UNITED
STATES Court of Appeals
8th
DISTRICT COURT
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Plaintiff,
vs.
Mr. Jack A. Bennett, Associate Circuit
Judge, Mr. Devin M. Ledom, Asst. Prosecuting Attorney, Mr. Alex Little,
Officer Badge #920, Mr. Tim Taylor Officer Badge #913, Mr. W. Steven Rives,
Prosecuting Attorney, Mr. W. James Icenogle, Prosecuting Attorney, and Mr.
Bruce Colyer, Associate Circuit Judge, Jay Nixon Attorney General, State of
Missouri, Camden County, City of Osage Beach,
Defendants
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Appeal#
____08-1823 ______
Case No. 4:07-cv-0506-W-SOW
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Brief for the Appeal 08-1823
1. The jurisdictional statement;
a.
This issue originated in the State of Missouri 26th Judicial Circuit in
Camden County, Missouri as Case # CR203-1336M in 2004
b.
It was appealed through The Missouri Court of Appeals, Southern District
as Appeal # SD26269 in 2004
c.
It was brought before the US District Court for Western Missouri as 4:07-CV-0506-W-SOW,
a 1983 Civil Rights Act issue. Per TITLE
28, PART IV, CHAPTER 85, § 1343 of the US Code, the district courts shall have
original jurisdiction of any civil action authorized by law to be commenced by
any person in 2007.
d.
It is now an appeal to the 8th Circuit Court of appeals as
08-1823 in 2008.
2. The statement of the issues;
a.
False Arrest by incompetent police officers
b.
False imprisonment, a complete denial of the Due Process of Law, for
reasons unknown
c.
Malicious, incompetent prosecution and deliberate indifference[1] to the plaintiff’s rights to live without fear
of harassment from malicious, incompetent persecution under color of law.
d.
Perjury, subornation of perjury and deliberate indifference[2] to the plaintiff’s constitutional right to the
truth in defense of his innocence.
e.
Deliberate indifference[3] to the rights of the plaintiff to a competent
police force, the truth in defense of his innocence at trial, equal protection
of the law, free from the harassment of false arrest, and malicious
prosecution,.
3. The statement of the case;
a.
The case in this issue stems from the impossible and thus the incompetent
demands of the police in regard to the Standard Field Sobriety Test and the
breathalyzer test. No one can or should
be asked to balance on a 2” heel. No one
can sustain a continuous blow in the breathalyzer machine for 20 seconds. Of course, the plaintiff did not perform up
to the police’s requirement, the police were asking the impossible, and thus the
police were incompetent. They were able
to get a conviction, because with deliberate indifference to the plaintiff’s right
to the truth in defense of his innocence, they presented false evidence,
revealing their incompetence or perjured themselves at trial or both.
b.
The Jury at trail was not afforded access to Tim Taylor’s sworn police
report nor from the outside verification of the Standardized Field Sobriety
Tests. The Jury was forced to decide
based on the false information provided by the Prosecution with prior informed
knowledge of the issues of incompetence; the False Testimony has to be gross
incompetence or the criminal perjury and subornation of perjury or both. No mater what Briscoe v. LaHue, 460 U.S. 325
(1983) says perjury is still a crime.
c.
The prosecution, and I include the state of Missouri, was able to gain a
conviction, because the state’s witnesses on the stand under oath disregarded
established standards, realistic human capacities, prior police statements and
the truth. They testified to false
statements[4] to cover up their incompetents with deliberate
indifference to their oath of office and perjury.
d.
First and foremost on appeal I want to reinstate all the defendants as
originally included, I can and will document all their deliberate indifference
as malfeasants in office and as described by “Vicarious Liability, No Plausible
Deniability”, Cunningham v Gates 989 F.Supp 1262, 1269 (C.D. Cal 1997)
e.
In any organization be it governmental, cultural or private based on
freedom and equality such as ours, absolute immunity, be it dependent on
bloodline (royal) or elected position or appointed position is the antithesis
to freedom and equality and is unconscionable.
No one has the liberty to act with immunity or impunity every action has
to be judged as it relates to others by others.
f.
There are none so blind as those that refuse to see.
g.
The plaintiff states affirmatively that the plaintiff David G. Jeep’s
driving privileges are still suspended as a result of the issue before the
court in the above referenced issue. The
1983 Civil Rights Act addresses and protects rights, privileges, or immunities
secured by the Constitution and laws.
The issue of physical custody is only applicable as an element of the
damages perpetrated at the expense of the plaintiff and thus a Writ of Habeas
Corpus has no relation. I am suing for
damages, injunctive relief in the form of rescission of the conviction and
removal of all trace of it from the plaintiff’s driving record.
h.
You want to say the plaintiff had a chance to fairly litigate this in the
state court. Where is the fairness, when
the state prosecution is allowed to withhold exculpatory information and
present false if not perjurious evidence on the stand during the trial under
color of law? The Plaintiff made
documented pretrial motions for verification of the standard procedures for the
gaze nystagmus, for the Standard Field Sobriety Test and for the Breathalyzer
in pretrial motions, and received nothing.
i.
The physical custody issue normally addressed by a Writ of Habeas Corpus,
“show me the body” has nothing to do with the privileges the plaintiff is suing
for under the 1983 Civil Rights Act, for injunctive relief. A Writ of Habeas Corpus is one of those
ambiguous terms that would be jargon prone legal minds want to foist upon an
unsuspecting public as too problematical for the common man to understand, and
I say so be it. For that reason and
more, the Writ of Habeas Corpus has been overused, misused and abused for
centuries. It has been overused because
it is the fix all that is used to right presumed egregious wrongs. It is misused because it is ill defined and
one size does not fit all. It has been
abused by those that would use its ill-defined power for their own benefit.
j.
The plaintiff is not a legal scholar, although he can read he does
question the courts ability to understand the written word, “Every person”
includes Judges. If the custody of the
plaintiff’s driving privileges can be addressed by, a one size fits all a writ
of habeas corpus then so be it. GRANT ME
A WRIT OF HABEAS CORPUS for my PRIVLEDGE TO DRIVE.
k.
I do not want this to sound like Police or Judicial hate. It is not.
I do not care what professions you look at, an unavoidable percentage
are going to be incompetent, corrupt and evil.
How do “We the People” govern the Judges, the Police and the Prosecutors
if “We” do not have the 1983 Civil Rights Act and associated criminal charges
in Federal Court? I have evidence in the
form of numerous letters and correspondence to “State Authorities” they will
not govern the Judges, the Police and the Prosecutors. The appeals process is replete with the same
lethargic and corrupt assumptions of the self-serving, self-sustaining
infallibility as the circuit courts. An
appeal is cost prohibitive for most common people, without making it profitable
to pursue your Civil Rights from the main overseers of those rights the Judges
and other “civil” servants. If the
appeal process is the only alternative, Civil Rights are too expensive for the
common person to afford.
l.
The issue of a writ of habeas corpus is not directly applicable to the
current issue in that physical custody and the similarities between Heck v.
Humphrey and Jeep v. Bennett, et al are not credible or controlling. Heck v. Humphrey has no similarities with
Jeep v Bennett other than both involve a 1983 Civil Rights Action. You could as easily compare Timothy McVey’s
(the Oklahoma Bomber) murder case with a clear case of self-defense and say
that both require the death penalty because they both involve a homicide. In Heck, the issue was for damages because he
was convicted, and the destroyed audio tape could have cleared him, if it had
not been destroyed. This issue is not
ancillary to the criminal issue; the evidence in Jeep v. Bennett, et al is a
matter of court record, police record and authoritative standard for the
issue. In Jeep v. Bennett, et al it bears
directly on the criminal case in chief.
m.
Before we hope to understand jurisprudence, before we hope to understand
each other, we have to have a basic agreement in logic. If “A” then “B” it should follow that “A”
presupposes “B”. It is the plaintiff’s position
that the antecedent “A” in Heck v Humphries is not equal to the antecedent in
the current issue Jeep v. Bennett, et al there for it does not follow that “B”
should be required or inferred in the current issue, Jeep v. Bennett, et al.
n.
The cause of action in Heck v Humphries revolves around a nonexistent
audio tape, which could have possibly cleared plaintiff. The tape did not currently exist so any
dispute over it was moot. The plaintiff,
Heck, did not ask for injunctive relief, Jeep does. The issue could not have affected the verdict
either way it literally was not in existence, too bad for the plaintiff but not
even the Supreme Court can create a tape out of nothing.
o.
That is not the case in Jeep v. Bennett, et al. The evidence is in existence. The evidence is verifiable as the Court
Transcript, Police Records and outside authoritative standards on the
issues. There is no relevant controlling
similarity between Heck v Humphries and Jeep v. Bennett, et al.
p.
The evidence that has been presented in support of the complaint is not
only irrefutable it is not even contested.
The defendants are wiling to accept the charge and the evidence without
dispute. The only credible issue offered
to date is the lack of a time limited Writ of Habeas Corpus.
q.
But I say also, my privilege to drive a car is still in the custody of the
State of Missouri grant me a Writ of Habeas Corpus to free my privilege from
the illegal grasp of a corrupt state acting under color of law.
r.
There is no statute of limitation on civil rights issues. To say that a plaintiff has to overcome
injustice “under color of law” financed out of pocket at his own expense is
unfair by itself. This case has been
unfairly persecuted from the inception with false arrest, false imprisonment,
malicious prosecution, perjury, subornation of perjury, criminal conspiracy and
malfeasance in office. To say that a
plaintiff has to overcome injustice “under color of law” in “X” amount of time
is unfair if not IMPOSSIBLE. Remember,
“There are none so blind as those that refuse to see.” The plaintiff is innocent here; he is again
reporting the crimes of gross incompetents, false arrest, unlawful
imprisonment, malicious prosecution, perjury, subornation of perjury and
malfeasants in office. I expect and demand
the protection of my government to safe guard my rights, privileges, or
immunities secured by the Constitution and laws and thus life liberty and the
pursuit of happiness.
s.
Arguably, our courts have lost all ability to claim any part of the truth,
but I as a citizen of the United States still feel responsibility to fight for
Truth and Justice. They are unalienable
rights assured us by our founding fathers with our bill of rights and
constitution and thus fundamental to the American Way of life. I site Briscoe v LaHue, 460 U.S. 325 (1983)
as a prime example of the courts corruption in sanctioning testilying, perjury,
incompetents, falsehood and deceit.
t.
The plaintiff states again affirmatively that his rights and privileges as
described by the 1983 Civil Rights Act are still held in the State of Missouri
custody, even though he is allowed to walk the streets freely, his driving
privileges are currently being withheld from him by a corrupt, incompetent,
discriminatory and perjurious system in the State of Missouri.
u.
The Text of the Title 42 U.S.C. § 1983 The Civil Rights Act: “Every person....
under color of any statute….causes to be subjected, any person…. to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity…..”
v.
I restate the issue, the defendants were incompetent to perform the arrest they made at the
expense of the plaintiff’s right to a competent police force, there was and is
a “Failure to train, supervise and discipline[5].” The defendants Little and Taylor asked the
plaintiff to do the impossible, balance effectively on a 2+” heel and blow
continuously for 20 seconds. That was
not a test. That was and is
impossible. Thus, it was a FALSE ARREST.
w.
Judge Bennett had no justification to throw the plaintiff in jail during
the hearing for pretrial motions. The
plaintiff had no access to due process of law; thus, it was FALSE IMPRISONMENT.
x.
In that the prosecutor’s were made aware of the issues of their
incompetent police officers via documented and verbal pretrial[6] motions for exculpable information and
dismissal of the charges prior to trial they showed “Deliberate Indifference[7]” to the truth and the rights of
the plaintiff. Thus, it was a denial of
the plaintiff’s rights and a MALICIOUS PROSECUTION.
y.
The state’s prosecutors knowingly presented false testimony during the
trial to cover up the incompetence of the police officers. The prosecutors were handed all the issues of
incompetents[8] by the police via pretrial motions, for them
not to have investigated the issues, to provide at a minimum exculpable
information to the defense is unbelievable. The prosecutors handle hundreds of DWI every
year, for them not to know the basics of the Standard Field Sobriety Test and
the Breathalyzer is unbelievable, it is gross negligence, deliberate
indifference, perjury and subornation of perjury. I state affirmatively that it is a
combination of all four, it was a malicious prosecution based on gross negligence,
deliberate indifference, PERJURY AND SUBORNATION OF PERJURY.
z.
If officer Little is so stupid that after being told there is an issue
regarding a 2” heel he thinks he can lie and say it is 4” heel on the stand
under oath and get away with it, he is clearly too stupid to be making arrest
and trusted with a gun.
aa.
Read Officer Taylor’s complete police report and then take his
testimony. He clearly lied on the stand
to cover up his incompetence. He clearly
stated in the police report he required a 20-second continuous blow and the
plaintiff blew for only 15 seconds. The
plaintiff agrees with the police report on most points, he was not happy, but
he was not a resistant. At trial, as
documented by the trial transcript, Officer Taylor changed his story and stated
that it was not a continuous 15-second blow.
bb.
Judge Bennett imprisoned the plaintiff without cause during the pretrial
motions. This issue arguably started the
issue, as a major issue. I was forced to
make an issue of Judge Bennett’s flagrant denial of due process, when he
through me in jail without explanation during my court appearance on Monday
October 6, 2003. I filed a complaint
with the Commission on Retirement, Removal and Discipline of Judges. If you know anything about the Commission on
Retirement, Removal and Discipline of Judges, they are nothing more than a
mailing address to catch complaints, they have no authority, nor are they
willing to do anything.
cc.
How do “We the People” govern the Judges, the police, civil servants with
this absolute immunity they covet so closely?
They all profess to have professional associations to do this, but none
actually have any authority or desire to punish their own.
dd.
Mr. Devin M. Ledom, Asst. Prosecuting Attorney, Mr. W. Steven Rives,
Prosecuting Attorney, and Mr. W. James Icenogle, Prosecuting Attorney all
suborned perjury and assisted in the "Malicious Prosecution,
Mischaracterizing Evidence" [9]in that they used what they new
to be false evidence in the perjured testimony of the two officers, Little and
Taylor to maliciously prosecute the plaintiff.
ee.
Judge Colyer refused to act on the motion for a miss trial after being
made fully aware of the perjured testimony.
Thus, it was a CRIMINAL CONSPIRACY of silence to deny the plaintiff’s
rights to the justice, the truth, and his privileges to drive. Judge Colyer when presented the evidence of
false arrest, malicious prosecution, perjury and subornation of perjury. He looked the other way, aided in the
conspiracy to deprive the plaintiff his rights, and denied a mistrial.
ff.
Jay Nixon, the attorney general of Missouri aided in the conspiracy by
refusing to prosecute the officers for perjury on the stand at trial because of
their prior sworn testimony on the police report per section Section 577.041 of
the Missouri Revised Statutes. I wrote
letters starting in the spring of 2004 after my February 2004 conviction. I continued to write letters through last
summer 2007 when I filed this complaint.
How do “We the People” govern the Judges, the police, civil servants
with this absolute immunity they covet so closely? They all profess to have professional
associations to do this, but none actually have any authority or desire to
punish their own.
gg.
The plaintiff admits and confirms that the current judicial opinion of perjury
is corrupted by Briscoe v LaHue, 460 U.S. 325 (1983). Although Perjury and Subornation of Perjury
are not required to prove a 1983 Civil rights case because “Failure to train,
supervise and discipline,[10]” “Conscious Indifference to
Incompetence[11]” and “Deliberate Indifference[12]” are also proven. I want to see any current judge support
perjury by supporting the judicial citation of Briscoe v LaHue. I see that to be so egregious that it borders
on malfeasants in office and an impeachable offence for any judge. Try supporting that today in full view of the
citizenry.
hh.
All the defendants broke the law in regards to the issues in this
case. Thus as public officials are all
guilty of MALFEASANTS IN OFFICE and immunity does not apply. I wrote letters for 3 years to the Attorney
General for the State of Missouri, The Missouri state Highway Patrol, The
Govern of Missouri, The Supreme Court of Missouri, The Bar Association of
Missouri and the Commission on Retirement, Removal and Discipline of Judges for
the State of Missouri, no one would take action on the crimes of testilying,
gross incompetents, false arrest, unlawful imprisonment, malicious prosecution,
perjury, subornation of perjury and malfeasants in office, thus I ask the State
of Missouri and Jay Nixon the Attorney General be included as defendants. Theirs is “Vicarious Liability, with No
Plausible Deniability[13]”
ii.
The Plaintiff restates that he is suing under the 1983 Civil Rights Act
for damages and injunctive relief for the current denial of his privileges to
drive as a result of the incompetents of the defendants and the deliberate
indifference of the defendants obligation to admit their own incompetents.
jj.
Furthermore, the plaintiff states affirmatively that the Federal Judge one
Scott O. Wright has no right to attempt to silence the plaintiff simply because
he is too blinded by his own bias and too lazy to do his job. This country still has an unfettered 1st
Amendment Right to free speech.
kk.
In that the refusal/ immediate suspension of driving privileges is a confusing
legal issue at best, there should have been extensive and thorough training at
it’s implementation. Clearly there was
nothing defining what a refusal is, clearly there was no training as regards
the requirement for notice of appeal, this constitutes “Inadequate Training
must amount to Deliberate indifference[14]” and "Government Liability,
Single Incident Sufficient When Lack of Training Makes Violation predictable[15]"
ll.
“Nothing in the world is more dangerous than a sincere ignorance and
conscientious stupidity”. -- Martin
Luther King, Jr.
4. The statement of the facts;
a.
The Plaintiff was driving north on highway 57 in Osage Beach on the
morning of May 17, 2006. He was merging
into traffic after a legally executed left turn onto the highway. There was no other car within 150’ behind
him. Officer Little was 150’ +/- behind
the plaintiff. After legally executing a
turn and then immediately merging into traffic, do you switch on your blinker
immediately? No you look to see it is
clear and merge into the safest position possible, this happened to be on the
outside lane in this instance. There is
no way any lane change by the plaintiff could have affected the officer’s
safety 150’ behind him.
b.
Officer Little attempted to get the plaintiff to blow into a substandard
breathalyzer, the plaintiff was reluctant.
There was no 15 minute waiting period for the purging of mouth
alcohol. There was no printout
available. As it turned out the
breathalyzer and the procedure, neither were approved by the Missouri State
Health Department.
c.
The Plaintiff was wearing cowboy boots, see the property receipt dated and
signed by both officer Little and the plaintiff.
d.
The Officer tested the Plaintiff for the gaze nystagmus test in the Sally
Port immediately upon returning to the station.
e.
When the Walk and Turn Test and One Leg Stand Test were done in the Sally
Port, but much later, the plaintiff was wearing cowboy boots. The accepted procedure for both these test
state that a suspect with a 2” heel on should be giving the opportunity to
remove his shoes before being asked to attempt these test. Officer Little did not know of this
requirement and he thus did not make the offer.
f.
The Plaintiff was told to blow into the breathalyzer; he blew into
it. He was told he had not blown enough
with the presentment of the receipt from the BAC Datatmaster ”Inadequate Sample
Provided.”
g.
The Plaintiff asked how long he needed to blow, if indeed he had not blown
long enough. He was told by Officer
Taylor he needed to blow for a continuous 20 seconds. The plaintiff attempted but could not
maintain the tone on the machine for 20 seconds.
h.
The plaintiff was able to manage only 15 seconds of continuous tone.
i.
Officer Taylor’s sworn statement per Missouri Revised Statute Section
577.041 agrees with this.
j.
Per the Missouri Revised Statute Section 577.041 the state of Missouri had
a review capacity[16] for this statement. They question neither that a 15-second blow
was not a refusal nor did the question the 20-second continuous blow as a
requirement.
k.
Judge Bennett, for reasons unknown to the plaintiff through him in jail
and revoked his bond. Again, for reasons
unknown to plaintiff. There is no
incident noted on the court record either that explains this issue; just that
it was done.
l.
The Plaintiff made verifiable motions for discovery for the standard
procedures for the Walk and Turn, the One Leg Stand, the gaze nystagmus and the
breathalyzer. The Prosecution provided
none of this exculpable material[17].
m.
The Plaintiff made verifiable motions for dismissal based on the 15-second
blow and the 2” heel issue pretrial[18], both were denied with
deliberate indifference[19] and without serious consideration.
n.
On the stand under oath, Officer Little stated that it was a 4” heel that
triggered the issue for the removal of the footwear. The Plaintiff restated the question, “You are
sure it is not a 2” heel?” The answer
from Officer Little was 4”. Neither the
Jury nor the plaintiff at the time had confirmation of the standard, again it
had been requested, but it had never been provided by the prosecution.
o.
On the stand under oath Christine Silva, Missouri Health Department, the
governing authority for the breathalyzer, stated that a 15 second blow should
have registered as the average blow was 5-6 seconds and that a 20 second blow
was NOT A REQUIRMENT for a valid test.
p.
Officer Taylor changed his story from his prior sworn statement and said
that the plaintiff had not blown continuously for 15 seconds as his sworn
statement had said. The Jury although it
had heard excerpts from the sworn statement did not have the benefit of the
full statement as sworn by Officer Taylor on 5/17/03 per section Section
577.041 of the Missouri Revised Statutes, available for their review at
trial. The Prosecution withheld Officer
Taylor’s sworn statement of the facts from the Jury.
q.
The Plaintiff was convicted after nearly 8 hours of deliberation.
r.
The Plaintiff after the conviction and with the exculpable information in
hand, made post trial motions for a mistrial to overturn the verdict. All post trial motions were denied by the
Judge Colyer.
5. The statement of the standard of review:
a.
The police are relied upon to be competent in their field. Furthermore as professional witnesses for the
prosecution, their testimony has to be reliable for both competence and
truthfulness. I am sure that on paper
the City of Osage Beach has what appears to be an adequate system of training,
but on this night on this issue, it was clearly no enough. The officers were and are incompetent. “A Good Faith effort is not enough;[20]” as regards protection of a
plaintiff’s rights per the 1983 Civil Rights Act. The plaintiff should not have to be at the
mercy of incompetents with guns and badges.
b.
Officer Little was incompetent[21] to perform the Standardized Field Sobriety
Tests. He did not know at the time of
the arrest the issue of the 2” heel of the footwear worn by the suspect could
be an issue. That amounts to
incompetents and a lack of training, supervision and discipline.
c.
Officer Little after being apprised of the issue of the 2” heel via
pretrial motions in court in November of 2003, showed deliberate indifference
and a lack of training, he did not look up the facts of the issues. At trial in February of 2004, he testified on
the stand under oath to the incorrect standard, he stated it as a 4” heel not a
2” heel that triggered the issue. This
again shows a lack of training, a lack of supervision but also a deliberate
indifference to the facts and the truth.
The Plaintiff was entitled to both competency and the truth from Officer
Little. The trial testimony is just the
icing on the cake as regards the 1983 Civil Rights Issue, the failure to train,
supervise and discipline originated at the arrest.
d.
Officer Taylor’s sworn statement per Missouri Revised Statute Section
577.041 clearly states he required the plaintiff to blow for 20 seconds
continuously. A 20 second continuous
blow is NOT A REQUIREMENT. This was
asserted and sworn to on the stand by the State of Missouri’s own authority
Christine Silva. Thus, Officer Taylor’s
requirement for a 20-second blow shows his incompetence[22] and lack of training.
e.
Officer Taylor’s sworn statement per Missouri Revised Statute Section
577.041 clearly states the plaintiff blew for 15 seconds continuously. This was denied by sworn testimony on the
stand by the State of Missouri’s own authority Christine Silva. 15 seconds should have been a valid
blow. Taylor’s refutation of his prior statement
at trial is incompetence, a lack of training, but also a lack of
supervision. In the two months between
the hearing and the trial, his supervisors should have looked into the issue to
supervise[23] and discipline him.
f.
In that the State of Missouri has a review capacity[24] for the Sworn Statement from any officer
alleging a refusal, again per Missouri Revised Statute Section 577.04, the
state of Missouri Director of Revenue, is incompetent in that they did not
question a 15 second blows as a refusal nor did they question the 20 second
requirement as a requirement, when their own authority the State of Missouri
Health Department refuted it as a requirement and stated that a 15 second blow
was on the high end of the scale. The
state of Missouri via the Director of Revenue is incompetent and thus liable in
a 1983 Civil Rights Action.
g.
Officer Taylor clearly perjured himself on the stand per his sworn
statement of the facts dated 5/17/03.
The plaintiff here with states his general agreement with the sworn
statement dated 5/17/03 and is there for going to consider it as fact.
h.
Perjury is not an issue under a 1983 Civil Rights action, not that I agree
with that, but I accept it. Police
Officers are relied upon by society to be truth tellers. They get paid to be factual and impartial in
their conveyance of the evidence. If a
police officer was proved to have arrested an alleged suspect because of race,
religion or credd and not because of the evidence, he would be guilty of
discrimination and liable for it under 1983 Civil Rights act. By that same logic, incompetence…. a failure,
to train, supervise and discipline officers is a violation of the civil rights
of a plaintiff. At the time of arrest Officer
Little had no knowledge of the 2” heal as an issue for the Standardized Field
Sobriety Test; he was incompetent. Two
months later, after being apprised of the potential issue of the 2: heel, he is
still ignorant of the issue on the stand under oath. Officer Little is not only incompetent; he is
deliberately indifferent to the plaintiff’s rights to have a competent
arresting officer. With full knowledge
of the issue and 2 months time, he is still ignorant and incompetent at trial
on the stand under oath. That is not
only incompetence that is deliberate indifference to the issue.
i. Incompetence… a failure, to
train, supervise and discipline officers is a violation of the civil rights of
a plaintiff. Officer Taylor, was not
aware of the real actual requirements of the breathalyzer test, he was
incompetent to perform the test. The
Plaintiff asked pertinent question regarding the specific requirements, he gave
the plaintiff false information. The
stated reasoning behind the exception to the Law of Perjury as stated in
Briscoe v LaHue, 460 U.S. 325 (1983) is to give police the freedom to be honest
without fear of retribution, it was never intended to be a cover up for
incompetence. Officer Taylor was also
made aware of the issues revolving around his statements via pretrial motions
in November of 2003, he also refused to investigate to discover his own
incompetence, and he preferred to create a new truth in the form of
perjury. He was naïve and incompetent
thinking that his lie would stand scrutiny.
It does not; the jury never had the benefit of his prior sworn
statement. The prosecution did not put
it into evidence, as is standard procedure for all police reports. But I have it and you have
it, it is. Officer Taylor was
incompetent to perform the test on 5/17/03, his supervisors failed to
instructed and supervise him as regards the error in his ways after the motion
and before the trial. With a lack of
training supervision and discipline and deliberate indifference to the
plaintiff’s right to the truth, he presented false evidence on the stand under
oath.
j. Prosecutors get hit with hundreds of cases they cannot prosecute;
they have to select the ones they think they can win. This case had no credibility form the
start. This case fits the definition of
a false arrest; accept that there are so many people in uniform purporting the
false information. The Prosecutors with
deliberate indifference refused to do their due diligence on the pretrial
motions. If they had researched
exculpable[25] information as requested,
they would have discovered just how incompetent their witnesses were. They then could have supervised the police
and told them they need to tighten up their training and improve their
competency. The Prosecutors were
deliberately indifferent to the plaintiff’s civil right to have a competent
witnesses and thus a competent prosecution; this was a malicious prosecution by
an openly incompetent set of prosecutors.
On the surface, without the pretrial motions, this case is suspect. But with the pretrial motions in hand, you
have a trail of bread crumbs to follow to the unavoidable truth that the police
were not competent to make the arrest and thus the arrest is a false and the
prosecution is malicious. The
Prosecutors had a due diligence responsibility to provide the information as
exculpable[26] for the defense but also
again to follow the bread crumbs to the truth.
k. Judges are tasked to oversee Due Process of Law. Judges are empowered to wade through all the
BS and assist a jury to find a verdict.
But when the prosecution is flagrant in their incompetence and their
false if not perjurious testimony, the Judge has the right, the authority and
the obligation to step in to stop the carnage.
I feel Judge Colyer’s deliberate indifference to the issues brought
forward in the post trial motions by the plaintiff make him culpable. He was the first one in for the cover-up of
the incompetence, the perjury and the malfeasance in office of all the others
and thus he has culpability in that he has no deniability, he has “Vicarious
Liability, No Plausible Deniability[27]”. He was aware of it all
and just rubber stamped it and sent it along.
l. If you can believe the limited “draft discovery” I received to my
interrogatory questions, Officer Taylor is still unaware of his mistake. His take on the 20 second requested blow was,
the plaintiff did not do as requested.
He is still ignorantly[28] unaware that his request
was and is impossible, no one can maintain a 20-second tone on the machine, but
beyond that no one has to. There is no
requirement for a 20-second blow.
m. For three years, I wrote letters to the Jay Nixon, Attorney
General, State o Missouri, primarily but others as well in the state
government. No one would listen. I received deliberate indifference from all
of them. These are the people, “We the
People” have entrusted to be our first defense against corrupt and incompetent
police, prosecutors and Judges. Jay
Nixon as the attorney General of the State of Missouri has “Vicarious
Liability, No Plausible Deniability[29].”
n. Everyone stands alone in this action for his or her own
actions. The Municipality[30] cannot shed there
liability, by hiding behind the state, the police officers cannot shed their
liability hiding behind the prosecutors, the judges and the state
officials. Likewise the state cannot
shed their liability, by hiding behind the municipality, the prosecutors, the
judges and the state officials cannot shed their liability hiding behind the
police officers prosecutors and the judges.[31] In turn, they all had their
moment in the sun and their own liability should be attached.
I declare under penalty of
perjury that the foregoing is true and correct. Signed this Tuesday, May 06, 2008
Signature
of Plaintiff(s)
_________________________________________ David G. Jeep
Table
of Authorities for consideration
Ø Allen v. Muskogee
119 F.3d 837, 845, "Government Liability, Single Incident Sufficient When
Lack of Training Makes Violation predictable" (FN 15& Pages 17)
Ø
Berry v. Muskogee 900 F.2d 900, 1489, 1496, "Deliberate
Indifference" (FN 1, 2, 3, 12,19 & Pages 2, 11, 15, 19)
Ø
City of Canton v. Harris, 489 U.S. 378, 390, "Failure to train, supervise and
discipline" (FN 5, 10, 23 & Pages 11, 15, 23)
Ø
Cunningham v Gates 989 F.Supp 1262, 1269 (C.D. Cal 1997),
"Vicarious Liability, No Plausible Deniability" (FN 13, 24, 27, 29
& Pages 16, 23, 28)
Ø
Davis v. Ellensburg 869 F.2d 1230, 1235 (9th Cir. 1989),
"Insulation is no Defense"(FN 30 & Pages 29)
Ø
Deloach v. Bevers 922 F.2d 618, 621 (10th Cir. 1990),
"Malicious Prosecution, Mischaracterizing Evidence" (FN 9 & Pages
14)
Ø
DeLoach v. Bevers, 922 F.2d 618, 621 (10th Cir. 1990) see also
Jones v. Chicago 856, F.2d 985, 994 (7th Cir. 1988), "Prosecutor's or
Judge's acts, no defense"(FN 31 & Pages 29)
Ø
Grandstaff v. City of Borger 767 F.2d 161, 170 (5th Circuit
1985), "Conscious Indifference to Incompetence, "(FN 4, 6, 8, 11, 16,
18,28 & Pages 4, 11, 12, 15, 19, 20, 28)
Ø
Hammond v. Madera 859, F.2d 797, 802 (9th Cir. 1988),
"Ignorance, No Defense"(FN 21, 22 & Pages 21, 23)
Ø
Jean v. Collins 221 F.3d 656, 659 (4th Cir. 200)cert. denied 531
U.S. 1076 121 S.Ct. 771, 148 L.ed.2d 671 (2001), "Due Process, Right to
Exculpatory, Brady Material" (FN 17, 25, 26 & Pages 19, 26, 27)
Ø
Mateyko v. Felix 924 F.2d 824, 826., "Inadequate Training
must amount to Deliberate indifference" (FN 14 & Pages 17)
Ø
Owen v City of Independence (455 U.S. 622 (1980) "A Good
Faith effort is not Enough"(FN 20 & Pages 21)
Ø
Missouri Revised Statute Section 577.041 governing a “Refusal to
submit to chemical test--notice, report of peace officer, contents --
revocation of license, hearing--evidence, admissibility” (Pages 14, 19, 20,
22, 23)
[2] Berry v. Muskogee 900 F.2d 900, 1489, 1496,
"Deliberate Indifference"
[3] Berry v. Muskogee 900 F.2d 900, 1489, 1496,
"Deliberate Indifference"
[4]Grandstaff v. City of Borger
767 F.2d 161, 170 (5th Circuit 1985), "Conscious Indifference to
Incompetence
[5] City of Canton v. Harris, 489 U.S. 378,
390, "Failure to train, supervise
and discipline"
[6]Grandstaff v. City of Borger
767 F.2d 161, 170 (5th Circuit 1985), "Conscious Indifference to
Incompetence
[7]Berry
v. Muskogee 900 F.2d 900, 1489, 1496
[8]Grandstaff v. City of Borger
767 F.2d 161, 170 (5th Circuit 1985), "Conscious Indifference to
Incompetence
[9] Deloach
v. Bevers 922 F.2d 618, 621 (10th Cir. 1990), "Malicious Prosecution,
Mischaracterizing Evidence"
[10] City of Canton v. Harris, 489 U.S. 378,
390, "Failure to train, supervise
and discipline"
[11] Grandstaff
v. City of Borger 767 F.2d 161, 170 (5th Circuit 1985), "Conscious
Indifference to Incompetence,
[12] Berry
v. Muskogee 900 F.2d 900, 1489, 1496, "Deliberate Indifference, "
[13] Cunningham
v Gates 989 F.Supp 1262, 1269 (C.D. Cal 1997)
[14] Mateyko
v. Felix 924 F.2d 824, 826
[15] Allen
v. Muskogee 119 F.3d 837, 845
[16]Grandstaff
v. City of Borger 767 F.2d 161, 170 (5th Circuit 1985, “Conscious Indifference
to Incompetence”
[17] Jean v. Collins 221 F.3d 656, 659 (4th Cir.
200)cert. denied 531 U.S. 1076 121 S.Ct. 771, 148 L.ed.2d 671 (2001), "Due
Process, Right to Exculpatory, Brady Material, "
[18] Grandstaff
v. City of Borger 767 F.2d 161, 170 (5th Circuit 1985), "Conscious
Indifference to Incompetence
[19] Berry
v. Muskogee 900 F.2d 900, 1489, 1496, "Deliberate Indifference"
[20] Owen v City of Independence (455 U.S. 622
(1980) “A Good Faith effort is not enough”
[21]Hammond
v. Madera 859, F.2d 797, 802 (9th Cir. 1988), “Ignorance, No Defense”
[22] “Ignorance, No Defense”, Hammond v. Madera
859, F.2d 797, 802 (9th Cir. 1988)
[23] City of Canton v. Harris, 489 U.S. 378,
390, "Failure to train, supervise
and discipline"
[24] Cunningham v Gates 989 F.Supp 1262, 1269 (C.D.
Cal 1997)
[25] Jean v. Collins 221 F.3d 656, 659 (4th Cir.
200)cert. denied 531 U.S. 1076 121 S.Ct. 771, 148 L.ed.2d 671 (2001), "Due
Process, Right to Exculpatory, Brady Material, "
[26] Jean v. Collins 221 F.3d 656, 659 (4th Cir.
200)cert. denied 531 U.S. 1076 121 S.Ct. 771, 148 L.ed.2d 671 (2001), "Due
Process, Right to Exculpatory, Brady Material"
[27]Cunningham
v Gates 989 F.Supp 1262, 1269 (C.D. Cal 1997)
[28]Grandstaff v. City of Borger 767 F.2d
161, 170 (5th Circuit 1985, “Conscious Indifference to Incompetence”
[29]Cunningham
v Gates 989 F.Supp 1262, 1269 (C.D. Cal 1997)
[30] Davis
v. Ellensburg 869 F.2d 1230, 1235 (9th Cir. 1989), “Insulation is no Defense”
[31] DeLoach
v. Bevers, 922 F.2d 618, 621 (10th Cir. 1990) see also Jones v. Chicago 856,
F.2d 985, 994 (7th Cir. 1988),“Prosecutor’s or Judge’s acts, no defense”
STATES Court of Appeals
8th DISTRICT COURT
David G. Jeep, Plaintiff, vs.Mr. Jack A. Bennett, Associate Circuit Judge, Mr. Devin M. Ledom, Asst. Prosecuting Attorney, Mr. Alex Little, Officer Badge #920, Mr. Tim Taylor Officer Badge #913, Mr. W. Steven Rives, Prosecuting Attorney, Mr. W. James Icenogle, Prosecuting Attorney, and Mr. Bruce Colyer, Associate Circuit Judge, Jay Nixon Attorney General, State of Missouri, Camden County, City of Osage Beach, Defendants
Appeal# ____08-1823 ______Case No. 4:07-cv-0506-W-SOW
Brief for the Appeal 08-1823
1. The jurisdictional statement;
a. This issue originated in the State of Missouri 26th Judicial Circuit in Camden County, Missouri as Case # CR203-1336M in 2004
b. It was appealed through The Missouri Court of Appeals, Southern District as Appeal # SD26269 in 2004
c. It was brought before the US District Court for Western Missouri as 4:07-CV-0506-W-SOW, a 1983 Civil Rights Act issue. Per TITLE 28, PART IV, CHAPTER 85, § 1343 of the US Code, the district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person in 2007.
d. It is now an appeal to the 8th Circuit Court of appeals as 08-1823 in 2008.
2. The statement of the issues;
a. False Arrest by incompetent police officers
b. False imprisonment, a complete denial of the Due Process of Law, for reasons unknown
c. Malicious, incompetent prosecution and deliberate indifference to the plaintiff’s rights to live without fear of harassment from malicious, incompetent persecution under color of law.
d. Perjury, subornation of perjury and deliberate indifference to the plaintiff’s constitutional right to the truth in defense of his innocence.
e. Deliberate indifference to the rights of the plaintiff to a competent police force, the truth in defense of his innocence at trial, equal protection of the law, free from the harassment of false arrest, and malicious prosecution,.
3. The statement of the case;
a. The case in this issue stems from the impossible and thus the incompetent demands of the police in regard to the Standard Field Sobriety Test and the breathalyzer test. No one can or should be asked to balance on a 2” heel. No one can sustain a continuous blow in the breathalyzer machine for 20 seconds. Of course, the plaintiff did not perform up to the police’s requirement, the police were asking the impossible, and thus the police were incompetent. They were able to get a conviction, because with deliberate indifference to the plaintiff’s right to the truth in defense of his innocence, they presented false evidence, revealing their incompetence or perjured themselves at trial or both.
b. The Jury at trail was not afforded access to Tim Taylor’s sworn police report nor from the outside verification of the Standardized Field Sobriety Tests. The Jury was forced to decide based on the false information provided by the Prosecution with prior informed knowledge of the issues of incompetence; the False Testimony has to be gross incompetence or the criminal perjury and subornation of perjury or both. No mater what Briscoe v. LaHue, 460 U.S. 325 (1983) says perjury is still a crime.
c. The prosecution, and I include the state of Missouri, was able to gain a conviction, because the state’s witnesses on the stand under oath disregarded established standards, realistic human capacities, prior police statements and the truth. They testified to false statements to cover up their incompetents with deliberate indifference to their oath of office and perjury.
d. First and foremost on appeal I want to reinstate all the defendants as originally included, I can and will document all their deliberate indifference as malfeasants in office and as described by “Vicarious Liability, No Plausible Deniability”, Cunningham v Gates 989 F.Supp 1262, 1269 (C.D. Cal 1997)
e. In any organization be it governmental, cultural or private based on freedom and equality such as ours, absolute immunity, be it dependent on bloodline (royal) or elected position or appointed position is the antithesis to freedom and equality and is unconscionable. No one has the liberty to act with immunity or impunity every action has to be judged as it relates to others by others.
f. There are none so blind as those that refuse to see.
g. The plaintiff states affirmatively that the plaintiff David G. Jeep’s driving privileges are still suspended as a result of the issue before the court in the above referenced issue. The 1983 Civil Rights Act addresses and protects rights, privileges, or immunities secured by the Constitution and laws. The issue of physical custody is only applicable as an element of the damages perpetrated at the expense of the plaintiff and thus a Writ of Habeas Corpus has no relation. I am suing for damages, injunctive relief in the form of rescission of the conviction and removal of all trace of it from the plaintiff’s driving record.
h. You want to say the plaintiff had a chance to fairly litigate this in the state court. Where is the fairness, when the state prosecution is allowed to withhold exculpatory information and present false if not perjurious evidence on the stand during the trial under color of law? The Plaintiff made documented pretrial motions for verification of the standard procedures for the gaze nystagmus, for the Standard Field Sobriety Test and for the Breathalyzer in pretrial motions, and received nothing.
i. The physical custody issue normally addressed by a Writ of Habeas Corpus, “show me the body” has nothing to do with the privileges the plaintiff is suing for under the 1983 Civil Rights Act, for injunctive relief. A Writ of Habeas Corpus is one of those ambiguous terms that would be jargon prone legal minds want to foist upon an unsuspecting public as too problematical for the common man to understand, and I say so be it. For that reason and more, the Writ of Habeas Corpus has been overused, misused and abused for centuries. It has been overused because it is the fix all that is used to right presumed egregious wrongs. It is misused because it is ill defined and one size does not fit all. It has been abused by those that would use its ill-defined power for their own benefit.
j. The plaintiff is not a legal scholar, although he can read he does question the courts ability to understand the written word, “Every person” includes Judges. If the custody of the plaintiff’s driving privileges can be addressed by, a one size fits all a writ of habeas corpus then so be it. GRANT ME A WRIT OF HABEAS CORPUS for my PRIVLEDGE TO DRIVE.
k. I do not want this to sound like Police or Judicial hate. It is not. I do not care what professions you look at, an unavoidable percentage are going to be incompetent, corrupt and evil. How do “We the People” govern the Judges, the Police and the Prosecutors if “We” do not have the 1983 Civil Rights Act and associated criminal charges in Federal Court? I have evidence in the form of numerous letters and correspondence to “State Authorities” they will not govern the Judges, the Police and the Prosecutors. The appeals process is replete with the same lethargic and corrupt assumptions of the self-serving, self-sustaining infallibility as the circuit courts. An appeal is cost prohibitive for most common people, without making it profitable to pursue your Civil Rights from the main overseers of those rights the Judges and other “civil” servants. If the appeal process is the only alternative, Civil Rights are too expensive for the common person to afford.
l. The issue of a writ of habeas corpus is not directly applicable to the current issue in that physical custody and the similarities between Heck v. Humphrey and Jeep v. Bennett, et al are not credible or controlling. Heck v. Humphrey has no similarities with Jeep v Bennett other than both involve a 1983 Civil Rights Action. You could as easily compare Timothy McVey’s (the Oklahoma Bomber) murder case with a clear case of self-defense and say that both require the death penalty because they both involve a homicide. In Heck, the issue was for damages because he was convicted, and the destroyed audio tape could have cleared him, if it had not been destroyed. This issue is not ancillary to the criminal issue; the evidence in Jeep v. Bennett, et al is a matter of court record, police record and authoritative standard for the issue. In Jeep v. Bennett, et al it bears directly on the criminal case in chief.
m. Before we hope to understand jurisprudence, before we hope to understand each other, we have to have a basic agreement in logic. If “A” then “B” it should follow that “A” presupposes “B”. It is the plaintiff’s position that the antecedent “A” in Heck v Humphries is not equal to the antecedent in the current issue Jeep v. Bennett, et al there for it does not follow that “B” should be required or inferred in the current issue, Jeep v. Bennett, et al.
n. The cause of action in Heck v Humphries revolves around a nonexistent audio tape, which could have possibly cleared plaintiff. The tape did not currently exist so any dispute over it was moot. The plaintiff, Heck, did not ask for injunctive relief, Jeep does. The issue could not have affected the verdict either way it literally was not in existence, too bad for the plaintiff but not even the Supreme Court can create a tape out of nothing.
o. That is not the case in Jeep v. Bennett, et al. The evidence is in existence. The evidence is verifiable as the Court Transcript, Police Records and outside authoritative standards on the issues. There is no relevant controlling similarity between Heck v Humphries and Jeep v. Bennett, et al.
p. The evidence that has been presented in support of the complaint is not only irrefutable it is not even contested. The defendants are wiling to accept the charge and the evidence without dispute. The only credible issue offered to date is the lack of a time limited Writ of Habeas Corpus.
q. But I say also, my privilege to drive a car is still in the custody of the State of Missouri grant me a Writ of Habeas Corpus to free my privilege from the illegal grasp of a corrupt state acting under color of law.
r. There is no statute of limitation on civil rights issues. To say that a plaintiff has to overcome injustice “under color of law” financed out of pocket at his own expense is unfair by itself. This case has been unfairly persecuted from the inception with false arrest, false imprisonment, malicious prosecution, perjury, subornation of perjury, criminal conspiracy and malfeasance in office. To say that a plaintiff has to overcome injustice “under color of law” in “X” amount of time is unfair if not IMPOSSIBLE. Remember, “There are none so blind as those that refuse to see.” The plaintiff is innocent here; he is again reporting the crimes of gross incompetents, false arrest, unlawful imprisonment, malicious prosecution, perjury, subornation of perjury and malfeasants in office. I expect and demand the protection of my government to safe guard my rights, privileges, or immunities secured by the Constitution and laws and thus life liberty and the pursuit of happiness.
s. Arguably, our courts have lost all ability to claim any part of the truth, but I as a citizen of the United States still feel responsibility to fight for Truth and Justice. They are unalienable rights assured us by our founding fathers with our bill of rights and constitution and thus fundamental to the American Way of life. I site Briscoe v LaHue, 460 U.S. 325 (1983) as a prime example of the courts corruption in sanctioning testilying, perjury, incompetents, falsehood and deceit.
t. The plaintiff states again affirmatively that his rights and privileges as described by the 1983 Civil Rights Act are still held in the State of Missouri custody, even though he is allowed to walk the streets freely, his driving privileges are currently being withheld from him by a corrupt, incompetent, discriminatory and perjurious system in the State of Missouri.
u. The Text of the Title 42 U.S.C. § 1983 The Civil Rights Act: “Every person.... under color of any statute….causes to be subjected, any person…. to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity…..”
v. I restate the issue, the defendants were incompetent to perform the arrest they made at the expense of the plaintiff’s right to a competent police force, there was and is a “Failure to train, supervise and discipline .” The defendants Little and Taylor asked the plaintiff to do the impossible, balance effectively on a 2+” heel and blow continuously for 20 seconds. That was not a test. That was and is impossible. Thus, it was a FALSE ARREST.
w. Judge Bennett had no justification to throw the plaintiff in jail during the hearing for pretrial motions. The plaintiff had no access to due process of law; thus, it was FALSE IMPRISONMENT.
x. In that the prosecutor’s were made aware of the issues of their incompetent police officers via documented and verbal pretrial motions for exculpable information and dismissal of the charges prior to trial they showed “Deliberate Indifference ” to the truth and the rights of the plaintiff. Thus, it was a denial of the plaintiff’s rights and a MALICIOUS PROSECUTION.
y. The state’s prosecutors knowingly presented false testimony during the trial to cover up the incompetence of the police officers. The prosecutors were handed all the issues of incompetents by the police via pretrial motions, for them not to have investigated the issues, to provide at a minimum exculpable information to the defense is unbelievable. The prosecutors handle hundreds of DWI every year, for them not to know the basics of the Standard Field Sobriety Test and the Breathalyzer is unbelievable, it is gross negligence, deliberate indifference, perjury and subornation of perjury. I state affirmatively that it is a combination of all four, it was a malicious prosecution based on gross negligence, deliberate indifference, PERJURY AND SUBORNATION OF PERJURY.
z. If officer Little is so stupid that after being told there is an issue regarding a 2” heel he thinks he can lie and say it is 4” heel on the stand under oath and get away with it, he is clearly too stupid to be making arrest and trusted with a gun.
aa. Read Officer Taylor’s complete police report and then take his testimony. He clearly lied on the stand to cover up his incompetence. He clearly stated in the police report he required a 20-second continuous blow and the plaintiff blew for only 15 seconds. The plaintiff agrees with the police report on most points, he was not happy, but he was not a resistant. At trial, as documented by the trial transcript, Officer Taylor changed his story and stated that it was not a continuous 15-second blow.
bb. Judge Bennett imprisoned the plaintiff without cause during the pretrial motions. This issue arguably started the issue, as a major issue. I was forced to make an issue of Judge Bennett’s flagrant denial of due process, when he through me in jail without explanation during my court appearance on Monday October 6, 2003. I filed a complaint with the Commission on Retirement, Removal and Discipline of Judges. If you know anything about the Commission on Retirement, Removal and Discipline of Judges, they are nothing more than a mailing address to catch complaints, they have no authority, nor are they willing to do anything.
cc. How do “We the People” govern the Judges, the police, civil servants with this absolute immunity they covet so closely? They all profess to have professional associations to do this, but none actually have any authority or desire to punish their own.
dd. Mr. Devin M. Ledom, Asst. Prosecuting Attorney, Mr. W. Steven Rives, Prosecuting Attorney, and Mr. W. James Icenogle, Prosecuting Attorney all suborned perjury and assisted in the "Malicious Prosecution, Mischaracterizing Evidence" in that they used what they new to be false evidence in the perjured testimony of the two officers, Little and Taylor to maliciously prosecute the plaintiff.
ee. Judge Colyer refused to act on the motion for a miss trial after being made fully aware of the perjured testimony. Thus, it was a CRIMINAL CONSPIRACY of silence to deny the plaintiff’s rights to the justice, the truth, and his privileges to drive. Judge Colyer when presented the evidence of false arrest, malicious prosecution, perjury and subornation of perjury. He looked the other way, aided in the conspiracy to deprive the plaintiff his rights, and denied a mistrial.
ff. Jay Nixon, the attorney general of Missouri aided in the conspiracy by refusing to prosecute the officers for perjury on the stand at trial because of their prior sworn testimony on the police report per section Section 577.041 of the Missouri Revised Statutes. I wrote letters starting in the spring of 2004 after my February 2004 conviction. I continued to write letters through last summer 2007 when I filed this complaint. How do “We the People” govern the Judges, the police, civil servants with this absolute immunity they covet so closely? They all profess to have professional associations to do this, but none actually have any authority or desire to punish their own.
gg. The plaintiff admits and confirms that the current judicial opinion of perjury is corrupted by Briscoe v LaHue, 460 U.S. 325 (1983). Although Perjury and Subornation of Perjury are not required to prove a 1983 Civil rights case because “Failure to train, supervise and discipline, ” “Conscious Indifference to Incompetence ” and “Deliberate Indifference ” are also proven. I want to see any current judge support perjury by supporting the judicial citation of Briscoe v LaHue. I see that to be so egregious that it borders on malfeasants in office and an impeachable offence for any judge. Try supporting that today in full view of the citizenry.
hh. All the defendants broke the law in regards to the issues in this case. Thus as public officials are all guilty of MALFEASANTS IN OFFICE and immunity does not apply. I wrote letters for 3 years to the Attorney General for the State of Missouri, The Missouri state Highway Patrol, The Govern of Missouri, The Supreme Court of Missouri, The Bar Association of Missouri and the Commission on Retirement, Removal and Discipline of Judges for the State of Missouri, no one would take action on the crimes of testilying, gross incompetents, false arrest, unlawful imprisonment, malicious prosecution, perjury, subornation of perjury and malfeasants in office, thus I ask the State of Missouri and Jay Nixon the Attorney General be included as defendants. Theirs is “Vicarious Liability, with No Plausible Deniability ”
ii. The Plaintiff restates that he is suing under the 1983 Civil Rights Act for damages and injunctive relief for the current denial of his privileges to drive as a result of the incompetents of the defendants and the deliberate indifference of the defendants obligation to admit their own incompetents.
jj. Furthermore, the plaintiff states affirmatively that the Federal Judge one Scott O. Wright has no right to attempt to silence the plaintiff simply because he is too blinded by his own bias and too lazy to do his job. This country still has an unfettered 1st Amendment Right to free speech.
kk. In that the refusal/ immediate suspension of driving privileges is a confusing legal issue at best, there should have been extensive and thorough training at it’s implementation. Clearly there was nothing defining what a refusal is, clearly there was no training as regards the requirement for notice of appeal, this constitutes “Inadequate Training must amount to Deliberate indifference ” and "Government Liability, Single Incident Sufficient When Lack of Training Makes Violation predictable "
ll. “Nothing in the world is more dangerous than a sincere ignorance and conscientious stupidity”. -- Martin Luther King, Jr.
4. The statement of the facts;
a. The Plaintiff was driving north on highway 57 in Osage Beach on the morning of May 17, 2006. He was merging into traffic after a legally executed left turn onto the highway. There was no other car within 150’ behind him. Officer Little was 150’ +/- behind the plaintiff. After legally executing a turn and then immediately merging into traffic, do you switch on your blinker immediately? No you look to see it is clear and merge into the safest position possible, this happened to be on the outside lane in this instance. There is no way any lane change by the plaintiff could have affected the officer’s safety 150’ behind him.
b. Officer Little attempted to get the plaintiff to blow into a substandard breathalyzer, the plaintiff was reluctant. There was no 15 minute waiting period for the purging of mouth alcohol. There was no printout available. As it turned out the breathalyzer and the procedure, neither were approved by the Missouri State Health Department.
c. The Plaintiff was wearing cowboy boots, see the property receipt dated and signed by both officer Little and the plaintiff.
d. The Officer tested the Plaintiff for the gaze nystagmus test in the Sally Port immediately upon returning to the station.
e. When the Walk and Turn Test and One Leg Stand Test were done in the Sally Port, but much later, the plaintiff was wearing cowboy boots. The accepted procedure for both these test state that a suspect with a 2” heel on should be giving the opportunity to remove his shoes before being asked to attempt these test. Officer Little did not know of this requirement and he thus did not make the offer.
f. The Plaintiff was told to blow into the breathalyzer; he blew into it. He was told he had not blown enough with the presentment of the receipt from the BAC Datatmaster ”Inadequate Sample Provided.”
g. The Plaintiff asked how long he needed to blow, if indeed he had not blown long enough. He was told by Officer Taylor he needed to blow for a continuous 20 seconds. The plaintiff attempted but could not maintain the tone on the machine for 20 seconds.
h. The plaintiff was able to manage only 15 seconds of continuous tone.
i. Officer Taylor’s sworn statement per Missouri Revised Statute Section 577.041 agrees with this.
j. Per the Missouri Revised Statute Section 577.041 the state of Missouri had a review capacity for this statement. They question neither that a 15-second blow was not a refusal nor did the question the 20-second continuous blow as a requirement.
k. Judge Bennett, for reasons unknown to the plaintiff through him in jail and revoked his bond. Again, for reasons unknown to plaintiff. There is no incident noted on the court record either that explains this issue; just that it was done.
l. The Plaintiff made verifiable motions for discovery for the standard procedures for the Walk and Turn, the One Leg Stand, the gaze nystagmus and the breathalyzer. The Prosecution provided none of this exculpable material .
m. The Plaintiff made verifiable motions for dismissal based on the 15-second blow and the 2” heel issue pretrial , both were denied with deliberate indifference and without serious consideration.
n. On the stand under oath, Officer Little stated that it was a 4” heel that triggered the issue for the removal of the footwear. The Plaintiff restated the question, “You are sure it is not a 2” heel?” The answer from Officer Little was 4”. Neither the Jury nor the plaintiff at the time had confirmation of the standard, again it had been requested, but it had never been provided by the prosecution.
o. On the stand under oath Christine Silva, Missouri Health Department, the governing authority for the breathalyzer, stated that a 15 second blow should have registered as the average blow was 5-6 seconds and that a 20 second blow was NOT A REQUIRMENT for a valid test.
p. Officer Taylor changed his story from his prior sworn statement and said that the plaintiff had not blown continuously for 15 seconds as his sworn statement had said. The Jury although it had heard excerpts from the sworn statement did not have the benefit of the full statement as sworn by Officer Taylor on 5/17/03 per section Section 577.041 of the Missouri Revised Statutes, available for their review at trial. The Prosecution withheld Officer Taylor’s sworn statement of the facts from the Jury.
q. The Plaintiff was convicted after nearly 8 hours of deliberation.
r. The Plaintiff after the conviction and with the exculpable information in hand, made post trial motions for a mistrial to overturn the verdict. All post trial motions were denied by the Judge Colyer.
5. The statement of the standard of review:
a. The police are relied upon to be competent in their field. Furthermore as professional witnesses for the prosecution, their testimony has to be reliable for both competence and truthfulness. I am sure that on paper the City of Osage Beach has what appears to be an adequate system of training, but on this night on this issue, it was clearly no enough. The officers were and are incompetent. “A Good Faith effort is not enough; ” as regards protection of a plaintiff’s rights per the 1983 Civil Rights Act. The plaintiff should not have to be at the mercy of incompetents with guns and badges.
b. Officer Little was incompetent to perform the Standardized Field Sobriety Tests. He did not know at the time of the arrest the issue of the 2” heel of the footwear worn by the suspect could be an issue. That amounts to incompetents and a lack of training, supervision and discipline.
c. Officer Little after being apprised of the issue of the 2” heel via pretrial motions in court in November of 2003, showed deliberate indifference and a lack of training, he did not look up the facts of the issues. At trial in February of 2004, he testified on the stand under oath to the incorrect standard, he stated it as a 4” heel not a 2” heel that triggered the issue. This again shows a lack of training, a lack of supervision but also a deliberate indifference to the facts and the truth. The Plaintiff was entitled to both competency and the truth from Officer Little. The trial testimony is just the icing on the cake as regards the 1983 Civil Rights Issue, the failure to train, supervise and discipline originated at the arrest.
d. Officer Taylor’s sworn statement per Missouri Revised Statute Section 577.041 clearly states he required the plaintiff to blow for 20 seconds continuously. A 20 second continuous blow is NOT A REQUIREMENT. This was asserted and sworn to on the stand by the State of Missouri’s own authority Christine Silva. Thus, Officer Taylor’s requirement for a 20-second blow shows his incompetence and lack of training.
e. Officer Taylor’s sworn statement per Missouri Revised Statute Section 577.041 clearly states the plaintiff blew for 15 seconds continuously. This was denied by sworn testimony on the stand by the State of Missouri’s own authority Christine Silva. 15 seconds should have been a valid blow. Taylor’s refutation of his prior statement at trial is incompetence, a lack of training, but also a lack of supervision. In the two months between the hearing and the trial, his supervisors should have looked into the issue to supervise and discipline him.
f. In that the State of Missouri has a review capacity for the Sworn Statement from any officer alleging a refusal, again per Missouri Revised Statute Section 577.04, the state of Missouri Director of Revenue, is incompetent in that they did not question a 15 second blows as a refusal nor did they question the 20 second requirement as a requirement, when their own authority the State of Missouri Health Department refuted it as a requirement and stated that a 15 second blow was on the high end of the scale. The state of Missouri via the Director of Revenue is incompetent and thus liable in a 1983 Civil Rights Action.
g. Officer Taylor clearly perjured himself on the stand per his sworn statement of the facts dated 5/17/03. The plaintiff here with states his general agreement with the sworn statement dated 5/17/03 and is there for going to consider it as fact.
h. Perjury is not an issue under a 1983 Civil Rights action, not that I agree with that, but I accept it. Police Officers are relied upon by society to be truth tellers. They get paid to be factual and impartial in their conveyance of the evidence. If a police officer was proved to have arrested an alleged suspect because of race, religion or credd and not because of the evidence, he would be guilty of discrimination and liable for it under 1983 Civil Rights act. By that same logic, incompetence…. a failure, to train, supervise and discipline officers is a violation of the civil rights of a plaintiff. At the time of arrest Officer Little had no knowledge of the 2” heal as an issue for the Standardized Field Sobriety Test; he was incompetent. Two months later, after being apprised of the potential issue of the 2: heel, he is still ignorant of the issue on the stand under oath. Officer Little is not only incompetent; he is deliberately indifferent to the plaintiff’s rights to have a competent arresting officer. With full knowledge of the issue and 2 months time, he is still ignorant and incompetent at trial on the stand under oath. That is not only incompetence that is deliberate indifference to the issue.
i. Incompetence… a failure, to train, supervise and discipline officers is a violation of the civil rights of a plaintiff. Officer Taylor, was not aware of the real actual requirements of the breathalyzer test, he was incompetent to perform the test. The Plaintiff asked pertinent question regarding the specific requirements, he gave the plaintiff false information. The stated reasoning behind the exception to the Law of Perjury as stated in Briscoe v LaHue, 460 U.S. 325 (1983) is to give police the freedom to be honest without fear of retribution, it was never intended to be a cover up for incompetence. Officer Taylor was also made aware of the issues revolving around his statements via pretrial motions in November of 2003, he also refused to investigate to discover his own incompetence, and he preferred to create a new truth in the form of perjury. He was naïve and incompetent thinking that his lie would stand scrutiny. It does not; the jury never had the benefit of his prior sworn statement. The prosecution did not put it into evidence, as is standard procedure for all police reports. But I have it and you have it, it is. Officer Taylor was incompetent to perform the test on 5/17/03, his supervisors failed to instructed and supervise him as regards the error in his ways after the motion and before the trial. With a lack of training supervision and discipline and deliberate indifference to the plaintiff’s right to the truth, he presented false evidence on the stand under oath.
j. Prosecutors get hit with hundreds of cases they cannot prosecute; they have to select the ones they think they can win. This case had no credibility form the start. This case fits the definition of a false arrest; accept that there are so many people in uniform purporting the false information. The Prosecutors with deliberate indifference refused to do their due diligence on the pretrial motions. If they had researched exculpable information as requested, they would have discovered just how incompetent their witnesses were. They then could have supervised the police and told them they need to tighten up their training and improve their competency. The Prosecutors were deliberately indifferent to the plaintiff’s civil right to have a competent witnesses and thus a competent prosecution; this was a malicious prosecution by an openly incompetent set of prosecutors. On the surface, without the pretrial motions, this case is suspect. But with the pretrial motions in hand, you have a trail of bread crumbs to follow to the unavoidable truth that the police were not competent to make the arrest and thus the arrest is a false and the prosecution is malicious. The Prosecutors had a due diligence responsibility to provide the information as exculpable for the defense but also again to follow the bread crumbs to the truth.
k. Judges are tasked to oversee Due Process of Law. Judges are empowered to wade through all the BS and assist a jury to find a verdict. But when the prosecution is flagrant in their incompetence and their false if not perjurious testimony, the Judge has the right, the authority and the obligation to step in to stop the carnage. I feel Judge Colyer’s deliberate indifference to the issues brought forward in the post trial motions by the plaintiff make him culpable. He was the first one in for the cover-up of the incompetence, the perjury and the malfeasance in office of all the others and thus he has culpability in that he has no deniability, he has “Vicarious Liability, No Plausible Deniability ”. He was aware of it all and just rubber stamped it and sent it along.
l. If you can believe the limited “draft discovery” I received to my interrogatory questions, Officer Taylor is still unaware of his mistake. His take on the 20 second requested blow was, the plaintiff did not do as requested. He is still ignorantly unaware that his request was and is impossible, no one can maintain a 20-second tone on the machine, but beyond that no one has to. There is no requirement for a 20-second blow.
m. For three years, I wrote letters to the Jay Nixon, Attorney General, State o Missouri, primarily but others as well in the state government. No one would listen. I received deliberate indifference from all of them. These are the people, “We the People” have entrusted to be our first defense against corrupt and incompetent police, prosecutors and Judges. Jay Nixon as the attorney General of the State of Missouri has “Vicarious Liability, No Plausible Deniability .”
n. Everyone stands alone in this action for his or her own actions. The Municipality cannot shed there liability, by hiding behind the state, the police officers cannot shed their liability hiding behind the prosecutors, the judges and the state officials. Likewise the state cannot shed their liability, by hiding behind the municipality, the prosecutors, the judges and the state officials cannot shed their liability hiding behind the police officers prosecutors and the judges. In turn, they all had their moment in the sun and their own liability should be attached.
I declare under penalty of perjury that the foregoing is true and correct. Signed this Tuesday, May 06, 2008
Signature of Plaintiff(s)
_________________________________________ David G. Jeep
Table of Authorities for consideration
Ø Allen v. Muskogee 119 F.3d 837, 845, "Government Liability, Single Incident Sufficient When Lack of Training Makes Violation predictable" (FN 15& Pages 17)
Ø Berry v. Muskogee 900 F.2d 900, 1489, 1496, "Deliberate Indifference" (FN 1, 2, 3, 12,19 & Pages 2, 11, 15, 19)
Ø City of Canton v. Harris, 489 U.S. 378, 390, "Failure to train, supervise and discipline" (FN 5, 10, 23 & Pages 11, 15, 23)
Ø Cunningham v Gates 989 F.Supp 1262, 1269 (C.D. Cal 1997), "Vicarious Liability, No Plausible Deniability" (FN 13, 24, 27, 29 & Pages 16, 23, 28)
Ø Davis v. Ellensburg 869 F.2d 1230, 1235 (9th Cir. 1989), "Insulation is no Defense"(FN 30 & Pages 29)
Ø Deloach v. Bevers 922 F.2d 618, 621 (10th Cir. 1990), "Malicious Prosecution, Mischaracterizing Evidence" (FN 9 & Pages 14)
Ø DeLoach v. Bevers, 922 F.2d 618, 621 (10th Cir. 1990) see also Jones v. Chicago 856, F.2d 985, 994 (7th Cir. 1988), "Prosecutor's or Judge's acts, no defense"(FN 31 & Pages 29)
Ø Grandstaff v. City of Borger 767 F.2d 161, 170 (5th Circuit 1985), "Conscious Indifference to Incompetence, "(FN 4, 6, 8, 11, 16, 18,28 & Pages 4, 11, 12, 15, 19, 20, 28)
Ø Hammond v. Madera 859, F.2d 797, 802 (9th Cir. 1988), "Ignorance, No Defense"(FN 21, 22 & Pages 21, 23)
Ø Jean v. Collins 221 F.3d 656, 659 (4th Cir. 200)cert. denied 531 U.S. 1076 121 S.Ct. 771, 148 L.ed.2d 671 (2001), "Due Process, Right to Exculpatory, Brady Material" (FN 17, 25, 26 & Pages 19, 26, 27)
Ø Mateyko v. Felix 924 F.2d 824, 826., "Inadequate Training must amount to Deliberate indifference" (FN 14 & Pages 17)
Ø Owen v City of Independence (455 U.S. 622 (1980) "A Good Faith effort is not Enough"(FN 20 & Pages 21)
Ø Missouri Revised Statute Section 577.041 governing a “Refusal to submit to chemical test--notice, report of peace officer, contents -- revocation of license, hearing--evidence, admissibility” (Pages 14, 19, 20, 22, 23)
