29 October 2008

KingCast Memorandum in Opposition to Respondents’ Motion to Dismiss.

This Memorandum started here with Martha McLeod and now continues so that the American Public can see the deliberative processes and arguments of the Parties. Later today or tomorrow I will address the argument that emails to individual legislators at their publicly-owned and/or privately-owned address are not subject to FOIA/RSA 91-A.

May it please the Court to note the following: Respondents completely fail to address the fact that this is a Constitutional case, even though it is clearly plead on the face of the Complaint, which reads, PETITIONER’S AMENDED COMPLAINT, SOUNDING IN RSA 91-A:3, RSA 91-A:4 AND AS GROUNDED IN THE FIRST AMENDMENT TO THE UNITED STATES

This is crucial because Petitioner is arguing that RSA 611-C:21 is being applied in a manner that is Constitutionally overbroad with respect to:
a) Petitioner as Christopher King, J.D.
b) Petitioner as media entity, KingCast.net
c) Other unknown and potential victims

RSA 91-A is grounded in First Amendment Law because, ipso facto, it involves the right to question and to Petition the Government for Redress. That’s why it was created. And New Hampshire Articles 8, 10, and 22 all involve the exercises of these rights. New Hampshire Courts have applied the overbreadth doctrine.

See State v. Brobst, 151 N.H. 420, 857 A.2d 1253, N.H.,2004.
If statute is found to be substantially overbroad, statute must be invalidated unless court can supply limiting construction, or partial invalidation, that narrows scope of statute to constitutionally acceptable applications. U.S.C.A. Const.Amends. 1, 14; Const. Pt. 1, Art. 22.

If statute is not substantially overbroad, then whatever overbreadth may exist should be cured through case-by-case analysis of fact situations to which its sanctions, assertedly, may not be applied. U.S.C.A. Const.Amends. 1, 14; Const. Pt. 1, Art. 22.

In this case, an analysis of the facts reveals that the way the law (RSA 611-C:21) has been applied leaves Petitioners and others like him in a situation where they cannot even know rudimentary facts about 5/11, such as whether Bruce McKay fired his weapon. Not even part of the autopsy or toxicology reports have been provided, thus we cannot successfully petition the government for redress in terms of the investigation of 5/11 because Respondent Ayotte, as gatekeeper, has locked the door.

Standing: The Right-to-Know laws are provided for each and every citizen to discover what the NH government is doing so that we can gauge the effectiveness of said government. Thus, RSA 91-A is to be liberally-construed, not minimally-construed…… (read more of this draft response in the comments).


Christopher King said...

Petitioner has alleged an Constitutional Overbreadth, and any single citizen can bring such a claim regardless of standing.

Overbreadth challenges are a form of First Amendment challenge and an exception to the general rule against third-party standing. U.S.C.A. Const.Amend. 1. Party alleging “ overbreadth ” claims that, although a statute did not violate his or her First Amendment rights, it would violate the First Amendment rights of hypothetical third parties if applied to them. U.S.C.A. Const.Amend. 1.

Overbreadth and vagueness are different doctrines; a clear and precise enactment may nevertheless be “ overbroad ” if, in its reach, it prohibits constitutionally protected conduct. Farrell v. Burke 449 F.3d 470 C.A.2 (N.Y.),2006.

Injury in-fact: As noted in the pleading, Plaintiff is not able to determine whether Bruce McKay fired his weapon, which is certainly something that a citizen (Christopher King, J.D.) or a media entity (KingCast.net) is entitled to know in a homicide investigation. Respondent Ayotte makes no official statement on this but her official report certainly does imply that McKay fired the mysterious windshield bullet, because there’s no way the Floyd could have fired it if he only fired after speaking to Liko, at carside, from Caleb Macaulay’s window.

Therefore the Peter Heed protocol "Officer Deadly Force Protocol" Section IV Policy E(9)(e) obtains because clothing was, and is, of evidentiary value and must be analysed. The fact that Defendant Ayotte failed to do so, and allowed trajectory and other evidence to be destroyed in the Michael Paulhus case materially harms her position in this case and shows that she is operating an intentionally derelict, potentially criminal enterprise. See the Paul Erwin Kish report.

This is a poster case for why RSA 611-C:21 is unlawful because if Respondent Ayotte would produce the investigative or even partial toxicology reports showing GSR (gun shot residue) there would be no violation of the Constitutional right to redress and to know.

Respondent Ayotte as proper party: Respondent Ayotte is the properly-named party because she is in this instance the public official enforcing, or attempting to enforce, the policy. Every time a criminal defendant raises a criminal defense or civil action against an individual officer or police force, alleging Unconstitutional application of the law he is not bound to sue the entire legislature; that's ridiculous.

As such, this court has full authority and jurisdiction to find that application of RSA 611-C:21 is Unconstitutional. Respondent can cite no law whatsoever that holds that a representative from the legislature need be a named party for a Court to decide that application of any particular law is unconstitutional. See State v. Brobst, 151 N.H. 420, 857 A.2d 1253 N.H.,2004, finding Constitutional overbreadth. The mere suggestion of that notion is in fact not only wrong-headed, it is frivolous. This court has full powers to declare the application of any law Unconstitutional after a review of the facts.

Christopher King said...

Insert after Kish report:

May the Court be aware that Respondents have entirely failed to respond to the fact that Respondent Ayotte cherry-picked the Autopsy/toxicology report, as Petitioner clearly alleged in the Complaint. This is more insidious than not providing the public any information at all.

"Note also by way of Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trustees of Indiana University, 787 N.E.2d 893 (Ind. App. 4 Cir. 2003), analysed momentarily, that NH AG Kelly Ayotte has already waived privilege by discussing and offering the cherry-picked portions of Bruce McKay’s autopsy that are not damaging to her reputation or theory of the case.

Hence she tells us that he had caffeine in his system (Official Report p. 25) but she hides the rest of the Crucial Information.

What we do know is that McKay had a “through and through” injury to his gun-bearing right arm, perhaps as if Liko Kenney had shot it as he reached for his gun.

But sadly, she neglects to even tell us whether McKay had Gunshot residue on his hands, when there is no record of him discharging a firearm in the days leading up to his death. This is important because he was shot at least 15-20 feet away in the outdoors. As such, there would be no reason for there to be any substantial GSR on McKay’s hands. Surely RSA 611-B:21 cannot reasonably be read to prohibit the public’s Right-to-Know if an officer discharged a firearm in a circumstance like this."

Anonymous said...

Be sure to tune in tomorrow for another exciting episode of
where the police are perps
and people pursue the police

Christopher King said...

D: Petitioner's paragraphs (a) through (h) represent justiciable issues.

Respondent makes a half-hearted attempt to claim that "all he has done is put the Attorney General on notice that she may be sued regarding these allegations."

This is yet another lie, and notwithstanding the lie, Petitioner doesn't have to even give warning, yet he did.

Respondent has indicated that she is providing SOME of the requested documents so Petitioner will apprise the Court of which ones are no longer at issue at Oral Argument.

Attached please find RSA 91-A correspondence from Respondent Ayotte on these items.

Further, below is the plain language of an email sent on 2 October 2008 and there may be additional language to present at oral argument that clearly evince a proper RSA 91-A request was sent.

"13. Since the initial filing of this Complaint it has become readily apparent that Respondent Ayotte is pointedly evasive on RSA 91-A request that show how she presided over unlawful investigations involving destruction of evidence and many other matters. Petitioner has put Respondent Ayotte on Actual Notice that she may be subject to suit for the following items:"


Whereby the following items -- complete with rationales behind the requests -- were then clearly delineated, yet Respondent Ayotte continues as 30 October 2008 -- after her Motion to Dismiss -- to refuse to provide any of these files except for item 'f'.

Here production of itme 'f' of course directly proves that she has received valid RSA 91-A requests, so in fact her position on this is flat out sanctionable.

Obviously these matters are ripe for Oral argument.

a) Michael Paulhus file – Michael Paulhus was shot at 4 or 5 times by a Nashua Police Officer. Other Nashua LE were found to have violated Mr. Paulhus’ Miranda/Civil Rights and they impersonated being from the AG’s office. Also, just as in the Liko Kenney situation with the windshield bullet, no trajectories were taken and the State police destroyed projectile evidence including bullet marks on the steering wheel, passenger headrest and passenger side door, according to forensic specialist Paul Erwin Kish and the Public Defender’s Office. There is no record of discipline set forth by Respondent Ayotte and when asked for the file on Paulhus she even initially denied having any file, and continues to withhold crucial materials included, but not limited to Senior AG Simon Brown’s report and other matters that will be briefed for the Court prior to hearing.

She now refuses to turn over any of the investigative file and claims that the matter is “not closed” yet the criminal and civil cases have been resolved for more than a year now after Paulhus settled with Nashus for $80,000.00 to relinquish his rights to talk about the injustice he suffered, with stamp of imprimatur by Respondent. Her initial and subsequent answers are in Bad Faith and this litigation is necessary in order to show that.

b) The DNA youth reporting document – Respondent Ayotte has been involved for months or years now regarding a youth DNA reporting issue. She has even written an editorial in the Union Leader about it, and the NH ACLU wrote her weeks prior to Petitioner to specifically complain that her application of NOTICE OF DNA TESTING REQUIREMENTS DJJS FS Form 004 was unlawful as to youth not convicted of sexual offenses. Ayotte knew that Judge David LeFrancois had already agreed on this, and NH HHS even changed its policy. But Ayotte actually told Petitioner that she did not have a copy of the statute in question, which no one in their right mind could possibly believe, as she could not author an editorial on related matters or issue an opinion on this exact matter unless she had a copy of the form. Her answer was in Bad Faith and this litigation is necessary in order to show that.

c) The Concord police abuse issue – The father of the young man interviewed on WMUR on the DNA issue, infra, and as cc’d on the NH ACLU letter to Respondent Ayotte issued a complaint to Respondent Ayotte’s voice mail regarding police abuse after Concord Police harassed and wrongfully detained/seized/arrested his son and him at a Concord shopping mall during the time that he and his son stood righteously defiant on the DNA submission. Respondent Ayotte failed to return his call or other correspondence and has failed to provide Petitioner with any of his information sought about this complaint. Her failure to answer is in Bad Faith and this litigation is necessary in order to show that.

d) The Concord Police shooting – Senior AAG Attorney Jeffrey Strelzin has been quoted in the paper wrapping things up and explaining why no charges will be filed relative to this incident, which took place when an LE shot another LE in a closed credit union in winter or spring of 2008. Yet Respondent Ayotte claims that the matter is not closed and refuses to provide any of the investigative file. Her answer was in Bad Faith and this litigation is necessary in order to show that.

e) The Karen Dion shooting – This shooting has been thoroughly investigated and the home returned to the husband and an official determination that he will not face charges was issued many months ago. Karen Dion’s brother wrote the undersigned asking for help because New Hampshire does not have a Castle Law per se and he had questions. Again, Respondent Ayotte claims that the matter is not closed and refuses to provide any of the investigative file. Her answer is in Bad Faith and this litigation is necessary in order to show that.

f) The investigation file on Louis A. Copponi – based on Respondent Ayotte’s responses to the above-requested materials Petitioner has every reason to believe that she will issue disingenuous responses on this matter as well, and as such he notes that he has twice clearly asked for the closed criminal investigation file on Mr. Copponi. Attorney Ayotte’s first response asked Petitioner to reiterate his question so he did, and he is still waiting. Should Attorney Ayotte issue complete responses this matter will naturally be removed.

g) The request from State Rep. Al Baldasaro – Relative to the ongoing saga of one Gerard

Beloin, who appears to be facing bogus wiretap charges, State Rep Baldasaro wrote:

"Attorney General,

I would like to re-enforce Gerard’s accusations toward the below mention people.

I have listened to some of Gerard’s tapes, viewed many of his documents and I believe that something is not right here and would request your office look into this situation ASAP.

There are conversations about murder, intimidation, arsonist, poisoning and potential of kidnapping from NH to NJ.

I am not a lawyer but feel that if all is true and verified, your office needs to look into these allegations before someone gets hurt."

Wherefore Petitioner asked Respondent for “any and all emails and other documents regarding the allegations made by such duly-elected State Representative” and he has yet to see them or any promise that they will be provided even though they are clearly a matter of public record. Again, based on Respondent Ayotte’s documented history above, Petitioner has every reason to believe that she will issue disingenuous responses on this matter as well.

h) The toxicology reports that must have been viewed pursuant to Deadly Force Protocol – Petitioner notes that Respondent maintains that Bruce McKay fired his weapon because according to her Gregory W. Floyd only fired at Liko Kenney as he was talking with him at carside. Therefore the windshield bullet featured in last year’s oral argument could only have come from Bruce McKay. As such, then, per section E(9)(e) of said protocol, “the directly involved officer’s clothing [is] of evidentiary value.” Obviously as we shall see clothing can tell us conclusively if McKay fired his gun, and can help establish muzzle-to-shooter range with regard to Liko Kenney. But of course Ayotte’s office watched over the Paulhus investigation in which forensic specialist Paul Erwin Kish noted "The clothing of Mr. Paulhus was apparently never collected. Had the shirt been collected it may have assisted in establishing muzzle-to-target range." We need to know if Respondent has learned her lesson or of she is willfully ignoring trajectories and clothing.