Tohono O'odham Roadblock Incident

Update #17 - May 1, 2005:

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Overview:

This is an update on the unlawful multi-jurisdictional roadblock that took place on Arizona SR86 on December 20, 2002.

In this update I discuss changes to the court schedule, recently received discovery documentation, lawsuit amendments and issues surrounding the Motion to Reconsider. Links to recently added documentation are also provided towards the end of this update.


Court Schedule:

In the last update, I indicated a judicial hearing was scheduled for April 25, 2005 where the court would hear arguments surrounding the alleged sovereign immunity of the defendants related to the roadblock, stop, questioning and initial detention prior to my unlawful arrest. Limited discovery was allowed by the court and both sides were preparing for the hearing. On April 1st however, a court order was issued which vacated the April 25th hearing, extended the discovery time frame, and indicated an in-chambers decision would be made in lieu of a hearing. The reason provided by the court for the change was that facts surrounding the defendants alleged sovereign immunity and our substantive claims for relief are so intermingled that the court must review the evidence within the boundaries of Rule 56 summary judgment. Further, case law indicates that given the circumstances, the court must examine the evidence in a light most favorable to the plaintiff since a finding of fact in such circumstances must be made at trial. As such, the judge decided a hearing was inappropriate & set May 6th as the deadline for our final response to the Motion for Reconsideration. He also set May 27th as the deadline for the defendants final reply.

Given that the April 25th hearing was canceled, my deposition along with that of two eye witnesses were taken on Wednesday, April 27th at the Gust Rosenfeld law firm in downtown Tucson by defense attorney Roger Frazier. Final motions will now be prepared and submitted to the court followed by a court order regarding the scope of the trial sometime after May 27th.

In addition to the depositions that took place last Wednesday, former TOPD officer Joseph Patterson was deposed several weeks ago. Mr. Patterson heard about this incident some time ago and when I contacted him, he indicated a willingness to testify on our behalf. Mr. Patterson testified that in his experience, the TOPD routinely conducted roadblocks with the intention of enforcing state law on non-tribal members through their AZ POST certifications. He also testified that TOPD officers routinely claimed state jurisdiction when it was in their best interest to do so and tribal jurisdiction when state requirements were burdensome in any way. In essence, Mr. Patterson verified that jurisdiction shopping was a standard TOPD practice during the time frame he worked for the agency.

Discovery:

Over the past several weeks, I've been reviewing discovery documentation submitted by the defendants. As you'll see below, the defendants failed to adequately respond to our discovery requests. What has been released in comparison to what hasn't is proving to be fairly interesting however. Links to most of this documentation can be found at the end of this update.

While reviewing the defendants response to our request for production of documents and things, we've made the following observations:

  • The defendants admit the TOPD have no written guidelines regarding checkpoint/roadblock operations even though a tribal case referenced by the defendants (over 16 years old) explicitly addresses a need for the development of such guidelines. Instead of developing guidelines per tribal court instructions however, the Chief of Police has been content with keeping a copy of the court decision in his office over the years in lieu of actual guidelines.
  • The defendants state they cannot find any copies of the December 20, 2002 roadblock operational plan. Affidavits recently added to the website from Lt. Ford and Assistant Chief of Police Joseph Delgado address this point. This is in spite of the fact that over 26 officers participated in the operation and the plan was allegedly approved by the Chief of police or his assistant prior to December 20th. The defendants did manage however to produce copies of roadblock operational plans conducted prior to and after the December 20, 2002 roadblock.

    What's interesting to note about these operational plans is that they either indicate involvement of state/federal agencies or that the scope of roadblock operations were expansive and encompassed all manner of general crime control interests. Given the 'loss' of all copies of the operational plan for the December 20, 2002 roadblock and the nature of other roadblocks conducted by the TOPD, there's no reason to believe the December 20th roadblock was limited to public safety issues & didn't involve federal/state agencies.
  • The defendants have only released copies of five arrest reports associated with roadblock operations although three more are expected in the near future. There are strong indications that additional arrests were made at the roadblock but documentation that would confirm this has been withheld. Additionally, none of the documentation released indicates when U.S. Customs or Border Patrol agents were called to the scene, who called them, or why they were called.
  • The defendants state the Border Patrol and U.S. Customs were only called to the scene after alleged violations requiring their presence were identified. When the arrest records were reviewed however, it became apparent that I was the second arrest of the night while the first report of illegal aliens and drugs didn't take place until after I had already been stopped. Why were both agencies already on-scene by the time I arrived?
  • The defendants claim they have no records associated with Border Patrol or U.S. Customs involvement at the scene and we should seek such records directly from those agencies. FOIA requests to both agencies however have been denied based upon 'personal privacy' concerns and that disclosure could compromise enforcement techniques. I guess we all know what enforcement techniques are being protected. Responses like this make it clear why individuals must take it upon themselves to gather and document as much information as possible when faced with the threat of these types of operations.
  • The defendants admit that roadblock dispatch records associated with this case have been destroyed. Their excuse is that such records are routinely destroyed 18 months after they are generated. What they fail to mention however is that if such records are associated with an ongoing legal action or investigation, they are obligated to preserve them. Since I submitted a Notice of Claim against them six months after the incident occurred and legal proceedings have been ongoing since 2003, there is no valid excuse for the destruction of this evidence.
  • The defendants failed to provide us with a copy of the roadblock summary report. Lt. Ford and Detective Traviolia admitted to the existence of this document when they were interviewed by defense attorney Marc Victor. The Summary Report would presumably provide an overview of the total number of arrests, seizures, detentions, etc along with other information that could be used to determine the scope of the operation along with the involvement of other agencies.

With regards to the defendants response to our request for admissions:

  • On-scene commander, Lt. Ford, admits to enforcing seatbelt laws at the roadblock - contrary to the desires of the Chief of Police. The seatbelt law was only enforced against non-tribal members because the tribe has no equivalent law.
  • In one of our requests for admissions, we asked the defendants to admit to carrying out the roadblock in conjunction with the Border Patrol and U.S. Customs. The response we received is telling:

    "...Anything agents from those agencies may have done after probable cause leading to their involvement arose, or any actions they may have taken, was done under their own power or choice, independent of the TOPD's operation and initial stops at the checkpoint."

    At the very least, this indicates the TOPD made no attempt to maintain operational control of their roadblock because they allowed federal agents to engage in simultaneous operations after arriving on-scene. Regardless of why federal agents were present at the roadblock or why they stuck around to assist, the TOPD is ultimately responsible for their actions given that they claim it was purely a TOPD operation.
  • The defendants admit that U.S. Customs Agent Dreland approached and spoke to me while the TOPD were conducting their investigation.
  • The defendants admit to seeking consent to conduct trunk searches of both tribal and non-tribal members stopped at the roadblock. Trunk searches have nothing to do with sobriety and everything to do with general search's for contraband material - a purely law enforcement endeavor.

As you can see, even though the defendants failed to fully comply with our discovery requests, the omissions and discrepancies associated with this incident continue to grow as we look deeper into the incident.

Motion to Reconsider:

After reviewing discovery documentation, we motioned the court to deny the defense's renewed motion to dismiss. The basis being that the defendants were operating under color of state and/or federal law throughout the entirety of the operation and as such are not entitled to sovereign immunity for any aspect of roadblock operations. To support our position, we referenced multiple examples of multi-jurisdictional activity in the brief along with various statements made by the defendants.

We also pointed out that discovery was incomplete because the defendants admitted to 'losing' some documents, destroying others, and failing to provide access to even more. It was especially interesting to note that none of the arrest reports released involved a single instance of drunk driving when this was the alleged purpose of the roadblock. We also noted the heavy involvement of federal agencies along with statements made by Lt. Ford during his interview with Marc Victor that showed intent to enforce both state and tribal law from the inception of the operation.

The defense responded to our motion with additional requests to dismiss claims arising from the roadblock and any actions taken prior to my arrest. They claim such actions were based solely on tribal authority and consequently the court lacks jurisdiction to hear evidence surrounding such issues. They also requested that all defendants not directly involved with my citation and arrest be dismissed from the lawsuit in its entirety.

In response to our claim that discovery was incomplete, the defense attorney stated the defendants neither destroyed nor failed to release documentation because such documentation would have to originate from the TOPD which is not a named defendant. The attorney fails to mention that the Chief of Police is one of the defendants in this case and has unfettered access to any such documentation. The motion also states there is no evidence the TOPD refused to release a copy of the operational plan to the Ajo Justice Court in December of 2003 even though I provided a copy of the transcript of court proceedings where it was made perfectly clear that the document would not be released to the court:

The court: "Mr. Perkins, is it your understanding that that is regarded as an internal document and that it would not be...did you say it was an internal document that would not be made available to you?"

Mr. Perkins: "That's what Lieutenant Ford advised me why he was not able to bring that here."

This same document, the document the defendants refused to provide to the justice court while I was defending myself against charges involving jail time, is now reported as being lost by the defendants even though Lt. Ford indicates he forwarded it to the Assistant Chief of Police, Joseph Delgado. This must be an incriminating document indeed for them to not only have refused to release it to the Ajo Justice Court in 2003 but to have now 'lost' all copies of it after this lawsuit was filed.

Amended Complaint:

We recently amended the complaint to include issues of federal law. This was prompted by the removal of the case from the Arizona Superior Court where it was originally filed. This was made possible by a certification from the U.S. Attorney's Office stating the defendants were operating within the scope of their federal contract with the Bureau of Indian Affairs at the time of the incident. It was this basis the defendants used to not only remove the case to the federal court but also to have the malicious prosecution claim dismissed without prejudice.

Given these circumstances, we felt it was appropriate to amend the complaint to allow us to argue issues of federal law in addition to state law and to bring forward a Bivens claim. The judge granted our request to amend the complaint on April 1, 2005.


Documentation:

Since the last update in March, several files have been added to the website. The majority of these files are related to limited discovery on whether or not there are sufficient allegations to uphold our claim that the defendants were acting under color of state/federal law throughout the incident. If the judge rules against us, evidence will be limited to only those events that took place after I was forcibly removed from my vehicle. If the judge rules in our favor, the constitutionality of the roadblock itself can be examined within the context of the stop, questioning, detention, and arrest.

Links to discovery documentation along with a motion to amend the complaint, a demand for a trial by jury, and two court orders appear below. It should be noted, we will NOT seek to deny the defendants their right to a jury trial even though the defendants sought to deny my right to such a trial while I was defending myself against their malicious prosecution in 2003:

In addition to the files referenced above, I have also added information regarding a suspicionless DHS/Border Patrol Roadblock conducted on SR86 on April 14, 2005 - over 40 miles from the international border. This webpage has been added to the Homeland Security section of the website which highlights Border Patrol abuse near the border. I have found it necessary to carry recording devices with me while traveling this highway given the nature of enforcement activity taking place in the area, my previous experiences, and knowing that the Border Patrol routinely refuses to comply with the Freedom of Information Act. These recording devices were utilized at this suspicionless roadblock to generate photos, a video, and an mp3 file of the stop.

I can't stress enough that these types of suspicionless enforcement activities are being routinely wielded against the public many miles inland of the border. You may want to ask yourself why our rights are being undermined in this fashion when, by definition, illegal border crossings take place on the border - not 40 miles inside the interior of the country.


In conclusion, I'd like to point out that Article 2, Section 2 of the Arizona Constitution states that:

"All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights."

Similarly, Article III, Section I of the Tohono O'odham Constitution states:

All political power is inherent in the people. The government of the Tohono O'odham Nation derives its powers from the consent of the governed and is established to protect and maintain their individual rights. It shall not deny to any member of the Tohono O'odham Nation the equal protection of its laws or deprive any member of liberty or property without due process of law."

After more than 28 months of seeking an answer, no one has yet explained to me how suspicionless roadblocks where individuals are arbitrarily stopped, detained & questioned without cause and can be arrested merely for asking questions, serves to protect and maintain individual rights.

Your thoughts and feedback are always welcome. Thank you for your time.

Terry




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