UNITED STATES COURT OF APPEALS: SECOND CIRCUIT

Julian Heicklen
     Appellant

            v.
Court of Appeals Docket #10–1251
District Court SDNY Complaint:
# 08 Civ. 2457 (JGK)
    Jason Toala
Police Officer Shield 27613
Patrol Bureau Manhattan South Task Force
2523 W. 42nd Street
New York, NY 10036
212–760–8301

John Does, 1, 2, and 3
Arresting Police officers
Patrol Bureau Manhattan South Task Force
2523 W. 42nd Street
New York, NY 10036
212–760–8301

Raymond Kelly
New York City Police Commissioner
Police Headquarters
1 Police Plaza
New York, NY 10038
646–610–5000
    Appellees

APPELLANT’S BRIEF IN SUPPORT OF APPEAL
_____________________
Julian Heicklen, Appellant
Counsel Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
Telephone 814–880–0938
____________________
Date
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES............................................................................3
ABSTRACT......................................................................................................5
A. JURISDICTION ..........................................................................................6
B. THE ISSUES................................................................................................8
C. DVD VIDEO DESCRIPTION OF EVENTS.............................................9
D. MISSING PART OF VIDEO....................................................................10
E. JUDGE KOELTL’S VERSION OF EVENTS IN ORDER OF 2/11/10..11
F.  IRREFUTABLE EVIDENCE..................................................................15
G. POLICE IMMUNITY ACCORDING TO JUDGE KOELTL................16
H. PLAINTIFF’S ARGUMENT FOR DENYING IMMUNITY................18
I. RESPONDEAT  SUPERIOR....................................................................29
J. FEDERAL LAW AND RIGHTS.............................................................32
K. BAD FAITH............................................................................................33
L. IMPORTANCE OF THIS CASE............................................................33
M. MOTIONS (RELIEF SOUGHT)...........................................................34
N. AFFIDAVIT OF APPELLANT.............................................................35
O. CERTIFICATE OF SERVICE...............................................................36
NY CERTIFICATE OF DISPOSITION NUMBER 201480.....................37


TABLE OF AUTHORITIES

Anderson v. Creighton, 483 U.S. 635 at 644 (1987)
Anderson v. Creighton, 483 U.S. at 641(1987)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-51(1986)
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009)
Back v. Hastings on Hudson Union Free Sch, Dist, 365 F.3d 107, 122 (2nd Cir. 2004) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2nd Cir. 1977)
Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995)
Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 2004)
Burns v. City of New York, 791 N.Y.S.2d 851, 851 (App. Div. 2005).
Conley v. Gibson, 355 U.S. 41 (1957)
Constitution of the United States: Article I, Section 8; Article IIl, Sections 1 and 2.
Constitution of the United States, Amendments I, VII, and XIV
Davis v. Rodriguez, 364 F.3d 424, 433 & n.7 (2nd Cir. 2004).
Fiacco v. City of Rensselaer, 783 F.2d 319, 325 (2d Cir. 1986), cert. denied, 480 U.S. 922 (1987)

FEDERAL RULES OF CIVIL PROCEDURE
Feingold v. New York, 366 F.3d 138 (2d Cir. 2004)
Form 2. Allegation of Jurisdiction
Gomez v. Toledo, 446 U.S. 635, 640 (1980)
Haywood v. Koehler, 78 F.3d 101, 105 (2d Cir. 1996)
Heicklen, RESPONSE MEMORANDUM OF LAW TO REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT, October 19, 2009 (see Reproduced Record, Exhibits B and D)
Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)
Kerman, 374 F.3d at 120
Koeltl, Judge of the U. S. District Court, JUDGMENT and ORDER OF DISMISSAL issued on February 22, 2010.
Leblanc-Sternberg v.Fletcher, 67 F.3d 412, 430 (2d Cir. 1995)
N.Y. Penal Law § 240.20(5)
Patterson v. County of Oneida, 375 F.3d 206 (2d Cir. 2004
Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993)
Reeves, 530 U.S. at 150
Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51 (2000)
Scott v. Harris, 127 S. Ct. 1769, 1775-76 (2007)
Rule 27. “Depositions Before Action or Pending Appeal
Warren, 906 F.2d at 76
Wood, Judge, U. S. District Court, S.D.N.Y., ORDER of Judge Kimba Wood, Original Complaint, U. S. District Court, S. D. N. Y., Docket # CV 02457, March 11, 2008; see Reproduced Record)
 Zellner v. Summerlin, 494 F.3d 344, 369 (2nd Cir. 2007).
18  U.S.C. § 1201, 28 U.S.C. §1291,and 42 USC §1983
518 U.S. 1017 (1996)

ABSTRACT

    Judge Koeltl dismissed this case and rendered judgment on behalf of Defendants for three reasons:

Police Officer Toala has immunity from prosecution because he was performing his duty.
Commissioner Kelly has immunity because he is the respondeat superior.
Plaintiff has no case because the video shows irrefutable evidence of his guilt.

    Plaintiff argues:
Police Officer Toala made an illegal seizure in violation of Amendment I of the U. S. Constitution.  He was made aware by Plaintiff that he was in violation.  When asked the reason for arrest, the only reason given at the scene was “Failure to obey an order of a police officer.”  This is not a legitimate reason for arrest.  It has been deleted from the video.
Plaintiff alleges that Commissioner Kelly orchestrated, or at least was aware, of the police action and was involved in planning and effecting it.  He even had a legal advisor and several senior officers from a special task force execute his orders.  Thus he is not immune under respondeat superior.
The video does not show irrefutable evidence of Plaintiff’s guilt.  Nowhere in the video is Plaintiff placed under arrest.  Actually Plaintiff was placed under arrest twice.  That part of the video was deleted by the police.  In some part of the video, the sound has been muffled.  The video shows that Plaintiff was the last person taken into custody.  The time of arrest on the police deposition indicates that Plaintiff was the first person taken into custody.  Both statements cannot be true.
Plaintiff intends to produce witnesses that can corroborate his statements, if given the opportunity.
The Criminal Court of Manhattan formally dismissed and sealed the criminal case in the interests of justice on June 8, 2010.

A. JURISDICTION

    Jurisdiction rules are listed in FEDERAL RULES OF CIVIL PROCEDURE WITH FORMS DECEMBER 1, 2006.
Rule 27. “Depositions Before Action or Pending Appeal (a) BEFORE ACTION. (1) Petition. A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States may file a verified petition in the United States district court in the district of the residence of any expected adverse party. “
Form 2. Allegation of Jurisdiction (a) Jurisdiction founded on diversity of citizenship and amount. Plaintiff is a citizen of the State of New Jersey. All Defendants are government officials of New York City (b) Jurisdiction founded on the existence of Federal questions. The action arises under the Constitution of the United States, Article I, Section 8: “The Congress shall have Power... To Constitute Tribunals inferior to the supreme Court;” and Article IIl, Sections 1 and 2.

 42 U. S. C. §1983 states in part:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress,...”

 The residence of none of the Defendants is known to Plaintiff. However, the litigation is not directed against any of the Defendants as private citizens, but in their professional capacities.   All Defendants have offices in New York County.

The U. S. Courts of Appeals have jurisdiction to hear appeals from final decisions of U. S. District Courts (28 U.S.C. §1291).

The sequence of events for filing the NOTICE OF APPEAL was:
a. The District Court JUDGMENT and ORDER OF DISMISSAL was signed by Judge Koeltl on February 22, 2010.
b. It was mailed to the Plaintiff by the District Court on March 4, 2010.
c. Appellant mailed the NOTICE OF APPEAL to the District Court on March 10, 2010.
d. Because it was incomplete, the Pro Se Clerk returned it to Plaintiff on March 16, 2010.
e. A revised NOTICE OF APPEAL was mailed on March 24, 2010.
f. On March 30, 2010, the Pro Se Clerk notified Plaintiff that it was received on March 26, 2010.
 Appellant received the DOCKETING NOTICE dated April 12, 2010 from the U. S. Court of Appeals, which contained the case docket #10–1251.
 Appellant mailed the Acknowledgment and Notice of Appearance form immediately upon receipt.  There is no date on the form.
 The due date for the Brief of Appellant has not been specified by the Court of Appeals.
  The appeal is from the JUDGMENT and ORDER OF DISMISSAL issued on February 22, 2010, by Judge Koeltl of the U. S. District Court.

B. THE ISSUES

 Appellant sued Defendants under 42 U.S.C. §1983 for damages for deprivation of rights.
 42 U.S.C. §1983 reads:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

14. Judge Koeltl dismissed the claim and awarded expenses of $123.56 to defendants based on two issues (Koeltl Order & Judgment of 2/22/10):
a. The DVD video shows irrefutable evidence that the police committed no violation
b. Police have immunity from prosecution.

C. DVD VIDEO DESCRIPTION OF EVENTS
15. The video timeline is:
Real    DVD
Time,  Time,
h:m     m:s
0:06  Police blue shield appears.
12:49  0:25 Lieutenant Wolf announces that he is on the bullhorn.
0:40 Demonstrators ordered to clear the steps and sidewalk   or be arrested.
0:50 Plaintiff is seen standing behind the sitting demonstrators.

 1:38 Another picture of Plaintiff standing behind the sitting demonstrators.
12:51  2:25 Picture of standing demonstrators with pedestrians moving by unobstructed.
    2:43 The sitting demonstrators ordered to leave the staircase or be arrested for disorderly conduct.  Plaintiff is not in the picture.
    2:53 Plaintiff is shown standing behind the sitting demonstrators who are ordered to leave or be arrested.  Nobody has been arrested yet.
    3:05 Plaintiff is shown standing at the head of the standing demonstrators
12:52  3:19 & 3:37: Pedestrians are escorted by the police through the sitting demonstrators.
3:45 First sitting demonstrators taken into custody.
4:05 Plaintiff is not in the picture.

12:53     4:22 Plaintiff is not among the sitting demonstrators.
    5:07 Warning that if you do not want to be arrested, clear the stairs now.  Plaintiff is not in the picture.
12:54     5:14 Warning is given by police  that all sitting demonstrators will be arrested.
12:55     6:29 Warning that remaining sitting demonstrators must clear the steps now or be arrested also.
12:56     7:22 Plaintiff is shown standing alone well behind the sitting demonstrators.  A police officer is standing right behind the sitting demonstrators.
    7:28 There is a full shot of the Plaintiff holding signs, but not making body movement or saying anything.  Pedestrian traffic is not blocked.
    7:34 A pedestrian walks by Plaintiff unimpeded.
    7:54 There is a free flow of pedestrian traffic  through the last several sitting demonstrators.
12:58     9:06 There is shot of the last 6 sitting demonstrators.  Plaintiff is not in the picture.
    11:00 Last sitting demonstrator is removed. 
    11:10 Sidewalk and stairs are cleared.  Pedestrians walk by.
    11:19 Police Approach standing Plaintiff.
13:00     11:25 There is conversation between the police officer and Plaintiff that is not audible (presumably deleted from the video).
    11:33 Another police officer joins the first police officer and Plaintiff.
    11:39 Plaintiff falls down for no apparent reason (sound has been deleted from the video).
    11:47 A woman approaches Plaintiff (who identified herself as a nurse, but this statement is not on the video).
    11:50 A pedestrian easily passes Plaintiff, who is still on the ground motionless.
    11:56 Five police officers (one in plain clothes) around Plaintiff.  One says to call 911.
    12:00 Another police officer approaches.
    12:06 The plain clothes officer leaves.
13:01 12:31 Police call for a carry detail.
    12:41 Nurse asks the police why Plaintiff is being arrested.  It appears that Plaintiff is unconscious.
    12:50 There are about 5 police officers near Plaintiff.  The sound track is muffled.

    12:52, First sitting demonstrators taken into custody
    12:53–12:55: Warning that if you do not want to be arrested, clear the stairs now.  Plaintiff is not in the picture.  Warning is given by police  that all sitting demonstrators will be arrested.  Warning that remaining sitting demonstrators must clear the steps now or be arrested also.
    12:56: Plaintiff is shown standing alone well behind the sitting demonstrators. A police officer is standing right behind the sitting demonstrators.  There is a full shot of the Plaintiff holding signs, but not making body movement or saying anything.  Pedestrian traffic is not blocked.  A pedestrian walks by Plaintiff unimpeded.
    12:59: Last sitting demonstrator is removed.  Sidewalk and stairs are cleared.  Pedestrians walk by.
    13:00: There is conversation between the police officer and Plaintiff that is not audible (presumably deleted from the video) Another police officer joins the first police officer and Plaintiff.  Plaintiff falls down for no apparent reason (sound has been deleted from the video).  A woman approaches Plaintiff (who identified herself as a nurse, but this statement is not on the video).
    13:01: Police call for a carry detail.  Nurse asks the police why Plaintiff is being arrested.  It appears that Plaintiff is unconscious. There are about 5 police officers near Plaintiff.  The sound track is muffled.
13:03     
    13:38 There is a muffled conversation.
    13:49 Plaintiff informs police that he has a permit to be there.
    14:03 Plaintiff reads Amendment I from his pocket U. S. Constitution.
    14:30 Plaintiff warns police that if arrested, they will be sued.
    14:36 Plaintiff lies down again.
    14:44 Plaintiff voices vociferous objection.
    14:48 Police start dragging Plaintiff away.
    14:54 Officer says that Plaintiff should be charged with resisting arrest.
    16:00 Six police officers carry Plaintiff away.
13:05 16:25 A police officer announces that the time is 13:05 (1:05 pm)
    17:08 Officer Rivera announce that the demonstration is concluded.

D. MISSING PART OF VIDEO

    It is apparent that the video has been tampered, since part of the sound track is muffled.
In addition a section has been deleted.  The missing part is described in Plaintiff’s description of events, written on the following day (Heicklen, RESPONSE MEMORANDUM OF LAW TO REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT, October 19, 2009; Exhibit B (see Reproduced Record).
    Several rabbis sat on the stairs and blocked the stairs. The other demonstrators were told to move back, and did so. Plaintiff moved back 13 feet, the others much farther back, so that there was a 22-foot separation between them and Plaintiff. The rabbis were arrested one or two at a time.
After their arrests, there was no one in front of Plaintiff for at least 40 feet or behind him for at least 22 feet. He was standing alone next to the chain railing 8 feet from the Isaiah wall. The police approached him and asked him to move back with the other demonstrators, 22 feet behind him. He refused saying that he was not bothering anyone.
     The police repeated that he must move or be arrested. He insisted that he had the right to be there, and that an arrest could result in a law suit. The police then put Plaintiff under arrest and reached for him. He went limp. He fell to the ground and lay still and uttered no sound.
     A woman approached Plaintiff, introduced herself as a nurse, and asked if he was alright. He did not answer at first. She pleaded with the police that he was an old man and that they should not arrest him. After some pleading the police agreed on the condition that Plaintiff would leave this location.
     Plaintiff sat up, assured the woman that he was OK and stood up. He told the police that he would not leave, that he had a permit to be there. He read to the police officers Amendment I from his pocket U. S. Constitution.
     The police said that Plaintiff would be arrested. He asked for what reason, and was told for refusing to obey the order of a law enforcement official.  Plaintiff again went limp and fell to the ground.
     From then until in his cell at the police station for some time, Plaintiff did not move a muscle or utter any sound. When on the ground, the police lifted and dragged Plaintiff to the police wagon, carried him into the wagon, and carried him into a cell at police headquarters.  He was placed in a holding cell at Police headquarters and did not move a muscle or utter any sound until approached by medics from the fire department.
    As far as Plaintiff could tell, no-one except the police officers were anywhere in his vicinity at the time of the confrontation and arrest. He is unaware that anyone else was arrested together with him.

E. JUDGE KOELTL’S VERSION OF EVENTS IN ORDER OF 2/22/10

    Judge Koeltl states: “A police officer using a loudspeaker (who identified himself as Lieutenant Wolf) ordered the group to leave the area and warned those who refused that they would be arrested.”
    This order was directed only to the demonstrators sitting on the stairs and not to any of the standing demonstrators behind them.  This was made clear by two subsequent announcements of the police at:
12:54 5:14 Warning is given by police that all sitting demonstrators will be arrested.
12:55 6:29 Warning that remaining sitting demonstrators must clear the steps now or be arrested also.
    Judge Koeltl states: “After the warnings, some of those in the group behind the rabbis, including members of the group behind the plaintiff, moved back and left the area, but the plaintiff remained standing behind the seated rabbis.”
    This statement of Judge Koeltl is false.  Before the arrests, the standing demonstrators, including Plaintiff who was in the group (not in front of it), were moved back 35 feet by the police.          They could not be seen from the street, so Plaintiff moved forward to 13 feet behind the rabbis.   The other demonstrators did not leave the area.  They remained, sang, blew rams’ horns, used electronic equipment, and blocked pedestrian traffic.  None of them were arrested.
    Judge Koeltl states: “When the police reached the plaintiff to arrest him, he went limp and fell to the ground.”
    This is an outright lie.  The police did not approach plaintiff to arrest him, but to order him to move back with the other standing demonstrators (deleted from the video).  Plaintiff refused on First Amendment grounds.  The police then placed him under arrest (twice).  When Plaintiff asked on what grounds, the only reason given was for failure to obey an order of the police. No mention was made of any of the other charges in the deposition.  Plaintiff was the only standing demonstrator arrested, even though the others were congregated, causing a public nuisance, and blocking pedestrian traffic.
    Later in his memorandum, Judge Koeltl admits that plaintiff was not arrested until after approached by the police.

Irrefutable Evidence
    Both the Judge and the Defendants claim that the video shows indisputable evidence.  Plaintiff disagrees for the following reasons.
 The video has been tampered as indicated by the fact that part of the sound has been muffled.
 In addition part of the video is missing as described in Plaintiff’s statement above.
 Witnesses, especially the nurse, can confirm that part of the video is missing.
 No place in the video is Plaintiff placed under arrest, yet he is dragged away by the police.  Obviously, something is missing.
 The police deposition by Defendant Toala states the time of arrest at 12:51 pm.  According to the video timeline, this would make Plaintiff the first arrestee. However the video shows him to be the last arrestee.
The Criminal Court of Manhattan formally dismissed and sealed the criminal case in the interests of justice on June 8, 2010.  The CERTIFICATE OF DISPOSITION is attached at the end of this brief.

G.  POLICE IMMUNITY ACCORDING TO JUDGE KOELTL

    Judge Koeltl states “In analyzing §1983 claims for false arrest, courts in this circuit generally look to the law of the state in which the arrest occurred. Davis v. Rodriguez, 364 F.3d 424, 433 & n.7 (2nd Cir. 2004).  In New York, probable cause is a complete defense to an action for false arrest. Burns v. City of New York, 791 N.Y.S.2d 851, 851 (App. Div. 2005).  Probable cause exists if the arresting officer had “information sufficient to support a reasonable belief that an offense has been committed’’ by the person to be arrested. Id. at 852.  In New York, a person is guilty of disorderly conduct when a person “congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.” N. Y. Penal Law.
    The officers had no belief at all that an offense had been committed.  Plaintiff was not congregating with other people.  He was standing alone.  None of the standing people who were congregating were arrested or even approached.  Plaintiff was not arrested for failure to disperse, which would have been impossible, but for failure to obey an unlawful order of the police.  Plaintiff asserted his First Amendment rights to peaceably protest and read the First Amendment of the U. S. Constitution to the police officers.
    Judge Koeltl further states:  “In this case, the police gave several orders for the plaintiff and others to disperse from the stairs and walkway in front of the Isaiah Wall.  
This statement is not true.  The video shows an announcement at 5:07 video time: “Warning that if you do not want to be arrested, clear the stairs now.”  This announcement made it clear that the order did not apply to the standing demonstrators, and none of the other standing demonstrators were arrested.
Judge Koeltl further states that Lieutenant Wolf then advises the crowd that they are under arrest for refusing to leave the area.  This is not true.
    At 2:43 video time, the sitting demonstrators were ordered to leave the staircase or be arrested for disorderly conduct. Plaintiff is not in the picture.  Judge Koeltl admits this when he quotes the video at 5:00-5:13 “If you do not want to be arrested you are going to have to clear the stairs now.  This is not going to wait until we get to you.”
Plaintiff was never on the stairs.
    Subsequent announcements by the police made it clear that the order applied only to demonstrators sitting on the stairs. No standing demonstrator was ever threatened to be arrested for congregating, and none was.  Plaintiff was not a congregant when placed under arrest.

H.  PLAINTIFF’S ARGUMENT FOR DENYING IMMUNITY

    Several court decisions have stated that police do not have immunity if they know, or should have known, that no legal reason existed for their actions. (See Heicklen, RESPONSE MEMORANDUM OF LAW TO REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT, October 19, 2009 (Reproduced Record)
     It is not Plaintiff's responsibility to dispute that Officer Toala is entitled to qualified immunity. It is incumbent on Defendants to prove that he is entitled to immunity beyond any possible doubt (not reasonable doubt).
    It is not the responsibility of the moved party (Plaintiff) to dispute anything. The moving party (Defendants) must prove that Defendant Toala has qualified immunity beyond any doubt. Close to doubt does not prevail [Anderson v. Creighton, 483 U.S. 635 at 644 (1987); Jenkins v. City of New York, 478 F.3d at 87, 2d Cir. (2007)].
    Defendants argue that Officer Toala is entitled to qualified immunity, because officers of reasonable competence could have decided that there was probable cause for arrest.
This is equivalent to letting the chickens guard the fox.
    For a moving party to get a judgment during discovery, it must prove its case beyond any doubt. Asserting it is not proof.
The moved party does not have to prove anything.
    In support of their assertion, the Defendants quote Zellner v. Summerlin, 494 F.3d 344, 369 (2nd Cir. 2007).
In Zellner v. Summerlin, a truck tried to enter a driveway and was blocked temporarily by Zellner.
Zellner was arrested and charged with disorderly conduct
Later all charges were dropped.
    Zellner sued the police in the U. S. District Court of Eastern New York for false arrest, malicious prosecution, and use of excessive force.
The jury found in favor of Zellner and awarded him and his codefendant compensatory damages of $80,000 plus attorney costs plus punitive damages of $5500.
The police challenged the jury decision as a matter of law.
    The District Court judge ruled that the police were entitled to qualified immunity on the grounds that their behavior was reasonable based on the situation.
A new final decision was made by the District Court judge to dismiss all of Zellner's claims.
     Zellner appealed to the U. S. Court of Appeals for the 2nd Circuit.
The Court of Appeals found the District Court to be in error on probable cause, but upheld the decision in regard to excessive force.
The Court of Appeals concluded that "Zellner is also entitled to recover costs, including reasonable attorney fee, in connection with the portion of this appeal as to which he is the prevailing party, the amount is to be determined by the district court."

This case is interesting for three reasons:

Reason 1
This case was sited by Cardozo and McCann to show that the police were entitled to immunity.
The Court of Appeals decided that the police are not entitled to immunity for violation of First Amendment rights, thus disproving Defendants' claim. (How dumb can Cardozo and McCann get?)
Reason 2
It is distressing that the District Court judge overturned the jury's decision.
 If the trial judge can overrule a jury, what is the point of having a jury trial?
The jury has the duty to judge the law as well as the facts (see Exhibit D of Heicklen, Memorandum of Law, October 10, 2009, in the Reproduced Record).
This decision of the District Court judge to overrule the jury's decision shows the Courts' contempt of the jury system.
It also illustrates that the courts are in collusion with the police to protect them in their criminal activities. If this becomes common it is the end of constitutional government
 That District Court judge should be removed from the judiciary.
Reason 3
The Court of Appeals Opinion discussed some critical issues.
The District Court Judge stated:
"If this occurred and the jury finds that it occurred the way the plaintiff says it occurred, there is no immunity."
"It is the law, because the factual dispute here, the factual dispute has to be resolved before there can be a finding of whether or not there is qualified immunity."
The court explained, inter alia, that 'probable cause exists when the facts and circumstances within the knowledge of the police officers at the time the arrest was made were sufficient to warrant a person of reasonable prudence to believe that a violation or a crime has been committed by the person arrested.'"
    In his charge to the jury, the District Court Judge stated:
"The arrest at issue must have been made...on probable cause. Also, resisting arrest does not accordance with the law. Namely, that it was based require that the person being arrested use force or violence. It is enough if he engages in his conduct with the intent of preventing the officer from effecting the authorized arrest of himself. Accordingly, on the issue of the alleged Constitutional violation, making an unlawful arrest for disorderly conduct or resisting arrest, if you determine that there was no probable cause to arrest plaintiff on either of those charges [and that defendants' actions were a proximate cause of injury to Zellner], your verdict will be in favor of the plaintiff and against the defendants, as to the Federal Section 1983 false arrest cause of action. However, if you determine that . . . there was probable cause to arrest plaintiff for either disorderly conduct or resisting arrest, then the arrest would be lawful and your verdict must be in favor of the defendants with regard to the charge of false arrest."
    The Court of Appeals further stated that:
"Once the jury has resolved any disputed facts that are material to the qualified immunity issue, the ultimate determination of whether the officer's conduct was objectively reasonable is to be made by the court."
    The Court further stated that:
"Qualified immunity is an affirmative defense. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). [B]ecause qualified immunity is an affirmative defense, it is incumbent upon the defendant to plead, and adequately develop, a qualified immunity defense during pretrial proceedings so that the trial court can determine . . . which facts material to the qualified immunity defense must be presented to the jury to determine its applicability once the case has gone to trial."Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995) (emphasis added). To the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to request that the jury be asked the pertinent question. See, e.g., id. If the defendant does not make such a request, he is not entitled to have the court, in lieu of the jury, make the needed factual finding. See, e.g., Kerman, 374 F.3d at 120; see also Warren, 906 F.2d at 76 ("the jury should decide these issues on special interrogatories") quoting Anderson v. Creighton, 483 U.S. at 641).""Arguable' probable cause" must "not be misunderstood to mean 'almost' probable cause." Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). The essential inquiry in determining whether qualified immunity is available to an officer accused of false arrest is whether it was objectively reasonable for the officer to conclude that probable cause existed.  See Anderson[ v. Creighton], 483 U.S. at 644 . . . There should be no doubt that probable cause remains the relevant standard.  If officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close does not immunize the officer. Jenkins v. City of New York, 478 F.3d at 87 (emphasis added)"
In summary close to probable cause does not immunize the officer. The question is who is to decide probable cause? Some Court decisions say that the Court should decide and some say that other police officers should decide

Plaintiff objects to both methods and prefers that the jury make the decision.

 To let other police officers make the decision is absurd. They would always support their fellow officers (This is known among police as the blue wall of silence.)
Preferable to other police officers making the decision is to have the trial judge make the decision. However there is a difficulty here as shown in Zellner's case. The police and judges are in criminal collusion and cannot be trusted to make honest decisions.
The best solution, in Plaintiff's view, is to have an impartial jury make the decision.

 Zellner further states:

"Thus a court may grant a motion for judgment as a matter of law 'only if it can conclude that, with credibility assessments made against the moving party, a reasonable juror would have been compelled to accept the view of the moving party.'"
"The Standard for Judgment as a Matter of Law in considering a motion for judgment as a matter of law, the district court must draw all reasonable inferences in favor of the non-moving party, and it may not make credibility determinations or weigh the evidence. . . .""Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." . . . "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (emphases ours). Thus, a court may grant a motion for judgment as a matter of law "only if it can conclude that, with credibility assessments made against the moving party and all inferences drawn against the moving party, a reasonable juror would have been compelled to accept the view of the moving party." Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993) (emphasis added). In ruling on a such motion, the court must bear in mind that the jury is free to believe part and disbelieve part of any witness's testimony. See, e.g., Fiacco v. City of Rensselaer, 783 F.2d 319, 325 (2d Cir. 1986), cert. denied, 480 U.S. 922 (1987); see also Haywood v. Koehler, 78 F.3d 101, 105 (2d Cir. 1996) (jurors are "free to accept bits of testimony from several witnesses and to make reasonable inferences from whatever testimony they credit[]"). Incontrovertible evidence relied on by the moving party, such as a relevant videotape whose accuracy is unchallenged, should be credited by the court on such a motion if it so utterly discredits the opposing party's version that no reasonable juror could fail to believe the version advanced by the moving party. See Scott v. Harris, 127 S. Ct. 1769, 1775-76 (2007) (so holding with respect to proceedings on summary judgment); see generally Reeves, 530 U.S. at 150 ("the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that 'the inquiry under each is the same'" (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-51)). The court is not permitted to find as a fact a proposition that is contrary to a finding made by the jury. See, e.g., Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988) (court "cannot . . . substitute its judgment for that of the jury" (internal quotation marks omitted)); see also Leblanc-Sternberg v.Fletcher, 67 F.3d 412, 430 (2d Cir. 1995) ("In ruling on the motion by [one codefendant] for judgment as a matter of law, . . . the court was required to view the evidence in the light most favorable to the [individual] plaintiffs"; "whatever its own view of the facts may have been, the court was not entitled to substitute its view for adequately supported findings that were implicit in the jury's verdict" against another defendant cert. denied, 518 U.S. 1017 (1996). Nor is the court permitted to make findings on factual questions not submitted to the jury where those findings take the evidence in the light most favorable to the moving party, rather than the opposing party. See, e.g., Kerman, 374 F.3d at 120."
    In the present case, defendants seek to defend the district court's decision granting them qualified immunity as a matter of law by asserting that they had actual or arguable probable cause to arrest Zellner (a) for disorderly conduct in violation of N.Y. Penal Law § 240.20(5), as charged, and (b) for other violations not charged, to wit, disorderly conduct in violation of subsections (6) and (7) of § 240.20 and obstructing the troopers' functioning in violation of Penal Law § 195.05. We conclude, applying the above principles. that the record does not support qualified immunity on any of these bases."

I. RESPONDEAT SUPERIOR

Respondiat Superior is a centuries old common law legal doctrine that an employer is responsible for employee actions undertaken during the course of their employment.
In 3 cases in 2004 this court added the requirement of personal involvement (Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 2004; Patterson v. County of Oneida, 375 F.3d 206 (2d Cir. 2004; Feingold v. New York, 366 F.3d 138 (2d Cir. 2004)
Judge Wood of the U. S. District Court of the Southern District of New York, states that two reasons to hold respondeat superior responsible are: “creating a policy or custom under which constitutional practices occurred” or “ the defendant was grossly negligent in supervising subordinates who committed the wrongful acts.” (ORDER of Judge Kimba Wood, Original Complaint, U. S. District Court, S. D. N. Y., Docket # CV 02457, March 11, 2008; see Reproduced Record)
Judge Koeltl states that “Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §1983.” Back v. Hastings on Hudson Union Free Sch, Dist, 365 F.3d 107, 122 (2nd Cir. 2004) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2nd Cir. 1977); See also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009).”
Appellant claims that Commissioner Kelly, the respondeat superior, either was aware of procedures in his jurisdictions and approved or permitted them; or, if not aware, he was negligent in performing his supervisory duties.
It is inconceivable that the respondeat superior was not aware of the flagrant violations of his employees. In any event, the facts of the matter are for a jury, not a judge, to decide.  That is what juries do.
Appellant expects to prove either complicity or negligence of respondeat superior if he gets the opportunity to question witnesses in front of a jury.
Additional opinions are given in Reproduced Record J. Heicklen  RESPONSE MEMORANDUM OF LAW TO REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT, 10-19-2009 (see Reproduced Record)
It is not required of the moved party (Plaintiff) to support his allegations or lack thereof. It is required that the movant prove beyond any doubt that Defendant Kelly was not involved [Conley v. Gibson, 355 U.S. 41 (1957)]. Almost no doubt does not qualify [Anderson v. Creighton, 483 U.S. 635 at 644 (1987); Jenkins v. City of New York, 478 F.3d at 87, 2d
Plaintiff's claim that Defendant Kelly was involved are based on both the specific actions of the police at the incident and because of repeated general behavior of the police.
Specific actions of the police
The demonstration was publicized widely well in advance. It was covered by all types of media and received worldwide coverage.
It was organized by Rabbi Avi Weiss, one of the most highly respected rabbis in the U. S.
It is clear that the arrests were well orchestrated in advance. Present were many police officers, including those from the Patrol Boro Manhattan South Task Force and legal advisors.
The rabbis congregated on the stairs and gave speeches without police interference.
The rabbis sat on the stairs and were ordered to move several times before being placed under arrest.
After the arrests, a John Doe Officer announced on a bullhorn that the demonstration was over.  It is not the prerogative of the police to end a peaceful demonstration.
Plaintiff alleges that this would not have been done without Commissioner Kelly's permission.
In order to end the demonstration the police had moved all the standing demonstrators 35 feet back, so that they could not be seen from the street.
None of the standing demonstrators, except Plaintiff, were arrested.
Plaintiff originally had moved back 35 feet with the other standing demonstrators, but when he realized that he could not be seen from the street, he moved forward 22 feet, but still 13 feet behind the sitting demonstrators.
Plaintiff was ordered to move back with the other standing demonstrators or be arrested. After some discussion with the police, he was placed "under arrest."
J. FEDERAL  LAW  AND  RIGHTS
93. Several of Appellant’s federal rights were violated.  These are:
The right to peaceably assemble guaranteed by Amendment I of the U. S. Constitution.
 “In suits at common law...the right of trial by jury shall be preserved” as guaranteed by Amendment VII of the U. S. Constitution.
Amendment XIV, Sec 1 of the U. S. Constitution states: “nor shall any State deprive any person of life, liberty, or property without due process of law.”
 Petitioner was kidnapped by the police (a federal offense: 18  U.S.C. § 1201), but was not able to recover damages or receive justice in the New York State courts.
K.  BAD  FAITH
The defendants lied about the facts.  They submitted a tampered video, which conflicts with the police deposition.
Judge Koeltl lied about the facts.  He did not know what they were.  
The purpose of a court is to let the jury determine the facts.  Plaintiff has been denied this constitutional right.
Judge Koeltl never pretended to provide a fair trial.  He never required defendants to provide discovery.  He accepted the Defendants statements as factually true, even though they lied continually about them.
Judge Koeltl claims that the tampered video shows irrefutable proof of the innocence of the police.  Actually the tampered tape shows irrefutable proof that Plaintiff was never placed under arrest (this part of the incident was deleted from the tape), but was kidnapped by the police.
 Plaintiff was denied a jury trial as required by the U. S. Constitution

L. IMPORTANCE  OF  THIS  CASE

    This case is not just about an isolated incident of police and judicial malpractice.  It is representative of the widespread and ongoing abuse of citizens by the New York City Police and the New York City and State courts.
    Incidents that Appellant witnessed in these courts involving people who had neither the mental nor financial means to protect themselves were disturbing.  These abuses must be stopped.
    Furthermore this case is about hate, particularly the hatred of Jews, which is now widespread in the United States and around the world.  The police were trying to terminate a peaceful demonstration against the President of Iran.
    The President of Iran is the modern day reincarnation of Adolph Hitler.  He believes the Muslims are the master race, that the state of Israel should be obliterated, and the Jews removed therefrom. He addressed the UN General Assembly several times, where he advocated the destruction of Israel.

M.  MOTIONS (RELIEF  SOUGHT)

    Appellant moves that the Circuit Court reverse the decision of the District Court and order the District Court to proceed promptly with trial.
Appellant moves Judge Koeltl be recused from trying this case and a new judge be appointed.

N.  AFFIDAVIT OF APPELLANT

    I, Appellant Julian Heicklen, do affirm, under penalty of perjury, that the above is true and correct to the best of my knowledge.

______________________
Julian Heicklen
Appellant

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Date

O. CERTIFICATE OF SERVICE

    This certifies, under penalty of perjury, that a copy of APPELLANT’S
BRIEF for Court of Appeals docket # 09–1474–cv [District Court SDNY case #09 Civ. 1442 (HB)] have been sent by certified legal U. S. mail to the following on July 2, 2009:

Michael A. Cardozo
Corporation Counsel
The City of New York
100 Church Street
New York, NY 10007
212–788–0861

Max McCann
Assistant Corporation Counsel
The City of New York
Law Department
100 Church Street
New York, NY 10007

____________________
Julian Heicklen, Appellant
Counsel pro se
 7334 Rutland Avenue
Teaneck, NJ 07666
814–880–9308


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Date