Subject: [lpaz-discuss] Arizona roadblock - 01SEP04 Update
Date: Thu 09/02/04 12:32 PM

This is an update on the unlawful roadblock that took place on Arizona SR86 in the Tohono O'odham Nation on December 20, 2002. For an in-depth account of this incident, please visit:

Over the past several months, I've given the web site a face lift and added additional documentation and pertinent links. For quick reference, I've included links to the most recently added documentation below:

* Defendant's Motion to Dismiss < > - After ordering the Arizona Superior court to move the case to the federal district court and substituting itself as the defendant against our consent, the United States is now attempting to have the case dismissed based upon claims of sovereign immunity.

* Plaintiff's Response to Motion to Dismiss < > - Our response to the absurd proposition that the TOPD cannot be held accountable for their grievous misconduct while acting under color of law on a state highway.

* BIA FOIA Request < > - The United States Attorney for the District of Arizona, Paul Charlton, claims the TOPD is acting under contract with the Bureau of Indian Affairs and as such, the TOPD officers named in the lawsuit are in effect Federal employees. Mr. Charlton has failed to make a copy of the alleged contract available to us so I have specifically requested a copy from the BIA.

* DHS FOIA Appeal Response < > - A non-response finally arrives regarding my FOIA Appeal five months after it was filed. The response basically states more time is needed....

* Gilmore V. Ashcroft < > - Right to travel web site in which John Gilmore details his lawsuit against the Federal government regarding unreasonable government intrusions on our fundamental right to travel. * The Check Point Nullification Project < > - As checkpoints and so-called 'public safety stops' become more prevalent - people are speaking out and taking steps to undermine them.


Shortly after sending out the previous < > update, my attorney received a copy of a 'joint motion to dismiss' from Paul K. Charlton and Gerald S. Franks - the U.S. Attorney's defending the TOPD. The conclusion from this motion reads as follows:

"To the extent that Plaintiff asserts constitutional claims against the Defendant United States for the acts of the Defendant Officers in their official capacities, there is no waiver of sovereign immunity. As to common law tort claims asserted against the United States based on the officers' actions, Plaintiff's failure to file an administrative claim precludes subject matter jurisdiction under the FTCA. The individual officers are absolutely immune and qualified immune based on the sovereign immunity and the self-governing status of the Tohono O'odham Nation."

In essence the U.S. Attorney's office is claiming that regardless of what unlawful actions the TOPD officers committed against me at this unconstitutional roadblock, they are immune from prosecution due to their status as Tohono O'odham police officers AND federal agents working under contract with the Bureau of Indian Affairs.

It should chill every individual to the bone to realize what the federal government is advocating for in this motion. That there is no trespass a federal agent can commit against an individual and be held accountable through the courts for that trespass. While such a condition is commonplace in third world dictatorships - it has no legitimate place in a Constitutional Republic such as ours. Indeed, such a condition represents a fundamental usurpation of the limitations imposed on federal powers by the Constitution. If federal agents cannot be held directly accountable for their misdeeds - the rest of us become little more than slaves to the collective will of an unconstrained federal government.

In David Euchners' response to the government's motion, he summarizes as follows:

"Plaintiff alleges that four Arizona peace officers violated his Constitutional rights by arresting him falsely and then compounding the damage by conducting a malicious prosecution in Arizona Justice Court. The result of the malicious prosecution was a dismissal with prejudice of all charges against plaintiff, as the TOPD officers showed blatant contempt for the Justice Court whose judgment they sought in this matter.

Defendants want to play a cat-and-mouse game with Arizona citizens like Terrence bressi. They want the authority of Arizona officers for purposes of conducting illegal searches and seizures, then they want to avoid the consequences by claiming "sovereign immunity" under tribal and federal law when they are sued for abuse of Arizona citizens. Defendants made their bed when they acted as Arizona officers against Bressi, and now they should be made to lie in that bed.

For these reasons, the Defendants' motion to dismiss should be denied, and this matter should be remanded to the Superior Court of Arizona where issues of state law can be tried."

In our response to the motion to dismiss, David points out that the United States has improperly removed the lawsuit from Arizona's Superior Court and substituted itself as the defendant on behalf of the TOPD. The basis for this is that any contract the TOPD has with the Bureau of Indian Affairs cannot legitimately grant authority to the TOPD to enforce Arizona State law. Since the BIA does not possess this power to begin with - it cannot possibly be transferred to the TOPD via a contract. Consequently, only the State of Arizona can empower the TOPD to enforce Arizona law which was done in this case through certifications granted to TOPD officers by the Arizona Peace Officer Standards and Training Board. As such - the proper venue for this case is the Arizona court system and not the federal courts. Further - any claim that tribal sovereignty applies fade away once it's understood that this incident occurred on Arizona property, S.R. 86, not tribal land. As such the defendants were clearly acting as Arizona Peace Officers and consequently can and should be held accountable for their actions in an Arizona courtroom.

I would encourage everyone to read the motions for themselves. They are very instructive.

On a slightly different note, I also find it instructive to list the government entities that have played a role in this incident over the past 20 months. I have tried to list them in the order they have played a role:

* The Tohono O'odham Police Department
* The U.S. Border Patrol
* The U.S. Customs
* The Pima County Attorney's Office
* The Arizona Justice Court
* The Arizona Peace Officers Standards and Training Board
* The Pima County Sheriff's Department
* The Tohono O'odham Nation Executive Office
* The Department of Homeland Security (now includes Border Patrol and Customs)
* The Arizona Superior Court
* The U.S. Attorney's Office
* The United State District Court
* The Bureau of Indian Affairs

How is it that so many agencies are involved in what was allegedly a simple 'public safety checkpoint'? If I was to list all the individuals who have been involved from these various agencies - it would be a very long list indeed. When things become so convoluted as to involve so many competing interests - how is it possible for due process or justice to ever be served? What legitimate concerns are not being addressed by a government that appears to be more interested in protecting the misdeeds of government agents than in "preserving, protecting, and defending"?

This roadblock incident continues to be an eye opener for me. It began nearly two years ago - seemingly a case of misconduct by a few police officers taking liberties with their authority, namely mine. As I have pursued justice and accountability though the legal system, I'm instead finding entrenched agencies that bend over backwards to protect their own while ignoring the most basic principles for which they were created. What direction this latest twist will take remains unknown. I do hope however that the documentation I continue to make available can assist others who find themselves in similar circumstances.

Terry Bressi 1-520-808-2054

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