UNITED STATES COURT OF APPEALS: SECOND CIRCUIT

Julian Heicklen
    Appellant

    v.
Court of Appeals Docket: #10–1251-cv
District Court SDNY Complaint:
# 08 Civ. 2457 (JGK)
Jason Toala
Police Officer Shield 27613
Patrol Bureau Manhattan South Task Force
2523 W. 42nd Street
New York, NY 10036
212–760–8301

John Does 1, 2, and 3
Arresting Police Officers
Patrol Bureau Manhattan South Task Force
2523 W. 42nd Street
New York, NY 10036
212–760–8301

Raymond Kelly
New York City Police Commissioner
Police Headquarters
1 Police Plaza
New York, NY 10038
646–610–5000
    Appellees

APPELLANT’S REPLY TO APPELLEES’ RESPONSE
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Julian Heicklen, Appellant
Counsel Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
Telephone 814–880–0938

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TABLE OF CONTENTS
Page
A. TABLE OF AUTHORITIES..................................................3
B. TECHNICAL ERRORS IN APPELLEES’ RESPONSE......3
C. CRIMINAL CASE DISMISSED...........................................4
D. TAINTED EVIDENCE.........................................................4
E. LIES BY MR. SHORR..........................................................5
F. MISCONDUCT OF THE DEFENSE...................................8
G. MOTION...............................................................................9
H. PUBLIC DISCLOSURE......................................................9
I. AFFIDAVIT OF APPELLANT..........................................10
J. CERTIFICATE OF SERVICE...........................................11

A. TABLE OF AUTHORITIES

APPELLANT’S BRIEF IN SUPPORT OF APPEAL; pp. 3, 4, 7

APPELLEES’ BRIEF IN SUPPORT OF APPEAL; pp. 3, 4

APPENDIX TO APPELLANT’S BRIEF IN SUPPORT OF APPEAL; p. 8
 
FEDERAL RULES OF APPEAL PROCEDURE (FRAP) RULES 25, 28, 31, & 32: p. 3

U. S. CONSTITUTION, AMENDMENT 1; p.7

B. TECHNICAL ERRORS IN APPELLEES’ RESPONSE

Appellant has received a response dated November 9, 2010, from Scott Shorr, Senior Counsel, Appeals Division, The City of New York, Law Department, 100 Church Street, New York, NY 10007, to his bRIef in support of appeal.
There are numerous technical errors in Mr. Shorr’s response:
There is no Table of Contents as required by FRAP 28(a)(2)
There is no table of authorities as required by FRAP 28(a)(3
There was no cover page as required by FRAP 32(a)(2)
The first page is not red as required by FRAP 32(a)(2)
Caption of the case is not given as required by FRAP 32(a)(2)
The text is not double spaced as required by FRAP 32(a)(4)
The text statements are not numbered as required by FRAP ?? (could not locate the rule)
An appearance is given for Julie Steiner, but none for Scott Shorr as required by FRAP ?? (could not locate the rule)
No certificate of service is provided as required by FRAP 25(d)

    FRAP Rule 31(a)(1) requires a response time within 30 days of submission of Appellant’s brief.  Appellant’s brief was mailed on July 2, 2010.  Mr. Shorr’s RESPONSE is dated November 9, 2010, which is well over the 30 day limit.
    Appellant’s REPLY is dated December 16, 2010, which technically exceeds the 14 day reply time.  However Appellant was in California from November 5–15, 2010, and in Florida from November 25–December 11, 2010, so that he has responded in the 14 days available to him to prepare a REPLY.
    Furthermore, since Mr. Shorr has not made an appearance nor filed a RESPONSE on time, his RESPONSE is not admissible.  Appellant Heicklen is not required to reply at all.

C. CRIMINAL CASE DISMISSED

    All of the allegations in the police deposition were lies, as the video tape shows.
    The criminal case against Appellant Heicklen has been dismissed by the Criminal Court of New York in the interest of justice (Heicklen, Exhibit in Appellant’s Brief in Support of Appeal). The District Attorney of New York realized that there was no legitimate reason for Appellant Heicklen’s arrest on April 17, 2007.

D. TAINTED EVIDENCE

    The video submitted as evidence was tampered as proven by two facts:
Part of the sound track is muffled or missing.
The time of arrest given in the police deposition would place Appellant Heicklen as the first person arrested.  The video shows that he was the last person arrested.  The part of the video where Heicklen twice personally was placed “under arrest” has been deleted.

E. LIES BY MR. SHORR

    The first lie by Mr. Shorr appears in the third paragraph on page 2 of his letter where he states: “Among the protesters were approximately 25 rabbis, who sat on one step and the landing closest to the First Avenue sidewalk, blocking pedestrian traffic.”
 The rabbis were sitting on several steps and not on the landing, except where the landing was the top step.
     The second lie appears in paragraph 5 where he states: “Plaintiff stood on the stairway,..”  Heicklen is not on the stairway.  He is on the landing behind the rabbis.  Heicklen never stood on the stairway, and the video never shows him standing on the stairway.
     The third lie appears in the last paragraph on page 2. Mr Shorr states: “Pedestrians attempted to walk through the crowd of protesters assembled on the stairway and landings.”  The word attempted implies that the pedestrians were obstructed. That is not the case. Pedestrians walked through the standing demonstrators unobstructed.
     In the last paragraph on page 2, Mr Shorr agrees that Lieutenant Wolf is only arresting the demonstrators on the sidewalk staircase, not the standing demonstrators behind them.  Except for Heicklen, no standing demonstrator was arrested.  
     On the first paragraph on top of page 3, Mr. shorr states: “Among the protestors, plaintiff remained on the stairway,...”  Another lie.  Heicklen was never on the stairway occupied by the rabbis at any time.  For one thing there was no room left for any standing demonstrators.
     In the second paragraph on page 3, Mr. Shorr states correctly (strange as that may seem) that Lieutenant Wolf warned “‘the ones in the back’ that if you do not want to be arrested, you’re going to have to clear the stairs now.”  It applies only to the protesters (rabbis) who are sitting on the stairs.  Heicklen was 13 feet behind the stairs and was not included.
     Mr. Shorr lied again in the first paragraph under 2. Plaintiff’s Arrest, where he states: “...35 feet behind the landing where the rabbis had been seated.”
 The rabbis were not seated on a landing, but on the first set of stairs, which was separated by the second set of stairs by the landing.
     Mr. Shorr states at the end of the first paragraph under Item 2 on page 3 that: “...if he did not leave the landing, he would be arrested.”  Almost another correct statement.  Mr. Shorr is on a roll.
     By Mr. Shorr’s own admission, this is the point where Heicklen is placed under arrest.  If Heicklen had moved, he would not have been arrested.  
     In the next paragraph, Mr. Shorr states correctly that “...if he did not leave the landing, he would be arrested.”  Apparently Heicklen was not arrested at this point.  This was the second notice that Heicklen could move back and avoid arrest.
    By Mr. Shorr’s own testimony, which agrees with the video at this point, Heicklen was not placed under arrest until receiving two personal warnings after all the sitting demonstrators were arrested.  I confirm that this is true.  
    In the first paragraph on page 4, Mr. Shorr quotes a law against congregating and refuses to disperse when ordered by police.
I was not congregating.  I was standing all alone.  I was ordered to congregate, and refused to do so.
    There were three reasons why I refused to congregate:
I have the Constitutional right to stand on a public passageway and demonstrate, as long as I do not interfere with anyone else.  As the Court must be well aware, I have refused to move on 12 occasions at the U. S. District Court S. D. N. Y. when ordered to do so by police officers.  I refuse to cede my First Amendment rights.  I have been arrested on several occasions there.  The U. S. Attorney has dismissed all of those criminal cases in the interest of justice, just as the Criminal Court of Manhattan dismissed the criminal case arising out of the instant arrest.
Ordering me to move into a crowd of people demonstrating with signs, ram’s horns, and other instruments is reckless endangerment.  It is a crime committed by the police. If this Court really is interested in justice it will rule in my favor and have the arresting police officers removed from the police force for life.
The crowd of people in which I was ordered to join were committing the crime of blocking pedestrian traffic. I do not participate in criminal activity.
    In paragraph 4 on page 4, Mr. Shorr argues for dismissal based on immunity and respondeat superior. I have discussed these at great length in my previous communications with this court.  See my Appendix with the Memoranda of Law.
    In the second paragraph on page 5, Mr. Shorr resumes his lying.  Heicklen was not congregating when placed under arrest.  He was not blocking pedestrian traffic.  I refused no order to disperse.  I was not ordered to disperse.  I was ordered to congregate.
    Mr. Shorr defends Judge Koeltl’s decisions at the end of page 5. These were decisions of fact, not of law. It may even be possible that they are correct.  However I have demanded a jury trial.  It is not the judge’s duty to determine the facts.  That is the prerogative of the jury.  It is also the duty of the jury to judge the law, though that is not in contention here.

F. MISCONDUCT OF THE DEFENSE

    The behavior of Judge Koeltl, the defense counsels, and the police have been abominable.  They do not follow the court rules uniformly.  They tamper with evidence.  They lie under oath.  They misrepresent the laws, court decisions, and the facts.  Have they no shame?  They certainly have not enhanced the reputation of the legal profession.
    Our judicial system is completely corrupted.  If we cannot rely on the rule of law, the only solution left will be armed rebellion.  I dread such a solution and will not participate in it, but it seems inevitable.
    This document is being released to the public, so that it can be fully aware of what occurs in our courts of injustice.

G. MOTION

    Appellant moves that the U. S. Court of Appeals: Second Circuit reverse the decision of the District Court and award real and punitive damages to the Appellant, or at least return the case to the District Court for a jury trial under a different judge and defense counsel who tells the truth, if there is such a person.

H. PUBLIC DISCLOSURE

    This document is being released to the public, so that it will know what transpires in the federal court system.

I. AFFIDAVIT OF APPELLANT

    I, Julian Heicklen, do affirm under penalty of perjury, that the preceding is true and correct to the best of my knowledge.

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Julian Heicklen
Appellant


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J. CERTIFICATE OF SERVICE

    This certifies, under penalty of perjury, that a copy of Appellant’s Reply for Court of appeals docket #10–1251-cv [District Court SDNY case #08 CIV. 2457 (JGK)] has been sent by certified legal U. S. mail on December 16, 2010, to:

Scott Shorr
Senior Counsel
Appellate Division
The City of New York
Law Department
100 Church street
New York, NY 10007
Tel: 212–788–1089




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Julian Heicklen, Appellant
Counsel Pro Se
734 Rutland Avenue
Teaneck, NJ 07666
814–880–9308


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