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IN

THE SUPERIOR COURT OF THE STATE OF DELAWARE


IN AND FOR KENT COUNTY

CHRISTOPHER KING, d/b/a KingCast/Mortgage Movies,
)







) CASE NO. K15C-03-028

Plaintiff,













)

v.







) JUDGE YOUNG

BETTY LOU MCKENNA, HOLLY MALONE


)
and JOHN PARADEE, ESQ.






Defendants.




)

PLAINTIFFS THOMAS PAINE MOTION FOR RULE 59 RELIEF FROM JUDGMENT:
APPLES TO APPLES and THE FAILURE TO ADDRESS
POMYKACZ V. BOROUGH OF W. WILDWOOD, 438 F. SUPP. 2d 504 (2006)


I.
Introduction and Proof of Unlawful Bias Against Plaintiff.1


The Court downplays Plaintiff right from the start of its 25 page Opinion:

Whilst claiming to issue its opinion based only on the Complaint and making all
inferences in the light most favorable to Plaintiff, the Court nonetheless opines that Plaintiff
fancies himself aguerilla journalist. Plaintiff holds himself out to be a type of guerrilla-
style journalist.
But that purported belief is not stated anywhere in Plaintiffs Complaint. For the
Court, Defendants, law students, First and Fourth Amendment scholars and reviewing Court
edification Plaintiffs Complaint read, in pertinent part:

THE PARTIES

2. Plaintiff is a former daily news reporter and escrow attorney who has
closed several dozen commercial real estate purchases and refinances. He has
successfully tried several First Amendment Jury Trials and has operated
several politically and legally-charged online journals over the past decade,
most notably Chris Kings First Amendment Page and Mortgage Movies
Journal.

1 The core of Plaintiffs arguments in favor of Rule 56 reversal are noted at Section VI B, infra. That

having been said the entire Motion is cogent, germane and set up for full review and/or immediate
appeal if necessary.

That is what Plaintiff holds himself out to be as noted in the Complaint and thats all
the Court claimed to be reviewing, so the pejorative guerrilla nomenclature is reflective of
the short shrift that this Plaintiff ultimately received from the Court. Further, Plaintiff did
provide the Court with excerpts and materials from his website and such description
comports with the information on his website -- which was not once mentioned by the
Court. The Mortgage Movies Journal description has read this way for several years now:

Mortgage Movies Journal


Christopher King has worked in residential and corporate
real estate in various capacities for the past fifteen
years, clearing title, filing zoning applications and
reviewing wireless tower contracts. He and his
associates are now teaming to provide video coverage
of America's imploding Mortgage market. All images
video and text subject to copyright.


Mortgage Movies Journal

Christopher King has worked in residential and corporate real estate in various
capacities for the past fifteen years, clearing title, filing zoning applications and
reviewing wireless tower contracts. He and his associates are now teaming to provide
video coverage of America's imploding Mortgage market. All images video and text
subject to copyright.

So in the first instance, Plaintiff is not a guerilla; he is a professional journalist as
well as a mortgage industry professional who has made hundreds of thousands (if not
millions) of dollars for the banking/mortgage industry.










II.

The Court Incorrectly Found that Commissioner Freud Used Allowable


Discretion per Rule 155 in Refusing to Allow Plaintiff to Run Video at the 11
June 2015 Hearing.


Lets get one thing straight from the get go: Commissioner Freud in point of fact did
not exercise any discretion at all. What she did was to say that Rule 155 did not apply to
trial Court proceedings, whilst cutting Plaintiff off. See Transcript (Tr._________)2 The Plain
Language of Rule 155 states otherwise, and, moreover, even if she was exercising discretion,
why would she do so to eliminate video done by a trained professional journalist and who
has made courtroom video in six (6) different states?
But of course by marginalizing Plaintiff as a guerilla the Court is shading things in
a light that would make the purported exercise of discretion more palatable. That matter
will be preserved for Appeal to the Highest Court of the Country in a related and
forthcoming Declaratory Judgment case, and noted in a documentary film about this entire
circumstance.

III.

Private Actors Like Defendant John Paradee May Indeed be Held Liable Under
42 U.S.C. 1983.
First of all, the Courts use of the ellipse at p. 8 of its ruling is completely absurd

because it eliminates the key predicate allegation that renders such a claim as legally
cognizable. The Court wrote:
Interestingly, Plaintiff himself states, [Defendant Paradee is not a State Actor.
But that is not all that Plaintiff stated in para. 5 of his Complaint. Heres the full sentence
from para 5:

He is not a State Actor but did consult and advise Defendant McKenna on matters
relative to the election and to First Amendment, Free Press conduct of Plaintiff.3

2 Plaintiff avers this as subject to the Pains of Perjury and Under Oath: The Transcript has been

ordered and Plaintiff will file a copy with the Court within the next two (2) weeks, immediately on
receipt of same.
3 One could argue based on this alone this Court never intended to give Plaintiff a fair shake. Now
Plaintiff told Judge Young that this case is going to be a legacy case. His actions are shaping that
legacy into something more ugly than not. See also Section VI H, regarding the failure to convert this
case to Summary Judgment per Commonwealth Constr. Co. v. Red Clay Consol. Sch. Dist. 2010 Del.
Super LEXIS 489 (2010).

Second, perhaps the Guide from the Third Circuit will help:
4.4.3 Section 1983 Whether a Private Person Conspired with a State Official

To prove a conspiracy, [plaintiff] must show that members of the conspiracy came
to a mutual understanding to do the act that violated [plaintiffs] [describe right].
The agreement can be either express or implied. [Plaintiff] can prove the agreement
by presenting testimony from a witness who heard [defendant] and [Official Roe
and/or another participant in the conspiracy with Roe] discussing the agreement;
but [plaintiff] can also prove the agreement without such testimony, by presenting
evidence of circumstances from which the agreement can be inferred. In other
words, if you infer from the sequence of events that it is more likely than not that
[defendant] and [Official Roe and/or another participant in the conspiracy with 40
Roe] agreed to do an act that deprived [plaintiff] of [describe right], then [plaintiff]
has proved existence of the agreement.

In order to find an agreement, you must find that there was a jointly accepted plan,
and that [defendant] and [state official] [each other conspirator] knew the plans
essential nature and general scope. A person who has no knowledge of a conspiracy,
but who happens to act in a way which furthers some purpose of the conspiracy,
does not thereby become a conspirator.
However, you need not find that [defendant] knew the exact details of the plan [or
the identity of all the participants in it]. One may become a member of a conspiracy
without full knowledge of all the details of the conspiracy. The second thing that
[plaintiff] must show in order to prove a conspiracy is that [defendant] or a co-
conspirator engaged in at least one act in furtherance of the conspiracy. [In this case,
this requirement is satisfied if you find that [defendant] or a co-conspirator did any
of the following things: [Describe the acts alleged by the plaintiff].] [In other words,
[plaintiff] must prove that [defendant] or a co-conspirator took at least one action to
further the goal of the conspiracy.]

Comment Alternative ways to show that a private person acted under color of state
law. It should be noted that demonstrating the existence of a conspiracy is not the
only possible way to show that a private individual acted under color of state law.
See supra Comment 4.4. For example, when a private person is acting, under a
contract with the state, to perform a traditional public function, the question may
arise whether that person is acting under color of state law. Cf. Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 352 (1974) (discussing exercise by a private
entity of 26 powers traditionally exclusively reserved to the State); Richardson v.
McKnight, 521 U.S. 399, 27 413 (1997) (in case involving employees of a private
prison management firm, noting that the Court was not deciding whether the
defendants are liable under 1983 even though they are employed by a private
firm).


Note that Plaintiff has repeatedly argued that Defendant Paradee conspired with
Defendants McKenna and Malone in the Dispositive Memoranda. Who knows what they
talked about, in the weeks between the time that Plaintiff telephoned them (and they all
completely ignored him) and the time he arrived in Delaware?

We dont know because the Court never allowed any Depositions. Plaintiff further
described how said Depositions, while still subject to Attorney-Client privilege, could
nonetheless shed light and produce inferences from which a Jury could infer that the
Defendants conspired to deprive Plaintiff of the Right to ask a few questions of high-ranking
officials at Defendant McKennas office, with a camera present, by threatening an unlawful
arrest or seizure of his person under the Fourth and Fifth Amendments to the United States
Constitution and parallel State Statutes.
As such, the Court's blanket pronouncement that Defendant Paradee could not
possibly be liable under 42 U.S.C. 1983 is legally incorrect. The Courts citation to Polk
County v. Dodson 454 U.S. 312 (1981) in unavailing because Justice Blackmon dissented and
these claims are very fact specific, but we cannot know the facts because Discovery was
truncated without Depositions and without Defendants even providing any answer as to
what authority they believed they had to deny Plaintiff the right to run a camera.
But this is not surprising that the Court overlooked it, seeing as the Court somehow
lost his Voluntary Dismissal of his Tort claims (Plaintiff noted that the docket entries are
now missing) and the Court has also improperly held that Rule 155 did not apply to trial
courts. See 11 June 2015 Oral Argument (TR._____)4
As Plaintiff has noted on prior occasion he worked for Constitutional Scholar
Edward L. (Ted) Mearns (RIP) so he already knew that purportedly private parties could be
found liable under 42 U.S.C. 1983 so he is not certain as to how the Court could overlook
this crucial fact of Law. Further, consider the Learned Treatise of Professor of Law Jack M.
Beerman and Richard L. Godfrey Faculty Research Scholar, Boston University School of Law
in "Why do Plaintiffs Sue Private Parties Under Section 1983 Cardozo Law Review Vol. 26
(10/9/2005).
CONCLUSION:
PROSPECTS FOR SUCCESS IN SECTION 1983 LITIGATION AGAINST PRIVATE DEFENDANTS

The volume of section 1983 litigation against private defendants is substantial


enough for there to have been significant doctrinal developments in the area, largely
concerning state action and immunities for private defendants. Are the prospects for
success in such litigation great enough to justify the volume of litigation?

In general, plaintiffs should be less likely to prevail in section 1983 cases against
private defendants than in cases against state officials because of the additional
possibility of losing due to a finding of no state action or no action under color of


4 See Fn1, supra.

law. In private entity cases that do get past the state action/under color of law
hurdle, the plaintiffs prospects for success should mirror his or her prospects in
state official litigation unless other issues turn o

A private actor may also act under color of state law under certain circumstances.
For example, it has been held that a physician who contracts with the state to
provide medical care to inmates acts under the color of state law. See West v.
Atkins, 487 U.S. 42 (1988):

(a) If a defendant's alleged infringement of the plaintiff's constitutional rights
satisfies the state action requirement of the Fourteenth Amendment, the
defendant's conduct also constitutes action "under color of state law" for 1983's
purposes, since it is "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457
U. S. 922, 457 U. S. 935, 457 U. S. 937. Thus, a state employee generally acts under
color of state law when, while performing in his official capacity or exercising his
official responsibilities, he abuses the position given to him by the State. Polk County
v. Dodson, 454 U. S. 312, distinguished. Pp. 487 U. S. 49-50.
Here is another example, in Wyatt v. Cole 504 U.S. 158 (1992):
Immunity for private defendants was not so firmly rooted in the common law and
was not supported by such strong policy reasons as to create an inference that
Congress meant to incorporate it into 1983. See, e. g., Owen v. City of
Independence, 445 U. S. 622, 637. Even if there were sufficient common law support
to conclude that private defendants should be entitled to a good faith and/or
probable cause defense to suits for unjustified harm arising out of the misuse of
governmental processes, that would still not entitle respondents to what they
obtained in the courts below: the type of objectively determined, immediately
appealable, qualified immunity from suit accorded government officials under, e. g.,
Harlow v. Fitzgerald, 457 U. S. 800, and Mitchell v. Forsyth, 472 U. S. 511. Moreover,
the policy concerns mandating qualified immunity for officials in such cases-the
need to preserve the officials' ability to perform their discretionary functions and to
ensure that talented candidates not be deterred by the threat of damages suits from
entering public service-are not applicable to private parties. Although it may be that
private defendants faced with 1983 liability under Lugar, supra, could be entitled
to an affirmative good faith defense, or that 1983 suits against private, rather than
governmental, parties could require plaintiffs to carry additional burdens, those
issues are neither before the Court nor decided here. pp. 163-169.

IV.
The Previously-Dismissed Tort Claims.

As noted previously in this filing, the Court did not need to expend Judicial resources

to analyse these issues or claims because Plaintiff had long ago submitted Voluntary
Dismissals of his Negligent and Intentional Infliction of Emotional Distress Claims with
Proposed ORDERS granting the dismissals. Plaintiff voraciously reads the Docket sheet
online, he saw them on the Docket Sheet at one point but now, curiously, those docket
entries have evaporated but there is a reason the Plaintiff did not brief these matters at all:
It is because he DISMISSED THEM long ago.


V.

The Court Should Have Granted Plaintiffs Motions to Compel and Request for
Stay on Dispositive Motions Until his Discovery was Completed; Blanket Bans
Have Been Held Unlawful.5

A.

The Most Relevant Third Circuit Case of Pomykacz Granted a Motion to Compel.

We se now why the Defendants and Court have failed to address this case, which

appellate Courts and legal scholars will clearly see as the most relevant:
It involves a public citizen shooting a camera at public officials not only during working
hours, but at all times of the day and night. See the overleaf for a screen capture of the
police report indicating that she shot them 4 to 10 times during an 8 hour shift! Plaintiff
doesnt even live in the forum state so it is clearly not feasible for him to engage in that sort
of Constitutionally-protected conduct. At any rate Pomykacz settled because the arrests
and hassles from the government meted out to Plaintiff were Unconstitutional and
otherwise illegal. See the Pomykacz Court ORDER at Appendix A.


5 Again, to be clear, these public meeting cases are more of a red herring than anything else. See
Section VI B infra.

B.

The Universal Ban as Lawful.


As previously-noted, policy is key here. Even though Whiteland Woods is not truly

on point with the facts of this case, the Courts Opinion fails to address the key aspect of
Whiteland Woods that Plaintiff has brought to for forefront: There was a universal ban on
cameras that the Court found vitiated Plaintiffs claims of disparate or selective, viewpoint-
based First Amendment discrimination. As such, the Court held:

8 Whiteland Woods argues the Planning Commission only enacted the resolution to
prevent Whiteland Woods from video recording any meetings after September 25,
1996. See Pltff.'s Mem. Opp. Summ. Judgment at 4. Accepting that allegation as true,
it does not change the fact that the resolution was neutrally applied to all video
recording; the Planning Commission did not restrict Whiteland Woods only based
on the content of the message Whiteland Woods was attempting to spread.

But as Plaintiff has pointed out so many times in this case, we dont have a clue what the
real policy is, or whether it is neutrally applied. But thats not Plaintiffs fault. That is the
Courts fault for allowing Defendants to escape the preceding Interrogatory that asked what
authority Defendant McKenna had for denying Plaintiff access. That is why Plaintiff moved
this Honorable Court to reconsider on that point and moves for reconsideration again to
lock this matter in for appeal and for review by legal scholars for years to come.[1]

Defendants McKenna and Malone Responses to Policy Interrogatory are
Sanctionable.

State what authority that any Defendant has had, at any point in time up to
27 November 2014 that indicates that video was verboten in the 555 Bay
Road building on or about November 25, 2014, the only day date and time
that Plaintiff has ever been at 555 Bay Road, Kent County Recorder of
Deeds.

Defendants response was that this interrogatory is incomprehensible and
incapable of response.
This assertion is dilatory: The question is patently clear: Provide Plaintiff with any
authority you had prior to 27 November, 2014 that video was verboten in the 555
Bay Road Building on [the only day and date that Plaintiff was there].
How difficult is that?

Judge Young should have wrested control of this crucial issue and issued Sanctions
because this is clearly a Bad Faith attempt to skirt the crucial issue of what authority
Defendants believed they had to forbid Plaintiff to roll video. It might not be the
prettiest sentence that Plaintiff ever wrote but to falsely claim that it is an
incomprehensible question is patently absurd. Rule 11 Sanctions and an ORDER to
compel should have issued.6

C.

The Universal Ban as Unlawful vis a vis p 17 Fn 47 of the Courts Opinion.


Furthermore, there is Peloquin v. Arsenault, 162 Misc. 2d 306 (1994) and Csorny v.

Shoreham-Wading River Cent. Sch. Dist., 305 A.D.2d 83 (2003) (holding that blanket bans are
unlawful. From Peloquin:
Hand-held audio recorders are unobtrusive (Mitchell v *309309 Board of Educ.,
supra); camcorders may or may not be depending, as we have seen, on the
circumstances. Suffice it to say, however, in the face of Mitchell, the Committee on
Open Government's (Robert Freeman's) well-reasoned opinions (supra) and the
court system's pooled video coverage rules and/or options, a blanket ban on all
cameras and camcorders when the sole justification is a distaste for appearing on
public access cable television is unreasonable. While "distraction" and "unobtrusive"
are subjective terms, in the face of the virtual presumption of openness contained in
article 7 of the Public Officers Law and the insufficient justification offered by the
Village, the "Recording Policy" in issue here must fall.

From Csorny:
The petitioners have reportedly been active participants at the regular meetings of
the Board. Beginning in or about July 2000, the petitioners brought a palm-sized
video camera, mounted on a tripod at the rear of the room, which they used to
record Board meetings. This camera was, by itself, unobtrusive and it required no
additional lights.

Wright v. City of Lawrence (21 Mass. App. Ct. 343, 486 N.E.2d 1151 [Mass]), upon
which the Board relies, is readily distinguishable. The court in Wright dismissed a
suit for a declaratory judgment challenging a recording ban due to the inadequacy of
the record, the imprecision of the plaintiff's Open Meetings Law claims, and the
plaintiff's misguided attempts therein to frame the issue of the city council's
prohibition on videotaping as one of constitutional dimension. We agree that the
First Amendment to the United States Constitution does not guarantee the right to
videotape governmental meetings (see Whiteland Woods, L.P., v. Township of West
Whiteland, 193 F.3d 177 [3d Cir 1999]; Johnson v. Adams, 629 F. Supp. 1563 [US
Dist Ct, E.D. Tex 1986]). However, Wright does not support the Board's argument
herein, as Wright did not decide the Open Meetings Law issue on the merits.7


6 Not only do we not know what policy there is, recall that Defendant Malone lied about the presence
of a written policy as noted by County Attorney Sherlock. Thats elementary, Watson. See App. B.
7 The Court ended its inquiry right there whilst ignoring the following paragraph, which notes that C-
Span and C-Span 2 broadcast from the Capitol and we see no reason to prohibit them from public
meeting rooms of school boards.

10


Significantly, however, Wright posited that "There may come a time when sound
cameras will be so thoroughly accepted, and any idea that they could distort or
prejudice deliberation or offend decorum so anachronistic, that to bar them would
seem the equivalent of prohibiting pencil and paper" (id. at 1153-1154). The Wright
court rejected the notion that video cameras had achieved such ubiquity in 1985.
Today, 17 years later, C-Span and C-Span 2 broadcast from the Capitol, and local
government meetings are routinely aired on public access cable television. While
video cameras may not yet have achieved parity with pen and paper at the local
level, we discern no legitimate reason to prohibit them from public meeting rooms
of school boards.1 1. The Board's citation to Combined Communications Corp. v.
Finesilver (672 F.2d 818 [10th Cir 1982]) is also unavailing as that case dealt with a
rule barring media coverage of judicial proceedings that were subject to non-
televised press coverage.

Given that body of law and the cultural, legal and technological developments, why
in the World would this Court decide to take a giant step backwards? PHow is it that the
Court rules against Plaintiff either which way the unknown Policy is to be determined in
this case? Perhaps the answer lies in its thinly-veiled culturally hegemonic notion that
Plaintiff is a guerilla and not a trained professional. That decision will be part of Judge
Youngs legacy and the case and documentary movie develop in the coming years.

VI.

The Court Improperly Decided the Constitutional Issues.

A.

Delaware Attorney General Opinion Supports Plaintiff:


This is No Different Then Plaintiff Appearing with Pen & Reporters Note Pad.

As Plaintiff asks elsewhere in this document, why is the Court going backwards?

This is particularly true in light of the precatory language issued by the State Attorney
General on public meetings: More on this at Section F, infra.8
As noted in Csorny, in 1985, a Massachusetts court, denying the right to record a
public meeting, stated: There may come a time when sound cameras will be so thoroughly
accepted, and any idea that they could distort or offend decorum so anachronistic, that to
bar them would seem the equivalent of prohibiting pencil and paper. Csorny, 193 F.3d at
519 (quoting Wright v. Lawrence, 486 N.E.2d 1151, 1153-1154 (Mass. App. 1985). Csorny,
in 2003, found that video cameras may not yet have achieved parity with pen and paper at
the local level[.] Id.


8 Again, Plaintiff does not concede that this is event the correct analysis, (see Section VI B, infra) but

to the extent that Defendants and the Court want to use public meeting law from another State,
Plaintiff thought it might be prudent to see the direction that the AG is taking in THIS STATE. That
direction is much more akin to the direction in the Tarus and Pomykacz cases. Heck the State AG
even quoted some of the very same language that Plaintiff quoted, fancy that.

11

But in 2011, when everyone has a cell phone, and most cell phones have camera,
even video, capability, that time has arrived. To attempt to ban recording is as pointless as
trying to prevent citizens from taking notes.
CONCLUSION: The DOJ should advise its client public bodies that to outright
prohibit any recording of public meetings is highly risky. The law is evolving in a more
permissive direction.
Indeed as Plaintiff has been saying now buttressed by the AGs office9 -- Courts are
increasingly holding that there is no difference between a pen & paper and a video camera if
used in an unobtrusive manner. See Peloquin, infra. Even though Peloquin was decided on
statutory ground the analysis is still the same: Is the equipment unduly obtrusive or not?
Similarly, the principles of Tarus v. Borough of Pine Hill, 189 N.J. 497 (2007)(shatter
all of those ancient notions in Whiteland Woods).

The common law therefore has evolved to embrace additional means for
documenting public proceedings, not fewer. Over time, quill and parchment
gave way to pen and pad; audio recording devices supplanted stenography.

A member of the public has the right to videotape a public meeting and the public
body involved has no power to arbitrarily forbid such action. There is a right to
videotape municipal proceedings in the State of New Jersey and no per se
constitutional, statutory, or common law impediments to the use of a video camera
to tape record exist.

The common law therefore has evolved to embrace additional means for
documenting public proceedings--not fewer. See Higg-A-Rella, Inc. v. County of
Essex, 141 N.J. 35, 52, 660 A.2d 1163 (1995) (finding that common law is flexible
and can be adapted to advancing technology); Atl. City Convention Ctr. Auth., supra,
135 N.J. at 64, 637 A.2d 1261 ("The essence of the common law is its adaptability to
changing circumstances."). Sudol, supra, [**1044] emphasized the need for the law
to adapt to that recording evolution, [***25] and, in doing so, illustrated how the
common law applies common sense: Suppose, for example, that the [local public
body] had attempted to prohibit the use of pen, or pencil and paper, at the sessions
held by them; such a measure would at once strike anyone as being an improper
means of exerting official power, and the surprise and dissatisfaction generated by
such an arbitrary rule would undoubtedly lead to a prohibition by the courts of such
a foolish attempt to exercise governmental power. [Id. at 154, 348 A.2d 216
(quoting Nevens v. Chino, 233 Cal. App. 2d 775, 44 Cal. Rptr. 50, 52
(Dist.Ct.App.1965)).] Thus, over time, quill and parchment gave way to pen and pad;
audio recording devices supplanted stenography.

9 Plaintiff respects the State AGs offices: He was one. In fact, he was the go-to guy for Appellate issues

in the employment section. That ability is clearly borne out in this document.

12

So then for the Court to hold that Plaintiff does not have a Constitutional Right
to ask a question or two of a high-ranking public official with a camera is the same as
saying he does not have a Constitutional Right to do the same with a pen and a
notepad. As that finding would be patently Unconstiutional this Court must reverse
its prior Opinion.10

B.

The Public Meeting Cases are Not Germane; What is Germane is the Senator Kelly
Ayotte Comparison, Iacobucci v. Boulter, 1997 U.S. Dist. Lexis 7010, No. CIV.A. 94-
10531 (D.Mass, Mar. 26, 1997), the Third Circuit case of Pomykacz v. Borough of W.
Wildwood, 438 F. Supp. 2d 504 (2006) that the Court completely failed to address.


The Court chides Plaintiff at Fn 47, by ignoring Pomykacz and finding something to
distinguish his other cited cases by stating
Needless to say, these cases are all inapplicable to the First Amendment
question presently before the Court.

Well on that note, the Court is not entirely accurate (just as it was wrong about
Private Actor liability under 42 U.S.C 1983 because Iacobucci did in fact address the
Reporters First AND Fourth Amendment Rights. Iacobucci was wrongfully arrested for
conduct protected by the First Amendment. So for the Court to say that Iacobucci addressed
only the Fourth Amendment is intellectually disingenuous because without a First
Amendment protection you dont reach the Fourth Amendment.
Plaintiff was threatened with arrest as his Complaint clearly states and as noted by
the Court at p.4 of the Opinion, Plaintiff alleges that he was told he would be arrested if he
persisted in his efforts to videotape the offices. As his prior Fn5 to his Reply Memorandum in
Support of Reconsideration stated further, if it is illegal to arrest a citizen journalist for First
Amendment conduct of shooting a public official, it is equally illegal to threaten arrest for
same. Thats so simple, it hurts. But to make it clear Plaintiff included the Fourth
Amendment claim in his First Amended Complaint inasmuch as it unlawfully chills the
exercise of First Amendment Rights.
As Plaintiff noted in his Reply Memorandum in Support of Summary Judgment:

10 Plaintiff will be filing a Common Law Claim and Fourth Amendment Chilling of Speech claims in his

First Amended Complaint, filed contemporaneously with this Motion, that exactly mirrors Tarus and
buttress the body of law set forth and ignored by the Court in Pomykacz.

13

See also Iacobucci v. Boulter, 1997 U.S. Dist. Lexis 7010, No. CIV.A. 94-10531
(D.Mass, Mar. 26, 1997) (unpublished opinion) (finding that an independent
reporter has a protected right under the First Amendment and state law to
videotape public meetings.
From Iacobucci:
In the next decade, the SJC narrowed this definition of disorderly conduct to
encompass only activities not implicating the lawful exercise of a First Amendment
right. .

and
Boulter's repeated demands that Iacobucci cease recording do not change the
disorderly conduct calculus. A police officer is not a law unto himself; he cannot give
an order that has no colorable legal basis and then arrest a person who defies it. So
it is here: because Iacobucci's activities were peaceful, not performed in derogation
of any law, and done in the exercise of his First Amendment rights, Boulter lacked
the authority to stop them. Id at 678.

Next, Courts reliance on Capital Cities Media v. Chester, 797 F.2d 1164 (1986) is
woefully misplaced. In this relatively ancient case -- decided well before the advent of any of
the technology that exists today -- the Court addressed a Public Information document
request and in so doing noted:
The First Amendment, however, seeks to promote the ideal of an informed
electorate by barring government interference with the flow of information and
ideas to the public.

Capital Cities cited Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553
(1978), which the Third Circuit Pomykacz court impliedly rejected the Houchins analysis in
a context that did not involve prison access.11
Recall that the original cornerstone of Defendants arguments was the Kelly Ayotte
case, as they prattled on about how Plaintiff did not understand the distinction between
public and private. However, on further review the Record reflects that Ayotte was not an
elected official at the time that prior litigation started, and the Court held that the hotel situs
for the Republican Party rally was a private venue.

In reality Senator Ayotte could be sued under the First and Fourth Amendment were

she to threaten to have Plaintiff arrested for filming her or her staff in public places,
including her office. This is why Plaintiff provided these pictures and videos to the Court,
which must have misunderstood the point:


11 Alas, the Defendants and the Court have nothing to say about Pomykacz. Absolutely. Nothing.

14

https://www.youtube.com/watch?v=rl4tS0W7RcQ

https://www.youtube.com/watch?v=jLS0N_hH-cc
Here one of her constituents said that Ayotte Is pleasant and sweet and full of shit.


https://www.youtube.com/watch?v=lXlHu2002Vc

15


But lets move on to the case most directly applicable to the case at bar because they are
both Third Circuit cases that address the right of a citizen activist or journalist to run video
of public officials whilst working in their buildings. In 2006, a federal district court in New
Jersey decided the case of Pomykacz v. Borough of W. Wildwood, 438 F. Supp. 2d 504 (2006)
Pomykacz was a self-described citizen activist who expressed concern that a

suspected romance between the towns mayor and a police officer were leading to
nepotism, conflicts of interest and preferential treatment. These suspicions led
Pomykacz to monitor the two, which included taking photographs. Eventually
she was arrested on charges of stalking, though the charges were downgraded to
harassment. Pomykacz ended up filing suit asserting, among other things, that she
was arrested in violation of the First Amendment retaliation for her monitoring
activities.

On the night of October 7, 2002, on her way to Wildwood, Pomykacz drove past
the borough municipal building and observed Officer Ferentz working on
renovations while she was on duty. Later that night, after Pomykacz had returned
from Wildwood, she photographed Officer Ferentz in the police
headquarters. 7 Another police officer and [*508] Mayor Fox were also present in
the police station at the time. According toPomykacz, Mayor Fox came out of the
building and began yelling at her. Pomykacz walked home without responding.


U.S. District Judge Joseph E. Irenas noted,

Pomykacz has put forth sufficient evidence that she was a concerned citizen who at
times spoke her mind to Borough [*513] officials and other citizens about her
concerns regarding the official conduct of the police department and the mayor.
Such speech is clearly protected by the First Amendment. 14 See Mills v.
Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 16 L. Ed. 2d 484 (1966) HN15 ("a major
purpose of [the First] Amendment was to protect the free discussion of
governmental affairs."); Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1 L.
Ed. 2d 1498 (1957) ("The protection given speech and press was fashioned to
assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.").

Again, Plaintiffs Fn5 to his Reply Memorandum in Support of Reconsideration
clearly notes that if it is illegal to arrest Pomykacz it is illegal to threaten to arrest
Pomykacz. The same goes for Plaintiff, Apples to Apples.

C.

To the Extent that the Public Meeting Cases are germane, the court has
ignored the key issues regarding policy, as noted in the preceding section.

16

D.

The Courts Reading of Cirelli is Fundamentally Flawed.

The Court held that it was essential that Cirelli was a public employee.
The Court notes that the holding of Cirelli, and the authority on which it
relies, presupposes that the Plaintiff alleging the violation of the First
Amendment is a government employee. Based upon the pleadings alone.
Plaintiff does not fall into this narrow First Amendment protection.

Let us review what really happened, however, in the same way that we
reviewed the true law of Private Actor 42 U.S.C. 1983 liability for working with
government officials, as well as the prior Iacobucci analysis, which clearly and
patently involved First and Fourth Amendment issues:
At any rate, such was not the holding in Cirelli however because the Court
specifically found that Cirelli was only entitled to run video in places where the
general public was allowed:
While I agree with plaintiff that the defendants have no legitimate interest in
prohibiting the dissemination of the fruits of plaintiff's labors,
defendants do have a legitimate interest in restricting
unconditional access to the school building. Thus, if plaintiff wishes to
videotape at these times, she must abide by the application process
generally applicable to other members of the public.
Cirelli at 669.

That is consistent with the essence of Pickering, to which the Court cited at
Fn46 because Pickering held that the government employee has no more or no less
rights than the general public. Plaintiff recalls studying Pickering, again under the
inestimably brilliant Ted Mearns, Esq. (RIP). From Pickering:
To the extent that the Illinois Supreme Court's opinion may be read to
suggest that teachers may constitutionally be compelled to relinquish the
First Amendment rights they would otherwise enjoy as citizens to comment
on matters of public interest in connection with the operation of the public
schools in which they work, it proceeds on a premise that has been
unequivocally rejected in numerous prior decisions of this Court. E. g.,
Wiemanv. Updegraff, 344 U.S. 183 (1952); Shelton v. Tucker, 364 U.S.
479 (1960); Keyishian v.Board of Regents, 385 U.S. 589 (1967). "[T]he theory
that public employment which may be denied altogether may be subjected
to any conditions, regardless of how unreasonable, has been uniformly
rejected." Keyishian v. Board of Regents, supra, at 605-606.



17

Plaintiffs Complaint alleged that he was present to lawfully gather


information and to disseminate it, and lets be real about it, the material
misstatements about Candidate Gunn as alleged in Plaintiffs Complaint are a matter
of public concern when uttered by an incumbent candidate. There is no Court in the
Free World that could hold otherwise.12

E.

The Courts Reading of Iacobucci v. Boulter, 1997 U.S. Dist. Lexis 7010, No.
CIV.A. 94-10531 (D.Mass, Mar. 26, 1997) is Fundamentally Flawed.

The Iacobucci Court gets it:
This case involves a small-town journalist, a small-town police officer,
and rights as grand as the Constitution itself.

As such, he had a right to run video without fear of being arrested, unlike Plaintiff.

See Section VI B, infra, clearly noting that Iacobucci does not reach the Fourth Amendment
without first implicating the First Amendment. Accord Tarus v. Borough of Pine Hill, 189 N.J.
497 (2007)(shattering all of those ancient notions in Whiteland Woods).

F.

The Courts Reading of Csorny v. Shoreham-Wading River Cent. Sch. Dist., 305
A.D.2d 83 (2003) is at Odds with the Delaware State Attorney: Csorny applies to
Plaintiffs Benefit.
The Court wrote at Fn. 47
however, in so doing, court recognized that the First Amendment does not guarantee
the right to videotape government meetings, citing Whiteland Woods.


The 1 April 2011 AG Opinion Right of Public to Record Open Meetings of Public Bodies

However, the majority, like the majority of courts that have considered this
question, found that there is no legitimate reason to prohibit [video cameras] from
public meeting rooms[.] Id. Csorny rejected each argument against allowing
recording. It called wholly specious the argument that speakers at a public
meeting that is being recorded will feel inhibited from speaking freely (or at all):
While the Board adduced affidavits from three parents who expressed their fears of
being videotaped at meetings, the Board may not hold the law hostage to the
personal fears of a few individuals. Csorny, 193 F.3d at 518


12 The Court noted that Plaintiff did not specifically mention that he was there to review general
fraud and MERS issues in his Complaint, but instead noted as much in his Affidavit, but such
distinction is not of crucial importance in this analysis.

18

As noted in Csorny, in 1985, a Massachusetts court, denying the right to record a


public meeting, stated: There may come a time when sound cameras will be so
thoroughly accepted, and any idea that they could distort or offend decorum so
anachronistic, that to bar them would seem the equivalent of prohibiting pencil and
paper. Csorny, 193 F.3d at 519 (quoting Wright v. Lawrence, 486 N.E.2d 1151, 1153-
1154 (Mass. App. 1985). Csorny, in 2003, found that video cameras may not yet
have achieved parity with pen and paper at the local level[.] Id.

But in 2011, when everyone has a cell phone, and most cell phones have camera,
even video, capability, that time has arrived. To attempt to ban recording is as
pointless as trying to prevent citizens from taking notes.

CONCLUSION The DOJ should advise its client public bodies that to outright prohibit
any recording of public meetings is highly risky. The law is evolving in a more
permissive direction

The question remains, then, why the Defendants and the Court are moving backwards.13

G.

The Court Incorrectly Overlooked Arguments on Expressive Conduct.

But theres more from the First Amendment Center:


http://www.firstamendmentcenter.org/photography-the-first-amendment
The First Amendment literally forbids the abridgment only of speech, but we have
long recognized that its protection does not end at the spoken or written word we
have acknowledged that conduct may be sufficiently imbued with elements of
communication to fall within the scope of the First and Fourteenth Amendments.

In deciding whether particular conduct possesses sufficient communicative
elements to bring the First Amendment into play, we have asked whether [a]n intent
to convey a particularized message was present, and [whether] the likelihood was
great that the message would be understood by those who viewed it. Texas v.
Johnson(1989)

Six years later, the Supreme Court reiterated,

To achieve First Amendment protection, a plaintiff must show that he possessed:
(1) a message to be communicated; and (2) an audience to receive that message,
regardless of the medium in which the message is to be expressed. Hurley v. Irish-
American Gay, Lesbian & Bisexual Group(1995)

While these are more expressive conduct cases, it is likely that Defendants uttered
some nonsense about Plaintiff not being media to try to get around Hurley but that fails.
Plaintiff has thousands of followers and subscribers and millions of hits on videos and


13 Lets see what happens with Plaintiffs Common Law claim in his First Amended

Complaint, filed contemporaneously with this Motion.

19

journal pages. Some of his work has been reproduced by other alternative media as well as
mainstream press, so he meets all the requirements, much to Defendants chagrin. All of this
is set forth in Plaintiffs Affidavit, which Defendants try to ignore.
So speech or conduct (taking photographs) that satisfies both of the elements above
is allowed and protected in the public forum. Using this guide, we can look to the
courts and find one type of photography that is not protected by the First
Amendment: private recreational photography that is for ones own personal
use..14

Obviously the Court may take Judicial Notice that this is not recreational, personal
use photography even if the Court chooses to categorize Plaintiff as a mere guerrilla
reporter.

H.

The Court Incorrectly Assessed this as Judgment on the Pleadings and Violated
Plaintiffs Due Process Rights.

While the Court is claiming that this is a Judgment on the Pleadings it really

isnt. Plaintiff has put substantial amounts of information into the Record that the
Court should have considered but did not. Defendants cited to issues beyond the
Pleadings in their Memoranda.

What the Court essentially did was to take all of Defendants legal arguments

set forth in Dispositive Motions, then deny the Plaintiff the benefit of any of the
materials or arguments he set forth, including but not limited to his Affidavit, and
the Kelly Ayotte information showing Plaintiff doing EXACTLY what he does all of
the time in several other Jurisdictions, without incident.
See Commonwealth Constr. Co. v. Red Clay Consol. Sch. Dist, 2010 Del. Super.

LEXIS 489 (2010).



On a motion for judgment on the pleadings, if matters outside the pleadings
are presented and not excluded, the motion is converted to a motion for
summary judgment and is disposed of as one for summary judgment under
Rule 56. 3 When such materials are presented the Court must give all parties
a reasonable [*5] opportunity to present all pertinent material needed for a
motion for summary judgment.


14 Plaintiff reasonably believes the Court could take Judicial Notice that Plaintiff is not engaged in
recreational photography in this instance.

20

As such, Plaintiff is returning to the Court his Offer of Proof Video that demonstrated
him doing
exactly what he wanted to do in Kent County, in King County, Washingtons Registry of
Deeds.: Only Dirty Deeds Recorders Like Kent County DE's Betty Lou McKenna Restrict
Media Access and Cameras https://www.youtube.com/watch?v=4uPuF-Z_Ft415



Add that to the abject failure to analyse Pomykacz and the material misstatements
regarding the Law on Private Actor 42 USC 1983 liability and you have the distinct
impression that Plaintiff did not get a full and fair review in this case.

15 This record on Appeal will be as full as it should be, the Courts disdainful commentary regarding

Plaintiffs detailed Motion for Reconsideration nothwithstanding.

21

I.

The Court Failed to Address All Issues in Plaintiffs Motion for


Reconsideration.
The Court at one point in its Opinion made a disdainful comment about the length

and thorough nature of Plaintiffs Motion for Reconsideration. What the Court did not do,
however, was to take any initiative to determine why the Court placed pictures of his image
throughout the Courthouse on or about 10-11 June, 2015.
For the Record, Plaintiff wrote:
I.

Background: It was Completely Inappropriate to Have Plaintiffs Image Scattered


Throughout the 414 Federal Street Building as if he Were a Person of Interest.


Plaintiff is aware that there was at least one meeting with security about him, and he is
further aware that his image was posted throughout the building. Plaintiff carries a Canon but he
is not some sort of dangerous black man who should be on a wanted poster. He is a mortgage
industry professional who has worked for major and small press. He is the new face of
journalism in the Modern Era, much as he was in 1998 when he advised the Court of his right to
run video in a Courtroom, which obviously worked or you wouldnt be seeing this today:

. https://www.youtube.com/watch?v=zVNVyijeQKU

Further, the Court refused to analyse or to even consider the Ayotte facts or the
Gunlocke Affidavit even though the case should have been converted to Summary Judgment,
as noted, infra. But one way or another some Gunlockes will be involved, even if we have to
wait until we get to SCOTUS, which renders its Decisions from Gunlocke chairs.

22

In Sum, Thomas Paine is still rolling in his grave.





Respectfully Submitted,

_____________________________________________
CHRISTOPHER KING, J.D.
kingcast955@icloud.com
mortgagemovies007@gmail.com
http://affordablevideodepo.com
http://mortgagemovies.blogspot.com
617.543.8085m
206.299.9333f

23

APPENDIX A

Case 1:03-cv-05677-JEI-JS Document 15 Filed 12/17/04 Page 1 of 2 PageID: 123

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25

26

CERTIFICATE OF SERVICE

I, the undersigned, swear that a true and accurate Courtesy copy of this document
was sent via email and via Tracked U.S. Mail to:

Joseph Scott Shannon, Esq.
Art C. Arnilla, Esq.
1220 North Market Street
5th Floor
P.O. Box 8888
Wilmington, DE 19899-8888

and to:

John A. Elzufon, Esq.
Peter McGivney, Esq.
300 Delaware Avenue,
Suite 1700
P.O. Box 1630
Wilmington, DE 19899

This 8th day of July, 2015

________________________________
CHRISTOPHER KING, J.D.

27