1IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS Mark R.
McCoy, Plaintiff, -VSCITY OF FAIRVIEW HEIGHTS, a municipal corporation, JOSHUA ALEMOND, and AARON NYMAN Defendants. ) ) ) ) ) ) Cause No. 10 L 75 ) ) ) ) )
MOTION FOR LEAVE TO PRESENT SWORN COMPLAINTS BEFORE THE COURT ALLEGING CRIMES AND OFFENSES AND TO BE EXAMINED UNDER OATH THERETO PURSUANT TO THE ILLINOIS CRIMINAL CODE OF 1963, 725 ILCS 5/107-9 ET SEQ. AND AFFIDAVIT IN SUPPORT THEREOF
COMES NOW the Plaintiff, Mark R. McCoy, and by his Motion for Leave to Present Sworn Complaints Before the Court Alleging Crimes and Offenses and to be Examined Under Oath Thereto Pursuant to the Illinois Criminal Code of 1963, 725 ILCS 5/107-9 et seq. and Affidavit in Support Thereof, states as follows: Plaintiff, Mark R. McCoy moves this Court for leave to bring sworn complaints before it and to be examined under oath to determine if the Court finds cause to issue warrants for the arrest of the accused therein named for alleged crimes and offenses. WHEREFORE, Plaintiff, Mark R. McCoy, moves this Court for Page 1 of 10
leave to present sworn complaints before the Court alleging crimes and offenses and to be examined under oath thereto pursuant to the Illinois Criminal Code of 1963, 725 ILCS 5/107-9 et seq. Respectfully Submitted,
Mark R. McCoy, Plaintiff Sui Juris Mark R. McCoy 41 Grandview Drive Collinsville, Illinois 62234 618-345-2981
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AFFIDAVIT OF MARK R. MCCOY IN SUPPORT OF HIS MOTION FOR LEAVE TO PRESENT SWORN COMPLAINTS BEFORE THE COURT ALLEGING CRIMES AND OFFENSES AND TO BE EXAMINED UNDER OATH THERETO PURSUANT TO THE ILLINOIS CRIMINAL CODE OF 1963, 725 ILCS 5/107-9 ET SEQ. 1. That on February 17, 2009, the Plaintiff did file his pleading with the Clerk of the Circuit Court under Cause Number 10 L 75 reflecting the above caption. 2. That said pleading references interaction between the Plaintiff and Defendants, Joshua Alemond and Aaron Nyman on February 17, 2009 which give rise to the instant matter wherein Plaintiff alleges injury resulting from the acts of the Defendants Alemond and Nyman. 3. That notwithstanding issues raised by way of this cause, Plaintiff states he was the victim of, and witness to, actions of the Defendants which give rise to criminal acts cognizable to the Common Law and Statutes of Illinois. 4. That Plaintiff has written and sworn under oath to a number of 17 criminal complaints in the form required by 725 ILCS 5/107- 9(b). (A copy of which are attached as Plaintiff’s Exhibit A) 5. That Plaintiff has been diligent in attempting to bring his complaints before proper persons whom he believes possess the authority to issue warrants and initiate criminal proceedings. 6. That the law provides for the means by which a private individual may petition the Court for the arrest of persons of whom commit criminal acts, by presenting to a Court Page 3 of 10
a verified complaint, which meets requirements, specified in Illinois Statutes. Under the Illinois Criminal Code of 1963, 725 ILCS 5/107-9 et seq., When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses. 725 ILCS 5/107-9(a) (Emphasis added) The law does not make a distinction as to who a complainant may be, whether a private individual, police officer, or otherwise. If the Court finds, upon examination of the complaint and complainant that persons named in the complaint have committed an offense it shall issue a warrant for the arrest of persons so accused. A warrant shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witnesses, if any, that the person against whom the complaint was made has committed an offense.725 ILCS 5/107-9(c) (Emphasis added) Likewise, Illinois Courts have recognized, and tend to suggest, that Citizens should, and have a right to, appear before a judge when making a complaint. Citizen who has knowledge that crime has been committed should go before a magistrate and make a complaint stating that a particular crime has been committed and, on information and belief, that the person named is the offender, and magistrate should thereupon issue his warrant for arrest of person named. Lindquist v. Friedman's, Inc., 1937, 8 N.E.2d 625, 366 Ill. 232. If the citizen knows a crime has been committed, it is his duty to appear before a magistrate and make a complaint, in which he states that the crime has been committed, and in which he may state, upon reasonable information and belief, that the party named is the guilty party, whereupon the magistrate will issue his warrant, directed to all Page 4 of 10
sheriffs, coroners, and constables in the state, or, in case of emergency or in the absence of such officer, may direct the same to a private individual. Enright v. Gibson, 219 Ill. 550, 76 N.E. 689 7. There is nothing in the law which precludes or prohibits a private individual from approaching a court with a complaint, or which first charges him with the duty or requirement to consult a State’s Attorney, police officer, or other party. In instances where such persons either refuse to entertain the complainant or summarily dismiss the complaint, the individual would be barred from seeking prosecution for wrongdoing suffered if it were not for the requirement of the Courts to avail themselves to hearing complaints. 8. Illinois law recognizes the authority for a private individual in making an arrest without the aid of a law enforcement officer. Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed. 725 ILCS 5/107- 3. It would be inconsistent with the law to reason that a private individual possesses the authority to make an arrest, but does not possess the authority to swear to a complaint before a Court. 9. Plaintiff has nevertheless, sought to bring charges against Defendants Alemond and Nyman to the attention of a number of individuals, including the State’s Attorney and police agencies. In not one instance was the Plaintiff permitted to bring the substance of his Complaints to the attention of anyone, but upon cursory inquiry told to consult with yet another agency. When approaching the State’s Attorney for St. Clair County, Illinois, Plaintiff was informed by one of the staff that he had to first go through the Page 5 of 10
police, and that the State’s Attorney, “Works for the police.” When approaching the Illinois State Police, Plaintiff was directed to the FBI, who would only investigate matters involving violations of Civil Rights, and not Illinois law. When approaching the St. Clair County Sherriff, Plaintiff was directed again to the Illinois State Police Public Integrity Unit. 10. Plaintiff was informed, during a discussion with one, the Honorable Randall Kelley, Associate Judge in and for the Twentieth Judicial Circuit, State of Illinois, pursuant to a court appearance on September 30, 2009, that a private individual can bring a complaint directly, but mistakenly directed Plaintiff to file the Complaint with the Clerk of the Court. (See Plaintiff’s Exhibit B) 11. Plaintiff approached the Clerk of the Circuit Court a number of times, attempting to file his Complaints, but was met with confusion, delays, and inconsistency from the clerks who would only file said Complaints under a civil action. Finally, on July 7, 2009, Plaintiff, after much insistence, was met with St. Clair County Circuit Clerk, Brendan Kelly, with whom Plaintiff discussed the situation. Plaintiff tendered to Mr. Kelly original wet-ink signature Complaints which Mr. Kelly promised would be filed and assigned a case number. Plaintiff, subsequent to relinquishment of said complaints, made a number of attempts to contact Mr. Kelly to inquire about the status of his complaints and has not been provided with any filing or case numbers. Plaintiff now realizes, after researching further, that the Clerk of the Circuit Court is not the proper person for effecting a criminal charge by way of a private individual acting as complainant and presenting sworn complaints. It is, nevertheless, Page 6 of 10
disconcerting and unsettling that the proper process would not be known to Mr. Kelly, and thereby instruct all who would but inquire as to the proper course of action. It is also curious as to why Mr. Kelly would take possession of sworn complaints, of which are not within his charge to address, and furthermore not communicate the status of said complaints nor return them to the Plaintiff. 12. That the Courts, police, State’s Attorney and Circuit Clerk of St. Clair County, Illinois have summarily shut their eyes and ears to the common man should he attempt to bring a complaint of crimes and offenses, as provided by both the Common Law and Statutes of Illinois, particularly when such offenses involve the actions of men acting in the capacity of “police officers”. 13. That as a victim of, and witness to, criminal acts and offenses, Plaintiff has a right to bring a complaint before a court, without first enduring scrutiny by officers and agents of the administrative, who may dismiss or refuse to pursue such complaints, and instead bring his complaint before a judge for a presentment and examination under oath to determine if evidence and testimony supports the issuance of warrants for the arrest of the accused. 14. That the Plaintiff believes this Court possess proper Constitutional authority and duty to receive Plaintiff’s sworn complaints and to examine Plaintiff under oath on the allegations made therein and upon a finding that alleged acts had in-fact been committed by the accused thereupon issue warrants for their arrest.
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ATTESTATION STATE OF ILLINOIS ) )SS. COUNTY OF ST. CLAIR )
Mark McCoy, being first duly sworn on oath, deposes and states that he is a Plaintiff in the abovecaptioned matter; that he has read the foregoing Affidavit In Support Of his Motion for Leave to Present Sworn Complaints Before the Court Alleging Crimes and Offenses and to be Examined Under Oath Thereto Pursuant to the Illinois Criminal Code of 1963, 725 ILCS 5/107-9 et seq., and the answers made herein are true, correct, and complete to the best of his knowledge and belief.
SIGNATURE SUBSCRIBED and SWORN to before me on this day of , 2010.
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STATE OF ILLINOIS COUNTY OF ST. CLAIR
) ) SS ) CERTIFICATE OF SERVICE
I, the undersigned, on oath state that I served the forgoing MOTION FOR LEAVE TO PRESENT SWORN COMPLAINTS BEFORE THE COURT ALLEGING CRIMES AND OFFENSES AND TO BE EXAMINED UNDER OATH THERETO PURSUANT TO THE ILLINOIS CRIMINAL CODE OF 1963, 725 ILCS 5/107-9 ET SEQ. AND AFFIDAVIT IN SUPPORT THEREOF to the following person(s): Attorney for the Defense: and Clerk of the Circuit Court St. Clair County Courthouse 10 Public Square Belleville, Illinois 62220 By personally filing same with the Clerk of the Circuit Court and delivering to Defense Counsel for Defendants Joshua Alemond and Aaron Nyman at the St. Clair County Courthouse, 10 Public Square, Belleville Illinois on August 5, 2010.
Mark R. McCoy, Plaintiff
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