PROPOSED THIRD AMENDED COMPLAINT

8/18/2019 PROPOSED THIRD AMENDED COMPLAINT

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Roy Warden, PublisherArizona Common Sense6502 E. Golf Links Road #129Tucson Arizona [email protected]

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.

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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

Case 4:14-cv-02050-DCB Document 83 Filed 10/19/16 Page 1 of 29


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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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PROPOSED THIRD AMENDED COMPLAINT

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