WARDEN v WALKUP, KOZACHIK, MIRANDA, RANKIN, RIOJAS, THE CITY OF TUCSON, ETC FIRST AMENDED COMPLAINT

7/27/2019 WARDEN v WALKUP, KOZACHIK, MIRANDA, RANKIN, RIOJAS, THE CITY OF TUCSON, ETC FIRST AMENDED COMPLAI

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Roy Warden, Publisher1

Arizona Common Sense2

3700 S. Calle Polar3

Tucson Arizona 857304

[email protected]

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UNITED STATES DISTRICT COURT7

DISTRICT OF ARIZONA8

ROY WARDEN,

Plaintiff, In Pro Se

Vs

BOB WALKUP, individually and inhis official capacity as Tucson CityMayor; STEVE KOZACHIK, indivi-dually and in his official capacity asTucson City Councilman; RICHARDMIRANDA, individually and in hisofficial capacity as Tucson City Man-ager; MIKE RANKIN, individuallyand in his official capacity as TucsonCity Attorney; ANTONIO RIOJAS,individually and in his official capa-city as Tucson City Court Judge;

ROBERTO VILLASENOR, indivi-dually and in his official capacity asChief of the Tucson Police Depart-ment; KATHLEEN ROBINSON, in-dividually and in her official capa-city as Assistant Chief of Police; TPDOfficer Couch, individually and inhis official capacity as Officer of theTucson City Police Department;THE CITY OF TUCSON; and DOES1-100,

Defendants.

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Case No. CIV 13-283 TUC DCB

FIRST AMENDED COMPLAINTFOR INJUNCTIVE AND DECLAR-

ATORY RELIEF, AND COMPEN-SATORY AND EXEMPLARY DAM-

AGES FOR NEGLIGENT AND IN-TENTIONAL VIOLATIONS OF TI-TLE 42 U.S.C. 1983, AND TITLE42 U.S.C. 1985

9

COMES NOW the Plaintiff Roy Warden, with his Complaint10

for Injunctive and Declaratory Relief, and Damages, against the11


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Defendants, named and unnamed above, and as grounds therefore1

alleges:2

I. INTRODUCTION3

1. This is an action pursuant to the Civil Rights Act of 1871, 424U.S.C. 1983, 42 U.S.C. 1985 and 28 U.S.C. 1343, seeking5

redress for the negligent and intentional deprivation of the6

Plaintiffs constitutional rights. Venue is proper in the 9th7

District of Arizona, as all of the acts complained of occurred in8

Pima County Arizona.9

II. JURISDICTION10

2. This Court has jurisdiction over this action under 28 U.S.C. 111343(a)(3) for negligent and intentional violations of constitu-12

tional rights as provided by 42 U.S.C. 1983 and 42 U.S.C.13

1985. The Plaintiff seeks injunctive relief, declaratory relief14

and monetary damagesincluding exemplary damagesas15

well as attorney fees and costs pursuant to 42 U.S.C. 1988.16

3. The Plaintiff seeks redress for violation of the Plaintiffs17rights to speech, press, petition and assembly under the First18

Amendment of the Constitution of the United States, the19

Plaintiffs right to be free of illegal seizures under the Fourth20

Amendment of the Constitution of the United States, the21

Plaintiffs right to be free from unlawful seizure, malicious22

prosecution and imprisonment as provided for by the Fourth23

and Fourteenth Amendments of the Constitution of the24

United States, and the Plaintiffs right to due process of law25

as guaranteed by the Fourth and Fourteenth Amendments of26

the Constitution of the United States.27


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III. REQUEST FOR JURY TRIAL1

4. Pursuant to Rule 38 of the Federal Rules of Civil Procedure,2Plaintiff requests a trial by jury.3

IV. IDENTITY OF THE PARTIES4

5. Plaintiff Roy Warden, community activist, writer and publish-5er of political newsletters Common Sense II, CS II Press,6

Arizona Common Sense and Director of the Tucson Weekly7

Public Forum, is a citizen of the United States and was a8

resident of Pima County Arizona at all times relevant to this9

complaint.10

6. Defendant Bob Walkup was employed by the City of Tucson,11and acted individually and in his official capacity as Tucson12

City Mayor, under color of state law, regulations, customs and13

policies at all times relevant herein. Defendant Walkup is14

sued in his individual and official capacities.15

7. Defendant Steve Kozachik is employed by the City of Tucson,16and acted individually and in his official capacity as Council-17

man for the City of Tucson, under color of state law, regula-18

tions, customs and policies at all times relevant herein.19

Defendant Kozachik is sued in his individual and official20

capacities.21

8. Defendant Richard Miranda is employed by the City of22Tucson, and acted individually and in his official capacity as23

City Manager of the City of Tucson, under color of state law,24

regulations, customs and policies at all times relevant herein.25

Defendant Miranda is sued in his individual and official26

capacities.27


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9. Defendant Mike Rankin is employed by the City of Tucson,1and acted individually and in his official capacity as City2

Attorney for the City of Tucson, under color of state law,3


Defendant Rankin is sued in his individual and official5

capacities.6

10. Defendant Antonio Riojas is employed by the City of Tucson,7and acted individually and in his official capacity as Tucson8

Municipal Court Judge, under color of state law, regulations,9

customs and policies at all times relevant herein. Defendant10

Riojas is sued in his individual and official capacities.11

11. Defendant Roberto Villasenor is employed by the City of12Tucson, and acted individually and in his official capacity as13

Chief of the Tucson Police Department, under color of state14

law, regulations, customs and policies at all times relevant15

herein. Defendant Villasenor is sued in his individual and16

official capacities.17

12. Defendant Kathleen Robinson is employed by the City of18Tucson, and acted individually and in her official capacity as19

Assistant Chief of the Tucson Police Department, under color20

of state law, regulations, customs and policies at all times21

relevant herein. Defendant Robinson is sued in her individual22

and official capacities.23

13. Defendant Officer Couch is employed by the City of Tucson,24and acted individually and in his official capacity as Tucson25

City Police Officer, under color of state law, regulations,26


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customs and policies at all times relevant herein. Defendant1

Couch is sued in his individual and official capacities.2

14. Defendant City of Tucson, a municipal corporation, is a unit3of local government organized under the laws of the State of4

Arizona. Municipalities may be sued for constitutional5

deprivations visited pursuant to governmental custom even6

though such a custom has not received formal approval7

through the bodys official decision-making channels. Monell8

v. Department of Social Services, 436 U.S. 658, 690, 6919

(1978)10

15. Defendant Does 1-100 are (1) individuals or members of var-11ious political organizations who acted individually or as12

agents of the state under the direction or control of named or13

unnamed Defendants, and (2) Tucson City employees, in-14

cluding Council-persons, their staffs, and employees of the15

Tucson Police Department, who acted individually, and at the16

direction of their superiors, within their enforcement, admini-17

strative and executive capacities, under color of state law,18


Does 1-100 are sued in their individual and official capacities.20

V. FACTS AND ALLEGATIONS21

16. Plaintiff is an unpaid political activist working on behalf of22the people of Pima County, the publisher of Common Sense II,23

CSII Press, Arizona Common Sense and the Director of the24

Tucson Weekly Public Forum.25

17. Plaintiff has spent the last 7 years investigating allegations of26malfeasance within the legal and political institutions of Pima27


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County, including the malfeasance of Tucson City Officials1

who have used their public offices (1) to aid and abet, entice2

and invite, and otherwise to encourage the unlawful entry of3

impoverished Mexican citizens to supply local contractors4

with low cost labor, (2) to advance the policy of the Mexican5

Government to exclude their poor so they may come to6

America to earn and send home remittances, and (3) to expose7

the current activities of elected Tucson City Officials who now8

employ Tucson City Administrators, and staff, on the basis of9

cronyism and not on the basis of their fitness to hold public10

office.11

18. On May 01, 2011 Defendant Assistant Tucson Police Chief12Kathleen Robinson, acting pursuant to directions given by her13

superiors, unlawfully prevented Plaintiff from entering14

Armory Park Tucson Arizona for the purposes of speaking out15

on matters of public concern.16

19. On or about September 07, 2011, during the Call to the17Audience portion of the Tucson Mayor and Council Meeting,18

Plaintiff addressed Tucson Public Officials regarding a 200619

Federal Jury Verdict in favor of Plaintiffs Gilmartin and20

Harris (CV 00-352- TUC FRZ) which found Defendant Mir-21

anda and other Tucson City Officials had conspired to engage22

in First Amendment retaliatory acts, and awarded Plaintiffs23

2.9 million dollars in damages.24

20. Additionally; on or about September 07, 2011 Petitioner fur-25ther informed Tucson Public Officials that Tucson City Attor-26

ney Mike Rankin had unlawfully used approximately seven27


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hundred thousand dollars of public funds to satisfy a portion1

of the punitive damage judgment against Defendant Richard2

Miranda and other Tucson City Officials.3

21. Subsequent to Plaintiffs address, Defendant Kozachik issued4stern words intended (1) to retaliate for Plaintiffs exposure of5

Tucson City Open Border Policy and the unlawful acts com-6

mitted by Defendants Miranda and Rankin, (2) to humiliate7

and embarrass Plaintiff and hold him up to public ridicule,8

and (3) to deter Plaintiff and others from the free exercise of9

rights secured by the First Amendment.10

22. Sometime between September 07, 2011 and September 13,112011, Defendants Kozachik and Walkup communicated with12

Defendants Rankin, Riojas and Miranda, and others whose13

identities are unknown, and came to an agreement to un-14

lawfully1 arrest Plaintiff should Plaintiff continue to address15

the Mayor and Council regarding the issue of cronyism, the16

Gilmartin trial and damage award, and Defendant Rankins17

unlawful use of $700,000 of public money to satisfy a portion18

of the Gilmartin Judgment.19

23. Consequently; on September 13, 2011, during Plaintiffs pub-20lic address to the Mayor and Council, when Plaintiff began to21

recite the requisite standard for punitive damage awards as22

they applied to Defendant Miranda in the 2006 Gilmartin23

case, Defendant Walkup, acting on advice and directions pro-24

vided him by Defendants Kozachik, Rankin, Riojas, Miranda25

1 All Defendants knew that the policy Tucson City Officials employed

to regulate speech before the Mayor and Council was unconstitutional.


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and others whose identities are presently unknown, directed1

Defendant Officer Couch and another unidentified officer to2

arrest Plaintiff.3

24. Immediately thereafter Defendant Couch and the unidenti-4fied officer, acting without probable cause to believe an of-5

fense had been committed, arrested Plaintiff, took Plaintiff6

into custody, and removed him from the Mayor and Council7

Chambers.8

25. Outside Defendant Officer Couch confronted Plaintiff and told9him: Get out of here! Youre just a troublemaker!10

26. Subsequently; Councilperson Karen Uhlich characterized11Plaintiffs comments as bullying and threatening, and De-12

fendant Kozachik referred to Plaintiffs comments as offen-13

sive and racist attacks.14

VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH15

27. Plaintiff repeats and re-alleges each and every allegation16contained in paragraphs 1-26 as though fully set forth here-17

in.18

28. The Arizona Supreme Court has stated:19Any question regarding infringement of First Amend-20

ment rights is of the utmost gravity and importance, for21

it goes to the heart of the natural rights of citizens to22

impart and acquire information which is necessary for23

the well being of a free society. Since an informed24

public is the most important of all restraints upon mis-25

government, (the government may not take) any26

action which might prevent free and general discussion27

of public matters as seems essential to prepare the28

people for an intelligent exercise of their rights as29

citizens. New Times Inc. v Arizona Board of Regents,30

110 Ariz. 367, 519 P.2d 169 (1974)31


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29. Plaintiff alleges that the following Defendants violated Plain-1tiffs right to freedom of speech, as set forth below:2

A.Defendant Robinson on May 01, 2011 when, acting under3directions given her by Defendant Villasenor, she preven-4

ted Plaintiff from entering Armory Park, Tucson Arizona,5

to speak on matters of public concern;6

B.Defendant Villasenor, when he directed Defendant Robin-7son to block Plaintiffs entry into Armory Park on May 01,8

2011, even though he knew such conduct was a violation of9

Plaintiffs rights as set forth by the Ninth Circuit Court of10

Appeals in Garthright v City of Portland, 439 F.3d 573;11

C.Defendant Kozachik on or about September 07, 2013 when12he spoke stern words to deter Plaintiff from future address13

to the Mayor ad Council;14

D.Defendants Walkup, Kozachik, Miranda, Rankin, Riojas,15and others who have not yet been indentified, when they16

agreed to have Plaintiff arrested for future address to the17

Mayor and Council under the authority of a policy regula-18

ting speech before the Mayor and Council they knew to be19

unconstitutional;20

E.Defendant Walkup on or about September 13, 2011 when21he directed Defendant Couch and another unidentified22

TPD Officer to arrest Plaintiff during Plaintiffs address to23

the Mayor and Council;24

F. Defendant Couch and the unidentified Officer on or about25September 13, 2011 when, without probable cause, they26


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arrested Plaintiff while Plaintiff spoke publically before1

the Tucson Mayor and Council;2

G.Defendants Tucson City and Villasenor for failure to train3and otherwise instruct TPD Officers not to interfere with4

lawful public conduct without probable cause to believe an5

offense had been committed;6

H.Defendant Kozachik on or about September 13, 2013 when7he referred to Plaintiffs comments as offensive and racist8

attacks.9

30. The actions taken by Defendants Tucson City, Robinson, Mir-10anda, Walkup, Kozachik, Rankin, Riojas, Couch and Villa-11

senor, and others who have not yet been indentified, were the12

proximate cause of harm done to Plaintiff.13

VII. COUNT TWO: FIRST AMENDMENT RETALIATION14


in.17

32. Plaintiff alleges that the following Defendants engaged in18specific acts of First Amendment retaliation as set forth19

below:20

I. Defendant Robinson on May 01, 2011 when she prevented21Plaintiff from entering Armory Park to speak on matters of22

public concern;23

J. Defendant Kozachik on or about September 07, 2013 when24he spoke stern words to deter Plaintiff from future address25

to the Mayor ad Council;26


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K.Defendants Walkup, Kozachik, Miranda, Rankin, Riojas,1and others who have not yet been indentified, when they2




unconstitutional;6

L. Defendant Walkup on or about September 13, 2011 when7he directed Defendant Couch and another unidentified8

TPD Officer to arrest Plaintiff during Plaintiffs address to9

the Mayor and Council;10

M.Defendant Kozachik on or about September 13, 2013 when11he referred to Plaintiffs comments as offensive and racist12

attacks.13

33. The actions taken by Defendants Walkup, Kozachik, Miran-14da, Rankin, Riojas, and others who have not yet been indenti-15

fied, were the proximate cause of harm done to Plaintiff.16

VIII. COUNT THREE: FALSE ARREST17


in.20

35. Plaintiff alleges the following Defendants committed acts of21false arrest:22

N Defendant Walkup on or about September 13, 2011 when23he directed Defendant Couch and the unidentified officer24

to arrest Plaintiff as Plaintiff lawfully addressed the25

Mayor and Council during the Call to the Audience por-26

tion of the Mayor and Council Meeting;27


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O Defendant Couch and the unidentified officer on or about1September 13, 2011 when, without probable cause to be-2

lieve an offense had occurred, they interrupted Plaintiffs3

lawful address before the Mayor and Council, took him4

into custody and removed him from the meeting.5

36. The actions taken by Defendants Walkup, Couch and the un-6identified officer were the proximate cause of harm done to7

Plaintiff.8

IX. COUNT FOUR: CONSPIRACY9


in.12

38. Plaintiff alleges that the following Defendants met, came to13an agreement and acted in concert for the purpose of denying14

Plaintiff his rights under the First Amendment as set forth15

below:16

P. Defendants Walkup, Kozachik, Miranda, Rankin, Riojas,17and others who have not yet been indentified, when they18




unconstitutional.22



26

27


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X.COUNT FIVE: INTENTIONAL INFLICTION OF1

EMOTIONAL DISTRESS2

3


in.6

41. Plaintiff alleges that the following Defendants engaged in7unlawful conduct for the purpose of denying Plaintiff his8

right to free speech, knowing that such denial of rights would9

(1) diminish Plaintiffs stature within the community, (2) in-10

hibit Plaintiffs opportunity for employment as an Arizona11

Certified Legal Document Preparer, (3) cause dissention12

within Plaintiffs household, and (4) cause Plaintiff to suffer13

significant emotional harm, as set forth below:14

Q Defendant Kozachik when he issued stern words on or15about September 07, 2011, and again, on or about Septem-16

ber 13, 2011 when he referred to Plaintiffs public com-17

mentary as offensive and racist attacks;18

R Defendants Walkup, Kozachik, Miranda, Rankin, Riojas,19and others who have not yet been indentified, when they20




unconstitutional;24

S Defendant Walkup when he instructed Defendant Couch25and the unidentified officer to arrest Plaintiff on or about26

September 13, 2011.27


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XI. CONCLUSION4

In America on Trial Alan Dershowitz, in analyzing Walker v5

Birmingham, 87 S.Ct. 1824, explained that in the sixties, the6

entire system of justice in the southern states was committed in7

theory to free speech and equal rights for all, but in practice used8

the police and the courts to silence the voice of political9

opponents. (emphasis added)10

Petitioner, who has endured 13 arrests and six separate11

criminal prosecutions arising out of legitimate street protest and12

his excoriation of public officials engaged in the promulgation of13

Open Border Policy, and Cronyism, earnestly believes the same14

conditions of oppression exist in Arizona today.15

For nearly a century the Federal Courts have energetically16

protected the expressive rights of those who exist on the fringes of17

American societyCommunists, Nazis, Klansmen and Hells Angels18

with the following rationale: If we dont protect the rights of the19

minority among us, someday the government will step in and deny20

these rights to the rest of us.21

In Whitney v People of the State of California, 47 S.Ct. 648,22

649 the Supreme Court wrote eloquently on the issue of free speech:23

Those who won our independence by revolution were not24

cowards. They did not fear political change. They did not25

exalt order at the cost of liberty. They believed liberty to26

be the secret of happiness and courage to be the secret of27

liberty. They believed that freedom to think as you will28

and to speak as you think are means indispensable to the29


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discovery and spread of political truth; that without free1

speech and assembly discussion would be futile;that2

the greatest menace to freedom is an inert people; that3

public discussion is a political duty; and that this should4

be a fundamental principle of the American government.5

6

They recognizedthat repression breeds hate; that hate7

menaces stable governmentThey eschewed silence8

coerced by lawthe argument of force in its worst form.9

Recognizing the occasional tyrannies of governing10

majorities, they amended the Constitution so that free11

speech and assembly should be guaranteed.12

Moreover;13

(A)s Chief Justice Hughes wrote in De Jonge v Oregon,14299 US 353, 365, 260, it is only through free debate and15

free exchange of ideas that government remains re-16

sponsive to the will of the people and peaceful change is17

effected. The right to speak freely and to promote18

diversity of ideas and programs is therefore one of the19

chief distinctions that sets us apart from totalitarian20

regimes. Terminiello v City of Chicago, 337 U.S. 1 (1949).21

22

The long-feared day of totalitarianism and blatant disregard23

for the right of free political expression has finally come to Tucson24

Arizona.25

Defendants long term custom, practice and usage of the26

Tucson Police Department to silence the voice of political dissent,27

whether that dissent takes place in the streets of Tucson or before28

the Mayor and Council, and to protect local government officials29

from public criticism, is taken directly from Hitlers play-book.30

Our Founding Fathers established the Courts for perilous and31

revolutionary times such as these. During the great Civil Rights32

era, the Courts protected the political rights of the American people33

so they could organize, assemble and accomplish what in effect was34


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a peaceful revolution; Plaintiff earnestly prays this Court will do no1

less now.2

XII. PRAYER3

WHEREFORE, Plaintiff prays that this Court:4

A. Upon Application, issue a preliminary injunction enjoin-5ing the City of Tucson from unlawfully using the provi-6

sions of an exclusive use permit to deny Plaintiff, and7

others, from entering public property for the purposes of8

exercising their rights under the First Amendment;9

B. Declare the policy regulating speech before the Mayor and10Council used to arrest and remove Plaintiff from the meet-11

ing of the Mayor and Council on September 13, 2011 to be12

unconstitutional;13

C. Upon Application, issue a preliminary injunction enjoin-14ing the City of Tucson from unlawfully using the provi-15

sions of their new policy regulating speech before the16

Mayor and Council;17

D. Direct the Tucson Police Department to properly instruct18their officers on the requirements of probable cause;19

E. Provide Plaintiff with just compensation for Plaintiffs20seizure and the violation of his rights;21

F. Access punitive damages against Defendants in their indi-22vidual capacities to deter them and other public officials23

from engaging in similar misconduct; and24

G. Provide such additional relief the Court deems proper.25//26

//27

//28


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RESPECTFULLY SUBMITTED, this 22nd day of August, 2013.1

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BY: ________________________________3

Roy Warden, Plaintiff4

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State of Arizona11

County of _____________12

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On this ____day of ____________________, 2013, before14me the undersigned Notary Public, personally appeared Roy15

Warden, known to me to be the individual who executed the16

foregoing instrument and acknowledged the same to be his17

free act and deed.18

19

My Commission Expires:_______________ _________________20

Notary21

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Documents

WARDEN v WALKUP, KOZACHIK, MIRANDA, RANKIN, RIOJAS, THE CITY OF TUCSON, ETC FIRST AMENDED COMPLAINT