Update On Lawfare And The Popehat Signal: Brett Kimberlin's New RICO Case

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61 Responses

  1. Matthew Cline says:

    Doesn't the RICO claim mean he's implicitly (or even explicitly) claiming that the defendants are coordinating with each other, or that they're all taking orders from a ringleader?

  2. Tali McPike says:

    as a "fledgling historian" (I have a history degree & was trained in researching, I just haven't been able to do anything with it) I'd be happy to help with research. I'm even vaguely familiar with researching vexatious litigation, as I spent a whole semester researching & writing on one man's lawsuits (granted it was Ireland in the late 1800s, but the general concepts are similar).
    I don't think he has filed any cases in courts near me, but I'd be happy to help with any online research just point me in the right direction & tell me what I should be keeping an eye out for

  3. SPQR says:

    Footnote one is the best.

    I tossed in a couple more bucks.

  4. Thanks for your help, Ken. Here's my answer to your postscript question:

    You and I are probably on the opposite sides of many political questions, not because we have different goals but because of honest differences in how we believe they should be achieved. One of our common goals is protection of the rights secured by the Bill of Rights.

    Not everyone on the right or the left shares that goal with us.

    The lawyers representing me in the Schmalfeldt and Kimberlin state cases were classmates in law school. One is a liberal Democrat. The other is a former conservative blogger. Neither sees the First Amendment as something that should be a partisan issue.

    Footnote 1 will be recycled with due credit to the author.

  5. Jim Tyre says:

    Ken,

    Taking nothing away from an excellent post:

    That's what lawfare means: that evil people, acting pro se or supported by unethical attorneys, file frivolous lawsuits to attack enemies. They know that even if the lawsuits are eventually dismissed, they inflict cost in time, money, and worry on the victims

    Ben Wittes, Jack Goldsmith, Bobby Chesney (and others) might beg to differ. Their group blog is titled Lawfare, with the definition (which is more or less the accepted definition) being:

    The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

    http://www.lawfareblog.com/about/

    It's a mostly conservative blog about the law of warfare, it's more liberal (and newer) counterpart being Just Security, http://justsecurity.org/ I have no involvement in either, but I think some of your readers will appreciate one, the other or both.

  6. Rob says:

    It's not entirely clear to me why, when a domestic terrorist posing as a "progressive activist" is employing lawfare to silence conservative citizen journalists, it falls to an anti-War-on-Drugs, security-state-condemning, War-on-Terror-questioning, 2008-Obama-voting, Fox-News-ridiculing criminal defense attorney from Los Angeles to do so much of the legwork looking for pro bono help for the victims. Why is that?

    Right now, the Republican party is more or less divided into the Establishment, composed of people like Mitt Romney and John McCain, and grassroots activists that are more-or-less comprised of Tea Party types. And as scummy as this entire situation is, it's more or less an extremely minor skirmish involving grassroots activists that doesn't really affect the Establishment in any way (at least, in their eyes), and thus is not on their radar.

  7. Billy V. says:

    The funny thing with the mention of RICO suit and slight hint to the GOP on Popehat… guess who got hit with a RICO suit on Friday?

    Romney… http://www.alan.com/2013/10/19/romney-bain-capital-hit-with-rico-suit/

  8. Billy V. says:

    Grr just realized my edit never went though… should have had at the end:

    Wonder how long it will take for this to get thrown out. This loon seems to have walked up and kicked the big boys in the shins and has no idea how close he is to getting back handed.

    Full Complaint: http://petters-fraud.com/haas_v_romney_filed_oct18_central_dist_fed_ct_la_calif_3_47_pm.pdf

  9. DarthChocolate says:

    Is there a way to donate anonymously (i.e., by sending a money order)? I refuse to use PayPal and do not want a CC record.

  10. Pablo says:

    It's not entirely clear to me why, when a domestic terrorist posing as a "progressive activist" is employing lawfare to silence conservative citizen journalists, it falls to an anti-War-on-Drugs, security-state-condemning, War-on-Terror-questioning, 2008-Obama-voting, Fox-News-ridiculing criminal defense attorney from Los Angeles to do so much of the legwork looking for pro bono help for the victims. Why is that?

    They're not paying attention to the blogosphere. You are. Damn shame Kimberlin didn't name News Corp.

  11. Clark says:

    @Tali McPike

    as a "fledgling historian" (I have a history degree & was trained in researching, I just haven't been able to do anything with it) I'd be happy to help with research.

    Hmm. Interesting.

    I assumed that there was nothing that non lawyers could do. I and, I'm sure, others here have credentials like Tali's. Is there anything we can do?

  12. tsrblke says:

    Ken,

    I cannot speak to your postscript except to echo what other's have said, that is: In general the groups with those big pockets don't care about smaller fish (and, in fact, may be more willing to cut them loose should any trouble come.)
    It's sad, but also true.

    Having said that, I think it's important that proponents of free speech, especially those without law skills help give themselves the tools to at least blunt these lawfare attacks when they arise.

    Some time ago you got me interested in the idea of grass roots lobbying for both stronger Anti-SLAPP state statutes and possibly a federal one. If you may recall, my tenacity even warranted a call from my Senator on the issue. But my life took a turn for the busy soon after that and so my tenacity waned (I am sad with myself that it happened.) I suspect though if the readers here at Popehat were to engage in a similar fashion (similar fashion BTW mostly involved writing letters until I got an answer I liked) we'd make considerable more progress and perhaps make it easier for those in trouble to find help (or at least get the tools to defend themselves.)

  13. Dan says:

    What an awful specimen of humanity. The fact that the Popehat Signal exists—and works—helps me sleep at night.

  14. RedTonic says:

    Not being local to the area, I'll toss my flaming liberal progressive dollars in the pot. An unrepentant terrorist like Kimberlin is not one of my natural allies. People who shine a light on his kind are.

  15. Andrew S. says:

    I'm beginning to wonder if Kimberlin is somehow an alternative personality of Jonathan Lee Riches.

    Also, was Schmalfeldt's twitter hacked and deleted? https://twitter.com/FTRRadioNews

  16. tsrblke says:

    @Andrew S.

    Schmalfeldt picks up and drops twitter account like my wife does shoes.

    Some people (and that's not being coy, I have no idea who) seem to be following behind and picking up his discards for a combination of parody and light shining.

  17. JWH says:

    Moreover, Kimberlin sues a number of conservative blogs, like Twitchy and Redstate and Ace of Spades. Kimberlin apparently believes that a blog is a separate legal entity that you can sue.

    The RICO suit is a major case of TL; DR for me. But as a point of curiosity, is he suing, perhaps, LLCs or other business entities that own those blogs?

  18. Shorter postscript: Where the hell is all that Koch brothers money that everyone else is supposedly getting?

  19. Seriously, if the Popehat Signal movement keeps growing at this rate, you're probably only a year or two out from launching (or affiliating with) a formal charitable legal assistance organization.

  20. Burnside says:

    Ken,

    One of the best things about Popehat is that it reaches across the aisle. Few other blogs would have authors as different as Ken and Clark writing for them. Few other blogs would reach across the aisle to help their political opposites. It makes this one of the more compelling blogs to read, day in and day out. I always learn something new, I find things I agree with, I find things I disagree with, and (wonderfully) I find where I meet in the middle.

  21. Andrew S. says:

    For what it's worth, I'm willing to give what research help I can. I'm not a Maryland attorney, and I'm not a litigator. But I do have certain (research) skills. [You all know where I'm going with this one]

  22. Pierce Nichols says:

    Point of curiosity: at what point does a text that insinuates that a particular person committed a crime override a disclaimer that states that no such insinuation is intended for the purposes of defamation law?

    I've read the posts in question, and it's hard to avoid the impression that Aaron Walker and Patrick Frey both intended the reader to draw the conclusion that Brett Kimberlin and his buddies were behind swatting them. I draw this conclusion largely from the fact that they both tend to discuss swatting in posts that discuss the various nasty things that Kimberlin certainly has committed.

  23. Rich Rostrom says:

    Well, it's about time that somebody stomped this cockroach.

    That's a very unfair comparison. Cockroaches are filthy parasites whose behavior coincidentally spreads diseases, but they don't intentionally harm anything.

    BK? A viper.

  24. Dustin says:

    Pierce Nichols,

    There's nothing defamatory about laying out the facts of the SWATtings and saying 'I leave it up to you to draw conclusions', even if the facts that are laid out tend to drive reasonable people to the opinion that Brett Kimberlin and his supporters are the prime suspects.

    That's because Patterico and the others let the facts make whatever point they make.

    Obviously someone committed the crimes. Lay out the facts and let the reader decide who they think the facts point to. You ask at what point this 'overrides' them saying they aren't accusing anyone… I can tell you. At the point where they are lying about the facts or otherwise defaming someone.

  25. rmd says:

    You can help if you are willing to throw a few bucks in to fund the fight.

    Is there a place to donate for this specific purpose or do you mean to hit the individual bloggers' tip jars?

  26. Dan Weber says:

    rmd: search this page for "contributions". I wouldn't want to tip jar these guys' blogs but a legal defense is another matter entirely.

  27. En Passant says:

    I read the complaint, though quickly. I never practiced civil, but it strikes me as being too much of a muchness.

    He's piggybacking his RICO and Civil Rights claims upon underlying defamation claims. In a defamation claim, plaintiff must prove the defamatory statement was false. But he never specifies the particular statements upon which any defamation claims might be based. He only alleges a "smear campaign" of "false narratives", whatever those are.

    Where he does mention specific words published by defendants, they aren't defamatory.

    Maybe he hopes nobody will notice. Or maybe he doesn't care, if he can stay in court long enough to beggar the defandants.

    Or maybe I didn't read the complaint thoroughly enough. After all, he's a jailhouse lawyer, and I'm not.

  28. Ted H. says:

    This is an interesting case. How would someone interested in helping get in touch with the appropriate party?

  29. deskmerc says:

    I got a bit of a bonus a month ago for dealing successfully with a recalcitrant customer, now I know what to do with it.

    What I want to know is, where does Kimberlin get the resources to generate all this nonsense?

  30. SPQR says:

    deskmerc, from dubious non profit organizations like JMTP. And there seem to be family money.

  31. tmitsss says:

    the Maryland District Court has a standing order requiring an order of the court before the Clerk can issue a Summons in a Pro Se case.

    http://www.mdd.uscourts.gov/Misc/2012-04.pdf

  32. rmd says:

    Dan,

    Thanks. I was looking all over in the margins and even clicked the "become a member" tab. If I hit the lottery, I'm signing up!

  33. Bill says:

    @Clark – I feel stupid now, I just assumed all the Popehat crew were atty's. As far as non-legal help goes though – if software dev/computer help is needed, count me in.

  34. NI says:

    I'm having trouble understanding why Mr. Kimberlin is seeking out the kind of publicity that these lawsuits are certain to generate. If I were a convicted terrorist, I'd concentrate on finding a quiet way to make an honest living and keep my head down. Does he not realize that every time his name makes it into a news article, his past is going to get a mention?

  35. David says:

    do you have a list of residences of kimerlin over the last 20 years? if he sued, he likely filed where he lived.

  36. ChrisTS says:

    I'm a fairly garden-variety liberal and would like to help out. But, like another commenter, I don't have anything to do with PayPal anymore and would like to see some alternative way of contributing.

  37. Parallax says:

    I think the answer to your question is found on another site that I read daily.

    John Wesley Hall runs this site: http://www.fourthamendment.com/blog/

    As you scroll down the right hand side of the page, there are two quotes that both fit your circumstances and answer your question. Together, they are:

    "If it was easy, everybody would be doing it. It isn't, and they don't."
    —Me (John Wesley Hall)

    “You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
    —Pepé Le Pew

    To me, the second quote explains the first, and taken together they are why others don't do what you do. Here's why I think you do what you do, again in terms of Mr. Hall. He strikes me as a kindred spirit, jealously guarding his particular section of the Bill of Rights, as you do yours. He does heavy lifting for a world that may not seem to appreciate it, while maintaining a very necessary sense of humor. Mr. Hall's work runs the risk, as does your use of the Popehat Signal and this blog in general, of benefiting unsavory characters. (Of course, that depends on your personal definition of unsavory.) Uncompromising fidelity to principle can permit such things.

  38. Pablo says:

    rmd, the defense fund is at http://bombersuesbloggers.com/

  39. AlphaCentauri says:

    I realize they need real names for credit cards, but whatever possessed them to post a list of the donors on the site?

  40. Steve says:

    The Statute of Limitations in Maryland for contending libel or slander is 1 year. I don't understand why we need to donate to defendants that clearly fall under this statute and are thereby irrelevant to this suit that insists libel occurred and whereby everyone understands that RICO does not apply.

    Any thoughts?

  41. Anonymous Coward says:

    @Steve

    The suits are very likely to be unsuccessful, but that didn't stop them from being filed and they still must be defended against.

  42. Dan Weber says:

    I realize they need real names for credit cards, but whatever possessed them to post a list of the donors on the site?

    What? Is rally.org posting all donors, or only those who wish to publicize themselves?

  43. Clark says:

    @NI

    I'm having trouble understanding why Mr. Kimberlin is seeking out the kind of publicity

    I've dealt with a handful of literal, diagnosable psycopaths and narcisistic personality disorder sufferers.

    Their behavior doesn't make sense to normal people because normal people think "I could be wrong", or "Even if I'm right, people might perceive me as an asshole".

    People like this think that they are the smartest, most capable, best people on the planet, and everyone will realize it in short order. And those who don't are horrible evil people who must be destroyed.

  44. luagha says:

    And of course, the process is the punishment. A reasonable judge with skills will slap this down before it goes any distance; but a goofyheaded one will let it go a ways and cost time and money.

    And Brett Kimberlin does appear to be lucky on getting the goofyheaded ones now and again.

  45. Joy McCann says:

    The issue of why it is that it falls to liberal free-speechers to defend right-leaning bloggers is interesting, and it might be part of the larger issue of why the right blogosphere is underfunded–corporate entities that are theoretically sympathetic to the cause of free markets lets righty bloggers drift along without support, whereas left-bloggers often get stipends to support what they are doing. (Obviously, plenty of people on both sides blog alongside "real jobs," and this is desirable because it preserves the blogger's independence.)

    I think that 1) a lot of deep pockets on the right are too focused on ROI to want to subsidize political speech, and 2) they are fixated on the Koch brothers' heads on spikes atop the castle wall. After all, a lot of people with a medium level of political knowledge believe quite sincerely that the Koch brothers belong on the "far right," and these folks are in the dark about Charles and David Koch being anti-drug war, anti-war-on-terror, anti-foreign intervention, and lavish funders of cancer research and the arts.

    This can't *help* with the problem of cowardice among right-leaning rich people . . . though it doesn't justify it in the least.

  46. Josh C says:

    I don't think the Vast Right Wing Conspiracy is as vast, organized, or well funded as you think it is.

  47. Joe Pullen says:

    I like Tali and Clark's idea. A bit of additional research may be in order to determine just exactly why Kimberlin hasn't yet been declared a vexatious litigant.

    As you already know, I'm pretty good at finding things (cough). Happy to help in the effort.

  48. Adjoran says:

    Isn't there a federal rule prohibiting sworn filings by convicted perjurers?

  49. En Passant says:

    Joe Pullen wrote Oct 22, 2013 @9:57 pm:

    I like Tali and Clark's idea. A bit of additional research may be in order to determine just exactly why Kimberlin hasn't yet been declared a vexatious litigant.

    Particulars for declaring a litigant vexatious vary by jurisdiction. Sometimes state statutes control it. For example, see California's rules here [PDF].

    Courts generally are reluctant to sanction pro se litigants as vexatious because they do not want to be perceived as making justice inaccessible to ordinary citizens.

    So, long story short, it isn't always easy for courts to declare a litigant vexatious.

  50. Tali McPike says:

    "So, long story short, it isn't always easy for courts to declare a litigant vexatious."

    True, but as Ken points out in the OP collecting evidence of all the suits he's filed (particularly illegitimate ones that get thrown out pretty quickly) will make it easier for the courts. If they aren't aware of his history, they have no reason to assume he's a problem

  51. En Passant says:

    Tali McPike wrote Oct 23, 2013 @9:10 am:

    True, but as Ken points out in the OP collecting evidence of all the suits he's filed (particularly illegitimate ones that get thrown out pretty quickly) will make it easier for the courts. If they aren't aware of his history, they have no reason to assume he's a problem

    True, and once declared vexatious in one court, it's easier for another to make the same finding and ruling. It can cascade to avalanche once it starts.

    But some of the rules for the initial ruling require a fairly high threshold, as the CA document illustrates:

    In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

    Five losses in seven years is a fairly high threshold.

  52. Captain Obvious says:

    I present for eveyones amusement Matt Osborne, Kimberlin mouthpiece http://www.twitlonger.com/show/n_1rmmjth

    Mr. Osborne’s ridiculous screed was a result of my daring to tweet my opinion that an article posted on BreitbartUnmasked was an unsubstantiated smear of Ken. Mr. Osborne, being the intrepid investigative journalist that he is, immediately assumed I was daring to speak of Brett Kimberlin -despite the fact my tweet never mentioning Kimberlin. Mr. Osborne then alluded I could potentially be joined the lawsuit against McCain, Hoge, and Worthing because he is of course all about the 1st amendment.

    While it appears from his screed that Mr. Osborne has cornered the market on tin-foil, what shouldn’t get lost in his utterly ridiculous rant supporting Kimberlin is this . . . .

    No one has accused you of breaking any laws, libel, or defamation…yet. I emphasize the "yet" because Aaron Walker has in fact stalked, defamed, and abused legal processes in his relentless pursuit of Brett Kimberlin. Mr. Kimberlin is indeed extraordinarily litigious, just like his reputation, and he is quite ready to sue as many people as he likes forever and ever now, thanks to the incredibly stupid actions of Aaron Walker and William Hoge.

    Mr. Osborne deliberately overlooks the fact Kimberlin’s reputation for filing multiple frivolous lawsuits has been in place long before Aaron Walker crossed his path. Bill Schmalfeldt has made similar statements to the effect Kimberlin will sue anyone and everyone. These statements further demonstrate Kimberlin’s use (rather abuse) of the courts is motivated purely to silence his critics. I won’t get into the sheer hypocrisy that is Matt Osborne’s excuse for defending Mr. Kimberlin’s associate, Craig Gillette, who has served time in prison for possession of child porn.

    In any event, it seems a worthwhile endeavor to pull information together. Perhaps former cases Kimberlin filed and won either because the defendant could not pay to defend themselves or didn’t show up, and those cases where he lost or which were thrown out due to being clearly frivolous. Such research, along with comments such as those above, might not be enough to have him declared a vexatious litigant but I wonder if they could be helpful to anyone else that has to deal with Mr. Kimberlin either now or in the future.

  53. Ken White says:

    I can't really tell whether Matt Osborne is one of the vapid useful idiots I mention who buy Kimberlin's con, or whether he's pro-Kimberlin just because he's anti-folks that Kimberlin is against, or whether he's evil, or nuts. He doesn't seem significant enough for anyone to care.

  54. Patterico says:

    Osborne is, at a minimum, nuts — as this fantasy about torturing Rush Limbaugh demonstrates.

    I get that he is trying to make a point about hypocrisy about torture. But the way he does it — and the glee with which he describes the fictional torture — is more than a little unsettling.

    Funny how Kimberlin seems to attract people like this.

  55. Captain Obvious says:

    @Ken – agreed. Personally I think Osborne is a warped but generally insignificant annoyance. What I thought was interesting was his comment about the litigious nature of Kimberlin. I don't believe he understands that promoting that fact along with Schmalfeldt is not necessarily enhancing Mr. Kimberlins already questionable reputation.

    In any event, collecting information about his many filed lawsuits and penchant for lawfare under the guise of shutuppery might be helpful to others.

  56. Dustin says:

    Dan Weber • Oct 22, 2013 @1:31 pm

    What? Is rally.org posting all donors, or only those who wish to publicize themselves?

    There's a toggle marked "keep this donation anonymous" if you don't want your name posted. And it's quite reasonable for a donor to use that.

  57. Dustin says:

    " I don't believe he understands that promoting that fact along with Schmalfeldt is not necessarily enhancing Mr. Kimberlins already questionable reputation."

    It doesn't help him in court, but he's not going to prevail in court anyway. I believe that kind of statement does help silence most of those who oppose what he's doing. That's what he's really going for. This is about controlling speech on the internet.

  58. AliceH says:

    The whole "where are the conservatives' friends" bit is perplexing to me.

    Why would conservative bloggers be in a better position to deal with these 1st amendment lawsuits than any of the other parties helped by the Popehat signal? As bloggers, they might be better able to rally some more funding than a secret shopper dissatisfied with an amber necklace, but that's hardly enough to properly prepare and defend against this lawfare.

  59. Ken White says:

    @AliceH: I'm not talking about conservatives in the abstract. I'm talking about conservative media.

  60. AliceH says:

    Okay.

    I don't mean to be snotty here. I often am puzzled by what people consider "media" and "MSM", and am sincerely curious where you think this story should be getting coverage. Or what supportive action (besides reporting) may be supplied by them. I'll assume Fox News is one source. Where/Who else?

  1. October 22, 2013

    […] Today Pope­hat once again put out a long and detailed post demol­ish­ing Brett Kim­ber­lin, his tac­tics, his RICO suit, etc in some detail, a peek: […]