UNITED STATES COURT OF APPEALS: SECOND CIRCUIT  

 Julian Heicklen
 Appellant
                                                                                                                               Court of Appeals Docket # 09–1474–cv
                                                                     District Court SDNY Complaint:
                                                                        #09 Civ. 1442 (HB)
v.    
   District Court SD 
                                                               case #09 CV 1442(HB)
United States District Court
Southern  District of New York
500 Pearl Street
New York, NY 10007
212–805–0136
Appellee 

        In re Julian Heicklen
               Plaintiff  

v.
                                                                                                                                 
        Robert M. Morgenthau
        District Attorney
        New York County
            et al.
           Defendants

APPELLANT’S  BRIEF  IN  SUPPORT  OF  APPEAL

_____________________
Julian Heicklen, Appellant
Counsel, pro se
734 Rutland Avenue
Teaneck, NJ 07666
Telephone: 814–880–9308


________________
Date
    
TABLE  OF  CONTENTS   

                                                                                                                 Page
A.  JURISDICTION ..........................................................................................4
B.  THE  ISSUES...............................................................................................5
C.  DESCRIPTION  OF  EVENTS...................................................................6
D.  DECISION  OF  JUDGE  BAER................................................................8
E.  IMMUNITY..................................................................................................9
F.  RESPONDEATI  SUPERIOR....................................................................10
G.  FEDERAL  LAW  AND  RIGHTS............................................................12
H.  BAD  FAITH...............................................................................................12
I. IMPORTANCE  OF  THIS  CASE...............................................................13
J.  MOTIONS (RELIEF  SOUGHT)................................................................14
K. CONTENTS OF APPENDIX.....................................................................14

TABLE  OF  AUTHORITIES

A. Federal Rule 27 and Form 2.............................................................................4
B. Huminski v. Corsones et al. 396 F.3d  53 (2d Cir. 2005).................................9
C. New York State Criminal Procedure Law Rules CPLR 5704(a).....................8
D. 18  U.S.C. §1201...........................................................................................12
E. 28 U.S.C. §1291...............................................................................................5
F. 42 U. S. C. §1983..............................................................................4, 5, and 8
G. U. S. Constitution............................................................................4, 9, and 12

A.  JURISDICTION

    1. Jurisdiction rules are listed in FEDERAL RULES  OF  CIVIL PROCEDURE  WITH FORMS  DECEMBER 1, 2006.
    2. 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. “
    3. 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.
    4. 12 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,...”
    5. 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.
    6.  The U. S. Courts of Appeals have jurisdiction to hear appeals from final decisions of U. S. District Courts  (28 U.S.C. §1291).
    7. The sequence of events for filing the  NOTICE OF APPEAL  was:
a. The District Court ORDER OF DISMISSAL was signed February 18, 2009.
b. It was mailed by the District Court on March 4, 2009
c. It was received by Appellant on March 23, 2009.
d.  Appellant mailed the NOTICE OF APPEAL on March 27, 2009.
e. It was received by the District Court on March 30, 2009.
    8. The Brief of Appellant is due by June 22, 2009, mailed on June 15, 2009.
    9. The appeal is from a final order of the U. S. District Court

B.  THE  ISSUES

    10. Appellant sued Defendants under 42 U.S.C. §1983 for damages for deprivation of rights.
    11. 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.
    12. Appellant is not challenging this law, which he considers to be sound.  He supports this law.
    13. Appellant claims that declaratory relief was unavailable to him.
    14. Therefore the immunity clause in 42 U.S.C. §1983 is not applicable.

C.  DESCRIPTION  OF  THE  EVENTS

    15.  A seizure by the police is often described by four terms, all of which mean different things.  These are:
a. Legal arrest occurs when one is seized by police for violating a law or ordinance, or there is imminent danger of his doing so.
b. Illegal arrest occurs when one is seized by police because they believe a person is violating a law or ordinance, or there is imminent danger of his doing so, but a court of law decides otherwise.
c. False arrest is a term used by the legal profession for illegal arrest.  The intent is to obfuscate the description of the event.  There is no such thing as a false arrest.  The term is an oxymoron.  If one is seized by the police, there is nothing false about it.
d. Kidnapping occurs when a person is seized by the police or any other entity without any legal reason.
    16. Appellant was seized by the police for failing to obey an order by a law enforcement official.  No other reason was given at the time of seizure.  Of course this is a ridiculous reason.  If Appellant were ordered by a police officer to jump off of a cliff and refused to do so, should he be arrested?  If a police officer orders a woman to have sex with him, and she refuses, is this a reason for arrest?
    17. Appellant was not committed at arraignment nor at any other time.  See the unsigned arraignment document in the Reproduced Record.
    18.  Appellant was not indicted by a grand jury. No Grand Jury was impaneled.
    19. Appellant notified the Criminal Court of Manhattan that he would not appear for a court date, which he had voluntarily accepted, because the Court did not respond to any of his inquiries nor provide a reason for the meeting.
    20. A bench warrant for the arrest of Appellant was issued by the Criminal Court of Manhattan (hearsay evidence).
    21. Appellant mistakenly submitted $210.00 to the Criminal Court of Manhattan to initiate a proceeding to have the bench warrant removed.  The Court refused to return the money (an act of theft).
    22. Appellant attempted to get the bench warrant removed by filing a Request for Judicial Intervention (RJI) with the Supreme Court  of  the State of New York, New York County-Civil Branch.
    23. The Supreme Court of  the State of New York, New York County-Civil Branch
denied the RJI, without reading it, on the grounds that no cause for action was given.  See ORDER of Judge Lehner in the reproduced record.  In fact 15 causes of action were given by Appellant. (See the Reproduced Record.)
    24. The Supreme Court of the State of New  York, Appellate Division: First Department denied a Request for Leave of Appeal because it was deemed an application pursuant to CPLR 5704(a) [appealing from ex parte order. No appeal lies, but order (or refusal to sign order) can be reviewed on motion.]
    25. Appellant filed claims with the New York City Comptroller against the police, the Criminal Court of Manhattan, and the two branches of the Supreme Court of the State of New York.
    26. The Comptroller’s office assigned claim numbers, but then proceeded to ignore the complaints. (See Correspondence with Comptroller’s Office in the Reproduced Record.)
    27. Items 22–26 are documented in the Reproduced Record submitted with District Court Complaint #09 Civ. 1442 (HB).
    28. A case against the police currently is in progress in the U. S. District Court [08 CV 02457 (JGK)].
    29. The District Court dismissed the case being appealed [Case #09 Civ. 1442 (HB)].

D.  DECISION  OF  JUDGE  BAER

    30. Judge Baer did not consider, or even refer to, any of the claims made in Appellant’s PETITION FOR DAMAGES FOR DEPRIVATION OF RIGHTS.
    31. Judge Baer referred to the OPINION by Judge Kimba Wood in District Court S.D.N.Y. Case #08 Civ. 2457 (KMW) (See Appendix).  
    32. Three reasons were given by Judge Wood for dismissal.  These are:
a. Some of the Defendants are exempt because of the immunity clause in 42 U.S.C. §1983.
b. Some of the Defendants are exempt because they are respondeati superior.
c. Some of the Defendants are exempt because they did not violate a federal law or right.

E.  IMMUNITY

    33. In all but one of the court cases regarding judicial immunity discussed by Judge Wood, declaratory relief was available, so that the immunity clause was applicable for those cases.
    34.  The case of Huminski v. Corsones et al. 396 F.3d 53 (2d Cir. 2005) was the one case where the immunity clause was relevant.  Judge Nancy Corsones ordered Scott Huminski to remove his motor vehicle from the court parking lot during a case in progress because of signs on the vehicle.  
    35. Huminski argued that this violated his rights under the First Amendment of the U. S. Constitution.  
    36. Judge Corsones enforced her decision immediately, so that Huminski had no recourse to judicial review and lost his rights.
    37.  Huminski sued Corsones.  The U. S. District Court ruled in Huminski’s favor, because it decided that Corsones had acted in her executive capacity, not her judicial capacity.
    38. On appeal, the U. S. Circuit Court concluded that Judge Corsones had acted in her judicial capacity and reversed the decision.
    39.  Both courts were in error.  It is irrelevant in which capacity Judge Corsones was acting.
    40.  The issue, which neither court considered, was the availability of judicial relief.
    41. Judicial relief was not available to Huminski.  He should have received a favorable judgment.  He was denied justice.
    42.  Appellant is not challenging the law, of which he approves.
    43. Appellant is arguing that he did not have the opportunity of judicial relief, and therefore the immunity clause is not operative.
    44. Presumably the Defendants will argue that judicial relief was available, and the immunity clause is operative.
    45.  This will be a dispute of fact, not of law.
    46.  It is not a judge’s prerogative to decide facts.  That is the duty of the jury.
    47. Furthermore another reason for a judge not to decide the facts in this case is that judges have an enormous conflict of interest.

F.  RESPONDEATI  SUPERIOR

    48. Four of the Defendants are respondeati superior.  These are Robert M. Morgenthau, District Attorney, New York County; William C. Thompson, Jr., Comptroller, Comptroller’s Office of New York City; Honorable Eileen Koretz, Supervising Judge, Criminal Court, New York County; and Jacqueline W. Silbermann, Administrative Judge, New York State Supreme Court, New York County-Civil Branch, 1st Judicial District.    
    49.  Ordinarily respondeati superior are not liable for prosecution because of improper actions of their subordinates, unless they have directly contributed to the improprieties.  In this case all four respondeati superior  are liable.
    28.  The Assistant District Attorney at the arraignment attempted to strike a deal with the Appellant, if the Appellant would agree not to sue the police.
    50.  It is the duty of the District Attorney to prosecute crime, not to defend the criminal actions of police officers.
    51. No Assistant District Attorney would take such action if it were not department policy.
    52. The Comptroller’s office assigned case numbers to three complaints that Appellant filed, but dismissed a fourth case for lack of jurisdiction.  Two different employees  (Michael Aaronson and Yvonne Roman) responded to the complaints.  Neither signed the correspondence. (See Correspondence with Comptroller’s Office in the Reproduced Record.)
    53. Appellant never heard from them again concerning the outcome of the complaints.  Obviously, the Comptroller’s office is under instructions to ignore complaints and let them die, so as to discourage victims from filing court cases.
    54. Instead of helping victims solve their problems, the Comptroller’s office is part of the network to deny justice to victims.
    55. The Chief Judges of the two courts certainly must be aware of how their courts are operating, and have done nothing to remedy the outrages perpetrated by the courts on litigants.
    56.  If the Chief Judges are not aware, they have been criminally negligent in their duties.
    57. Again, Appellant  emphasizes that he is not challenging the law.
    58. Appellant is arguing the facts.  It is the duty of the jury, not a judge to decide the facts.
    59. If Appellant is wrong, a jury will exonerate the Defendants.

G. FEDERAL  LAW  AND  RIGHTS

    60. Several of Petitioner’s federal rights were violated.  These are:
a. The right to peaceably assemble guaranteed by Amendment I of the U. S. Constitution.
b. The right “.... of the people to be secure in their persons...and no Warrants shall issue, but upon probable cause” as guaranteed by Amendment IV of the U. S. Constitution.  An arrest warrant was issued against petitioner when he was neither committed nor indicted for any crime.
c. “In suits at common law...the right of trial by jury shall be preserved” as guaranteed by Amendment VII of the U. S. Constitution.
d. “Excessive bail shall not be required” as guaranteed by amendment VIII of the U. S. Constitution.  Since Appellant was not committed nor indicted, the bail of $210 was excessive—theft actually, since it cannot be recovered.
e. 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.”
f. 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.
        61. It is the duty of the Comptroller’s and District Attorneys’ offices, as well as the courts to protect citizens from misconduct of the police, not to aid and abet them.  All the Defendants named in the instant court case are accessories to the crime, because they did not discharge their duties, but instead acted to defend the criminal actions of the police.

H.  BAD  FAITH

    62.  Judge Baer stated in his decision that an appeal by Appellant would be in bad faith.
    63. Appellant agrees that bad faith was exhibited here by Judge Baer, not the Appellant.
    64. Furthermore Judge Baer threatened Appellant that refiling matters that have been dismissed may result in the imposition of sanctions.
    65.  It is outrageous for a court of law to threaten a litigant for exercising his legal rights.
    66.  Both Judge Baer and Judge Wood (see Appendix: case #08 Civ. 2457) have threatened Appellant.  They must be recused from trying the instant case.

I. IMPORTANCE  OF  THIS  CASE

    67.  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.
    68. 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.
    69.  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.         70. 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.

J.  MOTIONS (RELIEF  SOUGHT)

    71.  Appellant moves that the Circuit Court reverse the decision of the District Court and order the District Court to proceed promptly with trial.
    72. Appellant moves that both Judges Baer and Wood be recused from trying this case.

K. CONTENTS  OF  APPENDIX

A. ORDER OF DISMISSAL of U. S. District Court Case 09 CIV 1442 (HB)
B. ORDER of U. S. District Court case 08 CV 02457 (KMW)
C. Complaint: U. S. District Court Case 09 Civ. 1442 (HB)

CERTIFICATE OF SERVICE

    This certifies, under penalty of perjury,  that a copy of PLAINTIFF’S  BRIEF  AND APPENDIX IN  SUPPORT  OF  APPEAL 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 June 15, 2009:

J. Michael McMahon
Clerk of Court
U. S. District Court for Southern New York
500 Pearl Street, NY 10007
Telephone 1-212-805-0136


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



___________________
Date