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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 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIV-11-0460-TUC-CKJ-(BPV)

ROY WARDEN, 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 official capacity as Tucson City Attorney; PATRICIA MERHOFF, individually and in her official capacity as Chief Prosecuting Attorney for the City of Tucson; ALAN MERRITT, individually and in his official capacity as Assistant Prosecuting Attorney for the City of Tucson; KATHLEEN ROBINSON, individually and in her official capacity as Assistant Chief of the Tucson Police Department; KATHRYN DORMAND, individually and in her official capacity as Officer of the Tucson Police Department; YOEL FRIEDMAN, individually 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 Department; THE CITY OF TUCSON; THE TUCSON POLICE DEPARTMENT, a legal entity of the City of Tucson, and DOES 1-100, Defendants.
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(PROPOSED) SECOND 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

THE HON. CINDY K. JORGENSON AND BERNARDO P. VELASCO

COMES NOW the Plaintiff Roy Warden, with his (Proposed) Second Amended Complaint for Injunctive and Declaratory Relief, and
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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 Plaintiff’s constitutional rights. Venue is proper in the 9th District of Arizona, as all of the acts complained of occurred in Pima County Arizona. II. JURISDICTION

2.

This Court has jurisdiction over this action under 28 U.S.C. § 1343(a)(3) for negligent and intentional violations of constitutional rights as provided by 42 U.S.C. §1983 and 42 U.S.C. §1985. The Plaintiff seeks injunctive relief, declaratory relief and monetary damages—including exemplary damages—as well as attorney fees and costs pursuant to 42 U.S.C. §1988.

3.

The Plaintiff seeks redress for violation of the Plaintiff’s rights to speech, press, petition and assembly under the First Amendment of the Constitution of the United States, the Plaintiff’s right to be free of illegal seizures under the Fourth Amendment of the Constitution of the United States, the Plaintiff’s right to be free from unlawful seizure, malicious prosecution and imprisonment as provided for by the Fourth and Fourteenth Amendments of the Constitution of the United States, and the Plaintiff’s right to due process of law as guaranteed by the Fourth and Fourteenth Amendments of the Constitution of the United States. III. REQUEST FOR JURY TRIAL

4.

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff requests a trial by jury.

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IV. IDENTITY OF THE PARTIES
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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 Patricia Merhoff was employed by the City of Tucson, and acted individually and in her official capacity as Chief Prosecuting Attorney for the City of Tucson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Merhoff is sued in her individual and official capacities.

9.

Defendant Alan Merritt was employed by the City of Tucson, and acted individually and in his official capacity as Assistant Prosecutor for the City of Tucson, under color of state law, regulations, customs and policies at all times relevant herein. Defendant Merritt is sued in his individual and official capacities.

10.

Defendant Kathleen Robinson was employed by the City of Tucson, and acted individually and in her official capacity as Assistant Chief

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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.
11.

Defendant Kathryn 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.

12.

Defendant Yoel Friedman 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 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.

14.

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.

15.

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 body’s official decision-

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making channels.” Monell v. Department of Social Services, 436 U.S. 658, 690, 691 (1978).
16.

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.

17.

Defendant Does 1-100 are (1) individuals or members of various political organizations who acted independently or as agents of the state under the direction or control of named or unnamed Defendants, and (2) Pima County and Tucson City employees, including employees of the Tucson Police Department, who acted individually and or 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.

18.

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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19.

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.

20.

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 citi-

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zens 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.
21.

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. Gilmartin’s testimony in a federal lawsuit on behalf of several Tucson Police Officers.

22.

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

23.

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,

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.”
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finding Defendant Miranda culpable for conspiracy and committing acts of First Amendment Retaliation.
24.

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.

25.

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.

26.

On March 06, 2004 Tucson Police Department (hereinafter referred to as TPD) Officers, in furtherance of Tucson City Policy4 and in spite of the fact “Protect the Border” activists had secured an exclusive use permit, stood idly by and allowed a group of “Pro-Raza” 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.

27.

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.

28.

Subsequently; “Protect the Border” activists were deterred from engaging in any form of public protest in Tucson Arizona, as stated in

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. 4 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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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.
29.

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.”

30.

The theme of the Open Border Activists, as set forth on Congressman Raul Grijalva’s website, was “Hoy Marchamos! Manana Votamos!”

31.

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 “Pro-Raza” 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.

32.

On April 10, 2006, Plaintiff’s group was surrounded by a group of “Pro-Raza” 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
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the “Peacekeepers” the “Pro-Raza” Open Border Activists spit, cursed and hurled objects at Plaintiff and his supporters. Plaintiff was struck in the head by a frozen water bottle.
33.

Plaintiff submits that the Tucson Police Department TPD After Action Report dated May 10, 2006 accurately documents numerous acts of violence committed by “Pro-Raza” Open Border Activists, including felony aggravated assaults on TPD Officers5, in Armory Park, on April 10, 2006.

34.

Subsequent to the Rally in Armory Park on April 10, 2006 “ProRaza” Open Border Activist Isabel Garcia declared during a televised news conference that “the community has lost trust with the Tucson Police Department.”

35.

Sometime between April 11 and April 14, 2006 Defendants Miranda and Robinson, acting in their official capacities, met with Isabel Garcia and the leadership of various “Pro-Raza” political activist groups and came to an agreement to deter Plaintiff from exercising his rights of speech and assembly under the First Amendment.

36.

Subsequent to the meeting and agreement between Defendants Miranda and Robinson and “Pro-Raza” activists, spokesperson Isabel Garcia declared in a televised interview that “the community has begun to regain trust with the Tucson Police Department.”

37.

On April 14, 2006, several hours subsequent to “Pro-Raza” spokesperson Isabel Garcia’s statement regarding TPD and “regain(ed) trust” as set forth above, Plaintiff was arrested by Tucson Police TPD Officers for events that occurred during the rally in

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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Armory Park on April 10, 2006, and charged with Reckless Burning6, Criminal Damage, and Assault.
38.

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

39.

Subsequently; Defendant Robinson met with members of a “ProRaza” 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 “Pro-Raza” Open Border Activists, in full view of Tucson Police TPD 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 from engaging in political speech and the commission of symbolic acts protected by the First Amendment of the United States Constitution.

40.

41.

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

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Reckless Burning is a subdivision of the Arizona Arson Statute. Plaintiff’s basic political message as set forth in paragraph 28 and footnote 7 has remained constant.
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spoke with Kathy (Defendant Robinson) for 2 hours. She told us what we could do!”
42.

Plaintiff possesses a DVD video recording revealing Defendant Robinson and other uniformed TPD officers aiding, abetting, and congratulating Colwell and other “Pro-Raza” 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.

43.

Plaintiff’s DVD records an unidentified TPD officer engaged in the following communication with Colwell and other “Pro-Raza” 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 we’re gonna leave you and you’re gonna have to contend with this crowd on your own, it gives him a little something to think about, and maybe that’s a little bit more reason for him to leave...” Unidentified Open Border Activist: “It came out good. That’s the way it’s supposed to go.” Activist Colwell: “So that’s really...it did work, and it’ll work the next time. Just one second... (turning to Defendant Robinson) “Kathy, thanks for giving me the “heads up!”

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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44.

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, and, based on his experience in Kennedy Park on May 06, 2006, Plaintiff erected a simple rope barrier to maintain a perimeter between speakers and counter-demonstrators, and to protect public safety9.

45.

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

46.

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

47.

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, after first informing Plaintiff that “I want to fuck your mother12,” aggressively pushed across Plaintiff’s rope barrier and advanced menacingly towards the public speaker.

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, Reporter’s Transcript of Plaintiff’s second trial, held on December 15, 2006. 11 MEChA, a radical student organization, actively promotes the establishment of Aztlan in the American southwest. 12 See Plaintiff’s testimony and the testimony of Victor Walker and Arturo Rodriquez, Reporter’s Transcript of Plaintiff’s second trial, held on December 15, 2006.
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48.

On June 06, 2006 TPD 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 Plaintiff’s political activities outside the Mexican Consulate on June 03, 2006. The case was eventually assigned (again) to Tucson Municipal Court Judge Eugene Hays. PLAINTIFF’S FIRST MEXICAN FLAG BURNING CASE

49.

Regarding Plaintiff’s first trial for events transpiring on April 10, 2006 in Armory Park: On November 01, 2006 Plaintiff was tried in Tucson Municipal Court, the Honorable Eugene Hays presiding, and found “not guilty” on all charges.

50.

Regarding Plaintiff’s second trial for events transpiring on June 03, 2006 in front of the Mexican Consulate: During Plaintiff’s first day of trial on December 15, 2006, Defendant Robinson testified that she had assigned officers to provide police protection at all of Plaintiff’s 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.

51.

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,

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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 Garcia’s office located at 32 North Stone.
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prohibited Plaintiff from going within 500 feet of any public demonstration (even his own) and suspended Plaintiff’s Second Amendment rights. Plaintiff immediately appealed his conviction and the suspension of his rights.
52.

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.

53.

54.

Plaintiff’s literature was torn up by self proclaimed “Pro-Raza” students. Plaintiff was sworn at, spat upon and threatened with death by these same students, in spite of Plaintiff’s invitation to enter the rope barrier, use the public address system and speak, all in full view of TPD Officers15 who stood idly by and refused to stop the assaults or maintain public order.

55.

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 importa-

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 “Pro-Raza” students appeared to be under the direction and control of TPD Officer Lucero.
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tion and exploitation of Illegal Aliens, and for 25 years business has been good!”
56.

On March 19, 2007 Plaintiff held the second Tucson Weekly Public Forum. A crowd of “Pro-Raza” 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.

57.

The “Pro-Raza” students again ignored Plaintiff’s invitation to speak, declared that Plaintiff would be raped should he ever end up in jail, and began spitting on and swearing at Plaintiff and other public speakers, in full view of TPD Officers who stood idly by and made no effort to stop the assaults or to maintain public order.

58.

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 Plaintiff’s speech, as required by law.

59.

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.

60.

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 don’t have the authority to silence political speech.” Plaintiff then extended an invitation to speak to the “Pro-Raza” students who had begun to gather.

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61.

One of the “Pro-Raza” students responded by spitting on speaker Russell Dove, declaring: “This is not America! This is Mexico!”

62.

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

63.

In full view of TPD officers who stood idly by, a “Pro-Raza” student kicked over the corner post of the rope barrier Plaintiff had erected to keep the opposing factions separate and to protect public safety, and tore down a political sign.

64.

“Pro-Raza” students, hurling spit, insults and death threats, then kicked down a second barrier, in full view of TPD Officer Brad Traynor, who smiled. Plaintiff told Officer Traynor: “You’re going up on charges for failure to protect us.”

65.

A female counter-protester, formerly combative, asked permission and entered the protective circle, where she used the public address system to express her opinion in support of Left Wing Open Border Policy.

66.

When a large group of “Pro-Raza” students approached, Plaintiff extended an invitation to speak, and told them: “I stand up in support of Zapata’s dream. Mexico oppresses its poor. I burn the Mexican flag in support of Mexico’s poor.”

67.

A TPD Officer later reported that one “Pro-Raza” student responded to Plaintiff’s invitation to speak with the following comment: “Take off that gun, you pussy white faggot, and step out here and we will take care of you!”

68.

The “Pro-Raza” 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
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La Raza!”, “All white people deserve to die!”, and a host of other expletives so vile and so disgusting, that a proper sense of decorum inhibits Plaintiff from setting them forth here.
69.

TPD 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 Plaintiff’s speech, as required by law.

70.

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

71.

The “Pro-Raza” 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!”

72.

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 “Pro-Raza” students.

73.

The following day, March 27, 2007, Plaintiff, in sum and substance, made the following comments to the Mayor and the Tucson City Council: For the past 25 years you people and your predecessors have loaded up this county and loaded up this country with Illegal Mexican Aliens. You’ve done it for money and for votes. And now it’s all coming to a head. There’s a federal lawsuit and injunction coming. And some of you people are going to jail!
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74.

On Saturday March 31, 2007, five days after the third meeting of the Tucson Weekly Public Forum, a TPD squad wearing full body protection, under the command of TPD Lieutenant Coleman, arrested Plaintiff as he left his residence.

75.

Plaintiff was charged with various misdemeanors including three counts of Disorderly Conduct, one count of Making Threats and Intimidation and one count of Unlawful Assembly, all arising out of Plaintiff’s conduct at the Tucson Weekly Public Forum on March 26, 2007.

76.

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

77.

Over Plaintiff’s strenuous objections, TPD officers exercised a search warrant to examine the contents of Plaintiff’s car, seize the public address equipment necessary for the Tucson Weekly Public Forum, entered Plaintiff’s residence, seized Plaintiff’s firearm and Taser, rifled through various drawers and clothing, empty and re-fill several small jewelry boxes, examine Plaintiff’s evidentiary tape and video recordings and (apparently) view and copy Plaintiff‘s computer files.

78.

Moreover; on March 31, 2007, in an effort to further terrify and deter Plaintiff from the lawful exercise of his constitutional rights, unidentified TPD officers took photographs of Plaintiff’s fiancée’s clothing, and jewelry, and photographs of stuffed animals belonging to Plaintiff’s fiancée’s child, even though the items photographed had no evidentiary bearing on the alleged crimes TPD officers were investigating.

79.

Over Plaintiff’s objection, on April 04, 2007 Judge Hays affirmed Plaintiff’s conditions of release which prohibited Plaintiff from (1)
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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 Plaintiff’s 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.
80.

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

81.

On April 23, 2007 Municipal Court Judge Antonio Riojas, upon Motion to Clarify Conditions of Release by Defendant 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 Plaintiff’s First Amendment rights and prevented Plaintiff from speaking in Armory Park on May 01, 2007.

82.

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 PLAINTIFF’S FIRST AMENDMENT RIGHTS
83.

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.

84.

Plaintiff’s appeal was denied in Pima County Superior Court.

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85.

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 Plaintiff’s First Amendment rights by Order of the Tucson Municipal Court. PLAINTIFF’S SECOND MEXICAN FLAG BURNING CASE

86.

On November 17, 2007 Plaintiff sent a Petition to Tucson Mayor Walkup, other Tucson City Officials, and members of the press directly challenging Tucson City Open Border Policy.

87.

On January 26, 2008 Plaintiff sent a press release to Tucson City Officials, politicians and political activists, and members of the press, announcing the presence of New York film company “Moxie Firecracker” to film a rally in support of the First Amendment on February 04, 2008. The press release issued a special invitation to speak to left wing activists Jennifer Allen and Isabel Garcia, and others who supported Open Border Policy, because “…we really want to engage (you) on issues that divide our community, and America.”

88.

On January 28, 2008 Plaintiff sent another press release to the Tucson City Council, selected Tucson City employees including members of TPD, 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.

16

A.R.S. 22-375 limits a defendant’s right of appeal from convictions in courts of lesser jurisdiction to Superior Court.
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89.

Immediately subsequent to his protest rally on February 04, 2008, TPD 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.”

90.

For two years Defendant City of Tucson and Defendant Tucson City Prosecutor Alan Merritt, acting under directions given him by Defendants Rankin, Mehrhoff and other unnamed Defendants, prosecuted Plaintiff for burning the Mexican flag, even though Defendants Merritt, Rankin and Mehrhoff knew they lacked probable cause to believe Plaintiff had committed a criminal offense, and, in spite of the fact 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)

91.

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

DEFENDANT TUCSON CITY ARRESTS PLAINTIFF AND FAILS TO PROTECT PUBLIC SAFETY IN FRONT OF THE BANK OF AMERICA
92.

The conditions of release for Plaintiff’s rally and Mexican Flag Burning on February 04, 2008 specifically prevented Plaintiff from returning to Library Square.

93.

Therefore; Plaintiff continued meetings of the Tucson Weekly Public Forum across the street from Library Square, in front of the Pima County building located at the southwestern corner of Pennington

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and Stone, and according to his practice, Plaintiff erected a simple rectangular rope barrier measuring some 4 x 10 feet to promote public safety and keep a small zone of separation between himself and counter protestors.
94.

On February 13, 2008, at the beginning of Plaintiff’s first public forum at its’ new location facing Library Square, a small group of “Pro-Raza” Open Border Activists, led by Alan Ward, gathered in front of Plaintiff’s roped barrier and, in full view of some 10-12 TPD Officers, disrupted Plaintiff’s rally by attempting to strike Plaintiff with a long banner supported by two wooden poles.

95.

Consequent to this disruption TPD officers arrested Plaintiff and placed him in handcuffs, claiming they had to interrupt Plaintiff’s rally to “investigate” the incident.

96.

Immediately subsequent to Plaintiff’s arrest, a number of “ProRaza” Open Border Activists, including Pima County Public Defender Margo Cowan who is the legal representative of Border Action Network and a Member of the Board of Directors of “ProRaza” Open Border Activist Group Derechos Humanos, gathered at the corner of Pennington and Stone, and celebrated when TPD officers placed Plaintiff, still handcuffed, in a squad car, and took him to TPD headquarters, where Plaintiff remained in handcuffs for 45 minutes while TPD “investigated” the incident.

97. 98.

Subsequently; Plaintiff was released, without citation. On February 15, 2008 Plaintiff petitioned the Tucson City Court and secured an Injunction Against Harassment which prohibited “Pro-Raza” Open Border Activist Alan Ward from having any contact with Plaintiff.

99.

On February 16, 2008 “Pro Raza” Open Border Activist Alan Ward was served the Injunction Against Harassment.
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100.

On February 20, 2008 Plaintiff set up his roped barrier and began the Tucson Weekly Public Forum, in front of the Pima County Building on the southwest corner, in full view Alan Ward and other “Pro-Raza” counter demonstrators who were located across the street in Library Square, and 10-12 TPD Officers.

101.

When Alan Ward moved to the crosswalk to prepare to cross the street, Plaintiff immediately pointed to him and shouted out the following warning to TPD officers, stating in sum and substance: I have an Injunction Against Harassment against Alan Ward. He’s dangerous! I will defend myself! Keep him away from me!

102.

However; TPD officers refused to intervene or deter Alan Ward, in spite of the fact Plaintiff shouted out his warning several times.

103.

Subsequently; Alan Ward circled several times around Plaintiff, who remained within his roped barrier, and then, suddenly, with his hand hidden under his coat, Alan Ward rushed up behind Plaintiff in a threatening manner.

104. 105.

Plaintiff took minor defensive measures to protect himself. Subsequently; Plaintiff was arrested for assault and prosecuted for nearly a year.

DEFENDANT ROBINSON DENIES PLAINTIFF’S RIGHTS TO SPEECH AND ASSEMBLY
106.

Sometime prior to May 01, 2008, Defendant Robinson met with other members of TPD, Tucson City Officials, and “Pro-Raza” activists and came to an agreement to unlawfully deny Plaintiff entry into Armory Park, Tucson Arizona, for the purpose of speaking in opposition to Tucson City Open Border Policy.

107.

On or about May 01, 2008 Defendant Robinson, in furtherance of the agreement set forth above, denied Plaintiff right of entry into

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Armory Park, Tucson Arizona, to speak in opposition 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 to counter protestors, as per Garthright v City of Portland, 439 F.3d 573 (9th Cir 2006).
108.

Sometime prior to May 01, 2009, and May 01, 2010, Defendant Robinson met with other members of TPD, Tucson City Officials, and “Pro-Raza” activists and came to an agreement to unlawfully deny Plaintiff entry into Armory Park, Tucson Arizona, for the purpose of speaking in opposition to Tucson City Open Border Policy.

109.

On or about May 01, 2009 and again on May 01, 2010 Defendant Robinson 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 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 to counter protestors as per Garthright v City of Portland, 439 F.3d 573 (9th Cir 2006).

110.

On May 1, 2010, subsequent to Defendant Robinson preventing his entry into Armory Park, Plaintiff moved across the street and began

Defendant Robinson justified her denial of Plaintiff’s First Amendment rights because the “Pro Raza” demonstrators had acquired an Exclusive Use Permit. 18 Defendant Robinson justified her denial of Plaintiff’s First Amendment rights because the “Pro Raza” demonstrators had acquired an Exclusive Use Permit.
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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: CONTINUED FIRST AMENDMENT RETALIATION
111.

On August 03, 2009, Plaintiff’s roommate called TPD to their residence, as she had on at least four other occasions, to enforce a Pima County Superior Court Order regarding the custody of Plaintiff’s roommates’19 minor child, and the failure of the child’s father to return the child to the mother’s residence as per the schedule set forth by Order of the Court.

112.

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

113.

Plaintiff’s roommate came into Plaintiff’s home to get her shoes and purse. However; when she approached Defendant Dormand the officer said: “You’ll have to follow me in your car. I am not a taxi service.”

114.

Plaintiff’s roommate told Defendant Dormand (1) she was legally blind and could not drive and (2) the car’s registration had expired.

19

Due to concerns regarding personal safety, Plaintiff’s “roommate” has requested her name not be included in this public document.
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115.

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

116.

In sum and substance Plaintiff overheard Defendant Dormand say: “I know there are issues with Roy’s Drivers License and the car’s registration. But if he doesn’t drive, you won’t get to see your son tonight.”

117.

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

118.

Plaintiff’s roommate re-entered the house and informed Plaintiff regarding Defendant Dormand’s 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?”

119.

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

120.

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

121.

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 officer’s response was required. Plaintiff’s roommate informed Defendant Dormand that her son had Cerebral Palsy.

122.

Another TPD vehicle arrived. Defendant Dormand spoke with the second officer, Defendant Friedman, who approached Plaintiff’s car and said, “Hello Roy!”

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123.

Subsequently; Plaintiff complied with Defendant Dormand’s request to park his car near Plaintiff’s roommate’s former husband’s residence.

124.

Before Plaintiff’s roommate’s 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. Don’t worry about anything. You will be able to drive him (Plaintiff’s roommate’s son) home.”

125. 126.

Plaintiff’s roommate’s 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 expired registration. We are going to write you a ticket and confiscate your car. You’ll all have to walk home.”

127.

Plaintiff’s roommate asked Defendant Friedman: “My son needs braces and he can’t walk. Can you drive us home?”

128.

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.

129.

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”

130.

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

20

Plaintiff has been so informed by a Tucson City Prosecutor.
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131.

Subsequently; upon both Defendants instructions, Plaintiff’s roommate’s former husband drove Plaintiff’s roommate’s son to Plaintiff’s 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.

132.

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

133.

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.

134.

These interviews revealed significant evidence regarding actions taken by Defendants Dormand and Friedman on the night of August 03, 2009 which directly violated TPD General Orders, and which confirmed Plaintiff’s entrapment defense.

135.

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

136.

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

137.

Defendant Merritt responded by filing a Motion to Dismiss the action, citing “prosecutorial discretion.”

138.

Plaintiff’s 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.
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139.

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

THE LAW IN SUPPORT OF PLAINTIFF’S CAUSES OF ACTIONS SET FORTH IN THE SECOND AMENDED COMPLAINT
140.

Regarding Title 42, Section 1983 claims, the statute of limitations and “continuing violations,” the Ninth Circuit has stated: “Continuing violation theory applies to Section 1983 actions, and allows a plaintiff to seek relief for events outside of the limitations period...(providing) that one or more acts falls within the limitations period.” Knox v. Davis, 260 F.3d, 1009, 1010, 1013 (9th Cir. 2001) “The ‘continuing violation theory applies to Section 1983 claims.” Normandeau v City of Phoenix, 516 F.Supp. 2d 1054, 1066 (D.Ariz. 2005)

141.

Regarding Title 42, Section 1983 claims, the First Amendment, and malicious prosecution, the Ninth Circuit has stated: (M)alicious prosecution with the intent to deprive a person of equal protection of the law or otherwise to subject a person to a denial of constitutional rights is cognizable under Section 1983.” Awabdy v. City of Adelanto, F.3d 1062, 1069 (9th Cir. 2004) “Presumption of prosecutorial independence does not bar subsequent Section 1983 malicious prosecution claim against state or local officials who improperly exerted pressure on prosecutor…or otherwise engaged in wrongful or bad faith conduct…in order to discourage (Plaintiff’s) political activity and other protected First Amendment conduct…” Awabdy at 1063, 1064, 1067, 1072.

142.

Regarding Title 42, Section 1983 claims, the First Amendment, and conspiracy, the Ninth Circuit has stated:
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“A private individual may be liable under Section 1983 if she conspired or entered into joint action with a state actor…To establish liability for a conspiracy in a Section 1983 case, a plaintiff must ‘demonstrate the existence of an agreement or meeting of the minds’ to violate constitutional rights…Such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants.’” Crowe v. City of San Diego, F.3d 406, 413, 440 (9th Cir 2010).
143.

Regarding Title 42, Section 1983 claims, the First Amendment, and First Amendment Retaliation, the Ninth Circuit has stated: “To recover under § 1983 for (First Amendment) retaliation, a plaintiff must prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” Blair v Bethel School District, No. 08-35895 D.C. No. CV08-5181-FDB (9th Cir. 2012)

VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH
144.

24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

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

145.

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)

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146.

Plaintiff alleges that named and unnamed Defendants engaged in a series of acts which violated Plaintiff rights under the First

Amendment as set forth above:
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.

147.

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

VII. COUNT TWO: FIRST AMENDMENT RETALIATION
148.

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

149.

Plaintiff alleges that named and unnamed Defendants engaged in a series of acts to retaliate against Plaintiff for speaking out against Tucson City Officials and to deter him from engaging in speech challenging Tucson City Open Border Policy, as set forth above. The actions taken by named and unnamed Defendants were the proximate cause of harm done to Plaintiff. VIII. COUNT THREE: FALSE ARREST

150.

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

151.

Plaintiff alleges the following Defendants committed acts of false arrest:
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A B 152.

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

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

153.

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

154.

Plaintiff alleges that named and unnamed Defendants met, came to a series of agreements and acted in concert for the purpose of denying Plaintiff his rights under the First Amendment, as set forth above.

155.

Regarding claims of conspiracy and pleadings, the Federal Rules of Civil Procedure, Rule 12(b)(6) provides: “The facts they plead must be sufficient to give rise to a ‘reasonably founded hope that the discovery process will reveal relevant evidence’ in support of their claims.” Citing Bell Atlantic v Twombly, 127 S.Ct. 1955, 1967 (2007)

156.

Defendants’, named and unnamed, actions were the proximate cause of the harm done to Plaintiff. X. COUNT FIVE: MALICIOUS PROSECUTION

157.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-128 as though fully set forth herein.

158.

Plaintiff alleges that unnamed Defendants improperly exerted pressure on Defendants Rankin, Merritt and Mehroff, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings against Plaintiff for the purpose of depriving Plaintiff of his constitutional rights to free speech and equal protection.

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159.

The actions of named Defendants Rankin, Merritt, and Merhoff, and unnamed Defendants, were the proximate cause of harm done to Plaintiff. XI COUNT SIX: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

160.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1-128 as though fully set forth herein.

161.

Plaintiff alleges that named and unnamed Defendants engaged in a five year vendetta and pattern of conduct intended to deprive him of his rights and to cause him emotional distress, as set forth above.

162.

The actions of named and unnamed Defendants were the proximate cause of harm done to Plaintiff. XII 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 Angels—with the following rationale: “If we don’t protect the rights of the minority among us, someday the government will step in and deny these rights to the rest of us.” 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: “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
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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 recognized…that repression breeds hate; that hate menaces stable government…They eschewed silence coerced by law—the 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 standing enterprise to aid and abet and otherwise encourage the unlawful entry and exploitation of Mexico’s poor, and (3) hide from public view Defendant Tucson’s policy of appointing public officials on the basis of cronyism and not on the basis of their fitness to hold public office, is

On September 13, 2011 Plaintiff was arrested during “Call to the Audience” for publicly informing the Tucson City Council regarding Defendant Miranda’s disgraceful conduct towards Dr. Gilmartin. Google: Warden vs. Tucson Mayor Bob Walkup.
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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 or commencing a criminal prosecution;

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 Plaintiff’s 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;

D)

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

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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) Plaintiff’s loss of income as a result of having to defend himself in a series of criminal prosecutions, and (4) the negligent and intentional deprivation of the Plaintiff’s civil rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, 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 attorney’s 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 13th day of July, 2012. BY: ________________________________ Roy Warden, Plaintiff

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Original filed with the Court on July 13, 2012. I hereby certify that on July 13, 2012, I served the attached document by mail, and by email, on the following: Viola Romero-Wright Principal Assistant Tucson City Attorney P.O. Box 27210 Tucson, Arizona 85726-7210 Viola.romero@tucsonaz.gov BY: _______________________ Roy Warden, Plaintiff

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EXHIBIT ONE

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