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Case 4:13-cv-00283-DCB-BPV Document 106 Filed 06/23/18 Page 1 of 21

Roy Warden, Publisher


Arizona Common Sense
6502 E. Golf Links Road #129
Tucson Arizona 85730
roywarden@hotmail.com

UNITED STATES DISTRICT COURT


DISTRICT OF ARIZONA

ROY WARDEN, Case No. 13-civ-0283 TUC DCB (BPV)

Plaintiff, In Pro Se

Vs

BOB WALKUP, individually THIRD AMENDED COMPLAINT FOR


and in his official capacity INJUNCTIVE & DECLARATORY RE-
as Tucson City Mayor; LIEF, AND DAMAGES, FOR NEGLI-
STEVE KOZACHIK, indivi- GENT AND INTENTIONAL VIOLA-
dually and in his official TIONS OF TITLE 42 U.S.C. § 1983
capacity as Tucson City AND TITLE 42 U.S.C. §1985
Councilman; RICHARD
MIRANDA, individually and
in his official capacity as
THE HON. BERNARDO P. VELASCO
Tucson City Manager; MIKE
RANKIN, individually and in
his official capacity as Tuc-
son City Attorney; ANTO-
NIO RIOJAS, individually
and in his official capacity
as Tucson City Employee;
ROBERTO VILLASENOR,
individually and in his offi-
cial capacity as Chief of the
Tucson Police Department;
JEFFREY COUCH, individ-
ually and in his official ca-
pacity as Officer of the Tuc-
son Police Department;
SHANE SHOLL, individually
and in his official capacity

1
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as Officer of the Tucson Po-


lice Department; THE CITY
OF TUCSON; and DOES 1-
100,
Defendants.

1 COMES NOW the Plaintiff Roy Warden, as per order of the


2 Court dated November 9, 2017, with his Third Amended
3 Complaint (consolidated) for Injunctive and Declaratory Relief,
4 and Damages, against the Defendants, named and unnamed
5 above, and as grounds therefore alleges:
6 I. INTRODUCTION

7 1. This is an action pursuant to the Civil Rights Act of


8 1871, 42 U.S.C. §1983, 42 U.S.C. §1985 and 28 U.S.C.
9 § 1343, seeking redress for the negligent and inten-
10 tional deprivation of the Plaintiff’s constitutional
11 rights. Venue is proper in the 9th District of Arizona, as
12 all of the acts complained of occurred in Pima County
13 Arizona.
14 II. JURISDICTION
15 2. This Court has jurisdiction over this action under 28
16 U.S.C. § 1343(a)(3) for negligent and intentional viola-
17 tions of constitutional rights as provided by 42 U.S.C.
18 §1983 and 42 U.S.C. §1985. The Plaintiff seeks in-
19 junctive relief, declaratory relief and monetary damag-
20 es—including exemplary damages—as well as attorney
21 fees and costs pursuant to 42 U.S.C. §1988.

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1 3. The Plaintiff seeks redress for violation of the Plaintiff’s


2 rights to speech, press, petition and assembly under
3 the First Amendment of the Constitution of the United
4 States, the Plaintiff’s right to be free of illegal seizures
5 under the Fourth Amendment of the Constitution of
6 the United States, the Plaintiff’s right to be free from
7 unlawful seizure, false arrest, malicious prosecution
8 and imprisonment as provided for by the Fourth and
9 Fourteenth Amendments of the Constitution of the
10 United States, and the Plaintiff’s right to due process
11 of law as guaranteed by the Fourth and Fourteenth
12 Amendments of the Constitution of the United States.

13 III. REQUEST FOR JURY TRIAL

14 4. Pursuant to Rule 38 of the Federal Rules of Civil Pro-


15 cedure, Plaintiff requests a trial by jury.

16 IV. IDENTITY OF THE PARTIES

17 5. Plaintiff Roy Warden, community activist, writer and


18 publisher of political newsletters Common Sense II, CS
19 II Press, Arizona Common Sense and Director of the
20 Tucson Weekly Public Forum, is a citizen of the United
21 States and was a resident of Pima County Arizona at
22 all times relevant to this complaint.
23 6. Defendant Bob Walkup was employed by the City of
24 Tucson, and acted individually and in his official ca-
25 pacity as Tucson City Mayor, under color of state law,
26 regulations, customs and policies at all times relevant

3
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1 herein. Defendant Walkup is sued in his individual


2 and official capacities.
3 7. Defendant Steve Kozachik is employed by the City of
4 Tucson, and acted individually and in his official ca-
5 pacity as Councilman for the City of Tucson, under
6 color of state law, regulations, customs and policies at
7 all times relevant herein. Defendant Kozachik is sued
8 in his individual and official capacities.
9 8. Defendant Richard Miranda was employed by the City
10 of Tucson, and acted individually and in his official
11 capacity as Tucson City Manager, under color of state
12 law, regulations, customs and policies at all times rel-
13 evant herein. Defendant Miranda is sued in his indi-
14 vidual and official capacities.
15 9. Defendant Mike Rankin is employed by the City of
16 Tucson, and acted individually and in his official ca-
17 pacity as Tucson City Attorney, under color of state
18 law, regulations, customs and policies at all times rel-
19 evant herein. Defendant Rankin is sued in his individ-
20 ual and official capacities.
21 10. Defendant Antonio Riojas is employed by the City of
22 Tucson, and acted individually and in his official ca-
23 pacity as Tucson City Employee, under color of state
24 law, regulations, customs and policies at all times rel-
25 evant herein. Defendant Riojas is sued in his individu-
26 al and official capacity as Tucson City Employee.
27 11. Defendant Roberto Villaseñor was employed by the
28 City of Tucson, and acted individually and in his offi-

4
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1 cial capacity as Chief of the Tucson Police Department,


2 under color of state law, regulations, customs and pol-
3 icies at all times relevant herein. Defendant Villaseñor
4 is sued in his individual and official capacities.
5 12. Defendant Officer Jeffrey Couch was employed by the
6 City of Tucson, and acted individually and in his offi-
7 cial capacity as Tucson City Police Officer, under color
8 of state law, regulations, customs and policies at all
9 times relevant herein. Defendant Couch is sued in his
10 individual and official capacities.
11 13. Defendant Officer Shane Sholl is employed by the City
12 of Tucson, and acted individually and in his official
13 capacity as Tucson City Police Officer, under color of
14 state law, regulations, customs and policies at all
15 times relevant herein. Defendant Sholl is sued in his
16 individual and official capacities.
17 14. Defendant City of Tucson, a municipal corporation, is
18 a unit of local government organized under the laws of
19 the State of Arizona. Municipalities “…may be sued for
20 constitutional deprivations visited pursuant to gov-
21 ernmental ‘custom’ even though such a custom has
22 not received formal approval through the body’s official
23 decision-making channels.” Monell v. Department of
24 Social Services, 436 U.S. 658, 690, 691 (1978)
25 15. Defendant Does 1-100 are (1) individuals or members
26 of various political organizations who acted individual-
27 ly or as agents of the state, under the direction or con-
28 trol of, or acted in concert with, named or unnamed

5
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1 Defendants, to deprive Plaintiff of rights secured by the


2 First Amendment, and (2) Tucson City employees, in-
3 cluding councilpersons, their staffs, and employees of
4 the Tucson Police Department, who acted individually,
5 and at the direction of their superiors, within their en-
6 forcement, administrative and executive capacities,
7 under color of state law, regulations, customs and pol-
8 icies at all times relevant herein. Does 1-100 are sued
9 in their individual and official capacities.

10 V. FACTS AND ALLEGATIONS

11 16. Plaintiff is an unpaid political activist working on be-


12 half of the people of Pima County, the publisher of
13 Common Sense II, CSII Press, Arizona Common Sense
14 and the Director of the Tucson Weekly Public Forum.
15 17. Plaintiff has spent the last 12 years investigating alle-
16 gations of malfeasance within the legal and political
17 institutions of Pima County, including the malfeasance
18 of Tucson City Officials who have used their public of-
19 fices to (1) aid and abet, entice and invite, and other-
20 wise to encourage the unlawful entry of impoverished
21 Mexican citizens to supply local contractors with low
22 cost labor, (2) advance the policy of the Mexican Gov-
23 ernment to exclude their poor so they may come to
24 America to earn and send home remittances, and (3)
25 employ Tucson City Administrators, and staff, on the
26 basis of cronyism and not on the basis of their fitness
27 to hold public office.

6
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1 18. On March 6, 2004 Tucson Police Officers stood idly by


2 while “pro-Raza,” open borders advocates assaulted,
3 spit upon, and otherwise intimidated supporters of the
4 “Protect the Border” movement at the Glen Spencer
5 Rally held in Presidio Park Tucson Arizona.
6 19. Subsequently; TPD officers arrested 80 year old May-
7 dell Purvis when she attempted to protect herself from
8 assault. (see Affidavit of Kathy McKee, filed with Initial
9 Disclosures)
10 20. TPD’s “failure to act” to protect citizens in the lawful
11 exercise of their First Amendment rights and arrest of
12 Maydell Purvis is (1) a police tactic intended to en-
13 courage “agent provocateurs” (2) an example of the
14 “custom and practice” of Tucson City employees to re-
15 taliate against opponents and to deter opposition to
16 Tucson City Open Border Policy.
17 21. On February 12, 2008 Plaintiff addressed the Tucson
18 Mayor and Council and continued his ongoing chal-
19 lenge of Tucson’s multi-decade promulgation of Open
20 Border Policy.
21 22. Consequently; on February 13, 2008, Tucson Police
22 Officers (1) arrested Plaintiff while he conducted the
23 Tucson Weekly Public Forum, (3) handcuffed him, (3)
24 transported him to TPD, and (4) detained him for 30
25 minutes before releasing him without charge.
26 23. TPD’s actions on February 13, 2008 is an example of
27 the “custom and practice” of Tucson City employees to
28 utilize the tactic of “arrest, detention and release” (1) to

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1 retaliate against opponents, (2) to intimidate and (3) to


2 deter opposition to Tucson City Open Border Policy.
3 24. On or about January 11, 2011, during the U.S. Con-
4 ference of Mayors in Washington D.C., Defendant
5 Walkup, invoking the name of Congresswoman Gabriel
6 Giffords, announced what he called a “Civility Accord.”
7 25. On September 07, 2011, during “Call to the Audience,”
8 Plaintiff addressed the Mayor and Council regarding a
9 2006 federal trial and jury award of 2.9 million dollars
10 in damages to Plaintiffs Gilmartin and Harris (CV 00-
11 352- TUC FRZ) finding Defendant Miranda and other
12 Tucson City Officials had conspired to engage in First
13 Amendment retaliatory acts, and had committed acts
14 “so outrageous in character and so extreme in degree
15 as to go beyond all possible bounds of decency, and to
16 be regarded as atrocious and utterly intolerable in a
17 civilized community.1”
18 26. Additionally; on or about September 07, 2011 Petition-
19 er further informed Tucson Public Officials that Tuc-
20 son City Attorney Mike Rankin had unlawfully used
21 approximately eight hundred thousand dollars of pub-
22 lic funds to satisfy a portion of the punitive damage
23 judgment against Defendant Richard Miranda and
24 other Tucson City Officials in the Gilmartin case.
25 27. Subsequent to Plaintiff’s address, Defendant Kozachik
26 issued stern words intended to (1) retaliate for Plain-

1 Arizona standard for assessing punitive damages.

8
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1 tiff’s exposure of Tucson City Open Border Policy and


2 the unlawful acts committed by Defendants Miranda
3 and Rankin, (2) humiliate and embarrass Plaintiff and
4 hold him up to public ridicule, and (3) deter Plaintiff
5 and others from the free exercise of rights secured by
6 the First Amendment.
7 28. Subsequent to the September 07, 2011 meeting of the
8 Mayor and Council, Defendant Riojas, acting in his
9 capacity as Tucson City Employee, provided advice to
10 Defendants on “how to” employ “The Rule” to deter
11 Plaintiff from future address to the Mayor and Council.
12 29. Sometime between September 07, 2011 and Septem-
13 ber 13, 2011, Defendants Kozachik and Walkup com-
14 municated with Defendants Rankin, Riojas and Mi-
15 randa, and others whose identities are unknown, and
16 came to an agreement to unlawfully2 arrest Plaintiff
17 should Plaintiff continue to address the Mayor and
18 Council regarding the issue of cronyism, the Gil-
19 martin trial and damage award, and Defendant Ran-
20 kin’s unlawful use of $800,000 of public money to sat-
21 isfy a portion of the Gilmartin Judgment.

2 All Defendants knew that the policy Tucson City Officials


employed to regulate speech before the Mayor and Council
was unconstitutional.

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1 30. During the September 13, 2011 Tucson Mayor and


2 City Council Meeting, attended by Defendant Riojas3,
3 Defendant Walkup referenced the “Civility Accord” and
4 stated, “it’s time for us to start treating each other with
5 dignity and respect and understanding and decorum.”
6 31. Thereupon Defendant Walkup directed Defendant
7 Tucson City Attorney Mike Rankin to read a “State-
8 ment of Decorum,” (aka “The Rule”) which Defendant
9 Rankin did, as follows:
10 “Citizens attending meetings shall observe rules
11 of propriety, decorum, and good conduct. Any
12 person making personal, impertinent or slander-
13 ous remarks, or becomes boisterous while ad-
14 dressing the governing body, may be removed by
15 the Sgt. at Arms as directed by the Chairman.”
16
17 32. Subsequently; on September 13, 2011, during Plain-
18 tiff’s public address to the Mayor and Council, Defend-
19 ant Walkup, acting on advice and directions provided
20 him by Defendants Kozachik, Rankin, Riojas, Miranda
21 and others whose identities are presently unknown,
22 directed Defendant Officers Couch and Sholl to arrest
23 Plaintiff when he began to recite the requisite Arizona
24 standards for awarding punitive damages as they ap-
25 plied to Defendant Miranda in the 2006 Gilmartin
26 case.
27 33. Immediately thereafter Defendants Couch and Sholl,
28 acting without probable cause to believe an offense

3 Defendant Riojas attended to observe Plaintiff and to advise


the Mayor and Council accordingly.

10
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1 had been committed, arrested Plaintiff, took Plaintiff


2 into custody, and removed him from the Mayor and
3 Council Chambers.
4 34. Outside Defendant Couch confronted Plaintiff and told
5 him: “Get out of here! You’re just a troublemaker!”
6 35. Defendants’ actions on September 13, 2013 provide an
7 additional example of “the custom and practice” of
8 Tucson City officials to employ the tactic of “arrest, de-
9 tention and release” (1) to retaliate against opponents,
10 (2) to intimidate and (3) to deter opposition to Tucson
11 City Open Border Policy.
12 36. Subsequently; Councilwoman Karen Uhlich character-
13 ized Plaintiff’s comments as “bullying and threaten-
14 ing,” and Defendant Kozachik referred to Plaintiff’s
15 comments as “offensive and racist attacks.”
16 37. On September 20, 2011 the Mayor and City Council
17 held a public “study session” in which they addressed
18 the particulars of “The Rule.” Significantly; both Mayor
19 and Council were advised as to the legality of “The
20 Rule” by Defendant Tucson City Attorney Mike Rankin.
21 38. Subsequently; on October 12, 2011 Plaintiff filed a
22 Special Action in Pima County Superior Court, action
23 number C20117276, challenging “The Rule” as vague
24 and overbroad.
25 39. On March 22, 2012, upon Tucson City Defendants’
26 misrepresentation they were changing “The Rule,” the
27 Court dismissed Plaintiff’s Special Action as “moot.”

11
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1 40. The new “Rule,” which shares the same constitutional


2 infirmities of vagueness and overbreadth as the old,
3 provides further proof of the “custom and practice” of
4 Tucson City Defendants to misrepresent the facts4 and
5 to defy5 the lawful authority of the Court.

6 VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH

7 41. Plaintiff repeats and re-alleges each and every allega-


8 tion contained in paragraphs 1-40 as though fully set
9 forth herein.
10 42. The Arizona Supreme Court has stated:
11 “Any question regarding infringement of First
12 Amendment rights is of the utmost gravity and
13 importance, for it goes to the heart of the natural
14 rights of citizens to impart and acquire infor-
15 mation which is necessary for the well being of a
16 free society. Since an informed public is the most
17 important of all restraints upon misgovernment,
18 (the government may not take) any… action which
19 might prevent free and general discussion of pub-
20 lic matters as seems essential to prepare the peo-
21 ple for an intelligent exercise of their rights as citi-
22 zens.” New Times Inc. v Arizona Board of Regents,
23 110 Ariz. 367, 519 P.2d 169 (1974)
24
25 43. Plaintiff alleges that the following Defendants violated
26 Plaintiffs right to freedom of speech, as set forth below:

4 See “Judge Staring Order,” dated April 28, 2015, disclosed


in Plaintiff’s First Supplemental Disclosures
5 Defendant Miranda who had cost Tucson taxpayers two mil-
lion dollars for “outrageous” conduct.

12
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1 a) Defendant Kozachik on or about September 07,


2 2013 when he spoke stern words to deter Plaintiff
3 from future address to the Mayor and Council;
4 b) Defendants Walkup, Kozachik, Miranda, Rankin,
5 Riojas, and others who have not yet been indenti-
6 fied, when they agreed to have Plaintiff arrested for
7 future address to the Mayor and Council under the
8 authority of a policy regulating speech before the
9 Mayor and Council they knew to be unconstitution-
10 al;
11 c) Defendant Walkup, on or about September 13,
12 2011, when he directed Defendants Couch and
13 Sholl to arrest Plaintiff during Plaintiff’s address to
14 the Mayor and Council;
15 d) Defendants Couch and Sholl on or about September
16 13, 2011 when, without probable cause to believe
17 an offense had occurred, they arrested Plaintiff
18 while Plaintiff addressed the Tucson Mayor and
19 Council;
20 e) Defendants Tucson City and Villaseñor for failure to
21 train and otherwise instruct TPD Officers not to ar-
22 rest citizens engaged in lawful public conduct with-
23 out probable cause to believe an offense had been
24 committed;
25 f) Defendant Kozachik on or about September 13,
26 2013 when he referred to Plaintiff’s comments as
27 “offensive and racist attacks.”

13
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1 44. The actions taken by Defendants Walkup, Kozachik,


2 Miranda, Rankin, Riojas, Couch, Sholl, Villaseñor, and
3 others who have not yet been indentified, were the
4 proximate cause of harm done to Plaintiff.

5 VII. COUNT TWO: FIRST AMENDMENT RETALIATION

6 45. Plaintiff repeats and re-alleges each and every allega-


7 tion contained in paragraphs 1-44 as though fully set
8 forth herein.
9 46. Plaintiff alleges that the following Defendants engaged
10 in specific acts of First Amendment retaliation as set
11 forth below:
12 g) Defendant Kozachik on or about September 07,
13 2013 when he spoke stern words to deter Plaintiff
14 from future address to the Mayor and Council;
15 h) Defendant Riojas when he provided advice to the
16 Mayor and Council on “how to” employ “The Rule”
17 to prevent Plaintiff from future address to the Mayor
18 and Council;
19 i) Defendants Walkup, Kozachik, Miranda, Rankin,
20 Riojas, and others who have not yet been indenti-
21 fied, when they agreed to have Plaintiff arrested for
22 future address to the Mayor and Council under the
23 authority of a policy regulating speech before the
24 Mayor and Council they knew to be unconstitution-
25 al;

14
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1 j) Defendant Walkup on or about September 13, 2011


2 when he directed Defendants Couch and Sholl to
3 arrest Plaintiff during Plaintiff’s address to the
4 Mayor and Council;
5 k) Defendant Kozachik on or about September 13,
6 2013 when he referred to Plaintiff’s comments as
7 “offensive and racist attacks.”
8 47. The actions taken by Defendants Walkup, Kozachik,
9 Miranda, Rankin, Riojas, and others who have not yet
10 been identified, were the proximate cause of harm
11 done to Plaintiff.

12 VIII. COUNT THREE: FALSE ARREST

13 48. Plaintiff repeats and re-alleges each and every allega-


14 tion contained in paragraphs 1-47 as though fully set
15 forth herein.
16 49. Plaintiff alleges the following Defendants committed
17 acts of false arrest:
18 l) Defendant Walkup on or about September 13, 2011
19 when he directed Defendants Couch and Sholl to
20 arrest Plaintiff as Plaintiff lawfully addressed the
21 Mayor and Council during the “Call to the Audi-
22 ence” portion of the Mayor and Council Meeting;
23 m) Defendants Couch and Sholl on or about September
24 13, 2011 when, without probable cause to believe
25 an offense had occurred, they arrested Plaintiff’s
26 lawful address before the Mayor and Council, took

15
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1 him into custody and removed him from the meet-


2 ing.
3 50. The actions taken by Defendants Walkup, Couch and
4 Sholl were the proximate cause of harm done to Plain-
5 tiff.

6 IX. COUNT FOUR: CONSPIRACY

7 51. Plaintiff repeats and re-alleges each and every allega-


8 tion contained in paragraphs 1-50 as though fully set
9 forth herein.
10 52. Plaintiff alleges that the following Defendants met,
11 came to an agreement and acted in concert for the
12 purpose of denying Plaintiff his rights under the First
13 Amendment as set forth below:
14 n) Defendants Walkup, Kozachik, Miranda, Rankin,
15 Riojas, and others who have not yet been indenti-
16 fied, when they agreed to have Plaintiff arrested for
17 future address to the Mayor and Council under the
18 authority of a policy regulating speech before the
19 Mayor and Council they knew to be unconstitution-
20 al.
21 53. The actions taken by Defendants Walkup, Kozachik,
22 Miranda, Rankin, Riojas, and others who have not yet
23 been identified, were the proximate cause of harm
24 done to Plaintiff.

25

16
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1 X. COUNT FIVE: INTENTIONAL INFLICTION OF


2 EMOTIONAL DISTRESS
3
4 54. Plaintiff repeats and re-alleges each and every allega-
5 tion contained in paragraphs 1-53 as though fully set
6 forth herein.
7 55. Plaintiff alleges that the following Defendants engaged
8 in unlawful conduct for the purpose of denying Plain-
9 tiff his right to free speech, knowing that such denial
10 of rights would (1) diminish Plaintiff’s stature within
11 the community, (2) inhibit Plaintiff’s opportunity for
12 employment as an Arizona Certified Legal Document
13 Preparer, (3) cause dissention within Plaintiff’s house-
14 hold, and (4) cause Plaintiff to suffer significant emo-
15 tional harm, as set forth below:
16 o) Defendant Kozachik when he issued “stern words”
17 on or about September 07, 2011, and again, on or
18 about September 13, 2011 when he referred to
19 Plaintiff’s public commentary as “offensive and rac-
20 ist attacks”;
21 p) Defendants Walkup, Kozachik, Miranda, Rankin,
22 Riojas, and others who have not yet been indenti-
23 fied, when they agreed to have Plaintiff arrested for
24 future address to the Mayor and Council under the
25 authority of a policy regulating speech before the
26 Mayor and Council they knew to be unconstitution-
27 al;

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1 q) Defendant Walkup when he instructed Defendants


2 Couch and Sholl to arrest Plaintiff on or about Sep-
3 tember 13, 2011.
4 56. The actions taken by Defendants Walkup, Kozachik,
5 Miranda, Rankin, Riojas, and others who have not yet
6 been identified, were the proximate cause of harm
7 done to Plaintiff.

8 XI. CONCLUSION

9 In America on Trial Alan Dershowitz, in analyzing Walker v


10 Birmingham, 87 S.Ct. 1824, explained that in the sixties, the
11 entire system of justice in the southern states was “commit-
12 ted in theory to free speech and equal rights for all, but in
13 practice used the police and the courts to silence the voice
14 of political opponents.” (emphasis added)
15 Petitioner, who has endured 13 arrests and seven separate
16 criminal prosecutions arising out of legitimate street protest
17 and his excoriation of public officials engaged in the promul-
18 gation of Open Border Policy, and Cronyism, earnestly be-
19 lieves the same conditions of oppression exist in Arizona to-
20 day.
21 For nearly a century the Federal Courts have energetically
22 protected the expressive rights of those who exist on the
23 fringes of American society—Communists, Nazis, Klansmen
24 and Hells Angels—with the following rationale: “If we don’t
25 protect the rights of the minority among us, someday the gov-
26 ernment will step in and deny these rights to the rest of us.”

18
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1 In Whitney v People of the State of California, 47 S.Ct. 648,


2 649 the Supreme Court wrote eloquently on the issue of free
3 speech:
4 “Those who won our independence by revolution
5 were not cowards. They did not fear political
6 change. They did not exalt order at the cost of liber-
7 ty. They believed liberty to be the secret of happi-
8 ness and courage to be the secret of liberty. They
9 believed that freedom to think as you will and to
10 speak as you think are means indispensable to the
11 discovery and spread of political truth; that without
12 free speech and assembly discussion would be fu-
13 tile;…that the greatest menace to freedom is an in-
14 ert people; that public discussion is a political duty;
15 and that this should be a fundamental principle of
16 the American government.”
17
18 “They recognized…that repression breeds hate; that
19 hate menaces stable government…They eschewed
20 silence coerced by law—the argument of force in its
21 worst form. Recognizing the occasional tyrannies of
22 governing majorities, they amended the Constitu-
23 tion so that free speech and assembly should be
24 guaranteed.”

25 Moreover;

26 “(A)s Chief Justice Hughes wrote in De Jonge v Ore-


27 gon, 299 US 353, 365, 260, it is only through free
28 debate and free exchange of ideas that government
29 remains responsive to the will of the people and
30 peaceful change is effected. The right to speak freely
31 and to promote diversity of ideas and programs is
32 therefore one of the chief distinctions that sets us
33 apart from totalitarian regimes.” Terminiello v City
34 of Chicago, 337 U.S. 1 (1949).
35

19
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1 The long-feared day of totalitarianism and blatant disre-


2 gard for the right of free political expression has finally come
3 to Tucson Arizona.
4 Defendants’ long term custom, practice and usage of the
5 Tucson Police Department to (1) silence the voice of political
6 dissent, whether that dissent takes place in the streets of
7 Tucson or before the Mayor and Council, and (2) protect local
8 government officials from public criticism, is taken directly
9 from Hitler’s play-book.
10 Our Founding Fathers established the Courts for perilous
11 and revolutionary times such as these. During the great Civil
12 Rights era, the Courts protected the political rights of the
13 American people so they could organize, assemble and ac-
14 complish what in effect was a peaceful revolution; Plaintiff
15 earnestly prays this Court will do no less now.

16 XII. PRAYER

17 WHEREFORE, Plaintiff prays that this Court:


18 A. Declare the policy regulating speech before the Mayor
19 and Council used to arrest and remove Plaintiff from
20 the meeting of the Mayor and Council on September
21 13, 2011, and the newly adopted policy, to be uncon-
22 stitutional;
23 B. Upon application, issue a preliminary injunction en-
24 joining the City of Tucson from unlawfully using the
25 provisions of their new policy regulating speech be-
26 fore the Mayor and Council;

20
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1 C. Direct the Tucson Police Department to properly in-


2 struct their officers on the requirements of probable
3 cause for believing a criminal offense has occurred
4 before making an arrest, even when the officer is per-
5 forming “sergeant at arms” duty at the weekly meet-
6 ings of the Tucson Mayor and Council;
7 D. Provide Plaintiff with just compensation for Plaintiff’s
8 seizure and the violation of his rights;
9 E. Access punitive damages against Defendants in their
10 individual capacities to deter them and other public
11 officials from engaging in similar misconduct; and
12 F. Provide such additional relief the Court deems prop-
13 er.

14 RESPECTFULLY SUBMITTED this 23rd day of June, 2018.

15 BY: /s/Roy Warden

CERTIFICATE OF SERVICE

I hereby certify that on June 23, 2018 I (1) electronically


transmitted the attached document to the Clerk’s Office using
the CM/ECR System for filing and transmittal of a Notice of
Electronic Filing to the following CM/ECR registrant, and (2)
sent a copy by email to:

Dennis McLaughlin
Principal Assistant City Attorney for
Michael G. Rankin
CITY ATTORNEY
P.O. Box 27210
Tucson, AZ 85726-7210
Dennis.mclaughlin@tucsonaz.gov

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