Alex McElhaney, unlike the other defendants in the Dade County courts facility, looks spiffy. He’s wearing a dark suit and tie, with a tiny lapel button of the federal flag. He stands before a judge and prosecutor Len Gregor at an arraignment hearing, one intended to indicate whether he will “plead out” or contest criminal misdemeanor charges.
Mr. McElhaney, 24, in June challenged a roadblock imposed by Georgia highway patrol, insisting that the officer had no authority to stop him absent a signed warrant or probable cause. He was jailed 14 hours and released on his own recognizance. At the hearing Wednesday in Trenton, Ga., he pleaded not guilty.
Twice he made the demand, “Where is the state’s probable cause?” Because this point, as I had suggested to him over his breakfast and in phone calls for two days before, is the penetrating question that aims a dagger at the security state. Roadblocks violate a fundamental protection of the people on the public roads in Georgia.
Mr. McElhaney, a yellow-marked copy of the U.S. constitution tucked into his jacket pocket, receives not a serious consideration of his demand, but a patronizing response. Both her honor and Mr. Gregor say, “We can’t give you any legal advice.” One says something like, “you will have to hire an attorney to answer that question.”
Mr. McElhaney works at a chain grocery story in Brainerd, where he met his girlfriend, Tara Salvatore. She sits with him and his father, Randy, a maintenance manager at Gill, an auto parts plant in Dade County. I express warm empathy with Miss Salvatore, because her friend’s views have placed a huge demand upon him, a shadow of criminality, a question mark that separates him from the rest of mankind, as it were. My wife, Jeannette, endured a similar ordeal.
In several conversations Mr. McElhaney indicates that the constitution protects him from arbitrary stops on the highway absent probable cause. While holding his ground at the side of a public roadway, he stands charged under §16-10-24 in the Georgia code, “Obstructing or hindering law enforcement officers. ***(a) Except as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”
He insists that he assertion of his rights cannot possibly be converted into a crime. The source of that paraphrase: “The claim and exercise of a constitutional right cannot be converted into a crime” Miller v. U.S., 230 F 2d 486, 489. “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them” Miranda v. Arizona, 384 U.S. 436. There are many other such opinions of noble American jurists that esteem the liberties protected under state and federal constitutions.
Suggestion from the gnome
Prior to the hearing I had called a friend in Middle Tennessee, the gnome, who listened to me sketch out the case from an unfamiliar jurisdiction. There is only one thing that needed to fall from Mr. McElhaney’s lips at an arraignment, he said. A question: “Where is your probable cause?” Let this question be your sole point, I suggest.
His friends, his family have counseled against his effort, he says tonight. “As strong as my convictions are, I don’t know how I can win,” he says. Give up, surrender, everyone warns. These loving expressions weigh upon him. In the tumult of mind, Mr. McElhaney says he fully understands roadblocks. After all, they have a public safety purpose; don’t they do good? What about a 98-year-old woman woman who kills you on the highway? Wouldn’t a roadblock rightly get her out from behind the wheel? He has stood up for what he believed in, “and everyone is telling me I’m wrong.” People appreciate his passion for constitutional liberty, he says, and have said, “Go for it.” But these well-meaning sympathizers don’t have to bear the costs he faces, he says. He does. And he is not sure he has strength, means and time to.
Mr. McElhaney wonders if perhaps getting the General Assembly to overturn roadblocks might not be a better course than defying a system as a defendant. Lobby to get the law changed, he offers. He says there will be future roadblocks, and might give him another opportunity if he pleads guilty now. He admits he is a “commoner” and is “woefully ill prepared. I have no lawyer. I have no means of getting a lawyer.”
Key role of defendants
You ask, what has been my role in this story? Why mix myself up in this man’s tribulation? Mine is the only voice that says take courage, count the costs, and fight. I see my calling as his acquaintance as giving him courage. I want Mr. McElhaney to not feel overwhelmed and forgotten. I suggest he see his dilemma as not a product of chance or misfortune, but as providential. My interest is to have him see that his ordeal of arrest, booking, jailing are not without a purpose. If he pleads out, these experiences — willingly entered into upon the principles of freedom and constitutional government — will have seemed wasted, miscalculations; they avail nothing for the cause of the liberty.
I tell Mr. McElhaney about my Tennessee case in which the General Assembly revised a statute to account for my argument that the state has no authority to compel anyone to go out and get a social security number simply for the purpose of having an SSN to give on a driver’s license application. Such changes are wrought by litigation, even if the commoner is unsuccessful in the particulars of his case. How is that? Because general assemblies revise statutes that are threatened by a plaintiff who keeps appealing, as did I (to the court of appeals). To avoid the risk of having no statute at all, the politicians revise their scripts — in my case, in the Tennessee Code Annotated. One man, one case, one revision in law. Politics is useless in changing evils such as roadblocks.
I understand the qualms of men such as Mr. McElhaney. He is a particular person. But he is also Everyman, the put-upon American who realizes his rights as a freeman are practically gone, who understands he lives under an oppressive system, a “security state,” a messianic corporation that saves all men by legislation and welfare programs, a state that believes it can make men good by coercion and statute. He seems almost aware of the representational status that in conversation over coffee and on the phone line I ascribe to him. But his particulars weigh on him; he feels unfit for the task to which he called himself. It is my place as a Christian and a person of charitable heart to encourage him.
Mr. McElhaney seeks counsel; will you help?
Mr. McElhaney is seeking an attorney to help him pro bono. He has standing to challenge roadblocks in Georgia because he has been injured by it. He needs assistance of counsel or representation.
If you are interested in Mr. McElhaney’s situation, you could make an effort to help him find assistance. Perhaps the true state of affairs in Georgia is that no liberty exists by the fiat of high court opinion. Maybe users of the road are no longer free of “unreasonable searches and seizures” as described in the Georgia bill of rights (Article 1, Section 1, Paragraph 13). If that is so, a learned officer of the court can give him an oral brief on the situation and advise him to plead guilty, take his eight hours of community service and avoid a hassle.
He could hazard a trial before a jury of his peers, which I describe as a great liberty and favor to one accused by the police state. Mr. McElhaney is by his own researches aware of the power of the jury to judge both fact and law. But right now, somehow, this understanding of the liberating power of juries provides little solace.
I suggest Christians seek God’s favor in a season of prayer for this young man of principle and his family. Secondly, if you know of a way to help Mr. McElhaney, either with legal representation or financial aid, email me through my contact portal. Thirdly, be so kind as to send links to this story to your friends and interested parties. For this story, let’s use the power of the Web to inform a thoughtful few about this man’s purposes.