IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. DV-12-234 rel. DM-12-610
Petitioner/Appellee,
v.
DAVID BRIAN DERRINGER,
Respondent/Appellant,
AMENDED APPELLANT’S BRIEF IN CHIEF
Rel. and inexplicably intertwined with NM Ct. App. No.32,587
APPEAL FROM THE SECOND JUDICIAL DISTRICT COURT
HONORABLE ALISA HADFIELD
DISTRICT JUDGE
APRIL 2, 2013
Respectfully submitted by:_____________________
David Derringer Pro-se
TABLE OF CONTENTS Page number
Summary of Proceedings. Page 1
Legal Argument Page 7
Point 1. Page 4
ABUSE OF DISCRETION
Point 2 Point 2 Page 10
NO JURISDICTION OR JUDICIAL CAPACITY OF HEARING WITHOUT
PROPER LEGAL SERVICE TO RESPONDENT DAVID DERRINGER
Point 3 Point 3 Page 11
BIAS AND PREJUDICE AGAINST PRO-SE PARTIES MANDATING RECUSAL FOR CAUSE
Point 4 Point 4 Page 14
VIOLATIONS OF CIVIL RIGHTS UNDER PRIVATE PROPERTY RIGHTS US CODE TITLE 42 SECTION 1981 AND SECTION 1982 “PROFESSION”
Point 5 Point 5 Page 16
CRIMINAL ACTS OF PERJURY AND FRAUD BY BARRIE
Point 6 Page 17
INTIMIDATION OF A RESPONDENT/WITNESS BY THE COMMISSIONER
Point 7 Page 19
VIOLATION OF 2ND AMENDMENT RIGHTS WITHOUT ANY STANDARD OF PROOF IN CONSPIRACY AGAINST RIGHTS AND DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
Conclusion. Page 45
Statement Regarding Transcripts
There were hearings, exhibits, and transcripts of Bernalillo County Case DV-12-234, DM-12-610, CV-12-1307 and CV-12-10816 that should be considered as all are intertwined with the fraud and deprivations in this matter. As a matter of law and Constitutional rights NM Court of Appeals No. 32,587 is inexplicably intertwined with No. 32,326 and both must be dismissed entirely with prejudice due to failure to legally serve summons on DV-12-234, and the DM-12-610 using DV-12-234 as basis, both without any due process, equal protection, both with biased and prejudiced Commissioner and Judge Hadfield, and both criminally exercising deprivation of Constitutional rights. There is extreme lack of jurisdiction and fundamental error of law in both DV-12-234 and DM-12-610 that mandate dismissal.
STATEMENT REGARDING COURT RECORD CITATIONS
The Appellant is in forma pauperis and thus has no money to have the entire record transcribed in both DV-12-234 and DM-12-610 to quote a particular sentence with a number of “record proper” but has a Constitution right to “due process” opportunity to be heard and the entire court records have been submitted to the court by the Appellant with a duty of the court to view and listen to these court records. The Appellant will quote dates and documents as “record proper” from the Case docket printout of both cases.
TABLE OF AUTHORITIES
US Constitution
New Mexico Constitution Page 41
US Code Title 42 Sections 1981, 1982, 1983, 1985, 1986
Title 28 Section 455(a)
Canon 3(B)(2)(7), 3(D)(2)
Civil Rights 13.4(4) Conspiracy 7.5 Page 30
Code of Judicial Conduct Canon 3 (D)(1) Disciplinary responsibilities
Adamson v. C.I.R. CA9 1984, 745 F.2d 541 Page 15,39
Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) Page 34
Alexander v. Delgado, 84 NM 717, 507 P.2d 778 (1973) Page 42
Baker v. Horn, 201 Supp.2d 592 Page 8
Barela v. Lopez, 76 N.M. 632, 417 P.2d 441 (1966) Page 15
Beal v. Reidy, 80 N.M. 444, 457 P.2d 376 (1969) Page 8
Benevidez v. Benevidez, 99 N.M. 535, 660 P.2d 1017 (1983) Page 15
Byrnes v. US 119 Supreme Court 1275, 143 L.Ed.2d 369 “CA6 (Mich.
California v. Ramos, 463 U.S.
(1983) Page 39
City of Memphis v. Greene , Tenn. 1981 101 S. Court 1584, 451 US
100, 67 L.Ed.2d 769 rehearing denied 101 S. Ct. 3100, 452 US
69 L.Ed.2d 965 Page 31
DB v. Ocean Tp. Bd. of Education, 985 F. Supp. 457, affirmed 159
F.3d 1350 “DNJ 1997 Page 10
Desjardin v. Albuquerque National Bank, 93 N.M. 89, 596 P.2d 858 (1979) Page 16
Doe v. Pringle, 550 F.2d at 596 (10th Circuit 1976) at 599 Page 39
Dunn v. McFeeley, 984 P.2d 760, 127 NM 513, 1999-NMCA-084 cert. denied Page 41
Federalist No. 78 by Alexander Hamilton Page 9
Gonzales v. Raich, No. 03-1454 Page 42
(Ct. App. 1972) Page 44
Hedrick v. Perry, 102 F.2d 802 Page 17
Home Mortgage Bank v. Ryan, 986 F.2d 372, 375 (10th Cir. 1993) Page 42
In re Aquinda, 241 F.3d 194 Page 12,39
In re A.tl Robins Co. Inc., 97 BR 525 ED.Va 1995 Page 12
In re Ayala, 102 N.M. 214, 693 p.2d 580 (1984) Page 17
In re Doe, 519 P.2d 133, 86 N.M. 37 “N.M. App. 1974 Page 13
In re Hey, 193 W. Va.
In re Williamson, 43 BR 813 Page 27
Jones v. Mayer Co., U.S. Supreme Court 392 U.S.
118 Cong. Rec. 7168 (1972) Page 32
Kevlik v. Goldstein, 724 F.2d Page 17
Kleiner v. First National Bank of Atlanta, 751 F.2d 1193 Page 17
Mapp V. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (June 19, 1961) Page 37
Matter of Charge of Judicial Misconduct or Disability, 39 F.3d 374, 309,
US App. DC 97 Page 12
McBeth v. Nissan Motor Corp. USA
Mead v. O’Connor, 66 NM 170, 344 p.2d 478 (1959) Page 43
Mireless v. Waco , 502 U.S. 9, 116 S. Ct. 286, 112 L. Ed.2d 9 (1991) Page 16
Muckleroy v. Muckleroy, 498 P.2d 1357 N.M.,1972 Page 31
Nissan Motor Corp. USA
Nixon v. Fitzgerald, 457 US 731, 763 (1981) Page 9
Nordyke v. King, 229 F.3d 1266 (9th Cir. 2009) Page 30
No. 78 by Alexander Hamilton Page 5
Oliver v. Foster, DC Tes. 1981 524 F. Supp. 927 Page 35
Olmstead v. United States, 277 U.S. 438, 485 (1928) Page 37
Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) Page 29
Nordyke v. King, 229 F.3d 1266 (9th Cir. 2009) Page 20
Parratt v. Taylor,451 U.S.
P.Ed.2d 420 (1981) Page 35
People v. Walsh, 210 Ill. Dec. 126, 652 N.E.2d 1102, 273 Ill.
App. 3d 453, Ill
Petition of Wittrock, 649 A.2d 1053 (Del.
Phelps v. Hamilton
Robbins v. Wilkie, 433 F.3d 755 C.A.10.Wyo.,2006 Page 15
Roberts v. State Bd. of Embalmers and Funeral Directors, 434 P.2d 61
N.M.,1967 Page 15,38
Rozelle v. Barnard, 72 NM 182, 382 P.2d 180 Page 44
Salitan v. Carrillo, 69 N.M. 476, 368 P.2d 149 (1961) Page 10
Schwarz v. Folloder, 767 F.2d 125 (5th Cir. 08/01/1985 )
Smith v. Bradfield, 97 N.M. 611, 642 P.2d 214 (Ct. App. 1982)Page 10
State ex rel. Callaway v. Axtell, 74 N.M. 339, 343 393 p.2d 451, 454 (1964) Page 45
State v. Hargrove, 81 NM 145, 464, P.2d 564 (Ct. App. 1970). Page 42
State v. Jones, 44 N.M. 623, 634, 107 P.2d 324, 331 (1963) Page 44
State v. Marden, 673 A.2d 1304 Me.
State v. Miller, 92 NM 520, 590 P.2d 1175 (1979) Page 42
State v. Sedillo Page 42
State ex rel Anaya v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966) Page 11
Stoneking v. Bank of America
Suster v. Marshall
Charles Alan Wright, Arthur R. Miller and Mary Kay Kane,
Federal Practice and Procedure 2948.1 (2d.ed 1995) Page 36
Schwarz v. Folloder, 767 F.2d 125 (5th Cir. 08/01/1985 ). Page 34
Tyus v. Martinez , 106 Supreme Court 1787, 475 US
90 L.Ed.2d 333 on remand 800 F.2d 230 Page 17
United Salt Corp. v. McKee 96 N.M. 65, 628 p.2d 310 (1981) Page 10,43
US v. Andreas, 39 F. Supp.2d 1048 ND Ill.
US. v. Brenson, 104 F.3d 1267, rehearing denied 113 F.3d 1253,
cert. denied 118 Supreme Court 214, 139 L.Ed.2d 148 Page 12
(Marshall, C.J.) Page 34
US v. Craft, 105 F.3d 1123 “CA6 (Ky.
US v. Ellis WDSC 1942, 43 F.Supp. 321 Page 45
and Mississippi) 270 F.3d 203 5th Cir 2001 Page 28,29
US v. Guest,USGa.1966,86 S.Ct.1170,383 US745,16L.Ed.2d Page 18,27
US v. Hanhardt, 134 F.Supp.2d 972 ND Ill.
US v. Kanchanalak, 37 F. Supp.2d. 1 Page 8
US v. Miller, 161 F.3d 977 cert denied Page 13
US v. Pedreza 27 F.3d 1515 cert denied 115 Supreme Court 347, 513
US 941 130 L.Ed.2d 303 cert denied Page 16
US v. Risken, 788 F.2d 1361 cert denied107 Supreme Court 329, 479
US 923, 93 L.Ed.2d 302 “18USCA 1512 Page 8, 18
297,56 U.S.L.W. 4744 Page 34
Supp. 238 cert denied 107 S. Ct. 896, 479 US 1039, 93 L.Ed.2d 848 Page 18
Westinghouse Electric Corp. v. New York City
14 F.3d 818 Page 8
Wisdom v. Kopel, 95 N.M. 513, 623, P.2d 1027 (Ct. App. 1981) Page 16
SUMMARY OF PROCEEDINGS
This matter started with Barrie Derringer, whom is bi-polar and suicidal, and on medications of codeine, anti-depressants, anti-anxiety, sedatives and tranquilizers, going through a disaster on December 23, 2011 of the Derringer home burning by arson two days before Christmas, killing 5 of the Derringer dogs, just after the week prior of three other Derringer pets had died of old age: Appellee going mentally out-of-control with cult control of her parents and bosses at Maestas and Ward and unethical attorney Alain Jackson, to leave the Derringer Marriage on December 27, 2011, leaving her husband in the aftermath of the disaster. Barrie Derringer had an entire personality change December 27, 2011, preyed upon by the opportunistic scavengers, so as to ruin the Derringer marriage, and possibility even precipitate Barrie Derringer going back to the gang of persons of her former life that included her biker past husband Charles Beverley that had previously gotten Barrie into severe alcohol use, marijuana and cocaine, and possibly other illegal drugs and conduct. All during January, 2012, David Derringer attempted to both put the marriage back together, as David Derringer loves his wife with all of his heart and has never done anything but love and protect Barrie, with no abuse at any time physically, mentally, verbally or other, and at all times David Derringer sought to somehow gain the needed “counseling” for Barrie Derringer that she so desperately needs with bi-polar and PTSD, but the court corruption seeks only to herd citizens into divorce instead of support of the marriage institution and needed counseling for actual emotional problems that arise in the community. (R.P. DV-12-234 2-7-2012 Petition David Derringer) (R.P. 3-1-2012 Motion David Derringer DM-12-610)(R.P. David Derringer exhibits 2-21-2012 TAP Hearings 11:10-3:36) Barrie Derringer’s bosses and others convinced Barrie Derringer to set up her own separate abode with stealing community income and savings, in violation of laws, and with Barrie Derringer going more out-of-control in January, 2012, conspiracy plans were made to break into the Derringer storage by Barrie Derringer with 12 persons on February 4, 2012 on a “Saturday”; with two of those 12 persons being two of Barrie Derringer’s bosses of NAI Maestas as Ward Commercial Real Estate, Debbie and Irwin Harms; to steal all moveable Derringer property. David Derringer had locked storage Unit of 101 Florida SE Unit C from Barrie Derringer in late January 2012 to keep the irrational and mentally unstable “suicidal” Barrie Derringer from professional outfitter David Derringer’s loaded firearms, so as to protect “wife” Barrie Derringer from any harm. David Derringer (legal owner and lessee) caught the gang of 12 persons with Barrie Derringer attempting to take everything of the Derringer’s “personal property” well before filing any “divorce” action, on February 4, 2012 , and called “911”. (R.P. DV-12-234 Tap Hearing exhibits 2-21-2012) (R.P. CV-12-1307) To stop husband Appellant’s “interference” with the planned “larceny” of all property by one marriage partner. The gang of 12 persons did criminal assault and battery against Appellant before the police showed up; that included two Appellee bosses of Debbie and Irwin Harms. With police sirens coming precipitated turning David Derringer loose from the battery, Appellee ran right to her husband, placing both her hands on David Derringer’s face and stated: “calm down, you’re OK”, showing implicitly that Barrie Derringer has “no fear” of harm from Appellant, just as also the Sprint phone text of January 2012 support; as exhibits to DV-12-234 (R.P. DV-12-134 TAP hearing 2-21-2012). The Police report of Appellant’s exhibits of DV-12-234 hearing of February 21, 2012 show there was nothing that happened between Barrie Derringer and David Derringer and no allegations of “domestic violence” were made by Appellee at any time with police on February 4, 2012. The police “ordered” Barrie Derringer to leave the premises with her gang of 12 other persons on February 4, 2012 , and that she could not simply steal all property without a divorce settlement Order from a court of law.
In retribution, retaliation, and revenge for not being able to take all Derringer property before filing any divorce action, and in revenge for the police ordering Barrie Derringer to leave, as well as an attempt to violate and irritate David Derringer into having harsh feelings for his wife’s erratic actions, that would hopefully facilitate a divorce, Barrie Derringer criminally attacked David Derringer in both perjury and fraud by filing a bogus “civil petition for order of protection on February 6, 2012” (R.P. 2-6-2012 DV-12-234) claiming that on February 4, 2012 at the incident at storage in which there were many witnesses, Barrie Derringer “lied” that Appellant had knocked her down, hurt her hip, caused bruises, kept Appellee from leaving and that Appellee is very afraid of physical harm from Appellant, all of which is defeated as “perjury” by the police report and witnesses at the incident. Signing this “petition” of fraud and perjury under “notary” by Appellee constituted a “fourth degree felony” (NMSA 30-25-1), and Appellee is herself a notary and knows better than to lie under oath. No summons was ever legally served (R.P. 2-17-2012 unable to serve.)
In the hearing of February 21, 2012, Appellee presented no evidence, witnesses (although there were many that proved none of the allegations were true), no photographs of bruises, no doctor’s reports, and no “standard of proof” of the fraudulent “petition”. On the other hand, Appellant was never legally served any summons, was prevented from proper testimony, was prevented from presenting all evidence in defense, was prevented from his witnesses, and totally denied due process and equal protection, from a court that had no “jurisdiction or judicial capacity” without service of summons, in “fundamental error”. Appellee then “impeached” herself under Oath to state that despite her written perjury that Appellant had hurt her physically and her fear of Appellant, Appellee testified that “David would not hurt me physically” (R.P. DV-12-234 Feb 21, 2012 hearing).
In total manifest errors of “law” and in Constitutional violations, Commissioner proceeded to grant an order of protection without any standard of proof in any issue, additionally illegally taking all Constitutional rights to firearms under violations of the 2nd Amendment, with full “knowledge” that Appellant’s “profession” is an outfitter/hunter NM Fish and Game #32 that requires firearms for making a living, and a “conspiracy against rights” and “deprivation of rights under color of law” as “criminal federal acts against Appellant, that was “denied” appeal by Judge Hadfield with no substantiation of denial upon “objection” appeal of the “findings and conclusions” of the Commissioner. Appellant has now been illegally deprived Constitutional rights under the 1st, 2nd, 4th, 5th, 13th and 14th Amendments, subjected to cruel and unusual punishment, ongoing for a period of one year and four months, “singled out” in America as a “targeted individual” for Constitutional persecution, from illegal acts by Appellee, attorney Alain Jackson, Commissioner, Judge Hadfield, and the State of New Mexico, subjecting all to civil and criminal actions and civil rights deprivations entitling Appellant to restitution, and compensation of at least $50,000,000.00 from each participant in this illegal “conspiracy against rights”, and “deprivation of rights under color of law” under the meaning of US Code Title 42 Sections 1981, 1982, 1983, 1985 and 1986; with which this court is mandated under “Canon” to disbar attorney Jackson, and seek removal from the bench of the Commissioner and Judge Hadfield; already of which the high courts “have knowledge” and yet protect the NM Corruption of this matter. Appellant has sought “recusal for cause” of the Commissioner and Judge Hadfield, whom stay on the cases to persecute the Appellant. Appellant exposed this corruption to the NM Supreme Court in a petition for writ of superintending control against Judge Hadfield and “was denied”, which then brings us to this appeal of the underling corruption and Constitutional deprivations seeking legal redress. [ David Derringer’s “Petition for Writ of Superintending Control” with the New Mexico Supreme Court under No. 33,826, showing the violations of Constitution, Oath, Code of Judicial Conduct and Canon, exposing the “public corruption” of Judge Hadfield.]
Additionally, now as of December 11, 2012, Appellee has committed additional perjury and fraud with “re-opening” the Order of Protection of DV-12-234 with lies that Appellant has violated the Order of Protection. Appellee makes false claims of violations that have not occurred with simply the Appellant exercising 1st Amendment rights by placing legal public records of court pleadings of DV-12-234 and DM-12-610 on the Internet exposing both the “lies” of Appellee to her parents, bosses, friends and to the courts in fraud, as well as exposing the public corruption of the State of New Mexico family court system of the “known hatred” of men by Commissioner and Judge Hadfield, and the severe “sedition and treason” of deprivation of Constitutional rights without due process by the bias of the judiciary, including violations of Canon, Code of Judicial Conduct, Oath and ignoring all laws that violated the Order of Protection. Appellee, in fraud attempts thus to mis-use the Order of Protection to “protect, herself, Judge Hadfield, bosses Maestas and Ward and her unethical attorney Jackson” from the exposure on the Internet by Appellant of the underlying corruption and lies by all involved. Political opposition “Republican” attorney David Standridge also used one of Appellant’s public record court pleadings of DM-12-610 on his web site to show the corruption of Judge Hadfield. Appellee seeks an Order to muzzle any dissention to exposure of the lies and fraud by the aggrieved Appellant.
LEGAL ARGUMENT
POINT 1:
ABUSE OF DISCRETION
At the onset of the hearing of February 21, 2012 Appellant stated that the hearing could not be held due to no legal service of summons, negating any “jurisdiction or judicial capacity of the court” in “fundamental error”. The Commissioner “ignored” the law and proceeded with the illegal hearing anyway in deprivation of due process and equal protection. The Commissioner constantly intimidated and harassed the Pro-Se Male party Appellant with her well known hatred of men, by intimidating Appellant at all times regarding the “fact presented by the Commissioner herself without merit” that wife Appellee was determined to divorce Appellant and that it is a woman’s right to change her mind and that the court would insist that there is no possible way of reconciliation and that protection would be afforded to Appellee despite any evidence to the contrary. Baker v. Horn, 201 Supp.2d 592; Westinghouse Electric Corp. v. New York City Transit Authority, 14 F.3d 818; Record showns conclusively that this is a “female” court for the benefit of only the female of the species and will disregard any evidence of rights of male parties depriving any male party due process and equal protection in abuse of discretion. Beal v. Reidy, 80 N.M. 444, 457 P.2d 376 (1969). The commissioner conducted herself in abuse of the Respondent, deprivation of exhibits and witnesses and intimidated and sided with the Petitioner at all times getting more severe in bias as the hearing continued. US v. Risken, 788 F.2d 1361 cert denied107 Supreme Court 329, 479 US 923, 93 L.Ed.2d 302 “18USCA 1512, This matter is clearly seen in court record that it was a “woman” commissioner insisting that another “woman” is allowed to gain any possible source of ability for divorce at any time, despite marital contract, and that it is immaterial that Appellee perjured herself to the court. The court itself then claimed that Appellee in past meetings with Appellant in which the court was not present, also perjured herself to Appellant simply to “lead Appellant on” to smooth the divorce procedure. Nixon v. Fitzgerald, 457 US Ill.
POINT 2:
NO JURISDICTION OR JUDICIAL CAPACITY OF HEARING WITHOUT
PROPER LEGAL SERVICE TO RESPONDENT DAVID DERRINGER
At no time was any Subpoena or Summons properly or legally served to Respondent, making the hearing of February 21, 2012 jurisdictionally defective and mandated to be dismissed. Appellant learned of the action only by attempting himself to file his “Petition for Court Ordered Psychiatric Evaluation, Counseling and Psychiatric or Medical Treatment for Petitioner’s Legal Wife Barrie Derringer” and attended the hearing despite not being properly served. This mandated the hearing be abandoned and set for a different date after legal service had been performed. Salitan v. Carrillo, 69 N.M. 476, 368 P.2d 149 (1961) The Order of Protection of February 21, 2012 must be vacated in its entirety as a matter of law. Smith v. Bradfield, 97 N.M. 611, 642 P.2d 214 (Ct. App. 1982). Sua sponte “recusal” of Commissioner was mandated due to her partiality of “women” over any male Respondent. DB v. Ocean Tp. Bd. of Education, 985 F. Supp. 457, affirmed 159 F.3d. Appellant was forced to stand before an impartial judge that was determined to award any remedy to a woman despite any evidence to the contrary and with total violations of the Rules of Civil Procedure. State ex rel Anaya v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966). In this matter the record shows a forceful animosity by the commissioner against Appellant as simply a man trying to save his marriage in total love with his wife, and a showing that his wife had changed her “personality” in only one day to seek this redress due to an extreme situation of PRSD; showing a matter of irrational acts of the Petitioner and not showing a lack of love of the Respondent. People v. Walsh, 210 Ill. Dec. 126, 652 N.E.2d 1102, 273 Ill.
POINT 3:
BIAS AND PREJUDICE AGAINST PRO-SE PARTIES MANDATING RECUSAL FOR CAUSE
It is clear from the record that Appellant was at a serious disadvantage as a “Pro-Se” party, with the court itself depriving Appellant rights to questioning the Petitioner, cross examination, introduction of exhibits and deprivation multiple times to present Appellant’s witness Bruce Davis. State v. Marden, 673 A.2d 1304 Me. Del. USA
POINT 4:
VIOLATIONS OF CIVIL RIGHTS UNDER PRIVATE PROPERTY RIGHTS US CODE TITLE 42 SECTION 1981 AND SECTION 1982 “PROFESSION”
Appellant’s Civil Rights have been violated with rights to have equal protection and protect his property under US Code Title 42 Section 1981. Here, Appellee had already gone to the travel trailer January 2nd, 3rd, and 8th, and taken any and all of what she wanted of the “community property” of both Derringer’s. Appellee then on February 4, 2012, with 12 persons broke into the Derringer storage on 101 Florida SE Unit C after Appellant locked it for Appellee’s own protection of “suicidal attempts” wherein there were totally loaded firearms inside, and Appellee took most of the “community personal property” without Appellant’s agreement or supervision, and thus already has not only her own claims to property, but also $55,000.00 of Appellant’s personal possessions before they were married, including Appellant’s two handguns and two rifles; one rifle admitted in possession of Appellee in the hearing of February 21, 2012. City of Memphis v. Greene, Tenn. 1981 101 S. Court 1584, 451 US 100, 67 L.Ed.2d 769 rehearing denied 101 S. Ct. 3100, 452 US 955, 69 L.Ed.2d 965. Appellee and the courts conducted violations of Constitutional Rights 1st, 2nd , 4th, 5th, 8th, 13th and 14th Amendments. “Commissioner” then unlawfully allows Appellee under Order of February 21, 2012 to again enter the Derringer storage on February 25, 2012, unsupervised by Appellant under “Order of Protection” to then steal and confiscate anything Appellee wants of the “community property” to gain “possession” before any marital settlement can be reached in division of such property, in a total disregard for the rights of husband Appellant. This entirely violates Appellant’s Rights to personal property under US Code Title 42 Section 1982. Benevidez v. Benevidez, 99 N.M. 535, 660 P.2d 1017 (1983). Clear violations of due process and equal protection under the 1st, 2nd, 4th, 5th , 13th , and 14th Amendments against Appellant deliberately by the commissioner, and from ‘the State of New Mexico’. Additionally, depriving Appellant his firearms and “personal property” violated the “right to a profession” as a property right under Title 42 Section 1982. Robbins v. Wilkie, 433 F.3d 755 C.A.10.Wyo.,2006; Roberts v. State Bd. of Embalmers and Funeral Directors, 434 P.2d 61 N.M.,1967 ; Muckleroy v. Muckleroy, 498 P.2d 1357 N.M.,1972 ; Adamson v. C.I.R. CA9 1984, 745 F.2d 541. Barela v. Lopez, 76 N.M. 632, 417 P.2d 441 (1966). It is mandated for this court to stop and reverse this case of the instant and ongoing stealing of Appellant’s property by a “woman” Petitioner mis-using the courts in fraud and perjury to gain all of the community property that was done before any legal division. Desjardin v. Albuquerque National Bank, 93 N.M. 89, 596 p.2d 858 (1979). Since the “jurisdiction” of this matter was lacking in the beginning without proper legal service to Appellant, this matter must be stopped by total dismissal in “fundamental error”. Wisdom v. Kopel, 95 N.M. 513, 623, P.2d 1027 (Ct. App. 1981). Commissioner was simply acting in sexual harassment of Appellant as a “man” to gain the advantage of a “woman” as Petitioner. In re Hey, 193 W. Va. Waco , 502 U.S. 9, 116 S. Ct. 286, 112 L. Ed.2d 9 (1991). Appellee was allowed with her 12 thugs in conspiracy to steal $55,000.00 of Appeellant’s sole and separate personal property. US v. Pedreza 27 F.3d 1515 cert denied 115 Supreme Court 347, 513 US 941 130 L.Ed.2d 303 cert denied.
POINT 5:
CRIMINAL ACTS OF PERJURY AND FRAUD BY BARRIE
Commissioner had direct proof of Appellee lying to the court time after time. U.S. v. Austin, 614 F. Supp. 1208. This mandated an Order to stop this criminal activity in the courtroom and a mandated directive to law enforcement to investigate and prosecute for criminal acts occurring in a court of law by Appellee, with facilitation by attorney Jackson NMRA Rule 16-401 ‘FRAUD WITH CLIENT’ and Rule 16-804. Kevlik v. Goldstein, 724 F.2d 844. Appellee knew she lied in the Petition after already seeing Appellant personally many times in dark, secluded, and alone, and then lied to say she was afraid of Appellant even in the courtroom itself. Her attorney Jackson knew of the perjury and fraud of the Petition and conducted himself to facilitate the fraud and perjury within the courtroom to attain an Order of Protection that is not valid. Tyus v. Martinez, 106 Supreme Court 1787, 475 US 1138, 90 L.Ed.2d 333 on remand 800 F.2d 230; Kleiner v. First National Bank of Atlanta, 751 F.2d 1193; “Fraud by Client” “ Paragraph B of 16-401 ; In re Ayala, 102 N.M. 214, 693 p.2d 580 (1984). Jackson is as criminally implicated as his client Appellee. All actions mandate the dismissal immediately of the Order of February 21, 2012 of DV-12-234 with “restitution” in extreme amounts to Appellant. Hedrick v. Perry, 102 F.2d 802
POINT 6:
INTIMIDATION OF A RESPONDENT/WITNESS BY COMMISSIONER
The record shows Commissioner herself sided with the Petitioner time after time and punished the Respondent, admonished the Respondent and denied the Respondent every time the Respondent presented evidence of Appellee’s perjury and fraud, and the proven indications that Appellee could possibly repair the marriage with counseling. U.S. v. Wilson, C.A. 4 (W. Va.) 1986 796 F.2d 55, on remand 640 F. Supp. 238 cert denied 107 S. Ct. 896, 479 US 1039, 93 L.Ed.2d 848. Commissioner was emphatic that Appellant was not to pursue any attempt at reconciliation or attempt for “mediator or counseling” while also preventing the Respondent for any “care” of the medical and emotional condition of his wife that is clearly not addressed by the Petitioner herself or the court. In short the court does not care if the Petitioner is sound medically, physically, or sound emotionally, but rams through an Order for Protection in fraud simply to help the woman escape a marriage in which she changed her mind and personality in one day after a disaster event on December 27, 2011 . US v. Risken, 788 F.2d 1361 cert denied107 Supreme Court 329, 479 US 923, 93 L.Ed.2d 302 “18USCA 1512. There was a “conspiracy” here to allow the Petitioner to ravage the “community property” and be “protected” in doing so by a “woman” commissioner protecting another “woman” having nothing to do with law in violation of all rights of the “husband”. United States v. Guest, 383 US 745 (1966); Griffin v. Breckenridge, 403 US 88 (1971). In the process, Commissioner allowed the attorney Jackson to facilitate the crimes in total violations of disciplinary responsibilities against an attorney that knowingly conducted fraud with a client. This was a total prejudice to Appellant’s rights to protection against theft, abuse and confiscation of personal “community” property without proper court division. This also entailed the reckless endangerment by Commissioner of Appellee with suicidal past attempts documented with the court with admission by Appellee in possession of loaded Appellant’s firearms taken by Appellee on February 4, 2012. Appellee admitted to having one “rifle” of Appellant in her possession taken in the break-in by Appellee of the storage on February 4, 2012, and then the filing of the Petition for Order of Protection on February 6, 2012 not even mentioning that break-in of February 4, 2012 and the past confiscation of everything Appellee wanted in “community property” from the travel trailer on the West Mesa on January 2nd, 3rd, and 8th. This also ignores that there is also “community property” of piano and music at the home of Appellee’s friend Kris Riley at 8809 Rio Grande #1 NW in Albuquerque, NM in which Appellee has full control and “possession” of that “community property” as well.
POINT 7:
VIOLATION OF 2ND AMENDMENT RIGHTS WITHOUT ANY STANDARD OF PROOF IN CONSPIRACY AGAINST RIGHTS AND DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
Appellant’s rights under the 2nd Amendment have been denied without any standard of proof whatsoever, without any evidence and sustained on proven perjury and fraud of Appellee.
US Supreme Court No. 10-1521 held that the Fourteenth Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. The Court held self defense as a right is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second Amendment right. The Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty. The Order of Protection thus is “federally illegal” against Appellant depriving constitutional rights on a “whim” with no standard of proof by both Appellee and the courts. Under the unlawful Order of Protection, both Appellant, and any other citizen subjected to the pre-formed Order by the 2nd Judicial District Court is denied self-defense as a matter of course of any person affected by an order of protection without any reasoning or cause. In this matter, several Derringer pets have been killed needlessly by coyotes due to the prevention available if only Appellant had had his firearms to protect them. Appellant has also been under a “death threat” with no means of protecting himself. The Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty. U.S. v. Emerson (1999 - 5th Judicial Circuit - Texas, Louisiana, and Mississippi) - reversed the conviction of a man prohibited from owing a gun as part of a marital restraining order on grounds that this deprived him of his Second Amendment rights.
The 2nd Amendment guarantees the rights of people, the word "people" to mean citizens as individuals. Gun ownership is a personal freedom because you can determine your own fate, and this right is near the top of the list of fundamental freedoms. Civil Rights Act of 1866. The Appellant can ‘keep and bear arms” under Title 42 Section 1982 guarantees and "arms" definitely includes “firearms” with use of some form of ammunition, and is not restricted to any other weapon that is not capable of discharge for effect at some distance.
The US Supreme Court No. 10-1521 is the case, McDonald v. Chicago, and was the logical follow to the court's 5 to 4 decision in District of Columbia v. Heller. That 2008 decision established for the first time that the Second Amendment's "right to keep and bear arms" referred to an individual right, not one related to military service. The decision that there is a right to keep a gun in one's home did not state exemption of New Mexico resident Appellant. Justice Anthony M. Kennedy, one of the five in decision stated that: “the point of their ruling -- that the right to bear arms was fundamental to liberty.” The US Supreme court already has incorporated most of the Bill of Rights through a part of the 14th Amendment that says states may not "deprive any person of life, liberty, or property, without due process of law." Appellant did not receive due process or equal protection of the laws in DV-12-234 and rights were taken anyway in corruption of the courts. The combination of both Constitution and US Code rights under Title 42 Section 1981 and 1982 forbids laws that abridge "the privileges or immunities of citizens of the United States." as does the DV-12-234 Order of Protection. The U.S. Supreme Court held that the right of an individual to keep and bear arms is protected by the Second Amendment to the United States Constitution and is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The right to own a handgun in your home, the 2nd Amendment now affirmed as an individual right and enforced against the states, is quite unambiguously to "keep and bear." That means carry, and an order of protection that prohibits that is “unconstitutional”. In 1857, the Supreme Court denied the Bill of Rights to blacks by disregarding the privileges and immunities clause, just as DV-12-234 has done against rights of Appeellant. What the court said back then was illegal and stunning: "It would give to persons of the negro race, . . . the right to enter every other State whenever they pleased, . . . the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. " and it denied those rights to blacks. The Dred Scott case was wrongly decided and the basic privileges of citizenship were well-known, and clearly discussed by the court. "Keep and carry arms wherever they went" is an old, traditional, well-grounded part of being a free man and a citizen, and Appellant’s “citizenship” has been taken by a mere unfounded and fraudulent “allegation” that was impeached by the very person claiming; Appellee.
Appellant is a “free” citizen in New Mexico never convicted of any crime, and has certainly done no crimes against Appellee, a wife that Appellant loves with all of his heart, despite a strong possibility of emotional and mental disorders requiring medications by Appellee in a bi-polar condition that necessitates attaining a “balance” from the taking of prescription drugs of tranquilizers, anti-depressants, anti-anxiety, hormone medications and pain medications with addictive drugs included such a codeine, such as, but not limited to ibuprofen, pseudovent, oxycodone, flonase, benzonatate, hydrocodone, allegra, promethazine, estradiol, guaifen, acetaminophen with codeine, and singulair. All of these drugs when combined with any alcohol or absolutely with any use of marijuana, cocaine, meth or heroin would cause an explosion of delusions or death or strong suicidal tendencies; and the strong possibility of Appellee again as in the past history doing alcohol abuse, marijuana and cocaine that disrupt her way of thinking and indeed create a penchant to “lie”. Peter R. Breggin, MD recent studies show that those antidepressants that are supposedly helping emotionally challenged people like Appellee actually are making them crazy, violent, suicidal, agitated, and Appellee has admitted under oath to being suicidal in DM-12-610 on August 23, 2012. “Accusing” Appellant of domestic violence that never happened, while Barrie admits to actually doing domestic violence against Appellant is of court record. [2] The fact that every one of the recent suicide killers was either on or had been on one of these drugs Appellee uses, and that psychiatric drugs are the second-largest category of drugs, makes the Order of Protection unfounded both in facts and law. Clearly, Appellee does not need “protection” from a man that loves this woman and has her best interests in mind at all times, but needs counseling and “protection” from herself, and depriving Appellant Constitutional rights does not at all address a marriage situation, but only penalizes the husband against being a US citizen, and properly caring for and loving his own wife. In the past marriage with living with Appellant, Barrie was happy and secure in the love between the couple. However Appellee used very little of any prescribed drugs and to the knowledge of husband Appellant did not drink alcohol and did not use any illegal drugs at any time. So for the corruption of the NM courts to illegally defy oath and condone Constitutional deprivations against an American citizen, who can travel freely between the United States without permission, passports, or papers, can speak freely in public or private, and can freely defend himself is profoundly unclear. The latest action of Appellee in DV-12-234 is to attempt to take away the 1st Amendment, causing more waste of tax payer dollars as Appellant will have to defend himself against a new onslaught of criminal fraud without cause. In 1857 in Dred Scott actions were taken to make someone less than a full citizen, exactly what the NM courts are doing to Appellant in DV-12-234, stating that just because of unfounded accusations by Barrie, David was not and could not be a citizen and therefore did not have the protection of the Constitution afforded all full citizens free travel, speech, or carrying arms wherever you went to be a free man and citizen of the United States. Heller makes right to bear arms an individual right, and clearly McDonald v. Chicago does not reverse Heller or change Heller at all; it is consistent with Heller and incorporates the 2nd Amendment against the States. It is now a matter of settled law from the US Supreme Court that Appellant has a right to possess, own, use and carry loaded with ammunition firearms and certainly has a right to use those in a profession of New Mexico Big Game outfitter/hunter #32 whenever he chooses to use that occupation. Neither the trial courts of Commissioner or Judge Hadfield, nor this NM Court of Appeals have any legal ability to “over-rule” the US Supreme Court. Disregarding David’s age, indeed, the notion of the collective right of any man capable of joining a militia to provide for the common defense would be entitled to keep and bear military weapons, so-called assault rifles, and similar, and the Order of Protection would not hold. United States
The case DV-12-234 has had “fundamental error” from the onset, to where the 2nd Amendment violations are simply a culmination of the extreme egregious acts of prior violations of the 4th, 5th , 13th, and 14th Amendments. The current attack on the 1st Amendment (R.P. 3-19-2012 DV-12-234) by Barrie and Commissioner and Judge Hadfield is running rampant and out of control in a total disregard all former case laws, disregard the US Supreme Court rulings and violations of “due process and equal protection” wherein public officials all “swore to God” to uphold the law of the United States and instead performs acts of their own agenda and personal beliefs as simply acts by “judges” without jurisdiction acting without law, but not acts that are “judicial in nature”. Both Commissioner, and Hadfield, simply will not comply with any law of Constitution, NM statutory laws, US Code, or case laws blaspheming their Oath; constituting “criminal perjury” of the justices involved that must be prosecuted to protect the integrity of the judicial system. In re Williamson, 43 BR 813. ; Canon: “Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.” Phelps v. Hamilton
THE RIGHT TO ARMS CLAUSE
Historical Supreme Court ruling that violated 2nd Amendment. U.S. v. Cruikshank (1876) - involved members of the Ku Klux Klan depriving black victims of their rights to assembly and to bear arms. The court decided that neither the First nor Second Amendments applied.
Ruling that applies to Appellant’s right to own firearms even with an Order of Protection. U.S. v. Emerson (1999 - 5th Judical Circuit - Texas, Louisiana, and Mississippi) - reversed the conviction of a man prohibited from owing a gun as part of a marital restraining order on grounds that this deprived him of his Second Amendment rights.
US Supreme Court No. 10-1521- case law this NM Court of Appeals is forced to obey. The case, McDonald v. Chicago, was the logical follow to the court's 5 to 4 decision in District of Columbia v. Heller. That 2008 decision established for the first time that the Second Amendment's "right to keep and bear arms" referred to an individual right, not one related to military service of which Appellant is lawfully entitled. That the right to bear arms was fundamental to liberty. The Bill of Rights through a part of the 14th Amendment says that states may not "deprive any person of life, liberty, or property, without due process of law." But in accepting the McDonald case, it forbids laws that abridge "the privileges or immunities of citizens of the United States."
The deprivation of Appellant’s 2nd Amendment rights on February 21, 2012 and included in the final judgment of November 15, 2012 of intertwined DM-12-610 did not occur pursuant to an official custom or procedure, and was entirely in opposition to any standard of proof, and in violation of the US Supreme Court No. 10-1521 ruling that obviously overpowers Judge Hadfield. Judge Hadfield continues to violate the 2nd Amendment rights in the final judgment of November 15, 2012 and in violation of federal case law already established. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), is a decision by the United States Court of Appeals for the Fifth Circuit holding that the Second Amendment to the United States Constitution guarantees individuals the right to bear arms. The case involved a challenge to the Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute which prohibited the transportation of firearms or ammunition in interstate commerce by persons subject to a court order that, by its explicit terms, prohibits the use of physical force against an intimate partner or child. The Fifth Circuit determined that the Second Amendment does guarantee individuals the right to keep and bear arms. In 2002, the Ninth Circuit ruled that the domestic order of protection denied Constitutional rights Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002). In 2008, the D.C. Circuit held that the Second Amendment protected an individual right, in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) which was reviewed by the US Supreme Court in District of Columbia v. Heller, 554 U.S. (2008). In the District of Columbia v. Heller decision the Supreme Court ruled that the Second Amendment "protects an individual right to keep and bear arms" and Appellant is included as a US Citizen. Moreover, on April 20, 2009, in Nordyke v. King, 229 F.3d 1266 (9th Cir. 2009) a panel of the 9th Circuit affirmed and further expanded the Supreme Court's District of Columbia v. Heller 2nd amendment decision. The court stated that the 2nd Amendment is an individual right and is incorporated against all states. The Second Amendment stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. This court is mandated to remand the issue of 2nd Amendment rights back to both DV-12-234 and DM-610 with “instructions” to reenstate Appellant’s rights with restitution of millions of dollars for depriving Constitutional rights for a period exceeding one year and four months. Sanctions should also be applied against Appellee, Alain Jackson, Commissioner and Judge Hadfield for $50,000,000.00 each and restitution from the State of New Mexico. The 2nd Amendment was presented at all times with the district Court, and Constitutional rights are protected without “preservation” as a matter of Constitutional doctrine, the Charter of existence of this court. Civil Rights 13.4(4) Conspiracy 7.5 . At all times Appellant preserved his 2nd Amendment rights, as under Constitution rights are guaranteed and do not have to be protected day by day or from person to person. Yet at all times from the onset of the hearing of February 21, 2012 and ongoing in both DV-12-234 and DM-12-610 Appellant has continued to state his rights to both firearms, a profession of professional outfitter/big game hunter No. 32 in New Mexico as registration with NM Game and Fish, and a right to an occupation by case laws exclaiming that a "profession" is a property right, which brings it under jurisdiction of the US Code Title 42 Section 1982. Muckleroy v. Muckleroy, 498 P.2d 1357 N.M.,1972. A constitutional right is a legal right of its citizens (and possibly others within its jurisdiction) protected by a sovereignty's constitution. The United States Constitution has several articles and amendments that establish constitutional rights and the US Supreme Court No. 10-1521 established the right for firearms as a "personal right" "not to be infringed", under the meaning of right to "bear" meaning right to possess and hold. The 2nd Amendment involving “firearms” includes such tangible items as “personal property” as defined available for all citizens under US Code Title 42 Section 1982. City of Memphis v. Greene, Tenn. 1981 101 S. Court 1584, 451 US 100, 67 L.Ed.2d 769 rehearing denied 101 S. Ct. 3100, 452 US 955, 69 L.Ed.2d 965. Not only can there be “no infringement” of the right to firearms under the 2nd Amendment, but under US Code Title 42 Section 1982 there can be no “interference” with owning, using and possession of “personal property of firearms”. Jones v. Mayer Co., U.S. Supreme Court 392 U.S. 409 (1968) No. 645.
The “justice” in New Mexico is somewhere between the Spanish Inquisition and burning at the stake, having nothing to do with Constitution or law, but only the egotistical tyranny and oppression of judicial persons in power; New Mexico known as the “land of entrapment” that can easily be seen as a “dictatorship”. Appellant “protected” his 2nd Amendment rights from the unlawful DV-12-234 that was held without due process, equal protection, without legal service of summons, under provable perjury and fraud, and with a proven bias and prejudiced Commissioner without any standard of proof mandated, and with no criminal charges of “domestic violence”. The Commissioner stuck an Order of Protection against David Derringer for a period of two years, summarily taking Constitutional rights under the 2nd Amendment as a matter of illegal “regularity” by a standardized “form” blanketed against all that enter this court. “Order of Protection” 2: Consequences of entry of order of protection (B) “if you are the spouse or former spouse of the other party, an individual who cohabitates with or has cohabitated with the other party, or if you and the other party have had a child together, federal law prohibits you from possessing or transporting firearms or ammunition, you should immediately dispose of the firearm or ammunition.” Clearly, without due process of law, and without any domestic violence violation, and without any criminal conviction of either a firearms violation or domestic violence violation, “federal law” does not presume that the citizen is guilty of any matter to prevent possession, use or ownership of firearms. US Citizens are innocent until proven guilty. The “standardized” form of the 2nd Judicial District Court Order of Protection simply, without due process or cause takes Constitutional rights as a matter of every citizen that comes before them. In this matter involving Appellant, there is no evidence whatsoever to support the order of protection in the record as Appellee produced no witnesses, no doctor’s report of injury or bruises, no photographs of bruises and no evidence of keeping her from leaving; in short here is no evidence whatsoever to sustain the Order of Protection. On the contrary, Appellant has the police report of 2-4-2012 of APD showing no domestic violence, a witness Bruce Davis testifying later in DM-12-610 on August 23, 2012, that there was no domestic violence, and pages of Sprint text phone print outs showing Appellee is not afraid of Appellant and Appellee’s own testimony that she states that “David Derringer would not hurt me physically” in the court record of DV-12-234 on February 21, 2012. The trial court “refused” to allow Appellant’s witness, Bruce Davis at the hearing of February 21, 2012 proving not only a bias of the court that mandated dismissal of the case, but deprivation of due process and equal protection that rendered the trial court without jurisdiction or judicial capacity in “fundamental error”. The trial court sustains an order of protection without any evidence in the court record and defies the Constitution 2nd amendment and US Supreme Court No. 10-1521 in blatant “judicial terrorism” against Appellant. The “federal law”, namely US Code Title 18 Section 922, does not allow Appellant’s second Amendment rights to be taken by a “simple civil allegation” of Appellee that Appellant did domestic violence, when she impeaches herself under Oath thus clearly no domestic violence occurred to even apply or gain any Order of Protection; an act by Appellee of a 4th degree felony. [3] Appellant immediately “appealed” the findings of the Commissioner to Judge Hadfield, who disregarded and summarily denied the legal appeal by simply stating “denied” without any authorities or reasons for the denial, save the total corruption of the New Mexico family court system. 118 Cong. Rec. 7168 (1972), quoted in Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) Id., at 416, quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.). United States v. Taylor , 487 U.S.326, 108 S. Ct. 2413, 101 L. Ed. 2d 297,56 U.S.L.W. 4744. ; Schwarz v. Folloder, 767 F.2d 125 (5th Cir. 08/01/1985 ). Not only then did the Respondent appeal this matter to this New Mexico
There is clear and convincing evidence, factual support, case laws, deprivation of Constitution and blatant violations of NMSA 45-2-804 amongst the “conspiracy against rights” and “deprivation of rights under color of law held against Appellant mandating this matter remanded for complete dismissal of DV-12-234 and DM-12-610. Appellant is also entitled to extreme amounts of money for deprivation of rights. Oliver v. Foster, DC Tes. 1981 524 F. Supp. 927. ; Parratt v. Taylor,451 U.S. 527, 101 Supreme Court 1908, 68 P.Ed.2d 420 (1981) . In the meantime, Appellant has been denied his Constitutional rights for over a year, deprived income by legal occupation involving firearms, and made homeless and destitute by the public corruption of New Mexico, mandating this court to legally correct this matter by reinstating Constitutional rights; sanctions and punishment for all involved in taking 2nd Amendment rights and profession; Order for law enforcement criminal prosecution against Appellee for perjury and fraud; federal investigation of public corruption including violations of oath and “conspiracy against rights” and “deprivation of rights under color of law” that involves removing Commissioner and Judge Hadfield from the bench; and restitution for Appellant Derringer in extreme amounts of money from the justices involved and from the State of New Mexico. (citing 11A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure 2948.1 (2d.ed 1995) see also Suster v. Marshall, 149 F.3d 523, 533 (1998). ; Code of Judicial Conduct Canon 3 (D)(1) Disciplinary responsibilities: Thus, the “corruption” of New Mexico justices knows no bounds, and is instrumental in taking all rights from a US citizen without legality. In this matter, Appellant’s citizenship and Constitutional rights are taken by a fraudulent “civil allegation” of Appellee, with facilitation of public corrupt justices not interested in seeking to maintain a marriage, and without a rational decision to have both parties undergo some counseling to save the marriage, with Appellee admitting to being suicidal under oath, and while under her bipolar drugs, in PTSD, and possibly back on cocaine, with her mental state in question and her emotional state in turmoil. New Mexico U.S.
The provisions providing for rights under the Bill of Rights incorporation into the due process clause of the 14th Amendment where a state can no longer restrict the rights guaranteed in that provision. The 2nd Amendment right cannot be restricted or denied by the Order of Protection as simply a write in of a pre-select form, that always incorporates a deprivation of use, ownership and possession of firearms as a standard of any order of protection against any person that comes before the court. In this matter, the original due process and equal protection provisions of the 5th and 14th Amendment were already violated by DV-12-234 without legal service of summons in personam, discharge of duties and rights to present evidence, have witnesses, and proper cross examination deprived. These egregious acts in the original hearing of February 21, 2012 make it without jurisdiction and judicial capacity in "fundamental error". The egregious acts that followed violate every provision of the Constitution, both Federal and State, as well as violations of federal property rights laws under the US Code Title 42 Section 1982, that includes a New Mexico case law support of an occupation and profession being also a "property right". Roberts v. State Bd. of Embalmers and Funeral Directors, 434 P.2d 61 N.M.,1967. December 11, 2012, Appellee again commits perjury and fraud again to attempt to reopen the legally defective DV-12-234 again to take away Appellant’s 1st Amendment rights. (R.P. 3-19-2013 DV-12-234) The corruption of the 2nd District Court's family court division is extreme, and Commissioner “denied” a motion to state what standard of evidence and proof will be used by the court in deprivation of 1st Amendment rights, just as none was used to deny Appellant’s 2nd Amendment rights, and Commissioner “refuses” to recuse for cause. In short, when a proper pleading asks the court if the law will be followed, the DV-12-234 court declines to follow the rules of civil procedure or the law. The various provisions of the 1st Amendment, guaranteeing the freedoms of speech, the press, government, and assembly, and the provisions of the 2nd Amendment guaranteeing the "right to bear arms" are fundamental rights that "cannot be infringed". No simple "allegation" of claimed and yet totally unsubstantiated "domestic violence" by Appellee is far less than sufficient for any court to rule against the Constitution in violation of Oath, making such Order or Protection both in violation of the Supremacy Clause, as well as sedition and treason against the United States under the meaning of the 14th Amendment Section 3. Doe v. Pringle, 550 F.2d at 596 (10th Circuit 1976) at 599.; In re Aquinda, 241 F.3d 194. ; Adamson v. C.I.R. CA9 1984, 745 F.2d 541.
The State of New Mexico U.S. United States
The United States Constitution 4th Amendment IV prohibits unlawful search and seisure, upon which this trial court both seizes and denies possession of firearms without due process and equal protection in a hearing that is jurisdictionally defective, of which rights are guaranteed to Appellant as a "personal possession" in the recent ruling of the US Supreme Court No. 10-1521 that allows "firearms" to be used not just as a "militia" but as "personal protection". The Order of Protection of DV-12-234 used in legal error and “judicial terrorism” against Appellant all underlying this entire malicious filing of divorce DM-12-610 must be dismissed and released immediately against Appellant. Constitution of the State of New Mexico Article II Bill of Rights Section 4: The New Mexico Constitution, thus grants Appellant even more rights to protect his profession, his property including firearms, and use of firearms legally to protect and defend his own life and the lives of his livestock and animals.
Testimony proves (R.P. DM-12-610 Hearing 8-23-2012) that at no time did Appellant ever “touch” Appellee on February 4, 2012, on that day, nor at any other time in the history of the Derringer’s relationship or marriage did any domestic violence occur by Appellant, but Appellee admitted under oath (R.P. 8-23-2012 DM-12-610) to hitting Appellant in the face multiple times in “domestic violence” of her own, not reciprocated by Appellant. Commissioner defied rights of due process to keep Appellant from having his witness Bruce Davis testify before placing the order of protection against Appellant on February 21. 2012. Bruce Davis has now testified (R.P. DM-12-610 on 8-23-2012) that all statements of Appellee to gain the Order of Protection are false, fraud and perjury. Dunn v. McFeeley, 984 P.2d 760, 127 NM 513, 1999-NMCA-084 cert. denied. Judge Hadfield “did not” deny Appellant’s “appeal” of DV-12-234 with facts that deprivation of 2nd Amendment rights against David Derringer are supported by substantial evidence, as there was “no evidence”. Judge Hadfield simply denied an appeal of DV-12-234 with no mandated hearing on the matter, and without any explanation whatsoever. (R.P. DM-12-610 4-16-2012) Proper appeal was taken. (R.P. DM-12-610/DV-12-234 on 5-9-2012) On June 6, 2005, the United States Supreme Court ruled that. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail...” in Gonzales v. Raich, No. 03-1454 SEE United States v. Colorado Supreme Court, No. 98-1081, 10th USCA. Case DV-12-234 has violated the Supremacy Clause by attempting to regulate an area of federal law controlled in the Second Amendment. Alexander v. Delgado, 84 NM 717, 507 P.2d 778 (1973); State v. Sedillo, ; Stoneking v. Bank of America United States US
In the United States of America, a citizen is presumed innocent of any and all allegations against him, until a valid court of law is convened under civil or criminal circumstances deems that citizen “guilty”, that would disrupt Constitutional and statutory rights, privileges and immunities by evidence in extreme so as to allow any disabling of those rights. Mere “allegations” by another citizen, or the mis-use of a court without jurisdiction, without judicial capacity and without or with mis-use of power is not enough to take away Constitutional rights or rights to a profession under “private property rights” as with the meaning of the US Code Title 42 Section 1982. The Second Amendment states: A well regulated Militia, being necessary to the security of a free State
CONCLUSION
It can unquestionably be seen at this time, that this matter began with the illegal lack of jurisdiction and judicial capacity in fundamental error and proceeded in bias and prejudice to deprive Constitutional rights; all of which is in manifest errors of law; mandating both DV-12-234 and DM-12-610 to be dismissed with prejudice re-instating all of David Derringer’s Constitutional rights with “restitution” and not granting any divorce for Barrie Derringer, with her basis of perjury and fraud.
Respectfully submitted
By:________________________________
David Derringer Pro-se
CERTIFICATE OF COMPLIANCE
Appurtenant to Rule 12-305 the Amended Brief in Chief uses Times New Roman of fourteen (14) point, double spaced.
Appurtenant to Rule12-213(F) the Amended Brief in Chief body contains properly (10,989) words.
David Derringer Pro-se
Box 7431, Albuquerque , NM , 87194
Albuquerque, New Mexico 87194
ADDENDUM
Copy of dockets:
DV-12-234
DM-12-610
[1] This court should take “judicial notice” of the testimony under oath by Barrie Derringer on August 23, 2012 in DM-12-610 where she admits to being “suicidal”.
[2] Under oath, Barrie Derringer admitted criminal domestic violence against David Derringer by hitting David Derringer in the face multiple times in some rage of emotional instability in 2010, in which David Derringer did not participate in the attack, nor did he “defend” and tried to understand the bipolar and mental instability of his wife Barrie Derringer.
[3] “perjury consists of making a false statement under oath or affirmation under notary, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding, knowing such a statement to be untrue. Whoever commits perjury is guilty of a fourth degree felony” Section 30-25-1 NMSA (1978). “malicious criminal prosecution consists of maliciously procuring or attempting to procure an indictment or otherwise causing or attempting to cause criminal charged to be performed or prosecuted against an innocent person, knowing him to be innocent. Section 30-27-1 NMSA
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