The only good news was that JP Judge Karen Slaughter, probably under the spotlight of publicity, saw the error of her ways and vacated her unlawful order hours before Michael had his day in court.
Then it happened to our blogger! He was deprived of his gun rights simply because some lady, who lives 120 miles away in the small town of Prescott, Arizona, didn't like what she read in his blog! Apparently, neither did Yavapai Superior Court Judge Kenton R. Jones. This is crazy!
[Click here to skip directly to the federal complaint.]
Look, as Christians, we're not condoning calling anyone a "turd." But you know, you have the right to free speech in our county. Even if it upsets people, as with the Westboro Baptist Church group. The U.S. Supreme Court said so. If you really go too far and utter a true threat, well, there are laws for that already. It's called assault. (But Councilman Winslow did not call the cops on Michael. Lord knows he could have. The cops (i.e. Chief Gilbert) in Quartzsite have gone crazy arresting people.) Or if you go too far and slander someone, there are laws for that too. It's called Defamation. There are legal remedies for that too.
But an Injunction Against Harassment for blogging? Doesn't that chill the First Amendment? And losing your gun rights for blogging? Just because someone complains, ex parte (that is, without you being there) to a judge? In this day and age of blogging and Twittering, every one of you could end up losing your civil rights, ex parte, just because someone is upset with something you said! (In theory, everything in those gossip tabloids would be harassment!) And it will cost you, not them, lots of bucks to hire a lawyer to fight off the one sided charge! It cost Michael Roth $1000 to hire an attorney. But did JP Judge Slaughter order Joe Winslow to pay back Michael? No. There's nothing in the law that allows her to do that. Joe Winslow got off scot-free.
What if petitioner is lying? What if the petitioner is psychotic? The judge doesn't know because you're not there to challenge a bogus charge. Nor do judges sanction petitioners for frivolous petitions. The system is ripe with abuse! Ruthless people are using Harassment law to harass!
This whole ex parte thing is patently unconstitutional. You suddenly become guilty until proven innocent! And taking away your gun rights? Absent any law giving a judge the authority to do that? It's got to stop. And hopefully, with the filing of the federal civil rights complaint, suing the Arizona Supreme Court Justices, it will. (Here's the full complaint with embedded text (i.e., searchable) complete with footnotes. Here are the Exhibits. The case is 11-CV-1896 in the Arizona District if you have PACER. (PACER is free to get and mostly free to use.)
If you want the scanned version of the (now amended) complaint from the court (which is not text searchable as is the PDF above) it's here.
(BTW, check out the Firefox browser extension, RECAP. It's a free extension which allows you to download many court documents for free if someone else has already downloaded it using RECAP.)
OVERVIEW
1. For reasons to follow, pro se plaintiff petitions the court for a Rule 65(b) Temporary Restraining Order (without Notice) to immediately restore the status quo. Extraordinary circumstances preclude any other remedy to mitigate potential true irreparable harm to plaintiff. Plaintiff seeks to immediately restore his numerous Constitutional rights (both State and Federal), which have been unlawfully revoked by defendants under color of (no) law.
2. After Notice is served, plaintiff moves the court to continue the TRO by way of a Rule 65(a) Preliminary Injunction to preserve the status quo. After the Preliminary Injunction, plaintiff then asks the court for a "Permanent Injunction" via summary judgment, based on the fact that, quite simply, there is no Arizona law allowing defendants to deprive plaintiff his constitutional rights.
3. Ironically, pro se plaintiff seeks a Federal Injunction to stop a State Injunction. Specifically, plaintiff seeks to suspend and ultimately prohibit an unlawful and unconstitutional ex parte State civil Injunction against Harassment, brought against plaintiff as punishment for blogging on the Internet. As will be shown, the State Injunction was issued in violation of the U.S. Constitution as a proximate result of plaintiff exercising his First Amendment right to free speech as he carried out his First Amendment right to exercise of religion. On its face, punishing plaintiff for blogging by issuing a civil Injunction chills plaintiff's—and every Arizona residents'—First Amendment rights.
4. Even though abridging freedom of speech and prohibiting the exercise of religion is typically considered "irreparable harm" by the courts, the extraordinary circumstance requiring urgency in this matter arises from the potential for literal irreparable harm to plaintiff: death. Specifically, plaintiff has been rendered defenseless because, as a proximate result of the Injunction, the State has revoked plaintiff's right to bear arms! For blogging!
5. There is no lawful basis for defendants to deprive plaintiff of his Federal and State gun rights. There is no lawful basis to place plaintiff's name in the Federal NCIC database, depriving plaintiff of gun ownership in any state or federal district. Plaintiff has essentially been lowered to the level of a criminal (a felon) via a civil matter absent any law, a violation of due process Constitutional right in itself.
6. Not only is this a U.S. Constitutional violation, plaintiff has been unlawfully and unconstitutionally deprived of his State right "to bear arms in defense of himself" (and his family, loved ones and fellow citizens), per Article 2, § 26 of the Arizona Constitution. Being unarmed in the Phoenix Metroplex is inherently dangerous. Plaintiff does not have to remind the court that even a federal judge can be murdered in a grocery store parking lot in broad daylight. (My condolences to Judge Roll's family and friends.) Plaintiff is fearful and has modified his life (i.e., suffered harm) as a proximate result of the Injunction.
7. As will be shown, because defendants are arbitrary and capricious in their application of (no) law, and because plaintiff has exhausted his administrative remedies with defendants, plaintiff ultimately seeks Injunctive and Declaratory relief to permanently enjoin defendants from ever again depriving plaintiff—and all Arizona residents—of his dual Constitutional rights to bear arms. Also, plaintiff seeks to permanently enjoin defendants from chilling plaintiff's—and all Arizona residents'—First Amendment right to free speech and/or freedom to exercise religion via civil Injunctions. Further, plaintiff seeks to prevent defendants from depriving plaintiff—and all Arizona residents—of his Fifth and Fourteenth Amendment rights and other Arizona Constitutional rights violated via Injunctions. (Plaintiff may amend to add more.) Therefore, granting this TRO will be in the public interest. It may well be that the court determines the entire state law underlying this action is fundamentally unconstitutional.
8. Pursuant to Rule 65(b)(1)(B) a certification is included showing good cause for issuing the TRO without Notice due to plaintiff's IFP status. Pursuant to case law touching Rule 65(a), good cause will be shown for issuing a Preliminary Injunction to preserve the status quo until such time the court grants permanent relief in the form of a final Order.
FACTS
Background
19. A little more than a week ago, on the evening of Friday, September 16, 2011, I was served with a civil Injunction Against Harassment (Exhibit 1) ostensibly in accordance with Arizona Revised Statute § 12-1809. (But plainly not, as I will show later.) The Petitioner was a Melody Thomas-Morgan, former known as Melody Anne Bodine. The Injunction was issued ex parte, dated April 10, 2011, but not served until now, more than five months later. The Injunction had not been modified or amended from the time issued to the time served.
20. Miss Thomas-Morgan lives in Prescott, Arizona. I live in Phoenix. I have only visited Prescott to observe trials involving Miss Thomas-Morgan. She had previously sought and obtained an Injunction against me in January 2009, which expired January 2010. Since I did not harass anyone, I challenged the Injunction in the Prescott Justice Court. And lost.
21. In her petition for her second Injunction (Exhibit 2), Thomas-Morgan's sole proximate reason for seeking a new Injunction is because, in March 2011, presumably while 'googling' for her name, she discovered a blog titled That Woman Jezebel. She (falsely) swears upon oath the blog talks about her "death." (Please note that these are her quotes. She consistently put "death" in quotes in her petition.) The blog had been up since December 2010, four months prior to her petition for an Injunction Against Harassment.
22. Miss Thomas-Morgan's former husband, Mr. Bodine, contacted me in April telling me his wife had gone to the Prescott Police to report me for blogging about her. Consistent with this, in her petition she writes, "The City Prosecutor and the Prescott Police Dpt have recommended that I seek these Orders because of the on-going nature of Mr. Palmer's harassment (esp. w/regards to my "death.") (Id.) Again, she put "death" in quotes. In her petition, she states "I come before this Court because again, Peter Michael Palmer (aka Mike Palmer) about my 'death.'" [sic] Later, she restates "Again, currently, Mr. Palmer is talking about my 'death.'"
23. She refers the court to "several posts from Mr. Palmer's Blog." And again, "Mr. Palmer's outrageous blog."
24. It is true that the blog That Woman Jezebel talks about spiritual life and spiritual death. Spiritual "death" as in "The wages of sin is death," the second step in the Evangelical's "Roman Road" (Romans 6:23a in the Bible). Spiritual "death" as also in the well known verse (among born-again Christians): "As for you, you were dead in your transgressions and sins . . ." (Ephesians 2:1) In fact, the header in the blog says, "On the life... err, death and death of Mrs. Melody Anne Bodine, 6/25/1982 - 4/21/2009." The "birth date" of 6/25/1982 is the date of the former Mrs. Bodine's wedding, when she became Mrs. Bodine. The "death date" is the date a court granted her a divorce from her husband. On that day she ceased to be Mrs. Bodine in God's eyes, and in fact, a few months later, she ratified that by legally changing her name to Thomas-Morgan and ceased to be Mrs. Bodine in the eyes of the world. Thus, she is "twice dead," a quote from Jude 12 in the Bible.
25. It is not true that the blog ever mentions the "death" of Miss Thomas-Morgan. Nor are the Bodine children ever mentioned.
First Amendment Protected Speech, Part I
26. In March 2011, the U.S. Supreme Court ruled 8-1 that "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate." (Quoting Justice Roberts in Snyder v. Phelps, et al. 562 U. S. ____ (2011)) The case cited involved religious free speech. (The infamous Westboro Baptist church.)
27. Similarly, in mid-July 2011, the Ninth Circuit reversed a criminal conviction of a man who blogged about 50 caliber bullets and a presidential candidate. Ostensibly real, serious "death threats." But as Chief Judge Kozinski wrote, "Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate . . . given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment." United States v. Bagdasarian, 2011 WL 2803583 (9th Cir. July 19, 2011)
28. Taking the blog That Woman Jezebel in the context of all of the relevant facts and circumstances, given any reasonable construction of the words in the postings, the statements in the blog do not constitute a “true threat,” and they are therefore protected speech.
29. Even Miss Thomas-Morgan sees this. In her petition, she consistently puts the word "death" in quotes, making it clear that even she understands the word is not to be taken literally and knows there is no true threat.
30. Ironically, while crafting this complaint, I received a Cease & Desist letter from Thomas-Morgan's attorney. In the letter (Exhibit 3), Thomas-Morgan, through her attorney, acknowledges the blog is First Amendment protected speech, stating ". . . you certainly have the right to blog about your various fixations with Ms.
Thomas-Morgan . . . "
31. Considering the popularity of blogging and micro-blogging (i.e., Twitter) in American society, it is in the public interest for this court to rule that blogging is protected speech and cannot be considered harassment.
First Amendment, Part II
32. Moreover, the blog is clearly spiritual, of a Christian nature, and clearly says so. In fact, the title is a quotation from Jesus' warning a wayward church, recorded in The Revelation 2:20: "Nevertheless, I have this against you: You tolerate that woman Jezebel, who calls herself a prophetess. By her teaching she misleads my servants into sexual immorality . . . "
33. In the last paragraph of the C&D letter above, Thomas-Morgan's attorney acknowledges the Christian nature of the blog by asking for a post about the meaning of "the Gospel of John 8:7." [sic]
34. Despite these admissions by Thomas-Morgan that the blog is protected speech and an exercise of religion, she did not move to withdraw her Injunction, as the law provides. I was served with the Injunction on the very day the C&D letter was dated.
35. The Injunction orders that I have no contact with Thomas-Morgan or her two minor children and one who is of majority. The Injunction also prohibits me from attending the apostate First Baptist Church in Prescott or the Yavapai County Courthouse, arguably at any time. (When Thomas-Morgan is present. But I cannot know when she is present. Given her pattern and practice of running to the police at the slightest provocation, the risk of being arrested is too great for me to chance going to the courthouse at all.)
The Second Amendment
36. In addition to the usual "no contact" provisions, the Injunction, absent lawful basis, also prohibits me from possessing firearms, via a checkbox on the form.
37. In the mind of judges and clerks in Arizona, Title 13 Criminal Orders of Protection (A.R.S. § 13-3602)—which does allow firearm restrictions—and Title 12 Civil Injunctions Against Harassment (A.R.S. § 12-1809)—which does not—are considered interchangeable. Staff lump them together, calling them "Protective Orders." Commensurate with this mentality, the Arizona Supreme Court issues the same Petition form for both actions, a check mark being the only differentiator between a criminal and civil matter. (See Exhibit 2.)
38. But like sharks and dolphins, these are two different animals. They may look similar, they may perform similar functions, but one is a lot meaner than the other. An OOP is a Title 13 criminal matter ("Domestic Violence"), very serious, complete with NCIC reporting. (Police officers can lose their job for this.) An Injunction Against Harassment is supposed to be a lot friendlier, merely a Title 12 procedural (i.e., civil) matter, with no firearm nor NCIC provisions. Unfortunately, a lot of what is in § 13-3602 has genetically altered § 12-1809, turning it into a monster. (See Exhibit 4.)
39. The first Injunction (cited in para. 9) did not prohibit me from possessing firearms, but after I challenged the Injunction in court, JP Judge Mary E. Hamm sua sponte prohibited me from possessing firearms. The paperwork to invoke this action is colloquially, but incorrectly, known as a "Brady Restriction" (Exhibit 4) It's incorrect because Brady only applies to domestic partners, per the Criminal Code, A.R.S. 13-3602(G)(4). There are no "crimes of passion" in Civil Injunctions.
40. Arizona law on Civil Injunctions, A.R.S. § 12-1809 (Exhibit 5) does not provide for firearm restrictions. Nowhere in the law are the words "firearm" or "weapon." Subsequently, I filed a petition to rescind JP Judge Hamm's Brady Restriction.
41. I prevailed, and JP Judge Hamm rescinded her order on May 2009. (Exhibit 6)
NCIC - No Due Process. Irreparable harm
42. Until I challenged it, the unlawful Brady Restriction ordered my name be added to the Federal National Crime Information Center database (NCIC). Upon information and belief, my name has again been added to the NCIC database as a proximate result of this second civil Injunction. By being prevented from owning a firearm anywhere in the United States, I have effectively been reduced to a felon. I am prevented from employment where a weapon is required. Criminal repercussions without the due process of a criminal trial.
43. Interestingly, when one is arraigned on a criminal charge, if told they cannot possess firearms as a condition of release, one is not entered into the NCIC database.
44. After JP Judge Hamm rescinded her order, concerned whether my name had really been removed from the NCIC database, I contacted a personal friend who is an Assistant Attorney General for the State of Arizona working in Law Enforcement. I asked about FOIA'ing the NCIC database. The Ass't AG told me the NCIC database was "confidential" and was not subject to FOIA requests. The Ass't AG also told me the NCIC database was notoriously full of errors.
45. Some time after that, while filing papers with the Federal Clerk in the Phoenix Courthouse, I overheard a woman request an NCIC audit on a party. Curious, since I had been told the database was not 'queryable,' I asked her about it. She introduced herself as an Assistant Federal Prosecutor (wore a badge) and confirmed what my Ass't AG friend had told me. If I recall correctly, she said the NCIC database was so corrupt, it was standard mandatory federal court procedure to perform an audit of the database at the end of any deportation hearing to check for veracity.
46. I presume the court is aware of this, so I ask the court to take judicial notice that the NCIC database is a mess, subject to error, not viewable, and therefore, not correctable by ordinary citizens. There is no remedy or redress for having one's name improperly stuck in the NCIC database.
47. Even if I challenge Judge Jones on the unlawfulness of Brady in a civil Injunction and prevail again, there is still the potential for irreparable harm if I fall through the cracks and my name is not removed from the NCIC database. I would immediately be arrested as a felon for violating a non-existing court order, without remedy. Even carrying a copy of the court's order vacating the Brady will not be enough to convince a cop whose computer tells him otherwise. (He could say I "Photoshopped" a fake court order.)
Exhausting Administrative Remedies
48. Sometime after I prevailed in rescinding JP Judge Hamm's unlawful Brady, I tripped across the Arizona Supreme Court's Arizona Rules of Protective Order Procedure (ARPOP) on the Internet. (Pertinent pages in Exhibit 6)
49. The ARPOP is a compendium of the laws regarding criminal orders of protection and civil injunctions against harassment. It is a handbook, of sorts, to give judges guidance when needed. For example, it defines a "series of acts"—which is not codified by the Legislature—as "two." But the ARPOP is not law.
50. While it cites "Rules," all the rules in the ARPOP refer back to the Arizona Revised Statutes for support. All but one.
51. Rule 6.E.4.e.2 of the ARPOP says, "The judicial officer shall ask the plaintiff about the defendant's use of or access to weapons or firearms. The judicial officer may prohibit the defendant from possessing, purchasing or receiving firearms and ammunition for the duration of the Injunction Against Harassment." But there is no A.R.S. cite for this "Rule," because the law the Arizona Legislature gave us (§ 12-1809) simply does not provide for firearm restrictions in Injunction law. Thus, by making up "law," the Arizona Supreme Court is usurping power granted to the Arizona Legislature, in violation of Article III of the Arizona Constitution. (Distribution of Powers.)
52. Trying to be a good citizen and trying to save my fellow man from the same harm, I asked the Public Information Officer of the Arizona Supreme Court about this. She informed me that our Supreme Court had a public forum, whereby anyone could petition the court for a rule change.
53. Dutifully, in December 2009, I filed an emergency petition in the forum, asking the court to rescind Rule 6.E.4.e.2 in the ARPOP since it violated the gun right aspects of the U.S. Constitution, the Arizona Constitution, and had no lawful basis for the rule. (Exhibit 8)
54. On August 31, 2010, the Arizona Supreme Court "rejected" my petition without comment.
55. Nevertheless, on September 7, 2010 I received some "side-channel" encouragement in the form of an email from Ellen Crowley, Chief Staff Attorney of the Arizona Supreme Court:
The justices asked me to let you know that, although your proposal in this matter was rejected, the Court believed some of your argument deserved further consideration. Therefore, the matter has been referred to the State Bar Family Law Practice and Procedure Committee to consider and recommend to the Court standards to guide judges in their decision whether to prohibit possession of firearms during the pendency of an injunction against harassment.
This email from the justices shows that even defendants believe my arguments have merit! Since the time of my petition, I have discovered nine constitutional violations that accrue as a proximate result of the defendants' act, which are presented under Causes of Actions. Therefore, I am likely to prevail in this complaint.
56. Sadly, as of this date, Arizona Supreme Court internal Rule 6.E.4.e.2. has not been repealed and still does not conform with Arizona law. As a proximate consequence, I again find myself the victim of an unlawful court order.
57. The Arizona Supreme Court has a procedure for adopting / changing rules on an emergency basis.
Restoring/Preserving the Status Quo
58. The Arizona Legislature, along with Governor Brewer, recently affirmed our cherished right to keep and bear arms without infringement, allowing Arizona residents to carry firearms without requiring background checks, fingerprinting, etc.
59. As it pertains to the status quo, except for the short suspension of my Second Amendment right due to JP Judge Mary Hamm's unlawful action, and a short suspension when I was prohibited from carrying as a release condition in a matter of "criminal faxing," I have carried a firearm ever since moving to Arizona, approximately thirty years, without incident.
60. The criminal faxing charge was dismissed in early November 2009. From that time until last week, I have carried a firearm.
61. Miss Thomas-Morgan obtained her Injunction in April but did not serve it until last week. I have carried a firearm during that time. I haven't been to Prescott since her last trial, in January. You can be sure Thomas-Morgan would have called her friends in the Prescott Police had there been the slightest provocation. (As when she went to them about the blog.) It's not germane to this federal matter since she's not a defendant, but no harm has come, or will come, to Thomas-Morgan from plaintiff. There is no legal reason to not restore the status quo.
Civil Injunction. No justice. No remedy
62. Truly, Arizona's Civil Injunction procedure is patently unconstitutional. And truly, it does not conform with the Federal system. They are in sharp contrast. Here, in the Federal Court, Injunctions are an "extraordinary remedy," whereas, in Arizona, Civil Injunctions are handed out for the asking, whether they comply with law or not. (As in this instant matter and most infamously, Michael Roth's Injunction in Quartzsite, Arizona, where Mr. Roth was deprived of his Second Amendment right simply because he called a Councilman a "turd.") In the Federal Court, an Injunction maintains the status quo. In Arizona, Injunctions upset the status quo. In the Federal Court, ex parte Injunctions expire in 14 days. In Arizona, they last for a year. In the Federal Court, there is a balancing test typically employed to determine whether to issue an injunction, where the defendant's Fifth Amendment due process rights are weighed (heavily) against the immediacy of the harm allegedly done to the plaintiff. In Arizona, one citizen can swear out a false petition with no consequences, and totally ex parte, deprive another citizen of his constitutional rights! (And force defendants in an Injunction to incur attorney fees with no remedy for recovery.) THAT's harassment!
63. In an attempt to mitigate this unconstitutional practice of "guilty until proven innocent," Arizona ostensibly guarantees the defendant in an Injunction a speedy trial (within ten days of request) to challenge and vacate an Injunction. However, that is illusionary and not a proper remedy.
64. At my first Injunction hearing, JP Judge Mary Hamm summarily suspended the Rules of Civil Procedure (in violation of A.R.S. § 22-211), telling me from the bench, "this isn't a trial." So not even judges believe these are real trials in Civil Injunctions. They are just illusions.
65. Even if Judge Jones chooses to conform to the law and grants me legitimate trial, ten days is not enough time to make a zealous defense. For example, in my case, there would be several pretrial motions that would need to be filed, which, with the back and forth of Response & Reply, can easily extend time to months before trial. Record requests, say from the P.D. also cause delay. Furthermore, if the issuing judge does not vacate the Injunction, the appeal process takes even longer. In my instant case, I would have to appeal to the Arizona Court of Appeals. By the time that is heard, the Inunction could well have expired, making the exercise pointless. Given all this, there is no viable remedy to challenge an Injunction, despite appearances otherwise.
66. In fact, because I am prevented from being in the Yavapai County Courthouse when Miss Thomas-Morgan is there, I am prevented from doing any legal research on the clerk's computers or the law library there, since I can never know when Thomas-Morgan will be in the building. Further, a strict reading of the Injunction says I cannot even face my accuser in court! As such I have no remedy at the State level. This is a de facto violation of due process.
67. Even though I prevailed once in rescinding an unconstitutional Brady prohibition and should not have to fight the same battle again, because the Arizona Supreme Court has not changed its "Rules," Judge Jones can insist he's following the "law" if he abides by the Supreme's handbook. Plaintiff has been frustrated by the Supreme Court in seeking remedy.
68. Given these several Constitutional deprivations of due process by way of Arizona Civil Injunction procedure, plaintiff will ask this court to declare Arizona's Injunction law, A.R.S. § 12-1809 patently unconstitutional. Since it is only judicial officers in Arizona who issue Civil Injunctions, defendants, and by extension, all those under them, are directly responsible for enforcing Injunctions. They can be enjoined by this court from issuing Injunctions by declaring the pertinent sections of the ARPOP unconstitutional.
Meets the Standard of Review for TRO's
69. Quoting a federal judge's boilerplate, "the purpose of a TRO is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment. The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction."
70. Me speaking: The status quo is that, for all this time until now, I have been able to carry a firearm. It is a Constitutional right, both Federal and State. If I am maimed or murdered because I cannot defend myself with a firearm, that would be an irreparable loss of rights.
71. "A party seeking injunctive relief under Fed.R.Civ.P. Rule 65 must show 'that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'"
72. Me: The defendants are acting absent law. They have no defense. Further, even defendants have admitted some of my earlier, less developed arguments have merit. How much more now with nine more counts against them? Therefore, I am likely to succeed. Check. Given the violence in the Phoenix Metroplex, I am likely to suffer irreparable harm by not being able to defend myself with a firearm. Plaintiff has been the victim of felony aggregated assault once. "Check." Since the Arizona Supreme Court has gone "rouge" and is operating outside law, granting this Injunction will prevent the rights of other Arizona residents from being similarly, unlawfully violated. Therefore, granting this TRO is in the public interest.
73. “Therefore, ‘serious questions going to the merits’ and a hardship balance that tips sharply towards the plaintiff can support issuance of an injunction, so long as the plaintiff also shows a likelihood of irreparable injury and that the injunction is in the public interest.”
74. In this matter, the score is eleven to nothing, in my favor. Defendants have no law on their side to defend themselves and suffer no hardship by being ordered to conform with existing law.
Declaratory and Injunctive Relief Allegations
75. An actual and substantial controversy exists between plaintiff and defendants as to their respective legal rights and duties. Plaintiff contends that I (or my loved ones) face an imminent threat of harm if the Civil Injunction against me is not overturned or modified, and that the Injunction violates the U.S. and Arizona Constitution in many ways. Defendants will continue to enforce their rule unless found to be unconstitutional and baseless by someone higher than they.
76. In violating plaintiff's rights under the U.S. and Arizona Constitution, defendants have acted and will continue to act under color of law.
77. Having already petitioned the Arizona Supreme Court, which admits there are merits to my argument but refuses to correct its error, plaintiff has no plain, speedy and adequate remedy at law, other than the relief requested in this complaint.
78. Plaintiff is entitled to a declaration that a Second Amendment deprivation via the Arizona Supreme Court's Arizona Rules of Protective Order Procedure is unconstitutional on its face and is entitled to an Order immediately, preliminarily and permanently enjoining such.
79. Similarly, plaintiff is entitled to a declaration that issuing an Injunction as a sole and proximate result of exercising protected speech is unconstitutional on its face and is entitled to an Order immediately, preliminarily and permanently enjoining such.
CAUSES OF ACTION
COUNT ONE
42 U.S.C. § 1983 - FIRST AMENDMENT
(Defendant Jones)
80. The foregoing facts are repeated and incorporated as if fully set forth herein.
81. The First Amendment of the U.S. Constitution says in part: "Congress shall make no law . . . abridging the freedom of speech . . ."
82. By issuing a Civil Injunction solely on a complaint of something blogged, and considering the U.S. Supreme Court and Ninth Circuit's rulings cited previously, what was blogged is "protected speech," Judge Jones abridged plaintiff's freedom of speech and thus violates plaintiff's First Amendment right to Free Speech.
COUNT TWO
42 U.S.C. § 1983 - FIRST AMENDMENT
(Defendant Jones)
83. The foregoing facts are repeated and incorporated as if fully set forth herein.
84. The First Amendment of the U.S. Constitution says in part:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .
85. Judge Jones issued an Injunction due to what was written on an Evangelical blog. By definition, evangelists "preach." We are not silent.
86. By issuing a Civil Injunction on a complaint of something blogged that is clearly religious in nature, Judge Jones is essentially prohibiting free exercise of religion and thus violates plaintiff's First Amendment right to freely exercise his (Evangelical) religion.
COUNT THREE
42 U.S.C. § 1983 - SECOND AMENDMENT
(All defendants)
87. The foregoing facts are repeated and incorporated as if fully set forth herein.
88. The Second Amendment of the U.S. Constitution says in part: ". . . the right of the people to keep and bear Arms, shall not be infringed."
89. The U.S. Supreme Court has recently been affirmed that these rights accrue to individual citizens of the United States. (As opposed only to those in a "well-regulated Militia.")
90. By issuing an order to revoke plaintiff's right to keep and bear Arms absent a lawful basis, Judge Jones has violated plaintiff's Second Amendment right.
91. Likewise, by promulgating an internal Rule which has no lawful basis, the Justices of the Arizona Supreme Court are complicit in this violation.
COUNT FOUR
VIOLATION OF ARTICLE II, § 26 OF THE ARIZONA CONSTITUTION
(All defendants) 92. The foregoing facts are repeated and incorporated as if fully set forth herein.
93. Article 2, § 26 of the Arizona Constitution says in part,
The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired . . .
94. By issuing an Injunction absent a lawful basis, defendant Jones unlawfully deprived plaintiff his constitutional right to bear arms in defense of himself.
95. Likewise, by promulgating an internal Rule, which has no lawful basis, the Justices of the Arizona Supreme Court are complicit in this violation.
COUNT FIVE
VIOLATION OF ARTICLE III OF THE ARIZONA CONSTITUTION
(All defendants) 96. The foregoing facts are repeated and incorporated as if fully set forth herein.
97. Article 3 of the Arizona Constitution titled "Distribution of Powers" says:
The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.
98. There is no mention of firearms in A.R.S. § 12- 1809, the law the Arizona Legislature gave us and the court. Yet the Judicial branch (i.e., defendants), has essentially created a law on its own, by fiat, thus wrongly exercising the power of the Legislative branch and therefore, is in violation of the State Constitution.
COUNT SIX
VIOLATION OF ARTICLE II, § 8 OF THE ARIZONA CONSTITUTION
(Defendant Jones)
99. The foregoing facts are repeated and incorporated as if fully set forth herein.
100. Article 2, Section 8 of the Arizona Constitution titled "Right to privacy" says: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
101. There are no requirements in Arizona law to register a used or gifted firearm or to report the purchase or ownership of ammunition.
102. Plaintiff was ordered by defendant to "surrender [firearms or ammunition] to the Yavapai County Sheriff's office," a government agency.
103. There is no mention verbiage in A.R.S. § 12- 1809 to sustain this order. Thus, by ordering plaintiff to surrender private property to a government agency, defendant disturbed my private affairs absent law.
COUNT SEVEN
42 U.S.C. § 1983 - FOURTEENTH AMENDMENT
(Defendant Jones)
104. The foregoing facts are repeated and incorporated as if fully set forth herein.
105. The Fourteenth Amendment of the U.S. Constitution says in part, "nor shall any State deprive any person of life, liberty, or property, without due process of law;"
106. An ex parte action that deprives a person of property is, by definition, an action without due process of law. In this instant matter, when Judge Jones issued an ex parte Injunction against plaintiff, he deprived plaintiff of property (his firearm) solely on the word of one person.
107. Arizona's attempt to mitigate this constitutional violation by offering defendants in an Injunction a hearing within ten business days does not ameliorate this violation on its face. As with irreparable harm in Free Speech complaints, each day of a deprivation of rights is considered a count. How much more here?
108. Nor does Arizona's attempt to mitigate this constitutional violation provide time for a zealous defense, a necessary element of due process.
109. In short, Arizona's Civil Injunction law inherently deprives Arizona residents of due process should they be targeted.
COUNT EIGHT
VIOLATION OF ARTICLE II, § 4 OF THE ARIZONA CONSTITUTION
(All defendants)
110. The foregoing facts are repeated and incorporated as if fully set forth herein.
111. Article 2, Section 4 of the Arizona Constitution titled "Due process of law" says: "No person shall be deprived of life, liberty, or property without due process
of law."
112. As in Court Seven, an ex parte action that deprives a person of property is, by definition, an action without due process of law. In this instant matter, when Judge Jones issued an ex parte Injunction against plaintiff, he deprived plaintiff of property (his firearm) solely on the word of one person.
113. Arizona's attempt to mitigate this constitutional violation by offering defendants in an Injunction a hearing within ten business days does not ameliorate this violation on its face.
114. Nor does Arizona's attempt to mitigate this constitutional violation provide time for a zealous defense, a necessary element of due process of law.
COUNT NINE
42 U.S.C. § 1983 - FOURTEENTH AMENDMENT
(Defendant Jones)
115. The foregoing facts are repeated and incorporated as if fully set forth herein.
116. The Fourteenth Amendment of the U.S. Constitution says in part, "nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws."
117. Civil Injunction law in Arizona is a one sided affair, both in theory and in practice. It is almost always started ex parte.
118. As the Injunction against Michael Roth in Quartzsite, Arizona demonstrated, a crazy man can tell a judge that someone called him a "turd," can cite that singular event (even though Arizona law requires a series of acts), and can tell the judge that he (the petitioner) is seeing a psychiatrist and suffers from PTSD (so according to Arizona law, A.R.S. §12-2202, cannot give testimony—i.e., cannot legally swear out a petition.) Yet the petitioner was still granted an Injunction against Michael Roth.
119. In this instant matter, Miss Thomas-Morgan lied to Judge Jones by telling him the blog That Woman Jezebel talked about her "death." Moreover, as her quotes around the word "death" show, she knew full well that there was no real threat to her safety. Nor does the blog mention her minor children. Yet Judge granted the Injunction for her and her children anyway. He did not sanction Thomas-Morgan for perjury.
120. There are no penalties to the petitioner for this or for falsifying a petition. Yet in the Quartzsite example, Mr. Roth had to hire a lawyer at great expense to defend himself from these baseless accusations.
121. Arizona Injunction law does not provide for recovery of fees when challenging a lying petitioner and a fraudulent Injunction.
122. Therefore, a petitioner can come to the court with all sorts of wild and crazy claims and suffer no harm. In contrast, anyone accused by a petitioner suffers immediate and irreparable harm without recompense. Thus, there is no equal protection of the law in Arizona Civil Injunctions.
COUNT TEN
42 U.S.C. § 1983 - FIFTH AMENDMENT
OR ALTERNATIVELY FOURTEENTH AMENDMENT
OR ALTERNATIVELY BOTH
(All defendants)
123. The foregoing facts are repeated and incorporated as if fully set forth herein.
124. The Fifth Amendment of the U.S. Constitution says in part, "nor shall any person . . . be deprived of life, liberty, or property, without due process of law."
125. The Fourteenth Amendment is like it.
126. Arizona Injunction law does not provide for a firearm restriction in A.R.S. § 12-1809. It does not provide for "Brady Restrictions" on the defendants in an Injunction. Nor does it provide for putting one's name on the federal NCIC database.
127. The NCIC database, by definition, being federal, crosses state lines and moves this matter from merely a state issue to a federal one, invoking the Fifth Amendment. This may invoke more violations of Constitutional rights of which pro se litigant is not yet aware.
128. I have been prevented from owning a firearm in any state or any federal district, such state or district which might not recognize Arizona Civil Injunction law and/or may otherwise allow me to own a firearm. Defendants have, absent law, deprived plaintiff of owning property in any other state or federal district in the Union without due process.
COUNT ELEVEN
42 U.S.C. § 1983 - FIRST AMENDMENT
(All defendants)
129. The foregoing facts are repeated and incorporated as if fully set forth herein.
130. The First Amendment of the U.S. Constitution says, in part,
Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
131. My name has been added to the NCIC database, absent any lawful basis.
132. When this matter is settled and the unlawful weapon restriction is over, I can never know if my name has been cleared from the NCIC database.
133. If, at some time, I have the misfortune to find that my name is on the database (say, during a traffic stop, when I have my firearm), I will suffer harm as a result.
134. If my name is left in the NCIC database, I can never remove my name from the database.
135. Thus, as a proximate result of unlawfully placing my name in the NCIC database, defendants have abridged this First Amendment right to redress for grievances and, in all probability, have caused permanent harm to plaintiff.
RELIEF SOUGHT
WHEREFORE, in light of the foregoing facts and arguments, plaintiff requests that:
A. The court assume jurisdiction over this matter.
B1. The court declare the instant Injunction Against Harassment against plaintiff unconstitutional because it chills plaintiff's several First Amendment rights.
B2. The court issue an Order instructing Judge Jones to vacate the Injunction immediately for the above cause.
C1. Even if the court grants Items B, which arguable renders this Item moot, or if it does not grant Items B: that the court declare the Injunction's prohibition against plaintiff possessing firearms unconstitutional.
C2. If the court does not grant Items B, then the court issue an Order instructing Judge Jones to modify the Injunction immediately, removing the firearm restriction for the cause above.
D1. That the court declare the Arizona Supreme Court's ARPOP Rule 6(E)(4)(e)(2) unconstitutional and issue an Order instructing the Justices to repeal Rule 6(E)(A)(e)(2) immediately and promulgate such change immediately to all Arizona judicial officers via the Supreme Court's emergency rule change process.
D2. The court declare that, as currently practiced in Arizona, A.R.S. § 12-1809 Civil Injunctions Against Harassment is inherently unconstitutional (especially when granted ex parte) as it and inherently deprives defendants of due process and/or a zealous defense and provides no remedy for abuse by way of collecting attorney's fees for defendants.
D3. The court enjoin Arizona Supreme court, and by extension, all judicial officers in Arizona, from issuing said Injunctions.
D4. If the court does not grant Items D2 & D3, then to prevent the unlawful prohibition against firearms from happening again to my fellow citizens by mistake, that the court instruct the Justices to issue two different, distinct petition forms throughout the courts of Arizona: One form for Title 13 (Criminal) Orders of Protection which allows for weapon restriction, the other for Title 12 (Civil) Injunctions which do not.
E1. The court order Judge Jones to remove my name from the NCIC record forthwith.
E2. This court grants me an audit of my NCIC record (via the Federal Clerk's office) in one month from the date of this court's final Order, to ensure that my record has, in fact, been expunged for this instant and the previous unconstitutional action against me. If my NCIC record has not been expunged upon inspection, I request the court direct the controlling agency to expunge my record and that I be allowed another audit in another month to ensure the record has been expunged. To rinse and repeat as necessary.
F. This court overlook technical defects and construe this complaint liberally for this pro se litigant. I am sure I have made inartful errors. I may not have connected all the dots, but I believe the dots are here. In light of the urgency of this matter and the irreparable harm that can come to me and my loved ones by delay, I ask the court to overlook technical errors at this juncture which might otherwise preclude issuing an Emergency TRO. I will amend this complaint to cure defects as soon as possible upon guidance from the court.
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