1 The core of Plaintiffs arguments in favor of Rule 56 reversal are noted at Section VI B, infra. That
having
been
said
the
entire
Motion
is
cogent,
germane
and
set
up
for
full
review
and/or
immediate
appeal
if
necessary.
That
is
what
Plaintiff
holds
himself
out
to
be
as
noted
in
the
Complaint
and
thats
all
the
Court
claimed
to
be
reviewing,
so
the
pejorative
guerrilla
nomenclature
is
reflective
of
the
short
shrift
that
this
Plaintiff
ultimately
received
from
the
Court.
Further,
Plaintiff
did
provide
the
Court
with
excerpts
and
materials
from
his
website
and
such
description
comports
with
the
information
on
his
website
--
which
was
not
once
mentioned
by
the
Court.
The
Mortgage
Movies
Journal
description
has
read
this
way
for
several
years
now:
II.
Lets
get
one
thing
straight
from
the
get
go:
Commissioner
Freud
in
point
of
fact
did
not
exercise
any
discretion
at
all.
What
she
did
was
to
say
that
Rule
155
did
not
apply
to
trial
Court
proceedings,
whilst
cutting
Plaintiff
off.
See
Transcript
(Tr._________)2
The
Plain
Language
of
Rule
155
states
otherwise,
and,
moreover,
even
if
she
was
exercising
discretion,
why
would
she
do
so
to
eliminate
video
done
by
a
trained
professional
journalist
and
who
has
made
courtroom
video
in
six
(6)
different
states?
But
of
course
by
marginalizing
Plaintiff
as
a
guerilla
the
Court
is
shading
things
in
a
light
that
would
make
the
purported
exercise
of
discretion
more
palatable.
That
matter
will
be
preserved
for
Appeal
to
the
Highest
Court
of
the
Country
in
a
related
and
forthcoming
Declaratory
Judgment
case,
and
noted
in
a
documentary
film
about
this
entire
circumstance.
III.
Private
Actors
Like
Defendant
John
Paradee
May
Indeed
be
Held
Liable
Under
42
U.S.C.
1983.
First
of
all,
the
Courts
use
of
the
ellipse
at
p.
8
of
its
ruling
is
completely
absurd
because
it
eliminates
the
key
predicate
allegation
that
renders
such
a
claim
as
legally
cognizable.
The
Court
wrote:
Interestingly,
Plaintiff
himself
states,
[Defendant
Paradee
is
not
a
State
Actor.
But
that
is
not
all
that
Plaintiff
stated
in
para.
5
of
his
Complaint.
Heres
the
full
sentence
from
para
5:
He
is
not
a
State
Actor
but
did
consult
and
advise
Defendant
McKenna
on
matters
relative
to
the
election
and
to
First
Amendment,
Free
Press
conduct
of
Plaintiff.3
2 Plaintiff avers this as subject to the Pains of Perjury and Under Oath: The Transcript has been
ordered
and
Plaintiff
will
file
a
copy
with
the
Court
within
the
next
two
(2)
weeks,
immediately
on
receipt
of
same.
3
One
could
argue
based
on
this
alone
this
Court
never
intended
to
give
Plaintiff
a
fair
shake.
Now
Plaintiff
told
Judge
Young
that
this
case
is
going
to
be
a
legacy
case.
His
actions
are
shaping
that
legacy
into
something
more
ugly
than
not.
See
also
Section
VI
H,
regarding
the
failure
to
convert
this
case
to
Summary
Judgment
per
Commonwealth
Constr.
Co.
v.
Red
Clay
Consol.
Sch.
Dist.
2010
Del.
Super
LEXIS
489
(2010).
Second,
perhaps
the
Guide
from
the
Third
Circuit
will
help:
4.4.3
Section
1983
Whether
a
Private
Person
Conspired
with
a
State
Official
To
prove
a
conspiracy,
[plaintiff]
must
show
that
members
of
the
conspiracy
came
to
a
mutual
understanding
to
do
the
act
that
violated
[plaintiffs]
[describe
right].
The
agreement
can
be
either
express
or
implied.
[Plaintiff]
can
prove
the
agreement
by
presenting
testimony
from
a
witness
who
heard
[defendant]
and
[Official
Roe
and/or
another
participant
in
the
conspiracy
with
Roe]
discussing
the
agreement;
but
[plaintiff]
can
also
prove
the
agreement
without
such
testimony,
by
presenting
evidence
of
circumstances
from
which
the
agreement
can
be
inferred.
In
other
words,
if
you
infer
from
the
sequence
of
events
that
it
is
more
likely
than
not
that
[defendant]
and
[Official
Roe
and/or
another
participant
in
the
conspiracy
with
40
Roe]
agreed
to
do
an
act
that
deprived
[plaintiff]
of
[describe
right],
then
[plaintiff]
has
proved
existence
of
the
agreement.
In
order
to
find
an
agreement,
you
must
find
that
there
was
a
jointly
accepted
plan,
and
that
[defendant]
and
[state
official]
[each
other
conspirator]
knew
the
plans
essential
nature
and
general
scope.
A
person
who
has
no
knowledge
of
a
conspiracy,
but
who
happens
to
act
in
a
way
which
furthers
some
purpose
of
the
conspiracy,
does
not
thereby
become
a
conspirator.
However,
you
need
not
find
that
[defendant]
knew
the
exact
details
of
the
plan
[or
the
identity
of
all
the
participants
in
it].
One
may
become
a
member
of
a
conspiracy
without
full
knowledge
of
all
the
details
of
the
conspiracy.
The
second
thing
that
[plaintiff]
must
show
in
order
to
prove
a
conspiracy
is
that
[defendant]
or
a
co-
conspirator
engaged
in
at
least
one
act
in
furtherance
of
the
conspiracy.
[In
this
case,
this
requirement
is
satisfied
if
you
find
that
[defendant]
or
a
co-conspirator
did
any
of
the
following
things:
[Describe
the
acts
alleged
by
the
plaintiff].]
[In
other
words,
[plaintiff]
must
prove
that
[defendant]
or
a
co-conspirator
took
at
least
one
action
to
further
the
goal
of
the
conspiracy.]
Comment
Alternative
ways
to
show
that
a
private
person
acted
under
color
of
state
law.
It
should
be
noted
that
demonstrating
the
existence
of
a
conspiracy
is
not
the
only
possible
way
to
show
that
a
private
individual
acted
under
color
of
state
law.
See
supra
Comment
4.4.
For
example,
when
a
private
person
is
acting,
under
a
contract
with
the
state,
to
perform
a
traditional
public
function,
the
question
may
arise
whether
that
person
is
acting
under
color
of
state
law.
Cf.
Jackson
v.
Metropolitan
Edison
Co.,
419
U.S.
345,
352
(1974)
(discussing
exercise
by
a
private
entity
of
26
powers
traditionally
exclusively
reserved
to
the
State);
Richardson
v.
McKnight,
521
U.S.
399,
27
413
(1997)
(in
case
involving
employees
of
a
private
prison
management
firm,
noting
that
the
Court
was
not
deciding
whether
the
defendants
are
liable
under
1983
even
though
they
are
employed
by
a
private
firm).
Note
that
Plaintiff
has
repeatedly
argued
that
Defendant
Paradee
conspired
with
Defendants
McKenna
and
Malone
in
the
Dispositive
Memoranda.
Who
knows
what
they
talked
about,
in
the
weeks
between
the
time
that
Plaintiff
telephoned
them
(and
they
all
completely
ignored
him)
and
the
time
he
arrived
in
Delaware?
We
dont
know
because
the
Court
never
allowed
any
Depositions.
Plaintiff
further
described
how
said
Depositions,
while
still
subject
to
Attorney-Client
privilege,
could
nonetheless
shed
light
and
produce
inferences
from
which
a
Jury
could
infer
that
the
Defendants
conspired
to
deprive
Plaintiff
of
the
Right
to
ask
a
few
questions
of
high-ranking
officials
at
Defendant
McKennas
office,
with
a
camera
present,
by
threatening
an
unlawful
arrest
or
seizure
of
his
person
under
the
Fourth
and
Fifth
Amendments
to
the
United
States
Constitution
and
parallel
State
Statutes.
As
such,
the
Court's
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
held
that
Rule
155
did
not
apply
to
trial
courts.
See
11
June
2015
Oral
Argument
(TR._____)4
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
Vol.
26
(10/9/2005).
CONCLUSION:
PROSPECTS
FOR
SUCCESS
IN
SECTION
1983
LITIGATION
AGAINST
PRIVATE
DEFENDANTS
4
See
Fn1,
supra.
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
o
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):
(a)
If
a
defendant's
alleged
infringement
of
the
plaintiff's
constitutional
rights
satisfies
the
state
action
requirement
of
the
Fourteenth
Amendment,
the
defendant's
conduct
also
constitutes
action
"under
color
of
state
law"
for
1983's
purposes,
since
it
is
"fairly
attributable
to
the
State."
Lugar
v.
Edmondson
Oil
Co.,
457
U.
S.
922,
457
U.
S.
935,
457
U.
S.
937.
Thus,
a
state
employee
generally
acts
under
color
of
state
law
when,
while
performing
in
his
official
capacity
or
exercising
his
official
responsibilities,
he
abuses
the
position
given
to
him
by
the
State.
Polk
County
v.
Dodson,
454
U.
S.
312,
distinguished.
Pp.
487
U.
S.
49-50.
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
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.
Moreover,
the
policy
concerns
mandating
qualified
immunity
for
officials
in
such
cases-the
need
to
preserve
the
officials'
ability
to
perform
their
discretionary
functions
and
to
ensure
that
talented
candidates
not
be
deterred
by
the
threat
of
damages
suits
from
entering
public
service-are
not
applicable
to
private
parties.
Although
it
may
be
that
private
defendants
faced
with
1983
liability
under
Lugar,
supra,
could
be
entitled
to
an
affirmative
good
faith
defense,
or
that
1983
suits
against
private,
rather
than
governmental,
parties
could
require
plaintiffs
to
carry
additional
burdens,
those
issues
are
neither
before
the
Court
nor
decided
here.
pp.
163-169.
IV.
The
Previously-Dismissed
Tort
Claims.
As noted previously in this filing, the Court did not need to expend Judicial resources
to
analyse
these
issues
or
claims
because
Plaintiff
had
long
ago
submitted
Voluntary
Dismissals
of
his
Negligent
and
Intentional
Infliction
of
Emotional
Distress
Claims
with
Proposed
ORDERS
granting
the
dismissals.
Plaintiff
voraciously
reads
the
Docket
sheet
online,
he
saw
them
on
the
Docket
Sheet
at
one
point
but
now,
curiously,
those
docket
entries
have
evaporated
but
there
is
a
reason
the
Plaintiff
did
not
brief
these
matters
at
all:
It
is
because
he
DISMISSED
THEM
long
ago.
V.
The
Court
Should
Have
Granted
Plaintiffs
Motions
to
Compel
and
Request
for
Stay
on
Dispositive
Motions
Until
his
Discovery
was
Completed;
Blanket
Bans
Have
Been
Held
Unlawful.5
A.
The Most Relevant Third Circuit Case of Pomykacz Granted a Motion to Compel.
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.
See
the
Pomykacz
Court
ORDER
at
Appendix
A.
5
Again,
to
be
clear,
these
public
meeting
cases
are
more
of
a
red
herring
than
anything
else.
See
Section
VI
B
infra.
B.
on
point
with
the
facts
of
this
case,
the
Courts
Opinion
fails
to
address
the
key
aspect
of
Whiteland
Woods
that
Plaintiff
has
brought
to
for
forefront:
There
was
a
universal
ban
on
cameras
that
the
Court
found
vitiated
Plaintiffs
claims
of
disparate
or
selective,
viewpoint-
based
First
Amendment
discrimination.
As
such,
the
Court
held:
8
Whiteland
Woods
argues
the
Planning
Commission
only
enacted
the
resolution
to
prevent
Whiteland
Woods
from
video
recording
any
meetings
after
September
25,
1996.
See
Pltff.'s
Mem.
Opp.
Summ.
Judgment
at
4.
Accepting
that
allegation
as
true,
it
does
not
change
the
fact
that
the
resolution
was
neutrally
applied
to
all
video
recording;
the
Planning
Commission
did
not
restrict
Whiteland
Woods
only
based
on
the
content
of
the
message
Whiteland
Woods
was
attempting
to
spread.
But
as
Plaintiff
has
pointed
out
so
many
times
in
this
case,
we
dont
have
a
clue
what
the
real
policy
is,
or
whether
it
is
neutrally
applied.
But
thats
not
Plaintiffs
fault.
That
is
the
Courts
fault
for
allowing
Defendants
to
escape
the
preceding
Interrogatory
that
asked
what
authority
Defendant
McKenna
had
for
denying
Plaintiff
access.
That
is
why
Plaintiff
moved
this
Honorable
Court
to
reconsider
on
that
point
and
moves
for
reconsideration
again
to
lock
this
matter
in
for
appeal
and
for
review
by
legal
scholars
for
years
to
come.[1]
Defendants
McKenna
and
Malone
Responses
to
Policy
Interrogatory
are
Sanctionable.
State
what
authority
that
any
Defendant
has
had,
at
any
point
in
time
up
to
27
November
2014
that
indicates
that
video
was
verboten
in
the
555
Bay
Road
building
on
or
about
November
25,
2014,
the
only
day
date
and
time
that
Plaintiff
has
ever
been
at
555
Bay
Road,
Kent
County
Recorder
of
Deeds.
Defendants
response
was
that
this
interrogatory
is
incomprehensible
and
incapable
of
response.
This
assertion
is
dilatory:
The
question
is
patently
clear:
Provide
Plaintiff
with
any
authority
you
had
prior
to
27
November,
2014
that
video
was
verboten
in
the
555
Bay
Road
Building
on
[the
only
day
and
date
that
Plaintiff
was
there].
How
difficult
is
that?
Judge
Young
should
have
wrested
control
of
this
crucial
issue
and
issued
Sanctions
because
this
is
clearly
a
Bad
Faith
attempt
to
skirt
the
crucial
issue
of
what
authority
Defendants
believed
they
had
to
forbid
Plaintiff
to
roll
video.
It
might
not
be
the
prettiest
sentence
that
Plaintiff
ever
wrote
but
to
falsely
claim
that
it
is
an
incomprehensible
question
is
patently
absurd.
Rule
11
Sanctions
and
an
ORDER
to
compel
should
have
issued.6
C.
Shoreham-Wading
River
Cent.
Sch.
Dist.,
305
A.D.2d
83
(2003)
(holding
that
blanket
bans
are
unlawful.
From
Peloquin:
Hand-held
audio
recorders
are
unobtrusive
(Mitchell
v
*309309
Board
of
Educ.,
supra);
camcorders
may
or
may
not
be
depending,
as
we
have
seen,
on
the
circumstances.
Suffice
it
to
say,
however,
in
the
face
of
Mitchell,
the
Committee
on
Open
Government's
(Robert
Freeman's)
well-reasoned
opinions
(supra)
and
the
court
system's
pooled
video
coverage
rules
and/or
options,
a
blanket
ban
on
all
cameras
and
camcorders
when
the
sole
justification
is
a
distaste
for
appearing
on
public
access
cable
television
is
unreasonable.
While
"distraction"
and
"unobtrusive"
are
subjective
terms,
in
the
face
of
the
virtual
presumption
of
openness
contained
in
article
7
of
the
Public
Officers
Law
and
the
insufficient
justification
offered
by
the
Village,
the
"Recording
Policy"
in
issue
here
must
fall.
From
Csorny:
The
petitioners
have
reportedly
been
active
participants
at
the
regular
meetings
of
the
Board.
Beginning
in
or
about
July
2000,
the
petitioners
brought
a
palm-sized
video
camera,
mounted
on
a
tripod
at
the
rear
of
the
room,
which
they
used
to
record
Board
meetings.
This
camera
was,
by
itself,
unobtrusive
and
it
required
no
additional
lights.
Wright
v.
City
of
Lawrence
(21
Mass.
App.
Ct.
343,
486
N.E.2d
1151
[Mass]),
upon
which
the
Board
relies,
is
readily
distinguishable.
The
court
in
Wright
dismissed
a
suit
for
a
declaratory
judgment
challenging
a
recording
ban
due
to
the
inadequacy
of
the
record,
the
imprecision
of
the
plaintiff's
Open
Meetings
Law
claims,
and
the
plaintiff's
misguided
attempts
therein
to
frame
the
issue
of
the
city
council's
prohibition
on
videotaping
as
one
of
constitutional
dimension.
We
agree
that
the
First
Amendment
to
the
United
States
Constitution
does
not
guarantee
the
right
to
videotape
governmental
meetings
(see
Whiteland
Woods,
L.P.,
v.
Township
of
West
Whiteland,
193
F.3d
177
[3d
Cir
1999];
Johnson
v.
Adams,
629
F.
Supp.
1563
[US
Dist
Ct,
E.D.
Tex
1986]).
However,
Wright
does
not
support
the
Board's
argument
herein,
as
Wright
did
not
decide
the
Open
Meetings
Law
issue
on
the
merits.7
6
Not
only
do
we
not
know
what
policy
there
is,
recall
that
Defendant
Malone
lied
about
the
presence
of
a
written
policy
as
noted
by
County
Attorney
Sherlock.
Thats
elementary,
Watson.
See
App.
B.
7
The
Court
ended
its
inquiry
right
there
whilst
ignoring
the
following
paragraph,
which
notes
that
C-
Span
and
C-Span
2
broadcast
from
the
Capitol
and
we
see
no
reason
to
prohibit
them
from
public
meeting
rooms
of
school
boards.
10
Significantly,
however,
Wright
posited
that
"There
may
come
a
time
when
sound
cameras
will
be
so
thoroughly
accepted,
and
any
idea
that
they
could
distort
or
prejudice
deliberation
or
offend
decorum
so
anachronistic,
that
to
bar
them
would
seem
the
equivalent
of
prohibiting
pencil
and
paper"
(id.
at
1153-1154).
The
Wright
court
rejected
the
notion
that
video
cameras
had
achieved
such
ubiquity
in
1985.
Today,
17
years
later,
C-Span
and
C-Span
2
broadcast
from
the
Capitol,
and
local
government
meetings
are
routinely
aired
on
public
access
cable
television.
While
video
cameras
may
not
yet
have
achieved
parity
with
pen
and
paper
at
the
local
level,
we
discern
no
legitimate
reason
to
prohibit
them
from
public
meeting
rooms
of
school
boards.1
1.
The
Board's
citation
to
Combined
Communications
Corp.
v.
Finesilver
(672
F.2d
818
[10th
Cir
1982])
is
also
unavailing
as
that
case
dealt
with
a
rule
barring
media
coverage
of
judicial
proceedings
that
were
subject
to
non-
televised
press
coverage.
Given
that
body
of
law
and
the
cultural,
legal
and
technological
developments,
why
in
the
World
would
this
Court
decide
to
take
a
giant
step
backwards?
PHow
is
it
that
the
Court
rules
against
Plaintiff
either
which
way
the
unknown
Policy
is
to
be
determined
in
this
case?
Perhaps
the
answer
lies
in
its
thinly-veiled
culturally
hegemonic
notion
that
Plaintiff
is
a
guerilla
and
not
a
trained
professional.
That
decision
will
be
part
of
Judge
Youngs
legacy
and
the
case
and
documentary
movie
develop
in
the
coming
years.
VI.
A.
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
the
State
Attorney
General
on
public
meetings:
More
on
this
at
Section
F,
infra.8
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.
8
Again,
Plaintiff
does
not
concede
that
this
is
event
the
correct
analysis,
(see
Section
VI
B,
infra)
but
to
the
extent
that
Defendants
and
the
Court
want
to
use
public
meeting
law
from
another
State,
Plaintiff
thought
it
might
be
prudent
to
see
the
direction
that
the
AG
is
taking
in
THIS
STATE.
That
direction
is
much
more
akin
to
the
direction
in
the
Tarus
and
Pomykacz
cases.
Heck
the
State
AG
even
quoted
some
of
the
very
same
language
that
Plaintiff
quoted,
fancy
that.
11
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.
Indeed
as
Plaintiff
has
been
saying
now
buttressed
by
the
AGs
office9
--
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?
Similarly,
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.
9 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.
12
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.
As
that
finding
would
be
patently
Unconstiutional
this
Court
must
reverse
its
prior
Opinion.10
B.
The
Public
Meeting
Cases
are
Not
Germane;
What
is
Germane
is
the
Senator
Kelly
Ayotte
Comparison,
Iacobucci
v.
Boulter,
1997
U.S.
Dist.
Lexis
7010,
No.
CIV.A.
94-
10531
(D.Mass,
Mar.
26,
1997),
the
Third
Circuit
case
of
Pomykacz
v.
Borough
of
W.
Wildwood,
438
F.
Supp.
2d
504
(2006)
that
the
Court
completely
failed
to
address.
The
Court
chides
Plaintiff
at
Fn
47,
by
ignoring
Pomykacz
and
finding
something
to
distinguish
his
other
cited
cases
by
stating
Needless
to
say,
these
cases
are
all
inapplicable
to
the
First
Amendment
question
presently
before
the
Court.
Well
on
that
note,
the
Court
is
not
entirely
accurate
(just
as
it
was
wrong
about
Private
Actor
liability
under
42
U.S.C
1983
because
Iacobucci
did
in
fact
address
the
Reporters
First
AND
Fourth
Amendment
Rights.
Iacobucci
was
wrongfully
arrested
for
conduct
protected
by
the
First
Amendment.
So
for
the
Court
to
say
that
Iacobucci
addressed
only
the
Fourth
Amendment
is
intellectually
disingenuous
because
without
a
First
Amendment
protection
you
dont
reach
the
Fourth
Amendment.
Plaintiff
was
threatened
with
arrest
as
his
Complaint
clearly
states
and
as
noted
by
the
Court
at
p.4
of
the
Opinion,
Plaintiff
alleges
that
he
was
told
he
would
be
arrested
if
he
persisted
in
his
efforts
to
videotape
the
offices.
As
his
prior
Fn5
to
his
Reply
Memorandum
in
Support
of
Reconsideration
stated
further,
if
it
is
illegal
to
arrest
a
citizen
journalist
for
First
Amendment
conduct
of
shooting
a
public
official,
it
is
equally
illegal
to
threaten
arrest
for
same.
Thats
so
simple,
it
hurts.
But
to
make
it
clear
Plaintiff
included
the
Fourth
Amendment
claim
in
his
First
Amended
Complaint
inasmuch
as
it
unlawfully
chills
the
exercise
of
First
Amendment
Rights.
As
Plaintiff
noted
in
his
Reply
Memorandum
in
Support
of
Summary
Judgment:
10 Plaintiff will be filing a Common Law Claim and Fourth Amendment Chilling of Speech claims in his
First
Amended
Complaint,
filed
contemporaneously
with
this
Motion,
that
exactly
mirrors
Tarus
and
buttress
the
body
of
law
set
forth
and
ignored
by
the
Court
in
Pomykacz.
13
See
also
Iacobucci
v.
Boulter,
1997
U.S.
Dist.
Lexis
7010,
No.
CIV.A.
94-10531
(D.Mass,
Mar.
26,
1997)
(unpublished
opinion)
(finding
that
an
independent
reporter
has
a
protected
right
under
the
First
Amendment
and
state
law
to
videotape
public
meetings.
From
Iacobucci:
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,
Boulter
lacked
the
authority
to
stop
them.
Id
at
678.
Next,
Courts
reliance
on
Capital
Cities
Media
v.
Chester,
797
F.2d
1164
(1986)
is
woefully
misplaced.
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.
Capital
Cities
cited
Houchins
v.
KQED,
Inc.,
438
U.S.
1,
98
S.Ct.
2588,
57
L.Ed.2d
553
(1978),
which
the
Third
Circuit
Pomykacz
court
impliedly
rejected
the
Houchins
analysis
in
a
context
that
did
not
involve
prison
access.11
Recall
that
the
original
cornerstone
of
Defendants
arguments
was
the
Kelly
Ayotte
case,
as
they
prattled
on
about
how
Plaintiff
did
not
understand
the
distinction
between
public
and
private.
However,
on
further
review
the
Record
reflects
that
Ayotte
was
not
an
elected
official
at
the
time
that
prior
litigation
started,
and
the
Court
held
that
the
hotel
situs
for
the
Republican
Party
rally
was
a
private
venue.
In reality Senator Ayotte could be sued under the First and Fourth Amendment were
she
to
threaten
to
have
Plaintiff
arrested
for
filming
her
or
her
staff
in
public
places,
including
her
office.
This
is
why
Plaintiff
provided
these
pictures
and
videos
to
the
Court,
which
must
have
misunderstood
the
point:
11
Alas,
the
Defendants
and
the
Court
have
nothing
to
say
about
Pomykacz.
Absolutely.
Nothing.
14
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.
https://www.youtube.com/watch?v=lXlHu2002Vc
15
But
lets
move
on
to
the
case
most
directly
applicable
to
the
case
at
bar
because
they
are
both
Third
Circuit
cases
that
address
the
right
of
a
citizen
activist
or
journalist
to
run
video
of
public
officials
whilst
working
in
their
buildings.
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)
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.
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
toPomykacz,
Mayor
Fox
came
out
of
the
building
and
began
yelling
at
her.
Pomykacz
walked
home
without
responding.
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
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.").
Again,
Plaintiffs
Fn5
to
his
Reply
Memorandum
in
Support
of
Reconsideration
clearly
notes
that
if
it
is
illegal
to
arrest
Pomykacz
it
is
illegal
to
threaten
to
arrest
Pomykacz.
The
same
goes
for
Plaintiff,
Apples
to
Apples.
C.
To
the
Extent
that
the
Public
Meeting
Cases
are
germane,
the
court
has
ignored
the
key
issues
regarding
policy,
as
noted
in
the
preceding
section.
16
D.
The
Court
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
we
reviewed
the
true
law
of
Private
Actor
42
U.S.C.
1983
liability
for
working
with
government
officials,
as
well
as
the
prior
Iacobucci
analysis,
which
clearly
and
patently
involved
First
and
Fourth
Amendment
issues:
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
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.
E.
g.,
Wiemanv.
Updegraff,
344
U.S.
183
(1952);
Shelton
v.
Tucker,
364
U.S.
479
(1960);
Keyishian
v.Board
of
Regents,
385
U.S.
589
(1967).
"[T]he
theory
that
public
employment
which
may
be
denied
altogether
may
be
subjected
to
any
conditions,
regardless
of
how
unreasonable,
has
been
uniformly
rejected."
Keyishian
v.
Board
of
Regents,
supra,
at
605-606.
17
The
Courts
Reading
of
Iacobucci
v.
Boulter,
1997
U.S.
Dist.
Lexis
7010,
No.
CIV.A.
94-10531
(D.Mass,
Mar.
26,
1997)
is
Fundamentally
Flawed.
The
Iacobucci
Court
gets
it:
This
case
involves
a
small-town
journalist,
a
small-town
police
officer,
and
rights
as
grand
as
the
Constitution
itself.
As
such,
he
had
a
right
to
run
video
without
fear
of
being
arrested,
unlike
Plaintiff.
See
Section
VI
B,
infra,
clearly
noting
that
Iacobucci
does
not
reach
the
Fourth
Amendment
without
first
implicating
the
First
Amendment.
Accord
Tarus
v.
Borough
of
Pine
Hill,
189
N.J.
497
(2007)(shattering
all
of
those
ancient
notions
in
Whiteland
Woods).
F.
The Courts Reading of Csorny v. Shoreham-Wading River Cent. Sch. Dist., 305
A.D.2d 83 (2003) is at Odds with the Delaware State Attorney: Csorny applies to
Plaintiffs Benefit.
The Court wrote at Fn. 47
however, in so doing, court recognized that the First Amendment does not guarantee
the right to videotape government meetings, citing Whiteland Woods.
The
1
April
2011
AG
Opinion
Right
of
Public
to
Record
Open
Meetings
of
Public
Bodies
However,
the
majority,
like
the
majority
of
courts
that
have
considered
this
question,
found
that
there
is
no
legitimate
reason
to
prohibit
[video
cameras]
from
public
meeting
rooms[.]
Id.
Csorny
rejected
each
argument
against
allowing
recording.
It
called
wholly
specious
the
argument
that
speakers
at
a
public
meeting
that
is
being
recorded
will
feel
inhibited
from
speaking
freely
(or
at
all):
While
the
Board
adduced
affidavits
from
three
parents
who
expressed
their
fears
of
being
videotaped
at
meetings,
the
Board
may
not
hold
the
law
hostage
to
the
personal
fears
of
a
few
individuals.
Csorny,
193
F.3d
at
518
12
The
Court
noted
that
Plaintiff
did
not
specifically
mention
that
he
was
there
to
review
general
fraud
and
MERS
issues
in
his
Complaint,
but
instead
noted
as
much
in
his
Affidavit,
but
such
distinction
is
not
of
crucial
importance
in
this
analysis.
18
13
Lets
see
what
happens
with
Plaintiffs
Common
Law
claim
in
his
First
Amended
19
journal
pages.
Some
of
his
work
has
been
reproduced
by
other
alternative
media
as
well
as
mainstream
press,
so
he
meets
all
the
requirements,
much
to
Defendants
chagrin.
All
of
this
is
set
forth
in
Plaintiffs
Affidavit,
which
Defendants
try
to
ignore.
So
speech
or
conduct
(taking
photographs)
that
satisfies
both
of
the
elements
above
is
allowed
and
protected
in
the
public
forum.
Using
this
guide,
we
can
look
to
the
courts
and
find
one
type
of
photography
that
is
not
protected
by
the
First
Amendment:
private
recreational
photography
that
is
for
ones
own
personal
use..14
Obviously
the
Court
may
take
Judicial
Notice
that
this
is
not
recreational,
personal
use
photography
even
if
the
Court
chooses
to
categorize
Plaintiff
as
a
mere
guerrilla
reporter.
H.
The
Court
Incorrectly
Assessed
this
as
Judgment
on
the
Pleadings
and
Violated
Plaintiffs
Due
Process
Rights.
While the Court is claiming that this is a Judgment on the Pleadings it really
isnt.
Plaintiff
has
put
substantial
amounts
of
information
into
the
Record
that
the
Court
should
have
considered
but
did
not.
Defendants
cited
to
issues
beyond
the
Pleadings
in
their
Memoranda.
What the Court essentially did was to take all of Defendants legal arguments
set
forth
in
Dispositive
Motions,
then
deny
the
Plaintiff
the
benefit
of
any
of
the
materials
or
arguments
he
set
forth,
including
but
not
limited
to
his
Affidavit,
and
the
Kelly
Ayotte
information
showing
Plaintiff
doing
EXACTLY
what
he
does
all
of
the
time
in
several
other
Jurisdictions,
without
incident.
See
Commonwealth
Constr.
Co.
v.
Red
Clay
Consol.
Sch.
Dist,
2010
Del.
Super.
14
Plaintiff
reasonably
believes
the
Court
could
take
Judicial
Notice
that
Plaintiff
is
not
engaged
in
recreational
photography
in
this
instance.
20
As
such,
Plaintiff
is
returning
to
the
Court
his
Offer
of
Proof
Video
that
demonstrated
him
doing
exactly
what
he
wanted
to
do
in
Kent
County,
in
King
County,
Washingtons
Registry
of
Deeds.:
Only
Dirty
Deeds
Recorders
Like
Kent
County
DE's
Betty
Lou
McKenna
Restrict
Media
Access
and
Cameras
https://www.youtube.com/watch?v=4uPuF-Z_Ft415
Add
that
to
the
abject
failure
to
analyse
Pomykacz
and
the
material
misstatements
regarding
the
Law
on
Private
Actor
42
USC
1983
liability
and
you
have
the
distinct
impression
that
Plaintiff
did
not
get
a
full
and
fair
review
in
this
case.
15 This record on Appeal will be as full as it should be, the Courts disdainful commentary regarding
21
I.
and
thorough
nature
of
Plaintiffs
Motion
for
Reconsideration.
What
the
Court
did
not
do,
however,
was
to
take
any
initiative
to
determine
why
the
Court
placed
pictures
of
his
image
throughout
the
Courthouse
on
or
about
10-11
June,
2015.
For
the
Record,
Plaintiff
wrote:
I.
Plaintiff
is
aware
that
there
was
at
least
one
meeting
with
security
about
him,
and
he
is
further
aware
that
his
image
was
posted
throughout
the
building.
Plaintiff
carries
a
Canon
but
he
is
not
some
sort
of
dangerous
black
man
who
should
be
on
a
wanted
poster.
He
is
a
mortgage
industry
professional
who
has
worked
for
major
and
small
press.
He
is
the
new
face
of
journalism
in
the
Modern
Era,
much
as
he
was
in
1998
when
he
advised
the
Court
of
his
right
to
run
video
in
a
Courtroom,
which
obviously
worked
or
you
wouldnt
be
seeing
this
today:
. https://www.youtube.com/watch?v=zVNVyijeQKU
Further,
the
Court
refused
to
analyse
or
to
even
consider
the
Ayotte
facts
or
the
Gunlocke
Affidavit
even
though
the
case
should
have
been
converted
to
Summary
Judgment,
as
noted,
infra.
But
one
way
or
another
some
Gunlockes
will
be
involved,
even
if
we
have
to
wait
until
we
get
to
SCOTUS,
which
renders
its
Decisions
from
Gunlocke
chairs.
22
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
23
APPENDIX
A
Case 1:03-cv-05677-JEI-JS Document 15 Filed 12/17/04 Page 1 of 2 PageID: 123
24
25
26
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
8th
day
of
July,
2015
________________________________
CHRISTOPHER
KING,
J.D.
27