734 Rutland Avenue
Teaneck, NJ 07666
814 880 9308
August 18, 2009

Judge John G. Koeltl
U. S. District Court S.D.N.Y.
U. S. Courthouse
500 Pearl Street
New York, NY 10007

Re: District Court Case #08 CIV. 2457 (JGK)

Dear Judge Koeltl:

This is my response to Mr. McCann's motion to dismiss based on the DVD video.

A. IRREFUTABLE EVIDENCE

Mr. McCann claims that the video shows irrefutable evidence of my guilt. The American Heritage Dictionary of the English Language defines irrefutable as "impossible to refute or disprove; incontrovertible: irrefutable arguments; irrefutable evidence of guilt." I refute Mr. McCann's claim. Therefore the video is not irrefutable. This is a syllogism of Aristotle. It is a foundation of logical thinking. If you were a reasonable person, I could end this letter here, since my response is sufficient to discard Mr. McCann's claim. However I realize that logic has no standing in the law.

I am not the only person who disputes the McCann claim. The prosecuting Assistant District Attorney also believes that there was no evidence of my guilt. He offered to drop the charges and dismiss the case, if I promised not to get arrested in the next six months nor to sue the police. I refused this offer. He never convened a Grand Jury to indict me. He never entered an appearance with the Criminal Court of Manhattan.

Likewise the Criminal Court of Manhattan did not think that there was sufficient evidence to hold a trial. No judge entered the case. The Court ignored all my inquiries. In particular the Court ignored my request for a habeas corpus hearing; my request for the purpose of the June 20, 2007, hearing; and for the request that the Court order the Assistant District Attorney to impanel a Grand Jury. I never received any written correspondence from the Criminal Court of Manhattan, except for the unsigned arraignment documents. Presumably, the Court issued a bench warrant for my arrest. However no attempt was made to enforce that order It was purely cosmetic in order to protect the police in their criminal activities.

The nurse that came to my aid in the video did not believe that there was irrefutable evidence for my arrest, since she pleaded with the police not to arrest me.

Mr. McCann claims that the DVD video provides irrefutable evidence of my guilt. Nowhere in the video am I placed under arrest by the police. However the video does show the police dragging and carrying me away. I was incarcerated for a day. This constitutes kidnapping, or at least unlawful imprisonment.

B. DEFINITIONS OF KIDNAPPING
 
Kidnapping is defined (dictionary.thefreedictionary.com/Kidnapping) as "The crime of unlawfully seizing and carrying away a person by force or fraud, or seizing and detaining a person against his or her will with an intent to carry that person away at a later time."

New York State Law Article 135 states:

S 135.00 Unlawful imprisonment, kidnapping and custodial interference; definitions of terms.
The following definitions are applicable to this article:

1. "Restrain" means to restrict a person`s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined "without consent" when such is accomplished by
(a) physical force, intimidation or deception

 2. "Abduct" means to restrain a person with intent to prevent his liberation by either
(a) secreting or holding him in a place where he is not likely to be found. (I point out that my daughter could not find me until contacted later by the police.)
 

S 135.05 Unlawful imprisonment in the second degree.
A person is guilty of unlawful imprisonment in the second degree when he restrains another person. Unlawful imprisonment in the second degree is a class A misdemeanor.

S135.25 §2(d). Kidnapping in the first degree.
A person is guilty of kidnapping in the first degree when he abducts another person and when:

2. He restrains the person abducted for a period of more than twelve hours with intent to
(d) Interfere with the performance of a governmental or political function;

C. SPECIFIC RESPONSES TO MEMORANDUM OF LAW

Local Civil Rule 56.1 (a) states:

"Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion."

Since Mr. McCann failed to follow this rule, this is grounds for denial of the motion. However I have responded by referring to page numbers of his supporting document, instead of numbered paragraphs as requested in Local Civil Rule 56.1 (b).

On page 3, Mr. McCann states: "which plaintiff estimates was 35 feet behind the stairs were (sic) the rabbis had been seated." This and other distances reported by me were not estimates. Two days after the incident, (on April 19, 2007), I returned to the scene and measured all distances with a tape measure. In each case the distances reported were about 4 inches less than the actual distances measured, since I rounded down to the nearest foot, because that was the limit of accuracy.

On page 6, Mr. McCann argues that Commissioner Kelly was not personally involved in the arrest. I do not agree with that statement. My contention is that Commissioner Kelly was personally responsible for breaking up the demonstration. Several police officers were involved, so that this was not the random indiscretion of one or a few police officers. This demonstration had been well publicized many days before it occurred. Dozens of police officers had accompanied us from the Iranian embassy to the Isaiah Wall. Police Commissioner Kelly was well aware of this demonstration, and the police were acting under his orders, or at least under department policy. This issue was considered by Judge Baer, and he agreed to permit Commissioner Kelly to be a Defendant.

On page 8, the deposition states: "Probable cause exists when, based on the totality of circumstances, the officer has knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been, or is being committed by the person to be arrested." I had read Amendment I of the U. S. Constitution to the police officers, so that they were well aware that they were violating my constitutional rights. Furthermore they committed crimes by ordering me into a crowd (reckless endangerment) which was blocking pedestrian traffic.

On page 9, It is stated that a person is guilty of disorderly conduct when he "congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse." The police did not issue a lawful order. In fact the police did not order me to disperse. They ordered me to congregate.

The DVD video shows that I was not disrupting vehicular or pedestrian traffic, as alleged on page 9.

On page 10, the claim is made that I refused to obey 5 orders to disperse. I was never given an order to disperse. I was ordered to congregate. It would have been impossible to disperse, since I was standing alone.

Nowhere in the video was it shown that I was placed under arrest. The Memorandum of Law is a tissue of lies. Mr. McCann should be arrested and tried for perjury. At least, Mr. McCann should be found in Contempt of Court.

In addition, I inform you that the police have tampered with the DVD video. Some of the sound track has been erased.

D. LIMITATIONS OF JUDGES' PREROGATIVES

I remind you that I have requested a jury trial, so that it is not the prerogative of a judge to decide the facts. That is the duty of the jury. In support of this statement I quote several U. S. Court decisions. These are:

In Morissette v United States, 342 U. S. 246 (1952), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated: "Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter."

Likewise, the U. S. Supreme Court in Duncan v Louisiana, 391 U. S. 145 (1968), implicitly endorsed the policies behind nullification when it stated: "If the defendant preferred the common-sense judgment of the jury to the more tutored but less sympathetic reaction of the single judge, he was to have it."

U. S. Supreme Court Justice Byron White [Duncan v. Louisiana 391 U. S. 145, 156 (1968)] said: "The purpose of a jury is to guard against the exercise of arbitrary power, to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge."

In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the Court said: "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."

E. LOCAL CIVIL RULE 56
 
In accordance with Local Civil Rule 56 (e)(2), I affirm, under penalty of perjury, that all information provided in this letter is true and accurate to the best of my knowledge.

In accordance with Local Civil Rule 56 (g), I contend that the affidavit was submitted in bad faith, solely for the purpose of delay, and that it contains errors of fact known to Mr. McCann. The rule further states that "the court must order the submitting party to pay the reasonable expenses, including attorney fees, that it incurred as a result. An offending party or attorney may also be held in contempt."

I demand that Mr. McCann be found in contempt.

I consider this letter to end the request of Mr. McCann to dismiss this case based on the evidence of the DVD video.

Sincerely yours,


Julian Heicklen
Plaintiff
Counsel Pro Se

CC: Max McCann, Assistant Corporation Counsel, The City of New York, Law Department, 100 Church Street. New York, NY 10007
Pro Se Office, Room 230, U. S. District Court, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007