The Metastasizing COVID Legal Morass

I've been following the Harvest Rock Church's case in Pasadena, CA since its inception last spring. As I covered here a month ago, the US Supreme Court sent the case back to the Ninth Circuit for reevaluation in light of its Diocese of Brooklyn action, which essentially signaled that it would find restrictions on attendance specifically tailored to churces a violation of the free exercise clause of the US Constitution. However, this didn't decide anything, it just kicked the issue back to the district court.

The consensus at the time was that Harvest Rock's attorneys would need to relitigate the whole issue back up from the trial court to the Ninth Circuit, and that's what's been happening. As of late last week, Harvest Rock and the state have been filing new briefs with the Ninth Circuit. The court has been asking interesting questions. As outlined here,

The Court of Appeals requested supplemental briefing by the parties to address whether (1) the LA County Order affects the case, (2) the churches still challenge the singing and chanting ban, and (3) the churches challenge includes the new Regional Stay-at-Home Order in addition to Gov. Gavin Newsom's "Blueprint."

These go to the heart of the matter. The first question is whether the LA County order affects the case. This is important, because the principal Harvest Rock church is located in Pasadena, which, althougb it's located in LA County, has its own health department. An LA County health department order does not affect Pasadena. For instance, the LA County health department in mid-December anounced that both worship services and protests were constitutionally protected and withdrew its prohibition against indoor worship, subject to vague rules. However, no other county in California has made any similar announcement.

In addition, the Pasadena health department did not apply the LA County health department's order banning outdoor dining, so it's still possible in Pasadena to eat outoors at a restaurant, but not anywhere else in LA County. But in Pasadena, you can't go to church indoors, although you more or less can now elsewhere in LA County. Thus the case does more or less apply to Harvest Rock, but there's another glitch, in that only the principal Harvest Rock church is in Pasadena, but it has branch churches elsewhere in LA County and elsewhere in the state.

I think the bottom line is that this whole thing is absurd and unenforceable, and the situation can change at any time if either the governor, local health departments, or any other local authority issues any new decree.

The second question is entirely new, and I haven't seen it raised anywhere else. A central point in COVID controls has been that singing or chanting in church is contagious, since people breathe harder when singing and thus spew germs. So even if indoor worship is allowed in individual jurisdictions, a ban on singing and chanting is still near universal. But Harvest Rock is now raising the issue that any ban on singing or chanting is aimed specifically at worship and religion and is a violation of the free exercise clause. Interesting indeed. There's no question that government here is regulating liturgy.

The third question is exactly which stay-at-home order is involved here. As of last summer, there was a color coded order based on COVID statistics that rated individual counties. But in early December, Gov Newsom imposed a whole new order based on regional ICU capacity that somehow overrides, supplements, coexists, or something with the color coded order. The question is exactly which decree Harvest Rock is violating by holding indoor services, none of which has been legislatively enacted -- State Decree I, State Decree II, the LA County Decree I, County Decree II, or the Pasadena Decree,,which conflicts with County Decree II?

Naturally, due process requires that an accusation be brought for violation of a speciric law umder speciric circumstances. By the same token, a petition for redress requires a speciric grievance against a speciric condition. The current panic is taking us farther and farther from these basic questions, which suggests to me once more that we're talking about a panic, not any serious health crisis.

Dirty Harry The Enforcer And 1976

It goes without saying that even fairly recent successful Hollywood films couldn't be made today. I've already talked about the Jason Bourne films that put the CIA in a darkly threatening and subversive light that's now a bit too topical. By the same token, the Dirty Harry series starring Clint Eastwood not only couln't be made now, but I wouldn't rule out cancel culture taking DVD copies off the market entirely. But recently I saw the third film in that series, The Enforcer (1976), which I think is by far the best and, like the Bourne films, retrospectively revealing.

The first Dirty Harry flim, which had that title (1971), had a contemporary, San Francisco-based story, dealing with a Zodiac style serial killer. The second, Magnum Force (1973), wasn't so much rooted in current events and dealt with a police vigilante squad. But The Enforcer took a real issue by the horns, a terrorist group made up of upper-class twentysomethings allied with Lumpenproletariat thugs. By 1976, the US had been through several instances of this, via the Weather Undergound, the Symbionese Liberation Army, and other terrorist outbreaks of the period.

The theme of all the Cirty Harry films is Inspector Callahan's integrity, competence, and disregard for red tape, contrasted with the incompetence, cowardice and venality of politicians and the upper echelons of the police department. In this, the character probably comes from the Western genre, rather than detective fiction -- Callahan owes much more to the sheriff in films like High Noon than the disillusioned cop in the film noir The City That Never Sleeps.

The main action in The Enforcer centers on Callahan's investigation of a terrorist raid in which a group seizes a cache of military rockets. Callahan's superior, Captain McKay. eager to curry favor with the mayor and department brass, insists that a black militant group is responsible. Callahan is skeptical and meets Big Ed Mustapha, leader of the black militant group. He convinces Mustapha that, as men of integrity, they're actually on the same side, and Mustapha provides him with information on the actual terrorists, who by implication are rich white kids allied with pimps and punks.

However, Captain McKay is running his own inept investigation at cross-purposes to Callahan and arrests Mustapha and the other black militants. McKay attempts to take credit for solving the case and tries to engineer a public commendation from the mayor. However, the actual terrorists kidnap the mayor and spirit him out to Alcatraz Island. McKay and the department brass readily agree to the terrorists' demands to secure the mayor's release, but Callahan, already on the scene in Alcatraz, kills the terrorist ringleader before McKay and the police brass can arrive to surrender.

Like the Bourne films, The Enforcer is unintentionally insightful in a way that reverberates through subsequent decades. Referring to the rich white terrorists and the social tensions they inflame and exploit, Callahan speaks several times of a "war" that's under way, with the implication that cowardly politicians and their bureaucratic enablers allow it to continue. Thinking forward to the BLM riots of 2020, it's nard not to conclude that nothing's changed. There's a war, with the elites and entrenched bureaucrats trying to confuse the rest of us about who's on what side.

This in turn makes me wonder if 1976 is a year we should pay closer attention to. Robert Barnes thinks we should look to the election years 1824 and 1876. Others say look to 2000 and Bush v Gore. Victor Davis Hanson recently suggested 1968, but if you think about it, 1968 was the start of the trends that led to 1976, and there's a lot about The Enforcer and what it says about 1976 that speaks to us today.

Just for starters, 1976 was the election held in the wake of the Watergate scandal, Nixon's resignation, and Ford's pardon of Nixon, all of which led to the election of the incompetent Jimmy Carter. And hasn't it gradually come out that in Watergate, the FBI was the behind-the-scenes player, with the deep state Deep Throat pulling a lot of the strings, working closely with uber-establishment media? There's a lot to reflect on here.

No More 2020 Dumpster Fire!!!

The big year-end meme for 2020 was the dumpster fire, and this seems to have carried the implication that 2021 wouldn't be the same. I'm not sure why. No matter who is president, the worldwide COVID panic continues in full effect. I couln't get a haircut last week, and I won't be able to get one this week, either. And as barbers realize that government decrees make their business unpredictable, they're leaving it -- and this will be the case even after things get back to "normal". There'll simply be fewer barbers, hair salons, and sit-down restaurants.

But insofar as people fought back, they made progress in 2020, and this still needs to be done in the coming year. In particular, the US Supreme Court ruling in the Diocese of Brooklyn case, while it hasn't been a magic bullet, has led to progress in free exercise of religion. We received this letter from our parish yestwrday:

As you may have heard recently, places of worship are now permitted by the County of Los Angeles Department of Public Health to offer faith-based services, or otherwise allow access for faith-based practices, indoors and outdoors, provided that strict physical distancing is followed, which requires a minimum of six feet between persons from different households. With this latest change, parishes throughout the Archdiocese of Los Angeles including [redacted] now will begin offering indoor Masses throughout the week. These indoor Masses will be in addition to current offerings of outdoor, drive-in and live stream Masses to meet the comfort level of all who wish to attend.​​

In spite of certain Masses being moved indoors, please know that we will still have all windows and doors open to allow for air circulation even during the cold weather months. Those who wish to attend our indoor Mass times but prefer to sit outdoors will always have the option to sit and listen to the Mass from our Courtyard of Charity. We advise that you check the weather and dress accordingly. Also, all individuals planning for funerals, baptisms, and weddings in the coming months will be given the option to hold these events either inside our church or outdoors at our Courtyard of Charity based on their personal preference.

This is actually how I envisioned Catholic dioceses moving forward some months ago, although I was assuming it would be possible much sooner. There's a general panic still in effect, and people will have varying levels of comfort with indoor masses. Before LA County relaxed the prohibition on indoor worship, our parish had been experimenting with a range of options, from livestream to outdoors in the patio, to drive-in in the parking lot, and for the time being, indoor masses will simply be added to the mix.

Given the arbitrariness and unpredictability of the civil situation, this level of flexibility is highly prudent. The county can change its mind at any time, or the mayor, the governor, or even the federal government can intervene as well, out of the blue. The dumpster fire ain't out by any means.

The other important legal cases over COVID have been less active over the holidays. I have a list of those I'm following and hope to report on new developments.

Mark Clay McGowan, the Bakersfield, CA YouTuber who'd been in the hospital for six weeks with COVID, is finally out and recovering at home.

So there are signs of hope, but the dumpster fire is still raging.

So, There's This New Strain Of COVID

The new strain is about a gazilllion times more contagious than the old one, according to Boris Johnson. Actually, he didn't say gazillion. He said maybe 70%, but I don't think anyone asked him how contagious the old strain was, and nobody knows that anyhow, so gazillion is probably a more accurate indicator than 70%. The UK health toff says it's been out of control since September, and Boris put the south on Tier 4 lockdown (which is UK speak for "double secret" in the US), and you can see from the graph above how useful that's been.

Except, also according to Boris, nobdy gets any sicker from the new strain than the old one. So the lockdowns are ineffective -- and if you think about it, if the new strain is even more contagious than the old one, the germs must be traveling in the breeze or over the internet or something, so if masks and social distancing weren't much help with release 1.0, how much help are they with 2.0? But the vaccine still works with 2.0, and nobody gets any sicker.

And now we have reprts that it's in Colorado and even in San Diego.

San Diego County officials said tests showed a 30-year-old resident contracted the strain in California’s first confirmed case of the variant, one day after the sequence was discovered on American soil for the first time in Colorado. The Southern California man had not traveled recently, officials said — a sign that despite efforts to contain the mutation in Europe, it may already be spreading locally.

Gov. Gavin Newsom announced the news during a virtual meeting with Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases.

The bigger news here is that Newsom is meeting with Dr Fauci, which says he's getting nervous about the recall petition. Even if nobody asks him directly why the lockdowns haven't even flattened the curve, that's going to be at the back of everyone's mind -- and if your team isn't doing well, eventually you fire the coach.

Newsom needs Fauci to put his prestige behind the strategy that simply isn't working, and saying there's a new, even more contagious strain isn't going to help. What are we supposed to do? Maintain 12 feet social distance instead of six? Wear two layers of masks instead of one? Put up plexiglass barriers in the kitchen? Sanitize the TV remote after each use?

Has anyone thought this through?

California Update

I think it's worth focusing on California lockdowns, which are oppressive in themselves, but as they say, what starts in California spreads to the rest of the country, and as we'll see below, there are rumbles to that effect.

On December 29, when an initial double secret set of restrictions expired, California extended its effectively statewide regional stay-at-home order until mid January. These were based on an entirely new criterion, ICU capacity, and overlay an existing color-coded set of restrictions on individual counties.

The bottom line is that in most parts of the state, schools are closed to in-person instruction, school athletics are suspended, restaurants are closed except for takeout, barbershops, hair and nail salons, and gyms are closed, and retail is limited to 25% capacity. The status of churches is in litigation, with indoor worship prohibited in most areas and outdoor worship subject to numerical limits depending on civil jurisdiction. (Los Angeles County has "allowed" indoor worship subject to vague conditions, but so far the Roman Catholic Archdiocese of Los Angeles has not reopened for indoor masses.)

Amusement parks and indoor museums remain closed. There's an unofficial and unenforced ban on "inessential" travel -- indeed, in Los Angeles, a ban on inessential walking, bicycling, or scooter riding. However, on a recnt trip through Hollywood, I saw many people riding scooters, no joke, and I frankly doubt if those were all essential trips. As the photo above suggests, scooters in LA are an upscale phenomenon, and putative restrictions on them are ignored.

So we have an opinion piece by limousine libertarian Virginia Postrel in Bloomberg News, misleadingly titled "Los Angeles Locked Down. Covid Came Anyway." But it mentions no statistics, quotes no official policies. It's a gushy, perky chick piece on Virginia Postrel.

Our pandemic experience hasn’t been that bad. My husband and I get along and like being together. With jobs we can do online and no kids to homeschool, we have it easy. Our three-bedroom condo gives us separate workspaces and room to spread out. I’ve turned our kitchen table into my own Zoom studio, complete with backdrop and lights for a 2020 book tour. I’d love to eat in a restaurant or travel cross country, but those are minor sacrifices compared with what many people are experiencing, even without getting sick.

Postrel mentions in passing the effect of the virus on her housekeeper's family, but mostly it's that her husband can't go in to the university where he's a professor, and he hasn't had a haircut, so he's growing a pony tail. This is one reason why the Recall Newsom movement has an uphill battle: as Postrel acknowledges, the elites are only mildly inconvenienced, and their lives are fine. Too bad about the cooks, waiters, and barbers, huh? Postrel, a writer, knows her audience, and she knows her market. I'm glad that I only rarely worked as one.

The political class's views have in fact hardened. Alex Padilla, designated by Gov Newsom to replace Kamala Harris in the US Senate, expressed the party line just the other day:

But again, as you said, we’ve been hearing about, whether it’s COVID fatigue, and people are maybe taking it a little — getting a little too comfortable, thinking they would be immune or that the worst of it was over when it wasn’t true. Second, California can do all the things it needs to do, but if you have people still coming in and out from other states that have been less restrictive, right? Arizona is just right next door, for example, or all the people that flew throughout Thanksgiving weekend, all that is now coming home to roost. So, once again, we’ve got to tighten the belt in terms of that mobility,

What he's telegraphing is the need for a national lockdown. Because California.

Get a scooter, folks. You'll be fine.

A Visitor Chimes In On COVID Hospitalizations

A visitor sent me an e-mail reacting to recent posts on COVID, ERs, and hospitalizations

About ER waits: We have a friend whose son is an ER nurse at Kaiser. The waits in ER are ridiculously long because people who test positive for covid are showing up BECAUSE they tested positive. No symptoms but the media has convinced us that we are all going to die of this virus that testing positive is a death sentence.

Another reason waits are long at ERs is that some people can't get regular medical care from their docs so they end up at the hospital sicker than should/would have been. True stories I've been told:

A young boy is feeling crummy. He goes to his pediatrician who tests him for covid (the only reason to feel sick, right?). The test is negative so the doc does nothing. Days later his parents are awakened with him vomiting uncontrollably & he's rushed to ER. His appendix has burst. Due to the misdiagnosis he is sicker than most with appendicitis attacks & will have to spend another week in the hospital to clear up the infection (& who knows what else).

A mom is 2 weeks overdue with her pregnancy. Her OB wants to induce her, but the hospital won't allow it because they're saving OB beds for covid overflow. Solution: break her water at the doctor's office, hoping that will start labor & then go to the ER to get admitted (which is what happened).

Our son's friend is a peds respiratory therapist in Orange Couunty [CA]. When she visited in June, she was concerned how few children she was seeing. She was worried that children who had previously been admitted for breathing treatments, etc were being ignored which would lead to bigger problems later.

Our son's co-worker can't get help for gall bladder issues because she has tested negative for covid!!

I remember back in February going to mass, when the priest remarked in his homily on the crush of people shopping for toilet paper. He said he couldn't understand why. I pretty much knew it was because people instinctively anticipated some completely arbitrary government action with unintended consequences, even weeks before governors began to order lockdowns. If there had been a way fo stockpile haircuts, they would have done that, too. People don't get enough credit for being informed consumers.

What we're seeing here, in people crowding ERs because they think a positive COVID test is a death sentence, is a result of media and politicians collaborating to create a panic with daily headlines on recordbreaking, skyrocketing "cases" without mentioning how many positive tests are asymptomatic or just false positives. I would bet they have a much better idea of the actual numbers than they'll let on, while they keep promoting the idea that eating out or going to church will result in mass graves in the public park.

There's going to have to be some major event that breaks the current panic cycle.

The Only COVID Hospitalization Account I've Seen

The only detailed account of a COVID hospitalization I've found is by a YouTuber in the Bakersfield, CA area named Mark Clay McGowan. McGowan is a retired railroader who normally posts on railroad subjects and local history, and he's a bit of a cousin in style to Mike Rowe. I followed him for that reason. However, on November 18, he put up a YouTube post from his hospital bed explaining that over the prior weekend, he'd been to the ER, diagnosed with viral pnseumonia and sent home.

But the following Monday, his family, feeling he'd worsened, took him back to the ER, where he was diagnosed with COVID and admitted. He's been in the hospital ever since, posting YouTubes of his experience avery few weeks. I tried to link his November 18 post directly here, but YouTube won't let me do it. It is in fact harrowing. Above is a screen shot, and if you have the fortitude, you can watch the whole thing via this link.

I've been hesitant to post on this, because under US law, medical informaion is highly confidential, but my view at this point is that by posting on YouTube, McGowan is making his information public on his own initiative, and there is some real value to having it. Almost no specific information on any individual COVID hospitalization, or indeed any general information on the course of such hospitalizations, is available anywhere. Since COVID left China probably more than a year ago, it's remarkable how little useful information about it has been made public. I suspect there's a certain Mike Rowe part of McGowan's makeup that's urging him to do this.

McGowan in the video linked above exhibited what are reported as symptoms of infection that would in fact warrant a visit to the ER, fever, dry cough, weakness, and confusion. However, even people who are hospitalized with those symptoms are released after a fairly short period -- the case mortality rate is generally about 1% now in the US. As of today, the cumulative case mortality rate in Kern County, CA, where McGowan is hospitalized, is .7 of 1% -- and Kern is considered a major hot spot.

So a big mystery to me is why McGowan seems to have shown little improvement over six weeks in the hospital. His most recent YouTube post indicates he has trouble breathing and is so weak he can't stand up to let the nurses change his bed sheets. He says his blood oxygen is around 90%, which is borderline fatal. But clearly only a very small percentage of COVID patients reach such a dire condition.

I went looking for web references on COVID and blood oxygen and found a study, remarkable in that it exists at all, as well as in what it contains. The study dicusses several cases of patients diagnosed with COVID who have serious comorbidities, including heart disease and multiple organ transplants, who have blood oxygen levels well below 90%, which would normally be fatal, but they're awake and chattering on their cell phones.

The Wall Street Journal considers it a medical mystery as to why “large numbers of Covid-19 patients arrive at hospitals with blood-oxygen levels so low they should be unconscious or on the verge of organ failure. Instead they are awake, talking—not struggling to breathe” (1). Science judges the lack of patient discomfort at extraordinarily low blood-oxygen concentrations as defying basic biology (2). Writing in The New York Times, Dr. Levitan, with 30 years of emergency medicine experience, notes “A vast majority of Covid pneumonia patients I met had remarkably low oxygen saturations at triage—seemingly incompatible with life—but they were using their cellphones . . . they had relatively minimal apparent distress, despite dangerously low oxygen levels” (3). Despite this extensive coverage in the news media, the topic has not been addressed in medical journals.

Yet McGowan, by his account, has COVID, but his blood oxygen is behaving normally. Low blood oxygen is more typically a result of other COPD disease like emphysema. Whether McGowan has also been diagnosed with this he doesn't mention. I wish him the best, no matter what, and I'm sorry he hasn't been posting YouTubes about trains.

But this rasies a bigger question, which the quote carefully and obliquely raises as well: COVID has been around for a year, but the public health community seems to show little curiosity about it, and it in fact pretty much insists that the models are all we need to understand it. This is looking to me more and more like a dereliction.

In fact, with a lifetime's experience of institutional dysfunction behind me, I would say that there are major disincentives to serous COVID research. Even a relatively innocuous study like the one I linked above is likely to raise questions that undermine the public consensus promoted by the Drs Fauci and Birx and the public health establishment. There likely won't be serious grant money, and it could be dangerous to careers. Now and then we see reports of doctors losing their licenses for saying the wrong thing about COVID.

I'm beginning to think this may be a bigger problem than the disease itself.