IN THE COURT OF APPEALS OF MARYLAND BRETT KIMBERLIN, Petitioner,

v,

No,

AARON WALKER, Respondent

PETITION FOR A WRIT OF CERTIORARI AFTER JUDGMENT The Petitioner, Brett Kimberlin, pro se, moves, pursuant to Maryland Rule 8-301, for the issuance of a writ of certiorari after judgment in the Circuit Court of Montgomery County, sitting as an appellate court over the judgment of the District Court of Montgomery County, to review the above-captioned case, In support of this petition, and pursuant to Rules 8-303(b)(1) and (2), Petitioner states: 1, The case was docketed as a Peace Order in the District Court on January 9, 2012 as Brett Kimberlin v, Aaron
Walker~

No 0601SP005392012. The trial

judgment was entered on February 8, 2012 in favor of Petitioner, Brett Kimberlin, Appx, 4. 2. Respondent Aaron Walker filed an appeal to the Circuit Court on Montgomery County On April 11, 2012, Judge Eric Johnson of the Circuit Court reversed the judgment of the District Court in a line order finding that Petitioner could not meet the statutory burden of proot Appx, 2 In his oral ruling trom the bench, he stated that although Respondent assaulted Petitioner on January 9, 2012, there was no evidence that Respondent would commit another assault Appx 3, pp,98-100

RECEIVE.D MAY 1 0 LUll

3 Copies are attached hereto of (i) the docket entries showing the judgment of the Circuit Court. Appx. 1; (ii) the line order of the Circuit Court, Appx 2; (iii) the transcript of the Circuit Court trial, Appx 3; (iv) the written decision of the District Court, Appx 4; (5) docket entries showing five criminal charges filed by Respondent against Petitioner that were nolle prossed. Appx 5,
QUESTIONS PRESENTED

1, Whether it was erroneous for the Circuit Court to prohibit evidence of sustained harassment by Respondent that occurred before and after an assault by Respondent when the Distr'ict Court considered all that evidence when issuing the temporary and final Peace Orders, and this Court's decision in Galloway 11, State, 781 A.2d 851 (2001) holds that repeated unwanted, alarming and annoying contact constitutes harassment under Maryland Code 18-3-803 2" Whether it was erroneous for the Circuit Court to prohibit evidence of Respondent's repeated post assault retaliatory harassment to demonstr'ate future harassment as required by Maryland Code 18-3-1505c(i)(ii) 3, Whether the Circuit Court erred in dismissing the Peace Order without allowing Petitioner to question Respondent or requiring Respondent to put on evidence when (1) it was Respondent who appealed to the Circuit Court and (2) Respondent was present and the witness with personal knowledge of his long term harassment of Petitioner,

PRELIMINARY STATEMENT
Petitioner Brett Kimberlin, a Maryland resident, has been the Director of a nonprofit public charity for the past ten years that focuses on youth involvement in social issues, including religious tolerance of Muslims. Respondent Aaron Walker, a Virginia resident, is an attorney who, using the pseudonym Aaron Worthing, for two years has published a Muslim hate blog called Everyone Draw Mohammed, which includes over 800 insulting depictions of the Prophet Mohammed Petitioner, for the past two years, was cyberstalked by an associate of Respondent's using the pseudonym Socrates Petitioner sued Socrates in Montgomery County Circuit Court for ,inter alia, stalking, and the Court ordered Google Inc. to disclose the identity of Socrates, which it did as Seth Allen.. On August 23,2011, Mr Allen wrote an email to an attorney named "Aaron Worthing" stating that he was considering coming to Maryland to murder Petitioner As a result of this email.Mr. Allen was arrested for criminal harassment and Petitioner got a Peace Order against Mr. Allen. Because of the death threat email, the Circuit Judge in the Seth Allen civil case ordered further discovery to determine whether others, including Aaron Worthing, were conspiring to stalk or harm Petitioner. However, Petitioner could not locate any attorney named Aaron Worthing and so was unable to seek that additional discovery. On November 14, 2011, the Circuit Court in the Seth Allen case issued judgment in favor of Petitioner and issued a permanent injunction against Mr. Allen

prohibiting him from further defaming Petitioner or interfering with Petitioner's business. Despite the judgment and injunction, Mr Allen continued harassing Petitioner and interfering with his business, Moreover, Respondent told Mr, Allen that the judgment and injunction were invalid and unenforceable Therefore, on or about December 22,2011, Petitioner filed a post judgment motion in the Seth Allen case to identify Aaron Worthing. Respondent, as Aaron Worthing, responded to Petitioner's motion by posting many blog posts over several weeks stating that Mr" Kimberlin is a terrorist, perjurer, fraudster, and otherwise horrible person who needs to be jailed He told his readers to "get out the popcorn" to watch how he was going to destroy Petitioner and ensure that Petitioner would never identify him Members of Respondent's blog upped the attacks on Petitioner calling him vile names and inciting additional personal attacks on Petitioner. A few days before the January 9, 2012 hearing in the Seth Allen case, Petitioner notified the court that he had learned that Aaron Worthing was actually Respondent Aaron Walker, and therefore the motion to identify Mr, Worthing/Walker was moot Despite this, Mr, Walker appeared at the hearing, attempted to intervene in the case until the judge threatened him with removal, and then followed Petitioner to the courtroom waiting area, assaulted Petitioner, and took his iPad, Court personnel called court security and they retrieved the iPad and advised Petitioner to file assault charges and seek a Peace Order against Respondent, which Petitioner did

immediately, Petitioner spent the next six hours in the Emergency Room at Suburban Hospital undergoing treatment and evaluation for the assault Respondent retaliated against Petitioner for filing the Peace Order by (1) tweeting many vile attacks against him, (2) filing malicious criminal charges against him that were dismissed by the State's Attorney's Office, (3) filing a malicious Peace Order against a third party and sending the sheriff to serve that associate at Petitioner's home even though the third party had never been there, which was also dismissed, (4) filing a malicious $66,000,000 civil suit against Petitioner for identifying Respondent, and (5) by posting on his blog that Petitioner is "human filth" and that anyone who donates to Petitioner's no profit organization is liable for civil and criminal sanctions, The District Court, following a full trial with Sheriff Deputies as witnesses, considered all the above and found that Respondent's conduct constituted harassment under the Peace Order statute and therefore issued a six-month Peace Order prohibiting Respondent from further harassing Petitioner, Appx, 4 Respondent appealed the District Court's decision to the Circuit Court, which was heard on April 11, 2012 by Judge Eric Johnson The Court made several rulings that are the subject of this Petition, First, that Petitioner could not present any evidence of Respondent's pre-and post assault conduct such as harassment and cyberstalking, even that which occurred within 30 days, because they were not relevant and Petitioner could not prove that Respondent did them, even though Respondent admitted under oath to doing so in the District Court and was present in the Circuit Court Second, that Petitioner could not present evidence of Respondent's post

assault harassment to prove that Respondent was "likely to" commit a future violation of the Maryland Code 18-3-1503. Third, that the law does not protect against annoying conduct and that citizens have no legal remedy against "offend[ingJ" conduct. ARGUMENT
I

PROHIBITING PETITIONER FROM SHOWING THAT RESPONDENT ENGAGED IN A MALICIOUS COURSE OF CONDUCT THAT ALARMED AND SERIOUSLY ANNOYED PETITIONER CONFLICTS WITH BOTH THE PEACE ORDER STATUTE AND WITH THIS COURT'S RECENT DECISION IN GALLOWAY V. STATE Maryland's Peace Order statute, 183-1503, lists acts which can form the basis for a Peace Order~ of which two directly apply to the facts in the instant case: "(3) Assault in any degree, .. and (6) Harassment under 183B03 ....." The lower court ruled that an assault did occur in this case. However, the Court refused (1) to allow Petitioner to put on any evidence of harassment and (2) to consider any conduct other than the assault. This deprived Petitioner of due process.. 18-3-803 defines criminal harassment inter alia as follows: "(a) A person may not ... maliciously engage in a course of conduct that alarms of seriously annoys the other (1) with the intent to harass, alarm, or annoy the other; (2) after receiving reasonable warning to stop by or on behalf of the other; and (3) without legal purpose.. " In Gallowayv:. State, 781 A2d 851 (2001), this Court upheld the constitutionality of this statute and Galloway's conviction for sending 122 unwanted letters to a person he was convicted on stalking In the instant case, the lower court refused to allow Petitioner to present any evidence that Respondent was involved in a years long stalking campaign against

Petitioner that included an email murder threat, many alarming and annoying blog posts designed to incite attacks on Petitioner, dozens of Twitter tweeks attacking Petitioner, threats of civil and criminal prosecution, Respondent's own statement that he would continue to harass Petitioner and make him pay, and alarming retaliatory acts following Respondent's assault of Petitioner. All this evidence was allowed and considered by the District Court when it found issued its temporary and final Peace Orders prohibiting Respondent from harassing Petitioner. Yet in the Circuit Court, the Judge refused to allow Petitioner to present any evidence other than what occurred on January 9,2012 when Respondent assaulted Petitioner The Court sustained all objections to any evidence that Respondent engaged in repeated, malicious conduct that annoyed, alarmed and harassed Petitioner The Judge ruled that Petitioner could not prove that Respondent engaged in the malicious alarming and annoying conduct even though Respondent himself admitted to it in the Distr ict Court, even though much of the alarming course of conduct was written on Respondent's personal blog and involved Respondent's personal email, and even though Respondent filed papers in various courts confirming that he engaged in the conduct The Court said that Petitioner could not use online conduct to prove alarming and annoying harassment. The Court said that anyone could have written the online posts or sent the murder email and that Petitioner could not prove that Respondent wrote or was involved in them. The Court: "You're telling me something about online I want to know what he did to you. How is this man harassing you? ... You don't even have to read what's online." Appx 3, pp 45-46

When Petitioner testified that Respondent said that he was going to continue to harass Petitioner, the Court repeatedly said that Respondent did not say those things.. THE COURT: "Well I don't think he said he was going to continue harassing you. He didn't speak in those terms..... You're not understanding me. Mr Walker did not come out of that courtroom and say he is going to continue - he said, quote
'I: what?" Id.. at 50 Yet Respondent had testified under oath in the District Court

that he had said he was going to continue harassing Petitioner, and he even quoted Harry Truman to justifY that harassment The Court refused to allow Petitioner to present evidence that Respondent engaged in retaliatory conduct against Petitioner following the assault and the filing of the Peace Order That conduct was very alarming and annoying: (1) Respondent filed a false Peace Order against a third party and falsely told the police that that party lived at Petitioner's home which caused three deputies to come to Petitioner's home.. The Peace Order was dismissed without even an appearance by the third party (2) Respondent filed false and malicious criminal charges against Petitioner and bragged about that online. Those charges were so frivolous that the State's Attorney dismissed them without even serving Petitioner. (3) Respondent blogged that Petitioner is "human filth" and threatened to bring criminal and civil charges against people who donate to Petitioner's non-profit (4) Respondent posted dozens of tweets on Twitter attacking Petitioner as a vile person. (5) Respondent filed a 33 count frivolous and malicious $66 million civil suit against Petitioner alleging that Petitioner harmed him by exposing him as the publisher of a Muslim hate blog

In Galloway, this Court was very clear that unwanted conduct that alarms, annoys, and har asses is relevant to proving criminal harassment under the statute In that case, the Defendant sent more than 100 letters to the stalking victim tram prison At trial, the Defendant argued, as did the Judge in the instant case, that the victim did not have to read the letters but could have simply thrown them in the trash The court rejected this argument finding that it was the Defendant's conduct that was proscribed by the statute and the Defendant intended to alarm, annoy and harass the victim As in Galloway, Petitioner had a right to show that Respondent engaged in a sustained harassment campaign against him that was intended to alarm and annoy him. The fact that this was done by email and blog posts is no different tram the letters sent by Mr. Galloway. In this modern era of social media, the use of email and blogs is largely synonymous with the US Mail service Respondent knew and knows that Petitioner's employment as the director ofa national non-profit that makes extensive use ofsocial online media requires him rely on the Internet and email as part of his employment Therefore, Petitioner cannot ignore emails, Google alerts, blog posts, incendiary attacks and murder threats. Petitioner had a statutory right to show that he was alarmed by getting a call while on vacation from a police detective stating that Mr.. Allen had sent an email to Respondent saying he might come to Maryland to murder Petitioner Petitioner had a right to show that Respondent's repeated blog posts calling Petitioner a "terrorist" were alarming and inciting readers to make threats against Petitioner Petitioner had a right to show that he was alarmed at Respondent's repeated public threats to

sue Petitioner and have him arrested. Petitioner had a right to show that Respondent retaliated against Petitioner after the assault and the fling of the Peace Order by abusing the legal system to falsely charge Petitioner both civilly and criminally In summary, the lower court's refusal to allow Petitioner to present evidence that Respondent engaged in a sustained campaign of harassment, as defined by 18--3803, conflicts with this Court's ruling in Galloway and the Peace Order statute, 18-31503, and deprived Petitioner of due process

II

PROHIBITING PETITIONER FROM INTRODUCING EVIDENCE OF RESPONDENT'S POST ASSAULT RETALIATORY CONDUCT TO PROVE LIKELY FUTURE VIOLATION OF THE PEACE ORDER STATUTE DEPRIVED PETITONER OF DUE PROCESS AND CONFLICTS WITH GALLOWAY V. STATE

18 -3-1505c(i)(ii) requires a judge in issuing a Peace Order case to find that the respondent "committed, and is likely to commit in the future, an act specified in 31503(a) ... against the Petitioner." (emphasis added).
However~ the

lower court

refused to allow Petitioner to introduce any evidence to prove Respondent's future harassment despite the fact that Respondent had engaged in very alarming and annoying post assault retaliatory harassment against Petitioner As noted above, the only violation of the Peace Order statute that the judge considered was the assault that occurred on January 9, 2012. Because the judge refused to consider the pre assault harassment conduct, he also refused to consider any evidence that Respondent engaged in post assault harassment of Petitioner

The Court then ruled that, although the assault did occur, because Petitioner could not prove that Respondent would commit another assault, the Peace Order should be dismissed In Galloway, the Defendant was convicted of criminal stalking.. He then went to prison and continued to send more than 100 unwanted letters to the stalking victim This, the Court found, violated the har assment statute In the instant case, as the lower court found, Respondent did assault Petitioner In short, Petitioner was a victim of that assault But rather than apologize and show contrition to Petitioner, Respondent doubled down with more harassment following the assault including a malicious Peace Order against a third party in order to send sheriffs to Petitioner's home, a malicious criminal charge against Petitioner, a malicious $66 million lawsuit against Petitioner, a malicious blog post calling Petitioner "human filth" and threatening his donors, and dozens of malicious vile tweets attacking Petitioner as subhuman. All of these occurred between the time of the issuance of the temporary Peace Order and the issuance of the final Peace Order, and the District Court]udge considered them when he issued that final Peace Order. When the lower court refused to allow Petitioner to introduce evidence that such future harassment had already occurred and would therefore probably continue to occur in future, it deprived Petitioner of his statutory right to prove future violations of the Peace Order statute Petitioner asks this Court to take judicial notice of the fact that, within days of the judge dismissing the Peace Order in this case, Respondent again filed false and malicious criminal charges against Petitioner in Montgomery County District Court

asserting that Petitioner lied about the assault No 4D00277939. Appx 5 Respondent filed those charges to continue the harassment of Petitioner The State's Attorney nolle prossed those charges shortly thereafter Id In summary, Petitioner's right to present evidence of post assault har assment deprived him of due process under the Peace Order statute, and has left Petitioner without the protection of a Peace Order.

III

THE LOWER COURT ERRED IN REQUIRING PETITIONER TO PUT ON HIS CASE WITHOUT REQUIRING ANY EVIDENCE FROM RESPONDENT

Respondent Walker is the party who appealed the Peace Order to the Circuit Court However, the Court required Petitioner to present his case and then dismissed the Peace Order without requiring Respondent to put on any evidence or be subject to direct or cross-examination. This denied Petitioner due process. Although appeals from Distrkt Court orders are to be considered de novo, that does not mean that the Petitioner should be the only party required to present evidence and be subject to cross examination. However, that is what happened in the court below because the Judge dismissed the Peace Order after Petitioner presented his case. As noted above, one of the reasons the Judge would not allow Petitioner to show that Respondent was engaged in a sustained harassment campaign against Petitioner was that Petitioner could not prove that Respondent was involved with the malicious blog posts, tweets, murder email and post assault retaliatory conduct

Accordingly, Petitioner told the Court that he would wait until Respondent testified to introduce that evidence. "MR KIMBERLIN: All right Well, when Mr. Walker testifies, then I'll ask him ifhe wrote these " that's the only way I can get it in[to evidence] ," Appx 3 at
43

However, when Petitioner finished presenting what the Judge would allow -- the assault evidence - the Judge dismissed the Peace Order by ruling that Petitioner had not presented sufficient evidence to prove that Respondent would assault him in the future. These rulings, first prohibiting Petitioner from presenting evidence of harassment and then depriving Petitioner of the testimony of Respondent, who had appealed the case, was sitting in the courtroom and would testify that he engaged in the harassing conduct, ensured that Petitioner could not meet the statutory requirements necessary to prove harassment This turned the de novo Peace Order hearing upside down by allowing the Respondent to appeal a final Peace Order, force Petitioner (an assault victim) to present his case without allowing him to show sustained harassment, and then dismiss the Peace Order before the Respondent could be examined about the sustained harassment In summary, the Court's rulings denied Petitioner due process and his right to a de novo trial as provided for by statute and the Maryland Constitution

CONLCUSION In Galloway, this Court noted that the harassment statute, 18-3-803, was enacted "to help law enforcement to defuse longstanding disputes, help avoid extreme situations, and provide relief to victims" However, the rulings of the lower court completely deprived Petitioner of the protections of that statute and totally ignored the holdings of Galloway regarding what constitutes harassment As a matter of public policy and statutory construction, victims such as Petitioner must be accorded to the strongest protections under the statute rather than, as here, no protection whatsoever, Petitioner begged the lower court for protection and warned the court that if the Peace Order were dismissed, Respondent would begin harassing Petitioner once again, "MR KIMBERLIN: I feel a threat from him I personally feel that threat every day, You know, I've got my kids and wife ,looking out for him every day, whether they're going to see a Virginia license plate show up, "', He talks on his blog about his Second Amendment rights, ", and how he will invoke them and how he carries a weapon "" This is what [ worry about, and him inciting people" He's got, he's got people that comment on his blog that talk about" coming and killing me '" and this is what I worry about, him inciting somebody by talking about something that happened 34 or 40 years ago" and blaming me" for outing him" when he had -- it was his blog," Appx 3 at 95. And, within days of the dismissal ofthe Peace Order; Respondent doubled down with a new harassment campaign, (1) filing five criminal charges against Petitioner which were nolle prossed, (2) calling Petitioner vile names in dozens of Twitter posts, (3) uploading court filings on the Internet with Respondent's commentary that Petitioner lied in them and committed perjury, (4) threatening Petitioner that he is "going to pay" for seeking redress in the courts, (5) warning that Respondent

was "not going to stop until I get justice," and (6) writinga '"massive" article with hundreds of pages in exhibits on his blog which he called "War" asserting that Petitioner is a lair.

For all the foregoing reasons, Petitioner submits that the Petitioner for a Writ of
Certiorari should be granted inasmuch as the petition raises issues of exceptional public importance that ought to be resolved by this Court, Respectful - s

BrettKimb
d

nO n

Bethesda, MD 20817

CERTIFICATE OF SERVICE
In certify that 1 mailed a copy ofthis petition to Reginald Bours, Esq, this 7thth day of May, 2010 by First Class Mail