MARYLAND:

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

OPPOSITION TO THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND

OPPOSITION TO REQUEST FOR A HEARING
NOW COMES the Plaintiff, Aaron J. Walker, Esq., and files this Opposition to the
Defendants Motion for Summary Judgment and a Hearing (Dkt. No. 114) (hereinafter MSJ)
and states the following:
1.

In MSJ 1-2 the Defendants reiterate their argument that the long standing

immunity that prevents recovery for defamation arising from in-court statements somehow
immunizes them from malicious prosecution. There are two problems with this assertion. First,
they have already raised this issue in a motion to dismiss, and it was denied; thus by the law of
the case, they do not have immunity. Second, immunity from defamation actions does not
translate into immunity from malicious prosecution.
2.

In MSJ 5, they claim that none of the elements of malicious prosecution is

present. However, despite this claim, they openly admit in MSJ 3-5 that the first two
elements are present, specifically 1) that process is issued and 2) that Mr. Walker ultimately
prevailed. They incorrectly claim that because the States Attorney chose not to pursue charges

once issued that this choice somehow negates the element requiring process to be issued. They
cite no law for this proposition because it is not the law, and, indeed, this Courts finding that
Mr. Walker has stated a claim for which relief could be granted establishesas a matter of the
law of the casethat these facts the Defendants have admitted to do in fact establish the first two
elements.
3.

The Defendants also claim that no genuine issue of material fact is present

because they have presented two affidavits, one from Mr. Kimberlin and one from Mrs.
Kimberlin (hereinafter the BK Affidavit and TK Affidavit, respectively). There are three
problems with this assertion.
a.

First, Mr. Kimberlin cannot file a valid affidavit under MD CODE Cts. &

Jud. Proc. 9-104 which prevents convicted perjurers from testifying. As this Court is aware,
Mr. Kimberlin was convicted of perjury, Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 490 n. 6 (D.
Md. 1998), and, therefore, his affidavit must be disregarded in its entirety.
b.

Second, both Defendants attempt to testify to matters they either did not

personally witness, matters that they are not competent to testify about (such as the mental states
of others), or their testimony contains conclusory allegations without any specificity.
Specifically:
i.

In BK Affidavit 1 Mr. Kimberlin claims Mr. Walker has been

stalking and harassing his family. This conclusory allegation must be disregarded. Likewise, he
claims Mr. Walker is obsessed, a mental diagnosis he is not qualified to give, and he also
discusses a mental health issue in 3, but he is not qualified to speak to that either.

ii.

In BK Affidavit 3 and 5-6, Mr. Kimberlin claims to know about

private conversations between Mr. Walker and Mrs. Kimberlin even though he does not establish
that he personally witnessed these events and, upon information and belief, he did not.
iii.

In BK Affidavit 4 and 8-9, Mr. Kimberlin claims that Mr.

Walker posted items on his blog without any attempt to produce what was written or to
authenticate such writing.
iv.

In TK Affidavit 1, Mrs. Kimberlin claims in conclusory fashion

that Mr. Walker has harassed their teenage daughter.

v.

In TK Affidavit 4, Mrs. Kimberlin claims in a conclusory fashion

that Mr. Walker took advantage of me to harm my husband. This conclusory allegation must
be disregarded.
vi.

TK Affidavit 5 contains hearsay about what Mr. Walker

vii.

In TK Affidavit 6-8, Mrs. Kimberlin makes claims about Mr.

allegedly said.

Walkers writings without any attempt to produce those writings or to authenticate them.
viii.

In TK Affidavit 8, Mrs. Kimberlin claims to know that Mr.

Walker assisted Mr. Hoge in filing a lawsuit against her without any attempt to establish that she
is testifying as to her personal knowledge.
ix.

In TK Affidavit 9, Mrs. Kimberlin attempts to testify about Mr.

Walkers mental condition which she is not competent to do.

c.

Third and finally, both affidavits include allegations that by their nature

occurred after the charges were filed. Adding the Defendants to this lawsuit on September 28,
2015, or the filing of any documents in this lawsuit since they were added cant possibly impact

on the question of whether there was probable cause against Mr. Walker on either July 30, 2013,
or May 18, 2015. Certainly, Mr. Hoges lawsuit against them, styled William Hoge v. Brett
Kimberlin, et al., Case No. 06C16070789 (Carroll Co. Cir. Ct. 2016) and filed on March 3, 2016,
cannot form the basis of probable cause on a previous date. Further, in BK Affidavit 9 he
states that Walker wrote even more scandalous posts after my wife filed a request from [sic] the
commissioner to stop Walker from harassing my daughterin other words, after the false
charges were filed by Mrs. Kimberlin. Thus, by definition the allegations in that paragraph
cannot support probable cause. Even if those events actually occurred after charges were filed
did tend to show Mr. Walker committed the crimes he was accused ofand they do notthey
do not address the question of whether there was probable cause when these Defendants filed the
relevant applications for charges.
4.

In any case, even if one treated these affidavits as sufficient, they are contradicted

in every relevant part by the Affidavit of Aaron J. Walker, combined with Exhibit B and C which
are certified copies of the applications for charges that are the center of this suit. Therefore,
there is a dispute of material fact as to the remaining elements of 1) a lack of probable cause and
2) malice.
5.

Finally, a hearing is not necessary on the subject. The affidavit of Mr. Walker

is more than sufficient to establish a dispute of material fact on each disputed element of each
claim. With the legal principles not in serious dispute, there is no reason to waste the parties or
this Courts time with a hearing. To be blunt, this entire motion appears to be a dilatory tactic
designed to waste the Plaintiffs and this Courts time, and neither should be required to spend
one second more on it than strictly necessary.

WHEREFORE, based on the foregoing, this Court should deny the Defendants MSJ, without a
hearing, and provide any other relief that is just and equitable.

Friday, April 1, 2016

Respectfully submitted,

Aaron J. Walker, Esq.

Va Bar# 48882
P.O. Box 3075
Manassas, Virginia 20108
AaronJW72@gmail.com
(703) 216-0455
(no fax)

CERTIFICATE OF SERVICE
I certify that on the
day of
, 2016, I served copies of this
document on Brett and Tetyana Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817.
In accordance with the Courts order of March 10, 2016 (Dkt. No. 111), I have performed such
service by certified mail and will file the green card when it is returned to me.

MARYLAND:
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

AARON WALKER,
Plaintiff
v.

Case No. 398855-V

BRETT KIMBERLIN, ET AL.,

Defendants

AFFIDAVIT OF AARON J. WALKER, ESQ.

1.

My name is Aaron J. Walker, Esq., and I make these statements based upon my

own personal knowledge, except where otherwise noted. I am an attorney in good standing in
Virginia and Washington, D.C. I am over 18 years of age, and if called to do so, I am competent
to testify that the contents of this affidavit are accurate and true.
2.

I hereby state that the contents of my Fourth Amended Complaint are true and

correct to the best of my knowledge, information, and belief. Of course, this Court can only
consider it evidence on matters I have personally observed, but to the extent that it reflects my
personal observations, I hereby verify its accuracy
3.

I have never committed any act that constitutes harassment under MD CODE Crim.

L. 3-803, stalking under 3-802, or harassment of a minor under 3-805(b)(2).

4.

Specifically, with respect to claims I have stalked the Kimberlins, those claims are

complete fabrications. I have never been in the presence of Mr. Kimberlin or Mrs. Kimberlins
daughters, except in a courthouse setting, often in hearings in which I was a party. Therefore, as
a matter of law, I could not have stalked them. As for Mrs. Kimberlin, I have been in her

presence at her request during the formation of an attorney-client relationship with her and in
furtherance of that relationship with her. I will speak more on that point momentarily, but in
furtherance of that relationship in the most technical sense I had approached her at times or
walked in the same direction with her as people ordinarily do, but at her request or with her
consent and while doing nothing that would create a reasonable fear of harm to her or anyone
else. That cannot be stalking as a matter of law.
5.

Also, I have never committed any act that can constitute harassment. While it is

difficult to prove the negative, I can state that I have never threatened any member of the
Kimberlin family or committed any act or wrote any word directed towards them that could put a
person in their position in reasonable fear of any kind of physical harm. I have never incited any
person to commit any unlawful act against the Kimberlins or advocated such acts, I have never
advised any person to do such acts, and I have never aided any person in committing such acts. I
have never condoned such an act. I have specifically told my readers to leave the Kimberlin
family alone. Indeed, I have taken steps to protect their family, such as redacting any home
addresses from any court documents I have published online. What I have done, from the
beginning of this controversy, is report truthfully about the controversy between myself and Mr.
Kimberlin and his allies.1 Such writing constitutes peaceable activity intended to express a
political view or provide information to others under 3-803(b) and, therefore, cannot as a
matter of law be harassment.

Furthermore, such expression is protected by the First

Amendment.
6.

I have never committed any act that constitutes electronic harassment of a minor

under 3-805(b)(2). To be blunt, I have no interest in Mrs. Kimberlins children, and I have

When I write of Mr. Kimberlins allies, I am not referring to his family, broadly defined.
2

paid as little attention to them as practicable. My dispute is primarily with Mr. Kimberlin, and I
have always made it clear that, as much as practicable, Mrs. Kimberlins children should be
protected from any collateral damage that might occur because of their relationship with Mr.
Kimberlin. I have sought to exclude Mrs. Kimberlin and her daughters from my coverage, but
that has not always been possible because Mr. Kimberlin has increasingly made his wife and
Mrs. Kimberlins children central to the story of how he has abused the courts.
7.

To give a practical example, when Mr. Kimberlin sued me in Kimberlin v.

Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013), he called Mrs. Kimberlins eldest
daughter to the stand (hereinafter K.K.). Upon information and belief, a national publication
covered this event, including the fact that she testified. I covered the story, too, but unlike other
writers, I never identified K.K. by name. Indeed, I didnt say much about her at all given that
she didnt say much of any relevance in that trial.
8.

To give another example, I have reported when Mr. Kimberlin has exposed his

children to horribly salacious material in court. Later in this affidavit, I will discuss where Mr.
Kimberlin sought a Peace Order against Jay Elliott, whom Mr. Kimberlin claimed was Mrs.
Kimberlins paramour at the time. While seeking that order, Mr. Kimberlin read off a series of
alleged text messages from Mr. Elliott. One of them graphically described a sex act Mrs.
Kimberlin allegedly performed on Mr. Elliott that I will not repeat out of respect for this Courts
decorum. However, Mr. Kimberlin read this graphic message in open court, uncensored, with
his children in the audience. Later, I wrote a piece discussing that hearing, and I mentioned the

presence of his children only to communicate to the reader that Mr. Kimberlin had read those
coarse messages in front of them.2
9.

To give a third example, the Defendants have accused me in court documents of

posting on another persons website in a discussion where someone mentioned K.K.s breasts.
This claim is utterly false. I had participated in no such discussion. However, after I obtained a
copy of a motion that repeated this false allegation, I wrote about it on my website in a piece
attached to this motion as Exhibit A-1. Although it is not apparent in the print out, the piece
attached as Exhibit A-1 as it is viewable on the Internet embedded a full copy of the motion and
refuted the false allegations in a style called Fisking.3 In that piece, I discuss that alleged
discussion of K.K.s breasts (which I did not participate in). I pointed out that plain intent of the
discussion was not to discuss K.K.s breasts in a salacious sense, but to criticize how Mr. and
Mrs. Kimberlin apparently allowed K.K. to wear an extremely low cut top in a music video that
was posted on the Internet when she was, upon information and belief, only 15 years old. To
illustrate how reasonable their point was, I have cut-and-pasted a still from that music video,
with her face obscured as follows:

I will add that I do not believe that Mr. Elliot actually wrote the coarse text message Mr.
Kimberlin read aloud in court.
3
Fisking is a slang term referring to a specific type of piece written typically on weblogs or
blogs. In it, the author quotes another writers writing one piece at a time, and then comments
on each piece quoted, typically refuting the factual claims or assailing its logic. In the attached
piece, I fisked a motion filed by the Defendants, placing quotations of their writing in red for
clarity, while all other writing is in ordinary black. Upon information and belief, the term is
named for reporter Robert Fisk, whose writing was subjected to many such critiques.
4

So when Mr. Kimberlin claims I have discussed K.K.s breasts and her cleavage, BK Affidavit
9, or that I have posted photos4 of [K.K.] the most charitable interpretation is that he is
referring to what I just described. The least charitable interpretation is that Mr. Kimberlin is
simply lying.
10.

To further rebut their false allegations, I have never said that anyone should target

K.K. because of the corruption of the blood as Mr. Kimberlin has alleged yet again. I actually
said the opposite: that people should not target her in any way, because we reject the principle of
the corruption of the blood in this country. Mrs. Kimberlins claim that I have posted things
about [K.K.] on his personal blog that are sexual in nature5 is simply false. Mr. Kimberlin
claims I have posted K.K.s videos on my blog. The only time I have posted a video that
included K.K. was when I posted a music video Mr. Kimberlin appeared in called Happy
Springtime (Bush is Over). The video celebrated the end of the Bush presidency and, upon
information and belief, was the subject of a story in the Washington Post. A copy of my piece

To the best of my recollection this is the only photo I have posted of her. The claim by Mr.
Kimberlin that I have posted photos (that is, more than one photo) of K.K. is false and in
keeping with Mr. Kimberlins long-established pattern that if someone does something once, Mr.
Kimberlin will falsely claim the person has done the act more than once.
5
TK Affidavit 7.
5

on the subject is attached as Exhibit A-2, and this Court can see that at no point do I mention
K.K.s involvement in the video.6 My point was simply to note that Mr. Kimberlin apparently
keeps finding excuses to surround himself with young people, particularly underage girls.
11.

Finally, the claim that I noted that it might be necessary to take depositions of

K.K. and her friends was in response to a suggestion that Mr. Kimberlin might sue me for calling
him a pedophile. I predicted he wouldnt sue because he would be afraid of what K.K. or her
friends might say if deposed. Of course, as this Court knows by now, that prediction was wrong,
but it was a valid discussion of the likely course of future litigation. It is also worth noting that
Mr. Kimberlin himself called K.K. to the stand in Kimberlin v. Walker, et al.
12.

Therefore, I have never done anything with the intent of causing any disquiet to

K.K. as the Defendants have claimed. My intent was to report on Mr. Kimberlins misconduct
only, and I have striven to keep K.K and the remainder of the Kimberlin family out of the
spotlight as reasonably possible. I do not know and cannot guess whether anything I have
written has ever caused K.K. emotional distress or fear , but I know I did nothing that would
cause any reasonable person in her position to feel any of the emotional states mentioned in 3805(b)(2).
13.

Moving on, I have never assaulted or battered Mr. Kimberlin.

I once was

required to remove his iPad from his person in self-defense. Such self-defense negates any claim
that I assaulted or battered him, and I believe this issue to be settled by collateral estoppel. I also
did no harm to Mr. Kimberlin when I removed the iPad from his person. Any claim that I
6

Further, the video was only embedded at my site because the person who posted it on
YouTubewhich according to YouTube is Mr. Kimberlins company, Justice Through Music
Project, Inc.allowed for third parties such as myself to embed it. In other words, whoever has
posted it has made it available to be embedded in anyones website. If the Kimberlins have a
problem with that, they should take that up with whoever posted it on YouTube.
6

harmed him is false. Any claim that there are hospital records or photographs documenting any
harm is false. I cannot say whether or not Mr. Kimberlin actually was hurt that day, I can only
say that I didnt hurt him.
14.

I did not attend any hearing involving a mental health issue between the

Kimberlins in July, 2013, or any other time. I, along with William Hoge III, attended a series of
protective order and peace order hearings.7 Mr. Kimberlin had sought a peace order against one
Jay Elliot, who Mr. Kimberlin alleged to be Mrs. Kimberlins paramour.8 Meanwhile, Mr. Elliot
had sought a peace order against Mr. Kimberlin claiming harassment, and Mrs. Kimberlin
simultaneously sought a protective order against Mr. Kimberlin. The Defendants lost their
respective petitions. Mr. Elliot obtained a preliminary peace order, with a final peace order
hearing set for the following week.9
15.

At the end of these hearings, meanwhile, Mrs. Kimberlin was placed into

handcuffs by courthouse security.

This personally upset me because Id had a similar

experience. Specifically, on May 29, 2012, I attended a final peace order hearing in which Mr.
Kimberlin claimed I had harassed him. He claimed that I had committed unlawful incitement by
writing merely negative pieces about him to the Internet at largewithout meeting any element
of the constitutional test for incitementand that such incitement constituted harassment. Judge
Vaughey, disregarding controlling Supreme Court precedent by name, agreed with Mr.
Kimberlin, and granted the final peace order, forbidding me from writing about Mr. Kimberlin

I was interested in attending because Mr. Kimberlin was a violent man who had shown extreme
malice towards me, and so if there were additional stressors in Mr. Kimberlins life, I wanted to
know about it, in case he became violent again.
8
I do not offer the claim that Mr. Elliot was Mrs. Kimberlins paramour to prove that he was her
paramour, only to report what Mr. Kimberlin claimed the hearing was about.
9
To jump ahead in the story, the final peace order was denied for Mr. Elliot.
7

for six months.10 Then, at the end of the hearing, I learned I was being arrested. I have read the
Application for Statement of Charges the arrest was based on. It was filled with falsehoods and
signed by Mr. Kimberlin. While that cannot be considered as proof that my arrest on that day
was based on false charges, it is the basis of my belief that I was subject to false arrest based on
Mr. Kimberlins misconduct.

So projecting my own experiences onto Mrs. Kimberlin, I

assumed that Mr. Kimberlin had filed false charges against her.
16.

Therefore, Mr. Hoge III and I conferred and agreed that there was nothing more to

see that day and left the courtroom. We then sought to learn what criminal charges might have
been filed and discovered that there was no evidence of any charges. Upon information and
belief, my assumption that charges had been filed was wrong: I was later told that Mr. Kimberlin
had filed a petition to have Mrs. Kimberlin committed for alleged mental health reasons and that
there was a hearing on that petition after Mr. Hoge and I left the courtroom. While I believe that
to be the truth, I recognize this hearsay cannot be accepted as evidence. What I can say is that if
there was such a hearing, it occurred after I left, and I did not witness any hearing related to
anyones mental health.
17.

Shortly after that, Mrs. Kimberlin entered into an attorney-client relationship with

me. So did Mr. Elliot. While no formal agreement was written down, such formalities are not
necessaryan oral agreement is sufficient. She also didnt pay me, because I provided my help
to her pro bono. The meeting where this agreement was entered into was witnessed by multiple
third parties. At the same time, I also entered into a similar agreement with Mr. Elliot.
18.

The rules of ethics allow me to pierce privilege to the extent needed to defend

myself from false claims of attorney misconduct, but I will minimize the intrusion into Mrs.

10

This was overturned on appeal by Judge Rupp.

8

Kimberlins privilege to only that which is necessary. I will state that I have never written any
knowingly false document for any person. I also have never manipulated any client. Indeed, I
rarely even make recommendations to clients. My reputation is that I am a lawyer who does not
attempt to control his clients as much as some other lawyers do. I believe my clients are all
capable of making their own decisions. While I am not qualified to diagnose Mrs. Kimberlin, I
never detected anything that raised a red flag about her mental health. I had every reason to
believe that I was dealing with fairly intelligent and stable person. That cannot be considered
proof of her mental statusbecause I am not qualified to offer that diagnosisbut it shows that I
had no reason to believe that she was mentally ill.
19.

I have never knowingly written any falsehood about the Kimberlins in any context

(pure jokes are excepted from that statement).

20.

At one point, Mrs. Kimberlin wrote to me that she planned to leave the country,

leaving her children and husband behind. I do not recite that to claim it is the truth, only to
explain the context of my response. As I was still her attorney, I asked her if Mr. Kimberlin had
threatened her or attempted to blackmail her. I further suggested that if either was the case, that
she might be able to go to the States Attorney Office to arrange for protection or that I could
reach out to them for her. I made that suggestion because others had reported to me that they had
been subjected to blackmail attempts by Mr. Kimberlin and because Mrs. Kimberlins own first
petition for a protective order included a claim that Mr. Kimberlin had threatened her if she
attempted to obtain custody of her children. I did not state as a fact that Mr. Kimberlin had
threatened her or was blackmailing her, and I did not suggest to her to falsely accuse her husband
of either threats or blackmail. I merely raised the possibility that this might be happening in due
diligence as an attorney.

21.

I did state that Mr. Kimberlin is not a fit father. I have become convinced that

Mr. Kimberlin is a pedophile in the sense that he is attracted to underage girls, in significant part
by Mrs. Kimberlins credible accusations made in my presence and the presence of others as well
as other evidence. When I stated that I believe this to be the case publicly, Mr. Kimberlin sued
me for that and lost on the issue of truth. It is not a radical opinion to believe that a pedophile
attracted to underage girls is not a fit father for underage girls, and, in any case, I am entitled to
that opinion.
22.

Any claim that I have attacked Mrs. Kimberlin is false. I have stated that she

has filed false charges against me which is the basis of this suit. However, I have always also
recognized that her false charges might have been filed under duress or in exchange for being
allowed to see her children. I do not know this is what has happened, but my experience in
helping people who were in abusive relationships suggest that I should be aware of these
possibilities.
23.

In TK Affidavit 7 she claims that I have implied that if her daughters friends

have sleep-overs that this would place them in danger of sexual abuse. Given my beliefproven
not to be defamatory in this Court in a different casethat Mr. Kimberlin is a pedophile, this is a
reasonable opinion. If I had a young daughter, I would never allow her to stay at the Kimberlin
household.
24.

Mrs. Kimberlin accuses me in 8 of telling depraved sexual lies about my

husband, my daughter and me. First, I have told no lies. Also I have not told any depraved
truths about her daughters. Further, to the extent I have arguably told any depraved sexual
truths about Mrs. Kimberlin, I have simply reported what she has said about how her husband
seduced her when she was a teenager and when she caught Mr. Kimberlin attempting to seduce

10

her cousin (who was twelve years old at the time). In each instance, I have portrayed her not as
deviant but rather a victim of what is considered sexual abuse under Maryland law.
25.

Finally, although it is an irrelevancy, I have no non-privileged information about

how Mr. Hoge filed his lawsuit. This does not mean I have privileged information on the
subject, only that I have no knowledge outside the cloak of privilege.

I, Aaron Walker, solemnly affirm under the penalties of perjury and upon personal
knowledge (unless otherwise indicated) that the contents of this paper are true and correct.
Where the information is identified as not being based on personal knowledge, I solemnly affirm
that such information is true to the best of my knowledge, information, and belief and that all
exhibits are true and correct copies of the originals.
Dated:

__________________________________
__________________________________
(print name of notary public)
NOTARY PUBLIC

My commission expires on:

11