Reply to Summary Judgment

1 Capt.James Linlor, pro se 1405 S. Fern Street #90341, Arlington, VA 22202 2 (775) 298-1505 3 Secret Service Agent MICHAEL GERARD POLSON, 4 (formerly of TSA) in his individual capacity 817 Carlton Otto Lane #23, Odenton, MD 20120 5 c/o Dontae Sylvertooth, Asst US Attorney 2100 Jamieson Ave, Alexandria, VA 22314 6 (703) 299-3738 ph; (703) 299-3983 fax 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF VIRGINIA Alexandria Division 9 ) Case No.: 1:17cv13 (AJT/JFA) 10 CAPT. JAMES LINLOR, pro se ) ) PLAINTIFF’S REPLY TO POSSIBLE 11 Plaintiff, ) DEFENDANT’S MOTION FOR SUMMARY ) JUDGMENT 12 v. ) No Defense Motion served on Plaintiff despite ) reminders, and fax and other opportunities; 13 MICHAEL POLSON, ) Defendant refuses to meet-and-confer 14 in his individual capacity ) ) Hearing: Friday, 19 January 2018 15 Defendant ) Time: 10:00 am ) Judge: Hon. Anthony J. Trenga 16 17 1. In violation of Defendant’s Roseburo Notice obligations, FRCP 5 to serve papers, and 18 FRCP 11 to not frustrate or mislead the Court, Defendant has not served Plaintiff with any recent filings by Defendant, including IF Defendant filed any motion for summary 19 judgment. Proof of nothing being sent, plus Plaintiff’s 3 reminders to Defendant in case 20 anything was lost, are shown in Exhibit A, which proves only 2 mailings from Defendant 21 on 08 December (mailed per USPS on 07 December), when Defendant likely worked on 22 and filed any summary judgment pleadings after 07 December. Plaintiff seeks Defense 23 filings (if any) for summary judgment, and any other unproven-as-served filings, to be 24 REJECTED. 25 2. Any and all of Defendant’s andTSA’s filings since 07 December have NOT been 26 served on Plaintiff (this is proven in Exhibit A herein), and should therefore be 27 REJECTED under FRCP 5 (as well as FRCP 11) including any Defense Motion for Summary Judgment! Defendant refuses to meet-and-confer, or to fax any filings. 28 1 1 3. Plaintiff’s reply herein, is therefore merely a guess of what may be in a filings of a Defense Motion for Summary Judgment, but Plaintiff does not know. However, Plaintiff 2 contends that any defense motion for summary judgment is unfounded and should be 3 DENIED. 4 4. Under FRCP 5, filings by Defendant that are unserved should be refused by the Court. 5 5. Plaintiff asserts that any Motion by Defendant is nevertheless without merit, and does not 6 provide proof that Defendant’s clear striking (on video) of Plaintiff was not excessive 7 force, that such striking is somehow authorized by TSA procedures, and that the striking 8 was neither incidental nor authorized by any procedures. 9 6. 3rd party TSA is also in INDIRECT CIVIL CONTEMPT due to no production of alleged- 10 SSI evidence from this Court’s Orders of 16 November and 07 December. TSA has ordered Defendant not to produce SSI to Plaintiff, in criminal violation of 18 USC§1509, 11 as shown in Defendant’s FRCP 26 production, and TSA’s Motion to Quash where it 12 threatens Defendant and 3rd party William Whetsell with prosecution if they produce SSI 13 to Plaintiff. Plaintiff conversely accuses TSA of using Defendant as a “human shield.” 14 7. Plaintiff supports Plaintiff’s objections to any possible Defendant’s Motion further via: 15 a. Exhibit A that Plaintiff has communicated in good faith with Defendant to obtain 16 a copy of any Defendant Summary Judgment filing, but Defendant has not 17 answered any of Plaintiff’s recent messages. Plaintiff asserts that any non-service 18 on Plaintiff by Defendant is therefore willful and with constructive knowledge. b. Exhibit B lists testimony from Defendant, and statements from TSA, and MWAA 19 police witnesses, that confirms that TSA supervisor William Whetsell contradicts 20 that MWAA police reviewed any video, so any claims they made as to any battery 21 or not, are suspect. Defendant, TSA, and MWAA, despite Plaintiff’s explicit 22 request to also keep a video of MWAA police reviewing any security video, was 23 also allowed to be destroyed! Plaintiff contends that this was intentional, and 24 MWAA Police did not review any video so as not to have to file any report (which 25 they also refused to do until Plaintiff convinced MWAA’s “Major Miller” to order 26 the two officers (Mitchell and Solo) to file a report. Defendant’s testimony also shows evidence of failures to list witnesses under FRCP 26, and willful spoliation. 27 c. Exhibit C shows that TSA paid a $250 cash bonus to Defendant, and TSA 28 2 1 employees and management (including the chief TSA managers) were aware of Plaintiff planning to press charges (a likely lawsuit), that Plaintiff requested 2 immediately for all (multiple) videos and other evidence to be preserved, and that 3 Plaintiff had placed Defendant under arrest for felony sexual battery, yet merely 4 mocked Plaintiff and enabled Defendant by not following TSA’s own SOP to 5 preserve all videos and collect witness names. Defendant bears this 6 responsibility, as the attacker and person at-risk, for his failures to preserve 7 evidence. 8 d. Exhibit D shows that Defendant knowingly and with TSA’s constructive 9 knowledge disregarding their duties under TSA SOP to preserve all evidence and 10 video, which Exhibit B proves that Defendant is guilty of willful bad-faith spoliation (a motion for judicial notice of spoliation is before the Court and Hon. 11 Judge Anderson). Hence, it is the Defendant’s fault that only one video remains, 12 and Defendant admits to having deleted (or allowed deletion) of all other ESI. 13 e. Exhibit E shows that redacted alleged-SSI in Defendant’s and TSA’s production 14 have irreparably harmed this case, resulting in cascading withholding of evidence 15 throughout. TSA has refused all efforts to reasonably meet (even en camera) to 16 review and safeguard alleged-SSI, since TSA clearly knows that if it “showed 17 what it is withholding,’ the Court would DENY any of TSA’s games and attempts 18 to wrongly claim SSI, along with Defendant’s similarly playing “keep away.” f. Exhibit F shows the medical injuries, costs, and sourcing of requested damages, 19 since Plaintiff suspects that Defendant may claim in any summary judgment 20 motion that these were not provided, and a fax copy sent to Defendant is shown. 21 22 MEMORANDUM OF POINTS AND AUTHORITIES 23 Plaintiff cannot number his reply to Defendant’s, since Plaintiff has not received any 24 Defense motion for summary judgment. All replies below are based on conjecture. 25 Defective Service (non-service) of Defendant’s Summary Judgment Motion, 26 rendering any such Motion from Defendant defective, and it should be REJECTED by the Court. Further proof of non-service is listed in Exhibit A. 27 28 3 1 Objections to any Defendant-filed Motion for Summary Judgment 8. Beyond any potential summary judgment motion that Defendant *may* have filed, 2 Plaintiff claims the following evidence to demonstrate excessive force contrary to the 4th 3 Amendment, without qualified immunity for Defendant, reaffirming Hon. Judge 4 Cacheris’ observation and motions hearing ruling that it is implausible that a reasonable 5 TSA screener would NOT know that it is illegal to strike a compliant passenger in his 6 genitals. As the 4th Amendment to the constitution, and without exigency or cause,, 7 Defendant would clearly know that hitting a compliant passenger is not allowed, and 8 would be a battery at some level. 9 9. Without exigency, and 10 a. noting that Defendant Polson was not a law enforcement officer, and b. recognizing Plaintiff’s status as a free person without any custodial, suspect, or 11 probable cause conditions to permit more aggressive searching, and 12 c. that no “national security” context as a touchstone has been proven to provide a 13 right to TSA to capriciously hit compliant passengers’ genitals, then 14 d. use of excessive force, demonstrated by the effect of Defendant’s striking of 15 Plaintiff as recorded on video and medically documented, inarguably prove 16 indefensible use of excessive force by Defendant Polson. 17 e. Note that Exhibit E, BATES-stamped TSA-000149 (about 8 pages into Exhibit E) 18 describes TSA groin and genital searches, but does NOT list or permit any striking motion by TSA screeners. Of the training documents provided, only the 19 most relevant are included herein, but this is uncertain since around 90% of the 20 pages have various sections redacted, so assessing their relevance is impossible. 21 f. Plaintiff contends that Defendant, through intentional spoliation, and under 22 guidance from TSA as well as DOJ (as seen on-the-record at Defendant’s 23 deposition and as filed with the Court), has withheld evidence critical to 24 Plaintiff’s case, to force Plaintiff to go through all the steps of Discovery, and 25 costs for cross-country depositions, and Plaintiff having to fly cross-country so 26 that Defense Counsel could abuse and yell at Plaintiff at Plaintiff’s deposition, all to have critical evidence be withheld by Plaintiff (under TSA’s criminal orders!) 27 so that it is impossible for this case to go to trial, due to missing evidence. 28 4 1 g. Plaintiff specifically does not argue against TSA searches, and despite flying as Plaintiff’s job as a pilot, has never had an issue prior to 10 March 2016. Plaintiff 2 objects to being forcefully struck in the testicles, without loose fitting clothes, 3 exigency, or even distraction (clearly shown even on the poor quality security 4 video). If Defendant implausibly claims that striking Plaintiff’s testicles is 5 “incidental” or “normal” in TSA searches, then Defendant (and TSA) are asking 6 for carte blanche and unbridled immunity to be able to hit and sexually abuse 7 passengers. Sexual abuse is the proper term, as defined under Virginia statutes for 8 the touching of Plaintiff’s genitals, beyond reasonable de minimis pressure, and as 9 Plaintiff has conjectured, well beyond “gradually increasing” pressure that 10 Plaintiff contends would have been reasonable (and which Defense Counsel agrees is not in TSA’s guidance), but never in a striking, notably forcefully 11 striking, motion. As pointed out by Plaintiff in earlier pleadings, if individual 12 capacity Defendant and TSA are granted immunity for what Virginia defines as 13 felony sexual battery, and clearly not part of any search protocol or standard 14 training or guidance from TSA, and, 15 h. if individual capacity Defendants have no check-and-balance to use de minimis 16 force (by applying gentle pressure as opposed to striking, whereas Defendant 17 clearly struck Plaintiff’s testicles, despite Defendant not being a law enforcement 18 officer and Plaintiff being a free citizen and not in any custodial situation) then it will surely become “open season” on passengers! Defendant and his colleagues 19 and managers have already proven their tendencies toward arrogant 20 condescension, laughing and claiming that they could not be prosecuted, and 21 refusing and boasting that they would not apologize. Plaintiff seeks not a “bright 22 line” remedy, but a standard of reasonableness that Defendant has clearly crossed, 23 and which must be reined in to protect the most fundamental of rights (as stated in 24 Plaintiff’s summary judgment motion): the right to one’s own body and to be 25 secure from being hit in the genitals despite being fully compliant, for whatever 26 reason motivated Defendant (since the Defendant claimed that hitting Plaintiff was intentional, and refused to apologize). Defendant’s actions (laughter, etc.) 27 also support and validate Defendant’s statements. 28 5 1 10. From deposition testimony of Defendant, 20 Oct 2017, full copies in Exhibit B: Q Have you ever been guided by TSA to be careful 2 not to use excessive striking force as it has been 3 defined? A I don't recall. 4 a. And further on in the same testimony: 5 Q Do TSA regulations permit use of excessive 6 force in passenger pat downs? A Again, I do not recall any specific 7 regulations on excessive force being taught in training or provided in SOP. 8 b. And further on in the same testimony: 9 Q Do you think that your role as a TSO granted 10 you special immunities? A No. 11 c. And further in the same testimony: 12 Q So based on that definition, is there a 13 striking force of one object coming in contact with another as you slide your hand up from the thigh to the 14 groin and genitals? A I would agree there is. 15 Q Okay. Based upon the definition, what amount 16 of striking force is reasonable? A Only enough to properly ascertain that the 17 area is clear for SOP. Q Does SOP define a reasonable amount of 18 striking force in this situation? A Not to my knowledge. 19 Q How do you know what a reasonable amount of 20 striking force is if it's not defined? A When I can tell the difference between the leg 21 and the torso. Q Isn't it possible that the striking force 22 could injure a passenger? 23 A By your definition of striking -- MR. SYLVERTOOTH: Form. 24 A By your definition of striking force being any contact period between two different things, there are 25 all sorts of things that can be considered excessive to 26 that fact. 11. In Plaintiff’s review of all of Defendant’s and TSA’s production, NO WHERE are 27 excessive force standards or authorization to use a striking motion ever authorized during 28 6 1 passenger pat-downs. Furthermore, TSA’s withholding of Excessive Force Guidance has irreparably harmed Plaintiff’s case, since this impacted Rule 26 production, Defendant 2 and TSA and Whetsell’s Subpoena production, and Defendant’s and Whetsell’s 3 deposition questioning. Even if TSA were to produce the limited and not-confirmed-as- 4 SSI excessive force guidelines at this late stage, Plaintiff contends that Defendant’s (and 5 3rd parties’) access and use of alleged SSI, while withholding it from Plaintiff, is itself 6 mortally prejudicial to this case, such that dispositive sanctions should be GRANTED in 7 favor of Plaintiff. 8 a. TSA has notably not complied with two Orders of this Court to provide any such 9 excessive force guidance to Plaintiff, and is the subject of Plaintiff’s motions for 10 indirect civil contempt and to show cause for why sanctions are not appropriate. b. Notable for this reply to any potential Defense summary judgment motion, is that 11 TSA has also instructed Defendant not to provide or amend his Rule 26 and other 12 testimony/evidenciary responses to Plaintiff, making TSA’s actions criminal 13 violations of 18 USC§1509, for threatening Defendant for failure to amend or 14 supplement his answers with the redacted material replaced with unredacted 15 alleged SSI. 16 c. Plaintiff has already cited Graham v. Connor in Plaintiff’s summary judgment 17 motion, and pointed out that since no exigency existed, and Defendant and his 18 supervisors all laughed and claimed that their actions were intentional and could not be prosecuted, that Defendant’s unreasonable refusal to simply apologize (as 19 asked at least times to Defendant, plus to the TSA chief Johnson), imply and 20 validate a level of unreasonable and abnormal conduct by TSA, where a 21 reasonable agent would have apologized, and never used a striking force in the 22 first place! 23 12. Defendant likely does not dispute his proper citizen’s arrest for felony sexual battery, as 24 supported under the Virginia Supreme Court and other Circuit and State case law. 25 Plaintiff contends the following well-established facts that give rise to Defendant’s 26 reasonable knowledge of his obligation to at least attempt to preserve evidence, from case law and Virginia precedent, as well as Defendant’s testimony: 27 a. MWAA Police were called at Plaintiff’s behest 28 7 1 b. Plaintiff requested to press charges against Defendant for felony sexual battery c. Plaintiff placed Defendant under arrest for excessive force during a TSA pat- 2 down, constituting felony sexual battery as defined under VA § 18.2-67.3 and case 3 law and Commonwealth precedent: 4 i. Meyers v. Redwood City (9th Cir. 2005) 400 F.3d 765, 772 5 ii. Kinney v. County of Contra Costa (1970) 8 Cal.App.3d 761, 769 6 iii. Wang v. Hartunian (2003) 111 Cal.App.4th 744, 750 [“[T]he police were 7 in fact obligated to take custody of Wang merely at the direction of 8 Hartunian, that is, when Hartunian informed the police that he had arrested Wang.”]; Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1137 9 iv. Hudson v. Commonwealth, 266 Va. 371, 379 (Va. 2003), the Virginia 10 Supreme Court stated, “At common law, a private citizen may arrest 11 another for a breach of the peace committed in his presence. 12 13. In further testimony, Defendant admits to spoliation, which Exhibit D demonstrates is 13 contrary to Defendant’s obligations to retain evidence under TSA policies, and that 14 Plaintiff specifically requested to Defendant at the time of the incident on 10 March 2016, 15 for Defendant to retain all evidence, which he did not even attempt to do, contrary to precedent in Silvestri v. General Motors Corp., 271 F.3d 583, 593 (4th Cir. 2001) 16 a. If Defendant claims that the one security video accepted for filing by the Court in 17 this case is claimed to show non-excessive use of force, which Plaintiff contests is 18 just the opposite, then Plaintiff further contends that: 19 i. It is incriminating that Defendant admits in testimony that despite being 20 promptly notified at the time of the incident (shown in Exhibit D) by 21 Plaintiff, that Defendant did not ask to retain the few videos (PLURAL, as 22 Plaintiff requested) in the vicinity and required under precedent that 23 Defendant make reasonable efforts, without which good faith is denied 24 under Doe, which eliminates any good faith exemption under FRCP 37(e) (see Doe v. Norwalk Community College, 2007 U.S. Dist. (D. Conn., July 25 16, 2007)). 26 ii. This Court’s decision by the Hon. Judge Anderson to deny without 27 prejudice to file the lodged impeaching video created by Plaintiff is 28 8 1 concerning as a matter of requity (since why should Defendant’s video be accepted, while Plaintiff’s impeaching video is rejected?) and 2 demonstrating the frame rate issues in the one security video, as well as 3 pointing out that humans magically appear and disappear in the one 4 security video filed by Defendant, making the retention, chain-of-custody 5 tracking and proof, and preservation of ALL security videos critical 6 evidence in this case, and their willful spoliation to be prejudicial and 7 worth of adverse judge/jury instructions under Silvestri v. General Motors 8 Corp., 271 F.3d 583, 593 (4th Cir. 2001), if not further sanctions, or by 9 Plaintiff’s request, supporting of Plaintiff’s Motion for Summary 10 Judgment. 14. As this Court well knows, the Fourth Circuit does not require a showing of bad faith to 11 warrant dismissal (or adverse judge/jury instructions for sanctions for spoliation (even 12 though Plaintiff contends that bad faith is exhibited in this instant case by Defendant) if 13 the conduct is sufficiently egregious and the harm caused cannot be recreated (as it is 14 with destruction of Defense-admitted crucial videos). Silvestri v. General Motors 15 Corp., 271 F.3d 583, 593 (4th Cir. 2001) (applying federal law to a motion for 16 spoliation and finding that while the offending party’s conduct may have been either 17 deliberate or negligent, the prejudice to the non-offending party by the failure to preserve 18 key evidence necessitated dismissal); see also Rambus Inc., 439 F. Supp. 2nd at 536 (―[S]ome instances of negligent spoliation will require dismissal [solely] because of the 19 resulting prejudice to the defendant (or Plaintiff, rather, in this instant case). 20 15. Under FRCP 37(e) and Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 21 2001), Plaintiff has already proven the three required elements (an appeal before Hon. 22 Judge Anderson for judicial notice of spoliation is currently pending, since Judge 23 Anderson considered intent to be controlling, even though precedent from Kroger and 24 other cases cited prove that intent has been previously not be deemed to be controlling): 25 a. The spoliating party had a duty to preserve ESI, because litigation was ongoing or 26 reasonably anticipated. Proof: To Defendant: requests at-the-time by Plaintiff to preserve all videos as 27 affirmed by Defendant’s TSA co-workers; To TSA and MWAA: requests at-the 28 9 1 time by Plaintiff and affirmed by multiple timely written requests by fax to preserve all videos and other specific ESI. See Exhibits B and D. 2 b. The spoliating party did not take reasonable steps to preserve the ESI or as 3 Silvestri put it, the destruction or loss was accompanied by a “culpable state of 4 mind”. 5 Proof: Defendant’s deposition testimony that he did not take any preservation 6 actions or any ESI or other evidence despite Plaintiff’s almost textbook litigation 7 hold and retention requests acknowledged as received immediately by Defendant, 8 and then followed-up close to 20 times in the 3 weeks after, and has not provided 9 any proof of records retention as required under FRCP 26; TSA has provided only 10 a single allegedly edited video and no proof of records retention in response to subpoena commanding “all reports by personnel involved with this incident and 11 case” which MWAA confirmed would include any preservation of evidence 12 requests; MWAA has affirmed and this Court has recognized (Hon. Judge 13 Anderson affirmed that MWAA did not send any retention letters, and made no 14 good faith efforts to avoid spoliation) that MWAA did not sent any requests for 15 records retention, which is why the requested videos were destroyed. 16 c. Allowing standard ESI destruction policies to destroy video evidence is also 17 against case law from the Fourth Circuit in Silvesti, as Defendant, 18 Defendant’s numerous attorneys, the US Attorney, and an expensive DC law firm should all have known. Their passively-permitted destruction of all but 19 ONE POOR QUALITY (and likely altered) video can only be interpreted as 20 invidious bad faith intended to deprive pro se Plaintiff of crucial evidence at trial. 21 d. The ESI was lost as a result of the spoliating party’s (parties’) failure to use 22 reasonable efforts to preserve the ESI, cannot be restored or replaced through 23 additional discovery, and the evidence that was destroyed or altered was 24 “relevant” to the claims or defenses of the party that sought the discovery of the 25 spoliated evidence, to the extent that a reasonable factfinder could conclude that 26 the lost evidence would have supported the claims or defenses of the party that sought it. 27 Proof: Defendant in his deposition testimony agreeing that video evidence in this 28 10 1 case is critical and essential to adjudication, plus Defendant’s FRCP 26 replies where he confirms that he no longer possesses other than a singular video, already 2 impeached due to camera angle, reduced frame rate and resolution, lack of 3 provenance and failure to provide full video required under FRCP 160, etc. Since 4 other videos at the checkpoint have long since been destroyed, they are not able to 5 be recreated to satisfy Plaintiff’s right for all local videos, but would have likely 6 shown very clearly the excessive force used by Defendant during his felony 7 sexual battery on Plaintiff, fully supporting Plaintiff’s claims and making 8 Defendant’s rebuttals difficult, unconvincing, and unlikely to prevail at trial. 9 Additionally, third parties MWAA and TSA have also not placed litigation holds 10 on other videos, which cannot now be restored or replaced through additional discovery. Also, the burden imposed by Plaintiff’s requests to preserve evidence 11 were minimal (Defendant could just as easily have requested 12 videos to be 12 retained instead of one, copies of emails and text messages for one person for at 13 least a reasonable period after the incident would have been minimal, and saving 14 of a social media page from Facebook – where Plaintiff verified that Defendant 15 had an account – would also have been minimal.) Defendant has claimed that he 16 is not obligated to “save every scrap of paper,” while equating a video DVD to a 17 scrap of paper. Plaintiff responds stating that Defendant does not cite or 18 demonstrate Defendant’s implied obligation to ONLY SAVE A SINGLE “PIECE OF PAPER” (aka DVD). This is not reasonable for Defendant to avoid spoliation 19 sanctions as reasonably intended by the revised FRCP 37(e). 20 Further testimony by Defendant in the 20 October deposition: 21 Q Do you -- did you -- not having seen the 22 video, but in the documents that were filed on your behalf representing you, did you claim the video to be 23 page 220 critical evidence in this case? 24 A I would think it to be critical. 25 Q If one video were critical evidence, wouldn't other videos from different -- from other angles also be 26 critical? A I don't know what the other cameras showed, 27 nor would I know what other video might be available 28 11 1 or … [NOTE: what the other cameras did or did not show is IRRELEVANT under precedent from Aaron v. Kroger L.P., 2011 U.S. Dist. LEXIS 111004 (E.D. Va. Sept. 27, 2 2011)] page 221 3 Q Did you state – I believe you stated before that video 4 evidence, in general, is very beneficial to as evidence in a case? 5 A I would believe it to be beneficial, yes. Q And in this case, one -- we've already 6 established with you that one video was critical, you agree, in this case; correct? 7 A Yes. 8 Q So the question I'm trying to -- I ascertained is that you deny that other videos, whether or not you 9 know what they hold, if other videos could equally be holding critical information? 10 A I would disagree just because I don't know 11 what those other videos might hold or not. They could be as insignificant as anything and show something that 12 isn't relevant to the case. Q In your opinion, would it be prudent for 13 someone in a situation like yours to try to retain video 14 evidence to prove your innocence or possible guilt? A I wouldn't have any powers regardless. I 15 page 222 would simply have to process the proper requests through 16 my counsel for any video that I could get. Whatever I can't get, I can't get. 17 Q Did you ever make any attempts to retain any 18 evidence in this case? A I believe that there was a process done 19 through my attorney to receive any video of the incident. 20 Q Did you ask anyone else at TSA other than your 21 attorneys or at MWAA about video evidence? A I did not. 22 Q May I ask why not? 23 A Because I was doing everything through my attorneys. 24 16. In training, as provided in Exhibit E, Defendant redacted evidence without marking (and 25 refusing to disclose when asked) if the redacted materials were SSI. Even following the 26 Court’s Orders of 16 November and 07 December, Defendant refused (on the orders of 27 TSA, in criminal violation of 18 USC§1509) to amend or supplement his answers with 28 the redacted material. 12 1 a. Noteworthy is that TSA training indicates that if a passenger’s pants are too low or with excessive fabric where “clearing” of the groin and genitals to be free of 2 contraband would be difficult, TSOs are directed to ask the passenger to pull up 3 his/her pants by the belt-loops. (See Exhibit E for specific training guidance, 4 around 3 pages into Exhibit E, the page is TSA numbered as “22 of 75”, which is 5 not the page number of this Reply). Defendant has admitted that he did not ask 6 Plaintiff to pull up Plaintiff’s pants, as seen on the secure video evidence and 7 reaffirmed in Plaintiff’s testimony that Plaintiff’s pants were not bulky or with 8 any extra fabric or obstructions, therefore making any striking of Plaintiff by 9 Defendant even more unreasonable and to be excessive force. 10 b. Noteworthy is that Plaintiff’s video-recorded reaction to be struck in his testicles is consistent with deposition testimony of Defendant’s TSA supervisor William 11 Whetsell as to what he would expect a passenger to do if struck with excessive 12 force. 13 c. Plaintiff immediately after reaching his Dulles airport departure gate, called to his 14 medical insurance company and consulted with an advice nurse, who arranged for 15 Plaintiff to be seen as soon as Plaintiff reached his destination, which generated 16 the series of medical reports shown in Exhibit F. While clearly unconstitutional 17 and resulting in medically-documented long-term injuries, Plaintiff’s injuries were 18 not of the sort that could be treated at Dulles, no medical professionals were easily known to be available for a “consult” at Dulles, no medical help was 19 offered by TSA at any time, and Plaintiff was advised by the advice nurse on his 20 phone call that boarding his flight and getting to his destination as soon as 21 possible, would be the best course of action than to delay and try to seek help at 22 Dulles airport by medical staff of unknown quality, who would only further delay 23 Plaintiff’s travel and likely delay Plaintiff beyond the departure time for his flight. 24 25 CONCLUSION 26 17. For cause as shown, Plaintiff prays for summary judgment to be Ordered for Plaintiff on all matters, and most importantly, on the issue of use of excessive force by Defendant. 27 28 13 1 EXHIBIT A Proof of intentional non-service of any motion possibly filed by Defendant for Summary 2 Judgment, which should render such filings by Defendant DEFECTIVE and should be 3 REJECTED. 4 1. Defense Counsel Sylvertooth is aware that Plaintiff was scheduled to be on travel and 5 without access to FedEx or mail services from 23 December 2017 through 07 January 6 2018. This is shown in the fax copies listed on the following pages. 7 2. Sylvertooth therefore intentionally delayed or simply did not serve Plaintiff with any 8 Defendant’s motion (if one was filed) for summary judgment, to create as much hardship 9 as possible for pro se Plaintiff, and to try to gain some advantage before the Court by 10 stifling, impeding, and interfering with Plaintiff’s intended responses in violation of FRCP 5 and 11, as previously cited. 11 3. Sylvertooth is getting desperate, and his unethical behavior, violating standards of 12 conduct for an officer of the court, support sanctions and penalties as requested separately 13 by Plaintiff. These claims are proven by: 14 a. documented repeated lies to the Court such as in TSA’s Motion to Quash, proven 15 in Plaintiff’s response and filed with a transcript to the Court proving Plaintiff’s 16 assertions; 17 b. Exhibit A shows that no mailings have been made to Plaintiff since 07 December. 18 Neither Defendant, nor 3rd party TSA have not served Plaintiff with any filed motions, if any were filed with the Court, for Plaintiff to reply to and Oppose. 19 Note that TSA’s filings are relevant are both represented by the same attorney 20 (Sylvertooth). TSA is also represented by Bryant, whom Plaintiff has previously 21 shown has been legally advising Defendant, though claiming not to be his counsel 22 c. TSA and Defendant (both represented by Sylvertooth, and Bryant) refusing to 23 obey two Orders of this Court to treat Plaintiff as a Covered Person and receive 24 alleged SSI. Plaintiff requested and reminded TSA and Defendant on or about 25 26 November, 06 December, 19 December, and 21 December to comply with the 26 Court’s two Orders; d. TSA/Defendant not serving Plaintiff with other filings, such as TSA’s objection to 27 an emergency order for non-retaliation, that the Clerk informed Plaintiff of, but 28 14 1 Plaintiff was never served by Sylvertooth; (Plaintiff had to respond to that Defense filing based on Plaintiff’s guesses also – that is unethical and contrary to 2 Court Rules that Plaintiff shall not be provided with Motions to reply to!); 3 e. not serving Plaintiff with any filing for summary judgment, despite it being a 4 critical, potentially dispositive motion that Sylvertooth is obligated to serve; 5 f. not replying to repeated faxes notifying Sylvertooth that Defendant has not 6 received any Defense summary judgment motion, and not even ensuring service 7 by faxing a copy to enable Plaintiff to respond. Plaintiff requested and reminded 8 Sylvertooth and Defendant by fax on 19 December, and 21 December that no 9 filing had been received, and to please sent a copy by fax (fax number provided 10 again). No reply from any DOJ personnel, or Sylvertooth, was received. 4. Plaintiff is certain that IF any Defense motion for summary judgment WERE filed, that 11 Sylvertooth has perjuriously claimed that he served a copy to Plaintiff’s address. 12 a. BUT, Plaintiff demonstrates that no such filing was received 13 b. Plaintiff insists that Defendant show a Certified Mailing proof of sending 14 c. Plaintiff still sent multiple reminder faxes to Sylvertooth (see Exhibit A), and 15 Sylvertooth/Defendant should be obligated to provide a copy of any filing 16 (especially potentially dispositive, when informed that it was not received, by fax, 17 if US Mail is not working for some coincidental reason); 18 d. Plaintiff asserts that any unserved Defense motions should be rejected by the Court under FRCP 5, and potentially sua sponte sanctioned under Rule 11, since 19 this behavior by Sylvertooth is neither new, nor trivial. 20 21 Plaintiff uses a 3rd party mail forwarding service in Arglington, VA, which also provides a 22 3rd party verification of mailings received from Defendant. Below are screenshots 23 showing that only two envelopes were recently received from Defendant, both mailed on 24 07 December (well before any SJ motions would have been filed), and neither contained 25 ANY Defense motion for summary judgment ! Only the two brown envelopes are from 26 the DOJ; the first two are from the deposition firm, and the last from the Clerk of the Court. Plaintiff is willing to open access to Plaintiff’s mailbox and 3rd party to the 27 Court for investigation and proof that none of this data has been altered or deleted. 28 15 1 2 3 4 5 6 7 8 9 10 11 12 13 Below are enlargements of the two manila envelopes from the DOJ, which were both shipped to 14 Plaintiff, but did not contain any summary judgment filings from Defendant. In case of 15 oversight or mistake by Defense counsel or his staff, Plaintiff sent the faxes on the next page to 16 reminder Defendant that nothing had been received. However, both envelopes are postmarked as 17 08 December 2017 (USPS tracking shows them as mailed on 07 December). This confirms Plaintiff’s statements that neither envelope included any motion for summary judgment, since 18 Sylvertooth likely completed and make any filings after 08 December, making it extremely 19 unlikely that all the filings were complete more than a week in advance! If Sylvertooth does so 20 claim, then he should be held to prove electronically that no alterations or work occurred on any 21 possible summary judgment filings after 08 December. Regardless, this does not explain why 22 Sylvertooth or his plethora of DOJ staff did not reply to any of Plaintiff’s faxes to ask for a copy 23 of any summary judgment filing, to permit Plaintiff to respond. 24 25 26 27 28 16 1 2 3 4 5 6 7 8 9 10 11 12 fax of 21 December: 13 Mr. Sylvertooth 21 December 2017 14 I have not received any responses to my previous faxes to you (including of 19 December), where your client TSA has not complied with the Court’s Orders of 16 November and 07 15 December to treat me as a covered person and disclosed the limited SSI ordered under the Court- 16 approved Subpoena to TSA. Furthermore, TSA has and is violating federal criminal law by instructing and threatening Polson 17 and Whetsell not to comply with the Court’s Orders. I have asked you several times for them to update all their responses and production to include answers and objections previously made on 18 the basis of SSI. You, and they, have not done so. 19 On 19 December, I asked if you had filed any motion for summary judgment since I have not 20 received any notice or copy from you. A week after the deadline of 15 December, I have still not received any certified letter from you. 21 I will be unavailable to receive and reply to any documents between 22 December and 07 22 January 2018. 23 Therefore, if you have filed any documents this past week, or if you have filed any motion for summary judgment, please fax me a copy of any and all documents by today, 21 December 2017. 24 You have my fax #, but I will repeat it here: [redacted in this filing; private fax #]. It is not for publishing or publicly listing on the documents, but you may use it to speed up and simplify 25 communication. 26 I ask that you contact the TSA Administrator, Mr. Daniel P. Pekoske, to make himself available 27 on 19 January to attend the 10a hearing before Hon Judge Trenga at the Courthouse. Please save copies of emails or other proof of your requests to Pekoske’s office, to show that you have done 28 17 1 this. 2 I have requested that the TSA Administrator, Mr. Daniel P. Pekoske, be Ordered to personally appear before the Court and Hon. Judge Trenga on 19 January 2018, to explain his Agency’s 3 refusal to obey two Orders of this Court, as part of a Hearing at that time to consider sanctions 4 against TSA and its attorneys-of-record, as well as further Orders to compel compliance and production of evidence. 5 I look forward to your cooperation. 6 7 CAPT. Linlor fax of 19 December: 8 Mr Sylvertooth 19 December 2017 9 10 Did you file a motion for summary judgment? 11 If yes, I have not received any copy yet. Please fax me whatever you filed so that I can timely file a reply. 12 I also have not received any SSI from TSA as ordered by the Court, nor updates to Defendant’s 13 (and Whetsell’s) answers that TSA has forced both of them to withhold. 14 Please send your TSA evidence as the Court has ordered, and have Polson and Whetsell update 15 their answers, responses, and all evidence and production to also comply with the Court’s orders, with all info being sent to me by fax as well as US Mail to avoid delays and filing of further 16 motions for sanctions. 17 CAPT. Linlor 18 fax of 07 December: 19 Attention attorneys: 20 Sylvertooth Bryant 21 Barghaan Boente 22 23 You did not send me any fax reply to my request for evidence ordered by the Court and confirmed as “critical.” If I do not receive BY FAX all evidence today (Thursday 7 Dec 2017) 24 by 3pm EST, I will be forced to file a Motion for Contempt of Court and Sanctions against all four of you. 25 26 You have all four signed documents in this case, and were ordered by the Court to provide the information I am requesting. 27 The evidence is to include all responses without redaction of alleged (and to-date unjustified 28 18 1 under Gordon v. FBI) SSI, including all subpoena responses, Rule 26 disclosures, answers to questions in Polson’s or Whetsell’s deposition withheld as SSI, and any other evidence or 2 disclosures not covered in the previous groups. 3 You are acting like this is a game; I assure you that is not. 4 CAPT. Linlor 5 6 fax of 05 December: 7 Mr. Sylvertooth 8 Based on the Court’s Order #191, with the Order that I be treated as a Covered Person under 49 9 USC 1520.7, and that TSA has failed to timely provide any proposed protective order, I have requested that the Court Order that ALL withheld SSI be provided to me immediately for 10 inclusion in my upcoming filings. 11 I request updates to all Rule 26 and other requests, with copies of all interrogatories and 12 documents to be updated to include previously withheld information claimed as SSI to be unredacted and conveyed to me, by fax to my fax # of record, by 06 December 2017, with 13 mailing by certified mail on the same day. 14 Please confirm that you will be doing so. 15 CAPT. Linlor 16 fax of 28 November: 17 18 19 20 21 22 23 24 25 26 27 28 19 1 EXHIBIT B Excerpts of Defendant’s deposition testimony, proving that: 2 A) No TSA guidance on excessive force guidelines was known to Defendant, and so no 3 exemption for working within guidelines exists. 4 B) Defendant knew that Plaintiff intended to pursue legal action (“to press charges”) against 5 Defendant, and per the copy of TSA’s SOP that TSA published on the internet, TSA screeners 6 (TSOs) and their managers are both responsible for collecting and retaining all evidence from 7 “incidents.” Defendant admits that he did not make any such attempts to preserve evidence, for 8 any ESI (electronically stored information). Defendant’s failures (by precedent and case law) 9 remove any good faith exemption, and imply prejudicial destruction, since prejudice is implied 10 when evidence that could be impeaching or implicating is destroyed. C) Defendant impeded Plaintiff in contravention of Rule 26, by not disclosing witness names. 11 D) Defendant knew that he was placed under Citizen’s Arrest. 12 13 Proof of paragraph A: No TSA guidance on excessive force guidelines was known to Defendant, 14 and so no exemption for working within guidelines exists. 15 Deposition of Michael Polson, page 8 (line numbers to the left of questions and answers): Questioner: Capt. Linlor; Answers: Michael Gerard Polson 16 2 Q Why do you believe that you would fall under 17 3 qualified immunity? 4 A Qualified immunity covers me as an agent 18 5 officer with TSA within my scope of duties. 6 Q You said as an officer in your scope of 19 7 duties; is that correct? 20 8 A That is what I said. 9 Q Can you define why you used the term officer? 21 10 A My role was TSO, transportation security 11 officer, with TSA. 22 12 Q Do you believe that a TSO is the same as a law 13 enforcement officer? 23 14 A I do. 24 15 Q Do you believe that you have qualified 16 immunity as a law enforcement officer? 25 17 A I do. 26 NOTE: This claim by Defendant (to be law enforcement) is false; TSA and mandatory precedent 27 (previously filed in Plaintiff’s motions with the Court) state that TSOs are not law enforcement 28 officers, have no powers of arrest, and have no law enforcement qualified immunity. 20 1 Deposition of Michael Polson, page 123 (line numbers to the left of questions and answers): 4 BY CAPTAIN LINLOR: 2 5 Q Have you ever heard of such a striking force 6 injuring a passenger? 3 7 A I have not. 8 Q Have you ever been guided by TSA to be careful 4 9 not to use excessive striking force as it has been 5 10 defined? 11 A I don't recall. 6 Page 209 7 8 Q So you deny that you used excessive force 8 9 against me during the pat down on 10 March 2016; 10 correct? 9 11 A That is correct. 12 Q Do TSA regulations permit use of excessive 10 13 force in passenger pat downs? 11 14 A Again, I do not recall any specific 15 regulations on excessive force being taught in training 12 16 or provided in SOP. 17 I would make, in my opinion, a general 13 18 statement, that there's -- they would expect all 19 officers to act in a professional matter. 14 20 Q So would you agree based on that that TSA 15 21 regulations do not permit use of excessive force against 22 passengers during pat downs? 16 page 210 1 A I couldn't speak to that, sir. 17 18 ---------------------------- 19 Proof of paragraph B: Defendant knew that Plaintiff intended to pursue legal action (“to press 20 charges”) against Defendant, and per the copy of TSA’s SOP that TSA published on the internet, 21 TSA screeners (TSOs) and their managers are both responsible for collecting and retaining all 22 evidence from “incidents” and paragraph D: Defendant knew that he was placed under Citizen’s 23 Arrest. 24 starting on page 207 BY CAPTAIN LINLOR: 9 Do you believe that I claimed I wanted to 25 10 press charges against you via statements that I made on 11 March -- 10 March 2016? 26 12 A Yes. Page 208 27 3 Q Did you make any efforts to retain any 28 4 information related to this case -- related to potential 21 1 5 charges, civil or criminal, to help exonerate you in 6 case of those charges? 2 7 A I did not on that day. 3 8 Q Did you make any attempts afterwards? 9 A After receiving the actual documentation of 4 10 this being a case, it was notified that anything I had I 11 should retain, and I searched and I retained anything 5 12 that would be relevant. 6 13 Q You did not -- I believe you said before you 14 did not make any requests to retain any of the video? 7 15 A I said I do not recall making a request. 16 Q There was one video provided over to me by 8 17 TSA. How did that video get retained; do you know? 18 A I do not. 9 19 Q Do you know how that one video was selected? 10 20 A I do not. 21 Q Do you know the chain of custody about that 11 22 video? Page 209 12 1 A I do not. 13 2 Q Do you know any -- the word is provenance, and 3 I learned this -- any provenance of the video related 14 4 to, has it been altered in any means like this? 5 A To my knowledge, it has not been altered, but 15 6 I am not aware of anything with the video anyway. I 16 7 haven't seen it. 8 Q So you deny that you used excessive force 17 9 against me during the pat down on 10 March 2016; 10 correct? 18 11 A That is correct. 12 Q Do TSA regulations permit use of excessive 19 13 force in passenger pat downs? 20 14 A Again, I do not recall any specific 15 regulations on excessive force being taught in training 21 16 or provided in SOP. 17 I would make, in my opinion, a general 22 18 statement, that there's -- they would expect all 23 19 officers to act in a professional matter. 20 Q So would you agree based on that that TSA 24 21 regulations do not permit use of excessive force against 22 passengers during pat downs? 25 page 210 1 A I couldn't speak to that, sir. 26 2 Q Do you deny that you were placed under 27 3 citizen's arrest on allegations of federal sexual -- 4 felony sexual battery by me on 10 March 26? 28 5 A I do not recall being placed under any 22 1 6 citizen's arrest on 10 March 2016. page 214 2 9 Q So if someone were to say they were placing 10 you under citizen's arrest, would your opinion be to 3 11 disregard them as not knowing what they're talking 12 about? 4 13 A No. 5 14 Q Would you take the claim of being under 15 citizen's arrest seriously? 6 16 A If I understood what was going on, I could 17 take different actions based upon it. 7 18 Q If you were being alleged for a felony sexual 8 19 battery, would that be a serious allegation in your 20 opinion? 9 21 A It is a serious allegation. 22 Q Would you -- if you were accused of a felony 10 page 215 11 1 sexual battery, what actions would you take if you -- if 2 someone claimed they had put you under citizen's arrest? 12 3 A As -- so my standpoint would be as the suspect 4 or the victim, sir? I didn't understand the question. 13 5 I apologize. 6 Q As the suspect. 14 7 A As a suspect of someone who committed a felony 15 8 sexual assault on someone else? 9 Q Yes. 16 10 A And that someone else is saying that I'm under 11 citizen's arrest? 17 12 Q Yes. 18 13 A And there are police present? 14 Q Not yet, but let's say at some point there are 19 15 afterwards. 16 A Am I -- am I detained in any capacity? 20 17 Q Yes. 18 A Okay. What capacity am I detained in? 21 19 Q You've been placed under citizen's arrest. 22 20 A So by detained, I mean like am I free to move? 21 Am I restrained in any way? Am I cornered? 23 22 Q You've been asked to stay there until the page 216 24 1 police arrived. 25 2 A I would not take that as a serious arrest of 3 any form. If there's still freedom of movement, then I 26 4 wouldn't even feel detained. 5 Q Would you -- if this would have happened 27 6 outside of work, would you act differently than you 28 7 would at work from TSA? 23 1 8 A No. 9 Q Do you think that your role as a TSO granted 2 10 you special immunities? 11 A No. 3 ------------------- 4 Proof of paragraph C: Defendant impeded Plaintiff in contravention of Rule 26, by not 5 disclosing witness names and paragraph D: Defendant knew that he was placed under Citizen’s 6 Arrest. 7 4 Q And then can you read the -- just the 5 subparagraph 2 underneath that, starting with the word 8 6 "control," just that one sentence. 7 A The first sentence, in quotations, control, 9 8 end quotations, in this context has also been defined 10 9 as, quotations, legal right, authority or ability to 10 obtain upon demand documents in possession of another, 11 11 end quotations. 12 Q So knowing the things you do now, do you think 12 13 that it would have been possible, it would have been in 13 14 your ability or control, not a legal conclusion, but 15 just as an opinion, in your ability or control to obtain 14 16 the phone numbers that you say you had lost from 17 Mr. Whetsell as well as to provide his work e-mail? 15 18 MR. SYLVERTOOTH: Form. 16 19 A Under what day are we speaking? 20 BY CAPTAIN LINLOR: 17 21 Q When you were providing information for this 22 chart? 18 Page 187 1 A When I was providing this documentation, I did 19 2 not have his contact information anymore as I had 20 3 already left TSA and I was already employed by the 4 Secret Service. 21 5 Q Did you know what Mr. Whetsell's e-mail had 6 been previously? 22 7 A I do. 23 8 Q Is there a reason why you couldn't have 9 written that down? 24 10 A I did not prepare this documentation. 11 Q Did you provide information for this 25 12 documentation to -- as part of this case? 26 13 A I provided, I remember, names and their 14 relationships to me. 27 15 Q Did they -- did anyone ask you for any -- ... 28 19 BY CAPTAIN LINLOR: 24 1 20 Q Did anyone -- did you provide contact 21 information for any of your witnesses? 2 22 A I don't recall – page 188 3 1 MR. SYLVERTOOTH: I'm going to instruct the 2 witness not to answer as it relates to attorneys 4 3 representing you. You can answer that question as it 5 4 relates to any other individuals, but as it relates to 5 attorneys representing you in this case, I'm going to 6 6 instruct you not to answer. 7 BY CAPTAIN LINLOR: 7 8 Q And could you confirm that you are then, from 8 9 the standpoint of attorneys, that you are invoking 10 privilege and declining to answer that question, please? 9 11 A I am invoking privilege to not talk about the 12 documentation and such that I have given my attorneys 10 13 under privilege. 11 NOTE: This means that Rule 26 disclosures are claimed by Defendant to not be disclosable under attorney-client privilege! This is a violation of obligations to disclose under Rule 26, 12 and also renders any exculpatory evidence of Rule 26 compliance as NON-ADMISSABLE. 13 14 Q I have a couple of questions. If you feel -- 15 if you feel the need to invoke the same privilege, feel 14 16 free. 15 17 Were you in the -- was it possible for you to 18 ask anyone to get their contact information and provide 16 19 it here? 20 A I'm sorry, can you repeat the question? 17 21 Q Was it possible for you to ask anyone to 18 22 provide the contact information for the witnesses you page 189 19 1 listed? 2 A It was possible maybe for Mr. Whetsell, but I 20 3 didn't have contact with anyone else on the list. 21 ... 18 BY CAPTAIN LINLOR: 22 19 Q I'm asking, for the people here, did you have 20 any ability to ask -- to ask anyone, anyone, for their 23 21 help to provide this information -- the contact 22 information on these witnesses? 24 Page 190 25 1 A At the time my ability was going through my 2 TSA counsel, who is Mr. Bryant at the time, who was my 26 3 connection to TSA. [NOTE: Bryant denied representing Defendant] 4 Q Did you do so? 27 5 A I don't recall. 28 6 Q Do you have any documentation showing that you 25 1 7 did? 8 A I wouldn't be able to provide it to you, sir. 2 9 That would be privileged information. 10 Q So that's invoking your privilege right; 3 11 correct? 12 A Correct. 4 … 5 13 What does an SF86 contain? 6 14 A It's a security questionnaire, is what it's 15 defined as. 7 16 Q Does it cover pending cases like this one? 8 17 A I don't recall. I remember there was a court 18 section, but I don't -- I think it was more along of yes 9 19 or no questions on, have you ever been charged with a 20 felony, stuff like that. I don't recall exact phrasing 10 21 in any form. 11 22 Q Was anyone else aware of your applying to the page 197 12 1 Secret Service? 2 A My parents were. I had done the application 13 3 with a co-worker, because he and I were both trying to 4 get in using the Veteran's preference that we still had. 14 5 So a co-worker from TSA had referred me to the position. 15 6 Other than that, I mean, I never really specified it 7 with anybody until after I actually received the class 16 8 start. 9 Q Who was the co-worker? 17 10 A Jay. I remember him as Jay. 18 11 Q Do you remember his last name or is that his 12 initial or nickname or what? 19 13 A His first name was Jay, like J-a-y. Jay. 14 Q Okay. Do you know his last name? 20 15 A I don't recall his last name. 16 Q Do you know what he did, what his job was? 21 17 A He was the same position as I was at the 22 18 checkpoints because he was in my same training class. 19 Q At -- with -- with the TSO training class? 23 20 A TSO training class. 21 Q Did you keep in touch with people from the TSO 24 22 training class? 25 Page 198 1 A I don't keep constant contact. It's more of 26 2 we're friends on Facebook, so I see what they update on 3 their Facebook page. I don't -- 27 4 Q How many of the people from your training 28 5 class did you keep friends with on Facebook? 26 1 6 A After my employment with TSA? 7 Q During -- during or after, any time. 2 8 A Maybe three. 9 Q Okay. And Jay was one of those three? 3 10 A Jay is one I have on -- is a friend on 11 Facebook. 4 12 Q Is he still on Facebook with you? 5 13 A Last time I checked. I don't think we've 14 removed each other. 6 15 Q Okay. Is he -- have you discussed any part of 16 this case with Jay? 7 17 A I have not. 8 18 Q And you don't know his last name? 19 A No. 9 20 Q Is his last name listed on Facebook? 21 A It might be. 10 22 Q Would you have -- would your looking up your 11 page 199 1 Facebook friends be in your control? 12 2 A Yes. 3 Q So if you wanted to find out his name, you'd 13 4 be able to look it up? 5 A I could probably find his last name if it was 14 6 listed on Facebook. 15 7 Q Does Mr. Whetsell, is he -- Mr. Whetsell is a 8 Facebook friend of yours now; correct? 16 9 A I believe so, yes. 10 Q Does he have -- do you know any other e-mail 17 11 or Facebook handle for him or any other -- anything else 18 12 that relates to his identity? 13 A No. 19 14 Q You don't have a Facebook handle? He doesn't 15 have a Facebook account? 20 16 A Does he or do I? 17 Q Does he. 21 18 A Yes, because he's my -- I believe him to be a 22 19 friend on my Facebook page. 20 Q Okay. So he has a Facebook account? 23 21 A Yes. 22 Q Do you know his Facebook handle? 24 Page 200 25 1 A I do not know what it is off the top of my 2 head. It should be his first or last name. 26 3 Q But you could look -- you could go to your 4 Facebook account and look that up; right? Correct? 27 5 A I would be able to, yes. 28 6 Q So that would be under your control? 27 1 7 A I would agree. 8 Q So if you didn't have his address or phone 2 9 number as far as contact information in the list we were 10 looking at before, Rule 26 disclosures, would -- was 3 11 there anything preventing you from putting his Facebook 12 information in there? 4 13 A I don't recall it asking for a Facebook 5 14 contact. 15 Q It asked for names and phone -- for addresses 6 16 and phone numbers. You put no information. Would it 17 be, in your opinion, relevant to do the best you can? 7 18 A If it's asking for an address and/or phone 8 19 number, I wouldn't have provided a Facebook contact. It 20 wouldn't have been relevant. 9 21 Q Did you make any attempts to retain any 22 evidence with any of your social media? You mentioned, 10 page 201 11 1 I think -- is it Facebook and Tumblr or -- 2 A I have -- I have a Tumblr account. 12 3 Q Did you make any attempts to retain any 4 information, ESI, which is electronically stored 13 5 information? Did you make any attempts to retain any 6 ESI from any of your social media after this incident? 14 21 Was there any information related to this 15 22 case -- and that's the only -- that's the only framing page 202 16 1 of any questions that I have -- that you attempted to 2 retain from your social media accounts? 17 3 A There was no information regarding this case 18 4 on any social media. 5 Q Did you put -- did you make any -- any 19 6 requests at the time to -- meaning around March of 2016, 7 or in the few months afterwards, two or three months 20 8 afterwards, to have them suspend any deleting of 9 information so that that could -- so what you just said 21 10 could be confirmed? 22 11 A You mean having the social media actual 12 company suspend? 23 13 Q Yeah. 14 A I did not. 24 15 Q Did you make screen captures of any of your 25 16 message traffic with any of your friends on Facebook or 17 Tumblr? 26 18 A There was no traffic regarding this case on 19 any social media. 27 20 Q You didn't make any copies of any -- of any -- 28 21 of your traffic at the time to be able to demonstrate 28 1 22 what you just said? Page 203 2 A There was nothing to take a screenshot of. 2 Q You had no -- you had no message traffic at 3 3 all with any of your friends in the six months after 4 this incident, starting on March 10, 2016? 4 5 A In regards to this case, there was nothing. 5 6 Q That wasn't my question, Mr. Polson. Was 7 there any -- did you have any message traffic on social 6 8 media with any of your friends for six months after this 9 case? 7 10 A I would guess, yes. I typically try to reach 8 11 out on birthdays, and I would imagine that there was 12 probably a birthday within that six-month time frame. 9 13 Q Did you make any attempts to document and 14 retain any of your message traffic so that if it was 10 15 later a question, if you were or were not discussing 11 16 topics related to this case, that it would be shown one 17 way or another definitively? 12 18 A I made an active -- I actively did not speak 19 about this case on any social media to the extent that I 13 20 would not need to retain any information or screenshots 21 or messages. 14 22 Q What proof do you have of that? 15 Page 204 1 A I'm here to speak to it under oath. 16 2 Q Isn't that also possibly considered 3 self-serving? 17 4 A Excuse me? 18 5 Q Isn't that possibly considered self-serving? 6 A Can you define self-serving, please, for me, 19 7 for this context? 8 Q Doesn't it -- you're saying it, but you don't 20 9 have any independent proof of it. So if you weren't 10 being truthful, which I hope you are, but if you weren't 21 11 being truthful, there'd be no evidence because the 22 12 evidence was not retained; correct? 13 A If there is no evidence, there's nothing to 23 14 retain. 15 Q There is no -- okay. Was there -- did you 24 16 have a cell phone at the time, on March 10th, 2016? 25 17 A I did. 18 Q Did you make any attempts to retain any text 26 19 messages or other message traffic on your cell phone 20 during the time after this case? 27 21 A Upon receiving the subpoena and request to 28 22 keep all documentation, I looked through, but there was 29 1 page 205 1 nothing -- no conversations were ever made regarding 2 2 this case. 3 Q Did you have any contact with anyone from -- 3 4 when was the first time after this incident that you had 5 any contact with TSA regarding this case? 4 6 A The first time I was called into legal's 5 7 office at Dulles Airport, the TSA attorney there was 8 Mr. Noonan. 6 9 Q And when was that, please? 10 A I don't remember the date, sir. I was still 7 11 employed with TSA at the time. 8 12 Q So that would have been before September 2016; 13 correct? 9 14 A I would believe so, yes. 15 Q And would -- when you're having that 10 16 discussion with Mr. Noonan, you had not had any other 11 17 discussions regarding this case with anyone between 18 March 10, 2016, and September, whatever date it was, 12 19 2016? 20 A It was not a case. And even at that moment, 13 21 he said it was a possibility of something being filed 22 within the District Court of Alexandria. It was just a 14 page 206 15 1 simple, here is a heads-up that something might be 2 coming your way. It was -- nothing else was given. 16 3 Q Was there a -- even before the case, were 4 there any discussions regarding retaining evidence that 17 5 you had with TSA between March 10, 2016, and September 18 6 2016? 7 A No. 19 8 Q So you never discussed this case with anyone 9 from TSA in any capacity between 10 March 2016 -- not 20 10 including -- 10 March 2016, and afterwards? 11 A To the best of my knowledge, I did not. 21 Page 217 22 22 Q Do you think that your -- does an SCI 23 page 218 1 clearance require you to divulge pending litigation? 24 2 A My TS SCI that I currently possess involved a 3 wide variety of not only SF86, but also a polygraph 25 4 confirming everything within it. 5 Q Did you disclose any information about the 26 6 existence of this case in your -- in your secret -- Top 27 7 Secret SCI? 8 A Not to my knowledge. 28 9 Q Were you obligated to? 30 1 10 A At the time I submitted my SF86, not to my 11 knowledge. 2 12 Q Were you required to update that information? 13 A I've been updating my information. 3 14 Q To -- who is the security group that you would 15 update it to for Secret Service? 4 16 A My own agency has a clearance division. So as 5 17 I move through the case, I forward documentation to 18 them. 6 19 Q So they are aware of this case? 20 A They are. [NOTE: Plaintiff contacted the Secret Service around 04 December 7 2017, and they denied any knowledge of the case, and promised a callback, which the Secret 8 Service has not done – they have not contacted Plaintiff as of 22 December 2017.] 21 Q Are they aware that you have been alleged to 9 22 have been placed under citizen's arrest? Page 219 10 1 A They have received all documentation formally 11 2 filed with the court. 3 Q Are you aware that video -- the video 12 4 evidence, the one DVD, was submitted on your behalf by 5 your counsels to the court as part of what is called a 13 6 12(b)6 Motion? 14 7 A I was not aware of the motion. 8 Q Were you aware that the video was submitted to 15 9 the court as evidence? 10 A I believe it was, yes. 16 11 Q Do you believe that it was submitted because 12 it was critical of the case? 17 13 A I would believe that it was. 18 14 Q Do you believe that it would -- was intended 15 to exonerate you? 19 16 A I have not seen the video, nor do I know what 17 it pertains inside the video. I would assume that 20 18 anything submitted would exonerate me as I still hold 21 19 that nothing happened on that day. 20 Q Do you -- did you -- not having seen the 22 21 video, but in the documents that were filed on your 22 behalf representing you, did you claim the video to be 23 page 220 24 1 critical evidence in this case? 2 A I would think it to be critical. 25 3 Q If one video were critical evidence, wouldn't 4 other videos from different -- from other angles also be 26 5 critical? 6 A I don't know what the other cameras showed, 27 7 nor would I know what other video might be available 28 8 or … 31 1 page 221 3 Q Did you state -- I 2 4 believe you stated before that video evidence, in 5 general, is very beneficial to as evidence in a case? 3 6 A I would believe it to be beneficial, yes. 7 Q And in this case, one -- we've already 4 8 established with you that one video was critical, you 5 9 agree, in this case; correct? 10 A Yes. 6 11 Q So the question I'm trying to -- I ascertained 12 is that you deny that other videos, whether or not you 7 13 know what they hold, if other videos could equally be 8 14 holding critical information? 15 A I would disagree just because I don't know 9 16 what those other videos might hold or not. They could 17 be as insignificant as anything and show something that 10 18 isn't relevant to the case. 11 19 Q In your opinion, would it be prudent for 20 someone in a situation like yours to try to retain video 12 21 evidence to prove your innocence or possible guilt? 22 A I wouldn't have any powers regardless. I 13 page 222 1 would simply have to process the proper requests through 14 2 my counsel for any video that I could get. Whatever I 15 3 can't get, I can't get. 4 Q Did you ever make any attempts to retain any 16 5 evidence in this case? 6 A I believe that there was a process done 17 7 through my attorney to receive any video of the 18 8 incident. Page 225 Confirmation of further violations of Rule 26 19 12 Q And the subject matters are what, please? Can 13 you read those, please? 20 14 A In the table next to custodian Transportation 15 Security Administration under subject matters, first 21 16 bullet, video footage from the closed circuit television 22 17 concerning the March 10, 2016, incident, which is the 18 subject matter of the instant civil action. Second 23 19 bullet, policies and procedures relating to the 20 recording and preservation of video footage. And -- 24 21 Q So who is the custodian? 25 22 A To my knowledge, my attorneys filed this page 226 26 1 paperwork to the best -- like I provided them with all 2 the facts they would -- that I could give them, and they 27 3 filled in the rest. So this isn't something I could 28 4 answer. 32 1 5 Q What efforts did you make to identify the 6 custodian? 2 7 A I don't know who the custodian is, sir. 8 Q What -- I understand that. What efforts did 3 9 you make to identify the custodian? 10 A I conferred with my attorneys about all 4 11 persons that I'm aware of related to the case. 5 12 Q Did you ask anyone else at TSA other than your 13 attorneys or at MWAA about video evidence? 6 14 A I did not. 15 Q May I ask why not? 7 16 A Because I was doing everything through my 8 17 attorneys. 18 Q And your attorneys did not inform you about 9 19 any obligation you had to make efforts? 20 MR. SYLVERTOOTH: I'm going to instruct him 10 21 not to answer. 11 Proof of paragraph D: Defendant knew that he was placed under Citizen’s Arrest. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33 1 NOTE: Further sections of Deposition of Defendant for completeness and context Deposition of Michael Polson, page 8 (line numbers to the left of questions and answers): 2 Questioner: Capt. Linlor; Answers: Michael Gerard Polson 3 2 Q Why do you believe that you would fall under 3 qualified immunity? 4 4 A Qualified immunity covers me as an agent 5 officer with TSA within my scope of duties. 5 6 Q You said as an officer in your scope of 6 7 duties; is that correct? 8 A That is what I said. 7 9 Q Can you define why you used the term officer? 10 A My role was TSO, transportation security 8 11 officer, with TSA. 12 Q Do you believe that a TSO is the same as a law 9 13 enforcement officer? 10 14 A I do. 15 Q Do you believe that you have qualified 11 16 immunity as a law enforcement officer? 17 A I do. 12 13 Deposition of Michael Polson, page 123 (line numbers to the left of questions and answers): 4 BY CAPTAIN LINLOR: 14 5 Q Have you ever heard of such a striking force 6 injuring a passenger? 15 7 A I have not. 16 8 Q Have you ever been guided by TSA to be careful 9 not to use excessive striking force as it has been 17 10 defined? 11 A I don't recall. 18 19 Deposition of Michael Polson, page 124-125 (line numbers to the left of questions and answers): NOTE: Deponent’s (POLSON) testimony contradicts security video evidence of the event, in 20 that his written statement is correct, and the revisions he claims appear as an attempt to extricate himself from liability. 21 5 BY CAPTAIN LINLOR: 6 Q Did I give any indication on 10 March 2016, 22 7 that you may have used excessive force in striking me as 23 8 we have defined it? 9 A I would disagree, no. 24 10 Q Does that include the definitions you 11 previously gave -- or the indications you previously 25 12 listed as potentially being -- reflecting excessive 26 13 force? 14 A I denied your previous question because as I 27 15 was sliding down your leg is when you jumped off the mat 16 providing an indication of any excessive force. So 28 17 there was no striking force applied at that time. 34 1 18 Q You said before that the -- you alleged that I 19 jumped off the mat after you had cleared the -- my leg, 2 20 and we were finished with that; is that correct? 21 A No. 3 22 Q What did you say? Page 125 4 1 A I -- if I recall correctly -- I'm going to 5 2 paraphrase here because I'm not going to ask her to go 3 all the way back. I slid up, and as I was coming down 6 4 the rest of your leg is when you jumped off the mat. I 5 had not finished clearing your leg. 7 6 Q Could you read the sentence in your statement, 8 7 in the last paragraph -- it's not underlined, sorry -- 8 starting with "upon," and just read that one sentence. 9 9 It starts with "upon clearing." … 10 17 A I'm with you. 11 18 Upon clearing the left inner thigh, I went up 19 to where his leg meets his torso, body resistance as 12 20 required by SOP, and he jumped backwards off the mat. 21 Do you want me to keep reading? 13 22 BY CAPTAIN LINLOR: page 126 14 1 Q No. Thank you. 15 2 It sounds from this -- from what you wrote 3 here is that it reads, up to where his leg meets his 16 4 torso, body meets resistance as required by SOP, and he 5 jumped backwards off the mat, not that there was an 17 6 additional clearing to the leg afterwards as you just 18 7 stated a minute ago. 8 MR. SYLVERTOOTH: Form. 19 9 BY CAPTAIN LINLOR: 10 Q Do you agree that the two are different? 20 11 A I would revise this written statement to say 12 that I had also been proceeding down your leg. 21 13 Q So you believe that this written statement is 22 14 inaccurate? 15 A I do not. I believe it to be accurate to the 23 16 point that it's still written. I would simply revise 17 that portion at least to state that I had gone up and 24 18 then down your leg. 25 19 Q Did you previously file this statement as 20 being accurate? 26 21 A Probably on whatever date you see written, on 22 that day I believed it to be truthful, and I was willing 27 page 127 28 1 to swear to it under oath. 35 1 2 Q So you did swear to the statement under oath? 3 A On that day in question. 2 4 Q And -- 5 A Referring to page 29 -- 29, I verify under 3 6 oath. 7 MR. SYLVERTOOTH: For the record, that's page 4 8 29 of Exhibit 1. 5 9 CAPTAIN LINLOR: Thank you, Counsel. 10 BY CAPTAIN LINLOR: 6 11 Q So now you're saying that what you submitted 12 under oath was inaccurate; is that correct? 7 13 MR. SYLVERTOOTH: Form. 8 14 A It was to the best of my abilities. 15 BY CAPTAIN LINLOR: 9 16 Q Isn't that -- isn't the difference that the 17 change you're looking to make a significant change in 10 18 your opinion? 11 19 A I don't see it as significant, no. 12 Deposition of Michael Polson, page 186 (line numbers to the left of questions and answers): NOTE: Violations of Rule 26 disclosures by Defendant (POLSON) to frustrate and impede 13 4 Q And then can you read the -- just the 5 subparagraph 2 underneath that, starting with the word 14 6 "control," just that one sentence. 15 7 A The first sentence, in quotations, control, 8 end quotations, in this context has also been defined 16 9 as, quotations, legal right, authority or ability to 10 obtain upon demand documents in possession of another, 17 11 end quotations. 18 12 Q So knowing the things you do now, do you think 13 that it would have been possible, it would have been in 19 14 your ability or control, not a legal conclusion, but 15 just as an opinion, in your ability or control to obtain 20 16 the phone numbers that you say you had lost from 21 17 Mr. Whetsell as well as to provide his work e-mail? 18 MR. SYLVERTOOTH: Form. 22 19 A Under what day are we speaking? 20 BY CAPTAIN LINLOR: 23 21 Q When you were providing information for this 22 chart? 24 Page 187 25 1 A When I was providing this documentation, I did 2 not have his contact information anymore as I had 26 3 already left TSA and I was already employed by the 4 Secret Service. 27 5 Q Did you know what Mr. Whetsell's e-mail had 28 6 been previously? 36 1 7 A I do. 8 Q Is there a reason why you couldn't have 2 9 written that down? 10 A I did not prepare this documentation. 3 11 Q Did you provide information for this 12 documentation to -- as part of this case? 4 13 A I provided, I remember, names and their 5 14 relationships to me. 15 Q Did they -- did anyone ask you for any -- 6 ... 19 BY CAPTAIN LINLOR: 7 20 Q Did anyone -- did you provide contact 8 21 information for any of your witnesses? 22 A I don't recall – 9 page 188 1 MR. SYLVERTOOTH: I'm going to instruct the 10 2 witness not to answer as it relates to attorneys 11 3 representing you. You can answer that question as it 4 relates to any other individuals, but as it relates to 12 5 attorneys representing you in this case, I'm going to 6 instruct you not to answer. 13 7 BY CAPTAIN LINLOR: 8 Q And could you confirm that you are then, from 14 9 the standpoint of attorneys, that you are invoking 15 10 privilege and declining to answer that question, please? 11 A I am invoking privilege to not talk about the 16 12 documentation and such that I have given my attorneys 13 under privilege. 17 NOTE: This means that Rule 26 disclosures are claimed by Defendant to not be disclosable 18 under attorney-client privilege! This is a violation of obligations to disclose under Rule 26. 19 14 Q I have a couple of questions. If you feel -- 15 if you feel the need to invoke the same privilege, feel 20 16 free. 21 17 Were you in the -- was it possible for you to 18 ask anyone to get their contact information and provide 22 19 it here? 20 A I'm sorry, can you repeat the question? 23 21 Q Was it possible for you to ask anyone to 22 provide the contact information for the witnesses you 24 page 189 25 1 listed? 2 A It was possible maybe for Mr. Whetsell, but I 26 3 didn't have contact with anyone else on the list. ... 27 18 BY CAPTAIN LINLOR: 28 19 Q I'm asking, for the people here, did you have 37 1 20 any ability to ask -- to ask anyone, anyone, for their 21 help to provide this information -- the contact 2 22 information on these witnesses? Page 190 3 1 A At the time my ability was going through my 2 TSA counsel, who is Mr. Bryant at the time, who was my 4 3 connection to TSA. 5 4 Q Did you do so? 5 A I don't recall. 6 6 Q Do you have any documentation showing that you 7 did? 7 8 A I wouldn't be able to provide it to you, sir. 8 9 That would be privileged information. 10 Q So that's invoking your privilege right; 9 11 correct? 12 A Correct. 10 11 Deposition of Michael Polson, page 190-191 (line numbers to the left of questions and answers): 19 BY CAPTAIN LINLOR: 12 20 Q Mr. Polson, you applied for a job with the 21 Secret Service you said back in January of 2016; is that 13 22 correct? … 14 page 191 15 1 A Yes. 2 Q And this incident occurred on 10 March 2016; 16 3 right? 4 A Yes. 17 … 18 Page 193 19 1 Salary with TSA, from my understanding, it was 2 not much? 20 3 A I don't recall. 21 4 Q In the big scheme of things? 5 A I don't know what our salary was. 22 6 Q In the big scheme of things, it was -- 7 A It was small. 23 … page 194 24 A The question, you still want the ratio? 25 9 BY CAPTAIN LINLOR: 10 Q I would, though. 26 11 A At the time I wasn't relying upon that as a 12 salary anyway. I wasn't living on my own. I didn't 27 13 move out of my parents'. So when I got out of active 28 14 duty, I went back and lived in my parents' house, 38 1 15 because I couldn't find enough income, especially with 16 part-time jobs that I was getting, to afford my own 2 17 apartment in the area for Fairfax County. 18 So at the time I was still living with my 3 19 parents. So the income for TSA wasn't something -- it 20 was something I was able to get through doing my own 4 21 stuff and kind of have fun on my own time, but it wasn't 5 22 something I was relying upon in any means. … 6 Deposition of Michael Polson, page 196 (line numbers to the left of questions and answers): 7 NOTE: Continued proof of violations of Rule 26, and WILLFUL SPOLIATION BY NOT 8 PRESERVING AND DISCLOSING FACEBOOK AND OTHER ESI RECORDS DESPITE EXPLICITE REQUESTS TO DEFENDANT AND TSA BY PLAINTIFF ! 9 BY CAPTAIN LINLOR: 10 11 13 What does an SF86 contain? 14 A It's a security questionnaire, is what it's 12 15 defined as. 16 Q Does it cover pending cases like this one? 13 17 A I don't recall. I remember there was a court 18 section, but I don't -- I think it was more along of yes 14 19 or no questions on, have you ever been charged with a 15 20 felony, stuff like that. I don't recall exact phrasing 21 in any form. 16 22 Q Was anyone else aware of your applying to the page 197 17 1 Secret Service? 18 2 A My parents were. I had done the application 3 with a co-worker, because he and I were both trying to 19 4 get in using the Veteran's preference that we still had. 5 So a co-worker from TSA had referred me to the position. 20 6 Other than that, I mean, I never really specified it 21 7 with anybody until after I actually received the class 8 start. 22 9 Q Who was the co-worker? 10 A Jay. I remember him as Jay. 23 11 Q Do you remember his last name or is that his 12 initial or nickname or what? 24 13 A His first name was Jay, like J-a-y. Jay. 25 14 Q Okay. Do you know his last name? 15 A I don't recall his last name. 26 16 Q Do you know what he did, what his job was? 17 A He was the same position as I was at the 27 18 checkpoints because he was in my same training class. 28 19 Q At -- with -- with the TSO training class? 39 1 20 A TSO training class. 21 Q Did you keep in touch with people from the TSO 2 22 training class? Page 198 3 1 A I don't keep constant contact. It's more of 2 we're friends on Facebook, so I see what they update on 4 3 their Facebook page. I don't -- 5 4 Q How many of the people from your training 5 class did you keep friends with on Facebook? 6 6 A After my employment with TSA? 7 Q During -- during or after, any time. 7 8 A Maybe three. 8 9 Q Okay. And Jay was one of those three? 10 A Jay is one I have on -- is a friend on 9 11 Facebook. 12 Q Is he still on Facebook with you? 10 13 A Last time I checked. I don't think we've 11 14 removed each other. 15 Q Okay. Is he -- have you discussed any part of 12 16 this case with Jay? 17 A I have not. 13 18 Q And you don't know his last name? 19 A No. 14 20 Q Is his last name listed on Facebook? 15 21 A It might be. 22 Q Would you have -- would your looking up your 16 page 199 1 Facebook friends be in your control? 17 2 A Yes. 18 3 Q So if you wanted to find out his name, you'd 4 be able to look it up? 19 5 A I could probably find his last name if it was 6 listed on Facebook. 20 7 Q Does Mr. Whetsell, is he -- Mr. Whetsell is a 8 Facebook friend of yours now; correct? 21 9 A I believe so, yes. 22 10 Q Does he have -- do you know any other e-mail 11 or Facebook handle for him or any other -- anything else 23 12 that relates to his identity? 13 A No. 24 14 Q You don't have a Facebook handle? He doesn't 25 15 have a Facebook account? 16 A Does he or do I? 26 17 Q Does he. 18 A Yes, because he's my -- I believe him to be a 27 19 friend on my Facebook page. 28 20 Q Okay. So he has a Facebook account? 40 1 21 A Yes. 22 Q Do you know his Facebook handle? 2 Page 200 1 A I do not know what it is off the top of my 3 2 head. It should be his first or last name. 3 Q But you could look -- you could go to your 4 4 Facebook account and look that up; right? Correct? 5 5 A I would be able to, yes. 6 Q So that would be under your control? 6 7 A I would agree. 8 Q So if you didn't have his address or phone 7 9 number as far as contact information in the list we were 8 10 looking at before, Rule 26 disclosures, would -- was 11 there anything preventing you from putting his Facebook 9 12 information in there? 13 A I don't recall it asking for a Facebook 10 14 contact. 11 15 Q It asked for names and phone -- for addresses 16 and phone numbers. You put no information. Would it 12 17 be, in your opinion, relevant to do the best you can? 18 A If it's asking for an address and/or phone 13 19 number, I wouldn't have provided a Facebook contact. It 20 wouldn't have been relevant. 14 21 Q Did you make any attempts to retain any 15 22 evidence with any of your social media? You mentioned, page 201 16 1 I think -- is it Facebook and Tumblr or -- 2 A I have -- I have a Tumblr account. 17 3 Q Did you make any attempts to retain any 18 4 information, ESI, which is electronically stored 5 information? Did you make any attempts to retain any 19 6 ESI from any of your social media after this incident? 21 Was there any information related to this 20 22 case -- and that's the only -- that's the only framing page 202 21 1 of any questions that I have -- that you attempted to 22 2 retain from your social media accounts? 3 A There was no information regarding this case 23 4 on any social media. 5 Q Did you put -- did you make any -- any 24 6 requests at the time to -- meaning around March of 2016, 25 7 or in the few months afterwards, two or three months 8 afterwards, to have them suspend any deleting of 26 9 information so that that could -- so what you just said 10 could be confirmed? 27 11 A You mean having the social media actual 28 12 company suspend? 41 1 13 Q Yeah. 14 A I did not. 2 15 Q Did you make screen captures of any of your 16 message traffic with any of your friends on Facebook or 3 17 Tumblr? 18 A There was no traffic regarding this case on 4 19 any social media. 5 20 Q You didn't make any copies of any -- of any -- 21 of your traffic at the time to be able to demonstrate 6 22 what you just said? Page 203 7 A There was nothing to take a screenshot of. 8 2 Q You had no -- you had no message traffic at 3 all with any of your friends in the six months after 9 4 this incident, starting on March 10, 2016? 5 A In regards to this case, there was nothing. 10 6 Q That wasn't my question, Mr. Polson. Was 11 7 there any -- did you have any message traffic on social 8 media with any of your friends for six months after this 12 9 case? 10 A I would guess, yes. I typically try to reach 13 11 out on birthdays, and I would imagine that there was 12 probably a birthday within that six-month time frame. 14 13 Q Did you make any attempts to document and 15 14 retain any of your message traffic so that if it was 15 later a question, if you were or were not discussing 16 16 topics related to this case, that it would be shown one 17 way or another definitively? 17 18 A I made an active -- I actively did not speak 18 19 about this case on any social media to the extent that I 20 would not need to retain any information or screenshots 19 21 or messages. 22 Q What proof do you have of that? 20 Page 204 1 A I'm here to speak to it under oath. 21 2 Q Isn't that also possibly considered 22 3 self-serving? 4 A Excuse me? 23 5 Q Isn't that possibly considered self-serving? 6 A Can you define self-serving, please, for me, 24 7 for this context? 25 8 Q Doesn't it -- you're saying it, but you don't 9 have any independent proof of it. So if you weren't 26 10 being truthful, which I hope you are, but if you weren't 11 being truthful, there'd be no evidence because the 27 12 evidence was not retained; correct? 28 13 A If there is no evidence, there's nothing to 42 1 14 retain. 15 Q There is no -- okay. Was there -- did you 2 16 have a cell phone at the time, on March 10th, 2016? 17 A I did. 3 18 Q Did you make any attempts to retain any text 19 messages or other message traffic on your cell phone 4 20 during the time after this case? 5 21 A Upon receiving the subpoena and request to 22 keep all documentation, I looked through, but there was 6 page 205 1 nothing -- no conversations were ever made regarding 7 2 this case. 8 3 Q Did you have any contact with anyone from -- 4 when was the first time after this incident that you had 9 5 any contact with TSA regarding this case? 6 A The first time I was called into legal's 10 7 office at Dulles Airport, the TSA attorney there was 11 8 Mr. Noonan. 9 Q And when was that, please? 12 10 A I don't remember the date, sir. I was still 11 employed with TSA at the time. 13 12 Q So that would have been before September 2016; 13 correct? 14 14 A I would believe so, yes. 15 15 Q And would -- when you're having that 16 discussion with Mr. Noonan, you had not had any other 16 17 discussions regarding this case with anyone between 18 March 10, 2016, and September, whatever date it was, 17 19 2016? 18 20 A It was not a case. And even at that moment, 21 he said it was a possibility of something being filed 19 22 within the District Court of Alexandria. It was just a page 206 20 1 simple, here is a heads-up that something might be 2 coming your way. It was -- nothing else was given. 21 3 Q Was there a -- even before the case, were 22 4 there any discussions regarding retaining evidence that 5 you had with TSA between March 10, 2016, and September 23 6 2016? 7 A No. 24 8 Q So you never discussed this case with anyone 25 9 from TSA in any capacity between 10 March 2016 -- not 10 including -- 10 March 2016, and afterwards? 26 11 A To the best of my knowledge, I did not. 12 Q Do you still believe that there was no request 27 13 to press charges against you made by me on 10 March 28 14 2016? 43 1 15 A There was a -- 16 MR. SYLVERTOOTH: I'm sorry. Form. And I'm 2 17 just making that form because that's a 18 mischaracterization of the testimony. 3 19 CAPTAIN LINLOR: Okay. 20 MR. SYLVERTOOTH: He never said that you never 4 21 made the request. That's a misstatement. 5 22 CAPTAIN LINLOR: Okay. Page 207 6 … 7 BY CAPTAIN LINLOR: 7 9 Do you believe that I claimed I wanted to 8 10 press charges against you via statements that I made on 11 March -- 10 March 2016? 9 12 A Yes. Page 208 10 3 Q Did you make any efforts to retain any 11 4 information related to this case -- related to potential 5 charges, civil or criminal, to help exonerate you in 12 6 case of those charges? 7 A I did not on that day. 13 8 Q Did you make any attempts afterwards? 9 A After receiving the actual documentation of 14 10 this being a case, it was notified that anything I had I 15 11 should retain, and I searched and I retained anything 12 that would be relevant. 16 13 Q You did not -- I believe you said before you 14 did not make any requests to retain any of the video? 17 15 A I said I do not recall making a request. 18 16 Q There was one video provided over to me by 17 TSA. How did that video get retained; do you know? 19 18 A I do not. 19 Q Do you know how that one video was selected? 20 20 A I do not. 21 Q Do you know the chain of custody about that 21 22 video? 22 Page 209 1 A I do not. 23 2 Q Do you know any -- the word is provenance, and 3 I learned this -- any provenance of the video related 24 4 to, has it been altered in any means like this? 25 5 A To my knowledge, it has not been altered, but 6 I am not aware of anything with the video anyway. I 26 7 haven't seen it. 8 Q So you deny that you used excessive force 27 9 against me during the pat down on 10 March 2016; 28 10 correct? 44 1 11 A That is correct. 12 Q Do TSA regulations permit use of excessive 2 13 force in passenger pat downs? 14 A Again, I do not recall any specific 3 15 regulations on excessive force being taught in training 16 or provided in SOP. 4 17 I would make, in my opinion, a general 5 18 statement, that there's -- they would expect all 19 officers to act in a professional matter. 6 20 Q So would you agree based on that that TSA 21 regulations do not permit use of excessive force against 7 22 passengers during pat downs? 8 page 210 1 A I couldn't speak to that, sir. 9 2 Q Do you deny that you were placed under 3 citizen's arrest on allegations of federal sexual -- 10 4 felony sexual battery by me on 10 March 26? 11 5 A I do not recall being placed under any 6 citizen's arrest on 10 March 2016. 12 page 214 9 Q So if someone were to say they were placing 13 10 you under citizen's arrest, would your opinion be to 11 disregard them as not knowing what they're talking 14 12 about? 15 13 A No. 14 Q Would you take the claim of being under 16 15 citizen's arrest seriously? 16 A If I understood what was going on, I could 17 17 take different actions based upon it. 18 18 Q If you were being alleged for a felony sexual 19 battery, would that be a serious allegation in your 19 20 opinion? 21 A It is a serious allegation. 20 22 Q Would you -- if you were accused of a felony page 215 21 1 sexual battery, what actions would you take if you -- if 22 2 someone claimed they had put you under citizen's arrest? 3 A As -- so my standpoint would be as the suspect 23 4 or the victim, sir? I didn't understand the question. 5 I apologize. 24 6 Q As the suspect. 25 7 A As a suspect of someone who committed a felony 8 sexual assault on someone else? 26 9 Q Yes. 10 A And that someone else is saying that I'm under 27 11 citizen's arrest? 28 12 Q Yes. 45 1 13 A And there are police present? 14 Q Not yet, but let's say at some point there are 2 15 afterwards. 16 A Am I -- am I detained in any capacity? 3 17 Q Yes. 18 A Okay. What capacity am I detained in? 4 19 Q You've been placed under citizen's arrest. 5 20 A So by detained, I mean like am I free to move? 21 Am I restrained in any way? Am I cornered? 6 22 Q You've been asked to stay there until the page 216 7 1 police arrived. 8 2 A I would not take that as a serious arrest of 3 any form. If there's still freedom of movement, then I 9 4 wouldn't even feel detained. 5 Q Would you -- if this would have happened 10 6 outside of work, would you act differently than you 11 7 would at work from TSA? 8 A No. 12 9 Q Do you think that your role as a TSO granted 10 you special immunities? 13 11 A No. 12 Q Did it grant you special privileges? 14 13 A Yes. 15 14 Q What privileges did it grant you? 15 A I was given a clearance and ability to see the 16 16 inner-working of the TSA and how to screen passengers 17 appropriately for travel. 17 18 Page 217 22 Q Do you think that your -- does an SCI 19 page 218 1 clearance require you to divulge pending litigation? 20 2 A My TS SCI that I currently possess involved a 3 wide variety of not only SF86, but also a polygraph 21 4 confirming everything within it. 22 5 Q Did you disclose any information about the 6 existence of this case in your -- in your secret -- Top 23 7 Secret SCI? 8 A Not to my knowledge. 24 9 Q Were you obligated to? 25 10 A At the time I submitted my SF86, not to my 11 knowledge. 26 12 Q Were you required to update that information? 13 A I've been updating my information. 27 14 Q To -- who is the security group that you would 28 15 update it to for Secret Service? 46 1 16 A My own agency has a clearance division. So as 17 I move through the case, I forward documentation to 2 18 them. 19 Q So they are aware of this case? 3 20 A They are. 21 Q Are they aware that you have been alleged to 4 22 have been placed under citizen's arrest? 5 Page 219 1 A They have received all documentation formally 6 2 filed with the court. 3 Q Are you aware that video -- the video 7 4 evidence, the one DVD, was submitted on your behalf by 8 5 your counsels to the court as part of what is called a 6 12(b)6 Motion? 9 7 A I was not aware of the motion. 8 Q Were you aware that the video was submitted to 10 9 the court as evidence? 11 10 A I believe it was, yes. 11 Q Do you believe that it was submitted because 12 12 it was critical of the case? 13 A I would believe that it was. 13 14 Q Do you believe that it would -- was intended 15 to exonerate you? 14 16 A I have not seen the video, nor do I know what 15 17 it pertains inside the video. I would assume that 18 anything submitted would exonerate me as I still hold 16 19 that nothing happened on that day. 20 Q Do you -- did you -- not having seen the 17 21 video, but in the documents that were filed on your 18 22 behalf representing you, did you claim the video to be page 220 19 1 critical evidence in this case? 2 A I would think it to be critical. 20 3 Q If one video were critical evidence, wouldn't 4 other videos from different -- from other angles also be 21 5 critical? 22 6 A I don't know what the other cameras showed, 7 nor would I know what other video might be available 23 8 or … page 221 24 3 Q Did you state -- I 25 4 believe you stated before that video evidence, in 5 general, is very beneficial to as evidence in a case? 26 6 A I would believe it to be beneficial, yes. 7 Q And in this case, one -- we've already 27 8 established with you that one video was critical, you 28 9 agree, in this case; correct? 47 1 10 A Yes. 11 Q So the question I'm trying to -- I ascertained 2 12 is that you deny that other videos, whether or not you 13 know what they hold, if other videos could equally be 3 14 holding critical information? 15 A I would disagree just because I don't know 4 16 what those other videos might hold or not. They could 5 17 be as insignificant as anything and show something that 18 isn't relevant to the case. 6 19 Q In your opinion, would it be prudent for 20 someone in a situation like yours to try to retain video 7 21 evidence to prove your innocence or possible guilt? 8 22 A I wouldn't have any powers regardless. I page 222 9 1 would simply have to process the proper requests through 2 my counsel for any video that I could get. Whatever I 10 3 can't get, I can't get. 11 4 Q Did you ever make any attempts to retain any 5 evidence in this case? 12 6 A I believe that there was a process done 7 through my attorney to receive any video of the 13 8 incident. Page 225 Confirmation of further violations of Rule 26 14 12 Q And the subject matters are what, please? Can 15 13 you read those, please? 14 A In the table next to custodian Transportation 16 15 Security Administration under subject matters, first 16 bullet, video footage from the closed circuit television 17 17 concerning the March 10, 2016, incident, which is the 18 18 subject matter of the instant civil action. Second 19 bullet, policies and procedures relating to the 19 20 recording and preservation of video footage. And -- 21 Q So who is the custodian? 20 22 A To my knowledge, my attorneys filed this page 226 21 1 paperwork to the best -- like I provided them with all 22 2 the facts they would -- that I could give them, and they 3 filled in the rest. So this isn't something I could 23 4 answer. 5 Q What efforts did you make to identify the 24 6 custodian? 25 7 A I don't know who the custodian is, sir. 8 Q What -- I understand that. What efforts did 26 9 you make to identify the custodian? 10 A I conferred with my attorneys about all 27 11 persons that I'm aware of related to the case. 28 12 Q Did you ask anyone else at TSA other than your 48 1 13 attorneys or at MWAA about video evidence? 14 A I did not. 2 15 Q May I ask why not? 16 A Because I was doing everything through my 3 17 attorneys. 18 Q And your attorneys did not inform you about 4 19 any obligation you had to make efforts? 5 20 MR. SYLVERTOOTH: I'm going to instruct him 21 not to answer. 6 page 227 2 BY CAPTAIN LINLOR: 7 3 Q In your opinion, if you saw, custodian 8 4 Transportation Security Administration, would you know 5 how to track that person down? 9 6 A I would go through the attorneys who had 7 provided me with this documentation. 10 8 Q But those -- it says, contact information 11 9 unknown, not contact -- do you see under your name it 10 says, contact through undersigned counsel. Here it's, 12 11 contact information unknown, which means that your 12 attorneys are not putting themselves out as contacts for 13 13 this. So where do you believe in your opinion somebody 14 would go to obtain that information? 14 15 A I can only speculate. I don't know where they 15 16 went for a lot of the information in here. 17 Q It seems kind of difficult to track something 16 18 down though for a custodian. Custodian sounds like it's 19 the janitor; doesn't it, question? 17 20 A I was a records custodian in the military. 18 21 That didn't make me a clean up person. 22 Q Good point. I stand corrected. It really 19 page 228 1 hadn't occurred to me. So thank you. That's a big 20 2 difference. 3 Do you agree, though, that you have made good 21 4 efforts to retain all evidence for the efforts you have 22 5 done? 6 A Yes. 23 7 Q Did you ever receive any information of the 8 need to retain evidence prior to September 2016? 24 9 A I'm sorry? 25 10 Q Did you ever receive any need to retain 11 evidence prior to 2016? 26 12 A I don't remember the date that I first 13 received notification of this case being on the docket 27 14 with the District Court of Alexandria. I would say that 28 15 that date or after is when I made my first efforts. 49 1 16 Q There were records retention requests sent to 17 TSA and MWAA on 11 March 2016, the day after. Did you 2 18 receive any notification from MWAA or TSA about those 19 requests? 3 20 A I was not. 21 Q And you did not believe that it was in your 4 22 personal responsibility to try to retain any evidence? 5 Page 229 1 A No. 6 7 Summary of Following Statements of 10 March 2016 submitted by TSA under Subpoena: 8 PERSON ESSENCE OF STATEMENTS MADE UNDER OATH Michael Polson Mr. Linlor asked for police to be called so he could file 9 (Defendant) charges for sexual assault by Michael Polson. Bill Whetsell called police at Linlor’s request. 10 11 William (Bill) Whetsell I heard passenger Linlor state that TSO Polson had forcibly STSO (2nd level mgr) hit him in the testicle [sic] during the pat-down. 12 (Defendant’s supervisor) I asked if the passenger would like to speak with the police as he had stated sexual assault. He said that he would like 13 to speak with the police. 14 Passenger Linlor stated that he was placing TSO Polson under citizen’s arrest for felony sexual assault. 15 Scott Johnson (FSO) Received text message of incident (not previously disclosed 16 (big boss, 4th level mgr) or retained despite specific request to retain ESI) 17 Passenger says TSA agent sexually assaulted him Passenger said, “I invoke my right to make a citizen’s 18 arrest.” 19 Carl Johannes (TSM) Passenger claims he was sexually assaulted by TSO 20 (3rd level mgr) Michael Polson Mr. Linlor states, “I need a copy of all video of what 21 happened.” 22 Susan Callaghan (TSM) Passenger claims he was sexually assaulted by Officer 23 (3rd level mgr) Polson (Obstruction of evidence): Mr. Linlor asked MWAA for the video and they said 24 they did not have it; they viewed TSA’s cameras. (Scott (TSA FSO complicit in Johnson FSO had arrived at this time.) 25 obstruction of evidence Mr. Linlor indicated to Scott Johnson that Mr. Linlor 26 = BAD FAITH) requested to make a citizen’s arrest of TSO Polson. STSO William Whetsell said that the passenger had 27 requested police, and that Whetsell had made that request through the ICC. 28 50 1 MWAA officers told Linlor he would have to go to the courthouse and file a complaint to press charges. 2 (Note that Linlor did this, with Loudoun Magistrate Court coordination three times in Leesburg on the record, and was refused by three Loudoun County Magistrates to accept 3 a complaint, despite awareness of the Chief Magistrate and his orders that the other 4 Magistrates should accept a complaint from Linlor.) 5 Leila Aksalic (Lead Agent) Linlor claimed he was sexually assaulted during pat-down. Accused TSO Polson of sexual assault. 6 7 Joseph Hoffman (IAD) Linlor said he had been sexually assaulted. 8 TSOC narrative Passenger claims TSO forcibly hit him in a sensitive area Passenger attempted to claim citizen’s arrest against the 9 TSO making the pat-downStatement of Defendant 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51 1 Michael Polson (2 pages of narrative plus signature page) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53 1 NOTE: MWAA police document Plaintiff’s request for an apology, and Plaintiff’s intention and then effecting of a valid common law arrest of Defendant Polson for felony sexual 2 battery. Contrary to VA Supreme Court precedent, and other case law as previously cited, 3 MWAA officers India Wilea Mitchell and Paul John Solo refused to accept custody of the 4 felony arrested suspect, Michael Gerard Polson. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 54 1 NOTE: Defendant’s TSA supervisor William Whetsell testified that: a) it is usually his job to collect evidence, but he did not so in this case. Because Plaintiff did 2 not have the TSA SOP (alleged SSI) nor Guidance available, Plaintiff could not ask critical 3 follow-up questions drawn from Whetsell’s “STSO” title obligations to collect evidence. 4 b) Whetsell also testified that he is very familiar with the video reviewing stations, but he did 5 not see either MWAA police officer reviewing any video at any of the reviewing stations. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 55 1 Statement of Susan Callaghan, who was William Whetsell’s manager, and the 2nd level manager above Defendant Polson. She also affirms Polson’s arrest by Plaintiff, and that 2 she did not see the MWAA officers review the one security video (she claims she arrived 3 there afterwards), nor why only one video of dubious angle and quality was chosen. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56 1 Statement of Scott Johnson, who also authorized payment of $250 to Defendant (proof in Exhibit C). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 57 1 EXHIBIT C Cash award made to Defendant by TSA, in direct consequence to excessive use of force 2 against Plaintiff. Defendant testified to no adverse or even retraining consequences to his 3 actions against Plaintiff, and that TSA employees “often” receive cash awards after 4 “incidents” (similar to Defendant’s striking of Plaintiff) with passengers! Note that other 5 TSA statements (Exhibit D) affirm that Plaintiff was not rude, but merely asserting 6 Plaintiff’s right to make a citizen’s arrest. Mr. Johnson is in charge of all TSA at Dulles, 7 and he affirms the citizen’s arrest and expectation of legal action from Plaintiff. His 8 behavior was arrogant, and he refused to provide his full name nor the name of the 9 Defendant, or other witnesses. The assistant TSA chief at Dulles, Eric Beane, and “all the 10 members of the team” as listed below were never even listed in Rule 26 disclosures by Defendant, despite Plaintiff’s follow-ups. 11 NOTE: Section III comments are zoomed in on the following page. Plaintiff did not 12 “ask to make a citizen’s arrest;” Plaintiff performed a Common Law “citizen’s” arrest for 13 felony sexual battery by Defendant Polson, as stated throughout witness statements. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 58 1 Note: this is the enlarged section III from the previous page, for readability. Again, Plaintiff was not rude at all, but merely insistent on first asking for an apology, then 2 asking for police assistance, then retaining evidence, and finally conducting a Common 3 Law arrest for felony sexual battery under VA statutes previously listed. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 59 1 EXHIBIT D Proof of records retention requests made to Defendant (and to MWAA and TSA). 2 3 Records retention requests to MWAA and Defendant’s employer TSA sent the day after 4 the attack. At this point (10 March 2016), TSA and MWAA were still refusing to release the arrested suspect’s name (Defendant Michael Polson). His CHOICE NOT to institute 5 a litigation hold was his own, and in his power. He was notified at the incident that 6 Plaintiff wanted all records retained, and 3rd Party TSA, which was withholding 7 Defendant’s identity at the time, was notified immediately also, and had the 8 OBLIGATION (see further below) from TSA’s own Standard Operating Procedures 9 (SOP) manual to “retain all evidence”, which TSA was obligated to communicate to 10 Defendant, who was a TSA employee at the time, and which Plaintiff told Defendant and 11 all TSA staff. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 60 1 Defendant’s obligations follow below under Defendant’s TSA (TSO aka Transportation Security Officer) job description, and his supervisor’s job obligations for both to preserve 2 evidence, and for the supervisor to ensure that Defendant is preserving evidence. 3 If the one retained video is not conclusive of excessive force, then by definition, 4 Defendant’s failure to preserve other evidence despite explicit requests to Defendant, TSA, and MWAA support a finding of prejudicial destruction of evidence, and summary 5 judgment for Plaintiff. TSA also hid the identity (name and address) of Defendant Polson, and so Plaintiff could not further contact and repeat requests for litigation holds 6 beyond those statements by Plaintiff affirmed below at the time of the incident, which 7 TSA supervisor William Whetsell (who was duty-bound by TSA SOP to preserve ALL evidence, see below), also confirmed that Plaintiff requested that all video evidence be 8 preserved while standing about 3-10 feet away from Defendant, in Whetsell’s presence also. 9 10 Evidence of immediate verbal request for ALL videos (plural!) from TSA attestations herein. The specific litigation hold fax was sent the following day (11 March 1026, and 11 repeated within a year to continue the litigation hold). 12 Next are the cover page and excerpts from TSA’s own Standard Operating Procedures 13 Plaintiff followed-up via phone calls to MWAA, since the MWAA Police, and MWAA 14 Police Internal Affair (Lt. Angela King) in >10 phone calls between 11 March 2016 and 10 April 2016, to attempt to retain all videos and other ESI. MWAA initial refused to 15 even file a report, but eventually Maj. Miller from MWAA ordered the two Lts. Solo and Mitchell to file a report. Despite all these efforts, MWAA (as shown below) filed 16 documents with the Court affirming that MWAA did not attempt ANY ESI or video or 17 records preservation. In the following testimony, neither did Defendant, or TSA employee William Whetsell, despite the TSA SOP excerpt proving the TSA is in criminal 18 violation of its own rules for not having retained ALL ESI, ALL videos, and ALL evidence! 19 20 This excerpt below is from the TSA Screening SOP. TSA publicly released its SOP onto the internet as part of a contracting solicitation, and confirmed that the SOP was accurate 21 and complete. The title page is shown, and then specific elements to demonstrate the TSA is required to collect and retain evidence. Both Defendant and Defendant’s 22 Supervisor are tasked with collection and retaining of evidence! Neither of them did 23 this (as they testified and affirmed in their depositions). NOTE item C(2) confirms Defendant’s obligation to preserve evidence, and C(22), confirms Defendant’s TSA 24 Supervisor Whetsell’s obligation to also collect and retain ALL evidence. 25 This copy of the TSA SOP does not provide any “excessive force” evidence or guidance, 26 so it does not fulfill any of the TSA Subpoena or Orders of the Court with reference to excessive force evidence or guidance. 27 28 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 64 1 EXHIBIT E A subset of training documents provided by Defendant and William Whetsell. Note the 2 unexplained redactions, that Defendant and TSA declined to mark despite Plaintiff’s 3 requests as to the cause. Twenty-four (24) pages of non-excessive force materials were 4 produced. Plaintiff contends that no Excessive Force guidance exists, that Plaintiff has 5 demonstrated as clearly not seeking, necessarily, SOP-sourced information, and that any 6 information for which a protective order is sought must demonstrate why the 7 transportation information is sensitive, and why any SSI transportation security 8 designation is appropriate. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 72 1 NOTE: The redacted portion has clearly harmed Plaintiff’s case by not including details on the amount of force that TSA screeners should use, and how to avoid excessive force. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 73 1 EXHIBIT F Proof of medical expense sourcing and expense calculation faxed to Defendant prior to 2 deadline for filing of summary judgment motions. Plaintiff does not know if Defendant 3 is alleging if this information was not provided, but Plaintiff has proof that it was 4 received by Defendant. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75 1 Note: The second sentence reads as follows: “If summary judgment is Ordered, and in equity, if Plaintiff’s Motion for Civil Contempt and Order to Show Cause are granted, 2 then the higher compensatory and punitive amounts would not need to be held against the 3 individual capacity Defendant.” Plaintiff is attempting to be reasonable and fair, and asks 4 for the full sum certain judgment, but in equity, would be willing to accept satisfaction of 5 the judgment for Defendant’s payment of Plaintiff’s medical and court costs, IF 6 Defendant would still be recognized by the Court for Defendant’s Common Law Arrest, 7 and if TSA is Ordered to Show Cause and is sanctioned for TSA’s multiple civil and 8 criminal violations of this Court’s Orders to TSA, as requested in Plaintiff’s Suggested 9 Order in Plaintiff’s Motion for Summary Judgment. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 76 1 NO ATTORNEY ASSISTED IN THIS DOCUMENT’S PREPARATION. I certify under penalty of perjury, that a copy of this document was served on 2 all parties and TSA, via mailing to the Clerk of the Court for filing with the EC/CMF 3 Court Filing System, 4   5 Local Rule 7(E) and 37(E) Certification per Scheduling Order of 06 September 2017: 6 “Pro Se Plaintiff confirms that he has attempted, in good faith, to confer with and to 7 decrease and/or resolve any matters of disagreement related to discovery with 8 Defendant’s Counsel, and to decrease, in every way possible, the filing of unnecessary 9 motions.” 10 Respectfully submitted, and filed with the declaration that all statements in this pleading are true and correct under penalty of perjury. 11 12 Date ___________ Signed ______________(Capt. James Linlor) 13 14 Capt. James Linlor, pro se 1405 S. Fern Street #90341, Arlington, VA 22202 15 (775) 298-1505 16 Secret Service Agent MICHAEL GERARD POLSON, 17 (formerly of TSA) in his individual capacity 817 Carlton Otto Lane #23, Odenton, MD 20120 18 c/o Dontae Sylvertooth, Asst US Attorney 2100 Jamieson Ave, Alexandria, VA 22314 19 (703) 299-3738 ph; (703) 299-3983 fax 20 21 22 23 24 25 26 27 28 77