734 Rutland Avenue
Teaneck, NJ 07666
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
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
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
Service of all defendants will be made when revised
complaint is issued after all of the John Doe Defendants are identified.
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.
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
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.
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.
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
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.
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
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.
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.
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.
b. Fifty million dollars ($50,000,000.00) for punitive damages.
c. Quash the statutory violations and citations.
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.
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.
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
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.
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
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
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.
Plaintif’s Equitable Claims should be dismissed and Point VIII.
Plaintiff Generally Fails to Post a Claim under Rule 12(b)(6).
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 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
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
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.
Counsel Pro Se
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,
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,
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
Counsel Pro Se