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FIRST FEDERAL LAWSUIT FOR WRONGFUL IMMIGRATION POLICIES

First Federal Lawsuit Holding Municipality Liable for Immigration Policies

May 4, 2007
By Roy Warden
Editor: Common Sense II
Director: Tucson Weekly Public Forum

I am providing this letter as a Notice of Claim pursuant to the Federal Tort Claims Act and A.R.S. 12-821.01 in response to the negligent, malicious and criminal actions that you and the other Tucson City employees and officials noted above, while acting in your individual and official capacities, have committed against me, including but not limited to assault, conspiracy, defamation, false arrest, malicious prosecution and intentional deprivations of my civil rights under USC 42 § 1983 and USC 18 §241-244.

This Notice of Claim is intended to amend and supplement the Notice of Claim I submitted in August, 2006.

FACTS AND ALLEGATIONS

1. Plaintiff is an unpaid political activist working on behalf of the people of Pima County, the publisher of Common Sense II and CSII Press, and the Director of the Tucson Weekly Public Forum.

2. Plaintiff has spent the last 4 years investigating allegations of malfeasance within the legal and political institutions of Pima County, and specifically the malfeasance of Pima County and Tucson City Officials, including Superior and Municipal Court Judges, who have used their public offices (1) to protect the financial interests of local contractors etc., who now depend upon a continual flow of low cost Alien Illegal Mexican labor, and (2) to protect Tucson City and Pima County Officials who use their public offices to advance a left-wing political agenda, which includes but is not limited to the deliberate violation of federal immigration law, the flooding of the American Southwest with millions of Alien Illegal Mexicans, and the creation of a new empire called “Aztlan.”

3. Additionally, Plaintiff is the Plaintiff in Warden v Hoffman, Fell, Leonardo, etc., Case No. CV 05-020 TUC JCG, a Title 42 § 1983 action now before the Court, alleging Pima County employees and Pima County Superior Court Judges have committed a series of malicious, criminal and tortuous acts in violation of Plaintiff’s right to engage in political communication within the public areas, and on the front steps, of the Pima County Courthouse.

4. On April 10, 2006 Plaintiff took part in a lawful political demonstration protest-ing 15,000 left-wing 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.”

5. The theme of the Open Border Activists, as set forth on Congressman Raul Grijalva’s website, was “Hoy Marchamos! Manana Votamos!”[1]

6. Plaintiff submits the Tucson Police Department After Action Report, dated May 10, 2006, accurately documents numerous acts of violence committed by Open Border Activists, including felony aggravated assaults on TPD Officers [2], in Armory Park, on April 10, 2006.

7. Sometime on or about April 11, 2006 Defendants met with Pima County Legal Defender Isabel Garcia, and other prominent Open Border Activists, for the purposes of depriving Plaintiff of his constitutional rights.

8. On April 11, 2006, as a direct consequence of the meeting of Defendants as set forth in paragraph 7, Plaintiff was arrested for events that occurred during the rally the previous day, charged with Reckless Burning [3], Criminal Damage, and Assault, denied a trial by jury, and tried before the bench of Tucson Municipal Court Judge Eugene Hays. On November 01, 2006, Petitioner was acquitted.

9. Several days after Plaintiff’s arrest on April 11, 2006, TPD assistant Chief Robinson came to his residence, promised TPD protection for Plaintiff’s future rallies and political events 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!”

10. On or about May 05, 2006, Tucson Parks and Recreation Department employee Marco Alcantara submitted a fraudulent work estimate regarding repairs to the Armory Park Shuffleboard Court, to Northwest District Supervisor Peg Weber, who, knowing it was fraudulent, gave it to Tucson City Prosecutor Alan Merritt for Plaintiff’s prosecution in Case One, as set forth in paragraph 8.

11. On May 06, 2006, while engaged in lawful political activities in Kennedy Park, Tucson Arizona, Plaintiff was assaulted by Wade Colwell, a Stanford graduate, and other local Open Border Activists, in full view of Tucson Police Officers and KVOA News reporter Lorraine Rivera. That night, via 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.

12. During the assault on May 06, 2006 Wade Colwell asserted his prior communi-cation with TPD Assistant Police Chief Kathleen Robinson, whom Colwell stated, counseled him and others and approved of the assault: “We spoke with Kathy (Robinson) for 2 hours. She told us what we could do!”

13. Plaintiff now possesses a DVD video recording revealing Assistant TPD Police Chief Robinson and other uniformed police officers aiding, abetting, and con-gratulating Colwell, and other activists, for the success of their assault in Kennedy Park on May 06, 2006, which did prevent Plaintiff and his followers from completing their speeches and committing the protected symbolic act of Burning the Mexican Flag [4].

14. On June 03, 2006 Plaintiff participated in a political demonstration in front of the Mexican Consulate, located on South Stone Street, Tucson Arizona. At this and all future events, Plaintiff erected a simple rope barrier to maintain a perimeter between speakers and counter-demonstrators, and to protect public safety [5].

15. During the June 03, 2006 protest in front of the Mexican Consulate, Plaintiff was compelled to take minor defensive measures to promote public safety and to repel an assault committed by Arturo Rodriquez, a “Chicano” student activist and self proclaimed “proud member of MEChA [6]” who pushed across Plaintiff’s rope barrier and advanced menacingly towards the public speaker.

16. On June 06, 2006 Plaintiff was arrested during a demonstration outside the Tucson City Council and charged with Assault, Disturbing the Peace and Making Threats and Intimidation, all misdemeanor charges arising out of Plaintiff’s po-litical activities outside the Mexican Consulate on June 03, 2006. Case Two was eventually assigned (again) to Tucson Municipal Court Judge Eugene Hays. Again, Plaintiff was denied trial by jury.

17. On December 22, 2006 Plaintiff was legally restrained from giving additional testimony and convicted by Judge Hays, in absentia [7], for assault, and two counts of making threats and intimidation. Subsequently, Judge Hays sentenced Plaintiff to three years probation, prohibited Plaintiff from going within 500 feet of any public demonstration (even his own) and suspended Plaintiff right to carry a side arm. The conviction and sentence are now under appeal.

18. On August 17, 2006, Plaintiff and a group of supporters were prevented from engaging in public speech using a public address system from a public sidewalk located directly across the street from the entrance to the Armory Park Community Center, where a group of Open Border Activists, led by Isabel Garcia and Congressman (CDR 7) Raul Grijalva, were conducting what had been advertised as a “public meeting to address community concerns on border issues.”

19. Defendant Robinson demanded Plaintiff and supporters move their demonstra-tion ½ block away to another location; when Plaintiff asked Defendant Robinson her authority for moving the group’s location and denying his use of a bullhorn, she provided none, other than to say, “If you don’t stop you will be arrested.”

20. On March 06, 2007, during the customary “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 to the Mayor and City Council for their support of Open Border Policy, the violation of federal immi-gration law, and the importation of millions of Mexican Illegal Aliens into the United States.

21. On March 12, 2007 between 11:45 am. and 1:15 pm [8], 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 began distributing the “Isabel Garcia” edition of Common Sense II to all those in attendance.

22. Plaintiff literature was torn up by “Chicano” students. Plaintiff was sworn at, spat upon and threatened with death by these same “Chicano” students, in spite of Plaintiff’s invitation to enter the rope barrier, use the public address system and speak, all in full view Tucson Police Officers [9] who stood idly by and did nothing to stop the assaults or to maintain public order.

23. On March 13, 2006 Plaintiff, via the “Call to the Audience”, again excoriated the Mayor and Tucson City Council, and declared: “For the past 25 years the business of Pima County and Tucson has been the importation and exploitation of Mexican Illegal Aliens, and for 25 years business has been good!”

24. On March 19, 2007 Plaintiff held the second Tucson Weekly Public Forum. A crowd of “Chicano” students gathered, including self announced members of “La Raza” and “MEChA” who (apparently) originated from the Calli Olin Academy, a charter school adjacent to “Chicanos por la Causa [10]”.

25. The “Chicano” 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 Tucson Police Officers, including Captain Gilhooly and Lieutenant Coleman, who stood idly by and made no effort to stop the assaults or to maintain public order.

26. Via public address system, Plaintiff described the rape threats with particular detail, excoriated Pima County Legal Defender Isabel Garcia, and declared: “Some day federal agents are going to surround your building, come into your office and arrest you!”

27. At Captain Gilhooly’s direction, Petitioner was cited for violation of the Tucson City Sound Ordinance, T CC 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.

28. On March 20, 2007 during the “Call to the Audience”, Plaintiff turned his back on the Mayor and Tucson City Council, and, in sum and substance, told the citizens in attendance: “On the issue of illegal immigration, there is a concert of action between the Tucson City Council, Legal Defender Isabel Garcia, and rich contractors, to import Illegal Mexican Aliens, exploit their labor and exploit their votes.”

29. Plaintiff invited members of the audience to attend the Tucson Weekly Public Forum, to speak their views, “…especially if they are contrary to mine. We want to hear the Left Wing explain just why we need to keep importing and exploiting Mexico’s poor.”

30. On March 26, 2007 Plaintiff held the third Tucson Weekly Public Forum, inside its’ customary and necessary protective rope barrier, at its’ usual location, on public property, near the corner of Pennington and Stone.

31. Plaintiff began his public address by robustly excoriating Judge Hays’ attempt to silence his public speech, concluding: “Municipal Court Judges don’t have the authority to silence political speech.” Plaintiff then extended an invitation to speak via the public address system to the “Chicano” students who had begun to gather.

32. One of the “Chicano” students responded by spitting on public speaker Russell Dove, declaring: “This is not America! This is Mexico!”

33. 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.

34. In full view of TPD officers who stood idly by, a “Chicano” 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.

35. “Chicano” students, hurling spit, insults and death threats, then kicked down a second barrier, in full view of TPD Officer Traynor, who stood smiling. Plaintiff informed Officer Traynor: “You’re going up on charges for failure to protect us.”

36. 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.

37. When a large group of “Chicano” students approached, Plaintiff extended an invitation to them 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.”

38. A Tucson Police Officer later reported that one “Chicano” 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!”

39. The “Chicano” 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 La Raza!”, “All white people deserve to die! [11]”, and a host of expletives so vile and so disgusting, that a proper sense of decorum inhibits Petitioner from setting them forth here.

40. Plaintiff then received a second citation for violation of the Tucson City Sound Ordinance, T CC 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.

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

42. The “Chicano” students, still under the control and direction of their teachers, tore and stomped on an American Flag, and later began chanting in unison: “Mexico! Mexico! Mexico!”

43. All of the preceding was filmed by Plaintiff and his supporters, and by Channel 50 News. That evening, KVOA News presented a stunning and biased report which excoriated Plaintiff for “cursing and screaming” and failed to mention the desecration of the American Flag, the pro-Mexico chanting or any of the provocative and criminal acts committed by the “Chicano” students.

44. 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 Mexican Illegal Aliens. You’ve done it for money and for votes. And now it’s all coming to a head.

“You’ve got one week to get your police department in shape and protect public safety, or there will be bodies in the street. I’ll use deadly force to protect myself from the imminent threat of death. It’ll make the OK Corral look like a Sunday school picnic.

“There’s a federal lawsuit and injunction coming. And some of you people are going to jail!”

45. 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 Lieutenant Coleman, arrested Plaintiff as he left the residence of a personal friend and political supporter who was in New York, away on family business.

46. 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 the previous Monday.

47. Over Plaintiff’s strenuous objections, TPD officers, (apparently) acting on a warrant issued by Superior Court Judge Bernini, searched Plaintiff’s car, seized the public address equipment necessary for the Tucson Weekly Public Forum, entered the private residence of Plaintiff’s supporter, seized Plaintiff’s firearm and taser device, rifled through various drawers and clothing, emptied and re-filled several small jewelry boxes, examined Plaintiff’s evidentiary tape and video recordings and (apparently) viewed and copied Plaintiff ‘s computer files.

48. Plaintiff was booked into the Pima County jail, put into protective custody, and subjected to various threats by Hispanic Pima County Deputy Sheriffs, include-ing: “We got Ramos and we’ll get you!”

49. The condition of Plaintiff’s release, which prevent him from coming within 500 yards of the location he used for the Tucson Weekly Public Forum, was confirmed on April 04, 2007 by Judge Hays who was assigned Plaintiff’s case again for the third time. Plaintiff may not (1) attend monthly meetings of the Tucson Civilian Police Advisory Review Board, (2 ) make a report to the Independent Police Auditor, (3) go to the offices of attorneys who now represent some of Plaintiff’s various interests (4) enter the Pima County Justice Court or the Pima County Superior Court, (5) engage in any activity within the vicinity of the Tucson Municipal Court, except to attend his own hearings.

50. On April 04, 2007, after assigning Plaintiff’s defense to the Tucson City Public Defender, Judge Hays told Plaintiff: “You probably will be arrested if you return to address the Tucson City Council.”

51. In his Motion to Withdraw as Attorney of Record dated April 12, 2007, Tucson City Public Defender Charles Davis succinctly apprised Judge Hays of the poli-tical ramifications of Plaintiff’s current prosecution, as set forth in paragraphs 38-43 above:

“(I)t has come to our attention that the defendant recently addressed the City Council “Call to the Audience.” Apparently, several of the Council members felt threatened by defendant in his remarks [12]. This puts us in a untenable position in terms of our ability to represent the defendant. We are a City department that relies on the City Council for budget support and policy direction. Defendant must have an attorney who has no ties to the City Council or the City of Tucson government.” (emphasis added)

52. On April 23, 2007 Municipal Court Judge Riojas, acting upon motion by Tucson City Prosecutor Alan Merritt who clearly stated his objective was to stop Plaintiff from speaking in opposition to left wing radical Hispanics who seek the violent overthrow of the United States government, issued an Order of the Court which suspends all Plaintiff’s first amendment rights.

Since April 11, 2006 to present, Tucson Mayor Bob Walkup, named defendants, and other public officials employed by the City of Tucson, have (1) conspired and engaged in a series of negligent and unlawful acts intended to promote the political objectives of the Mexican government and Open Border Activists, (2) engaged in re-presssive and unlawful actions intended to protect from public exposure their own negligent and criminal acts, and (3) deprived me of the lawful exercise of expressive rights protected by the First Amendment.

The Supreme Court has repeatedly ruled that even a temporary deprivation of fundamental Constitutional rights results in "...irreparable injury." The negligent and criminal acts of Tucson City Officials have caused me significant economic harm and emotional distress, and have prevented me the exercise of my expressive rights under the First Amendment.

Pursuant to A.R.S. 12-821.01(A), I am stating the following remedies for which I will settle my claim against the City of Tucson and its officials:

I. A written public apology from the Mayor of Tucson, the Tucson City Council, the Tucson Police Department and the City of Tucson for violating my civil rights.

II. Mandatory civil rights training for all officials employed by the City of Tucson, the Mayor of Tucson, the Tucson City Council and the Tucson Police Department.

III. Monetary compensation in the amount of $500,000 for my economic loss, emotional distress, loss of my civil rights, damage to my reputation, and time / resources spent in defending myself against the unlawful criminal charges lodged against me in three separate criminal prosecutions.

I do not wish to resolve this matter through litigation, but hope to improve community relations between the citizens of Tucson and their various public institutions. I would prefer to engage in a constructive dialog to effect the following:

I. Improved community understanding of the obligations of public servants and the right of the citizenry to hold their public officials accountable for negligent acts, acts of intentional malfeasance and criminal acts.

II. The restoration of the honor and dignity of the Office of Mayor, the Tucson City Council, and the Tucson Police Department.

III. Assurance that henceforth, the Office of Tucson City Mayor, the Tucson City Council, the Tucson Police Department and other Tucson City Departments will (1) desist in their present policy of encouraging Open Border Lobby Activists to break federal immigration law, and (2) apply the Rule of Law without regard to political favoritism or consequences, and without regard to accomplishing a political agenda.

IV. Assurance that henceforth the City of Tucson, the Tucson City Council and the Tucson Police Department will abide by the Constitutions of the United States and the State of Arizona.

Should you refuse this request for relief, I reserve the right to litigate under state and/or federal law, as appropriate, and specifically under 42 U.S.C. 1983. Should this become necessary, significant and full restitution will be sought along with attorney fees under 42 U.S.C. 1988 upon prevailing on the merits.

Additionally, I plan to file criminal charges with the US Department of Justice as the facts become known. Please contact me at your earliest convenience as to whether we may be able to amicably resolve this matter. I look forward to hearing from you.

[1] “Today we march! Tomorrow we vote!”

[2] 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.

[3] Reckless Burning is a subdivision of the Arizona Arson Statute.

[4] 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.”

[5] 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.

[6] MEChA, a radical student organization, actively promotes the establishment of Aztlan in the American southwest.

[7] Tucson Municipal Court Judge Bowman issued a restraining order on behalf of Pima County Legal Def-ender Isabel Garcia, Director of an Open Border advocacy group called “Derechos Humanos, which pre-vented Plaintiff from attending the second day of his own trial.

[8] Plaintiff chose this time frame to insure maximum contact with the public during lunch hour and to min-imize any possibility of unnecessary disruption of commercial activity.

[9] Several “Chicano” students appeared to be under the direction and control of TPD Officer Lucero.

[10] In the window of this organization a poster reminiscent of the work of ace Hitler propagandist Leni Rifenstahl in the 1930’s states: “Prayer and Dialog, on Immigration”, yet every invitation for “Dialog” Petitioner extends has been met with curses and violence.

[11] The purpose and effect of the “education” offered by the Radical Hispanic Charter Schools, based on a racist world viewpoint, is reminiscent of the education and indoctrination of the German Hitler Youth in the 1930’s.

[12] Referring to the March 27, 2007 meeting of the Tucson City Council, as set forth in paragraph 37, when Plaintiff apprised the Tucson City Council: “Some of you people are going to jail!”