It quotes Judge Emmet Ronan, Chair of the Arizona Supreme Court's Committee on the Impact of Domestic Violence and the Courts (CIDVC), stating that a Brady Disqualification cannot be issued ex parte, as Prescott did.
Despite Judge Ronan's clear statement, citing federal law (and, oh yeah, due process rights in the constitution), Prescott had not immediately acted to rescind its unlawful action.
PREAMBLE
Please know that Judge Markham is disqualified from hearing this petition due to conflict of interest. (See his Order, Appendix A.)
Plaintiff filed an ex parte civil Injunction Against Harassment on April 11, 2011. Ordinarily, such an Injunction would have lapsed by now. However, the Injunction was not served on defendant until five months later, until September 16, 2011. Therefore, this remains a live controversy.
Pro se defendant Peter M. Palmer files this emergency petition asking the court to simply correct its error and immediately rescind its unlawful Brady Disqualification against defendant, as it did in the past with this same error with this same defendant and plaintiff. (See Exhibit 1, a previous order from this court granting a similar petition to rescind Brady Disqualification three years ago.) Quite simply, Brady does not apply because this is not a domestic violence matter.
Please note that defendant is NOT invoking his right to challenge or modify the Injunction proper at this time. Defendant is not asking for a hearing at this time. (Defendant reserves that right for a later time.) Nor is a hearing necessary to adjudicate this petition. Defendant is simply asking the court to comply with state and federal law, to rescind its unlawful Brady Disqualification, per the memorandum and point of authorities below.
MEMORANDUM AND POINTS OF AUTHORITIES
This matter arises out of an ex parte hearing for a civil Injunction Against Harassment where the court issued an ex parte injunction prohibiting defendant from possessing firearms, issued on April 11, 2011, but not served on defendant September 16, 2011. As such, it remains in effect until September 16, 2012.
Defendant has subsequently learned from the Arizona Department of Public Safety (DPS) that, as a proximate result this court's action, defendant's name has been entered into the FBI's National Crime Information Center (NCIC) Database, listing him as a "criminal Domestic Violence offender" and "Brady Positive." Defendant has essentially been reduced to a criminal—a felon (prohibited possessor) by way of a civil action. Without a trial! Defendant asks the court to correct it's erroneous notification to the Yavapai County Sheriff.
First and foremost, the controlling law for civil Injunctions against Harassment, A.R.S. § 12-1809, does not provide for firearm restrictions. The words "firearm" or "weapon" are not in the statute. Therefore, Brady cannot apply.
Consistent with this, 18 U.S.C. § 922—the very law this court cites as the basis for the “Notice to Sheriff of Brady Disqualification" it transmitted to the Yavapai County Sheriff—applies only to “intimate partners.” Per 18 U.S.C. § 921(a)(32), “the term ‘intimate partner’ means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.”
But per plaintiff's sworn petition, plaintiff and defendant have never been "intimate partners." Defendant is merely plaintiff's ex-husband's friend. This is not a criminal DV situation, but a civil IAH. As such, there is no basis for Brady Disqualification and therefore, Brady cannot apply.
Even if Brady could apply to civil injunctions, it cannot apply ex parte. Judge Ronan, chair of the Arizona Supreme Court's Committee on the Impact of Domestic Violence and the Courts, has unequivocally stated that, by law, "Brady also has due process requirements that must be met. Brady applies only if the [criminal domestic violence] protective order was issued at a hearing of which the defendant received actual notice and in which he or she had an opportunity to participate. 18 U.S.C. § 922(g)(8). Therefore, Brady cannot apply to an ex parte hearing, regardless of the parties’ relationship." And yet, contrary to Judge Ronan and federal law, this court has applied Brady to an ex parte hearing, depriving defendant of due process.
Thus, for any or all these reasons, when this court sent a Brady Notification to the Yavapai County Sheriff's office listing the defendant as "Brady Positive" and a "Criminal Domestic Violence offender," this court erred and violated state and federal law. Defendant simply asks this court to comply with the law.
REQUESTED RELIEF
Therefore, because Brady does not apply here, defendant simply asks the court to correct its error and immediately order the Yavapai County Sheriff Office to remove defendant's name from the NCIC, as it did previously in May 2009. (Per Exhibit 1.)
Additionally, given the prior history that's accrued, defendant has learned from DPS that, even when the Sheriff sends a "Brady Negative" notification to the FBI, the black mark never goes away. According to the DPS, even though my previous Brady Notification was rescinded, I still show on the NCIC as having a history of domestic violence. But I'm still a virgin! I've never been domestic with anyone. Unless this court takes affirmative action to correct the record, I will be forever listed as a prior criminal domestic violence offender as a result of mere civil injunctions. As a result, I will suffer whenever a criminal background checked is performed on me. (I have confirmed that the NCIC is not correctable by private individuals. Like the TSA's "No Fly list," the record is not subject to FOIA requests.)
Therefore, since it is this court who has caused this harm, I ask the court to order the sheriff's office to pursue the procedure to correct the errant NCIC record, to purge my name from the FBI's NCIC database (and also Arizona's Criminal Justice Information System (ACJIS)) in this instant action and the May 2009 one, both caused by unlawful Brady Notifications against me by this court.
Defendant requests an Order from the court rescinding Brady, and a copy of orders from this court instructing the Yavapai County Sheriff that Peter Michael Palmer's criminal "domestic violence" history be purged from the FBI's and State's record. Last, defendant requests confirmation from the Yavapai County Sheriff that his name has, in fact, been purged from the NCIC.
No comments:
Post a Comment