violate clearly established statutory or constitutional rights of which a reasonable person would have known
Defendants' arbitrary and discriminatory attempts to prevent the plaintiff from effectively representing his client James Bolden and from effectively representing James Bolden’s witness, David Martin Price violated the plaintiff’s First Amendment right to free expression and Fourteenth Amendment rights to procedural due process, substantive due process, and equal protection of the law.
A. First Amendment
The Defendants have taken repeated actions to prosecute the plaintiff in retaliation for his exercise of First Amendment rights.
The prosecution of the plaintiff by the defendants is motivated by a desire to discourage the plaintiff’s expression which they believe threatens the ORCD regime in Shawnee County and the use of City of Topeka programs to secure federal funds.
The defendants are acting to suppress the plaintiff’s protected expression and not to enforce the Kansas Rules of Professional Conduct.
government actors cannot intentionally suppress constitutionally protected expression because of its content and avoid First Amendment scrutiny simply by claiming that they were acting pursuant to an otherwise valid criminal law. As we stated generally in DeLoach v. Bevers, "[a]n act taken in retaliation for the exercise of a constitutionally protected right is actionable under Sec. 1983 even if the act, when taken for a different reason, would have been proper." 922 F.2d 618, 620 (10th Cir.1990) (quoting Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir.1984)), cert. denied, 502 U.S. 814, 112 S.Ct. 65, 116 L.Ed.2d 41 (1991). "[A] prosecution
motivated by a desire to discourage expression protected by the First Amendment is barred and must be enjoined or dismissed, irrespective of whether the challenged action could possibly be found to be unlawful."
Defendants were acting to suppress their protected expression and not to enforce Colorado's criminal laws
Plaintiffs must produce specific evidence that, notwithstanding the existence of probable cause, it is likely that, but for the exercise of their constitutional right to solicit in Boulder, the defendants would not have brought or threatened to bring charges for any illegal misrepresentations for which the plaintiff was alleged to be responsible
But for the exercise of the plaintiff’s constitutional right to represent James Bolden and his witness, David Martin Price, the defendants would not have brought or threatened to bring a formal complaint for any ethical misconduct for which the plaintiff was alleged to be responsible.
The hostility of the defendants toward the plaintiff was rooted in disapproval of the protected activity of representing James Bolden and allowing his witnesses to testify.
The defendants have acted in a pattern of prosecutions or retaliations against the plaintiff brought in response to the exercise of First Amendment rights.
B. Equal Protection
The defendants are selectively prosecuting the plaintiff and are singling him out for prosecution because of his exercise of a fundamental right in representing and advocating for James Bolden and his witness David Martin Price.
The defendants are treating the plaintiff differently than other attorneys involved with aspects of James Bolden’s case because of an animosity toward the plaintiff’s constitutionally protected advocacy activities.
The defendants’ efforts to prosecute the plaintiff is deliberately based on the race of the plaintiff’s client James Bolden, the claims James Bolden has made against the City of Topeka ( only one of which is denied) and the race of James Bolden’s witnesses. (1) the plaintiff was singled out for prosecution under the KRPC for accusations of conduct required by the KRPC while the other attorneys and judges associated with James Bolden’s case and litigation surrounding James Bolden’s witnesses committed violations of the KRPC, Kansas Judicial Cannon of Ethics and federal and State criminal statutes protecting against obstruction of justice in the defendants effort to interfere with the administration of justice. (2) the defendants’ discriminatory selection was invidious, with the defendants Honorable G. JOESEPH PIERRON, JR., Honorable HENRY W. GREEN, Honorable LEE A. JOHNSON, and JONATHAN M. PARETSKY’s written complaint against the plaintiff accusing him of being mentally unstable and unfit to practice law and the defendant STANTON A. HAZLETT disparaged the plaintiff in a letter to the plaintiff unfavorably comparing the plaintiff with the City of Topeka prosecutor John Knoll. STANTON A. HAZLETT stated that the plaintiff had many serious violations of the KRPC where the city prosecutor John Knoll had not violated the KRPC for conduct complained of that resulted in the defendant FRANK D. DIEHL’s articulation of probable cause that John Knoll had violated the complainant’s civil rights by interfering in the administration of justice were more s based on the plaintiff’s exercise of his First Amendment rights.
the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights.")
To make out their claim that they were selectively prosecuted, Plaintiffs must show (1) that they were singled out for prosecution while other similarly situated groups were not for equivalent conduct; and (2) that the discriminatory selection was invidious and based on the exercise of their First Amendment rights. United States v. Amon, 669 F.2d 1351, 1356 & n. 6 (10th Cir.1981), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982).
C. Procedural Due Process
The defendants have violated and are seeking to further violate the plaintiff’s Occupation Liberty, the liberty to follow a trade, profession, or other calling protected by the due process clause encompassed by the Fourteenth Amendment and Actionable under 42 U.S.C. § 1983.
The defendants have attacked the plaintiff’s liberty interest in his profession by (1) disparaging the plaintiff’s good name and reputation by charging that he is incompetent, mentally unbalanced and unfit to practice law, (2) the defendants as state actors have deliberately used their office to impose a stigma on the plaintiff and seek to take his license or convict him for the purpose of depriving the plaintiff and foreclosing other opportunities and (3) the stigma created by the defendants has been published by the defendant STANTON A. HAZLETT to the plaintiff’s peers in the Topeka Bar and the defendant STANTON A. HAZLETT has given notice of his intent to formally publish the charges and any conviction.
The defendants repeatedly deprived the plaintiff of Shawnee District court and Kansas SRS records they were responsible for knowing the plaintiff was clearly entitled to have access to, both in representing James Bolden and his witness David Martin Price and in answering the charges of the defendants.
The defendants have used their power and offices to injure the plaintiff for raising appropriately raising Due Process and Equal Protection Concerns as he engaged in the protected activity of representing and advocating on behalf of James Bolden and David Martin Price and by every action against every witness and against each act of testimony, the defendants have made it clear they will continue to deny the plaintiff of Due Process and the opportunity to access records or put on unobstructed witness testimony relevant to the defense of any ethics prosecution by the defendants.
The defendants have not accorded the plaintiff and have communicated the intent to deprive the plaintiff of all the Due Process he is due.
D. Substantive Due Process
Plaintiffs claim finally that Defendants' actions were so arbitrary that they "shock the conscience" in contravention of substantive due process norms.
right to substantive due process" (which really means the right to a certain sphere of personal liberty free from government intrusion)
In order to prevail on a claim of selective prosecution, a defendant must show that he has been singled out for prosecution while others similarly situated generally have not been proceeded against for the type of conduct forming the basis of the charge against him. In addition, the defendant must prove that the government's selection of him for prosecution was invidious or in bad faith and was based on impermissible considerations such as . . . the desire to prevent the exercise of constitutional rights.
United States v. Furman, 31 F.3d 1034, 1037 (10th Cir. 1994) (quotations omitted) (alteration in original)
Where, as here, a selective prosecution claim is based on allegations of retaliation for the threatened exercise of the right of access to the courts, it is a claim "'closely intertwined with First Amendment interests.'" Gehl Group v. Koby, 63 F.3d 1528, 1538 (10th Cir. 1995) (quoting Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92, 94-95 (1972))
WHEREFORE, the United States prays that the Court enter an Order that:
1. Declares that the discriminatory practices of Defendants, as set forth above, violate the Fair Housing Act, as amended, 42 U.S.C. §§ 3601-3619;
2. Enjoins Defendants, their agents, employees, and successors, and all other persons in active concert or participation with any of them, from discriminating on the basis of familial status against any person in any aspect of the rental of a dwelling;
3. Awards such damages as would fully compensate each person aggrieved by defendants' discriminatory housing practices, including Thomas Mulligan and Susan Kalman, Tim and Amy Townsend, and Robert and Deborah Brown, and their minor children for the injuries caused by Defendants' discriminatory actions, pursuant to 42 U.S.C. §§ 3612(o)(3) and 3613(c);
4. Awards punitive damages to all persons aggrieved by defendants' discriminatory housing practices, including Thomas Mulligan and Susan Kalman, Tim and Amy Townsend, and Robert and Deborah Brown, and their minor children pursuant to 42 U.S.C. §§ 3612(o)(3) and 3613(c); and
5. Assesses a civil penalty against Defendants Melody Lakes and Delores Isenhart in an amount of money authorized by 42 U.S.C. § 3614(d)(1)(C), to vindicate the public interest.
The United States further prays for such additional relief as the interests of justice require.