United
States Court of Appeals
For
the Sixth Circuit
Case
Number: 14-5246
(In)
JOHN
DAVID KENNARD
Plaintiff-Appellant
vs.
CITY
OF ASHLAND, KENTUCKY; BOYD COUNTY, KENTUCKY
Defendants-Appellees
Pro
se Appellant’s Brief
1. This is an
appeal by the Plaintiff pro se and in forma pauperis in the case of
John David Kennard v. City of Ashland, KY, and Boyd County, KY, in
the United States District Court, Eastern District of Kentucky,
Northern Division at Ashland, Civil Action No. 12-28-HRW, filed April
5, 2012 [Docket No. 1], from that Court's Memorandum Opinion and
Order adverse to him dated February 10, 2014 [Docket No. 30].
2.
The appeal is on the original ground of the case, of
Defendants-Appellees' violations of Plaintiff-Appellant's Fourth and
Fifth Amendment and other due process rights.
Operative
Facts
3.
The facts of this case have been rehearsed numerous times in the
course thereof, that (a) Plaintiff-Appellant was driven out of his
wholly-owned home on March 7, 2012, by officers and employees of
Defendant-Appellant City of Ashland, Kentucky, and his home padlocked
against him, rendering him homeless, for inability to afford
utilities; (b) City of Ashland at the same time dragged by their
necks using clamping poles his eight companions, feline persons Abby,
her daughter Squeaky and son Max; Maggie; (female) Gray; (male)
Fumey; and Sunny and his sister Claudia, all neutered,
fully-domesticated, and timid (terrified of strangers), from under
and behind furniture and appliances as they tried to hide, and caged
them; (c) City of Ashland then took said feline persons to
Defendant-Appellee Boyd County's “Animal Control Center”, where
they were kept in lieu of payment of $20 apiece for seven days raised
to $60 apiece thereafter, and, after ten days in which
Plaintiff-Appellant was unable to pay, all eight were killed, all in
routine coordination with the City of Ashland; and (d) there was no
charge, indictment, trial, conviction, sentence or court order before
said violence by Defendants-Appellees against Plaintiff-Appellant and
his companions.
At
the very moment that the City of Ashland was carrying out such
violence against Plaintiff-Appellant and his companions, it was
taking monies from the Federal Department of Housing and Urban
Development's Homelessness
Prevention and Rapid Rehousing Program (HPRP), via the Kentucky
Housing Corporation, to prevent homelessness due to inability
to pay utilities.
Arguments
4.
Plaintiff-Appellant filed the present combined tort and civil-rights
suit against Defendants-Appellees City of Ashland and County of Boyd
on April 5, 2012, first using a supplied form [Docket No. 1], and
then filing a fuller and clearer originally-composed Amended
Complaint on April 10 following [Docket No. 4]..
His
case throughout has been and is that the
City of Ashland and County of Boyd acting as monolith violated his
fundamental human rights to be secure in his home and property,
rights explicitly
recognized
by the Fourth Amendment, as well as his rights to
correspondingly-substantive due process explicitly
guaranteed
by both the Fourth and Fifth Amendments before such fundamental
rights be invaded, in particular the right to trial.
He
argues furthermore that the present case involves exactly the sort of
bureaucratic totalitarian and mobster violence which the Fourth and
Fifth Amendments were intended to prohibit and, upon failing to
deter, to provide supreme legal foundation against in citizen
recourse to the courts.
He
adds that by
“correspondingly-substantive due process” he meant and means that
such fundamental human rights can only be invaded on substantial
proof (not Legislative,
Executive
or administrative presumption) of substantial injury (no mere
misdemeanor can ever justify such invasion) in substantial procedure,
to wit trial overseen by an independent judiciary.
And
he maintains that our Constitution was written to be read, understood
and applied by the citizenry, “by comparing the plain import of the
words, with the general tenor and object of the instrument”
(Gouverneur Morris, who wrote the final form of our Constitution in
Convention, to Timothy Pickering, in a famous letter dated December
22, 1814). And if anything can be inferred from words, Constitution,
history and human experience, it is that those who framed,
campaigned, voted for and won the passage of the Fourth and Fifth
Amendments did not celebrate upon that victory their establishment of
the power of the State to as a matter of administrative routine drive
the citizenry out of their homes, and even kill their housepets,
without trial. And since the governments of town and city, county and
parish, are those which the citizenry face in everyday life across
the country, if such bureaucratic totalitarian and mobster savagery
at such level of government be upheld by the Federal courts, then our
Constitution itself amounts according to those courts to no more than
a charter for such bureaucratic totalitarian and mobster State. But
it was a catchphrase among the original framers and generation that
established our Constitution including Bill of Rights that “An
elective despotism is not the government we fought for” [see
Jefferson, Notes on the State of Virginia, and (Madison), The
Federalist, No. 48].
5.
Defendant-Appellee City of Ashland in
its
Motion for Summary Judgment
of
November 6, 2013
[Docket
No. 25]
admitted
the applicability of the Fourth and Fifth Amendments to the present
and similar cases but asserted
and
cited a number of precedents supporting a
doctrine
of "minimal" fulfillment of any Constitutional
procedural
requirements involved.
Plaintiff-Appellant
argued in his countering Motion of November 27, 2013 [Docket No. 26],
that all powers and rights originally and ultimately reside in the
people; every governmental power is a partial or complete transfer of
one or more powers or rights from the people to government, and every
power or right of the people not so transferred is a restriction or
limitation of the power of government; our Constitutional (and lesser
statutory) system restricts governmental powers to those explicitly
placed in government, retaining all others in the people, a doctrine
explicitly established in the Ninth and Tenth Amendments, extended by
the Fourteenth Amendment to the powers and rights of the people as
State citizens and corresponding limitations on the powers of the
States; that it can easily therefore be seen that our fundamental
Constitutional doctrine and statutes minimize governmental
powers and maximize the powers and rights of the people; and
that any doctrine of "minimization" of the powers and
rights of the people entirely contradicts this fundamental doctrine
of our Constitutional system.
6.
The Court in its above-referenced and appealed-from Memorandum
Opinion and Order does not directly reference either argument but
argues and cites precedents instead for substituting in American law,
for the independent process and Judiciary our Constitution
establishes, local simulation of that process provided by and
dependent on local authority.
Plaintiff-Appellant
respectfully but emphatically submits that such “process” is not
the independent process and Judiciary established by our
Constitution; is necessarily wrapped in and permeated by local
influence; and as such is understandably attractive to local
bureaucratic totalitarians and mobsters, since it makes them
collectively and more or less directly judges in their own causes
(“Next to the impropriety of being Judge in one's own cause, is the
appointment of the Judge”—Morris again, in Convention), which
fraud as worthy instrument of predictably forwards local bureaucratic
totalitarianism and mobsterism, as evidenced by the fraud and cruelty
piled on fraud and cruelty of the present case.
Reliefs
Sought
7.
Plaintiff-Appellant respectfully seeks reversal of the decision of
the above-referenced Memorandum Opinion and Order [Docket No. 30],
and to be granted the minimal but appropriate reliefs sought in his
above-referenced Amended Complaint [Docket No. 4].
