Civil Rights Lawsuit:
After charges against me were dismissed by the Ajo Justice Court during the defense phase of this incident, a civil rights lawsuit was filed against the TOPD officers on December 19, 2003 in the Arizona Superior Court. In late March 2004, the TOPD accepted service of the complaint and retained various attorneys to represent them regarding different aspects of the complaint. U.S. Attorneys for the District of Arizona, Paul Charlton and Gerald Frank, agreed to represent the TOPD regarding the lawsuit's malicious prosecution claim while Roger Frazier of Gust Rosenfeld P.L.C. was hired to represent the TOPD regarding the constitutional claims.
Shortly thereafter, the U.S. Attorney's Office filed several documents with the federal district court. The first document was a notice of removal to move the case to the federal district court from the Arizona Superior Court. To justify this action, a certification was filed that alleges the officers were under contract with the Bureau of Indian Affairs at the time of the roadblock and consequently were considered federal employees under the Federal Tort Claim Act. Also, a motion to substitute the United States in place of the officers was filed in order to shield the officers from personal responsibility for their unlawful malicious prosecution.
In response, we filed an opposition to the motion to substitute based upon the fact that no contract with the BIA can empower the TOPD to enforce State law along with a motion to remand the case back to the Arizona Superior Court where issues of compelling state interest could be adjudicated. The defense countered with an opposition to the motion to remand and a joint motion to dismiss based upon sovereign and qualified immunity claims. In short, the defense claimed that because they were employed by a sovereign entity, the Tohono O'odham Nation, they have no obligation to obey state law, the state constitution, or the federal constitution. Further, because they are police officers, they argued they enjoy qualified immunity from such lawsuits. We responded with an opposition to the motion to dismiss which pointed out the officers were acting under color of state law during the incident which effectively bars arguments of sovereign immunity and that their conduct was clearly violative of well established principles for conducting sobriety roadblocks which addresses the issue of qualified immunity. In response, our opposition was countered by a reply from the defense.
A hearing regarding these issues was held in the Tucson Federal District Court on December 9, 2004 with district Judge John Roll presiding. During the hearing, the judge made several decisions in which he allowed the removal and substitution to stand along with dismissing the malicious prosecution claim without prejudice. This charge, the judge declared, could be re-filed at a later date but all administrative remedies under the Federal Tort Claim Act must be exhausted before doing so. In response, I filed a notice of claim with the Bureau of Indian Affairs (BIA) in which they had six months to respond. Under such circumstances, if a settlement isn't reached after six months, the malicious prosecution charge can be refiled against the United States but action against the individual officers is effectively barred.
During the hearing, the judge took arguments regarding sovereign and qualified immunity under consideration but did not make a final ruling. Several weeks later, the judge issued a court order re-iterating his earlier decisions and allowing our constitutional claims to go forward. The judge rejected the defense's motion to dismiss based in part on a 9th Circuit Court of Appeals case, Evans v. McKay, where a dismissal was reversed in a similar case based upon plaintiff's evidence that the tribal police were acting under color of state or federal law.
Shortly thereafter, the defense filed a formal answer to our original complaint after realizing they weren't going to be able to make the charges go away anytime soon. They also filed a motion to reconsider based upon case law referenced in the judge's order. The judge granted the motion which paved the way for limited discovery for both sides. In preparation, I put together evidence that the TOPD officers were acting under color of state and/or federal law at the time of the incident.
Originally, an evidentiary hearing was scheduled for April 25, 2005 but Judge Roll ordered that his decision (on whether or not sovereign immunity applies regarding roadblock operations prior to the unlawful arrest) would be made in chambers absent further oral argument. Judge Roll also extended the timeline for submitting additional documentation. As new evidence came forward, we amended our complaint to include a 42 U.S.C. 1983 federal civil rights and Bivens claim while the defendants motioned the court for a jury trial.
We filed an amended response regarding the motion to reconsider with a statement of facts in May 2005. The defendants responded with a reply along with their own statement of facts and a request for oral hearing. In June 2005, I finally received a response to my U.S. Customs FOIA request regarding their involvement at the roadblock. The documents we received were so incriminating, we filed an additional motion with the court. The Customs documentation contradicted several key statements made by the defendants under penalty of perjury & showed that federal agents were directly involved in roadblock operations and tribal police actively assisted U.S. Customs agents with transporting and interrogating individuals in the custody of U.S. Customs agents.
The defendants filed an objection with the court asking the judge to disallow the new evidence which we countered with a request for oral hearing. During this same time frame, I received a final administrative denial from the Bureau of Indian Affairs regarding my malicious prosecution claim. Consequently, we also requested to amend the complaint to roll the malicious prosecution claim back into the lawsuit.
In late September 2005, Judge Roll ordered the third amended complaint filed and dismissed our 42 U.S.C. 1983 and Bivens claims. We filed a motion for reconsideration only to wait nearly eight months for a terse response from Judge Roll denying the motion. Shortly afterwards, a scheduling order for additional discovery and a trial date was set. In an attempt to avoid discovery however, the defendants filed a motion for summary judgment.
In addition to the legal maneuvering described above, I also came across additional evidence from U.S. Customs that the roadblock was a joint task force operation as we claimed all along. It would appear that TOPD Chief Richard Saunders, one of the police defendants in the lawsuit, represented the Tohono O'odham Nation at a Border Security Conference held in Washington, D.C. in either 2002 or 2003. At the U.S. Customs sponsored conference, a detailed analysis regarding the implementation of joint task force operations between tribal and federal authorities was discussed.
In October of 2006, we filed Notice of Depositions with the tribal police defendants along with a subpoena for U.S. Customs agent Bill Dreeland. Dreeland was the Senior Special Agent who I observed actively participating in roadblock operations in the middle of the road with tribal police officers. He also was the agent the police defendants allowed to directly confront me at the roadblock and demand my obedience or face arrest. In early November, we conducted the depositions and filed our objection to the defendants motion for summary judgment with a supporting statement of facts.
At about this time, the attorney's representing the United States filed their own Motion for Summary Judgment regarding our malicious prosecution claim which we responded to in Opposition. Judge Roll ruled in favor of both Motion's for Summary Judgment and awarded the defendants fees in the amount of $2,641.30.
In October 2008, the 9th Circuit Court of Appeals notified us that a three judge panel would be convened to hear oral argument regarding the Appeal. On November 5, 2008, the 9th circuit issued an order granting the Tohono O'odham Nation's motion to file an Amicus Curiae Brief and denied a Motion for Sanctions filed by the defendants alleging frivolous arguments raised on appeal. The court did however strike the Right To Travel argument raised in our Opening Brief.
The Appeals court hearing in San Francisco was held on November 20, 2008 and an update along with the audio file of the hearing were posted on November 27, 2008. On August 4, 2009, the court ruled largely in favor of Checkpoint USA and remanded the case back to district court for further proceedings regarding the constitutionality of the roadblock itself.
The case languished in federal court for the next few years with Judge Roll refusing to take any action or schedule any hearing dates to move the case along. This despite numerous calls by my attorney to get the case back on schedule. This was the scenario we were faced with in January 2011 when Judge Roll became one of several shooting victims at an event in Tucson, AZ sponsored by Congresswoman Gabrielle Giffords. A short time later, semi-retired 9th circuit judge Wallace Tashima volunteered to pick up Judge Roll's civil calendar which included our case. From that point forward, the case began to move forward again.
In February 2011, the deposition of former TOPD Officer Nicholas Romero was taken by the defense regarding an incident report he authored at the checkpoint in 2002. In the incident report, Romero indicated the checkpoint's primary purpose was expansive and included checking for things such as drugs and illegal aliens along with stolen vehicles & sobriety checks - exactly the things we had alleged from the beginning & right in line with the Shonk Memo authored two years before the incident. Since such checkpoint purposes are illegal with the exception of sobriety checks, the defense went our of their way to try and get former TOPD Officer Romero to recant his written report nine years after he wrote it.
In April 2011, a scheduling conference joint report was submitted to the court and in May we filed our 4th amended complaint to consolidate the remaining issues for trial after the 9th circuit court decision. In June 2011, a second round of discovery was conducted and in August 2011, summary judgment motions, responses and reply's were filed. The district court filed an order granting oral argument regarding summary judgment in December 2011 & scheduled a hearing for December 21, 2011. On January 23, 2012, Judge Tashima ruled on the summary judgment motions granting part of the defendant's motion in so far as the actual stop was concerned but denied the defendant's summary judgment on the constitutionality of the roadblock itself. This ruling paved the way for scheduling a jury trial later in the year & additional filings in March 2012, including the defendant's memorandum for pretrial conference and our memorandum for pretrial conference.
In late April of 2012, we filed our motion in limine while the defendant's filed nine separate motions to try and suppress as much evidence and testimony at trial as possible. Judge Tashima never had an opportunity to rule on the motions however because settlement talks in early May 2012 resulted in a settlement agreement in mid-May and notification to the court on May 15, 2012. The court vacated all hearing & trial dates shortly thereafter and I signed a release of all claims on May 31, 2012 in exchange for payment of $210,000. A stipulation to dismiss the lawsuit with prejudice was filed with the court on May 31, 2012 along with a proposed court order.
As such, after nine years and a tortured legal history, this lawsuit is officially over. Tribal police anywhere within the jurisidction of the 9th Circuit Court of Appeals can no longer claim sovereign immunity while conducting suspiconless checkpoints along state 'right of ways' running through tribal land & are bound by state and federal constitutional constraints while doing so per the 9th circuit's decision in this case. A more detailed analysis of this case now that it is officially over will be forthcoming in the near future.
Comprehensive lawsuit documentation appears in mostly chronological order below. In addition, a comprehensive document timeline is available here that also contains documentation associated with the original incident when I was facing charges. For quick reference, lighter colored table entries below contain documentation filed by the plaintiff, gray table entries are motions filed by the police defendants and darker table entries are court orders.
Initial Court Appearance:
Amended Complaint/Pre-Trial Documentation
9th Circuit Court of Appeals Documentation
Remanded District Court Proceedings (post 9th circuit)