The Story I Couldn’t Tell, Part I: Introduction and The Law of Peace Orders in Maryland

This is the first in a series of posts that I introduced here.

For almost a month, I was forbidden from doing a simple thing: saying the name Brett Kimberlin.  I was prohibited from blogging about Brett Kimberlin, which might have even included blogging about the hearing where this unconstitutional court order was applied (because it involved Brett Kimberlin), about the arrest on false charges (because they were filed by Brett Kimberlin), or even my efforts to fight back (because I was fighting back against Brett Kimberlin).  So there were many events in my life, dear reader, that I just couldn’t talk about and this is my effort to catch you up on them.

This part will probably seem the driest, but it really needs to be understood as a foundation for the rest of it.  Today I am going to talk about the law of peace orders in Maryland.  My purpose isn’t to give anyone advice.  If you are facing a peace order in real life, the standard advice is to suggest you find an attorney as soon as possible and get his or her advice.  But we in the public have an interest in understanding how the law works, and how it doesn’t work, so that we can work to improve it.

But let me start by taking you back to May...

On May 17, I published a massive post describing much if not all the reprehensible conduct Brett Kimberlin has engaged in up until that point.  Indeed, I showed you, with documentary and video evidence, that Kimberlin actually tried to get my wife and I killed and to frame me for a crime and how I sought justice for the crimes he committed against me.  And I asked you for help in that quest.

I will admit that I didn’t quite know what to expect when I put the story out.  I was worried people would say “ho-hum” or something like that.  Instead, there was a massive response.  As best as I can tell, the story went viral.  Literally half the hits I had  received in the life of my blog before the SWATting last Monday has occurred since this story broke.  I have to believe that it is just person after person picking up the story and saying, “Holy ____!” and then telling their friends they must read it.  That and generous links from people like Michelle Malkin, Robert Stacy McCain, Tiffany Gabbay at the Blaze (who helped me get on Glenn Beck’s radio program) and more than I can hope to catalogue.  This was further punctuated by Lee Stranahan declaring an Everyone Blog About Brett Kimberlin day.  (Yes, he gets credit for that.)

So naturally I had to be shut up.  He wanted me to be shut up even though it had clearly gotten much bigger than just me.  Perhaps he thought to make an example of me.  Perhaps he really believes I am the puppet master pulling Michelle Malkin's, Instapundit's, and everyone else's strings.  Who knows?

So even though Kimberlin had been told by Judge Johnson that he can’t get a peace order to keep a guy from talking about him truthfully on the internet, that is exactly what he tried to do.  And to a disturbing degree, he has succeeded.

I have given you this document before, his Petition for a Peace Order against me filed on May 19, but last time I didn’t get into every dishonesty.  This time I will.

But first I have to start with the law.

The Law of Maryland Peace Orders

In order for a person to get a peace order in Maryland under Md. Courts and Judicial Proceedings Code §3-1505(c)(ii), the judge has to find that there is

clear and convincing evidence that the respondent [in this case, me, Aaron Walker] has committed, and is likely to commit in the future, an act specified in § 3-1503(a) of this subtitle against the petitioner [Kimberlin]

If that standard is met, then the court can issue a final peace order.  But what acts are specified in that section?  Well, here you go:

(a) Underlying acts. -- A petitioner may seek relief under this subtitle by filing with the court, or with a commissioner under the circumstances specified in § 3-1503.1(a) of this subtitle, a petition that alleges the commission of any of the following acts against the petitioner by the respondent, if the act occurred within 30 days before the filing of the petition:

(1) An act that causes serious bodily harm;

(2) An act that places the petitioner in fear of imminent serious bodily harm;

(3) Assault in any degree;

(4) Rape or sexual offense under §§ 3-303 through 3-308 of the Criminal Law Article or attempted rape or sexual offense in any degree;

(5) False imprisonment;

(6) Harassment under § 3-803 of the Criminal Law Article;

(7) Stalking under § 3-802 of the Criminal Law Article;

(8) Trespass under Title 6, Subtitle 4 of the Criminal Law Article; or

(9) Malicious destruction of property under § 6-301 of the Criminal Law Article.

That’s in Md. Courts and Judicial Proceedings Code §3-1503 and as you can see, I have been uploading these statutes into Scribd so you can read them for yourself.  So Kimberlin had to show by clear and convincing evidence that (1) I did one of those acts, (2) within the last thirty days prior to filing that petition for a peace order and that (3) I was likely to commit that act again in the future.  Now, of all of those acts, Kimberlin only alleged stalking and harassment.  And this is not “stalking” or “harassment” as we might define it in everyday conversation.  Instead the issue is how it is defined in the criminal statutes of Maryland and these legal definitions will differ from the definitions used in ordinary language.

Stalking is pretty easy to deal with.  One key element of “stalking” under Md. Criminal Law Code § 3-802 is that the conduct must include “approaching or pursuing another.”  In other words you have to be chasing that person or at least coming up to them, which logically speaking means that I had to have been in Kimberlin’s presence for me to “stalk” him.  And Kimberlin admitted in courtroom testimony on May 29 that I hadn’t been (I will give you this transcript later):

Q [Walker] Okay. You state that I have stalked you, is that correct? You’ve made that part of the petition for peace order?

A [Kimbelrin] Absolutely.

Q When is the last time I’ve been in your presence?

A In a courthouse in—

Q Okay. When was that date?

Q It was when—

THE COURT: January the 9th.

THE WITNESS: No, It was when Judge Rupp, I mean, Judge Johnson found that you had assaulted me.

BY MR. WALKER: So that would be April 11th, isn’t that correct?

A April 11th, That’s right, uh-huh

Of course Judge Johnson didn’t find that I assaulted him, as I explained here; he is just constructing his own reality, as usual.  But you can’t correct every inaccuracy.

But the point is that he admitted that that last time I was in his presence was April 11.  He filed the peace order on May 19.  As you saw above, the statute requires that the conduct has to have occurred within the last thirty days, which means that he had to show between April 19 and May 19, that I had been pursuing or approaching him.  And he admitted that I had not even been in his presence during that period.  As a matter of law and logic, I couldn’t have “stalked” him within the meaning of the statute.  His charge failed completely for this reason.

And Kimberlin knew this was a requirement in the law: he knew this was an element of the crime.  During the April 11 hearing my lawyer, the judge, pulled out a copy of the Maryland Code on harassment to make him read it and my attorney, Reginald Bours, also gave him a copy of the stalking statute:

THE COURT: Excuse me. Mr. Bours, would you give him this? Let him see what the problem is. He thinks the Court is giving him a hard time. I want him to look at, read what the law says. I have to follow the law.

MR. BOURS: Actually, I would give him both because the definition of stalking is in 3-802. 3-802 is stalking under the Criminal Law Article and 3-803 is the harassment statute.

THE COURT: But let him read that.

So why did he charge me with something that he knew wouldn’t stand up to the slightest scrutiny?  Because he wanted to go on record claiming I stalked him.  He wanted to put that stigma on me, in court documents.  Indeed earlier you saw him alleging that I had stalked him in the petition for a peace order against John Norton, even though no court has ever found that I have, and by his own admission I hadn’t.

Now let’s get to harassment.  Md. Criminal Law Code § 3-803(a) says that “A person may not follow another in or about a public place...” and we can stop right there.  But the statute goes on:

...or maliciously engage in a course of conduct that alarms or seriously annoys the other:

(1) with the intent to harass, alarm, or annoy the other;

(2) after receiving a reasonable warning or request to stop by or on behalf of the other; and

(3) without a legal purpose.

(b) Exception. -- This section does not apply to a peaceable activity intended to express a political view or provide information to others.

And also §3-801 states that a “‘course of conduct’ means a persistent pattern of conduct, composed of a series of acts over time, that shows a continuity of purpose.”

So you see a certain set of rules.  It has to be a “course of conduct” which is plainly not a single incident.  It has to be conduct that is alarming or “seriously annoy[ing].”  And it really can’t just be something a little bit annoying.  On April 11, Judge Eric Johnson (the first name is important, because are about to see another Judge Johnson in a moment) expounded on what that term meant:

The evidence that you testified about and that you argued that the respondent did may be annoying. Some of it may even violate other statutes that are not before this Court. I’m not suggesting that they do, but the law cannot prohibit all annoying conduct. We’ve reached a point in this society where people 1 think they have a right not to be offended. Where did that come from? You read about it everyday in the paper. Somebody is offended by something and wants somebody to apologize. Where did that come from? Where is the right not to be offended?

So there’s a lot of annoying conduct that perhaps might be rude and would cause Emily Post to turn over in her grave. I don’t know if she’s still alive or not, but manners -- and just for the record, I am not suggesting that the respondent [Walker] doesn’t have proper manners or anything like that. But what I am saying are examples of annoying conduct, things that people can do that are just annoying.

This Court doesn’t blog. I don’t even know what it is. I wouldn’t know how to set-up one and I don’t know if I’ve even read one since I don’t know what it is, but I can imagine it is a medium in which published material can be made available to the public. I can imagine that a blog might be likened to a magazine except that it’s electronic and it’s not on paper, unless of course it’s printed out.

You say that things have been written about you that are not right. It is a dangerous, dangerous argument to make that a sanction should be entered against people when they choose to exercise their First Amendment constitutional rights just because it’s annoying.

Now for the lawyers you understand that it really has to be a higher order that just annoyance.  I mean if all speech had to be was annoying to be banned...

...then this could be banned (source).  This is an ad that ran in Hustler Magazine in 1983, as a parody (minus the CollegeHumor .  As you can read if you enlarge it, they imagined that the Reverend Jerry Falwell lost his virginity to his own mother.  One particularly offensive line (begging your pardon from you for this language) had him saying, ““[b]etween Mom and the shit, the flies were too much to bear.”  Yes, it was parody—indeed it was clearly labeled as such—but it was obviously pretty annoying to Falwell, so much so that he sued Hustler and its scuzzy publisher Larry Flynt, for invasion of privacy, defamation and intentional infliction of emotional distress.

If that sounds familiar to you that might be because it was the subject of a movie entitled The People v. Larry Flynt, which Lee Stranahan has declared his love for.  Of course that name was a misnomer.  When you say “the people” you mean the government as in a criminal case, and it was not the government going after Flynt nor was it a criminal case.  It was a civil case, filed by Jerry Falwell, a private citizen.  And he didn’t just sue Larry Flynt, but Hustler itself.  So by the time it reached the Supreme Court it was styled Hustler Magazine et al. v. Falwell.

That is because of those three alleged causes of action, Falwell managed to convince a jury of his peers that Flynt and Hustler had committed the tort of intentional infliction of emotional distress.  And then it went up to the Supreme Court and they decided that it was in fact protected speech.  How close was the vote?  It was unanimous, 8-0, with Justice Kennedy sitting it out because he was confirmed midstream in the case.  So even that offensive piece of writing where they imagined Falwell having sex with his own mother, was not sufficiently “annoying” to qualify as unprotected speech.

(And indeed, it seems to me that Falwell was abusing the courts in that case.  He should have understood that even really offensive parodies were allowed under the First Amendment.)

So it has to be (1) alarming or seriously annoying, (2) it has to be intended to be harassing, alarming or annoying, (3) he has to tell you to stop and (4) there has to be no legal purpose.  On top of all of that, (5) it can’t apply to “peaceable activity intended to express a political view or provide information to others.”

But there is something else to notice.  They are talking about conduct, they are talking about acts.  They are not talking about expression.  Look at the language.  In §801: “a persistent pattern of conduct, composed of a series of acts over time.”  Section 803(a) “course of conduct.”  Section 803(b) “does not apply to a peaceable activity intended to express a political view or provide information to others.”

Now, that being said, there are certain “acts” in the law that are accomplished by speech (or writing) alone.  A true threat, for instance, is probably reasonably considered harassment.  And maybe even true incitement (we’ll talk about that down the road) can also be considered harassment.  But the Maryland Court of Appeals (what they call their supreme court), in Galloway v. State, said that the harassment statute “expressly eliminates constitutionally protected speech from its ambit.”  So if you can show it is constitutionally protected speech, then it is not harassment.

And indeed if it was ever found that protected speech was harassment under their law, that would be the end of their harassment statute.

Galloway is indeed instructive of the kinds of things that count as harassment.  In that case, the defendant was a man who had previously stalked and kidnapped a woman.  After that, and while he was still in prison, he sent her over 122 letters, and they stipulated that they were threatening.  The court seemed to think this was harassment in two ways.  The first was because it was a threat, which is an inoffensive interpretation of the law.  Threats are not protected speech, period, so if they want to interpret a threat as a form of harassment, I have little objection.

Second, the court found that merely sending letters—or indeed any form of directed communication—was harassment.  And the Court of Appeals indicated that it was harassment regardless of content.  For instance the court approvingly quoted from Connecticut v. Snyder, 49 Conn.App. 617, 717 A.2d 240 (1998), where the Connecticut Supreme Court examined a statute that considered such directed communications as a phone call to be harassment:

The over breadth principle is not violated by the unrestricted scope of the messages which the statute may ban because it is the manner and means employed to communicate them which is the subject of the prohibition rather than their content. The statute is not flawed because a recital on the telephone of the most sublime prayer with the intention and effect of harassing the listener would fall within its ban as readily as the most scurrilous epithet. The prohibition is against purposeful harassment by means of a device readily susceptible to abuse as a constant trespasser upon our privacy.

So in fact it was not the fact that Galloway sent 122 threats.  Instead he could have sent 122 apologies for his prior stalking and kidnapping, or 122 letters extolling the virtues of a politician, or 122 quotations from Shakespeare and that could be harassment...

...if the other conditions are met.  Let us also remember that there has to be the intent to be harassing, alarming or annoying, that the target must tell that person to stop, and that the conduct must not have a legal purpose.

And with those principles in mind, we can turn to Kimberlin’s latest petition for a peace order, in our next segment.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sound fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to donate and help my wife and I in this time of need, please go to this donation page or use the PayPal buttons on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even been within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  As you will see by the time I am done telling my story that this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.