Los Angeles Assistant District Attorney John Patrick Frey, better known online by his nom de blog ‘Patterico,’ faces a civil trial for using his office to chill the free speech of Brett Kimberlin.
Judge George Hazel of the US District Court in Maryland left that charge standing even as he dismissed the remainder of Mr. Kimberlin’s federal RICO lawsuit today.
In his opinion on Count II, Hazel cited emails that have been available to us here at BU since 2012 to disagree with Frey’s assertion that his actions towards Kimberlin were merely those of a private citizen blogging on the internet.
Kimberlin maintains that on December 22, 2011, Frey met with an Assistant U.S. Attorney and FBI investigators in Dallas where they discussed Kimberlin’s alleged involvement in swatting and the criminal investigation relating thereto. […] Following this meeting, Frey apparently sent an e-mail to various individuals describing this encounter with law enforcement in which he boasts that “[s]oon high tech investigators from my office [at the Los Angeles County District Attorney’s Office] will be on [the case].” […] Kimberlin also alleges that on January 5, 2012, Frey sent an e-mail to Defendant Walker (“Walker”), using his pseudonym Aaron Worthing, in which Frey asks Walker if he would “be willing to send [Frey] a short just-the-facts-ma’am email summarizing [his] interactions with Ron and Brett [Kimberlin] including their threats to sue/file bar complaints/etc. with your real name, suitable for providing to my supervisors and possibly law enforcement?” […] Far from suggesting that Frey was acting solely in his capacity as a private citizen, these allegations support a plausible inference that Frey used his position as an Assistant District Attorney, and the authority and credibility derived therefrom, to galvanize law enforcement into launching criminal investigations into Kimberlin’s alleged involvement in swatting. Surely, the average citizen who was not an Assistant District Attorney in the Los Angeles County District Attorney’s Office, or otherwise involved in law enforcement, would not so easily be able to obtain this type of access to scarce governmental resources. Thus, accepting Kimberlin’s allegations as true, Frey appears to have invoked the powers of his state office when he encouraged law enforcement to launch criminal investigations into Kimberlin. Under these circumstances then, and at this stage of the proceeding, Kimberlin has plausibly alleged that Frey’s conduct was “fairly attributable to the state.”
In his opinion, Judge Hazel cites a three-part test that Kimberlin’s charge against Frey had to pass. According to Suarez Corp. Indus. v. McGraw,
First, the plaintiff must demonstrate that his or her speech was protected. Second, the plaintiff must demonstrate that the defendant’s alleged retaliatory action adversely affected the plaintiff’s constitutionally protected speech. Third, the plaintiff must demonstrate that a causal relationship exists between [the] speech and the defendant’s retaliatory action.
[…] When the Court considers the Suarez factors, particularly Frey’s status as an Assistant District Attorney and Kimberlin’s status as a private citizen, the Court concludes that Kimberlin’s allegations plausibly suggest that a similarly situated person of “ordinary firmness” would be chilled by Frey’s conduct and the consequences thereof. Specifically, by galvanizing law enforcement to open criminal investigations into Kimberlin, Frey created a realistic threat of arrest that would likely instill fear in an individual of ordinary firmness. Indeed, in July 2012, two FBI agents came to Kimberlin’s home to question him about his alleged role in various swattings. […] As such, the Court concludes that by creating a realistic threat of arrest, Frey’s conduct could reasonably be expected to chill the exercise of one’s First Amendment rights.
Regular readers will recall what I said recently about bothersome FBI visits that Kimberlin’s more obsessive detractors have arranged more than once for him or for his family members; this is just another chapter in that bizarre story, which is full of creeps and weirdos taking their paranoid delusions far too seriously.
In great part because of his prestige as a blogging prosecutor, Frey was the highest-profile blogger to inflate the ‘swatting’ narrative until May of 2012, when his friend Erick Erickson became a target of the provocateur(s) behind the smear. For a brief moment, the matter even seemed poised to reach the halls of Congress — but of course, it was just a smear after all.
Judge Hazel continues:
Kimberlin alleges that his First Amendment rights were chilled when he received a threatening e-mail message from someone at the Los Angeles County Sheriff’s Department after he reported Frey’s conduct to Frey’s supervisors. […] According to Kimberlin, on May 23, 2012, he received an anonymous message on his website saying: “Leave him alone. Don’t go there.” […] Believing this message to be in retaliation for reporting Frey’s conduct to his supervisor, Kimberlin checked the IP address associated with the sender, which revealed that the message came from someone at the Los Angeles County Sheriff’s Department with the IP Address 126.96.36.199. […] Drawing all reasonable inferences in Kimberlin’s favor, the Court believes that a person of ordinary firmness who received such an apparent threat from someone at the Los Angeles County Sheriff’s Department would likely be chilled in the exercise of his or her First Amendment rights. Accordingly, the Court will deny Frey’s motion to dismiss Count II of the SAC.
It should be mentioned that one of the chief activities of Kimberlin-obsessives has always been to pursue those of us who debunk their narratives as sinister agents and substitutes of Kimberlin himself. His lawsuit against the ringleaders, which was filed under the Racketeering Influenced and Corrupt Organizations law, had the salubrious effect of somewhat quieting their constant smearing and witch-hunts, but nevertheless I had set my expectations much lower than my hopes.
For RICO cases are almost impossible for federal prosecutors to win, much less a pro se litigant in civil court, and Kimberlin’s case was admittedly lighter on evidence than it should (and frankly, could) have been. But his strategy of filing relatively cheap lawsuits that tie up his enemies in endless fundraisers and legal turmoil seems at least partially vindicated today, for he has landed the biggest fish in the whole lake: now that Frey has been found to have been acting ‘under color of law,’ Kimberlin is able to attach the State of California to his remaining suit.
Furthermore, this is a nonpartisan opening for other victims to come forth. Nadia Naffe, who suffered doxing, identity theft, and harassment when Frey dumped her personal information in his blog to retaliate against her for blowing the whistle on James O’Keefe’s rapetastic shenanigans, might want to renew her objections. Jeff Goldstein, the conservative/libertarian writer behind the Protein Wisdom site, has his own bone to pick with Frey.
The taxpayers of Los Angeles may not have to support Frey’s six-figure lifestyle much longer.