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8/18/2019 PROPOSED THIRD AMENDED COMPLAINT
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Roy Warden, PublisherArizona Common Sense6502 E. Golf Links Road #129Tucson Arizona 85730roywarden@hotmail.com
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
ROY WARDEN,
Plaintiff, IN PRO SE
Vs
RICHARD MIRANDA, individually
and in his official capacity as TucsonCity Manager; MIKE RANKIN,individually and in his official capacityas Tucson City Attorney; LISA JUDGE,individually and in her official capacityas Assistant Tucson City Attorney;FRED GRAY, individually and in hisofficial capacity as Director of TucsonParks and Recreation; REENIEOCHOA, individually and in her officialcapacity as Southwest District Admini-strator of Tucson Parks and Recreation;KEVIN MCCARTHY, individually andin his official capacity as Captain of theTucson City Police Department; PAULSAYRE, individually and in his officialcapacity as Lt. of the Tucson City PoliceDepartment; DIANA LOPEZ, indivi-dually and in her official capacity as Lt.of the Tucson City Police Department;TUCSON MAY 1ST COALITION FORWORKER AND IMMIGRANTRIGHTS; THE CITY OF TUCSON; andDOES 1-25,
Defendants.
)))))))))
)))))))))))))
)))))))))))))
Case No. CV-14 2050 TUC (DCB)
THIRD AMENDED COMPLAINT
FOR DECLARATORY RELIEFAND COMPENSATORY ANDEXEMPLARY DAMAGES FORINTENTIONAL AND NEGLI-GENT VIOLATIONS OF TITLE42 U.S.C. §1983, AND TITLE 42U.S.C. §1985
THE HONORABLE DAVIDBURY
COMES NOW the Plaintiff Roy Warden, with his Third Amended Com-1
plaint against the Defendants, named and un-named above, and as grounds2
therefore alleges: 3
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11. Defendant Kevin McCarthy was employed by the City of Tucson, and1
acted individually and in his official capacity as Captain of the Tucson2
Police Department, under color of state law, regulations, customs and3
policies at all times relevant herein. Defendant McCarthy is sued in his4
individual and official capacities.5
12. Defendant Paul Sayre is employed by the City of Tucson, and acted6
individually and in his official capacity as Lt. of the Tucson Police7
Department, under color of state law, regulations, customs and policies8
at all times relevant herein. Defendant Sayre is sued in his individual9
and official capacities.10
13. Defendant Diana Lopez is employed by the City of Tucson, and acted11
individually and in her official capacity as Lt. of the Tucson Police12
Department, under color of state law, regulations, customs and policies13
at all times relevant herein. Defendant Lopez is sued in her individual14
and official capacities.15
14. Defendant in default Tucson May 1st Coalition for Worker and Immi-16
grant Rights, a political organization directed by “pro raza” activist Is-17
abel Garcia and located in Tucson Arizona, acted as an agent of the18
state under the direction or control of named or unnamed Defendants,19
and in concert with Defendants McCarthy, Sayre, Lopez and other20
Tucson Officials and Employees, under color of state law, regulations,21
customs and policies at all times relevant herein.22
15. Defendant City of Tucson, a municipal corporation, is a unit of local23
government organized under the laws of the State of Arizona. Muni-24
cipalities “…may be sued for constitutional deprivations visited25
pursuant to governmental ‘custom’ even though such a custom has not26
received formal approval through the body’s official decision-making27
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channels.” Monell v. Department of Social Services, 436 U.S. 658, 690,1
691 (1978) 2
16. Defendant Does 1-25 are (1) individuals, political organizations or3
members of political organizations who acted individually or as agents4
of the state under the direction or control of Defendants, and (2) Tucson5
City employees, including members of the Tucson City Council, their6
staff, officers and employees of the Tucson Police Department, who7
acted individually, and at the direction of their superiors, within their8
enforcement, administrative and executive capacities, under color of9
state law, regulations, customs and policies at all times relevant herein.10
Does 1-25 are sued in their individual and official capacities. 11
V. FACTS AND ALLEGATIONS12
17. Plaintiff is an unpaid political activist working on behalf of the people13
of Pima County, the publisher of Common Sense II, CSII Press,14
Arizona Common Sense and the Director of the Tucson Weekly Public15
Forum.16
18.
Plaintiff has spent the last 9 years investigating allegations of mal-17
feasance within the legal and political institutions of Pima County, in-18
cluding the malfeasance of Tucson City Officials who have used their19
public offices (1) to aid and abet, entice and invite, and otherwise to20
en-courage the unlawful entry of impoverished Mexican citizens to21
supply local contractors with low cost labor, (2) to advance the policy22
of the Mexican Government to exclude their poor so they may come to23
America to earn and send home remittances, and (3) to expose the24
current activities of elected Tucson City Officials who now employ25
Tucson City Administrators, and staff, on the basis of cronyism and26
not on the basis of their fitness to hold public office.27
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19. Sometime prior to April 10, 2006, Pima County political activist Isabel1
Garcia, organized a number of “pro-raza open border” activist groups2 2
to serve as “front organizations” for Arizona Border Rights Founda-3
tion3, an Arizona not for profit corporation Isabel Garcia directs.4
20. Subsequently; Isabel Garcia directed the activities of her various5
“front organizations” and organized a rally in Armory Park, Tucson6
Arizona to take place on April 10, 2006, as part of a national political7
event, called “Nationwide Day of Protest March and Rally4” 8
21. Subsequently; on April 10, 2006 members of Isabel Gar cia’s various9
“pro raza open border” activist groups5 rioted in Armory Park Tucson10
Arizona in response to Plaintiff Warden6’s lawful public speech oppos-11
ing the economic policy of Mexican Government to “export” their poor12
to the United States to earn and send home remittance money7 and13
Defendant Tucson City Open Border Policy, resulting in the Tucson14
Police Department arresting 6 “pro-raza” demonstrators for f elony as-15
saults on police officers.16
2 Isabel Garcia is referred to in the media local media as the Director of DerechosHumanos.
3 Isabel Garcia is the Chairman of Arizona Border Rights Foundation.
4 As referenced by Tucson City Manager Mike Hein in his Memorandum to theTucson Mayor and Council dated May 10, 2006.
5 The local media, and the Tucson Police Department, estimated event attendanceto be 15,000.
6 On April 10, 2006 Plaintiff, and an estimated 14 other “protect the border” activ-ists generally referred to as “Border Guardians,” demonstrated in Armory Park,
Tucson Arizona in opposition to the Mexican government and Tucson City “O penBorder Policy.”
7 Currently, the Mexican economy earns more from remittance money than it doesfrom the sale of oil.
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22. In the riot’s aftermath, Isabel Garcia declared 8, on the basis that six1
“pro raza” protestors had been arrested for felony assaults on TPD of-2
ficers in Armory Park on April 10, 2006, “the community” had “lost3
trust” in the Tucson Police Department.4
23. On or about April 13, 2006, Isabel Garcia met with various Tucson5
City Officials, including Defendant Tucson Police Chief Miranda9 and6
Defendant Tucson City Attorney Rankin, and came to an agreement to7
harass, annoy, arrest and otherwise to violate Plaintiff’s First Amend-8
ment rights at all his future political events.9
24. Subsequent to the meeting with Tucson Officials referenced in para-10
graph 23 above, Isabel Garcia declared her organizations had begun to11
“regain trust in the Tucson Police Department.” 12
25. On April 27, 2006 Defendant Rankin authored and issued the “Confi-13
dential Memorandum” (1) to circumvent the law set forth in Gathright14
v. City of Portland , 439 F.3d 573 (9th Cir. 2006) and, (2) to “regain the15
trust” of Pro Raza Open Border groups who were widely reported in16
the local media to have “lost trust” in the Tucson Police Department17
consequent to police action in Armory Park on April 10, 2006, as doc-18
umented in the After Action Report dated April 26, 2006. (15-19
252COT0032-15-252COT0039) 20
26. On May 16, 2006, Isabel Garcia addressed the Tucson Mayor and21
Council and denounced the Tucson Police Department After Action22
8 Rob O’Dell, Arizona Daily Star, posted April 14, 2006
9 Prior to the meeting, Isabel Garcia stated, “the community has lost trust in theTucson Police Department.” Upon exiting the meeting Garcia stated, “we have begun to regain trust in the Tucson Police Department.”
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Report which documented numerous acts of “pro-raza” violence10 on1
April 10, 2006, and emphasized her desire to “regain trust” in the Tuc-2
son Police Department.3
27. On September 15, 2006, after a 17 day jury trial, the Clerk of the U.S.4
District Court, Tucson Arizona entered a verdict in favor of Kevin Gil-5
martin and Jack Harris against Defendant Miranda, other Tucson City6
Officials and Defendant Tucson City for nearly 3 million dollars in7
damages, including two million dollars in punitive damages, for Con-8
spiracy, First Amendment Retaliation and Intentional Infliction of9
Emotional Distress, (CV-00-352-TUC-FRZ)10
28. On December 15, 2006 at the Tucson Municipal Court trial of State v.11
Warden, CR 6041685, Isabel Garcia, who was obscured partially from12
the view of Tucson Municipal Court Judge Eugene Hays11 and other13
court officials, mouthed words, gave hand signals and otherwise14
“coached” both complaining witnesses while each gave testimony.15
29. On December 15, 2008 Isabel Garcia obtained an Injunction against16
Harassment, enjoining Plaintiff from coming within 1,000 feet of the17
Office of the Pima County Legal Defender, preventing Plaintiff from18
attending the second day of trial in State v, Warden, CR 6041685.19
30. On May 1, 2008 Assistant Tucson Police Chief Kathleen Robinson,20
citing authority unlawfully granted by Tucson City Code Section 21-21
4(a)(b)(6) and Tucson City Code Section 21-3(7)(4), denied Plaintiff22
right of entry into Armory Park, Tucson Arizona, to speak in opposi-23
tion to Tucson City Open Border Policy and the policy of the Mexican24
10 Defendant Garcia described the deplorable conduct of members of her “pro-raza”groups on April 10, 2006 as “powerful, beautiful, historic, mature,” and rejectedoutright the Gathright decision as cited by Defendant Mike Rankin in Exhibit 1.
11 This allegation is supported by the Affidavits of Steve Aiken, Lee Ewing, LauraLeighton, and Victor Mergard.
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Government, even though Plaintiff showed her a letter written by Tuc-1
son City Attorney Mike Rankin dated April 12, 2006 which stated, in2
sum and substance, that “exclusive use permits” may not be used to3
deny First Amendment Rights as per Gathright v City of Portland, 4394
F.3d 573 (9th Cir 2006).5
31. On May 16, 2008 Defendant Rankin signed the Gilmartin Settlement6
Agreement in which he orchestrated a scheme to use public money to7
satisfy a portion of the two million dollars in punitive damages granted8
by the Gilmartin jury, as set forth in paragraph 27.9
32. Three weeks subsequent to paying nearly 2 million dollars to settle the10
Gilmartin claim, including punitive damages, Defendant City of Tuc-11
son hired Defendant Miranda as Assistant Tucson City Manager,12
prompting Plaintiff to publically ask this question: “How does Defend-13
ant Miranda’s conduct, which the Gilmartin Jury judged to be ‘outra-14
geous and totally intolerable in a civilized society,’ qualify him for the15
position of Assistant Tucson City Manager ?” 16
33.
On May 1, 2009 Assistant Tucson Police Chief Kathleen Robinson,17
citing authority unlawfully granted by Tucson City Code Section 21-18
4(a)(b)(6) and Tucson City Code Section 21-3(7)(4), denied Plaintiff19
right of entry into Armory Park, Tucson Arizona, to speak in opposi-20
tion to Tucson City Open Border Policy and the policy of the Mexican21
Government, even though Plaintiff showed her a letter written by Tuc-22
son City Attorney Mike Rankin dated April 12, 200612 which stated, in23
sum and substance, that “exclusive use permits” may not be used to24
deny First Amendment Rights as per Gathright .25
34.
Sometime prior to April 2, 2010 Isabel Garcia organized the Tucson26
chapter of a new, nationwide “pro-raza open border” activist group 27
12 Exhibit one.
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known as the “The May 1st Coalition for Worker and Immigrant1
Rights.” 2
35. On or about April 2, 2010 Paul Teitelbaum, Coordinator for Defendant3
in default Tucson May 1st Coalition for Worker and Immigrant Rights4
(CWIR) and acting under the direction and control of Isabel Garcia,5
sent a letter to Defendant Southwest District Director of Tucson Parks6
and Recreation Reenie Ochoa, requesting an “Exclusive Use Permit for7
Armory Park, the site of our annual rally which takes place this year8
on Saturday May 1, 2010.”9
36. In that letter Paul Teitelbaum stated his reasons for requesting exclu-10
sive use of Armory Park:11
“There are anti-immigrant groups and individuals that have, in12the past, attempted to disrupt and incite violence at our May13Day event. The issue of Immigrant Rights and Immigration Re-14form is highly volatile and there are national organizations with15Arizona chapters that have been designated as Hate Groups by16the Southern Poverty Law Center (see http://www. Spl-cen-17ter.org/get-informed/hate-map#5=AZ) whose focus is on the18anti-immigrant issue. In addition, we have recently received an19explicit threat from a local resident, Mr. Roy Warden, who has20incited violence against our Coalition or individuals associated21
with it in the past.”22
37. On April 26, 2010 the Director of the Tucson Parks and Recreation23
Defendant Fred H. Gray Jr., sent a letter to Paul Teitelbaum, Coordi-24
nator for Defendant in default Tucson May 1st Coalition for Worker25
and Immigrant Rights, which stated:26
“I have reviewed your request for ‘exclusive use’ of Armory27
Park… Upon further discussion with Parks and Recreation28
staff, Tucson Police Department staff, and City Attorney’s Of-29
fice, this letter…will serve as your permit to utilize the areas30
indicated…for the ‘exclusive use’ of your function.31
“It will be your responsibility to monitor the access to this area32
and the participants involved. In the event that you wish to deny33
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someone access, or request someone leave the designated ‘ex-1
clusive use’ area , it will be your responsibility to ask them to do2
so. Should anyone refuse your request you would need to con-3
tact Tucson Police Department staff on- site via ‘911’ … Should4
any individual cause a disturbance or incident while in any5
other area of the park that disturbs your exclusive use, Parks6and Recreation staff will ask them to leave or police may be7called to assist should they refuse the request.” (emphasis8added)9
38. On May 1, 2010 Tucson Police Lt. David Azuelo, citing authority un-10
lawfully granted by Tucson City Code 21-4(a)(b)(6) and Tucson City11
Code Section 21-3(7)(4), and a court order which was no longer in ef-12
fect, denied Plaintiff right of entry into Armory Park, Tucson Arizona,13
to speak in opposition to Tucson City Open Border Policy and the pol-14
icy of the Mexican Government, even though Plaintiff showed him a15
letter written by Tucson City Attorney Mike Rankin dated April 12,16
2006 which stated, in sum and substance, that “exclusive use permits” 17
may not be used to deny First Amendment Rights as per Gathright. 18
39. Subsequently; Plaintiff moved to the western side of South Sixth Avenue19
and positioned himself at the corner of south Sixth Avenue and East 13 th 20
Street to view the proceedings; however Plaintiff was compelled to depart21
the May 1, 2010 rally area altogether when TPD Sergeants Jack Wool-22
ridge and Johnson threatened him with arrest if he did not move 1,000 feet23
away from Armory Park.24
40. On March 14, 2012 Pancho Medina, acting under the direction and25
control of Isabel Garcia and the Arizona Border Rights Foundation,26
sent a letter to Defendant Webber requesting reservation of Armory27
Park on May 1, 2012. (15-252COT0019)28
41. The following hand written notation appears at the top of Pancho Me-29
dina’s letter: “Permit # 198079 $655.00 paid in full, 3/14/12.” 30
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42. On March 14, 2012 Pancho Medina, acting under the direction and1
control of Isabel Garcia and the Arizona Border Rights Foundation,2
sent a letter to Defendant Grey, requesting “exclusive use” of Armory3
Park on May 1, 2012. (15-252COT020)4
43. The following hand-written notation appears at the top of Pancho Me-5
dina’s letter: “3/14/12 Lisa, Need more information as to why? For-6
ward copy of previous year to replicate. Advise need ASAP, Reenie.”7
44. On March 14, 2012 Defendant Tucson City issued a Tucson Parks and8
Recreation Rental Permit, addressed to “Pancho Medina, Arizona Bor-9
der Rights Foundation, PO Box 1286, Tucson Arizona, which amongst10
other things, acknowledged receipt of $655.00 for Permit # 19807911
from Arizona Border Rights Foundation. (15-252COT0025)12
45. On March 19, 2012 Defendant Grey sent a letter to Defendant Ochoa13
regarding Pancho Medina’s request for exclusive use of Armory Park14
on May 1, 2012. (15-252COT0030)15
46. The following hand-written notation appears at the top of Defendant16
Grey’s letter : “Forward to Reenie to work with City Attorney and TPD17
as previous. 3.20.12 OK .” 18
47. On or about March 19, 2012 Defendants Rankin, Miranda, Judge, Gray19
and Ochoa, and other Tucson City Officials, conferred, came to a de-20
cision, and then granted, an “Exclusive Use Permit, ” as per Tucson21
City Code 21-4(a)(b) (6) and Tucson City Code Section 21-3(7)(4),22
which unlawfully authorized Defendant Tucson May 1st Coalition for23
Worker and Immigrant Rights to bar Plaintiff’s entry into Armory Park24
on May 1, 2012, even though Defendants Rankin, Miranda, Judge,25
Gray and Ochoa knew such practice was a violation of the law regard-26
ing “exclusive use permits” as set forth in Gathright and as stated by27
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Defendant Rankin in his April 12, 2006 memo to Tucson City Manager1
Mike Hein.2
48. On March 26, 2012 Defendant Ochoa sent a letter to Pancho Medina,3
confirming the reservation of Armory Park on May 1, 2012. (15-4
252COT0017-18)5
49. On April 27, 2013 Defendant Ochoa sent a cover sheet and an email6
communication to Defendants Rankin, Judge and McLaughlin regard-7
ing the exclusive use permit and agreeing it “looks fine.” (Doc. (15-8
252COT0023-24)9
50. The email chain confirms that the above Tucson Officials conferred,10
came to an agreement, and decided to issue the May 1, 2012 Permit for11
the exclusive use of Armory Park, knowing such practice was a viola-12
tion of the law set forth in Gathright.13
51. On April 27, 2012 Defendant Grey sent an “Exclusive Use Permit”14
letter to Defendant Medina, addressed to “May 1st Coalition PO Box15
1286.” (15-252COT0021 to 22)16
52.
Sometime prior to May 1, 2012 Defendant Tucson City Employees17
Ron Odell, Diane Salyes, Paul Patterson, Eric Hickman, Anne18
Beecroft, Anabel Teran, Bellamy Mong, Brian Cobb, Clas Leighton,19
Marco Alcantara, Ernesto Valarde, Andy Vera and Jose Gomez met20
with Pima County Government employees Melissa Loeschen, Nina21
Armstrong, and Jim Faas, and Defendant Tucson May 1st Coalition for22
Worker and Immigrant Rights members Paul Teitelbaum, Jon Miles,23
and Pancho Medina and formulated a plan to deny Plaintiff entry into24
Armory Park on May 1, 2012. (15-252COT0026)25
53.
Sometime in the early morning of May 1, 2012 just prior to the Rally26
in Armory Park, Defendants McCarthy, Sayre and Lopez attended a27
“command briefing” with other high ranking Tucson Police and City28
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Officials, whose identities are unknown, and formulated a plan to vio-1
late Plaintiff’s First Amendment rights later that day in Armory Park. 2
54. Thus; on May 1, 2012, Defendants Mc McCarthy, Sayre and Lopez,3
acting in accordance with the plans described in paragraph 53, (1) po-4
sitioned themselves at the entrance to Armory Park, (2) were already5
in place, and (3) did block Plaintiff when he attempted to enter to speak6
on matters of community concern.7
55. On December 11, 2012 the Arizona Attorney General issued a docu-8
ment titled “Attorney General Criminal Division Border Crimes En-9
forcement Section Confidential Work Product,” (aka “The Rio Nuevo10
Declination of Prosecution Letter”) which documents an provides an-11
other example of the modus operandi or “custom and practice” of Tuc-12
son City Defendants to “lose” or to otherwise destroy documents to13
protect themselves from criminal and civil liability. (Exhibit Three)14
56. On May 15, 2014 in Cruz vs. Miranda, C20132985, a case where De-15
fendant City of Tucson followed the modus operandi or “custom and16
practice” of Tucson City Officials to “lose,” destroy or otherwise fail17
to provide public documents revealing financial improprieties and the18
inner workings of Tucson City government, Pima County Superior19
Court Judge Christopher Staring found that “(c)lear and convincing ev-20
idence exists that COT engaged in ‘misconduct’ sufficient to warrant21
relief pursuant to Rule 60(c)(3).” 22
57. On July 31, 2014 Defendant Richard Miranda, facing a growing scan-23
dal and public outrage for his participation in an illegal pension spiking24
scam, retired as Tucson City Manager.25
58.
Sometime early in 2016, in a further exercise of regional cronyism,26
Defendant Miranda was hired as Director of Security for Tucson Re-27
gional Wastewater Reclamation.28
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59. On August 23, 2016 Defendant Tucson employee and Custodian of1
Records Lisa Cortese signed and submitted an affidavit declaring im-2
portant documents Plaintiff had sought to prove his “custom-and-prac-3
tice Monell claims against Defendant City of Tucson, had been re-4
moved or had otherwise “disappeared ” from government files and5
could no longer be found, providing yet another example of the modus6
operandi or custom-and- practice of Tucson City Defendants to “lose”7
or to otherwise destroy documents, including computer files, to protect8
themselves from criminal and civil liability.9
60. On August 25, 2016 Defendant Tucson employee and Custodian of10
Records Kimberly Francis signed and submitted an affidavit declaring11
important documents Plaintiff had sought to prove his “custom-and-12
practice Monell claims against Defendant City of Tucson, had been13
removed or had otherwise “disappeared” from government files and14
could no longer be found, providing yet another example of the modus15
operandi or custom-and-practice of Tucson City Defendants to “lose”16
or to otherwise destroy documents, including computer files, to protect17
themselves from criminal and civil liability. (Doc 70-1 and Exhibit18
Three)19
VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH20
61. Plaintiff repeats and re-alleges each and every allegation contained in21
paragraphs 1-60 as though fully set forth herein.22
62. The Arizona Supreme Court has stated:23
“Any question regarding infringement of First Amendment24
rights is of the utmost gravity and importance, for it goes to the25
heart of the natural rights of citizens to impart and acquire26information which is necessary for the wellbeing of a free27society. Since an informed public is the most important of all28restraints upon misgovernment, (the government may not take)29any…action which might prevent free and general discussion30
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Plaintiff’s rights in retaliation for Plaintiff exposing Defendant City 1
of Tucson engagement in Open Border Policy, and Cronyism.2
67. The actions taken by Miranda, Rankin, Judge, Gray, Ochoa, and other3
Tucson City policy makers whose identities are unknown, were the4
proximate cause of harm done to Plaintiff. 5
VIII. COUNT THREE: CONSPIRACY6
68. Plaintiff repeats and re-alleges each and every allegation contained in7
paragraphs 1-67 as though fully set forth herein.8
69. Plaintiff alleges that the following Defendants came to an agreement9
and acted in concert for the purpose of denying Plaintiff his rights un-10
der the First Amendment as set forth below:11
A. Defendants Miranda, Rankin, Judge, Gray, Ochoa, and other Tucson12
City Officials whose identities are unknown, when they formulated a13
plan to deny Plaintiff exercise of his First Amendment rights on May14
1, 2012. 15
B.
Defendant Sayre and other Tucson City Officials whose identities are16
unknown, when they met with members of Defendant Tucson May17
1st Coalition for Worker and Immigrant Rights, whose identities are18
unknown, and formulated a plan to deny Plaintiff entry into Armory19
Park on May 1, 2012. 20
C. Defendants McCarthy, Sayre, Lopez, and other high ranking Tucson21
Police Officials whose identities are unknown, when they met in the22
early morning of May 1, 2012 and formulated a plan to unlawfully23
deny Plaintiff entry into Armory Park later that day.24
70. The actions taken by Defendants Miranda, Rankin, Judge, Gray,25
Ochoa, McCarthy, Sayre, Lopez, Tucson May 1st Coalition for Worker26
and Immigrant Rights, Tucson City, and others whose identities are27
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unknown who advised and assisted named Defendants, were the prox-1
imate cause of harm done to Plaintiff.2
X. CONCLUSION3
To borrow a phrase from U.S. Supreme Court Justice Black, this suit “tests4
the ability of the United States to keep the promises its Constitution makes to5
the people of the Nation.” Gregory v City of Chicago, 89 S.Ct. 946, 948 .6
For nearly a century the Federal Courts have energetically protected the7
expressive rights of those who exist on the fringes of American society — 8
Communists, Nazis, Klansmen and Hells Angels — with the following rationale:9
“If we don’t protect the rights of the minority among us, someday the govern-10
ment will step in and deny these same rights to the rest of us.”11
In Whitney v People of the State of California, 47 S.Ct. 648, 649 the Su-12
preme Court wrote eloquently on the issue of free speech:13
“Those who won our independence by revolution were not cowards.14They did not fear political change. They did not exalt order at the cost15of liberty. They believed liberty to be the secret of happiness and16courage to be the secret of liberty. They believed that freedom to think17as you will and to speak as you think are means indispensable to the18discovery and spread of political truth; that without free speech and19assembly discussion would be futile;…that the greatest menace to20
freedom is an inert people; that public discussion is a political duty;21and that this should be a fundamental principle of the American22government.” 23
24
“They recognized…that repression breeds hate; that hate menaces25
stable government…They eschewed silence coerced by law— the26argument of force in its worst form. Recognizing the occasional27tyrannies of governing majorities, they amended the Constitution so28that free speech and assembly should be guaranteed.” 29
30
Moreover; “(a)s Chief Justice Hughes wrote in De Jonge v Oregon, 299 US31
353, 365, 260, it is only through free debate and free exchange of ideas that32
government remains responsive to the will of the people and peaceful change is33
effected. The right to speak freely and to promote diversity of ideas and34
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programs is therefore one of the chief distinctions that sets us apart from1
totalitarian regimes.” Terminiello v City of Chicago, 337 U.S. 1 (1949).2
Plaintiff respectfully submits: the long-feared day of totalitarianism and3
blatant disregard for the right of free political expression has finally come to4
Tucson Arizona.5
Defendant Tucson Officials’ modus operandi or long term custom, practice6
and employment of coercive acts to (1) silence the voice of political and other7
dissent, (2) protect a long standing enterprise to aid and abet and otherwise8
encourage the unlawful entry and exploitation of Mexico’s poor, (3) hide from9
public view Defendants City of Tucson policy of appointing public officials on10
the basis of cronyism and not on the basis of their fitness to hold public office,11
and (4) to shield public officials from civil and criminal liability by “losing” or12
otherwise destroying public documents is disgraceful, criminal, the antithesis of13
the public interest in government transparency & the rule of law, and repugnant14
to the very concept of government of, by and for the people.15
Our Founding Fathers established the Courts for perilous times such as16
these. During the great Civil Rights era, the Courts protected the political rights17
of the American people so they could organize, assemble and accomplish what18
in effect was a peaceful revolution; Plaintiff earnestly prays this Court will do19
no less now.20
XI. PRAYER FOR RELIEF21
WHEREFORE, Plaintiff prays that this Court:22
A) Declare Tucson City Code Section 21-4(a)(b)(6) and Tucson City Code23
Section 21-3(7)(4), to be in violation of rights guaranteed by the First24
Amendment to the United States Constitution;25
B) Order Defendant Tucson City to provide all employees with mandatory26
training regarding all aspects of their duty to protect the constitutional27
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rights of the people, independent from directions given by their superi-1
ors;2
C) Order Chief of Police Chris Magnus to provide all Tucson Police De-3
partment employees with mandatory training regarding all aspects of4
their duty to protect the constitutional rights of the people, independent5
from directions given by their superiors;6
D) Award Plaintiff compensatory damages in an amount deemed fair, just7
and reasonable, for (1) the harm and violation of rights Plaintiff has suf-8
fered as set forth above, (2) the emotional distress Plaintiff has suffered9
by his loss of rights and reputation, (3) Plaintiff’s loss of income as a10
result of having to defend himself in three criminal prosecutions, and11
(4) the negligent and intentional deprivation of Plaintiff’s civil rights12
under the First, Fourth, Fifth, and Fourteenth Amendments to the United13
States Constitution, 42 U.S.C. §1983, and 42 U.S.C. §1985;14
E) Award Plaintiff exemplary damages in the amount sufficient to deter15
Defendants and other government officials from abusing the preroga-16
tives of their power and acting in a similar malicious and unlawful man-17
ner;18
F) Award Plaintiff reasonable attorney’s fees and costs pursuant to 4219
U.S.C. §1988, and20
G)
Grant such additional relief as the Court deems just and proper.21
22
RESPECTFULLY SUBMITTED this 17th Day of October 201623
BY:2425
/Roy Warden/26
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EXHIBIT ONE
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EXHIBIT TWO
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EXHIBIT THREE
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