Opinion
CIVIL 1:16-civ-07075(VSB) (OTW)
09-29-2022
MOUSSA DIARRA, Plaintiff, v. CITY OF NEW YORK, Defendant.
KISSINGER N. SIBANDA, ESQ., Attorney for the Plaintiff
KISSINGER N. SIBANDA, ESQ., Attorney for the Plaintiff
LETTER MOTION: REQUEST TO SHARE COPIES OF SEALED DOCUMENTS, WITH NATIONAL ACTION NETWORK FIELD DIRECTOR DEREK PERKINS, IN PERSON. (UNOPPOSSED)
VERNON S. BRODERICK U.S.D.J.
Background:
On March 26th, 2021, the field coordinator Derek Perkins sent me an email requesting to see copies of the sealed photos of the victim in the matter 1-16-cv- 07075 (VSB). See, Exhibit - A: email request. The case, 1-16-cv-07075 (VSB)(OTW), its decision, subsequent appeals and the way it was handled is now subject of an investigation by the Second Circuit judicial committee, as well as being subject to a pending Second Notice of Claim, alleging 1-16-cv-07075 (VSB)(OTW) was determined by favouritism and corruption. See, Exhibit - B - Notice of claim.
National Action Network is a well established organization which deals with Civil rights advocacy. Headed by the Rev. Al Sharpton, NAN is accredited and accepted by most objective people as a bonafide civil rights organization in the country, with a historic record of successfully advocating for people's constitutional rights. Contemporaneous with this motion is a request to submit a letter motion which exceeds three pages.
See, Abner Louimar, Mamadou Diallo, Sean Bell and Eleanor Bumpers matters.
Need:
The need to see evidence before advocating on a matter, for any civil rights organization, is a relevant and legitimate step for any reputable civil rights organization, here NAN. See, argument infra.
NAN doe snot have a second.
This letter motion having reached out to New York Law department on April 1st, 2021 to see if it was opposed is unopposed. This motion is not to unseal but to share with Derek Perkins, the National Action Network field director a copy of photos which were central to Mr. Diarra's false arrest for “circumcision of genitalia.”
Argument:
(1) Mr. Diarra has a right to evidence held in Chambers under Equal Protection Law:
Pursuant to the Fourteenth Amendment's Equal Protection clause, stating that:
…No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Mr. Diarra has a right to obtain and adduce evidence in proceedings to which he is a party as an extension of his right to equal protection. Here, NAN wishes to advocate for Mr. Diarra, this is a valid public and advocacy reason. Any evidence that has a tendency to properly help in asserting his equal protection should be released for this purposes only. See generally, Jencks v. United States, 353 U.S. 657 (1957); Giglio v. United States, 405 U.S. 150 (1972); and Brady v. Maryland, 373 U.S. 83 (1963).
Here, Mr. Diarra is requesting to share copies of the photos with a reputable Civil Rights Organization (NAN) before NAN engages in public advocacy on his behalf. Mr. Diarra has a right to this exculpatory evidence for purposes and the nature of this advocacy. Id.
The photos of the victim are exculpatory and show that Mr. Diarra, arrested for “cutting clitoris” was falsely arrested as that never happened per photos. As such they fall within the broader holding of Brady; that a person has a right to exculpatory evidence held by others.
(2) Mr. Diarra Has a Substantive right (right to liberty) in These Proceedings Under Substantive Law:
Furthermore, pursuant to United States v. Carolene Products Company, 304 U.S. 144 (1938) (see footnote 4); stating the limits and process for substantive due process. The taking of the right to present evidence, should comply with Carolene. The legal reasons for refusal of evidence from a branch of government, here Chambers, to give evidence pertinent for Mr. Diarra's advocacy should be clearly stated as to the necessity of that denial, given that these photos are relevant to a rebuttal of a false arrest for “genital mutilation” in the public space by NAN.
Mr. Diarra's right to present evidence in his false arrest to NAN.
The affirmation of the District Court's order by the Second Circuit is not binding precedent and has little or no jurisprudential value, depending on the District judge's interpretation - rendering the District Court's order in the first Diarra matter non-binding precedent. By its nature, this order is subject to a weaker standard of reversal should the summary order come under review by a different panel of the Second Circuit or a different District judge.
Photos of Mrs. Diarra were previously sealed by this office. See, sealing order - Exhibit C: sealing order.
The photos are relevant under FRE 401 because they show that no rape kit was ever made at the time of the actual arrest / incident - no photos of Mrs. Diarra were taken before the arrest - instead photos showing, Mrs. Diarra's healthy genitalia were then taken four-five months later. However, Mr. Diarra was arrested for genital cutting. This fact is necessary for the advocacy work of Al Sharpton's Action Network, who deal in facts not innuendo.
If this request is ignored, Mr. Diarra will be proceeding, accordingly, with a writ of mandamus. However, should this motion be granted, then defendant counsel will organise a meeting with Mr. Derek Perkins to show him a copy of photos, in person or via zoom. All copies will remain with defendant counsel as per sealing order and no codes will be duplicated for NAN.
To: BY ECF
Honorable Vernon S. Broderick United States District Court Southern District of New York 40 Foley Square, Room 415 New York, NY 10007
VIA ECF
Cooperation Counsel - James Johnson New York Law Department Valerie E. Smith Esq (Assigned) Attorney for Defendant 100 Church St. New York, NY 10007
CC: COLLEN McMAHON
United States District Court Southern District of New York 40 Foley Square, Room 415 New York, NY 10007
Chief judge SDNY.