COMES NOW, Plaintiff Marc Perkel, in reply to the respondent’s brief.

The Respondents’ facts are inaccurate, incomplete, or misleading in the following areas.

1. When the plaintiff stepped out of the house it was in submission to the arrest in that the plaintiff determined it was unwise to resist arrest or flee from two armed police officers.
2. The assertion that the plaintiff was shown the summons is inaccurate and misleading. The plaintiff demanded to see the summons at the time of the arrest. The officer flipped open a ticket book very briefly in a manner as to avoid the plaintiff from reading it. The transcript of the audio recording of the arrest included multiple angry demands by the plaintiff to know why he was being arrested and who filed a complaint. At the jail the demands continued. The officer held the ticket briefly to the drunk tank window, again in a manner to avoid the plaintiff from reading it. The plaintiff spent 10 hours in jail not knowing who was accusing him. The defendants’ statement that the plaintiff was showed a summons is misleading.
3. The defendant’s assertion that Officer Holle twice informed the plaintiff that he could bond out is a boldface lie and not supported by the audio recordings of the arrest which contain no such statement. The plaintiff had the bond money on his person in cash at the jail and most certainly would have bonded out if given the opportunity to.
4. The statement that the defendant’s never refused to allow the plaintiff to make a phone call is similarly misleading. The plaintiff asked many times during the night to make a phone call to his lawyer and was refused until morning, at which time the morning detention officer offered that the plaintiff could bond out instead. Furthermore, the defendants’ fail to state the plaintiff’s assertion that the true reason he was arrested and detained was to prevent him from testifying as a witness in a bond revocation hearing for a friend. Had that hearing not been postponed, the plaintiff would have missed the hearing. In the officer’s statements to the internal affairs officer, and in response to the question as to why the plaintiff was arrested without a warrant, officer Holle mentioned the hearing the next morning as a reason for the arrest.
5. Plaintiff’s 8^th amendment assertions are that the conditions of the drunk tank are such that anyone detained there could complain based on 8^th amendment principles, not that he was singled out and mistreated.

The court and the defendants rely upon United States v. Santana which doesn’t apply to the facts here. In Santana, a police officer, who was on the street, in a public place, witnessed a crime taking place in the doorway of a home. The ruling of the court was that a person could be arrested for committing a crime that was visible from the street. Many cases have been decided since Santana that distinguishes themselves from Santana on that basis.

The defendants make a number of arguments indicating that the plaintiff was not "coerced or duped" into opening the door. The plaintiff admitted that he opened the door in response to a knock and had to open the door to see who was knocking. Because of the lighting conditions at night, the plaintiff could not see through the screen and had to crack the screen door to see who was at the door. At that time the officers confirmed the plaintiff’s identity and arrested him.

The defendants also seem to assert that the moment of the arrest occurred after the point when the plaintiff was told he was under arrest, and seem to assert that by leaving the house after being told he was arrested, that he was actually arrested on the porch in a public place. The plaintiff asserts that he was already arrested and that he left the house to submit to the arrest.

The defendants’ argument using the Botero case is misleading. In Botero, the DEA agents obtained a post arrest search warrant. Because of the search warrant the DEA was legally inside Botero’s apartment. This case had no search warrant or other legal excuse that permitted the officers from entering onto the plaintiff’s property.

The defendants make a key point in their citing of United States v. McCraw 920 F2d 224 (4^th Cir. 1990) in stating, "Had plaintiff Perkel closed the doors, retreated into his home and was thereafter arrested within his home after the officers forced their way in, the McCraw case might have application." This is actually the crucial argument before this court.

If we were to assume the defendants’ position, then the plaintiff, in order to assert his 4^th Amendment rights would have had to engage in a violent exchange with police officers after being told he was under arrest. The defendants argue that the plaintiff would be required to attempt to flee, have his doors to his home broken down, and taken by force inside his home. This line of reasoning would endanger the safety of the public and police officers should a person choose to exercise their rights.

The defendants further argue the lack of coercion citing New York v. Harris, and United States v. Morgan indicating that the officers did not have guns drawn. The plaintiff contends that the officer’s uniform, the fact that they carried weapons, and that these weapons were in plain view were sufficiently coercive. The plaintiff believed at the time he was told he was under arrest, while still inside his home, that had he not submitted to the arrest that the officers would have used force to subdue him, and that telling a person they are under arrest is coercive. The plaintiff would not have left his home had he not been told that he was under arrest.

The plaintiff contends that if the arrest is illegal, then the search incident to the illegal arrest is also illegal. Had the arrest been legal, the search still would not have been.

The plaintiff admits that officers, making a legal arrest, would have the right to follow the person arrested into their home, to be "at the elbow" of the arrested person, and if the officer saw something, could act upon it. But the question before this court is if the officers can search the rest of the home once entering. Can the officer "leave the elbow" and search the rest of the house. This case contains no issue of evidence since nothing was found or seized. The issue here is merely the invasion itself.

It is clear from case law, and the plaintiff admits, that if the officers had a right to do a "Cursory Safety Check" of the rest of the home, see United States v. Kolodziej, 706 F.2d 590, 596-97 (5th Cir. 1983), which is a recognized exception to the warrant requirement. To satisfy the cursory safety check exception "the government must show that there was 'a serious and demonstrable potentiality for danger.'" The record in this case reveals no such immediate threat or security risk to the officers involved here, nor did the officers assert any threat. The plaintiff was in his home quietly watching television when he was arrested for the purpose of preventing him from testifying in court the next day. The plaintiff had no record of violence or prior arrests. Therefore the search was illegal. The defendants would have had to plead justification as an affirmative defense for the "protective sweep". They made no such defense.

The defendants claim no publication, yet a copy of the police report was given to a local radio talk show host upon request. The plaintiff was the democratic candidate in the general election for United States Congress and this arrest was all over the news. It is true that the plaintiff placed information on the Internet himself, but in response to questions about the arrest. The plaintiff had to assert his side of the story to inform the voters of the truth.

Furthermore, the plaintiff has denied, and continues to deny the truth of the statements in the defamatory report and at no time admitted that they were true. The plaintiff admitted that some of the facts were true, but that much was not true and that taken as a whole was untrue.

The attorney’s for the defendant appear to be intentionally misquoting the plaintiff’s deposition in order to defraud this court. Here’s is the quote in context:

The bold text is the part they are representing to this court that the plaintiff admitted to the truth of the police report. But as this court can see, the defendants’ lawyers are lying about what the plaintiff supposedly admitted.

The defendants’ attorneys failed to mention that the plaintiff corrected his statement and falsely misrepresented this to the court. Therefore, the plaintiff moves, as if the rules actually mean anything, (Hazel-Atlas, 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250) that the court slap the hands of the defendants’ attorneys for false representation, and lying to this court, and make a finding that if a party has to cheat to win, that they have admitted through conduct that they can’t prevail on the merits. In Missouri v. Robert Joe Mason, 394 S.W.2d 343 and Missouri v. Soloman Seals, 515 S.W.2d 481 states:

The plaintiff further states that the conduct of the defendants’ attorneys reflects the attitude of their clients showing pervasive indifference to honesty, fair dealing, and the rule of law, and that this indifference to the rules of court, rule of law, and honesty is rooted in, among other things, the federal courts, and this court in particular. When federal judges participate in the concealment of misconduct, as Judge Wright did in overruling the Constitution, this kind of dishonesty is encouraged.

The reason the plaintiff was really arrested was that the officers knew they could get away with it. The Internal Affairs Officer covered up for the cops, the Chief of Police covered up for the Internal Affairs Officer. The City Council covered up for the Chief of Police. Now the federal courts are covering up for everyone. So the real issue before this court is, are you going to become part of the cover-up too? And is the United States Supreme Court going to cover up for you? Was your oath of office to uphold the Constitution something that had any meaning at all? Or is it something you were required to say in order to get your jobs?

When the courts become the lawbreaker, there is no law, and it invites anarchy. These attorneys tried to pull a fast one on this court. What are you going to do? Are you going to follow the rules or let it slide? Does the doctrine of "a fish rots from the head" apply to this court?

The plaintiff also claims false light invasion of privacy, and as a pro se the court can consider matters not plead by reading the facts expansively. White v. Bloom, 621 F.2d 276. There was no justification to include alleged acts with prostitutes in a trespassing charge. Half of the information in the police report is related to the case of the plaintiff’s friend who was up for a bond revocation hearing, and for which the plaintiff was arrested.

The defendants pull out of thin air that the emotional distress wasn’t medically significant with no basis whatsoever for that claim.

This issue rests on the arrest being illegal in the first place. It is clear from the letter presented to the court from the Chief of Police and the Internal Affairs Officer that they consider a warrantless arrest in the home to be perfectly proper. Clearly they reviewed the facts, as they state they have, and know that the officers attempted to get a warrant, were denied a warrant, and proceeded to make the arrest anyhow. Apparently the City of Springfield believes that they can go out and arrest anyone in their homes without a warrant and that’s just fine. The plaintiff send three letters to each member of city council, the mayor, and the city manager, all of whom ignored it when they had a duty to act and were complicit in the cover-up of police misconduct. Three members of city council are lawyers and should know better. Especially since I sent them the case law on the subject.

It’s the plaintiff’s contention that he was not prosecuted as a result of a citizen’s complaint, but to conceal an illegal arrest and to defame him. This was not a citizen’s complaint because the plaintiff was arrested before the complaint was made. The officers admitted they were still writing the complaint during the arrest. This means that the complainant signed a blank complaint or signed the complaint after the plaintiff was already in jail.

The plaintiff contends that the government has no right to hold a person in jail for the purpose of preventing him from testifying at a judicial hearing. The defendants’ appear to believe that a police officer can throw anyone they want in jail for 20 hours any time they want. The plaintiff contends that RSMo. 544.170 would be unconstitutional if interpreted in this light.

The defendants’ case rests on the legality of the arrest. If the lower court is overturned then punitive damages are back on the table.

A decision in favor of the defendants effectively nullifies the 4^th Amendment to the United States constitution. If this set of facts justify a warrantless arrest then there are no set of facts that would prohibit a home arrest. Police officers are entitled to qualified immunity unless they have violated clearly established law. This decision makes the line of the home a very fuzzy line, and the fuzz extends throughout the entire home. Thus any officer could make an argument, base on this decision, published or not, (See Anastasoff v. United States of America, Case No-993917EM (8^th Cir. Aug. 22, 2000)) that they believed that any invasion of the home was justifiable, and would be immune from a civil rights suit. This would undermine the chain of command and allow police officers to act as judge and prosecutor.

The plaintiff contends that the correct place to draw the line in this case is not at the door of the plaintiff’s home, but at the plaintiff’s property line. Although it has been held that a person’s door is a public place which anyone can walk up to and knock, the plaintiff contends that the door is only semi-public, and that not anyone can just walk up and knock.

An officer would have the right to approach a citizen’s door only on official and legitimate government business. An officer could knock on a door to sell candy to raise funds. But can an officer knock on a door at 3:00am selling candy? Not hardly. At 10:30 at night the door is only public for close friends. The plaintiff contends that if this court actually decided to take up this question in a responsible manner, rather than to ignore it because the plaintiff is pro se, that this court should write in its opinion that the officers violated the rights of the plaintiff by stepping onto his property for an illegitimate reason. And that the 4^th amendment draws a line, not at the door, but at the property line in cases where the state crosses that line lacking a legitimate reason to do so.

The constitution created a balance of powers for the purpose of preventing any one branch of government from usurping the powers of the king. By creating a system for which each branch had a duty to the people to distrust the other branches, the founding fathers realized, and wrote into the constitution, that the distrust of the government was absolutely necessary in order to preserve the government’s mission in serving the people. The government has a constitutional duty to the people to both distrust itself, and to be distrusted. In distrusting the state, the founding fathers determined that without the distrust of the state, that the freedom and supremacy of the people can not be preserved.

A citizen’s front door is public only to friends, trusted individuals, and other people with legitimate business. A person who approaches a front door and knocks who has either no legitimate business or is unwelcome is considered a trespasser, as the plaintiff was accused of. The front door is not a public place for a trespasser and that is reflected in law.

The plaintiff contends that because of the duty of the state to be distrusted, that the state must always be presumed to be an unwelcome visitor unless the state is there for a legitimate purpose, and that in the absence of the legitimate purpose, that the 4^th Amendment draws a line, not at the door, but at the property line. The State is not a friend who comes over to your house party with you. These officers have to have a reason to approach the door in the first place. They have to be at least selling candy.

Having said that, I don’t know why I’m wasting my time explaining law to this court who has already determined that the plaintiff’s case doesn’t even merit a settlement conference and that the plaintiff need only submit 5 copies of his brief to the court because he’s pro se instead of 10 copies so the clerks have less paper to throw away, supporting the "pro se litigants must never win" rule. It’s clear that neither the plaintiff nor the court have any respect for each other and the plaintiff makes his argument knowing that the court does not hear his words and that he might as well argue the law in front of dogs.

This court has the authority and duty to interpret the constitution, but not to override the constitution. The 4^th Amendment is clear and any person of average intelligence knows that the decision of the trial court is wrong. The courts exist solely for they purpose of serving the people and to protect the rights of the people. Any court that fails to do its job commits treason to the constitution and an offense against the people. I find it amazing that I even have to make this argument. Why does a pro se litigant have to explain the constitution to the judges of this court as if you don’t already know that I am right?

The tone of this brief may seem disrespectful to the court. That’s because it is. The way I interpret the Constitution it is my duty as a citizen to be disrespectful to the court when the court is conspiring with the State to conceal misconduct against a citizen.

I believe the only real question before this court is if you are really judges or merely judicial impersonators. Are you going to uphold the law or conspire with the defendants to conceal police misconduct?

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 - 09-05-00