In a way they make it easier to defend when they do stuff like this, as he was able to show at three places why the case the Ninth cited for dismissal is totally off-point here.
Again, interestingly, Tom Horne (the Attorney General for Arizona) had no comment on this Motion. We hope someone read him the riot act on this lawsuit and he's backed down from defending the Justices. (Although he has not filed a Notice of Withdrawal.) Too bad he didn't to the right thing from the beginning.
(We hope to post the PDF version, with colorful footnotes, real soon.)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER MICHAEL PALMER,
Plaintiff - Appellant
KENTON D. JONES, et al.,
Defendants - Appellees.
APPELLANT'S MOTION FOR RECONSIDERATION
Pursuant to Rule 27-10, plaintiff/appellant asks the Court to reconsider or at least explain its Order of February 28, 2012 (Attachment A) stating that "the questions raised in this appeal are so insubstantial as not to require further argument."
Frankly, that can't be right. If nothing else, there haven't been any questions raised on appeal because I haven't filed an appeal brief, let alone an "unimpressive" one. (Quoting from the Circuit's standard of U.S. v. Hooton.) If my case truly were insubstantial, then one of the two District Court judges would have thrown it out as frivolous. Or the motions panel would have ruled it was insubstantial before ordering me to show cause about immunity. Frankly, the motions panel is moving the goal post on me in what appears to be an attempt to spike this ball.
If I could, I would argue in this Motion that the Court must have overlooked or misunderstood the facts and points of law in this case. But that's impossible to do since the Court did not articulate any basis for its Order.
Nevertheless, I will argue why the Court's standard of Hooton is wholly inapposite here and why the District Court's dismissal should be reversed. I will also argue why the District Court should be ordered to grant me an immediate Preliminary Injunction, as per my Zeroth Amended Complaint. (Doc. 5.)
After the District Court dismissed my §1983 action suggesting, in dicta, the defendants have judicial immunity, I filed a somewhat inartful Emergency Motion for a Preliminary Injunction and/or a Notice for Priority Status. Instead of granting either, the motions panel ordered me to show cause as to why the defendants aren't immune from suit. Which I did. But now, after having successfully shown cause (i.e., scored a touchdown), the panel has moved the goal post on me, saying my case is insubstantial, citing the ubiquitous U.S. v. Hooton. But Hooton is totally off point in my matter.
First, Hooton only applies to nonemergency situations. But mine IS an emergency situation. I filed an Emergency Rule 27-3 Certification saying so. Because I am—and countless other Arizonans are—currently suffering legal irreparable harm (and may suffer literal irreparable injury—death) due to an actual deprivation of a constitutional right (directly attributable to the defendants and only the defendants), my case cannot be insubstantial.
Further, absent law (and contrary to law), my name has been put on the FBI's National Crime Information Center's database as "Brady Positive." (Colloquially known as a "Brady Disqualification.") I am currently listed as a criminal domestic violence offender by way of an ex parte civil action. (Doc. 31 at 2:16-21.) This emergency situation is the fault of the Justice defendants who, through their judicial officers, are promulgating—and enforcing—an internal "administrative" Rule of theirs as substantive law on Arizona citizens. (And thus are violating Article III of the Arizona constitution too.)
The Justice defendants have unconstitutionally deprived me of my constitutional right to "to bear arms in defense of himself" (and my family and friends), in violation of Article 2, § 26 of the Arizona Constitution. Please, I am not a federal judge who has the federal government defending him. I have to defend myself and others in an evil world.
In addition to the constitutional deprivations, the Brady Disqualification is a violation of federal law at two points. Per 18 U.S.C. § 922(g)(8), Brady cannot apply to an ex parte hearing. Second, Brady only applies in criminal Domestic Violence situations, not civil injunctions.
Now, this Circuit has repeatedly affirmed that "an alleged constitutional infringement will often alone constitute irreparable harm." Consistent with this, this Circuit enjoined our Arizona Governor from depriving citizens of our Fourth Amendment right in SB 1070. Presumably this Circuit would likewise enjoin our Governor for a violation of the First or Fifth Amendment, or the money saving act of quartering our National Guardsmen in people's homes in times of peace. (A violation of the Third Amendment.) Mine is not an alleged infringement, but an actual one! A Second Amendment infringement is not distinct from a First, Third, Fourth or Fifth. Nor should the fact that it's the Judicial Branch who infringes on a right, and not the Executive, distinguish how this court acts.
Second, Hooton says "Motions to affirm should be confined to appeals obviously controlled by precedent." But there is no obvious precedent for my case where a State Supreme Court has gone rouge! Where Justices made up—and enforce—their own law! Even if, ordinarily, the Justice defendants had immunity, immunity cannot apply in this case of first impression. This case must be heard.
Last, Mr. Hooton asked the appeal court for something it could not give, which made his appeal insubstantial on its face. I haven't yet filed a brief, which makes the instant Order premature. But if I did, I would ask this Court to reverse the District Court's dismissal and remand the case, something this Court can do.
Therefore, for all these reasons, Hooton is wholly inapposite at this time and the Court must reverse its February 28 Order.
Furthermore, this exercise has obviated the need for me to file an appeal. Since I have shown in my response to the OSC that the defendants are not immune from suit, my response effectively "short-circuits" the need for a formal appeal. That is, my primary issue on appeal would have been "Did the district court abuse its discretion when it dismissed the case on the basis of judicial immunity?" This court, by its silence, has conceded that the answer to the question is "Yes," making a formal appeal unnecessary.
Moreover, in addition to being a genuine 27-3 Emergency, your Rule 27-12 requires this appeal be expedited since "in the absence of expedited treatment, irreparable harm may occur or the appeal may become moot." I've already pointed out I am currently suffering harm and, unable to defend myself, that harm may truly become irreparable. But also this appeal will become moot on September 12, 2012 when the one year injunction against me expires. (Assuming another unlawful civil injunction is not sought against me by my antagonist.)
Therefore, citing FRAP 2 for authority to suspend the rules to expedite this highly unusual matter of first impression, I ask this Court to craft an Order immediately reversing the dismissal by the District Court and further ordering the District Court to grant me an immediate preliminary injunction so as to restore my constitutional rights and the status quo, enjoining the defendants from enforcing their administrative Rule 6(E)(4)(e)(2) of their Rules of Protective Order Procedure as law in Arizona. This is no different from what this Court did with Arizona's SB 1070, except the government defendants are different here.
Pro se plaintiff is aware of this court's stated prejudice that "motions for clarification, reconsideration or rehearing of a motion are disfavored by the Court and are rarely granted." And that "The filing of such motions is discouraged." (Note 4 to Rule 27-1) Nevertheless, this Court has left me no choice. It's not in the best interest of judicial economy to petition the SCOTUS for a writ of certiorari without any articuable facts from this Circuit about its Order. If the Court denies my motion for reconsideration (i.e., will not reverse itself and the district court), then I ask the court for "clarification" please, thoroughly explaining its reasons for its February 28 Order invoking Hooton.
I submit that if the Court denies my motion for reconsideration, it has effectively implicated the First Amendment by foreclosing on my right to redress, which will become an issue for review before the Supreme Court. (I cannot sue the defendants in their own court. This has to be tried in federal court.)
Really, this is a simple, albeit politically-incorrect case. Please grant me justice. If the Court needs a definition of justice, it is simply what you would want if this happened to you.
I have contacted opposing counsel. She has "no comment" on this Motion.
Dated March 13, 2012.
Certificate of Service:
Copies of the foregoing mailed under protest via
U.S. Mail on March 13, 2012 to:
Pamela J. Linnins
1275 W. Washington
Phoenix, AZ 85007