Money Quote from the Arizona Court of Appeals

If you're a victim of an unconstitutional revocation of your Second Amendment via a civil injunction, use this quote from the Arizona Court of Appeals in your appeal. Better yet, quote this in a Notice to your judge before you challenge the injunction against you. By putting the judge on notice now that he can't take away your gun rights, you might save yourself a lot of aggravation in the future.

On October 18, 2012, the Arizona Court of Appeals ruled on a Second Amendment gun grab against a Federal Border Patrol Agent. (Thankfully, they gave the Agent his gun right back. He was going to lose his job otherwise. No gun = no job.) There is a great statement in the Opinion which pertains to "Michael's Law" and should settle the issue once and for all that a judicial officer in Arizona cannot legally revoke your Second Amendment right in a civil injunction.
 
The case is Mahar v. Acuna.

The case was about a criminal Order of Protection, a criminal domestic violence matter, which, per statute (right or wrong) allows a judge to take away your guns. (As opposed to a civil injunction, which does not. And which our blogger has been fighting for a few years now.)

While the overall case is not on-point for civil injunctions per se, the COA said something interesting in their ruling which is on-point for civil injunctions:

Our statutes do not authorize their use [orders concerning firearms] to discourage people from yelling or engaging in 'harassment' of the type proscribed by A.R.S. § 12-1809(R). Nor do our statutes authorize the use of firearms restrictions to provide incentives for positive behavior or to teach people a '[l]esson' about civilized conduct.

And that's from the liberals in Tucson! (Division 2)

So the judges of the Court of Appeals get it, even if the Justices of the Arizona Supreme Court don't.

Cop and Border Patrol Agent about to lose job

It's no longer an "academic" exercise. This suddenly became very serious.

Our blogger got a call from a Phoenix cop a few weeks ago. (The cop had found this blog via Google.) Turns out a JP judge unconstitutionally (illegally) revoked our cop's Second Amendment right in a civil Injunction Against Workplace harassment!

Not only that, she went one better - she put the cop's name on the FBI's NCIC database as a "Brady Disqualification," listing him as a "prohibited possessor," a criminal domestic violence offender! But Brady is a federal law for criminal domestic violence only. Not for civil injunctions!

And there is no law in Arizona giving judges the ability to revoke your Second Amendment right in a civil injunction. The word "firearm" does not appear in the civil statutes. Unfortunately, no gun means no job for our poor victim cop.

This is a gun grab foisted on Arizonans by a run away, out of control, Arizona Supreme Court, who says it can foist a rule of internal administrative procedure (a Rule 28 rule) on all Arizonans. That would be like the Court saying that because all lawyers have to use 14 point font in legal pleadings, that YOU have to use 14 point font in all your writing. Ridiculous. And yet this blogger cannot get the Legislature to hold the Court accountable in this Article III power grab.

Our man is appealing his injunction. While we pray he wins (actually, we pray for justice), that does not solve the problem. The problem is that the Justices of the Arizona Supreme Court are acting outside the law. That makes them, not us, outlaws when they act to revoke your Second Amendment constitutional right.

Were are the police unions?

Well, it finally happened. Our blogger got a call a few weeks ago from an Arizona certificated Police Officer whose gun rights have been unconstitutionally and illegally revoked by way of a civil Injunction Against Workplace Harassment. In his case, as our bloggers case, this officer's name was put on the FBI's NCIC data base via Brady. (The cop found our blogger via these blogs.)

Our blogger wrote to several police unions in the Spring (PLEA, AZCOPS, FOP), warning them that this would happen. But none of the unions fought the Arizona Supreme Court in its unconstitutional power grab.

We hope the unions join the fight - albeit late.

The Lord rebuke you, Ninth Circuit judges

True Christians are not supposed say "God damn you" to anyone because 1) we can't tell God what to do, 2) we aren't to damn anyone ("'Vengeance is mine,' says the Lord"), and 3) even if we could damn people to hell, we don't know all the facts to know if someone should be damned. (Although, in fact, the odds are that most everyone is going to hell.)

The closest a true Christian can come to "damning" someone is to quote the archangel Michael's statement to Satan, the devil in Jude 1:9, "The Lord rebuke you!" (And it's clear from the Bible that Satan is going to hell. So if anyone could be damned to hell, it would be the devil. Yet Michael exercised restraint and did not exceed his authority.)

And so we say to three judges in the Ninth Circuit, "The Lord rebuke you!" For today, three judges issued a temporary injunction which allows mothers to continue to murder their unborn babies in Arizona.

The three judges are  KOZINSKI, Chief Judge, THOMAS and IKUTA

(Even though he's not a Christian, we have been impressed with Chief Judge Kozinski in his stand on judicial ethics. And he gets a lot of law right. We suppose, in his mind, he's simply going by man's law. Nevertheless, God will judge him for what he's done here.)

Not to diminish the fact that these judges are condoning murder, what makes this even more poignant for our blogger is that the Ninth Circuit is quick to uphold a "constitutional" issue when it comes to murdering babies, but the Ninth Circuit simply refuses to act to uphold one's Second Amendment constitutional right in Michael's Law.

And the hypocrisy! For the injunction above sued TOM HORNE, Attorney General of Arizona, in his official capacity; et al. Which is EXACTLY the same as when our blogger sued the Justices of the Arizona Supreme Court in their official capacity. Both suits sought only injunctive and declaratory relief. Yet, in the latter case, the Ninth Circuit claims you can't sue judges for that when they make up and enforce unconstitutional law. But you can sue Tom Horne when he enforces unconstitutional law?

We've lost track of the judges in the Ninth Circuit that have ruled against our blogger so far. We would have remembered if Kozinski was one of them. We'll try to check the record to see if Thomas and Ikuta are named.)

Petition to Rescind Unlawful Brady Disqualification

Below is an Emergency Petition to rescind unlawful Brady Disqualification, filed with the Prescott Justice Court on June, 11, 2012. (Here's the PDF of the filing with the usual colorful footnotes and an interesting Certificate of Service.)

It quotes Judge Emmet Ronan, Chair of the Arizona Supreme Court's Committee on the Impact of Domestic Violence and the Courts (CIDVC), stating that a Brady Disqualification cannot be issued ex parte, as Prescott did.

Despite Judge Ronan's clear statement, citing federal law (and, oh yeah, due process rights in the constitution), Prescott had not immediately acted to rescind its unlawful action.

PREAMBLE

Please know that Judge Markham is disqualified from hearing this petition due to conflict of interest. (See his Order, Appendix A.)

Plaintiff filed an ex parte civil Injunction Against Harassment on April 11, 2011. Ordinarily, such an Injunction would have lapsed by now. However, the Injunction was not served on defendant until five months later, until September 16, 2011. Therefore, this remains a live controversy.

Pro se defendant Peter M. Palmer files this emergency petition asking the court to simply correct its error and immediately rescind its unlawful Brady Disqualification against defendant, as it did in the past with this same error with this same defendant and plaintiff. (See Exhibit 1, a previous order from this court granting a similar petition to rescind Brady Disqualification three years ago.) Quite simply, Brady does not apply because this is not a domestic violence matter.

Please note that defendant is NOT invoking his right to challenge or modify the Injunction proper at this time. Defendant is not asking for a hearing at this time. (Defendant reserves that right for a later time.) Nor is a hearing necessary to adjudicate this petition. Defendant is simply asking the court to comply with state and federal law, to rescind its unlawful Brady Disqualification, per the memorandum and point of authorities below.

MEMORANDUM AND POINTS OF AUTHORITIES

This matter arises out of an ex parte hearing for a civil Injunction Against Harassment where the court issued an ex parte injunction prohibiting defendant from possessing firearms, issued on April 11, 2011, but not served on defendant September 16, 2011. As such, it remains in effect until September 16, 2012.

Defendant has subsequently learned from the Arizona Department of Public Safety (DPS) that, as a proximate result this court's action, defendant's name has been entered into the FBI's National Crime Information Center (NCIC) Database, listing him as a "criminal Domestic Violence offender" and "Brady Positive." Defendant has essentially been reduced to a criminal—a felon (prohibited possessor) by way of a civil action. Without a trial! Defendant asks the court to correct it's erroneous notification to the Yavapai County Sheriff.

First and foremost, the controlling law for civil Injunctions against Harassment, A.R.S. § 12-1809, does not provide for firearm restrictions. The words "firearm" or "weapon" are not in the statute. Therefore, Brady cannot apply.

Consistent with this, 18 U.S.C. § 922—the very law this court cites as the basis for the “Notice to Sheriff of Brady Disqualification" it transmitted to the Yavapai County Sheriff—applies only to “intimate partners.” Per 18 U.S.C. § 921(a)(32), “the term ‘intimate partner’ means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.”

But per plaintiff's sworn petition, plaintiff and defendant have never been "intimate partners." Defendant is merely plaintiff's ex-husband's friend. This is not a criminal DV situation, but a civil IAH. As such, there is no basis for Brady Disqualification and therefore, Brady cannot apply.
Even if Brady could apply to civil injunctions, it cannot apply ex parte. Judge Ronan, chair of the Arizona Supreme Court's Committee on the Impact of Domestic Violence and the Courts, has unequivocally stated that, by law, "Brady also has due process requirements that must be met. Brady applies only if the [criminal domestic violence] protective order was issued at a hearing of which the defendant received actual notice and in which he or she had an opportunity to participate. 18 U.S.C. § 922(g)(8). Therefore, Brady cannot apply to an ex parte hearing, regardless of the parties’ relationship." And yet, contrary to Judge Ronan and federal law, this court has applied Brady to an ex parte hearing, depriving defendant of due process.

Thus, for any or all these reasons, when this court sent a Brady Notification to the Yavapai County Sheriff's office listing the defendant as "Brady Positive" and a "Criminal Domestic Violence offender," this court erred and violated state and federal law. Defendant simply asks this court to comply with the law.

REQUESTED RELIEF

Therefore, because Brady does not apply here, defendant simply asks the court to correct its error and immediately order the Yavapai County Sheriff Office to remove defendant's name from the NCIC, as it did previously in May 2009. (Per Exhibit 1.)

Additionally, given the prior history that's accrued, defendant has learned from DPS that, even when the Sheriff sends a "Brady Negative" notification to the FBI, the black mark never goes away. According to the DPS, even though my previous Brady Notification was rescinded, I still show on the NCIC as having a history of domestic violence. But I'm still a virgin! I've never been domestic with anyone. Unless this court takes affirmative action to correct the record, I will be forever listed as a prior criminal domestic violence offender as a result of mere civil injunctions. As a result, I will suffer whenever a criminal background checked is performed on me. (I have confirmed that the NCIC is not correctable by private individuals. Like the TSA's "No Fly list," the record is not subject to FOIA requests.)

Therefore, since it is this court who has caused this harm, I ask the court to order the sheriff's office to pursue the procedure to correct the errant NCIC record, to purge my name from the FBI's NCIC database (and also Arizona's Criminal Justice Information System (ACJIS)) in this instant action and the May 2009 one, both caused by unlawful Brady Notifications against me by this court.

Defendant requests an Order from the court rescinding Brady, and a copy of orders from this court instructing the Yavapai County Sheriff that Peter Michael Palmer's criminal "domestic violence" history be purged from the FBI's and State's record. Last, defendant requests confirmation from the Yavapai County Sheriff that his name has, in fact, been purged from the NCIC.

Motion for Reconsideration

As we said on our previous post, having shown cause as to why the Justices of the Arizona Supreme Court are not immune from suit in this instance, the Ninth Circuit moved the goal posts on our blogger. The Ninth cited a new, totally off point case to dismiss our blogger. So he filed a Motion for Reconsideration. (below)

In a way they make it easier to defend when they do stuff like this, as he was able to show at three places why the case the Ninth cited for dismissal is totally off-point here.

Again, interestingly, Tom Horne (the Attorney General for Arizona) had no comment on this Motion. We hope someone read him the riot act on this lawsuit and he's backed down from defending the Justices. (Although he has not filed a Notice of Withdrawal.) Too bad he didn't to the right thing from the beginning.

(We hope to post the PDF version, with colorful footnotes, real soon.)

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 11-18040

PETER MICHAEL PALMER,

Plaintiff - Appellant

vs.

KENTON D. JONES, et al.,

Defendants - Appellees.



APPELLANT'S MOTION FOR RECONSIDERATION
OR CLARIFICATION

Pursuant to Rule 27-10, plaintiff/appellant asks the Court to reconsider or at least explain its Order of February 28, 2012 (Attachment A) stating that "the questions raised in this appeal are so insubstantial as not to require further argument."
Frankly, that can't be right. If nothing else, there haven't been any questions raised on appeal because I haven't filed an appeal brief, let alone an "unimpressive" one. (Quoting from the Circuit's standard of U.S. v. Hooton.) If my case truly were insubstantial, then one of the two District Court judges would have thrown it out as frivolous. Or the motions panel would have ruled it was insubstantial before ordering me to show cause about immunity. Frankly, the motions panel is moving the goal post on me in what appears to be an attempt to spike this ball.

If I could, I would argue in this Motion that the Court must have overlooked or misunderstood the facts and points of law in this case. But that's impossible to do since the Court did not articulate any basis for its Order.

Nevertheless, I will argue why the Court's standard of Hooton is wholly inapposite here and why the District Court's dismissal should be reversed. I will also argue why the District Court should be ordered to grant me an immediate Preliminary Injunction, as per my Zeroth Amended Complaint. (Doc. 5.)

INTRODUCTION

After the District Court dismissed my §1983 action suggesting, in dicta, the defendants have judicial immunity, I filed a somewhat inartful Emergency Motion for a Preliminary Injunction and/or a Notice for Priority Status. Instead of granting either, the motions panel ordered me to show cause as to why the defendants aren't immune from suit. Which I did. But now, after having successfully shown cause (i.e., scored a touchdown), the panel has moved the goal post on me, saying my case is insubstantial, citing the ubiquitous U.S. v. Hooton. But Hooton is totally off point in my matter.

ARGUMENT

First, Hooton only applies to nonemergency situations. But mine IS an emergency situation. I filed an Emergency Rule 27-3 Certification saying so. Because I am—and countless other Arizonans are—currently suffering legal irreparable harm (and may suffer literal irreparable injury—death) due to an actual deprivation of a constitutional right (directly attributable to the defendants and only the defendants), my case cannot be insubstantial.

Further, absent law (and contrary to law), my name has been put on the FBI's National Crime Information Center's database as "Brady Positive." (Colloquially known as a "Brady Disqualification.") I am currently listed as a criminal domestic violence offender by way of an ex parte civil action. (Doc. 31 at 2:16-21.) This emergency situation is the fault of the Justice defendants who, through their judicial officers, are promulgating—and enforcing—an internal "administrative" Rule of theirs as substantive law on Arizona citizens. (And thus are violating Article III of the Arizona constitution too.)

The Justice defendants have unconstitutionally deprived me of my constitutional right to "to bear arms in defense of himself" (and my family and friends), in violation of Article 2, § 26 of the Arizona Constitution. Please, I am not a federal judge who has the federal government defending him. I have to defend myself and others in an evil world.

In addition to the constitutional deprivations, the Brady Disqualification is a violation of federal law at two points. Per 18 U.S.C. § 922(g)(8), Brady cannot apply to an ex parte hearing. Second, Brady only applies in criminal Domestic Violence situations, not civil injunctions.

Now, this Circuit has repeatedly affirmed that "an alleged constitutional infringement will often alone constitute irreparable harm." Consistent with this, this Circuit enjoined our Arizona Governor from depriving citizens of our Fourth Amendment right in SB 1070. Presumably this Circuit would likewise enjoin our Governor for a violation of the First or Fifth Amendment, or the money saving act of quartering our National Guardsmen in people's homes in times of peace. (A violation of the Third Amendment.) Mine is not an alleged infringement, but an actual one! A Second Amendment infringement is not distinct from a First, Third, Fourth or Fifth. Nor should the fact that it's the Judicial Branch who infringes on a right, and not the Executive, distinguish how this court acts.

Second, Hooton says "Motions to affirm should be confined to appeals obviously controlled by precedent." But there is no obvious precedent for my case where a State Supreme Court has gone rouge! Where Justices made up—and enforce—their own law! Even if, ordinarily, the Justice defendants had immunity, immunity cannot apply in this case of first impression. This case must be heard.

Last, Mr. Hooton asked the appeal court for something it could not give, which made his appeal insubstantial on its face. I haven't yet filed a brief, which makes the instant Order premature. But if I did, I would ask this Court to reverse the District Court's dismissal and remand the case, something this Court can do.

CONCLUSION

Therefore, for all these reasons, Hooton is wholly inapposite at this time and the Court must reverse its February 28 Order.

Furthermore, this exercise has obviated the need for me to file an appeal. Since I have shown in my response to the OSC that the defendants are not immune from suit, my response effectively "short-circuits" the need for a formal appeal. That is, my primary issue on appeal would have been "Did the district court abuse its discretion when it dismissed the case on the basis of judicial immunity?" This court, by its silence, has conceded that the answer to the question is "Yes," making a formal appeal unnecessary.

Moreover, in addition to being a genuine 27-3 Emergency, your Rule 27-12 requires this appeal be expedited since "in the absence of expedited treatment, irreparable harm may occur or the appeal may become moot." I've already pointed out I am currently suffering harm and, unable to defend myself, that harm may truly become irreparable. But also this appeal will become moot on September 12, 2012 when the one year injunction against me expires. (Assuming another unlawful civil injunction is not sought against me by my antagonist.)

Therefore, citing FRAP 2 for authority to suspend the rules to expedite this highly unusual matter of first impression, I ask this Court to craft an Order immediately reversing the dismissal by the District Court and further ordering the District Court to grant me an immediate preliminary injunction so as to restore my constitutional rights and the status quo, enjoining the defendants from enforcing their administrative Rule 6(E)(4)(e)(2) of their Rules of Protective Order Procedure as law in Arizona. This is no different from what this Court did with Arizona's SB 1070, except the government defendants are different here.

Pro se plaintiff is aware of this court's stated prejudice that "motions for clarification, reconsideration or rehearing of a motion are disfavored by the Court and are rarely granted." And that "The filing of such motions is discouraged." (Note 4 to Rule 27-1) Nevertheless, this Court has left me no choice. It's not in the best interest of judicial economy to petition the SCOTUS for a writ of certiorari without any articuable facts from this Circuit about its Order. If the Court denies my motion for reconsideration (i.e., will not reverse itself and the district court), then I ask the court for "clarification" please, thoroughly explaining its reasons for its February 28 Order invoking Hooton.

I submit that if the Court denies my motion for reconsideration, it has effectively implicated the First Amendment by foreclosing on my right to redress, which will become an issue for review before the Supreme Court. (I cannot sue the defendants in their own court. This has to be tried in federal court.)

Really, this is a simple, albeit politically-incorrect case. Please grant me justice. If the Court needs a definition of justice, it is simply what you would want if this happened to you.

I have contacted opposing counsel. She has "no comment" on this Motion.

Dated March 13, 2012.


Certificate of Service:

Copies of the foregoing mailed under protest via
U.S. Mail on March 13, 2012 to:

Pamela J. Linnins
1275 W. Washington
Phoenix, AZ 85007

Is it over?

Our blogger just received an Order from the Ninth Circuit regarding the Order to Show Cause. They are blowing off the Second Amendment to the U.S. Constitution.

Here's the Order:

Before: LEAVY, THOMAS, and CHRISEN, Circuit Judges.

A review of the record and the response to the January 11, 2012 order to show cause indicates that the questions raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard).

Accordingly, we summarily affirm the district court's judgment.

AFFIRMED.

Looks to us like the Ninth sidestepped the issue. They are affirming the lower court's decision to dismiss, implying the Justices are immune from suit. Even when there are no monetary damages.

The Motions Panel said "the questions raised in this appeal are so insubstantial as not to require further argument." They cite an early case about this, where some prisoner filed an appeal to reduce his sentence, which wasn't an appropriate appeal.

But the Order to Show cause was supposed to narrowly focus only on the question of whether the Arizona Supreme Court Justices had absolute immunity from suit when no money is involved. (The WSJ reported last week about Delaware judges being sued in federal court. Immunity wasn't an raised there.) The Motions Panel didn't rule on immunity per se. There were no other questions "on appeal." The case hadn't gotten that
far.

Ironically, this was a case of first impression. It is not insubstantial, by definition. Looks like they don't want to deal with it. (Usually the court will take a few pages to tell you why you're so wrong. We figure here, as with the prejudiced Judge Snow's Pontius Pilate-like three sentence ruling, that when they don't take the time to tell you why you're wrong, you're probably right.)

The upshot is that the Arizona Supreme Court justices can make up whatever law they want (by promulgating an internal rule of procedure as law) and it can't be challenged.

Lawless.

Funny how the Ninth will take time to rule on Michael Newdow's "under God" suits, but not a Second Amendment constitutional issue.

If you prayed, thanks for your prayers. We think our country is reaping what we've sown.

If our blogger can figure out if he's allowed to do it and how, he may file to have the entire Ninth circuit weight in on this matter.