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Roy Warden, Publisher Arizona Common Sense 3700 S. Calle Polar Tucson Arizona 85730 roywarden@hotmail.com UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ROY WARDEN, Plaintiff, In Pro Se Vs BOB WALKUP, individually and in his official capacity as Tucson City Mayor; STEVE KOZACHIK, individually and in his official capacity as Tucson City Councilman; RICHARD MIRANDA, individually and in his official capacity as Tucson City Manager; MIKE RANKIN, individually and in his official capacity as Tucson City Attorney; ANTONIO RIOJAS, individually and in his official capacity as Tucson City Employee; ROBERTO VILLASENOR, individually and in his official capacity as Chief of the Tucson Police Department; OFFICER COUCH, individually and in his official capacity as Officer of the Tucson Police Department; UNIDENTIFIED OFFICER, individually and in his official capacity as Officer of the Tucson Police Department; THE CITY OF TUCSON; and DOES 1-100, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CIV 13-1067 TUC DCB

FIRST AMENDED COMPLAINT FOR INJUNCTIVE & DECLARATORY RELIEF, AND 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

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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, malicious prosecution 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.

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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

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5.

Plaintiff Roy Warden, community activist, 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 Bob Walkup was employed by the City of Tucson, and acted individually and in his official capacity as Tucson City 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 Steve Kozachik is employed by the City of Tucson, and acted individually and in his official capacity as Councilman for the City of Tucson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Kozachik is sued in his individual and official capacities.

8.

Defendant Richard Miranda is employed by the City of Tucson, and acted individually and in his official capacity as Tucson City Manager, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Miranda is sued in his individual and official capacities.

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9.

Defendant Mike Rankin is 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.

10.

Defendant Antonio Riojas is employed by the City of Tucson, and acted individually and in his official capacity as Tucson City Employee, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Riojas is sued in his individual and official capacities.

11.

Defendant Roberto Villaseor is 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 Villaseor is sued in his individual and official capacities.

12.

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

13.

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

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14.

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 decision-making channels. Monell v. Department of Social Services, 436 U.S. 658, 690, 691 (1978)

15.

Defendant Does 1-100 are (1) individuals or members of various political organizations who acted individually or as agents of the state, under the direction or control of, or acted in concert with, named or unnamed Defendants, to deprive Plaintiff of rights secured by the First Amendment, and (2) Tucson City employees, including Council-Persons, their staffs, and 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. V. FACTS AND ALLEGATIONS

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16.

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.

17.

Plaintiff has spent the last 7 years investigating allegations of malfeasance within the legal and political institutions of Pima

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County, including the malfeasance of Tucson City Officials who have used their public offices to (1) aid and abet, entice and invite, and otherwise to encourage the unlawful entry of impoverished Mexican citizens to supply local contractors with low cost labor, (2) 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) employ Tucson City Administrators, and staff, on the basis of cronyism and not on the basis of their fitness to hold public office.
18.

On or about January 11, 2011, during the U.S. Conference of Mayors in Washington D.C., Defendant Walkup, invoking the name of Congresswoman Gabriel Giffords, announced what he called a Civility Accord.

19.

On September 07, 2011, during Call to the Audience, in TucArizona, Plaintiff addressed the Mayor and Council regarding a 2006 federal trial and jury award of 2.9 million dollars in damages to Plaintiffs Gilmartin and Harris (CV 00-352- TUC FRZ) finding Defendant Miranda and other Tucson City Officials had conspired to engage in First Amendment retaliatory acts, and had committed acts 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.1

20.

Additionally; on or about September 07, 2011 Petitioner further informed Tucson Public Officials that Tucson City Attor-

Arizona standard for assessing punitive damages.

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ney Mike Rankin had unlawfully used approximately seven hundred thousand dollars of public funds to satisfy a portion of the punitive damage judgment against Defendant Richard Miranda and other Tucson City Officials in the Gilmartin case.
21.

Subsequent to Plaintiffs address, Defendant Kozachik issued stern words intended to (1) retaliate for Plaintiffs exposure of Tucson City Open Border Policy and the unlawful acts committed by Defendants Miranda and Rankin, (2) humiliate and embarrass Plaintiff and hold him up to public ridicule, and (3) deter Plaintiff and others from the free exercise of rights secured by the First Amendment.

22.

Sometime between September 07, 2011 and September 13, 2011, Defendants Kozachik and Walkup communicated with Defendants Rankin, Riojas and Miranda, and others whose identities are unknown, and came to an agreement to unlawfully2 arrest Plaintiff should Plaintiff continue to address the Mayor and Council regarding the issue of cronyism, the Gilmartin trial and damage award, and Defendant Rankins unlawful use of $700,000 of public money to satisfy a portion of the Gilmartin Judgment.

23.

During the December 13, 2011 Tucson Mayor and City Council Meeting, Defendant Walkup referenced the Civility Ac-

All Defendants knew that the policy Tucson City Officials employed to regulate speech before the Mayor and Council was unconstitutional.

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cord and stated, its time for us to start treating each other with dignity and respect and understanding and decorum.
24.

Thereupon Defendant Walkup directed Defendant Tucson City Attorney Mike Rankin to read a Statement of Decorum, which Defendant Rankin did, as follows: Citizens attending meetings shall observe rules of propriety, decorum, and good conduct. Any person making personal, impertinent or slanderous remarks, or becomes boisterous while addressing the governing body, may be removed by the Sgt. at Arms as directed by the Chairman.

25.

Subsequently; on September 13, 2011, during Plaintiffs public address to the Mayor and Council, Defendant Walkup, acting on advice and directions provided him by Defendants Kozachik, Rankin, Riojas, Miranda and others whose identities are presently unknown, directed Defendant Officer Couch and the Unidentified Officer to arrest Plaintiff when he began to recite the requisite Arizona standards for awarding punitive damages as they applied to Defendant Miranda in the 2006 Gilmartin case.

26.

Immediately thereafter Defendants Couch and the Unidentified Officer, acting without probable cause to believe an offense had been committed, arrested Plaintiff, took Plaintiff into custody, and removed him from the Mayor and Council Chambers.

27.

Outside Defendant Couch confronted Plaintiff and told him: Get out of here! Youre just a troublemaker!

28.

Subsequently; Council-Person Karen Uhlich characterized Plaintiffs comments as bullying and threatening, and De-

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fendant Kozachik referred to Plaintiffs comments as offensive and racist attacks. VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH
29.

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Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-28 as though fully set forth herein.

30.

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)

31.

Plaintiff alleges that the following Defendants violated Plaintiffs right to freedom of speech, as set forth below:
A.

Defendant Kozachik on or about September 07, 2013 when he spoke stern words to deter Plaintiff from future address to the Mayor ad Council;

B.

Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, and others who have not yet been indentified, when they agreed to have Plaintiff arrested for future address to the Mayor and Council under the authority of a policy regulating speech before the Mayor and Council they knew to be unconstitutional;

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C.

Defendant Walkup, on or about September 13, 2011, when he directed Defendant Couch and the Unidentified Officer to arrest Plaintiff during Plaintiffs address to the Mayor and Council;

D.

Defendant Couch and the Unidentified Officer on or about September 13, 2011 when, without probable cause to believe an offense had occurred, they arrested Plaintiff while Plaintiff addressed the Tucson Mayor and Council;

E.

Defendants Tucson City and Villaseor for failure to train and otherwise instruct TPD Officers not to arrest citizens engaged in lawful public conduct without probable cause to believe an offense had been committed;

F.

Defendant Kozachik on or about September 13, 2013 when he referred to Plaintiffs comments as offensive and racist attacks.

32.

The actions taken by Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, Couch, Villaseor, the Unidentified Officer, and others who have not yet been indentified, were the proximate cause of harm done to Plaintiff.

VII. COUNT TWO: FIRST AMENDMENT RETALIATION

33.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-32 as though fully set forth herein.

34.

Plaintiff alleges that the following Defendants engaged in specific acts of First Amendment retaliation as set forth below:

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I.

Defendant Kozachik on or about September 07, 2013 when he spoke stern words to deter Plaintiff from future address to the Mayor ad Council;

J.

Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, and others who have not yet been indentified, when they agreed to have Plaintiff arrested for future address to the Mayor and Council under the authority of a policy regulating speech before the Mayor and Council they knew to be unconstitutional;

K.

Defendant Walkup on or about September 13, 2011 when he directed Defendant Couch and the Unidentified Officer to arrest Plaintiff during Plaintiffs address to the Mayor and Council;

L.

Defendant Kozachik on or about September 13, 2013 when he referred to Plaintiffs comments as offensive and racist attacks.

35.

The actions taken by Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, and others who have not yet been indentified, were the proximate cause of harm done to Plaintiff. VIII. COUNT THREE: FALSE ARREST

36.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-35 as though fully set forth herein.

37.

Plaintiff alleges the following Defendants committed acts of false arrest:

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Defendant Walkup on or about September 13, 2011 when he directed Defendant Couch and the Unidentified Offi-

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cer to arrest Plaintiff as Plaintiff lawfully addressed the Mayor and Council during the Call to the Audience portion of the Mayor and Council Meeting;
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Defendant Couch and the Unidentified Officer on or about September 13, 2011 when, without probable cause to believe an offense had occurred, they arrested Plaintiffs lawful address before the Mayor and Council, took him into custody and removed him from the meeting.

38.

The actions taken by Defendants Walkup, Couch and the Unidentified Officer were the proximate cause of harm done to Plaintiff. IX. COUNT FOUR: CONSPIRACY

39.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-38 as though fully set forth herein.

40.

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:
P.

Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, and others who have not yet been indentified, when they agreed to have Plaintiff arrested for future address to the Mayor and Council under the authority of a policy regulating speech before the Mayor and Council they knew to be unconstitutional.

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41.

The actions taken by Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, and others who have not yet been indentified, were the proximate cause of harm done to Plaintiff. X. COUNT FIVE: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

42.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-41 as though fully set forth herein.

43.

Plaintiff alleges that the following Defendants engaged in unlawful conduct for the purpose of denying Plaintiff his right to free speech, knowing that such denial of rights would (1) diminish Plaintiffs stature within the community, (2) inhibit Plaintiffs opportunity for employment as an Arizona Certified Legal Document Preparer, (3) cause dissention within Plaintiffs household, and (4) cause Plaintiff to suffer significant emotional harm, as set forth below:
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Defendant Kozachik when he issued stern words on or about September 07, 2011, and again, on or about September 13, 2011 when he referred to Plaintiffs public commentary as offensive and racist attacks;

Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, and others who have not yet been indentified, when they agreed to have Plaintiff arrested for future address to the Mayor and Council under the authority of a policy regulating speech before the Mayor and Council they knew to be unconstitutional;

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Defendant Walkup when he instructed Defendant Couch and the Unidentified Officer to arrest Plaintiff on or about September 13, 2011.

44.

The actions taken by Defendants Walkup, Kozachik, Miranda, Rankin, Riojas, and others who have not yet been indentified, were the proximate cause of harm done to Plaintiff. XI. CONCLUSION In America on Trial Alan Dershowitz, in analyzing Walker v

Birmingham, 87 S.Ct. 1824, explained that in the sixties, the entire system of justice in the southern states was committed in theory to free speech and equal rights for all, but in practice used the police and the courts to silence the voice of political opponents. (emphasis added) Petitioner, who has endured 13 arrests and six separate criminal prosecutions arising out of legitimate street protest and his excoriation of public officials engaged in the promulgation of Open Border Policy, and Cronyism, earnestly believes the same conditions of oppression exist in Arizona today. For nearly a century the Federal Courts have energetically protected the expressive rights of those who exist on the fringes of American societyCommunists, Nazis, Klansmen and Hells Angels with 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). The long-feared day of totalitarianism and blatant disregard for the right of free political expression has finally come to Tucson Arizona. Defendants long term custom, practice and usage of the Tucson Police Department to (1) silence the voice of political dissent, whether that dissent takes place in the streets of Tucson or before the Mayor and Council, and (2) protect local government officials from public criticism, is taken directly from Hitlers play-book.

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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 WHEREFORE, Plaintiff prays that this Court:
A.

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Declare the policy regulating speech before the Mayor and Council used to arrest and remove Plaintiff from the meeting of the Mayor and Council on September 13, 2011 to be unconstitutional;

B.

Upon Application, issue a preliminary injunction enjoining the City of Tucson from unlawfully using the provisions of their new policy regulating speech before the Mayor and Council;

C.

Direct the Tucson Police Department to properly instruct their officers on the requirements of probable cause;

D.

Provide Plaintiff with just compensation for Plaintiffs seizure and the violation of his rights;

E.

Access punitive damages against Defendants in their individual capacities to deter them and other public officials from engaging in similar misconduct; and

F.

Provide such additional relief the Court deems proper.

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RESPECTFULLY SUBMITTED this 16th day of December, 2013.

BY:

________________________________ Roy Warden, In Pro Se

State of Arizona County of _____________ On this ____day of ____________________, 2013, 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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