Tohono O'odham Roadblock Incident


Department of Homeland Security:

Several Homeland Security agencies played an active role in this roadblock. In fact, it was their presence & participation that made me realize this was no ordinary 'public safety stop'. To find out exactly what their role was, I submitted FOIA requests to the U.S. Border Patrol and U.S. Customs several months after the roadblock incident. After receiving multiple refusals to release documentation related to the incident, I submitted several appeals to the Department of Homeland Security in Washington, D.C.

In July 2005, I finally received a response to the U.S. Customs FOIA appeal - 20 months after the fact. Even though the law requires a response within sixty days, it was nonetheless very informative and reinforced my claim of direct federal involvement. Not only did the documentation make it clear federal agents played an active role in TOPD roadblock operation. it also contradicted sworn statements made by several defendants along with showing the TOPD actively assisted federal agents in transporting suspects in federal custody and interrogating them on behalf of U.S. Customs.

Given that Chief Richard Saunders and Lt. Michael Ford both testified under penalty of perjury that federal agents did not participate in roadblock operations and did not arrive on-scene until AFTER illegal border crosser's and narcotics were discovered, the documentation is very damning indeed.

In contrast to the response to my FOIA appeal from U.S. Customs, the Border Patrol appeal was denied by Mr. Peter D. Gregory in September 2005. In a tortured interpretation of the law, Mr. Gregory denied me access to ALL the information I requested regarding Border Patrol operations on December, 20, 2002. Ironically enough, Mr. Gregory's specious reasoning indicated that release of the information would invade the privacy of Border Patrol agents who participated in the unlawful joint task force operation. It took Mr. Gregory over 22 months to reach this arbitrary and capricious decision.

It should be noted that both U.S. Customs and the Border Patrol are part of the Department of Homeland Security and both requests were for the same type of information. Nonetheless, I received fundamentally different responses from both agencies showing a lack of consistency in the application of the law.

Most recently, I have submitted requests to U.S. Customs and Border Protection for documentation related to a Border Security Conference attended by TOPD Chief Richard Saunders several weeks before the unlawful roadblock in question and to a recent Border Patrol report to Congress on the establishment of a permanent checkpoint in Southern Arizona. Both FOIA requests have been denied after the agency demanded that I submit an explanation of why I want the documentation along with demands for biographical documentation. Both demands represent a violation of the Freedom of Information Act.

Why the obvious disregard for the public's right to know? An article in U.S. News & World Report may shed some light on the issue:

U.S. News & World Report
January 12, 2004 - p.6

Shushing Homeland

"Security is one thing, but how about this from the Department of Homeland Security? The agency has instructed employees to ignore, in some cases, court orders to disclose information. The agency says that an employee who gets a court order should seek a delay. And if he or she is unsuccessful and the court persists, the employee 'shall respectfully decline to comply with the demand.'"

Basically, the Department of Homeland Security has instructed its employees to actively interfere with the judicial branch of the federal government by obfuscating and undermining the rule of law.

Bureau of Indian Affairs

The Bureau of Indian Affairs came into the picture after the defendant's testified early on that they were under contract with the Bureau of Indian Affairs to provide law enforcement services to the Tohono O'odham Nation. As such, they petitioned the court to dismiss the malicious prosecution claim because the Federal Tort Claims Act protect the defendant's from personal liability in such cases. Instead, an individual harmed by such actions must sue the agency that employed the defendant's.

Since I was unaware of this relationship, I hadn't exhausted my administrative remedies under the law. Consequently, the judge dismissed the malicious prosecution claim without prejudice. I followed up with a notice of claim against the Bureau of Indian Affairs that was subsequently denied. As such, we have amended our complaint and rolled the malicious prosecution claim back into the lawsuit. More on this later.

Given all the evidence of federal involvement, it's hard to fathom how the defendant's can argue with a straight face the roadblock was conducted entirely under tribal authority. Nonetheless, this is exactly what they are arguing in an attempt to have my claims dismissed.

After reading the accompanying documentation, you will see that the federal government uses the administrative process to evade & obfuscate the facts of this case while violating my rights under statutory law. This process has been a real eye opener for me and has made it clear that regardless of what's right or just, the federal government will do whatever it can to protect its own interests. So much for the rule of law.

Documentation regarding federal involvement and culpability in this case can be accessed below:

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