You are on page 1of 23


United States Court of Appeals for the First Circuit


Plaintiff-Appellant v. FRIENDS OF KELLY AYOTTE ET AL. Defendants-Appellees _____________________________________________________


_____________________________________________________ OMNIBUS REPLY BRIEF OF PLAINTIFF-APPELLANT _____________________________________________________

Christopher King, J.D. 85 Messer Street Suite Two Providence, RI 02909 671.543.8085 Plaintiff pro se


1. Table of Contents2 2. Table of Authorities2 ARGUMENT I. Introduction.4 II. The Pruneyard/NAACP Progeny must be affirmed in this case because the properties and events in question are not truly private.5

III. Plaintiff-Appellant has Successfully Pleaded State Action and Conspiracy Pursuant to 42 U.S.C. 1985..11 IV. A Special Word about Nashua PD Defendants and Third Amended Complaint....16 Page


1. Invisible Empire of Knights of Ku Klux Klan v. Thurmont, 700 F.Supp 281 (Maryland 1988)....3 2. Kay v. Bruno 605 F. Supp 767 (1985)..5 3. Pruneyard Shopping Center v. Robins 447 U.S. 74 (1980).5 4. Moose Lodge No. 107 v. Irvis, 407 U.S. 163..5 5. NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986)..5 6. Seveney v. Town of Bristol Town Council, 2006 R.I. Super. LEXIS 855, 6 7. Article XIII, section 5, of the Rhode Island Constitution. 7 8. Weise v. Jenkins, 796 F. Supp. 2d 188 (Dist of Columbia 2011)..8 9. Do Not Admit List Lifted in Fargo for Bush Event Matthew Rothschild February 4, 2005..9 10. Senator Ayottes $120K Legal Headache, Politico...9. 2

11. Ashcroft v. Iqbal 129 S. Ct. 1937 (2009).. 11 12. Bell Atlantic v. Twombly, 550 U.S. 544 (2007) .11 13. Adickes v. Kress & Co., 398 U.S. 144 (1970).11 14. Arizona v. Wells....17 15. Food Lion v. Capital Cities/ABC 194 F.3d 505 (4th Cir. 1999). ..... 20 16. Williams v. Le Crewe De Spaniards, 2009 U.S. Dist. LEXIS 4852. 20 Certificate of Compliance ....22 Certificate of Service ....22 PREAMBLE The Friends of Kelly Ayotte brief, at p. 16 proves that they (and all of the Defendants) still just dont get it: Mr. King attempts to distinguish this case from Kay and Grandmaison because those cases involve individuals being denied the opportunity to speak at a political event. Mr. King argues that he simply wanted to attend the Events as a journalist. Br. 2324. It makes no legal difference, however, why Mr. King wanted to attend the Events. Sadly that is at once the wrong answer and misleading. Plaintiff-Appellant does not make that distinction, the Courts have already made that distinction, and it is a common sense distinction as ignored by the Lower Court yet shown in Invisible Empire of Knights of Ku Klux Klan v. Thurmont, 700 F.Supp 281 (Maryland 1988).1

Thompson specifically did not address the issue of whether minorities attending a KKK rally would have any right to speak. 648 F.2d at 218. Thompson is thus not applicable to the facts in this case. Ahem. 3



KingCast v. Ayotte, GOP & Nashua PD or $2,000 v. $150,000.00. Why is this case so important to Defendants? "There are few more noble causes that a lawyer can pursue.....lawyers must be on the frontline of that struggle to give meaning and dimension to the First Amendment to generate ideas regardless of their implications. -Terry H. Gilbert, Esq. on Christopher King, J.D. Plaintiff-Appellant KingCast will issue a short Reply Brief in this case because there is no need to continually rehash the following main issues: That this is truly a case of First Impression in this District, which is but one of the many reasons that last week, Republican former NH State Representative Kevin Avard hosted Plaintiff on Speak Up! -his weekly television show.2 22 JANUARY 2013 KingCast and former NH State Rep Kevin Avard discuss fraudulent foreclosure, Kelly Ayotte, Terie Norelli, NH Redress & Grievances, NH Family Court, current NH legal and socio-political issues and corruption on Speak Up!

Note that State Rep. Avard has been following KingCast for some time and has never found Plaintiff-Appellant to have misrepresented any factual claims about mortgages, Civil Rights or policing in New Hampshire. The two men discussed the fact that he is going to get heat for hosting Plaintiff, however both men agreed it is always important to air the Truth without fear of consequence. Defendant Ayotte does not want that Truth aired, so that is why she has had high-powered Republicans donate more than $150,000.00 for her defense, so they can win the right to control the media. This Court must not give quarter for this conduct. For what its worth, Plaintiff has spent $2,000.00.


The Pruneyard/NAACP v. Thompson Progeny must be affirmed in this case because the properties and events in question are not truly private. In the right circumstances, with the right quantum of

proof, a purportedly private event may loose the cloak of secrecy when the private event is publicly-advertised, involves a Federal election and his held on property subject to state licensing and permitting. Again see Moose Lodge, Pruneyard and Seveney v. Town of Bristol Town Council, 2006 R.I. Super. LEXIS 85 (town mandated private facility pay for police detail) that will be discussed below. Kay v. Bruno 605 F. Supp 767 (1985) is simply off-point and no other cases cited by the Defendants and the Lower Court involve this exact sort police harassment of members

of the press where the property owner had not objected to the reporters presence.3 Further, Defendants-Appellees and the Court must acknowledge and admit that police cannot mistreat a reporter of any race by: a) b) c) ignoring someone who smacks the reporters equipment while accusing the reporter of wrongdoing, continuing to harass a reporter and remain hovering above him AFTER he has left the leased premises continuing to treat said reporter disparately by singling him out for alleged misconduct while other people (of any race) are the ones who are actually engaging in said misconduct, i.e. being close to a backing car. Any one of these incidents as clearly documented on video may provide indicia of a First Amendment and/or race-based Civil Rights violation. No qualified immunity exists to engage in that conduct. When taken as a whole, they most certainly present enough evidence that Plaintiff must be permitted to engage in discovery, per Seveney v. Town of Bristol 2006 R.I. Super. LEXIS 85:

[*7] Topside states that the Ordinance is invalid for a variety of reasons. First, Topside maintains that the Ordinance improperly delegates a legislative function to an executive officer, the Chief of Police. Second, the plaintiff claims that the charge for the police officers amounts to an unlawful tax. Third, Topside argues that that the Ordinance has been imposed in violation of its state and federal equal protection and due process rights. In response, the Town maintains that the delegation of power to the Chief of Police is valid because it is accompanied by specific guidelines.

Recall, Defendant Nashua PD was more than happy to note that the property management personnel at the Crowne Plaza stated that they were not going to throw him out. Well if that be the case, then those three uniformed police officers had no right to hover over PlaintiffAppellant well after he left the leased area, and thats a fact. And it is also a fact that a reasonably hearty individual in that circumstance would feel that his ability to gather and to disseminate news had been violated. How could Plaintiff pull out his laptop and begin to compose a story under that sort of duress? This is not Kosovo in 1999, it is Nashua in 2012.

Furthermore, the Town argues that the Ordinance is constitutional as it imposes a valid condition on the maintenance of a liquor license for the safety and wellbeing of the public and that the means used are rationally related to this legitimate goal. Finally, the Town claims that the assessment for the police officers is not a tax because it funds to implementation of the protection plan and is not received into the Town's general fund. Constitutionality of the Fee Charged for the Police Officers Lastly, Topside argues that the fee it must pay to the Town pursuant to the Ordinance amounts to an unconstitutional tax under article XIII, section 5, of the Rhode Island Constitution. Article XIII, section 5, states that HN14 "[n]othing contained in this article shall be deemed to grant to any city or town the power to levy, assess and collect taxes or to borrow money, except as authorized by the general assembly." The Town maintains that the fee for the police officers is not a tax but rather a permissible licensing fee. Conclusion After closely considering the facts of the case, this Court declares that the Ordinance is constitutional and valid in all respects. As a result, the Town is entitled to the licensing fees assessed against Topside, pursuant to the Ordinance, from the year 2003 to the present. The defendant Bristol Town Council shall submit a judgment in conformity with this decision. The Thompson court also reasoned that requiring landowners who held private meetings on their property to refrain from racial discrimination would not violate the landowners' property rights to exclude individuals from the meetings. According to the court, the property owner chose to open his land to the public, and cannot thereafter complain that he has been deprived of his privacy right or his freedom to use his own property as he desires. In addition, the court held that the KKK would not be inhibited in its views at the rally by requiring the public rally to be open to all. The plaintiffs in the case did not seek the opportunity to speak at the rally, nor to require the KKK to call upon anyone at the rally. Instead, the plaintiffs complained only of being excluded entirely from the KKK's public rallies.

As to the amount of governmental involvement needed to establish "state action," the court in Thompson cited a U.S. circuit court case establishing that a lesser degree of state involvement is needed [*106] in cases alleging racial discrimination. According to the Thompson court, in such cases, the amount of state action can be de minimis. Further, the antics of Defendants herein are akin to the insanely abusive, morally and politically repugnant policy of Republican predecessors in the Social Security Denver Three case (in which three perfectly law-abiding citizens were ousted by the Republican thought police4), which led to an embarrassing, awkward policy backpedal:

In Weise v. Jenkins, 796 F. Supp. 2d 188 (District of Columbia 2011) Plaintiffs ultimately failed in that somewhat similar case because they could not prove a policy or custom, and in fact the actions of the Because the Advance Manual did not dictate the ejection of Plaintiffs from the President's speech based on Weise's bumper sticker, Plaintiffs have failed to plead facts that plausibly demonstrate a causal connection between their ejection and any nationwide policy created by Defendants. In this case however we dont even know what the policy is and whether the Political Parties that either enforced it or breached it using the Nashua, NH Police Department and the threat of the Manchester NH Police Department who did in fact, arrive. We dont know this for the same reason we are not able to prove that the taxpayers paid for the Nashua PD police detail because the Lower Court erroneously dismissed the case prior to discovery, when Plaintiff had sought answers to those very questions in his Discovery. In any event, recall that these Plaintiffs were not reporters so these cases and their likely results are not apples-to-oranges but important underlying themes, such as the denial of reasonable discovery held only in the hands of the Defendants, is key in this case.

Do Not Admit List Lifted in Fargo for Bush Event Matthew Rothschild February 4, 2005

hey lifted the ban.

After negative publicity surrounding the existence of a do not admit list to Bushs Social Security event in Fargo, North Dakota, Republican Party officials let everybody in on February 3. *************** In this case note that former Bush staffers have contributed to the estimated $150,000.00 Ayotte defense fund. They all hate the truly free press and are aiming to

get a tool from this Court in order to run their hegemonic agenda. From an 18 July 2012 Politico story, Kelly Ayottes $120K Legal Headache:5 A number of GOP senators including John Cornyn, Richard Shelby, Rob Portman and Lindsey Graham have donated to Ayottes fund through their political action committees or PACs. Honeywell Internationals PAC has given $10,000, while Andy Card, former chief of staff to President George W. Bush, donated $1,000.

In the story, Reporters Scott Wong and Manu Raju completely tried to use Plaintiff to fit their own agenda and storyline, writing King, a self-described liberal when in fact Mr. Wong badgered Plaintiff during the phone call to identify his journal as being liberal-leaning. For the record, the TV interview with Republican Kevin Avard gets it right: KingCast questions every politician and pulls no punches and owes no favors. The story did get one thing right, however, and that is Defendant Ayottes stated mission to go after Plaintiff-Appellant: Actually, its not the first time that something I did as attorney general or someone who I went after not after but someone who I enforced the law as attorney general..

Its an unfortunate price to pay for going into public service, Easton said. Unfortunately, elected officials increasingly become targets of these kinds of tactics. As a rhetoric minor and protector of the First Amendment, KingCast takes exception to the use of the word Tactics when uttered by the same man who lied and said that Plaintiff-Appellant has filed frivolous lawsuits. (Id.). As a rhetoric minor and protector of the First Amendment, KingCast takes exception to the use of the word Tactics when uttered by the same team that said an RSA 91-A lawsuit for Defendant Kelly Ayottes emails was an election year stunt. Query, what were Defendant Ryan Williams and Kelly Ayottes tactics in spiking the emails? To deprive the World public of information about a political process to which they were clearly entitled? The answer is a chilling but true.


III. Plaintiff-Appellant has Successfully Pleaded State Action and Conspiracy Pursuant to 42 U.S.C. 1985. Once again, Plaintiff-Appellant has broken down Iqbal and Twombly. To wit, the state actor issue has been the subject of substantial scholarly debate by Faith M. Sparr in Lawrence Erlbaum Associates Inc. Communication Law and Policy paper in Winter, 2007 at 12 Comm. L. & Pol'y 91 ARTICLE: TOWN HALL MEETINGS WITHOUT THE TOWN: WERE THE DENVER THREE'S FIRST AMENDMENT RIGHTS VIOLATED? For instance, in Jackson v. Pantazes, 54 the United States Court of Appeals for the Fourth Circuit collapsed the two prongs of the Lugar test, reasoning that both prongs are "satisfied where the nature of the relationship between the state and private actors is one of interdependence or 'symbiosis.'" Even in the Lugar case, the Court cited with approval the reasoning from Adickes v. Kress & Co., 56 wherein the Court held that the joint action between the private party in Adickes and a police officer was sufficient to support a Section 1983 suit against the private party without any allegation of an unconstitutional statute or custom. Another way to show a sufficient relationship exists between a private party and state actors for purposes of the state action doctrine is to demonstrate that the state has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the state. An example of this test in action is the Supreme Court's 1970 decision in Adickes v. Kress & Co. In Adickes, the Court considered whether a conspiracy between a private party and a law enforcement officer constituted state action for purposes of a Fourteenth Amendment equal protection claim. Sandra Adickes, a teacher in Hattiesburg, Mississippi, was refused service by a waitress at S. H. Kress & Co. because Adickes was in the company of six of her African American students. Adickes brought two claims against Kress, a privately-owned restaurant, both based on an equal protection Fourteenth Amendment argument. Her first claim asserted she had been denied service because she was a white woman in the


company of her black students, and that such denial was based on a custom of the community to segregate the races in public eating places. The second claim, in part, asserted that the refusal of service by the restaurant was the product of a conspiracy between Kress and the Hattiesburg police. In rejecting the lower court's summary judgment decision on the conspiracy claim, the Court relied on the fact that a police officer was present in the restaurant when Adickes was refused service and that this was the same officer who arrested her. The Court acknowledged that the pleadings did not establish that Adickes had knowledge of an agreement between the Kress employees and police, but the sequence of events created a substantial enough possibility of a conspiracy to allow Adickes to proceed at trial. Emphasis added. That is precisely the KingCast argument herein, and as such, the Friends of Kelly Ayotte Brief at p9 is flat wrong because Plaintiff-Appellant has more than a conclusory naked statement, he has everything that Adickes had, and that is enough for further discovery as to what extent Nashua PD and the Defendants coordinated their efforts to single Plaintiff-Appellant out and why. This Court must recognize the crucial nature of this case and what Defendants Ayotte et al. are really fighting for, and that is the ability to control the press, nothing more and nothing less. This is key because in todays society even so-called progressive media get dissuaded from covering dicey matters of public interest when high-powered pols are involved. For example, Plaintiff-Appellant received half a dozen phone calls and several emails with a


reporter from the Sunlight Foundation over the course of a month, who affirmatively stated she was set to get her story run this week nearly two months ago, yet now the same reporter is dodging Plaintiffs phone calls and emails:

What's going on with sunlight foundation coverage? Inbox x

Christopher King <> to Kathryn, bcc: Kevin Dear Kathryn, I know you are busy. You know I wrote for major press before law school so you know that I know that no matter what press you're working for..... you are Always Busy. I get that.

Jan 8


I also know that you at this point have more than enough to issue a major story about this case but I feel something has it bottlenecked. The fact that I asked you about it several times with no response gives me little hope that this story will ever see the light of day in Sunlight publications. That reinforces the fact that this Court must take measures to protect the very sort of independent press that KingCast has come to embody since 2005. Though Chris Kings First Amendment Page and Mortgage Movies Journal have received only several million page views since 2005, and his YouTube pages reflects only 649 subscribers and less than a million views (590,749 as of 31 January, 2013) those numbers are certainly large enough to be considered as a valuable news pipeline. That pipelines is built with

information coming from someone who has been an editor and large daily reporter, practiced as a government attorney, managed a title company, earned a Mayoral Commendation from Nashua, NH Mayor Bernard Streeter (a Republican), and actually won First Amendment trials (Defendant Ayotte tends to lose her First Amendment cases).


So now we see men of two completely different generations in Defendant Ayottes own party working to undo what Defendant is doing, and to protect KingCasts interests, which are in turn the interests of every taxpayer in this Country. If Mayor Streeter and Kevin Avard get it so too must this Honorable Court.6

With the exception of his lifestyle videos, Plaintiff-Appellant is not engaged in the practice of journalism to be a popular or even well-liked fellow. He does not care whether this Court, Defendants or other journalists like him. All he cares about is that all journalists receive equal protection under the Law, regardless of skin color, race, religion or creed.



A Special Word about Nashua PD Defendants and Third Amended Complaint. The Nashua Police Department has a documented, proven

history of threatening, macing and beating people who engage in protected First Amendment activities such as Mike Gannon, Pamela Reynolds and David Ridley, all at times directly proximate to this pending case.7 Here is a picture actually a KingCast video still capture -- of Ms. Reynolds describing how she was tackled like a football player and maced and beaten. She is represented by counsel and will sue now that the Court tossed Nashua PDs trumpedup, retaliatory charges against her.

This proximity mandates a Third and final Amended Complaint. Plaintiff recognizes reasonable finality in everything, but we have not yet arrived at such point. 16

The First Amendment Center notes that the U.S. Supreme Court has yet to decide on the ultimate Right of a reporter to gather and to disseminate the news on private property, however there are yet more relevant cases that inform this case. KingCast provides shares the First Amendment Center notes on the subject: 1. Arizona v. Wells: A reporter was found liable for trespass because, without invitation of any sort, he entered the residence of a police officer. That case is clearly not on point. 2. Food Lion v. Capital Cities/ABC) Food Lion was awarded nominal ($2.00) damages after reporters exposed unsanitary conditions. This case doesnt apply here because thereporters gained access to Food Lion by way of deception. However in this case there was no deception; there was an invitation and the video clearly shows Defendant Hogan welcoming KingCast into the venue (specifically into the leased area) after it had been made crystal clear that Plaintiff-Appellant was at the Crowne Plaza Strictly as a reporter. Moreover, on another occasion, the record is entirely devoid of any indication that the owners of the VFW had any issue with KingCast cameras, yet and still the Nashua Police Department hindered his ability to gather information, to ask questions and to disseminate the news


by repeatedly talking over him and doing so in a manner that singled him out from the white participants as we recall Defendant Fisher barking orders at him while the whites were actually closer to the backing car.8 KingCast does not physically resemble or in practice act like the sort of more conservative burger of the First Amendment like those at the First Amendment Center, or

those at the Sunlight Foundation for

Defendants no doubt attempt to define this transgression as de minimis. But there is no such thing as a de minimis First Amendment violation for a Motion to Dismiss or Motion for Summary Judgment purposes; the Trier of Fact in this case the Jury -determines what is or what is not de minimis.


that matter. All of them are basically white and relatively low-impact on the front line.

They are all derivative enterprises that report on what people on the front line do. On the other hand,

KingCast and other courtroom journalists with professional training, effective and proven Courtroom delivery and video are the journalists who fill that front line, and we depend on Courts of Appeal like this one to protect us. Without this Court, the First Amendment has no friend. Any expert will agree.

CONCLUSION The actions of Defendants are not only rude, they are completely intolerable in a free society, particularly on taxpayer time. They cannot use uniformed police, particularly on taxpayer time, to enforce discrimination at a publicly-advertised event held at commercial facilities subject to licensing and permitting. Plaintiff has conclusively shown -- from Senator McCains ejecting a black reporter, to the Busch era Denver Three to Kelly Ayottes disdain for RSA 91-A, to the Nashua Police Departments repeated arrests, macing and beating of innocent citizens that it is time for this Court to step


in and to protect the press and other citizens engaged in lawful exercise of their First Amendment Rights. This Court may either do the right thing and open the door to sunshine, or slam the door and plunge us right back into the dark ages that existed prior to the American Revolution. If the choice is to do so, then dont even afford KingCast an Oral Hearing because there would be no need for him to waste his time. But if this Court is seriously interested in protecting the future of this Country as it was designed, then Plaintiff-Appellant will appear for Oral Argument with bells on and wearing his First Amendment boxing gloves. Because thats what it takes in this day and age to protect Americas most important Amendment. Once we lose the First Amendment, we have no way to exercise all of the others. Plaintiff-Appellant will conclude with a quote from American Civil Rights lawyer Terry H. Gilbert, issued in 2006 about Plaintiff-Appellant (his former law clerk 12 year prior) as he defeated Defendant Ayottes attempt to imprison him as NAACP Legal Chair because he exercised his First Amendment Rights to forward the interests of Willie Toney -- a black man who faced three drawn police guns and a visual body cavity search for loitering:


"There are few more noble causes that a lawyer can pursue.....lawyers must be on the frontline of that struggle to give meaning and dimension to the First Amendment to generate ideas regardless of their implications. To silence opposition seems to be the modus operandi of the state in order to consolidate its power over its citizens, particularly after 9/11......I know Christopher King embodies the spirit of those who came before us who have sacrificed greatly for this cause. He has experienced all kinds of injustice in his young career, and his message needs illuminated to people as example of what can happen for speaking out in today's society, even as a lawyer." And in speaking out and in trying to gather and to disseminate news, such a reporter cannot be the victim of unlawful retraction of an RSVP amongst his peers because that creates an immediate breach of contract from which a reasonable Jurist might find racial discrimination. See Williams v. Le Crewe De Spaniards, 2009 U.S. Dist. LEXIS 4852.9 Respectfully submitted, /s/Christopher King, J.D. __________________________________ By and through Christopher King, J.D.

Contrary to Defendant Friends of Kelly Ayotte briefing this matter was not waived on appeal. It is clearly argued at pp. 28-29 with a direct citation to Williams. Defendants just cannot help themselves from lying about everything in this case. Their arguments going into pages 22 become even more ridiculous in that they try to claim that Plaintiff is not allowed to claim that specific actions were committed with racial animus when a Defendant treated him differently than white citizens and reporters. 21



CERTIFICATE OF COMPLIANCE This Reply Brief was prepared in a 12pt. Courier New font, and carries a word count of 4629, including footnotes. CERTIFICATE OF SERVICE I the undersigned, solemnly swear that a true copy of this Reply Brief was signed and mailed to the Court and that this version was electronically delivered on: 31 January 2012 to: Jennifer Parent and Jack Middleton, Esq. City Hall Plaza 900 Elm Street Manchester, NH 03101 Gordon MacDonald, Esq. Nixon Peabody LLP 900 Elm Street Manchester, NH 03101 Brian Cullen, Esq. 10 East Pearl Street Nashua, NH 03060 /s/Christopher King, J.D. __________________________________ By and through Christopher King, J.D. 617.543.8085m