The 6th Circuit hurriedly, and illegally, created a precedent protecting police officers in shootings during home raids, putting people and people's pet in danger of on-sight execution, and doing it in order to defeat a wrongful death/civil rights lawsuit of a little girl

Your dog (and my dog) is property.

In 2002 in New York, for example, a court has ruled that there is no cause of action for loss of companionship of a dog - even due to a pharmacist's mistake that killed that dog.

And, recently, in Canada, a judge took his time to mock a childless couple who, while divorcing after 16 years of marriage, asked the court to treat their dogs as their children and to award physical custody and visitation of them.  The judge said - I do not have to decide on the custody of kitchen knives, and the same applies to dogs, as property under the law.  Thus, crossing out, as unimportant, feelings of childless humans toward family pets as family members, and obviously crossing out feelings of family pets towards humans, too.

There is a whole Nonhumanrights.org project created to assert in court that animals are not JUST property - that, due to their status as living beings, they must have some rights other than property.

Meanwhile, a new court decision about family pets' right to life was reported from a federal court in Michigan - and is causing waves in comments in the social media - that a police officer entering a residence may shoot a dog if the dog moves or barks.

Police shoots family dogs lately in alarming numbers, as an article reporting on the same federal court decision observes, so that even law enforcement publications raise the question whether we are dealing with an "epidemic" of such shootings.

And, for an officer, anything - anything - qualifies as a reason to be afraid for his safety - even when a dog is STANDING over the corpse of her dead companion dog and barking at its killer, but NOT attacking or moving.

Of course, the article recognizes public anger at the decision and claims that "nothing changed" by the decision - that people still have constitutional 4th Amendment "property right" against governmental "unreasonable search and seizure", killing of a family pet qualifying as a "seizure" - the judge "just" found, in that particular incident alone, that the killing was reasonable and "justified".

Yet, that claim, that "nothing changed" is not true.

Under precedential power, in the jurisdiction covered by the 6th Circuit - and, likely, in the entire United States, looking at that decision as a precedent - the "totality of circumstances" "test" now includes a dog "moving or barking", and thus, ANY officer entering ANY residence with a dog, is empower to shoot the dog on sight, and then concoct a story about being "threatened" - unless, of course, every owner installs INTERNAL security cameras and crates dogs within the home at all times - which are, both, unreasonable suggestions which will not work and will not be utilized.

Right now, at 11:20 am Eastern Time, as I am writing this article, there are 324 comments and 702 shares of the article about the 6th Circuit's decision:

Most comments are from people outraged by the decision and indicating that they will protect their pets the same way they will protect themselves - with armed resistance.

And this is just one example of how unreasonable court decisions, made contrary the contents of the record showing that, at the very least, the 2nd dog did nothing to invite the officer to kill her,

decisions made for a pre-judged purpose, in order to protect the government from liability, can cause disrespect to the judiciary and destroy people's belief in the rule of law.

Of course, there were attempts to "calm down" the public - with comments accusing the reporters of "click-baiting" and "misleading the public:

The commentator Rob Cozart is, of course, according to his LinkedIn profile, and according to his FB profile, a retired police Leuitenant:

with the exact same mentality that causes the public to fear the police: look how he reacted to my comment that the decision has a precedential power:

As soon as anybody tries to just point out that a certain precedent is going to be dangerous in application, giving the police extremely broad powers to shoot at family pets - which can, by the way, kill children and people who are inside the house, next to the dogs, and who the dogs may be protecting - the police logic is:

• our "system" - whatever it is - 'isn't perfect, but it's the best one in the world", and
• that "that's why everyone wants to come here" - I do not know whether Rob Cozart was hinting at the fact that I came to the U.S. as an immigrant, but that's what the clear implication is.

Of course, the "best system in the world" has resulted in an epidemic of wrongful incarcerations, incarcerations in for-profit prisons, and incarcerations that exceed, by far, incarcerations in all other so-called "civilized" countries, as well as police shootings of innocent unarmed people (not just dogs), reported nearly daily, and thus cannot be considered "the best system in the world".

Apparently, for a police officer, or a retired police officer, there is magic in words - as soon as the magic words "we have the best system", and "that's why everyone wants to come here" are pronounced - they are supposed to justify any violations of the law and of people's (and animal's) rights.

According to this retired police officer's logic, this

was justifiable, and unless the officer is allowed to shoot, and shoot, and shoot, and shoot again the dog that provided no threat to him - and then shoot her "to put her out of her misery" because "he didn't want to see it suffer" - while the dog could be saved by simply taking it to the vet, and the officer definitely was not threatened by a wounded dog - unless the officer would be allowed to do THAT, "the rest of the country" will "turn into Chicago".

That's exactly the mentality that should have given the federal court pause and should have prevented the court from ruling that ALL of officers' shootings - including the shots that wounded a dog just standing at a distance and barking, and that killed that same dog, after it was wounded down - that all of that is justifiable under the "totality of circumstances" "test".

Of course, the owners of the house offered officers keys to open the door, and obviously could be allowed to come in in front of officers to calm down the dogs - but officers refused to use the keys under the pretext that there was a possibility that "false keys" could be offered to delay the search and allow evidence to be destroyed.  Instead, dogs were "destroyed".

And, of course, the "totality of circumstances" "test" is no test at all, giving the widest discretion to police officers to claim they were "threatened", even in situations where they cannot be possibly "threatened" so as to justify the use of deadly force - and that applies not only to dogs, but to police shootings of people, too.

And, of course, the K-9 "units", dogs "working" for the police are, of course, cherished by the police - which does not cancel the fact that police shootings of other people's dogs is on the rise, making, once again, even a law enforcement magazine calling it "an epidemic".

Now, as to the Fox article being a "click-bate" that caused so many angry comments from the public as to the court decision.

The court decision clearly states that:

• the police had a search warrant, but not an arrest warrant;
• that the target of their search warrant was a person who was arrested outside of the house before their search of the house;
• that the police arrested - and handcuffed - one of the plaintiffs, without an arrest warrant, explaining to him that they are going to exercise the search warrant - which was illegal, because there is nothing in the law allowing them to insist that they can only exercise the search warrant in the absence of residents, and especially to arrest residents, who provide no resistance at all and pose no threat, without an arrest warrant, in order to prevent their presence where the search warrant is exercised - such "policies" allow police officers to plant evidence during searches in the absence of witnesses;
• the handcuffed plaintiff offered officers the keys to the house that he just used to open the house and to let the dogs out;
• the police looked inside the residence before ramming into it, and saw two pit bulls - a 92-pound and a 53-pound dog - jumping, "pawing", and barking at the windows;
• the arrested plaintiffs could very well be allowed to get into the house with the police officers in order to calm the dogs down or crate them;
• the police refused the use of keys and rammed the residence instead;
• there was no people inside the house - the handcuffed plaintiff came to the house during his lunch break to let the dogs out - so the justification that somebody will "destroy the evidence" if there is any delay in opening the door is fake;
• that the smaller dog "never barked in her life", and that she disappeared from the upstairs room into the basement after the police entered the house - indicating that she would rather retreat than attack the officers and presents no danger to them;

So, great job, the 6th Circuit - encourage police officers to shoot dogs inside a residence on site, because they "moved or barked", and then justify the killing of a child or an adult that the dog covers with his body by claiming that the officer "felt threatened by a dog", and "did not see a human".

There was already an alarming court decision from the 2nd Circuit that justified discrimination against smarter police force candidates, indicating that employers of new police officers are justified not to hire smart candidates, for fear that they will leave the job soon for greener pastures:

"Applying that lenient standard of review, we conclude that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed -- on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC -- that there was such a connection.

Plaintiff presented some evidence that high scorers do not actually experience more job dissatisfaction, but that evidence does not create a factual issue, because it matters not whether the city's decision was correct so long as it was rational. The city could rationally have relied upon the guide to interpreting test results provided by the test maker as justification for reducing the size of the applicant pool with both a low and a high cut off.  Even if unwise, the upper cut was a rational policy instituted to reduce job turnover and thereby lessen the economic cost involved in hiring and training police officers who do not remain long enough to justify the expense."

By the way, the plaintiff in that case, Jordan v City of New London, was already in law enforcement - he was a corrections officer, but had the "misfortune" of having a college degree in literature and to score "too high" on the IQ test - and thus was considered not eligible for police force.

As a result of that horrible decision, police departments "justifiably" started to hire dumb brutes who would shoot first and think never.

The 6th Circuit decision about shooting a dog inside a residence if it "moves or barks" will embolden those dumb brutes even more.

The 6th Circuit decision was made on a motion for a summary judgment - where the court rules on evidence, instead of a jury, and decides whether there are "reasonable issues of fact" raised in opposition to the motion.

The use of summary judgment in federal court has been challenged as unconstitutional by legal scholars as usurping the parties' 7th Amendment right to have their factual issues decided by jury.

Summary judgments are decided on a pretense that the court is not deciding factual issues - it is only "spotting them", and granting the motion only if the court is unable to find "triable issues of disputable facts".

Yet, even with summary judgments, courts have a 2-prong test only to resolve - without resolution of the issue of justification - and both the district court and the 6th Circuit unlawfully resolved that 3rd issue.

In review of a qualified immunity defense (a concept, by the way, unlawfully amending the Civil Rights Act by judicial fiat in violation of Articles I and III of the U.S. Constitution, because this "defense", as a restriction of civil rights plaintiffs right to a remedy for constitutional violations, does not exist in the Civil Rights Act, and cannot be introduced into the Civil Rights Act by a court), the court follows a 2-prong "test":

1. taken in the light most favorable to the party asserting the injury (the plaintiffs), do the facts alleged in the complaint show the officer's conduct violated a constitutional right
2. is the right clearly established.

In this particular case, the court did acknowledge that it must follow this test:

The 6th Circuit answered the 1st question in the affirmative - that there is, indeed, a constitutional right of people not to have a dog "unreasonably seized" - as in "killed". There are no emotional rights of owners losing pets as family members, and there are no right to life of pets reviewed, raised or discussed, of course.

As to the 2nd question of the prong - whether that right was "clearly established" by the time the defendant officers acted, and the 6th Circuit also answered that question in the affirmative - yes the right was clearly established by the time the defendant officers acted.

So, a two-prong test, the court has answered both prongs in the affirmative, end of story, motion for a summary judgment had to be denied.

So why was it granted?

Because both the district court, the jovial guy Robert J. Jonker, Chief District Judge of the U.S. District Court for the Western District of Michigan at Grand Rapids,

and the 6th Circuit judges, the amiable looking Judge Karen Nelson Moore, age 68,

the kind-looking Judge Eric L. Clay, age 68,

and the assigned district judge Joseph M. Hood, age 74, of Kentucky,

an author of a law review article on "judicial independence" - I guess, in not following the court's own rules, too -

these 4 judges unanimously violated that "test" and raised and answered a THIRD question - a question that only a jury can answer - whether actions of the officer, in violation of a clearly established constitutional right, were JUSTFIABLE?

Here is what the 6th Circuit, in the place of a jury, decided as to the "reasonableness" of killing the first dog - the 93-pound pit bull:

And here is what the court decided about the 2nd dog - the one who disappeared when seeing the officers, never lunged at them, was just standing and barking in the basement, the one that was killed "to put her out of her misery" after she was wounded and presented no threat to the officers:

Once again.

The question before the court as to the second pit bull was - "whether the Plaintiffs presented a genuine issue of material fact as to whether [the second dog] posed an imminent threat to the officers' safety".

That is too narrow - and incorrect - concept of what the court must do on a motion for a summary judgment, a 101 1st year law student F-grade incorrect.

Because, on a motion for a summary judgment, the moving party (the defendants, officers), have the burden of proof.  And, if issues of fact are raised on the record of the moving party - as it was undoubtedly done here - the burden of rebuttal does not even shift to the opposing party.

When the defendants, on a motion for a summary judgment, recognized, as to the 2nd dog, that it did not lung at the officer, was just standing or hiding - and he still shot at her, and that, Officer Case "fired a fatal shot" when he found the dog "bleeding profusely behind the furnace", when, answering the court's own question, the dog presented no "imminent danger" to the "officers' safety", and the killing - instead of notifying the owner so that he would be able to bring the dog to a vet to save it - was presented as a "mercy killing", to "put the dog out of its misery" - glaring issues of fact existed based on the defendants', moving parties, own record, and the court HAD TO, was OBLIGATED to DENY the motion for a summary judgment, because the defendants did not meet their burden of proof, at least with the 2nd dog.

When the court ruled that all officers' actions were "reasonable" and "justifiable", the court also resolved two disputable issue of fact:

1. whether the officers' actions were reasonable and justifiable under the "totality of circumstances"; and
2. whether officers are credible as witnesses,

thus usurping the function of the jury.

What is bad about this decision is not only that the court

• violated its own "2-prong test" on qualified immunity defense, and
• violated its own law as to how motions for summary judgment must be decided

in order to bend over backwards and justify police killing of two dogs.

It is about precedential power of these decisions, and how this decision will further empower police officers to shoot first and think never.

Now, expect not only dogs, but humans, adults and especially children to be killed.  Children are those who family dogs usually protect and cover with their bodies, and who will be subjected to the rain of bullets on police entry into the house.

And wait, why did the 6th Circuit which, as all federal appellate courts, affirms without an opinion, by summary non-precedential orders, all appeals in civil rights lawsuits?

Why didn't it do just the same here?  Just affirm it, without expending any time on a 25-page opinion?

There may be a reason for that that goes beyond dog killing.

And that reason - the need to create a precedent protecting the police and creating a new standard for the court to usurp jury functions and decide, instead of the jury, the question whether the police officer's actions were or were not "justifiable".

And that reason has a name and a face.

A sleeping child, a 7-year old girl Aiyana Stanley-Jones, was already killed in May of 2010 during a no-knock police raid - "coincidentally", in Detroit, Michigan, a lawsuit under Civil Rights Act and wrongful death was filed by the girl's family, the police invoked the affirmative defense of "qualified immunity", moved to dismiss, with the following conclusion:

and a jury trial was set for August 8, 2016, but then the case was stayed, at the request of the Plaintiffs, on a "Colorado River" abstention because of a parallel litigation:

Note that, even though the civil rights/wrongful death lawsuit of Aiyana is listed as "closed", it is closed only "for administrative and statistical purposes", but in reality it is only stayed:

Note that the case languished in state courts and in federal bankruptcy court for no fault of Aiyana's family:

and that the court rejected the Defendant's (officer Joseph Weekly's) claim that his federal rights will not be adequately protected in federal court:

The officer was accused of throwing a flash-grenade and shooting into the residence and killing a sleeping child to create more drama for a reality show video - but charges against the officer resulted in two mistrials, a dismissal of the charge by the judge, which the prosecutor did not appeal, and in agreement by the prosecution to ultimately pursue criminal charges against the officer; and the officer was reportedly reinstated on the job.

In the civil rights case though, the officer was not out of hot water, and his attorneys resisted disclosure of the officer's official account, made by him within hours of the shooting and with a fresh memory, necessitating Aiyana's family to file a motion to compel production of that document, which production Officer Weekly opposed on contrived and non-meritorious reasons:

• that the officer is, allegedly, "not in possession" of his own statement;
• that the Plaintiff allegedly did not issue discovery request for that particular document, even though the document was subject to mandatory discovery exchange pursuant to Federal Rules of Civil Procedure; and
• that the document, the account of the shooting, is allegedly the "work product" of third parties - the police department.

It is interesting that the counsel who raised these obviously frivolous grounds, was not punished by the court for frivolous conduct - a civil rights attorney for the plaintiff, in his place, raising the same issues would have most certainly been sanctioned.

In the civil rights case, Plaintiffs also made a motion to strike Officer Weekly's two expert witnesses for non-compliance with discovery, and Officer Weekly made a motion to preclude portions of testimony of two of Plaintiffs' witnesses, one - an expert witness who planned to provide an opinion about standard police practices of planning and de-escalation of raids on residences, and the other - an expert on weapon safety and ballistics, as supposedly irrelevant to the triable issues.

Here is the complaint in Aiyana's case that is stayed, not dismissed by the federal court, and here is the order of stay, over the opposition of Officer Weekly.

Here is the entire docket report in her civil rights/wrongful death case in federal court, obtained by me personally from Pacer.gov today.

Here is the shameful Answer by Officer Weekly raising "qualified immunity defense" for throwing a flash-grenade and shooting into the residence where a child was sleeping, so that the TV crew present get more "action" for their footage to sell it to the viewers.

Here are the pleadings in the 5 outstanding motions in Aiyana's federal case:

• the Police officer's motion for a summary judgment;
• the girl's estate's and family's motion to compel production of the officer's just-after-the-shooting account of what occurred;
• the girl's estate's and family's motion to strike and preclude testimony by Officer Weekly's expert for non-compliance with discovery;
• the officer's two motions to preclude Aiyana's experts on police practices and on gun safety and ballistics from testifying before the jury as allegedly "irrelevant" -

are all pending, only stayed.

The lawsuit can be revived at any time.

So, this "bending-over-backwards" decision about "justifiable" "mercy killing" of a dog by a police officer, a dog that presented no harm, the unnecessary killing that was done in the absence of the owner, who was just outside the house, offered help, offered keys, but was illegally arrested, without a search warrant, handcuffed and detained, so that officers would have fun using his dogs as shooting targets, with him handcuffed and listening to the carnage - this shameful, and shameless, decision, violating the very "tests" and rules of how qualified immunity defense and motions for summary judgments, are to be resolved, this decision is not so much about dogs.

All of it was about protecting a reality show star for A&E, police officer Joseph Weekly, from accountability for killing of a little girl on camera.  There was also a question whether the flash-grenade was thrown, and the shooting occurred that killed the little girl because the officer was trying to impress and provide material for a TV series "The First 48".

So, it was protecting the movie star.

And the practices of the police department who invited a TV crew to film a home raid upon unsuspecting people, with a child inside - where the child died as a result.

And, the dog case - a supposedly unconnected case - was to serve as a convenient vehicle to create a precedent, a court rule indicating, should the case return after a stay, that:

• a federal court, sitting in review of a motion for a summary judgment in a civil rights case litigating the use of force, and deadly force, by a police officer - against anybody - people, as well as pets - may rule on reasonableness on the issue of "qualified immunity" defense, even though the "qualified immunity defense" 2-prong test does not include the "reasonableness"/"justification" question and even though that question is within the jury's, and not the court's, power to decide

So, don't think that "a police officer can shoot the dog if it barks or moves" case is only about the dogs.

It is predominantly about the people.

About the police shooting people, and children.

It is about Aiyana Stanley-Jones, and killing her twice - first her life, and then her lawsuit, and ability of her family and her estate to have any remedy for the killing-for-reality-show.

Now expect the police to shoot on sight, if a dog is on the couch alone, or cuddling with an adult, or protecting a child, and expect courts to justify the police killing as "reasonable".

Expect the police to push the envelope even further and claim, in cases where there is no dog, and when they killed a human during a home raid, that they thought the human, adult or child, was a dog who moved on the couch in the dark, was not visible, and that officer "reasonably perceived" himself to be a danger to officer's safety.

And, while the police raids and police killings are predominantly on the homes of minorities and of the minorities, do I have to wonder why all 4 of the judges who decided this case were white?

I will give these 4 white judges credit - they pulled their trick very cleverly.

The "dog" decision made on December 19, right before Christmas time, when people are united with their families, have some spare time on their hands, will be reading accounts in the media and will most certainly be enraged - enraged and concerned about their pets only, since most people are not literate in the law, and especially in federal civil rights litigation law, and will not see through the scheme.

Count on judges acting in collusion with a governmental defendant and ruling to protect the government.

Have them focus the public on pets, deflect the public from the fact that, through precedential power on the issue of the use of "reasonable" deadly force, this is actually also and primarily about people killed.

About children killed.

About the black little girl killed by a Michigan police on camera.

About a toddler injured by a similar flash-bang grenade assault by police in Georgia.

#WeAllAreAiyana.

Violent judges are not that dangerous, Part II - Judge Beltrani is spared a felony charge and allowed to be out on the street seeking to kill people

It took New York prosecutors 2 months to charge a judge for an obvious violent crime (see my blog about the crime here), committed in the presence of many witnesses - and, for a misdemeanor and attempted assault only, even though the assault was not "attempted", but quite complete, done before witnesses and security cameras, and despite the fact that the judge was clearly chargeable for a felony assault, Penal Law 120.05(1), a D felony punishable by 4 to 7 years in state prison, and carrying with it, if convicted, the consequence of an automatic disbarment for a judge.

It is also incorrect to call Beltrani's crime an "altercation", while admitting the attorney was "sucker-punched" by the judge - hit with a fist while being unaware of the strike coming, so there was no "altercation".

I am convinced that, had it been another way around,

had a lawyer, being "visibly drunk", intentionally sucker-punched an unsuspecting judge who would be walking in front of him, saying:  "I am a lawyer and I f**king kill people", like Beltrani said

and caused a judge to lose consciousness ("knocked out'), as well as causing the judge "a separated shoulder, torn labrum, a black eye and other injuries", the injuries Beltrani caused attorney Roberts, the lawyer would have been put in jail immediately as a pre-trial detention, charged with a felony, and his license would have been suspended pending trial.

Judge Beltrani also left his victim for dead - he could have killed him by "sucker-punching" him, knocking him down on the ground with his weight of 300 pounds, having him fall on the ground and hit his head on a blacktop pavement, and taking off without calling for help:

Since he was raving about "killing people", he could clearly be charged with attempted murder - but wasn't.

I already wrote in my series of blogs about former #NewYorkChiefJudgeSolWacthlerTheSmartShitKicker (his own words), see my blogs here and here, who has never been charged in New York courts for a string of crimes, including violent crimes, committed in New York, including attempt to kidnap a child, criminal impersonation, false report of a crime (he tried to pin his crimes on two other people), the use of his office to commit and cover up his crimes, extortion with threats to kidnap a child, sending obscene material to a minor -

describing how New York embraces and protects its judges from accountability even if they are violent criminals, making it impossible to seek justice from the New York "justice" system against its own, against those who are supposed to be held to the highest (not the lowest) of standards. 

Lives of members of the public - and especially of criminal defense attorneys like Sam Roberts, Judge Beltrani's victim - do not really matter.

A misdemeanor, an order of protection, the judge remains free and on the job - and will, likely, be given some reduction or an adjournment-in-contemplation-of-dismissal slap on the wrist thing.

For a violent crime and drunken rampage where the judge made public what he is not expressing when he is sober - that, as a judge, he can kill people, and not be held accountable.

Look at this raging violent alcoholic who claims that, because he is a judge, he can "kill people" - and who nearly succeeded in that with attorney Sam Roberts.

And, consider that he is not put in jail when he committed his crime at the end of October, 2016, was allowed to vote out of jail in November, was allowed to spend Christmas with his family - and only then was arraigned in court today, on a misdemeanor and violation (harassment) charge - and was allowed to go free, with just an order of protection protecting Sam Roberts, but nobody else.

This order of protection is, of course, woefully inadequate, since, judging by Belrani's claim that, as a judge he can kill people, he can do the same to anybody else.

There were no conditions for release imposed either - while the judge definitely had such a right - so Beltrani can continue to drink himself into oblivion (which, judging by his face, he is doing) - and assaulting people after that.

The State of New York thinks he is entitled to be an attorney - and a judge.

He is, of all things, a judge reviewing violations of parole - including for alcohol related reasons.

As of today, Judge Beltrani has "no record of public discipline".

Of course.

Who would want to even attempt to hold a judge who committed a crime truly accountable in New York?

Beltrani's mindset and behavior - asserting, in a drunken rage, that he cannot be "disrespected", whatever that meant, that people, even those who have just met him in a social setting, must necessarily "learn from him", and that as a judge, he does justice by "f**king kill[ing] people"

did not emerge in a vacuum - this is what the law of absolute judicial immunity for malicious and corrupt acts lead them to believe.

And, apparently, for New York authorities it is better to have Beltrani realize his dream and, since he is free and at large, kill some people feeling that, as a judge, he can do whatever he wants - including killing people - with complete impunity



than impose any true accountability upon him under the law.

It is a matter of time when Beltrani will commit a new act of violence - because he remains drunk, unrepentant,

and, since he was not charged adequately (with felonies) for his crimes, he may still believe in his impunity, no matter what he does.

Journalists were lucky they were not sucker-punched.

His next victim may not be so lucky.

Public records should be public - and free. The newly proposed policy of the U.S. Justice Department for access to records and opposition to it.

I wrote on this blog previously of the artificial barriers, and severe punishments, imposed by various governments across the United States upon people trying to get access to public records, from threats, revocation of the requestor's right to earn a living (that's my case) to unlawful incarceration and even murder.

While the government pays lip service to the fact that when a member of the public (and part of the popular sovereign in the United States - "We the People") seeks records of its public servants, the government, to verify how they do their jobs, that's supposed to help the country remain democratic, and not autocratic.

And, when a member of the public, a taxpayer, whose money was already used to create those public records, is seeking access to those public records, such access - my opinion - should be given for free, since those records were already created using that public records' money.

This year, President Obama has signed an amendment to the Freedom of Information Act creating a presumption of disclosure to public records.

Now, the U.S. Department of Justice offered a policy, and - allegedly - sought public comments on it, that when a certain type of information is released to one member of the public, it must be published for all the public to see - a "release to one - release to all" policy.

Of course, the U.S. Department of Justice only gave two weeks for public comment,

see start date of December 6, 2016

and end date of December 23, 2016

and sought public comment on such an important issue right before Christmas, when people are concerned with pre-holiday preparations and not with public comments on access to public records - which is a very questionable approach.


I think that the policy is reasonable and should have been introduced long time ago.  There is no reason why documents released under public access requests under FOIA (and any other access to public records statute) should be made available only to the requesting party, and not to all members of the public - and I do not see why such information should be provided for a fee. 

If our government, claiming that it is acting on behalf of us, as taxpayers and members of the U.S. popular sovereign, and claiming that it is acting within its authority and in our (public) interest, created those documents, there is no reason why the government should charge its boss - the popular sovereign - for seeing those documents, if only and simply to check on its performance. 

If such requests are deemed to be under the law (as they are) in the public interest, the government should not be able to charge fees for release of such documents, and deter the public from seeking public records.

Yet, many comments that were posted during this very short window of comment before Christmas, are opposing the policy.

In this comment, let's call it Comment # 1, for example, the unnamed author (I wonder why comments were allowed to be unnamed - making me, as a member of the public, reasonably question whether the comment was from a member of the public, or from the agency's insider) raises 2 questions:

1. that the policy will discourage requests by "journalists" and "companies" to file FOIA requests - and will reduce the amount of fees agencies will receive; and
2. that the policy will create another "unfunded mandate", that the requirement to post all documents on the Internet will be a "tremendous burden" - which, of course, it won't be if effective posting technologies are implemented.

Of course, Comment # 1 is inherently contradictory because it claims that posting some information once and for all will eliminate the need for "journalists" and "companies" to seek that same information once again (and, thus, will reduce the burden on the agency) - but, at the very same time, claims that posting the information "once and for all" creates more burden than serving requests for the same information over and over again.

That inherent contradiction in Comment # 1 is addressed in Comment # 2.

Comment # 3 nd Comment # 4 address the perceived problem that journalists will be discouraged from seeking public records from the government if the government does not allow journalists to benefit from the sensation produced by some of public records.  The comment suggests allowing, on request of journalists, a delay in release of public records to the public to allow journalists in order to benefit from a sensation does not appear to me proper - or even legal.

Public records belong to the public, and nobody - nobody - should be allowed, for any purpose, and especially for purposes of profit, to delay the public from being informed about performance of its own government.

The "remuneration for effort" that the  alleged journalist mentions in Comment # 4 above, can be worked in a different way - members of the public may be remunerated for obtaining a public record by being paid a certain fee for obtaining such record - this will quickly encourage agencies to put all of their public records online, to avoid paying those fees, and the problem with both remuneration and public access will be solved, but public records will not be allowed to be treated as property of the requestor as "remuneration for efforts".

An interesting, and valid, in my opinion, issue was raised in Comment # 5 - that the government's artificial designation of a public record as being "in public interest" (as opposed to other public records that are supposedly not interesting to the public), simply by the frequency of FOIA requests - is flawed, and may lead to less transparency and less access to records.

For such a huge country, for such an important issue of public concern, this handful of comments is obviously not enough to have a meaningful public discussion of the issue.

Moreover, with the currently available technologies, there is no reason why the drafters of the policy would not be made available to the public in a live videotaped streamed question-and-answer format - on Google Hookups, for example, through Facebook Live, Skype, or through any other publicly available real-time videoconferencing or texting (chat) Internet application.

The fact that so few comments were posted is because there was no proper notice given to the public about the draft, no publicity was attracted to the issue of public comments.

The way the government approached the "public comment" requirement is not an effective  technologically up-to-date 2016 approach.

It is a shame that the government swept public discussion of this important policy under the rug by improperly restricting the time for public comment to two weeks immediately before Christmas - and by allowing to make comments anonymous, raising the issue whether it was the agency's own insider's posting those various public comments, and not the actual members of the public.

The discussion could have been a lot more fruitful had it been longer and had the public been allowed to post under their own names.

What I do know from many years of experience with seeking public records from both state and federal agencies, the uniform "policy" existing now is NOT to release records - to try and stall release, pretend misunderstanding of clearly made requests, pretend privacy in public records where no privacy is allowed by law, trying to exhaust the requestor with petty denials and forcing the requestor to either consider costly litigation or give up.

So, at least announcement of a policy that, if a certain public record is asked for three times, it must be posted for all - is good, since, at least practically, it is not difficult to have three people agree to file FOIA requests for the same public document - in order o satisfy the policy.

Public records should be made available to the public - it is an axiom.

And, access to public records should not be either costly, or cumbersome, or made by the government into a game of jumping through fire hoops, with risks to one's livelihood, liberty or life, or into a game where the winner is not the public, but a media source having the most money to pay the fees or to hire an expensive lawyer to sue the agency for access to records - and providing information to the public for money.

There should be laws in place severely punishing for any attempts of the government to stall disclosure of public records, and especially to punish those requesting public records, in any form of punishment or adverse action, for seeking or making such records public for the public - pun intended.

There should be laws in place providing benefits - monetary benefits - to members of the public who seek public records and post them, or make governmental agencies post them, for access of all the public.

I also suggest that we as members of the public put pressure on our governmental representatives to put enforcement of such laws not into the hands of the government, but into the hands of special grand juries where any member of the public can directly file his or her grievances with the grand jury, and where the grand jury is not controlled or directed by any member of the legal profession or by any government official.

I suggest that such special grand juries are vested with powers to hear grievances directly from the public, without any "filters" in the shape and form of government officials like prosecutors and courts who are interested not to allow grievances about themselves to be heard and properly prosecuted.

Then, possibly, we will have FOIL/FOIA laws - and other laws ensuring government accountability - properly enforced.

Beware of Greeks (from the Delaware County, NY, Sheriff's Department) bearing gifts, or Merry Chritmas in Delaware County, New York

It was still "ha-ha-ha, we are above the law" in Delaware County on October 28, 2016 when Sharon O'Dell, Delaware County Clerk against whom I filed a criminal complaint for knowingly filing a multi-thousand-dollar fraudulent money judgment was allowed by judges Gary Rosa and Richard Northrup the use of a courtroom (the grand jury room) in the Delaware County courthouse to celebrate her abrupt "retirement".

The "ha-ha-ha" was complete with sushi - which Judge Northrup helped himself to, balloons and pictures of laughing Sharon O'Dell next to the laughing Delaware County Sheriff Thomas Mills, featured in prison garb, behind bars and against the word "LOCKDOWN" painted in blocks on the brick wall behind them.

Sending a message to all the public that Sharon O'Dell is above the law and that Sheriff Thomas Mills - who was charged with criminally investigating Sharon O'Dell - will never do anything against her, being such a good buddy of hers, and that the court system, all fed sushi and entertained with balloons and food, will never do anything to her too, being the great buddies of hers that they are.

In December of 2016, the Delaware County Sheriff's Department suddenly started a "Random Acts of Kindness program", soliciting donations and distributing gifts and gift cards to, as Delaware County Undersheriff Craig Dumond claimed, "unsuspecting" residents of Delaware County - I filed a FOIL request for the list of the lucky recipients of gifts and gift cards from Delaware County Sheriff's Department.

But, since, having lived in Delaware County for a long time and having worked against its government as a civil rights, criminal defense and Family Court attorney, and knowing that all Delaware County officials know is corruption - I smelled the rat in their "random acts of kindness" - and the rat did not linger in making its appearance.

Apparently, not only I filed a complaint against a Delaware County public official - County Clerk Sharon O'Dell.

The New York State police also lodged a complaint against the former Delaware County Commissioner William Moon (who quickly resigned recently amid claims of self-dealing, rigging of public contracts and misconduct).

First, in 2012, Richard Spinney, the alcoholic, misogynist and potty-mouth Delaware County Attorney and a bosom friend of William Moon and assistant county attorney-turned-Family Court Judge Carl F. Becker retired with an "honor plaque" for "services".

The one on the left is Spinney, the one on the right, giving out the "honorary plaque", is James Eisel, the longtime Chairman of the Delaware County Board of Supervisors, see Eisel (center) being sworn in in January of 2014 by O'Dell (right), with the help of Delaware County Board of Supervisors' Clerk Christa Schafer (left), the staller of FOIL requests - out of the three, only Schafer currently remains in her position:

Then, at the end of 2014 Delaware County Commissioner of Social Services William Moon resigned  - at the time New York State Comptroller was investigating the Department of Social Services for the use of County cars like it was their own, and giving out no-bid contracts for millions of dollars.

Then, just at about the time when the Comptroller was to release his report, Moon's and Spinney's bosom friend, the former Delaware County Department of Social Services attorney, and then Delaware Family Court Judge fixing Delaware County DSS cases Carl F. Becker

announced he will "retire" - and "retired" at the end of July of 2015, after just having been elected in 2012 (by fraud upon voters) for a coveted 2nd 10-year term, then Becker quickly put his house up for sale and, reportedly, disappeared from Delaware County.

At the end of October, 2016, Delaware County Clerk Sharon O'Dell abruptly "retired" less than 3 weeks before the election and while not announcing her retirement in advance, so that somebody could run for her elected position in 2016 elections - and "retired" right after my criminal complaint against her was filed and a request to impeach her and take her off her position.


In December of 2016, Delaware County Sheriff Thomas Mills, the one that is supposedly investigating Sharon O'Dell, suddenly engaged in "Random Acts of Kindness" giving gifts and gift cards to undisclosed "unsuspecting" recipients in Delaware County on a massive scale - considering the alleged list of donors at the very least:

When the police is given gifts of money by businesses, and when the police then gives out gifts to individuals, under any pretexts - which is what is happening, combined with giving away, by the Delaware County Sheriff's Department, of gifts and gift cards allegedly bought with those "donations" from businesses, to an undisclosed list of recipients, raises the following issues:

1. Did businesses give to the police voluntarily or was the publishing of the list of "donors" just a front to avoid accusations of racket-for-protection by the Delaware County Sheriff's Department - at the time when the Sheriff's Department is supposed to investigate the same public official (William Moon) who the FBI is also investigating, and the Sheriff's Department is not sure whether the assignment for them to investigate is just a litmus test of how corrupt they are - as if there is any doubt about that... 
2. Especially that many, if not "donating" businesses on the list deal with cash, what kind of violations, if any, Delaware County Sheriff's Department may have promised not to prosecute in exchange for donations?  I am not saying that DID happen, but what I am saying is that there is an APPEARANCE, when the police collects money from businesses, that the police then owes those businesses favors - and that smacks of corruption, which is unacceptable.
3. Who are the people who received gifts from the Delaware County Sheriff's Department?  What was bought by the Sheriff's Department with those gifts? Past and future silence from witnesses of misconduct of public officials in Delaware County? A strong appearance of that exists when the police rides around distributing gifts and gift cards, at the time an FBI investigation is looming over the County.

Here is a tentative timeline of what was occurring in Delaware (and Otsego) Counties from September to December of 2016:

• In September of 2016, a much more informed Otsego County (because of its connections to the top of New York State Judiciary through its County Attorney Ellen Coccoma, wife of Chief Administrative Judge of Upstate New York Michael Coccoma), hedged against accusations of improprieties by striking an agreement with Onondaga County that I obtained though a FOIL request 

(Onondaga County is within at least a 3 hours' drive across from Otsego County, and is the seat of Chief Administrative Judge for the 5th Judicial District James Tormey, sued for mysoginistic misconduct three times, all three times by females - an court attorney, a court interpreter and a private attorney, once resulting in a $600,000 settlement, and the seat of the head of the National District Attorney's Association, law school buddy of Tormey William Fitzpatrick who engaged in a scheme to extort, intimidate and retaliate against a judge, but was never charged or prosecuted for it, and seat of U.S. "magistrate" David Peebles, former prosecutor who now tosses civil rights lawsuit in NDNY).

Through the agreement, Onondaga County now acts, without public approval or public bidding on contracts, as a "purchasing agent" for Otsego County.  I will run a separate blog analyzing this cozy deal, but that was happening during the FBI investigation of no-public-bidding contracts, including purchasing contracts in Delaware County;

• On November 10, 2016, the U.S. District Court for the Northern District of New York (judges Brenda Sannes, whose nomination was first voted down and then forced through by the "cloture" procedure/David Peebles, a known corruptionist and hater of civil rights plaintiffs whose reappointment to the position of magistrate was never reconfirmed after his term expired in May of 2016) denied an indigent inmate suing Delaware County for two unlawful (and dismissed) prosecutions, the indigent status, requiring him to pay the $400.00 filing fee - and thus, making it impossible for him to proceed and putting his lawsuit against the Delaware County beyond the statute of limitations, judging by the contents of the complaint;

• On December 12, 2016, the Delaware County's insurance company has settled, for an undisclosed amount and at Delaware County taxpayers' expense, the use of force lawsuit against the former (and illegally hired, without meeting educational, civil service, residency or certification requirements) Deputy Sheriff Derek Bowie, nephew of Delaware County DA's investigator (who for years worked for Moon) Jeff Bowie - without bringing criminal charges against him for assault against two look-alike women, naturally, because his uncle worked for the Delaware County DA Richard Northrup (who is now Judge Richard Northrup, in gray suit and glasses, shown helping himself to food/sushi supplied to him by a subject of pending criminal felony investigation who may appear in front of him as a defendant in a felony proceeding - showing others the way to buy their way out of criminal prosecution)

• At about the same time, two scathing articles by local media exposing improprieties in conduct of Delaware County Department of Social Services (Moon), Delaware County District Attorney's Office (Northrup and Jeff Bowie) and their improper connections were erased from the Internet (I have preserved them on file);

Here are the full texts of the erased articles, one and two.

• On December 14, 2016, Richard Spinney's successor, and Becker's and Moon's friend and confidant Delaware County Attorney Porter Kirkwood suddenly resigned from his $127,917 a year position claiming that, after he has lost his bid for Delaware County Family Court judge - in which losing, I am proud to say, I helped Porter Kirkwood a lot with my blogs (just run his name in the word-search window on this blog to see all my blog articles about him that "helped" him not to be elected) - claiming that he is resigning from a complete sinecure paying $127,917 for doing nothing because ostensibly the Unified Court System of the State of New York for the Southern Tier offered him more;

• on December 20, 2016, a criminal complaint was filed for investigation of the Delaware County Sheriff by the New York State Police against the former Delaware County Department of Social Services Commissioner (and friend of the previously "retired" or resigned Spinney, Becker, Kirkwood and Eisel) - which triggered the Delaware County Sheriff's Department, on December 23, 2016, to announce its "Random Acts of Kindness" campaign - taking what appears to be massive bribes from a list of businesses in Delaware County and redistributing them to potential witnesses who could testify against Spinney, Becker, Kirkwood, Eisel, O'Dell - and the corruptioners from the Sheriff's Department;
• on December 21, 2016, a day after criminal charges were filed with the Delaware County Sheriff's Department by the New York State Police against the former Delaware County Commissioner William Moon, his friend the long-time Chairman of the Delaware County Board of Supervisors James Eisel - the one who gave the "honorary plaque" to Delaware County Attorney Richard Spinney in 2012 on his quick retirement and who has given out millions of dollars worth of contracts for public money without public bidding - has reportedly also resigned.

So.  The Delaware County, New York, experiences and extraordinary set of "coincidences":

1) articles about misconduct of Delaware County public officials who are subjects of criminal state and FBI investigation are getting scrubbed off the Internet;
2) three lawsuits against Delaware County, or its officials are, in quick succession, either:

• unlawfully dismissed - like Barbara O'Sullivan's lawsuit was;
• quickly settled, right before the jury trial, and after depositions exposing corruption in Delaware County that hired police officers with a history of violence despite their failure to satisfy residency, education, training and certification requirements, simply because they are relatives of longtime officials of Delaware County - as Kylie Smith's lawsuit was; or
• filibustered - as Edward Sherman's lawsuit was -

with a clear indication that pro se lawsuits, where litigants do not have funds to hire an attorney, are disregarded while lawsuits of represented litigants are settled;

3) the Sheriff's office that is supposed to investigate the culprits, instead runs a huge money solicitation and giveaway campaign masquerading it as acts of "random kindness", but what can very well be collecting bribes in return for non-prosecution for some violations of the law from one side and giving that money to witnesses against Delaware County officials in return for their silence or perjury on the other side; and

4) the Delaware County experiences a tremendous sudden turnover of its public officials - and all of that is happening at once.

Over 4 years - from 2012 to 2016, the large in territory and small in population rural Delaware County, New York, hidden up in the snow-belt of the Catskill Mountains, suffered an extraordinary loss and turnover of its elected and appointed long-term highest and highest-paid public officials, who retired or resigned from their highly paid sinecure positions in which they did not have to do any work, resigned abruptly, on pretextual reasons and during pending investigations into their misconduct:

• TWO County Attorneys - one (Spinney) "retired" in 2012 during investigation by the State Comptroller and the other (Kirkwood) resigned in 2016, in anticipation of a criminal prosecution of his former boss William Moon;
• One Commissioner of Social Services - Moon, in 2014, during investigation of his misconduct;
• One Family and County judge - friend of Spinney, Moon, Kirkwood, Eisel and O'Dell, in 2015, during investigation by New York State Comptroller (and, as my sources tell me, the FBI that has been working on Delaware County and its Department of Social Services for years, and continues to work now);
• One County Clerk (O'Dell) - in October of 2016, right after a criminal complaint was filed against her;
• One Chairman of the Board of Supervisors, from his super-lucrative position from which people are only "retire" into the grave, feet first - in 2016, right after a criminal complaint against his friend Moon was filed.

6 high-standing public officials abruptly resigned during New York State Comptroller, criminal and FBI investigations, and 3 out of 6, reportedly, already left (Moon, Becker - Moon left at least to work in Sullivan County, upon my information) or leaving (Kirkwood) the area.

Two elected (Becker and O'Dell) and 4 appointed top-ranking and top-paid public officials in a small county, all mutual friends, resign within the span of 4 years, pending investigation of their misconduct.

And, criminal misconduct of two of them (O'Dell and Moon) is somehow "investigated" by the Delaware County Sheriff, an insider in the case who is definitely disqualified from such an investigation - and the Delaware County Sheriff, instead of putting all of its resources into that investigation, suddenly engages in a campaign to collect funds from Delaware County businesses and to distribute those funds, in terms of "Random Acts of Kindness", to undisclosed recipients.

As I said, all that Delaware County officials know how to do is corruption, and more corruption - and they do it quite bluntly.

But, since the FBI is on the case, too, and the FBI is on the spot at this time after its royal blunder with letting Hillary Clinton and her cronies off the hook, with the new president coming in, I wonder whether the case will be allowed to be swept under the rug as it usually happens with corrupt public officials in New York.

Or - does Delaware County Sheriff, and his high-ranking subjects of investigation, have a real reason to worry - where they went very quickly from the

"hahaha, we are above the law"

to a frantic massive solicitation of funds, which appears to be a frenzy of activity to be able to timely pay off witnesses against them during a criminal and an FBI investigation (which, upon information that I received from different sources, went on for years in Delaware County).

Through "Random Acts of Kindness".

But, Delaware County residents - and taxpayers - have a right to know and to, finally, demand that this circus of corruption should stop and that those involved should finally get their due accountability, and are rooted out.

That would be an act of kindness for Delaware County taxpayers - a long overdue one - to make this picture from mockery of justice a reality,




and to add to it these individuals:

A New York lawyer who lacks connections to the judicary denied reinstatement

A New York State lawyer who was disbarred for being convicted for a felony DWI was recently denied reinstatement by the New York State Appellate Division 3rd Department.

Of course, we are still to see judges convicted of felony DWIs and disbarred - usually, when judges are drunk, their cases are immediately reduced to misdemeanors or even violations, and nothing happens to them in the matter of discipline.

And, apparently, attorney Anya Mironova Tendler lacked connections to the judiciary that, for example, felon Solomon Wachtler, attempted kidnapper of children, sender of obscene material to a child and extortionist had - his law license was reinstated without even an explanation to the public what made the court system so forgiving about him, see my blogs about him here and here.

I am not saying that it is good to drink and drive.

What I am saying though is that there is a selective enforcement of discipline to attorneys who do have connections with (or are, or have been part of) the judiciary, and those who don't have those connections.  Judges who drink and drive - and who shamelessly use their position to get out of criminal prosecution, are not disciplined as attorneys at all in New York State, and criminal charges that are filed against them are never allowed to result in felony convictions, that would cause automatic disbarment, as it did for attorney A. Mironova Tendler. 

And, in view of the fact that attorney licenses are "regulated" (taken and given back) also by the judiciary, such a leniency towards their own smacks of corruption and undermines the whole purpose of regulation to protect consumers.

As I said in the lawsuit Neroni v Zayas in 2013 (which was conveniently dismissed without any in-depth analysis of selective enforcement issues by U.S. District Judge Lawrence E. Kahn, and then was no less conveniently considered frivolous and used as a basis for an anti-filing injunction by the then NDNY Chief Judge Gary Sharpe) if attorneys working for the government, connected to the judiciary and part of the judiciary, the most powerful attorneys who can wield the most power and cause the most harm to the public, are not within the reach of attorney discipline, the promise of consumer protection through attorney discipline is a fake.