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

On Taxes, Who is JFK's True Heir? Trump; not Clinton

Either Hillary Clinton or Donald Trump will be our next president.

Mrs. Clinton wants to raise federal income tax rates. Mr. Trump wants to lower them. Mrs. Clinton claims Mr. Trump's plan will increase annual deficits, and increase the national debt -- the total of our annual deficit -- which as I write has exceeded $22 trillion. Mr. Trump believes lowering tax rates will, paradoxically, raise government revenues.

Why?


His first premise is that when personal and corporate incomes rise, those individuals and corporations pay more in federal income taxes. For purposes of illustration, ignore Mr. Trump's tax plan, and consider what happens when an individual's income doubles under the present tax code.

Last year, if you were a single woman and your taxable income was $100,000, you paid $21,064 in federal income tax. If you were single and your taxable income was $200,000, you paid a federal income tax of $46,606.25. You paid that much because once your taxable income reached $189,300, your tax rate increased from 28 percent to 33 percent. (At a net income of $411,500, the tax rate increased to 35 percent; at $413,200 the tax rate increased to 39.6 percent -- the highest rate.)

Mr. Trump's second premise is that it is impossible for a nation to be prosperous unless its taxpayers are also prosperous. The corollary to that is a taxpayer's prosperity is reduced in direct proportion to the amount of taxes paid. A taxpayer with a $200,000 per year net income who pays a federal income tax of $46,606.25 will be less prosperous if you increase his taxes by $10,000 (and the government will be $10,000 more prosperous).

Mr. Trump looks at the American economy, and he accurately sees wage stagnation. A Dec. 9, 2015, Pew Research Center study confirms his belief.

According to that study, the median income, in 2014 dollars, scaled to reflect a family of three in the year 2000 was: Lower class, $26,496; middle class, $76,819; upper class, $180,769. The median income for the same family in 2014 was: Lower class, $24,474; middle class, $73,392; upper class, $174,626.

Mr. Trump would contend that the vaunted "Obama recovery," is a recovery in name only -- political spin. And given wage stagnation, he sees that increasing the tax rates on "the rich," as Mrs. Clinton proposes, won't eliminate the deficit. There simply are not enough rich people.

You could tax "the rich" at a rate of 100 percent, and rather than eliminating the deficit, you might well push the country from recession to depression.


Accordingly, Mr. Trump's third premise is that the only way to cure the deficit and pay down the national debt is by raising the earnings of rich, middle class and poor alike.

When incomes go up, tax collections go up. If our single woman's income increases from $100,000 to $110,000, she pays an extra $2,800 in taxes. If a person on welfare gets a job that pays enough for him to have a taxable income, that also increases tax revenues. And when the rich and corporations have more income, they historically expand their businesses and hire.

In December of 1962, John F. Kennedy addressed the Economic Club of New York and said:

"The final and best means of strengthening demand among consumers and business is to reduce the burden on private income and the deterrents to private initiative which are imposed by our present tax system. This administration pledged itself ... to an across-the-board, top-to-bottom cut in personal and corporate income taxes. ...

"Our present tax system ... exerts too heavy a drag on growth ... It siphons out of the private economy too large a share of personal and business purchasing power; it reduces the financial incentives for personal effort, investment, and risk-taking. ... To increase demand and lift the economy, the federal government's most useful role is not to rush into a program of excessive increases in public expenditures, but to expand the incentives and opportunities for private expenditures."

If Jack Kennedy was right, Trump is right and Hillary is wrong.


Posted: QCOline.com October 14, 2016


Copyright 2016, John Donald O'Shea

School Tax Promoters Are Like Spoiled Children

For the fourth time since 2009, Rock Island County voters will be asked to approve a 1 percent sales tax to be “used exclusively for school facility purposes.”

Voters defeated similar proposals in 2009, 2014 and 2015.

According to an Aug. 6 Dispatch-Argus article, “School officials say passage of a 1 percent sales tax is critical ... Along with infrastructure work needed in the districts, school officials say there is a potential loss of students and families to Scott County in Iowa which already has a 1 percent sales tax dedicated to improve district facilities.”


Business owner Pryce T. Boeye points out that what school officials say is misleading. “What they forget to mention is, with the school sales tax in Iowa, the sales tax is a total of 7 percent. ... That’s already built into their sales tax.” (Mr. Boeye is not an enemy of education; he serves as a director of the Rock Island-Milan Education Foundation).

What Mr. Boeye is saying is that the general sales tax in Moline and Rock Island is already 7.5 percent, but that each city already collects an additional 1.5 percent on sales of liquor and prepared foods. People who buy food at Mr. Boeye’s Hungry Hobos already pay a 9 percent Illinois sales tax. If the school officials get their way, it will be 10 percent. But the county is also asking the voters to pass its half cent referendum!

The bottom line is this: The Scott County sales tax totals 7 percent; if these two referenda are approved, the total general sales tax in Moline and Rock Island will be 9 percent; and the sales tax on liquor and prepared foods will be increased to 10.5 percent -- 3.5 percent greater than in Scott County.

In his Aug. 12 letter to the editor, Lawrence Bay, of Port Byron, writes, “The arguments for and against the 1 percent school sales tax remain as they were when the voters wisely rejected this tax in 2009, 2014 and 2015. It should again be rejected for the same reasons.”

But there are additional good reasons for voting “no” on the School’s 1 percent sales tax.

Look at your 2015 (payable in 2016) Rock Island County real estate tax bill. Mine shows a total tax rate of 9.3085, with a school tax rate of 5.1120.

That means 54.9 percent of my real estate taxes already go to Moline schools! District 40 already gets more of my real estate taxes than Moline, Rock Island County, and Black Hawk College -- indeed, everybody else combined! And whatever tax we pay to support the schools is never enough.

During the fiscal year ending June 30, 2015, District 40 spent $97,748,395 on “Instruction, Support Services, Tuition Paid to Other Districts, and Debt Service,” to educate 7,370 students. That’s $13,263 per student. And that doesn’t include pensions.

We are told by school officials proceeds from the 1 percent sales tax will be “used exclusively for school facility purposes.” So why are they short of money for facility purposes? Is it possible that Moline District 40 is short of money because they just spent $17 million to “upgrade” Hamilton School (and closed Garfield and Ericsson)?

Mr. Boeye gives an alternative answer: “By and large, money is going to salaries, benefits, pensions. If facilities are a priority, they need to make that a point in labor negotiations. ... I think unions might be open to that.” Really? Good luck!

If you think, you are undertaxed, this is what the Huffington Post wrote on Feb. 25:

“Illinoisans pay a lot in property taxes compared to the rest of the nation -- the state has the second-highest property taxes in the country, almost double the national average. But what you pay depends on where you live, and some residents are spending a lot more than others ... “Rock Island County, IL: Median Home Value: $113,800; Median Annual Property Tax Payment: $2,455.”

As previously stated, 54.9 percent of our real estate taxes already go to the schools.

So, the schools want a 1 percent sales tax increase. The county wants a half cent. Speaker Madigan, D-Chicago, wants to raise the Illinois income tax from 3.75 percent to at least 5 percent.

Rock Island County has already increased real estate taxes 16 percent. Sewer and water rates are up in the cities.

It’s like dealing with spoiled children!


Posted: QCOline.com October 7, 2016


Copyright 2016, John Donald O'Shea

Presidential Election - the Ultimate Jury Trial

I recently received and watched a 16.6 minute YouTube video featuring Dr. Ted Noel, the former director of NovaMed Surgery Center in Orlando, Fla.


Dr. Noel states up front that he is not Hillary Clinton's medical doctor, has not examined her, and that he is not a Hillary Clinton supporter. Based on videos of Hillary Clinton since 2005, he concludes that she suffers from Parkinson's Disease, and for that reason, that she is unfit to serve as president.


Snopes writes to debunk what Dr. Noel has said; they could be correct. But watch Dr. Noel's video yourself: You judge: youtube.com/watch?v=Zr1IDQ2V1eM



Hillary Clinton is 68 years of age. In her Sept. 26 debate with Donald Trump she looked healthy. She evidenced none of the problems shown in Dr. Noel's video. Her own doctor, who treated her after the 9/11 incident, states that her stumble/collapse into the limo on that date was caused by pneumonia.


But Hillary Clinton's health is not just a private matter. She wants to be our president. Mrs. Clinton correctly argues that the American people need to see Mr. Trump's tax returns. Given the history of Mrs. Clinton's health issues detailed in Dr. Noel's video, full disclosure of Mrs. Clinton's medical records from and after her fall in 2005 is as much or more important as disclosure of Mr. Trump's tax returns.


The bottom line is this: Every American has a right to draw his own conclusions as to Mrs. Clinton's physical ability to execute the office of the presidency. Those conclusions can be reasonable conclusions, only if the voters have all the relevant facts; not merely those Mrs. Clinton chooses to dribble out.


Jurors in civil and criminal cases are "judges of the facts." They make the ultimate medical conclusions, e.g., "diagnoses," every day in our courts. Observable facts of the plaintiff's condition are set before them: e.g., Mr. Jones fell, was hospitalized; had no history of seizures before the fall, and has seizured since, etc. The doctors ("expert witnesses") give their opinions as to those facts. (Note: those doctors need not be the "treating physician." They can be any doctor whose training or experience enables him to assist the jurors in their determination.) But in the end, it is the "12 plumbers" who decide if the plaintiff seizures and why the plaintiff seizures. And the nature and extent of plaintiff's disability.


When It comes to electing a president, the voters are the "jurors." It is the duty of the candidates to make full disclosure of their falls, stumbles, collapses, strokes, blood clots, periods of convalescence and disability, etc. Once they do, the "experts" can voice their opinions. But the ultimate decision on the candidates mental and physical fitness is for the voters.


Dr. Noel's video documents Mrs. Clinton falling on three different occasions, beginning in 2005; the worst/last occurred in December 2012 when she suffered a concussion, followed by a blood clot. It took her six months to recover. A still photo shows her having great difficulty climbing six typical porch steps. Another shows staff having to assist her as she attempts to enter the back seat of a limo. More recently, on Sept. 11, 2016, she stumbled/collapsed again. Other videos have emerged showing her suffering prolonged coughing spasms. She travels with a physician at her side.


The above events were all photographed or caught on tape. They cannot be denied. But were there others? If so, how serious were they?



Hillary has previously told the FBI that after her 2012 fall/concussion she had memory loss, a blood clot and could only work part-time. Why?


In January 2013, Huma Abedin, Hillary's closest adviser, wrote in an email that Hillary is "often confused." Julian Assange ("Wikileaks") has released emails in which Mrs. Clinton directed her staff to research drugs to treat Parkinson's. Why?


It is critically important that Hillary Clinton be examined by a group of impartial doctors -- not including her own personal doctor. Donald Trump should do the same.


Being president is the most grueling job in the world. Every military recruit gets a physical; why not the commander-in-chief?


(Note: In a longer 31.5 minute video interview (at: youtube.com/watch?v=8XtIzH9HoC8), Dr. Noel lists numerous symptoms on which he bases his medical conclusions.)




Posted: QCOline.com September 30, 2016


Copyright 2016, John Donald O'Shea

Nothing Wise, Safe about What Clinton Calls 'Smart Power'

On December 3, 2014, Hillary Clinton spoke at Georgetown University, saying:

“This is what we call smart power. Using every possible tool and partner to advance peace and security. Leaving no one on the sidelines. Showing respect even for one’s enemies. Trying to understand, in so far as psychologically possible, empathize with their perspective and point of view. Helping to define the problems, determine the solutions. That is what we believe in the 21st century will change -- change the prospects for peace.”

When I first heard this speech, my first reaction was, this is inane; did she really say those things?

Twenty months later, I feel the same.

What she said was inane. Banal blather.

In the 20 months that have passed, America has seen its enemies in action.

We have watched North Korea develop nuclear weapons and ballistic missiles.

We have been trying to “empathize” with the North Korean dictators since the days of Bill Clinton to convince North Korea to give up its goal of having nuclear weapons and ballistic missiles. We have provided them with bribes galore in the form of food and energy. In return, they have covertly built their WMDs and missiles, and most recently have fired three off -- sticking them up the noses of President Obama and the other gathered world leaders.

Has empathizing with their point of view induced them to forego their weapon’s programs? Has showing respect for the pot-bellied dictator advanced peace and security? Provided solutions?

Just this last week we have seen an Afghan immigrant who we brought to America and gave citizenship to, plant a number of bombs designed to kill and maim innocent American men, women and children. Earlier we saw two brothers plant pressure-cooker bombs at the Boston Marathon which killed and tore of the legs off nearby children.

How did we fail to show respect for them?

How does one understand the perspective and point of view of someone who sneaks around and plants bombs on street corners designed to slaughter women and children? Why would anyone in their right mind empathize with such miscreants?

In Africa, Boko Haran kidnaps 300 young teenage girls, and either forces them into marriages or sells them off as slaves. Do you really feel showing respect for these barbarians will advance 21st century peace?

Change the prospects for peace?

Would you empathize with someone who did this to your 11-year-old daughter?

Do you really believe we should try, so far as possible, to empathize with Boko Haran’s perspective and point of view?


In recent months we have employed “smart power” in our negotiations with Iran.

We have ended sanctions, paid them billions of dollars and paid ransom. And to what effect?

They make mock runs at our naval vessels, threaten to shoot down our airplanes, take more hostages, and provide support to terrorist groups around the world.

Negotiations make sense.

Real peace is better than war. But when your enemy uses negotiations to prepare for war, or to take steps that make America far less secure (such as N. Korea building WMDs and ballistic missile), then Mrs. Clinton’s “smart power” is delusion.

Or do you really believe that negotiating with ISIS will deter them from beheading captives, burning captured pilots in cages, or inducing ISIS wannabees in our country from killing Americans in our shopping malls?

We are told that Mrs. Clinton is the most qualified person ever to run for president.

That is not what her “smart power speech” indicates to me.

By John Donald O'Shea
Sep 23, 2016