UNITED STATES COURT OF APPEALS: SECOND CIRCUIT

Julian Heicklen
     Petitioner

            v.
Judicial Conduct Complaint
#10–90001–jm
Judge John G. Koeltl
United States District Court
Southern District of New York
U. S. Courthouse
500 Pearl Street
New York, NY 10007
212–805–0136
     Respondent



PETITION FOR REVIEW



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Julian Heicklen, Petitioner
Counsel Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
Telephone 814–880–0938


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Date

CONTENTS

Page
A. CIRCUIT COURT OPINION______________________________________________________________________________________3

B.  JUDGE KOELTL’S RULING_____________________________________________________________________________________4

C. PETITIONER’S REBUTTAL _____________________________________________________________________________________5

D. ALLOWABLE GROUNDS FOR DISMISSAL________________________________________________________________________8

E. CLAIMS______________________________________________________________________________________________________10

F. REMEDIES____________________________________________________________________________________________________10

G. DOCUMENTS SUBMITTED_____________________________________________________________________________________10

H.  AFFIDAVIT OF PETITIONER___________________________________________________________________________________10

A. CIRCUIT COURT OPINION

1. The U. S. Court of Appeals, 2nd Circuit Chief Judge dismissed the complaint because “the vast majority of alleged allegations in the complaint merely attack the correctness of the Judge’s various rulings and official actions.”  
2.  It is not the correctness of the rulings that Petitioner is attacking, but the fact that the judge rules differently for each party.
3. For example, the judge ordered Plaintiff to provide discovery, but refuses to order Defendants to supply discovery, even though the judge has stated that the Defendants are obligated to do so.
4. The dismissal also states that “The allegations of bias and conspiracy are wholly unsupported.”
5. The dismissal also states that “The Petitioner next moved to “close the pleadings” for some Defendants, because those Defendants had not answered the complaint.  The Judge denied the motion, explaining that he had previously extended the Defendants.”
6. The above two statements have nothing to do with each other.  The court rules state that a Defendant must respond to a summons within 30 days or judgment WILL (not may) be rendered against the Defendant.
7. Defendant Toala never responded.  Attorney McCann made an appearance for him on July 17, 2009, 3-1/2 months after the summons was received (March 2, 2009).

B. JUDGE  KOELTL’S RULING

8. Since Plaintiff’s complaint was submitted to the Circuit Court, Judge Koeltl has rendered a decision in favor of Defendants and dismissed the case.
9. In Judge Koeltl’s Memorandum, he states that summary judgment may not be granted unless “the pleadings, the discovery and discovery materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
10.  Judge Koeltl also states that “only disputed facts that might affect the outcome of the suit under the governing law will properly preclude the entry of a summary judgment.”
11.  He further states that: “A court may determine that there is no genuine dispute as to certain facts when one party’s version of the facts is ‘blatantly contradicted by the video evidence.’”
 12. Judge Koeltl states that the Plaintiff “offers no evidence showing that the video has been altered.”  This is a blatant lie.
13.  Judge Koeltl further states “Defendant Toala has qualified immunity in this case.”  Another lie.
14. However Judge Koeltl states that immunity only applies if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
15.  Judge Koeltl dismissed the complaint for two reasons:
a. The video shows incontrovertible evidence that the arrest was justified.
b. The police have immunity.

C. PETITIONER’S REBUTTAL    

16. Petitioner’s rebuttal occurs in two documents submitted to the District Court.  These are Letter of Plaintiff to Judge Koeltl of August 18, 2009, and Memorandum of Law of October 18, 2009.  Both are enclosed.

17. The Memorandum of Law contains the video time line which shows that at:
    
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.

18. It should be notice that:

0:40 Demonstrators ordered to clear the steps and sidewalk or be arrested.
0:50 Plaintiff is seen standing behind the sitting demonstrators.

2:43 The sitting demonstrators ordered to leave the staircase or be arrested for disorderly conduct. Plaintiff is not in the picture. Nor was he sitting or on the steps.
2:53 Plaintiff is shown standing behind the sitting demonstrators who are ordered to leave or be arrested. Nobody has been arrested yet.

The Plaintiff was never sitting or on the steps at any time.  Arrest order does not apply to Plaintiff.

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.

11:50 A pedestrian easily passes Plaintiff, who is still on the ground motionless.

19. After all the sitting demonstrators were arrested the police approached Plaintiff and ordered him to move back with the other demonstrators or be arrested.  Plaintiff is not under arrest at this point.  Plaintiff refuses and gets arrested.  This part of the video has been deleted.

20. It should be noticed that the video shows:

a. Plaintiff was never sitting nor on the stairs.
b. Only sitting demonstrators were arrested.
c. No other standing demonstrators were arrested even though they were  congregated, singing, using electronic equipment and rams’ horns, holding signs, as well as blocking pedestrian traffic.
d. Plaintiff was not blocking any traffic. In only one scene was a pedestrian passing Plaintiff, and that was without any difficulty.
e. Plaintiff was never placed under arrest in the video.  That part has been deleted from the video.
f. Plaintiff was “arrested” after all the sitting demonstrators had been removed.
g. The police did not approach Plaintiff until 11:19 above.

21. The arrest deposition is shown as Item 7 and Exhibit A in the Memorandum of Law.  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.  Plaintiff was never on the steps.

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.  It is an outright lie.

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 for arrest, since it would have happened after Plaintiff was placed under arrest.

22. There are many conflicts between the video and Police Officer Toala’s deposition.

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 since none of the sitting demonstrators has been taken into custody at this time.

 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 disagrees with the video evidence.  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.  Petitioner can provide witnesses to testify to this.

D. ALLOWABLE GROUNDS FOR DISMISSAL

23. RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS for the 2nd Circuit Rule 11(c)(1)
Allowable grounds. A complaint must be dismissed in whole or in part to the extent that the chief judge concludes that the complaint:
    
    “(A) alleges conduct that, even if true, is not prejudicial to the effective

 and

expeditious administration of the business of the courts and does not indicate a mental or physical disability resulting in inability to discharge the duties of judicial office;”

    The conduct is prejudicial to the effective and expeditious administration of the business of the courts, which is to try cases impartially and on their merits.  It does indicate a mental disability—the inability to understand the English language.


 “(B) is directly related to the merits of a decision or procedural ruling;” Discrepancies in several rulings are mentioned.  Dismissal of the case without a trial is hardly a procedural ruling.  Furthermore the allegation is not based only on discrepancy in rulings, but because the judge is mentally incompetent to understand the English language and is in collusion with the police to obstruct justice.

“(C) is frivolous;” The complaint is not frivolous because Plaintiff was not allowed to have a trial.

“(D) is based on allegations lacking sufficient evidence to raise an inference that misconduct has occurred or that a disability exists;”  The evidence is that the judge claimed irrefutable evidence when the two pieces of evidence were in direct conflict.  He also claimed that police Defendant Toala has immunity in direct conflict with U. S. Supreme Court decisions.  Furthermore the Judge ordered Plaintiff to produce discovery material, but refused to order Defendants to do so, even though the judge stated at least twice that Defendants were obligated to provide this information.

“(E) is based on allegations which are incapable of being established through investigation;”  Plaintiff certainly can establish the allegations if he can question witnesses.  Furthermore, he has already established that Deponent Toala committed perjury, and that the Defendants have submitted a tampered DVD video.

“(F) has been filed in the wrong circuit under Rule 7;”  Not applicable.

“(G)    is otherwise not appropriate for consideration under the Act.”  Not applicable.


E. CLAIMS

24. The Defendants have two pieces of evidence—the DVD video and the arrest deposition. They are in complete conflict with each other. Yet Judge Koeltl claims that they provide irrefutable evidence.
25. Judge Koeltl does not understand English.
26. Judge Koeltl is mentally incompetent.
27. Judge Koeltl does not adhere to U. S. Supreme Court decisions regarding police immunity.
28. Judge Koeltl is in criminal collusion with the Defendants to obstruct justice.

F. REMEDIES

29. The case should be returned to the District Court for trial.
30. Judge Koeltl should be recused and replaced with an honest, mentally competent Judge who understands English and follows Supreme Court rulings.
31. The new District judge should order Defendants to respond to Plaintiff’s interrogatories.
32. The Clerk of Court and pro se Clerk of the District Court should be ordered to respond promptly to Plaintiff’s request for information.
33. The new District judge should be ordered to submit a schedule for a speedy jury trial.  The schedule should include dates for responses to interrogatories, interviewing witnesses before trial, establishing jury selection procedures, convening a jury pool, selecting a jury, and setting a trial date.
34. Judge Koeltl should be removed from the bench and criminally prosecuted.
35. Petitioner demands a jury trial as required by Amendment VII of the U. S. Constitution.

G. DOCUMENTS SUBMITTED

36. Memorandum Opinion and Order of February 17, 2010  by Judge Koeltl
37. Letter of August 18, 2009, from Plaintiff to Judge Koeltl
38. Memorandum of Law of October 19, 2009, by Plaintiff

H.  AFFIDAVIT OF PETITIONER

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: PETITION FOR REVIEW are true and correct to the best of my knowledge.
______________________
Julian Heicklen, Petitioner
Counsel Pro Se

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Date