UNITED STATES DISTRICT COURT FOR THE SOUTHERN  DISTRICT OF NEW YORK

Julian Heicklen
Plaintiff

v. 
District Court Case #
08 CV 02457 (JGK)
Jason Toala
Police Officer Shield 27613

John Does 1, 2, and 3
Arresting Police Officers
Patrol Boro Manhattan South Task Force,

Raymond Kelly
New York City Police Commissioner

RESPONSE MEMORANDUM OF LAW TO REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT


_____________________
Julian Heicklen, Plaintiff
Counsel, Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
Telephone: 814-880-9308


________________
Date


CONTENTS
Page
INTRODUCTION_________________________________________________________________________________________3

THE VIDEO TIMELINE__________________________________________________________________________________3

POINT I: PLAINTIFF CANNOT STATE A CLAIM FOR PURPORTED VIOLATIONS OF NEW YORK PENALLA_____8

POINT II.  PLAINTIFF  FAILS  TO  SUFFICIENTLY  ALLEGE  THAT DEFENDANTS COMMISSIONER KELLY WAS PERSONALLY INVOLVED IN HIS ARREST________________________________________________________________9

POINT III: THERE WAS PROBABLE CAUSE FOR PLAINTIFF'S ARREST_____________________________________14

POINT IV: PLAINTIFF FAILS TO DISPUTE THAT OFFICER TOALA IS ENTITLED TO QUALIFIED______________20

CONCLUSION_________________________________________________________________________________________29

AFFIDAVIT OF PLAINTIFF_____________________________________________________________________________30

CERTIFICATE OF SERVICE_____________________________________________________________________________31

EXHIBITS_____________________________________________________________________________________________32

INTRODUCTION

1. The Defense is asking for dismissal of the case based on the video evidence and the REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT of September 18, 2009.
2. Before responding to this, Plaintiff reminds the Judge that he may not rule on the facts.  That is the duty of the jury.
3. Furthermore during discovery the movant must prove his contentions BEYOND ANY DOUBT.  CLOSE TO BEYOND ANY DOUBT IS NOT GOOD ENOUGH.

THE VIDEO TIMELINE
4. The video timeline is:
   
0:06 Police blue shield appears.
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.
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
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.
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.
5:14 Warning is given by police  that all sitting demonstrators will be arrested.
6:29 Warning that remaining sitting demonstrators must clear the steps now or be arrested also.
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.
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.
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.
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.
13:24 Plaintiff starts to rise.
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.
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.

5. The video has some interesting features:

a. Some of the sound track is muffled, and some is missing.
b. Nowhere in the video is Plaintiff placed under arrest.
c. An old man falls to the ground and is motionless and speechless.  The normal reaction is to assume that he has had a stroke or heart attack.  An ambulance should be called   At 11:56 one police officer suggests calling 911, but his suggestion is ignored.
d. Only the sitting demonstrators were arrested.  No standing demonstrators were arrested.  Plaintiff was never sitting at any time during the demonstration, but he was singled out for arrest.
e. At 14:54 an officer says that Plaintiff should be charged with resisting arrest.  This is a remarkable statement, since Plaintiff cannot be resisting arrest, if he has not been placed under arrest.
f.  In any event a person lying on the ground who is motionless and speechless cannot be resisting arrest.  He may be unconscious or dead.

6. Perhaps this can be clarified if we examine Officer Toala's deposition, which is Exhibit A.  The deposition states:

a. Deponent Toala states that he placed the Plaintiff under arrest  (not detention) for several listed crimes by Plaintiff at or about 12:51 hours.
b. At 16:25 on the tape, a police officer announces the time to be 1:05 pm.  
c. Thus Plaintiff was placed under "arrest" 14 minutes earlier, or at 2:25 on the tape time.  There is no possibility of this being true.
d.  Either Deponent Toala is mistaken (lying) or a significant part of the tape is missing.
e. It would not be surprising if Deponent Toala is lying, since every other allegation in the deposition is false.  However there seems to be no logical reason for Deponent Toala to lie about the time of "arrest."
f. We must conclude that part of the video is missing.

7. Let us examine the reasons given for arrest in the deposition.

a. "Deponent observed the defendant lying/sitting on the floor at the above location on the steps and sidewalk." This does not occur in the video until after police officers apprehended Plaintiff.
b. "blocking the normal flow of pedestrian traffic and obstructing pedestrian traffic as follows: pedestrians had to walk around the defendant and pedestrians were unable to access stairs and access to the above location." This never occurs anywhere in the video.
c. Defendants conduct created a public disturbance/inconvenience in that it caused a crowd to gather, disruption of the normal flow of traffic, and people to express alarm." None of this occurs in the video when Plaintiff is standing alone.  It only happens after he is accosted and surrounded by police.  The police caused the public disturbance, and are the ones who should have been arrested.
d. "Deponent further states that when he was placing the defendant under arrest for the offense(s) describe above defendant (sic) the defendant laid on the steps and refused to stand up and place defendant's hands behind defendant's back." Even if this were true, it cannot be a cause of arrest, since it would have happened after Plaintiff was placed under arrest.

8. Some of the sound in the video is missing.  The missing part is described in Plaintiff's attached statement (Exhibit B), which was written on April 18, 2007, immediately after arriving home from the arraignment hearing. It was updated on April 19, 2007, (two days after the incident) at 4:55 pm, just after Plaintiff returned from taking measurements at the scene of the incident. The typographical errors in the original have not been corrected to preserve authenticity.
 9. Plaintiff's statement points out that the unintelligible sound on the video was the point at which Plaintiff was placed under arrest two times. (The police had rescinded the first notice of arrest.)
10. Plaintiff asked the reason for the arrest and was told for failing to obey an order of the police. No other reason was given.
11. Then Plaintiff fell to the ground for the second time. He remained motionless and mute until the medics approached him in the cell at police headquarters.
12. Plaintiff's statement provides a somewhat different view of events. In particular, when Plaintiff asked the police officers why he was being placed under arrest, the only reason given was for refusing to obey the order of a law enforcement official.
13. This is not a legitimate cause for arrest. If officers told Plaintiff to jump off a cliff, and he refused, would the refusal be a cause of arrest?
14. Any dispute about the facts must be resolved by the jury, not by a judge nor either litigant's counsels.

POINT I: PLAINTIFF CANNOT STATE A CLAIM FOR PURPORTED VIOLATIONS OF NEW YORK PENAL LAW

14. Defendants claim that Plaintiff has attempted to state a claim against defendants for alleged infractions of New York State Penal Law. 15. This statement is false.
16. Plaintiff has charged Defendants in his complaint for violation of his Constitutional rights under Amendments I and XIV of the U. S. Constitution.
17. In several documents Plaintiff also claims that Defendants have violated numerous New York State penal laws. These are:

a Kidnapping by Defendants Toala, Commissioner Kelly, and several John Doe police officers Section 135.25 P2(d) Kidnapping in the first degree
b Reckless endangerment by Officer Toala, Section 120.15 Menacing in the third degree
c. Ordered to commit a crime by Officer Toala, New York Penal Code: Section 1.05 General purposes 1. To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests;
d. Perjury by Officer Toala, and Counsels McCann and Cardozo. TITLE 18 > PART I > CHAPTER 79 > § 1621 (1)
e.  Obstruction of justice by Defendants Toala and Kelly, Counsels Cardozo and McCann, Judge Koeltl, and Clerks of the U. S. District Court McMahon and Marmolejos; Section 1.05 General purposes
f. Tampering with the video by deleting critical parts by Defendants Toala and Kelly and other unnamed police personnel. New York Penal Code: Section 1.05 General Purposes 1. To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests
g. Theft of demonstration signs by arresting police officers and other unnamed police personnel; New York Penal Code: Section 155.05 Larceny (1)

18. Defendants point out that in Luckett v. Bure, the case was dismissed because no federal law violation was invoked.
19. However New York State laws are not the basis for the present civil suit.
20. The basis for the civil suit is violation of Amendments I and XIV of the U. S. Constitution.
21. The New York State laws indicate how Plaintiff's First Amendment rights were violated.

POINT II. PLAINTIFF FAILS TO SUFFICIENTLY ALLEGE THAT DEFENDANTS COMMISSIONER KELLY WAS PERSONALLY INVOLVED IN HIS ARREST

22. 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 Cir. (2007)]
23. 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
24. The demonstration was publicized widely well in advance. It was covered by all types of media and received worldwide coverage.
25. It was organized by Rabbi Avi Weiss, one of the most highly respected rabbis in the U. S.
26. 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.
27. The rabbis congregated on the stairs and gave speeches without police interference.
28. The rabbis sat on the stairs and were ordered to move several times before being placed under arrest.
29. After the arrests, a John Doe Officer announced on a bullhorn that the demonstration was over.
30. It is not the prerogative of the police to end a peaceful demonstration.
31. Plaintiff alleges that this would not have been done without Commissioner Kelly's permission.
32. 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. 33. None of the standing demonstrators, except Plaintiff, were arrested.
34. 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.
35. 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."

General criminal behavior of police
36. The New York City Police probably are the largest criminal syndicate in the United States.
37. They commit homicide (Exhibits C1-C9), sodomize arrestees (Exhibits C10-C11), rape (Exhibits 12 & 13), commit robbery (Exhibit C14), assault (Exhibits C15-C17), theft (Exhibit C18 & C22), false detainments (Exhibits C19 & C23), reckless endangerment (Exhibit C20), use excessive force (Exhibit C21), distribute illegal narcotics (Exhibit C19 & C22), and harass innocent citizens (Exhibit C23).
38. Bernard Kerick, Police Commissioner of New York City from 2000-2001 during the Guliani "law and order"administration, committed several crimes. In 2006, Kerik pled guilty to two unrelated ethics violations after an investigation by the Bronx District Attorney's Office, and was ordered to pay $221,000. A grand jury issued a multi-count indictment on November 8, 2007 alleging conspiracy, mail fraud, wire fraud and lying to the Internal Revenue Service.
39. As far as Plaintiff knows, the New York City Police have not published their narcotic inventories recently, which is suspicion that some narcotics are currently missing. Other police departments, as well as U. S. border guards, have been implicated in the illegal narcotics trade.

Burden of Proof
40. During discovery, the burden of proof is on the moving party. The moved party is not obligated to prove anything until trial.
41. At the present time, Plaintiff admits that he has not proved his allegation, but he is not required to do so during discovery.
42. Cardozo and McCann argue that Plaintiff's claim that Defendant Kelly was involved is insufficient to state a claim for which relief may be granted. They argue that Plaintiff fails to plead sufficient facts to allege that defendant Kelly was personally involved. They site Goldstein et al. v. Pataki et al., 516 F.3d 50 (2d Cir. 2008) as a reference.
43. Goldstein et al. made an eminent domain claim.  It involved a question of law, not of facts.
44. There was a public hearing, not a trial, where the claims were a violation of Amendments V and XIV of the U. S. Constitution.
45. Plaintiffs claimed that their properties were taken improperly under eminent domain, because the "claims of public benefit are a pretext"to help the developer.
46. Plaintiffs sued in District Court. The District Court held that a pretext argument was a valid basis for a public-use challenge under Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005), but was not available here, because even if Plaintiffs could prove every allegation, a reasonable juror would not be able to conclude that the public use offered in the support of the Project were mere pretexts.
47. Plaintiffs conceded that the ESDC had at all times abided by the letter of the strict requirements of the state law.
48. A motion to dismiss was granted, accepting all factual allegations as true, and drawing all reasonable inferences in plaintiff's favor.
49. The Court quoted Conley v. Gibson, 355 U.S/ 41 (1957) that a complaint cannot be dismissed unless it appears that Plaintiff cannot prove it (127 S. Ct. at 1968-quoting Conley,355 U. S. at 45,46).
50. At trial, the District Court decided that the claim could not be proved and dismissed the case. (Heicklen's comment: This is a distressing statement. The Court is usurping the prerogative of the jury to make that decision.)
51. The Circuit Court of Appeals upheld the decision of the District Court.
Conclusion
52. It is not incumbent on the moved party to prove or even substantiate a claim during discovery.
53. It is incumbent on the movant to disprove the claim beyond any doubt.
54. The Defendants in the present case have not done this, or even offered an argument in its favor.

POINT III: THERE WAS PROBABLE CAUSE FOR PLAINTIFF'S ARREST

 55. On Page 3 of Cardozo and McCann, they state that "Plaintiff also argues that police officers did not have probable cause to arrest him because 'he had read Amendment I of the U. S. Constitution to the police officers, so that they were well aware that they were violating his constitutional rights.'"
56. Again Cardozo and McCann misstate Plaintiff's position. The police were not violating Plaintiff's Constitutional rights because he read them anything.
57. They were violating his rights if he had said nothing at all. Plaintiff was just informing them of that fact, so that they would be aware of it, and not be able to declare immunity.
58. Cardozo and McCann further state: "Here plaintiff erroneously assumes that his subjective determination as to the scope of his constitutional rights is the standard by which probable cause is judged."
59. They lied again. It is not Plaintiff's standard.  It is the standard established in Amendment I of the U. S. Constitution. Plaintiff understands English. Apparently Messrs. Cardozo and McCann do not.
60. Cardozo and McCann state that "In Startzell v. City of Philadelphia, Pennsylvania 533 F.3d 183, 204 (3d Cir. 2008), plaintiffs claimed that they could not be arrested for disorderly conduct because they were exercising their right to free speech."
61. However Plaintiffs Startzell et al. were not arrested for exercising their right to free speech, but for disorderly conduct, because they were interfering with and trying to break up a rally by a group which had a permit to be there. This is entirely different from the present case.
62. Startzell states: "The burden is on the City to demonstrate the constitutionality of its actions."
63. Startzell states: "Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions."
64. The Supreme Court reached similar conclusions in Cox v. Louisiana, 379 U. S. 536, 551 (1965) and Terminello, 337 U. S. at 5. In both cases the Court overturned convictions for 'breaching the peace' where state law defined that crime as encompassing, respectively, (1) 'to interrupt, to hinder, to disquiet,' and (2) 'speech that invites dispute"¦or create a disturbance."
65. Furthermore Parks, 195 F.3d at 652; see also Grace, 461, U. S. at 180 stating that government "may not by its own ipse dixit destroy the 'public forum' status of streets and parks which have historically been public forums"
66. Carey v. Brown, 447 U. S. 455, 460 (1980) states: "Streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely."
67. On page 4, Cardozo and McCann lied again when they stated: "Instead they issued a lawful order to disperse to a crowd that, by plaintiff's own admission, was blocking traffic."
68. First it is impossible to disperse to a crowd. This is an oxymoron.
69. Second, Plaintiff was ordered to congregate with the crowd which was blocking pedestrian traffic.
70. An order to join a crowd that is committing a crime cannot be lawful. Another oxymoron.
71. Messrs. Cardozo and McCann further state: "Further , it is undisputed that Plaintiff refused to comply with an order to disperse."
72. Another lie. Plaintiff certainly does dispute that he was ordered to disperse. He was ordered to congregate.
73. Cardozo and McCann further state: "While Plaintiff does not contest the fact that he was part of a crowd that was ordered to disperse,"
74. Two more lies.
75. Plaintiff was not part of a crowd. He was standing alone.
76. The crowd was not ordered to disperse. It remained after Plaintiff was dragged away. Nobody in that crowd was arrested.
77. Messrs. Cardozo and McCann continue with "Plaintiff appears to argue that, once police have arrested all other individuals for refusing to disperse the last person remaining is protected from arrest." Another lie.
78. Plaintiff never argued any such thing. The police ordered the sitting demonstrators to stand or be arrested. The standing demonstrators were excluded from that order. Plaintiff was never sitting, and thus was not included in the arrest order to the sitting demonstrators.
79. Proof of this is that all the other standing demonstrators were blocking traffic, but were not arrested. Plaintiff's kidnapping was not part of a group arrest. It was a single isolated event.
80. Messrs. Cardozo and McCann state that: "Plaintiff appears to argue that once police have arrested all other individuals for refusing to disperse, the last person remaining is protected from arrest"Another lie.
81. Plaintiff never made such an argument, and would not do so. Plaintiff was not included in the arrest order to the sitting demonstrators.
82. Messrs. Cardozo and McCann argue that the relevant time to determine probable cause is when the arrest is ordered, not when the person is placed under arrest.
83. No law nor court opinion is given to support this contention, and Plaintiff does not know of any. If any exists, it is void on its face.
84. When arrested, not many people would know if the arrest were legal, illegal, or that they were being kidnapped. They would not know until they consulted an attorney, assuming that the attorney knows.
85. Even if they knew when arrested that it was illegal, how many old white men, or young black girls, would challenge 6 police officers, probably armed with guns and billy clubs? Plaintiff can name only one-himself.
86. In any event, Plaintiff challenged the "arrest"immediately when he was placed under "arrest"both times. It is certainly clear in the video that Plaintiff vociferously challenged the "arrest"order.
87. Messrs. Cardozo and McCann quote People v. Maher, 1137 Misc. 2d 162, 165 (N.Y. City Crim. Ct. 1987) "To be guilty of refusing a lawful order to disperse, a person must be congregating with others at the time the police order to disperse is ignored."
88. Though this statement could not be found in the 3d Cir. Court Order in People v. Maher, Plaintiff agrees with this statement. He was not congregating with others.
89. In support of Plaintiff's contention that there was no cause for his arrest, he cites Cox v. Louisiana, 379 U. S. 536, 551 (1965). In that case Cox was arrested for:

 "[t]he inflammatory manner in which he [Cox] addressed that crowd and and told them to go on up town, go to four places on the protest list, sit down and if they don't feed you, sit there for one hour." Cox was convicted on four counts. On appeal to the U. S. Supreme Court, the conviction was reversed because Court argued:"

"Our conclusion that the record does not support the contention that the students' cheering, clapping and singing constituted a breach of the peace is confirmed by the fact that these were not relied on as a basis for conviction by the trial judge, who, Rather, stated as his reason for convicting Cox of disturbing the peace that:"

"[i]t must be recognized to be inherently dangerous and a breach of the peace to bring 1,500 people, colored people, down in the predominantly white business district in the City of Baton Rouge and congregate across the street from the courthouse and sing songs as described to me by the defendant as the CORE national anthem carrying lines such as 'black and white together' and to urge those 1,500 people to descend upon our lunch counters and sit there until they are served. That has to be an inherent breach of the peace, and our statute 14:103.1 has made it so."

90. The U. S. Supreme Court's finding was :

"A statute which, upon its face and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment."

"For all these reasons, we hold that appellant's freedoms of speech and assembly, secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment, were denied by his conviction for disturbing the peace. The conviction on this charge cannot stand."

91. Certainly the police must know that, in view of this decision, a single man, standing alone on a public sidewalk without any body motions or saying anything at all cannot be obstructing traffic or disturbing the peace because he is holding signs.
92. It is impossible to believe that police officers from a special task force for crowd control who were well prepared for this demonstration could be ignorant of this, especially since they had legal counsel with them at the demonstration.
93. A justified cause of arrest is for resisting arrest. However the resistance must occur before the arrest (e.g. The police approach someone and he runs away.)
94. Once the person is placed under arrest, any resistance by the arrestee (such as punching the police officer) cannot be a cause for arrest. The person was already under arrest. Of course, he can be charged with assault.
95. For some time now, Plaintiff has wondered how Mr. McCann graduated law school and passed a bar exam. Now Plaintiff wonders how either Messrs. Cardozo or McCann graduated high school.
96. Plaintiff understands that attorneys are paid to lie, but he expected some subtlety.
97. Plaintiff's statement of the incident is Exhibit B. It was written on April 18, 2007, immediately after Plaintiff returned home from the arraignment. It was updated at 4:55 pm on April 19, 2007, immediately after Plaintiff returned home from measuring distances at the incident site. It still contains original typographical errors.

POINT IV: PLAINTIFF FAILS TO DISPUTE THAT OFFICER TOALA IS ENTITLED TO QUALIFIED IMMUNITY

98. Messrs. Cardozo and McCann told the truth again. They are on a run.
99. However, 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).
100. 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)].
101. Plaintiff supports police immunity when it is applicable.
102. Plaintiff was involved in a case in which he supported police immunity.
103. In 2005, the annual state governor's conference was held at Penn State University in State College, PA, where Plaintiff is an emeritus professor of chemistry.
104. The conference held a dinner meeting one night in the Hetzel Union Building.
105. Across the street was the Osmond Laboratory of Physics. It was locked at 5:00 pm, and everyone was denied permission to enter.
106. However before the building was locked a group of five students entered the building. Plaintiff was their faculty advisor.
107. They went onto a balcony facing the Hetzel Union Building with protest signs.
108. The police entered the building and told the students to leave.  The students told the police that they had permission to be there, but they had no written proof.
109. The police arrested them for trespassing. They were carried away and committed at arraignment.
110. At the preliminary hearing, the University official responsible for buildings admitted that he gave the students verbal permission to occupy the building during the time of arrest.
111. The district magistrate officiating at the preliminary hearing dismissed the case against the students.
112. The students wanted to sue the police.
113. Plaintiff and their attorney convinced them not to do this, because the police acted reasonably with the information at their disposal, and were entitled to immunity.
114. The present case does not meet that standard.
115. 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.
116. This is equivalent to letting the chickens guard the fox.
117. For a moving party to get a judgment during discovery, it must prove its case beyond any doubt. Asserting it is not proof.
118. The moved party does not have to prove anything.
119. In support of their assertion, the Defendants quote Zellner v. Summerlin, 494 F.3d 344, 369 (2nd Cir. 2007).
120. In Zellner v. Summerlin, a truck tried to enter a driveway and was blocked temporarily by Zellner.
121. Zellner was arrested and charged with disorderly conduct.
122. Later all charges were dropped.
123. Zellner sued the police in the U. S. District Court of Eastern New York for false arrest, malicious prosecution, and use of excessive force.
124. 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.
125. The police challenged the jury decision as a matter of law.
126. 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.
127. A new final decision was made by the District Court judge to dismiss all of Zellner's claims.
128. Zellner appealed to the U. S. Court of Appeals for the 2nd Circuit.
129. The Court of Appeals found the District Court to be in error on probable cause, but upheld the decision in regard to excessive force.
130. 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."
131. This case is interesting for three reasons:

Reason 1
132. This case was sited by Cardozo and McCann to show that the police were entitled to immunity.
133. 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
134. It is distressing that the District Court judge overturned the jury's decision.
134. If the trial judge can overrule a jury, what is the point of having a jury trial?
135. The jury has the duty to judge the law as well as the facts (see Exhibit D).
136. This decision of the District Court judge to overrule the jury's decision shows the Courts' contempt of the jury system.
137. It also illustrates that the courts are in collusion with the police to protect them in their criminal activities.
138. If this becomes common it is the end of constitutional government.
139. That District Court judge should be removed from the judiciary.

Reason 3
140. The Court of Appeals Opinion discussed some critical issues.
141. 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."

142. 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.'"
143. 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."

144. 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."

 145. 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)"
 
146. 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.
147. Plaintiff objects to both methods and prefers that the jury make the decision.
148. 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.)
149. 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.
150. The best solution, in Plaintiff's view, is to have an impartial jury make the decision.
151. 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 nonmoving 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."

 152. Later Zellner further states:

"4. The Record in the Present Case
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."
 
CONCLUSION

153. Defendants motion for summary judgment and damages must be denied for the following reasons:

a. Their Memorandum of law is a tissue of lies and misinterpretations of court decisions.
b. For dismissal the moving party must prove its case beyond any doubt. It has not done so.
c. The moved party does not have to prove anything.
d. If there is any uncertainty in the facts, they must be decided by the jury. The Court is prohibited from making this decision.
e. The Court cannot rule favorably on movant's motion until the facts are decided.
f. In any event, Judge Koeltl cannot make a decision, because he already has shown favoritism to Defendants and prejudice against Plaintiff. Plaintiff has filed COMPLAINTS OF JUDICIAL MISCONDUCT against Judge Koeltl with the U. S. Court of Appeals: 2nd district and the Committee on Professional Ethics of the New York State Bar Association Also he has filed criminal charges against Judge Koeltl with the U. S. Attorney. Judge Koeltl cannot make an unbiased decision.

AFFIDAVIT OF PLAINTIFF

I, Julian Heicklen, Plaintiff and Counsel Pro Se in U. S, District Court of the Southern District of New York Case #08 CV 02457 (JGK), in accordance with Local Civil Rule 56 (e)(2), do affirm, under penalty of perjury, that all information and allegations in this document entitled: RESPONSE MEMORANDUM OF LAW TO REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT, are true and correct to the best of my knowledge.

______________________
Julian Heicklen
Plaintiff
Counsel Pro Se

____________________
Date
CERTIFICATE OF SERVICE

This certifies under penalty of perjury that a copy of RESPONSE MEMORANDUM OF LAW TO REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT has been sent by legal certified U. S. mail to each of the following on October 19, 2009:

Pro Se Office
Room 230
U. S. District Court
Southern District of New York
U. S. Courthouse
500 Pearl Street
New York, NY 10007
Tel: 212-805-0136

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

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, Plaintiff
Counsel Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
814-880-9308

__________________
Date

EXHIBITS

EXHIBIT A: DEPOSITION OF DEFENDANT TOALA_______________________________________________________34
EXHIBIT B: PLAINTIFF'S STATEMENT O F THE INCIDENT ________________________________________________36
EXHIBIT C: CRIMES OF THE NEW YORK CITY POLICE___________________________________________________38
EXHIBIT D: THE JURY'S DUTY_________________________________________________________________________73