In an attempt to have the malicious prosecution charge against the Bureau of Indian Affairs dismissed related to my ongoing civil rights lawsuit, Gerald Frank, with the U.S. Attorney’s Office, has filed a Motion for Summary Judgment with the federal district court in Tucson. This motion coincides with a similar motion filed by the attorney for the tribal police defendants.
Frank’s motion is lacking for several reasons. He primarily argues that the tribal police had probable cause to arrest me during the 2002 roadblock and because they had probable cause, no malicious prosecution took place. What Frank fails to mention is that the charges against me were dismissed twice due to the actions of the tribal officers.
The first time, the officers failed to file the complaint with the court prior to the court date (a misdemeanor under state law). The charges were dismissed without prejudice. Six months later, I filed Notice of Claims with the officers which resulted in the charges being refiled. Six months later, the judge dismissed the charges again but this time with prejudice after the tribal police refused to comply with a judicial subpoena for the procurement of records in my defense.
The tribal defendants have also argued that their actions, prior to my arrest, were done solely under color of tribal law. Yet the charges against me can only be levied by officers acting under color of state law. As such, the tribal officers had no probable cause and have effectively argued themselves into a corner since they can’t have it both ways.
We’re expecting Judge Roll to schedule an oral hearing on the outstanding motions some time in the next few months. When I learn the date, I’ll post it here.