Monday, December 18, 2023

The Supreme Court Covers up Corruption in the 9th Circuit Court of Appeals and the U.S. District Court in San Jose!

Post #78 - December 18, 2023 - by Fred Bates

The Supreme Court fails to Address a Cheating Scandal in the Ninth Circuit

In a post on September 5, 2023, I wrote about a petition for a writ of certiorari that I filed in the Supreme Court. My petition sought a review of the judgment of the Ninth Circuit Court of Appeals that affirmed the judgment of the U.S. District Court in San Jose dismissing an independent action in equity I filed in 2020. My independent action in equity sought to set aside the judgment against me in a lawsuit I filed against the City of San Jose in 2006 for discrimination based on my disability and race. I am black/African American. The grounds for my independent action were based on claims that the judgment in my lawsuit is based on fraud, bias by the courts against me, and the courts' misapplication of the law. 

My petition for writ of certiorari was filed on July 28, 2023. I submitted additional facts and exhibits to support my petition that were received by the Supreme Court Clerk's Office on September 15, 2023. The Clerk's Office refused to file the supporting evidence I submitted. The papers and exhibits I submitted were returned to me with the dubious claim that they were not properly submitted according to the filing rules of the Supreme Court. My petition was denied on October 2, 2023.

My petition for a writ of certiorari and supporting evidence present an irrefutable case of fraud, bias, and an intentional misapplication of the law by the Ninth Circuit Court of Appeals and the U.S. District Court in San Josee. It is unmistakable that the Supreme Court is engaged in a cover-up of the egregious misconduct of the courts in my lawsuit based the denial of my writ of certiorari. 

My petition for a writ of certiorari, the supporting evidence I submitted, and the response letter of the Supreme Court Clerk's Office can be accessed at the links below:
 
Petition for writ of certiorari

Letter sent to the Supreme Court Clerk's Office and Response letter from Clerk's Office                                                                                             

To access the audio recording of the appeals hearing, click on the link below that will bring up the website for the 9th Circuit Court of Appeals. Type in case number 08-16757 and click on "search." Click on "listen" under the heading "Audio" on the case information line that appears to download the recording: 

Complaint for damages

City's answer to complaint for damages

Transcript of hearing on the City's summary judgment motion

Docket entries for Rule 60 motion

Rule 60 motion

Transcript of hearing on Rule 60 motion

Civil minutes of hearing on Rule 60 motion
                           
                                                                                                               

 

Tuesday, September 5, 2023

The Ball is in the Supreme Court's Court - My Petition for Writ of Certiorari

 Post #77 - September 5, 2023 - by Fred Bates

This should be one of the easiest decisions of the Supreme Court to grant certiorari. 

If you have read any of my prior posts, you probably know that the purpose of this blog is to expose a cheating scandal involving the City of San Jose, the U.S. District Court in San Jose, and the Ninth Circuit Court of Appeals during litigation of lawsuits I filed against the City for discrimination based on my race and disability. I am black/African American. I make some very serious allegations that the above officials committed several criminal acts related to public corruption, and that the judgments in each lawsuit that favor the City of San Jose are based on fraud, bias, and the Courts' violation of the Constitution, statutory law, and precedent. It is my intent to present indisputable evidence very soon supporting my allegations of cheating and criminal misconduct against these officials. Please keep checking my blog for the evidence that I will present. 

The focus of today's post, however, is a petition for writ of certiorari I filed in the U.S. Supreme Court seeking a review of the judgment in the latest lawsuit I filed against the City of San Jose in 2020, an independent action in equity, seeking to set aside the judgment in the first federal lawsuit I filed against the City in 2006. My independent action in equity is based on claims mentioned above, fraud, bias, and the Courts' violation of the law. 

In post #72 on July 21, 2022, I stated (promised!) that I would pursue justice in this matter at all costs. My petition for writ of certiorari cost me a substantial amount of money. But I am also willing to sacrifice my freedom, or even my life, in peaceful non-violent protest if it comes to that point. At the time of post #72, the District Court's judgment on my independent action in equity in favor of the City of San Jose was on appeal in the Ninth Circuit Court of Appeals. Since that time, the Ninth Circuit rubber stamped the judgment of the District Court by affirming it in April 2023. Thus, my petition for writ of certiorari. Below is a link to post #72:

A Cheating Scandal in the Silicon Valley - Justice for Sale: The Hill I Will Die On! (crnctz.blogspot.com)

Below is information about my petition for writ of certiorari and how to access it:

Docket # No23-53. Title: Frederick Bates, Petitioner v. City of San Jose, California, et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. To Access my petition, click on the text below:

file type icon   Supreme Court of the United States

Below is a link to post #3 of my blog dated September 27, 2015, and post #74 dated October 20, 2022, that detail the criminal misconduct of San Jose city officials and the Courts. I stand by these allegations:

A Cheating Scandal in the Silicon Valley - Justice for Sale: Complaint Letters to the FBI and the Santa Clara County Civil Grand Jury (crnctz.blogspot.com)

A Cheating Scandal in the Silicon Valley - Justice for Sale: San Jose City Officials and Federal Court Officials Engaged in Criminal Misconduct During Litigation of My Lawsuits Against the City (crnctz.blogspot.com)

Wednesday, January 11, 2023

Democracy Requires an Independent Judiciary Free from Violence and Intimidation that Adheres to the Rule of Law

 Post #76 - January 11, 2023 - by Fred Bates

An independent judiciary does not mean judges are above scrutiny or oversight

    In his annual year-end report on December 31, 2022, Chief Justice Roberts thanked Congress for strengthening judicial security. Chief Justice Roberts was referring to a law Congress recently passed increasing security and privacy protections for federal judges and their families. The act was named after the son of federal judge Ester Salas. Salas' 20-year-old son was killed in 2020 while at home in New Jersey by a deranged former litigant who was dissatisfied with Judge Salas' ruling in his case. The suspect found Judge Salas' address online. The killing of Judge Salas' son was a barbaric act by a truly despicable person. An attack on a judge or a family member of a judge by anyone based on a judge's decision(s) is an attack on democracy and our constitutional republic. To have a properly functioning judiciary, it is imperative that judges are able to carry out their constitutional responsibilities without fear of violence or intimidation. 
    In an article published on January 2, 2023, former Arizona Attorney General Mark Brnovich stated that we cannot tolerate intimidation of our judiciary. Brnovich noted that he played a leading role in urging Congress to pass the legislation noted above that protects federal judges and their families. Brnovich mentioned in his article the threats made against Justice Brett Kavanaugh and US District Judge Aileen Cannon last year. He criticized the Democrat-controlled Congress for its lack of outrage and failure to act swiftly in passing legislation protecting federal judges after the threats against Justice Kavanaugh and Judge Cannon because they were appointed by a Republican President. You might remember that an armed subject was arrested in Justice Kavanaugh's neighborhood in an apparent attempt to assassinate the Justice. As for Judge Cannon, Brnovich contends that rhetoric from the left was close to inciting violence against the Judge after she ruled in favor of a Special Master in the case involving former President Donald Trump and the Justice Department regarding allegations that he stored top-secret documents illegally at Mar-a-Lago. Brnovich accused the Biden Department of Justice of looking the other way when Republican-appointed justices or judges are targeted for potentially illegal protests. 
    Brnovich also stated in his article that everyone in our society should condemn any attempts to subvert our democracy with intimidation tactics or violence against federal judges or Justices on the Supreme Court. At the heart of Brnovich's article is the importance of an independent judiciary. Chief Justice Roberts too has pointed out the importance of an independent judiciary in condemning violence and criticisms directed towards federal judges. It should be easy for everyone to agree with Chief Justice Roberts and Mark Brnovich about the importance of an independent judiciary and the need to protect our judges. 
    However, Chief Justice Roberts and Mark Brnovich failed to emphasize that an independent judiciary does not exempt judges from protests and does not exempt them from oversight. In our constitutional republic or democracy, the right to peacefully assemble and to petition the government for a redress of grievances is inviolable. That includes lawfully protesting the decisions of non-elected judges. The right to protest is as necessary to democracy as an independent judiciary. To his credit Brnovich stated that from its inception, America's judiciary has had its shortcomings by deciding cases wrongly. He said that many of the cases decided wrongly have been reversed, or they have yet to be overturned, implying that cases decided wrongly will ultimately be reversed. He said that such is life in the Constitutional Republic in which we live. Brnovich said that justice may take time, but it ultimately prevails.
    While I agree with much of what Brnovich wrote in his article, I take exception to his suggestion that cases decided wrongly will at some point be overturned and that justice ultimately prevails. That is far from the truth. I make this claim based on my personal experiences with the US District Court in San Jose and the Ninth Circuit Court of Appeals during litigation of three lawsuits I filed against the City of San Jose and several City officials for racial and disability discrimination. I am black/African American. Every single decision by the courts in my lawsuits were biased against me and were intentionally decided with a flagrant disregard for the rule of law and precedent. None of the unlawful rulings of the courts have been reversed despite my many efforts to obtain relief. It is no big secret that the US District Court in San Jose and the Ninth Circuit Court of Appeals are plagued by corruption, dysfunction, and bias, just as many of our other federal courts. Also casting doubt on Brnovich's position that justice ultimately prevails are the words of Matthew Pritchard, an attorney for the City of San Jose who represented the City during my attempts to obtain relief from the judgments in my lawsuits that were decided wrongly. Mr. Pritchard boasted that the City would win because the courts never change their decisions, even if they are wrong. 
    Just as acts of violence and intimidation against federal judges should be condemned by everyone in society, so should the corruption, dysfunction, and bias that appears to have infected our federal judiciary. Congress was right in passing legislation providing more security for our federal judges. However, Congress has fallen short of its constitutional obligation to provide oversight over our federal judicial system. Rather, the judicial branch has been allowed to operate independently without any accountability whatsoever, using its independence as a shield to hide its corruption and to decide cases wrongly. Even though violence and intimidation of federal judges subverts democracy, the far greater threat to democracy is a corrupt, dysfunctional, and biased judiciary that does not adhere to the rule of law and precedent when deciding cases. Below are links that provide additional information about my claims against the US District Court and the Ninth Circuit Court of Appeals. Additional information will be provided in future posts on my blog. 















Monday, November 7, 2022

I Will Not Be Voting in the 2022 Midterm Elections

 Post #75 - Fred Bates - November 7, 2022

I refuse to give legitimacy to a corrupt system of government by casting my vote

I will not be voting in the 2022 midterm elections just as I have not voted in any elections since 2000. It is my belief that public corruption has deprived government of its legitimacy at every level. Government officials, both Democrats and Republicans, only care about power. They will try and obtain power at any cost. It's the reason candidates from both parties are campaigning right now begging for your vote. But once elected, they will forget all of the promises they made during their campaigns. They care more about their personal ambitions than citizens. 

As a part of their campaign strategy, many Democrats and Republicans are now accusing each other of being a threat to democracy. The ridiculous claim of the Democrats seems to focus on Trump and his supporters, referred to as MAGA extremists, Fascists, and election deniers. It is the Democrats that have posed the greater threat to democracy. Any time you demonize a group of people for exercising their absolute right to support and vote for the candidate of their choice, cancel their right to free speech, and deprive them of their ability to earn a living simply because of the way they voted, you are a grave threat to democracy. This is precisely what Democrats and their sycophants in the media have done to Trump supporters and conservatives. Democrats' demonization of parents for caring about their kids' education, their fascination for criminals and hatred for police, their open border policies, their lack of regard for secure elections, and their general disregard for the rule of law undermine democracy as well. But their blatant hypocrisy should not be overlooked. They call Trump and his supporters election deniers as they obsess with January 6th, even though, they refuse to accept that Trump was legitimately elected in 2016. To me it's not a close call as to who threatens democracy the most. Free speech and the right to vote is the essence of democracy. Don't misunderstand me, I'm not endorsing the Republican Party. I don't endorse politicians or a political party. I only endorse policies that I believe are the best for our society whether they come from Democrats or Republicans. While I think most Republican elected officials are not as extreme as Democrats, they are not the great defenders of democracy that they claim to be. They sure do talk a good game. My position is and always will be that you have the right to vote for the candidates of your choice. I will not criticize you or condemn you for your choices. Though, I might scratch my head in bewilderment.

 To me it is clear that the Republican Party at this time is better situated to address the issues that seems to be at the top of people's mind, inflation and the economy, crime and public safety, illegal immigration, and education. These issues are of the utmost importance for a prosperous democratic society. However, I will respect your opinion if you think that Democrats will do a better job than Republicans in fixing the problems we face. You should vote your conscience. 

My primary reason for not voting is not because I have a thing against voting. Not voting is my form of non-violent protest against the racist and discriminatory manner in which I have been treated by San Jose city officials, the US District Court in San Jose, and the 9th Court of Appeals; and the refusal of Congress and other authorities with the responsibility of oversight to do anything about it. This entire blog has been devoted to exposing the appalling conduct of these officials during litigation of three federal lawsuits I filed against the City of San Jose for discrimination based on my race and disability. I'm black/African American. So far, I have not been able to get any government officials at any level to open an investigation into my allegations that these officials committed several public corruption crimes, many of them felonies. Here are some of the officials I have made formal complaints to, all to no avail: Speaker of the House Nancy Pelosi, former Speaker of the House Paul Ryan, Chairman of the Judiciary Committee Jerry Nadler, former Chairman of the House Judiciary Committee Bob Goodlatte, Chairman of the House Intelligence Committee Adam Schiff, Senator Lindsey Graham, Senator Chuck Grassley, Senator Dianne Feinstein, VP and former Senator Kamala Harris, FBI Director Christopher Wray, Inspector General Michael Horowitz, former Attorney General William Barr, Chief Justice John Roberts, former Chief Judge of the 9th Circuit Court of Appeals Sidney R. Thomas, Santa Clara County California District Attorney Jeff Rosen, and the Santa Clara County Civil Grand Jury. This, however, is not a complete list of all the officials I have made complaints to regarding the misconduct of San Jose city officials and the federal courts.

As you can see, the officials that have failed to take action on my complaints are Democrats and Republicans. Not a single one has had the integrity or courage to provide oversight of the corrupt 9th Circuit Court of Appeals and the US District Court in San Jose for their egregious misconduct that has undermined democracy, and the rule of law. This is governmental corruption at its worst. Even though I believe it will benefit this country greatly if Republicans take back Congress, it will not save democracy. Democracy simply cannot flourish if our judiciary operate with no accountability and refuses to adhere to the rule of law and precedent. I acknowledge that democracy cannot exist without an independent judiciary. But democracy requires a balance between independence and oversight that provides accountability. This principle applies to all three branches of government. So far, the 9th Circuit Court of Appeals and the US District Court in San Jose have treated me with the same lack of regard for my constitutional rights as Bull Connor did for black voting rights activists in Birmingham in 1963. The 9th Circuit Court of Appeals and the US District Court have engaged in misconduct with impunity. I refuse to give legitimacy to a corrupt system of government by casting my vote. Below are links to some of my other blogs that provide details about the misconduct of San Jose city officials and the federal courts:

A Cheating Scandal in the Silicon Valley - Justice for Sale: The Backstory to My Lawsuits Against the City of San Jose! (crnctz.blogspot.com)

A Cheating Scandal in the Silicon Valley - Justice for Sale: San Jose City Officials and Federal Court Officials Engaged in Criminal Misconduct During Litigation of My Lawsuits Against the City (crnctz.blogspot.com)










Thursday, October 20, 2022

San Jose City Officials and Federal Court Officials Engaged in Criminal Misconduct During Litigation of My Lawsuits Against the City

 Post #74 - by Fred Bates - October 20, 2022 

This post is meant to be read in conjunction with Post #73, the backstory to my lawsuits

Introduction

In post #73 on September 2, 2022, I provided the backstory to my three federal lawsuits against the City of San Jose. In today's post I will discuss the misconduct of San Jose city officials and officials with the US District Court and the 9th Circuit Court of Appeals during litigation of my lawsuits. Much of the focus will be on my first lawsuit against the City and three former police officials, Chief of Police Rob Davis, Deputy Chief of Police Adonna Amoroso, and Captain Tuck Younis. It was during the litigation of my first lawsuit filed in 2006 that many criminal acts by San Jose city officials and officials with the US District Court in San Jose and the 9th Circuit Court of Appeals occurred relating to public corruption. In my backstory, I explained that my lawsuits resulted from the denial of my CCW privileges after I retired from the San Jose Police Department on a medical disability in April 2004. I explained that the denial of my CCW privileges was racist, punitive and retaliatory, and was done with the specific intent to cause me financial harm, humiliate and demean me, and to cause me emotional distress. The doctor that provided the work restriction that is at the heart of the denial of my CCW privileges stated that "they know better than that, they are messing with you!" I explained that San Jose city officials were given several opportunities to change the initial decision to deny me a CCW permit but refused to do so, knowing that they were violating California state law and City policies. The denial had very little to do with the CCW permit itself, but more to do with City officials holding a grudge against me, and their willingness to engage in serious misconduct to settle that grudge.

My First Federal Lawsuit Against the City of San Jose, Chief of Police Rob Davis, Deputy Chief of Police Adonna Amoroso, and Captain Tuck Younis

As noted in the backstory, my first lawsuit was a Section 1983 claim (often referred to as a Monell claim) against the City of San Jose, Chief of Police Rob Davis, Deputy Chief of Police Adonna Amoroso, and Captain Tuck Younis. It was filed as a Section 1983 claim because Davis, Amoroso, and Younis violated my civil rights while acting under color of authority. The cause of action for my complaint/lawsuit for monetary damages is simple and straightforward. My CCW privileges were initially denied by Amoroso in April 2004, without a hearing that is required by California Penal Code Section 12027.1. Amoroso said my work restriction of 'preclusion from psycho-emotional stress,' provided to help control my high blood pressure, meant I retired on a psychological disability. She refused to change her decision when I requested an appeal. In August 2004, after Amoroso retired, I contacted Younis and asked that the police department reconsider Amoroso's decision to deny me a CCW permit. The physician that provided my work restriction sent a letter to Younis stating that my work restriction should not preclude me from carrying a concealed weapon. With this information and the knowledge that my work restriction did not mean I had a psychological disability, Younis denied my CCW permit two more times in September 2004 without the hearing required by Section 12027.1. In October 2004, Chief of Police Rob Davis and San Jose City Attorney Richard Doyle were given opportunities to reverse the decisions of Amoroso and Younis to deny me authorization to carry a concealed weapon. They both failed to do so without providing me a hearing just as Amoroso and Younis. The thing to remember throughout the discussions below is that these officials all denied me a CCW permit without a hearing that is required by Section 12027.1 of California's Penal Code. The hearing requirement of Section 12027.1 is a constitutionally protected interest. 

The City's answer to my lawsuit or complaint for damages

The City's answer to my lawsuit or complaint for damages is significant. In its answer, the City admitted that Deputy Chief Amoroso denied me a CCW permit without a hearing.  But most importantly, the City admitted that Captain Tuck Younis denied me a CCW permit without a hearing on two separate occasions after he had received the letter from the doctor stating that my work restriction to avoid psycho-emotional stress did not mean I had a psychological disability, and that I should not be precluded from carrying a concealed weapon. This is perhaps the most compelling evidence that City officials violated my civil rights, particularly as it pertains to Younis and Chief of Police Davis. Davis denied me a CCW permit several weeks after Younis after he too had received a copy of the letter from the doctor explaining my work restriction. California Penal Code Section 12027.1 is unambiguous in its hearing requirement for retiring officers whose CCW permits are denied or revoked for other than a psychological disability. Therefore, the case that Younis and Davis violated my civil rights is airtight and cannot be disputed with any credibility. San Jose city officials were well aware of this fact, and it was a driving force behind their misconduct.

The City filed a motion for summary judgment that was facilitated by a fraudulent stipulation of dismissal of defendant Tuck Younis and a false declaration by Younis

Rather than doing the morally correct thing by settling this lawsuit, San Jose city officials conspired with my attorney, officials with the US District Court, and the 9th Circuit Court of Appeals to obstruct justice by trying to rewrite history by covering up the actions of Younis and Davis. This cover-up included fraud by San Jose city officials and my attorney, bias by the courts, and the refusal of the court to follow the Constitution, mandatory statutory law, and precedent. The City's motion for summary judgment was filed in August 2007. It was an unconscionable scheme to perpetrate fraud on the court. The summary judgment motion put forth the false narrative that I was denied a CCW permit only one time by Amoroso in April 2004 and that Younis reversed Amoroso's decision in August 2004 immediately upon receiving the letter from the doctor explaining that I was a suitable candidate to carry a concealed weapon. As has been clearly established in the backstory to my lawsuits and the discussions above, this assertion is a bold face lie. This assertion contradicts what the City specifically admitted was true in its answer to my lawsuit, that Younis had denied my CCW permit in September 2004. As noted above, City officials knew that the actions of Younis and Davis violated my constitutional rights. It was imperative that they put forth the lie that Younis reversed Amoroso's decision in August 2004 after he received the letter from the doctor proving that I was entitled to a CCW permit, in order to prevail on their motion for summary judgment. They argued that Amoroso was entitled to qualified immunity because her decision to deny me a CCW permit was an honest mistake. They argued that Amoroso was confused about my work restriction because she did not have authority to read my medical records. This claim was debunked in the backstory. It's an outright lie. Nevertheless, City officials could not make the same claim that Younis and Davis were confused about my work restriction because of the letter they received from the doctor explaining that I did not have a psychological disability. Rather than settling my lawsuit, City officials chose to file its summary judgment motion with the false claim that I was denied a CCW permit only one time by Amoroso and that Younis reversed Amoroso's decision and granted me a CCW permit in August 2004.  

What is so egregious about the City's fraudulent motion for summary judgment is that it appeared to have been encouraged by the US District Court during the Settlement Conference hearing that was held in the early part of 2007. Magistrate Judge Patricia V. Trumbull presided over that hearing. What is unmistakable is that the City had help from my attorney, Stuart Kirchick, in perpetrating fraud on the court with its summary judgment motion, because he agreed to go along with the lies being put forth by the City. The City had two huge obstacles to overcome in order to file their motion for summary judgment pushing the false narrative that I was only denied a CCW permit one time. The obstacles were their admission in their answer that Younis denied my CCW permit in September 2004, and the indisputable evidence that Davis had denied me a CCW permit in October 2004. As I have noted several times, both denials by Younis and Davis occurred without a hearing that is mandated by law, after both had received the letter from the doctor making it clear I was entitled to a CCW permit or the hearing required by law. To overcome these obstacles, the City through its attorney, Michael Dodson, conspired with my attorney to file a stipulation of dismissal of Tuck Younis from my lawsuit without my knowledge or authorization. They then falsely stated that I had agreed to the stipulation. In turn, City officials urged Younis to file a declaration in support of the City's motion for summary judgment falsely stating under oath that Chief of Police Rob Davis played no role whatsoever in the denial and later granting of my CCW permit. The crimes committed here by these officials are conspiracy, obstruction of justice, subornation of perjury and perjury, and bribery; because there is compelling evidence that my attorney (Stuart Kirchick) and Younis were paid off (quid pro quo) for their participation in this scheme. Additionally, their actions were done with the specific intent to perpetrate fraud on the court. Fraud on the court occurs when attorneys, who are officers of the court, perpetrate fraud in order that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases presented for adjudication. As you will see, this is precisely what happened in this case. The fraudulent stipulation of dismissal of Younis and the false claim of Younis in his declaration about the role of Davis caused irreparable harm to my case because my causes of action against Younis and Davis were never presented to the court for adjudication. 

The hearing on the City's motion for summary judgment   

During the hearing on the City's summary judgment motion in front of district court judge Ronald M. Whyte, the City put forth the same false narrative as stated in its motion papers. That false narrative was the claim that my CCW permit was denied only one time by Amoroso, and that Younis reversed Amoroso's decision immediately upon receiving the letter from the doctor stating I should not be precluded from carrying a concealed weapon. The fact that my attorney did not push back on this ridiculous claim is evidence he was involved in the City's scheme to perpetrate fraud on the court. A significant development in the hearing was the City's admission that the letter Younis received from the doctor made it "crystal clear" I did not retire on a psychological disability because of my work restriction. This is the smoking gun evidence that Younis and Davis knowingly violated my constitutionally protected rights when they denied me a CCW permit without the due process hearing mandated by Section 12027.1. As noted above, the only exception to the hearing requirement under Section 12027.1 is a psychological disability. Another significant development in the hearing that undermines the City's false narrative that Younis reversed Amoroso's decision in August 2004 is the City's truthful assertion that I was without my CCW permit for eight months. This conflicts with the false narrative in earlier claims by the City that I received my CCW permit in August 2004, four months after Amoroso denied it in April 2004. This Freudian slip by the City was not lost on Judge Whyte. He questioned the City on the apparent discrepancy between the City's prior claims that I received my CCW permit in August 2004, which is four months after it was initially denied in April 2004, and the claim the City was making in the hearing that I was without my CCW permit for eight months. Judge Whyte said he thought it was four months. He asked the City's attorney and my attorney to confirm that it was eight months that I was without my CCW permit. They both confirmed that it was eight months. This is clear evidence that the City's false claim in its motion papers and earlier claims that I received my CCW permit four months after it was initially denied were a blatant fraud on the court in order to cover up the actions of Younis and Davis that violated my constitutional rights. In his ruling on the City's summary judgment motion, Judge Whyte did not address the fraud he uncovered by the City and the complicity of my attorney. Rather, he dismissed my lawsuit by granting the City its motion for summary judgment based on qualified immunity for Amoroso and collateral estoppel as to the City based on a small claims court judgment the City won against me. The issue of collateral estoppel will play a significant role in subsequent litigation because it was misapplied by Judge Whyte. The blatant disregard for the fraud perpetrated by the City and the misapplication of the collateral estoppel doctrine by Judge Whyte is evidence of his bias in favor of the City. 

My appeal of Judge Whyte's ruling to the 9th Circuit Court of Appeals

I appealed Judge Whyte's dismissal of my lawsuit against the City. The hearing on my appeal was held in December 2009. At the time of the hearing, I was still being represented by attorney Stuart Kirchick. The City again resorted to its scheme to perpetrate fraud on the court. In its answering brief, the City made the same claim that it had made in its motion for summary judgment; the claim that I received my CCW permit from Younis in August 2004, four months after I was denied it by Amoroso in April 2004. The City put forth this same false claim during the hearing on my appeal. It contradicts the truthful claim made by the City and my attorney to Judge Whyte during the hearing in district court that it was eight months that I was without my CCW permit. During the hearing on my appeal, it became apparent that the court was biased against me. One of the judges on the three-judge panel, William Fletcher, asked why I was making this a federal case. He asked why I didn't just drop my case after the small claims proceeding. Clearly, he had bought into the City's fraudulent claim that I had been denied a CCW permit only one time. He stated that I was denied a permit the first time I asked but received it the second time and that it happened "very quickly." This shows that the City's scheme to perpetrate fraud on the court by completely eliminating the actions of Younis and Davis from the scrutiny of the courts worked as intended. Judge Fletcher did, however, express an opinion that undermines the City's defense of collateral estoppel. The City's defense of collateral estoppel, as noted above, is based on a judgment it won against me in a small claims action I filed. However, certain requirements must be met for collateral estoppel to apply. Collateral estoppel is often referred to as issue preclusion. Judge Fletcher stated that he was "dubious about collateral estoppel" because an issue must have been "actually litigated" before collateral estoppel can apply. No evidence was ever presented to the courts or discussed in court proceedings related to my lawsuit that shows any litigation occurred in the small claims case. Another requirement for collateral estoppel is that there has to be a record that "pinpoint" what was litigated and decided in a prior proceeding. Judge Fletcher also established that there was no record or transcript from the Small Claims Court to rely upon for collateral estoppel. Collateral estoppel never was and never will be a viable defense for the City because there are several other compelling reasons that renders it inapplicable, in addition to the reasons discussed above. Also noteworthy is that Judge Fletcher said my lawsuit meets the requirement for a Monell claim. The Court of Appeals affirmed the judgment of the district court granting the City's motion for summary judgment despite the blatant fraud of the City, and the clear misapplication of the collateral estoppel doctrine by the district court. The bias and corruption of the 9th Circuit Court of Appeals is breathtaking!

My efforts to have the courts set aside the judgment in my first lawsuit by letters and motions

After my appeal discussed above, I ended my relationship with attorney Stuart Kirchick and began representing myself (pro se) because it was clear he had sold out my interests to the City. Beginning in February 2010, I made several attempts through motions and letters to have the 9th Circuit Court of Appeals vacate or set aside its judgment affirming the district court's order granting the City's summary judgment motion that resulted in the dismissal of my first federal lawsuit. My motions and letters centered mostly on the fraud perpetrated by the City in its summary judgment motion, and on the courts' misapplication of the collateral estoppel doctrine. The Court of Appeals refused to take any actions on my motions and letters by entering summary dispositions that violates the Constitution and precedent, or they just ignored my filings.

My Rule 60 motion for relief from the judgment of Judge Whyte granting the City's motion for summary judgment 

With no success in getting relief from the 9th Circuit Court of Appeals with my motions and letters, I filed a Rule 60 motion in US District Court for relief from the judgment granting the City's motion for summary judgment. My Rule 60 motion was filed on February 21, 2013. Rule 60 motions falls under the Federal Rules of Civil Procedure (FRCP). The grounds for my Rule 60 motion were based on the same issues I raised in the 9th Circuit Court of Appeals with my letters and motions to vacate judgment. The first ground for my motion was on the issue of collateral estoppel. I argued that the small claims judgment that was relied upon by the City and courts was constitutionally infirm because there was no litigation. Therefore, it is a void judgment. The second ground for relief was that I was deprived of an impartial and disinterested tribunal during the hearing on the City's motion for summary judgment. The third and final ground for my motion was fraud on the court. One of my fraud arguments was based on the City's false claim that Amoroso's decision to deny me a CCW permit was reversed four months later by Younis. Another fraud claim was based on the fraudulent stipulation of dismissal of Younis from my lawsuit. My final fraud argument was the false claim by Younis in his declaration that Davis played no role in the decision-making regarding my CCW permit. 

During the filing of my Rule 60 motion, district court personnel committed fraud by misrepresenting several times in docket entries that my motion was in regard to "Costs Taxed," suggesting that I was challenging the courts costs that were awarded to the City. As noted above, the grounds for my motion were the misapplication of collateral estoppel by the courts, the court's bias, and the false claims by the City in its summary judgment motion. These incorrect entries were intentional and were done in order to set up a phony hearing on my Rule 60 motion. To further facilitate the phony hearing, I was told on two separate occasions by court clerk Cita Escolano that there would be no hearing on my motion. I was also told that my motion would be decided on the papers. The hearing on my motion, misstated as regarding "Cost Taxed," was held on April 26, 2013 without my knowledge. Judge Ronald M. Whyte, who presided over the City's motion for summary judgment, conducted the hearing on my Rule 60 motion. Attorney Richard North represented the City. According to the transcript of the hearing by court reporter Lee-Anne Shortridge, there was a dispositive ruling on my Rule 60 motion made during the hearing. The dispositive ruling was the result of a motion to dismiss by the City that was granted by Judge Whyte, due to my failure to appear. No word for word account of the motion appears in the transcript, thus casting doubt on the legitimacy of the hearing. Also casting doubt on the legitimacy of the hearing is that the civil minutes account of the hearing by court clerk Jackie Garcia contradicts the transcript. The civil minutes does not indicate a dispositive ruling being made in the hearing. Rather, the civil minutes indicate that the court took the matter under submission and that it would enter a ruling at a later time. A written order purported to be by Judge Whyte was filed after the hearing on the same day of the hearing. The hearing on my Rule 60 has no credibility whatsoever, and it appears to have been completely staged. Even though my Rule 60 motion was 23 pages long, supported by approximately 26 exhibits that proved my claims were meritorious, the court's written ruling in its entirety only states that my motion was denied because it was untimely and that I failed to present adequate evidence supporting either of my theories for relief. The ruling is a farce and devoid of reality because Rule 60 motions based on a void judgment and a judgment produced by fraud on the court are not timed barred. For the court to issue such a brief ruling essentially one sentence long on a motion alleging fraud on the court, bias by the court, and a misapplication of the law is indefensible.   

The appeal of the order of Judge Whyte denying my Rule 60 motion for relief from his order granting the City's motion for summary judgment

I appealed Judge Whyte's order denying my Rule 60 motion to the 9th Circuit Court of Appeals on July 10, 2013. On September 25, 2014, prior to the court taking any action on my appeal, I filed a motion to vacate the judgment of the district court on the grounds that it was tainted by fraud and was, therefore, a void judgment. There was no way possible for me to have a fair hearing on my appeal based on the fraud surrounding my Rule 60 motion and the bias of Judge Whyte. Despite the clear and convincing evidence of fraud and bias against me by the district court, the 9th Circuit denied my motion to vacate and affirmed Judge Whyte's ruling on the same date, July 31, 2015, without conducting a hearing. In August 2015, I filed a petition for panel rehearing that was denied. 

My Rule 60 motion for relief from the stipulation of dismissal of defendant Younis from my lawsuit

As I discussed above, the City's motion for summary judgment in my lawsuit was facilitated by a fraudulent stipulation of dismissal of defendant Tuck Younis. The stipulation of dismissal was based on fraud because it was filed without my knowledge or authorization. Federal Rules of Civil Procedure (FRCP) 41 provides that a stipulation of dismissal can only be made with the consent of the plaintiff in a lawsuit. Case law states that a stipulation of dismissal is the absolute right of the plaintiff. A plaintiff's attorney cannot take that right away from a plaintiff as my attorney did, particularly when the stipulation of dismissal harms or destroys a plaintiff's cause of action. This is precisely what happened in my case. As I explained above, the stipulation of dismissal of defendant Younis was absolutely necessary for the City to prevail on its summary judgment motion because the City had already admitted in its answer to my lawsuit that Younis had denied me a CCW permit, without the hearing mandated by law, after he received the letter from the doctor explaining that my work restriction to avoid psycho-emotion stress did not prevent me from carrying a concealed weapon. The hearing requirement implicates a constitutionally protected interest. The stipulation of dismissal of Younis was entered between my attorney and the attorney for the City in order to prevent the district court from ruling on the actions of Younis that violated my constitutional rights. A stipulation of dismissal does not require approval from the court. After Younis was dismissed from my lawsuit, as already discussed above, he committed perjury in a declaration falsely stating that defendant Davis played no role in the decision-making regarding my request for a CCW permit. The stipulation of dismissal effectively destroyed my causes of action as to Younis and Davis, thereby, depriving me of due process. The stipulation of dismissal was filed by my attorney and the City's attorney with the specific intent of perpetrating fraud on the court and obstructing justice, a criminal offense. My motion for relief from the stipulation of dismissal of Younis was filed on September 16, 2013. It was denied by Judge Whyte just as he denied all of my other requests for relief in this matter. It is clear that Judge Whyte had a deep-seated bias against me that renders his judgments to be null and void.

My Second Federal Lawsuit Against the City of San Jose and the San Jose City Council

I filed my second lawsuit/complaint for damages on December 14, 2015. The basis of my lawsuit was that Mayor Sam Liccardo and the City Council, acting under color of law, refused to investigate my discrimination and criminal misconduct complaints against City Attorney Richard Doyle and the San Jose City Attorney's Office in violation of the City's discrimination and harassment policy and Code of Ethics. By refusing to investigate my complaint as is required by City policy, the Mayor and City Council discriminated against me because of my job-related disability and medical condition that resulted in a medical disability retirement from the City's police department. This was a pattern of discriminatory conduct against me that was calculated to punish me because of my medical disability retirement and to cause me emotional distress. This lawsuit was dismissed by Magistrate Judge Nathanael Cousins. He ruled that my lawsuit failed to state a claim for which relief can be granted, FRCP 12(b)(6). This ruling by Judge Cousins was a continuation of the flagrant bias and the lack of regard for facts and the rule of law by the courts in my lawsuits against the City of San Jose. Judge Cousins found that City officials had no duty to investigate my complaints against the City Attorney's Office based on his deliberate misinterpretation of a non-precedential case. Even though this ruling has no credibility based on commonsense alone, the case cited by Judge Cousins actually supports a finding that Mayor Liccardo and the City Council had a duty to investigate my complaints because they were the direct supervisors of City Attorney Richard Doyle and the City Attorney's Office. I appealed Judge Cousins ruling to the Ninth Circuit Court of Appeals and it was affirmed without a hearing. A Rule 60 motion seeking relief from the judgment in my lawsuit was denied by Judge Cousins. An appeal of Judge Cousins' denial of my Rule 60 motion to the 9th Circuit Court of Appeals was also unsuccessful.

My Third Federal Lawsuit Against the City of San Jose, Chief of Police Rob Davis, Deputy Chief of Police Adonna Amoroso, and Captain Tuck Younis

Flagrant bias and retaliatory conduct by the district court was on full display!

As I noted from the beginning, the misconduct of San Jose city officials and the federal courts was mostly centered around the litigation of my first lawsuit. My second lawsuit which was just discussed resulted from City officials' refusal to investigate my misconduct complaints against the City Attorney's Office. The reason for bringing up the second lawsuit is to show the flagrant bias of the courts against me and to show their lack of respect for my constitutional rights, the rule of law, and precedent. It is important to understand that my third lawsuit, that will be discussed here, is directly linked to my first lawsuit which resulted in several criminal acts by San Jose city officials, and officials with the US District Court in San Jose and the 9th Circuit Court of Appeals. My third lawsuit is an independent action in equity for relief from the ill-begotten judgment in my first federal lawsuit that favors the City of San Jose. US District Judge Beth Labson Freeman is the presiding judge over my independent action in equity. As discussed earlier in this post, my earlier attempts to obtain relief from the illegitimate judgment was by way of Rule 60 motions pursuant to the Federal Rules of Civil Procedure (FRCP). The Federal Rules of Civil Procedure does not limit the power of a district court to entertain an independent action in equity for relief from judgment. An independent action in equity and a Rule 60 motion are similar in that they both seek to set aside a final judgment in a lawsuit. When appropriate, a Rule 60 motion can be heard as an independent action in equity and vice versa. They are different in that a Rule 60 motion calls for the court to exercise its supervisory powers over its judgments, whereas an independent action in equity calls for the court to exercise it equity powers. An independent action in equity is a new lawsuit or complaint. It is handled in the exact same manner as an original complaint/lawsuit. It allows a court to examine all of the issues in the original complaint without reference to any legal conclusion or assumption made by the prior court to hear the case. 

The basis for relief in my independent action is essentially the same as the grounds for relief in my Rule 60 motions: fraud by the City and my attorney, bias by the courts in favor of the City, and the courts' misapplication of the collateral estoppel doctrine. As noted during the discussion of my first lawsuit, the City's motion for summary judgment pushed a false narrative that I was denied a CCW permit only one time by Deputy Chief Amoroso in April 2004 after she mistakenly believed that my work restriction to avoid psycho-emotional stress precluded me from carrying a concealed weapon. The City then made the false claim that Captain Tuck Younis reversed Amoroso's decision in August 2004 immediately after receiving a letter from the doctor providing my work restriction clarifying that it should not prevent me from carrying a concealed weapon. The truth is that Younis, as well as Chief of Police Rob Davis denied me a CCW permit, without a hearing required by state law, after both received the letter from the doctor explaining my work restriction. As noted in earlier discussions, the case that Younis and Davis violated my constitutionally protected right to the due process hearing required by law is airtight. The City Attorney's Office was well aware of this fact. In order to make their summary judgment motion viable, they entered a stipulation with my attorney to dismiss Younis from my lawsuit, falsely stating that I had authorized the stipulation of dismissal. In turn, Younis filed a declaration in support of the City's summary judgment motion falsely stating under oath that Davis played no role in the decisions to deny me a CCW permit, even though Davis received a letter from my attorney demanding that he issue me a CCW permit or face legal action. Davis failed to respond to the letter, even though it was his authority as Chief of Police to issue CCW permits. He had delegated that authority to Amoroso and Younis. The courts relied on the fraud-on-the-court by the City and ruled that Amoroso as an individual defendant was entitled to qualified immunity based on her false claim that she was confused about my work restriction but made no ruling on the actions of Younis and Davis that clearly violated my constitutional rights. The court treated the actions of Younis and Davis as if they never happened. The fraud-on-the-court by the City with the complicity of my attorney was successful in preventing the court from making an impartial ruling as to the actions of Amoroso, Younis, and Davis.

My basis for relief in my independent action in equity that the district court misapplied collateral estoppel or issue preclusion when dismissing my cause of action as to the City is indisputable. The district court dismissed my lawsuit based on a small claims court judgment from the State of California that the City won against me. The issue of collateral estoppel is discussed above, and as noted, I have brought it up in several motions and letters to the courts seeking relief from judgment. When determining the preclusive effect of a state court judgment, 28 USC Section 1738 (the full faith and credit act) requires federal courts to follow the preclusion law of the state where the judgment was rendered. Under California preclusion law, collateral estoppel or issue preclusion does not apply to judgments rendered in small claims courts because of the informal nature of small claims courts. Additionally, 9th Circuit Court of Appeals precedent, which applies to district courts in the 9th Circuit, states that the party asserting collateral estoppel as a defense must present a record that pinpoints what issue was litigated and determined in the prior proceeding. Even if the judgment the City won against me resulted from a formal proceeding, it still would not have collateral estoppel effect because there was no actual litigation, a requirement for collateral estoppel. 9th Circuit precedent also states that the courts consistently look to the record to see if an issue was actually litigated for purposes of applying collateral estoppel. There is no record from the small claims court that pinpoints what was litigated and determined in the case the City won against me. The City won the small claims case simply because the small claims commissioner dismissed my case for an apparent lack of jurisdiction without addressing any issues in my complaint. The district court's application of collateral estoppel in my first federal lawsuit is clearly erroneous. 

As to my claim of bias as a basis for relief in my independent action in equity, I allege that the district court failed to enter summary judgment in my favor based on admissions by the City in its answer to my first lawsuit that defendants Amoroso, Younis, and Davis had each denied me a CCW permit without a hearing mandated by law. This was a clear violation of my constitutional rights. My bias claim is also based on the district court's fraud relative to the hearing on my Rule 60 motion for relief from judgment in my first federal lawsuit. Additionally, the district court refused to vacate the fraudulent stipulation of dismissal of defendant Tuck Younis because of its bias against me and favoritism for the City of San Jose. 

Judge Beth Labson Freeman's ruling on my independent action in equity

Judge Freeman's ruling is the latest attempt by the courts to cover up the serious misconduct that occurred during the litigation of my first federal lawsuit against the City, Amoroso, Younis, and Davis. Judge Freeman dismissed my independent action in equity based on the law-of-the-case doctrine pursuant to a motion to dismiss by the City. Law-of-the-case is a preclusion doctrine just as res judicata. As discussed earlier, res judicata has to two aspects: claim preclusion, also called res judicata; and issue preclusion or collateral estoppel. Law-of-the-case directs a court's discretion, whereas res judicata is a mandatory doctrine. Even though law-of-the-case is a discretionary doctrine, courts rarely deviate from it for reasons of judicial economy and the need to prevent endless litigation. Law-of-the-case applies within the confines of the same case prior to a court entering a final judgment. Whereas res judicata applies once a final judgment has been entered. If a party in a lawsuit moves the court to settle an issue that comes up during litigation before the court has rendered its final judgment and the court's ruling on that issue is appealed, the appellate court's ruling becomes law of the case. The appellate court's ruling must be followed during litigation of the case until a final judgment is entered. That's how the law-of-the-case doctrine works. However, there are exceptions to the law of the case doctrine: 1. the final decision is clearly erroneous and enforcing it would work a manifest injustice; 2. intervening controlling authority makes reconsideration appropriate, or 3. substantially different evidence was cited at a subsequent trial. 

In her order on my independent action in equity, Judge Freeman ruled that it was a continuation of my first federal lawsuit, essentially saying they were the same case. She then dismissed my independent action in equity finding that the issues I raised fall within the law-of-the-case doctrine. This is flat out wrong. As I noted above, my independent action in equity is linked to my first federal lawsuit in that it attempts to set aside the illegitimate judgment in my first federal lawsuit. Other than that, it is an original complaint and Judge Freeman was required to examine the issues I raised in my independent action in equity without reference to any legal conclusion or assumption made by the prior court that heard my first federal lawsuit. She did not do so because of her bias in favor of the City and her clear intent to cover up the misconduct of San Jose city officials and the courts. This fact was evident in the hearing on the City's motion to dismiss and declare me a vexatious litigant. Judge Freeman made it clear she was not interested in discussing the merits of the claims in my independent action in equity. She only wanted to hear from me as to why I should not be declared a vexatious and harassing litigant. But I insisted that the claims I made had merit much to her chagrin. 

In addition to her order dismissing my independent action in equity based on the law-of-the-case doctrine, she issued an order, at the request of the City, declaring me to be a vexatious and harassing litigant. None of the requirements were met for me to be declared a vexatious and harassing litigant by precedent. First of all, my three federal lawsuits, motions and appeals over sixteen years was not an inordinate amount of litigation. And perhaps most importantly, the issues I raised in my independent action in equity (fraud, bias, and misapplication of the law by the courts) were not "wholly fanciful" or "patently without merit.," a requirement for a vexatious/harassing litigant declaration. As noted much earlier in this post, Judge William Fletcher stated during the appeals' hearing in my first federal lawsuit that he was dubious about collateral estoppel because there was no record of any litigation in my smalls claims case. The City also made claims in their answering brief during my appeal of Judge Freeman's ruling dismissing my independent action in equity and declaring me a vexatious and harassing litigant that collateral estoppel does not apply to small claims judgments under California preclusion law. So clearly on the issue of collateral estoppel my claim has merit. As to my claim of bias, no reasonable person will say that Judge Fletcher's comments during the hearing on my appeal in my first federal lawsuit asking why I was making this a federal case, and why didn't I just drop the "darn thing" is not flagrant bias against me. 

It is unmistakable that Judge Freeman's order dismissing my independent action in equity and declaring me a vexatious and harassing litigant is clearly erroneous, as well as an abuse of discretion. The order's purpose is to hide the misconduct of the courts and the City of San Jose during litigation of my lawsuits. The order is also punitive and retaliatory and is intended to chill my speech protesting the reprehensible and criminal misconduct of the City, my attorney, and the courts. This implicates obstruction of justice and several other public corruption crimes. My appeal of judge Freeman's order is currently pending in the 9th Circuit Court of Appeals. 

 Summary

"They know better than that, they are messing with you" 

As I noted in the introduction, the doctor that provided the work restriction at the center of this controversy said that City officials knew better and that they were messing with me when Deputy Chief Amoroso denied me a CCW permit based on the false claim that my work restriction to avoid psycho-emotional stress meant I retired on a psychological disability. The backstory of my lawsuits detailed in Post #73 proves this statement by the doctor to be true. However, as I said earlier, it was not Amoroso's conduct that was the impetus for my litigation. It was the actions of Captain Tuck Younis and Chief of Police Rob Davis that resulted in my lawsuits, because they received a letter from the doctor just mentioned that City officials said made it crystal clear that Amoroso's decision to deny me a CCW permit based on my work restriction was wrong. Yet, Younis and Davis refused to reverse Amoroso's decision and denied me a CCW permit anyway without a hearing mandated by state law. As noted above, the hearing requirement implicates a constitutionally protected interest according to U.S. District Court Judge Ronald M. Whyte. This is one of the most important facts in this case. 

The misconduct, much of it criminal, that occurred during litigation of my first federal lawsuit, as described above, was primarily geared to covering up the actions of Younis and Davis, the courts' misapplication of the collateral estoppel doctrine, and the bias of the courts in favor of the City of San Jose. To cover up the actions of Younis and Davis, the City put forth the false narrative that my CCW permit was denied only one time by Amoroso and that I was granted a CCW permit four months later by Younis immediately after he received the letter from the doctor explaining my work restriction. The indisputable evidence and the City's own admissions in their answer to my first federal lawsuit proves that this is a blatant lie. To prevent the court from being able to do its lawful job of scrutinizing Younis' actions, the City and my attorney dismissed him from my lawsuit by way of a fraudulent stipulation of dismissal. After being dismissed from my lawsuit, Younis, at the urging of the City, committed perjury in a declaration in support of the City's motion for summary judgment by stating that Davis played no role in the denial and later granting of my CCW permit. This is another blatant lie by the City and is criminal obstruction of justice. The City, with complicity from my attorney, made more blatantly false claims relative to its motion for summary judgment and during my appeal of the district court's order granting the City's motion for summary judgment. As to the issue of collateral estoppel, the small claims judgment relied upon has no preclusive effect, no if, ands, or buts. Refer to the above discussion for details. As to the bias and fraud of the courts, district court personnel deliberately misstated in court docket entries that my Rule 60 motion seeking to overturn the judgment on the City's motion for summary judgment was regarding "Costs Taxed," knowing fully that it was regarding fraud by the City and my attorney, the courts' misapplication of collateral estoppel, and the courts' bias against me. After misstating the grounds for my motion, the district court held a phony hearing on my Rule 60 motion with a contradicting transcript and civil minutes. Judgment was then entered in favor of the City. The most compelling evidence of bias, however, is the comments of Judge William Fletcher during the hearing on my appeal of the district court's order granting the City's summary judgment motion. He said there is an old cliche, why did he make this a federal case? and why didn't he just drop the darn thing? This blatant lack of impartiality alone makes the ruling against me in my appeal and to the case as a whole unconstitutional. Refer to the above discussion for more details. 

Conclusion

The courts acted if they were the legal counsel for the City

The actions of San Jose city officials in denying me a CCW permit was malicious, punitive, retaliatory; and was calculated to demean me, make me feel powerless, cause me financial harm, and to inflict extreme emotion distress. Their actions were also discriminatory because of my race and medical disability. I am black/ African American. Remember what the doctor said, they know better than that, they are messing with you

The egregious conduct of the 9th Circuit Court of Appeals, the US District Court, my attorney Stuart Kirchick, and San Jose city officials during the litigation of my federal lawsuits violates statutory law, the Constitution, and precedent. But I have to say the actions of my attorney takes the cake when it comes to these corrupt and disgusting officials. He chose to deliberately sabotage my case by stipulating to the dismissal of defendant Younis whose actions clearly violated my constitutional rights. The sole purpose of the dismissal of Younis was to prevent the courts from making a ruling on his unlawful conduct. Kirchick then refused to challenge the false declaration of Younis declaring that defendant Davis played no role in the decision-making regarding the denial and later granting of my CCW permit. My attorney's actions were done with the specific intent to help the City prevail against me. Nothing is more reprehensible than an attorney scheming against his very own client in order that his client's loses his lawsuit. Truly disgusting! 

What separates this fraud-on-the-court and public corruption case from most other cases of misconduct by court officials and attorneys, who are officers of the court, is the extent of the fraud and criminal acts these officials were willing to commit in order to cover up their misconduct. Totally shocking! 

The first thing that should happen here is that the judgments in each of my three federal lawsuits should be overturned because they are tainted by fraud and bias against me. The courts did not bother to give even the slightest appearance of impartiality when ruling against me during the litigation of my lawsuits. They acted as if they were the legal counsel for the City. The next thing that should happen is that an investigation should be initiated into the misconduct that occurred during the litigation of my lawsuits, and those found guilty of misconduct should be held accountable. The evidence of misconduct is indisputable and overwhelming. The links below provide additional details about my cases:

A Cheating Scandal in the Silicon Valley - Justice for Sale: The Backstory to My Lawsuits Against the City of San Jose! (crnctz.blogspot.com)

A Cheating Scandal in the Silicon Valley - Justice for Sale: Exposing the Cover-up of a Cheating Scandal by San Jose city officials and the federal courts - This story is shocking, but true!! (crnctz.blogspot.com)

A Cheating Scandal in the Silicon Valley - Justice for Sale: The Ninth Circuit Court of Appeals - No Honor and No Integrity (crnctz.blogspot.com)

A Cheating Scandal in the Silicon Valley - Justice for Sale: Complaint Letters to the FBI and the Santa Clara County Civil Grand Jury (crnctz.blogspot.com)

A Cheating Scandal in the Silicon Valley - Justice for Sale: U.S. District Judge Beth Labson Freeman's Ethics Are Questionable (crnctz.blogspot.com)

A Cheating Scandal in the Silicon Valley - Justice for Sale: Access To The Courts Is A Constitutional Right (crnctz.blogspot.com)

A Cheating Scandal in the Silicon Valley - Justice for Sale: The Hill I Will Die On! (crnctz.blogspot.com)











Friday, September 2, 2022

The Backstory to My Lawsuits Against the City of San Jose!

 Post #73 - by Fred Bates - September 2, 2022

How My Lawsuits Against the City of San Jose Evolved

Introduction 

In my post on July 20, 2022, I explained that meaningful access to the courts is a constitutional right guaranteed by the First Amendment of the Constitution. The First Amendment allows for citizens to petition the government for a redress of grievances, which includes the filing of lawsuits. I stated that I filed three federal lawsuits against the City of San Jose based on the racist and malicious violations of my civil rights by City officials after I retired from the police department on a medical disability. In my post on July 21, 2022, I discussed how the US District Court in San Jose and the Ninth Circuit Court of Appeals had disposed of my lawsuits by violating my due process rights established by the US Constitution, federal statutory law, and precedent. I also stated in my post on July 21, 2022, that my refusal to accept the bogus judgments in my lawsuits is the hill I will die on!  

The purpose of today's post is to provide the backstory to my lawsuits against the City of San Jose that I hope will give you an understanding why I will pay any cost to hold the City of San Jose accountable for its racist retaliatory attack against me because I'm black and because of my medical disability. 

My employment as a police officer with the City of San Jose ended with a medical disability retirement

I worked for over 20 years as a police officer for the City of San Jose where I reached the rank of police sergeant. In May 2001, I was diagnosed with work related hypertension or high blood pressure (HBP) that caused damage to my heart. As a result, I was placed on a work restriction of 'preclusion from psycho-emotional stress' in order to help control my blood pressure. Because my HBP was difficult to control, even with increased medications, my doctor recommended that I apply for a medical disability retirement. On April 1, 2004, my medical disability retirement was approved by the City's retirement board with support from the City's Medical Director. My history of HBP, the damage it caused to my heart, and the resulting work restriction to avoid psycho-emotional stress is well documented in medical records, memos from the City's Retirement Services and Medical Director, my application for disability retirement, and the retirement board hearing. I mention all this documentation because it is important as it relates to the backstory of my lawsuits against the City. 

The denial of my privilege to carry a concealed weapon by Deputy Chief Adonna Amoroso

Upon my retirement, I was denied the privilege to carry a concealed weapon (CCW) by Deputy Chief of Police Adonna Amoroso. California Penal Code Section 12027.1 establishes the procedures relative to the certification of retired police officers to carry concealed and loaded firearms, including procedures to deny or revoke such privilege. Section 12027.1 requires that a hearing be held in all cases of denial or revocation of a retiring officer's CCW privileges except for those that retire on a psychological disability. I contacted Amoroso by phone shortly after I learned that she had denied me authorization to carry a concealed weapon in April 2004. She said that she denied me a CCW permit because my work restriction of 'preclusion from psycho-emotional stress' meant that I retired on a psychological disability. Yet, Amoroso told me that I could own a gun. She had already transferred to my custody high-capacity pistol magazines for my personal use immediately upon my retirement. No sane police administrator would tell an officer they could own a gun and transfer to their custody high-capacity pistol magazines if they believed an officer had a psychological disability. Amoroso made it clear that she understood the hearing requirement of Section 12027.1. But she refused to grant me a hearing because she said I could not prove that I did not retire on a psychological disability. This assertion by Amoroso is an outright lie! The documentation, as noted above, showing that my retirement was based on a medical disability and that my work restriction was provided in order to help control my HBP was available to Amoroso based on state law and on a consent form I signed authorizing City officials to review my medical and psychological records. Certainly, Amoroso was aware of the recommendation by my doctor, mentioned above, that was stated in a letter to City officials that I should apply for a medical disability retirement because my HBP was difficult to control. The doctor also stated that City officials could contact him if they had any questions. Additional evidence casting doubt on Amoroso's claim is that she approved three of my work assignments that were based on my work restriction. She approved of my assignments to the Internal Affairs Unit as an investigator, the Patrol Division as a supervisor, and the School Crossing Guard Program as Program Manager. It's not even necessary to say that those job assignments require the ability to exercise good judgment and to make sounds decisions under stress. Amoroso was well aware that my performance appraisals for the just stated job assignments, all during the time I had the work restriction of 'preclusion from psycho-emotional stress,' had the overall ratings of above standard, with many of the individual rating categories being exceptional. In my last performance appraisal prior to my retirement, my rating under job expertise was exceptional. My rating under relationship with others was exceptional. The rating for my performance as a supervisor was exceptional. My rating under judgment was above standard with the comment that my decisions were logical and appropriate. My rating for the category of initiative and reliability was above standard with the comment that my performance under stress was above the expectations for my position. Amoroso was asked what she remembered about my disability in her deposition relative to my first federal lawsuit against the City of San Jose. She said that I had a heart condition that was affected by psychological stress. She also stated that the police department and the City's Medical Director work closely together so that there is no misunderstanding about an officer's work restriction. Amoroso stated in her deposition that I was never required to submit to a mental fitness evaluation. Based on the above, Amoroso's claim that she believed my work restriction meant I retired on a psychological disability has no credibility whatsoever. She also stated in her deposition that she was not supposed to interpret whether my work restriction was based on a medical disability or a psychological disability.  This is in fact San Jose Police Department policy. The policy also states that until such time as any question or confusion about an officer's work restriction is cleared by the City's Medical Director, any decisions about work restrictions will be based on the conditions stated by the employee. When I contacted Amoroso in order to appeal her decision to deny me a CCW permit, I told her repeatedly that my work restriction was based on my HBP, and it had nothing to do with a psychological condition based on conversations I had with the doctor that provided my work restriction. Yet, she refused to change her decision and steadfastly refused to provide me a hearing as required by Section 12027.1, even though, she was aware she was required to do so by law. Perhaps the biggest lie Amoroso told during this CCW permit fiasco is that she misinterpreted my work restriction to mean I retired on a psychological disability because she did not have authority to review my medical records. She made this ridiculous claim despite the fact that, as noted above, state law and my consent form gave her authorization to review all of my confidential medical and psychological records. Furthermore, Amoroso authorized her subordinates to review confidential medical records; and she stated in a letter she wrote to another officer that she had reviewed his medical records. The evidence is overwhelming that Amoroso's decision to deny me a CCW permit was malicious and retaliatory, and an intentional violation of my constitutional rights.

The denial of my CCW privileges by Captain Tuck Younis

The denial of my CCW permit by Amoroso was not the primary reason for my federal lawsuits against the City of San Jose. I never even considered a lawsuit after she denied me a CCW permit. The primary reason for my lawsuits is the egregious conduct of City officials months after Amoroso denied my request for a CCW permit. Amoroso's bigoted and discriminatory conduct pales in comparison to the conduct of the City officials I contacted months later seeking to appeal Amoroso's decision. In August 2004, I contacted police captain Tuck Younis and asked if the police department would reconsider the decision of Amoroso. I contacted the doctor that provided my work restriction requiring me to avoid psycho-emotional stress and asked him to send a letter to Younis explaining my work restriction. The doctor told me that City officials knew that my work restriction did not mean I had a psychological disability. The doctor said, "they knew better than that, they are messing with you." In his letter, the doctor explained that my work restriction of 'preclusion from psycho-emotional stress' was a term of arts used to label my medical disability. The doctor stated that he had given that same work restriction to thousands of officers, and that many had continued to work as police officers. As I noted above, I worked for three years with that same work restriction in positions that required me to make sound decisions under stress. In the letter, the doctor stated that I should have no problems or difficulty carrying a concealed weapon because of the work restriction. During litigation of my first federal lawsuit, the City stated that the letter made it "crystal clear" I did not have a psychological disability. Therefore, I was entitled to a CCW permit or a hearing that is required by Section 12027.1 if the police department wanted to continue denying me a CCW permit. Yet, Younis refused to change Amoroso's decision, even though he had all of the information that was available to Amoroso, as well as the letter from my doctor stating that my work restriction did not mean I had a psychological disability. Younis told me that he had consulted with Deputy City Attorney Carl Mitchell and that Mitchell told him that my appeal was not timely, because it was not made within 45 days. This claim has no credibility because I contacted Amoroso within ten days after she denied me a CCW permit and asked for an appeal. Nevertheless, I continued my efforts to persuade Younis to reverse the decision to deny me a CCW permit. I asked him if we could resolve this matter without making it a "federal case" in order to avoid legal costs to me, as well as the City. I reminded Younis of the letter from the doctor stating that I did not have a psychological disability and that I was a suitable candidate to carry a conceal weapon. I also offered to take a psychological evaluation at my expense in order to further prove I was mentally fit. I reminded Younis of my outstanding work evaluations and the hearing requirement of Section 12027.1. Yet, he refused to reverse Amoroso's decision to deny me a CCW permit, and he refused to grant me a hearing. I then asked Younis if there was any way that we could resolve this matter without me having to hire an attorney. I told Younis I would sign an agreement that I would not file a lawsuit against the City based on Amoroso's initial decision to deny me a CCW permit if we could resolve this matter without me having to seek legal representation. I told Younis that I had learned whatever lesson the City was trying to teach me. He still refused to grant me a CCW permit without the mandatory hearing required by law. I asked Younis if the City wanted me to get down on my knees and beg for a CCW permit. He said that it would not do any good. 

After Younis denied me a CCW permit in my direct appeal to him, I asked a police union representative (Jeff Ricketts) to intervene on my behalf with the hope that this matter could still be resolved without involving an attorney. Ricketts contacted Younis by phone in my presence and asked him what was going on with the denial of my CCW privileges. Younis told Ricketts that the decision to deny me a CCW permit was not going to be changed and that the decision was final. Ricketts informed Younis about the hearing requirement of Section 12027.1 that allows for an appeal. Younis told Ricketts that the phone conversation I had with Amoroso in April 2004 was my appeal and that the matter was closed. It is indisputable my phone conversation with Amoroso that has been discussed above, does not meet the hearing requirement of Section 12027.1 of the California Penal Code. A hearing pursuant to Section 12027.1 requires a three-member hearing board where one member is selected by the officer, one member is selected by the law enforcement agency, and the third member is selected jointly by the officer and law enforcement agency. It is noteworthy that Section12027.1 was amended in 1988 to require the hearing as just described due in part to a lawsuit involving the City of San Jose and the San Jose Police Officers Association. California legislators added the hearing requirement because they did not want the head of a law enforcement agency to deny a CCW permit based on their subjective feelings about an officer. It's important to note that the judge in my first federal lawsuit against the City ruled that the hearing requirement of 12027.1 was a constitutionally protected interest. It is without a doubt that the decisions to deny me a CCW permit by Amoroso and Younis were made based on their subjective feelings about me. In his deposition relative to my first federal lawsuit, Younis admitted that he told me and union representative Ricketts that I was not entitled to an appeal of the denial of my CCW privileges. Younis made this claim after he had already received the letter from the doctor stating that my work restriction should not prevent me from carrying a concealed weapon. It is clear that Younis violated my constitutional rights based on his own admission that he denied me a CCW permit without a hearing. Keep in mind the District Court judge ruled that the hearing requirement is a constitutionally protected interest. 

The failure of Chief of Police Rob Davis and City Attorney Richard Doyle to reverse the decisions of Amoroso and Younis to deny my CCW privileges

With no other option but to obtain legal representation based on the repeated denials of my requests for a CCW permit or a hearing by Amoroso and Younis, I hired attorney Stuart Kirchick to assist me in securing a CCW permit in October 2004. The retainer I paid Kirchick was $1500. Kirchick sent a letter to San Jose Chief of Police Rob Davis in early October 2004 detailing my failed attempts to obtain authorization to carry a concealed weapon from Deputy Chief Amoroso and Captain Tuck Younis. A copy of the letter was sent to San Jose City Attorney Richard Doyle. The letter documented the hearing requirement of Section 12027.1. Included with the letter was a copy of the letter from the doctor explaining that my work restriction of 'preclusion from psycho-emotional stress' did not preclude me from carrying a concealed weapon. Relevant to discovery during my first federal lawsuit, a copy of the letter was obtained from the City that was date-stamped as being received by the Office of the Chief of Police. This is compelling evidence that Chief Davis was aware of the letter and its contents, along with the letter explaining my work restriction. The letter demanded that Davis immediately issue me a CCW permit or face legal action.  Neither Chief Davis nor City Attorney Richard Doyle responded to the letter from my attorney despite the threat of litigation. 

My complaint against the City of San Jose with the California Department of Fair Employment and Housing

In December 2004, after not receiving a response from Davis or Doyle, I filed a discrimination complaint against the City of San Jose with the California Department of Fair Employment and Housing (DFEH) for violating my rights that were guaranteed under Section 12027.1. Because the evidence was so strong that San Jose city officials had discriminated against me when denying my CCW permit, DFEH said they would take my case. The implication was that DFEH would sue the City of San Jose on my behalf. About a week after my complaint with DFEH, Captain Younis called me and informed me that the police department had reversed its decision to deny me a CCW permit, even though he had informed me and union representative Jeff Ricketts months earlier that the decision to deny me a CCW permit was final. Younis refused to give me a reason why the police department had unexpectedly reversed the denial of my CCW permit. I learned later from the City Attorney's Office legal adviser, Jim Brennan, that the police department reversed Amoroso's decision to deny me a CCW permit because Deputy Chief of Police Pete Oliver said that the City would lose a lawsuit. This is clear evidence that the denial of my CCW permit had no legitimate basis whatsoever; and that the denial was based on the subjective feelings of the officials involved.

My CCW permit was denied numerous times without a hearing as required by Section 12027.1

It should be very clear from what has been presented here is that San Jose city officials were not acting in good faith when they denied me a CCW permit numerous times, even though they were presented with indisputable evidence that I was a suitable candidate to carry a concealed weapon. As noted above, Deputy Chief Amoroso was given the opportunity to change her initial unlawful decision to deny me a CCW permit in April 2004. She refused to do so. In August and September 2004, Captain Tuck Younis was given at least two opportunities to reverse Amoroso's decision on my direct appeal to him and when police union representative Jeff Ricketts intervened on my behalf. Keep in mind in my direct appeal to Younis, I made several overtures to him that included taking a psychological evaluation and signing an agreement not to sue. Yet, Younis refused to reverse Amoroso's decision and said the matter was closed. In October 2004, Chief of Police Rob Davis and City Attorney Richard Doyle were given the opportunities to reverse the decision to deny me a CCW permit. They both failed to act on the letter they received from my attorney demanding that I be issued a CCW permit or face legal action. Each of these City officials knew for a fact they were violating my rights to a due process hearing under Section 12027.1. Their actions were done with the clear intent of causing me monetary loss from having to hire an attorney. And more importantly, their actions were calculated to inflict upon me emotional pain and suffering; and their actions did in fact, cause me severe emotional distress. Even with this egregious conduct by City officials, there was not an immediate decision on my part to file a lawsuit against the City or the officials involved. 

My claim against the City of San Jose

Instead of filing a lawsuit, I chose to file a claim with the San Jose City Clerk's Office against the City in the Spring of 2005 in the amount of the $1500 retainer I paid my attorney. It was my hope that the City would take advantage of this opportunity to put this matter to rest without having to deal with any potentially costly litigation. The City failed to respond to my claim. 

My small claims complaint against the City of San Jose

With no other option available to hold the City accountable for the malicious violation of my constitutional rights relating to the denial of my CCW privileges, I made the decision to take legal action. I filed a small claims action against the City in the Superior Court of Santa Clara County Small Claims Court in December 2005 because it placed the least burden on our judicial system. My claim sought damages in the amount of the $1500 retainer I paid my attorney because of City officials' violation of Section 12027.1 of California's Penal Code. I subpoenaed three of the City officials involved in the decision-making regarding the issuance of my CCW permit, Captain Tuck Younis, Chief of Police Rob Davis, and Deputy City Attorney Carl Mitchell. On the day of the hearing, all three witnesses failed to appear on their subpoenas. It was necessary to reschedule the hearing because of their failure to appear. It is important to note that prior to the hearing, I made an offer to the City's legal adviser, Jim Brennan, to settle my claim for $1000 in a good faith effort to avoid litigation. This offer was $500 less than the $1500 retainer I paid my attorney which was my actual monetary damages. Brennan told me that the City did not want to settle. On the next hearing date in January 2006, Younis, Davis, and Mitchell failed to appear a second time on their subpoenas. The Small Claims Court Commissioner (Gregory Saldivar) who appeared to be agitated because of my case, ruled that attorney fees are not awarded in Small Claims Court. He made his ruling without allowing any testimony from me or the City's legal adviser. Commissioner Saldivar never made a ruling on my claim that City officials violated my due process rights based on their violation of the hearing requirement of Section 12027.1. It is important to note that there is no record from the Small Claims Court that shows what was litigated and decided. This small claims action, in which there was no litigation or record, plays a major role in my first federal lawsuit and my third federal lawsuit against the City of San Jose. 

My last attempt to negotiate a settlement in this matter without further litigation

After my small claims action, I contacted the San Jose City Attorney's Office in another attempt to negotiate a monetary settlement as compensation for the $1500 retainer I paid my attorney to assist me in securing my CCW privileges. This would be my last attempt to try and resolve this matter without having to engage in further litigation. I spoke to Assistant City Attorney George Rios. Rios admitted that the decision to deny me a CCW permit was wrong but claimed that it was an honest mistake. He said that I had a right to be upset but stated that the City would not compensate me for the money I spent unnecessarily for an attorney.

Summary and conclusion

From the backstory as told here, it should be easy to see that the denials of my CCW privileges had no legitimacy whatsoever. The issuance of CCW permits by the City's police department is a routine occurrence, and Deputy Chief Amoroso, Captain Tuck Younis, and Chief of Police Rob Davis were familiar with the process. They knew they were in violation of the mandatory hearing requirement of Section 12027.1, as well as the police department's policy prohibiting police administrators from interpreting an officer's work restriction(s). Their denials of my CCW permit were racist, malicious, discriminatory, retaliatory; and a blatantly political and personal attack on me because I'm black and because I retired on a medical disability. They only reversed the decision to deny me a CCW permit because a lawsuit against the City was imminent by the Department of Fair Employment and Housing. These officials weaponized the CCW permit authorization process to cause me financial harm. It did, in fact, cause me financial harm because I spent $1500 on a retainer for an attorney. The denials were also meant to inflict emotional pain and suffering, and to demean and humiliate me. I did, in fact, suffer extreme emotional distress and thorough humiliation. All of the requirements for a federal lawsuit against the City of San Jose, Amoroso, Younis, and Davis were met. Amoroso, Younis, and Davis who were employed by the City, subjected me to a deprivation of my constitutional right under color of authority. The right I was specifically deprived of was the due process hearing required by California Penal Code Section 12027.1. At this point, the only reasonable option for me to hold the City, Amoroso, Younis, and Davis accountable was a lawsuit for deprivation of my civil rights under color of authority pursuant to 42 U.S.C. Section 1983. This is how my federal lawsuits against the City of San Jose, Chief of Police Rob Davis, Deputy Chief of Police Adonna Amoroso, and Captain Tuck Younis evolved. Through my attorney, my first federal lawsuit, a Section 1983 claim, was filed in August 2006.  

I filed a total of three federal lawsuits against the City, Younis, Davis, and Amoroso based on their actions surrounding the denials of my CCW privileges. My lawsuits were a last resort and were not filed because I was itching for a legal fight with the City. The backstory should be proof of my efforts to avoid litigation. As just noted, I filed a Section 1983 lawsuit in 2006. It was during this lawsuit that San Jose city officials, the courts, and my very own attorney engaged in serious misconduct that included fraud and deception by the City, bias by the courts, and the failure of the courts to follow mandatory laws and precedent. The lawsuit was dismissed by the US District Court by granting the City its motion for summary judgment. The litigating strategy of the City in its summary judgment motion was to put forth the outrageous lies that my CCW permit was denied only one time by Amoroso because she was confused about my work restriction; and that Younis reversed Amoroso's decision once he received the letter from the doctor explaining that my work restriction of "preclusion from psycho-emotional stress' did not preclude me from carrying a concealed weapon. To ensure that the courts could not rule on the denials of my CCW permit by Younis and Davis, the City paid off my attorney (Stuart Kirchick) to enter a stipulation of dismissal of Younis from my lawsuit without my knowledge and approval. Younis then committed perjury by falsely stating in a declaration in support of the City's summary judgment motion that Davis played no role in the denial and later granting of my CCW permit. The backstory as detailed above totally debunks the City's litigating strategy. The 9th Circuit Court of Appeals affirmed the unlawful ruling of the District Court. In 2015, I filed my second federal lawsuit against the City and the San Jose City Council for failing to investigate a discrimination and misconduct complaint that I filed with the City against the City Attorney's Office, Davis, Amoroso, and Younis. That lawsuit was dismissed by the District Court with a biased ruling on the City's motion under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The 9th Circuit Court of Appeals affirmed that ruling as well. My third federal lawsuit, and current litigation, was filed in 2020. It is styled as an 'independent action in equity.' My independent action in equity seeks to have the District Court vacate the illegitimate judgment in my first lawsuit. The District Court dismissed my action based on a motion to dismiss by the City pursuant to the law-of-the-case-doctrine. Currently, my appeal of the District Court's ruling is pending in the 9th Circuit Court of Appeals. 

There you have it! The backstory of my litigation against the City of San Jose. Most of the claims I make are supported by incontrovertible facts and evidence. Any anecdotal facts are made with the good faith belief that they are accurate or true. As I state in my post on August 21, 2022, I will never give up my fight for justice in this matter, and that it's the hill I will die on! The links below provide more details on my lawsuits. I will also be addressing this matter in future posts.