Striking Back Against Antifa: Preservation Letters
By: Jason L. Van Dyke, Esq.
Editor’s Note: This article is intended to provide information of a general nature only. Nothing contained in this article is intended to create an attorney-client relationship and it should not be construed as legal advice.
One of the many things that caused me to become a Proud Boy in May of 2017 was a particular refreshing video in which our prophet, Gavin McInnes, peace be upon him, spoke of three deal-breakers: You don’t fuck with a man’s family, his home, or his job. Domestic terrorist collectives like Antifa, BAMN, and others have a well-known and documented reputation for targeting Proud Boys (though intellectual honesty requires admission that some conservatives have done the exact same thing; it is a practice that should be condemned regardless of perpetrator or target). When a brother or a member of his family is targeted in the privacy of their own home, the solution is a remarkably simple one: 12 gauge Federal Vital-Shock 00 Buckshot applied to the center chest area of any threat. This particular variety of buckshot is made particularly lethal by its use of the patented Flitecontrol wad, which means that a good shot should permanently stop any threat. Unfortunately, when Proud Boys are targeted at their jobs, a more gentile solution is typically required (although I yearn for the days when this was not the case).
The first step every Proud Boy should take to protect himself on the job is the telephone number of at least three good employment law attorneys in their state. Labor and employment law is a specialized practice area (I avoid it like the plague) and many states will offer some type of board certification in this area of law. While all laws vary to some degree from state-to-state, labor and employment law has proven to be one area where there is no clear consensus among states in how certain disputes are handled. The way I would handle a case involving a covenant not to compete in Colorado, for example, is far different from how I would handle a case involving the exact same facts in Texas or Georgia. The biggest problems faced by Proud Boys will come from states that are “at-will employment” states.
In states where employment at will is the law of the land, either the employer or the employee typically has the right to end the employment relationship at any time, and for any reason, including no reason at all. While this fact makes it almost impossible to sue an employer for wrongful termination, it will not typically stop an individual from suing those who interfere with their employment. Although a contract for at-will employment is not typically considered an enforceable contract (since either side can cease performance at any time without penalty), Texas still allows individuals to sue for tortious interference with such contracts. Sterner v. Marathon Oil Company, 767 S.W.2d 686, 688 – 689 (Tex. 1989). The elements for a claim of tortious interference with a contract are intentionally vague, which makes it a powerful weapon for a clever attorney to use in a variety of situations. Although it was intended for business relationships, I used it on one occasion to successfully sue the roommates of a college student who had been harassing him so much that he broke his lease with the apartment instead of continuing to live with three animals. The application of the law in this manner enraged the attorney hired by my client’s roommates, but the judge ultimately found that there was no law limiting the application of a tortious interference case to business relationships. The case settled a day later.
Another particularly useful tort is intrusion on seclusion. While this invasion of privacy tort was clearly designed to deal with voyeurs and the like, the elements (in Texas) are also rather vague: (1) The defendant intentionally intruded on the plaintiff’s solitude, seclusion, or private affairs; (2) The intrusion would be highly offensive to a reasonable person; and (3) The plaintiff suffered an injury as a result of the intrusion. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993). While wiretapping and unauthorized surveillance have long been considered actionable intrusions, so have cases involving following, spying on, and harassing an individual. While courts have not yet ruled on whether this tort can be applied to a situation where an individual willfully interferes with the private employment of another, it would certainly stand to reason that a person’s private affairs includes their employment. That makes intrusion on seclusion another tort worthy of exploration when considering a lawsuit following an Antifa-inspired firing.
Since employers typically take safe-harbor in at-will employment laws, the target of a lawsuit of this nature will typically not be an individual known to a brother. For this reason, it’s particularly important to immediately serve a preservation letter once you have received your walking papers. The purpose of this letter is to put the employer on notice that you intend to file a lawsuit against the scumbag that just got you fired and remind him of his duty to preserve evidence that will be discoverable by you when taking legal action...
After the preservation letter is served, you should consult with an attorney on how to proceed. Some attorneys may wish to take a pre-suit deposition of your prior employer to determine what transpired (and this may be necessary if the identity of your rat is not readily ascertainable). Others may want to file suit against a “John Doe” and begin issuing subpoenas to determine the identity of the culprit. In these matters, you should listen to the advice of whatever attorney you hire.Once the rat is discovered you may also want to consider such actions as criminal charges (if possible) and restraining orders against him. While you may ultimately win your case, it’s important to understand that lawsuits of this nature do not typically result in a pile of money landing in your lap. Your goal is to punish one of more of the individuals responsible for the loss of your employment with such ruthlessness and severity that they are dissuaded from ever doing the same thing again in the future. While there is always a chance of financial compensation, it should not be your primary concern in a case like this.
In conclusion, there may be some situations where the law provides no real remedy for the harm you have suffered. In Leviathan, Thomas Hobbes describes what he refers to as the natural state of man before government and the invention of civil society. He writes: “During the time men live without a common power to keep them all in awe, they are in a condition which is called war; and such a war, as is of every man, against every man m.... And the life of man, solitary, poor, nasty, brutish, and short.” While this state of nature described by Hobbes is theoretical rather than historical in nature, he uses it to lay the foundation for the reasons why man sought to escape this state of nature (or war) and form the civil societies of today. He goes on to describe how man, to become a part of social contract that we know as civilized society, must divest himself of certain rights that he would have in the state of nature – most notably the right to commit violence against others to survive. These powers are vested in a sovereign with the responsibility of keeping the peace in a civilized society. The collapse of that power, according to Hobbes, leads to the complete destabilization of the commonwealth itself and an eventual return to the state of nature. As remedies as law for things like defamation and interference with employment grow harder to come by, we’re going to see more people receiving state of nature solutions for sticking their noses where they don’t belong. I think that’s a good thing. Uhuru!
Author: J.L. Van Dyke, Esq.