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Roy Warden, Publisher 1


Arizona Common Sense 2
3700 S. Calle Polar 3
Tucson Arizona 85730 4
roywarden@hotmail.com 5
6
UNITED STATES DISTRICT COURT 7
DISTRICT OF ARIZONA 8

ROY WARDEN,

Plaintiff, IN PRO SE

Vs

RICHARD MIRANDA, etc.,

Defendants.
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Case No. CV-14-2050 TUC (DCB)

PLAINTIFFS OPPOSITION TO RULE
12(B)(6) MOTION TO DISMISS


ORAL ARGUMENT REQUESTED


THE HON. DAVID BURY
9
Plaintiff opposes Defendants Motion to Dismiss for reasons set forth in sec- 10
tions A-F below: 11
STATEMENT OF FACTS 12
1. On August 14, 2014 Plaintiff filed his First Amended Complaint (FAC) 13
in the above captioned action. 14
2. On September 4, 2014 Defendants, without answering complaint, instead 15
filed a Motion to Dismiss (MTD) raising only one legitimate issue to be 16
determined in a 12 (b)(6) motion to dismiss, which Plaintiff responds to 17
in sections A and A-1 below: Defendants contention that TCC 21-3(7) 18
(4)
1
, the Tucson City code section which authorizes a permit holder to 19

1
Defendants may have changed the numbering of TCC code sections on their web-
site, resulting in Plaintiff misidentifying the challenged TCC code section in his
First Amended Complaint. The TCC section which Plaintiff challenges, which
allows permit holders to exclude members of the public from public parks on the
basis of viewpoint, is TCC 21-3(7)(4). (Exhibit 1)
2

exclude a public speaker from an open meeting in a public park on the 1
basis of viewpoint, is lawful. 2
3. Nevertheless; in an excess of caution, Plaintiff responds to the rest of De- 3
fendants issues (even if they would be more appropriately addressed in 4
summary judgment proceedings
2
after discovery) in sections B through 5
F below. 6
MEMORANDUM OF POINTS AND AUTHORITIES 7
A. TCC 21-3(7)(4) Violates Gathright v. City of Portland, 439 F.3d 573 8
(9
th
Cir 2006) 9
10
4. Defendants cite a series of out-of-date extra-jurisdictional rulings
3
and a 11
U.S. Supreme Court decision concerned with parade events
4
, (in which 12
the Court held permit holders may exclude prospective parade partici- 13
pants on the basis of viewpoint), to support their contention that T.C.C 14
21-3(7)(4)
5
, the Tucson City code section now under review, lawfully 15

2
There has been no discovery in this case. Defendants have presented no evidence
to support their conjectures. Defendants MTD is no more than a thinly disguised,
premature, motion for summary judgment.

3
Sistrunk v. City of Strongville, 99 F.3d 194, 198 (6
th
Cir 1996) (MTD 6:25);
Schwitzgebel v. City of Strongville, 898 F.Supp 1208 (E.D. Ohio 1985) (MTD 7:
23-24); United Auto Workers v. Gaston Festivals, 43 F.3d 902 (4
th
Cir 1995)
(MTD 8:2); Diener v. Reed, 232 F.Supp.2d 362 (M.D. Pa. 2002) (MTD 8:5);
Sanders v. United States, 518 F.Supp 728 (D.D.C. 1981) (MTD 8:8-9)

4
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S.
557, 115 S.Ct. 2338 (1995) (MTD 7:20-21)
5
In their MTD, Defendants cite the current language of TCC 21-4 as it presently
exists on the Tucson City Website. However; in a companion case, CIV 11-0460,
Defendants cited specific and different language from a different code section
TCC 21-3(7)(4)which allows permit holders to exclude members of the public
who disturb or interfere unreasonably with any person or party occupying any
area, or participating in any activity, under the authority of a permit license or re-
servation, almost a verbatim statement of the express language proscribed by
the Ninth Circuit in Gathright, because it conveys upon permit holders the express
power to exclude members of the public from public parks on the basis of view-
3

authorizes permit holders, on the basis of viewpoint, to exclude members 1
of the public from open political events held in public parks. (MTD 5:20- 2
8:15) 3
5. [N.B. Plaintiff requests the Court to take judicial notice of the following: 4
In another case
6
Defendants presented a different argument to disavow 5
the clear, unambiguous words stated in the Mike Rankin Letter
7
dated 6
April 12, 2006, and refute the clear, unambiguous meaning of Gathright, 7
which forbids an event permit holder to expel a public speaker from a 8
public park on the basis of viewpoint.] 9
6. In Gathright v City of Portland, 439 F.3d 573 (9
th
Cir 2006) the Court 10
stated: 11
This case concerns the intersection of two First Amend- 12
ment rights: on the one hand, the classic right of an indivi- 13
dual to speak in the town square; on the other hand, the 14
interest organizations have in not being compelled to 15
communicate messages not of their choosing. Gathright at 16
575 17
7. Regarding the challenged Portland City code section which the Gathright 18
Court ruled unconstitutional, the Court said: 19
Portland enforces the right of permit holders sponsoring an 20
event to evict any member of the public who espouses a 21
message contrary to what the permit holder wants as part of 22
its event. Under Portland City Code (PCC) 20:08:060, 23
[i]t is unlawful for any person unreasonably to interfere 24
with a permittees use of a Park. According to the Citys 25
policy, a permittee may order a person to leave an open 26
event when that person unreasonably interferes with the 27

point. See Warden v Miranda, CIV 11-0460, Defendants 2
nd
Motion for Summary
Judgment, DOC 92, 6: 4-11.
6
Warden v Miranda, CIV 11-0460

7
Exhibit 2. See also; 8:16-9:24, this document.

4

permittees use of the licensed space. Id. 575 (emphasis 1
added) 2
8. In this case, the City of Tucson has enforced TCC 21-3(7)(4), a code 3
section which allows permit holders to exclude members of the public 4
who: 5
Interfere with permittees. Disturb or interfere unreasonably 6
with any person or party occupying any area, or parti- 7
cipating in any activity, under the authority of a permit 8
license or reservation. See footnote 5. See also CIV 11- 9
0460 DOC 92, 6: 6-11 (Exhibit 1) 10
9. Plaintiff respectfully submits: the language and effective meaning of the 11
Portland code section, which the Gathright Court found unconstitutional, 12
is nearly identical to the Tucson City code section under review here: 13
both code sections allow a permit holder to exclude members of the pub- 14
lic from public meetings in public parks on the basis of viewpoint. 15
10. By way of further clarification and analysis the Gathright Court said: 16
We disagree with the Citys reading of Hurley. Hurley in- 17
volved the exclusion of those who wished to participate in 18
the parade as marchers, not those who witnessed or opposed 19
the processionAs the district court has here observed, 20
[t]here is a distinction between participating in an event 21
and being present at the same location. Merely being present 22
at a public event does not make one part of the organizers 23
message for First Amendment purposes. Gathright v. City 24
of Portland, 315 F. Supp. 2d 1099, 1103 (D. Or. 2004). Id. 25
577 26
27
Applying Wards criteria to the facts before us, we con- 28
clude that the Citys policy is not a valid time, place or 29
manner regulation of public space. See Ward, 491 U.S. at 30
791. Solely for the purposes of the Citys appeal, we accept 31
its proposition that its policy is content neutral and that it 32
has a significant interest in protecting the free speech rights 33
of people and organizations who have obtained permits to 34
use a public park for an event open to the public. We hold, 35
however that the policy of allowing permittees unfettered 36
5

discretion to exclude private citizens on any (or no) basis is 1
not narrowly tailored to the legitimate interest in protecting 2
its permittees rights under Hurley. See Ward, 491 U.S. at 3
798-800. Because the Citys policy is not narrowly tailored, 4
we do not reach whether it leaves open ample alternative 5
channels of communication. Id. 577 (emphasis added) 6
The Citys assertion that its policy is content neutral is 7
questionable. The policy enables private citizens to exclude 8
people from events in public forums solely on the basis of 9
the content of their speech. Id. 577 (emphasis added) 10
In Hurley, the Supreme Court made clear that every mar- 11
ching participant in the St. Patricks Day parade was an ex- 12
pressive unit, the sum of which constituted the expressive 13
message attributable to the parades organizer Here, there 14
is no risk that Gathrights provocations could be mistaken 15
by anybody as part of the message of the events he protests. 16
Id. 578 17
18
Gathright may be a gadfly to those with views contrary to 19
his own, but First Amendment jurisprudence is clear that the 20
way to oppose offensive speech is by more speech, not 21
censorship, enforced silence or eviction from legitimately 22
occupied public space. See Terminiello v. City of Chicago, 23
337 U.S. 1, 4 (1949) ([A] function of free speech under our 24
system of government is to invite dispute.). Id. 578 25
The City cannot . . . claim that ones constitutionally pro- 26
tected rights disappear [where] a private party is hosting an 27
event that remain[s] free and open to the public. Parks, 395 28
F.3d at 652. Id. 579 (emphasis added) 29
A-1 The 2012 May 1
st
CWIR
8
Event Was an Open Meeting 30
11. In their current argument, set forth in their MTD, Defendants state: 31
Warden did not, and cannot, allege in his complaint that 32
the May 1, 2012 CWIR rally at Armory Park was an event 33
free and open to the public because the exclusive use permit 34
specifically reserves a specific designated closed area of the 35

8
Defendant May 1
st
Coalition for Worker and Immigrant Rights
6

park for certain groups to the exclusion of others. (MTD 1
7:12-15) (emphasis added) 2
12. Plaintiff does allege the 2012 May 1
st
CWIR rally in Armory Park was 3
an event free and open to the public because all previous May 1
st
CWIR 4
events, from 2008 to 2011, were free and open to the public. 5
13. In 2010 Defendant May 1
st
CWIR invited both immigrant workers and 6
US born workers to discuss issues relevant to immigration reformand 7
other issues that affect the community, as set forth in their 2010 May 1
st
8
CWIR Exclusive Use Application
9
, and set forth below: 9
The purpose of the May 1
st
Coalition for Worker and Immi- 10
grant Rights, gathering and rally is to celebrate the holiday 11
known as International Workers Day, referred to as May 12
Day, to provide a safe space for both immigrants workers 13
and US-born workers to discuss issues relevant to immi- 14
gration reform, job losses, budget cuts and other issues that 15
affect the community. (emphasis added) (See Exhibit 3) 16
14. On May 1, 2012 Plaintiff was (1) a US born worker who (2) lived in 17
the community, who (3) accepted the 2012 May 1
st
CWIR invitation to 18
discuss issues relevant to immigration reformand other issues that 19
affect the community. 20
15. Moreover; in 2010 Defendant Lt. Sayre submitted an Affidavit which 21
states: 22
TPDs primary goal at the event was to prevent any type of 23
unlawful activity in and around the permitted exclusive use 24
area and to ensure a safe event for all participants and 25
observers, to enforce parking and traffic issues, and to 26
support the fundamental right of all people to peacefully 27
assemble and exercise their right of free speech. CIV-11- 28
0460, DOC 93-1 Affidavit of Lt. Paul Sayre. (emphasis 29
added) 30

9
See Exhibit 3.
7

16. Additionally; the 2010 May 1
st
CWIR Exclusive Use Permit, issued on 1
April 26, 2010 by Defendant Grey,
10
in pertinent part, stated the follow- 2
ing: 3
I have reviewed your request for exclusive use of Ar- 4
mory Park as indicated on the attached map for Saturday, 5
May 1, 2010 between 7:00a.m. and 5:00p.m. Upon further 6
discussion with Parks and Recreation staff, Tucson Police 7
Department staff, and the City Attorneys Office, this letter 8
and its attached map will serve as your permit to utilize the 9
areas indicated on the map for the exclusive use of your 10
function. (emphasis added) 11
In the event that you wish to deny someone access, or 12
request someone leave the designated exclusive use area, 13
it will be your responsibility to ask them to do so. Should 14
anyone refuse your request you would need to contact 15
Tucson Police Department staff on-site via 911. (empha- 16
sis added) (Exhibit 4) 17
17. In their MTD Defendants offer conjecture but no evidence to support 18
their suggestion (set forth above in paragraph 11) that the 2012 May 19
1
st
CWIR event in Armory Park, (unlike previous events), might have 20
been a closed meeting. Absent disclosure we dont know what the 21
2012 May 1
st
CWIR Exclusive Use Permit said, or what it reserved. 22
18. Plaintiff awaits disclosure of the various documents
11
Defendants need 23
to support their current conjecture that the 2012 May 1
st
CWIR Rally in 24

10
Defendants Miranda, Rankin, Judge and Ochoa received copies of the 2010
CWIR Permit, prior to the May 1, 2010 event. (Exhibit 4)
11
These documents include, but are not limited to, (1) the 2012 May 1
st
Coalition
application letter for exclusive use of Armory Park on Park on May 1, 2012
(setting forth the coalitions reasons for seeking an exclusive use permit), (2)
the 2012 permit letter granting permit holders the authority to eject event
attendees on the basis of viewpoint, (3) The Special Operations Plan May 1
st

Coalition March & Rally May 1, 2012 prepared by the Tucson Police Depart-
ment, etc.

8

Armory Park, (unlike the 2010 Rally), might have been a closed event 1
and not an event free and open to the public. (See paragraphs 11 and 2
12 above and Defendants MTD 7:12-15) 3
B. Defendants Conduct Did Violate Plaintiffs Rights 4
19. In a second issue more appropriately raised in summary judgment pro- 5
ceedings, Defendants contend: There is no affirmative link between 6
Wardens alleged first amendment violation and the defendants conduct 7
in authorizing an exclusive use permit.
12
(MTD 9:8-10) 8
20. Plaintiff has alleged an affirmative link, as set forth in the FAC (para- 9
graphs 26, 27, 30, 34 & 37) and in subsections 20 a-g below: 10
20a On April 12, 2006 Defendant Tucson City Attorney Mike Rankin is- 11
sued a letter which correctly states the law regarding Armory Park, 12
the 9
th
Circuit decision in Gathright, exclusive use permits, and the 13
proscription of permit holders conducting open events from enga- 14
ging in viewpoint discrimination, as follows: 15
The First Amendment protects speech and expressive 16
conduct even when the expression involved is offensive to 17
some. Courts have embraced the notion that a principal 18
function of free speech under our system of government is 19
to invite dispute. It may indeed best serve its high purpose 20
when it induces a condition of unrest, creates dissatisfaction 21
with conditions as they are, or even stirs people to anger. 22
Terminiello v Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 23
L.Ed. 1131 (1949). Even expressive conduct as offensive as 24
flag burning enjoys constitutional protection. Texas v 25
Johnson, 491 U.S. 397, 109 S.Ct. 2533, (U.S. 1989). As the 26
United States Supreme Court stated in Johnson [I]f there is 27
a bedrock principle underlying the First Amendment, it is 28
that the government may not prohibit the expression of an 29

12
Discovery will provide the necessary documents to establish the affirmative link
between Plaintiffs first amendment violation and Defendants conduct., ie: the
2012 CWIR application letter, the 2012 Exclusive Use Permit, etc, as set forth in
footnote 11.
9

idea simply because society finds the idea itself offensive or 1
disagreeable. Id., 491 U.S. at 414. 2
Accordingly, the Border Guardians had a right to engage 3
in constitutionally protected expression in Armory Park yes- 4
terday. The fact that representatives of the Border Action 5
Network had obtained a reservation for Armory Park does 6
not change this analysis. As confirmed by the Parks and 7
Recreation Department, the Border Action representatives 8
had a reservation to use a particular area of the park, but not 9
exclusive use of the entire park. Parks and Rec does not 10
grant permits for the exclusive use of entire properties, 11
except in those circumstances where the facility itself in 12
enclosed (e.g. Hi Corbett). This policy is consistent with the 13
First Amendment protections recognized by the courts 14
(including the Ninth Circuit) that preclude a municipality 15
from evicting certain attendees from an event open to the 16
public in a public forum on the grounds that the persons 17
speech is contrary to that of the organizers of the event. See 18
Gathright v. City of Portland, 439 F.3d 573 (9
th
Cir. 2006) 19
[holding that city could not evict controversial preacher 20
from park event even though his speech was upsetting to 21
other event participants, who had obtained a permit]. (See 22
Exhibit 2) 23
24
20b Defendants Miranda and Grey received copies of this letter. (See 25
Exhibit 2, page two.) 26
20c Thus; Defendant City of Tucson and Defendants Rankin (the au- 27
thor), Miranda and Grey either gave notice or got notice on April 28
12, 2006 the issuance of permits authorizing permit holders to ex- 29
clude members of the public from public parks, on the basis of view- 30
point, was unlawful. 31
20d Nevertheless; from 2007-2012 these same Tucson City Officials con- 32
tinued to issue, endorsed, or acquiesced in the issuance of permits 33
authorizing permit holders to exclude members of the public from 34
public parks on the basis of viewpoint, knowing their conduct was 35
10

unlawful. (See paragraph 21 below regarding supervisorial liability 1
and Starr v Baca) 2
20e Sometime prior to May 1, 2012 Defendant Gray issued the 2012 May 3
1
st
CWIR permit for exclusive use of Armory Park; the but for 4
event which authorized Defendants McCarthy, Sayer and Lopez to 5
violate Plaintiffs rights on May 1, 2012. 6
20f Defendants Miranda, Rankin, Judge and Ochoa either (1) participa- 7
ted in the decision to issue, (2) endorsed, or (3) acquiesced in the 8
permits issuance, any one of which establishes supervisorial liabil- 9
ity, under 42 1983 for acquiescence, deliberate indifference 10
or refusing to terminate a series of acts by others, as per Starr v 11
Baca,
13
652 F.3d 1202-1203 (9
th
Cir. 2011) 12
20g On May 1, 2012 Defendant officers McCarthy, Sayre and Lopez, 13
acting under directions given by their superiors and the authority of 14
the 2012 Exclusive Use Permit, violated Plaintiffs rights by preven- 15
ting him from entering Armory Park to speak on matters of com- 16
munity concern. 17
21. Regarding supervisorial liability, and Defendants Miranda, Rankin, 18
Judge, Grey and Ochoa, the 9
th
Circuit has said: 19
We have long permitted plaintiffs to hold supervisors indi- 20
vidually liable in 42 U.S.C.S. 1983 suits when culpable 21
action, or inaction, is directly attributed to them. We have 22
never required a plaintiff to allege that a supervisor was 23
physically present when the injury occurred... [T]he 24
supervisor's participation could include his own culpable 25
action or inaction in the training, supervision, or control of 26
his subordinates, his acquiescence in the constitutional 27
deprivations of which the complaint is made, or conduct that 28

13
Defendants themselves cite Starr in their MTD. 4:24-5:8
11

showed a reckless or callous indifference to the rights of 1
others. Starr at (1205-1206) emphasis added. 2
Section 1983 plaintiff may state a claim against a super- 3
visor for deliberate indifference based upon the supervi- 4
sor's knowledge of and acquiescence in unconstitutional 5
conduct by his or her subordinates. Id. at 1203 (emphasis 6
added) 7
The law clearly allows actions against supervisors under 8
1983 as long as a sufficient causal connection is present and 9
the plaintiff was deprived under color of law of a federally 10
secured right. The requisite causal connection can be esta- 11
blished by setting in motion a series of acts by others, or by 12
knowingly refusing to terminate a series of acts by others, 13
which the supervisor knew or reasonably should have 14
known would cause others to inflict a constitutional injury. 15
Id. at 1207-1208 (emphasis added) 16
22. Defendants have not yet disclosed the documents set forth above in foot- 17
note 11 or the names of other Tucson City Officials (and potential defen- 18
dants in this case) who decided to issue 2012 May 1
st
CWIR permit, thus 19
setting in motion a series of acts by others, or by knowingly refusing 20
to terminate a series of acts by others, which the supervisor knew or rea- 21
sonably should have known would cause others to inflict a constitu- 22
tional injury. Id. at 1207-1208 (emphasis added) 23
23. Moreover; regarding initial pleading standards and Defendants Rule 24
12(b)(6) MTD, Defendants themselves cite Starr, which in pertinent part, 25
also provides: 26
The factual allegations of the complaint need only plausi- 27
bly suggest an entitlement to relief. Fed. R. Civ. P. 8(a) does 28
not impose a probability requirement at the pleading stage; 29
it simply calls for enough fact to raise a reasonable expec- 30
tation that discovery will reveal evidence to support the alle- 31
gations. Id. at 1217 32
12

24. Plaintiff submits: the FAC (paragraphs 26, 27, 30, 34 & 37) and subsec- 1
tions 20a-20g above set forth allegations which establish an affirmative 2
link between named Defendants Tucson City, Rankin, Miranda, Grey, 3
Ochoa, and Judge, and the injury Plaintiff suffered on May 1, 2012 when 4
Defendant TPD officers McCarthy, Sayre, and Lopez, acting under in- 5
structions given by their superiors and at the behest of Defendants May 6
1
st
CWIR, the Tall Unidentified Political Activist and the Short Uni- 7
dentified Political Activist, unlawfully excluded Plaintiff from Armory 8
Park, under the authority of an exclusive use permit which violated the 9
law set forth in Gathright, sufficient to withstand Defendants Rule 12(b) 10
(6) MTD. 11
B-1. Defendant Villaseor 12
25. Plaintiff withdraws his present claim against Defendant Villaseor for 13
failure to train and supervise. 14
C. Defendants Violations on May 1, 2012
14
Were Retaliatory and Moti- 15
vated by Plaintiffs 6 Year Exposure of Cronyism and Open Border 16
Policy 17
18
26. Defendants contend the FAC fails to allege a link between Plaintiffs 9 19
year investigation of Tucson City Open Border Policy and Defendants 20
denying Plaintiff entry into Armory Park on May 1, 2012, stating the 21
following: 22
A plaintiff must show a causal connection between a defen- 23
dants retaliatory animus and a subsequent injury in any sort 24
of retaliation action. Hartman v Moore, 547 U.S. 250, 249, 25
126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) [Plaintiff] must 26
ultimately prove that [Defendants] desire to cause the chil- 27

14
Predating Defendants expulsion of Plaintiff from Armory Park on May 1, 2012
were Defendants currently undisclosed prior actions, and their agreement to issue,
and issuance of, an Exclusive Use Permit authorizing permit holders to deny
entry into public parks members of the public on the basis of viewpoint, knowing
the law, as per Gathright, forbids the issuance of such permits.
13

ling effect was a but-for cause of [Defendants] action. 1
Dietrich v John Ascuagas Nugget, 548 F.3d 892, 900-01 2
(9
th
Cir 2008) (quoting Skoog v. City of Chackamas, 469 3
F.3d 1221, 1232 (9
th
Cir 2006)). MTD 10: 5-23 (emphasis 4
added) 5
27. Plaintiff submits: His initial pleadings dont have to prove anything; 6
initial pleading requirements, as set forth above in Starr,
15
and burden of 7
proof to prevail at trial are two entirely different standards. 8
28. Regarding initial pleading standards, (post Iqbal
16
), and Rule 12(b)(6), 9
Starr v Baca,
17
652 F.3d 1202 (9
th
Cir 2011), in pertinent part provides: 10
The factual allegations of the complaint need only plausi- 11
bly suggest an entitlement to relief. Fed. R. Civ. P. 8(a) does 12
not impose a probability requirement at the pleading stage; 13
it simply calls for enough fact to raise a reasonable expecta- 14
tion that discovery will reveal evidence to support the alle- 15
gations. Starr at 1217 16
(U)nder the federal rules, a complaint is required only to 17
give the notice of the claim such that the opposing party may 18
defend himself or herself effectively. The theory of the 19
federal rules is that once notice-giving pleadings have been 20
served, the parties are to conduct discovery in order to learn 21
more about the underlying facts. When they have learned 22
the facts, the parties can settle or seek judgment. If the case 23
does not settle but the material facts are clear, the court will 24
grant summary judgment. If material facts are genuinely 25
disputed, the case will go to trial. Starr at 1212 26
29. The FAC alleges Defendants unlawfully prevented Plaintiffs entry into 27
Armory Park to speak on matters of public concern on 4 occasions; May 28
1, 2008, May 1, 2009, May 1, 2010, and May 1, 2012. (FAC 7:9-9:10) 29

15
See above, this document, 11:27-32
16
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009).
17
MTD 4:24-5:8
14

30. Additionally; On September 12, 2011 Defendants unlawfully arrested 1
Plaintiff and removed him from a Tucson City Council Meeting for char- 2
ging the City Council with cronyism, and, for attempting to read from 3
the trial transcript of Gilmartin v City of Tucson, CV 00-352- TUC FRZ 4
which concluded in 2006 Defendant Miranda had engaged in acts 5
(that) were so outrageous in character and so extreme in degree as to go 6
beyond all possible bounds of decency and to be regarded as atrocious 7
and utterly intolerable in a civilized society, before awarding Plaintiffs 8
Gilmartin and Harris 2.9 million dollars in damages for conspiracy to 9
violate first amendment rights and for first amendment retaliation. 10
31. Ultimately; as finders of fact a jury will determine (1) if the factual alle- 11
gations set forth in the FAC are true and (2) if the acts were retalia- 12
tory. 13
D. Plaintiff States a Claim for Conspiracy 14
32. In their MTD Defendants state: 15
In order to establish a conspiracy among state actors for the 16
purpose of 1983, the plaintiff must show an agreement or 17
meeting of the minds by the defendants to violate his 18
constitutional rights. MTD, 11:16-18 19
33. It is black letter law that conspiracy may be defined as an agreement 20
between two or more people to commit an unlawful act. 21
34. [N.B. See section B, this document, which establishes an affirmative link 22
between Defendants Miranda, Rankin, Judge, Grey and Ochoa, who is- 23
sued, endorsed, or acquiesced in the (unconstitutional) permits issu- 24
ance, and Defendants McCarthy Sayre and Lopez who violated Plain- 25
tiffs rights by blocking his entry into Armory Park on May 1, 2012.] 26
15

35. Regarding conspiracy in this action: the 2010 May 1
st
CWIR Exclusive 1
Use Permit issued on April 26, 2010 by Defendant Grey,
18
in pertinent 2
part, reveals the participants of a 2010 conspiracy to issue an unlawful 3
Exclusive Use Permit and deny Plaintiff his First Amendment rights: 4
I have reviewed your request for exclusive use of Ar- 5
mory Park as indicated on the attached map for Saturday, 6
May 1, 2010 between 7:00a.m. and 5:00p.m. Upon further 7
discussion with Parks and Recreation staff, Tucson Police 8
Department staff, and the City Attorneys Office, this letter 9
and its attached map will serve as your permit to utilize the 10
areas indicated on the map for the exclusive use of your 11
function. (emphasis added) 12
In the event that you wish to deny someone access, or 13
request someone leave the designated exclusive use area, 14
it will be your responsibility to ask them to do so. Should 15
anyone refuse your request you would need to contact 16
Tucson Police Department staff on-site via 911. (empha- 17
sis added) (Exhibit 4) 18
36. Thus; in 2010 Defendant Grey, Parks and Recreation staff (including 19
Defendant Ochoa), Tucson Police Department staff and the Tucson City 20
Attorneys staff (including Defendants Rankin and Judge) discussed the 21
issue of exclusive use permits and decided to issue the 2010 permit 22
anyway, knowing that permits authorizing permit holders to exclude 23
members of the public from public parks on the basis of viewpoint were 24
unlawful as per Gathright. 25
37. Even more revealing: the 2010 CWIR Teitelbaum letter (a.k.a the 2010 26
Exclusive Use Request) specifically identified Plaintiff Roy Warden 27
as the person Defendant 2010 May 1
st
CWIR wanted to exclude from 28
Armory Park on May 1, 2010. (Exhibit 3) 29

18
Defendants Miranda, Rankin, Judge and Ochoa received copies of the 2010
CWIR Permit. (Exhibit 4)
16

38. Thus, in 2010 both the author and recipients
19
of the Fred Gray letter 1
(a.k.a. the 2010 Exclusive Use Permit) specifically knew Plaintiff Roy 2
Warden would be excluded from Armory Park on May 1, 2010; neverthe- 3
less, after discussion and agreement, they authored and/or approved or 4
acquiesced in the issuance of the letter anyway, knowing, as per Defen- 5
dant Rankins April 12, 2006 letter
20
, it was unlawful to prevent Plain- 6
tiffs entry into Armory Park on May 1, 2010 as per Gathright. 7
39. Regarding conspiracy, initial pleading standards and Defendants Rule 8
12(b)(6) MTD; Defendants cite Starr v Baca,
21
652 F.3d 1202 (9
th
Cir 9
2011), which in pertinent part provides: 10
The factual allegations of the complaint need only plausi- 11
bly suggest an entitlement to relief. Fed. R. Civ. P. 8(a) does 12
not impose a probability requirement at the pleading stage; 13
it simply calls for enough fact to raise a reasonable ex- 14
pectation that discovery will reveal evidence to support the 15
allegations. Starr at 1217 16
40. Regarding conspiracy; Plaintiff has pled enough facts to raise a rea- 17
sonable expectation that discovery(in this case Defendants produc- 18
tion of documents set forth with specificity in footnote 11)will reveal 19
evidence to support the allegations of conspiracy, as per Starr. 20
E. The Custom and Practice of Tucson City Government Permits 21
Tucson City Officials to Retaliate Against and Violate the Rights of 22
Those Who Oppose Tucson City Government Policy 23
24
41. In Section III of their MTD Defendants state: 25
Warden alleges the City of Tucson may be sued for con- 26
stitutional deprivations pursuant to governmental custom. 27

19
These include Defendants Miranda, Rankin, Judge, Grey and Ochoa who are
Defendants in the current action.
20
Exhibit 2
21
MTD 4:24-5:8
17

This statement is insufficient to state a claim against the City 1
of Tucson. Plaintiff must establish that the local govern- 2
ment had a deliberate policy, custom or practice that was the 3
moving force behind the constitutional violation [they] suf- 4
fered. MTD 12:13-13:1 5
42. [N.B. In a companion case now under appeal, 11-Civ 0460, which raises 6
identical legal issues, the Court dismissed as verbose
22
Plaintiffs com- 7
plaint which set forth in exacting detail, [as required by Monell v. De- 8
partment of Social Services, 436 U.S. 658, 690, 691 (1978)], serial con- 9
stitutional violations against (1) Plaintiff, (2) political activist and author 10
of the 2004 PAN
23
state-wide initiative Kathy McKee
24
, and (3) Dr. 11
Kevin Gilmartin
25
, whom a federal jury concluded in 2006 had been sub- 12
jectted to a conspiracy to deprive him of his rights and acts of first 13
amendment retaliation for speaking out against Tucson City Officials.] 14
43. In 2004 the Tucson Police Department (TPD) encouraged and other- 15
wise allowed members of a Pro-Raza hate group, some shouting all 16
white people deserve to die, to assault and otherwise terrify PAN au- 17
thor and permit holder Kathy McKee, and other attendees of a rally in 18
El Presidio Plaza Park protesting Tucson City Open Border Policy. (Ex- 19
hibit 5) 20
44. In 2006 a federal jury returned a verdict for 2.9 million dollars against 21
the City of Tucson, and Defendant Miranda, for engagement in acts of 22

22
[T]he Second Amended Complaint isnot simple or concise, it is dense
and verbose, with so many factual averments of such specificity re-alleged
in every count, that it is impossible to discern which facts support, or are
even relevant to, which claims. Doc 135, 11-Civ 0430
23
Protect Arizona Now, which limited the services provided to illegal aliens and
required voter identification, passed by 58% of the vote.
24
See Exhibit 5: Affidavit of Kathy Mckee.
25
Gilmartin v City of Tucson, CV 00-352- TUC FRZ
18

conspiracy and first amendment retaliation against Plaintiffs Gilmartin 1
and Harris
26
. 2
45. Plaintiff has set forth sufficient facts regarding the custom and prac- 3
tice
27
of Tucson City Officials to retaliate against those who oppose 4
Tucson City Policy. 5
46. Moreover; it is not a court function but a jury function as finders of fact 6
to determine whether or not Plaintiffs allegations are random acts or 7
a result of the City of Tucsons unwritten policy or custom and prac- 8
tice, to permit public officials to engage in acts of first amendment re- 9
taliation against opponents of Tucson City Policy. See Monell v. Depart- 10
ment of Social Services, 436 U.S. 658, 690, 691 (1978). 11
F. Defendant Reenie Ochoa Was Properly Served 12
13
47. Defendants contend Plaintiff failed to properly serve Defendant Renee 14
Ochoa. (MTD 13:9-21) 15
48. On August 14, 2014 the Tucson City Clerk, after carefully reading the 16
summons and the complaint caption, accepted service on behalf of Renee 17
Ochoa and other defendants. 18
49. However; on a previous occasion, the Tucson City Clerk refused to ac- 19
cept service on behalf of (former) Mayor Walkup, no longer employed 20
by the City of Tucson, or accept service on behalf of Tucson Municipal 21
Court Judge Tony Riojas, who required service at the Tucson City 22
Court. 23
50. Nevertheless; on August 14, 2014 the Tucson City Clerk accepted the 24
Summons and the First Amended Complaint on behalf of Renee Ochoa. 25

26
Gilmartin v City of Tucson, CV 00-352- TUC FRZ
27
Monell v. Department of Social Services, 436 U.S. 658, 690, 691 (1978).
19

51. However; should the Court find that Defendant Ochoa was not properly 1
served, Plaintiff requests the Court to grant an additional 30 day time 2
extension in which to effect service. (see Prayer) 3
SUMMARY 4
Plaintiff submits: In this case, CIV 14-02050, Defendants have not disclosed 5
the various documents
28
they need to support their current suggestion the 2012 6
May 1
st
CWIR Rally in Armory Park, (unlike the 2010 and 2011 Rallies), might 7
have been a closed event and not an event free and open to the public. 8
(MTD 7:12-15) 9
Therefore; as set forth above in paragraphs 11-18, Defendants Rule 12(b)(6) 10
motion must fail. 11
Additionally; sometime prior to May 1, 2012, when Defendants Sayre, Lo- 12
pez and McCarthy unlawfully blocked Plaintiffs entry into Armory Park, De- 13
fendant Grey issued and Defendants Rankin, Judge, Miranda, and Ochoa re- 14
ceived copies of the 2012 CWIR Exclusive Use Permit, which all Defendants 15
knew unlawfully, (as per Gathright), conferred upon permit holder CWIR em- 16
ployees the Tall Unidentified Political Activist With Cap and the Short Uni- 17
dentified Political Activist the authority to bar Plaintiffs entry into Armory 18
Park. 19
This is the (1) causal connection between Defendants Rankin, Miranda, 20
Judge, Ochoa and Greyand Defendant TPD officers preventing Plaintiffs 21

28
These documents include, but are not limited to, (1) the 2012 May 1
st
Coalition
application letter for exclusive use of Armory Park on Park on May 1, 2012
(setting forth the coalitions reasons for seeking an exclusive use permit), (2)
the 2012 permit letter granting permit holders the authority to eject event
attendees on the basis of viewpoint, (3) The Special Operations Plan May 1
st

Coalition March & Rally May 1, 2012 prepared by the Tucson Police Depart-
ment, etc. See footnote 11.

20

entry into Armory Park on May 1, 2012and the but-for
29
event required to 1
prove retaliatory animus which resulted in TPD Defendants Sayre, Lopez and 2
McCarthy preventing Plaintiff from entry into Armory Park on May 1, 2012 for 3
the exercise of his First Amendment rights. 4
Regarding Conspiracy: Plaintiff adequately pleads facts to support his claim 5
for conspiracy in Section D above. [14:14-16:20] 6
Regarding Custom and Practice: Plaintiff adequately pleads facts to support 7
his claim that the custom and practice of Defendant Tucson City permits pub- 8
lic officials to engage in acts of first amendment retaliation against those who 9
oppose Tucson City Policy, as set forth in Section E above. [16:21-18:10] 10
Regarding service upon Defendant Ochoa: Plaintiff properly served Defen- 11
dant Ochoa, as set forth in Section F above. [18:11-26] 12
CONCLUSION 13
Plaintiff is disadvantaged in this case. 14
He is not a member of The Fraternity,
30
nor is he a government employed, 15
hundred grand a year lawyer commanding legions of paralegals to gather every 16
cite, contrive every argument, check every fact submitted. 17
Moreover; Plaintiff, who has spent nearly a decade opposing Defendants 18
cronyism and Open Border Policy, has infuriated some of the most powerful 19

29
A plaintiff must show a causal connection between a defendants retaliatory
animus and a subsequent injury in any sort of retaliation action. Hartman v
Moore, 547 U.S. 250, 249, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) [Plaintiff]
must ultimately prove that [Defendants] desire to cause the chilling effect was
a but-for cause of [Defendants] action. Dietrich v John Ascuagas Nugget, 548
F.3d 892, 900-01 (9
th
Cir 2008) (quoting Skoog v. City of Chackamas, 469 F.3d
1221, 1232 (9
th
Cir 2006)). MTD 10: 5-23 (emphasis added)
30
The Fraternity, written by former Chief Justice of the Arizona Appellate Courts
John Molloy, exposes the parochial interests of the legal community, and judges,
who expand the scope of legal proceedings as a means of benefiting the legal
community and increasing employment.
21

people in Pima Countys legal community, especially within this Court, whose 1
vested interests and livelihoods now depend upon the continuation of Defen- 2
dants Open Border Policy and an endless supply of illegal aliens to prosecute, 3
defend and adjudicate, create caseload, and further employment.
31
4
However; in the case at bar, Plaintiff does have the benefit of the facts, no 5
matter how Defendants twist or ignore them, and the law as it is clearly set forth 6
in Gathright. 7
And the law of Gathright is simple: in the ninth circuit it is not lawful for a 8
city to grant exclusive permits to organizers of political events held in public 9
parks, and use the police to exclude public speakers who express opposing view- 10
points. 11
Gathright permits neither the exclusion of gadflys
32
asking gay pride acti- 12
vists if they got AIDS yet?
33
or, as in this case the exclusion of a member of 13
the community who reminds open border activists the dreams of Emiliano Za- 14
pata, who fought for land reform in Mexico, and Cesar Chavez, who fought to 15
keep illegal aliens from diminishing the wages earned by union members enga- 16
ged in back-breaking labor in the melon fields of Yuma County, Arizona. 17
Plaintiff may not be popular; however, he does have the benefit of the law, 18
as it has been clearly written and stated herein. Now he awaits the Court to apply 19
it. 20
21
22

31
More than 80% of the current case load of the Arizona U. S. District Court is the
proximate and foreseeable consequence of Defendants Open Border Policy, with-
out which the Tucson and Yuma Federal Courthouses never would have been
built.
32
Ibid., 578
33
Ibid., 575
22

PRAYER 1
Plaintiff prays the Court to (1) DENY Defendants Motion to Dismiss, (2) 2
GRANT an additional 30 days to Plaintiff to effect service on Defendant Ochoa 3
in the event the Court rules service of process on Ochoa was insufficient, and 4
(3) GRANT such other relief the Court deems proper. 5
6
RESPECTFULLY SUBMITTED this 27
th
day of October 2014. 7
BY: 8
9
________________________ 10
Roy Warden, Plaintiff 11
12
13
14
Original and one copy filed with the Court on October 27, 2014. I hereby 15
certify that on October 27, 2014, I personally hand served the attached 16
document to the Office of the Tucson City Attorney and by email, on the 17
following: 18
19
Viola Romero-Wright 20
Principal Assistant Tucson City Attorney 21
Viola.romero@tucsonaz.gov 22
23
24
25
26
27
28
29
30
31
32
23

1
2
3
4
5
6
7
EXHIBIT ONE 8
9
10
11
12
13
14
15
16
17
24

Sec. 21-3. Regulations regarding park use. 1
2
It shall be unlawful for any person to violate any of the provisions set forth in 3
the following series of this section: 4
Sec. 21-3(7). Relating to miscellaneous activities. No person in a park shall: 5
(1) Domestic animals. Bring or escort a dog or any other domestic animal or 6
pet into any area within park boundaries which is clearly marked by signs bearing 7
the words: "Domestic Animals and Pets Prohibited in This Area." This provision 8
shall not be construed as permitting the running of dogs, domestic animals or pets 9
at large. Bring in or escort any dog, domestic animal or pet in those areas where 10
such animals are permitted unless restrained at all times on leashes not to exceed 11
six (6) feet in length and unless they wear a collar and display thereon a valid city 12
license. 13
(2) Fires. Build, or attempt to build, kindle or ignite a fire except in such areas 14
and under such rules and regulations as may be designated by the director; or drop, 15
throw or otherwise scatter lighted matches, burning cigarettes or cigars, charcoal or 16
coals, or other flammable or flaming materials within any park area. 17
(3) Closed areas. Enter an area posted as "Closed to the Public," or posted "No 18
Trespassing," or use or abet the use of any area in violation of posted notices, except 19
for those places and recreational activities therein permitted by the director pursuant 20
to section 21-2 above. 21
(4) Interfere with permittees. Disturb or interfere unreasonably with any person 22
or party occupying any area, or participating in any activity, under the authority of 23
a permit license or reservation. 24
25
26
27
28
29
25

1
2
EXHIBIT TWO 3
4
5
6
7
8
9
10
26

1
2
3
4
5
6
7
8
9
10
27

1
2
3
4
5
6
7
8
9
10
28

1
2
EXHIBIT THREE 3
4
5
6
7
8
9
10
29

1
30

1
2
3
EXHIBIT FOUR 4
5
6
7
8
9
10
31

1
32

1
2
3
EXHIBIT FIVE 4
33

1
34

1
2
35

1
36

1
37

1
2
3
38

1

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