For Immediate Release
Soliciting Intervenors in the federal case, Palmer v. Jones et al. 11-CV-1896, in the District Court of Arizona
++++++++++++++++++
In honor of Michael Roth, of Quartzsite Arizona, who had his 2nd Amendment right revoked simply for calling someone a "turd," Mike Palmer is suing the Justices of the Arizona Supreme Court, in their official capacity, to get his 2nd Amendment right back.
As with Roth, Palmer recently had his 2nd Amendment right revoked via a Civil Injunction Against Harassment - for blogging! In addition, Palmer's name has been put on the FBI's National Crime Information Center database, essentially reducing him to a criminal felon, all via a purely civil procedure! And, as with Roth, an ex parte (one sided) action at that.
Worse, there is no law in Arizona allowing courts to do this. The Arizona Supreme Court made up its own "law!" (So this is also a Constitutional issue in Arizona - the Court, by making law, is violating Arizona's Article III, Distribution of Powers. Your Legislator should be involved in this suit.)
Palmer fought this once in court. And won. After finding the cause of the confusion, he petitioned the Arizona Supreme Court to repeal its unlawful rule. The Court refused, but admitted Palmer's arguments had some merit and would be forwarded to a subcommittee for consideration.
Nothing happened, so now a Federal Civil rights lawsuit to force the Arizona Supreme Court to obey the law. The case is still in its infancy. A complaint has been filed. It is 11-CV-1896, Palmer v. Jones, et al. in the District Court of Arizona.
Palmer is soliciting Intervenors for his suit. Others who have, or are, the victims of the same constitutional deprivation; gun right groups who wish to protect their members in the future; Congressmen and Senators of Arizona.
Palmer can be reached at 602-513-3738.
Monday, October 31, 2011
Friday, October 21, 2011
Judge Snow: "What I have written, I have written."
Our blogger got a terse, less than one page order from Judge Snow, rejecting the Motion for Reconsideration. Judge Snow didn't even bother to deal with the alternative Motion to Clarify. In his short Order affirming his previous ruling, his reasoning, in essence was, "Because I said so." (We empathize with Dr. Orly Taitz and her efforts to get justice in court.)
Why is that that, just last month, Judge Snow granted a Preliminary Injunction for Arizona residents who sued a branch of government (the executive) for an alleged constitution deprivation (First Amendment) but won't grant our blogger the same? Our blogger is also suing a branch of government (the judicial) for an actual constitutional deprivation (Second Amendment). One would think if our dumb pro se's motion was so refutable it would have been an easy matter for Judge Snow to refute at least a part of it.
So what to make of Judge Snow's short order? While you cannot make an argument from silence, our blogger thinks Judge Snow's silence will make it easier to refute him in an Emergency Interlocutory Appeal to the Ninth's Motion Panel, which is planned next. (Notice of Appeal filed today.) It turns out that Judge Snow overlooked a very on-point ruling from the Ninth Circuit, recently cited when the Ninth Circuit shot down parts of Arizona's controversial SB1070.
To quote the Ninth,
If any attorneys have jumped through the hoops of actually filing an Emergency Appeal to the Ninth's Motion Panel, our blogger would appreciate some guidance. (It's amazing that Jared Loughner, the Tucson Murderer, has already had three or four.) Our blogger can write the arguments and certifications. But it's the little things like having the wrong color paper can trip one up. So any guidance from someone who's been there, done that would be appreciated. Please leave your contact info via a comment. (All comments are moderated, so your info will not be published.)
We'll plan to post the Appeal as soon as it's filed.
Why is that that, just last month, Judge Snow granted a Preliminary Injunction for Arizona residents who sued a branch of government (the executive) for an alleged constitution deprivation (First Amendment) but won't grant our blogger the same? Our blogger is also suing a branch of government (the judicial) for an actual constitutional deprivation (Second Amendment). One would think if our dumb pro se's motion was so refutable it would have been an easy matter for Judge Snow to refute at least a part of it.
So what to make of Judge Snow's short order? While you cannot make an argument from silence, our blogger thinks Judge Snow's silence will make it easier to refute him in an Emergency Interlocutory Appeal to the Ninth's Motion Panel, which is planned next. (Notice of Appeal filed today.) It turns out that Judge Snow overlooked a very on-point ruling from the Ninth Circuit, recently cited when the Ninth Circuit shot down parts of Arizona's controversial SB1070.
To quote the Ninth,
The Ninth Circuit Court of Appeals has stated "'that an alleged constitutional infringement will often alone constitute irreparable harm.'" Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Assoc. Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equal., 950 F.2d 1401, 1412 (9th Cir. 1991)). Indeed, if an individual or entity faces the imminent threat of enforcement of a preempted state law and the resulting injury may not be remedied by monetary damages, the individual or entity is likely to suffer irreparable harm. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (stating that a federal court may properly enjoin “state officers ‘who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution’” (quoting Ex parte Young, 209 U.S. 123, 156 (1908)); New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 366-67 (1989) (suggesting that irreparable injury is an inherent result of the enforcement of a state law that is preempted on its face); Edmondson, 594 F.3d at 771 (concluding that plaintiff is likely to suffer irreparable injury if enforcement of state law that is likely preempted by IRCA and IIRIRA is not enjoined); Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858, 878 (N.D. Tex. 2008) (concluding that there is a likelihood of irreparable injury if enforcement of a city ordinance that is preempted by the INA is not enjoined).This paragraph from the Ninth will be the final trust of our blogger's interlocutory appeal. He has not suffered an alleged constitutional infringement, but quoting the Second Amendment, our blogger's right to keep and bear arms has in fact been infringed. And that absent state law!
If any attorneys have jumped through the hoops of actually filing an Emergency Appeal to the Ninth's Motion Panel, our blogger would appreciate some guidance. (It's amazing that Jared Loughner, the Tucson Murderer, has already had three or four.) Our blogger can write the arguments and certifications. But it's the little things like having the wrong color paper can trip one up. So any guidance from someone who's been there, done that would be appreciated. Please leave your contact info via a comment. (All comments are moderated, so your info will not be published.)
We'll plan to post the Appeal as soon as it's filed.
Monday, October 10, 2011
What is Judge Snow thinking?
On Friday, our blogger filed an Emergency Motion to Reconsider Judge Snow's refusal to grant a TRO.
There are quite a few logical inconsistencies in Judge Snow's Order. The fatal one is that, if one were to follow Judge Snow's order (that he will abstain from this matter, letting the state court rule first), then not even the Justices of the Arizona Supreme Court are legally allowed to hear this case! (See Fatal Flaw.)
Another inconsistency: just last month, Judge Snow granted a TRO to Arizona residents who sued the executive branch for alleged constitutional deprivations. Whereas, in this instant matter, Judge Snow denied a TRO to a resident suing the judicial branch for actual constitutional deprivation! (See "As to Clarification.") So, what's the difference?
This seems prejudicial. Our blogger has asked Judge Snow to clarify the differences. (If any.) In fact, our blogger points out a few other basic errors by Judge Snow. These hint at prejudice. (See Endnotes)
It seems like this may be a case of first impression, headed for an Emergency Action in the Ninth Circuit if Judge Snow doesn't reverse himself. (If any attorneys reading this have jumped through the procedural hoops of getting an Emergency TRO in the Ninth (as with SB 1070 or Jared Lee Loughner), we could sure use some guidance. We can make the legal arguments. Just need to know how to file the paperwork properly.)
Also, it occurs to us that our blogger and Michael Roth can't be the only ones who have suffered a constitutional deprivation caused by the Arizona Supreme Court's basis Rule. There must be thousands.
If you have suffered an unlawful gun deprivation as a result of an Injunction Against Harassment and are interested in participating in this lawsuit, please leave your contact information in a comment. Perhaps we can move this to "Class Action" status and make it more important than just one man's battle. (You can remain anonymous if you comment.) Only attorneys can get any money for participating, but you'll be helping your fellow man.
Below are excerpts from the Motion for Reconsideration. Or you can download the full PDF version of the Motion, complete with footnotes and exhibits, both which add a lot of color to this picture.
The need for emergency consideration continues by extension since TRO's are emergency matters and because Plaintiff's life is in danger every day the status quo is not restored, every day he is deprived of his right to defend himself, his loved ones, or his fellow man. There is real, literal potential irreparable harm here. In fact, this past Sunday, there were two reported murders in Phoenix, one within a mile of Plaintiff.
OVERVIEW
It occurs to pro se Plaintiff that suing the Justices of a state Supreme Court for constitutional violations may be a case of first impression and may set a precedent showing the Abstention Doctrine can never be an option in such a matter and a federal court must always take jurisdiction in such a matter.
The Court has denied granting Plaintiff a TRO in this matter, ultimately choosing to abstain from exercising jurisdiction, citing Railroad Comm 'n of Texas v. Pullman Co. Ignoring for now that Railroad is yellow-flagged on Westlaw and is not on point for this instant matter [EN1], abstention is not an option. Plaintiff will show that the Court's decision to abstain in this unique matter, with these unique defendants, violates an axiom of jurisprudence and is, therefore, illogical. Not only in theory, but in practice. Therefore, the Court's ruling cannot be correct and must be reconsidered.
Once Plaintiff has shown that error, Plaintiff will politely point out other manifest errors in the Court's Order, to aid the Court's reconsideration to grant Plaintiff his requested TRO.
Because the Standard of Review to issue a Preliminary Injunction is essentially the same as for a Temporary Injunction, it seems best to make a motion for reconsideration now, in the interest of judicial economy, since, if unchallenged, the Court will likely make the same ruling in the upcoming hearing for a Preliminary Injunction.
While Plaintiff can see that he may have to appeal to the Ninth on an Emergency basis for remedy, this need not be the case. For ironically, this same Court (GMS), just last month, granted a TRO for Arizona residents who also sued a branch of the state government, citing similar constitutional deprivations. But in that matter, this Court did not abstain. Nor did this Court tell those Plaintiffs to take their constitutional issues to the state judicial branch first. This Court took jurisdiction and applied the standard of review to grant a TRO. As both cases are the same in the abstract, both suing government agents for harmful unconstitutional deprivations, this Plaintiff is at a loss to understand why he did not get the same outcome as the others. If the Court will not reconsider and grant Plaintiff a TRO, then I ask the Court to clarify the distinctions between the two cases.
MEMORANDUM OF POINTS AND AUTHORITIES
Fatal Flaw, Part I
The Court's decision "to abstain from exercising its jurisdiction until the state courts have had the opportunity to [rule]" is fatally flawed and cannot stand because it violates an ancient axiom of jurisprudence.
It is axiomatic that “[a] fair trial in a fair tribunal is a basic requirement of due process.” Consistent with this, it is also axiomatic, and recently reaffirmed in the SCOTUS, that "no man is allowed to be a judge in his own cause." (Id.)
But this Court is telling Plaintiff to take this matter to the defendants he is suing, and let the defendants—who are judges—be judges in their own cause! Literally! This is not right!
Let's apply this to real life to see how it would work in a recent high profile case in the District of Arizona. Consider the ACLU's challenge to Arizona's controversial SB 1070. Had the ACLU moved this Court for a Preliminary Injunction to stop SB 1070 (as, in fact, it did in Judge Bolton's court), this Court would tell the ACLU to take up its fight against SB1070 first with the Executive, exhausting its remedies there. (Perhaps by proving to the Executive that parts of SB1070 are unconstitutional? But of course, the Executive obviously believed SB 1070 was constitutional or else it wouldn't have approved it.) Or this Court would tell the ACLU to vote the Executive out of office and change the law that way. Or this Court would tell the ACLU to take its constitutional challenge of SB 1070 to the Arizona Supreme Court first. And only if those remedies fail, then, and only then, will the federal court intervene.
But, quite properly, the judge in this District did not abstain from jurisdiction. Nor did the judge in this District tell the ACLU to exhaust its remedies first by challenging SB 1070 in the Arizona Supreme Court before going federal. (Which, in contrast, is what this Court is telling me to do.) No, there were alleged federal constitutional issues which were rightly tried in this District Court and upheld in the Ninth Circuit. (I parenthetically add that the federal court blocked parts of SB 1070 before it went into effect, before anyone suffered actual harm. I will touch on this later in discussing the Second Amendment and irreparable harm.)
One hopes even the defendant judges will see the illogic in this Court's abstention ruling. For, by law (Rule 2.11 of the Arizona Code of Judicial Conduct), Defendants must recuse themselves from sitting on this matter because they have a personal bias, since they are the defendants I am suing. And so both in theory and practice, there can be no remedy at the state level when a state's highest court judges are sued for constitutional violations. They cannot judge their own cause and consistent with this, they are prevented from hearing their own case. As there is no higher court in the state, suing a state's highest judges may make this case unique and a case of first impression, making federal intervention mandatory.
Fatal Flaw, Part II
Further, this Court is saying that the defendant Justices should determine, for example, whether they are in violation of Count Five for violating Article III of the Arizona Constitution (Distribution of Powers) for making and enforcing a "law." I respectfully submit that it makes no sense to ask a State court if it is violating the State's constitution.
The Judicial Branch is the only branch in Arizona government that has the authority to rule as to what is constitutional or not. And the State Supreme Court is the highest court in the state. But this federal court is ultimately telling Plaintiff that I must first go to the Justices of the Arizona Supreme Court to see if they will rule as unconstitutional a Rule they have already issued as constitutional. Again, to require the defendant Justices to rule on whether they are obeying the state constitution is to allow them to be judges in their own cause.
Besides, I've already challenged the Supreme Court on the unconstitutionality of its unlawful rule in a public forum. Why would the result be any different in another pubic forum, especially when they're being sued?
No, abstention is not viable here. There is no one in the state who can review the actions of the state's highest court. Therefore, the federal court must take jurisdiction whenever a state court is accused of making an unconstitutional law.
Court narrowly focused
If I may politely say, the Court did not articulate all the facts of this case in its Analysis and has completely overlooked the 800 pound gorilla in the room. Namely, if I read it right, the Court is narrowly focusing on only First Amendment issues while totally ignoring the larger, 800 pound seminal issue of the Second Amendment deprivation via the Arizona Supreme Court's ARPOP Rule 6(E)(4)(e)(2).
Pro se Plaintiff is learning to think like a lawyer and can kinda-sorta see the Court's narrowly tailored point, that, ignoring the fact that defendants unlawfully deprived me of my constitutional Second Amendment right—that if this were solely a First Amendment issue—this matter might not yet be ripe for federal intervention because I might be able to prevail challenging the Injunction in a state hearing, citing the on-point cites from the SCOTUS and the Ninth (ZAC, para 26 & 27). If so, we might not be here today.
But this matter is ripe because defendants did, absent law, deprive me of my Second Amendment right. This is incontrovertible and this is what makes this a federal issue. Besides, the Arizona Supreme Court's unconstitutional rule affects all Arizonans, making this ripe with public interest.
Focusing on the Second Amendment
From the Court's claim that I have not met the burden of Rule 65(b) (Doc. 4, p2, lines 6-7), the implication seems to be that an unconstitutional Second Amendment deprivation does not constitute irreparable harm. I will show later, based on a recent ruling from this same Court granting a TRO for a similar unconstitutional deprivation, that a Second Amendment must constitute irreparable harm, just as a Fourth or Fifth Amendment deprivation was so deemed to negate portions of Arizona's SB 1070.
Perhaps the time is ripe for a court to rule on this. It was only recently that the SCOTUS reversed the Liberal's belief that the Second Amendment was not a fundamental, individual right but only attached to Militias. (McDonald v. Chicago.) So, for the record, Plaintiff needs clarification from this Court in the form of a yes or no ruling: Does an unconstitutional deprivation of one's Second Amendment right constitute irreparable harm, especially when Plaintiff has changed his "course of conduct" as a proximate result of being deprived of his right to keep and bear arms? This is seminal to consideration of this instant TRO. (The court may wish to extend "harm" to a fellow citizen who may be harmed during an armed car-jacking if another good citizen cannot help because he has been deprived of his constitutional right to bear arms.)
More ripe fruit
Back to ripeness and the need for federal intervention: Counts Five, Six, Eight. Ten, and Eleven, which are a proximate result of the Arizona Supreme Court's unlawful Rule 6(E)(4)(3)(2) can only be resolved in federal court. There is no higher court in the state that can hold the state Supreme Court accountable to la or adjudicate these matters.
Public Interest
Further, the motivation behind this federal suit is not simply to remedy my constitutional rights to keep and bear arms in an Injunction, but, in the public interest, to ensure no Arizonan suffers harm in the future. There is a huge element of public interest here. This Court needs to intervene to order the Justices of the Arizona Supreme Court to repeal its baseless ARPOP Rule 6(E)(4)(3)(2).
In fact, while writing this motion, Phoenix radio station KFYI talk show host Mike Broomhead covered this story. Nationally, this case has been reported on the Internet by World Net Daily. Arizona's Mr. Broomhead, having read the amended complaint for himself, expressed his concern that, as a controversial radio talk show host, he could find himself similarly facing an unconstitutional deprivation of his gun rights simply because a listener got a judge to sign off on an ex parte petition.
As to Clarification
Given all the above, this Court's Order cannot stand. Naturally, Plaintiff desires that this Court will reconsider and reverse itself and grant Plaintiff his TRO. But if it does not, Plaintiff asks this Court to rehearse the Standard of Review for a TRO as it did when it granted a TRO in a similar matter last month. And if it does not grant the TRO, to clarify the reason(s) why not.
I refer the Court to UNITED FOOD AND COMMERCIAL WORKER LOCAL 99 et al., v (Governor) Jan BREWER, CV-11-921-GMS. (Exhibit A)
In United, as here, Arizona residents sued a branch of the state government in its official capacity. Plaintiffs there sued the executive, whereas I am suing the judicial. This Court accept jurisdiction in United. But not here.
At issue there was a state law which was to go into effect, that Plaintiffs alleged was unconstitutional. Here, Plaintiff is challenging a "state 'law,'" already in effect, promulgated and enforced by the judicial branch. (Which, on its face, according to both common sense and Article III of the Arizona Constitution (Distribution of Power) is patently unconstitutional. Pro se Plaintiff surmises it was never foreseen that a Supreme Court would make and enforce a law, and this may be a first.) This Court accepted jurisdiction in United. But not here.
In United, as here, Plaintiffs alleged a violation of a right enumerated in the Bill of Rights. Even though Plaintiffs in United had not suffered harm (the law not having been put into effect) this Court ruled that a "court may hear a constitutional challenge to a law that has not yet been enforced when 'the plaintiff intends to engage in "a course of conduct arguably affected with a constitutional interest" and that there is a credible threat that the challenged provision will be invoked against the plaintiff.'"
Here, Plaintiff has, in fact, engaged in a course of conduct that has, in fact, been affected with constitutional interests (ZAC para 6). Here, the threat has actually been invoked against the Plaintiff. The Court accepted jurisdiction in United. But not here.
In United, the Court noted that “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" and that "the harms they would suffer should SB 1365 go into effect are irreparable per se."
This pro se Plaintiff is at a loss to understand how, if the loss of First Amendment freedoms (for even minimal periods of time) constitutes irreparable injury, the same is not true for the loss of Second Amendment freedoms. Especially in light of this Court's observation from the above case that one does not have to prove harm but that it is only likely. (“that irreparable injury is likely in the absence of an injunction.”) Especially since, as I've argued before, the result of not being able to defend oneself (or others) from violent crime can result in literal irreparable harm. Not only to Plaintiff but to the public.
In the above case, the Court took the time to rehearse the legal standards in issuing a Preliminary Injunction. And granted the Injunction. Here, the Court is silent, simply stating I have not met the burden of satisfying Rule 65(b). Unlike other federal judges in my research (Chief Judge Ted Stewart of the District of Utah, for example), this Court did not document any specific defects, nor offer guidance as to how this pro se can cure those defects. Here the Court simply jumps from "not met the burden of Rule 65(b)" to abstention.
I am at a loss to understand how two similar cases can have two antithetical outcomes, especially since, arguably, mine has more meat showing harm and unconstitutional deprivations. It the difference in the parties?
Endnotes
The Court may skip to the "Wherefore" if it wishes. What follows should be moot, since I have shown that abstention is not viable because state judges cannot be judges in their own cause. Nevertheless, because a right is deemed waived if no objection, and because an argument not raised in District Court is waived on appeal, for the sake of completeness in anticipation of an appeal:
Taken if true, Part I
It is my understanding, as a pro se litigant, that Plaintiff's "factual allegations are taken as true and construed in the light most favorable to the plaintiff." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). But when I tell the Court, as a statement of fact, that the ten day "expedited" hearing to challenge a civil Injunction against Harassment is patently unconstitutional and therefore, not a remedy, this Court tells me that's false. (Doc. 4, p2, line 26 to p3, line 6.) There are two issues here: 1) the fallacy that truth will prevail in court and 2) the fallacy that ten days is enough time to gather material evidence for a defense.
As to the first, while I suppose I should be pleased that this Court believes my legal constitutional arguments (which ones? First Amendment? Second Amendment?) should prevail if I challenged the Injunction in state, that is no guarantee and not a viable remedy. This Court knows that courts are arbitrary and capricious. Sadly, our justice system is often like a game of Poker. You can have the best hand. You can play your cards just right. But you can still lose.
To wit, not even federal judges in different Districts agree on the constitutionality of ObamaCare, even when considering the same arguments. Sometimes different plaintiffs get different results from the same judge. Having a "legitimate basis" or having the truth does not guarantee one will prevail in court. (Cf. Pilate v Jesus.) I proved this when I petitioned the Arizona Supreme Court to repeal it's unlawful Rule 6(E)(4)(e)(2). My "legitimate" argument was rejected, even though the Justices acknowledged some of my arguments were worthy of consideration.
Further, challenging the lawfulness of Rule 6(E)(4)(e)(2) in any lower court is pointless. A lower court cannot (and will not) invalidate a Rule made by the Supreme Court.
As to the second fallacy, this Court knows that, if I had to appeal a lower court's decision, appellate courts do not accept new evidence or new facts. A defendant has to have ALL his ducks in the initial appearance to make them available on appeal. I have already told this Court why ten days does not constitutionally qualify as "due process." In my amended complaint, I added the fact that Mr. Bodine would have to move the Arizona court for leave to Intervene (or something like that) because defendant Jones' Injunction unlawfully modifies father's visitation rights. (See ZAC, FN 11 and Exhibit B, attached, for support.) As a new fact, I called Mr. Bodine the other day and asked him how long he thought it would take him to prepare such a motion. Never having done it before, he guessed "three weeks." Further, he travels a lot on business, so even if his ex-wife does not challenge his motion for leave to Intervene, it may be a while before a trial can be had where he can participate. And I would need to subpoena some of the adult children to be hostile witnesses, which takes time. As I told this Court in my complaint, there is no way a zealous defense can be mounted in ten days and Arizona's expedited hearing is illusionary.
Moreover, this Court has forgotten the realities of litigation. If I lose in the first round, it will cost me a few hundred dollars for a certified transcript of the court proceedings, a necessity in Arizona for an appeal. But there is no remedy to recover this cost from a petitioner if I prevailed in vacating the Civil Injunction. So an appeal automatically causes irreparable harm to Plaintiff. This violates due process and equal protection under law. (It's not equal because petitioner can file before the court at no cost or bond requirement, but doing so can automatically cost a "victim" hundreds of dollars to challenge. Michael Roth (of Quartzsite), cited in my ZAC, paid an attorney $1000 to defend a vacated Injunction.)
Taken if true, Part II
Along similar lines (and please forgive me if I am wrong. It is hard to read inflection in the written word), this Court seems to question my claim that my name has been placed in the FBI's NCIC database. (Not that it "will be placed" as the Court said, but it has been placed. (Doc. 4. p2, line 24).)
Again, I assumed the Court would take what I said as true and did not think it would be necessary to supply this evidence. But in case there is genuine controversy here, I supply Exhibit C, a copy of JP Judge Mary Hamm's "Notice to Sheriff of Brady Disqualification."
Please see the line "and should be assigned a positive Brady Record Indicator in the Protection Order File of the National Crime Information Center database."
For the nth time, I point out that this is patently unlawful and a violation of my constitutional right to due process, since I was never served with, nor found to be in violation of, a Title 13 Criminal Order of Protection. There must be countless other Arizonan who have been victimized by the Arizona Supreme Court because of this. The federal court is the proper forum to stop the abuse.
Since putting my name in the database was the procedure in my first Injunction, there is good cause to believe it is still procedure and has happened again.
Even if , despite all the arguments above there was somehow a viable remedy at the state level to resolve all the constitutional claims here; or, even if, defendant Jones were to vacate the Injunction against me, the damage has been done. The State does not have the power to grant me an audit of the FBI's NCIC database, nor does the state have the power to order the FBI to remove my name from the database if stuck there. As far as I know, only a federal court can grant that remedy.
There are quite a few logical inconsistencies in Judge Snow's Order. The fatal one is that, if one were to follow Judge Snow's order (that he will abstain from this matter, letting the state court rule first), then not even the Justices of the Arizona Supreme Court are legally allowed to hear this case! (See Fatal Flaw.)
Another inconsistency: just last month, Judge Snow granted a TRO to Arizona residents who sued the executive branch for alleged constitutional deprivations. Whereas, in this instant matter, Judge Snow denied a TRO to a resident suing the judicial branch for actual constitutional deprivation! (See "As to Clarification.") So, what's the difference?
This seems prejudicial. Our blogger has asked Judge Snow to clarify the differences. (If any.) In fact, our blogger points out a few other basic errors by Judge Snow. These hint at prejudice. (See Endnotes)
It seems like this may be a case of first impression, headed for an Emergency Action in the Ninth Circuit if Judge Snow doesn't reverse himself. (If any attorneys reading this have jumped through the procedural hoops of getting an Emergency TRO in the Ninth (as with SB 1070 or Jared Lee Loughner), we could sure use some guidance. We can make the legal arguments. Just need to know how to file the paperwork properly.)
Also, it occurs to us that our blogger and Michael Roth can't be the only ones who have suffered a constitutional deprivation caused by the Arizona Supreme Court's basis Rule. There must be thousands.
If you have suffered an unlawful gun deprivation as a result of an Injunction Against Harassment and are interested in participating in this lawsuit, please leave your contact information in a comment. Perhaps we can move this to "Class Action" status and make it more important than just one man's battle. (You can remain anonymous if you comment.) Only attorneys can get any money for participating, but you'll be helping your fellow man.
Below are excerpts from the Motion for Reconsideration. Or you can download the full PDF version of the Motion, complete with footnotes and exhibits, both which add a lot of color to this picture.
11-CV-1896-PHX-GMS
PLAINTIFF'S EMERGENCY MOTION
FOR RECONSIDERATION
OR ALTERNATIVELY
MOTION FOR CLARIFICATION
OF JUDGE SNOW'S
DENIAL OF TRO
Pursuant to LRCiv 7.2(g), citing manifest error & new evidence; and in the interest of justice & judicial economy, Plaintiff moves Judge Snow to reconsider and reverse his Order denying Plaintiff's Temporary Restraining Order (Doc. 4). Or, alternatively, to state for the record where "Plaintiff has not met the burden of Fed.R.Civ.P 65(b)." (Id. p2, line 7) This Motion is supported by the following Memorandum of Points and Authorities as well as Plaintiff's recently filed Zeroth Amended Complaint ("ZAC," Doc. 5)PLAINTIFF'S EMERGENCY MOTION
FOR RECONSIDERATION
OR ALTERNATIVELY
MOTION FOR CLARIFICATION
OF JUDGE SNOW'S
DENIAL OF TRO
The need for emergency consideration continues by extension since TRO's are emergency matters and because Plaintiff's life is in danger every day the status quo is not restored, every day he is deprived of his right to defend himself, his loved ones, or his fellow man. There is real, literal potential irreparable harm here. In fact, this past Sunday, there were two reported murders in Phoenix, one within a mile of Plaintiff.
OVERVIEW
It occurs to pro se Plaintiff that suing the Justices of a state Supreme Court for constitutional violations may be a case of first impression and may set a precedent showing the Abstention Doctrine can never be an option in such a matter and a federal court must always take jurisdiction in such a matter.
The Court has denied granting Plaintiff a TRO in this matter, ultimately choosing to abstain from exercising jurisdiction, citing Railroad Comm 'n of Texas v. Pullman Co. Ignoring for now that Railroad is yellow-flagged on Westlaw and is not on point for this instant matter [EN1], abstention is not an option. Plaintiff will show that the Court's decision to abstain in this unique matter, with these unique defendants, violates an axiom of jurisprudence and is, therefore, illogical. Not only in theory, but in practice. Therefore, the Court's ruling cannot be correct and must be reconsidered.
Once Plaintiff has shown that error, Plaintiff will politely point out other manifest errors in the Court's Order, to aid the Court's reconsideration to grant Plaintiff his requested TRO.
Because the Standard of Review to issue a Preliminary Injunction is essentially the same as for a Temporary Injunction, it seems best to make a motion for reconsideration now, in the interest of judicial economy, since, if unchallenged, the Court will likely make the same ruling in the upcoming hearing for a Preliminary Injunction.
While Plaintiff can see that he may have to appeal to the Ninth on an Emergency basis for remedy, this need not be the case. For ironically, this same Court (GMS), just last month, granted a TRO for Arizona residents who also sued a branch of the state government, citing similar constitutional deprivations. But in that matter, this Court did not abstain. Nor did this Court tell those Plaintiffs to take their constitutional issues to the state judicial branch first. This Court took jurisdiction and applied the standard of review to grant a TRO. As both cases are the same in the abstract, both suing government agents for harmful unconstitutional deprivations, this Plaintiff is at a loss to understand why he did not get the same outcome as the others. If the Court will not reconsider and grant Plaintiff a TRO, then I ask the Court to clarify the distinctions between the two cases.
MEMORANDUM OF POINTS AND AUTHORITIES
Fatal Flaw, Part I
The Court's decision "to abstain from exercising its jurisdiction until the state courts have had the opportunity to [rule]" is fatally flawed and cannot stand because it violates an ancient axiom of jurisprudence.
It is axiomatic that “[a] fair trial in a fair tribunal is a basic requirement of due process.” Consistent with this, it is also axiomatic, and recently reaffirmed in the SCOTUS, that "no man is allowed to be a judge in his own cause." (Id.)
But this Court is telling Plaintiff to take this matter to the defendants he is suing, and let the defendants—who are judges—be judges in their own cause! Literally! This is not right!
Let's apply this to real life to see how it would work in a recent high profile case in the District of Arizona. Consider the ACLU's challenge to Arizona's controversial SB 1070. Had the ACLU moved this Court for a Preliminary Injunction to stop SB 1070 (as, in fact, it did in Judge Bolton's court), this Court would tell the ACLU to take up its fight against SB1070 first with the Executive, exhausting its remedies there. (Perhaps by proving to the Executive that parts of SB1070 are unconstitutional? But of course, the Executive obviously believed SB 1070 was constitutional or else it wouldn't have approved it.) Or this Court would tell the ACLU to vote the Executive out of office and change the law that way. Or this Court would tell the ACLU to take its constitutional challenge of SB 1070 to the Arizona Supreme Court first. And only if those remedies fail, then, and only then, will the federal court intervene.
But, quite properly, the judge in this District did not abstain from jurisdiction. Nor did the judge in this District tell the ACLU to exhaust its remedies first by challenging SB 1070 in the Arizona Supreme Court before going federal. (Which, in contrast, is what this Court is telling me to do.) No, there were alleged federal constitutional issues which were rightly tried in this District Court and upheld in the Ninth Circuit. (I parenthetically add that the federal court blocked parts of SB 1070 before it went into effect, before anyone suffered actual harm. I will touch on this later in discussing the Second Amendment and irreparable harm.)
One hopes even the defendant judges will see the illogic in this Court's abstention ruling. For, by law (Rule 2.11 of the Arizona Code of Judicial Conduct), Defendants must recuse themselves from sitting on this matter because they have a personal bias, since they are the defendants I am suing. And so both in theory and practice, there can be no remedy at the state level when a state's highest court judges are sued for constitutional violations. They cannot judge their own cause and consistent with this, they are prevented from hearing their own case. As there is no higher court in the state, suing a state's highest judges may make this case unique and a case of first impression, making federal intervention mandatory.
Fatal Flaw, Part II
Further, this Court is saying that the defendant Justices should determine, for example, whether they are in violation of Count Five for violating Article III of the Arizona Constitution (Distribution of Powers) for making and enforcing a "law." I respectfully submit that it makes no sense to ask a State court if it is violating the State's constitution.
The Judicial Branch is the only branch in Arizona government that has the authority to rule as to what is constitutional or not. And the State Supreme Court is the highest court in the state. But this federal court is ultimately telling Plaintiff that I must first go to the Justices of the Arizona Supreme Court to see if they will rule as unconstitutional a Rule they have already issued as constitutional. Again, to require the defendant Justices to rule on whether they are obeying the state constitution is to allow them to be judges in their own cause.
Besides, I've already challenged the Supreme Court on the unconstitutionality of its unlawful rule in a public forum. Why would the result be any different in another pubic forum, especially when they're being sued?
No, abstention is not viable here. There is no one in the state who can review the actions of the state's highest court. Therefore, the federal court must take jurisdiction whenever a state court is accused of making an unconstitutional law.
Court narrowly focused
If I may politely say, the Court did not articulate all the facts of this case in its Analysis and has completely overlooked the 800 pound gorilla in the room. Namely, if I read it right, the Court is narrowly focusing on only First Amendment issues while totally ignoring the larger, 800 pound seminal issue of the Second Amendment deprivation via the Arizona Supreme Court's ARPOP Rule 6(E)(4)(e)(2).
Pro se Plaintiff is learning to think like a lawyer and can kinda-sorta see the Court's narrowly tailored point, that, ignoring the fact that defendants unlawfully deprived me of my constitutional Second Amendment right—that if this were solely a First Amendment issue—this matter might not yet be ripe for federal intervention because I might be able to prevail challenging the Injunction in a state hearing, citing the on-point cites from the SCOTUS and the Ninth (ZAC, para 26 & 27). If so, we might not be here today.
But this matter is ripe because defendants did, absent law, deprive me of my Second Amendment right. This is incontrovertible and this is what makes this a federal issue. Besides, the Arizona Supreme Court's unconstitutional rule affects all Arizonans, making this ripe with public interest.
Focusing on the Second Amendment
From the Court's claim that I have not met the burden of Rule 65(b) (Doc. 4, p2, lines 6-7), the implication seems to be that an unconstitutional Second Amendment deprivation does not constitute irreparable harm. I will show later, based on a recent ruling from this same Court granting a TRO for a similar unconstitutional deprivation, that a Second Amendment must constitute irreparable harm, just as a Fourth or Fifth Amendment deprivation was so deemed to negate portions of Arizona's SB 1070.
Perhaps the time is ripe for a court to rule on this. It was only recently that the SCOTUS reversed the Liberal's belief that the Second Amendment was not a fundamental, individual right but only attached to Militias. (McDonald v. Chicago.) So, for the record, Plaintiff needs clarification from this Court in the form of a yes or no ruling: Does an unconstitutional deprivation of one's Second Amendment right constitute irreparable harm, especially when Plaintiff has changed his "course of conduct" as a proximate result of being deprived of his right to keep and bear arms? This is seminal to consideration of this instant TRO. (The court may wish to extend "harm" to a fellow citizen who may be harmed during an armed car-jacking if another good citizen cannot help because he has been deprived of his constitutional right to bear arms.)
More ripe fruit
Back to ripeness and the need for federal intervention: Counts Five, Six, Eight. Ten, and Eleven, which are a proximate result of the Arizona Supreme Court's unlawful Rule 6(E)(4)(3)(2) can only be resolved in federal court. There is no higher court in the state that can hold the state Supreme Court accountable to la or adjudicate these matters.
Public Interest
Further, the motivation behind this federal suit is not simply to remedy my constitutional rights to keep and bear arms in an Injunction, but, in the public interest, to ensure no Arizonan suffers harm in the future. There is a huge element of public interest here. This Court needs to intervene to order the Justices of the Arizona Supreme Court to repeal its baseless ARPOP Rule 6(E)(4)(3)(2).
In fact, while writing this motion, Phoenix radio station KFYI talk show host Mike Broomhead covered this story. Nationally, this case has been reported on the Internet by World Net Daily. Arizona's Mr. Broomhead, having read the amended complaint for himself, expressed his concern that, as a controversial radio talk show host, he could find himself similarly facing an unconstitutional deprivation of his gun rights simply because a listener got a judge to sign off on an ex parte petition.
As to Clarification
Given all the above, this Court's Order cannot stand. Naturally, Plaintiff desires that this Court will reconsider and reverse itself and grant Plaintiff his TRO. But if it does not, Plaintiff asks this Court to rehearse the Standard of Review for a TRO as it did when it granted a TRO in a similar matter last month. And if it does not grant the TRO, to clarify the reason(s) why not.
I refer the Court to UNITED FOOD AND COMMERCIAL WORKER LOCAL 99 et al., v (Governor) Jan BREWER, CV-11-921-GMS. (Exhibit A)
In United, as here, Arizona residents sued a branch of the state government in its official capacity. Plaintiffs there sued the executive, whereas I am suing the judicial. This Court accept jurisdiction in United. But not here.
At issue there was a state law which was to go into effect, that Plaintiffs alleged was unconstitutional. Here, Plaintiff is challenging a "state 'law,'" already in effect, promulgated and enforced by the judicial branch. (Which, on its face, according to both common sense and Article III of the Arizona Constitution (Distribution of Power) is patently unconstitutional. Pro se Plaintiff surmises it was never foreseen that a Supreme Court would make and enforce a law, and this may be a first.) This Court accepted jurisdiction in United. But not here.
In United, as here, Plaintiffs alleged a violation of a right enumerated in the Bill of Rights. Even though Plaintiffs in United had not suffered harm (the law not having been put into effect) this Court ruled that a "court may hear a constitutional challenge to a law that has not yet been enforced when 'the plaintiff intends to engage in "a course of conduct arguably affected with a constitutional interest" and that there is a credible threat that the challenged provision will be invoked against the plaintiff.'"
Here, Plaintiff has, in fact, engaged in a course of conduct that has, in fact, been affected with constitutional interests (ZAC para 6). Here, the threat has actually been invoked against the Plaintiff. The Court accepted jurisdiction in United. But not here.
In United, the Court noted that “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" and that "the harms they would suffer should SB 1365 go into effect are irreparable per se."
This pro se Plaintiff is at a loss to understand how, if the loss of First Amendment freedoms (for even minimal periods of time) constitutes irreparable injury, the same is not true for the loss of Second Amendment freedoms. Especially in light of this Court's observation from the above case that one does not have to prove harm but that it is only likely. (“that irreparable injury is likely in the absence of an injunction.”) Especially since, as I've argued before, the result of not being able to defend oneself (or others) from violent crime can result in literal irreparable harm. Not only to Plaintiff but to the public.
In the above case, the Court took the time to rehearse the legal standards in issuing a Preliminary Injunction. And granted the Injunction. Here, the Court is silent, simply stating I have not met the burden of satisfying Rule 65(b). Unlike other federal judges in my research (Chief Judge Ted Stewart of the District of Utah, for example), this Court did not document any specific defects, nor offer guidance as to how this pro se can cure those defects. Here the Court simply jumps from "not met the burden of Rule 65(b)" to abstention.
I am at a loss to understand how two similar cases can have two antithetical outcomes, especially since, arguably, mine has more meat showing harm and unconstitutional deprivations. It the difference in the parties?
Endnotes
The Court may skip to the "Wherefore" if it wishes. What follows should be moot, since I have shown that abstention is not viable because state judges cannot be judges in their own cause. Nevertheless, because a right is deemed waived if no objection, and because an argument not raised in District Court is waived on appeal, for the sake of completeness in anticipation of an appeal:
Taken if true, Part I
It is my understanding, as a pro se litigant, that Plaintiff's "factual allegations are taken as true and construed in the light most favorable to the plaintiff." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). But when I tell the Court, as a statement of fact, that the ten day "expedited" hearing to challenge a civil Injunction against Harassment is patently unconstitutional and therefore, not a remedy, this Court tells me that's false. (Doc. 4, p2, line 26 to p3, line 6.) There are two issues here: 1) the fallacy that truth will prevail in court and 2) the fallacy that ten days is enough time to gather material evidence for a defense.
As to the first, while I suppose I should be pleased that this Court believes my legal constitutional arguments (which ones? First Amendment? Second Amendment?) should prevail if I challenged the Injunction in state, that is no guarantee and not a viable remedy. This Court knows that courts are arbitrary and capricious. Sadly, our justice system is often like a game of Poker. You can have the best hand. You can play your cards just right. But you can still lose.
To wit, not even federal judges in different Districts agree on the constitutionality of ObamaCare, even when considering the same arguments. Sometimes different plaintiffs get different results from the same judge. Having a "legitimate basis" or having the truth does not guarantee one will prevail in court. (Cf. Pilate v Jesus.) I proved this when I petitioned the Arizona Supreme Court to repeal it's unlawful Rule 6(E)(4)(e)(2). My "legitimate" argument was rejected, even though the Justices acknowledged some of my arguments were worthy of consideration.
Further, challenging the lawfulness of Rule 6(E)(4)(e)(2) in any lower court is pointless. A lower court cannot (and will not) invalidate a Rule made by the Supreme Court.
As to the second fallacy, this Court knows that, if I had to appeal a lower court's decision, appellate courts do not accept new evidence or new facts. A defendant has to have ALL his ducks in the initial appearance to make them available on appeal. I have already told this Court why ten days does not constitutionally qualify as "due process." In my amended complaint, I added the fact that Mr. Bodine would have to move the Arizona court for leave to Intervene (or something like that) because defendant Jones' Injunction unlawfully modifies father's visitation rights. (See ZAC, FN 11 and Exhibit B, attached, for support.) As a new fact, I called Mr. Bodine the other day and asked him how long he thought it would take him to prepare such a motion. Never having done it before, he guessed "three weeks." Further, he travels a lot on business, so even if his ex-wife does not challenge his motion for leave to Intervene, it may be a while before a trial can be had where he can participate. And I would need to subpoena some of the adult children to be hostile witnesses, which takes time. As I told this Court in my complaint, there is no way a zealous defense can be mounted in ten days and Arizona's expedited hearing is illusionary.
Moreover, this Court has forgotten the realities of litigation. If I lose in the first round, it will cost me a few hundred dollars for a certified transcript of the court proceedings, a necessity in Arizona for an appeal. But there is no remedy to recover this cost from a petitioner if I prevailed in vacating the Civil Injunction. So an appeal automatically causes irreparable harm to Plaintiff. This violates due process and equal protection under law. (It's not equal because petitioner can file before the court at no cost or bond requirement, but doing so can automatically cost a "victim" hundreds of dollars to challenge. Michael Roth (of Quartzsite), cited in my ZAC, paid an attorney $1000 to defend a vacated Injunction.)
Taken if true, Part II
Along similar lines (and please forgive me if I am wrong. It is hard to read inflection in the written word), this Court seems to question my claim that my name has been placed in the FBI's NCIC database. (Not that it "will be placed" as the Court said, but it has been placed. (Doc. 4. p2, line 24).)
Again, I assumed the Court would take what I said as true and did not think it would be necessary to supply this evidence. But in case there is genuine controversy here, I supply Exhibit C, a copy of JP Judge Mary Hamm's "Notice to Sheriff of Brady Disqualification."
Please see the line "and should be assigned a positive Brady Record Indicator in the Protection Order File of the National Crime Information Center database."
For the nth time, I point out that this is patently unlawful and a violation of my constitutional right to due process, since I was never served with, nor found to be in violation of, a Title 13 Criminal Order of Protection. There must be countless other Arizonan who have been victimized by the Arizona Supreme Court because of this. The federal court is the proper forum to stop the abuse.
Since putting my name in the database was the procedure in my first Injunction, there is good cause to believe it is still procedure and has happened again.
Even if , despite all the arguments above there was somehow a viable remedy at the state level to resolve all the constitutional claims here; or, even if, defendant Jones were to vacate the Injunction against me, the damage has been done. The State does not have the power to grant me an audit of the FBI's NCIC database, nor does the state have the power to order the FBI to remove my name from the database if stuck there. As far as I know, only a federal court can grant that remedy.
Thursday, October 6, 2011
Thanks to Mike Broomhead (KFYI Radio)
KFYI radio's afternoon drive-time talk show host Mike Broomhead covers our blogger's story. (End of second hour, Thursday, October 6, 2011.)
Click here to for the mp3 file. It's nine minutes.
Click here to for the mp3 file. It's nine minutes.
Tuesday, October 4, 2011
"Illogical" - Judge Snow denies TRO
What do YOU think? Is Judge Snow passing the buck? Is the Arizona Supreme Court "too big to fail?" It this TRO politically incorrect?
UPDATE: After thinking more about Judge Snow's Order, we think we can distill this down to its fatal flaw. (And, simultaneously, address a commenter's concern.) This will be the basis for an Emergency Motion to Reconsider.
To review, the seminal issue in this case is the unconstitutional deprivation of gun rights. If our blogger had only been served an Injunction Against Harassment for blogging, with no 2nd Amendment deprivation, this would not be ripe yet for Federal court. It would initially be solely a State matter until the time the State refused to reverse. Then it would be ripe.
However, there is an unconstitutional deprivation here and the time is ripe. This deprivation cannot be argued in State court because it is the State defendants who made the unlawful "law!"
Remember, there is NO law in Arizona that allows a court to take away your guns in a civil Injunction Against Harassment. That is fact. But it is the Arizona Supreme Court that promulgates a false "law" that courts can. (And so the Supreme Court also violates Article 3, Division of Powers, of the Arizona Constitution. Who's going to adjudicate that issue? That is the sole prevue of the State judicial branch. See where this is going?)
Now, it's axiomatic in law that "no one can be a judge in their own cause." This was recently reaffirmed by the U.S. Supreme Court in Caperton v. Massey. But what Judge Snow is saying is that our blogger should take this matter before defendants at the State level and let the defendants, who literally are judges, to be judges in their own cause! (Ideally, they would have to recuse themselves from such a challenge. So then there really is no remedy at the State level.)
And that's the problem and that's why this needs to be in Federal Court.
Following Judge Snow's logic, in the ACLU's challenge to Arizona's SB1070, the ACLU would be told to take up its Preliminary Injunction against Arizona's SB1070 with the Legislature or Governor, proving to them that parts of SB1070 may be unconstitutional. That doesn't make sense - they're the ones who approved SB1070. And, as you know, the federal court (all the way to the Ninth Circuit) took jurisdiction (didn't say to take this matter to the Arizona Supreme Court because of the federal issues). In fact, the federal courts even blocked some parts of SB1070 before anyone was harmed. In our blogger's case, he's already suffered harm. But Judge Snow refuses to act. - end UPDATE.
Is Judge Snow saying that being murdered because you can't defend yourself isn't "irreparable injury, loss or damage"? While we understand his hesitancy to rule on the validity of the Injunction proper, he ignores the 800 pound gorilla in the room, that there is no law allowing judges in Arizona to deprive you of your 2nd Amendment right. There is no validity there.
He tells our blogger to take this up with the State. Which he has already done. What makes Judge Snow believe the Supreme Court will obey the law now if it didn't before? Our blogger has exhausted all his remedies. The State system is broken. The Federal court is the only thing that can fix it.
It seems to us there's a lot wrong with this ruling. It doesn't even consider the four prongs needed to grant a TRO.
Here is Judge Snow's short ruling denying our blogger's request for a TRO.
UPDATE: After thinking more about Judge Snow's Order, we think we can distill this down to its fatal flaw. (And, simultaneously, address a commenter's concern.) This will be the basis for an Emergency Motion to Reconsider.
To review, the seminal issue in this case is the unconstitutional deprivation of gun rights. If our blogger had only been served an Injunction Against Harassment for blogging, with no 2nd Amendment deprivation, this would not be ripe yet for Federal court. It would initially be solely a State matter until the time the State refused to reverse. Then it would be ripe.
However, there is an unconstitutional deprivation here and the time is ripe. This deprivation cannot be argued in State court because it is the State defendants who made the unlawful "law!"
Remember, there is NO law in Arizona that allows a court to take away your guns in a civil Injunction Against Harassment. That is fact. But it is the Arizona Supreme Court that promulgates a false "law" that courts can. (And so the Supreme Court also violates Article 3, Division of Powers, of the Arizona Constitution. Who's going to adjudicate that issue? That is the sole prevue of the State judicial branch. See where this is going?)
Now, it's axiomatic in law that "no one can be a judge in their own cause." This was recently reaffirmed by the U.S. Supreme Court in Caperton v. Massey. But what Judge Snow is saying is that our blogger should take this matter before defendants at the State level and let the defendants, who literally are judges, to be judges in their own cause! (Ideally, they would have to recuse themselves from such a challenge. So then there really is no remedy at the State level.)
And that's the problem and that's why this needs to be in Federal Court.
Following Judge Snow's logic, in the ACLU's challenge to Arizona's SB1070, the ACLU would be told to take up its Preliminary Injunction against Arizona's SB1070 with the Legislature or Governor, proving to them that parts of SB1070 may be unconstitutional. That doesn't make sense - they're the ones who approved SB1070. And, as you know, the federal court (all the way to the Ninth Circuit) took jurisdiction (didn't say to take this matter to the Arizona Supreme Court because of the federal issues). In fact, the federal courts even blocked some parts of SB1070 before anyone was harmed. In our blogger's case, he's already suffered harm. But Judge Snow refuses to act. - end UPDATE.
Is Judge Snow saying that being murdered because you can't defend yourself isn't "irreparable injury, loss or damage"? While we understand his hesitancy to rule on the validity of the Injunction proper, he ignores the 800 pound gorilla in the room, that there is no law allowing judges in Arizona to deprive you of your 2nd Amendment right. There is no validity there.
He tells our blogger to take this up with the State. Which he has already done. What makes Judge Snow believe the Supreme Court will obey the law now if it didn't before? Our blogger has exhausted all his remedies. The State system is broken. The Federal court is the only thing that can fix it.
It seems to us there's a lot wrong with this ruling. It doesn't even consider the four prongs needed to grant a TRO.
You know, when the ACLU petitioned the Arizona District Court for an Injunction against SB 1070, and got it,, there were arguably less valid claims about irreparable harm and what "might" happen to citizens if SB 1070 went into law. Sigh. As a buddy pointed out, maybe you have to be an illegal in our country to get justice?
Here is Judge Snow's short ruling denying our blogger's request for a TRO.
Analysis
Plaintiff asks this Court to issue a temporary restraining order without notice. Fed. R. Civ. P. 65(b) permits the Court to do so only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.’ Plaintiff has not met that burden.
According to the allegations of Plaintiff’s Petition for Emergency Temporary
Restraining Order, Motion For Preliminary Injunction and Verified Complaint for Injunctive & Declaratory Relief (Doc. 1), Plaintiff was served, on Friday, September 16, with a Civil Injunction Against Harassment which restrains him from taking specified actions with respect to Melody Thomas-Morgan. Plaintiff argues that Judge Jones’s determination that he has threatened Ms. Thomas-Morgan violates or chills his First Amendment Rights to speak on his internet blog. Plaintiff further argues that the injunction, as issued, unconstitutionally prohibits him from possessing firearms during the term of the injunction.
Plaintiff thus asks this Court to take jurisdiction over this matter and without notice order Judge Jones, the Yavapai County Superior Court Judge issuing the injunction, to vacate the injunction immediately because it chills Plaintiff’s right to freedom of speech and deprives him of his right to bear arms. Plaintiff further requests the Court to: (1) declare Arizona Rules of Procedure on Orders of Protection 6(E)(4)(e)(2) unconstitutional; (2) order the Justices of the Supreme Court to repeal it; and (3) enjoin the Arizona Supreme Court, and by extension, all judicial officers from issuing said injunctions. He further requests that the Court order that Plaintiff’s name be removed from the NCIC database on which he alleges he will be placed due to the issuance of the injunction and that we further allow him to audit that database to confirm his removal from it.
Of course, pursuant to Arizona law, in those cases in which an injunction is issued
without notice, which this one apparently was, Plaintiff is entitled to an expedited hearing if he wishes, to challenge the injunction at the earliest possible date and not later than ten days after Plaintiff’s request. A.R.S. § 12-1809(H) (Supp. 2010). Plaintiff alleges that even if he brings such a challenge, ten days would not be a sufficient time in which to prepare his case, and, on the other hand, if he lost, appellate relief would take too long. This argument is belied by the extensive arguments he has set forth in his motion. Plaintiff is currently aware of the legitimate bases on which to challenge the injunction if he wishes to do so in state court.
Injunctions against harassment are generally the province of state courts. This Court, does not necessarily know all the facts under which the state court determined that the injunction without notice should issue to the Plaintiff in this matter. Thus, it cannot determine the extent, if any, to which Plaintiff is suffering immediate and irreparable injury by virtue of the injunction without giving Defendants the opportunity to be heard. At any rate “adequate state court review”of Judge Jones’ order is available on an expedited basis before Judge Jones himself, and, if necessary the Arizona appellate courts. Further, as Plaintiff’s Complaint ably sets forth, the appropriate interpretation of the scope of the injunction is subject to arguments under both state and federal law, and Plaintiff asserts could be invalidated under either or both. This, thus appears to be a case in which it may be appropriate for this Court to abstain from exercising its jurisdiction under Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941). In such cases, it is appropriate for a federal court to abstain from exercising its jurisdiction until the state courts have had the opportunity to decide the question to determine whether an appropriate application of state law avoids any federal questions.
Given the circumstances present here, Plaintiff is not eligible for the entry of a TRO without notice.
IT IS THEREFORE ORDERED that Plaintiff’s Application to Proceed in District
Court Without Prepaying Fees or Costs (Doc. 2) is granted. Plaintiff shall be responsible for service by waiver or of the summons and complaint.
IT IS FURTHER ORDERED that Plaintiff’s Application for Emergency Temporary
Restraining Order (Doc. 1) is denied.
Wednesday, September 28, 2011
Emergency TRO, Preliminary Injunction, Complaint
First it was Michael Roth in Quartzsite, Arizona. There, Michael called Quartzsite Councilman Joe Winslow a "turd." Councilman Winslow, crying like a girl, ran to a judge. And as a proximate result, Michael was deprived of his gun rights! In violation of several laws!
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.
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.
Subscribe to:
Posts (Atom)