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August 17, 2021 Lewis F. Powell Jr. Courthouse & Annex 1100 East Main Street, Suite 501 Richmond, VA 23219 Re: Bonetti v. City of Alexandria et al 0:21-cv.pr-01820 Dear Madam/Sir: Please find enclosed a copy of pro se plaintiff’s initial brief for filing. Payment of the $505 filing fee was sent yesterday. Thank you for your kind assistance. Kindest regards, Eric J. Bonetti Pro Se 4129 Fountainside Lane #203 Fairfax VA 22030 Eric.bonetti@protonmail.com 703-973-4984

ERIC J. BONETTI,

UNITED STATES DISTRICT COURT OF APPEALS FOR THE FOURTH CIRCUIT CIVIL DIVISION Plaintiff, CIVIL Case No. 0:21-cv.pr-01820

vs. EPISCOPAL DIOCESE OF VIRGINIA, ROBERT HILLER MALM, CITY OF ALEXANDRIA, COMMONWEALTH OF VIRGINIA, EPISCOPAL DIOCESE OF MASSACHUSETTS, ST. GABRIEL’S EPISCOPAL CHURCH, Defendants

INITIAL BRIEF

COMES NOW PLAINTIFF, Eric J. Bonetti, appearing pro se, and files this initial brief in the abovecaptioned appeal from the Federal District Court for the Eastern District of Virginia. HISTORY This is one of a series of cases that arose from Defendant Robert Hiller Malm’s (“Malm”) actions, and by extension those of various employers and organizations standing in privity with him, including the Episcopal Diocese of Virginia and the Episcopal Diocese of Massachusetts. The controversy arose on or about 2017, when Malm, an priest within the hierarchical Episcopal Church, employed by the Episcopal Diocese of Virginia and its constituent Grace Episcopal Church in Alexandria, VA, contacted the Alexandria police to claim that Plaintiff was threatening him. Specifically, Malm claimed that various words, taken out of context from a blog published by Plaintiff’s late mother, Sigrid Yahner, were somehow threats against him and were attributable to Plaintiff. For example, Malm cited as a threat a scholarly discussion, by a psychologist of Muslim faith, of the deleterious effects of shunning, which the psychologist described as “psychological torture.” Similarly, he claimed that Ms. Yahner’s long-standing collective pseudonym, “The Killer B’s,” drawn from her love for the similarly

Plaintiff’s Initial Brief

named-group of Pittsburgh Pirates baseball players (and a beloved classic rock band in Richmond, known as the Killer B’s), was a threat. And Malm cited use of the word “suicide” in a message from a parishioner to Plaintiff — in which the parishioner urged Plaintiff to commit suicide — was somehow a threat. Needless to say, if the latter was, in any way, a threat, the threat was on the part of the original author and directed not at Malm, but rather the Plaintiff. It is important to note that Malm’s decision to bring a civil action was based largely on a recommendation from SGT. Wilbur Salas, an officer with the Alexandria police department. Salas, who had investigated Malm’s complaints and declined to pursue them, made this recommendation in a meeting with Malm and other church representatives, despite not being licensed to practice law in Virginia. During the ensuing trial in the Alexandria General District Court, Defendant Malm made various statements against interest: -

That he had not seen the Plaintiff, in public or private, in more than a year.

That he had had no communications with Plaintiff in more than a year.

That Plaintiff had not threatened him.

Malm also entered into evidence various ad hominem attacks against the Plaintiff, including none-toosubtle insinuations of mental illness, as well as facially irrelevant information, such as fictitious claims that Plaintiff had not “followed the directives of the bishop.” Despite these admissions, the Court granted a two-year protective order, noting that there was “some connection between [the Plaintiff] and the blog.” That, of course, sidesteps two issues 1) that the blog was not even remotely threatening and 2) even if the blog were threatening, “some connection” with the blog and its contents is not sufficient to impose a protective order.

Plaintiff’s Initial Brief

Plaintiff, then represented by counsel, immediately appealed. Malm and the Episcopal Diocese of Virginia were represented by attorney Jeffery Chiow, a former vestry member of Malm’s immediate employer, Grace Episcopal Church. It should be noted that, as both a practical and legal matter, the diocese exercises dominion and control over Defendant Malm due to its hierarchical nature. During discovery, Malm repeatedly refused to specify how he had been threatened – a pattern that continues to this day in related litigation. Moreover, via counsel, Malm repeatedly lied to the courts, including claiming that Plaintiff had never served as a police officer and never been licensed to practice law. This trend continues, with Wayne Cyron, defense counsel, recently telling the Alexandria Circuit court in pleadings that Plaintiff has blogged under the names of his siblings. That was an utter fabrication, as Plaintiff’s only sibling, a brother, died almost exactly 27 years ago prior. Yet Cyron continues to ignore Plaintiff’s requests pursuant to Rule 3.3 to retract or correct his fabrication, thus violating his duty of candor to the tribunal.1 Malm also committed perjury during discovery, falsely claiming in writing, under oath, while advised by church legal counsel that “time after time” Plaintiff’s mother and others had repeatedly contacted him to set up appointments, only to cancel. This fabrication was highly material, for Malm cited it as his reason for contending that Ms. Yahner’s blog was actually that of Plaintiff. Yet to this day Malm has refused to provide any support for this claim, and his perjured himself in other courts, falsely claiming that he did not commit perjury.

1 Plaintiff hopes that, should further ethics violations occur, the Court will take appropriate measures against Mr.

Cyron.

Plaintiff’s Initial Brief

Malm’s other litigation-related conduct, and that of Mr. Chiow, was similarly unethical. This included concealing evidence during discovery in the form of an email in which Malm had expressly stated in writing that he had not been threatened; this was uncovered in subsequent litigation. In another case, Malm failed to provide an email, squarely within the ambit of discovery, in which he engaged in defamation per se by falsely claiming that Plaintiff had embezzled. Moreover, Malm lied to the Episcopal bishop of Virginia, Shannon Johnston, fabricating the timing of Plaintiff’s membership in his parish, apparently to avoid the potential question, “If [Plaintiff] is such a scumbag, why did you have him serving on your church’s vestry?” Plaintiff avers that this spoliation of evidence, combined with Defendant Malm’s fabrications, evinces actual malice. Nor did Malm’s misconduct stop there. On multiple occasions, Malm and his wife Leslie engaged in witness tampering, contacting persons they knew would be witnesses for the Plaintiff to urge them to withdraw their support. Witnesses contacted include Darlene Parsons, a friend of the Plaintiff and publisher of The Wartburg Watch, a blog that covers church abuse and has repeatedly covered Malm’s misconduct. Similarly, Malm contacted the Rev. Bob Perry and the Rev. Richard Wall, both of whom are likely to be called as witnesses for the plaintiff. Moreover, Malm continued his efforts to contact Ms. Parsons, making calls as recently as December 20, 2020, despite multiple requests to defense counsel that this conduct stop. During the appeal, Malm’s attorney followed a scorched earth policy. As previously stated, he refused to specify how his client had been threatened, and ignored an order to compel discovery granted by the Alexandria Circuit Court. He deployed inflammatory rhetoric, referring to Plaintiff in his pleadings as a “domestic terrorist,” and even tried to drag Ms. Yahner, Plaintiff’s mother, then late-stage terminally ill, incontinent, dependent on morphine and oxygen, and suffering from an acute anxiety disorder, into court for deposition in violation of Pennsylvania state law, which requires prior leave of court in

Plaintiff’s Initial Brief

protection from abuse cases. This effort was quashed summarily by the Pennsylvania courts, and led Ms. Yahner’s attorney to comment, “This attorney is coming at you with a personal vendetta.” It also should be noted that in one case, Defendant Malm drove up to Plaintiff, calmly parked his vehicle, climbed out, and began screaming terroristic threats at the Plaintiff, including to have him dragged away and more. This makes clear that Malm did not, in fact, fear for his safety. Yet both the courts and the Alexandria police refused to take any action in this matter — despite their willingness to get involved over vague assertions that phrases like “psychological torture” by a third party are somehow real threats. Eventually, due to the rising costs resulting from Malm’s litigation-related misconduct, and an abrupt decline in Ms. Yahner’s health, Plaintiff was forced to discontinue the appeal. Throughout the litigation, and in the months that have followed, Plaintiff has repeatedly asked the city of Alexandria to investigate Malm’s falsified police reports, his perjury, his witness tampering, and more. In every instance, the city has refused to do so. Plaintiff avers that this represents a pattern and practice of discrimination no different than, if for example, it refused to respond to complaints from African-American persons, or persons of Muslim faith. Moreover, its refusal to do so is arbitrary, capricious, and lacks even a rational basis in its refusal to maintain the integrity of the judicial system. Moreover, this pattern and practice extends not just to a handful of police officers, but to city officials at every level, including the mayor, city council, the commonwealth attorney, and the city attorney. It should also be noted that, in addition to the chilling effect that Defendant Malm’s use of the protective order process as a SLAPP has had on Plaintiff’s First Amendment rights, the City of Alexandria, acting through its police department, has repeatedly engaged in activity intended to have a chilling effect. Specifically, Plaintiff has been stopped and interrogated numerous times while peacefully

Plaintiff’s Initial Brief

protesting on public land, often on a pretextual basis. One officer, for example, claimed that Plaintiff was engaging in “suspicious activity.” Another claimed that Plaintiff was “obstructing” an empty sidewalk that had seen no pedestrians in more than an hour. Yet another claimed Plaintiff was in the middle of traffic.2 Similarly, the Episcopal Dioceses of Virginia and Massachusetts have refused to deal with Malm’s perjury and other misconduct, on the grounds that they will not get involved absent criminal charges. And while all involved understand that the courts cannot inquire into the internal workings of the church, Plaintiff finds it telling when the Diocese requires no such showing in cases in which, for example, it defrocks clergy accused of having extramarital affairs, as happened in 2016 in the case of a rector located in Northern Virginia. The Alexandria Courts have been similarly unresponsive. The General District court rejected a challenge out of hand, despite myriad examples of Malm’s perjury. The case pending before the Alexandria Circuit is proving similarly difficult, with the judge refusing to compel discovery, even in the case of facially evasive answers, even as the judge refuses to enjoin Malm from witness tampering and further threats against the Plaintiff. For example, in one case Defendant Malm claimed to be unable to answer questions about an email on the basis that it was in the possession of his attorney. This sort of evasive conduct calls into question both the veracity of the defendant, as well as the integrity of the attorney willing to proffer these discovery responses of this ilk. Recently, additional litigation between the parties arose in Massachusetts. This happened after Plaintiff peacefully protested outside St. Gabriel’s church, where Malm was serving as interim rector. Someone

2 For the record, Plaintiff is well aware of the driving habits of persons in Northern Virginia and much prefers the

safety of the sidewalk, preferably with a large object between him and vehicles. At no point has Plaintiff deviated from this approach.

Plaintiff’s Initial Brief

in the church called the Marion police on Malm’s behalf, who agreed that nothing illegal had occurred, but stated that Malm had told them that Plaintiff has “stalked,” “threatened” and “harassed” Malm and his family. The matter went to the Wareham District Court, where Malm again repeatedly committed perjury. Among other things, Malm claimed that Plaintiff had posted photos of his wife on porn websites — a laughable proposition, as Plaintiff does not visit porn websites and has no photos of Malm’s wife that would qualify for placement on sites of this nature.3 Similarly, Malm claimed that Plaintiff’s one blog, located at www.stgabrielsmarion.com, which decries Malm’s perjury, was an attempt at an imposter website, and thus somehow constituted harassment. Given that the footer on the website expressly states, and always has stated, that it is not an official website, Malm’s claims are ludicrous, fabricated, and irrational. Nor would any rational actor conclude, even based on the content sans footer, that it was a church website. Most importantly, Malm denied his earlier perjury before the Alexandria courts, claiming that he did not lie about Ms. Yahner’s alleged appointments with him, on the basis that he didn’t even know her name. Yet the perjury in question expressly referenced her as “Sigrid Yahner.” Plaintiff avers that this was highly material, for had Defendant told the truth, the Wareham Court would have looked with a jaundiced eye on Malm’s other testimony and readily recognized his fabrications. And while there is a slow-moving criminal investigation under way in Massachusetts into Malm’s perjury, Plaintiff suspects that Malm’s propensity for fabrication, combined with perceptions based on Malm’s role as an Episcopal priest, will result in few if any consequences.

3 Plaintiff eagerly anticipates learning on which porn sites Mr. Malm, an Episcopal priest, claims to have found his

wife’s photo.

Plaintiff’s Initial Brief

It should also be noted that Malm’s comments to the police and the courts are not only fabrications — the are logically impossible as well. Not only have the parties had no direct or indirect contact in years except through the courts, but Malm’s claims beg the question: If those claims were true, why did Malm not seek redress with the Alexandria Courts at any point (through January 24, 2020) on the basis of his fraudulently obtained protective order? The clear answer is because Malm knows full well he was not threatened, stalked, or harassed, but continues to display sociopathic conduct that includes lies and excessive charm, and trades upon his status as clergy. As of this writing, the Wareham case is on appeal. In the meantime, Plaintiff notes that one of Defendant Malm’s tactics is to claim that he is somehow being harassed in the courts. The reality, however, is that there are all cases against him are counterclaims based on Malm’s own filings. In other words, had Malm not decided to go to court and commit perjury, or to try to depose the terminally ill in violation of Pennsylvania state law, he he would not now find himself in the midst of the present litigation. Assignments of Error Plaintiff avers that the Federal District Court, in dismissing the case, made several errors: -

It failed to recognize that Plaintiff is pro se. While Plaintiff may be more cogent than some petitioners, the fact remains that he lacks access to the legal research and other capabilities available to the defendants.

It failed to recognize the pattern and practice of conduct that Plaintiff is alleging apropos the City of Alexandria, which includes a failure to protect Plaintiff, to afford him equal access to the protection of the police department and associated investigatory resources, and to brush aside at every level his complaints about Malm’s perjury, witness tampering, and spoliation of

Plaintiff’s Initial Brief

evidence. Nor are these the random actions of a few police officers, but a pattern and practice of putting a finger on the scales of justice so as to consistently favor Malm and his perjury. -

It failed to recognize that the protective order is an infringement on Plaintiff’s First Amendment rights, and violative of due process and equal protective. In short, if a person can receive a protective order on the basis that he regularly blogs about an issue, or uses the word “suicide,” or the phrase “psychological torture,” or Malm’s other ludicrous fabrications then, for example, the New York Times can be subject to a protective order on the basis that it regularly writes about a judge or a political figure and has somewhere used the word “murder” or similar socalled “threats.” Simply put, while true threats receive no constitutional protection, the fact that someone doesn’t like content and applies random labels to it is not sufficient to overcome First Amendment protections.

It failed to recognize that violations of constitutional rights are per se indicative of damage. Plaintiff need not show loss of income or other specific damages to invoke the protection of the courts or his constitutional rights.

It failed to even consider Plaintiff’s request to grant an injunction to prohibit Malm and his family from accessing the Plaintiff’s blog, which sits behind electronic security measures designed to prevent them from accessing the blog. Moreover, the blog’s terms and conditions expressly prohibit Malm from accessing the blog—a situation akin to that of Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (WJM) (D.N.J. Aug 20, 2013), which expressly held that restricted Facebook content falls within the purview of the Stored Communications Act.

Plaintiff also notes that the courts, the City of Alexandria, and indeed the Episcopal Church have fallen into a logical “goofy loop” in that they recite Defendant Malm’s obtaining a protective order as somehow indicative of his veracity, all while ignoring the fact that Malm did so through a web of deceit,

Plaintiff’s Initial Brief

lies, perjury, and fabrication. Thus, the protective order does not support Malm’s veracity, but is instead the objectionable fruit of his myriad fabrications, which have been encouraged, aided, and abetted by the City of Alexandria. Meanwhile, Defendants conveniently ignore the fact that Plaintiff has a flawless record, with no criminal or moving violations, and has successfully passed a full psych evaluation and polygraph. Moreover, missing from the Defendants’ narrative is any explanation as to how Malm can be telling the Massachusetts courts the truth when he claims Plaintiff has “stalked,” “threatened,” and “harassed” him, yet Malm has never claimed any violation of the original protective order, and has not sought redress in the Alexandria courts. Also of note is the fact that Plaintiff very publicly asserts that Defendant Malm is a perjurer, including on his blog. Plaintiff is fully aware of the seriousness of this assertion and the fact that it would be defamatory were it not true. Indeed, Plaintiff has challenged Defendant Malm, in open court, to sue for defamation if Malm believes that he is not a perjurer. Yet no such action has been brought, and Plaintiff is confident that he will prevail should Malm decide to bring such a suit. Indeed, a review of Malm’s legal billing records, obtained via discovery, reveals that Malm has considered this possibility before, even as he tells those around him that Plaintiff’s claims are false. But Malm does not pursue this option, as he well knows the end result would likely be criminal charges for him. RELIEF SOUGHT While Plaintiff recognizes that his pleadings lack the sophistication of those submitted by the Defendants, he believes that a reasonable person’s First Amendment rights would be chilled by the actions of the City of Alexandria and its police department. Moreover, he submits that the pretextual basis of the city’s conduct speaks to its underlying motives, and that it is not appropriate to stop and interrogate citizens solely based on the peaceful exercise of First Amendment rights on public property. He further notes that at no point has the City articulated any basis for its actions that involves specific allegations of questionable activity, and that the City is misinformed as to the number of times officers

Plaintiff’s Initial Brief

have interrogated Plaintiff and demanded identification. (Plaintiff also notes that in one instance, a police officer assigned to the police department’s internal affairs unit lied about his conversations with the Plaintiff. The City has sought to wrap this in a cloak of secrecy, yet it is indisputable that the officer in question, Patricio Alvarez, lied to other officers. This sort of secrecy is highly damaging to all involved, erodes trust in government, and makes accountability all but impossible.) Moreover, Plaintiff believes he has pled ample facts to demonstrate that the Virginia courts have denied Plaintiff the due process and equal protection of the laws, and have also infringed his First Amendment rights. Simply put, Malm’s fabrications and perjury, often facially obvious, along with his witness tampering and spoliation of evidence, provide no support for any judicial action, except a criminal prosecution of him for perjury, contempt of court, and obstruction of justice. Similarly, the City of Alexandria has consistently violated Plaintiff’s constitutional rights, and at every level of city government, including his right to the equal protection of the laws and to be protected from Defendant Malm’s criminal conduct. Plaintiff avers that it does so on the basis of a pattern, practice and custom of favoring Malm, based on his employment as clergy. At the same time, the City appears dead set on avoiding even considering any evidence that would contravene its bias in favor of Malm. In short, this is a case of absolute bias and arbitrary and capricious conduct that does not even pass rational basis analysis. Moreover, it is shocking and outrageous that city police officers are permitted to engage in the unauthorized practice of law. The decision to go to court is one that should be made on the advice of legal counsel, with consideration given to the financial, reputational, and other aspects of litigation. Yet based on SGT. Wilbur Salas’ advice — likely in consultation with the City Attorney’s office — Malm blundered into court, even going so far as to say he didn’t know he needed an attorney. And having

Plaintiff’s Initial Brief

gone to court based on the advice of the City, it is disingenuous for the City to now try washing its hands of the results of its ill-considered venture into a private civil dispute. Nor should Malm enjoy special privileges as Episcopal clergy. Malm’s conduct has been shocking, outrageous, and appalling, and yet the Episcopal Church, the courts, the City of Alexandria, and local law enforcement continue to ignore his conduct. Moreover, it is shockingly easy to prove Malm’s perjury — all one has to do is to ask him for proof that Sigrid Yahner, or someone purporting to be her — made an appointment with him, ever. Malm has no such proof, but will instead try to reframe the question, gaslight the questioner, sidestep it, and more. In short, this case comes before the court as an egregious breakdown of the checks and balances that normally prevent injustices of this sort. Sooner or later, someone needs to simply take a deep breath, ask Malm for specifics, and start wading through his myriad fabrications, his spoliation of evidence, his witness tampering, and other outrageous conduct, while setting aside the perceived credibility of his job. But as things stand, this is a case of non-sexual abuse and organizational cover-up on a par with the most egregious cases of sexual abuse we see coming out of houses of worship. Therefore, Plaintiff asks that the Court of Appeals: •

Obtain a sworn statement from Defendant Malm that he did not commit perjury during discovery in the Alexandria lawsuit, and before the Wareham Massachusetts Courts. Should Malm provide such a statement, its veracity can be readily disproved. This in turn will permit criminal prosecution of Malm at the federal level, thus preempting layers of needless litigation in the lower courts.

Plaintiff’s Initial Brief

•

Reverse and remand the District Court’s dismissal of his case as against all defendants, including the Commonwealth of Virginia, acting through the Alexandria General District Court and Alexandria Circuit Court.

•

Grant an injunction prohibiting Defendant Malm and his family from accessing Plaintiff’s blog located at https://www.gracealexwatch.org (surely an easy request, since Malm claims that the blog is a form of “domestic terrorism”).

•

Reinstate his ancillary action against St. Gabriel’s Church and the Episcopal Diocese of Massachusetts.

•

Grant all such other relief as may be warranted. Signed under oath and penalty of perjury this 17th day of August, 2021.

Plaintiff’s Initial Brief

Certification of Service I certify that I have emailed copies of this pleading to defense counsel per the below, this 17th day of August, 2021: Craig D. Roswell, Esquire (VSB No.: 33901) Matthew J. Youssef, Esquire (VSB No.: 85339) NILES, BARTON & WILMER, LLP 111 S. Calvert Street, Suite 1400 Baltimore, Maryland 21202 (410) 783 –6357 (410) 783 –6452 cdroswell@nilesbarton.com mjyoussef@nilesbarton.com Counsel for Defendant, Grace Episcopal Church and Episcopal Diocese of Virginia Wayne F. Cyron, Esquire (VSB No. 12220) CYRON & MILLER LLP 100 N. Pitt St., Suite 200 Alexandria, VA 22314 703-299-0600 703-299-0603 (fax) wcyron@cyronmiller.com Counsel for Defendant, Robert H. Malm Alexandria City Attorney 301 King Street, Suite 1300 P. O. Box 178 Alexandria, Virginia 22313 George.mcandrews@alexandriava.gov Virginia Office of Attorney General Via email Respectfully submitted, Eric J. Bonetti Pro se plaintiff 4129 Fountainside Lane 203 Fairfax VA 22030 703-973-4984 Eric.bonetti@protonmail.com

Plaintiff’s Initial Brief

Exhibit A — Defendant Malm’s Perjury — Virginia Perjury

Plaintiff’s Initial Brief

Exhibit A, Defendant Malm’s Perjury, Cont’d — Massachusetts Perjury

Plaintiff’s Initial Brief

Exhibit B — Defendant Malm’s Witness Tampering — Ms. Darlene Parsons

Plaintiff’s Initial Brief

Exhibit B — Defendant Malm’s Witness Tampering, Cont’d — Plaintiff’s Church and Employer

Plaintiff’s Initial Brief

Exhibit C— Fraudulent Concealment of Evidence — Defamatory Email Expressly Within Ambit of Discovery, Not Produced in Initial Litigation

Plaintiff’s Initial Brief

Exhibit C — Fraudulent Concealment of Evidence — Statement Against Interest, Expressly Within the Ambit of Discovery, Not Produced During Initial Litigation

Plaintiff’s Initial Brief

Exhibit D — Notice to Prior Defense Counsel to Cease all Contact

Plaintiff’s Initial Brief

Exhibit E — Actual Notice to Defendant to Cease all Contact

Plaintiff’s Initial Brief