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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY


CHRISTOPHER KING, d/b/a KingCast/Mortgage Movies,
)
) CASE NO. K15C-03-028
Plaintiff,
v.

) JUDGE YOUNG

BETTY LOU MCKENNA, HOLLY MALONE


and JOHN PARADEE, ESQ.

Defendants.
)
PLAINTIFFS AMENDED MEMORANDUM IN OPPOSITION TO SUMMARY
JUDGMENT1
I.Introduction, View of the Premises and Where the Courts Entire First
Amendment Analysis is Completely Off-Point, Public Meeting Laws and
Cases are Inapplicable and the Law of the Case Doctrine Does Not
Apply.
The Court cannot ignore relevant case law and then point and say well
thats the law of the case and thats that. Well it can do that, but Plaintiff will
of course bring his claim again, make the record, make his valid Rule 59
argument and prepare for Appellate review.
Note the hypocrisy evident in Defendants arguments: They used the
public body/public meeting case Whiteland Woods, L.P., v. Township of West
Whiteland, 193 F.3d 177 [3d Cir 1999] to get Plaintiffs Constitutional claims
bumped, yet they now turn around and consistently argue in Plaintiffs First
Amended Complaint that public body law and access to public meetings is
inapplicable. (Defendants Joint Motion para 14-18, 21 et seq.)
Well that is precisely what Plaintiff said, ab initio, while the Court was
busy giving him the bums rush earlier: It is the Pomykacz, Cirelli, Iacobucci
and Glik cases and their progeny, including Third Circuits Montgomery v.
Killingsworth, 2015 U.S. Dist. LEXIS 7152 (January 22, 2015) that are most
germane because they all involve journalists filming public officials in and out
of their offices. Theres the a-ha moment of this entire case. That having
been said, Plaintiff maintains his public body/public meeting arguments in the
alternative and points to the 11th Circuit Tisdale v. Gravitt, 51 F. Supp. 3d

1 Per Plaintiffs Rule 59 Motion this is a Summary Judgment case , albeit with
truncated discovery.

1378 (N.D. Georgia 2014) case to show that current Courts disagree with the
ancient Whiteland Woods case.
The point is, Defendants and the Court cannot have it both
ways: If public body/public meeting analyses are inapplicable now, then they
were inapplicable in the first place -- and theres yet another compelling
reason for the Supreme Court of the United States to give this case a prompt
Remand in the name of Justice. Gotcha.
As dictated by several cases set forth below some of which were
ignored or misrepresented in the dismissal of Plaintiffs Original Complaint
(i.e. Pomykacz, Iacobucci and Glik) -- there is simply no plausible way that
this case can be decided on the Pleadings. This time around if the Court and
Defendants actually respond to what Plaintiff wrote, we may be able to create
a record that is actually usable by a reviewing Court. Let us commence then,
in light of the below drawing evincing the fact that Plaintiffs attempted
conduct in no ways threatened employee privacy or the function of the office:
That is because the only items downstairs in the public area is a public
foyer, a guard desk, a service desk at which Defendant Malone stood alone,
and a public hallway leading to the back room where several public kiosks are
situated. As such, if the Court is at all interested in Truth and Justice, it would
stop hiding behind facts not alluded to in the Pleadings. To wit: Plaintiff was
not seeking access to Interior offices or to film employees of the Recorder
of Deeds in their cubicles. The Review of Plaintiffs initial and Amended
Complaint will reveal that Plaintiff never sought nor implied such access. (29
June Opinion pp. 14-15, Fn 42).
At this point then it is incumbent of Defendants to use photographs,
video or blueprints to disprove Plaintiff on this point. That is how the burdens
of persuasion and proof work, the last time Plaintiff checked when he was
busy winning First Amendment trials and changing First Amendment Law and
receiving Mayoral Commendations in Senator Kelly Ayottes home state of
New Hampshire, where he routinely photographs Ayottes Office, which is not
a public body or public meeting either. See Appendices A and B and a

picture of Plaintiff in the office of the elected official, just like Betty Lou
McKenna except with a lot more power, prestige, pomp and circumstance! 2
https://www.youtube.com/watch?v=rl4tS0W7RcQ

2 For the Record, Plaintiff reminds Defendants and the Court as to how Defendants
raised Kelly Ayotte in Defense until he published these video captures. Yep. The
Worlds biggest backpedal.

Note: There are no private cubicles in Plaintiffs immediate camera


view. Somehow Plaintiff finds this significant but then what does he know:
According to Judge Young hes just a Guerrilla Journalist, even though such
phrase appeared nowhere in his Complaints. That is because His Honors
cultural hegemony is showing. Plaintiff will take this opportunity to remind
him that the Courtroom is no place for that.

And lastly, the Courts

entire notion that Plaintiff somehow needs to prove or find historical access
is wrong because Plaintiff was not present to engage in expressive conduct.
Once again, he was there to ask a few questions of high-ranking officials
regarding Defendant McKennas conduct while sitting as Recorder of Deeds
and to video Candidate La Mar Gunn pulling up arguably fraudulent
documents. This is specifically what he said he was there to do:
15.Plaintiff was compelled to leave without that which he came to get,
i.e. video inside of the building, including a requested interview with
Defendant Malone in lieu of the other Defendants.
16.Plaintiff made it clear to Defendants that he was there to question
Malone or McKenna about false campaign allegations, to obtain BRoll footage of Candidate Gunn using the electronic county fiche
machines to pull up questionable or fraudulent documents, as
admitted by Defendant McKenna in her own Affidavit.
Recall of course that it is a FACT that Mr. Gunn was instrumental in
getting notary Nikole Shelton permanently decommissioned for misconduct in
the Jurisdiction so Plaintiff was not out on a lark.
While the Court at p. 16-17 opines that Plaintiff could get by with a
notepad, the only Court in recent history that arrived at such a conclusion
was Whiteland Woods, and again that was the wrong context according to
Defendants because it is a public meeting argument and therefore
inapplicable.3 Other Courts have specifically held otherwise, including but
not limited to the color quote that appears below. May Plaintiff repeat it lest
the Court and Defendants fail to address it:

3 And further of course the point is that a pen and pad without a Fine Art degree in
drawing does not portray what Plaintiff wants to portray with three-time successful
Candidate Gunn pulling up dirty documents. Unless such portrayal disrupts the office
then by golly Plaintiff has a Constitutional, Statutory and Common Law Right to shoot
it. Period. SCOTUS will agree once we get out of Delaware.

Suppose, for example, that the [local public body] had attempted to
prohibit the use of pen, or pencil and paper, at the sessions held by
them; such a measure would at once strike anyone as being an
improper means of exerting official power, and the surprise and
dissatisfaction generated by such an arbitrary rule would undoubtedly
lead to a prohibition by the courts of such a foolish attempt to exercise
governmental power. [Id. at 154, 348 A.2d 216 (quoting Nevens v.
Chino, 233 Cal. App. 2d 775, 44 Cal. Rptr. 50, 52 (Dist.Ct.App.1965)).]
Thus, over time, quill and parchment gave way to pen and pad; audio
recording devices supplanted stenography.

Delaware Attorney General Opinion Supports Plaintiff:


This is No Different Then Plaintiff Appearing with Pen & Reporters
Note Pad.
As Plaintiff asks elsewhere in this document, why is the Court going
backwards? This is particularly true in light of the precatory language issued
by State Attorney General Biden (RIP) on public meetings. While Defendants
try to claim that these comments roll in their favor, they are attempting to
read the law far too narrowly because the Opinion holds true of society in
general even though the AGs office only has specific jurisdiction over public
bodies.
As noted in Csorny, in 1985, a Massachusetts court, denying the right
to record a public meeting, stated: There may come a time when
sound cameras will be so thoroughly accepted, and any idea that they
could distort or offend decorum so anachronistic, that to bar them
would seem the equivalent of prohibiting pencil and paper. Csorny, 193
F.3d at 519 (quoting Wright v. Lawrence, 486 N.E.2d 1151, 1153-1154
(Mass. App. 1985). Csorny, in 2003, found that video cameras may
not yet have achieved parity with pen and paper at the local level[.]
Id.
But in 2011, when everyone has a cell phone, and most cell phones
have camera, even video, capability, that time has arrived. To attempt
to ban recording is as pointless as trying to prevent citizens from
taking notes.
CONCLUSION: The DOJ should advise its client public bodies that to
outright prohibit any recording of public meetings is highly risky. The
law is evolving in a more permissive direction.
So now then come Defendants to argue that the AG Opinion is not
relevant, even though they just used the public body/public hearing analysis
to get Plaintiffs Constitutional claims dismissed and the Court specifically
lavished praise upon them at p. 10, Fn 19 of its 29 June 2015 Opinion, finding
the case particularly instructive.
Ordinarily one would say they cant have it both ways.. But now
the Court is certain to help Defendants out some more and go on ahead shut
Plaintiff down on his new Common Law and Statutory Claims because they
are inapplicable.

Who are they fooling? Not Plaintiff not anyone else reading closely, but
for good measure to the extent that the public body/public meeting analysis
is relevant, heres just a little bit more for the Record:

Indeed as Plaintiff has been saying now buttressed by the AGs office 4
-- Courts are increasingly holding that there is no difference between a pen &
paper and a video camera if used in an unobtrusive manner. See Peloquin,
infra. Even though Peloquin was decided on statutory ground the analysis is
still the same: Is the equipment unduly obtrusive or not?
Defendants arguments initially were all predicated on an analysis of
public meeting video. As such, Plaintiffs case is most analogous to
Pomykacz, which was noted by Plaintiff in various Memoranda to date and
hereinbelow. But as the Court and Defendants have hung their hat on the
relatively ancient 1997 case of Whiteland Woods, L.P. v. Township of West
Whiteland, 1997 U.S. Dist. LEXIS 16313 (1997) then Plaintiff will first address
the most recent East Coast case In the recent case of Tisdale v. Gravitt, 51 F.
Supp. 3d 1378 (N.D. Georgia 2014). From Tisdale:
As an initial matter, the Court agrees that Plaintiff has a First
Amendment interest in filming public officials at a public
meeting. Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.
2000) ("The First Amendment protects the right to gather information
about what public officials do on public property, and specifically, a
right to record matters of public interest.").
Prohibiting Plaintiff from video recording the meetingeven while
permitting her to attend the meeting, take notes, or make audio
recordingsimpacted how she was able to obtain access to and
present information about the City Council and its proceedings.
See Blackston v. State of Ala., 30 F.3d 117, 120 (11th Cir. 1994).
Based on this record, the Court finds that a reasonable jury could
conclude that Mayor Gravitt's restrictive policy announced at the April
17, 2012 meeting was [**12] a total ban on filming in City
Council meetings. If the restriction was a total ban, it burdens more
speech than necessary to further the City's interest in maintaining

4 Plaintiff respects the State AGs offices: He was one. In fact, he was the go-to guy
for Appellate issues in the employment section. That ability is clearly borne out in this
document.

order and efficiency at its City Council meetings; consequently, the


restriction was not narrowly tailored to serve the government interest.
Because Plaintiffthe non-moving party for the purposes of
Defendants' Motion for Summary Judgmenthas presented evidence
that could allow a reasonable jury to conclude that Mayor Gravitt
announced a total ban, the Court cannot conclude as a matter of law
that Defendants did not violate Plaintiff's First Amendment rights. To
the extent that Defendants move for summary judgment on grounds
that no constitutional violation occurred, Defendants' Motion for
Summary Judgment must be DENIED.
The case then settled for $200,000.00 making Plaintiffs $12,500.00
offer of Settlement seem rather miniscule indeed.
http://www.forsythnews.com/archives/26998/
CUMMING A $200,000 settlement has been reached in a Roswell womans
federal lawsuit against the city of Cumming over reported free speech and
search and seizure violations.
Nydia Tisdale confirmed Tuesday that she had received the payment.
The lawsuit stemmed from an April 2012 incident in which Tisdale was
directed by Mayor H. Ford Gravitt to stop filming during a Cumming City
Council meeting and asked to leave. She later returned and continued filming
with a different device.
The same day as the incident, Georgias revised Open Meetings Act had gone
into effect.
Crystal Ledford, public information assistant with the city, said that the citys
liability insurance provider, Public Risk Underwriters, had settled with Tisdale.
*********
The Defendants are Flat Out Lying to This Court When they Claim
Plaintiffs Claimed Rights are not Recognized by Any Court.
Now then lets turn to cases that matter most: As we are aware, in its
rush to run Plaintiff out of the Courthouse, the first time around neither the
Court or Defendants ever addressed Pomykacz, which found that a citizen
activist Plaintiff has Constitutional Rights in the Third Circuit to use a camera
to capture images of public officials at their job at all hours of the day and
night: While Defendants flippantly claim it offers zero precedential authority
or support for Plaintiffs First Amended Complaint (para 26) that is a
complete falsity. Lets review the essential issues shall we? In 2006, a federal

district court in New Jersey decided the case of Pomykacz v. Borough of W.


Wildwood, 438 F. Supp. 2d 504 (2006).
Further, Plaintiffs claimed Right is to politely shoot a public employee at their
office for a brief period of time, long enough to ask a simple question or two,
and to roll B-Roll footage in an area that DOES NOT intrude upon the rank and
file employees. Recent case law in the Third Circuit other than Pomykacz
supports this Right. See Montgomery v. Killingsworth, 2015 U.S. Dist. LEXIS
7152 (January 22, 2015), infra.
Pomykacz was a self-described citizen activist who expressed concern
that a suspected romance between the towns mayor and a police officer
were leading to nepotism, conflicts of interest and preferential
treatment. These suspicions led Pomykacz to

monitor the two, which included taking


photographs. Eventually she was arrested on charges of stalking,
though the charges were downgraded to harassment.
Pomykacz ended up filing suit asserting, among other things, that she
was arrested in violation of the First Amendment retaliation for her
monitoring activities (emphasis added so the Defendants, Court and
Reviewing Court can see where they have been completely disingenuous
to date).
On the night of October 7, 2002, on her way to Wildwood,
Pomykacz drove past the borough municipal building and observed
Officer Ferentz working on renovations while she was on duty. Later
that night, after Pomykacz had returned from Wildwood, she

photographed Officer Ferentz in the police


headquarters. 7 Another police officer and [*508] Mayor Fox
were also present in the police station at the time. According to
Pomykacz, Mayor Fox came out of the building and began yelling at
her. Pomykacz walked home without responding (emphasis added so
the Defendants, Court and Reviewing Court can see where they have
been completely disingenuous to date).
U.S. District Judge Joseph E. Irenas noted,
Pomykacz has put forth sufficient evidence that she was a concerned
citizen who at times spoke her mind to Borough [*513] officials and
other citizens about her concerns regarding the official conduct of the
police department and the mayor. Such speech is clearly protected by
the First Amendment. 14 See Mills v. Alabama, 384 U.S. 214, 218, 86 S.
Ct. 1434, 16 L. Ed. 2d 484 (1966) HN15 ("a major purpose of [the First]
Amendment was to protect the free discussion of governmental

10

affairs."); Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1 L.
Ed. 2d 1498 (1957) ("The protection given speech and press was
fashioned to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people.").
So lets review the bold text then, to see the Defendants lies
shall we?
A citizen journalist took pictures, repeatedly, at a police building that
definitely was NOT tied to a public body and that is completely akin to the
Recorder of Deeds office. She repeatedly photographed officers in the police
headquarters, which is undoubtedly more private than the Recorder of Deeds
Office. So to this the Defendants claim there is no precedential relevance?
Lets let the Supreme Court of the United States sort that out along with
Montgomery v. Killingsworth, 2015 U.S. Dist. LEXIS 7152 (January 22, 2015),
and Gaymon v. Borough of Collingdale, 2015 U.S. Dist. LEXIS 93014 (July 17,
2015), after the Delaware juggernaut finishes running Plaintiff into the ground
in this happy little anti-First Amendment State. 5

5As a relatively militant black man I feel good though even though the Court clearly
has it in for me: Unlike La Mar Gunn I havent had an election stolen from me, I
havent been lynched and I never have to set foot in Delaware again, nor will I. The
remainder of this case will be heard on paper. Now thats saying a lot for Delaware,
even though AG Denn swears up and down that those five (5) black men all
committed suicide, some by hanging by a belt. I have notified Douglas Beatty, Ohio
Federal Prosecutor Steven J. Dettlebach and several other groups of people about my
concerns in that regard after Detective Jeff Hill telephoned me because some
unidentified folks were apparently concerned about my emails. See generally First
Amendment Lawsuits Show Markell, AG Biden, AG Denn Coverup of Black Lynchings
https://www.youtube.com/watch?v=QibeMFiaxgM

11

Again, Plaintiffs Fn5 to his Reply Memorandum in Support of


Reconsideration clearly notes that if it is illegal to arrest Pomykacz for
stalking, etc. it is illegal to threaten to arrest Pomykacz. The same goes for
Plaintiff, Apples to Apples. Again, simple, as Plaintiff recently explained to
Delawares largest Newspaper. We are all Fourth Estate brothers and sisters
irrespective of whether their editors allow coverage of this case.
As Plaintiff notes in a YouTube video referenced at p12 herein, the
Court is certainly free to disagree with this case and state as much for the
Record by stating This Court declines to follow Pomykacz. Or words of
similar import. What the Court and Defendants may not do, however, is to
completely ignore Pomykacz,Glik and its progeny which is precisely what they
both did in the first go around and now offer up shallow arguments at this
late date.
We se now why the Defendants and Court have failed to address this
case, which appellate Courts and legal scholars will clearly see as the most
relevant:
It involves a public citizen shooting a camera at public officials not only
during working hours, but at all times of the day and night. See the
overleaf for a screen capture of the police report indicating that she shot
them 4 to 10 times during an 8 hour shift! Plaintiff doesnt even live in the
forum state so it is clearly not feasible for him to engage in that sort of
Constitutionally-protected conduct. At any rate Pomykacz settled because
the arrests and hassles from the government meted out to Plaintiff were
Unconstitutional and otherwise illegal because Pomykacz has a First
Amendment Right to do what she was doing. See the Pomykacz
Court ORDER at Appendix C.

12

***********
In this go around the Defendants could only offer up a lame excuse that the
Recorder of Deeds is not a Public Body (Defendants Motion to Dismiss para
14-18 et seq.).
Thats terrific to Plaintiff, because Plaintiff has already long since
argued on deaf ears that this is not actually a Public Body/Public Meeting
case, so Defendants cant be using Whiteland Woods in the first place! Its
most definitely in the Record folks. What they CAN use, is Plaintiffs cited
cases of Pomykacz, Iacobucci, Cirelli and Glik, even though the Court ignored
Glik in its 29 June 2015 Opinion. We will now finish with Pomykacz and
Iacobucci and move on to Cirelli and Glik momentarily.
Further, Pomykacz effectively trumps Whiteland Woods because it DID
find a Constitutional Right and it did so in a context that is clearly much more
akin to Plaintiffs case: An independent journalist takes camera images of
public officials in their building, is threatened with arrest (and actually
arrested as Plaintiff would have been had he continued shooting based on his
Complaint and two witnesses present as alleged), and wins on Constitutional
grounds. Again, so simple it hurts.

13

Next, the Courts Patent Misrepresentation (read: lie) -- about


Iacobucci v.
Boulter, 1997 U.S. Dist. Lexis 7010, No. CIV.A. 94-10531 (D.Mass,
Mar. 26, 1997) is startling. Iacobucci specifically found that an
independent reporter has a protected right under the First
Amendment and state law to videotape public meetings and the
events that occurred in the hallways of a public building.
But read p17 FN 47 of the courts Opinion where Judge Young tries to
limit the holding to Fourth Amendment Grounds he writes:
(holding rested upon whether Officer had probable cause to arrest
video reporter for recording public event, implicating the Fourth
Amendment)
.. the problem is, one does not get to the Fourth without the First, as
noted by the Iacobucci Court, again, so simple as other courts concur: From
Iacobucci (cited in Glik, infra).
In the next decade, the SJC narrowed this definition of disorderly
conduct to encompass only activities not implicating the lawful
exercise of a First Amendment right. .
and
Boulter's repeated demands that Iacobucci cease recording do not
change the disorderly conduct calculus. A police officer is not a law
unto himself; he cannot give an order that has no colorable legal basis
and then arrest a person who defies it. So it is here: because
Iacobucci's activities were peaceful, not performed in derogation of any
law, and done in the exercise of his First Amendment rights
(emphasis added lest the Court and Defendants miss it again)
Boulter lacked the authority to stop them. Id at 678.
(emphasis added to protect against the sort of intellectual disingenuity
that has plagued this case, as noted in the following video on Plaintiffs
YouTube channel, which is approaching 2,500 subscribers and 2M
views.

14

Judge Youngs rationale is thoroughly rejected and slammed down to


the ground with the force of an illegal police choke hold when Iacobucci is
specifically cited in Montgomery v. Killingsworth, 2015 U.S. Dist. LEXIS
7152 (January 22, 2015) accord Gaymon v. Borough of Collingdale, 2015 U.S.
Dist. LEXIS 93014 (July 17, 2015) as we shall soon see.

15

https://www.youtube.com/watch?v=Emq8pn6O34w

Next, the Courts/Defendants reliance on Capital Cities Media v.


Chester, 797 F.2d 1164 (1986) is woefully misplaced. 6 In this relatively
ancient case -- decided well before the advent of any of the technology that
exists today -- the Court addressed a Public Information document request
and in so doing noted:
The First Amendment, however, seeks to promote the ideal of an
informed electorate by barring government interference with the
flow of information and ideas to the public. 7
Capital Cities cited Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588,
57 L.Ed.2d 553 (1978)(cited in Glik), which the Third Circuit Pomykacz court
impliedly rejected the Houchins analysis in a context that did not involve
prison access.

6 Plaintiff from time to time cites to the Court and Defendants as one, because thus
far thats pretty much how they have operated, in complete lockstep.

7 Focus on the word electorate. This is a nice word because Defendants try to
distinguish McKenna by stating that she is not a public body but an elected official.
Again, who do they think they are fooling?

16

Wherefore, given the Third Circuit case of Pomykacz v. Borough of W.


Wildwood, 438 F. Supp. 2d 504 (2006) and now this case, in addition to the
precatory remarks of Delaware AG Denn, it is patently clear that a Jury is
entitled to hear Constitutional arguments on this matter. It is simply not as
clear as Defendants and the Court have led the World to believe on LEXIS,
Leagle or on any other publishing forum.
Moving on to Cirelli v. Town of Johnston School District, 897 F.Supp. 663
(1995)
(cited in Glik) the Court incorrectly held that it was essential that Cirelli was a
public employee:
The Court notes that the holding of Cirelli, and the authority on
which it relies, presupposes that the Plaintiff alleging the
violation of the First Amendment is a government employee.
Based upon the pleadings alone. Plaintiff does not fall into this
narrow First Amendment protection.
Let us review what really happened, however, in the same way that
Plaintiff has reviewed and shall again review the true law of Private Actor 42
U.S.C. 1983 liability for working with government officials: At any rate, such
was not the holding in Cirelli however because the Court specifically found
that Cirelli was only entitled to run video in places where the general public
was allowed:
While I agree with plaintiff that the defendants have no
legitimate interest in prohibiting the dissemination of the fruits
of plaintiff's labors, defendants do have a legitimate interest in
restricting unconditional access to the school building. Thus, if
plaintiff wishes to videotape at these times, she must abide by
the application process generally applicable to other members
of the public.
Cirelli at 669.
That is consistent with the essence of Pickering, to which the Court
cited at
Fn46 because Pickering held that the government employee has no more or
no less rights than the general public. Plaintiff recalls studying Pickering,
again under the inestimably brilliant Ted Mearns, Esq. (RIP). From Pickering:
To the extent that the Illinois Supreme Court's opinion may be
read to suggest that teachers may constitutionally be compelled
to relinquish the First Amendment rights they would otherwise

17

enjoy as citizens to comment on matters of public interest in


connection with the operation of the public schools in which they
work, it proceeds on a premise that has been unequivocally
rejected in numerous prior decisions of this Court.

18

Lastly, in Glik v. Cuniffe, (1st Cir Ct. App 2011) in South Boston where
Plaintiff was living and running video of police and various Court Trials at the
time, the Court indeed cited Cirelli v. Town of Johnston Sch. Dist., 897 F.
Supp. 663 (D.R.I. 1995) (holding that teacher had a right under the First
Amendment to videotape potentially hazardous working conditions at school,
which were a matter of public concern).
So here we have a Federal Court of Appeals applying Cirelli exactly as Plaintiff
applied it, with no mention of the bogus limiting factor that Judge Young tried
to impose by stating that Cirellis rationale applies only to public employees,
ahem.
The First Circuit relied on its earlier opinion in Iacobucci, as well as a
plethora of decisions from other courts, in holding that the First Amendment
right to record public officials in public spaces had been well established. The
Court also dismissed the suggestion that the discussion of the First
Amendment right to record in Iacobucci was too cursory to clearly establish
the right. To the contrary, the Court stated that
What is particularly notable about Iacobucci is the brevity of the First
Amendment discussion, a characteristic found in other circuit opinions
that have recognized
a right to film government officials or matters of public interest in
public space.
See Smith, 212 F.3d at 1333; Fordyce, 55 F.3d at 439. "[t]he terseness
implicitly
speaks to the fundamental and virtually self-evident nature of the First
Amendment's protections in this area."
So the key in Pomykacz and Glik is whether or not the reporter
engaged in unnecessary discussion or unprofessionalism, not whether they
were allowed to have a camera at all. And remember that those cases dealt
with police, so of course it is more important that they not be seeking
interviews with officers who are on duty; but other employees may certainly
be subject to REASONABLE inquiry, which is a case specific inquiry but this
Court is not to threw the baby out with the bathwater and prohibit ALL inquiry
because that is simply Draconian. Plaintiff understands this being a former
law enforcement attorney and so to do 99% of all independent or mainstream
journalists,

19

And quite frankly, for the coup de gras, the Third Circuit understands it
as well so Judge Young should recognize that it cited Iacobucci and Glik just
this year prior to Plaintiff filing suit. The fact of the matter is, if a citizen in
the Third Circuit is entitled to politely criticize a police officer during the
prosecution of his or her duties, then Plaintiff had dang well better be
permitted to ask a couple of polite questions at the County Recorders Office.
See Montgomery v. Killingsworth, 2015 U.S. Dist. LEXIS 7152 (January 22,
2015).
In Iacobucci v. Boulter, the First Circuit concluded that the plaintiff,
Iacobucci, had a First Amendment right to film local government
officials who were conducting public business in a public building. 193
F.3d 14, 25 (1st Cir. 1999). Iacobucci was arrested after he refused to
stop filming several town commissioners while they were discussing
the possible approval of an applicant's building permit. Id. at 18.
Charged with disorderly conduct and disrupting a public assembly,
Iacobucci spent four hours in custody, though the charges were later
dismissed. Id. Iacobucci initiated a 1983 suit in which he claimed
false arrest and excessive force. Id. After losing in the trial court, the
arresting officer appealed, contending he was entitled to qualified
immunity on those claims. Id. at 21-22. Rejecting that argument, the
First Circuit held that Iacobucci's "right to act as he did without being
arrested for disorderly conduct" was clearly established at the time of
his arrest. Id. at 24. In so holding, the First Circuit found that
"Iacobucci's activities were peaceful, not performed in derogation of
any law, and done in the exercise of hisFirst Amendment rights." Id. at
25.
Peaceful criticism of a police officer performing his duties in a public
place is a protected activity under the First Amendment. As the Court
established in City of Houston, Texas v. Hill, "the First
Amendment protects a significant amount of verbal criticism and
challenge directed at police officers." 482 U.S. 451, 461, 107 S. Ct.
2502, 96 L. Ed. 2d 398 (1987). This type of speech is necessary to
protect and preserve because "[t]he freedom of individuals verbally to
oppose or challenge police action without thereby risking arrest is one
of the principal characteristics by which we distinguish a free nation
from a police state." Id. at 462-63.
Accord Gaymon v. Borough of Collingdale, 2015 U.S. Dist. LEXIS 93014 (July
17, 2015).
In contrast, qualified immunity was rejected for the remaining First
Amendment claim because "peaceful criticism of a police officer that
neither obstructs an investigation nor jeopardizes a police officer's
safety has strong social value, serving as a valuable check on state
power, and is therefore protected under the First

20

Amendment." Killingsworth, 2015 U.S. Dist. LEXIS 7152, 2015


WL 289934, at *8 (citing Gentile v. State Bar of Nev., 501 U.S. 1030,
1034, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) ("There is no question
that speech critical of the exercise of the State's power lies at the very
center of the First Amendment.").7
II.

Plaintiffs Rights Were Clearly Established Prior to Denial.


Plaintiff arrived in fall, 2014. Prior to fall, 2014 Glik was in the books for
2 years and

further, a Department of Justice Memo was likewise in the books for 2 years.
Thats probably why the Court ignored Glik just as surely as it ignored
Pomykacz but were here now so lets not miss it again. From Montgomery:
Existing precedent is not limited to Third Circuit case law; case law
from other circuits is relevant in analyzing whether a reasonable officer
would have known that his conduct violated the Constitution. See
Kopec v. Tate, 361 F.3d 772, 77778 (3d Cir. 2004) (discussing other
circuit case law in determining a right was clearly established).
Importantly, this inquiry focuses only on the state of the law at the
time of the arrests: January 23, 2011, for Montgomery, and July 14,
2011, for Loeb.5 See Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d
Cir. 2010) ([T]o decide whether a right was clearly established, a court
must consider the state of the existing law at the time of the alleged
violation and the circumstances confronting the officer to determine
whether a reasonable state actor could have believed his conduct was
lawful.).
5 Montgomery claims in his response that his arrest occurred on
January 23, 2012, even though he admits in the defendants
undisputed statement of facts that it occurred on January 23, 2011,
alleges in his complaint that it occurred on January 23, 2011, and every
other reference in the record to his arrest reflects the 2011 date. Based
on this incorrect 2012 date, he relies on Glik v. Cunniffe, 655 F.3d 78
(1st Cir. 2011), as well as a 2012 Department of Justice memorandum,
in arguing that this right was clearly established. Because Glik and the
Department of Justice memorandum came after Montgomerys arrest,
the court disregards any reference to them he makes in support of his
qualified immunity argument.
Furthermore, in publicly-filed documents that were circulated throughout the
entire country, and right next door in Maryland, the Department of Justice
Attorneys laid down the Law: In U.S. Dist. Court MD Garcia v. Montgomery
County, Civil No. 8:12-cv-03592-JFM:

21

The United States addressed the central questions raised in this case
whether individuals have a First Amendment right to record police
officers in the public discharge of their duties, and whether officers
violate individuals Fourth and Fourteenth Amendment rights when
they seize such recordings without a warrant or due process in a
Statement of Interest filed in Sharp v. Baltimore City Police Dept., et
al., No. 1:11-cv-02888 (D. Md.), attached here as Exhibit A.1 Here, as
there, the United States urges the Court to answer both of those
questions in the affirmative.
http://www.rcfp.org/sites/default/files/docs/20130307_135451_garcia.p
df
So Glik and the DOJ Memorandum were all present and accounted for
when Plaintiff
approached the venue in fall, 2014. As such, the memo written by Defense
Counsels Marshall Dennehey brethren Donald Carmelite is old news and no
longer valid, relevant or on point when he claimed, in March 2011:
There is no clearly established right to videotape police officers during
traffic stops.
http://www.marshalldennehey.com/defense-digest-articles/thumbs-qualifiedimmunity

And, further, even if all of that were not in place and Defendants argue
that the law is not established until January, 2015 Plaintiff has sought
Injunctive Relief going forward and so that would have to be heard, but in
reality, Glik and the DOJ Memo were and are clear enough. More than clear
enough. See Fn.5 from Montgomery, supra.

22

Plaintiff will now exercise his First Amendment Right to send a copy of this to
U.S. Attorney Dettlebach to let him know how things are being handled down
on the Delaware Plantation:

Plaintiff grew up with and around people of honor and integrity, unlike the
sort of unprincipled rogue backwater Justice he has seen in Delaware on
this case and relative to the five (5) black male lynchings (suicides)
according to AG Denn. Who has yet to substantively respond to my Civil
Rights Public Trust Complaint filed weeks ago.
III.

The Plaintiffs Statutory, Common Law and Equal Protection Arguments


Must Survive to Trial.

23

First of all, the Bill Gunlocke Affidavit cannot be ignored. A respected


publisher/editor stands in amazement at the denial of camera access.
Second, regardless of Defendants rhetoric, there is not one single case that
completely bans cameras in this situation as does Kent County. There is
either a Constitutional, Statutory or Common Law Right in each and every
case, and the lack of a specific statute is hardly a prerequisite to establishing
a Common Law Right.
We recall now that even Whiteland Woods allows videos by Statute.
And the principles of Tarus v. Borough of Pine Hill, 189 N.J. 497 (2007)(shatter
all of those ancient notions in Whiteland Woods).
The common law therefore has evolved to embrace additional
means for documenting public proceedings, not fewer. Over
time, quill and parchment gave way to pen and pad; audio
recording devices supplanted stenography.
A member of the public has the right to videotape a public meeting
and the public body involved has no power to arbitrarily forbid such
action. There is a right to videotape municipal proceedings in the State
of New Jersey and no per se constitutional, statutory, or common law
impediments to the use of a video camera to tape record exist.
The common law therefore has evolved to embrace additional means
for documenting public proceedings--not fewer. See Higg-A-Rella, Inc. v.
County of Essex, 141 N.J. 35, 52, 660 A.2d 1163 (1995) (finding that
common law is flexible and can be adapted to advancing technology);
Atl. City Convention Ctr. Auth., supra, 135 N.J. at 64, 637 A.2d 1261
("The essence of the common law is its adaptability to changing
circumstances."). Sudol, supra, [**1044] emphasized the need for the
law to adapt to that recording evolution, [***25] and, in doing so,
illustrated how the common law applies common sense: Suppose, for
example, that the [local public body] had attempted to prohibit the use
of pen, or pencil and paper, at the sessions held by them; such a
measure would at once strike anyone as being an improper means of
exerting official power, and the surprise and dissatisfaction generated
by such an arbitrary rule would undoubtedly lead to a prohibition by
the courts of such a foolish attempt to exercise governmental power.
[Id. at 154, 348 A.2d 216 (quoting Nevens v. Chino, 233 Cal. App. 2d
775, 44 Cal. Rptr. 50, 52 (Dist.Ct.App.1965)).] Thus, over time, quill
and parchment gave way to pen and pad; audio recording devices
supplanted stenography.

24

So then for the Court to hold that Plaintiff does not have a
Constitutional Right to ask a question or two of a high-ranking public official
with a camera is the same as saying he does not have a Constitutional Right
to do the same with a pen and a notepad. That proposition is of course
completely untenable. As that finding would be patently Unconstitutional this
Court must allow all Claims to proceed to Trial. 8
IV.Defendants Parade of Horribles is a Completely Implausible Defense.
Defendants cry at or around para. 28 that what if every citizen would
start running videos and asking questions of public officers, etc etc. This is
ridiculous. Surely Defendants would have to agree that every citizen clearly
already has the right to point a camera at a public official on a sidewalk for
example. But do we see scores of people descending upon the Recorder of
Deeds or any other Office to shoot public officials before or after they enter
work?
Moreover, it is lawful to run video of Police officers wherever they may
be, and politely criticize them in the Third Circuit; see Montgomery v.
Killingsworth, 2015 U.S. Dist. LEXIS 7152 (January 22, 2015), and Gaymon v.
Borough of Collingdale, 2015 U.S. Dist. LEXIS 93014 (July 17, 2015), supra.
Does that mean that every citizen is going to start bombarding police at
every street corner or in their squad cars with cameras and questions?
Lastly, surely Defendants would agree in most states that media is
allowed in Courts (actually it is allowed in Delaware too by Rule 155), but
somehow theres never any problem because of a thing they call media
pools. Heres how it works: Whenever there are too many media participants
at any individual event, one or two are chosen by agreement or lottery who
then share the footage. Plaintiff has routinely participated on these as

8 Defendants will argue that one of the cases involves video at Plaintiffs own home
but it is truly a distinction without difference when viewed in light of all of the other
cases that occurred at police stations, in public parks, etc. etc.. everywhere except
interior offices, which is again NOT where Plaintiff was trying to be, despite Judge
Young trying his best to place him there. The charade is over.

25

mainstream and independent journalist. So this is just an insipid argument,


again.

26

V.

Defendants Summation About Other Jurisdictions and Equal Protection


is Farcical Given their Own Prior Arguments About Senator Kelly Ayotte.
As noted on prior occasion there isnt even a rational basis for Kent
County to refuse

to allow cameras within reason, given that Newcastle does. Moreover as


previously noted in
this Memorandum the Defendants are forever trying to wipe that collective
egg from their
face from when they claimed that Plaintiff does not understand the
public/private
distinction because he lost a lawsuit in which Defendant Ayotte was NOT an
elected official
at an event that was NOT held on public property. As noted in Appendix B,
Ayotte knows
better than to threaten to arrest Plaintiff for shooting in her U.S. Senate
offices or anywhere
else for that matter. And of course, despite those manifest Rights, there
hasnt exactly been a
debilitating stampede of citizen journalists flocking to Senator Ayottes Offices
to run video.
So that argument fails.
In fact, Defendants have a history of mounting insipid arguments. To
wit, in trying to strike Plaintiffs Rule 59 Motion they claimed that the Motion
must be Stricken as a tardy request for reargument because it specifically
requests the Court "reconsider," "review," "look into," "issue a revised
opinion," and "review its Decision in general . . . ." (D.I. # 93)
Defendants, as they and the Court are wont to do, eliminated yet another key
phrase from
the Proposed ORDER that reads:
Plaintiffs Motion adequately details the reasons why this
Court should reconsider or modify the Judgment entered on
June 29, 2015.

27

Plaintiff was for a time an English Major prior to studying


Communications and becoming a reporter in the first place. As such, he
seems to recall that Modify and Alter .. are synonyms! A synonym is
like, you know, when a word or phrase means exactly or nearly the same as
another word or phrase in the same language. Words that are synonyms are
said to be synonymous, and the state of being asynonym is called synonymy.
The word comes from Ancient Greek syn () ("with") and onoma ()
("name").

modify
mdf/
verb
1.
make partial or minor changes to (something), typically so as to
improve it or to make it less extreme.
"she may be prepared to modify her views"
synonyms: alter, change, adjust, adapt, amend, revise, reshape,
refashion, restyle, revamp, rework, remodel, refine; More (emphasis
added)
So that was yet another feckless attempt by Defendants to avoid
liability. Whether this Court allows it or not, Plaintiff is thoroughly
satisfied with the Record in this case.
VI.

Defendant Paradee is Not Ipso Facto Entitled to Dismissal.


The Defendant and Courts blanket pronouncement that Defendant

Paradee could not possibly be liable under 42 U.S.C. 1983 is legally


incorrect. The Courts citation to Polk County v. Dodson 454 U.S. 312 (1981)
in unavailing because Justice Blackmon dissented and these claims are very
fact specific, but we cannot know the facts because Discovery was truncated
without Depositions and without Defendants even providing any answer as to
what authority they believed they had to deny Plaintiff the right to run a
camera.
But this is not surprising that the Court overlooked it, seeing as the
Court somehow lost his Voluntary Dismissal of his Tort claims (Plaintiff noted
that the docket entries are now missing) and the Court has also improperly

28

held that Rule 155 did not apply to trial courts. See 11 June 2015 Oral
Argument (TR.5-6, 11-12)9
As Plaintiff has noted on prior occasion he worked for Constitutional
Scholar Edward L. (Ted) Mearns (RIP) so he already knew that purportedly
private parties could be found liable under 42 U.S.C. 1983 so he is not
certain as to how the Court could overlook this crucial fact of Law.
Further, consider the Learned Treatise of Professor of Law Jack M.
Beerman and Richard L. Godfrey Faculty Research Scholar, Boston University
School of Law in "Why do Plaintiffs Sue Private Parties Under Section 1983
Cardozo Law Review V. 26 (10/9/2005).
CONCLUSION:
PROSPECTS FOR SUCCESS IN SECTION 1983 LITIGATION AGAINST PRIVATE
DEFENDANTS

The volume of section 1983 litigation against private defendants is


substantial enough for there to have been significant doctrinal
developments in the area, largely concerning state action and
immunities for private defendants. Are the prospects for success in
such litigation great enough to justify the volume of litigation?
In general, plaintiffs should be less likely to prevail in section 1983
cases against private defendants than in cases against state officials
because of the additional possibility of losing due to a finding of no
state action or no action under color of law. In private entity cases that
do get past the state action/under color of law hurdle, the plaintiffs
prospects for success should mirror his or her prospects in state official
litigation unless other issues turn up
A private actor may also act under color of state law under certain
circumstances. For example, it has been held that a physician who
contracts with the state to provide medical care to inmates acts under
the color of state law. See West v. Atkins, 487 U.S. 42 (1988):
Here is another example, in Wyatt v. Cole 504 U.S. 158 (1992):
Immunity for private defendants was not so firmly rooted in the
common law and was not supported by such strong policy reasons as
to create an inference that Congress meant to incorporate it into
1983. See, e. g., Owen v. City of Independence, 445 U. S. 622, 637.
Even if there were sufficient common law support to conclude that
private defendants should be entitled to a good faith and/or probable
cause defense to suits for unjustified harm arising out of the misuse of

9 See Fn1, supra.

29

governmental processes, that would still not entitle respondents to


what they obtained in the courts below: the type of objectively
determined, immediately appealable, qualified immunity from suit
accorded government officials under, e. g., Harlow v. Fitzgerald, 457 U.
S. 800, and Mitchell v. Forsyth, 472 U. S. 511.

VII.The Conspiracy Claims Survive Dismissal as well.


First of all, the Defendants are all being sued individually and
Paradee does not technically work for Kent County so conspiracy
claims survive at this point. Second, the Conspiracy claims were
mirrored from Pomykcacz and Plaintiff knows them to be common in
Practice on his own accord. At least Pomykacz got her Motion to
Compel granted so she could discover what the policies and such were,
as opposed to Plaintiff in this case.
VIII.

Conclusion.
There is a whole New World beyond Delaware, whether Judge Young

and the Defendants appreciate it or not. And it is Plaintiffs Job to expose it,
which he will be doing with alacrity in the coming days, months and years.
And in Sum, Thomas Paine is still rolling in his grave, abated ever so slightly
with the promise that Plaintiff will stir some Common Sense into the Delaware
Way.10

10 Somewhere in either their Memorandum in Opposition to Rule 59 Relief or in their

Motion for Judgment on the Pleadings the Defendants state Just because Plaintiff can
run video in many other jurisdictions doesnt mean that he can do it here. Perhaps it
never occurred to them that in those jurisdictions including the U.S. Senate
buildings LOL Plaintiff can shoot video because that is how they view the First
Amendment to the United States Constitution, same as the Third Circuit Courts in
Montgomery v. Killingsworth, 2015 U.S. Dist. LEXIS 7152 (January 22, 2015), and
Gaymon v. Borough of Collingdale, 2015 U.S. Dist. LEXIS 93014 (July 17, 2015),
supra. But apparently the Defendants and Judge Young are too deep into their rogue
approach to back away now, so we are headed to SCOTUS while Plaintiff commences
classroom discussions about this case in Seattle and beyond.

30

Respectfully Submitted,
_____________________________________________
CHRISTOPHER KING, J.D.
kingcast955@icloud.com
mortgagemovies007@gmail.com
http://affordablevideodepo.com
http://mortgagemovies.blogspot.com
617.543.8085m
206.299.9333f

31

CERTIFICATE OF SERVICE
I, the undersigned, swear that a true and accurate Courtesy copy of
this document was sent via email and via Tracked U.S. Mail to:
Joseph Scott Shannon, Esq.
Art C. Arnilla, Esq.
1220 North Market Street
5th Floor
P.O. Box 8888
Wilmington, DE 19899-8888
and to:
John A. Elzufon, Esq.
Peter McGivney, Esq.
300 Delaware Avenue,
Suite 1700
P.O. Box 1630
Wilmington, DE 19899
This 12th Day of August, 2015
________________________________
CHRISTOPHER KING, J.D.

32

APPENDIX A

33

34

35

36

37

APPENDIX B
https://www.youtube.com/watch?v=rl4tS0W7RcQ

https://www.youtube.com/watch?v=jLS0N_hH-cc
Here one of her constituents said that Ayotte Is pleasant and sweet and full

of shit.

38

https://www.youtube.com/watch?v=lXlHu2002Vc

APPENDIX C

39

40