Case 4:18-cv-00096-LCK Document 51 Filed 04/26/19 Page 1 of 18

Roy Warden, Publisher

Arizona Common Sense
6502 E. Golf Links Road #267
Tucson Arizona 85730
[email protected]
520 551-3496

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

ROY WARDEN, Case No. 4:18-cv-00096 LCK

Plaintiff, In Forma Pauperis

Vs
CHRIS MAGNUS, individual- SECOND AMENDED COM-
PLAINT FOR DECLARATORY
ly and in his official capacity RELIEF, AND DAMAGES, FOR
as Chief of the Tucson Police NEGLIGENT AND INTEN-
Department; JUSTIN DOG- TIONAL VIOLATIONS OF TI-
TLE 42 U.S.C. § 1983 AND
GETT, individually and in TITLE 42 U.S.C. §1985
his official capacity as Lieu-
tenant of the Tucson Police
Department; RYAN SACHS, THE HON. LYNETTE C. KIM-
individually and in his offi- MINS
cial capacity as Officer of the
Tucson Police Department;
ROB BRANDT individually
and in his official capacity
as SGT. Of the Tucson Po-
lice Department; THE CITY
OF TUCSON; and DOES 1-
100,
Defendants.

1 COMES NOW the Plaintiff Roy Warden, with his Complaint

2 for Damages, against the Defendants, named and unnamed
3 above, and as grounds therefore alleges:
4

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1 I. INTRODUCTION

2 1. This is an action pursuant to the Civil Rights Act of

3 1871, 42 U.S.C. §1983, 42 U.S.C. §1985 and 28 U.S.C.
4 § 1343, seeking redress for the negligent and inten-
5 tional deprivation of the Plaintiff’s constitutional
6 rights. Venue is proper in the 9th District of Arizona, as
7 all of the acts complained of occurred in Pima County
8 Arizona.
9 II. JURISDICTION
10 2. This Court has jurisdiction over this action under 28
11 U.S.C. § 1343(a)(3) for negligent and intentional viola-
12 tions of constitutional rights as provided by 42 U.S.C.
13 §1983 and 42 U.S.C. §1985. The Plaintiff seeks in-
14 junctive relief, declaratory relief and monetary damag-
15 es—including exemplary damages—as well as attorney
16 fees and costs pursuant to 42 U.S.C. §1988.
17 3. The Plaintiff seeks redress for violation of the Plaintiff’s
18 rights to speech, press, petition and assembly under
19 the First Amendment of the Constitution of the United
20 States, the Plaintiff’s right to be free of illegal seizures
21 under the Fourth Amendment of the Constitution of
22 the United States, the Plaintiff’s right to be free from
23 false arrest, malicious prosecution and imprisonment
24 as provided for by the Fourth and Fourteenth Amend-
25 ments of the Constitution of the United States, and the
26 Plaintiff’s right to due process of law as guaranteed by

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1 the Fourth and Fourteenth Amendments of the Consti-

2 tution of the United States.

3 III. REQUEST FOR JURY TRIAL

4 4. Pursuant to Rule 38 of the Federal Rules of Civil Pro-

5 cedure, Plaintiff requests a trial by jury.

6 IV. IDENTITY OF THE PARTIES

7 5. Plaintiff Roy Warden, community activist, writer and

8 publisher of political newsletters Common Sense II, CS
9 II Press, Arizona Common Sense and Director of the
10 Tucson Weekly Public Forum, is a citizen of the United
11 States and was a resident of Pima County Arizona at
12 all times relevant to this complaint.
13 6. Defendant Chris Magnus is employed by the City of
14 Tucson, and acted individually and in his official ca-
15 pacity as Chief of the Tucson Police Department, un-
16 der color of state law, regulations, customs and poli-
17 cies at all times relevant herein. Defendant Magnus is
18 sued in his individual and official capacities.
19 7. Defendant Justin Doggett is employed by the City of
20 Tucson, and acted individually and in his official ca-
21 pacity as Lieutenant of the Tucson City Police Depart-
22 ment, under color of state law, regulations, customs
23 and policies at all times relevant herein. Defendant
24 Doggett is sued in his individual and official capacities.
25 8. Defendant Officer Ryan Sachs is employed by the City
26 of Tucson, and acted individually and in his official

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1 capacity as Tucson City Police Officer, under color of

2 state law, regulations, customs and policies at all
3 times relevant herein. Defendant Sachs is sued in his
4 individual and official capacities.
5 9. Defendant Sgt. Rob Brandt is employed by the City of
6 Tucson, and acted individually and in his official ca-
7 pacity as Sgt. of the Tucson City Police Department,
8 under color of state law, regulations, customs and pol-
9 icies at all times relevant herein. Defendant Brandt is
10 sued in his individual and official capacities.
11 10. Defendant City of Tucson, a municipal corporation, is
12 a unit of local government organized under the laws of
13 the State of Arizona. Municipalities “…may be sued for
14 constitutional deprivations visited pursuant to gov-
15 ernmental ‘custom’ even though such a custom has
16 not received formal approval through the body’s official
17 decision-making channels.” Monell v. Department of
18 Social Services, 436 U.S. 658, 690, 691 (1978)
19 11. Defendant Does 1-100 are (1) individuals or members
20 of various political organizations who acted individual-
21 ly or as agents of the state, under the direction or con-
22 trol of, or acted in concert with, named or unnamed
23 Defendants, to deprive Plaintiff of rights secured by the
24 First Amendment, and (2) Tucson City employees, in-
25 cluding councilpersons, their staffs, and employees of
26 the Tucson Police Department, who acted individually,
27 and at the direction of their superiors, within their en-
28 forcement, administrative and executive capacities,

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1 under color of state law, regulations, customs and pol-

2 icies at all times relevant herein. Does 1-100 are sued
3 in their individual and official capacities.

4 V. FACTS AND ALLEGATIONS

5 12. Plaintiff is an unpaid political activist working on be-

6 half of the people of Pima County, the publisher of
7 Common Sense II, CSII Press, Arizona Common Sense
8 and the Director of the Tucson Weekly Public Forum.
9 13. Plaintiff has spent the last 12 years investigating alle-
10 gations of malfeasance within the legal and political
11 institutions of Pima County, including the malfeasance
12 of Tucson City Officials who have used their public of-
13 fices to (1) aid and abet, entice and invite, and other-
14 wise to encourage the unlawful entry of impoverished
15 Mexican citizens to supply local contractors with low
16 cost labor, (2) advance the policy of the Mexican Gov-
17 ernment to exclude their poor so they may come to
18 America to earn and send home remittances, and (3)
19 employ Tucson City Administrators, and staff, on the
20 basis of cronyism and not on the basis of their fitness
21 to hold public office.
22 14. On March 6, 2004 Tucson Police Officers, acting at the
23 specific direction of their superiors and pursuant to
24 well-established COT policy to chill or deter the speech

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1 of opponents of COT policy1, stood idly by and refused

2 their duty to protect public safety when “Pro-Raza”
3 open border activists disrupted the Glen Spencer Ral-
4 ly, held in Presidio Park Tucson Arizona, and assault-
5 ed Kathy McKee, the author of PAN2, and other mem-
6 bers of the Protect the Border political movement.
7 15. One of the TPD officers apologized to rally attendee
8 Laura Leighton with words to the effect “I’m sorry this
9 is happening to you. But we were told to stand by and
10 not to interfere.”
11 16. On April 10, 2006, at the “Pro Raza” National Day of
12 Protest Rally held in Armory Park Tucson Arizona,
13 when Plaintiff complained to TPD Sergeant Timpf that
14 “Pro Raza” demonstrators were crowding into a circle
15 protected by “Peacekeepers,” pushing and shoving and
16 interfering with Plaintiff’s right to commit the First
17 Amendment protected act of Mexican Flag Burning,
18 Sergeant Timpf, acting at the specific direction of his
19 superiors and pursuant to well-established COT policy
20 to chill or deter the speech of opponents of COT policy,
21 refused to intervene to protect public safety, and in-
22 stead responded with words to the effect, “you tried

1 See Gilmartin & Harris vs. City of Tucson, et.al., 4:00-cv-

00352-FRZ-CRP
2 Arizona’s original protect the border initiative, “The Arizona
Taxpayer and Citizen Protection Act” (aka Proposition 200)
passed in 2004 by more than 1 million votes.

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1 very hard to be here today Mr. Warden. Let’s see how

2 long you can stay.”
3 17. Subsequently; Sergeant Timpf did assign3 officers to
4 protect Plaintiff, and public safety, when Plaintiff in-
5 formed him with words to the effect:
6 “We’re all packing heat. Those punks try to
7 knock us down, kick us in the face, drive us out
8 of the park, we will stand our ground and dis-
9 charge our firearms into their faces; put more
10 people in the ground than Wyatt Earp, make
11 what happened at the OK Corral look like a Sun-
12 day School picnic!”
13
14 18. On or about May 06, 2006, at Plaintiff’s “Protect the
15 Border” rally held in Kennedy Park Tucson Arizona,
16 TPD officers,4 acting at the specific direction of their
17 superiors and pursuant to well-established COT policy
18 to chill or deter the speech of opponents of COT policy,
19 stood idly by and refused to intervene and protect pub-
20 lic safety when Plaintiff was assaulted by a group of
21 “Chicanos” led by “Pro Raza” open border activists
22 Wade Colwell and Luke Salcido.
23 19. Plaintiff has a video recording showing TPD officers
24 working in concert with Colwell and Salcido and other
25 “Pro Raza” activists, when after the assault, (which did
26 prevent Plaintiff from committing the protected act of

3 TPD After Action Report dated May 10, 2006.

4 The TPD officers were led by TPD Sgt. Richard Anemone and
TPD Assistant Chief of Police Kathleen Robinson.

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1 Burning the Mexican Flag), TPD Sgt. Anemone told the

2 “Pro Raza” activists with words to the effect:
3 TPD Sgt. Anemone:
4 “You did good. We have to try and outthink him
5 (Warden). If he thinks he’ll have to deal with you
6 folks then that’s a little more incentive for him to
7 stay away.”

8 Wade Colwell:
9 “Then it worked this time. And it will work next
10 time too!” (Then Colwell addressed TPD Assistant
11 Chief Kathy Robinson) “Thanks for the ‘Heads
12 Up’ Kathy!’

13 20. On or about June 6, 2006 at Plaintiff’s “Protect the

14 Border” rally held in front of the Mexican Consulate
15 Tucson Arizona,5 Plaintiff and members of his group
16 were assaulted by “Pro-Raza” activists and self-styled
17 “gangbangers6” Arturo and Alexander Rodriquez.
18 21. Rally participant Emanuel “Manny” Enriquez called
19 911, was directed to TPD Headquarters, reported the
20 assault was ongoing, and was told “officers will re-
21 spond.”
22 22. However, no officers appeared to stop the assault
23 which continued on for approximately another ½ hour
24 even though 2 TPD officers specifically assigned to the
25 rally were located approximately a block and a half

5 In Tucson Arizona, the Mexican Consulate is located ap-

proximately 6 blocks from TPD Headquarters.
6 As described by rally participant Emanuel “Manny” En-
riquez.

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1 away as testified to at trial in CR6027286 &

2 CR6041685
3 23. Consequently; three days later, after Plaintiff ad-
4 dressed the Tucson Mayor and City Council, Plaintiff
5 was arrested outside the council chambers, charged,
6 prosecuted and convicted for alleged threats and in-
7 timidation, and assault, on the Rodriquez brothers at
8 the June 06, 2006 rally in front of the Tucson Mexican
9 Consulate.
10 24. On September 15, 2006, after a 17 day jury trial, the
11 Clerk of the U.S. District Court, Tucson Arizona en-
12 tered a verdict in favor of Kevin Gilmartin and Jack
13 Harris against TPD Chief of Police Richard Miranda,
14 other Tucson City Officials and Defendant Tucson City
15 for nearly 3 million dollars in damages, including two
16 million dollars in punitive damages, for violation of the
17 First Amendment, Conspiracy, First Amendment Re-
18 taliation and Intentional Infliction of Emotional Dis-
19 tress. (see Gilmartin & Harris vs. City of Tucson, et.al.,
20 4:00-cv-00352-FRZ-CRP)
21 25. On or about March 26, 2007, TPD officers led by TPD
22 Sgt. Coleman, acting at the specific direction of their
23 superiors and pursuant to well-established COT policy
24 to chill or deter the speech of opponents of COT policy,
25 stood idly by and refused to intervene and protect pub-
26 lic safety when Plaintiff was spit upon and threatened
27 with gang rape as he directed the Tucson Weekly Pub-

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1 lic Forum in front of the Main Tucson Public Library.

2 (see CR-7030208)
3 26. On or about February 13, 2008 TPD officers, acting at
4 the specific direction of their superiors and pursuant to
5 well-established COT policy to chill or deter the speech
6 of opponents of COT policy, stood idly by and refused to
7 intervene and protect public safety when Plaintiff was
8 assaulted by “Pro-Raza” supporter Alan Ward and
9 struck with a banner while Plaintiff directed the Tuc-
10 son Weekly Public Forum in front of the Bank of Amer-
11 ica, across the street Main Tucson Public Library.
12 27. TPD officers instead arrested Plaintiff, handcuffed him
13 and transported Plaintiff to TPD Headquarters.
14 28. Subsequently; Plaintiff applied for, received and had
15 served a “no-contact” injunction against Alan Ward
16 (see M-1041-HR-8009274)
17 29. However; on or about February 20, 2008, TPD officers,
18 acting at the specific direction of their superiors and
19 pursuant to well-established COT policy to chill or deter
20 the speech of opponents of COT policy, stood idly by
21 and refused to intervene and protect public safety
22 when Ward again assaulted Plaintiff, even though
23 Plaintiff informed the officers he had a “no-contact” in-
24 junction against Ward.
25 30. Instead TPD officers again arrested Plaintiff after Plain-
26 tiff was forced to defend himself against Ward’s physi-
27 cal assault. (see CR-08022995)

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1 31. On February 25, 2016, acting at the specific request of

2 U.S. Marshall Richard “Dick” Tracy, Plaintiff attended
3 a U. S. District Court “heavyweight” meeting of securi-
4 ty professionals and public officials, including U.S.
5 Marshall Tracy and a U.S. Attorney, TPD Sgt. Brandt
6 and Lt. Doggett etc., all of whom warned Plaintiff that
7 “Red-Necked Militia Thugs” would attend and disrupt
8 Plaintiff’s planned “Justice for LaVoy” Rally on March
9 4, 2016, and potentially inflict deadly force upon Plain-
10 tiff.
11 32. Subsequently; during the “Justice for LaVoy” rally on
12 March 4, 2016 TPD officers, acting at the specific di-
13 rection of their superiors and pursuant to well-
14 established COT policy to chill or deter the speech of
15 opponents of COT policy, stood approximately 200 feet
16 away from the rally participants and refused to inter-
17 vene to protect public safety when Plaintiff was as-
18 saulted by Cody Whitaker, a physically intimidating
19 ex-Marine supporter of Cliven Bundy and an advocate
20 for armed resistance to federal officers serving a war-
21 rant to seize cattle, and forced to “back down” and re-
22 treat to the street.
23 33. On or about October 25, 2018, Plaintiff attended a
24 “Flag Wave” rally in front of the U.S District Court
25 Tucson, Arizona, (organized by Patriot Movement Az.)
26 to “counter-protest” a left wing rally which opposed
27 building a “Wall” to protect the border with Mexico.

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1 34. The groups stood at the intersection of Congress and

2 Granada on opposite sides of Granada Street, shouting
3 slogans through bullhorns which expressed opposing
4 viewpoints.
5 35. Plaintiff extended the following invitation: “Why don’t
6 we turn off the bullhorns and you guys come on over
7 and we’ll speak like civilized people without shouting
8 at one another.”
9 36. Plaintiff’s invitation was accepted and the groups in-
10 termingled, finding common ground.
11 37. Nevertheless TPD officers, led by Defendant Sachs, ap-
12 peared, stood within 5 feet of the comingled groups
13 and in sum and substance declared: “we’re just here to
14 make sure there is no violence.”

15 VI. COUNT ONE: VIOLATION OF FREEDOM OF SPEECH

16 38. Plaintiff repeats and re-alleges each and every allega-

17 tion contained in paragraphs 1-37 as though fully set
18 forth herein.
19 39. The Arizona Supreme Court has stated:
20 “Any question regarding infringement of First
21 Amendment rights is of the utmost gravity and
22 importance, for it goes to the heart of the natural
23 rights of citizens to impart and acquire infor-
24 mation which is necessary for the well being of a
25 free society. Since an informed public is the most
26 important of all restraints upon misgovernment,
27 (the government may not take) any… action which
28 might prevent free and general discussion of pub-
29 lic matters as seems essential to prepare the peo-
30 ple for an intelligent exercise of their rights as citi-

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1 zens.” New Times Inc. v Arizona Board of Regents,

2 110 Ariz. 367, 519 P.2d 169 (1974)
3
4 40. Plaintiff alleges that the following Defendants violated
5 Plaintiff’s First Amendment rights as set forth below:
6 a) Defendants Doggett and Brandt, when acting pur-
7 suant to well-established COT policy to chill or deter
8 the speech of opponents of COT policy, they attempt-
9 ed to chill Plaintiff’s speech at the February 25,
10 2016 “U.S. Marshall’s Meeting” and to deter Plaintiff
11 from the free exercise of his rights under the First
12 Amendment to conduct the Justice for LaVoy rally
13 on March 4, 2016.
14 b) Defendants Sachs and Brandt on March 4, 2016
15 when, acting pursuant to well established COT policy
16 to chill or deter the speech of opponents of COT poli-
17 cy, they stood idly by and refused to intervene to
18 protect public safety at the March 4, 2016 Justice
19 for LaVoy Rally when Plaintiff was assaulted by Co-
20 dy Whitaker.
21 41. The actions taken by Defendants Doggett, Sachs and
22 Brandt, and others who have not yet been identified,
23 were the proximate cause of harm done to Plaintiff.

24 VII. COUNT TWO: FIRST AMENDMENT RETALIATION

25 42. Plaintiff repeats and re-alleges each and every allega-

26 tion contained in paragraphs 1-41 as though fully set
27 forth herein.

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1 43. Plaintiff alleges that the following Defendants met,

2 came to an agreement and acted in concert for the
3 purpose of retaliating against Plaintiff for his ten year
4 challenge to COT “Pro-Raza, Open Border Policy as set
5 forth below:
6 a) Defendants Doggett and Brandt when, acting pur-
7 suant to well-established COT policy to retaliate
8 against opponents of COT policy, when they at-
9 tempted to chill Plaintiff’s speech at the February
10 25, 2016 “U.S. Marshall’s Meeting” and to deter
11 Plaintiff from the free exercise of his rights under
12 the First Amendment to conduct the Justice for La-
13 Voy rally on March 4, 2016.
14 b) Defendants Sachs and Brandt on March 4, 2016
15 when, acting pursuant to well established COT policy
16 to retaliate against opponents of COT policy, they
17 stood idly by and refused to intervene to protect
18 public safety at the March 4, 2016 Justice for La-
19 Voy Rally when Plaintiff was assaulted by Cody
20 Whitaker;
21 44. The actions taken by Defendants Doggett, Sachs and
22 Brandt, and others who have not yet been identified,
23 were the proximate cause of harm done to Plaintiff.
24 VIII. COUNT THREE: CONSPIRACY
25 45. Plaintiff repeats and re-alleges each and every allega-
26 tion contained in paragraphs 1-44 as though fully set
27 forth herein.

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1 46. Plaintiff alleges that the following Defendants met,

2 came to an agreement and acted in concert for the
3 purpose of denying Plaintiff his rights under the First
4 Amendment as set forth below:
5 a) Defendants Doggett, Brandt and Magnus when act-
6 ing pursuant to well-established COT policy to chill or
7 deter the speech of opponents of COT policy, they
8 met with other COT employees and formulated a
9 plan to deter Plaintiff’s speech at the February 25,
10 2016 U. S. Marshall’s meeting;
11 b) Defendants Sachs, Brandt, and Magnus on or
12 about March 4, 2016 when, acting pursuant to well
13 established COT policy to chill or deter the speech of
14 opponents of COT policy, they met with other TPD
15 officers and formulated a plan to deter Plaintiff’s
16 speech at the March 4, 2016 Justice for LaVoy Ral-
17 ly;
18 50. The actions taken by Defendants Magnus, Doggett,
19 Sachs and Brandt, and others who have not yet been
20 identified, were the proximate cause of harm done to
21 Plaintiff.

22 IX. COUNT FOUR: INTENTIONAL INFLICTION OF

23 EMOTIONAL DISTRESS
24
25 51. Plaintiff repeats and re-alleges each and every allega-
26 tion contained in paragraphs 1-50 as though fully set
27 forth herein.

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1 52. Plaintiff alleges that the following Defendants engaged

2 in unlawful conduct for the purpose of denying Plain-
3 tiff his right to free speech, knowing that such denial
4 of rights would (1) diminish Plaintiff’s stature within
5 the community, (2) inhibit Plaintiff’s opportunity for
6 employment as an Arizona Certified Legal Document
7 Preparer, (3) cause dissention within Plaintiff’s house-
8 hold, and (4) cause Plaintiff to suffer significant emo-
9 tional harm, as set forth below:
10 a) Defendants Doggett and Brandt, when acting pur-
11 suant to well-established COT policy to chill or deter
12 the speech of opponents of COT policy, they (1) met
13 with Defendant Magnus and other TPD superiors
14 and formulated a plan to deter Plaintiff’s speech at
15 the February 25, 2016 U. S. Marshall’s meeting and
16 (2) attempted to chill Plaintiff’s speech at the Feb-
17 ruary 25, 2016 “U.S. Marshall’s Meeting” and deter
18 Plaintiff from the free exercise of his rights under
19 the First Amendment to conduct the Justice for La-
20 Voy rally on March 4, 2016.
21 b) Defendants Sachs and Brandt on March 4, 2016
22 when, acting pursuant to well established COT policy
23 to retaliate against opponents, they (1) met with De-
24 fendant Magnus and other TPD superiors and for-
25 mulated a plan to deter Plaintiff’s speech at the
26 March 4, 2016 Justice for LaVoy Rally and (2) act-
27 ing pursuant to a plan made with Defendant Mag-
28 nus and other TPD superiors, stood idly by and re-

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1 fused to intervene to protect public safety at the

2 March 4, 2016 Justice for LaVoy Rally when Plain-
3 tiff was assaulted by Cody Whitaker;
4 53. The actions taken by Defendants Magnus, Doggett,
5 Sachs and Brandt, and others who have not yet been
6 identified, were the proximate cause of harm done to
7 Plaintiff.
8 X. FAILURE TO TRAIN
9 54. Plaintiff repeats and re-alleges each and every allega-
10 tion contained in paragraphs 1-53 as though fully set
11 forth herein.
12 55. Plaintiff alleges Defendant Magnus violated Plaintiff’s
13 rights by his deliberate or indifferent failure to train,
14 or to supervise, TPD employees under his command.
15 56. Defendant Magnus’ action (or failure to take action)
16 was the proximate cause of harm done to Plaintiff.
17 XI. PRAYER

18 WHEREFORE, Plaintiff prays that this Court:

19 A. Direct the Tucson Police Department to instruct their
20 officers on their legal duty to protect members of the
21 public while they are lawfully engaged in the free ex-
22 ercise of their constitutional rights;
23 B. Provide Plaintiff with just compensation for COT em-
24 ployment of policy intended to deter, chill, or retaliate
25 against Plaintiff for the exercise of his constitutional
26 rights;

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1 C. Assess punitive damages against Defendants in their

2 individual capacities to deter them and other public
3 officials from engaging in similar misconduct; and
4 D. Provide such additional relief the Court deems prop-
5 er.

6 RESPECTFULLY SUBMITTED this 25th day of April, 2019.

BY /s/ Roy Warden

CERTIFICATE OF SERVICE

I hereby certify that on April 25, 2019, I (1) electronically

transmitted the attached document to the Clerk’s Office using
the CM/ECR System for filing and transmittal of a Notice of
Electronic Filing to the following CM/ECR registrant, and (2)
sent a copy by email to:

Dennis McLaughlin
Assistant City Attorney for
Michael G. Rankin
CITY ATTORNEY
P.O. Box 27210
Tucson, AZ 85726-7210
[email protected]

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