Activist, PDF “board game” creator, inventor of the Jock Sock and failed Power Ranger Jose “Chille” DeCastro remained silent on Monday after having his main account suspended on Saturday and did not address significant developments in legal action related to his time in Duncan, Oklahoma, last year.
DeCastro’s suspension came on Saturday after he put up a short that was flagged for violating YouTube’s nudity guidelines. The YouTube short was up mere minutes before the suspension happened and since this was his second suspension in 90 days, his channel should be down for two weeks.
While the diminutive YouTuber had originally used his DMZClps backup channel to immediately stream to circumvent the ban, DeCastro went silent for the weekend and maintained his silence for Monday despite promises that he would go live again on Sunday.
If he had gone live, DeCastro would have had some rare positive news to discuss out of Oklahoma, with Oklahoma Supreme Court Presiding Judge Gary L. Lumpkin ordering Special Judge Carrie Hixon to review DeCastro’s emergency Petition for a Writ of Mandamus and his demand for a Frank’s Hearing.
While no specific Writ of Mandamus was found in his casefile on oscn.net, he did demand a Frank’s hearing in January to demand that the court review “newly discovered facts” and “authorization timeline defects” for the court to review.
Because the Frank’s hearing was not granted to DeCastro within 30 days, he has a separate filing to deem motions confessed, along with filings to disqualify the prosecutor from the case and force Judge Hixon to recuse herself from the case as the prosecutor is being sued by DeCastro in Federal civil court.
It is unclear why the court system delayed dealing with DeCastro’s demands for so long, however, Hixon now has a 30-day deadline to follow up on the request for a Frank’s hearing.
In the civil lawsuit related to the hearing, DeCastro receive a response to his response to a motion to dismiss the lawsuit against defendant Suzannhe Smith. Smith determined probable cause for the charges related to DeCastro’s alleged attempts to gain access to police vehicles in the Duncan, Oklahoma, police station’s parking lot last September.
Smith’s response states:
Mr. DeCastro continues to only rely on his allegations from the First Amended Complaint. Specifically, he claims that the 92-day delay, the statute used to charge him, and the “procedural irregularities” all support his conclusion that the bad faith exception applies. But he provides no actual evidence or other factual support for these claims. Even if this Court were to consider Mr. DeCastro’s allegations alone as a sufficient initial showing, his arguments still fail on the merits of each factor required for bad faith. Phelps II, 122 F.3d at 889. Specifically, he fails to establish that the prosecution was frivolous or has no hope of success, nor does he establish that the prosecution was retaliation for protected conduct. Id.
On the first factor, whether the prosecution was frivolous or has no hope of success, Mr. DeCastro continues to argue that his conduct could not possibly satisfy the requirements of 21 O.S. § 1787. But his argument offers no authority for this narrow, and frankly incorrect, interpretation of 21 O.S. § 1787. Additionally, he does not provide any response as to why Judge Hixon’s probable cause finding should be overturned. A judicial determination is entitled to significant weight, and Mr. DeCastro must offer concrete impeachment of it to establish bad faith. Phelps I, 59 F.3d at 1065-66. But, he offers none. He does not establish the first factor for the bad faith exemption.
On the second factor, retaliatory animus toward protected conduct, Mr. DeCastro argues that a retaliatory motive can be inferred from temporal proximity and the statutory mismatch. But Mr. DeCastro does not allege that Sergeant Smith knew he was a journalist, knew he had reported to Major Woods, or had any awareness of protected activity before she prepared the affidavit. He also does not allege that Judge Hixon had knowledge of these alleged events either. Again, his allegations are nothing more than his own inferences and beliefs. This is not enough to carry his burden.
Addressing DeCastro’s Fourth Amendment claims that his outstanding warrant is limiting his ability to travel, the response states:
Mr. DeCastro urges this Court find that a seizure has occurred because the outstanding arrest warrant restricts his “liberty and movement.” (Doc. 25, p. 5). Specifically, he claims the warrant limits his ability to travel to Oklahoma. (Doc. 16, ¶ 49). This theory of seizure has been rejected. The Tenth Circuit, in agreement with multiple other circuit courts, has refused to recognize claims of pre-arrest restrictions, such as restrictions on travel, as a Fourth Amendment seizure. Becker, 494 F.3d at 915–16 (collecting cases). Whatever restriction on travel that Mr. DeCastro now claims is a self-imposed one caused by his own actions. It is not caused by a show of force or government authority. An unexecuted warrant does not seize anyone. Because no seizure has occurred, neither Fourth Amendment theory can survive.
Finally, the response addresses DeCastro’s claims of retaliatory prosecution as he classifies himself as a journalist:
As already discussed, Mr. DeCastro alleges no facts that show Sergeant Smith knew Mr. DeCastro had identified himself as a journalist, knew he had reported to Major Woods, or knew of any prior protected activity that would motivate retaliation. His suggestion that the Court should infer retaliatory intent purely from the fact that Sergeant Smith was present in the building is too abstract to satisfy the pleading standard and does not come close to establishing that retaliation was a substantial motivating factor in her decision to prepare the affidavit.
Mr. DeCastro’s argument for the Nieves v. Bartlett exception to the probable cause bar on First Amendment retaliation claims is also unconvincing. “Although probable cause should generally defeat a retaliatory arrest claim, a narrow qualification is warranted for circumstances where officers have probable cause to make arrests but typically exercise their discretion not to do so.” Nieves v. Bartlett, 587 U.S. 391, 406 (2019). But for this exception to apply, a plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id. at 407. Mr. DeCastro provides no such evidence. His allegations that “no comparable prosecutions are known” and that there is a “near total absence of enforcement” of 21 O.S. § 1787” are nothing more that his own conclusions. This is not enough to plead that no comparative prosecutions exist.
Mr. DeCastro also does not actually provide “similarly situation individuals” for this Court to compare him to. Mr. DeCastro compares himself to visitors and delivery drivers, but there is no meaningful resemblance there. Those individuals are walking through the parking lot for an ordinary, lawful purpose. Mr. DeCastro walked into the parking lot with a recording device attached to a long pole. He placed this device on the windows to capture the interior of the car. He then pulled on the door handle of vehicles but failed to make entry. (Doc. 24-2). His behavior is not comparable to a visitor walking to the front door or a delivery driver delivering a package. Mr. DeCastro cannot plausibly allege that similarly situated individuals, those who have also approached multiple police vehicles, pressed recording equipment against their windows, and pulled on their door handles, have routinely gone uncharged under 21 O.S. § 1787. He fails to identify any similar situated individuals for the purposes of the Nieves exception. Mr. DeCastro’s allegations fail to show how such an exception applies in this case.
Smith is seeking to be dismissed from DeCastro’s lawsuit. It is unclear when or if a ruling will come on her motion to dismiss.
