734 Rutland Avenue
Teaneck, NJ 07666
814–880–9308
jph13@psu.edu

March 25, 2011

James. L. Cott
U. S. Magistrate Judge
U. S. District Court of Injustice
Southern District of New York
500 Pearl Street
New York, NY 10007

Re: Julian Heicklen v. U. S. Department of Homeland Security Case #10 Civ. 2239 (RJH)(JLC)

Dear Judge Cott:

    I am responding to the MEMORANDUM OF LAW submitted by U. S. Assistant U. S. Attorney Pellegrino to dismiss the above referenced civil case.  This letter is only an initial response to outline my general position regarding the arguments presented by Mr. Pellegrino.  I have not yet had the opportunity to study all of the 97 court opinions, 9 statutes, 6 rules, and 2 regulations listed in his Table of Authorities.  I have a staff of several pro bono attorneys studying these references.
    The rules of court require that memoranda of law be written with numbered items of each individual point, so that reference can be made by number in a reply.  Mr. Pellegrino failed to do that, so it is cumbersome to reference items clearly.  Please have Mr. Pellegrino resubmit his MEMORANDUM OF LAW with numbered items, so that I can refer to his arguments with clarity.  However I have some initial comments.
    On page 1 of the MEMORANDUM, it is stated that: Plaintiff “has been going to the U. S. Courthouse located at 500 Pearl Street in New York, New York, to demonstrate and hand out pamphlets in behalf of the Fully Informed Jury Association (FIJA)."  There are two errors in this statement:

1. I did not demonstrate.
2. While at the time, I was a member of FIJA, I was not acting on behalf of FIJA.  I was never in the employ of FIJA, though many years ago, I was representing it in the state of Pennsylvania when I lived there.  The pamphlets were purchased from FIJA, but I was acting solely for myself and no-one else.
    Another error on page 1 is the statement: "...with the hopes of influencing potential or sitting jurors at the Courthouse."  I did not have the hopes of influencing jurors.  My aim was to educate anyone who passed me, the majority of whom were not potential or sitting jurors, since the judges lie to jurors.
    On page 2, Mr. Pellegrino is further in error when he states: ""In most cases Heicklen was then arrested or cited for knowingly violating 41 CFR, Sub-Section C, §102–74.415(c), which forbids the distribution of pamphlets on federal property without proper authorization."  I had proper authorization.  It is called Amendment I of the U. S. Constitution.  On more than one occasion, I showed this authorization to the federal protective service officers.  Subsequently the U. S. Attorney's office has acknowledged this, since it dismissed all the criminal charges against me for those violations in New York City.
    On page 3, Mr. Pellegrino again incorrectly states that I go to the federal courthouse at 500 Pearl Street in Manhattan to demonstrate.  I do not demonstrate.  I distribute literature to those persons willing to accept it.  I do not initiate conversations with passersby.
    In the last line of page 3, Mr. Pellegrino states that: "in violation of federal law."  Another inaccuracy!  There is no federal law.  It is a Department of Homeland Security regulation.  A regulation is not a law, which refers only to statutes enacted by Congress.    
    On page 4, Mr. Pellegrino states: "officers have transferred custody of Heicklen to medical personnel as an emotionally disturbed person."  The officers know that this is not true and have deliberately lied to the hospital personnel.  On other occasions the officers have informed the hospital staff that they found me lying on the ground, which was never the case.  When they approached me I always was standing up distributing literature.
    On page 4, Mr. Pellegrino admits that the officers stated: "You have been admitted as an emergency-status patient to Comprehensive Psychiatric Emergency Program for immediate observation, care and treatment."  Thus Mr. Pellegrino admits that the police deliberately lied to the hospital personnel, since they were well aware that I was not brought to the hospital for psychiatric care, but because I was exercising my Fifth Amendment right to remain silent.  I was brought to the hospital for purposes of torture, which the hospital personnel readily and enthusiastically rendered.
    Mr. Pellegrino then muddies the water by discussing the criminal complaint that I filed with the Office of the U. S. Attorney for purposes of presentment to a grand jury.  It has nothing to do with the civil case.  Mr. Pellegrino must know that.any discussion of my criminal complaint has no relevance to the civil complaint and is completely out-of-order.  Mr. Pellegrino should be subjected to disciplinary action for this behavior.  
    On page 6 at the bottom in footnote 5, Mr. Pellegrino states that the reference to Musumeci is incorrect, because Musumeci was a co-plaintiff.  However he is incorrect.  There are two Musumecis involved in this trial.  The other one is a fedral protective agent involved in some of the arrests.  My reference to Officer Musumeci at the top of the page is correct as it is written.
    Service of all defendants will be made when revised complaint is issued after all of the John Doe Defendants are identified.

Point I. On page 9, Defendants’ counsel argues that the court cannot review Plaintiff's criminal complaint.  Of course this is so.  The criminal complaint has nothing to do with the civil complaint, and there was never any intention that it did.  Plaintiff's criminal complaint was sent to the federal court and the U. S. Attorney with the intent that they convene a Grand Jury to obtain an indictment.  It is completely separate from the civil complaint.  It should not be included in the forthcoming revised MEMORANDUM OF LAW to be submitted by Mr. Pellegrino.  The criminal complaint is intended to be submitted to a Grand Jury for the purpose of a criminal indictment.

Point II. On pages 10–13, Plaintiff intends to drop the charges against the federal judiciary Defendants in the forthcoming revised complaint.  The U. S. Attorney need not include Point II in his revised response.

Point III. The U. S. Attorney argues that Secretary of the Department of Homeland Security Janet Napolitano should be dismissed as as a Defendant.  She has been included for two reasons:
1. As Head of the Department of Homeland Security, she is the entity that represents that Department.
2. She personally knowingly incorporated or permitted to be incorporated an unconstitutional regulation into the Department of Homeland Security Regulations.  Technically this makes her guilty of treason.  Because of this act of treason, Plaintiff was falsely arrested 10 times at the U. S. District Court of Injustice: Southern District of New York, once at the U. S. District Court of Injustice in Springfield, MA, and once at the U. S. District Court of Injustice in Newark, NJ.  On nine of these occasions, Plaintiff was taken to hospitals for the purpose of torture.

Point IV. On page 15, Mr. Pellegrino contends that the federal Defendants were not properly served.  In the forthcoming revised complaint, the federal Defendants will be served at the address provided by Mr. Pellegrino.

Point V. On page 17, the U. S. Attorney states: 'Plaintiff alleges that the Federal Defendants were "openly engaged in a conspiracy," Compl. Par.1.2, to deny Plaintiff his "liberty" by manhandling, harassing, and unlawfully restraining Plaintiff" as a beast for their own personal amusement or as a consequence of criminal negligence,"following Plaintiff's arrests for the incidents.  See Compl Par. 12.1.  Plaintiff goes on to state that he suffered a "humiliating series of abuses at the hands of rogue public servants that included being stripped naked, assaulted, forcibly drugged and paraded about as a lunatic in retribution for his right to freedom of speech." Id. Further, Plaintiff alleges that "[f]or the Homeland Security Officers, " the U. S. Government has an obligation to protect its citizens " from the abuse of rogue federal officials."id. Par. 12.2"
    These statements do not occur in Plaintiff's civil complaint.  The references to Par. 1.2, 12. 1, and 12.2 apparently refer to a criminal complaint separately submitted by Plaintiff, but is not a document in the civil case.  However the statement that the U. S. Attorney attributes to Par. 1.2 does not exist in the criminal complaint.

Point V, 1. The Law of Sovereign Immunity: The U. S. Attorney argues that 'It is axiomatic that the United States, "as sovereign, is immune from suit save as it consents to be sued."  United states v. Sherwood, 312 U. S. 584,586 (1941).  Accordingly, consent to suit is a prerequisite to the Court's subject matter jurisdiction over a claim against the united states, it agencies, or officials.  See F. D. I. C. v. Meyer, 510 U. S. 471, 75 (1994).  Sovereign immunity extends to the Department of Homeland Security, and its employees when sued in their official capacities..  See Robinson v. Overseas Military Sales Corp. 21 F.3d 502, 510 (2d Cir. 1994)'
    The U. S.  Attorney's argument, if true, is that U. S. Government employees' illegal acts are not subject to legal remedies.  If so, then an extra-legal solution must be employed, e. g.  assassination.  Through the cooperation of the Department of Homeland Security Police, I had the good fortune to spend 2 weeks in the Riker's Island Prison, where I made some new friends who would be quite willing to perform these assassinations.  My own opinion is that this would be excessive punishment.  I would prefer that an impartial jury makes the decision.
    Fortunately for Plaintiff, there is a legal fallacy in the U. S. Attorney’s argument, which is based solely on court decisions.  The U. S. Constitution, which happens to be the supreme law of the land, states in Article III, Section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;...to Controversies to which the United States may be a Party;”  
    As far as I know, the U. S. courts may interpret the U. S. Constitution where it is not specific, but the courts have no authority to amend the U. S. Constitution.  Therefore the court decisions regarding sovereignty are invalid.
    However, the main fallacy in the argument of the U. S. Attorney is that the U. S. Government is not sovereign.  In our country the people are sovereign.  The governments are servants of the people.  It is good to be king.

Point V, 2. a. Plaintiff has Sued the Wrong Defendant. The U. S. Attorney claims that I have sued the wrong defendants. The only proper defendant, according to the U. S. Attorney, is the United States.  I shall add the United States as a Defendant in the revised claim that I will submit after I learn the identities of all the John Doe Defendants.

Point V. 2. b. The Government Has Not Waived Sovereign Immunity for Constitutional torts: The U. S. Attorney is discussing a document that is not part of, nor been entered into, Plaintiff’s complaint.  This section is irrelevant to this case.

Point VI. A. Bivens Claims in General. The U. S. Attorney admits that “ In  Bivens, the supreme Court recognized a private right of action against federal officials in their individual capacitiies for alleged violations of certain Fourth Amendment constitutional rights.  The only Bivens remedy is a monetary damages award against the  individual defendant.”  Plaintiff has requested the following awards:

a. One hundred fifty thousand dollars ($150,000.00) for real damages.
b. Fifty million dollars ($50,000,000.00) for punitive damages.
c. Quash the statutory violations and citations.

The statutory violations and citations against Plaintiff for distributing literature in New York alrady have been dismissed by the U. S. Attorney on November 22, 2010 (Exhibit A).  Therefore point c above is moot.
    Point a and b are for monetary awards, which is consistent with Bivens.
    In the last paragraph of this section on page 22, the U. S. Attorney states: “individual Federal Defendants had a reasonable expectation that they were enforcing a constitutionally valid regulation.”  That statement is ridiculous on its face.  I doubt that the U. S. Attorney could find one person who has read the First Amendment that could make that claim.

Point VI. B. Defendants Did not Violate Plaintiff’s First Amendment Rights : The U. S. Attorney admitted to violating Plaintiff’s First Amendment rights when the criminal charges were dismissed.  He states in the first sentence that “Heicklen’s Complaint admits he knowingly and purposely violated the law...”  That statement is false on its face.  There was no law involved.  it was a federal regulation, which is not a law.  Only congress can enact a law.  Furthermore, in this section he refers to the criminal complaint, which is not part of the civil claims and was not introduced into this case by the Plaintiff.
    The statement by the U. S. Attorney on page 24 that: ‘The Code provision at issue is content neutral, and refers to all “pamphlets, handbills or flyers,” without regard to any political affiliation or the content of the message.’  If this were actually true, why would anyone need a permit?  The First Amendment to the U. S. Constitution states: “Congress shall make no law....”  What part of “No” is not understandable to attorneys?
    Furthermore the U. S. Attorney quotes the Supreme Court opinion which states that ...”the government may bar from its facilities certain speech that would disrupt the legitimate government purpose which the property has been dedicated.”  There is no other reason to distribute literature at a government facility except to  disrupt the government activity. The qualifier effectively bars all speech of interest.  

Point VI. C. Plaintiff Fails to State a Fourth amendment Bivens Claim fo Allegations Relating to His Post-Arrest Conduct: The U. S. Attorney states: “It is clear from the conduct detailed throughout the Complaint that the officers had probable casue to arrest Heicklen.”  This statement is blatantly false, since the U. S. Attorney dismissed all the charges against Plaintiff.

Point VI. C. 1. The Doctrine Qualified Immunity: The U. S. Attorney states: The doctrine of qualified immunity provides “that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
    Certainly a federal police officer should have known that the Department of Homeland Security regulations are in direct conflict with the First Amendment of the U. S. Constitution.
    Furthermore some of the discussion refers to the criminal complaint, which is irrelevant to the civil complaint.

Point VI. C. 2. Post Arrest, the Officers Are Protected by Qualified Immunity as Well:  After the arrests, the officers are obligated to bring the arrestee to a magistrate. Instead they sent Plaintiff to hospitals, lied to hospital staff about Plaintiff’s condition, and permitted (encouraged) hospital personnel to torture Plaintiff.  After an arrest they even threatened Plaintiff with hospital discomfort, if he did not obey their orders.  In any event, once the arrested person is in custody, the officers are responsible for his safety and treatment until an appearance before a magistrate.
    On page 30, last paragraph, the U. S. Attorney states: “Indeed the police, hospital officials, judicial officials, psychiatrists and doctors all were baffled by Heicklen’s bizarre behavior.”  Since when has the exercise of the Fifth Amendment right to remain silent considered bizarre behavior?  Also the U. S. Attorney continues to refer to the criminal complaint, which is not a part of the civil complaint, and is not relevant to the discussion.

    On page 31, the U. S. Attorney discusses Plaintiff’s “bizarre” behavior.  Of course Plaintiff is insane.  He thought that he could receive a fair and impartial trial in a U. S. federal court.  His behavior is irrelevant to the legal issues involved.  The inference from the U. S.  Attorney is that insane people are not entitled to equal justice under the law.  Since when?
    On page 31, the U. S. Attorney states: “The Fourth Amendment requires an official seizing and detaining a person for a psychiatric evaluation to have probable cause to believe that the person is dangerous to himself or others.”  How could a person who lies down, does not move a muscle, nor say a word be dangerous to anyone?  It is Mr. Pellegrino that needs the psychiatric exam!
    Furthermore the Fourth Amendment says no such thing.  Either Mr. Pellegrino has not read the Fourth Amendment or has no understanding of the English language.  Judge Kimba Wood has the same problem.  Why is it that law school changes normal good kids into fools?
    Furthermore the bizarre behavior is from the judges and attorneys. The inmates are running the asylum.  They have destroyed Plaintiff’s country.

Point VII. Plaintif’s Equitable Claims should be dismissed and Point VIII. Plaintiff Generally Fails to Post a Claim under Rule 12(b)(6). These discussions refer to the criminal complaint, which is not part of the civil case.  It was submitted to the U. S. Attorney and the court in order to obtain an indictment from a Grand Jury against the Department of Homeland Security, the New York City Fire Department, the hospitals and their personnel for engaging in criminal activities.
Immunity in General: The U. S. Attorney raises three immunity issues:
Personnel and departments of the U. S. Government acting in their official capacity are immune from suit.
The U. S. Government cannot be sued without its consent.
The U. S. Government has sovereign immunity.
    It is time to stop the foolishness and proceed with the trial.
The court should order all the defendant organizations to provide the Plaintiff the names, positions, particiapation, and service addresses for all the John Doe defendants.
Plaintiff will then prepare and submit a revised complaint to the Pro Se Clerk, who will prepare complaints suitable for service to the Defendants.
  Plaintiff will re-serve all the Defendants, except for the judiciary defendants.  Michael Bloomberg, as Mayor of New York City, and Barak Obama, as representative of the U. S. government, will be added as Defendants.
 The attorneys representing the Defendants will prepare and submit responses.  Court rules require that Memoranda of Law be double spaced and consist of single numbered arguments, so that the adversary can make easy and accurate reference to them.
  Plaintiff will submit a reply.
  Questioning of all witnesses, which will be in the presence of a person who can administer an oath, will occur, followed by jury selection and trial.
 The proper place to settle legal disputes is in the courts.  If this remedy is denied, then extra-legal solutions may be employed.  These may be excessive and very unpleasant.

Sincerely yours,


Julian Heicklen
Plaintiff
Counsel Pro Se

CERTIFICATE OF SERVICE

    Plaintiff certifies, under penalty of perjury, that PLAINTIFF’S REPLY TO MEMORANDUM OF LAW IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE RULE 12 was sent by certified U. S. mail on November 25, 2011, to the following:

James L. Cott, U. S. Magistrate Judge, U. S. District Court of Injustice, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007

Louis A. Pellegrino, Assistant U. S. Attorney, 86 Chambers Street, 3rd Floor, New York, NY 10007, 212–637–2689

Lesley Berson, Assistant Corporation Counsel, The City of New York, Law Department, 100 Church Street, New York, NY 10007, 202–788–0408

Elizabeth O’Brien Totten, Kaufman Borgeest & Ryan LLP, 120 Broadway, New York, NY 10271, 212–980–9600

Robert Drucker, Martin Clearwater & Bell LLP, 220 East 42nd Street, New York, NY, 10017, 212–916–0955

Pro Se Clerk, Room 230, U. S. District Court of Injustice, U. S. Courthouse, Southern District of New York, 500 Pearl Street, New York, NY 10007

Richard J. Holwell, U. S. District Judge, U. S. District Court of Injustice, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007

_____________________
Julian Heicklen
Plaintiff
Counsel Pro Se

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Date