Comes now appellant Marc Perkel, in answer to Defendants Suggestions in Opposition to Plaintiff's Notice of Appeal.

The defendants challenge the jurisdiction of this court based on 28 U.S.C. 1292 stating that this court lacks jurisdiction over interlocutory orders. Defendants claim the appeal isn't ripe because the decision isn't final.

The plaintiff petitioned the circuit court for a partial summary judgement in his favor. The judge ruled summarily against the plaintiff issuing an order of summary judgement in favor of the defendants. In his order the judge, as a matter of law, overruled the 4^th Amendment to the United States Constitution.

In his ruling Judge Wright determined that the warrantless arrest and warrantless search of the plaintiff's home by the police was legal, leaving only minor issues left to litigate. Although the judge didn't rule totally in the defendant's favor, the remaining issues were so heavily dependent on the illegality of the arrest and search as to be not worth pursuing. If this order is wrong, then the rest of the trial would likely be a waste of time. Attached are two letters from the defendants asking the plaintiff to dismiss because they too apparently agree that in light of the decision, this case is over.

The plaintiff therefore argues that the order of the court is a final order, not an interlocutory order. An order is final when it leaves no issues left to decide. For all practical purposes, all the parties agree that there's nothing left to try. If the defendants don't agree with this statement then I ask them to state in writing that there is an issue to try and thus undermine a claim of frivolous litigation.

The general test for a final decision is one 'that ends the litigation on the merits and leaves nothing for the court to do but execute the judgement.'" Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 2457, 57 L. Ed. 2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911 (1945). This finality rule is designed to avoid piecemeal trial and appellate litigation and the delays and costs of multiple appeals upon both parties and courts, as well as to provide a clear test so that needless precautionary appeals need not be taken lest substantive rights be lost. Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399, 401 (5th Cir. 1984).

In ruling summarily in favor of the defendants the court ruled that if a police office knocks on you door and you answer it, that is a public arrest and not an in-home arrest. Additionally, in ruling summarily in favor of the defendants, the court had to assume that all the plaintiff's facts were true. Thus the court ruled that a police officer is allowed to make a warrantless for the purpose of preventing the arrestee from attending a court hearing the next day in an unrelated case. Records in evidence submitted by the defendants indicated that the police officers attempted to get an arrest warrant and were denied. Thus, looking at the fact in a light most favorable to the plaintiff, the judge ruled that a police officer can overrule the prosecutor and bypass a judge and issue initiate an arrest without a warrant for an improper purpose. With this kind of a ruling, how can a litigant prevail? Thus, this ruling is final in that it effectively throws the plaintiff out of court.

The plaintiff therefore asks this court to rule that the order is sufficiently final for the purpose of establishing the jurisdiction of this court.

Alternatively, should this court decide that it does not have jurisdiction because the order is not final, the plaintiff hereby moves that all remaining issues should be dismissed without prejudice so as to make this order a final order, and so that the issues decided in the order can be appealed.

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Marc Perkel - Plaintiff - 09-13-99