12-1891___________________________________________________________

United States Court of Appeals for the First Circuit

___________________________________________________________

CHRISTOPHER KING A/K/A/ KINGCAST.NET

Plaintiff-Appellant

v.

FRIENDS OF KELLY AYOTTE ET AL.

Defendants-Appellees

_____________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NEW HAMPSHIRE

_____________________________________________________

BRIEF OF PLAINTIFF-APPELLANT_____________________________________________________

Christopher King, J.D.85 Messer StreetSuite TwoProvidence, RI 02909

671.543.8085kingjurisdoctor@gmail.comPlaintiff pro se

PLAINTIFF-APPELLANT’S RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Plaintiff-appellant Christopher King is a natural

person. As such, a corporate disclosure statement is not

required. FED.R.APP.P.26.1(a).

(i)

TABLE OF CONTENTS Page

1. Plaintiff-Appellant’s Rule 26.1 Corporate Disclosure Statement……………………………………………….i)

2. Table of Contents…………………………………………………………………………………(ii)

3. Table of Authorities…………………………………………………………………………(iv)

4. Reasons Why Oral Argument Should Be Heard……………………1

5. Jurisdiction Statement…………………………………………………………………….2

6. Preliminary Statement……………………………………………………………………….2

7. Statement of the Issues………………………………………………………………..3

8. Statement of the Case……………………………………………………………………….4

9. Statement of Facts…………………………………………………………………………………4The Parties………………………………………………………………………………………………4 KingCast Claims………………………………………………………………………………..5

The Litigation History…………………………………………………………………9 The Present Case…………………………………………………………………………………10

10. Summary of the Argument……………………………………………………………….11

11. Argument……………………………………………………………………………………………………….13Standard of Review………………………………………………………………………….13Discussion of the Issues………………………………………………………..13

I.  The Lower Court committed reversible error by refusing to allow Plaintiff-Appellant KingCast to file a Third Amended Complaint addressing Nashua PD’s pattern and practice of First Amendment violations and Defendant Kelly Ayotte’s Defamatory statements about Plaintiff-Appellant used to generate funds to defend this Action. II.  The Lower Court committed reversible error by applying Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) to fact-based issues of disparate treatment where Plaintiff has a right to a Jury to determine whether his First Amendment Rights were violated, particularly at the Crowne Plaza and VFW events. III.  The Lower Court committed reversible error under Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) by determining that there is no way possible that the events in question were public events.

(ii)

 IV.  The Lower Court committed reversible error under Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) by determining that there is no way possible that the conduct of Defendants was racially-motivated.1 

12. Conclusion…………………………………………………………………………………………………….30

13. Certificate of Compliance…………………………………………………………….31

14. Certificate of Service…………………………………………………………………….32

15. Appendix………………………………………………………………………………………………….33-50

(iii)

1 Incidentally – or perhaps not -- Senator John McCain was present at the VFW event with Defendant Ayotte. Senator McCain has a history of expelling the sole black reporter at his events. Stephen Price is one such example available by way of Internet perusal.

TABLE OF AUTHORITIES Page

1. Kay v. Bruno 605 F. Supp 767 (1985)………………………………2, 23, 27

2. Cape Cod Nursing Home Council v. Rambling Rose Rest Home, 667 F.2d 243 (1st Cir 1981)…………………………………………….……..2, 24

3. NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986))……………………………………………………………………………………………………………………………………2, 25, 28

4. Watters v. Dinn, 633 NE 2d 280(Ind.Ct.App.1994)……………...3

5. Ashcroft v. Iqbal 129 S. Ct. 1937 (2009)……………………………………………………………………...3, 9, 12, 18, 23, 28, 30

6. Bell Atlantic v. Twombly, 550 U.S. 544 (2007) ………………………………………………………………………………………….3, 9, 12, 18, 23, 28, 30

7. FRCP 27………………………………………………………………………………………………………………………..10

8. Bose Corp. v. Consumers Union, 466 U.S. 485 (1984)……..13

11. Hardin v. Hussman Corp., 45 F.3d 262, 264…………………………….13

12. Crawford v. Runyon, 37 F.3d 1338, 1340-41…………………………..13

13. Bieter v. Blomquist, 987 F.2d 1319, 1320 (8th Cir.)……13

14. FRCP 15 ……………………………………………………………………………………………………………………..14

15. Monell v. City of New York, 436 U.S. 658 (1978)……………..14

16. Glik v. Cunniffe 655 F.3d 78 (1st Cir. 2011)……1, 14, 16

17. Wachsberger v. Pepper, 583 A.2d 77 (1990)……………………………..15

18. FRCP 201…………………………………………………………………………………………………………………………15

19. “Senator Ayotte’s $120K Legal Headache,” Politico………..17.

20. Artus v. Town of Atkinson, 2009 DNH 154 (2009)…………………..19

(iv)

21. Aversa v. United States, 99 F.3d 1200, 1214 (1st Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982))…………………………………………………………………………….…22

22. Wood v. Clemons, 89 F.3d 922, 927 (1st Cir. 1996)…………22

23. Malley v. Briggs, 475 U.S. 335, 341,C…………………………………….. 22

24. Santiago v. Puerto Rico, 655 F.3d 61 (1st Cir. 2011)………24

25 .Pruneyard Shopping Center v. Robins 447 U.S. 74 (1980)……………………………………………………………………………………………………26

26. Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241(1964)......................................27

27. Omnipoint v. City of Nashua… Civil No. 07-cv-46-PB……………...27

28.Moose Lodge No. 107 v. Irvis, 407 U.S. 163……………………………….28

29. Williams v. Le Crewe De Spaniards, 2009 U.S. Dist. LEXIS 4852………………………………………………………….………………….. 29

30. 42 USC Sec. 1981………………………………………………………………………………………..……..29

(v)

REASONS WHY ORAL ARGUMENT SHOULD BE HEARD

The burgeoning issue of Citizen and alternative press

rights is one that will substantially occupy time and space

in the American political and legal landscape for years to

come. Perhaps no one case currently pending in a United

States Court of Appeals addresses as many of the salient

issues as this one. A bright line must be set just as in

Glik v. Cunniffe 655 F.3d 78 (1st Cir. 2011) because these

are not truly private events.

What defines a public event in a political context when U.S. Senate Candidates spend thousands of dollars on public advertising to the general public and hold events on property subject to substantial state and local licensing and permitting?

Should U.S. Senate Candidates – particularly those who have just finished 6-year runs as a State AG -- be permitted to pick and choose which reporters they accept at events after issuing RSVP and other invitations to all journalists?

What actions may police take against journalists who are singled out by viewpoint or race without unlawfully chilling the First Amendment Rights of those reporters?

Do the landmark cases of Iqbal and Twombly apply to cases where issues of fact should be decided by a Jury?

Plaintiff-Appellant believes that oral argument on

these issues and others will enable the parties to present

the case fully and to answer this Court’s questions

adequately. The Lower Court gave short shrift to these

salient issues.

JURISDICTIONAL STATEMENT

1

This is an appeal from a final judgment of the United

States District Court for the District of New Hampshire,

entered June 19, 2012. Notice of appeal was timely filed

on July 18, 2012. Accordingly, this Court has jurisdiction

pursuant to 28 U.S.C. § 1291.

PRELIMINARY STATEMENT

The New Hampshire US District Court anchored its

May 17, 2012 Judgment on the Pleadings in this case to Kay

v. Bruno 605 F. Supp 767 (1985) and Cape Cod Nursing Home

Council v. Rambling Rose Rest Home, 667 F.2d 243 (1st Cir

1981), two cases that simply do not apply herein. Kay

involved a man who was attempting to take the dais and speak

at a political event rather than to attend and to report as

noted in NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986)

(issued AFTER Cape Cod, supra). And Cape Cod involved

purported First Amendment company town protest rights at a

clearly private nursing home, rather than First Amendment

Rights to attend and to report at an area traditionally

reserved for political events, i.e. a hotel function room

where political events are routinely held and reporters are

always invited and present, a material distinction of the

highest order.

The record below contained a video disc showing, inter

2

alia, how Nashua Police personnel – likely on State time and

taxpayer monies -- admitted they were acting at the behest

of the Ayotte camp as they singled out Plaintiff-Appellant

and harassed him ad nauseam.

STATEMENT OF THE ISSUES AND ASSIGNMENTS OF ERROR

Summary Judgment and Judgment on the Pleadings are not

Trials and must not be used as abbreviated trials (Watters

v. Dinn, 633 NE 2d 280(Ind.Ct.App.1994) or as a substitute

for a trial (State ex rel Corll v Wabash Circuit Court, 631

NE2d 914 (Ind.1994)).

I.  The Lower Court committed reversible error by refusing to allow Plaintiff-Appellant KingCast to file a Third Amended Complaint addressing Nashua PD’s pattern and practice of First Amendment violations and Defendant Kelly Ayotte’s Defamatory statements about Plaintiff-Appellant used to generate funds to defend this Action. II.  The Lower Court committed reversible error by applying Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) to fact-based issues of disparate treatment where Plaintiff has a right to a Jury to determine whether his First Amendment Rights were violated, particularly at the Crowne Plaza and VFW events. III.  The Lower Court committed reversible error under Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) by determining that there is no way possible that the events in question were public events. IV.  The Lower Court committed reversible error under Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) by determining that there is no way possible that the conduct of Defendants was racially-motivated.2 

STATEMENT OF THE CASE

2 Incidentally – or perhaps not -- Senator John McCain was present at the VFW event with Defendant Ayotte. Senator McCain has a history of expelling the sole black reporter at his events. Stephen Price is one such example available by way of Internet perusal.

3

Please see litigation history.

STATEMENT OF FACTS

The Parties

Plaintiff is a graduate of a top-50 law school (CWRU,

the same one as Lower Court Judge McConnell) who worked as a

reporter and editor at medium and large press (most notably

the Indianapolis Star) prior to law school. He has served as

a law enforcement attorney as an Assistant State Attorney

and he has successfully represented and sued law enforcement

personnel in private practice. He is registered with the

Massachusetts Supreme Judicial Court as a journalist and

enjoys the company of established area print and online

journalists in various professional associations including

New England News and Print Association, where he has chaired

a panel on journalism and professionalism.3

Defendant Friends of Kelly Ayotte is the fundraising

and promotions arm of First Term U.S. Senator Kelly Ayotte.

Defendant Ayotte is former long-term (6+ years)NH AG.

Defendant NH Republican Committee and Nashua Republican

City Committee are the State and Local GOP entities who

3 It bears noting that Plaintiff-Appellant offered to resolve this case in full if Defendant Ayotte would attend the 2011 winter panel discussion on alternative journalism, given that NH GOP Communications Chair Ryan Williams stared at him and bellowed “You are not a journalist” just prior to having the Nashua Police Defendants remove him from the entire Nashua Crown Plaza hotel. Defendants declined and so here we are today.

4

support Defendant Ayotte and who, on information and belief,

helped organize the events in question. It is further

believed that they help enforce the official GOP policy on

access by media at campaign events.4

Defendants Ryan Williams and Di Lothrop are

respectively the State/Nashua Communications GOP Chairs.

Defendant Dennis Hogan is the Republican City Committee

Chair who allowed Plaintiff in to the Joe Arpaio Steak Out

event as a journalist, only to side with his colleagues

later in expelling Plaintiff-Appellant.

Defendants Hargreaves, Don Conley, and Fisher were all

employees of Defendant Nashua Police Department. Conley

retired and Fisher, despite having several lawsuits against

him, is a police chief in Carlisle, MA.

KINGCAST.NET CLAIMS

Plaintiff KingCast complained that Defendants, jointly

and severally, and using the threat of police powers chilled

and violated First Amendment Rights to gather and to

disseminate news in areas consonant with political discourse

and expression at publicly-advertised political events at

venues subject to substantial state and local licensing and

permitting.

4 Of course we cannot be sure of that because the Lower Court unlawfully truncated discovery.

5

For the purposes of this Appeal, these violations

occurred on three (3) occasions in New Hampshire during the

2010 U.S. Senate race:

1. Kelly Ayotte Facebook Rally in Manchester, NH at a publicly-accessible parking lot:

In this instance public facebook invitations were sent out to the general population for anyone to attend for a fee of $10. When Plaintiff – a black man – arrived with cash in hand, however, some Ayotte onlookers called him “a bigot” and former U.S. Marshal Stephen Monier threatened to call the Manchester Police on Plaintiff-Appellant even as he stood on the sidewalk with his cash in hand. The record contains a video and video screen capture of this event. Several moderate to large white men put their hands on Plaintiff and pushed him around, causing him to be in imminent fear of bodily harm.

6

2. Kelly Ayotte/Joe Arpaio “Steak Out” Rally in Nashua, New Hampshire at the Crowne Plaza.

Again, this was a public invitation event with substantial GOP cash being spent on advertising in the Nashua Telegraph. Plaintiff-Appellant arrived, interviewed Sheriff Joe without incident in the hallway, registered as media and proceeded into the leased area where he was approved by Defendant Hogan, a former Nashua School Board member who knew Plaintiff-Appellant to be functioning “strictly as a reporter” that day.

Subsequently Defendant Williams cornered Plaintiff-Appellant, yelled at him “You are not a journalist,” then on information and belief, counseled with Defendant Ayotte and Nashua PD to have Plaintiff thrown out not only of the leased area, but out of the entire Crowne Plaza, which is what the Nashua Police did, led by Defendant Hargreaves who refused to leave Plaintiff-Appellant alone long after he had left the leased area.

Along the way Hargreaves also ignored Caucasian GOP member Karen Thoman striking his camera with a GOP flier then wrongly admonished Plaintiff-Appellant “just don’t hit anyone else.” Everything noted herein was and is preserved on video in the Court below, which basically ignored all of it. In the first screen capture below, Ms. Thoman had just unlawfully struck Plaitniff’s camera and Defendant Hargreaves let her get away with it.

7

3. Kelly Ayotte/John McCain VFW Rally in Nashua, NH.

Once again a heavily-advertised event that even contained a specific RSVP to which Plaintiff-Appellant accepted, only to find that when he arrived the Defendants had reneged. Defendant Fisher of Nashua PD told him he would be arrested on orders of the Ayotte Campaign who “did not want him around.”

But Defendant Fisher was not content to rest on that, no Sir. He continued to harass Plaintiff-Appellant by telling him to stay on the sidewalk and away from a backing car even while Caucasians are seen closer to the backing car than Plaintiff. Fisher then even spoke over Plaintiff as he was trying to ask the Candidate a question, all maneuvers that were designed to run interference against Plaintiff-Appellant in the exercise of his First Amendment Rights as a journalist. The Nashua Telegraph covered this issue, and once again everything noted herein was and is preserved on video in the Court below, which basically ignored all of it.

These violations may or may not have been tinged with

actionable racial animus. The Lower Court ignored clear-cut

issues of disparate treatment in issuing a perfunctory

dismissal, citing to Ashcroft v. Iqbal 129 S. Ct. 1937

8

(2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007).

The Litigation History

Plaintiff-Appellant filed suit in State Court,

including request for injunctive relief to allow him to

attend any further publicly-advertized Ayotte rallies in

October, 2012. Defendants removed the case on or about 29

October, 2012 and it was heard on the Motion for Injunctive

Relief on 2 November, 2010 before Magistrate Landya B.

McCafferty, who never should have heard the case because of

actual conflicts of interest as noted in the next section.

Her adverse Report and Recommendations were entered on 5

Nov. 2012.

Plaintiff-Appellant filed a Second Amended Complaint

(which formed the basis of Appeal herein) on February 24,

2011 and he sought to file a Third Amended Complaint on July

6, 2011 after he discovered Nashua PD’s continued pattern

and practices against lawful First Amendment conduct as well

as Defamatory statements issued by Defendant Ayotte while

seeking funding to finance her defense. That Motion was

Denied; meanwhile Defendants moved for Judgment on the

Pleadings on 28 March, 2011 and their Motions were granted

in the entirety on 17 May, 2012.

Plaintiff-Appellant sought Rule 59E relief on 14 June,

9

2012 and the Court denied same without benefit of any reply

by Defendants on five (5) days later on 19 June, 2012. This

Appeal was timely filed on 18 July 2012.

The Present Case

KingCast is entitled to trial because he met the

Scott, infra, standard, of providing admissible evidence

of material issues of fact on which issues of the case turn

which present sufficient disagreement to require submission

to a jury. The trial court was contradictory on this

point, ruling for judgment on the Pleadings when it is clear

that not only did the Nashua Police interfere with

Plaintiff-Appellant’s right to gather and to disseminate the

news, all Defendants acted in a manner inimical to the First

Amendment and to the Free Press in a context that was not

truly private.

Further, a Jury may find that these actions were

steeped in unlawful racial animus on the fact pattern and

evidence that already exists, much less the discovery that

should have been granted as noted in the KingCast FRCP 27

Memoranda.

KingCast further contends that other record facts,

10

including the video discs in the court file of all incidents

showed sufficient facts in dispute to require trial before a

Jury as requested.

SUMMARY OF THE ARGUMENT

Everything in this case, commencing with Magistrate

Landya B. McCafferty and opposing counsel failing to inform

Plaintiff Appellant that they were her supervising attorneys

at McLane, Graf – points toward unfair and biased treatment

of Plaintiff-Appellant because he is an irritant in the face

of the establishment. But without irritants such as

Plaintiff-Appellant and KingCast media this Country never

would have enjoyed the revolution that was instigated by the

original pamphleteers. Magistrate McCafferty did eventually

recuse herself but only after Plaintiff-Appellant ran Lexis

searches to show where Her Honor had recused herself in

other situations, and not before opposing counsel & Judge

Barbadoro actually had the nerve to tell Appellant – an

experienced Federal Litigator:

“The motion to recuse the Magistrate judge

11

is utterly without merit and is denied.”5

Appellant was wrongfully denied Seventh Amendment trial

rights because it met its factual burdens to avoid judgment

on the Pleadings on the First Amendment and racial claims,

yet the court incorrectly applied Iqbal & Twombly.

ARGUMENT

Standard of Review

5 What could be worse than Attorney Parent and Attorney Middleton supervising Magistrate Judge McCafferty when she worked at McLane, Graf? Having Kelly Ayotte be a staff attorney at McLane, Graf. As it turns out, she was. Yet the Lower Court lambasted Yours Truly for raising a Recusal Motion when he had earlier taken a gentler approach by asking

for full disclosure.

12

The First Circuit U.S. Supreme Court case of Bose Corp.

v. Consumers Union, 466 U.S. 485 (1984) held:

(a) In cases raising First Amendment issues, an appellate court has an obligation to make an independent examination of the whole record to ensure that the judgment does not constitute a forbidden intrusion on the field of free expression. 

Summary judgments and even more so Judgments on the

Pleadings are reviewed de novo in the courts of appeals.

Hardin v. Hussman Corp., 45 F.3d 262, 264 (8th Cir. 1995).

In reviewing a summary judgment the court of appeals applies

the same standard as the district court. Crawford v. Runyon,

37 F.3d 1338, 1340-41 (8th Cir. 1994) (citing Bieter v.

Blomquist, 987 F.2d 1319, 1320 (8th Cir.), cert. denied, 510

U.S. 823 (1993)).

Discussion of the Issues

I. The Lower Court committed reversible error by refusing to allow Plaintiff-Appellant KingCast to file a Third Amended Complaint addressing Nashua PD’s pattern and practice of First Amendment violations and Defendant Kelly Ayotte’s Defamatory statements about Plaintiff-Appellant used to generate funds to defend this Action.

Plaintiff’s Motion for Leave to File a Third Amended

Complaint should have been granted because the facts

contained therein help Plaintiff hurdle the Iqbal and

Twombly thresholds against both the Political Defendants and

the Nashua PD Defendants. As noted in Plaintiff’s Memo for

27 October 2011 Telephonic Conference:

1. Plaintiff’s Third Amended Complaint vis a vis Rule 15(A)(2):

13

a. Is it potentially defamatory for a U.S. Senator to claim to the entire U.S. Senate and U.S. House that someone who holds a law degree from the same top 50 law school as His Honor (Case Western Reserve) has “filed frivolous lawsuits” against her when in point of fact there is no such specific finding of fact or law?

b. May Plaintiff Amend his Complaint to include the pattern, policy and practice Monell fact that another independent reporter who has covered this case was wrongfully and arrested for trespass by the Nashua PD and subsequently found Not Guilty by bench trial? This given the fact that they ran him out of an entire hotel in similar fashion to the way they ran Plaintiff out of the Crowne Plaza, chilling his First Amendment Rights as caught on KingCast video. This given the fact that Defendant Nashua PD counsel Brian Cullen stated in his own filings that the case at bar involves application of the trespass statute to an independent reporter.

c. May Plaintiff Amend his Complaint, with or without the Affidavit of Mike Gannon or Pamela Reynolds, to note that Nashua PD uttered the words “You are a YouTube sensation” to Mr. Gannon as they tackled him and maced him after they saw him running hand held video of two Detectives on Canal Street. This particularly in light of the First Circuit ruling of Glik v. Boston.6

Wachsberger v. Pepper, 583 A.2d 77 (1990) informs this case:

HN2: Although leave to amend a pleading lies within the sound discretion of the trial justice, R.I. Super. Ct. R. Civ. P. 15(a) liberally permits amendment absent a showing of extreme prejudice. The court's liberal

6 Again, it must be noted that virtually all of Mr. Gannon’s YouTube presence exists because of KingCast videos. This type of antipathy toward the First Amendment should be heard by a Jury as far as intent to interfere with Plaintiff’s Substantive Right to gather and to disseminate news regardless of, but also contemplative of, unlawful racial animus.

14

interpretation of Rule 15(a) encourages the allowance of amendments in order to facilitate the resolution of disputes on their merits rather than on blind adherence to procedural technicalities….Aside from the trial justice's misplaced reliance on delay only, there was no evidence that suggested that the Peppers and Tenev would be prejudiced by allowing Wachsberger to amend her complaint. The trial had not commenced, there was no allegation that witnesses were lost, and the Peppers and Tenev could not have been surprised by Wachsberger's further specification of fraud since it was alleged in her original complaint. The Peppers and Tenev failed [**7]  to carry their burden to show they would be substantially prejudiced under our decided cases; therefore, we believe the motion to amend should have been allowed.

In this case there was no delay whatsoever. The Plaintiff

raised these issues in timely fashion and Defendants, rather

than face them head on, are attempting to hide from them but

they are clearly valid concerns.

After he filed his Second Amended Complaint Plaintiff-

Appellant’s Constitutional Rights were trammeled by the same

police department that wrongfully arrested another

independent journalist in virtually the same exact

circumstances. His name is David Ridley and this Court must

take Judicial Notice per FRCP 201 that he was found not

guilty of trespass, the same statute that Defendants claim

they were enforcing in the instance case. Mr. Ridley has

attended and covered this case and KingCast has covered Mr.

Ridley’s case with YouTube documentation. Here is Mr. Ridley

15

as photographed by Appellant in front of the Nashua Police

Department after his wrongful arrest:

Also after the Second Amended Complaint was filed

Nashua PD then made disparaging remarks during a First

Amendment altercation with resident Michael Gannon and

Pamela Reynolds as noted at item C, supra. Plaintiff-

Appellant ran video interview of Mr. Gannon then, and again

later after this Court issued the Glik Decision.

16

Contrary to Defendant’s implications, it is not his

fault that Defendants waited until after he filed his Second

Amended Complaint to commit these actions.

Lastly, with respect to Senator Ayotte’s transgressions

in the Third Amended Complaint, as noted in Scott Wong’s

Politico story “Senator Ayotte’s $120K Legal Headache,”

Defendant Ayotte use a legal term of art for something that

has never been found (i.e. that anything Appellant did was

“frivolous”) to get tens of thousands of dollars in legal

assistance from her peers:

http://www.politico.com/news/stories/0712/78691.html

“A number of GOP senators including John Cornyn, Richard Shelby, Rob Portman and Lindsey Graham have donated to Ayotte’s fund through their political action committees or PACs. Honeywell International’s PAC has given $10,000.00, while Andy Card, former Chief of Staff to President George W. Bush, donated $1,000.00.”

17

All based on a material lie. In this context, involving a

former AAG and a former AG who previously attempted

prosecution of the former AAG in a racial and political

context, a reasonable trier of fact could find those words

to be Defamatory. The trier of fact in this case is the Jury

– and not the Judge.

II. The Lower Court committed reversible error by applying Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) to fact-based issues of disparate treatment where Plaintiff has a right to a Jury to determine whether his First Amendment Rights were violated, particularly at the Crowne Plaza and VFW events.

In this instance Iqbal and Twombly are simply not

engaged when there was clearly disparate treatment coming

from the Nashua PD toward Appellant when Nashua PD chastised

him for striking someone at Crowne Plaza when in fact a

white woman (Nashua GOP member Karen Thoman) had struck his

camera with a GOP flier, then when asked what her name was

stated “none of your business,” all directly in front of

Defendant Hargreaves.

Not content to rest on that conduct, Defendant

Hargreaves then led two other Nashua PD – likely being paid

with taxpayer monies – to drive Plaintiff out of the entire

Crowne Plaza after he left the leased area and was trying to

relax and seat himself in the lobby where they hovered over

18

him with guns and badges. This conduct forced even

Plaintiff, a man who has been a law enforcement attorney and

who has successfully sued police, to be fearful of arrest.7

A reasonably hearty person would have been chilled.

See by way of contrast Artus v. Town of Atkinson, 2009

DNH 154 (2009) in which Judge Barbaro specifically noted:

“The allegation that, between 2000 and 2009, Consentino used a sarcastic tone of voice and glared at Lewis repeatedly is also insufficient to state a claim. In some circumstances, a glare and the use of a sarcastic tone of voice might be enough to chill the speech of a "reasonably hardy" person.”

If a glare and use of sarcastic tone could be enough in

certain circumstance, certainly glaring at, Plaintiff,

ignoring a white woman striking his camera, trying to run

him out of the entire Crown Plaza and remaining hovering

over him with guns and badges AFTER he left the leased area

without use of force meets that threshold well enough to be

considered by the Jury.

In Artus, Judge Barbadoro correctly found against

Plaintiffs:

Artus and Brownfield have not cited facts sufficient to support the claim that Consentino's actions would

7 Plaintiff-Appellant noted to Defendant Hargreaves that the hotel had a restaurant and gift shop, etc and that it was “a place of public accommodation, I can chill here….” To no avail. Hargreaves and other Nashua PD stayed there with their guns and badges, hovering over Plaintiff-Appellant so he could not begin to write his story on his laptop. We don’t know for certain about who paid the police that day because the Lower Court committed reversible error in truncating discovery.

19

have chilled the speech of a "reasonably hardy" person. 4 The plaintiffs' harshest specific allegation is that Consentino called one person "angrily demand[ing] . . . an explanation as to why his family 'signed this shit.'" 

Comparatively speaking, that’s nothing compared to

police hinting that they are about to arrest you and the

facts in this case are inapposite. In addition to the

conduct already noted, please note that at the VFW, where

elected U.S. Senator John McCain accompanied Defendant

Ayotte, the Nashua PD conduct was no better:

Nashua Police personnel, by and through Defendant

Fisher (who admitted he was acting at the behest of

Defendant Ayotte) repeatedly harassed Plaintiff and

admonished him to stay on the sidewalk even though he

already was on the sidewalk. Then Fisher again continued to

admonish Plaintiff to stay away from a backing car even

though the video and screen capture provided to the Lower

Court clearly shows Caucasians closer to the backing car. To

add insult to injury while Plaintiff was trying to ask

Candidate Ayotte a question about her Unconstitutional DNA

testing of NH youth, Fisher talked over him again.

Remarkably, the Lower Court saw no problem with this.

20

In reviewing p. 10 of the Decision from the Lower

Court, note how the Court omitted the fact that Defendant

Hargreaves allowed a white GOP woman to slap Plaintiff’s

camera while admonishing him. Note how the Court omitted the

fact that Plaintiff only “felt compelled to leave or be

arrested” AFTER Nashua PD and run him out of the foyer area

as well as the leased space. It is a simple fact of law that

Nashua PD had no right to threaten arrest at that point yet

and still they did and it is in video as provided to the

Court, yet the Court overlooked this crucial fact.

This is how Plaintiff’s para. 30 actually read, with Plaintiff reinserting what the Court removed. It makes a huge difference:

30. Nashua PD Officer Hargreaves expressly told Plaintiff he was being ejected from the event because of “the people running the event “ – which was the New Hampshire and Nashua GOP. Hargreaves drove Plaintiff out of the entire Crowne Plaza under threat of arrest even though the GOP did not exercise dominion over the building, even though Crowne Staff said they were not throwing Plaintiff out and even though Plaintiff told him on video, “this is a place of public accommodation… I can chill here and get a sandwich, right?” Hargreaves never retreated from his position and Plaintiff felt compelled to leave or be arrested.

21

By omitting key elements of Plaintiff-Appellant’s Complaint

the Lower Court protected Defendants and clearly usurped the

role of the Jury. Note: It is difficult to write a news

story with three armed officers with guns, badges and police

batons standing over one’s head. There is no Qualified

Immunity in these instances:

A government official is entitled to qualified immunity from personal liability if his or her challenged "'conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Aversa v. United States, 99 F.3d 1200, 1214 (1st Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The challenged conduct is measured by a standard of objective reasonableness, that is, one must ask: "Could an objectively reasonable official, situated similarly to the defendant, have believed that his conduct did not violate the plaintiff['s] constitutional [*20] rights, in light of clearly established law and the information possessed by the defendant at the time of the allegedly wrongful conduct?" Wood v. Clemons, 89 F.3d 922, 927 (1st Cir. 1996).

A Defendant does not lose the protection of qualified immunity if he acts mistakenly, as long as his mistake [*21] was objectively reasonable, since qualified immunity is intended to protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986))

However in this instance every reasonable police officer

knows he cannot allow someone to strike a reporter’s camera,

accuse the reporter of striking someone without basis, then

chase the reporter out of a place of public accommodation

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and refuse to retreat when specifically told of this

violation by the reporter.

A “reasonably hearty person” would have been chilled by

the actions of police in the Crowne Plaza and VFW events. 8

III. The Lower Court committed reversible error under Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) by determining that there is no way possible that the events in question were public events.

The Court stated that Plaintiff failed to establish

state action with respect to the political defendants while

erroneously stating that Plaintiff is not entitled to any

discovery because he could not make the Defendants fit into

any of three (3) general categories. Plaintiff did in fact

meet his burden but the Court failed to acknowledge it.

There is no direct case law on point cited by the Defendants

or the Court, in which a reporter could not attend and

observe when an event is being held.

The oft-cited New Hampshire case of Kay v. Bruno 605 F. Supp

767 (1985) is simply not on point:

“with regard to the free speech and association claims, we find no basis for appellant's asserted First Amendment right to speak at the party meeting. "Kay, 821 F.3d 21.

Plaintiff is of course not looking to take to the podium,

but rather to attend and to report, as the ONLY MINORITY

8 The Defendants try to point out that the Staff at Crowne Plaza said that they were not moving to arrest Plaintiff, however that only makes matters worse because Defendant police personnel a) sought her out to try to make her ask the reporter to be arrested and b) lingered in the reporter’s presence even AFTER the manager stated she was not moving to have him arrested. All of this exchange was captured on video for the Lower Court, which ignored it.

23

REPORTER PRESENT AT ANY OF THESE RALLIES. The Court also

cited to Santiago v. Puerto Rico, 655 F.3d 61 (1st Cir.

2011) but that case does not involve the First Amendment

Right of a Reporter to attend political rallies, but rather

a case of a private bus driver who allegedly abused a child

in a public school district. That is an apples-to-oranges

comparison at best. Further, the Court failed to cite to

Plaintiff’s case law which is closest to being on point,

again given Plaintiff’s background as Southern NH NAACP

Legal Chair that the Court completely ignored, but which a

Jury is certainly entitled to consider when addressing the

relationship between the parties and motivational animus.

Further, the Court’s cited case of Cape Cod Nursing

Home Council v. Rambling Rose Rest Home, 667 F.2d 243 (1st

Cir 1981) does not involve a Reporter’s Right to observe and

report, but instead involved an area not consonant with mass

general public use for political rallies, such as the Crowne

Plaza. While Plaintiff is quite certain that the measure of

permitting and licensing of a nursing home is quite

substantial, it fails on the public policy prong of this

analysis and cannot be used for this particularized

evaluation.

In sum, “The entrance into a nursing or rest home is hardly

a "traditional public channel of communication."(Cape Cod at

240).

But a political rally, however, open to the public and

press by mass invitation, is precisely such a venue.

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It is crucial at this point to again go through the careful

analysis offered by Plaintiff on prior occasion before this

Court, but which was not addressed in the Decision:

As stated above, NAACP v. Thompson, 648 F.Supp. 195

D.Md.,(1986)(issued AFTER Cape Cod, supra, is a case

factually similar to the instant action. In Thompson, the

Court held that blacks may attend -- but not actively

participate in -- the KKK rally at a private home.

The Court attempted to downplay the relevance and

significance of Thompson at Fn. 7 by stating “that case

involved a county-issued permit system used to exclude

certain members of the public based on race. The active

state involvement critical in Thompson simply does not exist

here.”

That is not accurate because both cases involved the

issuance of facially-neutral permitting for host venues that

was then misused by host venues to discriminate. In this

case we have places of public accommodation that could not

operate or house the events in question without substantial

licensing and permitting being used to unlawfully

discriminate.

Courts must reasonably consider persuasive law from

another Federal Jurisdiction in order to compare apples-to-

apples and when it does, the yield supports Plaintiff:

As NAACP v. Thompson,     648 F.Supp. 195 D.Md.,(1986) shows

Plaintiff has a certifiable constitutional question, the

Court can take Judicial Notice that the VFW and Crowne Plaza

have to have State and Local permits (liquor, lodging, food

& beverage) to operate so there has to be a legal analysis

conducted to see whether the amount of permitting and

licensing equates to the type noted in Thompson:

It bears repeated emphasis that we do not have under consideration the property or privacy rights of an

25

individual homeowner or the proprietor of a modest retail establishment.  A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations ... would not markedly dilute defendant's property rights. Pruneyard at 78, 100 S.Ct. at 2039 (citations omitted).And the law is exactly as Plaintiff urged the Court to

adopt earlier, distinguishing the Kay NH case because

Plaintiff is not looking to participate, but rather to

observe and to ask a few questions. See Invisible Empire of

the Knights of the Ku Klux Klan, Maryland Chapter v. Town of

Thurmont, MD. 700 F.Supp. 281 (1998) (at leagle). That case

held that the NAACP -- much like the Kay Plaintiff -- cannot

barge in and command a place on the dais, but that's just

common sense.

An excerpt from Thompson from a 4 Nov. 2010 Journal Entry

that Defendants read:

Nor do plaintiffs challenge the Klan's right to hold private, members-only, segregated meetings on private property. Rather plaintiffs contend that the exclusion of individuals from a public rally on private property which is *203 authorized by, and may not be held without, a county-issued permit, is unconstitutional. 

That language virtually tracks the language set forth by

Plaintiff from the podium at Oral Argument on the TRO. As to

the level of State and Local permitting involved at all

three facilities herein, it is substantial – food, liquor,

beverage, lodging, entertainment -- and needs Discovery to

address,

provided that the Court embraces the concept of fairness and

26

equality.9

As a New England Zoning and Entitlements manager

Plaintiff has worked on some of the same projects (e.g.

Omnipoint v. City of Nashua) as Defense Attorney Parent for

OmniPoint, Plaintiff is therefore aware of many permits and

licenses involved, particularly at the Crowne Plaza and VFW

locations, which of course makes it necessary to engage in

discovery as to those matters.

From Pruneyard at 81, 100 S.Ct. at 2040 It may well be that Mr. Kelly, by opening his private farm property to the public for a Klan rally did not bestow upon attendees of that rally any right to speak during that rally or to require the Klan to call upon anyone to speak at the rally other than as the Klan desired. But, herein, plaintiffs do not seek the opportunity to speak at such a rally; rather, plaintiffs complain herein of being excluded entirely from attending such Klan rallies.10

............But, “by choice of its owner,” the property was, on the occasion of each Klan rally, made “open to the public.” Having made that “choice,” the private property owner cannot complain that he has been deprived of his privacy, or of his freedom to use his own private property as he desires, if he is required not to discriminate among the members of the public by excluding all persons belonging to a particular race or to a particular religious group. 

A private property owner can surely invite whomever he selects to attend a private gathering on his property. But when he offers his private property to the public, he has placed himself in a position which enables the government, if it so desires, to impose certain

9 As far as the type of Interstate Commerce involved, there is also of course a little thing called the Dormant Commerce Clause that Defendants might want to brush up on, giving the Federal Government powers to regulate activities involving Fundamental Rights. See generally Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964). 10 KingCast note: That is precisely the distinction Plaintiff is making between Kay v. Bruno, 821 f.2d 31 (1987), and his desire to merely be present and to gather news.

27

requirements upon him.11 

KingCast submits that such an analysis is entirely

consistent with principles of Heart of Atlanta, supra.

Lastly, Justice Rehnquist added in Moose Lodge No. 107 v.

Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972),  

Lastly, as to Defendant’s specious claim that they are immune from liability because they are not State Actors, Plaintiff states the following. First, as in the words of U.S. Supreme Court Justices – William Rehnquist -- in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972),

Our cases make clear that the impetus for the forbidden discrimination need not originate with the State if it is state action that enforces privately originated discrimination. Shelley v. Kraemer, supra.

Secondly, and equally as important, whether state action is

implicated is a factually matter that cannot be summarily

determined on a Motion to Dismiss. Plaintiff has

sufficiently pled that state action was involved in order to

survive the minimal hurdle of F.R.C.P. 12(b)(6).

*****************************

IV. The Lower Court committed reversible error under Ashcroft v. Iqbal 129 S. Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) by determining that there is no way possible that the conduct of Defendants was not racially-motivated.

There was disparate treatment along racial lines

throughout these events as noted. Further, an offer to

purchase a ticket for entry to an event constitutes a

11 KingCast note: Plaintiff’s offer of compromise made in Open Court did not include the Ayotte home. It was, and is, a valid attempt to balance private property rights against matters of public interest as noted in Thompson, supra.

28

contract within the meaning of the Statute, which is to be

construed liberally, in order to effectuate the remedial

intent of the legislation. Williams v. Le Crewe De

Spaniards, 2009 U.S. Dist. LEXIS 4852. As far as 42 U.S.C.

§1981, It is not disputed that Nashua PD on both Nashua

events stated on video that they were working together and

acting in Concert with respect to the Constitutional and

Statutory deprivations.

The Court’s opinion does not address the fact that an

accepted RSVP is indeed a form of a contract. There was a

very specific RSVP at the VFW as noted by the Nashua

Telegraph.12

The fact that the Williams Defendants were brazen

enough to say “no colored folks here” undoubtedly made that

case easier to decide, but in this case the Lower Court

seems to be overlooking not only the possibility of racial

discrmination but paras 51 a-m, inclusive, of Plaintiff’s

Second Amended Complaint that shows, inter alia, an

historical pattern of treatment from Defendant Ayotte toward

Appellant King involving nonsensical (and failed)

prosecution and First Amendment retaliation relative to

Appellant’s tenure as New Hampshire NAACP Legal Chair!

Even if Defendant Ayotte is entitled to prosecutorial

immunity relative to Civil suit for her actions in that

arena, as a matter of law a Jury is most certainly entitled

to find that her actions in this arena are racially-tinged,

and they are entitled to consider the history noted at para.

51. The set of factors enumerated right there in para. 51

12 The Decision entered May 17, 2012 at p.2 incorrectly states “because the general public was invited, he too was entitled to attend.” No. Time and time again, Plaintiff has made it clear that the gravamen is the fact that the media were all invited to attend, and all white media with no prior racially-involved events with Defendant Ayotte, were allowed to remain while Plaintiff was summarily escorted out or refused entry.

29

are enough to surpass Iqbal and Twombly, which cannot be

used to curtail reasonable discovery into that arena because

if that were the case no plaintiff could go forward in a

Civil Rights case unless he or she had a smoking gun, i.e. a

racial epithet or massive empirical evidence, such as five

(5) or six (6) black reporters being thrown out of Ayotte,

McCain events but here we have only two (2), but two is

enough.

CONCLUSION

For all of the foregoing reasons, Plaintiff-Appellant

KingCast respectfully requests that this Court vacate the

order of dismissal below and remand for further proceedings

not inconsistent with such findings.

Respectfully submitted,

/S/Christopher King, J.D.____________________________Christopher King, J.D.85 Messer StreetSuite TwoProvidence, RI 02909

671.543.8085kingjurisdoctor@gmail.comPlaintiff pro se

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6577 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of

30

Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally-spaced typeface using Microsoft Word 2011 in 12-point Courier New.

3. I further certify that the electronic copy of this brief filed with the Court is identical in all respects except the signature to the hard copy filed with the Court, and that a virus check was performed on the electronic version using the MacBook Pro software program

November 15, 2012

/S/Christopher King, J.D.____________________________Christopher King, J.D.85 Messer StreetSuite TwoProvidence, RI 02909

671.543.8085kingjurisdoctor@gmail.comPlaintiff pro se

31

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Christopher King, J.D. *

A/K/A KingCast.net, *

Plaintiff-Apellant * No. 12-1839

v. *

Friends of Kelly Ayotte et al.*

Defendants-Appellees *

CERTIFICATE OF SERVICE

I, Christopher King, hereby certify that on November 15, 2012, I caused to be served upon counsel of record for Defendants-Appellees by ECF/PACER, an electronic copy of the Brief for the Plaintiff-Appellant.

/S/Christopher King, J.D.____________________________Christopher King, J.D.85 Messer StreetSuite TwoProvidence, RI 02909

671.543.8085kingjurisdoctor@gmail.comPlaintiff pro seDate: November 15, 2012

32

ADDENDUM

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