14 June 2012

KingCast v. Kelly Ayotte, NH GOP & Nashua PD Rule 59E Motion to Amend or to Alter Judgment.

19 June 2010 update: Summarily denied. Still waiting for the actual written Order; this is the sort of Entry that appeared initially when I made Judge Landya B. McCafferty recuse herself until I started blogging about it. Read this from my comment on the Nashua PD Mike Gannon video showing Nashua PD cop hiding his badge while Hillsborough Court Officers assault Mr. Gannon, stuck at 437 hits all day in its second day of publication: 
still at 437, odd, i feel like it watched it, perhaps i'm mistaken markusmuley 40 minutes ago 
Maybe you didn't watch it, perhaps you have lived it as well & just thought you watched it Meanwhile go to my journal page and read my Motion for Rule 59E Relief that Judge McConnell slammed in 3 days so the Defendants did not have to even issue a response. Note how what the Court wrote that I complained of bore no verisimilitude to what I actually wrote in my Complaint. Look for a video at Case Western Reserve law school alumni ass'n I don't care we went to the same law school he covered up.
I will file my Notice of Appeal in timely fashion and continue on to see how the next court treats this matter. This is the sort of thing that really should not happen in American Jurisprudence but Courts disfavor pro se people, especially when they question Authority. It doesn't matter that you graduate from the very same law school as the Judge, or that you were a former Assistant State Attorney or that you have gone past Summary Judgment to Trial Several times in your career (i.e. Belcher v. ODHS 48 F.Supp 2nd 429). What matters is that you are a PROBLEM, a fly in the ointment and you will lose almost every time regardless of the merits, even if the Court has to ignore half of what you wrote in your Complaint in order to slam you. Anyone reading the Decision would take me to be some bumpkin who just fell up off a damn turnip truck and that is just the way the Courts like it. I will politely continue toward SCOTUS.
Hmmm... 245 Reads in 14 hours with no promotion.....
There are a whole lot of people watching this case, 
much as the Courts and Kelly Ayotte wish it would just go away.
 Go away, pshaw. Go to SCOTUS.


Surely they didn't think I was going to sleep on my Reconsideration and Appellate Review from this December 2011 Free Press/racial discrimination hearing. The full document will be filed before midnight.

".......Further, the Court’s cited case of Cape Cod Nursing Home Council v. Rambling Rose Rest Home, 667 F.2d 243 (1st Cir 1981) does not involve a Reporter’s Right to observe and report, but instead involved an area not consonant with mass general public use for political rallies, such as the Crowne Plaza. While Plaintiff is quite certain that the measure of permitting and licensing of a nursing home is quite substantial, it fails on the public policy prong of this analysis and cannot be used for this particularized evaluation. In sum, “The entrance into a nursing or rest home is hardly a "traditional public channel of communication."(Cape Cod at 240). But a political rally, however, open to the public and press by mass invitation, is precisely such a venue...."

As noted in the Motion, look at just SOME of what the Court willfully ignored:
It is easy to give the government politicos and police a win when the court leaves much of your case on the cutting room floor. I simply won't stand for it. In reviewing p. 10 of the Decision note how the Court omitted the fact that Defendant Hargreaves allowed a white GOP woman to slap Plaintiff’s camera while admonishing him (Plaintiff). Note how the Court omitted the fact that
Plaintiff only “felt compelled to leave or be arrested” AFTER Nashua PD and run him out of the foyer area as well as the leased space. It is a simple fact of law that Nashua PD had no right to threaten arrest at that point yet and still they did and it is in video as provided to the Court, yet the Court overlooked this crucial fact. 


This is how Plaintiff’s para. 30 actually read, with Plaintiff reinserting what the Court removed. It makes a huge difference: 


 30. Nashua PD Officer Hargreaves expressly told Plaintiff he was being ejected from the event because of “the people running the event “ – which was the New Hampshire and Nashua GOP. Hargreaves drove Plaintiff out of the entire Crowne Plaza under threat of arrest even though the GOP did not exercise dominion over the building, even though Crowne Staff said they were not throwing Plaintiff out and even though Plaintiff told him on video, “this is a place of public accommodation… I can chill here and get a sandwich, right?” Hargreaves never retreated from his position and Plaintiff felt compelled to leave or be arrested. 


Then at the VFW the Court whitewashed and omitted the facts by noting only that Plaintiff was instructed to stay on the sidewalk when in point of fact that Complaint clearly alleges that Plaintiff was singled out amongst white people who were NOT on the sidewalk and who were closer to a backing car than he was. All of this activity occurred as Plaintiff was attempted in the prosecution of Plaintiff’s duties as a journalist, as he was trying to ask Candidate Ayotte a question about the unlawful DNA testing she allowed against New Hampshire children. 


Let us review exactly what Plaintiff alleged rather than the limited summary offered by the Court. Again, it makes all the difference in the World.


44. Lieutenant John Fisher spoke out of turn as Plaintiff attempted to ask Candidate Ayotte a question about Unconstitutional DNA testing, as the video clearly shows other white people closer to a loud, backing car than Plaintiff. Fisher admonished Plaintiff on the backing car and did further continue to caution him to remain on the sidewalk, even though Plaintiff had never once left the sidewalk. 


 45. One may clearly see that other white people were closer to the backing car yet Fisher said nothing to them because he was too busy harassing Plaintiff, such that Plaintiff was not able to ask another question of Candidate Ayotte, thus his First Amendment Rights to speak AND to gather news were at once chilled and trammeled. Of course as previously noted, Defendant Fisher is being sued in this Court at this very moment for lying about a vehicular incident more tragic in nature that resulted in the death of the actual driver. Gorsuch v. Fisher et al. 2010-CV-495. 


 The problem with the Court’s analysis is that by gerrymandering the Complaint and just flat out deleting salient portions of Plaintiff’s allegations, it makes it appear that Plaintiff is only offering conclusory diatribe when in point of fact there are distinct issues of disparate treatment that got buried. The actions of Defendants, once the Court accurately reads and reflects what was truly in Plaintiff’s Complaint, clearly provide a Jury with enough factual backdrop to find that Nashua PD unlawfully trammeled Plaintiff’s First Amendment Rights to gather and to report news irrespective of race, but also contemplative of race.




PENDANT STATE LAW CLAIMS

Plaintiff will focus on the Common Law Assault allegation where the language he used directly echoed that of the First Circuit case of United States v. Lee, 199 F.3d 16; 1999 U.S. App. LEXIS 32449 (1st Cir. Mass, 1999). Plaintiff’s Complaint read simply:

FIFTH CAUSE OF ACTION
Common Law Assault

Testimony will reveal that the Officers of the Political Defendants at the Ayotte Facebook Rally did all approach Plaintiff in a menacing and threatening manner, and did put their hands on him as he tried to roll video. He was placed in serious apprehension for his safety.

Plaintiff’s Memorandum in Opposition noted: This claim speaks for itself and it is obvious that it can’t be dismissed without discovery, testimony, Affidavits and Jury review. United States v. Lee, 199 F.3d 16; 1999 U.S. App. LEXIS 32449 (1st Cir. Mass, 1999). HN3Common law assault embraces two different crimes: one is attempted battery, that is, an intended effort to cause bodily harm to another which falls short of success (an example would be striking at a police officer but missing), regardless of whether the intended victim knows of the attempt. The other branch of assault is an act which is intended to, and reasonably does, cause the victim to fear immediate bodily harm; such "menacing" constitutes assault even if no physical harm is attempted, achieved, or intended.
*********************
            The Court, however, found that Plaintiff “failed to specify who did what and when and what their intent was.” But that is completely unfair to Plaintiff because he did in fact indicate where and what the intent was, but without any discovery how could he possibly know who touched him? Moreover, the Court has once again whitewashed the case because this is what Plaintiff actually alleged:

21.            Defendant Ayotte, by and through her campaign office, conferenced with her crew as she witnessed the intrepid black reporter and subsequently threatened Plaintiff with arrest by several white men in a Conspiratorial mandate. These men, including former U.S. Marshal Stephen Monier, put their fingers in his chest and pushed him. Plaintiff, who was trying to operate a camera at the time and who had not touched anyone of his own accord, became fearful of his safety as would anyone.

22.             To compound matters, Monier then threatened to call the Manchester police, who are known for beating civilians and settling 42 U. S.C. §1983 Actions after the victims endure plastic surgery.

Those paragraphs are lifted from the Kelly Ayotte Facebook Rally so it is pretty clear that the pushing occurred at said rally where Plaintiff attempted to pay his $10 and was pushed away as a Kelly Ayotte supported loudly proclaimed him as “a bigot,” also captured on video.

2 comments:

Christopher King said...

From Pruneyard at 81, 100 S.Ct. at 2040 (citations omitted)......

It may well be that Mr. Kelly, by opening his private farm property to the public for a Klan rally did not bestow upon attendees of that rally any right to speak during that rally or to require the Klan to call upon anyone to speak at the rally other than as the Klan desired. But, herein, plaintiffs do not seek the opportunity to speak at such a rally; rather, plaintiffs complain herein of being excluded entirely from attending such Klan rallies.

............But, “by choice of its owner,” the property was, on the occasion of each Klan rally, made “open to the public.” Having made that “choice,” the private property owner cannot complain that he has been deprived of his privacy, or of his freedom to use his own private property as he desires, if he is required not to discriminate among the members of the public by excluding all persons belonging to a particular race or to a particular religious group.

A private property owner can surely invite whomever he selects to attend a private gathering on his property. But when he offers his private property to the public, he has placed himself in a position which enables the government, if it so desires, to impose certain requirements upon him.

If, as in Pruneyard and in Hudgens, a state or federal statute can require a shopping center owner to permit certain solicitation or picketing within the shopping center, then there would appear no federal constitutional barrier to Frederick County requiring the Klan to hold an open-to-all, non-racially, non-religiously discriminating, public rally on private property before issuing a permit.

KingCast submits that such an analysis is entirely consistent with principles of Heart of Atlanta, supra. Lastly, Justice Rehnquist added in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972),

Lastly, as to Defendant’s specious claim that they are immune from liability because they are not State Actors, Plaintiff states the following. First, as in the words of U.S. Supreme Court Justices – William Rehnquist -- in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972),

Our cases make clear that the impetus for the forbidden discrimination neednot originate with the State if it is state action that enforces privately originated discrimination. Shelley v. Kraemer, supra.

Christopher King said...

This is the sort of thing that really should not happen in American Jurisprudence but Courts disfavor pro se people, especially when they question Authority.

It doesn't matter that you graduate from the very same law school as the Judge, or that you were a former Assistant State Attorney or that you have gone past Summary Judgment to Trial Several times in your career (i.e. Belcher v. ODHS 48 F.Supp 2nd 429).

What matters is that you are a PROBLEM, a fly in the ointment and you will lose almost every time regardless of the merits, even if the Court has to ignore half of what you wrote in your Complaint in order to slam you.

Anyone reading the Decision would take me to be some bumpkin who just fell up off a damn turnip truck and that is just the way the Courts like it.

I will politely continue toward SCOTUS.