MARYLAND:IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY

BRETT KIMBERLIN,

Petitioner

v. Case No. 8444D

AARON WALKER,

Respondent

OPPOSITION TO PETITIONER’S MOTION FOR STAY PENDING APPEAL

NOW COMES, Aaron J. Walker, Esq., pro se, and files this opposition to the Petitioner’s

motion for a stay pending appeal. In support of this Opposition, the Respondent states the

following:

1. As this Court knows, there are four factors courts should weigh when determining

whether to grant a motion to stay pending appeal. They are the same four factors Maryland

courts use when determining whether to grant any kind of injunctive relief:

(1) the likelihood that the plaintiff will succeed on the merits; (2) the `balance of convenience' determined by whether greater injury would be done to the defendant by granting the [stay] than would result from its refusal; (3) whether the plaintiff will suffer irreparable injury unless the [stay] is granted; and (4) the public interest.

Fogle v. H & G Restaurant, Inc., 337 Md. 441, 455-456 (1995); See also Berkshire Life Ins. Co. v.

Maryland Ins. Admin., 142 Md. App. 628, 642 (2002) (noting with approval the trial court’s

application of the four preliminary injunction factors as a guide in considering a stay).

2. In seeking his stay pending appeal, the Petitioner has utterly failed to even address

the second, third and fourth factors. For this reason alone, the Petitioner’s motion should be

denied.

3. Further, in regards to the first factor, the Petitioner has virtually no chance of

succeeding on appeal.

4. The Petitioner states that “[h]e will show that the Court erred in denying

Plaintiff’s requests to present evidence of harassment, cyberstalking and retalitation before and

after the January 9, 2012 assault by Defendant Aaron Walker.” The reality is that the Petitioner

was not allowed to present this evidence because he failed to conform with Maryland Rules

requiring the authentication of all documentary evidence. That is, the Petitioner failed to even

prove that the Respondent wrote the allegedly harassing online comments. The Petitioner is

extremely unlikely to win an appeal based on the claim that he should be exempt from this

elementary rule of evidence, and his incompetence as an advocate is not valid a basis of appeal.

5. The Petitioner also misstates the Court’s holding in paragraph 3 of his motion,

stating that “the Court erred in its finding that Defendant [sic] Aaron Walker would not engage

in future harassing conduct, cyberstalking and retaliation.” Because of the Petitioner’s utter

failure to successfully enter into the record any evidence of “harassing conduct, cyberstalking or

retaliation” the court correctly concluded that no such conduct occurred in the first place and

therefore didn’t reach the question of whether the Respondent would do so in the future.

6. The Petitioner also mischaracterized the Court’s holding again in paragraph 7,

stating that “the Court erred in finding that under Maryland law online harassment,

cyberstalking, death threats, interference with business, and retaliation do not fall under the

peace order statute.” The Court said no such thing. What the Court ruled, once again, is that the

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Petitioner failed to authenticate any of the documents supposedly showing online harassment and

therefore he presented no evidence of such harassment.1 Also, the Court provided the Petitioner

an education on the application of the First Amendment to the Maryland harassment statute (MD.

CRIMINAL LAW CODE ANN. § 3-803). The Court explained to the Petitioner that the First

Amendment protects the right to speak the truth and to provide opinions that the Petitioner might

find to be unpleasant and no state law—including the statute prohibiting harassment—could

infringe on those First Amendment rights.

7. In doing so the Court was providing obiter dictum, guidance to the Petitioner

because the Court correctly sensed that the Petitioner was attempting to apply the state’s

harassment laws to truthful statements and statements of pure opinion. And indeed this is

manifestly apparent when looking at the Petitioner’s complaint that he has been “harassed” since

the April 11 hearing that he does not believe such speech is protected.

8. For instance he complains in paragraphs 4 and 5, that a person on twitter going by

the nickname “@dust92” called him a “monster.” (This tweet and the tweet it responded to are

attached as Exhibit A). First, there is nothing in the tweet or the tweet “@dust92” was

responding to that clearly identifies Mr. Kimberlin as the “monster.” Indeed, just like in the trial,

the Petitioner has utterly failed to even authenticate that tweet—or indeed any of the evidence he

is attempting to introduce for the first time after the case is over.

9. But more fundamentally than that, even if the Petitioner can prove the authorship

of that tweet and his wild theory (never raised in either the district court or circuit court trial) that

1 The petitioner also failed to even assert that the Respondent issued death threats against the Petitioner and indeed the Respondent has never threatened any harm against the Respondent. The Respondent also categorically denies that he committed tortious interference with the Petitioner’s business or indeed saying anything negative about him that was not either factual (and indeed often a matter of public record) or a protected statement of opinion.

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the Respondent has somehow conspired with “@Dust92” to make this comment, the fact is that

the statement is protected speech, as this Court was attempting to explain to the Petitioner.

10. Likewise the remaining factors all favor the Respondent. Turning first to the

second factor, the “balance of convenience” clearly weighs against granting the stay. The

Petitioner has raised no concern in his Motion that the Respondent might actually assault or

batter the Petitioner so the entire basis of his motion for a stay is a concern that the Respondent

might speak about him in a way he considers “harassing.”

11. While it is important to protect against genuine harassment by non-protected

speech, the courts should only engage in prior restraint of speech reluctantly. Every restraint of

non-protected speech carries with it the danger of creating a chilling effect on protected speech.

Many reasonable and cautious people under the sway of a peace order will censor themselves not

because the law or the judge administering it demands it, but because they do not want to go to

the time and trouble of defending themselves from frivolous claims that they violated the peace

order. See, e.g., Dombrowski v. Pfister, 380 US 479 (1965) (“Even the prospect of ultimate

failure of such prosecutions by no means dispels their chilling effect on protected expression”).

12. This Petitioner has repeatedly demonstrated that he does not understand what is

and is not protected under the First Amendment. For instance in the case of Kimberlin v. Allen

(Civil No. 339254), involving the exact same Brett Kimberlin, he obtained an injunction by

default against the defendant in that case, Seth Allen, prohibiting Mr. Allen from defaming the

Petitioner or tortuously interfering with his business relations. Then Mr. Kimberlin filed

contempt charges against Mr. Allen that were found to be so frivolous that Mr. Allen won the

hearing without even showing up. The entire transcript is attached as Exhibit B, but on page 20

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this passage in particular demonstrates his cluelessness when he discusses tortious interference

with business:

MR. KIMBERLIN: Well, I know for a fact that people, when they Google my name, the first thing that comes up is Mr. Allen's posts about me being a terrorist or a whatever. And they go and read his blog. And then they don't donate to our organization.

The Petitioner is complaining that Mr. Allen tortuously interfered with his business by calling

him a “terrorist.” However, so has the Sixth Circuit Court of Appeals:

Kimberlin was convicted as the so-called "Speedway Bomber," who terrorized the city of Speedway, Indiana, by detonating a series of explosives in early September 1978. In the worst incident, Kimberlin placed one of his bombs in a gym bag, and left it in a parking lot outside Speedway High School. Carl Delong was leaving the high school football game with his wife when he attempted to pick up the bag and it exploded. The blast tore off his lower right leg and two fingers, and embedded bomb fragments in his wife's leg. He was hospitalized for six weeks, during which he was forced to undergo nine operations to complete the amputation of his leg, reattach two fingers, repair damage to his inner ear, and remove bomb fragments from his stomach, chest, and arm. In February 1983, he committed suicide.

Kimberlin v. White, 7 F.3d 527, 528-529 (6th Cir. 1993). So one supposes that the Petitioner has

as much cause to claim that Westlaw and Lexis are interfering with his business relations by

reprinting that case, as he does against Mr. Allen. In asserting that Seth Allen violated the order

against him by calling him a terrorist, Kimberlin was essentially trying to read the word

“tortious” right out of the phrase “tortious interference with business relations.”

13. Likewise in instant motion for a stay, as mentioned before, the petitioner has

asserted that a third party has harassed him by calling him a “monster.” Further he has asserted

that the Respondent is somehow responsible for this third party’s actions. He has also previously

frivolously claimed that the Respondent harassed him by performing service of process in a

lawsuit in Virginia. On March 17, 2012, the Petitioner filed a “Motion to Find That Defendant

[sic] Walker Violated the Final Peace Order” (attached as Exhibit C) in which he stated the

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second paragraph that “[o]n March 17, 2012, Aaron Walker served a $66,000,000 lawsuit on

Plaintiff [sic] in order to harass him.” So he is essentially claiming that the Respondent harassed

him by complying with the legal requirement that he serve process upon the Petitioner.

14. And indeed the dishonesty of the Petitioner goes deeper than that. In the January

18, 2012 peace order hearing in the district court (where the case was ultimately continued until

February 8, 2012), the Respondent filed a motion to clarify the peace order, asking the court to

specify that he was allowed to serve legally required notices such as service of process on the

Petitioner. The district court stated that it felt it was implicit that such notices were allowed, but

as a courtesy it granted the Respondent’s request, ruling that the Respondent could send legally

required notices to the Petitioner. So the Petitioner has attempted to hale the Respondent into

Court for performing a task legally required as a matter of due process, and specifically

authorized by the Court.

15. If the Petitioner is granted a stay, essentially reinstating the Peace Order against

the Respondent, this Court can look forward to continual and frivolous claims that the

Respondent is in contempt of the Peace Order based on protected speech and other lawful and

peaceful activities. The prospect of continually spending the time and money needed to

continually fight such frivolous claims carries with it an inappropriate danger of chilling such

protected speech and activities.

16. This is particularly burdensome on the Respondent given recent events. At the

website “Breitbart Unmasked,” the Petitioner has been able to put out his version of what

occurred at the hearing on April 11, 2012, and what occurred on January 9, 2012. Upon

information and belief, this website was created by the Petitioner’s admitted associate Neal

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Rauhauser. In any case, the website plainly has a pro-Kimberlin bias to the point of distorting

the truth and even breaking the law.

17. For instance, in a post entitled “Aaron Justin Walker: Courtroom Knockdown

Dragout,” posted on April 19, 2012 (attached as Exhibit D) , this anonymous writer shows video

of the incident on January 9, 2012, without mentioning the numerous inconsistencies between

what the video shows and the Petitioner’s statements about it. For instance, the Petitioner

claimed in the February 8, 2012 district court peace order hearing that the Respondent “decked

me in the eye.” The video demonstrates that the Petitioner was never knocked down by the

Respondent. Likewise, in his Application for Statement of Charges, filed about forty-five

minutes after the alleged “assault” on January 9, 2012, the Petitioner stated that after the sheriff’s

deputies arrived that “Mr. Walker tried to come at me several more times but was restrained.”

The video evidence demonstrates that this claim was pure fantasy. And yet this website makes

no mention of those inconsistencies. The same piece also illegally broadcasts audio from the

April 11, 2012 hearing, selectively editing it as to give listeners a false impression of this Court’s

findings.

18. Indeed, the very same post even distorts and minimizes the Petitioner’s criminal

past in a way that closely mirrors the way that the Petitioner has himself attempted to minimize

his past. In the February 8, 2012 peace order hearing, the Petitioner stated that “I was charged

with a crime 33 years ago. I was released from prison. I’ve done my time.” Later in the same

hearing he said, “He [Respondent] throws this criminal case that I was convicted of 33 years ago

in my face constantly.” This, however, is a lie to suggest that he only committed one crime, or

only had one conviction. As the Respondent said in the same hearing:

This man [Petitioner] is a convicted perjurer. He has indeed in this court right now just a few seconds ago told numerous lies. He, for example, said that he was

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convicted of a crime. He has 35 counts conservatively against him. He has been convicted of setting eight bombs in six days in Speedway, Indiana. He has been convicted of conspiracy to distribute 10,000 pounds of marijuana. He’s been convicted of perjury and he comes here to this court and says “I was convicted of a crime?”

But mirroring the Petitioner’s deceptive language, the same piece at Breitbart Unmasked states

that:

Patterico and Andrew Breitbart then started a years long [sic] campaign to destroy Mr. Kimberlin using a 34 year old criminal case against him when he was a young man[.]

(Emphasis added.) In fact, there were at least five criminal cases against the Petitioner resulting

in at least thirty five convictions, three for his bombing spree, one for conspiracy to distribute

marijuana, and one for perjury. And yet conveniently this site tries to minimize the gravity of

the Petitioner’s criminal history in the exact same way the Petitioner has.

19. The point isn’t to get into a debate about the merits of the claims on this

“Breitbart Unmasked” website (although they are meritless), but to make the point that the

Petitioner is plainly getting his side of the story out. If this Court reinstates the peace order

pending the Petitioner’s frivolous appeal, it would unfairly burden the Respondent as he defends

himself in the court of public opinion. The Petitioner wants to create a situation where he and

his surrogates can speak freely, but where if the Respondent dares to defend himself he risks

being haled into court on some fictitious claim that the Respondent is “harrassing” the Petitioner

by speaking the truth about him. For this reason, the balance of convenience clearly favors the

Respondent.

20. Likewise the petitioner is unlikely to suffer irreparable injury unless the

injunction is granted. The law has many able remedies for a person who is harmed by another

using unprotected speech and the Petitioner has made no showing that such remedies are

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inadequate—or even that the Respondent has ever engaged in unprotected speech in the first

place.

21. Finally the public interest is served by a robust debate on all topics.

22. The Petitioner has failed to meet even one of the factors that this Court must

consider before granting a stay pending appeal. Indeed, the Petitioner failed to even address

three of those factors. At a time when Mr. Walker’s reputation is being assailed on the internet,

this court should not risk placing a chilling effect on him that would prevent him from telling his

side of the story. Accordingly this court should deny the Petitioner’s request for a motion for a

stay pending appeal.

Dated: Friday, April 20, 2012

Respectfully submitted,

Aaron J. WalkerVa Bar #48882D.C. Bar #4816687537 Remington RoadManassas, Virginia 20109(703) 216-0455

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I, Aaron Walker, hereby certify that I served a copy of this pleading by U.S. Mail on Brett Kimberlin, at 8100 Beech Tree Road, Bethesda, Maryland 20817 on this day of April 20, 2012.

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