The Volokh Conspiracy
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COVID Lockdown Violation Conviction Reversed, Based on N.J. Policy Exempting "Political Activities"
Defendant was "walking along the highway holding up signs to passing motorists stating 'PHUCK,' '#THIN BLUE,' and 'Slow Down Police Ahead.'"
State v. French, decided Wednesday by the N.J. appellate court (in an opinion by Judges Susswein and Vanek) reverses defendant's convictions for violating a COVID stay-at-home order in May 2020; the defendant had been "walking along the highway holding up signs to passing motorists stating 'PHUCK,' '#THIN BLUE,' and 'Slow Down Police Ahead." The order provided, in relevant part,
All New Jersey residents shall remain home or at their place of residence unless they are … leaving the home for an educational, religious, or political reason ….
The court's analysis:
At an April 4, 2020 press briefing, the Governor was asked specifically about the ability to protest under EO 107. He responded: "[D]on't protest as a group. We respect folks who want to protest, find some other way to do it virtually online, whatever it might be."
The Governor further clarified his position regarding protests under the relevant executive orders at a press briefing on April 29, 2020:
People have a right to protest. I wish they would do it from home …. The thing that really bothered me was they were congregating, and they weren't wearing masks for the most part and they were on top of each other and that's what led to the [violation of the executive order] …. I wish folks would protest from home and virtually, but if they're going to protest we're [going to] be tough on enforcing the … no congregation.
… [A] June 17, 2020 memorandum from the State of New Jersey Attorney General entitled "Guidance Regarding Municipal Prosecutors' Discretion in Prosecuting COVID-19 Related Offenses" … directs:
… To ensure that all outdoor political activities and outdoor worship services receive uniform treatment, I am directing prosecutors to move to dismiss any Executive Order violations previously filed for such conduct, despite the initial probable cause determination or appropriateness of the violation at the time it was issued. Based on data maintained by the Division of Criminal Justice, there were five individuals who received summonses for organizing outdoor political protests and religious services in violation of Orders prior to the issuance of Executive Order No. 152; no individual protestors or worshipers have been cited to date.
Notably, the Attorney General Memorandum directs prosecutors to dismiss any pending charges for "outdoor political activities." … [D]efendant was protesting by holding up posterboards expressing speech for motorists to see…. [D]efendant's protesting constitutes political activity for the purposes of EO 107 and the Attorney General Memorandum. "Political expression obviously includes any fair comment on any matter of public interest, whether or not the subject of an election campaign, whether or not embarrassing to the local governing body, and whether or not irritating to one's neighbors." … [D]efendant's conduct … constitutes "outdoor political activity" and that the charges for violation of EO 107 were required to be dismissed under the Attorney General Memorandum.
The court upheld, though, "a conviction for walking in the direction of traffic," under a statute that provides, "On all highways where there are no sidewalks or paths provided for pedestrian use, pedestrians shall, when practicable, walk only on the extreme left side of the roadway or its shoulder facing approaching traffic."
Defendant had also been convicted of disorderly conduct based on his "alleged shaking of his genitalia from outside his clothing and raising his middle finger toward the police," but the lower court had reversed those convictions (for reasons not noted in the appellate opinion), and the state didn't appeal.
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And civil liability for the jack-booted fascists?
You're all talk and therefore likely safe from liability, Dr. Ed 2, but there's still karma.
And tar, and feathers.
Ask Governor Hutchenson....
Liability is via trucker based civil war, of course.
Jack-booted fascists?!?
That's so 90s.
Can't you think of something better, newer, sexier?
If the shoe fits, wear it.
You mean if the boot fits.
...and it does.
Nice and comfy on your foot, is it?
Finally, a People's Court has spoken about King Phillip's edicts upon the proletariat of the People's Republic of NJ. King Phillip's utter incompetence in putting covid+ patients back into nursing homes in the early part of the pandemic killed thousands of elderly nursing home residents, as far as I am concerned (including a family member of mine). A real pity we cannot apply the punishments to King Phillip that he applied to others by Executive Order. That would be justice.
King Phillip's wife, Tammy, is currently running to replace Senator Bob 'Sticky Fingers' Menendez. Yeah, that guy. The one with the gold bars from a heist in his jacket pocket in his closet. LOL.
What are the odds that Sticky Fingers resigns so that King Phillip can appoint his replacement?
Some of the few victims of covid that you people will actually acknowledge, without remembering that Trump was in charge overall.
Disaffected, all-mouth right-wingers who whine about conditions in educated, modern, successful, productive, diverse states -- despite being volunteers who could move to an uneducated, bigoted, conservative-controlled, can't-keep-up state if they weren't all talk misfits -- are among my favorite culture war casualties.
Replacement will, as is customary, solve many problems.
If only some judge somewhere would simply rule that every "emergency order" was pure political bullshit, contrary to medical science, and completely unconstitutional.
Well, that would require that every emergency order had actually been pure political bullshit, contrary to medical science, and completely unconstitutional.
medical science has known since the early 1900's that suppressing a respiratory virus via "lockdowns" wasnt going to work.
You know, I just finished reading Song of the Cell by one of the world's most eminent cell biologists, and it includes a chapter on Covid:
https://www.simonandschuster.com/books/The-Song-of-the-Cell/Siddhartha-Mukherjee/9781982117368
I highly recommend it. He would say you're full of shit, and I'm inclined to believe him since, you know, that's what he does for a living.
I bet you believe Fauci too.
I believe Fauci knows more about it than you do.
What Fauci might know and what Fauci says are two very different things.
Michael, see my comment immediately below in response to Greek Alphabet Soup. It applies with equal force to you.
Michael P's statement is correct.
He didn't really say anything.
Woooo! Who knows what secrets lurk in the heart of Fauci? MichaelP knows.
There may be a more purely distilled collection of disaffected losers, whining misfits, virus-flouting rubes, and antisocial dumbasses than the Volokh Conspiracy's fanboys -- but educated, productive, modern, better Americans are unlikely to encounter it.
And I believe your distrust of Fauci stems more from your ideology than from whatever paltry knowledge of science you may possess. You don't think the government should be telling people what to do in pretty much any context, so of course you don't trust the people behind it. But your ideology-based mistrust doesn't count for much. Get back to us when you've had more than a introductory biology course.
Then you haven't been paying attention. Fauci had a long career of distorting science, from the early days
of AIDS, where he was blaming Haitians for its spread and warning how likely it would become a pandemic among straight Americans, to covering up the origins of COVID-19 because it would attract attention to his illegal gain-of-function funding of a Chinese lab researching bioweapons, he ignored sound evidence in favor of pushing his own perspectives.
And your attempt to play credetialist and ad hominem is noted. Too bad you don't have anything else to back you up.
OK, so in addition to your scientific ignorance you also don't understand what ad hominem means. So here's a crash course.
Ad hominem says, in essence, pay no attention to the argument because the person making it is a bad person. Pointing out that someone may have a motive (in your case your anti-government ideology) to make a particular argument is not ad hominem. The argument can still be evaluated on its own merits, with your motivation to make it being something that factors in. The question then becomes if other people who don't have your anti-government motivation have come to the same conclusion, which, again, would be evidence though not conclusive.
It is also not ad hominem to point out that someone who has spent his life studying science probably knows more about it than someone who, um, hasn't. If anything, that could be the logical fallacy of appeal to authority, but I was careful in my phrasing so that in this case it's not that either. And the appeal to authority fallacy only goes so far; the fact that my treating physicians all went to real medical schools rather than Internet U is prudence, not fallacious, on my part.
With respect to Fauci's earlier track record, that, again, underscores your lack of understanding of how science works. Science is always tentative because it is always possible that more and better evidence may come in. Until it does, it goes with the best information available. At the time Fauci made those comments, the best available evidence did point to Haiti and a likelihood that that it would spread to the general population. That neither of those things turned out to be true doesn't mean he's a bad scientist; it means the available evidence was incomplete.
So again, get back to us when you've had more than an introductory biology course.
Get back to us when you have more than an adversarial relationship with facts or truth.
FWIW, I've had more than an intro bio course, and I'd be grateful if you'd expand on what the book you cite has to say about outdoor spreading of respiratory virii. 'He would say you’re full of shit' elides most of the biological details.
Hopefully the book doesn't use "virii", which is a misformation. The Latin word is "virus", not "virius", and as a mass noun there's no attested plural form in classical Latin; but as a(n irregular) neuter noun, the plural would be vira.
Fauci should know more about science than Michael P. However, Michael P doesnt a significantly better job than you in recognizing when an expert is lying. You previously pointed out an "expert" Siddhartha Mukherjee.
You might undertake some due diligence on his statements , public interviews, publications, etc that he made during covid. A significant portion of his statements have turned out to be false or highly distorted.
There is a slew of videos of his public interviews available for your due diligence
After your criticism of Michael ad hominem comment, you launch into a long ad hominem attack followed by a a rather toothless defence of Mr Fauci.
Indeed the weight of evidence changes as you note; however, the question is how quickly a scientists corrects her analysis AND how carefully the person caveats her conclusions or explains the probability that the conclusion is incorrect (i.e., the error range).
K_2,
A number of early CDC claims and Fauci pronouncements have been proven to be untrue. When statements were made, they may have been best guesses at the time, but CDC stuck with them against evidence and analyses by other public health agencies in the EU and elsewhere.
The comments about not funding research in China that would have been illegal in the US was just dishonest.
OK. Now answer my question below.
Which I'll repeat for your convenience:
What in medical science makes viruses less contagious if the person is circulating among others for “educational, religious, or political reasons?”
Siddhartha Mukherjee is not "one of the world's most eminent cell biologists". His 'fame' comes entirely from pop-science books (which are heavily criticized for their inaccuracies), rather than research - in which his impact scores are quite limited.
As for expertise on COVID, he has none - his field is cancer. And he has publicly admitted this in the past, even though he didn't let it stop him from making many (incorrect) pronouncements on Twitter.
Pulling my comment because I just saw that Toranth said it better. Your chosen source is bunk.
How the fuck do you think viruses spread? Telepathy? Memes? Oh wait. 'Woke mind virus.' You do think that.
Nige 1 hour ago
Flag Comment Mute User
How the fuck do you think viruses spread?
Nige - How does a virus spread you ask ? - it depends on the type of virus
Covid is a respiratory virus, which as we all know now (and should have known in early 2020, though some of us did know) . Which means that a lockdown was never going to be successful in surpressing the virus.
'Which means'
Several steps missing in your chain here.
Lockdowns were successful in preventing hospitals from overloading to the point of collapse, so yay lockdowns.
Nige 35 mins ago
Flag Comment Mute User
‘Lockdowns were successful in preventing hospitals from overloading to the point of collapse, so yay lockdowns.
No they werent - very few hospitals came anywhere near that point. It was a talking without merit.
For fuck's sake in New York the MORGUES were overflowing.
We knew lockdowns wouldn't work with COVID before it came to America. Symptom free transmission and potentially long incubation periods are the hallmark of difficult to contain diseases (notably AIDS). We could see it as COVID pierced every screen, quarantine, and barrier to cross country borders. Given it's potential long incubation times, we knew that lockdowns would at best slow transmission unless you could isolate everyone for weeks.
Additionally, we were explicitly lied to, to the point that people were publicly shamed for getting COVID as a moral failure, and we were explicitly told that you would not get it by wearing cloth masks that we knew were at best ineffective. The lies undermined all trust in the CDC establishment.
'we knew that lockdowns would at best slow transmission unless you could isolate everyone for weeks.'
I.e., they worked, because their job was to slow transmission to prevent hospitals being overwhelmed.
Masks were effective.
Who was publically shamed for getting covid? The people who said it wasn't real or just a cold or that masks didn't work and then died of it probably weren't worrying about being shamed.
The lie that undermined the CDC was that masks didn't work. Of course what really undermined covid response was Trump being in charge and the right going absolutely out of their minds.
"I.e., they worked, because their job was to slow transmission to prevent hospitals being overwhelmed."
Yes, that was the initial excuse, and it was not unreasonable when we first encountered Covid, and the government quite reasonably suspected it was an escaped biowarfare agent. (And quite reasonably did not panic the nation by saying so publicly.) A lot of the over the top initial response likely stems from that worry.
It stopped being a good reason for those measures quite early, when it became obvious that Covid was NOT going to overwhelm hospitals outside of some specialized locations, and that most cases of Covid were either asymptomatic or quite mild.
The problem is that a moral panic quickly set in, making it impossible to back down on all manner of anti-Covid measures once they were known to be unnecessary. We pointlessly tanked the economy, ruined the educations of a generation of children, and will suffer for years the consequences of deferring 'elective' treatment for cancer and heart disease to maintain capacity for a surge that never came in most places.
Possibly the worst damage was to the credibility of the public health authorities. That's going to last for a generation.
'A lot of the over the top initial response likely stems from that worry.'
You really do rewrite recent history to work better as political thrillers don't you?
'The problem is that a moral panic quickly set in'
Yeah, covid truthers claimed that it was a huge evil conspiracy to take over the world and when the vaccine came along it was to cull the global population, a panic, though perhaps not a moral one.
'for a surge that never came in most places.'
13.5 million plus deaths and counting.
1.1 million deaths in the US, and counting.
Nige 38 mins ago
Flag Comment Mute User
‘Masks were effective."
Nige - Care to provide a link to a study showing masks were effective.
Preferably a study that hasnt been discredited.
If you haven't already seen them yourself you ain't interested in anything that contradicts you, which is how you define 'discredited.'
Nige 's response is that he cant provide a study showing masks were effective that wasnt discredited.
Medical science used to hold that healthy body parts should not be surgically removed.
What in medical science makes viruses less contagious if the person is circulating among others "educational, religious, or political reasons?"
That's the nub -- when you start making exceptions like that, you have left the realm of medical science and entered the realm of politics.
BL,
The contagiousness does not change, but the public policy rationale can be strongly influenced by the why.
That is a risk vs benefit analysis
Which is politics. Not medical science. That's my point.
No it is not politics. It is a medically informed prudential decision.
Your conflation only confuses matters
Wait...I am not following your logic. What am I missing?
What's the bright line between a medically informed prudential decision and an exception approved by politicians?
what public health authorities advise is prudential.
What politicians call an emergency is generally political.
When a riot is is progress and cops order you off the street that is not a political decision given the usual connotations of the word political (= to the whim of an elected official)
I had to think about what you wrote. The problem here is that the medical authorities made it generally political. I think that pre-pandemic, I would have agreed with your distinction between the two. That is actually how it is supposed to be.
What does 'make it political' even mean? Measures were put in place by poiticians via political processes. Trump put his useless shit of a son-in-law in charge of what passed for a federal response, and he allocated reoursces based on whether the states voted for Trump.
No. Acc. to the NJ law which is discussed in the OP, the very same gathering (let's say, for example, 20 people gathering outdoors) is legal or illegal depending on the reason for a gathering. If they are gathering to protest Trump or Fauci, or to pray, or to teach algebra, it's legal. If they are gathering to have a yard sale or discuss the latest antics of Meghan and Harry, or the relative merits of chocolate vs. vanilla ice cream, it's illegal.
The difference between the two is purely a matter of politics (or policy) and has no medical scientific basis. The risk of contracting COVID is identical. Someone decided that the benefits in one situation outweigh the risks, but not in the other.
That does not make it evil. Risk-benefit decisions are often made in public policy. But the pretense that it's supported by medical science is false.
BL,
I distinguish policy from what most people mean imply when they say political.
The case you cite has no scientific basis at all.
If no entry is because the atmosphere is toxic at a legislatively specified level, that may be policy but it is based in science not in political whim. That the regulation is based on medical science is NOT false.
What I am objecting to is the next step in the argument by many commenters, which is to equivocate about the meaning of political to imply capricious and independent of facts (science or medicine or Newton's law of gravity or structural engineering.)
Sorry, Don but no. A "public policy rationale ... strongly influenced by the why" is indeed a risk vs benefit analysis - and it is an inherently political analysis, not a medical one. That's what the "public policy" part means.
A purely medical risk vs benefit analysis might be the dangers of general anesthesia vs not having the surgery. Granting exceptions to medical risks for “educational, religious, or political reasons” but not for other reasons is a political, not a medical decision.
This is of political is just semantic.
The matter of whether it is based on medical science is not false.
But here you switch meaning by call one a medical decision. I agree it is not a medical decision, but I wouldn't call it a political decision.
But it is semantics that we are discussing.
I have heard that walking in the same direction as traffic is one of those offenses that is used especially to target low status people.
It is, however, the sensible direction to walk, if you have to walk close to traffic; You can see the oncoming vehicles, and do something if one isn't avoiding you.
So I'd have to say that the law IS rationally defensible.
Certainly the law passes the rational basis test, and it's good advice. But who gets stopped by police for violating it?
I had a burned out license plate bulb. I never got stopped. If I looked suspicious I might have been stopped. In my state we don't have "fix it" tickets, only regular tickets. If they want to be difficult police can insist that your car be towed away because it has defective equipment. Same deal if you have one headlight out. Even in the daytime that is defective equipment. But it's not upper middle class white people who get the ticket for driving with one headlight in the daytime.
.
Progress arranged by the liberal-libertarian mainstream -- overcoming the wishes and efforts of obsolete, bigoted Republicans -- is addressing the problem of racist policing as American continues to improve.
John, a lot of *good* cops *will* stop you for that -- and tell you about it. Same thing with no taillights (which are on the same fuse as the dash lights for a reason) --
Editor not working.
-- these are safety things that the driver may not be aware of.
They really don't care if you fix it or not, they just don't want you being dead because they didn't say something on their conscience.
Like I said, *good* cops who put on the uniform because they want to help people.
I'd say it depends on how close to the travel lane you are.
It really doesn't make sense anymore because (a) vehicles are moving faster and (b) there are many more of them. Hence where you could see Gramps driving in the ditch in the 1950s, he was only car and only gong 25 MPH -- you had time to get out of the way.
Not so now, there is a continuous stream of cars going twice as fast and you'd never have time to react.
Around here the major roads either have sidewalks or are limited access. It's the surface streets, like in our subdivision, that lack sidewalks, and where this advice is particularly important.
As a side note, I lived in one of those post-WWII subdivisions until my family moved out to the country, and when I moved down here to the South and found the subdivisions did NOT have sidewalks I was rather surprised. I never saw a subdivision without sidewalks up north. Maybe because you couldn't have pedestrian traffic sharing the road when it needed plowing?
I thought that all of the "Peaceful Protests" in 2020 where the Democrat Officials stated that they were not the cause of spreading COVID would meet the "pure political bullshit" criteria. Then all of the evil people who just wanted to worship in their house of worship, and those who wanted just to be able to run their businesses that were accused, by the SAME Democrat Officials of not caring and wanting to spread COVID would put the "pure political bullshit" criterial over the top.
What would the Founders think about being arrested for "walking"?
Why do you think I call him King Phillip (among other things)? 🙂
Because you are an antisocial, disaffected, right-wing misfit who has been relegated to flashing figurative middle fingers at the winners of the modern American culture war.
Well King Phillip has certainly been a winner in terms of monetary success. A real 1%er with a nice villa in Italy to escape to.
As for the people in NJ, not so much and now he's pushing for his wife to be a US Senator. He was one of the first to throw Menendez under the bus (not that I'm a fan of Goldfinger).
Legalise jaywalking, I say.
Walking in the direction of traffic is a bad idea but it carries its own inherent penalty (increased risk of getting hit by a car). There is no sane reason for that to be a crime.
Um, yeah, there is.
1) On its own merits, sane people don't want people getting hit by cars.
2) Even if a sane person didn’t care about the pedestrians, getting hit by cars affects people other than the pedestrians who are hit, like drivers.
Not buyin' it.
Your 1) has no logical boundaries. 'X is illegal because it's unsafe' leads to outlawing of swimming pools and mandatory consumption of broccoli. It may be legal to have such rules but it is not moral or just to have them. Freedom necessarily includes the freedom to make mistakes (and to suffer the consequences of those mistakes).
Your 2) is on stronger moral footing because it's based on externalities - mitigating the impact of my decisions on others. But it runs smack up against the legal presumption that drivers are in control of their cars. If you're driving too fast to see and avoid a pedestrian, it doesn't matter which way they're facing - you're driving too fast. (Corollary - there are some conditions where it is fundamentally unsafe to walk near a road. No pedestrians on the interstate is a defensible rule. But again, the direction doesn't matter.)
"but the lower court had reversed those convictions (for reasons not noted in the appellate opinion)"
I realize that a judge could pick and choose the precise reasoning, but it shouldn't be a huge leap to assume that these convictions were for expressive acts protected as speech that cannot be criminalized and the judge correctly reversed them.
The law explicitly exempted certain purposes, and this guy fit the text of those exemptions, so he was exempt. If the law was content-neutral, then convicting someone on the basis of conduct (that also happens to be expressive) would be unremarkable -- but because the law was content-based, someone who was convicted but didn't fit the exemptions could argue that the law does not satisfy strict or enhanced scrutiny.
Are you stupid? Flipping off a cop is protected activity under binding Supreme Court precedent, and likely under lower-court binding precedent. Waggling your crotch at them is also protected, under specific binding precedent in many jurisdictions. You don't need to fall into a special exemption to tell police to go fuck themselves, whether by words or gestures.
Doesn't matter now, the politicalvpurposes were served and the example was made. So nice seeing all the usual suspects still supporting the medical Lysenkoism that was COVID policy.
The responses on Covid are getting shorter and shorter and less and less engaged from the 'Everyone was lying about Covid to do a tyranny' crowd.
They will always believe, and always post. But I don't think they begin to realize how their fervent beliefs aren't aging well.
Not going to come off well in the history books.
Sacastro - you make a good point about everyone lying about covid.
As most everyone now knows, most of the mitigation protocols were based on junk science. Its good to know that most people now recognize the extent of the junk science that was used to justify the ineffective mitigation protocols.
Its only a few that are sticking with their beliefs in spite of the mounting evidence.
You mean those people riding in cars, alone, with windows up and wearing a face mask?
Joe_dallas loves to drop 'as everyone now knows' on his own hot takes.
It's nonsense, of course. Just the minor solipsism that causes certain people to mistake their own unearned confidence for public support.
I wonder if he tries to pull that nonsense in real life?
In the face of the ever-increasing stream of -- teeth-gritted though it may be -- confirmation that the alternated sweet crooning / "it's da SCIENCE" billyclubbing of the lockdown/masking/school closure/etc. contingent was sadly misguided, it takes a special sort of someone to opt for plugging their eyes and ears and strutting even harder.
He has plenty of practice.
'confirmation'
Entirely in your own head.
See above, and keep strutting!
Is that what you're after? An opportunity to strut? Millions of people died while you and your ilk screamed and frothed and pumped out every insane lie that farted itself into your brains in order to ensure that all efforts to protect peoples' lives were sabotaged, undermined or prevented entirely. You can certainly strut if you want to, because you did a great job.
I certainly hope you got whatever was bothering you off your shoulders -- maybe just a projection exercise -- but if you thought it was responsive to anything I said, you have an even worse reading comprehension problem than usual.
If you think it isn't responsive, you're lying.
Good point, LoB - how could you be wrong when you keep insisting you're super duper right?
Got me!
Oh, come on -- I was at least expecting a bit of haughty sealioning prior to the deflective retreat. Disappointing.
Naw, dude you delivered!
I said: "The responses on Covid are getting shorter and shorter and less and less engaged from the ‘Everyone was lying about Covid to do a tyranny’ crowd."
And there you are, with "confirmation that the alternated sweet crooning / “it’s da SCIENCE” billyclubbing of the lockdown/masking/school closure/etc. contingent was sadly misguided"
What are you saying, in clear simple English? Because I cannot tell from your comments.
Specifically, do you think retrospectively, that strict lockdowns were effective? were worth the economic cost? reduced the spread ? and virulence of the various COVID variants?
What do you think that the medical science of late 2023 tells us about the Wuhan through delta variants of SARS-CoV-2?
I'm quoting LoB.
My point is purely the low engagement of the 'Covid is tyranny' crowd.
I have opinions on how Covid could have been handled better (schools mostly), in retrospect.
But the big thing is I don't think it was a power grab or a false flag or the science was covered up or any of that nonsense.
I agree with you that it was not a power grab.
I also know that CDC refused to admit mistakes and did trump "science" when expert bodies around the world said otherwise and even tried to gimmick some reviews of journal submissions.
America, PHUCK yeah!