UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________________________________________________

DAVID MONGIELO, as p/n/g/ of DM, et al.,

Plaintiffs,

1:22-CV-00116-LJV
v.

KATHLEEN HOCHUL, individually and in

her capacity as Governor of the State of
New York, et al.,

Defendants.

_____________________________________________________________________________________________

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANTS’ CROFT, CIMATO, CORNELL, SCOFIELD AND
DONAHUE’S MOTIONS TO DISMISS THE COMPLAINT
_____________________________________________________________________________

I. THE PLAINTIFFS’ CLAIMS HAVE NOT BEEN MOOTED.

The defendants have failed to establish that the plaintiffs’ claims for injunctive relief are

moot. While the state rule mandating masks for students has been rescinded, the same could be

reinstated any time. We have seen over the last two years that mask and other mandates are

imposed, reinstated, then reimposed at the whim of the authorities. The Governor and Health

Commissioner and Education Commissioner have never indicated that mask mandates cannot

be reimposed at any time if there is a spike in cases. Dr. Fauci, the guru of the Lockdown,

 stated: “We have to be careful that if we do see a surge as a result of that, that we're flexible

enough to re-institute the kinds of interventions that could be necessary to stop an additional

surge.” (https://www.10news.com/news/coronavirus/abc-10news-exclusive-one-on-one-with-dr-

fauci).

Further, the defendant superintendents might, on their own authority, or at the urging of the

Commissioner of Education, impose a mask mandate in their own districts. In fact, they

recently did so on January 25, 2022. On that date, each district ignored a State Supreme Court

order and continued to impose the mask mandate.

The plaintiffs’ claims for money damages for past acts would not be mooted, obviously.

Plaintiffs brought their claims under 42 U.S.C. § 1983, which permits the recovery of damages.

The complaint requests compensatory damages. To get such relief, they would of course be

required to show that they suffered an “actual injury.” Carey v. Piphus, 435 U.S. 247, 266

(1978). But the plaintiffs may be able to make such a showing, and the complaint includes

specific factual allegations of actual injury as well as a specific claim for damages. See, e.g.,

Mission Product Holdings, 139 S. Ct. 1652, 1660 (2019) (deeming case live due to claim for

damages); Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701,

720 (2007) (holding a case live due in part to damages claim in complaint).

For the purposes of determining whether this case is moot, the question is not whether the

plaintiffs would actually succeed in obtaining such damages or whether their loss was

substantial. At a minimum, the plaintiffs may be able to prove their entitlement to nominal

damages which precludes mootness. See, e.g., Morgan v. Plano Independent School Dist., 589

F.3d 740, 748, n. 32 (5th Cir. 2009); Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th

Cir. 2002); Amato v. Saratoga Springs, 170 F.3d 311, 317 (2d Cir. 1999). Thus, if there is a

possibility of obtaining damages in any amount, the case is not moot. “A case ‘becomes moot

only when it is impossible for a court to grant any effectual relief whatever to the prevailing

party.’” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (emphasis added). As opposed to the

defendants’ “heavy burden” to show this case is moot, Adarand Constructors, Inc. v. Slater, 528

U.S. 216, 222 (2000) (per curiam), plaintiffs are required only to show that they have some

concrete interest in the case, no matter how small. See Chafin, 568 U.S. at 172 (“‘As long as the

parties have a concrete interest, however small, in the outcome of the litigation, the case is not

moot.’”) (emphasis added).

Indeed, the defendants’ voluntary cessation of the challenged conduct since this action was

commenced does not provide the plaintiffs with all of the injunctive relief they sought. It has

long been settled law that “[t]he voluntary cessation of challenged conduct does

not ordinarily render a case moot because a dismissal for mootness would permit a resumption

of the challenged conduct as soon as the case is dismissed.” Knox v. Services Employees Intern.

Union, Local 1000, 567 U.S. 298, 307 (2012). This is not an “exception” to mootness

principles, but rather an application of them because “[a] case becomes moot only when it is

impossible for a court to grant ‘any effectual relief whatever to the prevailing party.’” Id.

(citations omitted). When a case is litigated to conclusion, the prevailing plaintiff is free to seek,

and a court is free to grant, an injunction to guard against the risk that the losing party will

resume its illegal ways after the court yields its jurisdiction.

 Accordingly, unless the party asserting mootness can prove that it is “absolutely clear that

the allegedly wrongful behavior could not be reasonably be expected to occur,” Parents

Involved, 551 U.S. at 719, its voluntary cessation of the challenged practices does not suffice to

deprive a court of Article III jurisdiction. Defendants here can make no such showing.

A case where I was a plaintiff myself and the plaintiffs’ counsel, Lewis v. Cuomo, 2021 U.

S. Dist. LEXIS 235345 (W. D. N. Y. 2021), illustrates that it is important to carefully scrutinize

mootness claims lest the endless Lockdown rear its ugly head yet again.

Frankly, the plaintiffs would be thrilled if the defendants would stipulate they would not

restore the mask mandate and they would probably even waive attorneys’ fees. Their failure to

do so is the dog that didn’t bark.

II. THE DEFENDANTS HAVE NOT ESTABLISHED QUALIFIED IM-

MUNITY AS A MATTER OF LAW AS TO ALL CLAIMS.

Qualified immunity is an affirmative defense that must be pled and proved by the

defendant. Blissett v. Coughlin, 66 F3d 531, 538 (2nd Cir. 1995). The Second Circuit has also

advised that “defenses which amount to nothing more than mere conclusions of law and are not

warranted by any asserted facts have no efficacy.” Schecter v. Levine, F2d (1996).

Qualified immunity is a doctrine that has been widely criticized in recent years as

encouraging police misconduct that has caused civil unrest in recent years across the country.

The doctrine is clearly on the road to extinction and in the meantime, given its inherently

imprecise nature, should be narrowly construed to promote liberty, which is, after all the whole

point of America we are constantly led to believe. Tyranny is ubiquitous throughout the world

 and throughout history. Why interpret the constitution to promote tyranny? Is that why we

became lawyers?

We join in the chorus calling for qualified immunity to be abolished or extremely limited to

circumstances where imposing liability would be manifestly unfair as an official could not

anticipate the imposition of liability. In this regard, the argument made by the Cato Institute in

their amicus curiae brief in West v. Winfield, Supreme Court, No. 19-899 is particularly relevant

here:

“[L]ower courts increasingly grant immunity simply because there is no case

exactly on point, without meaningfully engaging the question of whether
existing case law would have put a reasonable official on notice that their
conduct was unlawful.”

Here, the defendants, all of whom have sworn to uphold the state and federal constitutions,

must surely be aware that they cannot exercise government power without explicit

constitutional authority, just as the plaintiffs themselves cannot do so. There is simply no need

to point to a specific case for this proposition since they already know the truth of the

proposition.

III. JACOBSON V. MASSACHUSETTS DOES NOT SUPPORT DISMISSAL

OF THE COMPLAINT.

The defendants place heavy reliance on a Lochner-era case, Jacobson v. Massachusetts, 197

U. S. 11 (1905). Justice Holmes famously wrote about Jacobson,“The principle that sustains

compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v.

Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations

of imbeciles are enough.” Jacobson held, on the record before it—“its application to the

 plaintiff in error”19--that the state could mandate a smallpox vaccine without violating the

Fourteenth Amendment’s due process clause. That case is not relevant here for many reasons. It

deals with a dread disease not at issue here: In 18th-century Europe, it is estimated 400,000

people per year died from the disease, and one-third of the cases resulted in blindness. These

deaths included six monarchs. Smallpox is estimated to have killed up to 300 million people in

the 20th century and around 500 million people in the last 100 years of its existence. As

recently as 1967, 15 million cases occurred a year.

The case deals with a mandatory vaccine which is not at issue here as of today. It also

deals with a statute, not illegal executive orders. It heavily depends on centuries of predominant

and informed opinion about smallpox, not a myriad of guesswork about a disease only

identified two years ago. For these reasons, Jacobson is of no relevance to this case whatsoever.

Justice Gorsuch’s lengthy critique of Jacobson in a concurring opinion, also casts doubt

on its continuing relevance:

Jacobson hardly supports cutting the Constitution loose during a pandemic. That
decision involved an entirely different mode of analysis, an entirely different right,
and an entirely different kind of restriction.
Start with the mode of analysis. Although Jacobson pre- dated the modern tiers of
scrutiny, this Court essentially applied rational basis review to Henning Jacobson’s
chal- lenge to a state law that, in light of an ongoing smallpox pandemic, required
individuals to take a vaccine, pay a $5
fine, or establish that they qualified for an exemption. Id., at 25 (asking whether the
State’s scheme was “reasonable”); id., at 27 (same); id., at 28 (same). Rational basis
review is the test this Court normally applies to Fourteenth Amend- ment
challenges, so long as they do not involve suspect clas- sifications based on race or
some other ground, or a claim of fundamental right. Put differently, Jacobson didn’t
seek to depart from normal legal rules during a pandemic, and it supplies no
precedent for doing so. Instead, Jacobson ap- plied what would become the
traditional legal test associ- ated with the right at issue—exactly what the Court does

 today. Here, that means strict scrutiny: The First Amend- ment traditionally requires
a State to treat religious exer- cises at least as well as comparable secular activities
unless it can meet the demands of strict scrutiny—showing it has employed the most
narrowly tailored means available to satisfy a compelling state interest. Church of
Lukumi, 508 U. S., at 546.
Next, consider the right asserted. Mr. Jacobson claimed that he possessed an implied
“substantive due process” right to “bodily integrity” that emanated from the Four-
teenth Amendment and allowed him to avoid not only the vaccine but also the $5
fine (about $140 today) and the need to show he qualified for an exemption. 197 U.
S., at 13–14. This Court disagreed. But what does that have to do with our
circumstances? Even if judges may impose emergency restrictions on rights that
some of them have found hiding in the Constitution’s penumbras, it does not follow
that the same fate should befall the textually explicit right to religious exercise.
Finally, consider the different nature of the restriction. In Jacobson, individuals
could accept the vaccine, pay the fine, or identify a basis for exemption. Id., at 12,
14. The imposition on Mr. Jacobson’s claimed right to bodily integ- rity, thus, was
avoidable and relatively modest. It easily survived rational basis review, and might
even have sur- vived strict scrutiny, given the opt-outs available to certain objectors.
Id., at 36, 38–39. Here, by contrast, the State has effectively sought to ban all
traditional forms of wor- ship in affected “zones” whenever the Governor decrees
and for as long as he chooses. Nothing in Jacobson purported to address, let alone
approve, such serious and long-lasting intrusions into settled constitutional rights. In
fact, Jacob- son explained that the challenged law survived only be- cause it did not
“contravene the Constitution of the United States” or “infringe any right granted or
secured by that in- strument.” Id., at 25.”

IV. THE MASK REQUIREMENT VIOLATED THE GUARANTEE

CLAUSE.

The Guarantee Clause is an important part of the Constitution that has been largely ignored

for 200 years. However, unusual times call for unusual remedies and it is time to dust off the

Guarantee Clause and enforce it. The clause states: “The United States shall guarantee to

every State in this Union a Republican Form of Government. . .” Article IV. It is facile to say

that theterm “republican” has no clear meaning. In this context, the term has a very specific

meaning that provides clear guidance for this lawsuit. James Madison, the chief framer of the

Guarantee Clause, defined a republic as follows in Federalist No. 39:

“[W]e may define a republic to be, or at least may bestow that name on, a government
which derives all its powers directly or indirectly from the great body of the people,
andis administered by persons holding their offices during pleasure, for a limited
period, orduring good behavior.”

The nation’s founding document, the Declaration of Independence, speaks in simple terms:

“deriving their just powers from the consent of the governed.” Thus, the people, who are

sovereign, delegate certain powers to the government by ratifying constitutions and the

government may not exercise any greater powers, lest they cease being a republic, which, of

course, triggers the right of revolution since the government that has seized power is a tyranny.

The right of revolution was first propounded by Algernon Sydney, in his Discourses

Concerning Government (1698). Jefferson cited his influence:

“the world has so long and so generally sounded the praises of his Discourses on
government, that it seems superfluous, and even presumptuous, for an individual to
addhis feeble breath to the gale. They are in truth a rich treasure of republican
principles, supported by copious & cogent arguments, and adorned with the finest
flowers of science.” Letter to Mason Locke Weems, December 13, 1804.

Of course, the founders installed a constitution to avoid the need to take up arms. In addition to

limiting the government to the powers delegated to it by the people in the constitution,

Madison also held that separation of powers is essential to republican government:

“The accumulation of all powers, legislative, executive, and judiciary, in the

samehands, whether of one, a few, or many, and whether hereditary, self-
appointed, or elective, may justly be pronounced the very definition of tyranny.”
Federalist No. 47.

In a brilliant dissent in Mistretta v. United States, 488 U.S. 361 (1989), Justice Scalia stated:
“As John Locke put it almost 300 years ago, ‘[t]he power of the legislative being
derived from the people by a positive voluntary grant and institution, can be no

 other,than what the positive grant conveyed, which being only to make laws, and not
to make legislators, the legislative can have no power to transfer their authority of
makinglaws, and place it in other hands.’ Or as we have less epigrammatically said:
‘That Congress cannot delegate legislative power to the President is a principle
universally recognized as vital to the integrity and maintenance of the system of
government ordained by the Constitution.’ Field v. Clark, supra, 143 U.S. at 692.”As
Justice Harlan stated:

"'The true distinction . . . is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring authority or dis-
cretion as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made.' " Id., at 693-694, 12 S.
Ct.,at 505 (emphasis added), quoting Cincinnati, W. & Z.R. Co. v. Commissioners of
Clin- ton County, 1 Ohio St. 77, 88-89 (1852).

The people of the State of New York delegated the legislative power to the Legislature only.

The Legislature’s apparent delegation to the executive branch of the power to issue directives

exceeds that delegation and also destroyed the separation of powers and thus violates the

Guarantee Clause.There are no cases concerning the Guarantee Clause that remotely resemble

these facts. This is therefore obviously a case of first impression and no dicta from dissimilar

cases bars this court from granting relief. See, e.g., Luther v. Borden, 48 U. S. 1 (1849) (court

would not decide which of two competing factions was the legitimate government). Pacific

States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) (Challenge to initiative and referendum

nonjusticiable). However, later cases suggest that not all Guarantee claims are nonjusticiable.

See, Bauers v. Heisel, 361 F2d 581 (3rd Cir. 1966).

In the absence of relevant binding authority, and no prior cases remotely similar to this

one, the Court should consider the urging of analysts who have argued cogently for a

reinvigorated Guarantee Clause. Arthur E. Bonfield writes:

“A conscientious and rigorous enforcement of the guarantee would not destroy federalism
and its attendant virtues, but only adjust the delicate balance of powers thatany such system

 involves. And that adjustment, by virtue of an enforcement of section4, would solely be one
of recognizing the paramount national concern with certain matters, and the attendant
power of the federal government to deal with them. It would therefore seem extremely
desirable to resurrect the guarantee as an instrument of national government. The salutary
results that could be obtained from an application ofits principles would greatly enhance the
solution of many contemporary problems.”1

Thomas E. Berg is another commentator who urges modern use of the Guarantee Clause:

“The guarantee clause . . . embodies a more vigorous conception of republican

government. This conception, identified particularly with Madison, relies on
representative decision makers who, while accountable to the people, also bear a
responsibility to deliberate in their decision making rather than respond mechanically to
pressures from private groups. The guarantee of republican government can be
interpreted as authorizing federal intervention to protect state governments from
changes in form that would jeopardize the deliberative model. This substantive
description of the guarantee clause compels strengthened judicial review in several
related contexts of constitutional law. The principle supports a general limit on state
delegation of legislative power to state agencies and particularly to private groups.”2

The Court should reach the merits of this claim. The fact that some higher court cases have

held the clause non-justiciable on the peculiar facts of those cases, does not bind this Court on

these quite dissimilar and unusual facts. See, New York v. United States, 505 U. S. 144 (1992)

(“the Court has suggested that perhaps not all claims under the Guarantee Clause present

nonjusticiable political questions”). A holding is limited to cases with roughly similar facts.

It is too late to say the Guarantee Clause is unenforceable. The people ratified the

Constitution believing this language meant something as no one told them it did not.

See, Federalist No. 43, for example.

1Bonfield, Arthur E., "The Guarantee Clause of Article IV, Section 4: A Study in Constitutional
Desuetude" 46 Minnesota Law Review 513, 571-572 (1962); see also, See J. ELY,
DEMOCRACY AND DISTRUST 240-41, n. 78 (1980) (arguing that guarantee clause imposes
nondelegation doctrine on the states).

2“The Guarantee of Republican Government: Proposals for Judicial Review,” 54 Univ. Chicago
L. Rev. 208, 233-34; 242.

10

 The defendants otherwise misconceive of the plaintiffs’ challenge as one

concerning classic procedural due process. Def. Brief at page 14. Rather, we complain

not about the lack of proper procedure for legislation but the lack of legislation at all and

the enactment of drastic, sweeping and unprecedented edicts by executive fiat.

V. THE DEFENDANTS HAVE FAILED TO PROVE ENTITLEMENT TO DISMISSAL

OF PLAINTIFFS’ CLAIMS UNDER SUBSTANTIVE DUE PROCESS AND THE
FOURTH AMENDMENT.

As with virtually every other issue raised in the complaint, this is essentially a case of first

impression, requiring the Court to essentially write on a blank slate and determine which of two

irreconcilable views will prevail—that there is no virus exception to the Constitution, a

document that was ratified when health and epidemics were far worse and medical treatment

virtually non-existent, or that there is a virus exception to the Constitution that essentially allows

the government to grab rule by decree totalitarian powers over all human behavior, essentially

negating each and every individual right specified in the Bill of rights or the body of the

Constitution, merely by citing various tendentious and self-serving “studies” often produced by

the government itself! To put this choice in even starker terms: does the Constitution still exist?

The Fourth Amendment protects citizens from unreasonable bodily seizures and assaults:

"[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity

against unwarranted intrusion by the State.” Schmerber v.California, 384 U.S. 757 (1966).

The requirement of wearing a mask in public is an unprecedented and massive intrusion

into the security of persons and their physical integrity, dignity and health. Masks interfere with

breathing, can cause headaches probably from a buildup of carbon dioxide in the blood, can

11

 increase the risk of infections of various kinds and interfere with speech, including speech in

emergency situations where communication is vital. One study concluded:

“Oxygen concentration inhaled by healthy subjects wearing a surgical mask covering an

N95 respirator decreases to about 17%, and the concentration of carbon dioxide
increases to about 1.2% - 3% in a short period of light work (2-3).With prolonged
mask wearing, untoward reactions may gradually appear. The subjects mainly
reported headache, dizziness, feeling tired and communication obstacles. In real life,
thesituations and time of wearing masks are much longer than the above experimental
research settings.”3

There is little or no evidence that mandating the wearing of masks, in contrast to

encouraging people to wear masks, has been a net benefit to society. This massive intrusion into

our Fourth Amendment rights, requires its proponents to meet a very high burden of scientific

proof they have not yet met.

Since the Lockdown is a new phenomenon, we have no ready precedent for several of these

causes of action. At the same time, the defendants cite only district court cases not binding on

this Court and apparently concede there are no appellate cases on point. Neither of the mask

cases cited discuss the Fourth Amendment. Zinman v. Nova Southeastern Univ., 2021 U. S. Dist.

LEXIS 165341 (SDF 2021). Poe v. Leonard, 282 F.3d 123 (2nd Cir. 2002), cited by the

defendants, involved a different type of claim (videotaping a person undressed), however, the

court did find Fourth Amendment precedents relevant to analyzing the plaintiff’s breach of

privacy claim.

Since the plaintiffs’ challenge an entirely new public policy, they cannot be expected to

produce old precedents to support their claim. On this motion, the burden is on the defendants

3 Angel N. Desai, MD, MPH1; David M. Arono , MD2 “Masks and Coronavirus Disease
2019” (COVID-19), JAMA. 2020;323(20):2103.

12

ff

 to provide clear case law binding on this Court that calls for dismissal. They have failed to do

so.

VI. THE DEFENDANTS HAVE FAILED TO PROVE ENTITLEMENT TO

DISMISSAL OF PLAINTIFFS’ CLAIMS UNDER SUBSTANTIVE DUE
PROCESS AND THE FIRST AMENDMENT.

In their argument for dismissal of plaintiffs’ First Amendment claims, the defendants cite

to L. T. v. Zucker, 2021 U. S. Dist. LEXIS 196906 (N. D. N. Y. 2021). However, that case merely

denied a motion for a preliminary injunction, which involves a higher legal standard than

avoidance of dismissal. The case itself has not been dismissed. While we were not able to locate

the decision in Young v. James, 2021 U. S. Dist. LEXIS 115597 (S. D. N. Y. 2021), this was filed

by a pro se plaintiff and is obviously not binding on this Court. Antietam Battlefield KOA v.

Hogan, 461 F. Supp. 3d 214 (D. MD 2020), seems to analyze masks as a form of forced speech

and does not grapple with the argument herein that masks sabotage the speech of young children in

many ways. In any event, that case denied a motion for a preliminary injunction. It did not

involve the drastic remedy of dismissal without discovery or trial. Finally, Stewart v. Justice, 502 F.

Supp. 3d 1057 (S. D. W. V. 2020), does not involve a motion to dismiss, is not binding on the

Court, and heavily relies on the obsolete Jacobson. Like Antietam, the plaintiff appeared to be

arguing that wearing a mask is a kind of forced speech, which is not the claim here.

Since the defendants provide no binding or persuasive authority, the motion to dismiss

should be denied.

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 VII. THE DEFENDANTS HAVE FAILED TO PROVE ENTITLEMENT TO

DISMISSAL OF THE SECOND CAUSE OF ACTION (VIOLATION OF
PARENTAL RIGHTS).

The main case cited by the defendants on this point, Doe v. Franklin Square Union Free

Such. List., 2021 U. S. Dist. LEXIS 206450 (E. D. N. Y. 2021), is not binding on the Court or

persuasive. It is also not a Rule 12 decision but concerns a motion for an injunction. It heavily

relies on Jacobson, which is discussed elsewhere herein. The court stated “no one is forcing

plaintiff to send her child to public school or to live in New York State.”! Apparently, the court

was unaware that New York has had compulsory schooling since 1874. See, NY Education

Law 3205. As for the second part of that quote, apparently, the court believes that, since one

can always escape from New York by moving, any and all tyrannical edicts must be upheld.

The defendant’s argument against our substantive due process claim is based on their

allegation that no violation of a fundamental right is alleged and that therefore the absurdly

lenient, almost non-existent rational relationship test is all that needs to be met. Here, a sense of

realism that is all too often missing in Lockdown cases is required. Forcing little kids to wear a

mask for six hours a day for no valid scientific reason violates their fundamental right to, you

name it, liberty, privacy, autonomy, security—a rose by any other name would smell as sweet.

This is nothing but intentional and cruel child abuse! That is why I came out of semi-retirement

and dropped everything to file this case.

VIII. THE DEFENDANTS HAVE FAILED TO PROVE ENTITLEMENT

TO DISMISSAL OF DAMAGES CLAIMS FOR ENFORCING THE MASK
MANDATE ON JANUARY 25, 2022.

14

 The Defendants are properly alleged to have the requisite personal involvement in the

constitutional violations alleged by the Plaintiffs. See Farrell v. Burke, 449F.3d 470, 484 (2d Cir.

2006). In Farrell the Second Circuit determined that the personal involvement of a defendant in

an alleged constitutional violation is a prerequisite to an award of damages under 42 U.S.C. §

1983. Id. The Court further noted that “personal involvement is a question of fact.” Id. In the

context of a motion pursuant to F.R.C.P. Rule 12(b), the allegations contained in the Complaint

are taken as true, and the court must draw all reasonable inferences inthe plaintiff’s favor. Austin

v. Town of Farmington, 826 F.3d 622, 625 (2d Cir. 2016).

Here, it is alleged that the defendants continued to enforce the mask mandate on January

25, 2022, even though it had been voided by a State Supreme Court Justice the previous day.

The defendants concede they were advised to ignore the court order and somehow deem their

confession a defense. It is not.

The defendants seek to muddy the waters by interjecting qualified immunity into the

analysis. Def. Brief at page 21. The State Judge voided the only lawful basis for imposing the

odious mask mandate on little children by coercion. The right involved, the right not to be the

subject of governmental coercion without due process, meaning, without any lawful right or

jurisdiction, did not have to be established by Judge Rademaker. It has been clearly

understood as a fundamental right in Anglo-American law for centuries.

15

 IX. THE DEFENDANTS FAILED TO PROVE ENTITLEMENT TO DISMISSAL IN

THEIR OFFICIAL CAPACITIES.

The Superintendents may be held liable in their official capacities because they are

arguably “final policymakers” with respect to choosing to enforce unconstitutional state

mandates. They speak for the District on such matters and there is no evidence they were

instructed to the contrary by their respective boards.

X. THE NINTH AMENDMENT IS RELEVANT TO DECIDING WHETHER THE

PLAINTIFFS’ STATE A CAUSE OF ACTION.

Defendants miss the point of our citation of the Ninth Amendment which does not bode

well for the civics classes they oversee. I have learned much about the Ninth Amendment from

its leading expert, Professor Randy E. Barnett. His view is that “the unenumerated rights that

people possessed prior to the formation of government and which they retain should be

accorded the same protection as those natural rights that ended up being included in the

enumeration.” “The Ninth Amendment: It Means What it Says,” 85 Tex. L. Rev 1-82 (2006).

So, in this very case, all the defendants ask, “where does it say kids have a right to

breathe free?” The Ninth Amendment forecloses by its very terms this silly question. It’s a

natural right of every human being so obvious that it never occurred to the Founders that they

needed to list it in the Bill of Rights. Even the Redcoats didn’t torture our kids the way the

defendants did for the last two years.

16

 CONCLUSION

The motions to dismiss should be denied.

Dated: Buffalo, New York /s/ James Ostrowski

May 25, 2022 James Ostrowski
Attorney for the Plaintiffs
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
jamesmostrowski@icloud.com

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