Punching Back Twice as Hard: Revealing Walker v. Brett Kimberlin, et al.

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.

If you happen to be diabetic, you might need popcorn
as you read this to keep up your blood sugar levels...

Regular readers know that I often hold things back from you.  Aside from the times when I have been unconstitutionally gagged, the reason why I have done so was typically for strategic reasons of various kinds.  On a rare occasion I have to hold something back to respect the privacy of others, especially innocent third parties.  And then those strategic reasons evaporate and I can tell you what I have been holding back, which is what is happening today.  In this case, I haven’t been telling you about something for around six months: a lawsuit I filed.

There is a somewhat complicated history of the lawsuit, but let’s get the actual complaint out front.  Without further ado, here is the Second Amended Complaint:

  Walker v. Maryland SAC (Redaction) by AaronWorthing

(Note that the only difference is that I redacted some personal information quoting from another court document, and somehow the signature block is screwed up in the Scribd upload.  But otherwise it is the same.)

If you haven’t bothered to read it, here’s the skinny.  It is against Brett Kimberlin and his wife Tetyana.  The purpose of this suit is to do two things: 1) shut down by injunction Brett Kimberlin’s lawfare machine against me (including when he uses his wife to carry it out), and 2) obtain compensation for his systematic abuse of the civil and criminal process.  Regular readers will know that one of the defendants, Tetyana Kimberlin, was once my client.  I will point out that all I am asking for in relation to Tetyana is an injunction stopping her from filing false criminal charges against me in the future—which she should never have done in the first place.  I am not asking for money from her.  As I state in paragraph 77:

Considering that Mrs. Kimberlin had previously reported that Mr. Kimberlin had physically threatened her, that Mr. Kimberlin was keeping the children from seeing Mrs. Kimberlin, and that she had seen the state of Maryland utterly fail to hold her husband accountable for his criminal conduct or help her to obtain custody of her children, it appears to be likely that she did this [filed false charges against me] under duress, or in exchange for access to her children.  This is why Mr. Walker has given Mrs. Kimberlin enough of the benefit of the doubt to avoid seeking monetary damages against Mrs. Kimberlin, but is still seeking injunctive relief to prevent her from doing it again.

In other words, I don’t want money, I just want her to stop.  I still believe she is a victim of Brett as much as anyone and I feel zero anger toward her over the latest charges.  I’m just doing what I have to do to protect myself.  Brett is the bad guy, here, which is why I’m going to hit him in the wallet.

But it’s funny sometimes how events dovetail into each other.  Increasingly, I had been thinking that I needed a good, reasonably short summary of the Kimberlin Saga over the last few years because there had been too many twists and turns to count.  I have a summary page on this site that I hadn’t updated in a while, but even that was somewhat convoluted.  Well, if you read the complaint, you get to read about the majority of the events in this story.  It’s still around forty pages, but there you go.  So rereading it before I posted it I thought, “problem solved!”  There’s your summary, dear reader.

But that raises a lot of reasonable questions, dear reader.  You might wonder, first, how is it that you are only hearing about it now?  Or if this was the Second Amended Complaint, what did the other two versions look like? 

Well, I will share the First Amended Complaint, that is essentially similar to the original, tomorrow.  But let me tell you the essential backstory there.

The case started as Walker v. Maryland, et al., where I sued the state as a whole, for its part in continually violating my constitutional rights, and a few specific units so the court could enjoin them.  Brett and Tetyana Kimberlin were mentioned, but they were not parties to the case.  One thing to note, is that although my Federal Constitutional rights were violated, I only cited the Maryland Constitution.  This was a strategic decision, the idea being that rather than saying “you are not living up to these Federal standards for how you do things,” I would instead say, “you are not living up to your own standards.”  I’m not an outsider saying my values are better, I am saying “you are better than this.”  I felt that psychological shift might be useful.

And the difference was almost entirely psychological.  The relevant provisions of the Maryland Declaration of Rights, dealing with the right to freedom of expression, due process, and protection against unreasonable seizure had long been interpreted by Maryland Courts as being identical in effect with the Federal Constitution.  Sometimes a state constitution will have stuff that isn’t in the Federal Constitution.  Sometimes a state constitution will have a similar provision, interpreted differently because of subtle differences in the wording.  But that is not the case with those core rights—in those core rights, there is no practical difference between the Maryland Constitution and the Federal one.

The essential theory of the case was frankly innovative, asking for several evolutions in the law that I believe to be logical, but were ultimately not accepted.  Yes, this part of the case when it was called Walker v. Maryland, et al., ended up being dismissed.  The majority of my legal theory is that Maryland had allowed itself to be the “cat’s paw” to Brett Kimberlin’s malevolent intent.

Which for non-lawyers, needs a lot of explanation. Indeed, not every lawyer knows about this, as it is something that has primarily been used in employment law.

First, it helps to unearth the literary reference.  In a landmark case dealing with Cat’s Paw legal theory, the Supreme Court explains in a footnote the term’s origin:

The term "cat's paw" derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F.2d 398, 405 (CA7). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.

So the cat’s paw is essentially a thing belonging to one person, but being manipulated by another.  Like here’s how it works in law.  Imagine if John Doe was fired by a supervisor.  Imagine further, that the supervisor had no animosity against his Mr. Doe based on his race.  But further, imagine that the supervisor—the guy who actually made the decision to fire Doe—relied completely on Jane Smith’s advice in making that decision, and Smith had a seething hatred of Doe based on his race.  Well, in that case, Doe could sue the company for racial discrimination on the theory that while the titular supervisor was not racist, he exercised no independent judgment and therefore became the “cat’s paw” or a “rubber stamp” to Smith’s racism.  And this has been applied to the First Amendment context: just substitute racial discrimination with viewpoint discrimination in my example above, in the place of racial discrimination, and it is essentially the same theory.

Applied here, I said that the state of Maryland had exercised no independent judgment in choosing to prosecute me over and over.  Instead they relied utterly on people they should not have relied on to decide when and if to charge me with a crime.  Accordingly, while I don’t believe the Commissioner’s office, for instance, intended to retaliate against my speech, they became the cat’s paw to Kimberlin’s intent to punish me for free speech and representation of clients.

Cat’s paw theory as a method of causation is not new, but this proposed application was innovative in two ways.  First, while cat’s paw theory had been applied to first amendment retaliation cases, it had still only been employed in employment discrimination—that is, you are being discriminated in your state-based employment because of your speech.  So it had never been applied to retaliatory charges and arrest before.  Second, it had never been applied when the person with the improper intent was not part of the organization being sued.

So the state naturally moved to dismiss, and it was dismissed as far as the state is concerned.  The metaphor I use is this: imagine you asked a court to desegregate the schools in 1904.  You’d lose, but you wouldn’t be wrong: you’d be too far ahead of the curve.  I mean racial segregation of any state function was made illegal the day the Fourteenth Amendment was ratified in 1868.  Indeed, many states immediately voluntarily desegregated, recognizing it was the law.  But the Supreme Court was not ready to declare that what was obviously the law was in fact the law until 1954 for reasons that I’d have to explain in a whole other post.  So again, the person arguing in 1904 that racial segregation was unconstitutional isn’t incorrect: they’d just be asking the courts to go where they were not yet willing to go.  Similarly I wouldn’t be surprised if fifty years from now, the legal theory I was advocating is fully accepted as law.  I think it is actually its natural evolution.

Similarly I had argued that while near-absolute judicial immunity protected Judge Vaughey from liability based on his violation of my constitutional rights, the state as a whole should not be similarly immune.  In short, someone should have to pay to compensate me for the three weeks in which my constitutional right of free speech was pretty flagrantly violated.  That is innovative, too, but I think it is right and I will go as far to say that if I appealed that issue, I stood a very strong chance of winning.  The other legal theories were more of a toss up and that is what a motion to dismiss is for, ideally: to test the legal theory of the case.

So, on June 12, we had the Motion to Dismiss hearing before Judge Mason.  John Hoge was there and he may or may not share his views of Hogewash.  But what Mason said in court was that based on the facts I have alleged (which you, dear reader, know to be true) the solution wasn’t to sue the state, but to sue Brett Kimberlin.  He didn’t say I automatically had a case—he was fastidious in reserving judgment, and rightly so—he just believed that based on the facts I alleged, that seems to be the most logical approach.

So when he announced the case would be dismissed against Maryland, I asked to amend the complaint a second time, to remove Maryland and its agents completely, and to add Brett in and the court said I could.  So that brings me to the Complaint I shared today.

Of course sharp eyed readers might have noticed something else.  One filing I didn’t mention in relation to Kimberlin v. National Bloggers Club, et al. (II) was this item in the docket:

Docket Date:               05/14/2015 Docket Number: 10

Docket Description:    MOTION, SPECIAL ASSIGNMENT

Docket Type:              Motion Filed By: Defendant Status: Granted

Reference Docket(s):  Ruling: 13

Docket Text:               DEFENDANT, AARON J. WALKER'S MOTION FOR SPECIAL ASSIGNMENT OF A SINGLE JUDGE FOR THE DURATION OF THIS CASE, FILED.

You see, ordinarily the Montgomery County Circuit Court has a rotating docket.  That is judge A might hear a motion to dismiss, judge B might deal with discovery, judge C might deal with a motion for summary judgment and so on.  Like in the case of Kimberlin v. Walker, et al. last year (the one where Brett claimed we defamed him by calling him a pedophile and we won on the issue of truth), we literally had a different judge every time we came in—I don’t think we saw the same judge twice.  And that meant you had to constantly explain the back story and, worse yet, Brett would often lie about what the last judge ruled, forcing you to argue about that all the time.

But the courts can make an exception to the “rotating docket” rule and I filed a motion explaining why.  It is one of those things where it is longer than it is interesting, so I won’t bore you by sharing it, but the reasons I laid out were 1) the case involved numerous defendants 2) including many people likely to proceed pro se, 3) the case is complex, and 4) the procedural history is complex and likely to be relevant to the case.  “Because he often lies about to the next judge about what the previous judge said” is a valid reason, but it would have been too complex a point to make in in what I wanted to be a short motion, so I left it out.

So on June 16, I learned that my request to assign a single judge to Kimberlin v. National Bloggers Club, et al. was granted and the judge chosen was... Judge Mason.  Indeed, since then Administrative Judge John Debelius sua sponte (on his own) also assigned Mason permanently to Walker v. Maryland, et al., now re-christened as Walker v. Kimberlin, et al.  My guess is that they want to avoid any possibility of inconsistent rulings from one case to the other, and so having one judge for both cases will guard against that.  And if Mason’s initial selection wasn’t random, it was based on his previous experience in the matter.

And even though he ruled against me, and I respectfully disagree with him in that, I think Mason is a good judge.  Watching other matters in front of him, he seems thoughtful and like he has thoroughly read the file and remembers most of it.  And he asks good and subtle questions on the law.  And we all know the law (especially the rules of evidence) and the facts are a harsh mistress to Brett, so while Judge Mason didn’t give me everything I wanted I think nonetheless he is a very good choice for both cases.  All I need is a fair and thoughtful judge and I believe justice will prevail.

And since I am updating you on goings on, that brings us to last Friday’s hearing.  All it was, was a scheduling hearing, and.  I filed a motion to continue because I felt it was premature to talk about discovery when we were at the motion to dismiss stage.  That was denied, but that didn’t bother me, because it meant that Judge Mason must have seen a reason to have the hearing after all.

Typically those hearings are just no big deal, but the drama came when Brett didn’t even bother to show up, which annoyed the only judge in the case from now on, Judge Mason.  And it became clear pretty quickly why Mason wanted to have the hearing.  He agreed that discovery should be suspended for the Defendants, but not for Brett, because we haven’t even gotten past the motion to dismiss stage.  And then Judge Mason set a date to hear all motions to dismiss: September 3, 2015—which seems to be what was important to Mason.  As he said several times, he wants to move the case along.  John and I agree that by his demeanor and body language and other subtleties that Mason is ready to dismiss the case.  As I said above, Mason is the kind of Judge who probably has read the whole file, and so he has read my motion to dismiss and I believe it pretty thoroughly demonstrates why the case is frivolous.

Incidentally, Brett called chambers and might have even spoken to the judge to explain why he wasn’t there.  He claimed it was because I filed a motion to continue, and he assumed it would be granted.  Which seems unlikely.  He has been in and out of courtrooms longer literally than I have been alive.  He knows that no continuance has been granted until the judge says so.

Finally, you might ask, “why weren’t you talking about it until now?”  Well, initially when it was Walker v. Maryland, et al., I didn’t want Kimberlin’s interference in the matter, and as a rule I don’t usually talk about cases on the internet.  As when I amended it into its current iteration, I wanted to keep quiet until service of process was accomplished, which I expected to occur at the scheduling hearing he didn’t bother to show for.  So I figured I would keep quiet a little longer because...  I didn’t see any real reason to tell.  But yesterday, this popped up on the docket for Walker v. Kimberlin, et al.:

Docket Date:               07/21/2015 Docket Number: 25

Docket Description:    MOTION, PROTECTIVE ORDER

Docket Type:              Motion Filed By: Defendant Status: Open

Docket Text:               DEFENDANTS, BRETT AND TETYANA KIMBERLIN'S SEALED MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PROTECTION ORDER, AND ATTACHMENTS, FILED. (PLEADING REMOVED AND PLACED UNDER SEAL)

I will remind you, dear reader, please don’t educate the midget (and I will be very surprised if Tetyana wrote a word of it).  But, anyway, I don’t know what he filed, and as long as it is under seal, it would be inappropriate to reveal whatever he filed.  I will note that I am extremely doubtful that anything in the motion is something that can be validly placed under seal.  So if appropriate I am inclined to move to unseal, but I won’t be able to say more until I see it.

And of course it is the catalyst for writing about the case in general.  He knows, the cat’s out of the bag, even without me having sent him service of process.

Anyway, so that is the fun for today, and tomorrow I shall share the First Amended Complaint.  I don’t think there is much more to say about that, because I said most of it, here, and it’s truly water under the bridge.  But you will at least get to see what I wrote.

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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.

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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 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.