Religious freedom victory came out of the Ninth Circuit, and it’s not that often that we get to say that. So, a great victory that we’re going to be talking about today.  A pastor falsely arrested, wins the case.  Having good Christians attorneys out there representing pastors like this one, and winning.  It’s an episode you won’t want to miss! We’ll be talking with Robert Tyler, the attorney that represented this pastor. He’ll be sharing with us what’s happening in the case, the victory they just had at the Ninth Circuit, and the battle that continues, and so much more. Tune in now to WallBuilders Live! 

Air Date: 03/15/2017


Guests: Robert Tyler, David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast.  However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers.  Additionally, names may be misspelled because of the difficulty in understanding the speaker at times. We apologize in advance.

Welcome

Rick:

You find your way to the intersection of faith and the culture, this is WallBuilders Live! Thanks for joining us today! Where we’re talking about these hottest topics on policy, faith, and the culture, always looking at it from Biblical, historical, and constitutional perspective.

We’re here with David Barton.  He’s America’s premier historian and our founder and president. Tim Barton, with us today as well, national speaker, and pastor. And I’m Rick Green, a former Texas state representative.

Find out more about us and the organization at WallBuilders.com. We’ve got a totally new website and you have got to go check it out if you haven’t been there in a while, or even if you have, it’s got so much great information and it flows so easily you’re going to really enjoy. So check out WallBuilders.com and then also our radio website WallBuildersLive.com.

David, Tim, were coming, in some ways, full circle to a topic we’ve been covering for many years, in terms of religious liberty. But guys like Kelly Shackelford have pointed out to us, the hostility towards the Christian religion in America over the last couple of decades frankly, but they really started documenting it about 10 years ago. We were actually kind of surprised at the thousands of instances where Christianity has been attacked in our culture.

Hostility Toward Religious Expression

Tim:

Yeah, I think Kelly Shackelford said over the last couple of years they’ve dealt with about a thousand cases a year just dealing with religious freedom. They’re just one of many law firms that represent individuals of the Christian persuasion that are attacked because of religious faith.  Not that these guys discriminate, they would defend really multiple religions-

David:

They do.  Kelly has defended folks that are not Christians. And Thomas Moore Foundation, they’ll defend Buddhist.  They’ll defend Jews.  And so it really is a First Amendment group. And they do defend more than Christians but that’s predominately what’s attacked.

Tim:

Yeah, so what I was going to point out is that it’s just significant that generally in America Muslims are not the ones persecuted.

David:

That’s right.

Tim:

If you look at the percentage of people that are dealing with problems it’s not the Muslims.  It largely is Christians. Then oftentimes Jews, but really, it’s kind of that Judeo-Christian faith is what you see come under attack. As I mentioned, Kelly said that probably a thousand cases a year they deal with. So, this is a significant issue here in the nation.

David:

And we have on our website, I don’t know, there’s probably eight or nine of these national groups. Kelly with First Liberty.  Then you’ve got Mat Staver with the Liberty Council, and you have Alan Sears and now Michael Farris with Alliance Defending Freedom.  You have Pacific Justice.  You have so many good groups out there.

So, the hostility toward religious expression has been growing for a good bit of time. But even when it was started about seven years ago we talked about a place, I think, Rick, you may have been there. But I spoke at the church Hemet Calvary Chapel.

Christian Attorneys

Rick:

Oh yeah.

David:

And so we’ve been there.  We’ve spoken to the church. It turned out that not long after I was there that one of their pastors got arrested in California, handcuffed and hauled off for standing outside in public reading the Bible outside in public.

He goes, “What?” And then it turned into a really big thing with some of the officers accusing him of having done just really egregious stuff that wasn’t true. The good news was there was a video that came out that recorded the entire incident and showed what truth was and what truth wasn’t, and made the officer look really bad.

First false claims, but that thing is getting close to a conclusion now after nearly seven years. This thing has been through a number of courts. State courts, federal courts, the federal court of appeals, and still going back and forth over the ability of someone to just stand outside and read the Bible, really?

Rick:

It’s amazing that it’s happening. Fortunately, we have good attorneys out there representing pastors like this one and winning. So great victory that we’re going to be talking about today.

Robert Tyler, the attorney that represented this pastor is going to be with us here on WallBuilders Live talking about what’s happening in the case, the victory they just had at the Ninth Circuit and the battle that continues.

Stay with us.  You’re listening to WallBuilders Live.

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Robert Tyler Defending First Amendment Rights

Rick:

Welcome back.  Thanks for staying with us here on WallBuilders Live! Great organization we’re highlighting today because they just had a great victory. We’ve talked about it for a couple of years, been an ongoing fight. But Faith and Freedom has been fighting this in the courts, and now a great victory, I can’t believe I’m saying this, out of the Ninth Circuit Court of Appeals. Robert Tyler with us. Robert always good to have you, man.

Robert:

Hey, it is a pleasure to be with you again to bring good news.

Rick:

Well, this has been a long time coming and somewhat unexpected for the victory to be here. Advocates for Faith and Freedom has been defending this individual out from out in California, arrested by an officer for just exercising his First Amendment rights.

But a lot of our listeners may not recall the times we’ve had on in the past to talk about it. So, give us a brief reminder of how this case got started out and him in it.

An Unlawful Arrest

Robert:

Sure, got a phone call from a pastor and two gentlemen who said, “We were out at the Department of Motor Vehicles and we are doing our normal street evangelism. And in this instance, we thought it would be good to go to the Department of Motor Vehicles and stand outside and just read the Bible out loud.”

A lot of times are street preachers and they shout hellfire and brimstone and that’s not what they did in this case. Here it was, very calm and very peaceful, they weren’t yelling. Simply one man, Mr. Mark Mackie, stood in front of the Department of Motor Vehicles about 50 feet away from the front door and read the Bible out loud.

He read numerous passages.  He was there for about a half hour and a CHP officer shows up. The CHP, the California Highway Patrol, had a call from the Department of Motor Vehicles saying, “Hey, there’s a preacher outside harassing customers.”

So he shows up and he immediately walks over from behind and grabs the Bible out of Mr. Mackey’s hands and says, “You’re under arrest.” And he didn’t question him, never asked a word.  Didn’t ask, “Do you have a permit?” Nothing.  All of this was on videotape, by the way. At the time the officer rolled up and at all times before that, it was peaceful the entire time.

Rick:

Totally, and not obstructing the line, or keeping people from going in.  I remember seeing the video.  The guy’s just standing there and the people that wanted to listen or engage could have and the people that didn’t just ignored him.

Robert:

In fact, most of them ignored him. So he stood there and he spoke and he read the Bible out loud.  And the officer shows up and he just immediately arrests them.  And Mr. Mackey says, “What am I being arrested for?” And he says, “You’re preaching to a captive audience. You can’t preach to a captive audience.”

And Mr. Mackey says, “What law is that, Sir?” He was very polite about it. And the officer frustratingly just kept continuing to put the handcuffs on him and put him in the car and never answered his question.

Meanwhile, two other gentlemen kept asking the officer saying, “Why are you arresting our friend?  What has he done?  What law is he violating?” And the officer in frustration had had these two gentlemen under arrest also.

Police Officer Fabricating The Truth

Rick:

Unbelievable. And you can tell on the video, at least my take on it, he hated religion and the Bible.  He was just offended that this guy was reading the Bible and he’s like, “I’m going to use my power and authority to shut this down.”  That was my interpretation. You’ve actually dealt with the case.  But that was certainly what it looked like on the video to me.

Robert:

I believe you’re exactly right because you know it happened after he booked them he drove them 45 minutes away to a jail location.  Now, by the way, he had the authority to simply cite and release.  He could have cited them, never put them under arrest.  Could have just given them a ticket and said, “Go, leave.” And he didn’t do that.

Instead, he puts them under arrest, drives them 45 minutes away, specifically just to inconvenience them.  And then they get cited for  the only thing the officer could find in the California penal code was a statute that says, ”It’s unlawful to interfere with an open business through obstruction or intimidation.”

Three key words here. Open, the business was not open it was closed at the time.  Second word, obstruction they were 50 feet from the front door.  Third Word, intimidation.  He essentially was arguing was that our clients were intimidating people from going into the Department of Motor Vehicles by merely standing 20 feet away from the line, 50 feet from the front door, and reading the Bible. That’s somehow intimidating.  That’s obstruction.

So he had nothing. Then what ended up happening was a month in his police report he fabricates the truth. He says that imminent violence was about to erupt, something to that effect. Then he supplements this police report 60 days later.

The Fight Is Far More Than Just For This Case

Rick:

Did he know the video was out there?  The video is so telling that this guy’s lying.

Robert:

You would think so. He’s fabricated so much in that police report and then 60 days later in a subsequent police report trying to make it appear that imminent violence was about to erupt. And you can see in the video that that is so far off.

You know what the CHP did after we filed a complaint against this officer?  What did they do?  He ended up getting a promotion. That’s what’s really unfortunate. I have a brother who just retired from the sheriff’s department and a brother in law from another police department, a sister in law from the sheriff’s department out here in this area of California.

You know, it’s very frustrating to have an officer like this who should not be on the streets. Who has falsified his police reports and instead of addressing the issue. Governor Jerry Moonbeam Brown, if you know politics in California, Jerry Brown is extremely liberal and he appoints all these extremely liberals in the California Highway Patrol to oversee and run the division.

Well, instead of addressing this like they should have, they give the guy a promotion. To me, it just indicates what we’re faced with that because a gentleman was reading the Bible out loud.  They didn’t like what he was doing. They promote the officer for writing a fat false police report and they pressured the district attorney to prosecute our client.  We ended up winning that.

Rick:

Wow, this would not have happened with Ponch and John, for the people old enough like us to have watched chips as kids. But think about what would happen if it wasn’t for guys like you out there willing to come alongside this pastor. This church couldn’t have afforded to probably take this on. This has been, how long has it been now? Five or six years?

Robert:

Almost seven years. It was in 2011 when the arrest occurred.

They Won’t Accept Our Settlement

Rick:

So, without you guys, this thing happens, they probably can’t defend themselves, people find out about it, other pastors then start thinking, “You know, I really want to go do some street preaching. I want to go out there. But we don’t want the whole state after us. We don’t want to take that battle on. I don’t want to go to jail. I was going to stay in my lane, do my thing.” And it becomes a major chilling effect on the exercise of our First Amendment rights.

Because you did take on the battle, it’s the exact opposite effect hopefully it will be a freeing message to pastors and Christians across the country to say that you do have the right to share your faith. Of course, do it like this pastor was doing it, in a respectful way and not obstructing people and that sort of thing.  

He did it right.  And you guys defended him and maybe it’s a signal to the California Highway Patrol to change their ways in this case.

I’m sure like you, I’ve got a lot of relatives in law enforcement and they can’t stand it when guys like this guy give them a bad name and then give the whole department a bad name because he gets promoted.

Robert:

Right. We have we’ve got a good opportunity at this point, the case continues essentially with the Ninth Circuit ruled was that the officer had no probable cause to arrest our clients.  He reversed the district courts.

So, there were two cases that were going on. On one hand, we sued for unlawful arrest in federal court.  And that’s what went up to the Ninth Circuit.  The Ninth Circuit ruled in our favor and reversed the lower district court which was an Obama appointee.   That was after we had already defended our client in the criminal court and won in the criminal court.

So now, we’re going back to the federal district court and the issue is going to be damage. Was our client damaged in any way? We offered again, to the California Highway Patrol, like we did in the very beginning where we said, “Look, all you have to do is admit that you made an error. That this officer was wrong. Train your officers accordingly, and we’ll dismiss our lawsuit, no damages, no requests for attorney’s fees.  It’s over.” Well, they didn’t take that.

So, now they go up all this time.  They lose and now we’re back. And again I make the offer to the California Highway Patrol, “Look, we can talk.  We can negotiate some sort of settlement. Now you are going to have to pay a little bit of money in damages and a little money in attorney’s fees but it will be far less than if we go through a whole trial.” And they still rejected that and they want to keep fighting.

You Can Get Involved Too

Rick:

They’re still going.  Unbelievable.

Robert:

Yeah.

Rick:

Well, thankfully you guys have the means and the expertise to do that. I do want to say to our listeners, though, that “means” comes from supporters all across the country. A lot of times you hear a program like this and you go, “Man, that could be my pastor.  That could be me. I wish I could do something about it. I’m not you know a-”  Sorry Robert, “A hotshot attorney legal like Robert Tyler.  What can I do?”

Well, they can come alongside you guys.  They can donate.  They can pray for you.  They can they can spread the word.  I just encourage folks to do that today.  Go to the website.  You’ll be able to keep up on the case, but you also basically be like a partner. You’ll be coming along Robert and helping him in that case and other clients. They have other cases just like this. Faith-Freedom.com.  That’s the website, right Robert?

Robert:

That’s right.

Rick:

Ok,Faith-Freedom.com, get on their email list.  Join them on Facebook and Twitter.  Donate to the organization and help them continue this battle.  It’s such an important one. Robert, I just wanna say, God bless you brother, and praying for you that you guys do have wisdom in all these cases and which cases to take. Keep up the good fight.

Robert:

Well, I’m honored to be on.  Thanks, Rick. Thanks for keeping up with us and the endorsement that means a lot to me. Thank you.

Rick:

We’ll let’s get you back. Hey, let us know too, you know just holler and let’s get you back on as this thing progresses. And other cases, we’d love to have you back on a regular basis.

Robert:

Thanks so much.  Love to be on.

Rick:

Stay with us folks.  We’ll be right back with David and Tim Barton.

Moment From American History

This is Tim Burton from WallBuilders with another moment from American history. Founding Fathers John Adams and Thomas Jefferson originally worked closely together but later became ardent opponents.

This troubled Dr. Benjamin Rush, a signer of the Declaration, who knew both of them very well. In the Bible, 2 Corinthians 5:18 tells us that God has given each of us the ministry of reconciliation. Dr. Rush believed this and set out to bring the two back together.

It took a while, but Adams and Jefferson once again became close friends. Looking back on his role in helping bring about this reconciliation Dr. Rush stated, “It will give me pleasure as long as I live to reflect that I have been in any degree instrumental in effecting this reunion of two souls destined to be dear to each other and motivated with the same dispositions to serve their country, though in different ways.”

For more information about Dr. Benjamin Rush and his other remarkable achievements go to WallBuilders.com.

A Worldview Can Not Trump The Law

Rick:

Thanks for staying with us here and WallBuilders Live! We’re back with David and Tim Barton. Thanks to Robert Tyler for joining us and for continuing the fight in the courts for our religious liberties.

So guys, apparently the battle is not over. It sounds like a great victory at the Ninth Circuit. I always had to giggle when I say that because of a victory at the Ninth Circuit just seems weird.  But anyway, definitely a victory. But the battle continues because they got to go back to the district court level on those other issues.

Tim:

Well, Rick, it also makes me think how egregious was this error that the Ninth Circuit had a rule against you. This isn’t the kind of court where normally they’re going to go against something like this. But for them to rule in what we would say in this instance, our favor, in the sense of religious liberty to have a victory, this had to be pretty bad from this officer.

And when you have the video footage showing that when you’re saying that this violence is about to break out and the camera scrolls and there’s nobody around.  How is that going to happen?  I mean it’s so crazy what happened yet, it did happen.

Where we are that this is something that has to be contended with, it’s so interesting to see how far we’ve come from understanding the original intent of the First Amendment, to protect the rights of conscience, and in this case even the freedom of speech, that you would get up and say something in a public place.

How far we’ve come to now that if there’s any kind of religious content we feel like that has to be censored because that is the greatest evil around. That trumps your free speech, that trumps your First Amendment religious rights.  You can’t do that. And crazy, but again, good news seeing this victory coming from the Ninth Circuit.

This Officer Was Totally In The Wrong

Rick:

I appreciate and I’m so glad you said it that way because my attitude was probably wrong. I was thinking more like a blind squirrel finds an acorn every now and then about as much as the Ninth Circuit gets it right. But you’re right, it’s probably just the fact that it was so egregious that even the Ninth Circuit got it right.

David:

Think about the officer who falsified the report multiple times, who searched and searched to find something to charge him with and all three things he found to charge him with none of them worked.

Of course, he gets promoted out of all this. That kind of tells you how goofy it is. But there were some Bible verses that that kind of struck me as I listened to Robert doing this. There are two Bible verses in Proverbs 17.  One says “It’s wrong to punish the just.” Which happened in this case. The other says, “If you repay good with evil then evil will never leave your house.” And that’s not good news for that cop.

Tim:

That’s not the position you want to be in.

David:

That cop put himself in a bad position. And then to persist, not back down and say, “You know what, you guys really didn’t do anything wrong, you’re free.” To continue that now for seven years, continue holding a false position and falsify reports?

And then Proverbs 28 says, “To reject the law is to praise the wicked but to obey the laws to fight them.” But he rejected the law. Even the Ninth Circuit said, “You gone overboard on this.”  So, he rejected the law.  Well, that’s praising the wicked.

And as you pointed out Rick, when you watched that video you thought, “This is a guy who really doesn’t like God and he’s he’s now using his authority to enforce his personal opinion, not the Constitution, not anything else.” And that’s just not a good place to be in.

Rick:

Let’s take a quick break, guys. We’ll be right back.  Stay with us folks.  You’re listening to WallBuilders Live!

Biographical Sketches

Hi, friends! This is Tim Barton of WallBuilders.This is a time when most Americans don’t know much about American history or even heroes of the faith. I know, oftentimes for parents, we’re trying to find good content for our kids to read.

If you remember back in the Bible, the Book of Hebrews it has the Faith Hall of Fame, where they outlined the leaders of faith that had gone before them. Well, this is something that as Americans we really want to go back and outline some of these heroes not just of American history, but heroes of Christianity and our faith as well.

I wonder what you know about some biographical sketches we have available on our website. One is called, The Courageous Leaders Collection and this collection includes people like Abigail Adams, Abraham Lincoln, Francis Scott Key, George Washington Carver, Susanna Wesley, even the Wright brothers.

There’s a second collection called, Heroes of History.  In this collection, you read about people like Benjamin Franklin, Christopher Columbus, Daniel Boone, George Washington, Harriet Tubman.  The list goes on and on.

This is a great collection for your young person to have and read.  And it’s a providential view of American and Christian history. This is available at WallBuilders.com.

Changing The Meaning

Rick:

We’re back.  Thanks for staying with us here on WallBuilders Live!  Talking about this case out of California. Just as Tim said, how bad it had to be for the Ninth Circuit to get it right. But thankfully Robert Tyler and the others were there to fight it. We need that all across the country.

David:

One of the things that stood out to me, in this case, is that this is the problem with progressives in general. They like to redefine words to suit their own wishes. When you don’t believe there’s the absolute truth then there’s no absolute meanings or absolute definitions.

They can change the words to mean whatever they want. So, he can file a report that says that these guys, these pastors, had a captive audience. How do you define captive when you’re outside and you’re 50 feet from the door nearly 20 yards from anybody around, and you have a “captive audience” on a sidewalk and they’re avoiding you and staying away from you as you preach.

Tim:

Well, he had magical power and when he spoke it froze people and so they were captive.

Rick:

They looked that way on the camera too.

Holding Two Opposing Beliefs Is Impossible

David:

Exactly. But see, that’s the way Progressive’s do is they want the ends to justify the means. So, since there are no rights and wrongs, there are no right and wrong definitions for words.

So that nonsense about, “He had this captive audience.” That reminded me of George Orwell who in 1945 did the book, Animal Farm. It’s kind of a parody on what society was becoming or might become.

One of the characters in the book was the pig who was named squealer.  And squealer would arbitrarily redefine words so they would mean whatever he wanted them to mean.  Here’s what Orwell said about squealer, “He could turn black into white.” And he could. That’s what he did.

Then he came out some years later with a book in 1984. Orwell has this statement, “It’s a beautiful thing, the destruction of words.” That’s what you see this California Highway Patrol do is destroying words.

Then here’s one other quote from Orwell I thought was really good, “Doublethink means the power of holding two contradictory beliefs in one’s mind simultaneously and accepting both of them.” To see that video he had to go out of his way to arrest them and he says they had a “captive audience.”  That’s two contradictory things. And he holds both beliefs. It’s impossible.

Religious Freedom Victory Came Out Of The Ninth Circuit

Tim:

That is idiotic.  It reminds me of what James wrote in chapter one where a double-minded man, like a wave of the sea, driven and tossed. Well, that’s exactly what it is. You’re trying to hold on to two concepts. Then you get stuck somewhere in the middle.

This officer is trying to uphold the law. But he has his own personal persuasion that in this case, it seems like it’s against Christianity. So how do we combine the two?

“I’m going to make the law meet my worldview, and therefore, you’re the one in trouble.” And that’s where we have ourselves these major problems, is people don’t uphold the intent of the law.

They uphold the Constitutional, or in this case, some of the Bill of Rights added to the Constitution, those constitutional principles. And so we see these problems that we shouldn’t have if people knew the Constitution, knew the original intent of the law. But in this case, fortunately, the Ninth Circuit got one right.

Rick:

That’s a great way to end the program right there. As people are swerving off the road in shock, the Ninth Circuit got one right, and we’re glad they did.

God bless Robert Tyler and those guys that are fighting for these things. Thank you to all the Christian attorneys out there defending our religious liberties and winning battles like this.

Thanks for listening today.  You’ve been listening to WallBuilders Live!