Wednesday, April 16, 2014

Second Appeal

United States Court of Appeals
For the Sixth Circuit

Case Number: 14-5246 (In)






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.


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].


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