Riot Has Never Been Constitutionally Protected

The post-election leftist anti-Donald Trump protests and/or riots are nothing new.

In 1714, a German prince became George I, King of England. He came to the throne because Queen Anne died without issue. He was Anne's closest living Protestant relative. The Act of Settlement of 1701, prohibited some 50 Catholics, who were closer relatives, from inheriting the throne. Protests, unlawful assemblies and riots ensued, encouraged by the Jacobites, on behalf of James Stuart, Anne's half-brother.

To suppress these riots, Parliament (1714) passed The Riot Act ("An act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters.")

The act defined the offense of riot" and made riot a felony punishable by death -- but only after the King's "Proclamation to disperse" was proclaimed:

"If twelve [persons] or more, unlawfully, riotously, and tumultuously assemble together, to the disturbance of the public peace, ... and are ... commanded by any ... justice.... , or ... sheriff ... , where such assembly shall be by proclamation, in the form hereinafter directed, to disperse ... and peaceably to depart to their habitations, ... should ... twelve or more (notwithstanding such proclamation made) unlawfully, riotously, and tumultuously remain together ... for one hour after such ... proclamation, ... [they] shall be adjudged felons ... and shall suffer death."

The act specified both the form of the proclamation, and how it was to be made:

"The justice of the peace [or other authorized person] shall [go] among the said rioters, or as near to them as he can safely come, [and] with a ... loud voice make ... the proclamation in these words: 'Our sovereign Lord the King ... commandeth all persons ... assembled, immediately to disperse ... and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act ... for preventing tumults and riotous assemblies. God save the King."

It is from this act that we get the expression, "He read them the riot act."

Recall, "Disperse, ye rebels" at Concord Bridge?

Our First Amendment provides that "Congress shall make no law ... abridging the freedom ... of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Note that the operative word is "peaceably." Mob actions, unlawful assemblies and riots -- which by definition are not peaceful -- are beyond the pale of First Amendment protection.

Modern-day Illinois law also makes provision for suppressing mobs, riots and disturbance. "Whenever there is a tumult, riot, mob ... of persons acting together by force ... to commit felony, or to offer violence to persons or property, the Governor has a duty ... to order such military force ... to aid the civil authorities in suppressing such violence and executing the law."

The governor's order specifies "only the work to be done" and that "It shall not include the method to be employed." It also says the "military officer present shall exercise his discretion and be the sole judge as to what means are necessary."

The law also provides: "Whenever 12 or more persons, any of them armed with clubs or dangerous weapons, or 30 or more, armed or unarmed are unlawfully, riotously or tumultuously assembled, it is the duty of the commanding officer of such military force ... present on duty, to go among the persons so assembled, or as near them as safety will permit, and in the name of the State command them immediately to disperse, and if they do not obey, every person refusing to disperse shall be deemed one of the unlawful assembly and shall be guilty of a Class A misdemeanor...

When those unlawfully assembled refuse to disperse, the officer in command has the duty of suppressing the assembly "in such manner as may be most expedient." If in the process, rioters or spectators are killed or wounded, the military personnel "shall be held guiltless of any crime and justified in law."

What should be noted is that once the National Guard is sent in, the commanding officer present exercises his discretion and is the "sole judge as to what means necessary."

One caveat: While the soldiers acting to suppress the riot are immune under Illinois law, they are still subject to being charged with civil or criminal federal civil rights violations, if they use excessive force.


Posted: QCOline.com November 25, 2016
Copyright 2016, John Donald O'Shea

Time to Review our "Fundamental Principles"

We have just elected our 45th president. Therefore, this is an ideal time to review the principles which have come to be America's "fundamental principles."

The principles that I am referring to appear in our Constitution and our Bill of Rights. But they appeared some 13 years earlier in The Virginia Declaration of Rights, written by George Mason, and adopted by the 1776 Virginia Constitutional Convention. Jefferson, who drew our Declaration of Independence, and the men who drew our Constitution, respected and borrowed lavishly from Mason's Declaration. Here are some excerpts:

"Section 1. All men are by nature equally free and independent and have certain inherent rights ... which ... they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

"Section 2. All power is vested in, and consequently derived from, the people ... magistrates are their trustees and servants and at all times amenable to them.

"Section 3. Government is ... instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes ... of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. When any government shall be found inadequate or contrary to these purposes, a majority of the community has an ... inalienable ... right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

"Section 4. That no man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community ... neither ought the offices of magistrate, legislator, or judge to be hereditary.

"Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken. The vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

"Section 6. That elections of members to serve as representatives of the people, in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assembled for the public good.

"Section 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.

"Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments. ...

"Section 15. That no free government, or ... liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles."

I have omitted Sections 8 -11, and 13 and 14 owing to space limitations. Eventually they became amendments tow and four through eight of our Bill of Rights. Mason generally is deemed the "Father of our Bill of Rights."

Note that George Mason not only sets out his principles, but frequently explains the need for them. If all men are equally free and have inherent right" to life and liberty, and to pursue happiness, and possess property, they cannot deprive their children (who are also "men") of those rights. Public officers are "trustees and servants."

The best governments produce "happiness and safety;" and protects against "maladministration." Nobody is entitled to "special emoluments or privileges."

Public officers, after "fixed periods" of service, should return to private life. Nobody, including the president, has the power of "suspending ... the execution of laws."

"Free government, and the blessings of liberty" can only be preserved by "frequent recurrence to fundamental principles."

George Mason was one of three delegates to the 1787 Constitutional Convention who refused to sign the proposed Constitution -- largely because it contained no Bill of Rights.


Posted: QCOline.com November 20, 2016
Copyright 2016, John Donald O'Shea

Seven Lawyers I Would Trust with my Liberties

Since Shakespeare, it has been fashionable to hate lawyers - "The first thing we do, let's kill all the lawyers." Henry VI, Part 2.


Two events recently, have caused me consider that line. The first was the 2016 Presidential election; the second was a recent Bar Association meeting. I only attend one or two RI County Bar Association meetings a year, but on October 20, I went.


Being rather old myself, I found myself sitting with seven other "senior" lawyers - all but one, older than myself. Like myself, three were Notre Dame grads: Jim Coryn, Pete Fieweger, and Frank Edwards. Also present were Curt Trevor, Bob Alvine, Ken Collinson and Bob Scott.


As we dined and visited, I suddenly realized that any of the seven men would have been an infinitely finer candidate for President than either Mrs. Clinton or Mr. Trump.


I met six of these men directly upon moving to RI County in 1966 to work for State's Attorney Dick Stengel. I met Bob Alvine, a few years later. In the fifty years that I have known them, I have never heard a word from anybody impugning - or even questioning - their ethics or their legal competence. All seven were possessed of fine legal minds. All served their profession, their clients and their communities with grace and distinction. Each has had a knowledge of the law which would have allowed them to discuss the great constitutional issues at stake with ease, understanding and grace. I  can say with conviction that during my 26 years on the bench, I was privileged to hear the arguments made by Pete Fieweger, Bob Alvine, et al. I feel certain that anyone of the seven during his prime would have made "mincemeat" of Mr. Trump or Mrs. Clinton in any Presidential debate, anytime, any where.


Unlike either candidate, when asked about "stop and frisk," "late-term abortion," or the Citizen's United case, any of these men - with modest preparation - would have cogently and persuasively explained the meaning and import of these matters to the American people. None would have "pivoted' (i.e., ignored the question asked, or answered a question not asked). All would have had an informed position on the issues, and all would have clearly explained their respective positions.


To me, the most important issue in this campaign was "what sort of judge will you (Mr. Trump or Mrs. Clinton) nominate the the U.S. Supreme Court? I see our government slowly - but persistently - "nipping away" at our liberties as understood by the men who wrote our Constitution and Bill of Rights. In lieu of "individual liberty" we are offered "equality/income redistribution."


Our founding fathers understood that Kings - and even Democracies - will always chisel away at personal liberties, in the name of some other perceived good - equality, national security, financial security, etc. And in the end, the King, with his prosecutors and powers of taxation, always wins; and the liberties of the people are always subverted.


At the third Presidential debate Chris Wallace asked Mrs. Clinton: “Do the Founders’ words mean what they say or is the Constitution a "living document" to be applied flexibly according to changing circumstances?” That was a false choice.


The real question is this: Taking for granted the our Constitution and Bill of Rights were crafted to govern American life not only in 1789, but also in the ensuing decades and centuries, (and is therefore a "living document"), do you believe it should be construed to carry out the intent of the men who wrote it, or should it be construed to carry out the intent of later political men, such as George Wallace, Richard Nixon, Hillary Clinton, Donald Trump or whatever politically appointed judge who happens to be hearing the case, as they think best?


I am satisfied that my liberties would be secure in a modern cell-phone case under our Constitution if Washington, Adams or Lincoln were the judges. I have no such confidence in Mr. Trump or Mrs. Clinton. But I would feel secure if any of the seven lawyers named above, were the judge.


The bottom line: Speak well of good lawyers.

Posted: QCOline.com November 6, 2016


Copyright 2016, John Donald O'Shea