UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO 03-10999
HEIDI
K. ERICKSON
Plaintiff
VS.
WATERTOWN
HEALTH DEPARTMENT ET. AL.
Defendants
MEMORANDUM OF
LAW
IN SUPPORT OF
EMERGENCY INJUNCTION RELIEF
AND REQUEST
FOR HEARING
1.
Pointing
to this Honorable Courts obligations to protect the Constitution and the
public. Plaintiffs suffering the
immediate unlawful losses of her family of Persians, perishing at the hands of
the perpetrators (Defendants) demands emergency action. Actions that have as its goals to stop
unnecessary suffering and the loss of property especially domestic animals, in
a society that cherishes liberty, privacy and unnecessary suffering, require
and demand of its courts to hearing these issues immediately. Violations of constitutional rights serious
and should be deterred. Citing Grasso: Violation of constitutional rights
triggers the exclusionary rule only when the police have obtained evidence as a
result of the constitutional violation.
Moreover, if the exclusionary rule is to serve its deterrence function,
the rule must also apply when the connection between the illegal act and the
evidence is less obvious [as in this case].
In short, the exclusionary rule must apply not only to the direct result
of the illegal conduct, but also to the fruit of that conduct. Suppression Matters Under Massachusetts
Law, page 357 Grasso 1999. Erickson request that this Honorable Court
consider deterrence in support.
2.
The
Supreme Judicial Court has established a four-part test in considering requests
for Preliminary Injunctions under rule 65 of the M.R.C.P. In Packaging
Industry Group. Inc. & another v. Paul E. Cheney, 380 Mass. 609, 405
N.E. 2d 106, 1980, the Supreme Judicial Court states the definitive standards
for granting preliminary injunctions, under Cheney, the moving party must show
that:
1. The likelihood of prevailing on the merits of the dispute;
2. There is a substantial threat that the Plaintiff will suffer harm;
3. That the threat of harm to the Plaintiff outweighs the threat of harm that the injunction would cause to the Defendant; and
4. That granting the preliminary injunction will serve the public interest.
3. In Cheney, the Plaintiff recognized that granting of a preliminary injunction is a remedy invoked to maintain the status quo pending a hearing on the merits of the dispute. Id at 16-17 “What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits” Id. At 16. In the present case the risk of the harm to Ms. Erickson from the loss of her Persian family, the loss of the enjoyment of her property, the loss of her accommodation for her seizure problems, the loss of her reputation and the deprivation of her 4th, and 14th amendment rights.
4.
In
order for a preliminary injunction to issue pending trial, Erickson must also
show that she will suffer irreparable harm in a greater degree than Defendants
before trial if the injunction does not issue.
The irreparable harm must be one that is presently occurring, that will
be cured by the issuance of the injunction, and that is not capable of
vindication in final judgment. Packaging Industries Group v. Cheney, 380 Mass. 609, 616, 405 N.E. 2d.
106, 112. Ms. Erickson will indeed and
has already suffered both physical and emotional damage from losing her Persian
family, deprivation of her rights, and the public scorn of humiliation from
being a victim of a unlawful search and seizure.
i.
Erickson
argues that her cats are perishable creatures being subject to irreparable harm
Veterinarian William Johansen, DVM (Exh.7) formerly the Chair of the Massachusetts
Veterinary Association, attests “subjecting any cat, typically homebound and in
Ms. Erickson case absolutely homebound, to displacement
of it’s home can be so stressful as to be life threatening.
ii.
Erickson contends undue
influence
from the media motivated the police to their wrongful search, and the Watertown
Health Departments actions. (See argument at page ).
iii.
Erickson
states that despite the claims from Defendants’ (Commissioner Ward of the
Watertown Health Department) Erickson’s apartment
is clean and that the allegation(s) made against her in Ward’s affidavit of
“urine stained floors”, “feces laden cat litter boxes” and “feces on the
floors” is not supported by the photographic evidence (herein at Exh.0) and
attached Defendants responsive pleading entitled ‘Town of Watertown’s
Response to Allegations of Defendant Heidi Erickson’ (Exh.W) W) filed in
this consolidated case Investments Limited vs Heidi Erickson and Watertown
Health Department, Interested Party; Docket # as opposed to Heidi
Erickson vs Watertown Health Department Docket # 03-10999. Erickson contends that the Defendant’s
allegations are unsupported as there neither are nor were: odors, and/or damage to the apartment and no health risks. Erickson supports her contention with affidavits
Richard Fraser, MD(Exh.1a,b,c); K. Terrell(Exh.2); J. Reposa(Exh.3a,b,c); D.
O’Connell (Exh.4) support that there was never any problems with odors or the
condition of the floor .
iv. Erickson argues that there was never any potential for property damage to her apartment and points to the photos (Exh. 0) submitted by Defendants in its responsive pleading offered by in the state court action pleading entitled ‘Town of Watertown’s Response to Allegations of Defendant Heidi Erickson’ (Exh. W). In support of Erickson’s position she attaches affidavits from a flooring specialist J. Reposa(Exh.3) who examined her floor immediately after Defendants issuance of condemnation claims arising from its inspection and search of Erickson’s Watertown apartment on 5/7/03 attests “I found no animal staining or waste, no dander or permeated odors and no other filthy buildup”; Affidavit; K. Terrell(Exh.2) who visited Erickson regularly; D. O’Connell (Exh.4)neighbor; D. Creighton (Exh.5); and R. Miller(Exh.6); William Johansen (Exh.7) supportive of Erickson and attesting to their personal knowledge of how Ms. Erickson cares for her cats, the condition(s) in her apartments and cats and those that support the contention that the Watertown apartment not damaged.
15.
Erickson
who has been raising and caring for purebred Persians all her life, (Exh. ) a
Harvard educated 40 year old who has never been charged with animal cruelty but
until recently now suffering allegations as to her care of her animals. Erickson has for many years worked with
licensed Veterinarians from Massachusetts, Illinois, and California in the care
and treatment of not only her purebred Persians but in private practice as a
veterinarian assistant with private clients and their variety of domestic
pets. Ms. Erickson hired by Angel
Memorial Hospital to work in the ICU has studied and cared for animals in
research under Noble Laureate Charles Higgins, MD and Sean Murphy, MD PhD. Erickson has been given information she
believes from reliable sources that some of her beloved Persians have perished
at the hands of Defendants while under their custody and control. In addition Erickson subpoenaed (Exh. ) the
medical records of all the animals taken from her Watertown apartment to be
produced for the hearing on emergency injunctive relief scheduled for 5/28/03
the day before the removal of this action, whereby Defendants failed to provide
the subpoenaed information. A strong
presumption should prevail that the claims and inferences made by Erickson on
the condition of her cats are true (the subpoenaed information would have shown
the medical records documenting that some of her Persians have perished as well
as subjectively document the condition of her Persians on the day of their
seizure will demonstrate the inconsistencies with the allegations Defendant
proffers against Erickson) especially in light of the actions of Defendants and
the long history of settled law in this area the inferences drawn should favor
Erickson.
16.
Veterinarian
William Johansen, DVM (Exh.7) formerly the Chair of the Massachusetts
Veterinary Association, and Animal Control Officer for Cambridge, Somerville
and surrounding areas who is very familiar with animal abuse and neglect cases,
home inspections and especially the ethical treatment of domestic animals
provided an affidavit to Erickson, Animal Rescue League and the courts
supporting her ethical, humane and excellent care of her animals writes in his
affidavit “subjecting any cat, typically homebound and in Ms. Erickson case
absolutely homebound, to displacement of
it’s home can be so stressful as to be life threatening. In Ms. Erickson’s case her cats have only
known Ms. Erickson as it’s only caregiver from the day they were born and that
their removal would be both harmful emotionally and physically to both, as well
as cruel and inhumane”.
17.
Dr.
Johansen having known Erickson’s cats for years attests: “I personally know of
Ms. Erickson’s conditions in her apartments from my many visits, some of which
were on fairly short notice, I found her apartment clean with no strong odors”
“I know that both her cats and Ms. Erickson are tremendously attached to each
other. I have witnessed how much her cats are attached to her as when ever she
calls them by name, whom ever she has called, runs to be with her.” “Knowing
pet people for as many years as I have I am personally assured of her extreme
attachment to her cats”.
11.
Lastly
Dr. Johansen writes: “Cats are not commodities but animals to be provided
humane care and treatment as set forth I the Animal Welfare Act 7 U.S.C.
2132-1(b)1. In my professional opinion
removing the cats from Ms. Erickson’s care would result in devastating and
irreparable harm to her and the cats.”
12.
On
5/7/03 the State by its Animal Officers Lt. Borgal and Champanue (Defendants)
of Defendant Animal Rescue League and without a licensed veterinarian removed
from Erickson’s apartment approximately 25 adults, 15 kittens under the age of
2 years and 13 newborn kittens ranging from 48 hours to 4 weeks old. In an action so inhumane, disruptive and
devastating to the nursing mothers, by removing them from their accustomed and
secured environment, and known caregiver into a shelter guaranteed their demise
and death sentence from natural physiological reactions that are both
physically and emotionally destructive - the Defendants and officers knew this
risk and/or should have known.
13.
The
Animal Rescue League has known of the Affidavits provided by Dr. Johansen and
Attorney Susan Hegel (see below) on Heidi Erickson for nearly a year, and
knowing these facts articulated by a Massachusetts Licensed Veterinarian, and
by an practicing Attorney and officer of the court fully admitted to the Bar in
Massachusetts, its inhumane and devastating actions on 5/7/03 including removal
of newborn kittens with their nursing mothers, and its refusing to accept
assistance from Veterinarian T.A. Abaskharoun, DVM who has his practice
directly across the street from Erickson’s apartment who offered (immediately
prior to the removal of Erickson’s cats after the officers arrived) to evaluate
Erickson’s cats pursuant to the search warrant and to determine according to
this search warrant which cats were being denied sustenance and which cats,
kittens or newborns were at substantially high-risk to be remove see Affidavit
Erickson (Exh. ), negligently, maliciously and purposely committed malpractice,
infliction of emotional distress and animal cruelty. Animal Rescue League Lt Borgal said he didn’t need the assistance
of a Veterinarian and then made a medical determination (without the aid of a
Massachusetts licensed veterinarian when one was available) to remove all
Erickson’s Persians irregardless of the health and or well being the animal and
irregardless of the parameters or lawfulness of the search warrant.
14.
Ms.
Erickson has a long history of excellence in high-quality care for her animals
in both the humane way she provides and cares for them as family members and in
the excellent environmental conditions she provides for them: verified by her
volunteer participation in the Cat Fanciers Environment Program (Exh. ) the
standards of which high and require a licensed Veterinarian to inspect report
and rate the conditions of the cats environment, and with each inspection Ms.
Erickson has achieved the highest ratings of Excellence over years of
participation (Exh. ).
18.
There
is also a long history of other documented high quality care that Erickson has
substantiated over the years evidenced in affidavits from several well
respected people including: Attorney Susan Hegel; Kenneth Terrell; Persian
breeder Donald Creighton; animal lover Roland Miller; Persian breeder Marian
Ramsdell.
19.
Housing
Attorney Susan Hegel, Esq. (Exh.14) attests to the conditions in one of
Erickson’s former apartments and Erickson’s deep emotional attachment to her
cats “I believe that she is extremely attached to her cats and that if she was
involuntarily separated from them, she would fall apart emotionally and
functionally” in addition verifying the clean conditions of Erickson’s
apartment and cats “I saw several cats and litter boxes all of which were
clean”.
20.
Kenneth
Terrell, avid hobbyist and Senior member of the Tech Model Railroad Club of
MIT, attests “I have known Ms. Erickson for many years and know of her love and
unusual physical reliance and personal attachment to her cats and dog.”
“Sometimes I would visit Ms. Erickson unannounced and other times she knew I
was coming over and each time I visited I found her Watertown apartment to be
clean and basically odor free. Ms.
Erickson’s cats and kittens have always appeared well-fed, friendly and
healthy”(Exh. 2).
21.
The
living conditions Ms. Erickson provided her cats and kittens at the Watertown
apartment adequate and reasonable given that there is approximately 2000 square
feet including both the main apartment and the basement, there is at least
100lbs of cat food, bowls, running water and several cat toys, and at least 4
carpet covered cat climbing apparatus, and non-stained floors (Kitchen &
bath floors are white, bedrooms and front room hardwood see Affidavit J. Reposa
flooring specialist (Exh. 3) Affidavits Terrell (Exh.2) attest to the high
quality of care and of the condition of the Erickson’s cats at her Watertown
apartment and Affidavit Jerry Reposa (Exh. 3) attests to the conditions of the
flooring.
22.
Fellow
hobbyists Donald Creighton who visited Erickson’s apartment on Beacon Hill in
April 2003, attests “I personally know the excellent care Ms. Erickson gives to
her animals I noticed no offensive odors, noticed no animal waste and found her
apartment to be clean and her cats well fed and maintained” (Exh 5).
23.
Fellow
animal lover Roland Miller who also visited Erickson’s Beacon Hill apartment
attests that “sometime before Easter this past April I observed several Persian
cats walking around in what was a clean environment...There appeared no
evidence of lack of care or negligence of these cats since they are long-haired
and, unless they are to be shown, ungroomed” “noticed no unpleasant odor, nor
cat feces or urine anywhere but in the proper cat boxes…[I] have known Ms.
Erickson for 4-5 years now and find her to be very conscientious and caring
about her cats” “A Great Dane dog was also there, and, although thin, appeared
normal in looks and behavior.” (Exh. 6).
Balance of harms Plaintiff
vs Defendants:
7.
The
harm upon Defendant Animal Rescue League interests in this matter if this
Injunction were to issue and Order the immediate return of Erickson’s animals
taken from her is not a harm upon the Defendants’.
8.
The
harm upon Erickson is physical, emotional and companion animal
deprivation. Erickson suffering is
likely to be the same type of grief and depression found as that suffered at
the loss of a human family member. Also see Young v. Savinon, 492 A.2d
385, 387-88 (N.J. Super. Ct. App. Div. 1985).
Erickson’s animals provide a nonhuman function as providers of nonhuman
social support, and absence of social support is know to be detrimental to
human health and well being. Anthropomorphism and anthropomorphic
selection-beyond the ‘cute response’, James Serpell, U. Penn. School of
Vet. Med. Society & Animals Vol 10(4) Dec2002 pp.437-454.
9.
The
harm upon Defendant Health Department interests in this matter if the
Injunction ordered a stay to its administrative actions is that an
administrative process would be stayed at the offices of the Watertown Health
Department in regards to its actions, if any, to condemn Erickson’s apartment –
there is no objective evidence that there is any public health risk.
10.
The
harm upon the Watertown Police Department interests in this matter if the
Injunction ordered would not be a harm, by being ordered to refrain from
further invasions of privacy, and
ordered to return items seized.
11.
The
harm upon the Defendant Landlord (Batsamian and Investments Limited) is one of
presumed “potential” damage to the apartment that can be vindicated at final
judgment.
A Preliminary
Injunction is warranted:
12.
This
dispute centers around the Defendants’ undue influence from the media, bad acts
to acquire a search warrant (Exh. 9) unlawfully entering Erickson’s apartment
on 5/5/03, and using what they found (fruits) to support a fraudulent search
warrant. The tainted search warrant,
and its language was superceded by Defendant misconduct and forceful seizure of
Erickson’s animals a harmful misconduct and misuse the of powers of Defendants
the public expects to constitutional protections respected, lawful conduct and
fairness.
13. Erickson as well as her Persians are at a significant threat of irreparable harm and or death and the loss of her health nor the Persians lives could be vindicated in final judgment. As such, Ms. Erickson has satisfied the irreparable harm test cited in the Packaging Industries.
14. Taken all together and in light of these facts, it is likely that Ms. Erickson will prevail on the merits. As such Ms. Erickson has satisfied the first three prongs of the Cheney test. In addition.
MERITS
24.
Erickson
claims that the overt unlawful acts of Defendants motivated by an undue
influence created by the media and that the reports made by the media effected
each Defendant’s objective and subjective sensibilities.
25.
Erickson
attaches 24 newspapers articles (Exh. 11) from newspapers as Boston Herald,
Boston Globe, a Lexis search retrieved 125 ‘hits’ with ‘heidi erickson’ and in
excess of 24 using ‘Beacon Hill’, ‘Beacon Hill and dead cats’ and other
articles printed in publications having a smaller distribution not available
for Lexis searches for example known articles about Heidi Erickson were printed
in the Metro, Beacon Hill Times, Watertown Tab, Cambridge Tab, and other
neighboring cities publications in Belmont, and Arlington then there are many
other unknown articles Erickson has yet to find about her.
26.
The
news media was airing stories on TV news morning, noon and night editions. The
media was hounding Erickson especially since 5/4/03 when it was found that
Erickson was living at 78 #1 Prentiss Street in Watertown, MA. In addition the news media made many
announcements that Erickson was expected to be in the Boston Housing Court on
5/6/03 and aired photos of dead cats that were frozen while citing Boston
Inspectional Services fraudulent information about the condition of Erickson’s
apartment, condemnation and her cats.
WATERTOWN POLICE ENTRY Monday 5/5/03 was without exigent circumstances
27.
Erickson
pointing to Watertown Police Report # 3008645 (Exh.9) describes in limited
detail the Defendant Police entry into Erickson apartment on 5/5/03. Erickson contends that neither an odor of
cat litter box nor a barking dog on Beacon Hill an emergency and/or exigent
circumstances purrmissible under any theory of lawful entry. Commonwealth v. Skea 18 Mass.App.Ct.685
(1985) which relies heavily on Katz v
United States 389 US 347, 357 (1967) “probable cause & exigency may not
be enough to justify a warrantless search: that in addition the search must
fall within one of several enumerated groups of classes to avoid 4th
Amendment invalidity.
Police
Incident Report #3008645 (Exh.9):
28.
The
said police report denotes that Erickson of 78 Prentiss Street was the only
suspect and occupant of 78 Prentiss Street on 5/5/03 and indicates the time and
date being 191442, contains information that Erickson was just seen by her
neighbor at 1730 hours that day. Less than two hours before the incident!
29.
The
reporting officer McDevitt writes: “Concerned for the safety of any occupants,
… “ and then articulates nothing to support why he was concerned for the
occupant(s) especially in light of the fact that the occupant (Erickson) was
just seen less then two hours before.
There was no evidence of a violent crime, no complaint of domestic
abuse, no fresh blood trail etc.
30.
The
report continues: “then while checking for any injured or possible deceased
occupants” again the reporting officer doesn’t articulate any circumstances to
support why he believed that the occupant was inside, why he believed that
there was anyone injured. The smell of
a dead human body distinct and typically noticeable after days of warm weather,
the police knew or should have known that distinction. The inconsistencies and unreasonableness
exacerbated in the report’s details how this officer could jump to the
conclusion that the occupant (Erickson) was possibly deceased and/or was
injured especially inconsistent when she was just seen less than 2 hours before
is beyond reason and belief.
31.
The
report indicates that the reporting officer McDevitt contacted Mr. Ward
(Commissioner of the Watertown Health Department) and that Ward who told the
officer that he intended to get a search warrant.
32.
The
said incident report details officer McDevitt entering Erickson’s apartment,
opening doors, cages, the left the apartment contacted the patrol supervisor
Sgt. Patterson, returned to the apartment again then invited Det. St. Onge and
Capt Dupuis to enter the apartment and take photographs of the inside all
evidently over the course of some extended search time and all without an
exigent or emergency circumstance and all knowingly with the intent to aid an
acquisition of a search warrant and to deprive Erickson of her constitutionally
protected rights.
33.
Defendant’s
unlawful search of Erickson’s apartment on 5/5/03 was not pursuant to any
exigent circumstances the fruits of which yielded a both a police report (Exh.
9) and the ability to acquire a fraudulent search warrant # (Exh. 10) issued by
the Waltham District Court on 5/7/03 and thereby resulted in the seizure of her
beloved cats and kittens, endangered their lives, maliciously emotionally
harming Erickson, emotionally damaging to her cats who are very attached to
Erickson, ruined years of exhausting hard work developing competitive beautiful
cats and an exceptional kitten, while depriving Erickson of their enjoyment,
her accommodation for a disability she suffer, ruined her reputation among her
new neighbors, cat fanciest and destroyed her relationship with her new
landlord.
34.
US
Supreme Court held that when consent to search is obtained through exploitation
of a prior illegality, particularly very close in time following the prior
illegality, the consent has not been regarded as freely given. Evidence gathered in a search allowed by
such a compromised consent has been thought to be tainted and inadmissible. Brown vs. Illinois 422 US 590,
599-604(1975); Commonwealth v Bennett, 414
Mass. 269 (1993)(search of defendant’s apartment by Brookline police pursuant
to a search warrant was tainted by an earlier search by a Boston police officer
accompanied by Brookline officer); and the progeny of Commonwealth v Loughlin, 385 Mass. 60, 63 & n.4(1982). While
Watertown police officers were conducting their illegal search of Erickson’s
apartment Exh. taking photos, and
writing a report (intended to eventually support the inevitable search warrant
sought by the Health Department which in itself a drastic and unwarranted
action to assist in the compliance of the state sanitary code) are actions of
the police that constitute an investigation that can not be legitimized by
ignoring Erickson’s 4th Amendment rights. The US Supreme Court has
held that the existence of an ordinance allowing city employees to enter
residences in order to enforce a municipal code didn’t constitute a sufficient
basis for a warrantless entry. Camara v. Municipal Court 387 US 523.
Tainted
Application for Search Warrant:
i.
Mastenbrook
at paragraph 6 relies upon Police Report Incident # 3008645 (reporting an
incident of 5/5/03 at the time 191442 (7:14 pm) at 78 Prentiss Street) and
relying upon the Police Report of 5/5/03 for the reasons she believes there are
violations to the State Sanitary Code.
ii.
Mastenbrook
at paragraph 6 relies upon Police Report Incident # 3008645 as she attests are
her reasons for requesting an Administrative
Search Warrant {emphasis added}.
iii.
Mastenbrook's
affidavit attests to the fact that she additionally relies upon her own Housing
Inspection report (Exh.11a ) which she reports to have visited 78 Prentiss
Street with 2 police officers at 1:10pm on 5/5/03 knocked on the door, received
no response and left at 1:25pm (15 minutes later), and left NO notice requesting an
inspection of Erickson’s apartment and did not note in her report any odors.
i.
Doucette
at paragraph 6 relies upon Police Report Incident # 3008645 for the reasons he
is requesting an administrative search
warrant {emphasis added}and left NO
notice requesting an inspection of Erickson’s cats.
37.
Affidavit
Steven J. Ward attached
to the Defendant responsive pleadings herein at (Exh.11c)
i.
Ward
attests that he relied upon the Police Report #3008645 to seek an administrative search warrant {emphasis
added}.
ii.
Ward
alleges receiving an anonymous complaint and then cannot substantiate his claim
with an attachment of this alleged complaint.
(Erickson contends that such complaints do not carry any weight unless
there is a name to substantiate the complaint, the Department of Health for the
town of Watertown like most other municipalities have this policy and do not
afford weight to complaints that are anonymous).
iii.
Ward
then alleges “We also received a complaint from the Property owner” but again
doesn’t substantiate this claim with a report or name and it is very unlikely
that Mr. or Mrs. Batsamian would call on one of their 400 or more Massachusetts
properties from Florida.
iv.
Ward
then alleges “received a complaint …. and on May 6th, 2003 police
report detailing an apartment filled
with dead and diseased felines{emphasis added}, feline feces, feces-laden
cat litter (a true and accurate copy of which is attached to this affidavit as
Exhibit 1) referring to police report Incident #3008645.
v.
Nowhere in this police report Incident
# 3008645 is written anywhere that the apartment is filled with dead and
diseased felines. It is evident
that Ward didn’t read this incident report and “read” into it – maybe he wanted
to read this into the report, this is the reason Ward found Erickson’s
apartment to be condemnable as that is what he wanted to find and by doing so
supported his Boston colleagues who were facing criminal and federal charges
and thereby effectuating a quick and easy eviction of Erickson from Watertown. Lastly, for Ward to rely on the observation
of a non-medically trained police officer who is not a sanitarian nor
Veterinarian is rather rudimentary.
vi.
At
paragraph #6 Ward attests that “due the quantity of dead cats... I determined
that the dwelling unit was unfit for human habitation due to the likelihood of
disease transmission” Defendant has made no allegation that there existed any
dead cats and or kittens outside the enclosed frozen compartment of the kitchen
freezer evidenced from the Defendant’s submitted photographs (Exh. ) Erickson contends that it is highly
unlikely that disease is transmitted from within a closed and sealed freezer
where the newborn kittens were found wrapped & sealed in paper and plastic.
vii.
At
paragraph #6 Ward attests that “due the volume of feces... I determined that
the dwelling unit was unfit for human habitation due to the likelihood of
disease transmission”. Defendant have
not established with any objective evidence that there was any feces to be
found that was not in or immediately next to a litter box and that the
photographs submitted only show clean unsoiled litter. (Exh. ).
viii.
At
paragraph #6 Ward attests that “due the feces-laden cat litter and the
pervasive odor of urine... I determined that the dwelling unit was unfit for
human habitation due to the likelihood of disease transmission” again this
claim unsubstantiated by the objective evidence – photographs and that it is
normal to have an odor of cat urine.
Pointing to Affidavits Richard Fraser, MD (Exh 1); K Terrell (Exh 2); who
have been in the Watertown apartment and affidavits from neighbors D. O’Connell
(Exh 4); and J. Reposa (Exh 3a,b,c); there was no have been any offensive odors
of cat urine.
ix.
At
paragraph #6 Ward attests that “Feline feces, particularly those produced by
diseased animals, may contain bacteria, viruses, fungus and/or parasites, such
as toxoplasma gondii which causes the disease toxoplasmosis, and ringworm. Erickson argues that to the extent of the
likelihood of disease transmission of
toxoplasma gondii from her cats and/or that she likely to be harmed by
toxoplasmosis and/or ringworm unfounded.
Dr. Fraser attests “Cats which are isolated in cages indoors from birth,
never exposed to cats outside of their home environment, and never exposed to
outside dirt, animals or cats who already have the virus will not have
toxoplasmosis, nor be carriers of toxoplasmosis, much like a human raised
inside of a enclosed “bubble-like” environment. (Exh.1c Affidavit May 26th,
2003). Toxoplasmosis and its
transmission is explained in greater detail in Dr. Fraser’s affidavit.
x.
Lastly
Ward attests that “feline urine that it may pose a separate health hazard to
humans due the ammonia content, to which even a brief exposure may cause nasal
irritation and dryness” is not warranted nor meets the conditions to the state
sanitary code 105 CMR 410.750 Conditions Deemed to Endanger or Impair Health or
Safety, or 105 CMR 410.602b as ammonia concentration found in cat urine does
not cause illness and is more of a symptom of subjective choice for example a
brief exposure to ammonia [cat litter boxes] may cause nasal irritation and
dryness or a visit to a beauty salon and/or spa to have your nails painted or a
day of skiing downhill.
38.
Not
on 5/5/03 and/or on 5/6/03 did any Watertown official leave a request at
Erickson’s apartment notifying Erickson that they wished to inspect the premise
and/or inquire about the cats, search the apartment or that there was a
complaint about the apartment conditions requiring their response to inspect.
39.
Inspection
pursuant to the State Sanitary Code are typically not emergency inspections “in
the enforcement of housing codes immediate searches are almost never necessary
because compliance with the regulation is the only objective and it is
fulfilled by hasty reparation before a delayed inspection, (11 U.Pitt.L.Rev.
256, 292) because the search involved is less of an intrusion on personal
privacy and dignity that the which occurs in the course of a criminal
investigation that this is a real and meaningful distinction. The concern of the inspector is for
compliance and is not personal in nature – although this is obviously not the
case here.
48.
Erickson
argues that there is significant weight to her inference that what is evident
from the actions of Defendants is their overwhelming desire to search
Erickson’s apartment with or without a search warrant and seize her animals
irregardless to the language in the warrant.
49.
The
Massachusetts Supreme Judicial Court has held that “While police initially have
been carrying out a ‘community caretaking function’ …, once an officer sighted
[what he/she believed to be drugs] in the apartment…, at which time he regarded
himself immediately as involved in the detection, investigation, or acquisition
of evidence relating to the violation of a criminal statute, police has to
apply for and secure a warrant to search. USCA Constitution Amendment #4. Commonwealth v Sondrini 48 Mass
App.Ct.704 (2000) where this Court concluded warrantless searches are
presumptively illegal and further: “The circumstances that have been recognized
as justifying failure to obtain a warrant have been severely circumscribed by
the courts as being both few Katz v.
United States 389 US 347, 357; and exceptional G.M. Leasing Corp. v. United States 429 US 338, 352-353, 358. The Supreme Court of the United States has
also observed that few exceptions are “jealously and carefully” Jones v United States, 357 US 493, 499
(1958); and that the government’s “heavy burden” in such cases Welsh v Wisconsin 466 US [740] 749-750
(1984); is to show that, even within the few, narrow exceptions, proceeding
without a warrant was “imperative” McDonald
v. United States 335 US 451, 56 (1948).
The progeny since rely on reasonableness – now we have come full circle,
Erickson contends that there was nothing imperative or exigent about the
unauthorized entry of her Watertown apartment by Police their supplying a
incident report, photographs and the subsequent tainted search, and seizure.
50.
While
evidence in plain view may be legitimately seized in some cases, it is not so
here, while there has been a suggestion that the emergency exception cannot be
invoked when the entry is also motivated by an intent to discover incriminating
evidence (Commonwealth v Cricones, 12
Mass. App. Ct. 953, 954 (1981) a badly wounded person on the threshold). Where the subjective good faith of the
officer that an individual might be in need of assistance does not justify
either the entry or a subsequent search or arrest. Or in this case at bar where the police search and take photos
following a conversation with the health department who informs the police that
it is the Health Department’s intent to apply for a search warrant therefore
the police acting to possibly aid the acquisition of the warrant search, take
notes, photos and write a fraudulent, tainted incident report to support an
application for search warrant.
51.
The
US Supreme Court has expressed in Mincey
v. Arizona 437 US 385, 392 when police have compelling reasons, based upon
specific and articulable facts, to believe that other types of emergencies
exist, a warrantless search circumscribed by the purpose of the search is
permissible but once the Police have determined that no other victims or
suspects are on the premises, the warrantless search must end.
52.
Erickson
upon her return to her apartment on 5/5/03 called the Watertown police to
report that her apartment had evidently been broken into and that the media was
out front disturbing her and threatening her with one of her cats. (Exh.7) Affidavit Erickson and (Exh.4)
-Affidavit O’Connell. The Watertown did
not informing Erickson of their entry that day or the desire of the Watertown
Health Department to inspect her home nor the Watertown Animal Control to inspect
her cats. The Watertown Police never
took a report despite Erickson’s contention, nor asked her questions as to her
cats, nor questions about her reported break-in. The Watertown police officers, and officials acting in a covert
manner Erickson claims to knowingly acquire a fraudulent search warrant.
53.
It
would be reasonable, prudent and pursuant to the State Sanitary Code to request
an inspection upon receipt of a complaint but in this case neither the Health
and/or Animal Control left any such request at Erickson’s apartment. Both Affidavit Mastenberg (Sanitarian) and
Doucette (Animal Control) attested to being at Erickson’s apartment on 5/6/03
but did not leave a request for an inspection.
It was highly publicized that Erickson would be in court on 5/6/03. All the news media had reported that
Erickson was expected to be in the Boston Housing Court on 5/6/03. But despite
this neither Mastenberg and Doucette left a request that is policy. Their affidavits indicate the both were
more interested in the acquisition of
and applying for a search warrant claiming that they were not able to inspect
thereby giving them the ability to due the most harm, emotionally, physically
(if Erickson refused) and publicly denounce her and feed the media additional
insults. The acquisition of the search
warrant gave them the excuse and or ability to forcing themselves into her
apartment with police force and intimidation tactics. Watertown policy is to leave a request for an inspection. But
that was not the case, instead a costly, time consuming search warrant was
immediately sought and Erickson’s claims that is was sought in part to inflict
the greatest amount of public scorn and emotional harm the Town of Watertown
could inflict upon Erickson and in an attempt to effectuate an ejection from
her home, deprivation of her cats and privacy.
54.
The
tactic to seek a search warrant here belies justice as Erickson was not denying
entrance, threatening the Health officials with legal action unless they sought
a search warrant and the goals of the Health Department and those to which are
manifest in the State Sanitary Code 105 CMR 400.100 Inspections are at any reasonable time.
105
CMR 400.100 Inspections: In order to properly carry out their respective responsibilities under
the State Sanitary Code and properly to protect the health and well-being of
the people of the Commonwealth, the board of health and the Department of
Public Health or authorized agent or representative of either are authorized to
enter, examine, or survey at any
reasonable time such places as they consider necessary, and otherwise to
conduct such examination or survey as s expressly provided in any other chapter
of the State Sanitary Code.
55.
The
pure emergency theory is a sub-genre of the community caretaker exception, in
cases of pure emergency, where entry of a dwelling is effected solely to avert
a dangerous situation that threatens life or safety, and not for criminal
investigator purposes, probable cause is not needed to enter under either the 4th
Amendment of Article 14, Commonwealth v.
Snell, 4228 Mass. 766, 776 n.7 (1999).
Erickson argues the even if one could assume for one minute that the
Defendants were acting pursuant to a theory of community caretaker, and/or
emergency there is no evidence to substantiate it and smelling a kitty litter
box that no-one else at the same time period smelled see affidavit Dan O’Conner
who testified that he entered Erickson’s back porch a few minutes after police
and noticed no offensive odors (Exh. 4) claiming it was an emergency not enough
to substantiate that an emergency was at hand to violate Erickson’s
constitution protections. [T]he emergency exception … applies when the purpose
of the police entry is not to gather evidence of criminal activity but rather,
because of an emergency, to respond to an immediate need for assistance for the
protection of life or property. “The
need to protect or preserve life or avoid serious injury is justification for
what would be otherwise illegal absent an exigent or emergency”. Pure emergency as an exception to the
warrantless requirement, the emergency exception is not a situation involving
probable cause and exigent circumstances.
Rather, it involves exigent circumstances only. No probable cause is needed because the
purpose is not to investigate criminal activity, although the collateral effect
may be to assist greatly a criminal investigation once the police have
determined that no other victims or suspects are at the scene, the warrantless
search must end otherwise it is tainted seizure and therefore lead to an
unlawful entry motivated by an intent to discover incriminating evidence the
evidence obtained is suppressed and the search considered tainted and illegal. Commonwealth v. Cricones, 12 Mass.
App.Ct. 953, 954 (1981).
56.
In
the community caretaker exception, the line between pure emergency and criminal
investigation can easily become blurred.
In Commonwealth v. Morrison,
429 Mass. 511 (1999), police entered the apartment of a woman, who had caused a
209A restraining order to be issued against her boyfriend, to determine if he
were present: The police were justified in checking the apartment because “the
need to protect or preserve life or avoid serious injury is justification for
what would be otherwise illegal absent an exigent or emergency”… In Justifying
action under this doctrine the Commonwealth has the burden of showing, Commonwealth v. Viryahiranpaiboon, 412
Mass. 224, 227 (1992), that “the authorities had reasonable ground to believe
that an exigent existed and …[that’ the actions … were reasonable under the
circumstances.” describes a list of circumstances not applicable to this
instant case.
57.
Where
the term ‘emergency’ and/or ‘exigent’ as defined in Massachusetts court cases
like in Commonwealth v Skea 18
Mass.App.Ct. 685 (1985); and/or ‘in-plain-view’ exception in Bates 28 Mass.App.Ct. 217, 219-220, 548
N.E.2d 889 (1990) one cannot find the reasonableness of the Watertown Police to
enter Ms. Erickson’s apartment knowing she was not home, that she was just seen
less then 2 hours before, she was in the media, that she lived alone and that
she was vulnerable all point to the greater and likely conclusion that the
entry was unlawful, the search, photographs and subsequent warrant and seizure
were conspired attempts to obtain an unlawful, fraudulent search warrant.
58.
Affidavit
attached for the Application for Search Warrant upon which the Waltham District
Court Judge Flynn issued Search Warrant # 03515W56 processed and signed by
District Clerk Michael Finucane who relied upon the Officers unlawful search.
The US Supreme Court has held that Evidence gathered in a search allowed by
such a compromised consent tainted and inadmissible Brown v. Illinois, 422 US 590, 599-604 (1975).
59.
Accordingly
the search warrant # 03515W56 (Exh.10) was obtained reliant on both Affidavits
Mastenberg (Sanitarian) and Doucette (Animal Control) that relied upon an
unlawful unreasonable search on 5/5/03, whose motivation questionable and
reasonably unduly influenced. But
despite the tainted fraudulent affidavits the said search warrant described in
particularity the place to be searched and the things to be seized Guidelines
For The Issuance Of Search Warrants (American Bar Association) Guideline
3-1 page 30 “In order to comply with the Fourth Amendment, the judicial officer
must not only find probable cause, but also must determine that the affidavit
describes with particularity “the place to be searched, and the persons or
things to be seized” before issuing the warrant”. Steele v. US 267 US
498.
60.
The
said Search Warrant allowed by His Honor Judge Flynn on 5/7/03 limited the search
to any sick, diseased, malnourished animals dead or alive. The said Search Warrant allowed by His Honor
Judge Flynn limited the seizure to
only “sick, diseased, malnourished animals, which have been deprived of necessary sustenance”. Also His Honor Judge
Flynn limited the said Search Warrant to ‘You are not also commanded to search any person present who may
be found to have such property in his or her possession or under his or her
control or to whom such property may have been delivered.
61.
At
the time of the search and seizure Erickson was at home and had feed her adult
Persian an hour before, and was feeding the babies. There is no contention that Erickson was not a resident of 78 #1
Prentiss Street, nor that Erickson was not identified at the time of the Search
pursuant to warrant # 0355W56. In
addition Veterinarian T.A. Abaskharoun, DVM who has his practice directly
across the street from Erickson’s apartment offered to evaluate Erickson’s cats
pursuant to and to determine according to the search warrant which cats were be
denied sustenance. Animal Rescue League
Lt Borgal said no and then made a medical determination without the aid of a
Massachusetts licensed veterinarian when one was available. Erickson attaches a receipt (Exh. ) of cat food purchases within a week of
over 60lbs of high-quality cat food and photographs evidencing the presence of
cat & kitten food, filled water-bowls and ample access to food and
water. Irregardless of the Search
Warrant’s parameters and/or the condition of Erickson’s beloved Persians they
were improperly and maliciously seized.
62.
Irregardless
of the animal’s condition(s), their seizure would not have been pursuant to the
search warrant and if the warrant was not issued the unlawful and heinous
search would have harmed Erickson so deeply.
Erickson attached a receipt for recently purchased cat food, litter and
toys purchased on 4/26/03 evidencing over 60lbs of high-quality cat food was
available for her cats evidencing that the cats were not being deprived food,
love, and/or sustenance.
VACATING
THE ORDERS:
Issued 5/14/03 Middlesex Superior Court: Related to restraining Erickson from
bringing animals in the Watertown apartment.
CONDITIONS IN THE APARTMENT DO NOT WARRANT DEPRIVING
ERICKSON HER CAT FAMILY (PROPERTY), AND/OR A FINDING OF DAMAGE TO THE APARTMENT
AND SUPPORT THE VACATING OF ORDERS ISSUED ON 5/14/03 BALANCE OF HARMS TO
PERSIANS VS. PRESUMPTION OF HARM TO APARTMENT.
40.
There
is no damage to the floors nor is there objective evidence that there was
and/or is damage from cat urine staining on any of the floors at 78 Prentiss
Street (see Exh.3b,c) Affidavit Reposa flooring expert attesting to examination
of the floors at 78 Prentiss Street and after nearly 30 minutes of close
examination found no staining and/or damage to the floors. There still is no evidence that there ever
was any cat urine in Erickson’s apartment except maybe from within the litter
boxes but that is what they are meant for.
41.
There
is no damage to the floors nor is there objective evidence that there was
and/or is damage from cat feces on any of the floors at 78 Prentiss Street see
affidavits: Richard Fraser, MD, (see Exh.1); K. Terrell, (see Exh.2) who has
been in the Watertown apartment many times; J Reposa flooring expert as noted
above at (Exh.3a,b,c) see photos submitted by Defendants in support of their
claims evidencing no feces and or urine (see Exh.0).
42.
There
is no damage to the apartment nor is there objective evidence that there is a
danger to Ms. Erickson’s health, or her neighbors health due to odors
permeating floor surfaces or other surfaces from cat litter boxes at 78
Prentiss Street see affidavits: Richard Fraser, MD, (Exh.1); D. O’Connell
(Exh.4); K. Terrell (Exh.2) J. Reposa (Exh.3a,b,c) all denoting either that the
have noticed no offensive odor or in the case of Dr. Fraser, licensed medical
doctor in Massachusetts no potential for health related issues and that the
odor no than that caused from a tenant who was a smoker.
43.
There
are no harmful and/or disease-producing problems with how Ms. Erickson
maintains her cats and kittens. See Paper written by Richard Fraser MD noting
that the potential for disease transmission of pathogens that cause
toxoplasmosis and /or ringworm is not from ambient air but from direct
contact.
44.
Even
if anyone of Erickson’s cats had a sniffle, a skin disease or needed its teeth
cleaned it could easily be treated, contained and not harmful to Erickson and
or any neighbors.
45.
Both
the odor producing molecules, dander and that transmission of ringworm (a skin
disease commonly passed at cat shows) maybe reduced with the use of an room ionizer
and chlorine bleach as chlorine acts as free radical scavenger and clumps odor
producing airborne molecules together so that they are heavier and fall the
floor. If there is a treatment program,
regular bathing and daily cleaning of surfaces with solutions containing
chlorine bleach and the use of an ionizer airborne odors and pathogens are
reduce. Additionally, Dr Fraser
continues that ambient ammonia from a litter box could not be considered a
health risk that even mild nasal irritation that could be involved with a high
parts per million in room air is not considered a health risk or a cause for
illness as defined in the State Sanitary Code 105 CMR 410.602b. Dr. Fraser explains that the potential for a
mild nasal irritation could be expected from the personal use of bottled
ammonia for cleaning and is much more likely to be of such greater
concentration than is found in even a very soiled/wet litter box.
46.
Erickson
points to the photos (Exh.0) taken on 5/7/03 during the rather tainted search
pursuant to a fraudulently acquired search warrant # 03515W56 the town of
Watertown submitted these photographs as evidence of the search (attached
Exh.0) and demonstrative of the conditions in Erickson’s apartment. Erickson attaches notes pointing out that none
of the cats present appears sick, or malnourished. The cats in the photographs do not look thin, do not have soars
on their skin, and are walking on clean
white or clean wooden surfaces. Photographs demonstrate that there is at
least 1 20lb bag of AIMS cat food in one room and water bowls. Other photographs referred to in the Police
report Incident # 3008645 (Exh.11) were not produced by the Defendants at the
time of writing this Memorandum of Law but the photographs produced appear to
be digital photos easily alterable irregardless of this fact the conditions in
the apartment do not demonstrate urine stains, feces on the floor except on
photo were there is a little tootsie roll feces directly next to a clean litter
box and importantly there is no photograph of feces laden cat litter boxes
altogether the cats do not appear ill, nor malnourished and there cat food and
water bowls in more than one photo therefore the cats are obviously not being
deprived of sustenance. The photographs
(Exh.0) show no urine, feces or other unsanitary representations and that they
show that the floors appeared swept except for the bedroom where Erickson
attest to the fact that she was sweeping floors and feeding the babies when the
search was initiated, this is apparent from at least two swept piles of clean
kitty litter and a vacuum cleaner nearby to suction it up. There is a mop, broom and vacuum evidenced
in the photographs and that the litter boxes are clean. The photograph of the bathtub show recent
soap bubbles remaining and/or draining that the other litter boxes show clean
litter within them. Watertown officials describe smelling a bleach and cat odor
indicative of a recent and/or on going cleaning practice.
47.
In
Ward’s affidavit (Commissioner of the Watertown Health Department) Ward attests
that he sought a search warrant based upon and only after he received the said
police incident report #3008645 (Exh. 9) and Animal Control Officer Doucette
attest that he sought a search warrant only after he received the police report
describing the Watertown Police unlawful entry and the finding of lots of cats.
Although the facts will demonstrate that the police officers not sanitarians or
veterinarians.
63.
Erickson
will show through the facts and evidence that Commissioner Ward filed an
Affidavit he knew to be acquired from a bad act, false, made with the intent to
procure deprivation of Erickson rights to privacy, tremendously harm her
emotionally by depriving her of cat family, deprive her rights of the First and
4th Amendments and to procure a eviction by depriving her of her
rights to due process of law and the laws in the Commonwealth as they relate to
Summary Process evictions.
64.
Erickson
shows through the facts and evidence that Commissioner Ward then proceeded to
request assistance from the Animal Rescue League, Watertown Police, Chief
Deveau and other Watertown officials with Search Warrant #03515W56 he knew to
be wrongly acquired in fraud with the intend to deprive Erickson the due
process of law and those pursuant to the States Sanitary Code.
65.
Erickson
shows through the facts and evidence that Commissioner Ward requested the
Watertown Police Department and Chief Edward Deveau and Lt. Lawn and several
other Detectives to Wards intentions and to effectuate an entry in to
Erickson’s apartment, alarming her, embarrassing her, made to produce scorn and
made to committee grand larceny, deprive Erickson of her protected rights to
privacy, 4th Amendment rights and her right to the enjoyment of her
beloved cats and kittens while doing so searched everything in Erickson’s
apartment irregardless of the specifics of the said Search Warrant #03515W56.
66.
Erickson
shows through the facts and evidence that Commissioner Ward requested the
Animal Rescue League and its Animal Officers Lt Brogal and Champanue to
effectuate the deprivation of Erickson’s 1st, 4th, and
14th amendment rights and to commit such grave horrendous acts as to seize her
beloved cats, threaten their lives, destroy them and threaten to put them
asleep and intended to remove all of Erickson’s beloved cats and kittens from
her apartment irregardless of the specifics of the said Search Warrant
#03515W56.
67.
Erickson
shows through the facts and evidence that Commissioner Ward together with 3
other of his own employees and with 5 Police from the Watertown Police
Department, 4 Animal Control Officers from the Watertown Animal Control, 4
Animal Officers from the Animal Rescue League and 2 men from the Fire
Department tromped through Erickson’s home.
Nearly 20 unknown people entered Erickson’s peaceful unit for the
purposed of depriving her of her Constitutionally protected rights and those
rights to due process of law, to committee such emotionally damaging harm that
no human being in a civil and decent society should be subject to, produce
public scorn and ruin her reputation, and made by fraudulently procuring and
fraudulently executing a search warrant.
68.
Erickson
shows through the facts and evidence that as a direct and consequential result
of Commissioner Ward’s search pursuant to Search Warrant #03515W56 Ward Ordered
Erickson’s unit condemned writing in his findings that he found violations to
the State Sanitary Code and deem that Erickson’s unit had Conditions Deemed to
Endanger or Impair Health or Safety pursuant to 105 CMR 410.750.
69.
Erickson
shows through the facts and evidence that as a result of Ward’s search he
issued a report attached to Defendants responsive pleading entitled ‘Town of
Watertown’s Response to Allegations of Defendant Heidi Erickson’ (Exh. W) including unsupported allegations of
violations to the State Sanitary Code that could not be interpreted by another
reasonable person as to rise to the level of violations under any means of
interpretation of the State Sanitary Code.
These violations include the following:
70.
Erickson
shows through the facts and evidence that Ward knew or should have known that
his action would interfere with Erickson’s relationship with her landlord and
as a result of Ward’s search he issued a letter of his findings attached to the
Defendants responsive pleading entitled ‘Town of Watertown’s Response to
Allegations of Defendant Heidi Erickson’ (Exh. W) Exh A4 sending it to
Erickson’s Landlord and hand delivering it to the landlord’s agent Dennis Joy
on or about 5/7/03 referencing Unsanitary Dwelling Unit – 78 Prentiss Street
Watertown, MA 02172 and denoting 7 alleged violations to the State Sanitary
Code occurring inside the living area of Erickson’s unit (see 1-6 hereinabove
at paragraph ) and 2 violations to the
State Sanitary Code occurring inside the basement of Erickson’s unit
(hereinabove at paragraph ).
71.
Erickson
shows through the facts and evidence that Ward’s above cited letter states, in
pertinent part, following each of the numbered list 1, 4, and 5 is insufficient
to sustain a determination to condemn her unit pursuant the State’s Sanitary
Code.
72.
Erickson
shows through the facts and evidence that the alleged violations referenced
above at paragraph does not constitute a nuisance and source of filth and
sickness. Erickson points to the
Cleaning company’s report (Exh. ) indicating that apartment was very clean, the
cleaning company was hired by Erickson’s landlord Defendant Investments Limited
pursuant to the request of the Ward where in it described that no treatment
necessary but was following the instructions of Ward (Watertown Health
Department) and the landlord.
73.
Erickson
shows through the facts and evidence that Ward’s above cited letter states, in
pertinent part, following # 6. on the numbered list found hereinabove at paragraph: You are hereby ordered to repair
the affected area of the dwelling unit to abate the violation as referenced
above. Citing 105 CMR 410.500. Erickson
has placed the door in a close to await installation insufficient either in
part or in whole to condemn her unit.
74.
Erickson
shows through the facts and evidence that Ward’s above cited letter states, in
pertinent part, following # 7. on the numbered list found hereinabove at paragraph
: You are hereby ordered to repair the affected area of the dwelling
unit to abate the violation as referenced above. Citing 105 CMR 410.500
insufficient either in part or in whole to condemn her unit and in addition
Erickson herself filled the little hole (1”x1.5”) with a material for that
purpose.
75.
Erickson
shows through the facts and evidence that Ward’s above cited letter states, in
pertinent part, following # 9. on the numbered list found hereinabove at paragraph
: You are hereby ordered to repair the affected area of the dwelling
unit to abate the violation as referenced above. Citing 105 CMR 410.500
insufficient either in part or in whole to condemn her unit the landlord’s
agent removed the tiles on 5/19/03.
76.
Ward’s
above cited letter states, in pertinent part, following # 8. on the numbered
list found hereinabove at
paragraph : You are hereby ordered to
repair and/or remove the asbestos to abate the violation as referenced above.
Citing 105 CMR 410.353 is not under her control.
77.
Erickson
shows through the facts and evidence that Ward’s list of 9 violations to the
State Sanitary Code as found hereinabove at insufficient to condemn her unit
pursuant to the States Sanitary Code 105 CMR 410.750:
a.
105 CMR 410.750 Conditions Deemed to
Endanger or Impair Health or Safety
subpart
(I) Failure
to comply with any provisions of 105 CMR 410.601, or 410.602 which results in
any accumulation of garbage, rubbish, filth or other causes of sickness which
may provide a food source or harborage for rodents, insects or other pests or
otherwise contribute to accidents or to the creation or spread of disease.
subpart(P) Any other violation of 105
CMR 410.000 not enumerated in 105 CMR 410.750(A) through (O) shall be deemed to
be a condition which may endanger or materially impair the health or safety and
well-being of an occupant upon the failure of the owner to remedy said
condition within the time so ordered by the board of health.
78. Erickson states that there was no condition in her unit prior to or during 5/7/03 that could raise to the level of 105 CMR 410.750 and that the photographic and affidavit evidence filed herewith show to this Honorable Court this fact.
79. Erickson points to the Affidavits Richard Fraser, MD(Exh.1a,b,c); K. Terrell(Exh.2); J. Reposa(Exh.3a,b,c); D. O’Connell (Exh.4) both attesting to not noticing odors and or conditions that were a problem and/or abnormal.
80.
Erickson
points to Affidavit Richard Fraser, MD who is familiar with home inspections
and the state’s sanitary code attests that there are no violations, Dr Fraser
inspected Erickson’s apartment soon after the Defendant Watertown Health
Departments search pursuant to warrant while Dr. Fraser finds not unsanitary
conditions dated May 8th, 2003 (Exh. 3a) wherein Dr. Fraser attests to his findings while in the
premises “no sanitary code violations”,
“No stains of urine or feces were noticed on the floor” “ I found the white
linoleum floor and the wooden floors throughout the apartment to be clean”, “On
inspection of the walls and windows there was no build up of oils, grease or
filth”. The following day the Defendant Watertown Health Department by
Commissioner Ward makes a unsubstantiated claim that Erickson’s unit is
condemnable pursuant to the State Sanitary Code.
81.
Erickson
shows through the facts and evidence that there exists no ‘such immediate harm
or threat of harm’ and no Condition Deemed to Endanger or Impair Health or
Safety’:
82.
Erickson
attaches Affidavit Dan O’Connell (Exh. 3c) who attests that he is a neighbor
who lives immediately next door and who shares a common wall with Erickson’s
entire apartment (front to back); “I have neither heard any abnormal noises,
smelled any abnormal odors nor have I seen anything unusual coming from her
apartment” and “Heidi has created no nuisance nor disturbance that has
interrupted my home or life in any way.” In part written on May 6th,
2003 a day before the search and findings by the Defendant Health Department
and attesting to the fact that he was in the same area that the Watertown
Police were in (back porch) and smelled nothing offensive.
83.
Erickson
attaches Affidavit Jerry Reposa (Exh. 3a) who attests that he lives directly above
her and “I have never heard noise and other is no odors, and/or problems that I
know of.”
84.
Erickson
argues that the conditions present on or before 5/7/03, and/or 5/9/03 including
those that currently exist do not raise to the level of condemnation, endangerment
or could impair her or others health irregardless if her cats and kittens are
present. Further Erickson states that
the removal of her cats and kittens do not impart a factor in the maintenance
of cleanliness in her apartment and or her ability for her to comply to any
part of the State Sanitary Code and that her apartment prior to 5/7/03 and or
today can be interpreted by the conditions set forth the aforementioned
Affidavits Richard Fraser, MD (Exh. 1a,b,c) wherein Dr. Fraser did not find that
there existed in said premises such immediate harm or threat of harm, together
with Affidavit Heidi Erickson (Exh. 8a,b,c), Affidavit Dan E. O’Connell (Exh.
4) and Affidavit Jerry Reposa (Exh.
3a,b,c) suggest that the unit’s conditions do not endanger or impair the health
or safety or the occupant (Plaintiff Erickson) nor her neighbors and that her
neighbors are not bothered by nor have been able to notice any cat odor or
problems with Erickson maintenance of her multiple cats and kittens in
Watertown or other residences Affidavit William Johansen, DVM (Exh. 7) Donald
Creighton (Exh. 5); Roland Miller (Exh. 6).
85. Erickson shows through the facts and evidence that Ward allegations of violations of the State Sanitary Code 105 CMR 410.505 have not merit:
105 CMR 410.505 Occupant’s Responsibility Respecting Structural
Elements
The occupant shall exercise reasonable care in the use of the floors, walls, doors, windows, ceilings, roof, staircases, porches, chimneys, and other structural elements of the dwelling.
105 CMR 410.020 Definitions used to interpret the States’ Sanitary Code: A Condition Making a Unit Unfit for Human Habitation is a condition meeting the standard set forth in the Massachusetts General Laws under which a board of health may justify closing down, condemning, or demolishing a dwelling or dwelling unit. It shall mean a violation which poses such immediate harm or threat of harm to an occupant or to the public that other legal remedies cannot be reasonably expected to bring about removal of the condition with sufficient speed to prevent the serious harm or injury to the occupants or to the public
86.
Erickson
contends that the Defendants warrantless search, unreasonable, wrong and
deprived her of constitutionally protected rights. The Erickson requests of this Honorable Court to enjoin the
Defendants vacate the Orders of Condemnation it issued or at least stay these
until such time as a trial upon the facts can be heard, Order the immediate
return of her beloved cat family, and Order a public apology and enjoin her
landlord from proceeding with an eviction.
Erickson’s request for a preliminary Injunction necessary in light of
the wrongs already done, prevent further damage and emotional and physical harm
from the deprivation of the loss of her cat family, the prevention and loss the
cats and kittens, and to be made whole from Defendants wrongful actions.
90. The Public interest will be best served by Ordering this preliminary injunction in this case as Erickson merely seeks to restrain Defendants from custody and control of Erickson perishable Persians and from condemning a unit that is not condemnable and to cherish the protected rights of privacy pursuant to the constitution. The general public and not only animal lovers have an interest in not seeing an animal separated from its owner whereby the Public interest will be served by Ordering this preliminary injunction Erickson merely seeks to ensure the safety of her family and that constitutional protections are respected.
91.
If
this preliminary injunction were not to issue Defendants would be left
uninhibited, unrestrained and likely to repeat the breaches to another’s
constitutionally protected rights. The
issuance of this Preliminary Injunction absolutely necessary in light of the forgoing
and to discourage Defendant’s unlawful practice. The general public is
concerned with protecting their individual rights to privacy and assuring that
these rights are protected by judicial protections.
For the foregoing reasons, a emergency Preliminary
Injunction Order immediately returning Erickson’s animals, restraining
Defendants from invasions to her privacy and harassments absolutely necessary
in light of the above and to enable the maintaining of the status quo, reduce the likelihood of harm upon Erickson and to her
Persians and for a hearing in short time for a permanent order.
Ms. Erickson attest under the pains and penalties of
perjury to the facts that she personally knows as evident herein this
Memorandum
PRAYER FOR RELIEF:
Erickson respectfully requests of this Honorable
Court to:
Immediate Issuance of Orders for the immediate with
no delay and safe return of Erickson’s Persians under the custody of Defendants
Animal Rescue League and/or others; and
Immediate Issuance of Orders Vacating in part Orders
of 5/14/03 issue by Judge Neel of the Middlesex Superior Court as they relate
to restraining Erickson keeping her beloved cats at 78 #1 Prentiss Street
Watertown; and
Order a short order notice and schedule a hearing
for a Injunction:
And upon a hearing: Issue Orders relating to the
staying of the Watertown Health Department’s administrative orders as they
relate to the condemning her apartment at 78 #1 Prentiss Street Watertown, MA.
CERTFICATE OF SERVICE
Ms. Erickson attest under the pains and penalties of
perjury to having served a true an accurate copy of this Memorandum and the
Emergency Motion upon Defendants and/or their attorneys.
Respectfully
submitted by:
Heidi
K. Erickson, pro se
5/29/03