WARDEN V CITY OF TUCSON

Case: 17-16640, 12/26/2017, ID: 10702484, DktEntry: 8, Page 1 of 51
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
No. 17-16640
ROY WARDEN,
Plaintiff-Appellant,
v.
CITY OF TUCSON, TUCSON MAY 1ST COALITION,
MIKE RANKIN, RICHARD MIRANDA, ETC.,
Defendants – Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF ARIZONA
Case No. 4:14-cv-02050 – DCB
Honorable David Bury,

United States District Court Judge
________________________________________________________
APPELLANT’S OPENING BRIEF
Roy Warden, Appellant, in forma pauperis

6502 E. Golf Links Rd., #267
Tucson Arizona 85730
roywarden@hotmail.com
(520) 551-3496
1
TABLE OF CONTENTS
Table of Authorities 3
Jurisdictional Statement 5
Statement of the Issues 6
Standard of Review 7
Case Overview 7
Preliminary Statement 9
Issue I: Statement of Facts 10
Legal Argument: The District Court Committed Re- 26

versible Error by Violating the Law Set Forth by This
Court in Gathright v. City of Portland, 439 F.3d 573
(9th Cir. 2006)
Issue II: Statement of Facts 30
Legal Argument: The District Court Revealed Bias and 39

Committed Reversible Error by Violating Procedural
Due Process Required by F.R.Civ.P. Rule 16.
Argument Summary 43
Conclusion 45
Request for Case Reassignment 48
Prayer 49
Proof of Service 51
Certificate of Compliance 51
2
TABLE OF AUTHORITIES
Cases: Page
Board of Regents of State Colleges v. Roth, 408 U.S. 30, 31

564 (1972)
Gathright v. City of Portland, 439 F.3d 573 (9th Cir. 7, 9, 10, 15,
2006) 20, 23, 26,
28, 33, 35
Hurley v. Irish-American Gay, Lesbian & Bisexual 8
Group of Boston, 515 U.S. 557 (1995)
Mathews v. Chevron Corp., 362 F.3d 1172, 1180 7

(9th Cir. 2004)
Monell v. Dept. of Soc. Services, 436 U.S. 658 39

(1978)
U.S. v. Robin, 553 F.2d 8 (1977) 48
United States v. Urena, 659 F.3d 903, 908 (9th Cir. 7

2011)
Rules:
F.R.Civ.P. Rule 16 7, 31, 32, 35,

36, 40, 45, 46
Statutes / Ordinances
28 U.S.C. § 1343(a)(3) 5
42 U.S.C. § 1983 5
42 U.S.C. § 1985 5
28 U.S.C. § 1291 6
Arizona Taxpayer and Citizen Protection Act, 43

(2004)
3
The Support Our Law Enforcement and Safe 43

Neighborhoods Act, (Arizona SB 1070) 2010
Arizona HB 2281 (2010) 43
Tucson City Code (TCC) 21-4(a)(b) (6) 7, 21, 26-29
Tucson City Code (TCC) 21-3(7)(4) 7, 21, 26-29
Portland City Code (PCC) 20.08.060 28
Other Authorities:
Arizona Constitution 43
Declaration of Independence 38, 39
Winning on Appeal by Ruggero J. Aldisert, Sen- 47

ior United States Circuit Judge The United States
Court of Appeal for the Third Circuit
Civil Rights and Civil Liberties Litigation by Shel- 46

don Nahmod
The Nature of the Judicial Process by Benjamin 45

Cardozo
4
1 JURISDICTIONAL STATEMENT
2 On April 25, 2014 Appellant, a political activist, director
3 of the Tucson Weekly Public Forum and publisher of Ari-
4 zona Common Sense, filed the underlying case1 against
5 Tucson city officials in the U.S. Court, District of Arizona,
6 under 28 U.S.C. § 1343(a)(3) alleging negligent and inten-
7 tional violations of constitutional rights, as provided by 42
8 U.S.C. § 1983 and 42 U.S.C. § 1985. (Doc. 1)
9 Appellant filed his First Amended Complaint on August
10 14, 2014, (Doc. 6) and his Second Amended Complaint on
11 August 28, 2015. (Doc. 32)
12 The District Court denied Appellant’s Motion for Sum-
13 mary Judgment, granted Defendants’ Motion for Summary
14 Judgment and dismissed Appellant’s action on July 24,
15 2017. (Doc. 126)
16 The final order dismissing all Appellant’s claims was en-
17 tered by the Court Clerk on July 24, 2017. (Doc. 127)
1 Warden v. City of Tucson, Miranda, Rankin, etc., 4:14-

cv-02050 DCB
5
1 Appellant filed his Notice of Appeal on August 15, 2017.
2 (Doc. 130)
3 The Ninth Circuit Court of Appeals has jurisdiction to
4 hear appeals from a final decision of the U.S. District
5 Court as provided by 28 U.S.C. § 1291.
6 Appellant appeals a final Order of the Court dated July
7 24, 2017 (Doc. 126) which denied Appellant’s Motion for
8 Summary Judgment (Docs. 99-100.6), granted Defend-
9 ants’ Motion for Summary Judgement (Docs. 101-102.2)
10 and dismissed all Appellant’s claims.
11 STATEMENT OF THE ISSUES
12 I. Did U.S. District Court Judge David Bury commit re-
13 versible error when he ruled it was lawful for the City
14 of Tucson to issue “exclusive use permits” granting
15 permit holders the unfettered authority to bar an in-
16 dividual’s entry, on the basis of viewpoint, into an-
17 nounced open public meetings held in a municipal
18 park?
19 II. Did U.S. District Court Judge David Bury commit re-
20 versible error (or reveal bias) when he delegated his
6
1 judicial assistant the authority to conduct a non-
2 public, “off the record” F.R.Civ.P. 16 scheduling con-
3 ference behind the locked doors of the 9th Circuit Li-
4 brary in Tucson Arizona for the sole purpose of setting
5 deadlines2?
6 STANDARD OF REVIEW
7 Issue One: “The Court of Appeals reviews de novo mixed
8 questions of law and fact.” Mathews v. Chevron Corp., 362
9 F.3d 1172, 1180 (9th Cir. 2004)
10 Issue Two: “The Court of Appeals reviews de novo ques-
11 tions of law and the interpretation of federal rules.” United
12 States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011)
13 CASE OVERVIEW
14 In 2007 the City of Tucson began issuing “exclusive use
15 permits,” authorized under TCC 21-4(a)(b) (6) & TCC 21-
16 3(7)(4) which, in exactly in the same manner as the ordi-
17 nances overturned in Gathright v City of Portland, 439 F.3d
2 Judge Bury’s order denying Defendants’ Motion to Strike.

(Doc. 62, pages 3:28-4:6)
7
1 573 (9th Cir. 2006), granted permit holders unfettered au-
2 thority to bar entry into public gatherings discussing “im-
3 migration reform”, held every May Day in Armory Park
4 Tucson Arizona.
5 In this case the City of Tucson justified their action by
6 renewing the “Hurley3” argument (i.e. exclusive use permit
7 holders may exclude individuals from attending public
8 gatherings held in public parks in the same manner they
9 may exclude them as participants in parades) on three oc-
10 casions: (1) in a document given to Assistant Police Chief
11 Kathleen Robinson on April 27, 2006 entitled “Confidential
12 Memorandum” [Doc. 100-2, pages 3 (PSOF #6) & 16-23],
13 (2) in a September 14, 2014 Motion to Dismiss (Doc. 13)
14 which the Court rejected (Doc. 29) and (3) on February 1,
15 2017 in their Motion for Summary Judgment (Doc. 101)
16 which the Court accepted (Doc. 126), thus prompting this
17 appeal.
18
3 Hurley v. Irish-American Gay, Lesbian & Bisexual Group

of Boston, 515 U.S. 557 (1995)
8
1 PRELIMINARY STATEMENT
2 On February 24, 2006 this court issued its decision in
3 Gathright, thus protecting the “classic right of an individ-
4 ual to speak in the town square4” and striking down a Port-
5 land City ordinance granting permit holders unfettered au-
6 thority to bar an individual’s entry into announced open
7 public gatherings held in municipal parks.
8 Subsequently; on April 12, 2006, before the ink was dry
9 on Gathright, Tucson City Attorney Mike first accurately
10 stated the law5 as per Gathright and then caved to intense
11 public pressure6 by drafting a secret plan7 to violate Gath-
4 Gathright at 575
5 “The Rankin Memo,” April 12, 2006. [Doc. 100-2, pages
2 (PSOF #4) & 13-14]
6 In 2006 the Tucson media, business, political and gov-
ernment establishment were intensely committed to
“pro-Raza”, open borders, cheap Mexican labor policy.
7 Titled by Tucson City Defendants as “Confidential
Memo”, April 27, 2006 [Doc. 100-2, pages 3 (PSOF #6)
& 16-23]
9
1 right and support the “pro-Raza, open borders, cheap Mexi-
2 can labor” political movement, thus confirming the public
3 perception that in the hands of malfeasant public officials
4 law is merely a tool to protect the favored, to punish the
5 disfavored, and to enforce compliance with the unlawful
6 dictates of the state.
7 ISSUE 1: STATEMENT OF FACTS
8 Gathright: The Right to Speak in Public Parks

9
10 [N.B. In this case the District Court ruled:
11 “The Court finds no material facts in dispute

12 relevant to whether Plaintiff’s First Amend-
13 ment rights were violated. This is a case
14 where both sides draw different legal conclu-
15 sions based on essentially the same facts.”
16 (Doc. 126, page 3:5-7, emphasis added)
17
18 Thus; the following statement of facts, taken from Ap-
19 pellant’s Second Amended Complaint (Doc. 32), docu-
20 ments filed in support of Appellant’s M.S.J (Doc. 99) 8 and
21 in Appellant’s Opposition to Defendants MSJ (Doc. 116)9
22 are not in dispute.]
8 Doc. 100 through Doc. 100-6

9 Doc. 116-1 through Doc. 116-9
10
1 1. Appellant is an unpaid political activist, the pub-
2 lisher of Common Sense II, CSII Press, Arizona
3 Common Sense and the Director of the Tucson
4 Weekly Public Forum.
5 2. Appellant has spent the last 12 years investigating
6 allegations of malfeasance within the legal and po-
7 litical institutions of Pima County, including the
8 malfeasance of Tucson City officials, whom Appel-
9 lant alleges, have used their public offices (1) to aid
10 and abet, entice and invite, and otherwise encour-
11 age the unlawful entry of impoverished Mexican cit-
12 izens to supply local contractors with low cost labor,
13 (2) to advance the policy of the Mexican government
14 to exclude their poor so they may come to America
15 to earn and send home remittances10, (3) to employ
16 city administrators on the basis of cronyism and not
17 on the basis of their fitness to hold public office, and
10 Each year Mexico’s economy gains more from the sale

of illegal labor and illegal alien remittances than from
the sale of oil.
11
1 (4) to engage in acts of first amendment retaliation11
2 against those who speak out against Tucson City
3 policy or Tucson City Officials.
4 3. Ever since 2006 Appellant has publically stated that
5 Tucson City Officials, working in concert with the
6 “pro-Raza,” open borders, cheap Mexican labor po-
7 litical movement, have “aided and abetted, enticed
8 and invited, and otherwise encouraged the illegal
9 entry of impoverished Mexican citizens for economic
10 and political exploitation.” [Doc. 100-2, page 1
11 (PSOF #3); Doc. 100-3, pages 129:23-132:6]
12 4. Appellant’s political activities, including street
13 demonstrations and internet publications, have so
14 infuriated the most prominent special interests re-
15 siding in Tucson Arizona, including high profile
11 As already determined in 2006 by a federal jury against

many of the same Defendants in Gilmartin & Harris vs.
City of Tucson, CV-00-352-TUC-FRZ.
12
1 public officials and members of the legal commu-
2 nity, (including judges12), that Appellant has been
3 subjected to a decades long series of arrests, prose-
4 cutions13, etc., and, based on statute of limitations
5 considerations, Appellant’s filing of a number of fed-
6 eral claims under U.S.C. 42 § 1983 and § 1985.
12 In 2009 Appellant wrote several articles excoriating

Ruth McGregor, Chief Justice of the Arizona Supreme
Court, regarding the appearance of judicial improprie-
ties and her apparent support for “pro-Raza” politics,
held a rally in front of the Arizona Supreme Court, lob-
bied the Arizona Legislature, and, on March 24, 2009
published “Arizona Supreme Court Chief Justice Ruth
McGregor Resigns in Disgrace.”
On January 29, 2013 Appellant published “Is the Fed-

eral Court ‘Judge Shopping’ in Warden v. Miranda, Ran-
kin, et al?” regarding the apparent violation of LRCiv 3.7
which requires random judge selection.
On February 4, 2013 Appellant published “Pima County

Bar Advises Warden on Judge Shopping.”
13 Appellant is currently facing charges in CR16-612627-

MI for an article he published on Facebook criticizing
Sara Simmons, a Pima County Superior Court Judge.
13
1 5. In 2006, in Appellant, acting in his dual capacity as
2 a writer and activist, formulated a plan to investi-
3 gate the various non-profit corporations which pro-
4 vide leadership to the local “pro-Raza” open borders,
5 cheap Mexican labor political movement, and to at-
6 tend public meetings of community concern held
7 annually in Armory Park Tucson Arizona, especially
8 when they meet every May 1 to celebrate the birth-
9 day of the Communist Party and to further the in-
10 terests of globalism and permanent open borders.
11 [Doc. 100-2, page 1 (PSOF #2); Doc. 100-1, page
12 1:4-21]
13 6. On April 10, 2006 Appellant lawfully demonstrated
14 in Armory Park, Tucson Arizona to express his op-
15 position to Tucson City Open Border policy.
16 7. On April 10, 2006 15,000 members of the “pro-
17 Raza”, open border, cheap Mexican labor political
18 movement became incensed at Appellant’s lawful
19 speech which included phrases such as “Viva Za-
20 pata”, “Cesar Chavez opposed Mexican illegals
14
1 working in the melon fields of Yuma”, and “Go back
2 to Mexico and fight your revolution there.” (View
3 Riot in Armory Park.)
4 8. On April 12, 2006 Tucson City Attorney Michael
5 Rankin authored a memo which stated, in sum and
6 substance, that the law set forth in Gathright v City
7 of Portland, 439 F.3d 573 (9th Cir 2006) prevented
8 Tucson City Officials from denying Appellant entry
9 into Armory Park for the purpose of engaging in
10 public speech opposing the views expressed by per-
11 mit holders; Defendants Miranda and Grey received
12 copies of this memo. [“The Rankin Memo” Doc. 100-
13 2, pages 2 (PSOF #4) & 13-14]
14 9. Subsequent to the April 10, 2006 “Riot in Armory
15 Park”, Defendants Miranda and Rankin, along with
16 former Tucson City Manager Mike Hein, met with
17 Isabel Garcia and other members of the “pro-Raza”,
18 open borders, cheap Mexican labor political move-
19 ment, including Border Action Network, Derechos
20 Humanos, and Arizona Border Rights Foundation,

15
1 and came to an agreement to “regain the trust” of
2 the political movement by preventing Appellant
3 from entering Armory Park to speak on matters of
4 public concern whenever members of these groups
5 possessing “exclusive use permits” conducted pub-
6 lic meetings. [Doc. 100-2, page 2 (PSOF #5); Doc.
7 100-4, page 3:7-14; Doc. 100-6, page 1:27-2:5]
8 10. On April 27, 2006, in response to the agreement set
9 forth in ¶9, Defendant Mike Rankin authored the
10 “Confidential Memo” which was intended to “re-gain
11 the trust” of Isabel Garcia14 and the “pro-Raza,”
12 open borders, cheap Mexican labor political move-
13 ment by preventing Appellant from attending fu-
14 ture public meetings in Armory Park. [Doc. 100-2,
15 pages 3 (PSOF #6) & 16-22; Doc. 100-4, page 3:15-
16 20]
14 Subsequent to the April 10, 2006 “Riot in Armory Park”

Isabel Garcia stated “the community has lost trust in
the Tucson Police Department.”
16
1 11. Assistant City Manager Liz Miller and Defendants
2 Miranda and Grey received copies of the “Confiden-
3 tial Memo.” [Doc. 100-2, pages 3 (PSOF #7) & 22;
4 Doc. 100-4, page 3:15-20]
5 12. On May 1, 2007 Appellant was prevented from at-
6 tending a public meeting in Armory Park to discuss
7 matters of community concern by an unconstitu-
8 tional order of prior restraint issued by the Tucson
9 Municipal Court. [Doc. 100-2, page 3 (PSOF #8);
10 Doc. 100-3, pages 95:20-96:23]
11 13. Subsequently; between May 1, 2008 up until and
12 including May 1, 2012, “pro-Raza,” open border,
13 cheap Mexican labor activist groups, armed with
14 “exclusive use permits,” directed by Isabel Garcia15,
15 and supported by Tucson Police officers, prevented
15 During this time period, Isabel Garcia was employed as

(1) the Legal Defender of Pima County, (2) Director of
the Arizona Border Rights Foundation and (3) Director
of local, “pro-Raza” activist group Derechos Humanos.
In 2010 Garcia formed and directed Defendant-in-De-
fault May 1st Coalition for Worker and Immigrant Rights
(CWIR).
17
1 Appellant from attending public meetings in Armory
2 Park to discuss matters of community concern.
3 [(Doc. 100-2, page 3 (PSOF #9); Doc. 100-1, page
4 14:17-21]
5 14. In 2006 a federal jury in Gilmartin v Smith, Ochoa
6 and Miranda, CV 00-352 TUC FRZ found Tucson
7 City Officials had engaged in acts of Conspiracy
8 and First Amendment Retaliation and awarded
9 Plaintiffs Gilmartin and Harris 2.9 million dollars,
10 including 2 million dollars in punitive damages.
11 [Doc. 100-2, page 4 (PSOF #10); Doc. 100-1, pages
12 4:17-5:2]
13 15. From 2008 to 2012 Pima County has supplied
14 members of the “pro-Raza”, open borders, cheap
15 Mexican labor political movement with the orange
16 snow fence used to temporarily enclose the borders
17 of Armory Park. [Doc. 100-2, page 4 (PSOF #13);
18 Doc. 100-1, page 15:9-11]
18
1 16. On March 14, 2012 Pancho Medina, acting under
2 the direction of Isabel Garcia and on behalf of De-
3 fendant-in-Default May 1st Coalition for Worker and
4 Immigrant Rights, (CWIR) sent a letter to Peg Web-
5 ber requesting reservation of Armory Park on May
6 1, 2012. [Doc.100-2, pages 5 (PSOF #14) & 25]
7 17. The following hand written notation appears at the
8 top of Pancho Medina’s letter: “Permit #198079
9 $655.00 paid in full, 3/14/12.” [Doc. 100-2, pages
10 5 (PSOF #15) & 25]
12 the direction and control of Isabel Garcia and the
13 Arizona Border Rights Foundation, sent a letter to
14 Defendant Grey, requesting “exclusive use” of Ar-
15 mory Park on May 1, 2012. [Doc. 100-2, pages 5
16 (PSOF #16) & 27]
17 19. The following hand-written notation appears at the
18 top of Pancho Medina’s letter: “3/14/12 Lisa, Need
19
1 more information as to why? Forward copy of previ-
2 ous year to replicate. Advise need ASAP, Reenie.”
3 [Doc. 100-2, pages 5 (PSOF #17) & 27]
4 20. On March 14, 2012 Defendant Tucson City issued
5 a Tucson Parks and Recreation Rental Permit, ad-
6 dressed to “Pancho Medina, Arizona Border Rights
7 Foundation, PO Box 1286, Tucson Arizona”, which
8 amongst other things, acknowledged receipt of
9 $655.00 for Permit #198079 from Arizona Border
10 Rights Foundation. [Doc. 100-2, pages 5 (PSOF #18)
11 & 29]
13 the direction of Isabel Garcia and working on behalf
14 of Defendant-in-Default CWIR, wrote a letter to De-
15 fendants Fred Gray and Reenie Ochoa, employed by
16 Tucson City Department of Parks and Recreation,
17 further explaining the purpose of the exclusive use
18 permit was to “prohibit people from entering the
19 park wanting to disrupt or incite violence.” [Doc.
20 100-2, pages 6 (PSOF #19) & 31-32]
20
1 22. On March 26, 2012 Defendant Reenie Ochoa sent a
2 letter to Pancho Medina, acting under the direction
3 of Isabel Garcia and working on behalf of Defend-
4 ant-in-Default May 1st Coalition, confirming reser-
5 vation of Armory Park, permit #198079, on May 1,
6 2012. [Doc. 100-2, pages 6 (PSOF #20) & 34]
7 23. On or about March 19, 2012 Defendants Rankin,
8 Miranda, Judge, Gray and Ochoa, and other Tuc-
9 son City Officials, conferred, came to a decision,
10 and then granted, an “exclusive use permit, ” as per
11 Tucson City Code 21-4(a)(b) (6) and Tucson City
12 Code Section 21-3(7)(4), which unlawfully author-
13 ized Defendant-in-default CWIR to bar Appellant’s
14 entry into Armory Park on May 1, 2012, even
15 though Defendants Rankin, Miranda, Judge, Gray
16 and Ochoa knew such practice was a violation of
17 the law regarding “exclusive use permits” as set
21
1 forth in Gathright and as stated by Defendant Ran-
2 kin in his April 12, 2006 memo16 to Tucson City
3 Manager Mike Hein. [Doc. 100-2, page 6 (PSOF
4 #21); Doc. 100-1, pages 10:19-11:5]
5 24. On March 26, 2012 Defendant Ochoa sent a letter
6 to Pancho Medina, confirming the reservation of Ar-
7 mory Park on May 1, 2012. [Doc. 100-2, pages 7
8 (PSOF #22) & 34-35]
9 25. On April 27, 2013 Defendant Ochoa sent a cover
10 sheet and an email communication to Defendants
11 Rankin, Judge and McLaughlin regarding the exclu-
12 sive use permit and agreed it “looks good to me.”
13 [Doc. 100-2, pages 7 (PSOF #23) & 37-38]
14 26. The email chain confirms that the above Tucson Of-
15 ficials conferred, came to an agreement, and de-
16 cided to issue the May 1, 2012 Permit for the exclu-
17 sive use of Armory Park, knowing such practice was
16 “The Rankin Memo”. See ¶ 8.

22
1 a violation of the law set forth in Gathright. [Doc.
2 100-2, page 7 (PSOF #24)]
3 27. On April 27, 2012 Defendant Grey sent an “exclu-
4 sive use permit” letter to Pancho Medina, acting on
5 behalf of Defendant-in-default CWIR, addressed to
6 “May 1st Coalition PO Box 1286.” [Doc. 100-2, pages
7 7 (PSOF #25) & 40-41]
8 28. In pertinent part this “exclusive use permit” letter
9 stated:
10 “(I)t will be your responsibility to monitor the

11 access to this area and the participants in-
12 volved. In the event you wish to deny someone
13 access, or request someone leave the “exclusive
14 use” area, it will be your responsibility to ask
15 them to do so. Should anyone refuse your re-
16 quest you would need to contact the Tucson
17 Police Department staff on site via “911” (em-
18 phasis added) [Doc. 100-2, page 50]
19 29. On April 30, 2012 Defendant-in-Default CWIR in-
20 vited both (1) “the communities of Arizona and the
21 entire country to attend” the May 1, 2012 Armory
22 Park event, and (2) those who “pledge to continue to
23 fight against the serious attacks to our civil liberties
23
1 and human rights,” all worthy ideals which Appel-
2 lant mutually shares and which now motivate Ap-
3 pellant to pursue this legal action. [Doc. 116-1, page
4 11:7-18 (PSOF #9 & 10) ; Doc. 116-2, page 5; Doc.
5 100-3, pages 22:9-23:16]
6 30. Sometime in the early morning of May 1, 2012 De-
7 fendants McCarthy, Sayre and Lopez attended a
8 “command briefing” with other high ranking Tucson
9 Police and City Officials, whose identities are un-
10 known, and formulated a plan to violate Appellant’s
11 First Amendment rights later that day in Armory
12 Park. [Doc. 100-2, page 8 (PSOF #27); Doc. 100-1,
13 page 12:7-13]
14 31. On the morning of May 1, 2012 Appellant was ac-
15 companied by Jim Kay, an amateur photographer
16 and videographer, who has documented numerous
17 political events. [Doc. 100-2, page 8 (PSOF #29);
18 Doc. 100-3, page 7:1-7]
19 32. On the morning of May 1, 2012 Defendants McCar-
20 thy, Sayre and Lopez approached Appellant as he
24
1 sat on the grass across the street from the north-
2 west entrance of Armory Park [Doc. 100-2, page 8
3 (PSOF #30); Doc. 100-3, pages 11:22-12:8]
4 33. On the morning of May 1, 2012 Appellant showed
5 Defendants McCarthy, Sayre and Lopez a copy of
6 “The Rankin Memo” [Doc. 100-2, pages 9 (PSOF
7 #31) & 13-14; Doc. 100-3, pages 13:16-14:4]
8 34. Nevertheless; Defendant Sayre told Appellant the
9 TPD was going to prevent Appellant from entering
10 Armory Park to speak on matters of community
11 concern, (Doc. 100-3, pages14:21-15:13) on the ba-
12 sis that Defendant-in-Default CWIR had obtained
13 an exclusive use permit. [Doc. 100-2, page 9 (PSOF
14 #32); Doc. 100-3, pages 15:14-16:23 & 20:24-21:4]
15 35. Thus; on May 1, 2012, Defendants Mc McCarthy,
16 Sayre and Lopez, (1) positioned themselves at the
17 entrance to Armory Park, (2) were already in place,
18 and (3) working in concert with members of Defend-
19 ant-in Default CWIR, did block Appellant when he
25
1 attempted to enter to speak on matters of commu-
2 nity concern, thus violating Appellant’s rights as set
3 forth by the First Amendment and the law as set
4 forth in Gathright. [Doc. 100-2, pages 8-9 (PSOF
5 #28 & #33); Doc. 100-1, page12:14-19]
6 LEGAL ARGUMENT
7 36. In Doc. 29-1 at 9:7-19 the District Court cited the
8 challenged Tucson City ordinances as follows:
9 “Sec. 21-4. Permits, licenses and reserva-

10 tions.
11 a) Permit. A person seeking issuance of a
12 permit, license or reservation for use of a
13 park area or facility shall make such re-
14 quest in writing to the director/district
15 administrator. The request shall state
16 the park name, date and time of use and
17 all information pertaining to the pro-
18 posed use of the park facility.
19
20 b) Issuance. A permit, license or reservation

21 for use shall be obtained from the direc-
22 tor/district administrator by persons
23 conducting, operating, presenting or
24 managing any of the following activities:
25
26 (6) The reservation of any park facilities for

27 a certain person or group of persons to
28 the exclusion of others.
26
1 Sec. 21-3(7). Relating to miscellaneous activi-

2 ties. No person in a park shall:
3 (4) Interfere with permittees. Disturb or inter-

4 fere unreasonably with any person or
5 party occupying any area, or participating
6 in any activity, under the authority of a
7 permit license or reservation.” (Doc. 29,
8 page 9:1-19, emphasis added)
9 38. In Doc. 29 at 10:7 the District Court applied the
10 facts of this case to the challenged Tucson City or-
11 dinances and concluded:
12 “The Court finds the Plaintiff has alleged a fa-

13 cial challenge to the City ordinances under
14 the First Amendment in Count One.” (Doc.
15 29, page 10: 5-6)
16 39. Moreover, the District Court invited Appellant to
17 amend complaint to include § 21-3 (7)(4) because
18 “these ordinances must be reviewed together be-
19 cause the first outlines the City’s policy for issuing
20 exclusive use permits and the second outlines the
21 City’s policy prohibiting interference with permit-
22 tees.” (Doc. 29, page 9:1-6)
27
1 40. In Gathright the government issued a permit to a
2 private entity under Portland City Code (“PCC”)
3 20.08.060 which stated:
4 “[I]t is unlawful for any person unreasonably

5 to interfere with a permittee's use of a Park.”
6 The criminal trespass statute under which
7 Gathright was excluded defines trespass as
8 remaining unlawfully on the premises of an
9 event after failing to honor a permittee's law-
10 ful direction to leave the event.” (Gathright at
11 575)
12
13 41. The Gathright Court further stated:
14 “According to the City's policy, a permittee

15 may order a person to leave an open event
16 when that person “unreasonably” interferes
17 with the permittee's use of the licensed
18 space. The police will enforce that order and
19 the attendee's failure to obey the permittee is
20 a Class C misdemeanor under Oregon crimi-
21 nal law.” (Id. at 575)
22 42. In Warden v. Tucson, the government issued a per-
23 mit to a private entity (CWIR) under Tucson City
24 Code (“TCC”) 21-4(a)(b) (6) & TCC 21-3(7)(4) which
25 stated:
26 “(I)t will be your responsibility to monitor the

27 access to this area and the participants in-
28 volved. In the event you wish to deny someone
29 access, or request someone leave the “exclu-
30 sive use” area, it will be your responsibility to
31 ask them to do so. Should anyone refuse your
28
1 request you would need to contact the Tuc-

2 son Police Department staff on site via “911”
3 (¶28; Doc. 100-2, page 40, emphasis added)
4 43. Thus, the Tucson ordinances and permits chal-
5 lenged herein are virtually identical in wording and
6 application to the Portland ordinances overturned
7 in Gathright.
8 44. The Gathright Court overturned the challenged or-
9 dinance and permit because “(t)he policy (ordi-
10 nances and permits) enables private citizens to ex-
11 clude people from events in public forums solely on
12 the basis of the content of their speech.” Gathright
13 at 577, footnote 3.
14 45. In this case both TCC 21-4(a)(b) (6) & TCC 21-3(7)(4)
15 and the “exclusive use permit” they authorize are
16 constitutionally offensive for the identical reasons
17 the Court found in Gathright, and therefore must be
18 overturned.
19
20
29
1 ISSUE 2: STATEMENT OF FACTS
2 Rule 16: The Importance of Procedural Due Process
3 46. In Board of Regents of State Colleges v. Roth, 408
4 U.S. 564 (1972) the U.S. Supreme Court stated:
5 “[I]t is procedural due process that is our fun-

6 damental guarantee of fairness, our protec-
7 tion against arbitrary, capricious, and unrea-
8 sonable government action.
9
10 "It is not without significance that most of the
11 provisions of the Bill of Rights are proce-
12 dural. It is procedure that spells much of the
13 difference between rule by law and rule by
14 whim or caprice. Steadfast adherence to
15 strict procedural safeguards is our main as-
16 surance that there will be equal justice under
17 law. “It may be argued that to provide proce-
18 dural due process to all (pro-se litigants)
19 would place an intolerable burden on the ma-
20 chinery of (the courts).
21
22 “As long as the (court) has a good reason for
23 its actions it need not fear (open court and
24 on-the-record proceedings). It is only where
25 the (court) acts improperly that procedural
26 due process is truly burdensome. And that is
27 precisely when it is most necessary.
28
29 “Let it not be overlooked that due process of
30 law is not for the sole benefit of a (pro-se liti-
31 gant). It is the best insurance for the (court)
32 itself against those blunders which leave
33 lasting stains on a system of justice—blun-
34 ders which are likely to occur when reasons
30
1 need not be given and when the reasonable-

2 ness and indeed legality of judgments need
3 not be subjected to any appraisal other than
4 one’s own.” Justice Marshall citing Justice
5 Douglas from several cases. (Roth at 589-
6 591)
7 47. On September 22, 2014 Appellant filed his Motion
8 to set Scheduling Conference as per F.R.Civ.P. 16
9 (Doc. 15), explaining how a previous case (Warden
10 v. Miranda, 4:11-cv-04060 DCB BPV) had lan-
11 guished before the court (and eventually been dis-
12 missed) because counsel for Defendant Tucson City
13 Officials had “played lawyer games and engaged in
14 wasteful pre-trial activities to deter (Appellant) from
15 suing his government.” (Doc. 15, page 3:9-12)
16 48. Additionally, Appellant stated:
17 “Regarding the meaning and the purpose of

18 the law and the F.R.Civ.P. Plaintiff respect-
19 fully submits: justice is achieved only by the
20 law’s faithful and holistic application. Law
21 does not serve the interests of justice when
22 the court applies it arbitrarily, or capriciously
23 or in a manner which favors one side or the
24 other.” (Doc. 15, page 3:4-8)
31
1 49. On December 14, 2015 Judge Bury set the Sched-
2 uling Conference date for January 26, 2016, in-
3 forming the parties that (1) the conference would be
4 conducted by his judicial assistant Greer Barkley
5 (Doc 41; 1:14-16) and (2) “(c)ounsel are directed to
6 consult the Federal Rules of Civil Procedure for the
7 objectives of the conference.” (Doc 41 page 1:20-24,
8 emphasis added.)
9 50. Appellant “consult(ed) the Federal Rules of Civil Pro-
10 cedure for the objectives of the conference”, as di-
11 rected, and submitted his Case Management Plan
12 (Doc. 44) which forewarned the Court of difficulties
13 he expected to encounter at the Case Management
14 Conference as follows:
15 “Defendant’s Proposed Case Management

16 Plan sets forth many possible boilerplate ar-
17 guments and defenses, some patently ab-
18 surd, simply because Defendants have ig-
19 nored the substance and the spirit of the
20 Court Order Denying Motion to Dismiss (Doc.
21 29), the Court’s Order re the parties duty to
22 “confer and discuss” while preparing for a
23 scheduling conference, (Doc. 4) and the ex-
24 press meaning of F.R.Civ.P. Rule 16. Plaintiff
25 respectfully submits: had counsel obeyed the
32
1 Court’s Order (Doc. 41) and accepted Plain-

2 tiff’s clear invitations to “meet, confer and
3 discuss” the issues, defenses, the admissibil-
4 ity of evidence, etc. the parties could have
5 simplified this case, “avoided wasteful pre-
6 trial procedures” and resolved many ques-
7 tions without wasting more of the Court’s
8 valuable time.
9
10 “Apparently Defendants intend to (1) engage
11 in the shop worn tactic of “delay, deny, and
12 obstruct” to delay these proceedings, confuse
13 the issues and “waste (the Court’s, and Plain-
14 tiff’s), time and resources” in express viola-
15 tion of the provisions of F.R.Civ.P. Rule 16,
16 by re-litigating the Court’s ruling on Gathright
17 as set forth in this Court’s denial of their Mo-
18 tion to Dismiss (Doc. 29) and (2) to otherwise
19 advance frivolous defenses that a meaningful
20 pre-scheduling discussion would certainly
21 have avoided.” (Doc.44, pages 3:22-4:17, em-
22 phasis added)
23 51. On January 26, 2016 Appellant and his legal assis-
24 tant, Ken Gareau, attended the Rule 16 Scheduling
25 Conference and was dismayed that in spite of Ap-
26 pellant’s specific request to be “on the record,” the
27 conference was held “off the record” behind the
28 locked doors of the 9th Circuit Court Library. (Doc.
29 47, page 3:1-17)
33
1 52. On January 27, 2016, the day following the sched-
2 uling conference, Appellant sent a letter to Presiding
3 Judge Raner Collins (Doc. 46) (and copy to every Ar-
4 izona District Court Judge):
5 a) Informing them the Scheduling Conference was
6 held secretly behind locked doors in the District
7 Court library, with the public excluded, and
8 b) Asking Judge Collins17 two questions: (1)“by
9 what authority may a District Court Judge grant
10 a law clerk the authority to function as a Magis-
11 trate Judge?” and (2) “by what authority may the
12 District Court conduct secret off-the-record pro-
13 ceedings out of public view, behind locked
14 doors?” (Doc. 46)
15 53. Judge Collins failed to respond.
16 54. On January 31, 2016 Appellant filed his Memoran-
17 dum of Court Violations (Doc. 47) which set forth
17 Judge Collins failed to respond to Appellant’s request.

34
1 Appellant’s frustration that the clearly stated objec-
2 tives of the F.R.Civ.P Rule 16 Scheduling Confer-
3 ence were not even acknowledged, as follows:
4 “On several occasions I tried to read specific

5 passages directly from F.R.Civ.P. Rule 16.
6 However; Ms. Barkley either interrupted or
7 responded to my quotations with bored indif-
8 ference, once rolling her eyes. She kept stat-
9 ing “You don’t understand. That’s not the
10 way we do it. That’s not the way it’s done.
11 And I’ve been doing this for 25 years.” (Doc.
12 47, page 4:8-13)
13 55. Ms. Barkley, referring to the numerous categories of
14 topics to be discussed to “facilitate the just, speedy,
15 and inexpensive disposition of the action18” stated:
16 “I’m just here to get dates” (for the scheduling or-
17 der.) (Doc. 47, page 5:1-5)
18 56. Appellant, fearing that Tucson City would re-liti-
19 gate the Gathright issue19 and thus further engage
20 in “wasteful pre-trial activities” reported as follows:
18 The purpose of the Rule 16 Scheduling Conference.

19 See ¶50
35
1 “Ms. Barkley affirmed and endorsed20 De-

2 fendants’ Counsel’s intent to re-litigate con-
3 stitutional issues already decided by the
4 Court, when the Court denied Defendants’
5 Motion to Dismiss.” (Doc. 47, page 5:6-14)
6 57. Appellant concluded his “Memorandum of Court Vi-
7 olations” by stating:
8 “Thus; even though I made a considerable ef-

9 fort to address all issues relating to “discour-
10 aging wasteful pretrial activities,” and other
11 issues as provided by F.R.Civ.P. 16 (2) 3 as
12 cited above, Ms. Barkley continued to rebuff
13 my effort, stating: “You don’t seem to under-
14 stand Mr. Warden. That’s not the way we do
15 it.” (Doc. 47, page 5:15-20)
16 58. On February 22, 2016 Tucson City filed a Motion
17 to Strike Appellant’s Memorandum and Affidavit
18 (Doc. 51) which argued:
19 a) “Plaintiff further claims that Defendants

20 planned to relitigate previously decided is-
21 sues and engage in wasteful pretrial activ-
22 ities when they reserved the right to chal-
23 lenge future pleadings.” (Doc. 51, page
24 2:9-10)
25
26 b) “Plaintiff has now used the Court’s filing

27 procedure to insert threats of violence into
28 the record. Plaintiff asserts the court and
29 the law will not protect him and that ‘when
20 See Doc. 47 page 5 footnote 4: “No Mr. Warden. You’re

wrong. Nothing has been decided yet.”
36
1 the law fails, we are left with nothing but

2 collective action, and our guns, to protect
3 ourselves.’” (Doc. 51, page 2:12-15, em-
4 phasis added)
5
6 c) “Finally in a public document such as this
7 case’s record, the innuendo and complain-
8 ing are prejudicial to the Defendant. Un-
9 addressed, they tend to cast the Defend-
10 ants and the legal process in a bad light
11 with their half-truths.” (Doc. 51, page
12 3:23-25, emphasis added)
13
14 59. On March 1. 2016 Appellant filed his Opposition
15 to Motion to Strike (Doc. 52), responding in per-
16 tinent part as follows:
17 a) When conducting a Rule 16 Scheduling Con-

18 ference “the task should be handled by a dis-
19 trict judge..(who may)..delegate the duties to
20 a magistrate.” (Doc. 52, page 2:17-24, as
21 cited from Rule 16)
22
23 b) “Please review Defendants case management

24 plan (Doc. 43, page 2:7-18) where they man-
25 ifest their intention to offer the following de-
26 fenses: (H) ‘Plaintiff’s Complaint fails to state
27 a claim upon which relief can be granted; (I)
28 ‘Plaintiff has not stated and/or cannot prove
29 a constitutional claim against Defendants.’
30 Defendants’ claimed defenses set forth in
31 sections H and I have already been litigated
32 and determined by the Order of this Court
33 (Doc. 29) denying Defendant’s Motion to Dis-
34 miss, (Doc. 13) and may only be re-litigated
37
1 post trial at the Ninth Circuit.” (Doc. 52, page

2 4:7-19, emphasis added)
3
4 60. Regarding Appellant’s “threats of violence” that De-
5 fendants refer to in their Motion to Strike (Doc. 51,
6 page 2:12-15), Appellant, (forever mindful of the
7 meaning of Jefferson’s admonition stated in our
8 Declaration of Independence), sets forth the full con-
9 text of his comment below:
10 “The F.R.Civ.P. were written to achieve the

11 expeditious resolution of cases. In civil litiga-
12 tion, the F.R.Civ.P. set forth an orderly path
13 to due process. Plaintiff respectfully submits;
14 how then can the courts, as an institution, ex-
15 pect the people to follow the law when the
16 courts, as set forth above, show such clear
17 contempt for it? We the People know we are
18 bound by the Rule of Law; we are harshly
19 held to answer whenever we are in violation
20 of it. The Arizona Constitution states: “the
21 purpose of government (and its instrument
22 the law) is to protect the individual rights of
23 the people.” We the lawful people have noth-
24 ing but the law to protect ourselves from the
25 predations of the unlawful, including govern-
26 ment. And when the law fails, we are left with
27 nothing but collective action, and our guns21,
21
“We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator
with certain unalienable Rights,that among these are
Life, Liberty and the pursuit of Happiness.  That to
38
1 to protect ourselves. Plaintiff respectfully

2 submits; this country may be on the verge of
3 civil war. In this election year the issue of il-
4 legal immigration bitterly divides us, and
5 arouses our basest passions. Take heed. The
6 country is now a tinderbox. The undeniable
7 fact that the Bury Court is violating the law
8 to protect the very same Tucson City Officials
9 who constructed and now operate Open Bor-
10 der Policy as set forth in the pleadings is a
11 match, threatening to set off a conflagration,
12 and a revolution, which will consume us all.”
13 (Doc. 47, page 6:23-7:10)
14 LEGAL ARGUMENT
15 61. Appellant is astonished that the principle of “cus-
16 tom and practice,” set forth in Monell v. Dept. of Soc.
17 Services, 436 U.S. 658 (1978) as a pre requisite to
secure these rights, Governments are instituted among

Men, deriving their just powers from the consent of the
governed,  That whenever any Form of Government
becomes destructive of these ends, it is the Right of the
People to alter or to abolish it, and to institute new Gov-
ernment, laying its foundation on such principles and
organizing its powers in such form, as to them shall
seem most likely to effect their Safety and Happiness.”
39
1 finding Title 42 §1983 liability for government-cre-
2 ated injury to the people, may be applied directly to
3 the conduct of the Bury Court.
4 62. In this case Judge Bury revealed his “custom and
5 practice” (1) to shirk his duty as a U.S. District
6 Court Judge and delegate authority granted by con-
7 gress to his legal assistant, (2) to permit the requi-
8 site F.R.Civ.P Rule 16 hearing to be held “off-the-
9 record” behind locked doors, and (3) to altogether
10 ignore his responsibility to “avoid wasteful pretrial
11 practices” for the simple purpose of “setting sched-
12 uling dates” as set forth below:
13 “Plaintiff complains that the Court did not ex-

14 ercise its discretion under Fed. R. Civ. P. 16
15 (c)(2) to use the scheduling conference as an
16 opportunity to take action on matters of
17 merit such as formulating and simplifying is-
18 sues or eliminating frivolous claims and de-
19 fenses. See (Rule 16(c)(2) (listing matters a
20 court may consider)). This Court, however,
21 uses the Rule 16 Scheduling Conference for
22 setting case management deadlines for con-
23 ducting discovery and filing dispositive mo-
24 tions. Fed. R. Civ. P. 16(c)(2)(E),(F).” (Doc. 62,
25 pages 3:28-4:6)
40
1 63. Moreover; during Warden-Court dialog in a “on-the-
2 record” Rule 16 hearing in a companion case —
3 Warden v. Miranda, 4:11-cv-00460 DCB-BPV —
4 held on March 6, 2014, Magistrate Judge Bernardo
5 Velasco referred to custom and practice as “the way
6 things are done in court…because every trade or
7 practice has a way of doing things”:
8 THE COURT:
9 Okay. What I'm going to do with respect to
10 your suggested deadlines and those of the
11 defendant, I'm going to adopt the defendants'
12 proposed deadlines for discovery on the case
13 as it exists today.
14 With respect to -- one of the things you need

15 to do is you need to do a little bit of research
16 on not so much what the law is because I
17 think I'm sure you feel you know what the
18 law is. What you need to do is find something
19 that will inform you about how things are
20 done in court. Okay?
21 MR. WARDEN:
22 Are these things other than what is set forth
23 in the Rules of Civil Procedure?
24 THE COURT:
25 In some respects. In other words, almost
26 every trade or practice has a way of doing
27 things. And they are not necessarily – for ex-
28 ample, an instruction – you can add the in-
29 gredients for baking a cake. They list them
30 out. But they don't necessarily tell you how
41
1 to mix them, when to mix them, things like

2 that.
3 So you need to look at the rules of procedure

4 to see what the rules are, figure out what the
5 law is, and then read something that gives
6 you some idea of how lawyers practice.
7 MR. WARDEN:
8 May I respond to that just briefly?
9 THE COURT:
10 Sure.
11 MR. WARDEN:
12 I think what we are talking about is the cus-
13 tom and practice of the court as it might poten-
14 tially deviate from the rules. And that's exactly
15 the nature of this complaint against Tucson
16 city officials.
17 That they engaged in a custom and practice

18 not covered by the rules and therefore we
19 have legal contentions before Your Honor to-
20 day.
21 So I would read anything Your Honor would

22 offer to me to read, but other than to read the
23 rules and the case law supporting those
24 rules, I wouldn't know how else to proceed.
25 THE COURT:
26 Okay. Okay. As long as you understand that
27 there's a certain decorum expected.
28 MR. WARDEN:
29 Are you talking about decorum in front of
30 Your Honor and the court?
31
32 THE COURT:
33 Right.
42
1 MR. WARDEN:
2 Certainly. I would not -- if there's anything
3 specific I can read. I would never do anything
4 to interfere with that. Certainly not know-
5 ingly. (Warden v. Miranda, 4:11-cv-00460
6 DCB-BPV Doc. 131, pages 9:4-10:17)
7 64. Appellant respectfully requests this Court take Ju-
8 dicial Notice of Warden v. Miranda, 4:11-cv-00460
9 DCB-BPV where the full transcript of the March 6,
10 2014 Rule 16 scheduling conference cited above
11 can be found at Doc. 131, pages 9:4-10:17.
12 ARGUMENT SUMMARY
13 The Arizona Constitution, in pertinent part, provides:
14 “All political power in inherent in the people,

15 and government derives their just powers
16 from the consent of the governed, and are es-
17 tablished to maintain individual rights.” (The
18 Arizona Constitution, Section 2)
19 To which Appellant respectfully adds: We the People
20 have consented to the Rule of Law.
21 Law, as written by We the People and as interpreted by
22 written decisions made by our appellate courts, is the
23 mechanism—the process—by which our individual rights
24 are maintained.
43
1 What do we have here in this case?
2  Mere Judicial Assistants performing as District Court
3 Judges;
4  The public excluded from “off the record” hearings
5 held behind locked doors;
6  District Court Judge Bury first accepting this Court’s
7 Gathright decision (Doc. 29) then rejecting it (Doc.
8 126)
9  District Court Judge Bury ignoring the purpose of
10 F.R.Civ.P. Rule 16 (to protect the public from “waste-
11 ful pretrial procedures” and lawyers who “run up the
12 tab” of already expensive litigation) instead using the
13 process for the simple administrative function of set-
14 ting scheduling dates.
15 Appellant respectfully repeats sentiments set forth in
16 ¶60:
17 “How then can the courts, as an institution,

18 expect the people to follow the law when the
19 courts, as set forth above, show such clear
20 contempt for it?”
21
44
1 In this case, Judge Bury committed reversible error
2 when he (1) ignored this Court’s statement of law in Gath-
3 right, (2) issued two22 conflicting rulings on the meaning of
4 Gathright, and (3) violated the law and revealed bias when
5 he intentionally ignored the clear meaning of F.R.Civ.P
6 Rule 16.
7 CONCLUSION
8 “The great tides and currents which engulf the rest of
9 men, do not turn aside in their course and pass the judges
10 by.”23
11 It is impossible to separate the district court’s rulings,
12 which are the subject of this appeal, from the underlying
13 local community politics inspiring the contentious border
14 issues which have rocked this state since the passing of
15 the Arizona Taxpayer and Citizen Protection Act in 2004,
16 the April 10, 2006 Riot in Armory Park, the Arizona Legis-
22 Doc. 29 & Doc.126

23 The Nature of the Judicial Process, B. Cardozo 168
(1921)
45
1 lature’s 2010 passing of SB 1070 and HB 2281, and Ap-
2 pellant’s excoriations of Tucson City and Pima County
3 Open Border Policy in front of the Tucson City Council, the
4 Pima County Board of Supervisors and in street demon-
5 strations, which continue to this date.
6 “To the federal judiciary, guardians of the rule of law.24”
7 Appellant respectfully repeats the stirring words chis-
8 eled in stone over the entrance to the U. S. Supreme Court:
9 “Equal Justice Under Law.”
10 In this case Appellant wasn’t afforded “equal justice” or
11 even the appearance of equal justice. Quite simply; the dis-
12 trict court judge ignored the law as clearly stated by this
13 Court in Gathright, and required by F.R.Civ.P. 16 and, by
14 deft manipulation and use of Clintonesque phraseology,
15 put his thumb on the scales of justice and denied Appel-
16 lant his day in court.
24 Sheldon Nahmod, Civil Rights and Civil Liberties Litiga-

tion: The Law of Section 1983 (4th edition)
46
1 We the People, through our congress and our judiciary,
2 invest district court judges with discretion or, “the power
3 exercised by courts to determine questions to which no
4 strict rule of law is applicable but which, from their nature,
5 and the circumstances of the case, are controlled by the
6 personal judgment of the court.25”
7 However; we do not invest district court judges with the
8 lawful authority to ignore the meaning and spirit of the
9 F.R.Civ.P. and clearly stated case law.
10 Both We the People and the legal establishment we em-
11 ploy hold mutual respect and expectations for each other:
12 in America, all of us—citizen and government official
13 alike—are (theoretically) bound by the rule of law.
25 Winning on Appeal pg. 67. Ruggero J. Aldisert, Senior

United States Circuit Judge, The United States Court of
Appeals for the Third Circuit, citing Bouvier’s Law Dic-
tionary (1914).
47
1 Our government holds we the people to that standard.
2 For a free people to expect anything less than “equal jus-
3 tice under law” from their government, and their honored
4 judiciary, is to submit to the rule of men, and tyranny.
5 REQUEST FOR CASE REASSIGNMENT
6 “(I)n a few circumstances there may be unu-

7 sual circumstances where ‘both for the
8 judge’s sake and the appearance of justice,’
9 see United States v, Schwartz, 500 f.2d 1350,
10 1352 (2d Cir. 1974) an assignment to a dif-
11 ferent judge is ‘salutary and in the public in-
12 terest, especially as it minimizes even a sus-
13 picion of partiality”, see United Stated v. Si-
14 mon, 393 F.2d 90, 91 (2d Cir.1968) In such
15 circumstances our remand does not imply
16 any personal criticism of the trial…judge.”
17 U.S. v. Robin, 553 F.2d 8 (1977)
18 Judge Bury has been assigned to Appellant’s last four
19 case filings dating back to 2007 in Warden v. Garcia, 4:07-
20 cv-00664 in spite of LRCiv.P. 3.7 which requires “random
21 automated selection”.
22 Judge Bury dismissed all four cases; Appellant filed and
23 won appeals in 2 of those actions (14:15803 & 14-16440)
24 and the cases were sent back to Judge Bury, consolidated
25 and are now before Judge Velasco cited above in ¶63.
48
1 Appellant respectfully submits: Judge Bury’s willful
2 misapplication of the law and Judge Velasco’s explanation
3 of the “custom and practice” set forth in ¶ 63 should pre-
4 clude both of them from presiding over any future proceed-
5 ings.
6 PRAYER
7 Appellant respectfully requests this Court to:
8  Reverse the order dated July 24, 2017 (Doc.126);
9  Declare TCC 21-4(a)(b) (6) & TCC 21-3(7)(4) and
10 Tucson’s “exclusive use permits” to be unconstitu-
11 tional;
12  Remand this case back to the District Court;
13  Remove Judges Bury and Velasco from presiding
14 over further proceedings;
15  Order the District Court Clerk to use the process
16 of “random automated selection” mandated by
17 L.R.Civ.P. 3.7 to reassign this case to the next
18 available judge;
19  Issue a clear, unambiguous statement of the law
20 regarding the F.R.Civ.P. precluding district court

49
1 judges from ignoring the spirit (if not the direct
2 meaning) of Rule 16, and
3  Provide Appellant such other relief the Court
4 deems appropriate.
5 Respectfully Submitted this 26th day of December 2017.
6
7 /s/ Roy Warden, Appellant in forma pauperis
8
9
10
11
12
13
14
15
16
17
18
19
20
50
1 CERTIFICATE OF SERVICE
2 I hereby certify that I electronically filed the foregoing

3 with the Clerk of the Court for the United States Court of
4 Appeals for the Ninth Circuit by using the appellate
5 CM/ECF system on December 26, 2017.
6 I certify that all participants in the case are registered
7 CM/ECF users and that service will be accomplished by
8 the appellate CM/ECF system on December 26, 2017.
10
11
12
13
14
15 CERTIFICATION OF COMPLIANCE
16 I Roy Warden, Appellant appearing in forma pauperis in

17 17-16640, do herein declare, swear and affirm as follows:
18 The foregoing Appellant Opening Brief complies with the
19 Rules of Civil Appellate Procedure for the 9th Circuit Court
20 of Appeals.
21 The font used is Bookman Old, font size 14.
22 This document contains 7407 words, including foot-
23 notes and excluding the Cover Page, Table of Contents and
24 Table of Authorities.
25

27
51

WARDEN V CITY OF TUCSON

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WARDEN V CITY OF TUCSON

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Case: 17-16640, 12/26/2017, ID: 10702484, DktEntry: 8, Page 1 of 51

UNITED STATES COURT OF APPEALS

ON APPEAL FROM THE UNITED STATES DISTRICT

Case No. 4:14-cv-02050 – DCB

Honorable David Bury,

APPELLANT’S OPENING BRIEF

Roy Warden, Appellant, in forma pauperis

Statement of the Issues 6

Issue I: Statement of Facts 10

Legal Argument: The District Court Committed Re- 26

Issue II: Statement of Facts 30

Legal Argument: The District Court Revealed Bias and 39

Request for Case Reassignment 48

Board of Regents of State Colleges v. Roth, 408 U.S. 30, 31

Mathews v. Chevron Corp., 362 F.3d 1172, 1180 7

Monell v. Dept. of Soc. Services, 436 U.S. 658 39

U.S. v. Robin, 553 F.2d 8 (1977) 48

United States v. Urena, 659 F.3d 903, 908 (9th Cir. 7

F.R.Civ.P. Rule 16 7, 31, 32, 35,

Arizona Taxpayer and Citizen Protection Act, 43

The Support Our Law Enforcement and Safe 43

Arizona HB 2281 (2010) 43

Tucson City Code (TCC) 21-4(a)(b) (6) 7, 21, 26-29

Tucson City Code (TCC) 21-3(7)(4) 7, 21, 26-29

Portland City Code (PCC) 20.08.060 28

Declaration of Independence 38, 39

Winning on Appeal by Ruggero J. Aldisert, Sen- 47

Civil Rights and Civil Liberties Litigation by Shel- 46

The Nature of the Judicial Process by Benjamin 45

2 On April 25, 2014 Appellant, a political activist, director

3 of the Tucson Weekly Public Forum and publisher of Ari-

4 zona Common Sense, filed the underlying case1 against

5 Tucson city officials in the U.S. Court, District of Arizona,

6 under 28 U.S.C. § 1343(a)(3) alleging negligent and inten-

7 tional violations of constitutional rights, as provided by 42

8 U.S.C. § 1983 and 42 U.S.C. § 1985. (Doc. 1)

9 Appellant filed his First Amended Complaint on August

10 14, 2014, (Doc. 6) and his Second Amended Complaint on

11 August 28, 2015. (Doc. 32)

12 The District Court denied Appellant’s Motion for Sum-

13 mary Judgment, granted Defendants’ Motion for Summary

14 Judgment and dismissed Appellant’s action on July 24,

15 2017. (Doc. 126)

16 The final order dismissing all Appellant’s claims was en-

17 tered by the Court Clerk on July 24, 2017. (Doc. 127)

1 Warden v. City of Tucson, Miranda, Rankin, etc., 4:14-

1 Appellant filed his Notice of Appeal on August 15, 2017.

3 The Ninth Circuit Court of Appeals has jurisdiction to

4 hear appeals from a final decision of the U.S. District

5 Court as provided by 28 U.S.C. § 1291.

6 Appellant appeals a final Order of the Court dated July

7 24, 2017 (Doc. 126) which denied Appellant’s Motion for

8 Summary Judgment (Docs. 99-100.6), granted Defend-

9 ants’ Motion for Summary Judgement (Docs. 101-102.2)

10 and dismissed all Appellant’s claims.

11 STATEMENT OF THE ISSUES

12 I. Did U.S. District Court Judge David Bury commit re-

13 versible error when he ruled it was lawful for the City

14 of Tucson to issue “exclusive use permits” granting

15 permit holders the unfettered authority to bar an in-

16 dividual’s entry, on the basis of viewpoint, into an-

17 nounced open public meetings held in a municipal

20 versible error (or reveal bias) when he delegated his