Tohono O'odham Roadblock Incident

Update #7 - July 4, 2003:

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In this email, I have a couple of new developments to report along with an in-depth look at a few topics I've touched on in the past. This email will address a summons I recently received to appear in the Ajo Justice Court for mid-July, a meeting summary with a Border Patrol supervisor in late June, and the Arizona cross-certification requirements regarding federal agents operating within the State.

Roadblock case:

Wednesday of last week I received a summons in the mail signed on June 25th by Judge John Casey of the Ajo Justice Court. The summons references case no. J-1003-TR-200301453 and orders me to appear before the court on July 17, 2003 at 1100 hours. Attached to the summons was a copy of a new Arizona Traffic Ticket and Complaint stamped on June 20th and signed by Detective Traviolia of the Tohono O'odham Police Department (TOPD). The alleged violations listed on the complaint are the same as those generated on December 20th at the roadblock. In essence, Detective Traviolia re-filed the charges against me exactly four days after receiving the notice of claims I served on the TOPD on June 16, 2003.  I view this act by Detective Traviolia, the TOPD, and the Pima County prosecuting attorney to be malicious and retaliatory in nature.

The TOPD had their opportunity to pursue charges against me back in January after specifying a date to appear in court. I went to great lengths to prepare for the court appearance and met my obligations under the law. Detective Traviolia & the prosecuting attorney on the other hand showed a disregard for due process by failing to file their paperwork with the court and failing to appear. They didn't even have the common courtesy to notify me beforehand that they didn't intend to press charges at that time. The failure to communicate was so bad, the court clerk didn't even know I was scheduled to appear until I called asking for an update.

For my troubles, I received notification from the court several days later that the Judge dismissed the charges without prejudice thereby providing the TOPD an opportunity to re-file the charges at a later date in spite of the fact Detective Traviolia violated State law and court rules by failing to file the traffic complaint with the court prior to the court date. One might think that after such a sequence of events, an impartial judiciary would at the very least dismiss the charges with prejudice so as to not reward the TOPD for their failure to follow basic due process steps. Now the TOPD is using the system contrary to its intended purpose to pursue a malicious prosecution six months later in retaliation of steps I've taken to hold them accountable for their actions on December 20th.

Marc Victor of the law firm 'Victor & Hall' in Mesa, Arizona has agreed to pick up the case again and represent me. I will plead innocent and will not accept any plea bargain. I will seek a change of venue to Tucson along with a jury trial. I will make maximum use of the discovery phase to bring to light any and all pertinent information related to this issue & I will continue to make public all aspects of this case as it develops. Updates have been made to my webpage with additional scanned documentation available.

More updates will be forthcoming over the next few weeks.

Border Patrol meeting:

On June 24th, I had a meeting with the Border Patrol Special Operations Supervisor for the Tucson Sector in relation to an incident that occurred on June 13th. The BP supervisor came to the University campus for an informal meeting between myself, my department head, and my supervisor. I must say, the meeting went much better than I expected and the supervisor's tone was more reasonable than anticipated. With that said - actions always speak louder than words so I'll reserve judgment on the utility of the meeting until a later date.

In my last update, I talked briefly about an encounter I had with a Border Patrol agent while driving route 86 to a remote work site. To make a long story short, a Border Patrol agent didn't appreciate me documenting him while he was profiling me. A less than satisfactory conversation ensued which resulted in a BP supervisor calling my department head at the University asking whether or not the University sanctioned my activities along this route. A meeting to discuss the matter took place the morning of June 24th.

The meeting lasted a little over an hour and several different topics were discussed. Highlights appear below:

  • The BP supervisor agreed that documenting Border Patrol agents engaging in public activities on a public highway is perfectly legitimate and agents shouldn't be adversely reacting to it although forewarning would be appreciated.
  • The Border Patrol is concerned about how such documentation would be used given the fact that pictures of BP agents have appeared on bounty posters down in Mexico in the past.
  • The BP supervisor agreed there are 'problems' within the agency - especially given the huge number of new agents that have been hired over the past few years with little to no experience.
  • As such, more people willing to hold BP agents accountable for misdeeds are needed.
  • The BP supervisor does not have a problem with me continuing to document BP activity on this route and that I am encouraged to stop and talk with agents when reasonable opportunities arise - even to ask them to articulate why they have stopped any given vehicle.
  • The BP supervisor stressed that the BP does not engage in racial profiling but rather 'behavioral profiling'. Some of the things agents look for when making a decision to stop someone is how rigid they are when they pass a BP vehicle, whether or not they're willing to make eye contact with an agent, whether or not their hygiene rises above some arbitrary value (bad hygiene could indicate time spent traversing the desert by foot), what kind of vehicle they're driving, etc. He indicated that none of these things in and of themselves rise to a high  enough level to make a stop legitimate but when taken in combination might....
  • He indicated they try to teach agents to be able to clearly articulate valid reasons for pulling someone over and if they can't it's probably not a valid stop.
  • He indicated that records are only kept for stops in which charges are actually filed. All other stops are not recorded.
  • He indicated that BP agents cannot stop people for speeding or other traffic violations so anyone who isn't breaking immigration laws has nothing to fear from the Border Patrol (this indicates BP agents are not cross-certified by the County Sheriff in which they operate - more on this later).
  • He indicated that the BP is not directly involved with roadblock operations setup by the TOPD but they can't help it if the TOPD calls them after stopping illegal immigrants at a roadblock setup for some other purpose. He said the BP used to refuse to get involved but because they receive so many calls during these operations, they currently stage vehicles close by so they can respond in a timely fashion.
  • I relayed several stories of random BP stops to the BP supervisor that I was familiar with. In each case, he agreed the stop sounded unreasonable but that without more details & an opportunity to talk with the agent involved, he couldn't make a conclusive evaluation.

Throughout the meeting, I appreciated the BP supervisors candor. In the end though, most of my concerns were re-affirmed. Individual Border Patrol agents operate with little oversight in the field. Many are young and inexperienced and have a hard time articulating why they have stopped someone. For those who can articulate reasons for a stop, they are more times than not based upon perfectly legal actions/activities unless one considers bad hygiene probable cause of wrongdoing (you'd hate to see me after working multiple 16 hour shifts on the job). The 'behavioral profiling engaged in by the BP is no substitute for individualized probable cause and places everyone who falls within eye-shot of a Border Patrol agent at risk.

With that said, something has to change. The 'behavioral profiling' examples given are unacceptable in a free society. The promise of this country is to be left alone unless the individual acts we engage in rise to the level of endangering someone's life or property. Driving vehicles that are statistically more likely to be involved with smuggling or not combing ones' hair for a few days doesn't meet a first order reasonableness criteria.

The Border Patrol is named such for exactly that reason - to patrol the border. They have no business operating on the streets of America unless individualized probable cause is present. After all, they weren't named the quasi-Border Patrol. If they haven't observed a person unlawfully crossing the border or if an affidavit specifically attesting to first hand knowledge of such an act hasn't been generated than not only are they not doing their job when operating away from the Border, they're putting U.S. citizens at risk and undermining our rights in the process. The roadblock setup by the TOPD with participation by the BP in December of last year is a perfect example of just how slippery the slope has become.

In the near future, I will be posting additional images of Border Patrol activities on the web site along with links to news articles showing systemic problems within the agency along with links to government documents showing the level of 'cooperation' the Border Patrol enjoys with local law enforcement agencies.

I would like to start collecting accounts by individuals who have been unreasonably stopped by the Border Patrol or witnessed unreasonable actions by a BP agent. The BP supervisor indicated a willingness to keep the dialogue open & to respond to legitimate concerns regarding BP activities. I'd like to test that by making available to him accounts of wrongdoing in the field that contain enough information for him to follow up on. I'm always willing to give someone the benefit of the doubt until their actions prove otherwise - I consider this scenario no different. If you have a factual account to relate, please consider documenting it and sending it to me via email. I will forward it on to the BP supervisor. In any such account, it's important to include as much independently verifiable information as possible so please include times, dates, names, vehicle markings, etc if at all possible. Your name and contact information would also lend credence to the account. I would also like to post legitimate verifiable accounts to my web page to start creating an independent readily accessible public record regarding questionable Border Patrol activities. Let me know what you think.

Federal officer cross-certification:

Arizona law at A.R.S. 13-3875 defines which federal agencies may exercise peace officer powers within a given county and under what circumstances. The wording of the statute appears below:
13-3875. Cross-certification of federal peace officer; policy; powers; qualifications; liability; records

A. The sheriff of each county shall develop and adopt a policy on cross-certification of federal peace officers, including whether cross-certification shall be permitted in that county.

B. A federal peace officer who is employed by the United States drug enforcement administration, the federal bureau of investigation, the United States secret service, the United States immigration and naturalization service, the United States army criminal investigation division, the United States naval criminal investigation service, the United States air force office of special investigations, the United States postal inspector or the United States customs service and who has completed the basic training curriculum for the officer's agency shall possess and exercise all law enforcement powers of peace officers in this state for one year, including, if directed by the officer's employer, the capability to enforce the criminal laws of this state if the federal peace officer:

1. Submits to the sheriff a written request for certification as a peace officer in this state.

2. Submits evidence that the officer has been certified as a federal peace officer by the United States drug enforcement administration, the federal bureau of investigation, the United States secret service, the United States immigration and naturalization service, the United States army criminal investigation division, the United States naval criminal investigation service, the United States air force office of special investigations, the United States postal inspector or the United States customs service.

C. Each federal peace officer whose cross-certification has lapsed may resubmit to the sheriff a written request for re certification as a peace officer in this state pursuant to subsection B.

D. Neither the state nor any political subdivision is liable for any acts or failure to act by a federal peace officer.

E. The Arizona peace officer standards and training board shall maintain records of all federal peace officers who are certified as peace officers in this state.

The statute speaks for itself. Federal agents who do not apply for cross-certification with the sheriff of the county they intend to operate in, who don't meet cross-certification qualifications, or who are rejected for any reason by the sheriff cannot exercise peace officer powers within that county. Further, each county sheriff is explicitly tasked under State law with adopting a certification policy - even if that policy is to not allow cross-certification.

After the Border Patrol encounter I had on June 13th, I called the Pima County sheriff's office to make two inquiries. The first inquiry was to determine the process for filing a complaint against harassing and unlawful Border Patrol activities along a State highway and the second was to determine whether or not Border Patrol agents are cross-certified within Pima County. My questions were met with hostility. After talking with several different individuals (I was transferred around to different departments for a while), I was told the County Sheriff's department does not take complaints against Border Patrol agents and that to their knowledge there is no cross-certification program for Border Patrol agents within Pima County but that deputies oftentimes call upon the Border Patrol for assistance during stops and for backup. In other words it would appear the County Sheriff doesn't hold Border Patrol agents accountable for their actions while operating in the county, fails to track which Border Patrol agents are operating in the county through a cross-certification program, and actively utilizes Border Patrol resources even though they are not cross-certified.

I'm at a loss. The job of the County Sheriff is to enforce State law in the county & to protect the inhabitants of the county where he/she has been elected to serve. This includes protection from anyone or any organization regardless of their affiliation. The fact that the County Sheriff's office refuses to take complaints against the Border Patrol speaks volumes about the mind set along with the corrupting influence a federal police presence has at the local levels.

This journey continues to be quite an eye opener for me. From the beginning my intent has been to see if it is possible to work within the system to seek justice and accountability for wrongdoing by public officials. The amount of resistance and hostility I have received at every step of the way to perfectly straightforward and legitimate questions has been down right frightening. The fact that the same level of hostility exists across agency boundaries - local and federal is quite disturbing. Our system of government was designed in such a fashion as to provide internal checks and balances - both horizontally (between the branches of government) and vertically (between Federal, State, and local levels). Clearly, government agencies at all levels are beginning to speak with one voice. Unfortunately the unified message being sent increasingly contradicts their individual mandates.

I apologize for not individually responding to email messages sent regarding the past few updates - things have been busy. Thank you for your time. Your feedback is always appreciated.


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