Carson's Response to Motion to Dismiss by The "Juice", Stanislaus DA Investigator, Steve Jacobsen's...

1 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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FREAR STEPHEN SCHMID, CSB No. 96089 177 POST STREET, SUITE 890 SAN FRANCISCO, CA 94108 Telephone: (415) 788-5957 Facsimile: (415) 788-5958 Attorney for Plaintiff FRANK C. CARSON.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRANK C. CARSON,

Plaintiff,

v. COUNTY OF STANISLAUS, STEVEN JACOBSEN,

Defendants. _________________________________/

Case No. 1:10-CV-02133-OWW-SMS

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Date: March 7, 2011 Time: 10:00 a.m. Dept.: 3

Defendants’ motion to dismiss is without merit. No reasonable person can submit that the

unprovoked assault and battery on a lawyer in the halls of a courthouse by an out of control

investigator for the Stanislaus County District Attorneys office. If such conduct does not

constitute violations of civil rights, then there are no civil rights left in the United States.

BACKGROUND

The facts are alleged in paragraph 6 of the complaint, to wit:

“On February 26, 2010, County’s employee, defendant Jacobsen, assaulted and battered plaintiff. Plaintiff is an attorney and was in the Stanislaus County courthouse hallway at the time with a camera and was attempting to take a picture of defendant Jacobsen pertaining to a case. Defendant Jacobsen went ballistic and lunged at plaintiff and smacked plaintiff's hand, thereby knocking the camera from plaintiff's hand, causing the camera to skitter down the hallway. In the process,

Case 1:10-cv-02133-OWW-SMS Document 11 Filed 02/14/11 of 5


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defendant Jacobsen interfered with plaintiff Carson's taking of photographs which was his First Amendment right, and further interfered with plaintiff's performance of his legal profession, constituting interference with his liberty interests to practice a recognized constitutionally protected common trade. In addition, the conduct of defendant Jacobsen constituted an assault and a battery on plaintiff and intentional violent interference with plaintiff's constitutional rights under the California Constitution and the U.S. Constitution, to wit, his First Amendment rights, his Fourth Amendment rights against unreasonable search and seizure (the bodily assault and battery and the "seizing" of the camera) and his Fourteenth Amendment liberty interests including the right to carry on a lawful trade and to have his bodily integrity be free of arbitrary and capricious governmental acts.”

ARGUMENT

Relying on an un-analogous 7th Circuit case of Braun v. Baldwin (7th Cir. 2003) 346 F.3d

761, the defendants conclude that a charge that the forceful and deliberate whacking from

plaintiff’s hand of a camera is perfectly reasonable conduct under the Fourth Amendment, and

does not violate his 1st Amendment rights and his 14th Amendment right to practice law. Mr.

Carson here as a defender of defendants in the criminal justice is entitled to assert his rights under

the 14th Amendment to practice his well-recognized trade. It does not play well for the

administration of justice in these United States if investigators for the District Attorneys office can

go around and strong-arm and physically attack defense attorney, and in the process attempt to

destroy evidence. While undeniably a courthouse is not necessarily a general forum for exercise of

the 1st Amendment in all aspects, it certainly is an appropriate forum for an attorney to exercise his

free speech rights and his right to petition on his client’s behalf and on his own behalf in and as

part of the practice of the common trade of the practice of law and defendant’s conduct violates the

First Amendment as a matter of law. Duran v. City of Douglas, Ariz. (9th Cir. 1990) 904 F.2d

1372, 1378. Moreover, the activities of the defendants clearly fall within the 4th Amendment

protection in threefold fashion,1 (1) the bodily assault on Mr. Carson constitutes an unreasonable

use of force on a seizure under the 4th Amendment under the case of Graham v. Connor (1989) 490

U.S. 386, (2) an intentional seizure of Mr. Carson’s person, as no reasonable person after being

physically assaulted by a law enforcement officer would feel free to go due to the officer’s



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physical force and show of authority constitute a seizure (United States v. Mendenhall (1980) 446

U.S. 544, 553; California v. Hodges (1991) 499 U.S. 621, 624-626), and (3) the seizure of the

camera. See Soldal v. Cook County, Illinois (1992) 506 U.S. 56, 63 wherein the court found that

“a ‘seizure’ of property occurs where there is some meaningful interference with an individual’s

possessory interest in that property, even in a civil context. Here, while the conduct of the

defendant, Jacobsen, can hardly be considered “civil,” in fact it was most uncivil, nonetheless it

was not part and parcel of any criminal investigation or an attempt to thwart any alleged crime, or

defend himself in any sense pertaining to an investigatory stop. To the contrary, this was an

outright lunge and intentional assault and battery on plaintiff by an out of control, thuggish and

perhaps mentally unstable employee of the County of Stanislaus, whose activities have been

known to the County of Stanislaus in the past and who, based upon his past activities, the County

of Stanislaus must be presumed to have known of his propensities and has repeatedly condoned

such conduct for at the very least the County bears liability for its failure to train and supervise.

City of Canton v. Harris (1989) 489 U.S. 378, 399-400.

The suggestion that taking a photograph in the public hallways of a courthouse constitutes a

security risk is simply laughable, especially in view of ubiquitous cameras in cellular telephones.

Perhaps defendants proposed standard of conduct are those employed by the Mubarak thugs in

beating up camera-wielding individuals in the Egyptian protests.

The moving papers cite no basis as to why such a photograph in the hallways of a public

courthouse would be (1) a security risk and (2) do they cite to any regulation, law, policy, nor

unwritten or written or rule that disallows photographing in the halls of any court in the State of

California, much less in that of Stanislaus County. It is truly sad that the defendants would make

such an outrageous argument that such thuggery against an officer of the court is permissible. The

defendants’ citation to Braun v. Baldwin, supra, is wholly inapposite. There is nothing in this case

that is comparable. There is no altercation here, only a one-sided, unprovoked assault and battery

by a law enforcement officer upon an attorney practicing his profession in a legally recognized and

1 Defendants in explicably assert that there his 14th Amendments rights were not violated, but the due process clause of the 14th Amendment is the means by which plaintiff is entitled to assert his liberty interest of the 1st and 4th



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proper way. There is no suggestion that there was any exchange of words between Mr. Jacobsen

and plaintiff; but as alleged in the complaint, Jacobsen went ballistic and lunged at the plaintiff and

smacked plaintiff’s hands, knocking the camera out of his hands.

While there is absolutely no indication whatsoever that anything Mr. Carson was doing was

disturbing the “sedate, iconic, dignified, solemn and even “geriatric” ambience of the Stanislaus

Courthouse, where on any given day is anything but sedate, iconic, and solemn, reflecting that it is

a democratic institution where one does not have to cower in fear of checking one’s freedom at the

door.

In any event, California law recognizes the courthouse as a limited public forum and as

such, the Braun decision is without meaning. As stated in People v. Tisbert (1992) 11 Cal.App.4th

Supp. 1, 5: “A courthouse is a public place, which in general entitles a person to speak freely

therein.” Citing People v. Fogelson (1978) 21 Cal.3d 158, the court continues at page 6: “First

Amendment activities in a public building cannot be prohibited solely because the property

involved is not maintained primarily as a forum for such activities.”

The 1st Amendment protects public forums as defined by state law. See e.g. Pruneyard

Shopping Center v. Bobins (1980) 447 U.S. 74, or other expression is allowed. Once a public

forum is established, the state cannot discriminate. Perry Education Assn. v. Perry Local

Educators Assn. (1983) 460 U.S. 37, 45. Thus the Braun decision is wholly meaningless in the

instant action.

Jacobsen is not entitled to and qualified immunity for violation of the First, Fourth, and

Fourteenth Amendments. Clearly, a reasonable officer would know that an unprovoked assault

and battery upon an individual would constitute an unreasonable seizure of the individual under

clearly established case law. See Mendenhall and Hodari, supra. Also such unprovoked acts

constitute excessive force under well established case law and the questions of fact. Headwater

Forest Defense v. County of Humboldt (9th Cir. 2000) 211 F.3d 1121, 1133.

Likewise, a reasonable officer knows that he cannot arbitrarily assault and batter an

individual without violating the person’s personal integrity clearly violates substantive due process

Amendments. Monroe v. Pape (1961) 365 U.S. 167.



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as it shocks the conscious. See e.g. Martinez v. City of Oxnard (9th Cir. 2002) 337 F.3d 1091,

1092.

Finally, the motion to dismiss does not address plaintiff’s state claims – other than the

battery – which as noted above, is actionable because of the necessitated, unprovoked and

excessive force used.

The motion must be denied.

Dated: February 14, 2011

Respectfully submitted,

/s/ Frear Stephen Schmid__________________ FREAR STEPHEN SCHMID Attorney for Plaintiff FRANK C. CARSON


Carson's Response to Motion to Dismiss by The "Juice", Stanislaus DA Investigator, Steve Jacobsen's...

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