He'll also tell you he's a freelance journalist, although his activities were limited to "publishing" "Common Sense II", an e-mail newsletter sent to Pima County civic activists and officials, including myself, for a while. I was even the subject of one of these pamphlets, due to my involvement with the ACLU-AZ. He even threatened to report me to the bar association; he can go ahead and report me to all the bars in town, and probably get better results, as I'm not a lawyer. Of late he's been stating in public fora that I'm a member of the Man Boy Love Association and a child-molester; I'm about as much a homosexual as I am a lawyer! As I understand it, he's not a prohibited posessor, but perhaps I can get his gun through a defamation suit? He's nearly indigent, and a Glock is a heck of a lot nicer than my Taurus.
Roy lives in a strange fantasyland in which legal representation constitutes endorsement of a client's views. If you've wondered why he reserves especial venom for the ACLU and his former pro-bono counsel, it's because they dropped him like a hot potato after he made statements to the media insinuating that they supported his conspiracy theories about Barbara LaWall, even after being asked to stop. Warden thinks his rights were violated. As his former counsel, who is a friend of mine, is still practicing law without any penalty from the Bar Association, I'm inclined to say Warden is incorrect on that point.
If you've wondered what he's been up to lately, read the 43 USC 1982 complaint below. To Roy, Roy is ever a victim. Isn't that a symptom of a mental problem? I waver between hating and pitying the fool, depending on whether it's a defect of character or a defect of the brain.
Roy Warden, Publisher
Common Sense II
PO Box 16466
Tucson, Arizona 85732
(520) 881-0535
commonsense@syninfo.com
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
ROY WARDEN, Plaintiff, IN FORMA PAUPERIS Vs
BOB WALKUP, individually and in his official capacity as Mayor of the City of Tucson; NINA TRASOFF, individually and in her official capacity as Councilperson for the City of Tucson; CAROL WEST, individually and in her official capacity as Councilperson for the City of Tucson; SHIRLEY SCOTT, individually and in her official capacity as Councilperson for the City of Tucson; KARIN UHLICH, individually and in her official capacity as Councilperson for the City of Tucson; JOSE IBARRA, individually and in his official capacity as Councilperson for the City of Tucson; STEVE LEAL, individually and in his official capacity as Councilperson for the City of Tucson; MIKE HEIN, individually and in his official capacity as City Manager for the City of Tucson; MIKE RANKIN, individually and in his official capacity as Attorney for the City of Tucson; RICHARD MIRANDA, individually and in his official capacity as Chief of the Tucson Police Department; KATHLEEN ROBINSON, indivi-dually and in her official capacity as Assistant Chief of the Tucson Police Department; MIKE GILHOOLY, individually and in his official capacity as Captain of the Tucson Police De-partment; JEFF COLEMAN, individually and in his official capacity as Lieutenant of the Tucson Police Department; TRAYNOR, in-dividually and in his capacity as Officer of the Tucson Police Department; PEG WEBER, individually and in her official capacity as Northwest Director of the Tucson City Parks and Recreation Department; MARCO AL-CANTARA, individually and in his official capacity as employee of the Tucson City Parks and Recreation Department; WADE COL-WELL, individually and in his capacity as agent of the state; LUKE SALCIDO, individually and in his capacity as agent of the state; ARTURO RODRIQUEZ, individually and in his capacity as agent of the state, ALEXANDER RODRIQUEZ, individually and in his capacity as agent of the state; THE CITY OF TUCSON; THE TUCSON POLICE DEPARTMENT, and DOES 1-100, Defendants. ))) ))))))))))))))) )))))))))))))))))))))))))))))))))))))) Case No. CIV 07 190TUC CKJ FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF, COMPENSA-TORY AND EXEMPLARY DAMAGES FOR VIOLATIONS OF TITLE 42 U.S.C.§ 1983
COMES NOW the Plaintiff Roy Warden, in response to the Order of this Court dated April 27, 2007, with a Complaint for Damages against the Defendants, named and unnamed above, and as grounds therefore alleges:
I. INTRODUCTION
1. This is an action pursuant to the Civil Rights Act of 1871, 42 U.S.C. §1983 and 28 U.S.C. § 1343, seeking redress for the negligent and intentional deprivation of the Plaintiff’s constitutional rights. Venue is proper in the 9th District of Arizona, as all of the acts complained of occurred in Pima County Arizona.
II. JURISDICTION
2. This Court has jurisdiction over this action under 28 U.S.C. § 1343(a)(3) for negligent and intentional violations of constitutional rights as provided by 42 U.S.C. §1983. The Plaintiff seeks injunctive relief and monetary damages—including exemplary damages—as well as attorney fees and costs pursuant to 42 U.S.C. §1988.
3. The Plaintiff seeks redress for violation of the Plaintiff’s rights to speech, press, petition and assembly under the First Amendment of the Constitution of the United States, the Plaintiff’s right to be free of illegal seizures under the Fourth Amendment of the Constitution of the United States, the Plaintiff’s right to be free from malicious abuse of process and unlawful seizure as provided for by the Fourth and Fourteenth Amendments of the Constitution of the United States, and the Plaintiff’s right to due process of law as guaranteed by the Fourth and Fourteenth Amendments of the Constitution of the United States.
III. REQUEST FOR JURY TRIAL
4. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff requests a trial by jury.
IV. IDENTITY OF THE PARTIES
5. Plaintiff Roy Warden, writer and publisher of political newsletters Common Sense II, CS II Press and Director of the Tucson Weekly Public Forum, is a citizen of the United States and was a resident of Pima County Arizona at all times relevant to this complaint.
6. Defendant Bob Walkup was employed by the City of Tucson, and acted individually and in his official capacity as Mayor, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Walkup is sued in his individual and official capacities.
7. Defendant Nina Trasoff was employed by the City of Tucson, and acted individually and in her official capacity as Councilperson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Trasoff is sued in her individual and official capacities.
8. Defendant Carol West was employed by the City of Tucson, and acted individually and in her official capacity as Councilperson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant West is sued in her individual and official capacities.
9. Defendant Shirley Scott was employed by the City of Tucson, and acted individually and in her official capacity as Councilperson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Scott is sued in her individual and official capacities.
10. Defendant Karin Uhlich was employed by the City of Tucson, and acted individually and in her official capacity as Councilperson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Uhlich is sued in her individual and official capacities.
11. Defendant Jose Ibarra was employed by the City of Tucson, and acted individually and in his official capacity as Councilperson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Ibarra is sued in his individual and official capacities.
12. Defendant Steve Leal was employed by the City of Tucson, and acted individually and in his official capacity as Councilperson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Leal is sued in his individual and official capacities.
13. Defendant Mike Hein was employed by the City of Tucson, and acted individually and in his official capacity as City Manager, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Hein is sued in his individual and official capacities.
14. Defendant Mike Rankin was employed by the City of Tucson, and acted individually and in his official capacity as City Attorney, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Rankin is sued in his individual and official capacities.
15. Defendant Richard Miranda was employed by the City of Tucson, and acted individually and in his official capacity as Chief of the Tucson Police Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Miranda is sued in his individual and official capacities.
16. Defendant Kathleen Robinson was employed by the City of Tucson, and acted individually and in her official capacity as Assistant Chief of the Tucson Police Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Robinson is sued in her individual and official capacities.
17. Defendant Mike Gilhooly was employed by the City of Tucson, and acted individually and in his official capacity as Captain of the Tucson Police Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Gilhooly is sued in his individual and official capacities.
18. Defendant Jeff Coleman was employed by the City of Tucson, and acted individually and in his official capacity as Lieutenant of the Tucson Police Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Coleman is sued in his individual and official capacities.
19. Defendant Traynor was employed by the City of Tucson, and acted individually and in his official capacity as Officer of the Tucson Police Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Traynor is sued in his individual and official capacities.
20. Defendant Peg Weber was employed by the City of Tucson, and acted individually and in her official capacity as Director of the Northwest District of the Tucson City Parks and Recreation Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Weber is sued in her individual and official capacities.
21. Defendant Marco Alcantara was employed by the City of Tucson, and acted individually and in his official capacity as employee of the Tucson City Parks and Recreation Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Alcantara is sued in his individual and official capacities.
22. Defendant Wade Colwell, believed to be a resident of Pima County, acted indivi-dually and in his capacity as agent of the state, under the direction and control of Kathleen Robinson and other Defendants, when he assaulted Plaintiff on May 06, 2006 in Kennedy Park, Tucson Arizona, for the purposes of depriving Plaintiff of his constitutional rights.
23. Defendant Luke Salcido, believed to be a resident of Pima County, acted indivi-dually and in his capacity as agent of the state, under the direction and control of Kathleen Robinson and other Defendants, when he assaulted Plaintiff on May 06, 2006 in Kennedy Park, Tucson Arizona., for the purposes of depriving Plaintiff of his constitutional rights.
24. Defendant Arturo Rodriquez, believed to be a resident of Pima County, acted individually and in his capacity as agent of the state, (1) on June 03, 2006 in front of the Mexican Consulate when, under the direction and control of Kathleen Robinson and other Defendants, he assaulted Plaintiff for the purposes of interrupting Plaintiff’s rally and depriving Plaintiff of his constitutional rights, and (2) on December 15, 2006 when he testified at Plaintiff’s trial, under the direction and control of Pima County Legal Defender Isabel Garcia, for the purposes of depriving Plaintiff of his constitutional rights.
25. Defendant Alexander Rodriquez, believed to be a resident of Pima County, acted individually and in his capacity as agent of the state on December 15, 2006 when he testified at Plaintiff’s trial, under the direction and control of Pima County Legal Defender Isabel Garcia, for the purposes of depriving Plaintiff of his constitutional rights.
26. Defendant City of Tucson, a municipal corporation, is a unit of local government organized under the laws of the State of Arizona. The Tucson Police Department is a department of the City of Tucson.
27. Defendant Does 1-100 are (1) individuals who acted as agents of the state under the direction or control of named or unnamed Defendants, and (2) Tucson City employees, including employees of the Tucson Police Department, who acted individually and at the direction of their superiors, within their enforcement, administrative and executive capacities, under color of state law, regulations, customs and policies at all times relevant herein. Does 1-100 are sued in their individual and official capacities.
28. All named Defendants were served with Notices of Claim, pursuant to A.R.S. § 12-821.01, that included an administrative demand. None of the Defendants have responded to the administrative demand.
V. FACTS AND ALLEGATIONS
29. Plaintiff is an unpaid political activist working on behalf of the people of Pima County, the publisher of Common Sense II and CSII Press, and the Director of the Tucson Weekly Public Forum.
30. Plaintiff has spent the last 4 years investigating allegations of malfeasance within the legal and political institutions of Pima County, including the malfeasance of Pima County and Tucson City Officials who have used their public offices (1) to protect the financial interests of local contractors, etc., who now depend upon a continual flow of low cost Illegal Alien Mexican labor, and (2) to advance a left-wing political agenda, which includes but is not limited to the deliberate violation of federal immigration law, the flooding of the American Southwest with millions of Illegal Alien Mexicans, and the creation of a new empire called “Aztlan.”
31. Additionally, Plaintiff is the Plaintiff in Warden v Hoffman, Fell, Leonardo, etc., Case No. CV 05-020 TUC JCG, a Title 42 § 1983 action now before the Court, alleging Pima County employees and Pima County Superior Court Judges have committed a series of malicious, criminal and tortuous acts in violation of Plaintiff’s right to engage in political communication within the public areas, and on the front steps, of the Pima County Courthouse.
32. On April 10, 2006 Plaintiff participated in a lawful political demonstration pro-testing 15,000 left-wing Open Border Activists who had gathered in Armory Park, Tucson Arizona, to hear public speakers, including members of the Tucson City Council and Pima County Board of Supervisors, declare their support for the abolishment of the American/Mexican border, the overthrow of the United States Government and the governments of various states, and the creation of a new empire in the American southwest called “Aztlan.”
33. The theme of the Open Border Activists, as set forth on Congressman Raul Grijalva’s website, was “Hoy Marchamos! Manana Votamos!”
34. Plaintiff submits the Tucson Police Department After Action Report, dated May 10, 2006, accurately documents numerous acts of violence committed by Open Border Activists, including felony aggravated assaults on TPD Officers , in Armory Park, on April 10, 2006.
35. Sometime on or about April 11, 2006 both named and unnamed Defendants com-municated with officials from the Mexican Consulate , Pima County Legal Defender Isabel Garcia, and other prominent Open Border Activists, for the purposes of depriving Plaintiff of his constitutional rights.
36. On April 11, 2006, as a direct consequence of the communications between named and unnamed Defendants as set forth in paragraph 35, Plaintiff was arrested for events that occurred during the rally the previous day, charged with Reckless Burning , Criminal Damage, and Assault, denied a trial by jury, and tried before the bench of Tucson Municipal Court Judge Eugene Hays. On November 01, 2006, Petitioner was acquitted.
37. Several days after Plaintiff’s arrest on April 11, 2006, TPD assistant Chief Robinson came to his residence, promised TPD protection for Plaintiff’s future rallies and political events if he would agree not to demonstrate on May 01, 2006, and emphatically stated: “You don’t understand just how much these people hate you Mr. Warden. They mean to kill you!”
38. On or about May 05, 2006, Tucson Parks and Recreation Department employee Marco Alcantara submitted a fraudulent work estimate regarding repairs to the Armory Park Shuffleboard Court to North West District Supervisor Peg Weber, who, knowing it was fraudulent, gave it to Tucson City Prosecutor Alan Merritt for Plaintiff’s prosecution in Case One, as set forth in paragraph 36.
39. On May 06, 2006, while engaged in lawful political activities in Kennedy Park, Tucson Arizona, Plaintiff was assaulted by Wade Colwell, Luke Salcido, and other local Open Border Activists, in full view of Tucson Police Officers and KVOA News reporter Lorraine Rivera. That night, via a KVOA News interview conducted by Lorraine Rivera, Wade Colwell stated the purpose of his assault was to prevent Plaintiff and his supporters from engaging in political speech and the commission of symbolic acts protected by the First Amendment of the United States Constitution.
40. Just prior to the assault on May 06, 2006 Wade Colwell asserted his prior com-munications with TPD Assistant Police Chief Kathleen Robinson, whom Colwell stated, counseled him and others and approved of the assault: “We spoke with Kathy (Robinson) for 2 hours. She told us what we could do!”
41. Plaintiff now possesses a DVD video recording revealing Assistant TPD Police Chief Robinson and other uniformed police officers aiding, abetting, and con-gratulating Colwell, Salcido, and other activists, for the success of their assault in Kennedy Park on May 06, 2006, which did prevent Plaintiff and his followers from completing their speeches and committing the constitutionally protected symbolic act of Burning the Mexican Flag .
42. On June 03, 2006 Plaintiff participated in a political demonstration in front of the Mexican Consulate, located at 553 S. Stone Street, Tucson Arizona. At this and all future events, Plaintiff erected a simple rope barrier to maintain a perimeter between speakers and counter-demonstrators, and to protect public safety .
43. During the June 03, 2006 protest in front of the Mexican Consulate, Plaintiff was compelled to take minor defensive measures to promote public safety and to repel an assault committed by Arturo Rodriquez, a “Chicano” student activist and self proclaimed “proud member of MEChA ” who pushed across Plaintiff’s rope barrier and advanced menacingly towards the public speaker.
44. On June 06, 2006 Plaintiff was arrested during a demonstration outside the Tucson City Council and charged with Assault, Disturbing the Peace and Making Threats and Intimidation, all misdemeanor charges arising out of Plaintiff’s po-litical activities outside the Mexican Consulate on June 03, 2006. The case was eventually assigned (again) to Tucson Municipal Court Judge Eugene Hays. Again, Plaintiff was denied trial by jury.
45. On December 15, 2006 Defendants Arturo and Alexander Rodriquez testified at Plaintiff’s trial, under the direction and control of Pima County Legal Defender Isabel Garcia, who gave hand signals and otherwise “coached” both Defendants while each gave testimony. See December 15, 2006 Letter of Laura Leighton, former paralegal employed by the Tucson City Public Defender, to Judge Hays. (Exhibit One)
46. On December 22, 2006 Plaintiff was legally restrained from giving additional testimony and convicted by Judge Hays, in absentia , for assault, and two counts of making threats and intimidation. Subsequently, Judge Hays sentenced Plaintiff to three years probation, prohibited Plaintiff from going within 500 feet of any public demonstration (even his own) and suspended Plaintiff right to carry a side arm in self defense. The conviction and sentence are now under appeal.
47. On August 17, 2006, Plaintiff and a group of supporters were prevented from engaging in public speech using a public address system from a public sidewalk located directly across the street from the entrance to the Armory Park Commun-ity Center, where a group of Open Border Activists, led by Isabel Garcia and Congressman (CDR 7) Raul Grijalva, were conducting what had been advertised as a “public meeting to address community concerns on border issues.”
48. Defendant TPD Assistant Chief Robinson moved Plaintiff and supporters ½ block away to another location; when Plaintiff asked Defendant Robinson her authority for moving the group’s location and denying his use of a bullhorn, she provided none, other than to say, “If you don’t stop you will be arrested.”
49. On March 06, 2007, during the customary “Call to the Audience” portion of the Tucson City Council meeting, Plaintiff announced the beginning of the Tucson Weekly Public Forum, and offered robust condemnation to the Mayor and City Council for their support of Open Border Policy, the violation of federal immi-gration law, and the importation of millions of Mexican Illegal Aliens into the United States.
50. On March 12, 2007 between 11:45 am. and 1:15 pm , Plaintiff convened the first Tucson Weekly Public Forum on the public sidewalk, near the corner of Pen-nington and Stone, adjacent to the Tucson City Public Library, and began distributing the “Isabel Garcia” edition of Common Sense II to all those in attendance. (Exhibit Two)
51. Plaintiff’s literature was torn up by “Chicano” students. Plaintiff was sworn at, spat upon and threatened with death by these same “Chicano” students, in spite of Plaintiff’s invitation to enter the rope barrier, use the public address system and speak, all in full view Tucson Police Officers who stood idly by and did nothing to stop the assaults or to maintain public order.
52. On March 13, 2007 Plaintiff, via the “Call to the Audience”, again excoriated the Mayor and Tucson City Council, and declared: “For the past 25 years the business of Pima County and Tucson has been the importation and exploitation of Illegal Alien Mexicans, and for 25 years business has been good!”
53. On March 19, 2007 Plaintiff held the second Tucson Weekly Public Forum. A crowd of “Chicano” students gathered, including self announced members of “La Raza” and “MEChA” who (apparently) originated from the Calli Olin Academy, a charter school adjacent to “Chicanos por la Causa ”.
54. The “Chicano” students again ignored Plaintiff’s invitation to speak, declared that Plaintiff would be raped should he ever end up in jail, and began spitting on and swearing at Plaintiff and other public speakers, in full view of Tucson Police Officers, including Captain Gilhooly and Lieutenant Coleman, who stood idly by and made no effort to stop the assaults or to maintain public order.
55. Via public address system, Plaintiff described the rape threats with particular detail, excoriated Pima County Legal Defender Isabel Garcia, and declared: “Someday federal agents are going to surround your building, come into your office and arrest you!”
56. At Captain Gilhooly’s direction, Petitioner was cited for violation of the Tucson City Sound Ordinance, TCC 16-31 (A), in spite of the fact Tucson Police made no attempt to measure the decibel level of Plaintiff’s speech, as required by law.
57. On March 20, 2007 during the “Call to the Audience”, Plaintiff turned his back on the Mayor and Tucson City Council, and, in sum and substance, told the citizens in attendance: “On the issue of illegal immigration, there is a concert of action between the Tucson City Council, Legal Defender Isabel Garcia, and rich contractors, to import Illegal Mexican Aliens, exploit their labor and exploit their votes.”
58. Plaintiff invited members of the audience to attend the Tucson Weekly Public Forum, to speak their views, “…especially if they are contrary to mine. We want to hear the Left Wing explain just why we need to keep importing and exploiting Mexico’s poor.”
59. On March 26, 2007 Plaintiff held the third Tucson Weekly Public Forum, inside its’ customary and necessary protective rope barrier, at its’ usual location, on public property, near the corner of Pennington and Stone.
60. Plaintiff began his public address by robustly excoriating Judge Hays’ attempt to silence his public speech, concluding: “Municipal Court Judges don’t have the authority to silence political speech.” Plaintiff then extended an invitation to speak via the public address system to the “Chicano” students who had begun to gather.
61. One of the “Chicano” students responded by spitting on public speaker Russell Dove, declaring: “This is not America! This is Mexico!”
62. In response to Plaintiff’s invitation, an unidentified member of the public not connected to Plaintiff’s group, asked for permission and entered the perimeter to speak.
63. In full view of TPD officers who stood idly by, a “Chicano” student kicked over the corner post of the rope barrier Plaintiff had erected to keep the opposing factions separate and to protect public safety, and tore down a political sign.
64. “Chicano” students, hurling spit, insults and death threats, then kicked down a second barrier, in full view of TPD Officer Traynor, who stood smiling. Plaintiff informed Officer Traynor: “You’re going up on charges for failure to protect us.”
65. A female counter-protester, formerly combative, asked permission and entered the protective circle, where she used the public address system to express her opinion in support of Left Wing Open Border Policy.
66. When a large group of “Chicano” students approached, Plaintiff extended an invitation to them to speak, and told them: “I stand up in support of Zapata’s dream. Mexico oppresses its poor. I burn the Mexican Flag in support of Mexico’s poor.”
67. A Tucson Police Officer later reported that one “Chicano” student responded to Plaintiff’s invitation to speak with the following comment: “Take off that gun, you pussy white faggot, and step out here and we will take care of you!”
68. The “Chicano” students, some 50-75 in number and now under the direction and control of their teachers, began cursing and spitting on Plaintiff and other public speakers, and made the following assertions: “This is Mexico!” “We are in our land, Aztlan!” “Viva La Raza!”, “All white people deserve to die! ”, and a host of expletives so vile and so disgusting, that a proper sense of decorum inhibits Petitioner from setting them forth here.
69. Plaintiff then received a second citation for violation of the Tucson City Sound Ordinance, TCC 16-31 (A), inspite of the fact Tucson Police made no attempt to measure the decibel level of Plaintiff’s speech, as required by law.
70. In full view of Lieutenant Coleman and Officer Traynor, “Chicano” students again spat upon Plaintiff, who, now angry at police for their failure to even take minimal steps to protect public safety, then addressed Lieutenant Coleman and Officer Traynor: “He spit on me! Go arrest him. Hop to it, Boy!”
71. The “Chicano” students, still under the control and direction of their teachers, tore and stomped on an American Flag, and later began chanting in unison: “Mexico! Mexico! Mexico!”
72. All of the preceding was filmed by Plaintiff and his supporters, and by Channel 50 News. That evening, KVOA News presented a stunning and biased report which excoriated Plaintiff for “cursing and screaming” and failed to mention the desecration of the American Flag, the pro-Mexico chanting or any of the provocative and criminal acts committed by the “Chicano” students.
73. The following day, March 27, 2007, Plaintiff, in sum and substance, made the following comments to the Mayor and the Tucson City Council:
“For the past 25 years you people and your predecessors have loaded up this county and loaded up this country with Illegal Mexican Aliens. You’ve done it for money and for votes. And now it’s all coming to a head.
“You’ve got one week to get your police department in shape and protect public safety, or there will be bodies in the street. I’ll use deadly force to protect myself from the imminent threat of death. It’ll make the OK Corral look like a Sunday school picnic.
“There’s a federal lawsuit and injunction coming. And some of you people are going to jail!”
74. On Saturday March 31, 2007, five days after the third meeting of the Tucson Weekly Public Forum, a TPD squad wearing full body protection, under the command of Lieutenant Coleman, arrested Plaintiff as he left the residence of a personal friend and political supporter who was in New York, away on family business.
75. Plaintiff was charged with various misdemeanors including three counts of Disorderly Conduct, one count of Making Threats and Intimidation and one count of Unlawful Assembly, all arising out of Plaintiff’s conduct at the Tucson Weekly Public Forum the previous Monday.
76. Over Plaintiff’s strenuous objections, TPD officers, (apparently) acting on a warrant issued by Superior Court Judge Bernini, searched Plaintiff’s car, seized the public address equipment necessary for the Tucson Weekly Public Forum, entered the private residence of Plaintiff’s supporter, seized Plaintiff’s firearm and taser device, rifled through various drawers and clothing, emptied and re-filled several small jewelry boxes, examined Plaintiff’s evidentiary tape and video recordings and (apparently) viewed and copied Plaintiff ‘s computer files.
77. Plaintiff was booked into the Pima County jail, put into protective custody, and subjected to various threats by Hispanic Pima County Deputy Sheriffs, include-ing: “We got Ramos and we’ll get you!”
78. The condition of Plaintiff’s release, which prevent him from coming within 500 yards of the location he used for the Tucson Weekly Public Forum was confirmed on April 04, 2007 by Judge Hays who was assigned Plaintiff’s case again for the third time. Plaintiff may not (1) attend monthly meetings of the Tucson Civilian Police Advisory Review Board, (2 ) make a report to the Independent Police Auditor, (3) go to the offices of attorneys who now represent some of Plaintiff’s various interests, (4) enter the Pima County Justice Court or the Pima County Superior Court, (5) engage in any activity within the vicinity of the Tucson Municipal Court, except to attend his own hearings.
79. On April 04, 2007, after assigning Plaintiff’s defense to the Tucson City Public Defender , Judge Hays told Plaintiff: “You probably will be arrested if you return to address the Tucson City Council.”
80. In his Motion to Withdraw as Attorney of Record dated April 12, 2007, Tucson City Public Defender Charles Davis succinctly apprised Judge Hays of the poli-tical ramifications of Plaintiff’s current prosecution, as set forth in paragraphs 38-43 above:
“(I)t has come to our attention that the defendant recently addressed the City Council “Call to the Audience.” Apparently, several of the Council members felt threatened by defendant in his remarks . This puts us in a untenable position in terms of our ability to represent the defendant. We are a City department that relies on the City Council for budget support and policy direction. Defendant must have an attorney who has no ties to the City Council or the City of Tucson government.” (emphasis added)
81. On April 23, 2007 Municipal Court Judge Riojas, upon motion by Tucson City Prosecutor Alan Merritt who clearly stated his objective was to stop Plaintiff from speaking in Armory Park on May 01, 2007 in opposition to left wing radi-cal Hispanics who seek the violent overthrow of the United States government, issued an Order of the Court which suspended all Plaintiff’s first amendment rights, all of Plaintiff’s second amendment rights within 500 feet of any political demonstration, and prevented Plaintiff from speaking in Armory Park on May 01, 2007.
82. On May 04, 2007, in an editorial entitled “Immigration reform: The time is now” noting the lack of enthusiasm of Counter Protestors to the demonstration in Armory Park for Immigration Reform (Open Border Policy) on May 01, 2007, the editor of the Arizona Star stated:
“According to a story by Lourdes Medrano and Dale Quinn in Wednesday’s Star, some 2,500 Tucsonans marched in favor of reforming the nation’s broken immigration laws. Counterprotestors numbered about half a dozen.
“The Tucson showing was a high-point for anti-immigration forces.
“If more people truly feel it is in the best interest of this country to deport all illegal immigrants and greatly increase border security, then more counter-protestors would have gone out to blunt the message of those in favor of immigration reform.”
VI. COUNT ONE: INJUNCTIVE RELIEF
83. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-82 as though fully set forth herein.
84. The United States Supreme Court has ruled that even the temporary interruption of protected rights creates “irreparable harm”. Plaintiff seeks immediate injunc-tive relief (1) enjoining the Tucson Police Department from further subjective and unconstitutional application of the “Makes Unreasonable Noise” portion of Arizona’s Disturbing the Peace Statute, (13-2904), and (2) enjoining the Tucson Police Department from further subjective and unconstitutional application of the Tucson Noise Ordinance TCC 16-31 without first measuring the volume of sound produced by Plaintiff’s public address system, as provided by the ordinance, and, as set forth in paragraphs 56 and 69; Plaintiff agrees not to exceed the decibel levels set therein;
VII. COUNT TWO: VIOLATION OF FREEDOM OF SPEECH
85. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-84 as though fully set forth herein.
86. The Arizona Supreme Court has stated:
“Any question regarding infringement of First Amendment rights is of the utmost gravity and importance, for it goes to the heart of the natural rights of citizens to impart and acquire information which is necessary for the well being of a free society. Since an informed public is the most important of all restraints upon misgovernment, (the government may not take) any…action which might prevent free and general discussion of public matters as seems essential to prepare the people for an intelligent exercise of their rights as citizens.” New Times Inc. v Arizona Board of Regents, 110 Ariz. 367, 519 P.2d 169 (1974)
87. In harassing, intimidating, arresting and prosecuting Plaintiff as described above, Defendants acted negligently, maliciously, in bad faith, and, with a callous and reckless disregard for Plaintiff’s rights guaranteed by the Constitution of the United States, as generally set forth above and as set forth with particularity in paragraph 3. Defendant’s actions were the proximate cause of the harm done to Plaintiff.
VIII. COUNT THREE: FALSE ARREST
88. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-87 as though fully set forth herein.
89. By the arrest and detention of Plaintiff, wholly unsupported by probable cause to believe the Plaintiff had engaged in any criminal conduct during any of his political rallies, the Defendants acted negligently, maliciously, in bad faith, and, with a callous and reckless disregard for Plaintiff’s rights guaranteed by the Constitution of the United States, as generally set forth above and as set forth with particularity in paragraph 3. Defendant’s actions were the proximate cause of the harm done to Plaintiff.
IX. COUNT FOUR: ABUSE OF PROCESS
90. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-89 as though fully set forth herein.
91. By directing the Tucson Police Department to (1) cite Plaintiff for alleged vio-lations of the Tucson City Noise Ordinance (TCC 16-31), and (2) to arrest Plain-tiff for speaking out in opposition to current Tucson City Policy, which now depends upon a continual flow of Illegal Mexican Alien labor to satisfy the needs of local real estate developers, and (3) by directing the Tucson City Attorney Mike Rankin to commence a series of three criminal prosecutions intended to intimidate and prevent Plaintiff from engaging in political activities in opposition to Tucson City Policy, the Defendants acted negligently, maliciously, in bad faith, and, with a callous and reckless disregard for Plaintiff’s rights guaranteed by the Constitution of the United States, as generally set forth above and as set forth with particularity in paragraph 3. Defendant’s actions were the proximate cause of the harm done to Plaintiff.
X. COUNT FIVE: CRIMINAL CONSPIRACY
92. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-91 as though fully set forth herein.
93. Title 18 U.S.C. Part 1 Chapter 13 §241, provides:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same…(t)hey shall be fined under this title or imprisoned not more than ten years, or both.”
94. As executive, administrative and enforcement level employees of the City of Tucson, all named Defendants, (excepting Peg Weber, Marco Alcantara, Wade Colwell, Luke Salcido, Arturo Rodriquez and Alexander Rodriquez), had an affirmative duty to protect the rights of the Plaintiff, not to trample upon them. Upon assuming their positions of public trust, all named Defendants, (excepting those noted above), swore an oath to protect and defend the Constitution of the United States, yet from April 11, 2006 when Defendants first caused Plaintiff to be cited for engaging in a political protest in Armory Park in opposition to Tucson City and Pima County policy, to April 23, 2007 when Municipal Court Judge Riojas, acting under the direction of the Tucson City Mayor and Tucson City Council suspended all Plaintiff’s rights secured by the First Amendment to the United States Constitution, Defendants (excepting those noted above) received and responded to Plaintiff’s various protected communications and publications, communicated with each other, and individually and in concert with the others, acted negligently, willfully, maliciously, in bad faith, with a callous and reckless disregard for Plaintiff’s rights, with the specific intent of depriving Plaintiff of rights guaranteed by the Constitution of the United States. Defendant’s actions were the proximate cause of the harm done to Plaintiff.
XI. CONCLUSION
For nearly a century the Federal Courts have energetically protected the expressive rights of those who exist on the fringes of American society—Communists, Nazis, Klansmen and Hells Angels—with the following rationale: “If we don’t protect the rights of the minority among us, someday the government will step in and deny these rights to the rest of us.”
“As Chief Justice Hughes wrote in De Jonge v Oregon, 299 US 353, 365, 260, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.” Terminiello v City of Chicago, 337 U.S. 1 (1949).
The long-feared day of totalitarianism, of blatant disregard for the right of free political expression and the harsh reality of brown-shirted thugs wearing jack boots strutting through the streets of an American city, has finally come to pass. The City of Tucson’s aggressive use of the Municipal Court and Police Department to (1) silence the voice of political dissent, and (2) to protect the criminal activities of radical Hispanic hate groups whose clearly stated objective is the violent overthrow of the United States government, and (3) to protect from public view the Cities’ own criminal enterprise to extend its’ own financial and left-wing political agenda, is taken directly from Hitler’s playbook.
Our Founding Fathers established the Courts for perilous and revolutionary times such as these. During the great Civil Rights era, the Courts protected the political rights of the American people so they could organize, assemble and accomplish what in effect was a peaceful revolution; Plaintiff earnestly prays this Court will do no less now.
XII. PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that this Court:
A) Issue immediate injunctive relief baring the Tucson Police Department from the selective and unconstitutional application of Tucson City Sound Ordinance, TCC 16-31 (A), and the “Makes Unreasonable Noise” portion of Arizona’s Disturb-ing the Peace Statute, (13-2904);
B) Order Tucson City to provide all enforcement level employees with mandatory training regarding their duty, independent of the direction of their superiors, to establish all the elements of probable cause related to a specific criminal offense prior to effecting an arrest;
C) Order Tucson City to provide all enforcement level employees with mandatory training regarding their duty to protect the constitutional rights of the people;
D) Award Plaintiff compensatory damages in an amount deemed fair, just and reasonable, for (1) the harm Plaintiff has suffered as set forth in paragraph 3 above, (2) the emotional distress Plaintiff has suffered by his loss of rights and reputation, (3) Plaintiff’s loss of income as a result of having to defend himself in three criminal prosecutions, (4) the negligent and intentional deprivation of the Plaintiff’s civil rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983;
E) Award Plaintiff exemplary damages in the amount of $10,000,000.00 (ten million dollars) as an example to the Defendants and to deter other government officials from abusing the prerogatives of their power and acting in a similar malicious and unlawful manner;
F) Award Plaintiff reasonable attorney’s fees and costs pursuant to 42 U.S.C. §1988; and;
G) Grant such additional relief as the Court deems just and proper.
RESPECTFULLY SUBMITTED, this 8th day of May, 2007.
BY: ________________________________
Roy Warden, Plaintiff
State of Arizona
County of _____________
On this ____day of ____________________, 2007, before me the undersigned Notary Public, personally appeared Roy Warden, known to me to be the individual who executed the foregoing instrument and acknowledged the same to be his free act and deed.
My Commission Expires:_______________ ___________________________
Notary
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