IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION MARTIN LINDSTEDT, ) Plaintiff, ) ) v. ) No. 97-5064-CV-SW-1 ) JASPER COUNTY, et. al., ) Defendants. ) PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER DISMISSING FROM SUIT DEFENDANTS DEPUTY SHERIFFS GILBERT & BLAUCKAT Comes now the Plaintiff, Martin Lindstedt, to make this Motion for Reconsideration of this Court’s ORDER of November 18, 1997 dismissing, apparently with prejudice, Defendants Gilbert, and Blauckat from this case. This Motion for Reconsideration comes under the relevant sections of Rule 59 and 60, Federal Rules of Civil Procedure. Plaintiff requests that this Court overrule, or vacate its ORDER of Nov. 18, 1997. Plaintiff will show, using this Court’s Order’s format, that this Order should be withdrawn. Standard for Summary Judgment This Court stated some of the standards for summary judgment, then proceeded to summarily ignore some of those standards and advance other standards in favor of defendants. It is agreed that a movant (Defendants) are entitled to summary judgment only if the "dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510. It has been alleged by Plaintiff and not disputed by Defendants that Plaintiff was arrested and imprisoned at the Jasper County Jail for 12 hours under color of Revised Statute of Missouri 67.315 for the alleged appearance of intoxication and incapacitation caused by alcohol. Admitted was the fact that no determination of drunkenness was performed by Defendants, either at the scene of arrest Motion to Reconsider, Re. Gilbert, Blauckat 1 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
outside the courthouse, nor at the holding cell where a breath-analyzer device was kept outside the cell. Not denied was the fact that a pocketknife worth ten dollars was taken and kept by Defendant Blauckat. With this wealth of material fact alleged by Plaintiff, and not denied by Defendants, the evidence is such that a reasonable jury could very well indeed return a verdict for the nonmoving party (Plaintiff). Ibid. Plaintiff suspects that to forestall such a verdict by the triers of fact, that this Court has chosen to try the case itself and return a summary judgment in favor of Defendant judge Schoeberl and Defendant deputies Gilbert and Blauckat. While page 2 of this Court’s Order notes that Rule 56(e) states that the nonmoving party "may not rest upon the mere allegations or denials of the adverse party’s pleading, but . . . must set forth specific facts showing there is general issue for trial," Plaintiff did indeed set forth an answer to Defendants Blauckat and Gilbert on Sept. 10, 1997 showing that there were indeed specific facts showing that this matter should go to trial. Plaintiff incorporated the affidavit of Deputy Gilbert to show that it was admitted that an arrest and imprisonment under color of RSMo 67.315 had taken place, thus proving the material fact behind Plaintiff’s suit. Hence any summary judgment by a district court usurping the right to a jury trial guaranteed by Amendment 7, U.S. Constitution, shall not lie now that it has been determined that there is indeed sufficient, ample material fact. The requirement of Rule 57(e) that "the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial,’" Anderson, 106 S.Ct. 2505, 2511, ". . . in turn is qualified by Rule 57(f)’s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Ibid., note 5, p. 2511. Plaintiff has not had any opportunity for discovery. On June 30, 1997, when Plaintiff went down to the Jasper County Law Enforcement Center ask for a police report under RSMo Chapter 610, a Sheriff’s Deputy Captain Owen Weston not only refused to obey the Missouri Sunshine Law, but grabbed Plaintiff by the arm and threatened Plaintiff with false arrest if Plaintiff did not leave with himself and his tape recorder. Thus Jasper County lawlessness continues in an attempt to cover Motion to Reconsider, Re. Gilbert, Blauckat 2 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
up this matter of Plaintiff’s false arrest under color of law. It is apparent that Plaintiff will not be lawfully allowed to gain discovery by state-statute means by Jasper County law-enforcement. The only parties talking about metaphysics are the Defendants’ lawyer and this Court. The Defendants have not carried out their burden under Rule 56(c) concerning the existence of a conspiracy. Plaintiff has shown by defense affidavits that Plaintiff’s complaint concerning his false arrest and imprisonment has nothing with metaphysics, or "raising some metaphysical doubt as to the material facts." Matsushita Electric Co. v. Zenith Radio Corp., 474 U.S. 574, 586, 106 S.Ct. 1348, 1355-56. Defendant Gilbert admits to arresting Plaintiff and having him confined under color of RSMo 67.315. Hence, far from carrying out their burden under Rule 56(c) Federal Rules of Civil Procedure (FRCP), Defendants have merely confirmed the existence of the same material facts relied upon by Plaintiff! This Court seems determined to misquote both fact and law in order to use summary judgment to prevent this case from going to trial by a jury. This Court seems to have forgotten that it is supposed to act as a neutral party and not as a defense attorney nor prosecutor on behalf of government defendants. There are sufficient material facts present, offered up by Plaintiff, admitted by Defendants, that this Court’s Order of Nov. 18, 1997 dismissing Defendants Gilbert and Blauckat must be overturned, if it is on the basis of Rule 56, FRCP. Plaintiff now goes on to attack the notion, made up by this Court, that Defendants Gilbert and Blauckat have qualified immunity from suit for their willful misconduct. DISCUSSION This Court proceeds to swiftly misquote both facts and law in order to justify on the grounds of qualified immunity Defendants Gilbert and Blauckat’s misconduct, that if it were presented to a jury might very well cause them to be found guilty. On Page 3 of its Order of Nov. 18, 1997 dismissing the suit against Defendants Gilbert and Blauckat, this Court quotes verbatim Johnson v. Scheiderheinz, 102 F.3d Motion to Reconsider, Re. Gilbert, Blauckat 3 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
340, 341: It is well settled that law enforcement officials who "reasonably but mistakenly conclude that probable cause is present" are entitled to immunity. Anderson v. Creighton, 483 U.S. 635, 641 (1987). Government officials are qualifiedly immune from liability in civil actions to the extent their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity defense protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Thus, if an officer acts in a manner about which officers of reasonable competence could disagree, the officer should be immune from liability. Id. Accordingly, in § 1983 cases involving charges of improper arrest, we have held that "[t]he issue for immunity purposes is not probable cause in fact but arguable probable cause." Myers v. Morris, 810 F.2d 1437, 1455 (8th Cir. 1987); see also Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996). Thus this district court intends to participate in the erosion of constitutional rights from where an aggrieved plaintiff originally had a right to a jury trial of 'reasonable’ common people for false arrest and imprisonment, to a standard where the defendant is to be judged by whether his fellow police officers agree that probable cause existed. Four out of five policemen agree Rodney King had it coming. Now the standard has degenerated to the point where a judge gets to decide, not on the basis of probable cause, but arguable probable cause as to whether the case will be summarily dismissed without benefit of jury trial. This is exactly what this district court has done, quoting inapposite case law and misapplying the facts. Johnson v. Scheiderheinz concerned whether Plaintiff Johnson, arrested for murder by Sheriff Scheiderheinz, had a basis for suit under 42 U.S.C. § 1983 for false arrest or whether defendant sheriff had qualified immunity. The district court refused to grant a summary judgment and the defendant appealed. The appellate court found that there was sufficient material fact to grant summary judgment for the defendant because the evidence pointed to plaintiff’s opportunity and motivation to commit the crime at the time of arrest, even though the charges were later dismissed. The case of Johnson v. Scheiderheinz is inapposite to Plaintiff’s case. No crime was committed by Plaintiff, no charges (for murder or violating a TRO or disturbing the peace Motion to Reconsider, Re. Gilbert, Blauckat 4 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
raised by the other quoted cases) to substantiate the reason for the false arrest and imprisonment were ever going to be or could be filed, therefore there was no probable cause, reasonable or unreasonable, which can be raised to justify this false arrest and imprisonment of Plaintiff by Defendants Gilbert and Blauckat. With this total absence of even ‘unreasonable’ probable cause, Defendants Gilbert and Blauckat cannot raise qualified immunity as a defense. Nor can this Court legally justify granting a summary judgment to Defendants as a matter of law in defiance of the material facts of this case. Greiner v. Champlain, 27 F.3d 1346 (8th Cir.) still limits immunity "unless a reasonable person in his position would have known that his actions violated clearly established law." Plaintiff would like to think that the moral facilities of the average policeman have not degenerated to the point where every arrest can be justified, even when a crime has not been committed. In any case, Plaintiff wants a jury to decide what should be the standards of reason for police officers who have falsely arrested and imprisoned a citizen under color of law. This district court then admits (page 4, ORDER) the qualified immunity defense can be avoided if the asserted rights "must have been clearly established at the time (June 30, 1995) as constitutional rights, and not as rights arising from the common law, administrative regulations or even codified statutes. See Davis v. Scherer, 468 U.S. 183, 193-97, 104 S.Ct. 3012, 3018-20; accord St. Hilaire v. City of Laconia, 71 F.3d. 20, 27-28 (8th Cir. 1995). "The right to be free from arrest without probable cause and illegal detention are clearly established constitutional rights. A reasonable officer knows that he or she may not make an arrest without probable cause. There is no right, however, not to be arrested, even if you have not committed a crime. This case, therefore, turns on the issue of probable cause. (See Page 4, ORDER of Nov. 18, 1997 dealing with the dismissal of Defendants Gilbert and Blaukart.) This Court, has in effect admitted that Plaintiff had a "clearly established constitutional right" to be free from arrest, and that this court's definition of a 'reasonable' police officer involves not making arrests without probable cause. Therefore Plaintiff's arrest was unreasonable and invalid, therefore no summary judgment for Motion to Reconsider, Re. Gilbert, Blauckat 5 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
Defendants Gilbert and Blauckat. Yet, while in the middle of admitting that Plaintiff has a Constitutional right not to be falsely arrested, handcuffed, and imprisoned without due process of law, this Court negates those rights. "There is no right, however, not to be arrested, even if you have not committed a crime." ? ? ? This Court, through the use of a triple negative, has just denied that Plaintiff has any such Constitutional rights. Plaintiff cannot find this notion listed in any of this Court's case cites. In honor of its discoverer, Plaintiff proposes that this new legal doctrine, first enunciated in Lindstedt v. Jasper County, et. al. be named The Whipple Doctrine, as Plaintiff wants no part of it. Think of its potential uses by the federal judiciary!!!: * The right to be free from being shot in the head and killed deader than a hammer are clearly established constitutional rights. A reasonable FBI sniper law-enforcement officer knows that he or she may not shoot a mother in the head without probable cause. There is no right, however, not to be shot in the head and killed deader than a hammer, even if you have not committed a crime. * The right to be free to form a weird-sounding religious cult away from normal people and not be gassed and burned alive by FBI tanks are clearly established constitutional rights. A reasonable FBI tank-driving law-enforcement officer knows that he or she may not set fire ‘accidentally’ to a nutzoid religious commune and roast them fools alive without probable cause. There is no right, however, not to be gassed and burned alive by FBI tanks, even if you have not committed a crime. * The right of a defendant charged with blowing up a federal building to call witnesses to testify to government involvement are clearly established constitutional rights. A reasonable federal judge knows that the truth must eventually come out, and therefore cannot deny a mad-bomber defendant his witnesses without probable cause. There is no right, however, not to call witnesses to testify to government involvement, even if you have not committed a [provable]crime [yet]. Plaintiff wonders when the Federal judiciary will establish case law which states that citizens have no rights a federal judiciary is bound to respect, and thus cut down on the civil-rights case backlog. Motion to Reconsider, Re. Gilbert, Blauckat 6 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
Plaintiff submits that this Court has already negated its probable cause argument as a matter of law to be decided by this Court. Yet on pages 5-7 of its Nov. 18, 1997 ORDER dismissing the arresting deputies, Defendants Gilbert and Blauckat, from suit, this Court proceeds to mangle the facts of the situation as well, even though it is the jury which is supposed to be triers of fact. RSMo 67.315, which this Court admits was used as the color of law for Plaintiff’s detention (false arrest, handcuffing, imprisonment for 12 hours, and the theft of a $10 stainless steel pocketknife), goes as follows: Intoxicated persons, how handled -- officer granted immunity from legal action, when. 1. A person who appears to be incapacitated or intoxicated may be taken by a peace officer to the person's residence, to any available treatment service, or to any other appropriate local facility, which may if necessary include a jail, for custody not to exceed twelve hours. 2. Any officer detaining such person shall be immune from prosecution for false arrest and shall not be responsible in damages for taking action pursuant to subsection 1 above if the officer has reasonable grounds to believe the person is incapacitated or intoxicated by alcohol and he does not use unreasonable excessive force to detain such person. 3. Such immunity from prosecution includes the taking of reasonable action to protect himself or herself from harm by the intoxicated or incapacitated person. This Court, for some reason, found it desirable to cut off the title and emphasize certain portions of this statute. Plaintiff thinks it was done by this Court in order to use this statute to justify summary dismissal of Plaintiff suit in much the same way that it was used by Defendants Gilbert, Blauckat, and Schoeberl as a pretext to imprison Plaintiff without the necessity to charge Plaintiff with having committed any crime. Plaintiff has not raised the issue of the constitutionality of RSMo 67.315, because he would prefer to believe the Missouri legislature drafted this statute for the well-being of drunks. It is entirely possible, and Plaintiff might very well wish to raise this issue upon an amendment of complaint under Rule 15, FRCP, that the word "appears" in the first sentence of the #1 paragraph was a deliberate policy on the part of the Missouri legislature to allow corrupt, lawless state judges and policemen to arrest anyone they Motion to Reconsider, Re. Gilbert, Blauckat 7 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
please and imprison them under color of law for up to 12 hours without charging them with an offense. Yet this is not a matter to raise in this motion right now. The immunity from prosecution for false arrest comes with the condition that the arresting officer(s) have "reasonable grounds" to believe the person is incapacitated or intoxicated by alcohol and that he does not use unreasonable force to detain such person. Yet, it is admitted by both this Court and Defendants in their affidavits that when Plaintiff was stopped, arrested, and detained, that the overt reason for this initial arrest outside the courthouse was not because of Plaintiff’s supposed drunken condition, but because Plaintiff had a bad attitude toward state court personnel and police. Deputy Gilbert admits in effect (see Affidavit of Deputy Jerry Gilbert, of August 18th, 1997) that after Plaintiff’s initial arrest, seizure of Plaintiff’s tape recorder, and placing Plaintiff nose down on the ground, that Deputy Gilbert went into the courthouse to ask the clerks and Defendant Schoeberl (Plaintiff heard Deputy Gilbert say that he needed to "ask ‘the judge’ for orders") about various matters. If Deputy Gilbert suspected that Plaintiff was fair game for arrest and imprisonment under RSMo 67. 315, then what reason is there for consultation, as opposed to dragging Plaintiff off to jail immediately? The answer must be that a consultation with Defendant Schoeberl was in order to find a ‘legal’ pretext to arrest and imprison Plaintiff without the need to file charges. Looking at Deputy Gilbert’s affidavit, Paragraph #7 says that it was after Deputy Gilbert left the Clerk’s office that "At that point, in my judgment, Mr. Lindstedt appeared disoriented and incapacitated. I believed at the time he might well be under the influence of alcohol or drugs." (Emphasis added.) Paragraph #8 says, "At the time of this occurrence, I was aware of 67.315 R.S.Mo. and knew that under existing Missouri law, I was within the bounds of the law to take Mr. Lindstedt into custody and to transport him to jail for up to twelve hours." Plaintiff suspects that it is somewhat short of amazing that Deputy Gilbert’s perception of Plaintiff’s condition was heightened and knowledge of the potentialities for corrupt police usage of RSMo 67.315 was heightened after a talk with Defendant Schoeberl. Perhaps Defendant Schoeberl, a state associate judge, tutored Deputy Gilbert Motion to Reconsider, Re. Gilbert, Blauckat 8 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
sufficiently to where it wasn't until Deputy Gilbert had gone into the courthouse for orders that Deputies Gilbert and Blauckat all of a sudden were infused with heightened perception and a knowledge of the law. Defendant Schoeberl was so nice to go to the Jasper County Jail after Plaintiff was in a holding cell for 10-15 minutes to see whether Deputy Gilbert was a quick learner. Plaintiff could go on and on as to how this Court has 'interpreted' the material facts to rule that Deputy Gilbert, Blauckat and other unknown Jasper County deputies had `reasonable' or `arguable' probable cause to falsely arrest and imprison Plaintiff under color of law. The genuine material facts presented by both Plaintiff and Defense are present, even if discovery has not taken place. These material facts are not uncontroverted, as both Plaintiff and Defendants are using these material facts to present their causes. However, for this Court to selectively ‘interpret’ this material facts to justify a summary judgment without the facts, without allowing the triers of fact, the jury, to hear this case, is an unconscionable abuse of discretion. It is should be quite clear from the record that Plaintiff was detained by the Jasper County Sheriff’s Department after Plaintiff had left the courthouse. Plaintiff was hustled to a secluded location out of sight of the public by these deputies, known and unknown. Plaintiff’s tape recorder was taken by Deputy Blauckat and thus the witnessing of the events for Plaintiff halted to favor police perjury. Plaintiff had a pocket-knife stolen from him by Deputy Blauckat. Deputy Gilbert went inside the courthouse to get his marching orders from Defendant Schoeberl. Revised Statute of Missouri 67.315 was used as the only statute available to arrest Plaintiff for alcoholic intoxication which would not leave an arrest record. Upon being advised by Defendant Schoeberl of the usages of RSMo 67.315, Plaintiff was then handcuffed and imprisoned for ‘safekeeping’ for 12 hours in the Jasper County law-enforcement center. A breath-analyzer was directly outside the window of Plaintiff’s holding cell, and Plaintiff could have been analyzed to ensure a prompt release. However, the ‘probable cause’ defense of Defendants would have them been revealed to be a lie if such a test was taken, so therefore Plaintiff was deliberately not tested in order to uphold such a despicable lie in case of future suit. Motion to Reconsider, Re. Gilbert, Blauckat 9 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
Anyone with a lick of common sense looking at the material facts and evidence already presented should know what happened. Yet this Court has refused to interpret the material facts and evidence in other than a prejudicial manner in favor of making known defendants Gilbert, Blauckat, and Schoeberl immune from suit under 42 U.S.C. § 1983. Regarding Sheriff Pierce. Plaintiff does not contest the ORDER of this Court denying Defendant Sheriff Pierce summary judgment. Plaintiff is sure Sheriff Pierce has a deliberate policy of letting his deputies run wild in falsely arresting and imprisoning citizens under color of law. Yet Plaintiff suspects that this District Court allowed Sheriff Pierce to remain a defendant for the sole reason of leaving a small, easily dismissed rump of a case to be dismissed another day. Wherefore, Plaintiff asks this Court to overrule, overturn, vacate or set aside its ORDER of November 18, 1997 regarding a summary motion to dismiss Defendants Gilbert and Blauckat as parties to this case; to let this matter proceed to trial by jury so as to settle the facts and law involved in this matter, plus whatever other relief this Court finds just and proper. Respectfully submitted, ______________________________ Martin Lindstedt, Plaintiff (417) 472-6901 Enclosed: Internet copy of RSMo 67.315 Motion to Reconsider, Re. Gilbert, Blauckat 10 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
Certificate of Service Plaintiff certifies that a copy of this document was mailed November 28 1997 to Attorney Wayne K. Davis, c/o the Missouri Attorney General’s Office, Box 899, Jefferson City, Missouri 65102 as for some reason entered on behalf of Defendant Joseph Schoeberl, Associate Circuit Judge, Carthage, Missouri. Plaintiff certifies that a copy of this document was mailed November 28, 1997 to Attorney Jeffrey L. Groves, Daniel, Clampett, Powell & Cunningham LLC, 3171 East Sunshine, P.O. Box 10306, Springfield, Missouri, 65808 for Defendants Pierce, Blauckat, Gilbert, and possibly Schoeberl, Jasper County, and Two Unknown Jasper County Sheriff’s Deputies. Motion to Reconsider, Re. Gilbert, Blauckat 11 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844.
Comment: Once a federal judge has done the dirty on you, like Whipple did with me, it is of extreme importance that one immediately file a Rule 59 Federal Rule of Civil Procedure Motion to Reconsider. Then when the judge denies it, a Notice of Appeal is then in filed to the appellate court in order to get the district court ORDER overturned..Whipple, in his original ORDER of Nov. 18, 1997 deliberately misquoted both fact and law. However, the statement which really leapt out at myself was Whipple's use of the triple negative to justify denying any Constitutional right to be free from false arrest: There is no right, however, not to be arrested, even if you have not committed a crime. ??!!! By this use of a triple negative, Whipple in effect said that there is no Constitutional right to be free from arrest even when no crime has been committed. Whipple, perhaps the smartest of the federal district judges in Kansas City has in effect let the cat out of the bag.
Right now, the form of government we live in is a tyranny pretending that it is under a so-called 'rule of law.' We do not have rule of law in this country. Rather we have a bunch of criminals ruling over us who pretend to be obeying their own law, and a cowardly weak stupid population which pretends to believe the ruling criminals. Sooner or later the facade will crumble, the stasis erode, and civil war shall break out. In which case, the only rule of law shall be that of the jungle.
It was this case, among others, which has convinced me that attempting to gain justice through the regime's korts is an exercise in futility. All this learning of the law -- useless -- because it does no good to learn the law unless the ruling criminals will be bound by it themselves. And they will never let themselves be bound by any law, not even their own. The criminal mind considers itself to be the over-man, with all others its natural prey. Thus you cannot reason with criminals, you can only destroy them.
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Of course, not all is lost. It sets a useful precident. If police can make a false arrest under color of statute, it should be a rather easy to do the same thing to the former members of the regime in revenge when your side has control over the police and courts. After all, let those who presumed to judge be judged as they did judge others. And having destroyed the foundations of both social order and constitution, the former ruling criminals will have left nothing to protect themselves or anyone from unrestrained political power in the hands of their former victims.
Back to Lindstedt v. Jasper Co. et. al.,
Over to Patrick Henry On-Line?