My Opposition to Adjudicated Pedophile Brett Kimberlin’s Frivolous Appeal

This is the latest post in what I half-jokingly call The Kimberlin Saga^®.  If you are new to the story, that’s okay! Not everyone reads my blog.  The short version is that convicted terrorist Brett Kimberlin has been harassing me for over three years, his worst conduct being when he attempted to frame me for a crime.  I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word.  You only have to believe your eyes.  Indeed, he sued me for saying this and lost on the issue of truth.  And more recently when his wife came to us claiming that this convicted terrorist had threatened her harm, we tried to help her leave him, and for that, he sued myself, John Hoge, Robert Stacy McCain and Ali Akbar for helping his wife and he is suing Hoge, McCain, Akbar, DB Capital Strategies, Michelle Malkin, Glenn Beck, Patrick “Patterico” Frey, Mandy Nagy, Lee Stranahan, Erick Erickson, Breitbart.com, the Blaze, Mercury Radio Arts, Red State, the National Bloggers Club, and  others alleging that we are all in organized crime for reporting factually about the spate of SWATtings committed against myself, Frey and Erickson.  So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

So Monday I shared with you Brett Kimberlin’s dumb brief for an appeal.  I already had about half of my opposition written in my mind—heck, written in a post I shared with you kind people—so I was able to turn around and write my opposition very quickly.

   Informal Opposition Brief (Redacted)

As per usual, it is pretty much the same thing, only without signatures, some personal information redacted, and some certificates that you are not likely to read omitted at the end.

Frankly, I will say that it has been a long day trying to figure out how to upload this to PACER.  It got to the point that I had to download a new browser for my computer just to get it to work right.  So I won’t have a lot of commentary on that.  I have heard from several friends and loved ones ahead of time that it would be wise not to be drinking anything as you read it, because of one particular line.  If you do not listen to me and destroy your keyboard as a result, don’t come crying to me.

The only thing worth saying is to explain this process a little better.  Normally there is no requirement of an “informal brief” as they call it.  But they have put this pre-clearance process for all pro se appellants, where you are supposed to convince the court of appeals that it is worth their time to even hear the issue.  (An appellant is the person who is appealing.  The other side in that is the appellee.)  So basically the appellant files an informal brief explaining to the court why the appeal is worth their time.  Then the appellee can oppose, as I did tonight, and the appellant can reply.  And then the court will decide if they will let the appellant file his or her full, formal brief, or just dispose of the appeal.

In this case, I think the court doesn’t have jurisdiction, so it will go down in flames.  So I didn’t really spend very much time on the rest of the issues.  And, of course, if by some miracle it makes it to the formal briefing stage, then I can bring up all the other issues I am not getting into, here.  For instance, I would have the opportunity to raise the res judicata issue all over again.

Finally, in other news, I see that Bill Schmalfeldt is threatening John Hoge with criminal charges, again.  The crux of his anger is that people at his blog are allegedly using pictures of Schmalfeldt’s allegedly dying wife as avatars, sometimes with the “salt vampire” from Star Trek over her face.  And he thinks somehow if John doesn’t actively kick those people off of his blog, he is somehow harassing Schmalfeldt, because logic.

Never mind that all of this is hypocritical.  Schmalfeldt has long said that he has a right to say whatever he wants about John Hoge.  He also thinks he has a right to contact John any time he wants even though Maryland law makes it clear he does not.  Not to mention that Schmalfeldt created this despicable image of an innocent woman he thought (wrongly) was married to someone bothering him, with a skull face over their baby:

This is from a phone screencap of one of his tweets...

An intelligent consistency is the hobgoblin of moral minds and of course the only principle that Bill Schmalfeldt publicly adheres to is that everything he does is right and moral, and everything his enemies do is shameful and criminal, even if what he does is objectively worse.

But the more basic problem is that Schmalfeldt is threatening to charge John with a non-crime over it.  I have gone over this before, but here’s what the harassment statute says:

§ 3-803. Harassment

(a)        Prohibited. -- A person may not follow another in or about a public place 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.

The word “conduct” is the first hint that Schmalfelt is going wrong.  What exact conduct is John engaging in?  Sitting in his easy chair at home and not doing something for Schmalfeldt?  That is not conduct.

What Schmalfeldt doesn’t understand is a fundamental concept in law: the difference between crimes of omission and crimes of commission.  The vast majority of crimes are those of commission.  That is, if you do something, instead of refraining from doing something.

The intuition that this crime is one of commission and not omission is solidified when you flip over to the definition of “course of conduct” found in the beginning of the subtitle.

§ 3-801. "Course of conduct" defined

In this subtitle, "course of conduct" means a persistent pattern of conduct, composed of a series of acts over time, that shows a continuity of purpose.

An act, is well... doing something.  It is not sitting on your behind and not doing something.

Ultimately, Schmalfeldt’s beef is with Wordpress and its Gravatar system, and the actual users who are doing this.  And while the avatars sound despicable, it is extremely doubtful—especially in light of the First Amendment—that this is criminal, but if anyone is the criminal in this scenario, it is the people using the avatars, not John because he doesn’t prevent them from using the avatar on one website.  And even if the courts can’t help Schmalfeldt, maybe he can persuade Wordpress to do something about it themselves.

And I will say to anyone allegedly doing this...  if you are actually doing this, stop.  If the moral argument doesn’t persuade you, how about the fact that you aren’t actually helping your cause?  Yes, Schmalfeldt has done all of this and worse, but do you really want this cretin to be your moral yardstick?

As for Schmalfeldt, he may have created trouble of his own when threatening John, if the reports I have heard is accurate.  You see, if you say “do X or I will charge you with a crime” that is very often extortion.  The major exception is if a person is committing a crime and you ask them to stop or undo their criminal conduct under threat that you will report the criminal conduct to authorities, then that is not extortion.

For instance, imagine someone stole your cell phone.  So you borrow another person’s cell phone and call your phone.  Now imagine the criminal picks it up.  This is how the conversation might go.

“Hello?”

“I’m Bob, the person who owns the cell phone you just stole.  I have not called the police yet, and I won’t call them if you bring it back right this minute.  But if you don’t, I will call the police.”

That conversation in theory fits all the elements of the offense.  For instance here’s one of Maryland’s extortion statutes:

§ 3-705. Extortion by verbal threat

(a)        Prohibited. -- A person, with the intent to unlawfully extort money, property, labor, services, or anything of value from another, may not verbally threaten to:

(1)        accuse any person of a crime or of anything that, if true, would bring the person into contempt or disrepute; or

(2)        (i)         cause physical injury to a person;

(ii)        inflict emotional distress on a person;

(iii)       cause economic damage to a person; or

(iv)       cause damage to the property of a person.

(And there is another statute dealing with extortion in writing.)

In that cell phone scenario, you are trying to get property from the person and you are threatening to accuse a person of a crime.  And truth is not a defense to extortion—or its more common name, blackmail.  If you have pictures of Senator Family Values getting it on with a transvestite, and you say, “give me $10,000 or I give this to the Drudge Report,” you can’t complain that it was true.  Whether it was true is beside the point, you are trying to put unlawful pressure on another to obtain money, property or anything else of value.

But the courts have carved a very narrow exception for asking a person asking a person to stop committing a crime or they will call the police, more or less.

Which Schmalfeldt will surely claim as his defense, but there is just one problem: John committed no crime against him.  So if my understanding of the facts is true, he wasn’t saying, stop committing this crime or I will tell the police you committed this crime.  He was saying, stop doing this thing you have a right to do or I will charge you with a crime.  And under those facts, that becomes extortion.

Seriously, whenever Team Kimberlin acts, they very often create more problems for themselves.  Schmalfeldt’s natural tendency is to threaten people, so he very often gets himself in trouble in that respect.  And Brett keeps undermining his own cases the further he gets into them.  Indeed, dear reader, you might think, “hey, if Judge Hazel gets wind of Brett’s admission that he violated rule 11, that might cause him trouble in the case that is continuing against Patrick Frey.”

There is one kernel of popcorn for every time
Judge Hazel said Brett had failed...

Why yes, dear reader, if you thought such a thing you would be right.  In fact, dear reader, you might wonder if anyone might call attention to that in that case by some method.  And to that I will only say this: stay tuned.  In fact, there is a good chance that if you tune in tomorrow you will be rewarded—although I cannot guarantee anything.

But I can almost certainly guarantee you will need popcorn.

---------------------------------------

My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) 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 sounds 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 help in the fight to hold Mr. Kimberlin accountable, please hit the donation link 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.

---------------------------------------

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 be 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.  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.