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Filings in the 11th cir referencing en banc case in the U.S. 9th Cir.

Filings in the 11th cir referencing en banc case in the U.S. 9th Cir.

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Published by Sheriff_Joe_Arpaio
Oh what a mess when the First Amendment is ignored, or, in this case, deliberately subverted.
Oh what a mess when the First Amendment is ignored, or, in this case, deliberately subverted.

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Categories:Types, Business/Law
Published by: Sheriff_Joe_Arpaio on Oct 12, 2013
Copyright:Attribution Non-commercial

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06/09/2014

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***Court
below USDC
(Middle District
of
Florida)
Huminski
v. Vermont, Docket
No.
2:13-CV-
685-FTM-29DNF,NOTICE
OF APPEAL
FILED
ON 10/2/2013, FEE
PAID
***
In
The
United
States
Court
of
Appeals for the Eleventh
Circuit
SCOTT
HUMINSKI,
PLAINTIFF
-
APPELLANT,
V.
Docket No.
STATE OF
VERMONT,
ET
AL,
DEFENDANTS
-
APPELLEES.
VERIFIED
MOTION
TO
SEVER
AND
STAY ISSUE:
FACIAL
ATTACK
UPON
THE
ARIZONA
HARASSMENT
STATUTE
(AZ
Rev.
Stat. §
13-2921)
TO
ALLOWTHE
U.S. 9
CIRCUIT
COURT
OF
APPEALS TO
EXERCISE
EN
BANC
JURISDICTION,
alternatively,
MOTION
TO STAY THIS APPEAL
PENDING
COMPLETION
OF
PROCEEDINGS
IN
THE
U.S.
NINTH
CIRCUIT
NOW
COMES, Scott Huminski ("Huminski"), and, UNDER
OATH,
states, deposes,
swears,
affirms,
based
upon personal knowledge and moves to
sever
the
issue
of facial and as-
applied
vagueness
and overbreadth of the Arizona
Harassment
statute, AZ Rev.
Stat.
§ 13-2921,
because
the
issue
is being considered
en banc
by the United
States
Ninth
Circuit
Court ofAppeals in Huminski v.
Citv
of Surprise
[Arizona],
et al., 12-16395.
Motion
For Rehearing EnBanc was
filed
in the
Ninth
Circuit
on August 23, 2013 and the motion is contained in the record
on
appeal in this matter.
An
identical facial/as-applied attack upon the Connecticut
Harassment
statute, C.G.S. §53a-183, is properly before this Court. This appeal should
advance
with
regard to the facial andas-applied challenge to the Cormecticut
harassment statute
and other
issues
in this appeal.
In
the alternative, this Court should
stay
this
case
entirely pending completion ofproceedings in the U.S.
Ninth
Circuit
to allow this Court to consider
vagueness
and overbreadth
issues
concerning the
criminal
harassment statutes
of Connecticut and Arizona concurrently ifthe Arizona law is not
addressed
by the
en banc
Ninth
Circuit.
The Court may
also
wish to adopt
1
 
a
disposition
concerning
the
Arizona
statute
and
apply
it to
Connecticut
if the Ninth
Circuit
opines
en
banc
to
promote
consistencybetween
the 9"' and 11"'
federal
circuits.
The two
Statestatutes have
quite
similar
problems
with
overbreadth
and
vagueness.
The
consideration
of a
facial
or
as-appUed challenge
to the
constitutionality
of the
statutes
is
more
efficiently
accomplishedconcurrently
to
advance
judicial
economy,
the
interests
of
justice
and to
avoid
piecemeal
appeals/litigation.
Dual jurisdiction
and
dual
consideration
of
these issues
may
promote inconsistency
in the
federal
circuits.
As
Arizona
is within the
territory
of the U.S. Ninth
Circuit,
it is
logical
for
that
Circuit
to
handle
an
issue
with a
State statute
located
within its
jurisdictional
boundaries.
FACTUAL BACKGROUND FACIAL ATTACK
UPON
AZ Rev.
Stat.
§
13-2921
and
C.G.S.
§
53a-183
AZ Rev.
Stat.
§
13-2921
states
as follows,
ARS
13-2921. Harassment; classification; definition
A.
A person commits harassment if,
witti
intent
to liarass or
with
knowledge
that
the person
is
harassing another person, the person:1. Anonymously or otherwise contacts, communicates or
causes
a communication
with
another person by verbal, electronic, mechanical, telegraphic, telephonic or
written
meansin a manner
that
harasses.
2. Continues to follow another person in or about a public place for no
legitimate
purposeafter being asked to desist.3. Repeatedly commits an act or acts
that
harass another person.4. Surveils or
causes
another person to surveil a person for no
legitimate
purpose.5. On more than one occasion makes a false report to a law enforcement, credit or social
sen/ice
agency.6. Interferes
with
the delivery of any public or regulated
utility
to a person.
B.
A person commits harassment against a public officer or employee if the person,
withintent
to harass, files a nonconsensual lien against any public officer or employee
that
isnot accompanied by an order or a judgment from a court of competent jurisdictionauthorizing the
filing
of the lien or is not issued by a governmental
entity
or politicalsubdivision or agency pursuant to its statutory
authority,
a validly licensed
utility
or waterdelivery company, a mechanics' lien claimant or an
entity
created under covenants,conditions, restrictions or declarations affecting real property.C. Harassment under subsection A is a
class
1 misdemeanor Harassment under
subsection
B is a
class
5 felony.D. This section
does
not apply to an otherwise lawful demonstration, assembly orpicketing.
E.
For the purposes of this section, "harassment" means conduct
that
is directed at a
specific
person and
that
would cause a reasonable person to be seriously alarmed,annoyed or harassed and the conduct in fact seriously alarms, annoys or
harasses
the
person.
2
 
The
Connecticut
harassment statute
states
as follows:
Connecticut General Statutes 53a-183 - Harassment in the
second
degree:
Class
C
misdemeanor
(a)
A person is
guilty
of harassment in the
second
degree when: (1) By telephone,
he
addresses
another in or
uses
indecent or
obscene
language; or (2)
with
intent to
harass,
annoy or alarm another person, he communicates
with
a person by telegraph or
mail,
by electronically transmitting a facsimile through connection
with
a telephonenetwork, by computer network, as defined in section 53a-250, or by any other form ofwritten communication, in a manner likely to
cause
annoyance or alarm; or (3)
with
intent to
harass,
annoy or alarm another person, he makes a telephone call, whether or not a
conversation
ensues,
in a manner likely to
cause
annoyance or alarm.
(b)
For the purposes of this section,
such
offense may be deemed to have beencommitted either at the place where the communication originated or at the place where it
was
received.
(c)
The court may order any person convicted under this section to be examinedby one or more psychiatrists.
(d)
Harassment in the
second
degree is a
class
C misdemeanor
Unlike the
harassment
or
similar
stalking
statutes
of thirty
other
States,
the District of
Columbia
and
Guam,
Arizona
and
Connecticut
have chosen
to not
include
an
exception
for
constitutionally
protected conduct
in
their
statutes.
The
plain
language
of
these
statutes
is wildly
overbroad
and
vague.
Arizona
drafted
its
statute
with an
exception
for
lawful demonstration,
assembly
or picketing,
but,
chose
to
make
the
per se
harassment
inherent
in
civil
litigation a
crime.
Both
statutes
criminalize
a
host
of
other
constitutionally
protected conduct
such
as
blogging,
journalism
and the like on the
internet
and
elsewhere
whereanyone
residing
in
Arizona
or
Connecticut
feels
harassed,
annoyed,
alarmed, alerted
by the
First
Amendment
expression.
Either
the
internet should
be
ordered abolished
or
these
lawsthat
literally
make
the
entireinternet
a
crime
as all of the
content
certainly
harasses
someone
in one of
these States
should
be
stricken.
Surprise,
Arizona
police
officer.
HectorHeredia,
issued
a written
email
threatagainst
Huminski
under
the
color
of AZ Rev.
Stat.
§
13-2921 stating
as follows:
This
is Officer H. Heredia #2019 from the Surprise Police Department. Iwould like to inform you
that
Mr Michael [sic] Nelson filed a
harassment
complaint
with
this department today. Mr Huminski I would like to set upan interview
with
you reference this
harassment
allegation. My scheduledwork days are Wednesday through Saturday 6:00 A.M. to 4:00 P.M.
Please
do
not have any type of contact
with
either Michael [sic] Nelson orAnthony Tsontakislaw
until
I
speak
with
you and hear your
side.
You cancall me at 623-222-4262 to set up an interview or leave a
message
when
you
will
be able to come during the mentioned work days and hours.
3

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