Category Archives: “Congress shall make no law respecting an establishment of religion….”

Transcript of my preliminary hearing where the Court found enough evidence to try me in Commonwealth Court

The Chabad religious service is entirely in Hebrew and Aramaic where men and women are separated during prayer. In August, this was the only synagogue service available to me. This (with the exception of women being separated from men) is the service with which I am most comfortable. Under the rules of the sabbath codified in Arabic in the Twelfth Century by the great Rabbi Maimonedes, one is not permitted to work on the Sabbath. Today that is defined as not driving a car, exchanging money, turning a light switch on or off, etc.

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Raw unedited transcript of my preliminary hearing

IN THE COURT OF COMMON PLEAS CENTRE COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH : NO. OTN X 198324-0

VS :

JOEL SOLKOFF :

TRANSCRIPT OF PROCEEDINGS (Preliminary Hearing)

BEFORE: Thomas Jordan, MDJ

DATE: August 15, 2018

PLACE: Centre County Courthouse Courtroom No. 3 102 South Allegheny Street Bellefonte, PA 16823

APPEARANCES:

FOR THE COMMONWEALTH: Amanda Chaplin, Esquire Assistant District Attorney

FOR THE DEFENDANT: Patrick  Klena, Esquire Assistant Public Defender

NOTES BY: Patricia A. Grey, RPR Official Court Reporter Room 208, Centre County Courthouse 102 South Allegheny Street Bellefonte, PA 16823 814-355-6734 OR FAX 814-548-1158

 

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INDEX TO THE WITNESSES

DIRECT CROSS REDIRECT RECROSS

COMMONWEALTH:

Gregory Brauser

Andrew Sim

DEFENDANT:

Joel Solkoff

INDEX TO THE EXHIBITS

ADMITTED

COMMONWEALTH:

(None)

DEFENDANT:

(None)

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P R O C E E D I N G S

THE COURT: This is the Commonwealth

versus Joel Ezra Solkoff. Mr. Solkoff’s case is

identified by OTN No. X 198324-0.

Does the defense waive the reading of

this complaint? MR. KLENA: Yes, we do.

THE COURT: Is the Commonwealth ready to

proceed?

  1. CHAPLIN: Yes, Your Honor.

THE COURT: All right. Then you may go

ahead and call your first witness.

  1. CHAPLIN: Lieutenant Brauser.

Whereupon,

GREGORY BRAUSER

was called as a witness and having been duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MS. CHAPLIN:

  1. Lieutenant, could you please state your

name and then spell your last name for the record?

  1. Yep. It’s Gregory Brauser,

B-r-a-u-s-e-r. I’m a lieutenant with the State College

Police Department.

  1. And were you — what are your duties as a

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lieutenant at the State College Police Department?

  1. I’m currently in charge of the community

relations division of our department.

  1. Were you working back around August the

9th of 2018?

  1. Yes, I was.
  2. Are you familiar with the defendant in

this matter, Joel Solkoff?

  1. Yes, I am.
  2. Do you see him in the courtroom here

today? A. He’s seated next to his defense attorney.

THE COURT: I’ll note that he identified

the gentleman to Mr. Klena’s right.

  1. CHAPLIN: Thank you, Your Honor.

BY MS. CHAPLIN:

  1. And can you describe for the Court what

your involvement with Mr. Solkoff has been leading up to

the events that occurred on August 11th of 2018?

  1. Yeah. I was made aware by our chief of

police that on the 6th, which was the Monday, that

Mr. Solkoff was at the borough council meeting that

night and was complaining about the condition of the

downtown sidewalks and the inability that he was having

with his electronic scooter to get around downtown and

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that the borough was not making proper accommodations

for him to be able to get through the downtown. He at

that point had requested the chief arrest him during his

arguments in council. The chief declined to do so

stating that Mr. Solkoff was just exercising his rights

of free speech. Mr. Solkoff was very insistent on being

arrested and informed the chief that he was going

downstairs to get arrested.

He subsequently, Mr. Solkoff, rode his

device out into the middle of Beaver Avenue at the

intersection of Allen Street and blocked that

intersection for vehicular traffic. Our department

responded to that report from civilians that the roadway

was blocked by Mr. Solkoff. Officers on scene spent

approximately 15 to 30 minutes trying to convince

Mr. Solkoff to leave and securing an ambulance for him

to be removed from the roadway.

As a result of that, we later in the

week — I believe it was Thursday — were contacted by a

defense attorney representing Mr. Solkoff who wanted to

inform us of Mr. Solkoff’s wishes that we be aware that

on Saturday, the 11th, he was planning to repeat the

blocking of Beaver Avenue in protest for better access

for persons with disabilities on downtown sidewalks.

As a result of that notification, I was

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assigned to reach out to Mr. Solkoff and his attorney.

I did so and on Thursday of that week, I spent

approximately an hour with Mr. Solkoff going over his

concerns about the sidewalks down there. I informed him

that in the time between the notification that his

attorney provided us and speaking to him that I had

arranged for free public transportation for him to reach

specifically religious services that he was going to get

  1. I had reached out to CATA bus services, the Centre

County transportation services, and his synagogue to

arrange those — free transportation for him to get to

and from services.

I also provided him with an alternative

route if he wished to still take his own means there.

Instead of coming out of his building and heading east

on Beaver Avenue, he could turn west to go half a block

and basically continue the exact same route that he

would have taken and avoided all the construction. He

advised me that that was not his wish; that he was at

this point protesting and demanding to speak to the

secretary of transportation for the Commonwealth of

Pennsylvania in order to bring light to his cause and

insist on State Route 26, Beaver Avenue, be converted to

a pedestrian walkway either in whole or at least the

right travel lane being shut down and converted to a

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pedestrian walkway.

Like I said, I spent pretty close to an

hour with him and also a little bit of time with him and

his attorney during that time trying to convince him to

either protest peacefully on the sidewalk, even

mentioned I think going to Bellefonte where their office

was and protesting there, or using our alternate means

of transportation. And Mr. Solkoff was very polite

stating that those were not options that he wanted, just

being that he was very set on doing his protest in the

roadway and blocking traffic and very insistent that he

was to be arrested.

During the police’s first encounter with

him on the Monday prior, he was actually not arrested.

He was taken to the Mount Nittany Medical Center for an

evaluation to see if it was something that he was a

danger to himself or others for. He was very upset that

that was the process that was taken on Monday and

adamant that he wanted to be arrested and put in jail.

  1. Okay. So, alternative means to reach his

destinations were provided?

  1. Correct.
  2. And alternative venues to protest were

provided?

  1. Yes.

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  1. But he refused those?
  2. Yes, he was very adamant that he didn’t

want that. He wanted to be arrested and put in jail.

  1. Did he ever obtain a permit from State

College Borough to protest in the street or to close

down the street?

  1. He did not obtain a permit from anybody,

borough or PennDOT, to block the roadway.

  1. Is that the extent of your involvement in

this case?

  1. No. In preparation for his planned

protest, I actually reached out to the jail and made

them aware that this was a potential person coming in

with disabilities so that they would be prepared for

that. I contacted the District Attorney’s Office and

spoke to the district attorney about appropriate charges

for the case and actually pre-typed a criminal complaint

with the charge on there to provide to the day shift on

Saturday to expedite the removing him from the roadway

so that it was less of a safety hazard for himself and

the general public.

That information that I typed up was

provided to the day shift supervisor and officers

working for that Saturday where the protest was planned,

and we had arranged with Centre LifeLink EMS to

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transport for us so that it was a more comfortable

transport for him and his electronic device.

  1. You say electronic device. Can you

describe it for the record?

  1. He has a motorized scooter that he uses

to get around town. That’s seated right next to him.

  1. Were you involved at all on October (sic)

11th or is your involvement everything before?

THE COURT: What day? It’s August.

  1. CHAPLIN: August.

THE COURT: I thought she said October.

I’m paying attention actually. August.

  1. CHAPLIN: I think I did say October.

THE COURT: All right.

BY MS. CHAPLIN:

  1. August?
  2. After the incident on August 11th, I

actually secured the video from the patrol cars and

brought those into evidence and also took still shoots

from the downtown cameras that showed the defendant in

the middle of the roadway.

  1. So there was video and still shots?
  2. Yes. I also had some follow-up with the

office of the aging. He has a caseworker with them to

try and see what services we may be missing to provide

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or that they’re able to fill in the gap. That was one

other resource we reached out to.

  1. CHAPLIN: I don’t believe I have any

further questions for this witness.

THE COURT: Mr. Klena, would you like to

ask the lieutenant any questions?

  1. KLENA: Briefly.

CROSS-EXAMINATION

BY MR. KLENA:

  1. Lieutenant Brauser, in terms of his

charges, is he charged under Title 18 the Crimes Code

obstructing highways and other public passages, correct?

  1. Correct.
  2. Because he persisted on or this wasn’t

the first time, that’s what makes that offense a

misdemeanor of the third degree, correct?

  1. I believe it’s because of the order from

the police at the day of. It doesn’t have to be a prior

incident. Just consistent or continued after being

ordered by police to leave the roadway while being

provided an alternate venue.

  1. Okay.
  2. So, there’s two sections. There’s a

misdemeanor and a summary section.

  1. Now, did Mr. Solkoff express that the

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alternative route was not satisfactory or essentially

nonexistent? Did you have that conversation with him?

  1. It wasn’t satisfactory to him. It was

completely existent.

  1. And you would agree that the condition of

downtown State College in terms of the sidewalk does

prevent him from traveling his route to his synagogue,

correct?

  1. No, it does not prevent him from getting

to that location. It prevents him from getting on

Beaver Avenue to that location, but there’s alternate

routes that he can take.

  1. Did he express to you that the sidewalk

of the alternate route is dangerous?

  1. He did, and I traveled that route and

verified that it is not. The route going down Beaver

Avenue to Allen Street, Allen Street down to Waring

Avenue and Waring Avenue across, every one of the

sidewalks has been replaced at the corners by the

borough to be ADH compliant with handicap ramps and

anti-skid plates on each one of those sidewalk corners.

  1. Lieutenant Brauser, when he went out into

the roadway the — I guess the second incident — and

that was on the 11th; is that correct?

  1. Correct.

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  1. The phone call received from his

attorney, that would be Matt McClenahen, that was on

August 9th that both these things, correct?

  1. Thursday, correct.
  2. He went out onto Beaver Avenue; is that

correct?

  1. Correct.
  2. What location on Beaver Avenue? What

would have been one of the side streets?

  1. On the first one or the second one?
  2. The second one?
  3. It would have been mid-block in the 100

block directly across from Uncle Eli’s.

  1. Okay.
  2. He basically came right out right of

Addison Court and right out into the roadway from their

driveway.

  1. At that time did you receive any

complaints from the public that Mr. Solkoff was making

Beaver Avenue impassable?

  1. I wasn’t working that day. He actually

pulled out directly in front of an unmarked police car

which was able to stop at that point and turned his

lights on to alert traffic that he was in the middle of

the roadway.

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  1. Did he have any signs with him or

anything — to your knowledge, did he have signs with

him?

  1. The video didn’t show any signs.
  2. Mr. Solkoff is 70 years old?
  3. Correct.
  4. The issue with the sidewalks being

currently impassable, that’s not a permanent condition

or you don’t foresee that being a permanent condition,

do you?

  1. No, it’s a temporary construction issue.

The south side of Beaver Avenue in the 200/300 block is

under construction due to a building being rebuilt. The

north side is a delay. They initially started to

replace all of the street lights in the downtown area.

The borough obtained permits from PennDOT to rip those

up and after they took out the old ones, an inspector

came in I believe and determined that the new ones —

there was an issue with something they were doing which

delayed the process of getting the new ones immediately

installed. So, it’s on delay that’s causing the

problems.

  1. Okay.
  2. So, it’s temporary construction on both

sides.

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  1. But for now they are impassable to

someone in Mr. Solkoff’s condition in terms of requiring

either a wheelchair or a motorized —

  1. I don’t know that they’re impassable.

They have taken up some of the blocks where there was

solid cement and replaced it with gravel.

  1. Okay. Well, you would agree that it

would be difficult —

  1. Inconvenient for sure, yes.
  2. — to navigate on gravel on a wheelchair?
  3. Correct. But there’s always a block

either direction that’s not being torn up at this point.

  1. Did Mr. Solkoff show you a video that he

had made?

  1. He did not. He had mentioned a video

that he had made during Arts Fest that he stated he

couldn’t get to some venues at Arts Fest. I had pointed

out that the construction was actually the opposite

direction from his house from where the Arts Festival

was. So, I was confused by how he couldn’t get to the

Arts Fest.

  1. You would agree that Mr. Solkoff, like

every American, has a right to express grievances

against their government, local, state, or national,

correct?

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  1. Absolutely.
  2. You believe that was ultimately what

Mr. Solkoff is doing here by his going out onto the

roadway? He had a grievance and this is the way he was

going to bring attention to it; is that your

understanding?

  1. That was what he stated his purpose was.
  2. You have no reason to believe other than

that?A. No.

  1. Did you have a meeting with the fire

chief with Mr. Solkoff?

  1. Not over this incident.
  2. KLENA: I don’t have any further

questions of Lieutenant Brauser.

THE COURT: Anything on redirect?

  1. CHAPLIN: No, Your Honor.

THE COURT: Thank you for your testimony.

THE DEFENDANT: May I ask some questions?

  1. KLENA: No, you can’t.

THE COURT: Well, you can’t now. I

excused him so. THE DEFENDANT: Well, that’s

unreasonable. The lieutenant made several errors of

fact.

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  1. KLENA: That will be up to the jury

to determine whether or not his errors are fact.

THE COURT: You also have a right to

testify, too.

THE DEFENDANT: Can I testify now?

THE COURT: Well, that’s up to your

attorney.

  1. KLENA: I would advise against it,

but if that’s what you wish to do, that’s your choice.

THE DEFENDANT: I want to testify.

THE COURT: Well then, we’ll wait until

it’s your turn, okay?

THE DEFENDANT: Of course.

THE COURT: There’s a certain protocol.

THE DEFENDANT: I’ll be glad to follow.

THE COURT: We’re going to allow the

Commonwealth to present additional evidence. It appears

they have additional evidence.

THE DEFENDANT: That’s fine.

THE COURT: We’ll let them present their

case.

THE DEFENDANT: That’s fine.

THE COURT: And let you, if you choose,

sir.

THE DEFENDANT: Okay. Thank you.

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THE COURT: Officer.

Whereupon,

ANDREW SIM

was called as a witness and having been duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MS. CHAPLIN:

  1. Officer, could you please state your name

and then spell your last name for the record?

  1. Andrew Sim, last name is S-i-m.
  2. Where are you employed?
  3. State College Borough Police.
  4. In what capacity?
  5. Patrol officer.
  6. What are your duties as a patrol officer?
  7. Calls for service, investigations,

traffic patrol.

  1. Were you working back on August 11th of

2018? A. I was.

  1. And on that date did you have occasion to

come into contact with the defendant in this matter,

Joel Solkoff?

  1. I did come in contact with him.
  2. Do you see him in the courtroom here

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today? A. I do. He’s sitting with defense counsel.

THE COURT: I’ll note he identified

Mr. Solkoff.

  1. CHAPLIN: Thank you.

BY MS. CHAPLIN:

  1. Can you describe for the Court how it is

that you came into contact with Mr. Solkoff?

  1. I was actually told ahead of time — this

is out of the ordinary way things work. — that

Mr. Solkoff had already or his attorney had made our

department aware that he was going to block Beaver

Avenue as I understood he had done earlier in the week.

And we were given a time of 9:30. At 9:15 I drove to

that location going up Calder and then the alley that is

perpendicular to Beaver Avenue facing Addison Court

where I knew his residence was. I was made aware that

this would happen in the area of Unde Eli’s, which is on

that half block.As I pulled up there, I saw Mr. Solkoff

was already in the roadway and an unmarked car of ours

which was driven by Captain Fishel blocked the right

lane which Mr. Solkoff was in the middle of. I went

ahead and parked on the alley and walked across to make

contact with Mr. Solkoff.

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  1. You say he was in the middle of the right

lane? A. Middle of the right lane, correct. Right

eastbound lane. That’s a one-way eastbound highway.

  1. Okay. Can you describe for the Court

East Beaver Avenue? Is it a public roadway or highway?

  1. It’s a public roadway. As I said, it’s

one-way eastbound. It’s State Route 26 that goes

through the heart of the Borough of State College. It’s

the business district.

  1. And is that an area that sees daily

traffic?

  1. A lot of vehicular traffic on that being

the main thoroughfare. There are also a lot of

pedestrians that cross that roadway.

  1. And when you arrived there, was he, in

fact, blocking the roadway?

  1. The right lane, correct.
  2. So, were vehicles able to use the right

lane of East Beaver Avenue?

  1. Yes, vehicles could use the left lane.
  2. Were they able to use the right lane?
  3. I am sorry. No, they could not use the

right lane. In fact, after he had it blocked, like I

said, for his safety, a patrol car had pulled up there

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to also block that lane while we dealt with him.

  1. Is that so he wouldn’t get hit by —
  2. For his safety and officers that were

going over there since we knew this was happening in

advance.

  1. Were there cars on the road while this

was going on?

  1. Yes.
  2. I guess, what did you do once you got

there and saw this?

  1. I spoke to Mr. Solkoff. I told him that

I understood that he had a protest and that he had the

right to protest but that he could not block, obstruct

the roadway; that he would have to move off the roadway.

He told me — and he did give me a name. I don’t

remember or know who the person is but he gave me the

name of the secretary of transportation I believe of the

State of Pennsylvania and said that he was blocking the

lane and he would like to speak to the secretary of

transportation of Pennsylvania. This is a female name.

I do not know what it was.

THE DEFENDANT: Leslie S. Richards.

THE WITNESS: Okay. I told him I was

unable to do that for him and asked him again to get off

the roadway, and he said that he would like to be

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arrested.

BY MS. CHAPLIN:

  1. Do you know how many times he was asked

to leave the roadway?

  1. I said it specifically to him twice. The

one response was to speak to the secretary of

transportation. The second one was to be arrested. And

following that Lieutenant Smail walked out and greeted

Mr. Solkoff. I believe they shook hands and

introduced — he introduced himself to him. He asked

him to leave the roadway and then read a prepared

statement to Mr. Solkoff which indicated that the

borough and police felt that they had taken measures to

accommodate him and he needed to leave the roadway or

would be arrested. I was there. I didn’t hear

everything read, but I know that he read from the

statement.

  1. So, would you consider Mr. Solkoff being

in the roadway a hazard?

  1. It is. At the time the right lane was no

longer a hazard because we had it blocked off for his

safety and the safety of officers dealing with this

incident. He is in a motorized scooter which at any

time he could have pulled into the only lane that was

available and so, yes, it could have been a hazard for

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him.

  1. Would you consider it a hazard for

oncoming traffic for a person to be sitting in the

roadway?

  1. Anybody. Even for officers that were

dealing with it.

  1. Did all of this occur in Centre County?
  2. It did.
  3. I guess, ultimately did he refuse to

leave the roadway?

  1. He did. We even, Officer McDannel at one

point — when we had initially determined to use the

LifeLink ambulance, we were made aware that they brought

a van specific for a mobility device. And

Officer McDannel offered for him to go over to the

Addison Court parking lot to pull into that and

Mr. Solkoff did not stating he wasn’t leaving the

roadway. He did comply once they pulled the van onto

the roadway. He went unassisted posing no problems into

that vehicle once he was told he was under arrest.

  1. Did he have alternate areas where he

could have made this protest?

  1. Right off the roadway where he was where

I believe is his residence, there’s sidewalk area there

where he could have, without even blocking the sidewalk,

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made any speech that he wanted to give. I don’t know

what other areas where provided to him but, yes, he

could have made a speech nearby.

  1. CHAPLIN: No further questions at

this time.

THE COURT: Mr. Klena, would you like to

ask the officer any questions, sir?

  1. KLENA: Briefly.

CROSS-EXAMINATION

BY MR. KLENA:

  1. Just to clarify for the record, Beaver

Avenue in downtown State College is a two-lane one-way

roadway, correct?

  1. Yes, sir.
  2. And the speed limit in downtown State

College is what; 25 miles per hour?

  1. Yes.
  2. He never went into the left lane. He

stayed solely within the right lane during this protest?

  1. Yes, Your Honor — I’m sorry. Yes,

counsel.

THE COURT: You just got promoted.

  1. KLENA: Maybe some day. Who knows.

THE COURT: Just not yet.

THE WITNESS: Can you strike that?

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THE COURT: No, leave that in there.

Patrick wants that in the record.

BY MR. KLENA:

  1. He was — and in your interactions with

Mr. Solkoff, he was pleasant, polite but insistent upon

his grievance about the sidewalks and wanting that

situation corrected?

  1. The grievance per se wasn’t so much given

to me as it had been done prior to other officers. The

demand to me was that he wanted the right lane open or a

lane of Beaver Avenue open and he wanted to speak to the

secretary of transportation.

  1. His goal was to have at least one of the

lanes made into a pedestrian — for solely pedestrian

traffic?

  1. That is my understanding, yes.
  2. There was a potential for danger had the

police been unaware of this occurring beforehand; would

you agree with that statement?

  1. There could be.
  2. But with kind of the planned protest

through Attorney McClenahen contacting, saying this is

the date and time that he was going to be entering onto

the roadway, State College Police were able to take

preventative measures to stop any incident from

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happening either to motorists or Mr. Solkoff; would you

agree with that?

  1. We tried to make it as safe as we could.
  2. The street was closed off at the point

where he was ultimately then taken into custody on the

11th; is that right?

  1. Just the right lane.
  2. Just the right lane. The left lane was

still — there was still vehicular traffic in the left

lane? A. Vehicles were permitted to continue in

the left lane.

  1. No one was — at that point you didn’t

take the keys out of his motorized scooter or anything

like that, correct?

  1. I did not. I will say I have a lack of

familiarity with them but I did not.

  1. In your opinion he could have backed it

up or drove it forward right into the left lane of

traffic?

  1. Yeah. He was facing that open lane at

the time when we were dealing with him. He was

broadside to the lane he was in.

  1. KLENA: I don’t have any other

questions.

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THE COURT: Any redirect?

  1. CHAPLIN: One question very briefly.

REDIRECT EXAMINATION

BY MS. CHAPLIN:

  1. Would his position in the road have

hindered public transportation or emergency vehicles in

the event of an emergency?

  1. Yes.

THE COURT: Follow up?

  1. KLENA: No questions.

THE COURT: Thank you, Mr. Klena.

You may stand down, officer.

Does the Commonwealth have any other

evidence?

  1. CHAPLIN: No, Your Honor.

THE COURT: Commonwealth’s closed their

case. Does the defense have anything?

THE DEFENDANT: I want to testify.

  1. KLENA: Mr. Solkoff wants to testify.

THE COURT: I’m going to let you testify

from there, sir. I’m not going to make you take the

stand.

THE DEFENDANT: Okay.

THE COURT: I do have administer the oath

to you though. And I’m going to ask Mr. Klena if he

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would pull that microphone closer.

Whereupon,

JOEL SOLKOFF

was called as a witness and having been duly sworn, was

examined and testified as follows:

THE COURT: Are you going to direct him,

Mr. Klena?

  1. KLENA: Yes.

DIRECT EXAMINATION

BY MR. KLENA:

  1. Mr. Solkoff, you have expressed your

desire to testify. You understand what you are charged

with, correct?

  1. Yes, I do.
  2. Why do you believe that you shouldn’t be

charged with this offense?

  1. I believe that neither the Commonwealth

nor the lieutenant are correct in there having been

provided to me any alternatives. CATA was not an

alternative. I was planning on praying, (inaudible) and

it’s a term that comes instantly to mind as Hubad, which

is an orthodox Jewish service. The reform service which

Lieutenant Brauser made contact with my rabbi did not

have a service at 10:00 o’clock in the morning on that

Saturday morning. The only service that was available

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28

was at Hubad which is an orthodox congregation which

follows the 12th century ritual established by

Maimonides in Cairo in Egyptian, in Arabic. And in

which the entire service is in Hebrew and in which men

and women are segregated and where no automobile traffic

is permitted. Going on CATA and going off CATA would

have been an offense to my synagogue.

And as to the notion that Allen Street is

passable, I have many videos of impassable streets and

the problem with Allen Street was that before the cross

street there where there is, in fact, a tree the

sidewalk was all cut up.

As for other side streets, Pugh, for

example, I have gone on the crosswalks. The street cuts

is what they’re referred to as. On Pugh Street and on

one occasion my scooter went one way and I landed on the

floor. It is true that in many cross areas that is to

say, for example, at the corner of Allen and Beaver, the

cross streets — the street cuts there are in absolutely

perfect condition and they have added to them because —

I mean, I’m a disability advocate, voice of America

citizen disability advocate. I have been a disability

advocate for the 24 years I have been a paraplegic.

Cross street — street cuts these days

also have little rubber things on the bottom if you’ve

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29

noticed them and, therefore, the blind or the visually

impaired so that if, for example, you’re there with a

white cane you don’t go falling down because suddenly

there’s a street cut. But in the interim in the middle,

for example, in the middle of Pugh when you’re going

down Pugh in the direction of Guacamole and Days Inn,

those street cuts are in a situation of considerable

disrepair.

The week before I met at the — at the

borough council. I met with Tom Fontaine who is in

charge of the borough council and is a wonderful person

and we discussed the situation. Now the reason that I

pulled Leslie S. Richard’s name out of the hat is that

she’s the secretary of transportation and she is in

charge of PennDOT and PennDOT owns Beaver Avenue and the

sidewalks on both sides of Beaver Avenue. And they are

in tragedy when it comes to simple issues such as making

Arts Fest available and such as making it possible for

me to go to synagogue.

What I did on the Monday at the meeting

of the borough council was I showed the borough council

the route I took to synagogue a couple years ago when I

went to Rosh Hashanah service and I showed the borough

council the way it is now. And it is not possible to

get from here to either Hubad or to my shul on Hamilton

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30

Brit Shalom in any way that is safe.

And it is my — and to further add insult

to injury, I attempted to celebrate my 70th birthday.

70th birthdays are regarded biblically as matters of

considerable import especially since based on the notion

of threescore and ten in the Solomon’s. I attempted to

celebrate it with my daughters, each of whom are

vegetarians and a new restaurant opened up on Beaver

Avenue called Cafe Vere which is not wheelchair

accessible but complied technically with the — with the

rules in the Commonwealth of Pennsylvania which requires

that 20 percent of the money be spent on

disability-friendly repairs. So as a consequence the

bathroom in Cafe Verve is wheelchair accessible but the

entrance is not. One reason the entrance is not

accessible is because —

THE COURT: I’m going to stop you here.

We’re way off point about the restaurant. Let’s stay

focused on the street.

I have a question for you. Where is

Hubad?

THE WITNESS: Hubad is on Weaver.

THE COURT: Weaver?

LIEUTENANT BRAUSER: Waring.

THE WITNESS: Waring. It’s a small —

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31

LIEUTENANT BRAUSER: Bottom of highlands.

THE COURT: Where at?

LIEUTENANT BRAUSER: Down by McCormick.

THE COURT: Okay.

LIEUTENANT BRAUSER: Between University

Drive and Garner Street.

THE COURT: Okay. I just wanted a

visual.

THE DEFENDANT: I was there a year ago.

I celebrated Shabbat there with my friend, Elliott

Weinstein.

THE COURT: I appreciate that. All

right. So I don’t need to hear any more about the

restaurant. That’s another issue. That’s an issue that

you can take up with — not with this Court, with

another entity. THE DEFENDANT: Okay. All right.

THE COURT: Are you satisfied that you

got to say what you wanted to say about the traffic

situation?

THE DEFENDANT: Well, two things I wanted

to say.

THE COURT: Let’s hear them. Go ahead,

sir.

THE DEFENDANT: Lieutenant Brauser and I

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32

didn’t just meet on this issue. Which — and this issue

may make it sound like I’m somewhat rattled in terms of

driving my scooter out into the highway and so on.

Lieutenant Brauser and I met at the fire department with

Steve Bair and we were there to protect — to institute

procedures to protect the 89 people in Addison Court.

THE COURT: Okay.

BY MR. KLENA:

  1. When did that occur prior to this?
  2. Three months ago? Two months ago?
  3. It’s your recollection.

LIEUTENANT BRAUSER: Last fall I think.

THE WITNESS: Last fall. And then —

THE COURT: This was some time ago?

THE DEFENDANT: But earlier this year,

two months ago, the mayor and the police chief and

Lieutenant Brauser and I were all in the social hall at

Addison Court handing out earplugs.

THE COURT: Okay. All right.

THE DEFENDANT: So, you know, it’s —

this is — I mean, I understand that you don’t want to

talk about anything other than the street and I

appreciate that. But PennDOT is responsible for major

injury to the elderly and disability community that is

on Beaver Avenue and this particular issue, namely

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33

depriving me of the right to go to synagogue finally got

my goat as it were. And there was certainly, you know,

the officer was correct in everything he said. But, you

know, this was a planned arrest. There was no danger at

all to me or anybody on the highway when I went out into

the middle of the road with two police cars here, an

unmarked police car there which I knew was an unmarked

police car, and several officers there, and an ambulance

over there.

I mean, you know, I’m not — I am not

certifiable and proof that I’m not certifiable is that

the police chief and an officer sent me to the hospital

to try to certify me and they wouldn’t do it so.

THE COURT: Point taken.

THE WITNESS: I’m done, unless you have

questions.

THE COURT: Dare I ask if you want to

cross-examine?

  1. CHAPLIN: Very briefly.

CROSS-EXAMINATION

BY MS. CHAPLIN:

  1. Just for the record, it was your intent

to block the roadway that day, correct?

  1. Oh, yes.
  2. You did block the roadway on the right

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34

lane? A. Well, no, my van. You know, there was a

right side and there was a left side. The unmarked

police car was on the right side. I knew it was an

unmarked police car. I wanted to block the roadway but

I didn’t.

  1. They were blocking the roadway because

you pulled into the roadway?

  1. Because I told them I was going to get

arrested and I didn’t want to get killed because I have

a granddaughter who’s about to be born any day now.

  1. It was your intent to be arrested that

day?

  1. Yes.
  2. You didn’t get a permit to protest in the

road? A. Well, no, I had gotten permission to

protest on Valentine’s Day.

  1. But not on August 11th?
  2. No, I didn’t.

THE COURT: Okay.

THE WITNESS: I did not.

BY MS. CHAPLIN:

  1. You can protest in an alternative manner

out of the road?

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35

  1. Assuming that it didn’t do any good.

Martin Luther King protested in Birmingham, Alabama.

  1. Okay. We’re not here about —

THE COURT: We’re way off course here.

BY MS. CHAPLIN:

  1. You did repeatedly tell the police that

the only alternative was to be arrested and that was —

  1. The only alternative other than to get

Leslie J. Reynolds there was to get arrested.

  1. CHAPLIN: I have nothing further.

THE COURT: Okay.

Mr. Klena, do you have a closing

argument, sir?

  1. KLENA: To the extent that the left

lane was still open on Beaver Avenue, I would argue it

didn’t meet the definition of obstruct in terms that it

made it impassable.

THE COURT: All right.

Ms. Chaplin, do you have a closing

argument?

  1. CHAPLIN: Well, Your Honor, I think

that for today’s purposes of a prima facie case the

Commonwealth has met its burden on the misdemeanor

charge. The statute says a person, who having no legal

privilege to do so, intentionally or recklessly

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36

obstructs any highway whether alone or with others and

that if he persists after warning by law officer, it is

a misdemeanor of the third degree. I think all those

elements have been established. I don’t think it’s any

questions that the right lane did have to be closed down

because of his protest. I would suggest that does meet

the definition of obstruct because everyone then had to

be moved into the left lane. It did shut down an entire

lane of traffic. THE COURT: Safety is really not even an

element here. It’s whether or not he blocked traffic,

he obstructed traffic, and whether he was officially

told not to do that, and he was. The elements of the

offense are met. Therefore — it’s not my authority

today, Mr. Solkoff, to determine guilt or innocence.

It’s a preliminary hearing, sir. I simply need to

decide whether an offense was committed and whether you

were the person who could have committed the offense.

That’s the burden of proof.

So for today’s purposes, the Commonwealth

has met its burden. I’m binding you over to the Centre

County Court on the obstructing highway and other public

passage charge. Your case is bound over to the Common

Pleas Court. All right.

  1. CHAPLIN: Your Honor, if I may ask a

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37

question about bail. I know you had changed it from —

THE COURT: Bail is ROR right now. He

refused to sign the bail bond but he is released on his

recognizance and if he’ll sign the bail bond today, I’ll

have him sign it. If he doesn’t want to, I’m not going

to force him — I can’t force him to sign it. But bail

— I was involved in this issue yesterday and bail has

been changed by Judge Lachman who was the issuing

authority who granted the complaint to ROR.

  1. CHAPLIN: Okay. I guess, I was just

wondering is the condition that Judge Lachman had put in

the original bail paper to not go back into the roadway,

is that still — THE COURT: That is not a bail condition.

There are no non-monetary conditions on an ROR bail

bond.

  1. KLENA: That would be a new offense,

Ms. Chaplin.

THE COURT: That’s right.

  1. KLENA: If that occurs, then I

imagine the police will respond accordingly.

THE COURT: We cannot — we cannot issue

a non-monetary bail condition on ROR bond.

  1. CHAPLIN: Thank you for the clarity,

Judge.

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38

THE COURT: My pleasure.

We’re adjourned.

E N D O F P R O C E E D I N G S

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39

C E R T I F I C A T E

I hereby certify that the proceedings and

evidence are contained fully and accurately in the notes

taken by me upon the hearing of the within matter and

that this copy is a correct transcript of the same.

Date Patricia A. Grey, RPR Official Reporter

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40

C E R T I F I C A T E

I hereby certify that a copy of this

transcript was made available to counsel of record for

the parties, advising they had until

in which to file any

objections or exceptions to the same. That time period

having elapsed without recording of objections or

exceptions, the transcript is therefore lodged with the

Court for further action.

Date Patricia A. Grey, RPR Official Reporter

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41

ACCEPTANCE BY COURT

Upon counsel’s opportunity to review and

to offer objections to the record, the foregoing record

of proceedings is hereby accepted and directed to be

filed.

Date Pamela A. Ruest President Judge

 

 

 

 

 

 

Heather Smith is the heroine of the Libertarian Disability Rights Movement

l++++

Please contribute $18 for the 2018 Campaign to Elect JoelSolkoff to Congress

By PayPal please contribute $18 to [email protected]

Home of Antaeus Mobility

What a difference a year makes

++++

ON SATURDAY AUGUST 11TH AT 9:15 I WAS ARRESTED ON THE STREET WHERE I LIVE FOR TRYING TO GET TO SYNAGOGUE
http://www.joelsolkoff.com/on-august-11th-at-915-i-was-arrested-on-the-street-where-i-live-for-trying-to-get-to-synagogue/

 

 

 

 

 

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Defeat Rep. Tom Marino

In September 2017, President Donald Trump nominated Marino to serve as the Director of the Office of National Drug Control Policy (“drug czar”).[15][1] In October, Senator Joe Manchin (D-WV) called on Trump to withdraw Marino’s nomination.[20]Trump said he would “look into” reports about Marino, putting his nomination in question.[21] On October 17, 2017, Marino withdrew his nomination.[2]

https://en.m.wikipedia.org/wiki/Tom_Marino

++++

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On Saturday August 11th at 9:15 I was arrested on the street where I live for trying to get to synagogue

PA Transportation Sec. Leslie Richards tramples my rights  & those of my 88 low-income disabled & elderly neighbors  to pray

Richards is  a liberal Democrat appointed by Governor Tom Wolf. for whom my friend Bonnie supported when she ran for office in Montgomery County, Never again.

++++

PA Secretary of Transportation Richards controls from afar (an hour 15 minute drive away) the  ability of 89 low-income elderly and disabled residents to leave and enter our de facto nursing home. Her remote control autocracy unconstitutionally prevents me from exercising my First Amendment righ to pray to God. That is not all. Sec. Richards has in effect created a ghetto separating our residence Addison Court from the daily lives of the rest of the Downtown State College Community. You have come to the right posting for details.

 

 

 

 

 

 

 

 

 

 

 

 

 

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Form releasing me from jail on my own recognizance

 

 

 

 

 

 

 

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The route to synagogue before Sec. Richards destroyed it

++++

How Sec. Richards prevented me from attending synagogue

From a regional office in Clearfield, a rural former coal mining town an hour and fifteen minute drive away from State College, Penn Dot administers the street on which I live ( and noteworthy its sidewalks). I filmed this video the week during  I was arrested.

++++

How my fellow Jews pray in the only synagogue I tried to pray open that August Sabbath

 

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Class B villain: State College Police Chief John Gardner

August 2016. Channel 6. WJAC.
STATE COLLEGE – After searching for a replacement for several months, the borough announced on Monday night that John Gardner will be the new police chief.Gardner has been the assistant chief for over 26 years. He is taking over for Tom King, who has been chief for the past 23 years. Gardner, who graduated from Philipsburg Osceola High School in 1974, was introduced on Tuesday during a news conference.He went on to study at Penn State, where he received a bachelor’s degree in Individual and Family Studies and he received his master’s degree in Administration of Justice from Shippensburg University.

 

 

 

 

 

 

 

 

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Chronology of my attempt to get arrested, my final success in getting arrested, my time in jail, my time at Mt. Nittany Medical Center while still under arrest, my appearance in Commonwealth Court, and my next appearance in Court for jury selection

I. Request to be arrested at 7 PM at the Monday August 8, 2018 Regular meeting of the Borough of State College. [ Footnote 1.]

Agenda V called for public comment for which I was given four minutes. In advance, I had passed out hard copy to all Borough Council members, staff, and understandably small audience. of this blog post:

FOR LOW-INCOME DISABLED AND ELDERLY RESIDENTS IN THE BOROUGH OF STATE COLLEGE, A STATE OF EMERGENCY EXISTS

In advance, I had arranged to show the Borough Council the 3 minute plus  video above filmed earlier that Monday showing that construction made it impossible given the traffic and absence of sidewalks (under repair) to synagogue on Saturday. I noted, reading this press release:

To: Mayor Donald Hahn, Borough Manager Tom Fontaine, Solicitor Terry Williams, Esq. and the unfit members of the State College Borough Council

From: Joel Solkoff, [email protected]

7 PM: Four minute praise of Mayor Hahn, Borough Manager Tom Fontaine, and denunciation of all members of the State College Borough Council (all of whom, sadly, are Democrats).

7:30: My arrest on Beaver Avenue between Allen and Pugh

–Explicit

++++

At 7:05, I scooted to the desk where Police Chief Gardner was sitting and politely asked him to arrest me.

Chief Gardner was less than polite telling me we could talk about it later and “work something out.” I insisted that I wanted to be arrested immediately. He said he was busy paying attention to the meeting. He may have been paying attention but he was certainly not usefully employed given that the next item (which was a waste of a police chief’s time) was: Petition to Vacate a portion of E Alley between Hill Alley and Prospect Avenue.

Clothed in politeness, I did not tell him what I thought. Instead, I said, “Don’t worry, I can find another police officer to arrest me.”

From the elevator, I scooted to the police office on the first floor of the Borough Hall to left of the Allen Street entrance where the expensive and unnecessary automatic doors for the mobility disabled are frequently broken.

The office for the police was closed. I drove my scooter two blocks away to Beaver Avenue–two blocks away–positioning myself slighty to the right of the Allen Street light and parked my scooter  [sadly not an Amigo Mobility brand] on the middle of the street.

There where several hours of daylight left. Cars, trucks, buses and vans honked and several angry motorists hurled curse words at me. I saw a police officer to the right a quarter block away speaking loudly asking him to arrest me before I made even more of a disturbance.

++++

Background/digression

I was born in New York City in 1947. From 1965 to 1969, I attended Columbia College at 116th Street and Broadway. Not once did I or any of my classmates ever check to see whether the traffic light was red or green when we crossed broadway to drink beer at the West End Bar and Restaurant.  Instead, if the traffic on Broadway was moving slowly we automatically stepped in front of slow moving cars which a sixth sense told us would stop if we stepped in front. In short, my world view was and ontinues to be distinctly different from Centre Country. Routinely, I take my motorized wheel chair across Beaver Avenue when it is safe enough often causing locals to freak out and yell when I cross safely but idiosyncratically.

By comparison, the vast majjority of my 89 neighbors at Addison Court–an eight story “independent living center”– have never been to New York City. My friends and neighbors often find themselves horrified to be living in Downtown State College. Downtown being the operative word.

About 20 of my neighbors never leave their beds let alone their apartments. They are cared for by an assortment of health care workers who receive minimum wage–most of whom do not have health insurance.  Most of these health care workers live outside the small confines of the Borough of State College which has a population of 45,000.  The Borough is politically dominated by Democrats who regard themselves as liberals. The Mayor has no political power. The power in the Borough resides in the hands of seven members of the Council whose incompetence is noteworthy. Ever the optimist, I assume that the Manhattanization of Downtown is a consequence of their laziness as surrounding the glorified low-income nursing home where I live is being taken over by the forces of Mammon.

Last year, a multi-storied Hyatt opened for business. On the Thursday before the blue and white football game, the Hyatt charged $450 for one night for a room. The attitude of the Borough mothers and fathers is that Addison Court is an inconvenience. When Beaver Avenue is not clogged with traffic especially during the evening rush hour, private cars rush by at speeds of 55 miles an hour despite the 25 mile an hour speed limit and which is not enforced and despite the presence of elderly and disabled pedestrians trying to cross. Afraid, my fellow residents– whose locomotion is dependent upon walkers, canes, and manual wheel chairs–all too often limit their outdoor excursions to sitting in the parking lot watching traffic.

I have begun an oral history project. Here is my friend and neighbor Scott Carter.

++++

Footnotes

  1. Meeting Agenda
    State College Borough Council
    Regular Meeting
    Monday, August 6, 2018
    7:00 p.m. http://www.statecollegepa.us/AgendaCenter/ViewFile/Agenda/_08062018-1420?html=true
  2. xyz
  3. xyz

++++

Explicit

++++

 

 

 

Lenny Bruce

++++

https://en.m.wikipedia.org/wiki/Lenny_Bruce

 

 

 

 

 

 

 

 

++++

 

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Please make an $18 donation to fund my effort to liberate the disabled and elderly in State College PA

++++

By PayPal please send a spiritual and numerically friendly donation of $18 to [email protected]

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https://en.m.wikipedia.org/wiki/Chai_(symbol)

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If you are old and/or disabled and do not know how to use PayPal to send $18 invest in your computer education and learn.

Amen.

++++

 

++++

https://en.m.wikipedia.org/wiki/Freedom_of_religion_in_the_United_States

 

 

++++

????

++++

My notion of comedy

 

 

Supreme Court Justice Sonia Sotomayor criticized majority opinion upholding President Trump’s travel ban

Supreme Court Justice Sonia Sotomayor criticized the majority opinion in Tuesday’s ruling upholding President Trump’s travel ban.

 

Published June 26, 2018. As CBS News Chief legal correspondent Jan Crawford explains, Sotomayor wrote in her dissent that ruling ignored the president's own statements on the ban, which he had previously called a "Muslim ban."

++++

Sonia Sotomayor Delivers Sharp Dissent in Travel Ban Case

By Catie Edmondson, June 26, 2018, The New York Times
Then it was Justice Sonia Sotomayor’s turn.

Steely and unwavering, she began: “The United States of America is a nation built upon the promise of religious liberty. Our founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.”

++++

[N.B.]

Constitution of United States of America 1789 (rev. 1992)

++++

Meanwhile, Justice Kennedy, who preserved a woman’s right to choose, resigned

Trump will make a second Supreme Court Appointment in July

Confirmation hearing to begin before the November elections

Contentious confirmation guaranteed

++++

Sonia Sotomayor Delivers NYT Contd.

For the next 20 minutes, she remained resolute as she delivered an extraordinarily scorching dissent, skewering the court’s decision and condemning the ban as “harrowing” and “motivated by hostility and animus toward the Muslim faith.

”The remarkable dissent was delivered by a woman who has championed her own upbringing as an example of the American dream. Justice Sotomayor, whose parents moved from Puerto Rico during World War II, was raised in a housing project in the Bronx. Her father did not speak English and her first language was Spanish. But determined to become a judge, she would go on to attend Princeton University and become the Supreme Court’s first Latina justice.

About Justice Sotomayor’s undergraduate studies at Princeton: “She was one of the smartest people in a place filled with smart people.”

++++

Full Text of Justice Sotomayor’s Dissent

Cite as: 585 U. S. ____ (2018) 1

SOTOMAYOR, J., dissenting; SUPREME COURT OF THE UNITED STATES; No. 17–965

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. HAWAII, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting.

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.

The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now
masquerades behind a façade of national-security concerns.

But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show the plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals,many of whom are United States citizens.

Because that troubling result runs contrary to the Constitution and our precedent, I dissent.

++++

‘NEVER AGAIN: Thousands Gather At Philly Airport To Protest Trump’s First Travel Ban” January 2017
https://philadelphia.cbslocal.com/2017/01/29/thousands-gather-at-philly-international-airport-to-protest-trumps-travel-ban/

 

 

 

 

 

 

++++

SOTOMAYOR, J., dissenting; Continued

Plaintiffs challenge the Proclamation on various grounds, both statutory and constitutional. Ordinarily, when a case can be decided on purely statutory grounds, we strive to follow a “prudential rule of avoiding constitutional questions.” Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8 (1993). But that rule of thumb is far from categorical, and it has limited application where, as here, the constitutional question proves far simpler than the statutory one.

Whatever the merits of plaintiffs’ complex statutory claims, the Proclamation must be enjoined for a more fundamental reason: It runs afoul of the Establishment Clause’s guarantee of religious neutrality.

A
The Establishment Clause forbids government policies
“respecting an establishment of religion.” U. S. Const.,
Amdt. 1. The “clearest command” of the Establishment
Clause is that the Government cannot favor or disfavor
one religion over another.

++++

Never Again: Remember the Saint  Louis

Abbord this Captain’s ship was this passenger who learned that the US Government was sending her back to Nazi Germany: ” GERDA BLACHMANN WILCHFORT
Born: 1923, Breslau, Germany
Describes the mood of passengers on the “St. Louis” after they were denied entry into Cuba [Interview: 1989]
https://www.ushmm.org/wlc/en/media_oi.php?ModuleId=10005267&MediaId=1135

Gustav Schroeder, captain of the “St. Louis,” on the day of the ship’s departure from Hamburg. Neither Cuba nor the US granted refuge to the ship’s passengers.

The crowded courthouse fell silent.

In upholding President Trump’s ban on travel from several predominantly Muslim countries, Justice Sotomayor continued, the Supreme Court had failed to “safeguard that fundamental principle.”

Germany, May 13, 1939.

— US Holocaust Memorial Museum

 

++++

SOTOMAYOR, J., dissenting; Continued

Larson v. Valente, 456 U. S.  228, 244 (1982); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (“[T]he First Amendment forbids an official purpose to disapprove of a particular religion”); Edwards v. Aguillard, 482 U. S. 578, 593
(1987) (“The Establishment Clause . . . forbids alike the
preference of a religious doctrine or the prohibition of
theory which is deemed antagonistic to a particular dogma”
(internal quotation marks omitted)); Lynch v. Donnelly,

465 U. S. 668, 673 (1984) (noting that the Establishment
Clause “forbids hostility toward any [religion],” because
“such hostility would bring us into ‘war with our national
tradition as embodied in the First Amendmen[t]’”); Epper
son v. Arkansas, 393 U. S. 97, 106 (1968) (“[T]he State
may not adopt programs or practices . . . which aid or
oppose any religion.

This prohibition is absolute” (citation and internal quotation marks omitted)). Consistent with that clear command, this Court has long acknowledged that governmental actions that favor one religion “inevitabl[y]” foster “the hatred, disrespect and even contempt of those who [hold] contrary beliefs.” Engel v. Vitale, 370 U. S. 421, 431 (1962). That is so, this Court has held,
because such acts send messages to members of minority
faiths “‘that they are outsiders, not full members of the
political community.’” Santa Fe Independent School Dist.
v. Doe, 530 U. S. 290, 309 (2000).

To guard against this serious harm, the Framers mandated a strict “principle of denominational neutrality.” Larson, 456 U. S., at 246;
Board of Ed. of Kiryas Joel Village School Dist. v. Grumet,
512 U. S. 687, 703 (1994) (recognizing the role of courts in
“safeguarding a principle at the heart of the Establishment
Clause, that government should not prefer one religion
to another, or religion to irreligion”).
“When the government acts with the ostensible and
predominant purpose” of disfavoring a particular religion,
“it violates that central Establishment Clause value of
official religious neutrality, there being no neutrality
when the government’s ostensible object is to take sides.”
McCreary County v. American Civil Liberties Union of Ky.,
545 U. S. 844, 860 (2005). To determine whether plaintiffs
have proved an Establishment Clause violation, the Court
asks whether a reasonable observer would view the government
action as enacted for the purpose of disfavoring a
religion. See id., at 862, 866; accord, Town of Greece v.
Galloway, 572 U. S. ___, ___ (2014) (plurality opinion) (slip
op., at 19).

In answering that question, this Court has generally
considered the text of the government policy, its operation,
and any available evidence regarding “the historical background
of the decision under challenge, the specific series
of events leading to the enactment or official policy in
question, and the legislative or administrative history,
including contemporaneous statements made by” the decisionmaker.

Lukumi, 508 U. S., at 540 (opinion of KENNEDY, J.); McCreary, 545 U. S., at 862 (courts must evaluate “text, legislative history, and implementation. . . , or comparable official act” (internal quotation marks omitted)). At the same time, however, courts must take care not to engage in “any judicial psychoanalysis of a
drafter’s heart of hearts.” Id., at 862.

B
1
Although the majority briefly recounts a few of the
statements and background events that form the basis of
plaintiffs’ constitutional challenge, ante, at 27–28, that
highly abridged account does not tell even half of the
story. See Brief for The Roderick & Solange MacArthur
Justice Center as Amicus Curiae 5–31 (outlining President
Trump’s public statements expressing animus toward
Islam). The full record paints a far more harrowing picture,
from which a reasonable observer would readily
conclude that the Proclamation was motivated by hostility
and animus toward the Muslim faith.
During his Presidential campaign, then-candidate Donald
Trump pledged that, if elected, he would ban Muslims
from entering the United States. Specifically, on December
7, 2015, he issued a formal statement “calling for a
total and complete shutdown of Muslims entering the
United States.” App. 119. That statement, which remained
on his campaign website until May 2017 (several
months into his Presidency), read in full:
“Donald J. Trump is calling for a total and complete
shutdown of Muslims entering the United States until
our country’s representatives can figure out what is
going on. According to Pew Research, among others,
there is great hatred towards Americans by large
segments of the Muslim population. Most recently, a
poll from the Center for Security Policy released data

Cite as: 585 U. S. ____ (2018) 5
SOTOMAYOR, J., dissenting
showing ‘25% of those polled agreed that violence
against Americans here in the United States is justified
as a part of the global jihad’ and 51% of those
polled ‘agreed that Muslims in America should have
the choice of being governed according to Shariah.’
Shariah authorizes such atrocities as murder against
nonbelievers who won’t convert, beheadings and more
unthinkable acts that pose great harm to Americans,
especially women.
“Mr. Trum[p] stated, ‘Without looking at the various
polling data, it is obvious to anybody the hatred is
beyond comprehension. Where this hatred comes
from and why we will have to determine. Until we are
able to determine and understand this problem and
the dangerous threat it poses, our country cannot be
the victims of the horrendous attacks by people that
believe only in Jihad, and have no sense of reason or
respect of human life. If I win the election for President,
we are going to Make America Great Again.’—
Donald J. Trump.” Id., at 158; see also id., at 130–
131.
On December 8, 2015, Trump justified his proposal
during a television interview by noting that President
Franklin D. Roosevelt “did the same thing” with respect to
the internment of Japanese Americans during World War
II. Id., at 120. In January 2016, during a Republican
primary debate, Trump was asked whether he wanted to
“rethink [his] position” on “banning Muslims from entering
the country.” Ibid. He answered, “No.” Ibid. A
month later, at a rally in South Carolina, Trump told an
apocryphal story about United States General John J.
Pershing killing a large group of Muslim insurgents in the
Philippines with bullets dipped in pigs’ blood in the early
1900’s. Id., at 163–164. In March 2016, he expressed his
belief that “Islam hates us. . . . [W]e can’t allow people

6 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
coming into this country who have this hatred of the United
States . . . [a]nd of people that are not Muslim.” Id., at
120–121. That same month, Trump asserted that “[w]e’re
having problems with the Muslims, and we’re having
problems with Muslims coming into the country.” Id., at
121. He therefore called for surveillance of mosques in the
United States, blaming terrorist attacks on Muslims’ lack
of “assimilation” and their commitment to “sharia law.”
Ibid.; id., at 164. A day later, he opined that Muslims “do
not respect us at all” and “don’t respect a lot of the things
that are happening throughout not only our country, but
they don’t respect other things.” Ibid.
As Trump’s presidential campaign progressed, he began
to describe his policy proposal in slightly different terms.
In June 2016, for instance, he characterized the policy
proposal as a suspension of immigration from countries
“where there’s a proven history of terrorism.” Id., at 121.
He also described the proposal as rooted in the need to
stop “importing radical Islamic terrorism to the West
through a failed immigration system.” Id., at 121–122.
Asked in July 2016 whether he was “pull[ing] back from”
his pledged Muslim ban, Trump responded, “I actually
don’t think it’s a rollback. In fact, you could say it’s an
expansion.” Id., at 122–123. He then explained that he
used different terminology because “[p]eople were so upset
when [he] used the word Muslim.” Id., at 123.
A month before the 2016 election, Trump reiterated that
his proposed “Muslim ban” had “morphed into a[n] extreme
vetting from certain areas of the world.” Ibid.
Then, on December 21, 2016, President-elect Trump was
asked whether he would “rethink” his previous “plans to
create a Muslim registry or ban Muslim immigration.”
Ibid. He replied: “You know my plans. All along, I’ve
proven to be right.” Ibid.
On January 27, 2017, one week after taking office,
President Trump signed Executive Order No. 13769, 82

Cite as: 585 U. S. ____ (2018) 7
SOTOMAYOR, J., dissenting
Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the
Nation From Foreign Terrorist Entry Into the United
States.” As he signed it, President Trump read the title,
looked up, and said “We all know what that means.” App.
124. That same day, President Trump explained to the
media that, under EO–1, Christians would be given priority
for entry as refugees into the United States. In particular,
he bemoaned the fact that in the past, “[i]f you were a
Muslim [refugee from Syria] you could come in, but if you
were a Christian, it was almost impossible.” Id., at 125.
Considering that past policy “very unfair,” President
Trump explained that EO–1 was designed “to help” the
Christians in Syria. Ibid. The following day, one of President
Trump’s key advisers candidly drew the connection
between EO–1 and the “Muslim ban” that the President
had pledged to implement if elected. Ibid. According to
that adviser, “[W]hen [Donald Trump] first announced it,
he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it
legally.’” Ibid.
On February 3, 2017, the United States District Court
for the Western District of Washington enjoined the enforcement
of EO–1. See Washington v. Trump, 2017 WL
462040, *3. The Ninth Circuit denied the Government’s
request to stay that injunction. Washington v. Trump, 847
F. 3d 1151, 1169 (2017) (per curiam). Rather than appeal
the Ninth Circuit’s decision, the Government declined to
continue defending EO–1 in court and instead announced
that the President intended to issue a new executive order
to replace EO–1.
On March 6, 2017, President Trump issued that new
executive order, which, like its predecessor, imposed temporary
entry and refugee bans. See Exec. Order No.
13,780, 82 Fed. Reg. 13209 (EO–2). One of the President’s
senior advisers publicly explained that EO–2 would “have
the same basic policy outcome” as EO–1, and that any

8 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
changes would address “very technical issues that were
brought up by the court.” App. 127. After EO–2 was
issued, the White House Press Secretary told reporters
that, by issuing EO–2, President Trump “continue[d] to
deliver on . . . his most significant campaign promises.”
Id., at 130. That statement was consistent with President
Trump’s own declaration that “I keep my campaign promises,
and our citizens will be very happy when they see the
result.” Id., at 127–128.
Before EO–2 took effect, federal District Courts in Hawaii
and Maryland enjoined the order’s travel and refugee
bans. See Hawaii v. Trump, 245 F. Supp. 3d 1227, 1239
(Haw. 2017); International Refugee Assistance Project
(IRAP) v. Trump, 241 F. Supp. 3d 539, 566 (Md. 2017).
The Fourth and Ninth Circuits upheld those injunctions in
substantial part. IRAP v. Trump, 857 F. 3d 554, 606 (CA4
2017) (en banc); Hawaii v. Trump, 859 F. 3d 741, 789
(CA9 2017) (per curiam). In June 2017, this Court granted
the Government’s petition for certiorari and issued a per
curiam opinion partially staying the District Courts’ injunctions
pending further review. In particular, the Court
allowed EO–2’s travel ban to take effect except as to “foreign
nationals who have a credible claim of a bona fide
relationship with a person or entity in the United States.”
Trump v. IRAP, 582 U. S. ___, ___ (2017) (slip op., at 12).
While litigation over EO–2 was ongoing, President
Trump repeatedly made statements alluding to a desire to
keep Muslims out of the country. For instance, he said at
a rally of his supporters that EO–2 was just a “watered
down version of the first one” and had been “tailor[ed]” at
the behest of “the lawyers.” App. 131. He further added
that he would prefer “to go back to the first [executive
order] and go all the way” and reiterated his belief that it
was “very hard” for Muslims to assimila

Cite as: 585 U. S. ____ (2018) 9
SOTOMAYOR, J., dissenting
Snake,” a song about a woman who nurses a sick snake
back to health but then is attacked by the snake, as a
warning about Syrian refugees entering the country. Id.,
at 132, 163. And in June 2017, the President stated on
Twitter that the Justice Department had submitted a
“watered down, politically correct version” of the “original
Travel Ban” “to S[upreme] C[ourt].”1 Id., at 132. The
President went on to tweet: “People, the lawyers and the
courts can call it whatever they want, but I am calling it
what we need and what it is, a TRAVEL BAN!” Id., at
132–133. He added: “That’s right, we need a TRAVEL
BAN for certain DANGEROUS countries, not some politically
correct term that won’t help us protect our people!”
Id., at 133. Then, on August 17, 2017, President Trump
issued yet another tweet about Islam, once more referencing
the story about General Pershing’s massacre of Muslims
in the Philippines: “Study what General Pershing . . .
did to terrorists when caught. There was no more Radical
Islamic Terror for 35 years!” IRAP v. Trump, 883 F. 3d
233, 267 (CA4 2018) (IRAP II) (en banc) (alterations in
original).
In September 2017, President Trump tweeted that “[t]he
travel ban into the United States should be far larger,
tougher and more specific—but stupidly, that would not be
politically correct!” App. 133. Later that month, on September
24, 2017, President Trump issued Presidential
Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation),
which restricts entry of certain nationals from
six Muslim-majority countries. On November 29, 2017,
President Trump “retweeted” three anti-Muslim videos,
entitled “Muslim Destroys a Statue of Virgin Mary!”,
“Islamist mob pushes teenage boy off roof and beats him to
death!”, and “Muslim migrant beats up Dutch boy on
——————
1According to the White House, President Trump’s statements on
Twitter are “official statements.” App. 133.

10 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
crutches!”2 IRAP II, 883 F. 3d, at 267. Those videos were
initially tweeted by a British political party whose mission
is to oppose “all alien and destructive politic[al] or religious
doctrines, including . . . Islam.” Ibid. When asked
about these videos, the White House Deputy Press Secretary
connected them to the Proclamation, responding that
the “President has been talking about these security issues
for years now, from the campaign trail to the White
House” and “has addressed these issues with the travel
order that he issued earlier this year and the companion
proclamation.” Ibid.
2
As the majority correctly notes, “the issue before us is
not whether to denounce” these offensive statements.
Ante, at 29. Rather, the dispositive and narrow question
here is whether a reasonable observer, presented with all
“openly available data,” the text and “historical context” of
the Proclamation, and the “specific sequence of events”
leading to it, would conclude that the primary purpose of
the Proclamation is to disfavor Islam and its adherents by
excluding them from the country. See McCreary, 545
U. S., at 862–863. The answer is unquestionably yes.
Taking all the relevant evidence together, a reasonable
observer would conclude that the Proclamation was driven
primarily by anti-Muslim animus, rather than by the
——————
2The content of these videos is highly inflammatory, and their titles
are arguably misleading. For instance, the person depicted in the video
entitled “Muslim migrant beats up Dutch boy on crutches!” was report
edly not a “migrant,” and his religion is not publicly known. See Brief
for Plaintiffs in International Refugee Assistance Project v. Trump as
Amici Curiae 12, n. 4; P. Baker & E. Sullivan, Trump Shares Inflam
­
­
matory Anti-Muslim Videos, and Britain’s Leader Condemns Them,
N. Y. Times, Nov. 29, 2017 (“[A]ccording to local officials, both boys are
Dutch”), https://www.nytimes.com/2017/11/29/us /politics /trumpanti-muslim-videos-jayda-fransen.html
(all Internet materials as last
visited June 25, 2018).

Cite as: 585 U. S. ____ (2018) 11
SOTOMAYOR, J., dissenting
Government’s asserted national-security justifications.
Even before being sworn into office, then-candidate Trump
stated that “Islam hates us,” App. 399, warned that
“[w]e’re having problems with the Muslims, and we’re
having problems with Muslims coming into the country,”
id., at 121, promised to enact a “total and complete shutdown
of Muslims entering the United States,” id., at 119,
and instructed one of his advisers to find a “lega[l]” way to
enact a Muslim ban, id., at 125.3 The President continued
to make similar statements well after his inauguration, as
detailed above, see supra, at 6–10.
Moreover, despite several opportunities to do so, President
Trump has never disavowed any of his prior statements
about Islam.4 Instead, he has continued to make
——————
3The Government urges us to disregard the President’s campaign
statements. Brief for Petitioners 66–67. But nothing in our precedent
supports that blinkered approach. To the contrary, courts must consider
“the historical background of the decision under challenge, the
specific series of events leading to the enactment or official policy in
question, and the legislative or administrative history.” Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540 (1993) (opinion
of KENNEDY, J.). Moreover, President Trump and his advisers have
repeatedly acknowledged that the Proclamation and its predecessors
are an outgrowth of the President’s campaign statements. For exam
ple, just last November, the Deputy White House Press Secretary
reminded the media that the Proclamation addresses “issues” the
President has been talking about “for years,” including on “the campaign
trail.” IRAP II, 883 F. 3d 233, 267 (CA4 2018). In any case, as
the Fourth Circuit correctly recognized, even without relying on any of
the President’s campaign statements, a reasonable observer would
conclude that the Proclamation was enacted for the impermissible
purpose of disfavoring Muslims. Id., at 266, 268. 4At oral argument, the Solicitor General asserted that President
Trump “made crystal-clear on September 25 that he had no intention of
imposing the Muslim ban” and “has praised Islam as one of the great
countries [sic] of the world.” Tr. of Oral Arg. 81. Because the record
contained no evidence of any such statement made on September 25th,
however, the Solicitor General clarified after oral argument that he
actually intended to refer to President Trump’s statement during a
­

12 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
remarks that a reasonable observer would view as an
unrelenting attack on the Muslim religion and its followers.
Given President Trump’s failure to correct the reasonable
perception of his apparent hostility toward the
Islamic faith, it is unsurprising that the President’s lawyers
have, at every step in the lower courts, failed in their
attempts to launder the Proclamation of its discriminatory
taint. See United States v. Fordice, 505 U. S. 717, 746–
747 (1992) (“[G]iven an initially tainted policy, it is eminently
reasonable to make the [Government] bear the risk
of nonpersuasion with respect to intent at some future
time, both because the [Government] has created the
dispute through its own prior unlawful conduct, and because
discriminatory intent does tend to persist through
time” (citation omitted)). Notably, the Court recently
found less pervasive official expressions of hostility and
the failure to disavow them to be constitutionally significant.
Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18)
(“The official expressions of hostility to religion in some of
the commissioners’ comments—comments that were not
disavowed at the Commission or by the State at any point
in the proceedings that led to the affirmance of the order—
——————
television interview on January 25, 2017. Letter from N. Francisco,
Solicitor General, to S. Harris, Clerk of Court (May 1, 2018); Reply
Brief 28, n. 8. During that interview, the President was asked whether
EO–1 was “the Muslim ban,” and answered, “no it’s not the Muslim
ban.” See Transcript: ABC News anchor David Muir interviews President
Trump, ABC News, Jan. 25, 2017, http://abcnews.go.com/Politics/
transcript-abc-news-anchor-david-muir-interviews-president/ story? id=
45047602. But that lone assertion hardly qualifies as a disavowal of
the President’s comments about Islam—some of which were spoken
after January 25, 2017. Moreover, it strains credulity to say that
President Trump’s January 25th statement makes “crystal-clear” that
he never intended to impose a Muslim ban given that, until May 2017,
the President’s website displayed the statement regarding his campaign
promise to ban Muslims from entering the country.

Cite as: 585 U. S. ____ (2018) 13
SOTOMAYOR, J., dissenting
were inconsistent with what the Free Exercise Clause
requires”). It should find the same here.
Ultimately, what began as a policy explicitly “calling for
a total and complete shutdown of Muslims entering the
United States” has since morphed into a “Proclamation”
putatively based on national-security concerns. But this
new window dressing cannot conceal an unassailable fact:
the words of the President and his advisers create the
strong perception that the Proclamation is contaminated
by impermissible discriminatory animus against Islam
and its followers.
II
Rather than defend the President’s problematic statements,
the Government urges this Court to set them aside
and defer to the President on issues related to immigration
and national security. The majority accepts that
invitation and incorrectly applies a watered-down legal
standard in an effort to short circuit plaintiffs’ Establishment
Clause claim.
The majority begins its constitutional analysis by noting
that this Court, at times, “has engaged in a circumscribed
judicial inquiry when the denial of a visa allegedly burdens
the constitutional rights of a U. S. citizen.” Ante, at
30 (citing Kleindienst v. Mandel, 408 U. S. 753 (1972)). As
the majority notes, Mandel held that when the Executive
Branch provides “a facially legitimate and bona fide reason”
for denying a visa, “courts will neither look behind
the exercise of that discretion, nor test it by balancing its
justification.” Id., at 770. In his controlling concurrence
in Kerry v. Din, 576 U. S. ___ (2015), JUSTICE KENNEDY
applied Mandel’s holding and elaborated that courts can
“‘look behind’ the Government’s exclusion of ” a foreign
national if there is “an affirmative showing of bad faith on
the part of the consular officer who denied [the] visa.”
Din, 576 U. S., at ___ (opinion concurring in judgment)

14 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
(slip op., at 5). The extent to which Mandel and Din apply
at all to this case is unsettled, and there is good reason to
think they do not.5 Indeed, even the Government agreed
at oral argument that where the Court confronts a situation
involving “all kinds of denigrating comments about” a
particular religion and a subsequent policy that is designed
with the purpose of disfavoring that religion but
that “dot[s] all the i’s and . . . cross[es] all the t’s,” Mandel
would not “pu[t] an end to judicial review of that set of
facts.” Tr. of Oral Arg. 16.
In light of the Government’s suggestion “that it may be
appropriate here for the inquiry to extend beyond the
facial neutrality of the order,” the majority rightly declines
——————
5 Mandel and Din are readily distinguishable from this case for a
number of reasons. First, Mandel and Din each involved a constitutional
challenge to an Executive Branch decision to exclude a single
foreign national under a specific statutory ground of inadmissibility.
Mandel, 408 U. S., at 767; Din, 576 U. S., at ___ (slip op., at 1). Here,
by contrast, President Trump is not exercising his discretionary authority
to determine the admission or exclusion of a particular foreign
national. He promulgated an executive order affecting millions of
individuals on a categorical basis. Second, Mandel and Din did not
purport to establish the framework for adjudicating cases (like this one)
involving claims that the Executive Branch violated the Establishment
Clause by acting pursuant to an unconstitutional purpose. Applying
Mandel’s narrow standard of review to such a claim would run contrary
to this Court’s repeated admonition that “[f]acial neutrality is not
determinative” in the Establishment Clause context. Lukumi, 508
U. S., at 534. Likewise, the majority’s passing invocation of Fiallo v.
Bell, 430 U. S. 787 (1977), is misplaced. Fiallo, unlike this case, addressed
a constitutional challenge to a statute enacted by Congress, not
an order of the President. Id., at 791. Fiallo’s application of Mandel
says little about whether Mandel’s narrow standard of review applies to
the unilateral executive proclamation promulgated under the circumstances
of this case. Finally, even assuming that Mandel and Din
apply here, they would not preclude us from looking behind the face of
the Proclamation because plaintiffs have made “an affirmative showing
of bad faith,” Din, 576 U. S., at ___ (slip op., at 5), by the President who,
among other things, instructed his subordinates to find a “lega[l]” way
to enact a Muslim ban, App. 125; see supra, at 4–10.

Cite as: 585 U. S. ____ (2018) 15
SOTOMAYOR, J., dissenting
to apply Mandel’s “narrow standard of review” and “assume[s]
that we may look behind the face of the Proclamation.”
Ante, at 31–32. In doing so, however, the Court,
without explanation or precedential support, limits its
review of the Proclamation to rational-basis scrutiny.
Ibid. That approach is perplexing, given that in other
Establishment Clause cases, including those involving
claims of religious animus or discrimination, this Court
has applied a more stringent standard of review. See, e.g.,
McCreary, 545 U. S., at 860–863; Larson, 456 U. S., at
246; Presbyterian Church in U. S. v. Mary Elizabeth Blue
Hull Memorial Presbyterian Church, 393 U. S. 440, 449–
452 (1969); see also Colorado Christian Univ. v. Weaver,
534 F. 3d 1245, 1266 (CA10 2008) (McConnell, J.) (noting
that, under Supreme Court precedent, laws “involving
discrimination on the basis of religion, including interdenominational
discrimination, are subject to heightened
scrutiny whether they arise under the Free Exercise
Clause, the Establishment Clause, or the Equal Protection
Clause” (citations omitted)).6 As explained above, the
——————
6The majority chides as “problematic” the importation of Establishment
Clause jurisprudence “in the national security and foreign affairs
context.” Ante, at 32–33, n. 5. As the majority sees it, this Court’s
Establishment Clause precedents do not apply to cases involving
“immigration policies, diplomatic sanctions, and military actions.”
Ante, at 32, n. 5. But just because the Court has not confronted the
precise situation at hand does not render these cases (or the principles
they announced) inapplicable. Moreover, the majority’s complaint
regarding the lack of direct authority is a puzzling charge, given that
the majority itself fails to cite any “authority for its proposition” that a
more probing review is inappropriate in a case like this one, where
United States citizens allege that the Executive has violated the
Establishment Clause by issuing a sweeping executive order motivated
by animus. Ante, at 33 n. 5; see supra, at 14, and n. 5. In any event,
even if there is no prior case directly on point, it is clear from our
precedent that “[w]hatever power the United States Constitution
envisions for the Executive” in the context of national security and
foreign affairs, “it most assuredly envisions a role for all three branches

16 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
Proclamation is plainly unconstitutional under that
heightened standard. See supra, at 10–13.
But even under rational-basis review, the Proclamation
must fall. That is so because the Proclamation is “‘divorced
from any factual context from which we could
discern a relationship to legitimate state interests,’ and
‘its sheer breadth [is] so discontinuous with the reasons
offered for it’” that the policy is “‘inexplicable by anything
but animus.’” Ante, at 33 (quoting Romer v. Evans, 517
U. S. 620, 632, 635 (1996)); see also Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 448 (1985) (recognizing
that classifications predicated on discriminatory animus
can never be legitimate because the Government has no
legitimate interest in exploiting “mere negative attitudes,
or fear” toward a disfavored group). The President’s
statements, which the majority utterly fails to address in
its legal analysis, strongly support the conclusion that the
Proclamation was issued to express hostility toward Muslims
and exclude them from the country. Given the overwhelming
record evidence of anti-Muslim animus, it simply
cannot be said that the Proclamation has a legitimate
basis. IRAP II, 883 F. 3d, at 352 (Harris, J., concurring)
(explaining that the Proclamation contravenes the bedrock
principle “that the government may not act on the basis of
——————
when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U. S.
507, 536 (2004) (plurality opinion). This Court’s Establishment Clause
precedents require that, if a reasonable observer would understand an
executive action to be driven by discriminatory animus, the action be
invalidated. See McCreary, 545 U. S., at 860. That reasonableobserver
inquiry includes consideration of the Government’s asserted
justifications for its actions. The Government’s invocation of a nationalsecurity
justification, however, does not mean that the Court should
close its eyes to other relevant information. Deference is different from
unquestioning acceptance. Thus, what is “far more problematic” in this
case is the majority’s apparent willingness to throw the Establishment
Clause out the window and forgo any meaningful constitutional review
at the mere mention of a national-security concern. Ante, at 32, n. 5.
Cite as: 585 U. S. ____ (2018) 17
SOTOMAYOR, J., dissenting
animus toward a disfavored religious minority” (emphasis
in original)).
The majority insists that the Proclamation furthers two
interrelated national-security interests: “preventing entry
of nationals who cannot be adequately vetted and inducing
other nations to improve their practices.” Ante, at 34. But
the Court offers insufficient support for its view “that the
entry suspension has a legitimate grounding in [those]
national security concerns, quite apart from any religious
hostility.” Ibid.; see also ante, at 33–38, and n. 7. Indeed,
even a cursory review of the Government’s asserted
national-security rationale reveals that the Proclamation is
nothing more than a “‘religious gerrymander.’” Lukumi,
508 U. S., at 535.
The majority first emphasizes that the Proclamation
“says nothing about religion.” Ante, at 34. Even so, the
Proclamation, just like its predecessors, overwhelmingly
targets Muslim-majority nations. Given the record here,
including all the President’s statements linking the Proclamation
to his apparent hostility toward Muslims, it is of
no moment that the Proclamation also includes minor
restrictions on two non-Muslim majority countries, North
Korea and Venezuela, or that the Government has removed
a few Muslim-majority countries from the list of
covered countries since EO–1 was issued. Consideration
of the entire record supports the conclusion that the inclusion
of North Korea and Venezuela, and the removal of
other countries, simply reflect subtle efforts to start “talking
territory instead of Muslim,” App. 123, precisely so the
Executive Branch could evade criticism or legal consequences
for the Proclamation’s otherwise clear targeting of
Muslims. The Proclamation’s effect on North Korea and
Venezuela, for example, is insubstantial, if not entirely
symbolic. A prior sanctions order already restricts entry
of North Korean nationals, see Exec. Order No. 13810, 82
Fed. Reg. 44705 (2017), and the Proclamation targets only

18 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
a handful of Venezuelan government officials and their
immediate family members, 82 Fed. Reg. 45166. As such,
the President’s inclusion of North Korea and Venezuela
does little to mitigate the anti-Muslim animus that permeates
the Proclamation.
The majority next contends that the Proclamation “reflects
the results of a worldwide review process undertaken
by multiple Cabinet officials.” Ante, at 34. At the outset,
there is some evidence that at least one of the
individuals involved in that process may have exhibited
bias against Muslims. As noted by one group of amici, the
Trump administration appointed Frank Wuco to help
enforce the President’s travel bans and lead the multiagency
review process. See Brief for Plaintiffs in International
Refugee Assistance Project v. Trump as Amici Curiae
13–14, and n. 10. According to amici, Wuco has
purportedly made several suspect public statements about
Islam: He has “publicly declared that it was a ‘great idea’
to ‘stop the visa application process into this country from
Muslim nations in a blanket type of policy,’” “that Muslim
populations ‘living under other-than-Muslim rule’ will
‘necessarily’ turn to violence, that Islam prescribes ‘violence
and warfare against unbelievers,’ and that Muslims
‘by-and-large . . . resist assimilation.’” Id., at 14.
But, even setting aside those comments, the worldwide
review does little to break the clear connection between
the Proclamation and the President’s anti-Muslim statements.
For “[n]o matter how many officials affix their
names to it, the Proclamation rests on a rotten foundation.”
Brief for Constitutional Law Scholars as Amici
Curiae 7 (filed Apr. 2, 2018); see supra, at 4–10. The
President campaigned on a promise to implement a “total
and complete shutdown of Muslims” entering the country,
translated that campaign promise into a concrete policy,
and made several statements linking that policy (in its
various forms) to anti-Muslim animus.

Cite as: 585 U. S. ____ (2018) 19
SOTOMAYOR, J., dissenting
Ignoring all this, the majority empowers the President
to hide behind an administrative review process that the
Government refuses to disclose to the public. See IRAP II,
883 F. 3d, at 268 (“[T]he Government chose not to make
the review publicly available” even in redacted form);
IRAP v. Trump, No. 17–2231 (CA4), Doc. 126 (Letter from
S. Swingle, Counsel for Defendants-Ap