John Smith's  Surreply in Opposition to  Defendant Boston Police Officers' Reply to Smith's  Local Rule 56.1 Statement of Facts in Support of His Opposition to  Defendant Officers'  Motion for Summary Judgment Please note that the point of a SURREPLY is to counter each of the opposition's  points. (Smith's First Action  Under §1983 and for Malicious Prosecution et cetera) (in both .html and .pdf files)


 

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: 01-CV-10890-RBC François Gouin, Jr. Plaintiff v. Dori C. Gouin, Esq., in her professional and individual capacities, Todd D. Posey, William R. Toner, in his official and individual capacities, Edward McMahon, in his official and individual capacities, City of Boston, Paul F. Evans, Police Commissioner of Boston, Mass., in his official and individual capacities, John Does, Jane Doe, Defendants _____________________________________________ PLAINTIFF FRANÇOIS GOUIN, JR.’S SURREPLY IN OPPOSITION TO DEFENDANTS TONER AND McMAHON’S REPLY TO GOUIN’S LOCAL RULE 56.1 STATEMENT OF FACTS IN SUPPORT OF HIS OPPOSITION TO DEFENDANTS TONER AND McMAHON’S MOTION FOR SUMMARY JUDGMENT (with counsel’s affidavit below)


 
 

Now comes François Gouin, Jr. ["Gouin"], and surreplies to Defendants Toner and McMahon’s Reply to Gouin’s Local Rule 56.1 Statement of Facts, only for the purpose of correcting misstatements of facts by Toner and McMahon. Gouin does complain, however, that Toner and McMahon failed to file a motion for leave to file their reply, making their Reply noncompliant with Local Rule 7.1(B)(3). GOUIN’S SURREPLY TO TONER AND McMAHON’S ISSUE 1 RE PLAINTIFF’S RULE 56.1 STATEMENT, PART I Defendant Toner and McMahon’s Argument ¶1 re Gouin’s ¶1 Defendants Toner and McMahon misstated that Gouin’s statement "Defendants Toner and McMahon did not identify the claim to which each alleged fact was material" was erroneous. They also defend by stating that the rules do not require the differentiation between the facts. Gouin rebuts by pointing out that Toner and McMahon stop one step short of a persuasive argument. Their goal is to be awarded summary judgment on each of Gouin’s claims. To do that, they must demonstrate that Gouin has not been or shall not be able to satisfy each of the elements of each cause of action. To do that, the officers must identify which of their allegedly undisputed 28 facts satisfies each of those elements. The officers did not do that. They cannot reach their goal. Defendant Toner and McMahon’s Argument ¶2 re Gouin’s ¶2 Defendants Toner and McMahon misstated that Gouin’s statement "‘ignorant of property law or ignored it’ to justify Plaintiff’s arrest [is] erroneous, argumentative, and not supported by reference to any affidavit, deposition, or other document of record in this case." [T&M p. 2]. Gouin rebuts by pointing out that there was no objectively reasonable explanation either in fact or in law for Toner and McMahon to arrest Gouin, the choices – ignorance of or ignoring the property law – are the only choices available to explain arresting a man who had committed no crime. The property law that rules here is the proposition that once an object is attached to real property, it becomes a part of the real property. Examples of this are mirrors screwed into walls over fireplaces, chandeliers screwed into ceilings, window shutters screwed onto exterior walls, and locks screwed into doors, windows, and cabinets. The customary practice of real estate brokers is to write "exclusionary provisions" on the listing agreement if a seller wants to take these items upon the sale of the property. These "exclusionary provisions" migrate to the Purchase & Sale Agreements, which are then signed by both the seller(s) and the buyer(s). Gouin will call a real estate expert to testify to this custom if the City of Boston attorney refuses to stipulate to this most ordinary and usual custom. Amongst the most common items excluded from a residential real estate sale are the chandeliers and mirrors. The item the Defendant Officers want to exclude here from the real property is, apparently, the door lock. Gouin’s counsel has been unable to find any case in which a door lock has been ruled not part of the real property after it has been already installed into a door. The Defendant Officers have also, of course, not cited a case in which a door lock has been excluded from or is not considered part of the real property after installation. The only possible explanation for arresting a man who has not committed a crime is their department’s or city’s arrest-preferred policy. On the hand, charging him with a 209A violation after they have told him they are not arresting him for a 209A violation is because of the money that will be received from the federal government. They needed the statistic to be reported to the federal government in accordance with the instructions given in grant attached as Gouin’s 56.1 Exh. G. But even the arrest-preferred policy did not give them justification; that policy gave them only instructions as to what to do in a so-called Domestic Violence event. Two months ago, however, Justice Judith Cowin of the Massachusetts Supreme Judicial Court wrote in C.O. v. M.M., 442 Mass. 648, 2004 WL 2222320 *7 (October 6, 2004) (emphasis supplied): Just as we must guard against the potential that G. L. c. 209A proceedings may be used to harass and intimidate victims of domestic abuse, so too must we resist a culture of summarily issuing and extending these orders. Such a culture would ignore the legislative intent behind G. L. c. 209A and undermine a basic pillar of our judicial tradition -- that all parties be given a fair and equal opportunity to be heard. Justice Cowin’s remarks are a bit circumlocutory in that they do not identify the specific offending procedures involved in 209A events, but it is clear that the court is addressing the well-known and acknowledged court practice of avoiding due process when dealing with c. 209A issues. And due process is so customarily abandoned by the courts, a "culture" that must be "ignore[d]" has developed, and Judge Cowin was courageous enough to write about the "culture" in the opinion. Kudos to her and the court for so doing. Gouin contends that it is reasonable to conclude that the "arrest-preferred" policy also offends due process and must be resisted. This, the Gouin case, sharply illustrates how offensive the arrest-preferred policy is. A man who committed no crime was arrested because the department had a preference for arresting over a preference of investigating or a preference to follow due process. As for Defendant Toner and McMahon’s claim that Gouin’s statement was "not supported by reference to any affidavit, deposition, or other document of record in this case": Not only was Gouin’s statement backed by a large majority of the facts identified in Gouin’s Rule 56.1 Statement of Facts, which Gouin incorporates herein by reference in entirety, Gouin’s statement was backed by federal statutes, a federal grant, and the State Domestic Violence Guidelines, which has the force of law: Exh. G, Office of Justice Grant to Encourage Arrest Policies and Enforcement of Protection Orders Program; Exh. H, 42 U.S.C. §10409, Appropriations; Exh. I, 42 U.S.C. §10410, Grants for State domestic violence coalitions; Exh. J, 42 U.S.C. §10415, Model State leadership grants for domestic violence intervention.\1/ See also Exh. K, Domestic Violence Law Enforcement Guidelines 2002 (Revised).Judicial notice can be taken of statutes. See Green v. United States, 176 F.2d 541 (1st Cir. 1949) (notice by district court); Batista v. Nicolls, 213 F.2d 20 (1st Cir. 1954) (notice by circuit court). "The courts of the United States take judicial notice of the public laws of each State of the Union." Tennessee Coal, Iron & Railroad Company v. George, 233 U.S. 354, 357 (1914), citing Mills v. Green, 159 U.S. 651, 657. See also Palmer v. Thompson, Mayor of the City of Jackson, 403 U.S. 217, 263 n. 16 (1971), citing United States v. City of Jackson, 318 F.2d 1, 5-6 (5th Cir. 1963) (judicial notice taken of statute). If the U.S. Supreme Court takes judicial notice of the public laws of each State of the Union, it certainly must take judicial notice of the United States Code and grants promulgated thereunder. Defendant Toner and McMahon’s Argument ¶3 re Gouin’s ¶3 Defendant Toner and McMahon appear to contend that there is no genuine issue about the facts cited in Gouin’s ¶3. Just in case Gouin’s counsel was inarticulate, Gouin will "begin again": Because the lock was jointly owned by Gouin and Dori as soon as the lock was installed in the door, he could do anything with it that he wanted to do with it. That the officers did not recognize this, the highly disputed issue of whether Gouin drilled the lock or not is immaterial. The officers want to make the molehill of drilling into a mountain of drilling. Gouin believes that is foolish. The officers, the City, and the court may not throw away well-settled property law just because the officers need to throw it away in order to find some justification for their misconduct. The issue of drilling is only material to the issues below, issues which Gouin set out in his 56.1 Statement: whether the defendant officers were ignorant of the law and if so, whether their ignorance caused Gouin’s deprivation of rights,   whether they intentionally ignored the law so as to feign justification for the arrest or   whether they were simply following their department’s or city’s arrest-preferred policy or   whether they intentionally deprived Gouin of his property rights. The actual facts regarding the drilling follow. Please note that the sources of these facts were, despite the defendants’ assertion to the contrary, as noted throughout Gouin’s Local Rule 56.1 Statement. Todd Posey never mentioned a drill to the 911 call-taker [Exh. C-1].   Todd Posey never mentioned the drill on January 5th during the "event" [Compl. Exh. A].   The first person to mention a drill was Dori, who was in Maine, and could not have either seen Gouin with a drill or heard drilling [Exh. C-2 and T&M Exh. C].   The second person to mention a drill was Officer Toner after he spoke on the phone from the condo to Dori, who was in Maine [Compl. Exh. A].   Then Officer Toner told Officer McMahon that Gouin had been drilling [Id.]. On January 5th, the statement was based on hearsay from Dori [Compl. Exh. A].   Neither officer had seen Gouin either drilling or holding a drill [Reasonable inference from all the facts].   In fact, neither officer even saw a drill until they were booking Gouin and searched his briefcase [Exh. B-2]   Gouin never denied having a drill, but he denied drilling that day [Compl. Exh. A].   Gouin was going to drill holes in the baseboards to pull the electrical wires through them in the back bedroom, which he had been in the process of renovating (new insulation, new walls, new oak floors)[Exh. F].   Gouin does not dispute that there was a hole in the door where a lock was. Gouin has admitted he UNSCREWED it after Posey opened the door. Posey has TWICE admitted that he saw Gouin UNSCREW the lock. [Exh. D, p. 77, line 22 and T&M’s Exh. B, p. 271,lines 21-23]. Gouin had a right to attempt to change the lock in the front door to his own house if he so wanted to. His estranged wife had taken up residence and domicile in Cumberland Center, Maine, from where she called the police [Exh. C-3]. The alleged shavings were the only evidence of the alleged drilling of the lock, but they were not mentioned in the police report, not saved for evidence, not produced for inspection during the criminal case, and not heard of until a year after Gouin’s arrest. The only logical, rational, reasonable inference that can be drawn is that the alleged shavings were, at the probable-cause hearing where the shavings made their debut, but a then-recent fabrication to cover up the unlawful arrest of Gouin by the defendant officers. If there were shavings, then it was only incompetence that the shavings were not mentioned in the police report, not saved for evidence, not produced for inspection during the criminal case, and not heard of until a year after Gouin’s arrest [Reasonable inference or conclusion from all the facts]. If incompetence, then there can be no qualified immunity. Anderson v. Creighton, 483 U.S. 635, 638 (1987) ("Qualified immunity protects ‘all but the plainly incompetent OR those who knowingly violate the law’") (emphasis supplied), quoting Malley v. Briggs, 475 U.S. 335, 341 (1986); Stephens v. Executive Office of Health and Human Services, 57 Mass.App.Ct. 1114, 785 N.E.2d 427 (2003), quoting Malley for the same proposition. If there is another reason for Toner’s and McMahon’s failure to mention the shavings they allegedly saw on January 5th, they have failed to spell out that reason. Defendant Toner and McMahon’s Argument ¶4 re Gouin’s ¶¶4 and 5 The Defendant Officer’s argument that Gouin’s statements ¶¶4 and 5 are unsupported is frivolous at best. If Toner and McMahon considered the rights of Gouin, a property owner, to enter his home at any hour and not be charged with breaking and entering, why did McMahon say to Gouin,"To gain entry. That's what you're being arrested for"? [Compl. Exh. A, p. 9, lines 11-12] and why did Toner make application to charge Gouin with violating M.G.L. c. 274, §6, Attempt to Commit the Crime of Trespass? [Exh. B-1 (first page of application) and B-3 (criminal complaint)].   If Toner and McMahon considered the rights of Gouin, a joint owner of the property, to damage a lock in his home, why did Toner make application to charge Gouin with violating M.G.L. c. 266, §12, Destruction of Property? [Exh. B-1 (first page of application) and B-3 (criminal complaint)].   If Toner and McMahon considered the rights of Gouin, a property owner, to renovate his home [Exh. F, photos], why did Toner make application to charge Gouin with violating M.G.L. c. 266, §49, Possession of Burglarious Tools? [Exh. B-1 (first page of application) and B-3 (criminal complaint)].   If Toner and McMahon considered the rights of Gouin, a property owner, to use his tools, such as a drill and screwdriver to accomplish the renovations and not be charged with carrying burglarious tools, why did Toner make application to charge Gouin with violating M.G.L. c. 266, §49, Possession of Burglarious Tools? [Exh. B-1 (first page of application) and B-3 (criminal complaint)].   If Toner and McMahon did not ignore Gouin’s homeowner’s rights, if Defendants Toner and McMahon did not ignore Gouin’s right to be in his home, when, in fact, Gouin had a right to enter and be in his home, and if Defendants Toner and McMahon did not deprive Gouin of his constitutional right to be safe in his home and to protect both himself and his home, why did McMahon say to Gouin, "You're not suppose to be at this residence"?[Compl. Exh. A, p. 9, lines 8] and ". . . you're really not suppose to be here" [Compl. Exh. A, p. 5, line 25], It is inescapable that Defendants Toner and McMahon’s Officer’s argument that Gouin’s statements ¶¶4 and 5 are unsupported is frivolous at best. Defendant Toner and McMahon’s Argument ¶5 re Gouin’s ¶6 Defendants Toner and McMahon deny that they did not act reasonably when they arrested and handcuffed Gouin and removed him from his home, knowing that his wife was in another State (Maine), knowing that Gouin had not been served with a restraining order, and knowing that Gouin had a right to be in his own home. Clearly, whether the officers acted reasonably is a question for the jury. Defendant Toner and McMahon’s Argument ¶6 re Gouin’s ¶7 Defendants Toner and McMahon deny that they misrepresented to the court that Gouin admitted drilling on January 5, 2001. There is no excuse for Toner and McMahon lying about Gouin.\2/ Gouin was not allowed to impeach either officer at the probable cause hearing with the tape [T&M’s Exh. A, p. 46, lines 5-8], because the issue was whether Gouin’s estranged wife lied, for the charge being pressed was False Reporting to the Police, pursuant to M.G.L. c. 269, §13A. The "arrest" tape of 5 January 2001 will clearly show that Gouin denied drilling the lock that day and that the police simply ignored him. Defendant Toner and McMahon’s Argument in Argument ¶6, footnote 3 The defendant officers proclaim that it is untrue that they "perjured themselves or advanced ‘untruths.’" The following are but a sampling of the inconsistent statements of the impeachable officers: Officer Toner denied seeing the deed, which Gouin gave to him [Gouin’s 56.1 Statement, p. 15, ¶7, passim].   The officers have untruthfully claimed that Gouin admitted drilling the door or the lock [T&M’s Statement #11, citing Exhs. A and E, and T&M’s Exh. A, p. 33, lines 11-13 (Toner) and Exh. A, p. 44, lines 15-21 (McMahon), and T&M’s Exh. A, pp. 44-45, lines 44:24-45:2 (McMahon, and T&M’s Exh. A, p. 62, lines 3-7 (McMahon)], but Gouin has spoken only twice in the officers’ presence and both times the meetings have been taped – once at the condo and once at the probable-cause hearing -- and both of the tapes were transcribed. The officers were unable to identify in either transcript one line on which their assertion is true.   They claimed they were not arresting Gouin because of a restraining order [Compl. Exh. A], but Toner charged Gouin with two charges related to alleged violations of c. 209A, the DV restraining order law [Exh. B].   The officers averred they brought three charges against Gouin, but did not produce a criminal complaint proving they brought those charges [T&M’s Statement #19]. Gouin, however, produced the criminal complaint against him; it showed four charges of which only two were the same as the officers alleged they brought.   The officers claim they based Gouin’s arrest on evidence such as the "damaged lock" gathered at the condo [T&M’s Statement #13], but not only did Toner in his police report claim that he recovered the so-called damaged lock from Gouin’s briefcase during the booking process after Gouin had been arrested [Gouin’s 56.1 Exh. B-2 and B-5], in response to Dori’s criminal defense lawyer at the probable-cause hearing, Toner testified that "my partner patted down Mr. Gouin, and the lockset was in his jacket pocket" [T&M’s Exh. A. p. 33, lines 7-10].   The officers claim they saw the "damaged lock" at the condo [T&M’s Statement #13], but Toner’s police report claims the so-called damaged lock was seen during the booking process [Gouin’s 56.1 Exh. B-2 and B-5].   Officer Toner alleged that the application for criminal complaint was unsigned, but Gouin’s 56.1 Exh. B-1 clearly shows his signature. Defense counsel claimed that, "While Plaintiff offers a copy of the complaint detailing the criminal charges brought against him, there is not one piece of evidence that Toner or McMahon brought these specific charges" [T&M Reply, p. 10], but the name WILLIAM R. TONER appears in the field entitled "COMPLAINANT" [Gouin’s 56.1 Exh. B-3]. Defendant Toner and McMahon’s Argument ¶9 re Posey’s Conversation with the Police Defendants Toner and McMahon averred "Posey has never discussed the incident with the police officers" [T&M Statement #20], but Posey deposed that he did go to the police department after the incident, but he did "not remember why," although it was related in some fashion to the incident [Id. from p. 281, line 24, to p. 283, line 3]. The truth about this might never be known. Significantly, however, in Interrogatory 8 to each of the officers, Gouin asked for that very information.\3/ It was not forthcoming. It is reasonable to conclude that the officers’ superiors had to learn directly from Toner and McMahon what they knew if the superiors were to ask Posey any meaningful questions. Therefore Toner and McMahon did not answer the interrogatory completely or forthrightly. Toner and McMahon had to know with whom Posey had conversed during his one or more visits to the police station after the incident. That information they did not reveal in their response to Gouin’s Interrogatory #8. The information the defendant officers did impart to Gouin in their response appears on page 5 of T&M’s Exhibit G and page 5 of T&M’s Exhibit H, both attached to T&M’s Reply. Clearly Toner and McMahon ignored answering Interrogatory 8 in full. See note 3, supra, in the margin. On page 5 of their Reply, the officers’ counsel wrote: "There is not one witness who can testify that any conversations with Defendant Posey took place after the Plaintiff’s arrest." Is Toner and McMahon’s counsel saying, therefore, that Posey lied about his visit to the station house? Or that he went there and no police officer of any rank spoke to him? Who do you believe, Posey or the officers? This is a question for the jury.


 

GOUIN’S SURREPLY TO TONER AND McMAHON’S ISSUE 2 RE PLAINTIFF’S RULE 56.1 STATEMENT, PART II Defendant Toner and McMahon’s ¶1 T&M Point: Whether Defendant Chadbourne had a restraining order is not a genuine issue to be tried.   FG’s Counterpoint: Where the police charged Gouin with two crimes, one an attempt to violate a c. 209A restraining order (c. 274, § 6) and the other a violation of a restraining order (c. 209A, § 7) [Exh. B-1 (first page of application) and B-3 (criminal complaint)], whether there was such a restraining order is a genuine issue of material fact.                          T&M Point: As Plaintiff himself admits, a restraining order had issued but he had not yet been served.   FG’s Counterpoint: This is an issue of mixed fact and law. A restraining order which has not been served and of which the "defendant" has no actual knowledge is not effective. "General Laws c. 209A, § 7, requires that a copy of an order issued under §§ 3, 4, or 5 of G.L. c. 209A be served on a defendant. Com. v. Delaney, 425 Mass. 587, 590, 682 N.E.2d 611, 614 (1997). "[S]ervice was not fatal where the Commonwealth proved that the defendant had actual knowledge of the terms of the order." Com. v. Greene, 60 Mass.App.Ct. 1109, 800 N.E.2d 727 (2003), citing Delaney, at 591-593. Here, it is undisputed that Gouin had no knowledge of the January 4th order and that it had not been served. Therefore the order was not effective.                       T&M Point: Further, the Plaintiff was not arrested for violation of a restraining order.   FG’s Counterpoint: But Defendant Toner is the complainant on the Application for Criminal Complaint and the Criminal Complaint by which Plaintiff was charged with the two crimes of attempting to violate and violating a 209A restraining order. [Exh. B-1 (first page of application) and B-3 (criminal complaint)].\4/                          T&M Point: The emergency calls and the evidence led the officers to conclude that the Plaintiff was not supposed to be at 58 Temple Street, and he was arrested.   FG’s Counterpoint: When a fire alarm is pulled and there is no fire, it is called a false alarm. Similarly, when a 911 call is made and there is no domestic violence, it is a false alarm, to wit, a false allegation. That a call is made is proof of nothing and not evidence that a crime has been committed. At the scene, of course, there was no actual evidence. The police have said there were shavings, but the police did not think them important enough to gather and deliver to the evidence room. Gouin proclaims that the officers’ conclusion under the circumstances was not reasonable. The defense disputes that. It sounds like a jury question to Gouin.                             T&M Point: The Plaintiff was told he was being arrested for breaking and entering.   FG’s Counterpoint: Yes, indeed, he was, but he was not charged with breaking and entering because evidently someone at the department realized Gouin was home and he could not be charged with breaking and entering into his own home. He had given the deed to one officer and told the other officer about it [Compl. Exh. A, p. 4, line 16, and the tape on which Gouin can be heard telling the officer]. The officers denied this. It sounds like a jury question to Gouin. Defendant Toner and McMahon’s ¶2 T&M Point:Gouin’s ownership of the condominium is not a genuine issue to be tried.   FG’s Counterpoint: Gouin had a copy of the deed to his property with him and showed it to Officer Toner on January 5th [Compl. ¶39; Compl. Exh. A., p. 4, line 16; Exh. A, p. 4, lines 16-17; T&M’s Exh. A, p. 70, lines 18-19; p. 74, lines 17-19, 24; p.75, line 1]. Thus ownership should never have been a genuine issue. Given, however, that the officers ignored the deed at the scene, making the issue of ownership a genuine and critical issue, the issue of ownership is material for the purposes of the motion for summary judgment because "ownership" shows that the officers were not objectively reasonable when they arrested and charged Gouin with criminal acts. The trial can be shortened, however, if the officers are now willing to stipulate that Gouin was a co-owner of the condo on 5 January 2001. The arrest, however, according to the officers at the scene, was because Gouin allegedly tried "to gain entry" [Compl. Exh. A, p. 9, lines 11-12] and the charge of attempting to commit the crime of trespass (c. 274, §6) [Exh. B-1 (app.) and B-3 (crim. compl.)], had to have been predicated on the officers’ assertion that Gouin was not an owner of the condominium. Excerpt from Exh. B-3, the charge of violating G.L. c. 274, §6 T&M Point:Defendants Chadbourne and Posey made emergency telephone calls to the Boston Police Department, stating that the Plaintiff was breaking into the residence, and officers Toner and McMahon responded. FG’s Counterpoint: Posey did not state that "Plaintiff was breaking into the residence" [Exh. C-1]. Dori told the 911 call-taker that Gouin had drilled the lock but not that he had broken in and entered. As a lawyer, Dori knew or should have known that Gouin could not "break and enter" into his own house [Exh. C-2 and C-3]. T&M Point: It became evident to officers Toner and McMahon that the Plaintiff had tried to obtain access to the condominium by drilling. FG’s Counterpoint: Gouin disputes this for all the reasons pointed out both in his Statement of Facts and in this pleading, supra and infra. T&M Point: In addition to Plaintiff’s admission that he had drilled, and Chadbourne and Posey’s statement to the officers that the Plaintiff had drilled the lock and was not supposed to be there, officers Toner and McMahon saw substantial evidence that the Plaintiff had in fact drilled the condominium lock, including the drill itself, the damaged lock, and metal shavings on the floor. FG’s Counterpoint: There is no evidence that Gouin ever admitted to drilling at the condominium on either the arrest tape or transcript [Compl. Exh. A] or the transcript of the probable-cause hearing [T&M 56.1 Statement, Exh. A]. Those are the only times the officers and Gouin were together, so where Gouin did not admit anything on those tapes and transcripts, the officers could not have heard any admission by Gouin. There is also no admission memorialized on any other document. Most significantly, the officers have supported their position that Gouin drilled with only an inherently unimpressive the-officer-said argument. There was also no evidence at that scene that demonstrated that Gouin had drilled the lock. If there were shavings, it is as possible for them to have been shavings caused by Dori drilling on Thursday than to have been shavings caused by Gouin alleged drilling on Friday. Whether the officers saw a damaged lock at the scene is in dispute. Toner wrote one version in his police report [Exh. B-5], but testified to another version at the probable-cause hearing in another case [T&M Exh, A]. That is, Officer Toner’s police report notes that a lock "was recovered from Gouin’s briefcase during the booking process,"\5/ but, as noted in Fact #13 of the officers’ Rule 56.1 Statement of Facts, Toner testified that he saw a damaged lockset at the condominium. Significantly, the officers have offered no evidence that the lock they saw during the booking process was damaged. T&M Point: Posey’s statement to the officers that the Plaintiff had drilled the lock and was not supposed to be there, officers Toner and McMahon saw substantial evidence that the Plaintiff had in fact drilled the condominium lock, including the drill itself, the damaged lock, and metal shavings on the floor. FG’s Counterpoint: Table 1 below contains all of Posey’s words that were audible on the tape of the event on January 5th, 2001. At no time did Posey tell the officers that Gouin had drilled the lock or that he had no right to be there. Posey had repeated to Gouin – before the officers arrived -- that which Dori had told him on the telephone -- "Okay, there's currently a restraining order against you and you're subject by arrest by being here" [Compl. Exh. A, p. 2]. Posey did not repeat that after the officers arrived.

 

Table 1. From Complaint Exhibit A,  Excerpts Only of Todd Posey’s Statements  in Chronological Order
Todd calls 911.	TODD: I have moved in. TODD: Well let's call the police. TODD: Okay. (Ringing) 911. TODD: (Inaudible) 58 Temple Street (inaudible) the problem is (inaudible) there's been a restraining order called into the court, he hasn't received it yet. He was (inaudible) coming in and told me I have to leave, and so I'm calling. Well, they're in the middle of a divorce he is not actually (inaudible). No, he does not. Whose name on the lease? It's owned, and I believe it's under both their names. A yup. My name is Todd Posey. Hold on a second.
Todd calls Dori, his sister and Gouin’s estranged wife. Note that he speaks to Dori and after Dori tells him something, he turns and repeats it to Gouin. Then he turns back to speaking to Dori on the phone.
Posey invites Gouin to "come in"  After Jake enters, he begins  unscrewing lock. Todd says, "Jake that's my lock. I'd like that lock back, please. That's my lock.. "If the lock had been damaged, why would he want it back? Later, at deposition Posey admitted it was not his lock.	TODD: A, yup, they're suppose to be on their way. Okay. No. Um, come in. (Inaudible) Yeah, he's (inaudible). Well, apparently Jake does not feel like waiting for the police to come. Jake that's my lock. I'd like that lock back, please. That's my lock. I also have an agreement with [page 2] Dori for this residence. Ten minutes is not an acceptable time for notice. He's given me 10 minutes to remove myself and all my stuff from the premise. Because he wants to move. Okay, there's currently a restraining order against you and you're subject by arrest by being here. No. All right, well, I better get off the phone, so. This is my understanding, he's (inaudible) no legal rights to be here. Okay. Well, he hasn't done it yet, so if he does -- . Well, we'll see what happens. Okay thanks. All right, thanks.
The police arrive.                 Todd tells officers Dori came and changed locks. Officers did not ask "How?"	TODD: (Inaudible) last night. I talked to my sister today she filed (inaudible). TODD: No, it was today. I'm sorry. No, it was today. TODD: Yes, yes. I'm sorry. It's 6 o'clock in the morning. I'm thinking it's yesterday. Yes. Yesterday she was in court and she filed a restraining order. She came in in the morning and she changed the locks back. Currently, as [page 4] I understand, I'm a tenant, and he's asked me to move, leave in 10 minutes, and as a tenant I think I have (inaudible)?


 

T&M Point:The emergency calls and the evidence led the officers to conclude that the Plaintiff was not supposed to be at 58 Temple Street, and he was arrested.   FG’s Counterpoint: Gouin concedes that it is likely that as soon as the officers received a so-called Domestic Violence call, they knew they would be arresting the male accused of whatever. The City police department had implemented the arrest-preferred policy. Gouin does not concede that there was at the condo even a shred of evidence upon which to conclude that Gouin "was not supposed to be at 58 Temple Street." Gouin does agree, however, that he, indeed, was arrested.   T&M Point: The Plaintiff was told he was being arrested for breaking and entering.   FG’s Counterpoint: Gouin was told he was being arrested because he allegedly tried "to gain entry" [Compl. Exh. A, p. 9, lines 11-12].   Defendant Toner and McMahon’s ¶3 T&M Point:Gouin alleges that whether or not he drilled is immaterial to Toner and McMahon’s summary judgment. In Part II, Plaintiff raises it as a contested fact.   FG’s Counterpoint: Gouin continues to contend that a fact can be both immaterial and disputed. The two are not mutually exclusive. And Gouin rests on his argument that the issue of whether or not he drilled is immaterial to Toner and McMahon’s motion for summary judgment and that the issue is a contested one.                                 T&M Point: In the drilling dialogue reproduced in his statement, the Plaintiff fails to include that one of the officers on scene stated "(Inaudible) guess he drilled out the locks. She still has a current restraining order against him. He wasn’t served, but it got slowed down in court." [fn5]   FG’s Counterpoint: The statements that the officers that Gouin did not include in his statement appear in the transcript of the tape recorded on January 5th, 2001. That transcript was attached as Exhibit A to the Verified Complaint. The officer making that statement was Toner after he finished his phone conversation with Dori. She must have told him that. No one else did, as the tape and its transcript demonstrate. Gouin is pleased that defense counsel acknowledges both that Toner knew that Gouin had not been served with the restraining order and that Toner told McMahon. So given that both officers knew there was no effective restraining order and given that they are part of the prosecutorial team, the officers should have seen to it that Gouin was not charged with two crimes that required the existence of an effective restraining order.                                T&M Point: FN5 The Defendants continue to contest the legality and admissibility of the tape recording, but refer to the recording for purposes of summary judgment.   FG’s Counterpoint: FN5 Gouin’s counsel did not depose Officers Toner and McMahon because defense counsel agreed (1) that the officers would admit saying what they are heard saying on the tape, (2) that defense counsel was not going to object to using the transcript for summary judgment purposes, (3) that Gouin would offer the tape at trial, and (4) that defense counsel was not going to oppose Gouin’s offer of the tape at trial. In fact, the transcript of the tape is used as supporting evidence for T&M’s Statement ##6, 10, and the officers’ counterclaim. "M.R.C.P. Rule 56(e) requires the contents of supporting and opposing affidavits ‘set forth such facts as would be admissible in evidence.’" Samaluk v. Demartis, 2000 Mass.App.Div. 46, 2000 WL 193628 *2 (2000). The tape is also the basis of the officers’ counterclaim for money damages and as such they have waived their objections.   T&M Point: Plaintiff also fails to disclose that, when explaining why he was being arrested, one officer stated:   P.O.:We’re not arresting you for that. You’re not supposed to be at the residence. Okay. And your [sic] not supposed to be drilling into the house, into the door. Jake:Ahuh. FG’s Counterpoint: Defense counsel’s point that she is trying to make is ambiguous. Prior to the officer saying "We’re not arresting you for that," the conversation between Gouin and the officer was about restraining orders: JAKE: ... How do you check to know if you have an active restraining order [page 9] POLICE OFFICER: How do you check? JAKE: Yeah. POLICE OFFICER: By rights, she's suppose to serve you. JAKE: But it was only taken out yesterday. I wasn't aware. POLICE OFFICER: We're not arresting you for that. You're not suppose to be at this residence. Okay. And your [sic] not suppose to be drilling into the house, into the door. JAKE: Ahuh. POLICE OFFICER: To gain entry. That's what you're being arrested for. This sequence is as ambiguous as is the defense counsel’s point. Essentially Gouin did not know that Dori had made application for a restraining order. The officer knew (from earlier conversation with the other officer) that the RO had not been served. Because it had not been served and Gouin had been unaware of any new RO, Gouin wondered what he was being arrested for. The officer responded, Gouin was being arrested for trying to gain entry (notwithstanding Posey telling Gouin to "come in" earlier). That, too, did not make sense. Why should he be arrested for going to his own home when there was no order precluding or prohibiting him from doing so? The officer’s answer did not make the so-called probable cause to arrest any clearer. In fact, the only possible reason for arresting Gouin is that the officers were under their department’s policy or order to arrest on any and all alleged DV events . . . whether there was violence or not.\6/ Here, of course, there was nothing domestic – Dori, the estranged wife, was three or more hours away in another State – and there was nothing violent – as Posey, Gouin’s stepbrother, to whom Dori had given a key to the condominium, told the 911 call-taker at the top of the call [Exh. C (1 of 3)]:                                       PO: Central 911. What is the location of your emergency? TODD: 58 Temple Street PO: How may I help you? TODD: The problem is, there is a domestic disagreement. Ah, the . . . Inside, it's not violent. The second statement, Gouin contends, is just foolishness by the officer who was speaking. There was absolutely no order prohibiting Gouin from being at his home. Gouin cannot prove a negative, but the officers have the burden of proving their assertion that Gouin was prohibited from being at his residence. The officers have not met and cannot meet their burden. The third statement is more foolishness by the officer who was speaking. There is no proof that Gouin was drilling. Gouin cannot prove a negative, but the officers have the burden of proving that their assertion is true. The officers have not met and cannot meet their burden.  T&M Point: At that point in time, the Plaintiff did not deny that he had drilled into the door that morning. Further, Plaintiff admits that the door’s lock had been removed and "[t]he most Toner could have seen was a hole where a lockset had been."                                 FG’s Counterpoint: The dialogue defense counsel has pointed to is on page 10 of Compl. Exh. A, the "arrest" tape. Gouin had already been asked about drilling on page 6, which records the conversation after Gouin was already arrested.\7/ When asked whether he drilled, he denied doing so. See below. The officers simply did not listen to him because it did not matter what he said. They were under department orders to arrest. The department’s preferred-arrest response was in accordance with City policy. The City would get more money from the federal government if the arrest statistics for DV rose.

 

Compl. Exh. A, p. 6	POLICE OFFICER:(Inaudible) guess he drilled out the locks. She still has a current restraining order against him. He wasn't served, but it got slowed down in court.  OTHER POLICE OFFICER: Okay.
Gouin being arrested and handcuffed	POLICE OFFICER: Sir, you want to stand up and put your hands behind your back? JAKE: Sure. Do you want me to take gloves off too? POLICE OFFICER: No, no, no it's kind of cold out. POLICE OFFICER: (Shuffling) driver's license (talking in the background) But that happened yesterday though, right?  OTHER POLICE OFFICER: First one, I don't know, ask him, I can't.
Asked about drilling after he was arrested    Denied drilling        Denied drilling      Door squealing sounds  like drill as police take the hand-cuffed  Gouin out to cruiser	POLICE OFFICER:He was drilling today too? POLICE OFFICER: Yeah. JAKE: No, I didn't drill yesterday. I had a locksmith. POLICE OFFICER: I'm sorry you were drilling today too? JAKE: No. Just -- POLICE OFFICER: What have you got in here sir? JAKE: My (inaudible) (drilling)


 
 
 

Defendant Toner and McMahon’s ¶4 T&M Point: That neither Toner nor McMahon took shavings they  observed in front of the door does not defeat the Defendants’ motion for summary judgment.   FG’s Counterpoint: Given that Toner and McMahon must rely on the alleged shavings because they have nothing else upon which to rely for probable cause to arrest, the failure of the officers to gather the alleged shavings for evidence is fatal to their motion.   Gouin owned the property jointly with his wife, Dori.   There was no order of any kind prohibiting Gouin from his home.   Dori was in Maine, to where she had moved, three hours away.   Posey said "come in" to Gouin [Compl.Exh. A, p.1, line 22].   Posey’s admission – twice – that he saw Gouin unscrew the lock [Exh. D, p. 77, line 22 and T&M’s Exh. B, p. 271,lines 21-23], which can only happen from the inside, where the screws heads are.   The issue of whether there were shavings is a question for the jury. Defendant Toner and McMahon’s ¶5 T&M Point: The questions Plaintiff raises at ¶5 do not raise genuine issues for trial as to Officers Toner and McMahon, and are directed toward Defendants Posey and Chadbourne, for their actions with regard to the lock on the day before the Plaintiff was arrested.   FG’s Counterpoint: The questions in Gouin’s ¶5 are not directed only toward Defendants Posey and Chadbourne as defense counsel asserts. The questions in Gouin’s ¶5 should have been raised by the officers on January 5th, when they were in the condo speaking to Posey and to Dori by phone, but the questions were not raised. In fact, the police never asked Dori and Posey how they got access to the condo on Thursday, January 4th. Assuming arguendo there were shavings, the police might have learned that the shavings were caused by the actions of Posey and Chadbourne "with regard to the lock on the day before the Plaintiff was arrested." The officers did not because they already had someone readily available – Gouin -- to be arrested in accordance with the City’s DV arrest-preferred policy. It’s an "Easy Pickin’s" policy, unconstitutional at best and used to deprive an accused – falsely or not – of his constitutional rights at worst. Defendant Toner and McMahon’s ¶6 T&M Point: In ¶6, Plaintiff admits that he never asked the police officers to tape their conversation. As such, this statement of fact put forward by the Defendants remains uncontroverted by the Plaintiff.   FG’s Counterpoint: The officers’ first sentence is untrue. The officers are not mentioned in Gouin’s ¶6. It was written in response to T&M’s Statement #24. The officers’ second sentence is true. Because Gouin wrote in Table 1, on page 6, that T&M’s Statement #23 was material and undisputed, he does not understand why defense counsel came in through the back door and raised it in ¶6 in their Reply Statement. Defendant Toner and McMahon’s ¶7 T&M Point: Plaintiff’s general and conclusory allegations about whether police officers listen to accused male in domestic violence scenarios is immaterial to [page 9] the present case. [fn6] Plaintiff attempts to support his allegations in the guise of statement of facts by attaching several documents concerning federal grants and domestic violence guidelines for 2002, a year after the incident. These documents are part of the record for the first time in this proceeding, are unauthenticated, were never produced in discovery, and are irrelevant and immaterial to the present action. Plaintiff makes several suppositions and allegations with regard to these documents, but cannot produce one document in the record to tie any of his allegations or this grant money to Toner and McMahon’s actions on the day Plaintiff was arrested.   FG’s Counterpoint: Gouin incorporates in entirety herein by reference his argument set forth on page 4, supra. The statutes and grant need the court only to take judicial notice of them. They did not need to be produced during discovery. The article, which Gouin did not have much earlier than the present, has been kept in the ordinary course of business since obtained and will be authenticated at trial. Gouin adds that it is the defendant officers who raised the issue that to bring a cause of action for conspiracy under 42 U.S.C. §1985(3), a plaintiff must prove invidious discrimination. Although Gouin contends this is a §1985(3), clause-2 conspiracy, which does not require proof of invidious discrimination [see pp. 20-24 of Gouin’s OPPOSITION TO DEFENDANTS TONER AND McMAHON’S MOTION FOR SUMMARY JUDGMENT], and not a clause-1 conspiracy, which does by judicial fiat require proof of invidious discrimination,\8/ Gouin dares not take the chance that this court will deem it a clause-1 and not a clause-2 conspiracy. Therefore, Gouin must argue in the alternative and plan to prove conspiracy under both clauses. Gouin shall shortly identify an expert to be called as a witness at trial to testify to the data in two of his recent articles appearing in the Journal of Family Violence. These articles will be produced to all defendants in short order. One is going to press only as this surreply is being written. It cannot be produced until it is formally published and distributed. Notwithstanding Gouin’s contention that he need not prove invidious discrimination to prove conspiracy here, he nevertheless contends that there is, indeed, a bias for women in the family courts and that male parties suffer severe discrimination there. And his counsel strongly argues that the bias for women and prejudice against men have arisen like phoenixes out of the federal Child Abuse Prevention and TreatmentAct(CAPTA), Violence Against Women Act (VAWA), and Family Violence Prevention laws[Gouin’s 56.1 Exhs. H, I, J, and G]: The war against men is real. It requires men to exercise care in choosing an occupation and in choosing a woman. The risk-reward ratios have deteriorated both for marriage and for working for a corporation. A bad choice can leave a man wounded, maimed, bereft of property and children, and in prison on trumped-up charges. Mr. Hise writes, "The female propaganda machine is relentless." Men are sitting ducks, in part because they have been demonized and lack "a national organization, similar to the National Organization for Women, that will aggressively advance men's positions, interests and needs." Roberts, Paul Craig, "The Wars We Can't Afford to Lose," citing Professor Richard T. Hise, The War Against Men: Why Women Are Winning and What Men Must Do If America Is to Survive [Oakland, OR: Elderberry Press, Feb. 2004],[Gouin’s 56.1 Exh. L, attached to Gouin’s Opp. to T&M’s 56.1 Facts].   That's the way feminists want it, and courts and legislatures have gone along. Mr. Hise believes this has put society out of balance and that the long-run consequences of the war on men will damage our country more than dangers from terrorists.   Id. (emphasis supplied).   Defendant Toner and McMahon’s FN6 T&M Point: FN6 Plaintiff also inserts an equally irrelevant and immaterial copy of a Michigan billboard, which has nothing to do with Officers Toner and McMahon’s actions on the day the Plaintiff was arrested, and to which Plaintiff fails to demonstrate and [sic] correlation between the billboard and Toner and McMahon’s actions.   FG’s Counterpoint: FN6 The Michigan billboard demonstrates the extent of the perniciousness of the pro-women legislation at both the federal and State levels. The Honorable Judith Cowin of the Massachusetts Supreme Judicial Court, as noted on page 4, supra, has warned the public to "resist" the new culture . . . and implicit in her words is a warning to our courts that the new culture is to be feared, for it will continue to erode the pillars of justice on which our courts depend should the culture not be checked. The arrest-preferred policy is only one of the pernicious outgrowths of that new culture, which has spread nationwide. The Michigan billboard, which was only one step in a Statewide contest inviting children to participate in the jailing of their fathers, lends credence to how far States have been going to get money from the federal government. Put a man in jail, the State and law-enforcement entities will get money. Gouin is but one victim of the arrest-preferred policy. That policy explains why Toner and McMahon failed to act like responsible police officers and became merely automatons ready to disregard whatever circumstances they encountered when responding to 911 calls, and to arrest immediately. They were obliged to be automatons. And if they had not become automatons by adhering to City policy, they had to be personally and professionally incompetent. Defendant Toner and McMahon’s ¶8 T&M Point: In this paragraph the officers attempt to evade responsibility for both the application for the criminal complaint and the criminal complaint itself.   FG’s Counterpoint: Gouin has discussed Toner and McMahon’s points in ¶8 extensively above. That McMahon’s name does not appear on those documents is irrelevant. The law, by analogy, requires that he be held responsible along with Toner, for McMahon was present and knowledgeable. For instance, as noted in Gouin’s Local Rule 56.1 Statement of Facts, "In the Federal civil rights context, "[a]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force can be held liable under [42 U.S.C. §] 1983 for his nonfeasance." Id., p. 8 and cases gathered there. "The same principle appropriately applies under the State Civil Rights Act." Com. v. Adams, 416 Mass. 558, 565-566, 624 N.E.2d 102,106 (1993), citing Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-823, 473 N.E.2d 1128 (1985). The failure of the non-battering defendants to intervene to protect Smith's rights, when they knew that they had a duty to do so, independently supports the conclusion that all the defendants violated Smith's civil rights.   Defendant Toner and McMahon’s ¶9 T&M Point: In this paragraph, ¶9, the officers contend that material facts against the City of Boston on the issue of negligent training are premature.   FG’s Counterpoint: On one hand, Gouin agrees that the case was bifurcated. Nevertheless, it is also true that the argument of the City’s and its police policy and custom is integral to analyzing the conduct of the two defendant officers.   Defendant Toner and McMahon’s ¶10 T&M Point: In this paragraph, the officers contend that there was a "reasonable, valid basis" for Gouin’s arrest.                                 FG’s Counterpoint: Gouin contends there was absolutely no "reasonable, valid basis" for Gouin’s arrest. Gouin incorporates in entirety herein by reference his argument set forth on pages 1-8 of his OPPOSITION TO DEFENDANTS TONER AND McMAHON’S MOTION FOR SUMMARY JUDGMENT.   Defendant Toner and McMahon’s ¶11 T&M Point: In this paragraph, the officers question the legality of the tape Gouin made during the incident, as a disputed fact. They assert that the tape Gouin made during the incident was illegal pursuant to Mass. Gen. L. ch. 272.   FG’s Counterpoint: Gouin contends the tape made on January 5th is both legal and admissible. Gouin incorporates in entirety herein by reference his argument set forth on pages 28-30 of his OPPOSITION TO DEFENDANTS TONER AND McMAHON’S MOTION FOR SUMMARY JUDGMENT.   Defendant Toner and McMahon’s ¶12-19 T&M Point: In this paragraph, the officers claim to have controverted the facts set forth in Gouin’s counts for malicious prosecution , abuse of process, Mass. Civil Rights Act, false arrest and imprisonment, assault, battery, conspiracy, intentional infliction of emotional distress. The officers also argue that F.R.Civ. P. 56(c) does not allow Gouin to seek partial summary judgment as to liability for this cause of action against them.   FG’s Counterpoint: Defense counsel argument is conclusory and has in all of her clients’ pleadings controverted not one fact upon which Gouin relies to satisfy the elements of his claims. WHEREFORE, Gouin prays Toner and McMahon’s motion for summary judgment be DENIED. Gouin prays also that the court render summary judgment against the officers on their counterclaim. E N D N O T E S [1] The custom and policy of the police is to treat all calls between a husband and a wife as a Domestic Violence call, whether or not the event is "violent." This one was treated as a full-fledged DV call, with the preferred-arrest policy running at full throttle [T&M’s. Exh. C] even though Posey clearly told the 911 call-taker that it was not violent: "[I]t's not violent." [Transcript of 911 tape, Exh. C, line 5, attached hereto]. [2] The officers’ counsel was present at the probable-cause hearing, and has had the complaint and transcript since this case was filed, as well as a copy of the tape shortly thereafter. [3]Gouin’s Interrogatory 8: Please identify each and every communication you had with someone -- including, but not limited to, the following people, (a) Dori Chadbourne Gouin, (b) Todd Posey, (c) E. Chouteau Merrill (Dori's former counsel), (d) François Gouin, Jr., (e) William R. Toner, (f) Clerks at Suffolk Probate & Family Court, (g) Clerks at Suffolk Registry of Deeds, concerning the subject event of 5 January 2001, the criminal action against François Gouin, Jr., and/or the property located at 58 Temple Street, Boston, Massachusetts, including in your answer (a) the date, time, place and means of each such communication; (b) the identification of each person who participated and was present during or otherwise has personal knowledge of each communication; (c) the identification of the party initiating each communication; (d) a description of what was said or written and by whom; and (e) the identification of all documents evidencing, describing, referring or relating to the communications. The partial information which forthcame appears on page 5 of T&M’s Exhibit G and page 5 of T&M’s Exhibit H. [4] On page 10 of T&M’s Reply, their counsel stated, "The application for criminal complaint produced by the Plaintiff is unsigned." That is absolutely untrue. Defense counsel was apparently looking at Exh. B-2 (2d page of application), which is unsigned because the signature appears on the first page, Exh. B-1 (1st page of application). Defense counsel also stated, "While Plaintiff offers a copy of the complaint detailing the criminal charges brought against him, there is not one piece of evidence that Toner or McMahon brought those specific charges." That is also absolutely untrue. On the Criminal Complaint, "William R. Toner" is identified as the "Complainant." [5] At the probable-cause hearing, Gouin also testified that the officers did NOT see the lockset until he was booked at the station [T&M Exh. D, p. 136]. [6] Given that upwards of 98 percent of the arrests during so-called "DV incidents" are male, the policy constitutes invidious gender discrimination against males. It calls for arrest without an iota of mens rea on the part of the arrestee or due process. . [7] Gouin was never given Miranda rights, either at the condominium or at the police station. The Miranda form, one of defense counsel’s exhibits is unsigned. He never made an issue of not having received Miranda rights because he never said anything incriminating and there was no probable cause, there was no case, and the charges were dismissed prior to trial. [8] As Plaintiff argued in Gouin v. Gouin et al, 03-CV-11895 [Gouin II], §1985(3) of Title 42 contains four elements. In Griffin, the Supreme Court placed a gloss on these four elements, effectively adding a fifth requirement. It construed the statute's references to "equal protection" and "equal privileges and immunities under the laws" to signify that a plaintiff may recover thereunder only when the conspiratorial conduct of which he complains is propelled by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (a public-conspiracy case), quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (a private-conspiracy case). The fifth element, "invidiously discriminatory motivation," was improperly inserted by the Court. "[I]t is not the proper province of a federal court to rewrite a statute under the guise of interpretation." Aulson, at 4. Where the fifth element is a product of the Supreme Court rewriting the statute, that fifth element is not applicable here.