Fairfax County Declines Assistance in Protecting Supreme Court Justices as Unconstitutional

By James C. Sherlock

Jeffrey McKay

The Chairman of the Fairfax County Board of Supervisors, a career progressive politician unburdened by a law degree, has declared Fairfax County’s support of federal authorities in execution of federal law to be unconstitutional.

Not unaffordable; not wrong; but unconstitutional.

He offered that opinion to justify his decision that the Fairfax County police will not help the federal government protect three Supreme Court Justices who live in the county.

Nonsense.  That is not the reason.

The Justices who live in the county are all conservatives – Samuel Alito, Amy Coney Barrett and Clarence Thomas – under attack by the left and threatened with personal harm.

That is the reason.

If Justice Kagan had a home in Fairfax County and was threatened, the FCPD would stand up a new division to protect her.  The perimeter would be a half mile in every direction.

From an AP story:

Fairfax County Board of Supervisors Chairman Jeff McKay said Youngkin’s request for a security perimeter is unnecessary and improper. He said establishing a perimeter would amount to creating an unconstitutional neighborhood “checkpoint” that would infringe on First Amendment protest rights. He also noted that protests that have occurred outside Alito’s home in the Fort Hunt neighborhood have been peaceful.

He did not “note” that they would continue to be peaceful.

The unconstitutionality claim appears to have been made up out of thin air, given the federal law that not only permits, but requires, that judges be protected from protests that attempt to influence their official decisions.

The threats.  The Board of Supervisors has prioritized safe streets and neighborhoods.  Note that the Fairfax County Police Department has its own Counterterrorism Unit.  Fairfax has defined terrorism as “the use of force or violence against persons or property for purposes of intimidation, coercion, or ransom”.

Unmentioned by McKay or the story was the fact that the Justices are under public threats to their safety.   “Unnecessary”?  Mackay should check with the U.S. Marshals Service.  Or review the fire bombing of a Wisconsin anti-abortion organization’s office.

Antifa, infamous for violent protests, is directly involved in the opposition. They famously “use force or violence for purposes of intimidation”.

The threats are severe enough that the U.S. Marshals Service has been assigned to lead the federal efforts to protect the justices.   They can not do that properly in Fairfax County without the full cooperation of the Fairfax County police.  That department can choose to cooperate with federal authorities in enforcing federal law in the matter, but Mckay indicates they will not.

The policing options.

When federal, state and local jurisdictions cooperate on a case, it is because each needs the others.

Each has specific resources, not only legal and financial but also investigative resources. Each will investigate what their assignments and warrants will permit. Each will charge what their laws permit.

They do it every single day in Virginia and across the country in cases big and small.  It happens daily after the fact at the incident command level and in major pre-planned events like a presidential inauguration or Super Bowl.  Since 9/11, such coordination has been formalized into standing joint task forces across the country.

The Virginia State Police, which the Governor can control, is short hundreds of troopers.   The many statutory missions of the state police do not include policing neighborhoods.

Policing Fairfax County neighborhoods is the role of the Fairfax County Police Department (FCPD).  None of us would have that responsibility moved to the state or federal government.

Unconstitutionality claim.  Mr. McKay’s unconstitutionality claim is challenged by the fact that a federal law prohibiting picketing of the justices’ homes has been in place undisturbed by court decisions since 1950.

Mckay’s statement implied that 18 U.S. Code § 1507 Picketing or parading is unconstitutional.

Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both. (emphasis added).

Nothing in this section shall interfere with or prevent the exercise by any court of the United States of its power to punish for contempt.

Since 18 U.S. Code § 1507 has been in place since 1950, it appears that the Fairfax County Board of Supervisors may need a better constitutional lawyer before Mackay speaks on the subject.

The Fairfax Board also positions § 18.2-419. Picketing or disrupting tranquility of home as unconstitutional.  I assume they will inform the General Assembly.

What to do?

The FCPD should do its job.  Unless it has withdrawn from the regional Joint Terrorism Task Force (JTTF), it and other national capitol region jurisdictions can use that venue to cooperate with the federal government to protect the Justices.

If the Board of Supervisors will permit it to do so.

Updated May 13 at noon.