Petition for Writ of Certiorari — Brian Edward Malnes, Petitioner v. City of Flagstaff, Arizona, et al.

No.

3hi Qe

'upreme (!Court of the Mutteb btateo

BRIAN EDWARD MALNES,

Petitioner,

V.

CITY OF FLAGSTAFF, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

BRIAN EDWARD MALNES

Pro Se

2157 W. Alaska Ave.

Flagstaff, Arizona 86001

928.774.4580

malnes@me.com

1

QUESTIONS PRESENTED

The following case gives this Court the opportunity to reinforce the fundamental value and premise

of the Fourth Amendment to the United States Constitution, which states: "The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized."

The questions presented are:

Whether law enforcement officials had probable cause to arrest the Petitioner (issuing a citation) for the crime of harassment under

Ariz. Rev. Stat. § 13-2921(A)(1) based on his

conduct.

Whether Ariz. Rev. Stat. § 13-2921(A)(1) is unconstitutionally vague or overbroad.

11

PARTIES TO THE PROCEEDINGS

Petitioner Brian Edward Malnes (Petitioner) was

the Plaintiff and the Appellant below.

Respondents the City of Flagstaff; Michelle D'Andrea; Robert Brown; Kevin Treadway; Bradley

Battaglia; Todd Bishop; Bill Burke; University of Louisiana at Lafayette; Christine Devine; Larry Zerangue;

Joey Sturm; Patricia Cottonham; Jennifer Vaught; Jordan Kellman; Jo Davis-McElligatt; Aaron Martin; John

Laudun; Shelley Ingram; Claiborne Rice; James MacDonald; Joseph Adriano; John A. Greene; Christine

Brasher; Joseph Savoie, were the Defendants and Appellees below.'

This Petition refers to the following parties as the "Arizona

Respondents": City of Flagstaff, Michelle D'Andrea, Robert

Brown, Kevin Treadway, Bradley Battaglia, Todd Bishop, and Bill

Burke.

It refers to the following parties as the "Louisiana Respondents": Christine Devine, Larry Zerangue, Joey Sturm, Patricia

Cottonham, Jennifer Vaught, Jordan Kellman, Jo DavisMcElligatt, Aaron Martin, John Laudun, Shelley Ingram,

Claiborne Rice, James McDonald, Joseph Adriano, John Greene,

Christine Brasher, and Joseph Savoie.

111

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................i

PARTIES TO THE PROCEEDINGS ...................ii

TABLE OF CONTENTS ......................................iii

TABLE OF AUTHORITIES.................................iv

PETITION FOR A WRIT OF CERTIORARI

1

OPINIONS BELOW .............................................

1

JURISDICTION...................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS..............................................................1

INTRODUCTION................................................2

STATEMENT OF THE CASE..............................5

REASONS FOR GRANTING THE PETITION

....

10

The Ninth Circuit's Decision Contravenes the

Decisions of This Court in Its Interpretation of

the Fourth Amendment....................................15

CONCLUSION.....................................................17

APPENDIX

Court of Appeals Denial for Rehearing......................la

Court of Appeals Order ..............................................3a

District Court Opinion ...............................................7a

lv

TABLE OF AUTHORITIES

Page

CASES

Atwater v. City of Lago Vista, 532 U.S. 318

(2001).........................................................................3

Brigham City v. Stuart, 547 U.S. 398 (2006)..............11

California v. Hodari D., 499 U.S. 621 (1991) ...............4

Cassettari v. Nev. Cty., Cal., 824 F.2d 735 (9th

Cir. 1987) .................................................................15

Collins v. Virginia, 584 U.S.

(2018) ............4, 11, 12

County of Riverside v. McLaughlin, 500 U.S. 44

(1991).........................................................................3

Exparte Burford, 7 U.S. (3 Cr.) 448 (1806) ..................2

Fortson v. L.A. City Attorney's Office, 852 F.3d

1190 (9th Cir. 2017).................................................15

Gerstein v. Pugh, 420 U.S. 103 (1975) ..........................3

Giordenello v. United States, 357 U.S. 480 (1958) ........3

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ............7, 14

Hayes v. Florida, 470 U.S. 811 (1985) ..........................4

Kentucky v. King, 563 U.S. 452 (2011)........................10

Lozman v. City of Riviera Beach, 583 U.S.

(2017).......................................................................16

Mincey v. Arizona, 437 U.S. 385 (1978) ......................11

Miranda v. Arizona, 384 U.S. 436 (1966) ...................16

Payton v. New York, 445 U.S. 573 (1980)......................4

Steagald v. United States, 451 U.S. 204 (1981)........3, 4

V

TABLE OF AUTHORITIES

Continued

-

Page

Terry v. Ohio, 392 U.S. 1 (1968)..........................4, 6, 11

United States v. Santana, 427 U.S. 38 (1976) ..............3

United States v. Watson, 423 U.S. 411 (1976)...............3

Yousefian v. City of Glendale, 779 F.3d 1010 (9th

Cir. 2015) .................................................................15

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV.........................................passim

STATUTES, REGULATIONS, AND RULES

34 C.F.R. § 99 ................................................2, 7, 13, 14

28 U.S.C. § 1254(1)........................................................1

28 U.S.C. § 1232g ..................................................13, 14

42 U.S.C. § 1983 ............................................2, 7, 15, 16

42 U.S.C. § 1985(3)................................2, 12, 14, 15, 16

A.R.S. § 13-2921 .................................................. 8, 9, 15

OTHER AUTHORITIES

Coke, Edward, Institutes of the Laws of England.

London: E. & R. Brooke, 1797...................................5

Stephen, James,A History Of The Criminal Law

Of England, London: Macmillan, 1883 ....................3

1

PETITION FOR A WRIT OF CERTIORARI

Brian Edward Malnes respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit in this

matter.

OPINIONS BELOW

The decision of the court of appeals, No. 16-15059

(9th Cir. February 5, 2018) is reprinted in the Appendix

(App. 3a-6a). The district court's opinion, No. CV-1508113-PCT-GMS (U.S. D. Ariz. Jan. 8, 2016), is reprinted at (App. 7a-21a).

JURISDICTION

The court of appeals entered its final judgment on

March 23, 2018. This Court has jurisdiction under 28

U.S.C. § 1254(1), which states: "By writ of certiorari

granted upon the petition of any party to any civil or

criminal case, before or after rendition of judgment or

decree."

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure

in their persons, houses, papers, and effects, against

2

unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Title 34, Code of Federal Regulations, Subtitle A,

Part 99. Family Educational Rights and Privacy.

Title 20, United States Code, Section 1232g, The

Family Education Rights and Privacy Act (FERPA).

Title 42, United States Code, Section 1983. Civil

action for deprivation of rights.

Title 42, United States Code, Section 1985. Conspiracy to interfere with civil rights.

INTRODUCTION

The Fourth Amendment to the U.S. Constitution

protects personal privacy, and every citizen's right to

be free from unreasonable government intrusion into

their persons, homes, businesses, and property. Specifically, arrests and other detentions fall under the purview of the Fourth Amendment:

"That the Fourth Amendment was intended to protect against arbitrary arrests as

well as against unreasonable searches was

early assumed by Chief Justice Marshall2 and

2

Exparte Burford, 7 U.S. (3 Cr.) 448 (1806).

3

is now established law.3 At common law, warrant-less arrests of persons who had committed a breach of the peace or a felony were

permitted,' and this history is reflected in the

fact that the Fourth Amendment is satisfied if

the arrest is made in a public place on probable cause, regardless of whether a warrant

has been obtained.' However,in order to effectuate an arrest in the home, absent consent or

Giordenello v. United States, 357 U.S. 480, 485-86 (1958);

United States v. Watson, 423 U.S. 411, 416-18 (1976); Payton v.

New York, 445 U.S. 573, 583-86 (1980); Steagald v. United States,

451 U.S. 204,211-13 (1981).

Stephen, James, A History Of The Criminal Law Of England. London: Macmillan, (1883). At common law warrantless arrest was also permissible for some misdemeanors not involving a

breach of the peace. See the lengthy historical treatment in Atwater v. City of Lago Vista, 532 U.S. 318,326-45 (2001).

United States v. Watson, 423 U.S. 411 (1976). See also

United States v. Santana, 427 U.S. 38 (1976) (sustaining warrantless arrest of suspect in her home when she was initially approached in her doorway and then retreated into house). However,

a suspect arrested on probable cause but without a warrant is entitled to a prompt, nonadversary hearing before a magistrate under procedures designed to provide a fair and reliable

determination of probable cause in order to keep the arrestee in

custody. Gerstein v. Pugh, 420 U.S. 103 (1975). A "prompt" hearing

now means a hearing that is administratively convenient. See

County of Riverside v. McLaughlin, 500 U.S. 44,56 (1991) (authorizing "as a general matter" detention for up to 48 hours without a

probable-cause hearing, after which time the burden shifts to the

government to demonstrate extraordinary circumstances justifying further detention).

4

exigent circumstances, police officers must

have a warrant.116 '

Because this case revolves around the definition of

several terms it is important to identify them in this

introduction. First, this Court has found in Collins v.

(2018), that: "Curtilage—'the

Virginia, 584 U.S.

area "immediately surrounding and associated with

the home"—is considered "part of the home itself for

Fourth Amendment purposes." Second, this Court

has found in California v. Hodari D., 499 U.S. 621

(1991) that: "To constitute a seizure of the person, just

as to constitute an arrest—the quintessential 'seizure

of the person' under Fourth Amendment jurisprudence—there must be either the application of physical force, however slight, or, where that is absent,

submission to an officer's 'show of authority' to restrain the subject's liberty." And finally, this Court has

found in Terry v. Ohio, 392 U.S. 1 (1968) that: "It is

quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to

the stationhouse and prosecution for crime—'arrests'

in traditional terminology. It must be recognized that,

Payton v. New York, 445 U.S. 573 (1980) (voiding state law

authorizing police to enter private residence without a warrant to

make an arrest); Steagald v. United States, 451 U.S. 204 (1981)

(officers with arrest warrant for A entered B's home without

search warrant and discovered incriminating evidence; violated

Fourth Amendment in absence of warrant to search the home);

Hayes v. Florida, 470 U.S. 811 (1985) (officers went to suspect's

home and took him to police station for fingerprinting).

Justia US Law, https://law.justia.com/constitution/us/

amendment-04104-arrests-and-other-detentions.html.

6

'

5

whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that

person."

STATEMENT OF THE CASE

1. The Petitioner was arrested at his home by

the Flagstaff police on March 22, 2014, in violation of

his Fourth Amendment right, which in part enforces

the Castle doctrine.9 The Fourth Amendment states

that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things

to be seized." When the Flagstaff police came to arrest

the Petitioner, they had no warrant, as no judge was

consulted. The Fourth Amendment is clear that the Petitioner's arrest was not only un-Constitutional, but

the arresting officer (Battaglia) did not issue a Miranda Warning, however in Battaglia's supplement

notes he affirmed he had served the Petitioner

"Rights," which creates an inconsistency in the police

report. The Respondents argued in their initial answer

Actual "seizure" of Petitioner occurred on his front porch,

which is the curtilage of his home.

"For a man's house is his castle, et domus sua cuique est

tutissimum refugium [and each man's home is his safest refuge]."

Coke, Edward, "Institutes of the Laws of England." London: E. &

R. Brooke, 1797.

that the "[Respondents] deny that [Petitioner] was arrested in that he was neither placed in handcuffs, nor

taken to or booked into jail for the charge, but rather

was provided a citation at his home and given a day to

appear in court,"° (this is also contradicted by the

[Louisiana Respondent's] filing (Doc. #74), which

states: "In answering Section 1 of the complaint, the

[Respondents] admit that there was an arrest warrant

issued for [Petitioner] on March 23, 2014 based on

charges of harassment filed by the University of Louisiana Police Department"), by denying that an arrest

was made clearly is not correct given the arguments

provided, to include the admissionofBattaglia who actually made the arrest. So the evidence demonstrates

that because a warrant was not obtained, the Flagstaff

Police violated the Petitioner's Fourth Amendment

right as explicitly stated in the U.S. Constitution.

2. On March 22, 2014, Major Zerangue contacted

the Flagstaff police department and sent them information about the Petitioner that was protected under

the Family Educational Rights and Privacy Act

As stated in the "Introduction," this Court found in Terry

v. Ohio, "It is quite plain that the Fourth Amendment governs 'sei10

zures' of the person which do not eventuate in a trip to the stationhouse and prosecution for crime—'arrests' in traditional

terminology. It must be recognized that, whenever a police officer

accosts an individual and restrains his freedom to walk away, he

has 'seized' that person."

This is a fabrication as no arrest warrant was ever issued

in this case. This alone needs to be examined as a direct contradiction of the facts was clearly presented before Judge G. Murray

Snow, and thus a clear argument is made for a Fourth Amendment violation by the Flagstaff police.

7

(FERPA), which is a violation of the Petitioner's Civil

Rights. According to FERPA, Zerangue could only provide the Flagstaff police with information about the

Petitioner that conforms to a "judicial order or lawfully

issued subpoena," (34 C.F.R. § 99.3 1(a)(9)(i),'3 and so

it was a violation of the Petitioner's FERPA 14 rights to

send documents via e-mail about a registered

12 Again, no judicial authority was involved in the Peti-

tioner's arrest.

13 34 C.F.R.

§ 99.3 1(a)(9)(i) states: "Under what condition is

prior consent not required to disclose information? An educational

agency or institution may disclose personally identifiable information from an educational record of a student without the consent required by § 99.30 if the disclosure meets one or more of the

following conditions: The disclosure is to comply with a judicial

order or lawfully issued subpoena."

14 This Court found in Gonzaga Univ. v. Doe, 536 U.S. 273

(2002), that: "[Tihe relevant FERPA provisions create no personal

rights to enforce under § 1983." However, the provisions of this

case and that of Gonzaga are completely different and resulted in

the "seizure" of the Petitioner in violation of his Fourth Amendment rights. In his dissention of Gonzaga, Justice Stevens states:

"Since FERPA was enacted in 1974, all of the Federal Courts of

Appeals expressly deciding the question have concluded that

FERPA creates federal rights enforceable under § 1983. Nearly

all other federal and state courts reaching the issue agree with

these Circuits. Congress has not overruled these decisions by

amending FERPA to expressly preclude recourse to § 1983. And

yet, the Court departs from over a quarter century of settled law

in concluding that FERPA creates no enforceable rights. Perhaps

more pernicious than its disturbing of the settled status of FERPA

rights, though, is the Court's novel use of our implied right of action cases in determining whether a federal right exists for § 1983

purposes."

student.'5 Thus, all communications between Zerangue

and the Flagstaff police were a violation of FERPA. 16

However, the Petitioner does not deny making phone

calls and e-mails, on the contrary, when he spoke to

both Zerangue and the Flagstaff police he agreed to

stop phoning, which he immediately did. The Petitioner did not agree to stop his e-mails. But it is critical

to see that the Petitioner's and Zerangue's narrative,

as well as Battaglia's narrative show that the only

e-mails sent after the Petitioner was asked to stop his

communication was to the U.S. Government. The result of these e-mails caused investigations by the Department of Education, Office of Civil Rights, and the

Family Policy Compliance Office. To say that these emails are harassment defies logic, it is initially the

same as a man being beaten with a rock begging for

the beating to stop, and then being told his begging for

mercy is harassment. Thus, the very idea that "harassment,"7 continued cannot be argued as the phone calls

15 The Louisiana Respondents sent over 50 pages of information from the Petitioner's education file in clear violation of

FERPA.

16 It is important to note that all of the phone calls made by

the Petitioner to the listed Respondents were to phone numbers

within the City of Lafayette, Louisiana and not to the University

of Louisiana at Lafayette. The fact that the University of Louisiana at Lafayette police made the report is also a clear violation of

FERPA. Why did the Louisiana Respondents report to the Campus Police and not the Municipal police?

17 Every State varies in how they define criminal harassment. In Arizona, A.R.S. § 13-2921(A)(1) states: "A person commits harassment if, with intent to harass or with knowledge that

the person is harassing another person, the person: Anonymously

or otherwise communicates or causes a communication with

ended when the Petitioner was asked, prior to his arrest.

3. The Petitioner had already finished all of his

course work for his Ph.D.; all that was left was his comprehensive exams, and the presentation of his dissertation. However, the University of Louisiana at

Lafayette and the listed Louisiana Respondents who

work for the University, clearly conspired to fail the Petitioner, and when he complained (e-mails in question,

and phone calls), no-one would talk with him at the

University, or send him the corrected exams18 that had

been requested, which is very frustrating and led to the

number of calls made by the Petitioner. But it is important to identify that in no way were any threats of

violence given at any time by the Petitioner. In fact, the

another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses." An examination would reveal that Ariz. Rev. Stat. § 13-2921(D) states:

"This section does not apply to an otherwise lawful demonstration, assembly or picketing." The Petitioner was arrested after he

"cc'd" the listed Respondents on his e-mailed complaint to the Department of Justice, Office of Civil Rights. This act is a lawful act

of demonstration to those the Petitioner e-mailed. In addition,

A.R.S. § 13-2921(A)(2) contains the language: "after being asked

to desist." The Petitioner stopped his direct e-mails to the listed

Appellees after being "asked to desist."

18 The University of Louisiana English Department (to include the listed Louisiana Respondents) failed the Comprehensive Exams that the Petitioner discusses in the e-mails; however,

several independent English Professors from three Universities

conclude that the majority of the exams demonstrate knowledge

of the subjects questioned. Naturally, a comparison would have to

be done between the Petitioner's exams and other students over a

multiple-year period, which could only be possible via subpoena.

10

University is over a thousand miles from where the Petitioner was calling from, and so any inference that a

threat, if one were actually given, does not constitute a

crime, and if one was committed it is outrageous that

the Petitioner was arrested for it.

REASONS FOR GRANTING THE PETITION

"What Does the Fourth Amendment Mean? The

Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures

by the government. The Fourth Amendment, however,

is not a guarantee against all searches and seizures,

but only those that are deemed unreasonable under

the law.

Whether a particular type of search is considered

reasonable in the eyes of the law, is determined by balancing two important interests. On one side of the

scale is the intrusion on an individual's Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety."9

This Court held in Kentucky v. King, 563 U.S. 452

(2011) that: "The Fourth Amendment expressly imposes two requirements: All searches and seizures

must be reasonable; and a warrant may not be issued

unless probable cause is properly established and the

United States Courts. http ://www.us courts.gov/aboutfederal-courts/educational-resources/about-educational-outreaChl

activity-resources/what-does-O.

19

11

scope of the authorized search is set out with particularity. Although "searches and seizures inside a home

without a warrant are presumptively unreasonable,"

Brigham City v. Stuart, 547 U.S. 398, 403 (2006), this

presumption may be overcome when "the exigencies

of the situation' make the needs of law enforcement so

compelling that [a] warrantless search is objectively

reasonable under the Fourth Amendment," Mincey v.

Arizona, 437 U.S. 385, 394 (1978).

The Petitioner was arrested ("seized" )20 on his

front porch (his home)" without a warrant for a misdemeanor that occurred in another state. There was no

"exigencies of the situation," compelling the listed Respondents to execute a warrantless seizure of the Petitioner. As such, the Respondents, without doubt

violated the Fourth Amendment rights of the Petitioner, as "searches and seizures inside a home without a warrant are presumptively unreasonable,"

Brigham City v. Stuart. Additionally, this Court held in

Payton v. New York, 445 U.S. 573 (1980): "The physical

entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed. To be

arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the

According to this Court's findings in Terry v. Ohio: "It is

quite plain that the Fourth Amendment governs 'seizures' of the

person which do not eventuate in a trip to the stationhouse and

prosecution for crime—'arrests' in traditional terminology"

21

This Court has found in Collins v. Virginia that: "Curtilage—'the area "immediately surrounding and associated with

the home"—is considered "part of the home itself for Fourth

Amendment purposes."

20

12

sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished

under statutory authority and when probable cause is

present. In terms that apply equally to seizures of

property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the

house.22 Absent exigent circumstances, that threshold

may not reasonably be crossed without a warrant."

What brought the Flagstaff Respondents to egregiously violate the Petitioner's Fourth Amendment

rights is also a reason to grant this Petition. The evidence presented to the lower courts in this case demonstrates that the Louisiana Respondents conspired

together via e-mail communications, submitted to the

lower courts, to have the Petitioner arrested on a misdemeanor charge over a thousand miles away for non

threatening e-mails requesting information about his

Ph.D. comprehensive exams. The Petitioner sued the

Louisiana Respondents under 42 U.S. Code § 1985(3),

which states: "[hf one or more persons engaged therein

do, or cause to be done, any act in furtherance of the

object of such conspiracy, whereby another is injured

in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United

States, the party so injured or deprived may have an

action for the recovery of damages occasioned by such

It is critical to include the curtilage of the home to this definition of the Fourth Amendment protections. See Collins v. Virginia.

22

13

injury or deprivation, against any one or more of the

conspirators."

The Louisiana Respondents have argued that

bringing truthful information to the attention of law

enforcement officials does not violate the Respondents'

constitutional rights. However, as stated above the

Louisiana Respondents are all employees of the University of Louisiana at Lafayette, and thus, must abide

by FERPA, 20 U.S.C. § 1232g, but must also abide by

34 C.F.R. § 99, the purpose of which is stated in 34

C.F.R. § 99.2, "The purpose of this part is to set out requirements for the protection of privacy of parents and

students under section 444 of the General Education

Provisions Act [FERPA], as amended." But it is critical

to see that 34 C.F.R. § 99, also accords and protects

rights, that must be viewed as Constitutional. According to 34 C.F.R. § 99.5(a)(1):23 "When a student becomes

an eligible student, the rights accorded to, and consent

required of, parents under this part transfer from the

parents to the student." And one of those rights is

found at 34 C.F.R. § 99.31(a)(9)(i): "Under what condition is prior consent not required to disclose information? An educational agency or institution may

disclose personally identifiable information from an

educational record of a student without the consent required by § 99.30 if the disclosure meets one or more of

the following conditions: The disclosure is to comply

with a judicial order or lawfully issued subpoena." And

thus, the Louisiana Respondents could only send the

23

This section is titled, "What are the rights of students?"

14

Flagstaff Respondents the 50+ pages from the Petitioner's educational file "with a judicial order or lawfully issued subpoena."

In addition, the Louisiana Respondents did not report this "harassment" to the police who have jurisdiction, the Lafayette police, as the phone calls were to

private residences outside of the jurisdiction of the

University of Louisiana at Lafayette campus police.

Because the Louisiana Respondents chose to conspire

together as faculty and staff of the University of Louisiana at Lafayette, they have violated the rights conferred by 34 C.F.R. § 99.31(a)(9)(i). This Court has held

in Gonzaga v. Doe: "There is no question that FERPA's

confidentiality provisions create no rights enforceable

under § 1983.24 The provisions entirely lack the sort of

individually focused rights-creating language that is

critical. FERPA's provisions speak only to the Secretary, directing that "[n] o funds shall be made available"

to any "educational. institution" which has a prohibited "policy or practice," § 1232g(b). However, the language of 34 C.F.R. § 99 is clear and focused in its

"rights-creating language." Thus, Gonzaga v. Doe does

not cover the violations of the Petitioner's rights in this

case. The Louisiana Respondents were not free to bring

truthful information to the attention of law enforcement officials as it does clearly violate the Respondents' constitutional rights as stated in 34 C.F.R.

§ 99.31(a)(9)(i). The only clear conclusion is that the

.

.

It is clearly stated above that the Petitioner is filing a 42

U.S. Code § 1985(3) suit against the Respondents. Nowhere in

Gonzaga v. Doe is conspiracy mentioned.

24

15

Louisiana Respondents conspired to violate the Petitioner's civil rights and thus can viably be sued under

42 U.S. Code § 1985(3).

The Ninth Circuit's Decision Contravenes

the Decisions of This Court in Its Interpretation of the Fourth Amendment.

The Ninth Circuit ruled: "[Petitioner's] claims for

false arrest and malicious prosecution pursuant to 42

U.S.C. § 1983 fail because there was probable cause to

arrest him for harassment under Ariz. Rev. Stat. Section 13-2921. Fortson v. L.A. City Attorney's Office, 852

F.3d 1190, 1194 (9th Cir. 2017) (citations omitted); see

also Youseflan v. City of Glendale, 779 F.3d 1010, 1014

(9th Cir. 2015) (citations omitted). "The insufficiency of

[his] allegations to support a [] 1983 violation [further] precludes a conspiracy claim [under § 19851 predicated [on] [those] same allegations." Cassettari v. Nev.

Cty., Cal., 824 F.2d 735, 739 (9th Cir. 1987) (citation

omitted)" (App. 4a-5a).

The Ninth Circuit cites Fortson v. L.A. City Attorney's Office, which states: "The panel rejected plaintiff's claims that he was falsely arrested and

maliciously prosecuted. The panel concluded that since

the record reflected that plaintiff's arrest and prosecution were based on probable cause that he possessed

the weapons unlawfully, he necessarily could not be

granted relief on these claims. The panel further rejected plaintiff's claims that his Fifth and Fourteenth

Amendment rights were violated because he was never

16

read a warning regarding his rights per Miranda v. Arizona [384 U.S. 436 (1966)]." However, unlawful possession of a firearm is often a felony while the case before

this Court involves a misdemeanor. Additionally, this

case is in regards the Fourth Amendment, which was

clearly violated by the Respondents. At no time did the

Ninth Circuit mention the Fourth Amendment. The

Ninth Circuit does mention "probable cause," as reason

for the violations of the Petitioner's Fourth Amendment rights. This Court found in Lozman v. City of Riv(2017) that: "This case

iera Beach, 583 U.S.

requires the Court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating

against a person for having exercised the right to free

speech." Clearly, the Petitioner has a right to free

speech, however, the Ninth Circuit viewed the Petitioner's free speech as probable cause for his arrest.

-

The Ninth Circuit also cites Yousefian v. City of

Glendale, which states: "As the district court correctly

noted, municipalities cannot be held liable when the

individual police officer has inflicted no constitutional

injury." However, it has clearly been demonstrated

above that the listed Flagstaff Respondents knowingly,

and willfully violated the Petitioner's Fourth Amendment right. The only correct conclusion is that the

Flagstaff Respondents are guilty of violating the Petitioner's Fourth Amendment rights and are thus eligible to be sued under 42 U.S. Code § 1983, in addition to

42 U.S. Code § 1985(3).

IVA

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

BRL6,N EDWARD MALNES

Pro Se

2157 W. Alaska Ave.

Flagstaff, Arizona 86001

928.774.4580

malnes@me.com