By Eric Calderaro and Julie Clay

“Freedom is never more than one generation away from extinction. We did not pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.” – President Ronald Reagan.

Over the past several months, an increasing number of Ohioans have reached out to their legislators demanding that Governor DeWine be impeached and removed from office [1]; something the Pennsylvania legislature has already taken the lead on doing back on May 16, 2020 when it proposed a resolution to impeach their governor [2]. Many Ohioans have also asked what they can do to cease the deprivation of our God-given constitutional rights and completely restore our freedoms. Many have initiated petitions, others have led or participated in peaceful protests, while many others have sent emails, made phone calls, and provided testimony in support of important legislative bills. And increasingly Ohioans are engaging in peaceful civil disobedience against mandates they believe violate their inalienable Constitutional rights. In my conversations with many of these Ohioans, they agree that the Governor and his Administration have committed dereliction of duty in what Ohioans believe is a mismanagement of the COVID-19 event; which after 4 months, continues to gravely impact our economy and deprive us of our civil liberties - liberties which are supposed to be guaranteed to us under the U.S. Constitution and Ohio Constitution. 

U.S. Attorney General, William Barr has directed his staff to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.” And he stated “the Constitution is not suspended in times of crisis.” [3] Barr also indicated the Department of Justice may side with citizens who sue states over “onerous” COVID-19 restrictions.

Law.com wrote an article, "Texas Supreme Court Reminds Cities There Is No Pandemic Exception to the Constitution" The Justices wrote, the “Constitution is not suspended when the government declares a state of disaster.” And “As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, burdens on constitutional liberties may not survive judicial scrutiny.” “Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity” and that “less restrictive measures cannot adequately address the threat.” [4]

In Ohio, two local judges have already ruled the orders of the former Ohio Department of Health Director, Amy Acton, as unconstitutional. In Lake County Ohio, on May 20, 2020 Judge Eugene Lucci, in reference to the Rock House Fitness lawsuit, ruled the following: [5)

• “The director has no statutory authority to close all businesses, including the plaintiffs' gyms, which she deems non-essential for a period of two months. She [Acton] has acted in an impermissibly arbitrary, unreasonable, and oppressive manner and without any procedural safeguards.” 

• “Fundamental liberties to own and use property and earn a living are at stake and are violated by the defendants' [Acton’s] actions. The defendant has criminalized lawful businesses, imposing strict liability for violations, including severe criminal, civil, and equitable penalties.”

• If Acton’s orders were allowed to remain in effect, “the general public would be harmed…There would be a diminishment of public morale, and a feeling that one unelected individual could exercise such unfettered power to force everyone to obey impermissibly oppressive, vague, arbitrary, and unreasonable rules that the director devised and revised, and modified and reversed, whenever and as she pleases, without any legislative guidance. The public would be left with feelings that their government is not accountable to them. Prolonged lockdowns have deleterious effects upon the public psyche. Humans are naturally social beings; socialization strengthens immunities against disease and benefits psychological health.”

Judge Lucci went on to rule that Acton committed “statutory violations” and engages in “continual infringement” of “fundamental constitutional rights.” And that Acton has “no statutory authority to close all businesses.” Maurice Thompson, the plaintiff’s counsel and Executive Director of The 1851 Center for Constitutional Law, went on to state, “Constitutions are written to prevent governments from arbitrarily interfering in citizens’ lives and businesses. On that front, the call to action is clear:  The Governor and Health Director may no longer impose their own closures and regulations and write their own criminal penalties to enforce those regulations and closures.” [6]

Those sentiments were echoed in the Erie County lawsuit filed on behalf of Kalahari Resorts. In that lawsuit, on June 12, 2020 Judge Binette ruled, “The statutes granting [the Health Director] the authority, power to enforce, and criminalize also violates the separation of powers that exist in our Constitutional framework to protect our citizens from the consolidation of power in one person.” He went on to rule that Acton has “been improperly granted the power to create and criminally enforce, with strict liability, laws simply by a decision of an unelected, unaccountable to the general public, administrative officer by virtue of an Order. Application of which is, can and does trample of the fundamental rights of the citizens. Moreover, if one unelected, unaccountable to the public, official is allowed to invoke unfettered Orders, which can criminalize an otherwise non-criminal activity only for disobedience to her Orders, then the right to Due Process is extinguished.” As a final blow, Binette ruled that Acton’s order infringed on Due Process and Equal Protection rights. [7]

Essentially, two different judges in two different counties, affirmed the same thing: unelected officials, along with the sole representation of the executive branch, do not have the authority to both make and enforce laws. Thompson, legal counsel for the plaintiffs in both lawsuits, said it best, “Our corrupt and incapable Governor  can run from the Ohio Constitution, but he can no longer hide from it. With yet another judicial repudiation of his conduct, there can be no justification for continuing his unconstitutional assault on Ohioans.” [8]

Increasingly courts across America are ruling portions and/or the entirety of governments’ COVID-19 mandates as unconstitutional. May 13, 2020 Wisconsin Supreme Court restored the constitutionally guaranteed checks-and-balances within government and thereby restored its citizens their freedoms, by striking down the governor’s lockdown orders, which forced the governor to work with the state legislature on any future orders. The court wrote that “…in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely. It is without doubt that the strictures of the constitution must be diligently defended during this crisis; the judiciary must never cast aside the law in the name of emergency. But just as true, the judiciary must never cast aside our laws or the constitution itself in the name of liberty. The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature.” [9]

Rather than hope and pray for a court ruling or for their elected legislators to take decisive action, perhaps one of the most overlooked options for Ohioans who feel they have been deprived of their guaranteed constitutional rights, is their local sheriff and police chief. According to the Constitutional Sheriffs and Peace Officers Association, the sheriff “stands as the upholder, defender, protector and servant to the liberties of the people within the county. In addition to upholding the law, the sheriff is also charged with upholding the supreme law, the Constitution. The law enforcement powers held by the sheriff supersede those of any agent, officer, elected official or employee from any level of government when in the jurisdiction of the county.” [10] Essentially, the sheriff has the authority to check and balance all levels of government within the county they serve. 

Increasingly more sheriffs and police chiefs across our great nation realize our Constitution is “not suspended in times of crisis.” These sheriffs and police chiefs are displaying the great moral, ethical and political courage in publicly speaking out against enforcing such orders. Here is just one example of no less than 43 sheriffs and police chiefs (links to all 43 found at end of this article).

On June 30, 2020 Sheriff Mike Lehl, Comanche County, KS - “The Bill of Rights was not adopted to give us certain rights. It was adopted as a protection to limit government and to keep our government from infringing upon our God-given rights. Had the government given us our rights, government could -- by legislation, executive order, judicial decision or Constitution amendment -- take them away. But since our rights are God-given and unalienable, government has no authority to take them away or infringe upon them. And when governments do, the people have a right to alter and abolish such governments and institute a new form of government which will protect and defend the God-given rights of the people. These days I feel it is the responsibility and duty of the Sheriff to ensure that the local populous is safeguarded from both State and Federal government’s over-reach of power. As an individual you have rights, if you do not feel safe, stay at home. If you feel more comfortable wearing a mask, by all means, wear a mask. There is no law in the State of Kansas that states that you will/shall wear a mask, therefore there will be absolutely no lawful enforcement within Comanche County.” [11]

For many Ohioans, the Governor’s recent statewide mask mandate is believed to be illegal and unconstitutional, not to mention there is an overwhelming amount of scientific evidence from studies done for years prior to COVID-19, that face masks pose serious risks to healthy persons [12]. On July 10, 2020 The 1851 Center for Constitutional Law reaffirmed the mask mandate as being unconstitutional and wrote [13], “Practically nobody is forced to wear a mask: there are 13 exceptions, which, cumulatively, are broad enough to exempt anyone at anytime and anyplace.  Bottom line: if you don’t want to wear a mask, you don’t have to. And if you’re wearing a mask, it’s because you’re choosing to do so.” However, an increasing number of Ohioans who are prevented from wearing face masks due to pre-existing medical or developmental conditions (e.g. emphysema, asthma, autism, etc.), conditions which are protected under the American with Disabilities Act (ADA) and are considered a medical exemption under the Governor’s mask mandate, are still feeling discriminated against by local businesses that refuse service to them for not wearing a face masks. Ohioans are not alone in this experience. 

Pennsylvanians, who have similar mask mandates and feel they are being discriminated against by local businesses, have recently flooded Giant Eagle supermarket with over 32 federal lawsuits alleging the supermarket chain of violating the ADA. [14] In Florida residents are suing Palm Beach County challenging the county’s recent mask mandate. "Despite having no authority, actual or apparent, under Florida law to do so, Defendant [Palm Beach County] has recklessly required countless American citizens and Florida residents... to submit to dangerous medical treatments with well-known risks and potential for serious injuries and death," the complaint alleges. [15]

“Somewhere a perversion has taken place. Our natural, unalienable rights are now considered to be a dispensation of government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment.” Words fitting of today, yet were words spoken by Ronald Reagan (prior to becoming President in 1981) in his speech, A Time for Choosing October 27, 1964 [16].

Many Ohioans believe we are fighting a war against this virus. The Governor and his Administration have consistently induced panic to the point we hear voices pleading for even greater government-mandated security and protection from a virus at seemingly any price and any expense to our unalienable rights. While many other Ohioans believe we are not only fighting a war against the virus, but also fighting a war to maintain our economic livelihoods and our constitutionally guaranteed liberties which include ,“enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety." [17]

A further glimpse into the past from Reagan’s A Time for Choosing speech reminds us that, “A government can't control the economy without controlling people. And they know when a government sets out to do that, it must use force and coercion to achieve its purpose. No government ever voluntarily reduces itself in size. So governments' programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth.” And in reference to the threat of losing our liberties to communism in the Cold War, Reagan went on to state, “If we continue to accommodate, continue to back and retreat, eventually we have to face the final demand—the ultimatum. And what then—when Nikita Khrushchev has told his people he knows what our answer will be? He has told them that we're retreating under the pressure of the Cold War, and someday when the time comes to deliver the final ultimatum, our surrender will be voluntary, because by that time we will have been weakened from within spiritually, morally, and economically. He believes this because from our side he's heard voices pleading for "peace at any price" or "better Red than dead," or as one commentator put it, he'd rather "live on his knees than die on his feet." 

While the Governor’s continued mandates may weaken many Ohioans spiritually, morally and economically, as Ohioans, we need to ask ourselves how much of a price are we willing to pay to sacrifice our constitutionally guaranteed freedoms under the guise of government-provided security and protection from a virus that our Governor says we have to learn to live with because it will be with us indefinitely? We need to ask ourselves the same question Reagan asked during his speech, “Whether we believe in our capacity for self-government or whether we abandon the American revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves.” 

For those of us Ohioans who believe that we expect elected public officials to act honestly and in accordance with the Constitution and Bill of Rights irrespective of the situation at hand, and for those of us who are horrified by our state government’s recent abuses of power and the dangerous precedents being set, I urge you to a Call to Action. Contact your Ohio sheriff [18] and police chiefs [19] today (click resources for contact info) and urge them to join their fellow law enforcement brothers and sisters from across nation, by displaying the moral, ethical and political courage to stand up for your rights, and publicly reaffirm they will uphold their oath of office by not enforcing any of the unconstitutional mandates, including those on masks. Advise them that recently Sheriffs from Clermont County, Butler County, Montgomery County and Warren County, along with police departments in Cincinnati, Norwood, Centerville, Fairfield, Fairfield Township, Middletown, Clayton, Brookville, Xenia and the Columbus Public Health Dept. [20], Butler County Public Health [21), have all publicly released statements indicating they will not enforce any mask mandates. Links to all the 43 law enforcement departments refusing to enforce unconstitutional orders, including mask mandates, can be found below. Stand up and speak up, because as Samuel Adams wisely stated, “It does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people's minds,” because “security without liberty is called prison.” Thomas Jefferson.

[Click for article resources]