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Roy Warden, Publisher Common Sense II 1015 West Prince Road #131-182 Tucson Arizona 85705 roywarden@hotmail.com UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, IN FORMA ) ) PAUPERIS ) Vs ) ) RICHARD MIRANDA, individually and in) his official capacity as Chief of the Tucson) Police Department; MICHAEL RANKIN,) individually and in his capacity as Tucson) City Attorney; KATHLEEN ROBINSON,) individually and in her official capacity as) Assistant Chief of the Tucson Police) Department; DORMAND, individually and) in her capacity as Officer of the Tucson) Police Department; FRIEDMAN, indivi-) dually and in his capacity as Officer of the) Tucson Police Department; FLORES,) individually and in his capacity as Officer) of the Tucson Police Department;) KUGLER, individually and in his capacity) as Officer of the Tucson Police Depart-) ment; THE CITY OF TUCSON; THE) TUCSON POLICE DEPARTMENT, a) legal entity of the City of Tucson, and) DOES 1-100, ) ) Defendants. ) ) ) ROY WARDEN, Case No. CIV 11-460 TUC BPV

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND COMPENSATORY AND EXEMPLARY DAMAGES FOR NEGLIGENT AND INTENTIONAL VIOLATIONS OF TITLE 42 U.S.C. 1983 AND TITLE 42 U.S.C. 1985

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COMES NOW the Plaintiff Roy Warden, with his Complaint for Injunctive and Declaratory Relief, and Damages, against the Defendants, named and unnamed above, and as grounds therefore alleges:

I. INTRODUCTION
1.

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This is an action pursuant to the Civil Rights Act of 1871, 42 U.S.C. 1983, 42 U.S.C. 1985 and 28 U.S.C. 1343, seeking redress for the negligent and intentional deprivation of the Plaintiffs 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 and 42 U.S.C. 1985. The Plaintiff seeks injunctive relief, declaratory relief and monetary damagesincluding exemplary damagesas well as attorney fees and costs pursuant to 42 U.S.C. 1988.

3.

The Plaintiff seeks redress for violation of the Plaintiffs rights to speech, press, petition and assembly under the First Amendment of the Constitution of the United States, the Plaintiffs right to be free of illegal seizures under the Fourth Amendment of the Constitution of the United States, the Plaintiffs right to be free from unlawful seizure and imprisonment as provided for by the Fourth and Fourteenth Amendments of the Constitution of the United States, and the Plaintiffs 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.

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Plaintiff Roy Warden, writer and publisher of political newsletters Common Sense II, CS II Press, Arizona Common Sense 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 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.

7.

Defendant Michael Rankin was employed by the City of Tucson, and acted individually and in his official capacity as Tucson 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.

8.

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.

9.

Defendant Dormand was employed by the City of Tucson, and acted individually and in her official capacity as Officer of the Tucson Police Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Dormand is sued in her individual and official capacities.

10.

Defendant Friedman was employed by the City of Tucson, and acted individually and in his official capacity as Officer of the

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Tucson Police Department, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Friedman is sued in his individual and official capacities.
11.

Defendant Flores 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 Flores is sued in his individual and official capacities.

12.

Defendant Kugler 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 Friedman is sued in his individual and official capacities.

13.

Defendant City of Tucson, a municipal corporation, is a unit of local government organized under the laws of the State of Arizona. Municipalities may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the bodys official decisionmaking channels. Monell v. Department of Social Services, 436 U.S. 658, 690, 691 (1978).

14.

Defendant Tucson City Police Department is a legal entity of the City of Tucson which receives policy directions from the City of Tucson and the Tucson City Attorney.

15.

Defendant Does 1-100 are (1) individuals or members of various political organizations 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
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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.
16.

Defendant City of Tucson was served with a Notice of Claim, pursuant to A.R.S. 12-821.01, that included an administrative demand. Defendant City of Tucson did not respond to the administrative demand. V. FACTS AND ALLEGATIONS

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17.

Plaintiff is an unpaid political activist working on behalf of the people of Pima County, the publisher of Common Sense II, CSII Press, Arizona Common Sense and the Director of the Tucson Weekly Public Forum.

18.

Plaintiff has spent the last 6 years investigating allegations of malfeasance within the legal and political institutions of Pima County, including the malfeasance of Tucson City Officials who have used their public offices (1) to aid and abet, entice and invite, and otherwise encourage the unlawful entry of impoverished Mexican citizens to supply local contractors with low cost labor, (2) to advance the policy of the Mexican Government to exclude their poor so they may come to America to earn and send home remittances, and (3) to expose the current activities of elected Tucson City Officials who now employ City Administrators on the basis of cronyism and not on the basis of their fitness to hold public office.

19.

In 2000 Dr. Kevin Gilmartin and Jack Harris filed suit in US District Court, action number CV 00-352- TUC FRZ, alleging that Defendant Richard Miranda, while employed in his official capacity as Tucson Assistant Police Chief, conspired with others and engaged in acts of First Amendment Retaliation in response to Dr.

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Gilmartins testimony in a federal lawsuit on behalf of several Tucson Police Officers.

20.

Regarding Monell and the unwritten custom and practice of Defendant City of Tucson to protect high level officials who engage in First Amendment Retaliation; during the Gilmartin trial it was revealed that TPD Sgt. Robert Easton was rebuffed when he contacted the Tucson City Attorney to report malfeasance because, as he testified: I felt strongly something quite unethical, even unlawful, had occurred.1

21.

On September 29, 2006, subsequent to 17 days of testimony and the juries verdict, U.S. District Judge Frank Zapata entered the final judgment on behalf of Plaintiffs Gilmartin and Harris in the amount of 2.9 million dollars, including emotional2 and punitive damages, finding Defendant Miranda culpable for conspiracy and committing acts of First Amendment Retaliation.

22.

On July 01, 2008, subsequent to paying the requisite compensatory damages, and a significant portion of the punitive damages, the City of Tucson promoted Defendant Miranda to the position of Assistant Tucson City Manager, at a significant increase in pay.

23.

On March 06, 2004 a small group of Protect the Border political activists3 gathered in Presidio Park, Tucson Arizona, to protest Tucson City Open Border Policy.

Gilmartin Transcript, CV 00-352- TUC FRZ, day 4, page 58. The jury awarded the Plaintiffs $500,000.00 in emotional damages, finding Defendant Miranda had committed acts (that) were so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. 3 These activists included Kathy McKee, the author of Proposition 200, the seminal Arizona proposition which first limited the rights of illegal immigrants and denied them access to some public benefits.
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24.

On March 06, 2004 Tucson Police Department officers, in furtherance of Tucson City Policy4, stood idly by and allowed a group of open border counter protestors, some wearing masks and carrying signs which stated Gringo Dumb-Fucks, We Are All Standing in Mexico Here to spit, swear, assault and otherwise terrify those who had gathered to protest Tucson City Open Border Policy.

25.

On March 06, 2004 TPD Officer Wall arrested Maydell Purvis, an 80 year old Protect the Border activist, when she reached out defensively to pull the mask off of a counter protestor who was tormenting her. Ms. Purvis was subsequently convicted for assault.

26.

Subsequently; Protect the Border activists were deterred from engaging in any form of public protest in Tucson Arizona, as stated in an Affidavit dated October 19, 2007 by rally participant Kathy McKee, the founder and chairman of Protect Arizona NOW and the sponsor of Proposition 200 on the November 2004 ballot.

27.

On April 10, 2006 Plaintiff organized a lawful political demonstration to protest Tucson City Open Border Policy and 15,000 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.

For a number of years in furtherance of Tucson City Policy, the Tucson Police Department has employed the specific tactics of Cointelpro, a discredited program covertly operated by the F.B.I, which exposed, disrupted, misdirected, discredited and otherwise neutralized dissident political organizations operating within the United States between 1956 and 1971.
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28.

The theme of the Open Border Activists, as set forth on Congressman Raul Grijalvas website, was Hoy Marchamos! Manana Votamos!

29.

On April 10, 2006 Plaintiff and a small group of supporters entered Armory Park, stood on the shuffleboard court and used a bullhorn to communicate the following political message to 15,000 Open Border Activists: Your left wing leadership has betrayed you and Emiliano Zapata. The Mexican government exploits its people and sends two million of its citizens into exile each year. They come to America where they are economically and politically exploited by right wing employers and left wing radical Hispanic hate groups who advocate the violent overthrow of the United States. You must return to Mexico and fight your revolution there.

30.

On April 10, 2006, Plaintiffs group was surrounded by a group of Open Border Activists named Peacekeepers who joined hands in a protective circle to keep the opposing groups separate and promote public safety. In spite of numerous pleas by the Peacekeepers the Open Border Activists spit, cursed and hurled objects at Plaintiff and his supporters. Plaintiff was struck in the head by a frozen water bottle.

31.

Plaintiff submits that 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 Officers5, in Armory Park, on April 10, 2006.

Pima County Attorney Barbara LaWall made a political decision and did not prosecute any left wing Open Border Activist for any act of violence committed on that day, even felony aggravated assaults on police officers.
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32.

Sometime on or about April 11, 2006 Defendants Miranda and Robinson, acting in their official capacities, met with the leadership of various political activist groups and came to an agreement to deter Plaintiff from exercising his rights of speech and assembly under the First Amendment.

33.

On April 11, 2006 Plaintiff was arrested by Tucson Police Officers for events that occurred during the rally the previous day, charged with Reckless Burning6, Criminal Damage, and Assault.

34.

Several days after Plaintiffs arrest Defendant Robinson, acting at the direction of others, came to Plaintiffs residence, promised him TPD protection for his future rallies if he would agree not to demonstrate on May 01, 2006, and emphatically stated: You dont understand just how much these people hate you Mr. Warden. They mean to kill you!

35.

Subsequently; Defendant Robinson met with members of a political activist group and, during a televised event, Defendant Robinson assured the activists she had taken steps to dissuade Plaintiff from engaging in political demonstration in Armory Park on May 01, 2006. On May 06, 2006, while engaged in lawful7 political activities in Kennedy Park, Tucson Arizona, Plaintiff was assaulted by Wade Colwell and other local Open Border Activists, in full view of Tucson Police Officers, including Defendant Robinson and KVOA News reporter Lorraine Rivera. That night, during a KVOA News interview conducted by Lorraine Rivera, Wade Colwell stated the purpose of his assault was to prevent Plaintiff and his supporters

36.

6
7

Reckless Burning is a subdivision of the Arizona Arson Statute. Plaintiffs basic political message as set forth in paragraph 28 and footnote 7 has remained constant.
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from engaging in political speech and the commission of symbolic acts protected by the First Amendment of the United States Constitution.
37.

Just prior to the assault on May 06, 2006 Wade Colwell asserted his prior communications with Defendant Robinson, whom Colwell stated, counseled him and others and approved of the assault: We spoke with Kathy (Defendant Robinson) for 2 hours. She told us what we could do!

38.

Plaintiff possesses a DVD video recording revealing Defendant Robinson and other uniformed police officers aiding, abetting, and congratulating Colwell and other Open Border Activists for the success of their assault on Plaintiff in Kennedy Park on May 06, 2006, which prevented Plaintiff and his followers from completing their speeches and committing the constitutionally protected act of burning the Mexican flag8.

39.

Plaintiffs DVD records an unidentified TPD officer engaged in the following communication with Colwell and other Open Border Activists, subsequent to their successful assault on Plaintiff in Kennedy Park on May 06, 2006: TPD Officer: You did good(W)e need to try and out-think him (Plaintiff), and when we make a statement that were gonna leave you and youre gonna have to contend with this crowd on your own, it gives him a little something to think about, and maybe thats a little bit more reason for him to leave... Unidentified Open Border Activist:

Plaintiff has repeatedly stated: I burn this Mexican Flag because it is a symbol of the oppression of the Mexican poor. I stand next to Emiliano Zapata and Marcos, who now fights in Chiapas, and call for revolutionary change in Mexico.
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It came out good. Thats the way its supposed to go. Activist Colwell: So thats really...it did work, and itll work the next time. Just one second... (turning to Defendant Robinson) Kathy, thanks for giving me the heads up!
40.

On June 03, 2006 Plaintiff participated in a political demonstration in front of the Mexican Consulate, located at 553 South 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 safety9.

41.

During the June 03, 2006 Mexican Consulate Protest Plaintiff and other demonstrators were approached by Open Border Activists Arturo and Alexander Rodriquez, who made a series of provocative and aggressive gestures.

42.

One of Plaintiffs fellow protestors called 911 because he feared Arturo and Alexander Rodriquez would commit violence against Plaintiff and his fellow protestors.10

43.

During the June 03, 2006 Mexican Consulate Protest, in the absence of any police presence whatsoever, Plaintiff was compelled to issue stern words of warning and take minor defensive measures to promote public safety and to repel an assault committed by Arturo Rodriquez, a self proclaimed proud member of MEChA11 who,

In a taped interview with Plaintiff, TPD Captain Mike Gilhooly asserted the barrier between protestors and counter-protestors on April 10, 2006 significantly protected public safety and reduced the occurrence of violence. 10 Read the testimony of Victor Walker and Roy Warden, Reporters Transcript of Plaintiffs second trial, held on December 15, 2006. 11 MEChA, a radical student organization, actively promotes the establishment of Aztlan in the American southwest.
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after first informing Plaintiff that I want to fuck your mother12, aggressively pushed across Plaintiffs rope barrier and advanced menacingly towards the public speaker.
44.

On June 06, 2006 Tucson Police Officers arrested Plaintiff while he participated in a demonstration outside the Tucson City Council and charged Plaintiff with Assault, Disturbing the Peace and Making Threats and Intimidation, all charges arising out of Plaintiffs political 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.

At Plaintiffs first day of trial on December 15, 2006, Defendant Robinson testified that she had assigned officers to provide police protection at all of Plaintiffs demonstrations, including the June 03, 2006 Mexican Consulate Protest; however no police were present at the demonstration and no one responded to the 911 call for help as set forth in paragraph 42, even though TPD Headquarters is less than 4 blocks away from the Mexican Consulate.

46.

On December 22, 2006 Plaintiff was legally restrained from giving additional testimony and convicted by Judge Hays, in absentia13, 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 Plaintiffs second

12

See Plaintiffs testimony and the testimony of Victor Walker and Arturo Rodriquez, Reporters Transcript of Plaintiffs second trial, held on December 15, 2006. 13 Tucson Municipal Court Judge Bowman issued a restraining order on behalf of Pima County Legal Defender Isabel Garcia, Director of an Open Border advocacy group called Derechos Humanos, which prevented Plaintiff from coming within 1,000 feet of Garcias office located at 32 North Stone.
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amendment rights. Plaintiff immediately appealed his conviction and the suspension of his rights.
47.

On March 06, 2007, during the 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 of the Mayor and City Council for their support of Open Border Policy, the violation of federal immigration law, and the importation of millions of Mexican Illegal Aliens into the United States. On March 12, 2007 between 11:45 am and 1:15 pm14, Plaintiff convened the first Tucson Weekly Public Forum on the public sidewalk, near the corner of Pennington and Stone, adjacent to the Tucson City Public Library, and distributed the Isabel Garcia edition of Common Sense II.

48.

49.

Plaintiffs 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 Plaintiffs invitation to enter the rope barrier, use the public address system and speak, all in full view Tucson Police Officers15 who stood idly by and refused to stop the assaults or maintain public order.

50.

On March 13, 2007 Plaintiff, during Call to the Audience, again excoriated the Mayor and Tucson City Council and declared: For the past 25 years the business of Tucson City has been the importation and exploitation of Illegal Aliens, and for 25 years business has been good!

14

Plaintiff chose this time frame to insure maximum contact with the public during lunch hour and to minimize unnecessary disruption of commercial activity. 15 Several Chicano students appeared to be under the direction and control of TPD Officer Lucero.
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51.

On March 19, 2007 Plaintiff held the second Tucson Weekly Public Forum. A crowd of Chicano students gathered, including self proclaimed members of La Raza and MEChA who (apparently) originated from the Calli Ollin Academy, a charter school adjacent to the Chicanos por la Causa building on the corner of Alameda Street and Pennington.

52.

The Chicano students again ignored Plaintiffs 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 who stood idly by and made no effort to stop the assaults or to maintain public order.

53.

On March 19, 2007, 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 Plaintiffs speech, as required by law.

54.

On March 26, 2007 Plaintiff held the third Tucson Weekly Public Forum, inside its protective rope barrier, at its usual location near the corner of Pennington and Stone.

55.

Plaintiff began his public address by robustly excoriating Tucson City Court Judge Eugene Hays attempt to silence his public speech by his issuance of a court order forbidding Plaintiff from coming within 500 feet of any political demonstration, as set forth in paragraph 46, concluding: Municipal Court Judges dont 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.

56.

One of the Chicano students responded by spitting on speaker Russell Dove, declaring: This is not America! This is Mexico!

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57.

In response to Plaintiffs invitation, an unidentified member of the public not connected to Plaintiffs group, asked for permission and entered the perimeter to speak.

58.

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.

59.

Chicano students, hurling spit, insults and death threats, then kicked down a second barrier, in full view of Tucson Police Officer Brad Traynor, who smiled. Plaintiff told Officer Traynor: Youre going up on charges for failure to protect us.

60.

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.

61.

When a large group of Chicano students approached, Plaintiff extended an invitation to speak, and told them: I stand up in support of Zapatas dream. Mexico oppresses its poor. I burn the Mexican flag in support of Mexicos poor.

62.

A Tucson Police Officer later reported that one Chicano student responded to Plaintiffs 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!

63.

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 other

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expletives so vile and so disgusting, that a proper sense of decorum inhibits Plaintiff from setting them forth here.
64.

Police Officers issued Plaintiff a second citation for violation of the Tucson City Sound Ordinance, TCC 16-31 (A), in spite of the fact police made no attempt to measure the decibel level of Plaintiffs speech, as required by law.

65.

In full view of TPD Officers, Chicano students again spat upon Plaintiff, who, now angry at police for their failure to take minimal steps to protect public safety, then addressed Tucson Police Department Lieutenant Coleman and Officer Traynor: He spit on me! Go arrest him. Hop to it, Boy!

66.

The Chicano students, still under the control and direction of their teachers from the Calli Ollin Academy, tore and stomped on an American Flag, and later began chanting in unison: Mexico! Mexico! Mexico!

67.

All of the preceding was filmed by Plaintiff, his supporters and a professional news crew. That evening, KVOA News presented a stunning and biased report which failed to mention the desecration of the American Flag, the pro-raza chanting or any of the provocative and criminal acts committed by the Chicano students.

68.

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. Youve done it for money and for votes. And now its all coming to a head. Theres a federal lawsuit and injunction coming. And some of you people are going to jail!

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69.

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 TPD Lieutenant Coleman, arrested Plaintiff as he left his residence.

70.

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 Plaintiffs conduct at the Tucson Weekly Public Forum on March 26, 2007.

71.

Plaintiffs conditions of release prevented him from coming within 500 yards of the location he used for the Tucson Weekly Public Forum.

72.

Over Plaintiffs strenuous objections, TPD officers searched his car, seized the public address equipment necessary for the Tucson Weekly Public Forum, entered Plaintiffs residence, seized Plaintiffs firearm and Taser, rifled through various drawers and clothing, emptied and re-filled several small jewelry boxes, examined Plaintiffs evidentiary tape and video recordings and (apparently) viewed and copied Plaintiff s computer files.

73.

Over Plaintiffs objection, on April 04, 2007 Judge Hays affirmed Plaintiffs conditions of release which prohibited Plaintiff from (1) attending monthly meetings of the Tucson Civilian Police Advisory Review Board, (2) making a report to the Independent Police Auditor, (3) going to the offices of attorneys who represented some of Plaintiffs various interests, (4) entering the Pima County Justice Court or the Pima County Superior Court, (5) attending meetings of the Pima County Board of Supervisors and Tucson City Council, and (6) engaging in any activity within the vicinity of the Tucson Municipal Court, except to attend his own hearings.
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74.

Moreover; on April 04, 2007, Judge Hays told Plaintiff: You will probably be arrested if you return to the Tucson City Council.

75.

On April 23, 2007 Municipal Court Judge Antonio Riojas, upon Motion to Clarify Conditions of Release by Tucson City Prosecutor Alan Merritt, who stated his objective was to stop Plaintiff from speaking in Armory Park on May 01, 2007 in opposition to Tucson City Open Border Policy and the Mexican government, issued an Order of the Court which suspended all Plaintiffs First Amendment rights and prevented Plaintiff from speaking in Armory Park on May 01, 2007.

76.

On March 24, 2008 Plaintiff was convicted at a bench trial, Judge Hays presiding, for alleged incidents occurring during the third meeting of the Tucson Weekly Public Forum on March 26, 2007, as set forth in paragraphs 54-67.

JUDGE HAYS SENTENCE SUSPENDS PLAINTIFFS FIRST AMENDMENT RIGHTS

77.

During sentencing on March 24, 2008 Judge Hays issued an order which prevented Plaintiff from coming within 1,000 of any political demonstration, an order Plaintiff immediately appealed.

78. 79.

Plaintiffs appeal was denied in Pima County Superior Court. Subsequently, Plaintiff filed Special Actions16 in Division 2 of the Arizona Appellate Court and the Arizona Supreme Court; however both Courts denied jurisdiction, effectively affirming the suspension of all Plaintiffs First Amendment rights by Order of the Tucson Municipal Court.

16

A.R.S. 22-375 limits a defendants right of appeal from convictions in courts of lesser jurisdiction to Superior Court.
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MEXICAN FLAG BURNING CASE

80.

On January 26, 2008 Plaintiff sent a press release to the Tucson City Council, selected Tucson City employees including members of the Tucson Police Department, City Court Judges, prosecutors and public defenders, the ACLU, members of the media, etc. announcing his intention to burn a Mexican flag in front of the Joel Valadez Library near the corner of Pennington and Stone on February 04, 2008 in protest of Tucson City Open Border Policy and the policies of the Mexican Government.

81.

Immediately subsequent to his protest rally on February 04, 2008, Defendant Officers Kugler and Flores arrested Plaintiff and charged him with violation of. TCC 21-3 (7) which prohibits igniting or attempting to ignite a fire a fire within any park area except "under such rules and regulations as may be designated by the director.

82.

For two years Defendant City of Tucson prosecuted Plaintiff for burning the Mexican flag, even though the Defendant Tucson City Attorney Mike Rankin had issued a letter to Tucson City Manager Mike Hein dated April 12, 2006 which stated that flag burning, as part of political protest, was protected by the First Amendment. (Exhibit One)

83.

On April 09, 2010 Tucson City Court Judge Thomas Berning, upon receipt of Tucson City Attorney Mike Rankins letter dated April 12, 2006, granted Plaintiffs Motion to Dismiss on the basis that Plaintiffs burning of the Mexican flag on January 14, 2008 was a political act protected by the First Amendment. (Exhibit One)

DEFENDANT ROBINSON DENIES PLAINTIFFS RIGHTS TO SPEECH AND ASSEMBLY

84.

On or about May 01, 2008 Defendant Robinson denied Plaintiff right of entry into Armory Park, Tucson Arizona, to speak in oppo19

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sition to Pro Raza demonstrators who had gathered there17, Tucson City Open Border Policy and the Policy of the Mexican Government, even though Plaintiff showed her the Mike Rankin Letter dated April 12, 2006 which stated, in sum and substance, that Exclusive Use Permits may not be used to deny First Amendment Rights as per Garthright v City of Portland, 439 F.3d 573 (9th Cir 2006).
85.

On or about May 01, 2009 and May 01, 2010 Defendant Robinson again denied Plaintiff right of entry into Armory Park, Tucson Arizona, to speak in opposition to Pro Raza demonstrators who had gathered there18, Tucson City Open Border Policy and the Policy of the Mexican Government, even though Plaintiff again showed her the Mike Rankin Letter dated April 12, 2006 which stated, in sum and substance, that Exclusive Use Permits may not be used to deny First Amendment Rights as per Garthright v City of Portland, 439 F.3d 573 (9th Cir 2006).

86.

On May 1, 2010, subsequent to Defendant Robinson preventing his entry into Armory Park, Plaintiff moved across the street and began speaking to onlookers who had gathered there. However; an unidentified TPD officer approached Plaintiff and said, in sum and substance, if Plaintiff did not move himself more than 1,000 feet away from Armory Park he would be arrested.

ENTRAPMENT / FIRST AMENDMENT RETALIATION

87.

On August 03, 2009, Plaintiffs roommate called the Tucson Police Department to their residence, as she had on at least four other

Defendant Robinson justified her denial of Plaintiffs First Amendment rights because the Pro Raza demonstrators had acquired an Exclusive Use Permit. 18 Defendant Robinson justified her denial of Plaintiffs First Amendment rights because the Pro Raza demonstrators had acquired an Exclusive Use Permit.
20

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occasions, to enforce a Pima County Superior Court Order regarding the custody of Plaintiffs roommates19 minor child, and the failure of the childs father to return the child to the mothers residence as per the schedule set forth by Order of the Court.
88.

On August 03, 2009 Defendant Dormand responded; however; subsequent to reading the Court Order, Defendant Dormand told Plaintiffs roommate that she (Officer Dormand) would drive Plaintiffs roommate to her former husbands residence to recover her child, even though on all previous occasions either Plaintiffs roommates former husband or a police officer had brought the child home.

89.

Plaintiffs roommate came into Plaintiffs home to get her shoes and purse. However; when she approached Defendant Dormand the officer said: Youll have to follow me in your car. I am not a taxi service.

90.

Plaintiffs roommate told Defendant Dormand (1) she was legally blind and could not drive and (2) the cars registration had expired.

91.

Defendant Dormand made some cell phone calls and then became insistent.

92.

In sum and substance Plaintiff overheard Defendant Dormand say: I know there are issues with Roys Drivers License and the cars registration. But if he doesnt drive, you wont get to see your son tonight.

93.

At all times during the several conversations between Plaintiffs roommate and Defendant Dormand, the officer stood within several feet of Plaintiffs car, with the expired registration illuminated by the officers vehicle spotlight.

19

Due to concerns regarding personal safety, Plaintiffs roommate has requested her name not be included in this public document.
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94.

Plaintiffs roommate re-entered the house and informed Plaintiff regarding Defendant Dormands new requirement. In sum and substance Plaintiff said: The cops all know my registration has expired and I have a revoked license. I wonder if they are setting me up?

95.

Plaintiff and his roommate exited the house and waited in Plaintiffs car for more than five minutes while Defendant Dormand used her cell phone.

96.

Eventually Defendant Dormand drove away; instead of following her Plaintiff took an alternative route to the childs location.

97.

When Plaintiff and his roommate arrived at the location, Plaintiff parked on the main street. Defendant Dormand said she had to wait for back-up, even though on all previous occasions only a single officers response was required. Plaintiffs roommate informed Defendant Dormand that her son had Cerebral Palsy.

98.

Another TPD vehicle arrived. Defendant Dormand spoke with the second officer, Defendant Friedman, who approached Plaintiffs car and said, Hello Roy!

99.

Subsequently; Plaintiff complied with Defendant Dormands request to park his car near Plaintiffs roommates former husbands residence.

100.

Before Plaintiffs roommates son was brought out and seated in the car, Defendant Dormand told Plaintiff: I know there are issues with your car. I decided to personally overlook that. Dont worry about anything. You will be able to drive him (Plaintiffs roommates son) home.

101. 102.

Plaintiffs roommates son came out and was seated in the car. Defendant Friedman approached Plaintiff, and said, in sum and substance: You are driving with a revoked license in a car with ex-

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pired registration. We are going to write you a ticket and confiscate your car. Youll all have to walk home.
103.

Plaintiffs roommate asked Defendant Friedman: My son needs braces and he cant walk. Can you drive us home?

104.

Defendant Friedman refused. Plaintiff exited the car to retrieve some items from the trunk and expressed angry sentiments regarding Defendants Friedman and Dormand setting him up.

105.

Plaintiff angrily informed both Defendants he had appeared in front of the Tucson City Council to speak in support of higher wages for TPD officers and was working to get illegal immigrants out of the community for your (police) safety and ours because they are involved in violent crime, as victims and as perpetrators, 4 times more often than lawful entrants and citizens.20

106.

Defendant Friedman replied: I was shot in the leg by an American citizen. Then Plaintiff and his roommate walked home.

107.

Subsequently; upon both Defendants instructions, Plaintiffs roommates former husband drove Plaintiffs roommates son to Plaintiffs residence, as he had on all previous occasions when he was requested to do so by TPD officers, and as provided by the Order of the Pima County Superior Court.

108.

Subsequently; Plaintiff informed the Tucson City Court and Tucson City Prosecutor Alan Merritt of his intent to assert entrapment as a defense.

109.

Shortly thereafter Plaintiff conducted taped interviews with Defendants Dormand and Friedman and TPD Lieutenant Lapedus who was their superior officer on the night of August 03, 2009.

20

Plaintiff has been so informed by a Tucson City Prosecutor.

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110.

These interviews revealed significant evidence regarding actions taken by Defendants Dormand and Friedman on the night of August 03, 2009 which directly violated Tucson Police Department General Orders, and which confirmed Plaintiffs entrapment defense.

111.

Lieutenant Lapedus told Plaintiff what procedures to take to obtain recorded communications between the field officers on August 03, 2009. However; upon Plaintiffs application to obtain the recorded communications, Tucson City Prosecutor Alan Merritt refused to provide Plaintiff with the communications he requested.

112.

Subsequently; Plaintiff filed a Motion to Compel Discovery, which stated additional facts and allegations in support of Plaintiffs entrapment defense.

113.

Tucson City Prosecutor Alan Merritt responded by filing a Motion to Dismiss the action, citing prosecutorial discretion.

114.

Plaintiffs poverty prevented him from paying impound and towing fees. Eventually Plaintiff sold his car for $425.00 to an individual who paid the towing, impound, and storage fees, resulting in a $3,075.00 loss to Plaintiff from the value of his vehicle.

115.

On December 20, 2009 TPD officers, while investigating an alleged incident at Plaintiffs residence not connected to this action, confirmed TPDs animus towards Plaintiff when he asked Plaintiffs roommate: Is that the computer Roy uses to write his political stories? We consider him to be a troublemaker!

VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH

116.

25 26 27 28 29

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-115 as though fully set forth herein.

117.

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
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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) anyaction 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)
118.

Plaintiff alleges that the following Defendants violated Plaintiff rights under the First Amendment as set forth below:
A.

Defendant Robinson on May 01, 2008, May 01, 2009 and May 01, 2010 when she prevented Plaintiff from entering Armory Park, Tucson Arizona, to exercise his First Amendment rights;

B.

Defendants Flores and Kugler when they arrested Plaintiff on February 04, 2008 for burning the Mexican flag, and

C.

The unidentified Defendant TPD officer who, on May 01, 2010, threatened Plaintiff with arrest if Plaintiff did not move more than 1,000 feet away from Armory Park, as set forth in paragraph 86.

119.

The actions taken by Defendants Robinson, Flores, Kugler, and the unidentified TPD officer were the proximate cause of harm done to Plaintiff.

VII. COUNT TWO: FIRST AMENDMENT RETALIATION

120.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-119 as though fully set forth herein.

121.

Plaintiff alleges that Defendants Dormand and Friedman engaged in an act of First Amendment Retaliation on August 03, 2009 when they entrapped Plaintiff and seized his car, as set forth in paragraphs 86-113.

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122.

The actions taken by Defendants Dormand and Friedman were the proximate cause of harm done to Plaintiff. VIII. COUNT THREE: FALSE ARREST

123.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-122 as though fully set forth herein.

124.

Plaintiff alleges the following Defendants committed acts of false arrest:

A B

Defendants Flores and Kugler on February 04, 2008, and Defendants Dormand and Friedman on August 03, 2009.

125.

The actions taken by Defendants Flores, Kugler, Dormand and Friedman were the proximate cause of the harm done to Plaintiff. IX. COUNT FOUR: CONSPIRACY

126.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-125 as though fully set forth herein.

127.

Plaintiff alleges that the following Defendants met, came to an agreement and acted in concert for the purpose of denying Plaintiff his rights under the First Amendment as set forth below:
A.

Defendants Miranda and Robinson when they met with Open Border Activists on or about April 11, 2006 and agreed to deny Plaintiff the exercise of rights guaranteed by the First Amendment (see paragraph 32);

B.

Defendant Robinson when she deterred Plaintiff from exercising his First Amendment rights on May 01, 2006. (see paragraphs 34-35);

C.

Defendant Robinson when she met with and gave instructions to Wade Colwell and other Open Border Activists prior to their assault on Plaintiff in Kennedy Park on May 06, 2006 which did deprive Plaintiff of his rights secured by the First Amendment. (See paragraphs 36-39);
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D.

Defendant Robinson in Kennedy Park on May 06, 2006 when she worked in concert with Open Border Activists for the purpose of depriving Plaintiff of his rights secured by the First Amendment;

E.

Defendant Rankin when he (1) advised the Tucson Police Department to take steps to deny Plaintiffs rights secured by the First Amendment, and (2) directed Tucson City Prosecutor Alan Merritt to commence Plaintiffs two year prosecution for burning the Mexican flag on February 04, 2008 even though Defendant Rankin knew Plaintiffs conduct was lawful;

F.

Defendant Robinson on May 01, 2008, May 01 2009, and May 01, 2010 when she acted, under the direction of unknown Defendants, to deny Plaintiff opportunities to exercise his First Amendment rights in Armory Park, Tucson Arizona; and

G.

Defendants Dormand and Friedman on August 03, 2009 when they conspired to entrap Plaintiff and seize his car.

128.

Defendants Miranda, Robinson, Rankin, Dormand and Friedmans actions were the proximate cause of the harm done to Plaintiff. X. CONCLUSION To borrow a phrase from U.S. Supreme Court Justice Black, this suit

tests the ability of the United States to keep the promises its Constitution makes to the people of the Nation. Gregory v City of Chicago, 89 S.Ct. 946, 948. 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 Angelswith the following rationale: If we dont protect the rights of the minority among us, someday the government will step in and deny these rights to the rest of us. In Whitney v People of the State of California, 47 S.Ct. 648, 649 the Supreme Court wrote eloquently on the issue of free speech:
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Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile;that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognizedthat repression breeds hate; that hate menaces stable governmentThey eschewed silence coerced by lawthe argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Moreover; (a)s 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). Plaintiff respectfully submits: the long-feared day of totalitarianism and blatant disregard for the right of free political expression has finally come to Tucson Arizona. From the astonishing actions Defendants Miranda and Tucson took against Dr. Gilmartin more than a decade ago to the present21, Defendant Tucson Officials long term custom, practice and employment of coercive acts to (1) silence the voice of political and other dissent, (2) protect a long

On September 13, 2011 Plaintiff was arrested during Call to the Audience for publicly informing the Tucson City Council regarding Defendant Mirandas disgraceful conduct towards Dr. Gilmartin. Google: Warden vs. Tucson Mayor Bob Walkup.
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standing enterprise to aid and abet and otherwise encourage the unlawful entry and exploitation of Mexicos poor, and (3) hide from public view Defendant Tucsons policy of appointing public officials on the basis of cronyism and not on the basis of their fitness to hold public office, is disgraceful, perhaps even criminal, the antithesis of the rule of law and repugnant to the concept of government of, by and for the people. Our Founding Fathers established the Courts for perilous 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)

Order Defendant 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 effectting an arrest;

B)

Order Defendant Tucson City to provide all enforcement level employees with mandatory training regarding all aspects of their duty to protect the constitutional rights of the people;

C)

Upon submission and service of Plaintiffs Motion for Preliminary Injunction, to issue a preliminary injunction to enjoin Tucson City Police Officers and all other Arizona Police Officers from enforcing the Order of the Tucson City Court which, as an unlawful act of prior restraint, now prohibits Plaintiff from speaking within 1,000 feet of any political demonstration, as set forth in paragraphs 7778;

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D)

Issue a judgment declaring the Order of the Tucson City Court described in paragraphs 77-79 as transparently invalid and violative of Plaintiffs rights under the laws of the United States, including the Civil Rights Act of 1871 and 42 U.S.C. 1983;

E)

Issue a judgment declaring transparently invalid any condition of release which prevents the lawful exercise of rights protected under the laws of the United States, including the Civil Rights Act of 1871 and 42 U.S.C. 1983;

F)

Award Plaintiff compensatory damages in an amount deemed fair, just and reasonable, for (1) the harm and violation of rights Plaintiff has suffered as set forth above, (2) the emotional distress Plaintiff has suffered by his loss of rights and reputation, (3) Plaintiffs loss of income as a result of having to defend himself in three criminal prosecutions, and (4) the negligent and intentional deprivation of the Plaintiffs civil rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. 1983, and 42 U.S.C. 1985;

G)

Award Plaintiff exemplary damages in the amount sufficient to deter Defendants and other government officials from abusing the prerogatives of their power and acting in a similar malicious and unlawful manner;

H)

Award Plaintiff reasonable attorneys fees and costs pursuant to 42 U.S.C. 1988, and

I)

Grant such additional relief as the Court deems just and proper. RESPECTFULLY SUBMITTED this 22nd day of November 2011. BY: ________________________________ Roy Warden, Plaintiff
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State of Arizona County of _____________ On this ____day of ____________________, 2011, 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:_______________ _________________

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EXHIBIT ONE

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