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In the Eighth Circuit Court of Appeals
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Marc Perkel, pro se Appellant, Vs City of Springfield, et al Appellee, |
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Appeal No.: 00-2248
Federal Case No.: 98-3486-CV-S-SOW |
Appellant's Opening Brief
COMES NOW, Plaintiff Marc Perkel, to ask the court to overturn the decision of the federal circuit court.
Issues on Appeal
Discussion
The plaintiff is appealing two summary judgements. The plaintiff had earlier appealed the first summary judgement to this court and this court ruled that the issues were interlocutory and that this court jacked jurisdiction at that time to review the decision. The final summary judgement has not made the two judgements ripe for review.
Since all these issues were decided by summary judgement, the standard of which is that there are no genuine issues for trial. For the purpose of summary judgement, the fact alleged must be assumed true, for the purpose of determining if the defendant is entitled to summary judgement. The plaintiff asks the court to keep this in mind when reviewing these summary judgement claims.
Many of the plaintiff's claims and the court's decision rests on whether or not the arrest of the plaintiff was legal. Thus if this court overturns the decision that the arrest was legal, it must also overturn the decisions that rely on the arrest being legal.
Furthermore, the plaintiff complains that the court improperly denied each and every discovery request and has acted in a manner that appears to the plaintiff to be prejudicial to the plaintiff's position and therefore the plaintiff states for the record that the plaintiff does not believe he can get a fair hearing before this trial judge, should this be sent back for a trial.
Because the Plaintiff is pro se, the Court has a higher standard when faced with a motion to dismiss. White v. Bloom, 621 F.2d 276 makes this point clear and states:
A court faced with a motion to dismiss a pro se complaint alleging violations of civil rights must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972). Moreover, "the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)).
Thus, this court will have to apply the standards of White v. Bloom. Thus if there is any possible theory that would entitle the Plaintiff to relief, even one that the Plaintiff hasn't thought of, the court can sustain summary this case.
The False Arrest
The undisputed facts of the issue of home arrest vs. public arrest are as follows:
The plaintiff was in his home watching television at 10:30 at night with his shoes off. It was dark outside. The door to his house was closed and the plaintiff was not visible from the street. The police, who had arrived at the plaintiff's home for the purpose of arresting the plaintiff, knocked on the door summoning the plaintiff from his chair to see who was at the door. The plaintiff opened the door for the sole purpose of determining who was knocking and saw two armed police officers. Officer Holle asked if the plaintiff was "Marc Perkel" to which the plaintiff, who was standing in the doorway with the screen door cracked, responded affirmatively. The officer then informed the plaintiff that he was under arrest for a trespassing violation (city ordinance infraction) that occurred three days prior. The plaintiff, believing he was no longer free to leave, stepped out onto the porch to submit to the authority of the armed police officers whom he believed would have used force to complete the arrest.
In making its decision, the court relies on United States v. Santana 417 U.S. 38 (1976). Santana was a case that was decided before Payton v. New York 445 U.S. 573, 576 (1980) and had a very different set of facts than the case presented here. In Santana, the sole case the trial court relied on, the crime (dealing drugs in the doorway) was being committed in the doorway in plain view of an officer on the street. In this case the infraction was supposedly committed three days prior. Since Payton and Santana there have been many decisions having to do with what constitutes a home arrest. As the trial court correctly pointed out, the facts are not in dispute and the width of the door crack is of no consequence. The court has established that the arrest was without a warrant, and that the charge was not a felony. It is also an undisputed fact that the plaintiff was in his home watching television when he responded to the police knocking at the door and opened the door to see what they wanted.
Plaintiff contends that the order of the court is an error in law in that it has been decided that a person does not waive their fourth amendment rights by responding to a knock at the door. This decision by the court sets a dangerous precedent and effectively suspends the constitutional rights of an entire city to be secure in their homes from warrantless arrests. The following case of United States v. McCraw, 920 F.2d 224 distinguishes itself from Santana in that the arrestee, like the plaintiff, was not standing in the doorway when the police arrived.
United States v. McCraw, 920 F.2d 224
The government contends that Mathis's arrest is governed by United States v. Santana, 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976), in which the United States Supreme Court characterized the doorway of an arrestee's home as a public area in which the arrestee has a diminished expectation of privacy. In Santana, the suspect, "Mom" Santana, had been identified as the supplier of drugs by another arrestee minutes earlier. The police then drove to Santana's residence. As they drove up, they saw Santana standing on the threshold of the doorway of her home, holding a brown paper bag which officers believed contained drugs. The officers drove to within fifteen feet of the suspect and exited their van shouting, "Police." Santana retreated into the vestibule of her home where she was arrested. The Supreme Court held that the doorway was not an area where the suspect had any expectation of privacy and that when she knowingly exposed herself to the public she lost the fourth amendment protection applicable to her home. Id. at 42. The Court went on to hold that the police were justified in pursuing her into the vestibule of her home without a warrant because they had a realistic expectation that any delay would result in the destruction of evidence. Id. at 42-43.
The Supreme Court identified the case as one involving a true "hot pursuit." Santana, 427 U.S. at 42-43. The need to act quickly to prevent the destruction of evidence justified the warrantless entry. Id. at 43. The Court concluded that "hot pursuit" means some kind of chase, though not to the extent of some "extended hue and cry 'in and about [the] public streets.'" Id. (quoting the district court). The pursuit may end almost as soon as it begins. Id. If the suspect sees the police, and the authorities have a realistic expectation that any delay will result in the destruction of evidence, they may enter without a warrant to effect an arrest. Id.
The Santana case is distinguishable from the present case in that the arrestee in the present case was not standing on the threshold of the doorway at the time the agents arrived. Instead, Mathis came to the door in response to the agents' knocking. Moreover, Mathis did not relinquish completely his expectation of privacy. At trial, government witnesses did not even contend that Mathis was on the threshold of the doorway, instead admitting that he opened the door only halfway to determine who was knocking, attempted to close it, and that they forced their way inside to make the arrest.*fn3 By opening the door only halfway, Mathis did not voluntarily expose himself to the public to the same extent as the arrestee in Santana. He certainly did not consent to the officers' entry into his room to arrest him.
A recent Supreme Court case suggests that the police may not forcibly or coercively gain admittance to a private residence to effect an arrest simply by obtaining the arrestee's presence at the door. In New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), police officers with guns drawn knocked on the arrestee's apartment door but received no response. When the suspect looked out of the peephole of the door, one of the officers displayed his badge. The suspect then opened the door and allowed the officers to enter. Once inside, the officers asked the suspect a series of questions which resulted in an admission of guilt. The officers then formally arrested the suspect, although they had probable cause for the arrest before entering the apartment.
The McCraw case sets a different standard than Santana in that Santana was a hot pursuit case and Santana was already in the doorway visible from the street when the police observed her holding a bag believed to contain drugs. In this case the plaintiff was inside his home with the door shut watching television when he was summoned to the door by a knock In the case of United States v. Johnson, 626 F.2d 753 (9th Cir. 09/02/1980) the court made this distinction clearer explaining that officers would extend their reach into the home by controlling the suspects movements inside the house.
United States v. Johnson, 626 F.2d 753 (9th Cir. 09/02/1980)
This case can be distinguished from both Santana and Botero. In Santana the suspect was in full view in the doorway as the officers approached.
In Botero there was no subterfuge in getting the suspect to open the door; furthermore, exigent circumstances existed. In contrast, Johnson opened the door of his dwelling after the agents misrepresented their identities; thus, Johnson's initial exposure to the view and the physical control of the agents was not consensual on his part. Cf. Payton, 445 U.S. at 583, 100 S. Ct. at 1378 (entries were similarly nonconsensual). Moreover, Johnson's invitation to the agents to enter after the door was opened was hardly voluntary in light of the coercive effect of the weapons brandished by the agents.This case, on the other hand, differs from both of the situations addressed in Payton. The illegal search of Payton's home and the illegal arrest of Riddick did not occur until the police had entered the suspect's homes. 445 U.S. at 573-579, 100 S. Ct. at 1374-76. In this case, we are confronted with the situation where the suspect was arrested as he stood inside his home and the officers stood outside his home with drawn weapons. In these circumstances, it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home. Otherwise, arresting officers could avoid illegal "entry" into a home simply by remaining outside the doorway and controlling the movements of suspects within through the use of weapons that greatly extend the "reach" of the arresting officers.
In the case of United States v. Morgan, 743 F.2d 1158 (6th Cir. 09/13/1984) the court spells it out in stating specifically, by stating "to uphold warrantless arrests at a person's home whenever law enforcement officers successfully obtain his presence at a door too readily allows subversion of the Payton principle."
United States v. Morgan, 743 F.2d 1158 (6th Cir. 09/13/1984)
Applying this rule here, it is undisputed that Morgan was peacefully residing in his mother's home until he was aroused by the police activities occurring outside. Morgan was then compelled to leave the house. Thus, as in Johnson, supra, "it cannot be said that [Morgan] voluntarily exposed himself to a warrantless arrest" by appearing at the door. On the contrary, Morgan appeared at the door only because of the coercive police behavior taking place outside of the house. See Johnson v. United States, 333 U.S. at 13 (police entry to defendant's living quarters "granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right"). Viewed in these terms, the arrest of Morgan occurred while he was present inside a private home. Although there was no direct police entry into the Morgan home prior to Morgan's arrest, the constructive entry accomplished the same thing, namely, the arrest of Morgan. Thus, the warrantless arrest of Morgan, as he stood within the door of a private home, after emerging in response to coercive police conduct, violated Morgan's fourth amendment rights. A contrary rule would undermine the constitutional precepts emphasized in Payton. See United States v. McCool, 526 F. Supp. 1206, 1209 (M.D. Tenn. 1981) ("to uphold warrantless arrests at a person's home whenever law enforcement officers successfully obtain his presence at a door too readily allows subversion of the Payton principle"). And because Morgan's arrest was unlawful, any evidence seized incident to that arrest was obtained illegally and therefore must be suppressed. Payton v. New York, supra; Davis v. Mississippi, 394 U.S. 721, 724, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969); Taylor v. United States, 286 U.S. 1, 5, 76 L. Ed. 951, 52 S. Ct. 466 (1932).
Rogers v. Carter, 133 F.3d 1114 (8th Cir. 01/20/1998)
This 1998 Eighth Circuit decision is very similar to this case. Again you have a warrantless home arrest that was held to be in violation of the fourth amendment. This first paragraph is the set of facts surrounding the arrest:
On September 23, 1994, Janice Rogers was living in an apartment in an apartment complex in Forrest City, Arkansas. Her brother, David Rogers, a sergeant in the United States Army, was visiting her. Janice Rogers and David Rogers are African-American. On the date in question, David Rogers and a friend were at Janice Rogers' apartment, and Janice Rogers was not at home. The apartment door was open and music was playing inside the apartment. Sarah Carter, the apartment complex manager, asked them to lower the volume of the music or close the apartment door. An altercation between Sarah Carter and David Rogers ensued, after which Sarah Carter called the police. Moments later, Sarah Carter's husband, Bobby Carter, arrived. After talking with his wife, Bobby Carter approached David Rogers, who at that time was standing outside the door to Janice Rogers' apartment. Bobby Carter, a lieutenant with the Forrest City Police Department, verbally identified himself as a police officer and began questioning David Rogers. Bobby Carter was dressed in plain clothes. David Rogers requested to see Bobby Carter's police identification. Bobby Carter did not produce a badge or any other indicia of authority as a police officer, but again verbally stated that he was a police officer. David Rogers refused to answer Bobby Carter's questions and turned to go back into the apartment. Bobby Carter grabbed David Rogers by the shirt, at which point Rogers "body-slammed" Carter to the ground, walked into the apartment, and locked the door. Bobby Carter got up from the ground, pulled out his revolver, and kicked open the apartment door. David Rogers surrendered upon seeing the firearm.
Here the police officer confronted the person he arrested outside the door of the apartment. The officer attempted to grab him and to take him into custody. The officer was body slammed and the arrestee retreated into his apartment and locked the door. In response to this set of facts the court ruled:
Even if Bobby Carter did have probable cause to arrest David Rogers (which he did not), it still would have been erroneous for the district court to grant summary judgment in favor of Bobby Carter and the City because Bobby Carter's purported arrest of David Rogers was an unlawful warrantless home arrest. In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court held that probable cause is not an adequate basis to permit a warrantless arrest in the home in the absence of exigent circumstances. Quoting from a decision of the Second Circuit, the Supreme Court explained:
"To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present."
We find this reasoning to be persuasive and in accord with this Court's Fourth Amendment decisions.
The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their . . . houses . . . shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Id. at 588-89 (citations omitted) (emphasis added).
Five years later, in 1985, this court stated "[i]t is now clearly established that the Fourth Amendment prohibits a warrantless entry into a suspect's home to make a routine felony arrest absent consent or exigent circumstances." Schlothauer v. Robinson, 757 F.2d 196, 197 (8th Cir. 1985) (per curiam) (citing Steagald v. United States, 451 U.S. 204, 211-12 (1981); Payton v. New York, 445 U.S. at 586-90); see also United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir. 1990) ("[t]he exigent-circumstances requirement applies even when, as in this case, probable cause for the arrests clearly exists"). Clearly, there was no consent in this case because the arrest was conducted by means of a forced entry, with gun drawn. Moreover, under the Fourth Amendment, Bobby Carter's arrest of David Rogers in Janice Rogers' apartment is treated in the same manner as if it had occurred in David Rogers' own home. See Haley v. Armontrout, 924 F.2d 735, 736 (8th Cir.) ("[i]t is, of course, well-settled that, absent exigent circumstances, an arrest warrant is required in order to arrest a suspect in his home or in any private place in which the suspect has a legitimate expectation of privacy as a guest or otherwise"), cert. denied, 502 U.S. 842 (1991). Under well-established law, therefore, Bobby Carter's actions violated David Rogers' Fourth Amendment rights unless appellees can show that there were exigent circumstances in the present case requiring a warrantless home arrest.
The plaintiff contend that if the eighth circuit ruled in favor of the arrestee when he confronted a police officer outside his apartment, the surely the plaintiff has a right of expectation of privacy inside his home and can answer a knock at the door without waiving his constitutional rights.
Duncan v. Storie, 869 F.2d 1100 (8th Cir. 03/13/1989)
In Santana, the Supreme Court took particular care to point out that the individual who was arrested was "standing directly in the doorway -- one step forward would have put her outside, one step backward would have put her in the vestibule of her residence." 427 U.S. at 40 n.1. We think it unwise to become preoccupied with the exact location of the individual in relation to the doorway. Cf. United States v. Carrion, 809 F.2d 1120, 1128 n.9 (5th Cir. 1987). As the case law discussed previously illustrates, the crucial issues involve the individual's reasonable expectation of privacy and whether that individual came to the doorway voluntarily.*fn5
The existence of genuine issues of material fact is evident in this case. The parties dispute whether the arrest occurred in a public place. Storie and Whitted contend that Duncan stepped out on the porch voluntarily. Duncan, however, asserts that he had simply opened the door and remained in the home. Storie then requested him to come outside. Duncan refused to accede to this request. Duncan had answered the door for the sole purpose of handing the report out to the officers. When it was apparent that the officers were not there for the report, Duncan stepped farther back into the house and attempted to close the door. It was at that time that Duncan claims he was pulled from his home by the officers. A jury could find that Duncan's attempt to retreat, much like the suspect's retreat in Santana, placed him firmly inside his home and the officers would be required to demonstrate exigent circumstances.*fn6 Under Duncan's version, which we must credit for the purpose of reviewing the denial of summary judgment, Storie and Whitted did not announce their intention to arrest Duncan until he was pulled out of his home.*fn7 Under this version it would be impossible to hold as a matter of law that he voluntarily placed himself in a public place and willingly relinquished the expectation of privacy that he is entitled to when he is within his home. Duncan's version of the arrest asserts violations of clearly established constitutional rights and it would be improper to grant summary judgment before the finder of fact has determined these issues.
Footnote #5: In Santana, for example, the suspect was not summoned to the door. In fact, she was already standing in the open doorway of her home when the police arrived and identified themselves. 427 U.S. at 40. It was at that time that she retreated to the vestibule. Id. The Court found that the doorway was a public place under these circumstances. Id. at 42. It was, however, the existence of exigent circumstances -- "a true 'hot pursuit'" -- that permitted the officers to pursue the suspect inside her house. Id. at 42-43 & n.3 (citing Warden v. Hayden, 387 U.S. 294, 298, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) and Johnson v. United States, 333 U.S. 10, 16 n.7, 92 L. Ed. 436, 68 S. Ct. 367 (1948)). See also United States v. Martinez-Gonzalez, 686 F.2d 93, 101 (2d Cir. 1982).
In Duncan v. Storie, Duncan, like the plaintiff, opened the door to his home and was standing in the doorway. However, the court ruled that if Duncan did not step out onto the porch before he was arrested, he would be considered to be firmly inside his home. Thus being present at the doorway is not a public arrest. In Duncan, the court ruled that he would have had to voluntarily leave his home before being placed under arrest to be construed as a public arrest. In this case the plaintiff was clearly inside his home at the point when the officers placed the plaintiff under arrest. The plaintiff went out onto the porch only to submit to the arrest because of a showing of authority of the police officers and a belief that the officers would have used force to complete their illegal arrest. The Duncan case clearly establishes that the plaintiff appearance at the doorway is not a waiver of an expectation of his privacy because he was summoned to the door by the police officers.
Police Trespass
In addition to his other arguments the plaintiff would point out that the arresting officers were trespassing on the plaintiff's property at the time of the arrest. The officers were there acting as agents of the government who entered the plaintiff's property for the purpose of making an illegal arrest. The plaintiff contends that his door is only public for those who have a legitimate purpose for being there.
Protective Sweep
The plaintiff makes no argument that if he were legally arrested that the police officers had a right to follow him into the house to get his shoes. However, the issue the plaintiff complains about is the protective sweep of the rest of the house once the officers were inside. The court cites the case of Maryland v. Buie 494 U.S. 325 (1990), the landmark case for protective sweeps. The Buie case states:
Held: The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Michigan v. Long, 463 U.S. 1032, 1049-1050; Terry v. Ohio, 392 U.S. 1, 21. Pp. 330-337.
Buie requires that there be specific articulable facts supporting that the area to be swept harbors an individual posing a danger to those on the arrest scene. In the present case the defendants have not asserted that the police were in danger or stated any facts at all that would support the belief that the officers were facing any kind of danger. Without having asserted a claim of danger nor asserted any facts justifying the protective sweep nor any affirmative defenses in their response to the plaintiff's pleading, these defendants can not claim Buie as a defense. The Buie case concludes:
We conclude that by requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals of Maryland applied an unnecessarily strict Fourth Amendment standard. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.
False Imprisonment
The plaintiff has asserted that he was not, in fact, arrested for trespassing, but was arrested to prevent the plaintiff from appearing as a witness at a bond revocation hearing scheduled the next morning. The plaintiff presented evidence to the court (the questionnaire the officers filled out, question #13 in response to a internal affairs investigation) indicating that the true intent of the officers was to fabricate a charge to keep the plaintiff from appearing in court and to teach him a lesson. The plaintiff also presented evidence that the officers attempted to obtain an arrest warrant and were denied a warrant. And after being denied a warrant, made the arrest anyway. The plaintiff wasn't arrested, he was, in fact, kidnapped.
Defamation and false light invasion of privacy
The court concluded summarily that the plaintiff suffered little more than embarrassment. How the court came to this conclusion is a mystery. The police report of the arrest for "trespassing" accused the plaintiff of a multitude of sex acts with a variety of prostitutes. While the plaintiff had admitted in his deposition that he had been lovers with some of the women mentioned in the police report, that he denies 90% of what he is accused of. The police report accused the plaintiff of having unprotected sex with prostitutes implying that he has a loathsome disease and accusing him of committing numerous crimes, both of which are slander per se. The plaintiff at the time was the Democratic Candidate for United States Congress at the time in the general election only 60 days away. The story was broadcast on several television stations as well as in the local newspaper. The plaintiff contends that the sex related accusations in the police report on a trespassing charge was intended to inflict emotional distress upon the plaintiff and to undermine his election to public office.
Malicious Prosecution
The plaintiff has asserted that it was the police and the city that initiated prosecution of the plaintiff and for the purpose of summary judgement the plaintiff's assertion must be considered true. The evidence presented includes documentation that the officer was still writing the ticket at the time the plaintiff was actually being put into the drunk tank and therefore the third party either signed a blank ticket or it was signed after the plaintiff was incarcerated.
Failure to Train, Discipline, and Supervise
The decision of the trial court relies upon the officers not being found liable on the underlying substantive claim, that being the false arrest and imprisonment charges. Thus if this court finds that the underlying arrest was in fact a warrantless home arrest as opposed to a public arrest then it also must overturn the summary judgement as to liability of the city in failure to train, discipline, and supervise.
Impact on Society
The scariest part of this decision is that it effectively cancels out all fourth amendment rights for the entire Western district of Missouri, including the Kansas City area. Here's a case where two officers, who didn't want the plaintiff to appear at a bond revocation hearing, decided to arrest and jail the plaintiff so that he would be incarcerated and unable to attend. The officers usurped the judicial powers of a judge and the arrest was made without any kind of warrant.
The plaintiff contends that he has a right as a citizen to open his front door in response to a knock without surrendering his constitutional rights. Under this decision a person who wished to assert his rights would have to wait for the cops to kick the door in and risk an additional charge of resisting arrest. By making this decision, the court has overruled the fourth amendment to the Constitution and has eliminated the need for any kind of arrest warrant under any circumstances.
Because of this decision, any police officer in Springfield or Kansas City can go up to any home at any time and arrest the occupants and haul them off to jail. For example, suppose the plaintiff went to Kansas City and found a couple of police officers that didn't want to see Judge Wright in Court the next day. Suppose the plaintiff signed a complaint swearing he saw Judge Wright driving without his seat belt fastened. The two officers went to Judge Wright's home and knocked on his door at 10:30 while he was watching TV. Judge Wright opens the door in response to a knock to see who's at the door and thus waives his constitutional rights. According to this decision, the officers would be making a legal arrest. That would be insanity.
What message does this send to police departments? Why would an officer ever bother to get a warrant to make and arrest. Instead of a warrant, all the officer would have to do is to get the occupant to come to the door. This decision not only endorses and encourages police misbehavior, but it also eliminates the role of a judge in the decision to make an arrest. It leaves the decision to arrest in the hands of the police who can make an arrest for the purpose in undermining a judicial process as they did in this case. In ruling summarily for the defendant, the court sends a message to the officers, their sargent, the Internal Affairs Department, the Chief of Police, and the City Council that a warrantless home arrest at the discretion of the police officer is just fine. After all, if a federal judge rules that this behavior is acceptable, what kind of behavior is not acceptable? Any police officer who has access to the Internet will be able to read the decision and use it as a defense for qualified immunity for any illegal arrest. The court's decision undermines the ability of police departments to maintain officer discipline.
The Rights of the People
The Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
As a citizen of Springfield Missouri and the United States of America, and speaking as a representative of and in behalf of the People of the United States of America the plaintiff states, pursuant to the Declaration of Independence, that this court, nor any court, has the authority to waive the right of the people to be secure in their homes from the police knocking on your door in the middle of the night to drag you off to jail without due process of law. The American people have always rejected as repulsive the idea of the knock on the door in the middle of the night to drag political dissidents or people of faith off to jail. We have fought wars to liberate people from such tyranny and the American people are not going to accept it here. This court does not have the power or jurisdiction to take away a citizen's right to answer a knock at the door. Nor does it have the power to overturn the fourth amendment to the United States Constitution. Thus this judgement is a void judgement.
In the case of Elkins Et Al. v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 the court in speaking about the imperative of judicial integrity stated:
"In a government of laws," said Mr. Justice Brandeis, "existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
To say that this decision shocks the conscience would be an understatement. The plaintiff, who is pro se, finds it incredible that this court could determine that the undisputed conduct of these officers constituted a legal arrest. The Declaration of Independence sets the example and outlines the duties of the people to rise up against the courts should the courts undermine the constitutional rights of the people.
WHEREFORE, the appellant/plaintiff asks that this court overturn the decisions of the trial court and make appropriate findings of law to support the Constitution of the United States. Furthermore, the appellant asks for an order that a new trial judge be selected who will rule according to the law and not cover up for the misconduct of the Springfield Police Department.
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Marc Perkel - Appellant - 07-07-00
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