Proposed Third Amended Complaint

Case 4:14-cv-02050-DCB Document 83 Filed 10/19/16 Page 1 of 29
Roy Warden, Publisher

Arizona Common Sense
6502 E. Golf Links Road #129
Tucson Arizona 85730
roywarden@hotmail.com
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
)
) Case No. CV-14 2050 TUC (DCB)
ROY WARDEN,
)
)
Plaintiff, IN PRO SE
)
)
)
Vs
)
)
RICHARD MIRANDA, individually ) THIRD AMENDED COMPLAINT
and in his official capacity as Tucson ) FOR DECLARATORY RELIEF
City Manager; MIKE RANKIN, ) AND COMPENSATORY AND
individually and in his official capacity ) EXEMPLARY DAMAGES FOR
as Tucson City Attorney; LISA JUDGE, ) INTENTIONAL AND NEGLIindividually and in her official capacity ) GENT VIOLATIONS OF TITLE
as Assistant Tucson City Attorney; ) 42 U.S.C. 1983, AND TITLE 42
FRED GRAY, individually and in his ) U.S.C. 1985
official capacity as Director of Tucson )
HONORABLE
DAVID
Parks and Recreation;
REENIE ) THE
OCHOA, individually and in her official ) BURY
capacity as Southwest District Admini- )
strator of Tucson Parks and Recreation; )
KEVIN MCCARTHY, individually and )
in his official capacity as Captain of the )
Tucson City Police Department; PAUL )
SAYRE, individually and in his official )
capacity as Lt. of the Tucson City Police )
Department; DIANA LOPEZ, indivi- )
dually and in her official capacity as Lt. )
of the Tucson City Police Department; )
TUCSON MAY 1ST COALITION FOR )
WORKER
AND
IMMIGRANT )
RIGHTS; THE CITY OF TUCSON; and )
DOES 1-25,
)
)
Defendants.
)
1
COMES NOW the Plaintiff Roy Warden, with his Third Amended Com-
plaint against the Defendants, named and un-named above, and as grounds
therefore alleges:
I. INTRODUCTION
1
2
1.
This is an action pursuant to the Civil Rights Act of 1871, 42 U.S.C.
1983, 42 U.S.C. 1985 and 28 U.S.C. 1343, seeking redress for the
negligent and intentional deprivation of the Plaintiffs constitutional
rights. Venue is proper in the 9th District of Arizona as all of the acts
complained of occurred in Pima County Arizona.

II. JURISDICTION
7
8
2.
This Court has jurisdiction over this action under 28 U.S.C.
1343(a)(3) for negligent and intentional violations of constitutional
10
rights as provided by 42 U.S.C. 1983 and 42 U.S.C. 1985. The
11
Plaintiff seeks declaratory relief, monetary damagesincluding
12
exemplary damagesand attorney fees and costs pursuant to 42
13
U.S.C. 1988.
14
3.
The Plaintiff seeks redress for violation of the Plaintiffs rights to
15
speech, press, petition and assembly under the First Amendment of
16
the Constitution of the United States and the Plaintiffs right to due
17
process of law as guaranteed by the Fourth and Fourteenth
18
Amendments of the Constitution of the United States.

III. REQUEST FOR JURY TRIAL
19
20
4.
requests a trial by jury.
21
IV. IDENTITY OF THE PARTIES
22
23
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff
5.
Plaintiff Roy Warden, community activist, writer and publisher of
24
political newsletters Common Sense II, CS II Press, Arizona Common
25
Sense and Director of the Tucson Weekly Public Forum, is a citizen
26
of the United States and was a resident of Pima County Arizona at all
27
times relevant to this complaint.
6.
Defendant Richard Miranda, a member of the board of Chicanos Por
la Causa1, a radical, open border, pro-raza group associated with
Isabel Garcia, was employed by the City of Tucson, and acted
individually and in his official capacity as City Manager for the City
of Tucson, under color of state law, regulations, customs and policies
at all times relevant herein. Defendant Miranda is sued in his indi-
vidual and official capacities.

7.
Defendant Mike Rankin is employed by the City of Tucson, and acted
individually and in his official capacity as City Attorney for the City
10
of Tucson, under color of state law, regulations, customs and policies
11
at all times relevant herein. Defendant Rankin is sued in his individual
12
and official capacities.

8.
13
Defendant Lisa Judge is employed by the City of Tucson, and acted
14
individually and in her official capacity as Assistant City Attorney for
15
the City of Tucson, under color of state law, regulations, customs and
16
policies at all times relevant herein. Defendant Judge is sued in her
17
individual and official capacities.

9.
18
Defendant Fred Gray is employed by the City of Tucson, and acted
19
individually and in his official capacity as Director of Tucson Parks
20
and Recreation, under color of state law, regulations, customs and pol-
21
icies at all times relevant herein. Defendant Grey is sued in his indi-
22
vidual and official capacities.

10.
23
Defendant Reenie Ochoa is employed by the City of Tucson, and acted
24
individually and in her official capacity as Southwest District Admin-
25
istrator of Tucson Parks and Recreation, under color of state law, reg-
26
ulations, customs and policies at all times relevant herein. Defendant
27
Ochoa is sued in her individual and official capacities.

1
Admitted, as per RFA #17.
11.
Defendant Kevin McCarthy was employed by the City of Tucson, and
acted individually and in his official capacity as Captain of the Tucson
Police Department, under color of state law, regulations, customs and
policies at all times relevant herein. Defendant McCarthy is sued in his
individual and official capacities.
12.
Defendant Paul Sayre is employed by the City of Tucson, and acted
individually and in his official capacity as Lt. of the Tucson Police
Department, under color of state law, regulations, customs and policies
at all times relevant herein. Defendant Sayre is sued in his individual

10
11
13.
Defendant Diana Lopez is employed by the City of Tucson, and acted
12
individually and in her official capacity as Lt. of the Tucson Police
13
Department, under color of state law, regulations, customs and policies
14
at all times relevant herein. Defendant Lopez is sued in her individual
15
16
14.
Defendant in default Tucson May 1st Coalition for Worker and Immi-
17
grant Rights, a political organization directed by pro raza activist Is-
18
abel Garcia and located in Tucson Arizona, acted as an agent of the
19
state under the direction or control of named or unnamed Defendants,
20
and in concert with Defendants McCarthy, Sayre, Lopez and other
21
Tucson Officials and Employees, under color of state law, regulations,
22
customs and policies at all times relevant herein.
23
15.
Defendant City of Tucson, a municipal corporation, is a unit of local
24
government organized under the laws of the State of Arizona. Muni-
25
cipalities may be sued for constitutional deprivations visited
26
pursuant to governmental custom even though such a custom has not
27
received formal approval through the bodys official decision-making
channels. Monell v. Department of Social Services, 436 U.S. 658, 690,
691 (1978)
16.
Defendant Does 1-25 are (1) individuals, political organizations or
members of political organizations who acted individually or as agents
of the state under the direction or control of Defendants, and (2) Tucson
City employees, including members of the Tucson City Council, their
staff, officers and employees of the Tucson Police Department, who
acted individually, and at the direction of their superiors, within their
enforcement, administrative and executive capacities, under color of
10
state law, regulations, customs and policies at all times relevant herein.
11
Does 1-25 are sued in their individual and official capacities.
12
V. FACTS AND ALLEGATIONS
13
17. Plaintiff is an unpaid political activist working on behalf of the people
14
of Pima County, the publisher of Common Sense II, CSII Press,
15
Arizona Common Sense and the Director of the Tucson Weekly Public
16
Forum.
17
18. Plaintiff has spent the last 9 years investigating allegations of mal-
18
feasance within the legal and political institutions of Pima County, in-
19
cluding the malfeasance of Tucson City Officials who have used their
20
public offices (1) to aid and abet, entice and invite, and otherwise to
21
en-courage the unlawful entry of impoverished Mexican citizens to
22
supply local contractors with low cost labor, (2) to advance the policy
23
of the Mexican Government to exclude their poor so they may come to
24
America to earn and send home remittances, and (3) to expose the
25
current activities of elected Tucson City Officials who now employ
26
Tucson City Administrators, and staff, on the basis of cronyism and
27
not on the basis of their fitness to hold public office.
19.
Sometime prior to April 10, 2006, Pima County political activist Isabel
Garcia, organized a number of pro-raza open border activist groups2
to serve as front organizations for Arizona Border Rights Founda-
tion3, an Arizona not for profit corporation Isabel Garcia directs.

20.
Subsequently; Isabel Garcia directed the activities of her various
front organizations and organized a rally in Armory Park, Tucson
Arizona to take place on April 10, 2006, as part of a national political
event, called Nationwide Day of Protest March and Rally4

21.
Subsequently; on April 10, 2006 members of Isabel Garcias various
10
pro raza open border activist groups5 rioted in Armory Park Tucson
11
Arizona in response to Plaintiff Warden6s lawful public speech oppos-
12
ing the economic policy of Mexican Government to export their poor
13
to the United States to earn and send home remittance money7 and
14
Defendant Tucson City Open Border Policy, resulting in the Tucson
15
Police Department arresting 6 pro-raza demonstrators for felony as-
16
saults on police officers.

2
Isabel Garcia is referred to in the media local media as the Director of Derechos
Humanos.
Isabel Garcia is the Chairman of Arizona Border Rights Foundation.
As referenced by Tucson City Manager Mike Hein in his Memorandum to the

Tucson Mayor and Council dated May 10, 2006.
The local media, and the Tucson Police Department, estimated event attendance
to be 15,000.
On April 10, 2006 Plaintiff, and an estimated 14 other protect the border activists generally referred to as Border Guardians, demonstrated in Armory Park,
Tucson Arizona in opposition to the Mexican government and Tucson City Open
Border Policy.
Currently, the Mexican economy earns more from remittance money than it does
from the sale of oil.
22.
In the riots aftermath, Isabel Garcia declared8, on the basis that six
pro raza protestors had been arrested for felony assaults on TPD of-
ficers in Armory Park on April 10, 2006, the community had lost
trust in the Tucson Police Department.

23.
On or about April 13, 2006, Isabel Garcia met with various Tucson
City Officials, including Defendant Tucson Police Chief Miranda9 and
Defendant Tucson City Attorney Rankin, and came to an agreement to
harass, annoy, arrest and otherwise to violate Plaintiffs First Amend-
ment rights at all his future political events.

24.
10
Subsequent to the meeting with Tucson Officials referenced in para-
11
graph 23 above, Isabel Garcia declared her organizations had begun to
12
regain trust in the Tucson Police Department.

25.
13
On April 27, 2006 Defendant Rankin authored and issued the Confi-
14
dential Memorandum (1) to circumvent the law set forth in Gathright
15
v. City of Portland, 439 F.3d 573 (9th Cir. 2006) and, (2) to regain the
16
trust of Pro Raza Open Border groups who were widely reported in
17
the local media to have lost trust in the Tucson Police Department
18
consequent to police action in Armory Park on April 10, 2006, as doc-
19
umented in the After Action Report dated April 26, 2006. (15-
20
252COT0032-15-252COT0039)
26.
21
On May 16, 2006, Isabel Garcia addressed the Tucson Mayor and
Council and denounced the Tucson Police Department After Action
22
Rob ODell, Arizona Daily Star, posted April 14, 2006
Prior to the meeting, Isabel Garcia stated, the community has lost trust in the
Tucson Police Department. Upon exiting the meeting Garcia stated, we have
begun to regain trust in the Tucson Police Department.
Report which documented numerous acts of pro-raza violence10 on
April 10, 2006, and emphasized her desire to regain trust in the Tuc-
son Police Department.

27.
On September 15, 2006, after a 17 day jury trial, the Clerk of the U.S.
District Court, Tucson Arizona entered a verdict in favor of Kevin Gil-
martin and Jack Harris against Defendant Miranda, other Tucson City
Officials and Defendant Tucson City for nearly 3 million dollars in
damages, including two million dollars in punitive damages, for Con-
spiracy, First Amendment Retaliation and Intentional Infliction of

Emotional Distress, (CV-00-352-TUC-FRZ)
10
28.
11
On December 15, 2006 at the Tucson Municipal Court trial of State v.
12
Warden, CR 6041685, Isabel Garcia, who was obscured partially from
13
the view of Tucson Municipal Court Judge Eugene Hays11 and other
14
court officials, mouthed words, gave hand signals and otherwise
15
coached both complaining witnesses while each gave testimony.

29.
16
On December 15, 2008 Isabel Garcia obtained an Injunction against
17
Harassment, enjoining Plaintiff from coming within 1,000 feet of the
18
Office of the Pima County Legal Defender, preventing Plaintiff from
19
attending the second day of trial in State v, Warden, CR 6041685.

30.
20
On May 1, 2008 Assistant Tucson Police Chief Kathleen Robinson,
21
citing authority unlawfully granted by Tucson City Code Section 21-
22
4(a)(b)(6) and Tucson City Code Section 21-3(7)(4), denied Plaintiff
23
right of entry into Armory Park, Tucson Arizona, to speak in opposi-
24
tion to Tucson City Open Border Policy and the policy of the Mexican
Defendant Garcia described the deplorable conduct of members of her pro-raza
groups on April 10, 2006 as powerful, beautiful, historic, mature, and rejected
outright the Gathright decision as cited by Defendant Mike Rankin in Exhibit 1.
10
11
This allegation is supported by the Affidavits of Steve Aiken, Lee Ewing, Laura
Leighton, and Victor Mergard.
Government, even though Plaintiff showed her a letter written by Tuc-
son City Attorney Mike Rankin dated April 12, 2006 which stated, in
sum and substance, that exclusive use permits may not be used to
deny First Amendment Rights as per Gathright v City of Portland, 439
F.3d 573 (9th Cir 2006).

31.
On May 16, 2008 Defendant Rankin signed the Gilmartin Settlement
Agreement in which he orchestrated a scheme to use public money to
satisfy a portion of the two million dollars in punitive damages granted
by the Gilmartin jury, as set forth in paragraph 27.

32.
10
Three weeks subsequent to paying nearly 2 million dollars to settle the
11
Gilmartin claim, including punitive damages, Defendant City of Tuc-
12
son hired Defendant Miranda as Assistant Tucson City Manager,
13
prompting Plaintiff to publically ask this question: How does Defend-
14
ant Mirandas conduct, which the Gilmartin Jury judged to be outra-
15
geous and totally intolerable in a civilized society, qualify him for the
16
position of Assistant Tucson City Manager?

33.
17
On May 1, 2009 Assistant Tucson Police Chief Kathleen Robinson,
18
citing authority unlawfully granted by Tucson City Code Section 21-
19
4(a)(b)(6) and Tucson City Code Section 21-3(7)(4), denied Plaintiff
20
right of entry into Armory Park, Tucson Arizona, to speak in opposi-
21
tion to Tucson City Open Border Policy and the policy of the Mexican
22
Government, even though Plaintiff showed her a letter written by Tuc-
23
son City Attorney Mike Rankin dated April 12, 200612 which stated, in
24
sum and substance, that exclusive use permits may not be used to
25
deny First Amendment Rights as per Gathright.

34.
26
Sometime prior to April 2, 2010 Isabel Garcia organized the Tucson

chapter of a new, nationwide pro-raza open border activist group
27
12
Exhibit one.
known as the The May 1st
Rights.
35.
Coalition for Worker and Immigrant
On or about April 2, 2010 Paul Teitelbaum, Coordinator for Defendant
in default Tucson May 1st Coalition for Worker and Immigrant Rights
(CWIR) and acting under the direction and control of Isabel Garcia,
sent a letter to Defendant Southwest District Director of Tucson Parks
and Recreation Reenie Ochoa, requesting an Exclusive Use Permit for
Armory Park, the site of our annual rally which takes place this year
on Saturday May 1, 2010.
10
36.
sive use of Armory Park:
11
There are anti-immigrant groups and individuals that have, in

the past, attempted to disrupt and incite violence at our May
Day event. The issue of Immigrant Rights and Immigration Reform is highly volatile and there are national organizations with
Arizona chapters that have been designated as Hate Groups by
the Southern Poverty Law Center (see http://www. Spl-center.org/get-informed/hate-map#5=AZ) whose focus is on the
anti-immigrant issue. In addition, we have recently received an
explicit threat from a local resident, Mr. Roy Warden, who has
incited violence against our Coalition or individuals associated
with it in the past.
12
13
14
15
16
17
18
19
20
21
22
23
In that letter Paul Teitelbaum stated his reasons for requesting exclu-
37.
On April 26, 2010 the Director of the Tucson Parks and Recreation
24
Defendant Fred H. Gray Jr., sent a letter to Paul Teitelbaum, Coordi-
25
nator for Defendant in default Tucson May 1st Coalition for Worker
26
and Immigrant Rights, which stated:
27
28
29
30
31
32
33
I have reviewed your request for exclusive use of Armory

Park Upon further discussion with Parks and Recreation
staff, Tucson Police Department staff, and City Attorneys Office, this letterwill serve as your permit to utilize the areas
indicatedfor the exclusive use of your function.
It will be your responsibility to monitor the access to this area
and the participants involved. In the event that you wish to deny
10
someone access, or request someone leave the designated exclusive use area, it will be your responsibility to ask them to do
so. Should anyone refuse your request you would need to contact Tucson Police Department staff on-site via 911 Should
any individual cause a disturbance or incident while in any
other area of the park that disturbs your exclusive use, Parks
and Recreation staff will ask them to leave or police may be
called to assist should they refuse the request. (emphasis
added)
1
2
3
4
5
6
7
8
9
10
38.
On May 1, 2010 Tucson Police Lt. David Azuelo, citing authority un-
11
lawfully granted by Tucson City Code 21-4(a)(b)(6) and Tucson City
12
Code Section 21-3(7)(4), and a court order which was no longer in ef-
13
fect, denied Plaintiff right of entry into Armory Park, Tucson Arizona,
14
to speak in opposition to Tucson City Open Border Policy and the pol-
15
icy of the Mexican Government, even though Plaintiff showed him a
16
letter written by Tucson City Attorney Mike Rankin dated April 12,
17
2006 which stated, in sum and substance, that exclusive use permits
18
may not be used to deny First Amendment Rights as per Gathright.
19
39.
Subsequently; Plaintiff moved to the western side of South Sixth Avenue
20
and positioned himself at the corner of south Sixth Avenue and East 13th
21
Street to view the proceedings; however Plaintiff was compelled to depart
22
the May 1, 2010 rally area altogether when TPD Sergeants Jack Wool-
23
ridge and Johnson threatened him with arrest if he did not move 1,000 feet
24
away from Armory Park.
25
40.
On March 14, 2012 Pancho Medina, acting under the direction and
26
control of Isabel Garcia and the Arizona Border Rights Foundation,
27
sent a letter to Defendant Webber requesting reservation of Armory
28
Park on May 1, 2012. (15-252COT0019)
29
30
41.
The following hand written notation appears at the top of Pancho Medinas letter: Permit # 198079 $655.00 paid in full, 3/14/12.
11
42.
On March 14, 2012 Pancho Medina, acting under the direction and
control of Isabel Garcia and the Arizona Border Rights Foundation,
sent a letter to Defendant Grey, requesting exclusive use of Armory
Park on May 1, 2012. (15-252COT020)
43.
The following hand-written notation appears at the top of Pancho Me-
dinas letter: 3/14/12 Lisa, Need more information as to why? For-
ward copy of previous year to replicate. Advise need ASAP, Reenie.
44.
On March 14, 2012 Defendant Tucson City issued a Tucson Parks and
Recreation Rental Permit, addressed to Pancho Medina, Arizona Bor-
10
der Rights Foundation, PO Box 1286, Tucson Arizona, which amongst
11
other things, acknowledged receipt of $655.00 for Permit # 198079
12
from Arizona Border Rights Foundation. (15-252COT0025)
13
45.
On March 19, 2012 Defendant Grey sent a letter to Defendant Ochoa
14
regarding Pancho Medinas request for exclusive use of Armory Park
15
on May 1, 2012. (15-252COT0030)
16
46.
The following hand-written notation appears at the top of Defendant
17
Greys letter: Forward to Reenie to work with City Attorney and TPD
18
as previous. 3.20.12 OK.
19
47.
On or about March 19, 2012 Defendants Rankin, Miranda, Judge, Gray
20
and Ochoa, and other Tucson City Officials, conferred, came to a de-
21
cision, and then granted, an Exclusive Use Permit, as per Tucson
22
City Code 21-4(a)(b) (6) and Tucson City Code Section 21-3(7)(4),
23
which unlawfully authorized Defendant Tucson May 1st Coalition for
24
Worker and Immigrant Rights to bar Plaintiffs entry into Armory Park
25
on May 1, 2012, even though Defendants Rankin, Miranda, Judge,
26
Gray and Ochoa knew such practice was a violation of the law regard-
27
ing exclusive use permits as set forth in Gathright and as stated by
12
Defendant Rankin in his April 12, 2006 memo to Tucson City Manager
Mike Hein.
48.
On March 26, 2012 Defendant Ochoa sent a letter to Pancho Medina,
confirming the reservation of Armory Park on May 1, 2012. (15-
252COT0017-18)
49.
On April 27, 2013 Defendant Ochoa sent a cover sheet and an email
communication to Defendants Rankin, Judge and McLaughlin regard-
ing the exclusive use permit and agreeing it looks fine. (Doc. (15-
252COT0023-24)
10
50.
The email chain confirms that the above Tucson Officials conferred,
11
came to an agreement, and decided to issue the May 1, 2012 Permit for
12
the exclusive use of Armory Park, knowing such practice was a viola-
13
tion of the law set forth in Gathright.
14
51.
On April 27, 2012 Defendant Grey sent an Exclusive Use Permit
15
letter to Defendant Medina, addressed to May 1st Coalition PO Box
16
1286. (15-252COT0021 to 22)
17
52.
Sometime prior to May 1, 2012 Defendant Tucson City Employees
18
Ron Odell, Diane Salyes, Paul Patterson, Eric Hickman, Anne
19
Beecroft, Anabel Teran, Bellamy Mong, Brian Cobb, Clas Leighton,
20
Marco Alcantara, Ernesto Valarde, Andy Vera and Jose Gomez met
21
with Pima County Government employees Melissa Loeschen, Nina
22
Armstrong, and Jim Faas, and Defendant Tucson May 1st Coalition for
23
Worker and Immigrant Rights members Paul Teitelbaum, Jon Miles,
24
and Pancho Medina and formulated a plan to deny Plaintiff entry into
25
Armory Park on May 1, 2012. (15-252COT0026)
26
53.
Sometime in the early morning of May 1, 2012 just prior to the Rally
27
in Armory Park, Defendants McCarthy, Sayre and Lopez attended a
28
command briefing with other high ranking Tucson Police and City
13
Officials, whose identities are unknown, and formulated a plan to vio-
late Plaintiffs First Amendment rights later that day in Armory Park.
54.
Thus; on May 1, 2012, Defendants Mc McCarthy, Sayre and Lopez,
acting in accordance with the plans described in paragraph 53, (1) po-
sitioned themselves at the entrance to Armory Park, (2) were already
in place, and (3) did block Plaintiff when he attempted to enter to speak
on matters of community concern.
55.
On December 11, 2012 the Arizona Attorney General issued a docu-
ment titled Attorney General Criminal Division Border Crimes En-
10
forcement Section Confidential Work Product, (aka The Rio Nuevo
11
Declination of Prosecution Letter) which documents an provides an-
12
other example of the modus operandi or custom and practice of Tuc-
13
son City Defendants to lose or to otherwise destroy documents to
14
protect themselves from criminal and civil liability. (Exhibit Three)
15
56.
On May 15, 2014 in Cruz vs. Miranda, C20132985, a case where De-
16
fendant City of Tucson followed the modus operandi or custom and
17
practice of Tucson City Officials to lose, destroy or otherwise fail
18
to provide public documents revealing financial improprieties and the
19
inner workings of Tucson City government, Pima County Superior
20
Court Judge Christopher Staring found that (c)lear and convincing ev-
21
idence exists that COT engaged in misconduct sufficient to warrant
22
relief pursuant to Rule 60(c)(3).
23
57. On July 31, 2014 Defendant Richard Miranda, facing a growing scan-
24
dal and public outrage for his participation in an illegal pension spiking
25
scam, retired as Tucson City Manager.
26
58.
Sometime early in 2016, in a further exercise of regional cronyism,
27
Defendant Miranda was hired as Director of Security for Tucson Re-
28
gional Wastewater Reclamation.
14
59.
On August 23, 2016 Defendant Tucson employee and Custodian of
Records Lisa Cortese signed and submitted an affidavit declaring im-
portant documents Plaintiff had sought to prove his custom-and-prac-
tice Monell claims against Defendant City of Tucson, had been re-
moved or had otherwise disappeared from government files and
could no longer be found, providing yet another example of the modus
operandi or custom-and-practice of Tucson City Defendants to lose
or to otherwise destroy documents, including computer files, to protect
themselves from criminal and civil liability.
10
60.
On August 25, 2016 Defendant Tucson employee and Custodian of
11
Records Kimberly Francis signed and submitted an affidavit declaring
12
important documents Plaintiff had sought to prove his custom-and-
13
practice Monell claims against Defendant City of Tucson, had been
14
removed or had otherwise disappeared from government files and
15
could no longer be found, providing yet another example of the modus
16
operandi or custom-and-practice of Tucson City Defendants to lose
17
or to otherwise destroy documents, including computer files, to protect
18
themselves from criminal and civil liability. (Doc 70-1 and Exhibit
19
Three)
VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH
20
21
61.
paragraphs 1-60 as though fully set forth herein.
22
23
24
25
26
27
28
29
30
Plaintiff repeats and re-alleges each and every allegation contained in
62.
The Arizona Supreme Court has stated:

Any question regarding infringement of First Amendment
rights is of the utmost gravity and importance, for it goes to the
heart of the natural rights of citizens to impart and acquire
information which is necessary for the wellbeing of a free
society. Since an informed public is the most important of all
restraints upon misgovernment, (the government may not take)
anyaction which might prevent free and general discussion
15
of public matters as seems essential to prepare the people for an

intelligent exercise of their rights as citizens. New Times Inc.
v Arizona Board of Regents, 110 Ariz. 367, 519 P.2d 169 (1974)
1
2
3
4
5
63.
Plaintiff alleges that the following Defendants violated Plaintiff rights

under the First Amendment as set forth below:
6
7
A.
Defendants McCarthy, Sayre and Lopez when they prevented Plain-
tiffs entry into Armory Park on May 1, 2012 to exercise his rights
under the First Amendment;
10
B.
Defendant City of Tucson and Defendants Miranda, Rankin, Judge,
11
Gray and Ochoa when they authorized the issuance of an exclusive
12
use permit to Defendant Tucson May 1st Coalition for Worker and
13
Immigrant Rights which permitted coalition members to exclude
14
Plaintiff from Armory Park on May 1, 2012, and
15
C.
Defendants Miranda, Rankin, Judge, Grey and Ochoa, and other un-
16
known Tucson City Officials, when they failed to take action to pro-
17
tect Plaintiffs rights after being put on notice that Plaintiffs rights
18
would be violated on May 1, 2012.
19
64.
The actions taken by Defendants Miranda, Rankin, Judge, Gray,
20
Ochoa, McCarthy, Sayre, Lopez, the City of Tucson, and others who
21
assisted named and unnamed Defendants whose identities are un-
22
known, were the proximate cause of harm done to Plaintiff.
23
VII. COUNT TWO: FIRST AMENDMENT RETALIATION
24
65.
paragraphs 1- 64 as though fully set forth herein.
25
26
27
28
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66.
Plaintiff alleges that the following Defendants engaged in acts of first

amendment retaliation as set forth below:
A.
Defendants Miranda, Rankin, Judge, Gray, Ochoa, and other Tucson

City policy makers whose identities are unknown, when they violated
16
Plaintiffs rights in retaliation for Plaintiff exposing Defendant City
of Tucson engagement in Open Border Policy, and Cronyism.
67. The actions taken by Miranda, Rankin, Judge, Gray, Ochoa, and other
Tucson City policy makers whose identities are unknown, were the
proximate cause of harm done to Plaintiff.

VIII. COUNT THREE: CONSPIRACY
6
7
68.
paragraphs 1-67 as though fully set forth herein.
8
9
69.
Plaintiff alleges that the following Defendants came to an agreement
10
and acted in concert for the purpose of denying Plaintiff his rights un-
11
der the First Amendment as set forth below:
12
A.
Defendants Miranda, Rankin, Judge, Gray, Ochoa, and other Tucson
13
City Officials whose identities are unknown, when they formulated a
14
plan to deny Plaintiff exercise of his First Amendment rights on May
15
1, 2012.
16
B.
Defendant Sayre and other Tucson City Officials whose identities are
17
unknown, when they met with members of Defendant Tucson May
18
1st Coalition for Worker and Immigrant Rights, whose identities are
19
unknown, and formulated a plan to deny Plaintiff entry into Armory
20
Park on May 1, 2012.
21
C.
Defendants McCarthy, Sayre, Lopez, and other high ranking Tucson
22
Police Officials whose identities are unknown, when they met in the
23
early morning of May 1, 2012 and formulated a plan to unlawfully
24
deny Plaintiff entry into Armory Park later that day.
25
70.
The actions taken by Defendants Miranda, Rankin, Judge, Gray,
26
Ochoa, McCarthy, Sayre, Lopez, Tucson May 1st Coalition for Worker
27
and Immigrant Rights, Tucson City, and others whose identities are
17
unknown who advised and assisted named Defendants, were the prox-
imate cause of harm done to Plaintiff.
X. CONCLUSION
To borrow a phrase from U.S. Supreme Court Justice Black, this suit tests
the ability of the United States to keep the promises its Constitution makes to
the people of the Nation. Gregory v City of Chicago, 89 S.Ct. 946, 948.
For nearly a century the Federal Courts have energetically protected the
expressive rights of those who exist on the fringes of American society
Communists, Nazis, Klansmen and Hells Angelswith the following rationale:
10
If we dont protect the rights of the minority among us, someday the govern-
11
ment will step in and deny these same rights to the rest of us.
12
13
14
15
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In Whitney v People of the State of California, 47 S.Ct. 648, 649 the Supreme Court wrote eloquently on the issue of free speech:
Those who won our independence by revolution were not cowards.
They did not fear political change. They did not exalt order at the cost
of liberty. They believed liberty to be the secret of happiness and
courage to be the secret of liberty. They believed that freedom to think
as you will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech and
assembly discussion would be futile;that the greatest menace to
freedom is an inert people; that public discussion is a political duty;
and that this should be a fundamental principle of the American
government.
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26
27
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They recognizedthat repression breeds hate; that hate menaces

stable governmentThey eschewed silence coerced by lawthe
argument of force in its worst form. Recognizing the occasional
tyrannies of governing majorities, they amended the Constitution so
that free speech and assembly should be guaranteed.
30
31
Moreover; (a)s Chief Justice Hughes wrote in De Jonge v Oregon, 299 US
32
353, 365, 260, it is only through free debate and free exchange of ideas that
33
government remains responsive to the will of the people and peaceful change is
34
effected. The right to speak freely and to promote diversity of ideas and
18
programs is therefore one of the chief distinctions that sets us apart from
totalitarian regimes. Terminiello v City of Chicago, 337 U.S. 1 (1949).
Plaintiff respectfully submits: the long-feared day of totalitarianism and
blatant disregard for the right of free political expression has finally come to
Tucson Arizona.
Defendant Tucson Officials modus operandi or long term custom, practice
and employment of coercive acts to (1) silence the voice of political and other
dissent, (2) protect a long standing enterprise to aid and abet and otherwise
encourage the unlawful entry and exploitation of Mexicos poor, (3) hide from
10
public view Defendants City of Tucson policy of appointing public officials on
11
the basis of cronyism and not on the basis of their fitness to hold public office,
12
and (4) to shield public officials from civil and criminal liability by losing or
13
otherwise destroying public documents is disgraceful, criminal, the antithesis of
14
the public interest in government transparency & the rule of law, and repugnant
15
to the very concept of government of, by and for the people.
16
Our Founding Fathers established the Courts for perilous times such as
17
these. During the great Civil Rights era, the Courts protected the political rights
18
of the American people so they could organize, assemble and accomplish what
19
in effect was a peaceful revolution; Plaintiff earnestly prays this Court will do
20
no less now.
XI. PRAYER FOR RELIEF
21
WHEREFORE, Plaintiff prays that this Court:
22
23
A)
Declare Tucson City Code Section 21-4(a)(b)(6) and Tucson City Code
24
Section 21-3(7)(4), to be in violation of rights guaranteed by the First
25
Amendment to the United States Constitution;
26
27
B)
Order Defendant Tucson City to provide all employees with mandatory

training regarding all aspects of their duty to protect the constitutional
19
rights of the people, independent from directions given by their superi-
ors;
C)
Order Chief of Police Chris Magnus to provide all Tucson Police De-
partment employees with mandatory training regarding all aspects of
their duty to protect the constitutional rights of the people, independent
from directions given by their superiors;
D)
Award Plaintiff compensatory damages in an amount deemed fair, just
and reasonable, for (1) the harm and violation of rights Plaintiff has suf-
fered as set forth above, (2) the emotional distress Plaintiff has suffered
10
by his loss of rights and reputation, (3) Plaintiffs loss of income as a
11
result of having to defend himself in three criminal prosecutions, and
12
(4) the negligent and intentional deprivation of Plaintiffs civil rights
13
under the First, Fourth, Fifth, and Fourteenth Amendments to the United
14
States Constitution, 42 U.S.C. 1983, and 42 U.S.C. 1985;
15
E)
Award Plaintiff exemplary damages in the amount sufficient to deter
16
Defendants and other government officials from abusing the preroga-
17
tives of their power and acting in a similar malicious and unlawful man-
18
ner;
19
F)
U.S.C. 1988, and
20
21
Award Plaintiff reasonable attorneys fees and costs pursuant to 42
G)
Grant such additional relief as the Court deems just and proper.
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23
24
RESPECTFULLY SUBMITTED this 17th Day of October 2016

BY:
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/Roy Warden/
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EXHIBIT ONE
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EXHIBIT TWO
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EXHIBIT THREE
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Proposed Third Amended Complaint

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Proposed Third Amended Complaint

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Case 4:14-cv-02050-DCB Document 83 Filed 10/19/16 Page 1 of 29

Roy Warden, Publisher

Case 4:14-cv-02050-DCB Document 83 Filed 10/19/16 Page 2 of 29

This is an action pursuant to the Civil Rights Act of 1871, 42 U.S.C.

negligent and intentional deprivation of the Plaintiffs constitutional

complained of occurred in Pima County Arizona.

This Court has jurisdiction over this action under 28 U.S.C.

1343(a)(3) for negligent and intentional violations of constitutional

rights as provided by 42 U.S.C. 1983 and 42 U.S.C. 1985. The

Plaintiff seeks declaratory relief, monetary damagesincluding

exemplary damagesand attorney fees and costs pursuant to 42

The Plaintiff seeks redress for violation of the Plaintiffs rights to

speech, press, petition and assembly under the First Amendment of

process of law as guaranteed by the Fourth and Fourteenth

Amendments of the Constitution of the United States.

requests a trial by jury.

IV. IDENTITY OF THE PARTIES

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff

Plaintiff Roy Warden, community activist, writer and publisher of

political newsletters Common Sense II, CS II Press, Arizona Common

Sense and Director of the Tucson Weekly Public Forum, is a citizen

times relevant to this complaint.

Case 4:14-cv-02050-DCB Document 83 Filed 10/19/16 Page 3 of 29

Defendant Richard Miranda, a member of the board of Chicanos Por

la Causa1, a radical, open border, pro-raza group associated with

Isabel Garcia, was employed by the City of Tucson, and acted

of Tucson, under color of state law, regulations, customs and policies

at all times relevant herein. Defendant Miranda is sued in his indi-

vidual and official capacities.

Defendant Mike Rankin is employed by the City of Tucson, and acted

of Tucson, under color of state law, regulations, customs and policies

at all times relevant herein. Defendant Rankin is sued in his individual

and official capacities.

Defendant Lisa Judge is employed by the City of Tucson, and acted

individually and in her official capacity as Assistant City Attorney for

policies at all times relevant herein. Defendant Judge is sued in her

individual and official capacities.

Defendant Fred Gray is employed by the City of Tucson, and acted

individually and in his official capacity as Director of Tucson Parks

vidual and official capacities.

Defendant Reenie Ochoa is employed by the City of Tucson, and acted

individually and in her official capacity as Southwest District Admin-

ulations, customs and policies at all times relevant herein. Defendant

Ochoa is sued in her individual and official capacities.

Admitted, as per RFA #17.

Case 4:14-cv-02050-DCB Document 83 Filed 10/19/16 Page 4 of 29

Defendant Kevin McCarthy was employed by the City of Tucson, and

acted individually and in his official capacity as Captain of the Tucson

Police Department, under color of state law, regulations, customs and

policies at all times relevant herein. Defendant McCarthy is sued in his

individual and official capacities.

Defendant Paul Sayre is employed by the City of Tucson, and acted

individually and in his official capacity as Lt. of the Tucson Police

Department, under color of state law, regulations, customs and policies

at all times relevant herein. Defendant Sayre is sued in his individual

Defendant Diana Lopez is employed by the City of Tucson, and acted

individually and in her official capacity as Lt. of the Tucson Police

Department, under color of state law, regulations, customs and policies

at all times relevant herein. Defendant Lopez is sued in her individual

and official capacities.

grant Rights, a political organization directed by pro raza activist Is-

abel Garcia and located in Tucson Arizona, acted as an agent of the

state under the direction or control of named or unnamed Defendants,