IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
RICKEY DALE HOLTSCLAW (Pro Se)
MAYOR SANDY SANDERS, City of Fort Smith, Arkansas
CHIEF OF POLICE KEVIN LINDSEY, City of Fort Smith, Arkansas
THE CITY OF FORT SMITH, ARKANSAS
MAYOR LIONELD JORDAN, City of Fayetteville, Arkansas
CHIEF OF POLICE GREG TABOR, City of Fayetteville, Arkansas
THE CITY OF FAYETTEVILLE, ARKANSAS
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
The Honorable Chief Justice P.K. Holmes, III
PETITION FOR REHEARING EN BANC
Rickey Dale Holtsclaw, Appellant, Pro Se
PO Box 315
Uniontown, Arkansas 72955
Plaintiff-Appellant Holtsclaw requests an En Banc review of Holtsclaw v. Sanders et al (2016), Case #16-3402, because the panel decision conflicts with decisions rendered by the United States Supreme Court and Eighth Circuit to wit:
Pargo v. Elliott, 894 F. Supp. 1243 (S.D. Iowa 1995) (Includes 8th Circuit Quote)
Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982)
Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 38 S. Ct. 495 (1918)
Thomas v. Board of Trustees, 515 F. Supp. 280
Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073 (2000)
Consideration by the full court is therefore necessary to secure and maintain uniformity of the Court’s decisions.
Decision by the Eight Circuit
On Tuesday, 21 February 2017, Eighth Circuit Court of Appeals Justices Smith, Bowman and Benton affirmed the decision of Chief Justice P.K. Holmes, District Federal Court for the Western District of Arkansas, to dismiss, with prejudice, the civil action of Holtsclaw v. Sanders et al (2016), Case #16-3402.
The Eighth-Circuit panel, as a basis for its decision, opted to evaluate the cause of action articulated in Holtsclaw v. Sanders (2016) by the standards set forth in a Constitutional review involving an incarcerated felon in Phillips v. Norris, 320 F.3d 844 (8th Cir. 2003) who was seeking redress for alleged “due process” and “equal protection” violations.
The Eighth Circuit, in affirming the District Courts dismissal with prejudice relevant to Holtsclaw v. Sanders et al (2016), stated that Holtsclaw “failed to state an equal-protection claim” … “…concluding that an equal protection failed where the plaintiff did not allege membership in a protected class or purposeful discrimination.”
The Eighth Circuit Court, as a result of the positional standards used to arrive at its decision to affirm, has agreed to hold Holtsclaw to a standard that the District Court nor the counsel for the Defendants nor the Supreme Court require of a plaintiff seeking redress for a violation of Fourteenth Amendment equal protection via U.S. Code § 1983.
The Eighth Circuit Court, by suggesting Holtsclaw is not a “protected class” person or that Holtsclaw failed to “allege” protected class status based solely on the fact that he is a heterosexual Caucasian male, born and raised in America, a current citizen of the United States and a citizen of the State of Arkansas; because the Plaintiff, physically, morally, ethically and logistically does not fit neatly within an arbitrary societal construct defining which segment of American society deserves “special protection” and which segment of American society should be denied the protections of the United States Constitution and U.S. Code § 1983 is wholly unfair, unconstitutional and violates the very premise upon which U.S. Code § 1983 was constructed and enacted. Holtsclaw suggests that the decision by the Eighth Circuit to affirm is, for all intent and purpose, discriminatory and unfair.
Holtsclaw argues that stare decisis requires the Court evaluate the “protected class” status of a Plaintiff in U.S. Code § 1983 litigation via a consideration of the context articulated within the cause of action as opposed to requiring said Plaintiff define in specific terms why or for what reasons said Plaintiff is of a “protected class” status. Fact is, U.S. Code § 1983 and the Fourteenth Amendment require no such “protected class” perquisite for citizens seeking redress for harm done by those acting under the color of law. The “protected class” moniker, when discussed in civil actions accepted for Supreme Court review, are overwhelmingly focused on race-based, gender-based, employment-based, EEOC-based disputes, but Holtsclaw v. Sanders et al does not fit neatly into the well-defined protective box of race, religion, sex, gender-identification or nationality, but Holtsclaw v. Sanders, as a unique case of first impressions, focuses wholly upon blatant government corruption thereby focusing on the much more relevant aspects of protected class e.g. the protections bestowed upon a Plaintiff as a Citizen of the United States and as a Citizen of the State of Arkansas where the rule of law is the bases or standard for evaluation.
The Courts refusal to recognize the unique cause of action within Holtsclaw v. Sanders et al has, for all intent and purpose, denied Holtsclaw the protective intent of the Fourteenth Amendment and the specific, unique, protections provided only by U.S. Code § 1983; that is, protection from arbitrary, illegal, conspiratorial conduct by representatives of the government acting under the color of law. Suggesting that Holtsclaw is not a “protected class” citizen worthy of U.S. Code § 1983 protections or that Holtsclaw has failed to claim such protections within the cause of action is simply unfair, discriminatory and incorrect.
Issue One – Discussion
In Pargo v. Elliott, 894 F. Supp. 1243 (S.D. Iowa 1995), the Supreme Court stipulates that the “Equal Protection Clause of the United States Constitution requires the states to treat similarly situated persons in a substantially equivalent manner.” The Court in Pargo continues “… the initial inquiry in analyzing an equal protection claim is to determine whether a person is similarly situated to those persons who allegedly receive favorable treatment.” “In a case involving an inmate gender discrimination claim, the Eighth Circuit held that even if classes are found not to be similarly situated, a court still must apply a rational basis analysis.”
Holtsclaw argues that it is the “State Law” providing a foundation for the cause of action in Holtsclaw v. Sanders et al; therefore, Holtsclaw is of a “similarly situated” classification and must be considered a member of a “protected class” seeing that Holtsclaw does, as does every other citizen in the State of Arkansas (as are the members of the Loud Motorcycle Culture involved in Holtsclaw v. Sanders et al), possess a reasonable expectation of protection via enforcement of Arkansas’ State Laws; Holtsclaw contends that as a citizen of the State of Arkansas he, like every other “similarly situated” citizen of the State – including the Loud Motorcycle Culture in Arkansas, has entered into a binding civil-reciprocal contractual agreement with the State via the Arkansas State Constitution of 1874; therefore, this unique case of first impressions recognizes Holtsclaw as a “similarly situated” and “protected” person for purposes of State Law as a foundation for U.S. Code § 1983 civil litigation, specifically – “equal protection” of the law relevant to the issues articulated within Holtsclaw v. Sanders et al.
Arkansas State Constitution of 1874
Article 2, § 1. Source of power…
All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same, in such manner as they may think proper.
The disparity or unequal application of the law between similarly situated persons relevant to Holtsclaw v. Sanders et al is clearly articulated in the reiteration/discussion of the cause of action beginning on page-10 of this petition for En Banc review document.
In Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982), the Court emphasizes the fact that Fourteenth-Amendment “equal protections” are available to “any person within its jurisdiction” and the protections are “universal” and applicable to “all persons within the territorial jurisdiction, without regard to any difference of race, of color, or of nationality.” The Court, in Plyler v. Doe, continues…
“For purposes of the Fourteenth Amendment’s equal protection clause which prohibits states from denying equal protection to “any person within its jurisdiction,” undocumented aliens, despite their immigration status, are persons “within the jurisdiction” of a state entitled to the equal protection of its law, use of the phrase “within its jurisdiction” confirming that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a state, and reaches into every corner of a state’s territory, and that until he leaves the jurisdiction, either voluntarily or involuntarily in accordance with the Constitution and laws of the United States, a person is entitled to the equal protection of the laws that a state may choose to establish.”
Considering Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 38 S. Ct. 495 (1918) and as cited in Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073 (2000), the Court clearly articulates that “equal protection,” the very purpose of same, is to “secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.”
The “protected class” moniker, when discussed in civil actions accepted for Supreme Court review, are overwhelmingly focused on race-based, gender-based, employment-based, EEOC-based disputes, but U.S. Code § 1983 litigation is also inclusive of “citizenship” as a “protected class” deserving of protection via U.S. Code § 1983 litigation, and is especially relevant in litigation involving municipal government corruption (under the color of law), non-protection issue based litigation culminating in “equal protection” claims where State Law is a foundational element in that litigation. Holtsclaw has clearly articulated the parameters necessary for defining the Plaintiff as a “protected class,” “similarly situated” person within the cause of action relevant to Holtsclaw v. Sanders et al.
Issue Two – Discussion
The burden of “purposeful discrimination” (mens rea) as noted in the Appellate Courts decision to affirm may be more accurately defined as an “impermissible discriminatory purpose.” In Thomas v. Board of Trustees, 515 F. Supp. 280, the Court states… “A plaintiff’s 42 U.S.C.S. § 1981 and 42 U.S.C.S. § 1983 actions require him to prove by a preponderance of the evidence that defendants actions have been motivated by an impermissible discriminatory purpose.”
Irrespective of the standard used, “purposeful discrimination” or “impermissible discriminatory purpose,” Holtsclaw has clearly articulated the discriminatory practices of the Defendants in Holtsclaw v. Sanders et al in the cause of action within Holtsclaw’s complaint document and in a more succinct manner within the Appellant Brief document, Pages 5-6. Note the following intentional or “purposeful discrimination” and “impermissible discriminatory purpose” employed by the Defendants against Holtsclaw as a “similarly situated” person when compared to the rights and privileges of the Loud Motorcycle Culture in Holtsclaw v. Sanders et al.
Holtsclaw argues that the Defendants, while involved in a proprietary function solely for the financial benefit of the municipal coffer and political expediency, recklessly and with callous disregard of the known dangers associated with the antisocial conduct of the Loud Motorcycle Culture, conspired to usurp/disregard the authority and protective intent of well-established Federal Law and Arkansas Motor Vehicle and Traffic Law, § 27-37-601, enacted specifically by the Arkansas General Assembly for the protection of Holtsclaw’s health and welfare as well as Holtsclaw’s quality of life.
Holtsclaw argues that he was denied equal protection of the law resulting from the Defendants enactment of a policy or custom of nonfeasance, non-enforcement, non-control, which unconstitutionally and unfairly favored the antisocial, illegal, intrusively dangerous behavior of the Loud Motorcycle Culture in attendance in overwhelming numbers at the motorcycle rallies identified within the Complaint Document while discriminating against and denying Holtsclaw the protection provided by the well-established law to wit Arkansas § 27-37-601 that clearly and articulately prohibits the illegal, physiologically dangerous, antisocial conduct of the Loud Motorcycle Community.
As a result of this inequality of the application of the law, Holtsclaw and his family were repetitively “audibly assaulted” and for all intent and purpose “bullied” by the Loud Motorcycle Community exiting the motorcycle rallies in mass. This scenario has transpired on four different occasions relevant to the Fayetteville rally and once relevant to the 1st annual Fort Smith rally in 2015. The Fort Smith and Fayetteville motorcycle rallies are annual events and the intrusive, illegal, dangerous antisocial conduct of the Loud Motorcycle Community is expected to increase as their attendance numbers are correspondingly expected to increase with each passing year. The Equal Protection Clause therefore demands that the government “apply its laws in a rational and nonarbitrary way; the unequal application of a law, fair on its face, may act as a denial of equal protection.” Pryor-El v. Kelly, 892 F. Supp. 261 (D.D.C. 1995); Brandon v. District of Columbia Bd. of Parole, 262 U.S. App. D.C. 236, 823 F.2d 644, 650 (D.C. Cir. 1987) (citing Yick Wo, 118 U.S. at 373-74; Zeigler v. Jackson, 639 F.2d 776, 779 (5th Cir. 1981))).
As a result of the Defendants calloused and willful disregard for the protective intent of the well-established law in conjunction with providing the Loud Motorcycle Community police protection privileges, Holtsclaw suffered the physiological and psychological injurious manifestations of audible assault resulting from repetitive exposure to illegally equipped, illegally loud motorcycles exiting these motorcycles rallies in mass; illegally modified motorcycles emitting four-to-eight times (logarithmic scale), approximately 110 dB(A)+, the motorcycle noise emissions of 80 dB(A) as restricted by the United States Environmental Protection Agency via the Code of Federal Regulations for street production motorcycles (1986 year model forward). The US EPA 80 dB(A) “total” motorcycle noise emissions restriction being mandated as the “minimum” safe level of exposure-protection for the general public. It’s important to note that Arkansas § 27-37-601 mirrors or duplicates the protective intent and concerns of the Federal Law/Code of Federal Regulations relevant to motorcycle exhaust emissions protection limitations for the general public by requiring every motor vehicle operated on the roadways of Arkansas be equipped with the quiet “factory-installed muffler.” Ultimately, the violation of Holtsclaw’s Fourteenth Amendment Right to “equal protection of the law,” via the tortious, violative decision making on the part of the Defendants, manifest in a violation of Title 42, U.S. Code § 1983
Holtsclaw v. Sanders et al is a unique case of first impressions involving government corruption, law enforcement nonfeasance, conspiratorial behavior between municipal mayors and law enforcement with full intent to usurp the protective intent of the well-established law for financial gain and political expediency. Holtsclaw v. Sanders et al involves not only the concerns of Plaintiff-Appellant Holtsclaw, but in the balance weighs the daily quality of life, the health and welfare of many millions of vehicular noise beleaguered American Citizens.
“The worst evil of disregard for some law is that it brings disrespect for all laws.” (President of the United States, Herbert Hoover)
Respectfully submitted on 03 March 2017,
Rickey Dale Holtsclaw, Appellant-Plaintiff – Pro Se
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