overcome with emotion at one point, a woman in the crowd, asked the men “to surround this daddy in love y’all. All the men, you have to strengthen him and build him up.”

One by one the men surrounded him, giving him the strength to release his balloon into the air. Figueroa’s mother was also there heartbroken and sobbing, at times finding it hard to stand.

In addition to showing their love and support for the family, the community at the vigil spoke out against the violence.

“I am asking for all parents around the world to start taking responsibility of their child’s actions because it starts at home,” said Andrea Walker, a friend of the family.

CMPD says they believe the shooters could be teenage students connected to three Charlotte high schools including Hopewell High, North Mecklenburg High, and Chambers High, formerly Vance.

“What we have to start doing, the grassroots part of this work — and that’s being here and knowing what’s going on and keeping our ears to the streets and working with these young people, because they’re going to be adults one day, if they live to see it,” Leondra Garrett with the United Neighborhoods of Charlotte said.

CMPD says no arrests have been made.

Published in: on September 9, 2021 at 9:53 pm  Leave a Comment  

2020 Becomes Deadliest Year in Charlotte’s History

From http://www.wbtv.com, December 29, 2020

The end of 2020 is a heavy one for the Charlotte-Mecklenburg Police Department while they investigate 123 homicides, a record number of killings for the city in a single year.

CMPD is reminding the community the number represents 123 lives lost to violent crime in Charlotte in 2020, leaving hundreds of families mourning and a countless number of lives changed forever. It paints a painful and tragic picture of the level of fatal violence in the city.

“I don’t know why someone would pick up a gun to solve a problem,” said Lt. Bryan Crum at a CMPD press conference on Wednesday morning. “We have 123 community members We lost. An impact of a homicide can’t be measured in a number.”

On the afternoon of Tuesday, Dec. 29, Charlotte-Mecklenburg Police Department said it was responding to the scene of a homicide at an apartment complex in the northeast part of the city.

This would potentially mark the 123rd homicide of 2020 in Charlotte.

CMPD sometimes rules what was once considered a homicide as justified, which alters the homicide rate. Most recently, CMPD ruled one of 2020′s fatal shootings as justified.

Such was the case with Charlotte’s deadliest year for homicides – 1993. That year was previously believed to have had 129 homicides in the city. Now it is 122 homicides for the year 1993.

Published in: on December 31, 2020 at 2:42 pm  Leave a Comment  

North Carolina Governor’s Constitutionally Questionable Curfew / Face Covering Order Is Virtually Unenforceable

By Brian K. Lutes, December 11, 2020

Governor Roy Cooper’s Executive Order 181, “Implementing a Modified Stay at Home Order and Requiring Night-Time Closure for Certain Businesses and Activities for all North Carolinians During Overnight Hours”, commonly known as the “The Governor’s Curfew Order”, that was issued on December 8, 2020 has been repeatedly said to require everyone in the State of North Carolina to be and stay home between the hours of 10 PM and 5 AM or face arrest. It has also been repeatedly said to require individuals to wear face coverings or face arrest. But the reality is that the Order is virtually unenforceable.

A Governor requiring ostensibly healthy people to not only wear face coverings, but to stay home against their will with no reasonable suspicion, let alone proof, that they are infected by a contagious virus is not only repugnant to our Constitutional system, but amounts to House Arrest (confinement to one’s home as a condition of bail upon being charged in a court of law with a criminal act or as one’s sentenced punishment for conviction of a criminal act in a court of law) without cause or even an accusation of wrongdoing. This may even amount to False Imprisonment (defined by our courts as an unjustified detention of a person that occurs when an unlawful restraint imposed by virtue of purported legal authority results in an arrest (McKendree v. Christy, 172 N.E. 2d 380 (1961)) resulting from a False Arrest (defined by our courts as unlawful restraint of another’s personal liberty or freedom of locomotion (Johnson v. Jackson, 193 N.E. 2d 485 (1963)). The defendant in a False Arrest / False Imprisonment case need not be a law enforcement officer but merely someone that asserts improper legal authority to detain (116 P. 234, 237).

It is also akin to Prior Restraint, (a situation where the government, be it state or federal, or an agency thereof, takes some action to prevent some person from doing some thing that the government believes will cause, or is causing, public harm prior to a ruling by any judicial or administrative body that what the person is doing, or will do, violates any law or lawfully adopted administrative regulation the being issued). Our courts have held that such actions by the government are subject to strict scrutiny and bear a heavy presumption against constitutional validity (Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963)) and are rarely upheld (New York Times Co. v. United States, 403 U.S. 713 (1971)); (Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558 (1976)); Tribe, American Constitutional Law 12-34 (3d ed. 2000).

First, a review of the Frequently Asked Questions brief for Executive Order 181, also issued on December 8, 2020, reveals that paragraph 5 of page 4 “Are there any exceptions the modified Stay at Home Order?” says: “Yes. Individuals may leave home during the Stay at Home Period to: travel to or from a place of work; perform work at their workplace when the worker’s presence is required by the worker’s employer; travel for work purposes; obtain food, medical care, fuel, or social services; travel from a business that closed at 10:00 p.m.; travel to a business that will open at 5:00 a.m.; travel to take care of a family member, friend or pet in another household; travel to or from a religious service; travel necessary for personal safety; and travel into or out of the state.”

While paragraph 6 of page 4 states “Are individuals permitted to stay with family and friends during the Stay at Home Period?” “This order does not prohibit individuals from staying with family and friends…”

And, paragraph 2 of page 5 states “If I am outside my home during the Stay at Home Period, am I required to show proof”? “No. Individuals are not required to show documentation that they fall within an exception to the Stay at Home Order.”

Now, we’ll review the language of Executive Order 181 itself. As in previous Executive Orders pertaining to the Corona Virus issued by the Governor, he points to the North Carolina Emergency Management Act (NCGS 166a et sequitor) as his authority to declare emergencies and act unilaterally. The Emergency Management Act does lay out conditions under which the Governor can act and exercise powers he would not have in normal, non-emergency situations once an emergency is declared. The Governor declared an emergency for the Corona Virus via Executive Order 116. However, our courts have held that the Legislative branch “cannot delegate or sign over its authority to any individual, corporation, or foreign nation” (16th Corpus Juris Secundum, 141).

And, under the Separation of Powers Doctrine enshrined in our Constitutional system (which our Supreme Court has defined as a “bulwark against tyranny and looks to prevent any person or group from imposing its unchecked will” (U.S. v. Brown, 381 U.S. 437, 443 (1965)), a Governor cannot “make a law”. A Governor decreeing that every citizen must not only wear a face covering, but stay in their home between certain hours under the threat of arrest sure sounds like lawmaking to me.  Only the legislature can make a law and our Supreme Court has held that even they do not have the power to pass laws that are outside the bounds of the Constitution (Marbury v. Madison, 5 U.S. 137 (1803)).

It has been well settled by our courts that “The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” (16th American Jurisprudence, 256, 2nd edition).

It must also be considered that the Governor’s Order, in requiring everyone in the State of North Carolina stay at home against their will, depriving them of their liberty (freedom of movement) with no reasonable suspicion, let alone proof, that they are infected by a contagious virus, or that they have engaged in any wrongdoing whatsoever, appears to be a violation of our Constitution’s Fifth Amendment, the Due Process Clause. The Amendment was originally a prohibition only on acts of the Federal Government, but was applied to the States by Section 1 of Fourteenth Amendment which states: “Nor shall any state deprive any person of life, liberty or property, without due process of law.”

In relation our Constitution’s Due Process requirement, Our Supreme Court has said that the requirement of ‘due process’ is not a fair-weather or timid assurance. ‘Due Process must be respected in periods of calm and in times of trouble‘; ‘Due Process,’ in its ultimate analysis, expresses a respect, enforced by law, for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, ‘Due Process’ cannot be imprisoned within the treacherous limits of any formula. ‘Due Process’ represents a profound attitude of fairness between man and man, and more particularly between man and government (Anti-Fascist Committee v. McGrath, (1951)).

In Section 1 of the Order, “Introduction“, we find Sub-Section 1.2, “Exemptions“, which states: “Worship, religious, and spiritual gatherings, funeral ceremonies, wedding ceremonies, and other activities constituting the exercise of First Amendment rights are exempt from all the requirements of this Executive Order…”

The phrase “other activities constituting the exercise of First Amendment Rights” includes the right of individuals to gather together or to “assemble” to petition their government for the redress of grievances which our Supreme Court has said is among “preferred rights” subject to special constitutional protection (Murdock v. Pennsylvania, 319 U.S. 105 (1943)).

So the very language of the Governor’s Order, that supposedly imposes a 10 PM to 5 AM curfew on everyone in North Carolina, exempts anyone and everyone that wishes to assemble for political purposes which includes individuals from separate households gathering together, regardless of the location in which they choose to do it, to simply discuss their displeasure with the Governor’s Order. Meaning the Governor’s Order is useless.

In Section 2, “Face Coverings”, the order states “…this section generally requires North Carolinians to wear Face Coverings in public places…and authorizes law enforcement to enforce Face Covering requirements against individuals who fail to wear a Face Covering outside the home without any applicable exception“.

In Section 2.1 “Face Coverings Required in Public Places” we find Sub-Section C which says: These requirements shall apply to all people at least five (5) years old, unless an exception applies.

Section 2.4, “Exceptions”, lists 10 exceptions, listed a-j, to the requirement that Face Coverings be worn and states: “This executive Order does not require Face Coverings for – and a Face Covering does not need to be worn by – a worker or guest who:

  1. “Should not wear a Face Covering due to any medical or behavioral condition or disability, including, but not limited to, any person who has trouble breathing, …”

The final paragraph of Section 2.4 says “Anyone who declines to wear a Face Covering for these reasons should not be required to produce documentation or any other proof of a condition.”

Section 4.3, “Travel Restrictions: Stay At Home Overnight”, the Governor says he is imposing the following curfew and restrictions upon the movement of persons within the emergency area, which is the entire State of North Carolina.

  1. Between 10:00 PM and 5:00 AM, all individuals in North Carolina must stay at home or at the place they will stay for the night, EXCEPT FOR: and then lists 11 (listed 1-11) exceptions to the requirement that people stay home; and
  2. Law enforcement personnel are directed to enforce this Subsection (4.3) of the Executive Order against individuals ONLY IN CASES OF WILLFUL OR REPEATED VIOLATIONS.

Our Supreme Court has defined “WILLFUL” as an act done stubbornly, obstinately, perversely, or with a bad purpose; without justifiable excuse (U.S. v. Murdock, 290 U.S. 389, 394 (1933)) so obviously if a person falls under just one of the listed exceptions to the purported requirement that everyone stay home between the hours of 10 PM and 5 AM they cannot be seen as willfully violating that requirement. And, since the Frequently Asked Questions Brief for Order 181, in paragraph 2 of page 5, states “If I am outside my home during the Stay at Home Period, am I required to show proof”? “No. Individuals are not required to show documentation that they fall within an exception to the Stay at Home Order” it is impossible for a law enforcement officer to develop probable cause to believe that anyone who appears to be violating the Order’s requirements is, in fact, actually violating them. Meaning the Governor’s Order is not enforceable.

The simple truth is that if you are outside your home “after curfew” or in public without wearing a face covering, law enforcement cannot even question you as to why without Probable Cause to believe that one of the many exceptions to the purported requirements that you Stay Home or wear a Face Covering do not apply to you, much less arrest you.

Our Supreme Court has defined Probable Cause as “a requisite element of a valid arrest consisting of the existence of facts and circumstances within one’s knowledge and of which one has reasonably trustworthy information, sufficient in themselves to warrant a person of reasonable caution to believe that a crime has been committed (Carroll v. U.S., 267 U.S. 132 (1925)) and which “cannot be based on facts which are completely innocent in themselves (Spinelli v. U.S., 393 U.S. 410 (1969)).

Law Enforcement Officers should not even consider enforcing Executive Order 181 not only because it is Constitutionally questionable, but because the very language of the Order makes it impossible for officers to develop probable cause to believe that any of the exceptions laid out in the order do not apply to an individual or group of individuals that are not wearing face coverings or are “out after curfew”.

Published in: on December 15, 2020 at 10:36 pm  Leave a Comment  

What Are Our Constitutions?

By Brian K. Lutes

It is THE HARD TRUTH that most of the people I have met in my life, and especially most of our elected representatives at the local, state, and federal levels, do not truly understand what our constitutions are, why our founding fathers wrote them, or even what they say.

I was present for a conversation between a citizen and a County Commissioner in Pennsylvania several years ago in which the citizen was attempting to convince the Commissioner to propose a resolution in support of the 2nd Amendment. The Commissioner responded: “Oh, that’s that gun thing, that’s none of our business, call the NRA”. The Commissioner then walked away.

“That’s that gun thing, that’s none of our business…”? Are you kidding me? Unfortunately, it is not a joke and most people would be surprised to know just how often this is the case. Every elected official, and law enforcement officer, no matter the office, location, or political affiliation, prior to taking office, must put his hand on the bible and take an oath to “support, obey, and defend the Constitution of the USA and of the State of _____ from all enemies, foreign, and domestic”. Yet, most of them have never read or truly tried to understand what our most sacred documents represent.

In my opinion prior to taking the oath, elected officials and prospective law enforcement officers should be asked if they have ever read the constitutions and then be required to pass a test on the Bill of Rights. If they haven’t read the documents or can’t pass the test on the rights protected by them, they should not be sworn into office until they can do so.

In short, our Constitutions are the supreme laws with which all other laws must comply (140 F. Supp. 925)  Our courts have defined our constitutions in these terms:”A constitution represents a mandate to the various branches of government directly from the people acting in their sovereign capacity; the organic law framing a governmental system (229 A.2d 388, 394). And, the US Supreme Court, in one of the earliest cases to deal with the question of what power was the Constitution, Marbury v. Madison, 5 U.S. 137 (1803), said “If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply”. This cemented our Constitution as the Supreme law of the land.

And, In American law, the word Constitution specifically refers to a written instrument which is the basic source from which government derives its power, but under which governmental powers are constrained. It is the emphasis on restrictions of governmental powers that distinguishes the American concept. (Schwartz, Constitutional Law, Ch. 1, p. 1 (1979))  It is the supreme law of the land and it cannot be abrogated even in part by statute. Like the federal constitution, a state constitution is the supreme law within the state. (140 F. Supp. 925, 928)

The Federal government that was created with the adoption of the Constitution was delegated (delegation of power is not to be confused with surrender of power, which implies abandonment or a yielding of power to another (2 So. 2d 11, 16) and is from a superior to an inferior) very few and well defined powers laid out in Article 1, Section 8 of the Constitution of the United States.

Those that were in favor of adopting the Constitution and creating a more powerful Federal government thereby were called Federalists. They wrote a series of newspaper articles that have come to be known as The Federalist Papers stating the reasons they were in favor of adopting the proposed Constitution and the powers that the new government would have. The Federalists included, among many others, James Madison who is known as the Father of the Constitution, and Alexander Hamilton.

The people that were opposed to adopting the proposed Constitution were known as Anti-Federalists. They also wrote a series of newspaper articles that have come to be known as The Anti-Federalist Papers. They feared, rightly so, that the new government that would be created would eventually become tyrannical just like the King of England they had just escaped. They demanded that protections be written into the Constitution in an effort to guarantee that certain rights of the people could not be violated by the new government. The guarantees they demanded became known as The Bill of Rights, the first 10 amendments of the Constitution. One of the leading Anti-Federalists was Patrick Henry.

When the Anti-Federalists insisted upon the Bill of Rights, the Federalists said it was not necessary to protect rights such as freedom of the press, the right to bear arms, etc. since the new government would not be delegated any power to interfere with those rights as the new government would only be able to exercise the few powers specifically delegated to it and none that were not specifically delegated to it. Thankfully, the Anti-Federalists still insisted on the protections and were successful in having them adopted.

Let us be clear, James Madison, the father of the Constitution, wrote in the Federalist Papers that the new Federal government would only be able to exercise powers that were specifically delegated to it. And, as an added protection the 10th Amendment states: “ The powers not delegated to the United States (Federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” 

The US Supreme Court has held that the Amendment expresses the original framers’ intent that the “central” government be a government of limited powers and was included in the Bill of Rights to prevent the federal government from attempting to exercise powers that were not specifically delegated to it. (426 U.S. 833, 851) (Schwartz, Constitutional Law 2.2 (2d ed. 1979))

In short, this Amendment clearly shows that it was the intent of our Founding Fathers that the Federal government would not be able to do whatever it wanted. If the Congress wanted to carry out a particular task it would have to point to a specific clause in the Constitution that allowed it to carry out that task. If there were no authorizing clause in the Constitution, the task could not be undertaken by the Federal government.

It can’t be stressed too strongly that our Founding Fathers had just escaped a tyrannical King that, as a supreme ruler, was virtually unlimited in his power over their lives. They knew they had to have some form of government, but they were extremely fearful that the government they were creating might someday become just as tyrannical as the King was, so in an effort to prevent this new creation, the Federal government, from ever becoming a threat to the liberty of the American people they delegated very few and well defined powers to it, and then added very specific denials of power (The Bill of Rights) to it.

After our Founding Fathers came to agreement on the wording of the Constitution and the powers the new government would exercise, they submitted it to the individual States for their ratification (approval). The Constitution would apply to and bind together only those States that approved it. Any state that did not approve the Constitution would be bound to other non approving States by the old Articles of Confederation. If only one State refused to ratify the new Constitution that State would stand as an independent “nation state”.

In fact, North Carolina did not ratify the Constitution for well over a year after the other States had ratified the document and joined the “union”. During the time that North Carolina had not ratified the Constitution it stood independently until it decided for itself whether or not it would join her sister States in the union. If North Carolina had never approved the Constitution it would still stand as an independent nation state.

Basically, The Constitution of the United States is a voluntary compact, a contract if you will, between sovereign (self determining) States with each deciding for itself, to create a common agent, the Federal government, in which each State would have representation, to carry out very few powers that were laid out in writing for their mutual benefit. The best analogy I can think of to explain the way the relationship between the States and Federal government is supposed to be is this: Think of the States as individual families that share a common problem. Mostly they need a solution to security issues. Each family picks representatives that get together (the Continental Congress) to discuss possible solutions to the problem. The family representatives hammer out an agreement and take it back home to discuss it with the whole family. Each family raises questions about & objections to the proposed solutions and orders their representatives to meet again and the process continues. Finally, the representatives decide that the solution is to get a very tough dog (Federal government) for all the families to share. However, some of the families have members that are afraid of dogs so the representatives craft a very strong collar & chain (the Constitution) to restrain the dog so it cannot harass or injure any innocent family members, but is loose enough so that the dog can patrol the perimeter and chew up trespassers. Each representative then takes the collar & chain home for every family member to inspect and after the families agree that the collar & chain are strong, yet loose, enough, they attach it to the dog and set him about his assigned duties

Published in: on November 29, 2020 at 10:11 pm  Leave a Comment  

The Role and Purpose of Law Enforcement in a Free Society

By Brian K. Lutes

It is very easy for law enforcement officers to lose sight of their purpose; with 6 years of experience as a police officer and Deputy PA State Constable I know this to be true. We often get caught in the vicious trap of trying to do all we can to get the bad guys off of the streets while at the same time trying to protect the good guys in a politically correct manner.

It is nearly impossible, but somehow we must get the job done, and we do.

It is not easy enforcing laws in a free society; it is not supposed to be. It would be much easier enforcing laws in a society where the citizens have, what some would call a healthy, fearful respect, of men with badges on their chests. A society where the citizens know that you don’t dare step out of line or the police will show up and make an example of you for all to see. And, if you want to work in that type of society you only need to move to China, Cuba, or any one of several Eastern European countries where law enforcement officers are feared and the citizens step aside when they approach.

In those societies police officers are looked upon as overseers making sure no one steps outside of the boxes their government masters have drawn for them. Making sure that citizens who express displeasure with those same government masters are taken away for ‘re-education’ before they corrupt their neighbors with crazy notions of freedom of speech and assembly.

However, we can thank God, and our Founding Fathers, that we do not live in such a country; at least not yet, and a key determining factor in whether or not we ever will, falls on the shoulders of us, the law enforcers.

We are the individuals that are on the street, among the people, our neighbors and families, applying the rules of civil society as laid down by our fellow employees of the people, legislators. And it is us that decides whether or not to write the ticket or make the arrest for whatever violation of law we observe or discover; It is our discretion (The reasonable exercise of a power or right to act in an official capacity; involves the idea of choice, of an exercise of the will, 94 N.W. 2d 810, 811).

Our #1 job while serving our fellow citizens is to live up to our Oath of Office to “Support, Obey and Defend the Constitution of the state in which we serve and the Constitution of the United States of America against all enemies, foreign AND DOMESTIC; and that I will bear true faith and allegiance to the same… and I do further solemnly swear that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of law enforcement officer with fidelity”. We have all taken this oath, or something very similar to it, before we ever pinned that precious badge on our chests. But, how many of us ever really thought about and realized the significance of that oath we so willingly took? I fear not enough of us have.

When we take the oath of office we swear before God that we will, above all else, support, obey, and defend our Constitutions, state and federal. We do not swear to get the bad guy at all costs. We do not swear to be creative, without technically lying, in our report writing to get the warrant (This amounts to “False Swearing which our courts have defined as a “willful and corrupt sworn statement made without sincere belief in its truthfulness” See Perkins & Boyce, Criminal Law 511 (3d ed. 1982)). We swear an oath to uphold our Constitutions and the protections of American freedom therein.

The Constitutions we have all sworn to uphold are the very foundation of our uniquely American lives. Our Constitutions are the only thing standing between our way of life and the subservient lives of Cubans or the Chinese. Every time our Constitutions are violated, be it by Legislators, Judges, or Executive Branch Agents, our American way of life suffers. It especially suffers when it is violated by those of us that have sworn to uphold it.

Our purpose as law enforcement officers, every time we put that badge on, is to go out and preserve our uniquely American way of life by enforcing, or not enforcing, our laws in accord with our oaths to our Constitutions.

We, I say we because those of us who are charged with enforcing the laws are subject to those same laws, as Americans, have a right to “Life, Liberty, and the Pursuit of Happiness” and when those rights are violated by someone who murders, steals, assaults, or kidnaps one of our fellow citizens we show up and take action living up to our oaths by arresting the offending individual, depriving them of their liberty, pursuit of happiness, and possibly their life, for violating the rights of the victim(s); we do not technically arrest the offending individual for killing the victim, but for violating the victim’s right to life.

We also, as a result of our oaths to support, obey, and defend the Constitutions, have a responsibility to not enforce, by exercising our prosecutorial discretion (which our courts have defined as “The wide range of alternatives available to a prosecutor in criminal cases, including the decision to prosecute, the particular charges to be brought, etc… or not to prosecute (see Lafave, Arrest 72 (1965)), laws passed by the legislatures that violate our Constitutions (consider this: “The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to obey an unconstitutional law and no courts are bound to enforce it” (16th American Jurisprudence, 256, 2nd edition).

For example, say the town council adopts an ordinance, which our courts have defined as “A local law that applies to persons and things subject to the local jurisdiction(see 90 F. 2d 175, 177) that says no one in the town is allowed to possess a gun for any reason and that law is put on the books in the town. We as law enforcement officers have an obligation to refuse to enforce that law because it is in violation of the 2nd Amendment of the U.S. Constitution, “…The right of the people to keep & bear arms shall not be infringed” and Article 1 Section 21 of the Constitution of the Commonwealth of PAThe right of the citizens to bear arms in defense of themselves and the state shall not be questioned” that we took an oath to support, obey, and defend.

Published in: on November 29, 2020 at 8:33 pm  Comments (1)  

North Carolina Governor’s Constitutionally Questionable Executive Order (# 180 of November 23, 2020) on Face Coverings (masks) Provides for Exceptions

By Brian K. Lutes, November 26, 2020

This is a hot button topic and I have absolutely no desire to stir up an argument on the efficacy of face coverings or whether or not they should be worn as everyone can make those decisions for themselves after reading the opinions of medical experts on both sides of the issues.

While it is clear that the North Carolina Emergency Management Act (NCGS 166A et seq.) allows the Governor to Declare Emergencies, which he did on March 10, 2020 for the Corona Virus via Executive Order 116, and take certain measures to address them, his authority to force ostensibly healthy people who show no signs of being ill or proof that they’ve tested positive for a contagious virus, to wear face coverings under the threat of being arrested for not doing so is akin to “Prior Restraint” which is a situation where the government, be it state or federal, or an agency thereof, asks a court for an order preventing someone from doing something that the government believes will cause public harm they have have made known they intend to do before they actually do it. Our courts have held that such requests from the government are subject to strict scrutiny and bear a heavy presumption against constitutional validity (372 U.S. 58, 70 (1963)) and are rarely upheld (New York Times Co. v. United States, 403 U.S. 713 (1971)); (Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558 (1976)); Tribe, American Constitutional Law 12-34 (3d ed. 2000).

Under the Separation of Powers Doctrine enshrined in our Constitutional system, which our Supreme Court has held to be a “bulwark against tyranny and looks to prevent any person or group from imposing its unchecked will” (U.S. v. Brown, 381 U.S. 437, 443 (1965)), a Governor cannot “make a law”.  Only the legislature can make a law and our Supreme Court has held that even they do not have the power to pass laws that override the Constitution (Marbury v. Madison, 5 U.S. 137 (1803)).

The Governor points to the North Carolina Emergency Management Act (NCGS 166a et seq.) as his authority  to force individuals to wear face coverings, but we must consider that it has been held by our courts that the Legislative branch “cannot delegate or sign over its authority to any individual, corporation, or foreign nation” (16th Corpus Juris Secundum, 141).

However, for the purposes of this writing I’ll proceed as if there are no questions about the Constitutionality of the Governor’s Order. Many people who wear and believe in the efficacy of face coverings get absolutely incensed when they encounter others who do not wear face coverings and believe that they are uncaring or indifferent to the health & safety of others. However, this is usually not true as many people who do not wear face coverings simply cannot wear them due to medical or behavioral issues and the Governor’s Order provides exceptions for these situations.

The enforcement part of the Governor’s most recent Executive Order pertaining to the Corona Virus (#180 of November 23, 2020) is found in Sub-section I (D) “Creating an Enforceable Legal Duty for Individuals, as Well as Businesses, to Follow Face Covering Requirements”.

Section 2.7 of the above referenced Sub-Section (which actually amends section 2.7 of Executive Order 169) “Enforcement of Face Covering Requirements” states:

“If a person does not wear a Face Covering in a situation where a Face Covering is required under this Executive Order, AND IF AN EXCEPTION TO THE FACE COVERING REQUIREMENTS DOES NOT APPLY:

a.) Law enforcement officers may (a choice to act, not a requirement (The Peoples’s Law Dictionary, retrieved November 26, 2020)) cite the people who failed to wear Face Coverings as required by Executive Order; and/or

b.) Law enforcement officers may cite a business or organization that failed to enforce the requirement to wear Face Coverings.

Further, if a business or organization does not allow entry to a worker or guest because the person refuses to wear a Face Covering, and if that worker or guest enters the premises and refuses to leave the premises, law enforcement personnel may enforce the trespassing laws and any other laws that the worker or guest may violate”

To me, the issue is that the Governor, in Section 2.7 of Executive Order 180, states that individuals can be cited for not wearing a face covering only if an exception to the requirement does not apply to the individual, but the Executive Order does not list what the exceptions to the requirement are.

To find the exceptions to the requirement that individuals wear face coverings you have to read the Frequently Asked Questions (FAQ) brief issued for Executive Order 180 which states in paragraph 5 of page 4:

Are there any exceptions to the face covering requirement?”

“Yes, there are certain exceptions to the face covering requirements as spelled out in Executive Order 169, Section 2.4”

 So we go to Executive Order 169 (issued on September 30, 2020) titled: “Restrictions to Protect Lives During the Covid-19 Pandemic: Phase 3”

And find in Section 2.4, titled “EXCEPTIONS”,14 exceptions (listed a-k) to the requirement that individuals wear face coverings.

Section 2.4 “Exceptions” states:

This Executive Order does not require Face Coverings for-and a Face Covering does not need to be worn by-a worker or Guest who:

a. Should not wear a Face Covering due to any medical or behavioral condition or disability (including, but not limited to, any person who has trouble breathing, or is unconscious or incapacitated, or is otherwise unable to put on or remove the Face Covering without assistance);

b. Is under five (5) years of age;

c. Is actively eating or drinking;

d. Is strenuously exercising;

e. Is seeking to communicate with someone who is hearing-impaired in a way that requires the mouth to be visible;

f. Is giving a speech for a broadcast or to an audience·

g. Is working at home or is in a personal vehicle;

h. Is temporarily removing his or her Face Covering to secure government or medical services or for identification purposes;

I. Would be at risk from wearing a Face Covering at work, as determined by local, state, or federal regulations or workplace safety guidelines;

J. Has found that his or her Face Covering is impeding visibility to operate equipment or a vehicle; or

k. Is a child whose parent, guardian, or responsible person has been unable to place the Face Covering safely on the child’s face.

Anyone who declines to wear a Face Covering for these reasons should not be required to produce documentation or any other proof of a condition.

Children under two (2) years of age should not wear a Face Covering.”

Section 2.5 of Executive Order 169 titled “Application of Exceptions” , states:

Under this Executive Order, all North Carolinians will be on the honor system about whether or not there is a reason why they cannot wear a Face Covering. Everyone in this state is asked to tell the truth and – if they are healthy and able to wear a mask – to wear a Face Covering so that they do not put other people at risk of serious illness and death.”

Section 2.6 of Executive Order 169 titled “How Businesses May Accommodate Exceptions”, states:

If a Guest states that an exception applies, a business may choose to offer curbside service, provide home delivery, or use some other reasonable measure to deliver its goods or services.

The question of whether or not a business can legally deny entry to someone who is not wearing a face covering due to one or more of the exceptions to the requirement they be worn is complicated, but my research leads me to believe they probably legally can (but they are not required to do so) even considering the Americans with Disabilities Act, as long as they offer some other reasonable means such as delivery or curbside pickup to obtain the goods or services they offer. But under no circumstances can a business say to someone not wearing a face covering due to a medical exception: “You’re not wearing a face covering so we’re not going to serve you in any way” as that is not permissible under the Americans with Disabilities Act.

The main point I’m trying to make is that, despite the repeated droning of the media and Governor Cooper himself, again, assuming the Executive Orders are in accord with both the North Carolina and US Constitutions (which I don’t believe they are) no one can be cited or arrested under the Governor’s Order(s) for not wearing a face covering in any situation if just one of the 14 exceptions to the requirement that face coverings be worn listed in Section 2.4 of Executive Order 169 applies to them.

And, if anyone claims they are unable to wear a face covering for a medical or behavioral reason they cannot be asked or forced to produce documentation or proof of that reason by anyone.

We must always remember that our Constitution is the supreme law of the land with which all statutes must comply and that “The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to to obey an unconstitutional law and no courts are bound to enforce it. (16th American Jurisprudence, 256, 2nd ed.)

“If an acquaintance with the Constitution and laws of our country be requisite to preserve the blessings of freedom to the people, it necessarily follows that those who are to frame the laws or administer the government should possess a thorough knowledge of these subjects. For what can be more absurd than that a person wholly ignorant of the Constitution should presume to make laws thereto?

Or that one who neither understands the Constitution nor the law, should boldly adventure to administer the government.” (Blackstone’s Commentaries, Preface by St. George Tucker (1803))

Published in: on November 26, 2020 at 3:13 pm  Leave a Comment  

Veteran Carries Flag throughout Arkansas, Spreading Unity

From KAIT by Miranda Reynolds via WBTV.com

A man from Lee County served in combat for our country and when the coronavirus pandemic began in March, he decided to spread unity and love.

“By the time I start out running and that flag goes up, I hear the horns start blowing, people waving, thumbs up, people applaud,” he describes.

Nathaniel Thomas knew his physical talents and then decided to use them for good.

“It was placed on my heart then, ‘What can I do as a citizen to try to keep Forrest City and those surrounding communities encouraged?’ I enjoy running,” he explains.

That’s when he grabbed Old Glory and started running 10 miles every Saturday to uplift those in the area and encourage them to stay strong during the pandemic.

“I’m trying to go all over Arkansas, trying to hit every major city I can hit and continue to do it, as long as we go through the challenges we’re going through right now,” he says.

He places the United States flag high on his left shoulder. Then, he salutes every vehicle that passes.

“By the time I start out running and that flag goes up, I hear the horns start blowing, people waving, thumbs up, people applaud,” he describes.

He started his journey in Forrest City and plans to end there as well.

“It’s going to be an emotional one for me because of all the things I have done and the people I’ve met on this journey. It’s going to be emotional but we’re going to get it and get through it,” he says.

Published in: on July 4, 2020 at 10:43 pm  Leave a Comment  

Charlotte Mayor’s Emails Show Public Pleas for Help Addressing Violence More than a Year Ago

From wcnc.com, July 3, 2020 by Nate Morabito

More than a year after people started asking the mayor to come up with a plan to address the growing violence in Charlotte, city leaders have still not finalized that plan.

The Charlotte City Council will discuss its evolving plan to reduce violence Monday night.

In the meantime, WCNC Charlotte obtained emails sent to and from the mayor about this very issue, including several that date back to early 2019. More than a year later, people are still waiting for the city to act.

“This city is a battlefield in which I am not willing to wade into,” one resident wrote in an email to Mayor Vi Lyles and other leaders on February 19. 2019. “Our city is NOT safe…This city is a combat zone, without the official declaration.”

“It’s time to take the crime in this city serious and to stop listening to these people who want to continue to protect criminals,” another person wrote on March 29, 2019.

“The murders need to stop,” a Charlotte native wrote in an email to the mayor in August.

Mayor Lyles said the city would tackle the violence issue in January. In the first few months of 2020, city council members discussed possible solutions at length at multiple meetings, but the public’s heard little since. Meanwhile, more and more people keep getting murdered. Six months in, Charlotte’s on pace to suffer even more homicides in 2020 than last year.

“Why are we waiting?” Lucille Puckett asked in December 2019, frustrated by the city’s slow to evolve response to deadly violence. “If it was your son, your daughter, your grandchild, would you be waiting then?”

Puckett, who lost an election bid for mayor, wears her son’s ashes in a bullet around her neck.

“My son was murdered March 22, 2016,” she said.

Puckett wasn’t the only one who felt that way. Robert Dawkins with Safe Coalition NC has pushed for data collection, violence interruption and a public health approach since last year.

“It’s moving slower than I want,” Dawkins said in December. “Hopefully, we’ll start seeing some fruits from that early next year.”

People who emailed the mayor included a person who called for disruption and another who suggested the city focus on crime hot spots, which is part of the current approach.

Emails show the NAACP sent the mayor a proposal for a Community Education Plan in June. Despite the lack of public communication, the mayor shared her interest in the idea with fellow councilmembers behind the scenes the next week.

“The proposals targets Charlotte/Mecklenburg community members to educate on cultural awareness, conflict resolutions, gun violence, gun safety and implicit bias,” the mayor wrote to colleagues soliciting feedback. “The course would begin with a pilot at the Early College High school on UNC Charlotte’s campus; in-school suspension programs and community with a mother-to-mother education of self-awareness, proper emotional responses and ways to address issues child then to bring home.”

Even before that, emails show she solicited data and innovation help in May 2019 from former New York City Mayor Michael Bloomberg.

“Mayor Bloomberg has provided consulting advice on both housing and climate change,” the mayor wrote. “I wonder if there in an opportunity to have advice and guidance on how we address this challenge with data and innovation. We are still a small enough city that we can engage directly with our residents and we have the resources to implement recommendations. Our Police Chief is fully on board.”

Mayor Lyles emailed a resource to former Chief Kerr Putney later that month.

“Thanks for your help to determine the best way to address the increasing violence in our city with a focus on the number (sic) homicides occurring this year,” she wrote. “After reaching out to the Bloomberg Foundation, I had a call with Beth Blauer, Executive Director of the  Center for Government Excellence at John Hopkins. She has a green light to advise and assist in this effort. I would like you to contact her for a conversation. In my brief discussion with her, she talked about assessment tools to determine those at most risk; a map to deploy interventions both short and long term. She is very familiar with the Major Cities Police Chiefs; she is also willing to establish a cohort of cities for comparison.”

Mayor Lyles replied to another concerned citizen by saying the city needs help from neighborhood leaders too.

She also received several emails from the public asking for more police support from elected leaders, including help filling CMPD officer positions.

“Think maybe you could make it a priority for filling the empty slots with the police now?” one person wrote in March 2019. “Leadership time.”

“Please help CMPD keep us safe,” another person wrote in April 2019. “At this point all the police do is clean up after a mess with nothing left for preventing crime or adequate investigations and arrests. Don’t let us end up another Baltimore.”

“I want the new light rail, the new airport, the roads widened,” one citizen wrote in October. “However morally we have to make our Citizens safe first. We need to get our priorities in order.”

The police shortage has only slightly improved since then. Today there are still 156 vacancies, according to a CMPD spokesperson.

 

Published in: on July 4, 2020 at 4:04 pm  Leave a Comment  

CMPD Releases Crime Statistics for First Quarter of 2019

From https://charlottenc.gov/CMPD/Safety/Pages/CrimeStats.aspx April 3, 2018

Crime Statistical Summary for the 1st Quarter of Year​​ 2019:

Year to Date:

CMPD ended March 2019,

    with a 4.6% increase in Index Offenses compared to last year. Property crime increased by 3.4% while violent crime increased by 11.0%.

    • 33 homicides were​ reported compared to 10, resulting in an increase of 230%.
    • 444 robberies were reported compared to 420, resulting in an increase of 5.7%.
    • 73 rapes were reported compared to 71, resulting in an increase of 2.8%.
    • 998 aggravated assaults were reported compared to 893, resulting in an increase of 11.8%.
    • Burglary overall was up 9.3%, (1357 compared to 1242) with an increase of 9.9% in residential (832 compared to 757) and an increase of 8.2% in commercial cases (525 compared to 485).
    • 594 vehicle thefts were reported compared to 696, resulting in an decrease of -14.7%.
    • Total larceny cases increased by 4.2% (5920 compared to 5684) with the larcenies from auto up by 2.4% (2474 compared to 2415​).​
    • 42 arson cases were reported compared to 30, resulting in an increase of 40%.

 

Published in: on April 3, 2019 at 9:55 pm  Leave a Comment  

Shopper Assaulted, Robbed by 3 People at SouthPark Mall

Taylor Hanley, 22, said he got separated from his friends, then three guys rushed him and demanded money.

From http://www.wcnc.com by Mark Boyle, Mitzi Morris, March 13, 2019

Three people are on the run after beating up and stealing cash from a shopper at SouthPark Mall on Wednesday March 13, 2019, according to Charlotte-Mecklenburg Police.

Taylor Hanley, 22, said it happened in a stairwell at Belk. He explained he got separated from his friends, then three guys rushed him and demanded cash.

“His friend had me bear-grabbed and said if you don’t empty your pockets, I’m going to knock you out,” Hanley said.

Hanley said the trio got away, but he had a good idea of what they looked like and called police to report the incident.

“I panicked for a minute,” he said.

NBC Charlotte has reported on crimes for years at the SouthPark Mall.

We checked the crime mapping website, and within the past seven days, police reported well over a dozen crimes. Some of those included robbery, car-break-ins, and thefts.

A mall spokesperson sent us a statement that read, in part, there are “a number of proactive security measures in place, both seen and unseen, including maintaining a continuous security patrol of our property and parking lots.”

As for Hanley, he said he’s not scared to shop at this major shopping mall but learned a good lesson about knowing exactly who is around him at all times.

“It’s really unfortunate that these guys did this,” he said.

Published in: on March 14, 2019 at 10:28 pm  Leave a Comment  
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