Tohono O'odham Roadblock Incident

Update #11 - December 11, 2003:

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Update:

This is an update on the unlawful multi-jurisdictional roadblock that took place on Arizona SR86 on December 20, 2002.

Ajo Justice of the Peace John J. Casey has dismissed all charges against me WITH prejudice and is considering sanctions against the Tohono O'odham Police Department. The judge's order has been scanned in and can be accessed from my web site. The remainder of this email includes an account of the court proceedings on December 9th along with a commentary and future plans.

Marc Victor and I drove to Ajo from Phoenix early Tuesday morning (December 9th) and met up with two witnesses who were scheduled to testify on my behalf. We spent some time reviewing the case and discussing the most likely scenarios for that day before heading over to the courthouse. We arrived at the courthouse at around 1230 and began preparing for the evidentiary hearing scheduled to begin at 1330 that afternoon. At around 1310, the prosecuting attorney poked his head into the courtroom and asked to speak with Marc.

After a five minute discussion, Marc returned to the courtroom and informed me that the Tohono O'odham Police Department was refusing to release subpoenaed documents including the written roadblock guidelines/procedures. Various courts including the Supreme Court has indicated such documents are fundamental to determining the nature of suspicionless roadblock operations and are necessary to determine whether or not any given roadblock meets constitutional muster. The failure of a police department to have such a document is a major indicator that any roadblock operation conducted by that department is fundamentally flawed because too much individual discretion is left with on-scene officers regarding how to conduct the suspicionless seizures that accompany "public safety" roadblocks.

The prosecuting attorney stated the TOPD was claiming the written procedures are internal Tohono O'odham Nation documents and would not be released for court proceedings. When the judge arrived, the issue was taken up in judge's chambers where the prosecuting attorney asked for a continuance while my attorney requested a dismissal given the fact the TOPD has had months to comply with the subpoena.

After another 15 minutes or so, court was convened. Lt. Ford and Detective Traviolia were present as State's witnesses. The outstanding issue regarding the refusal of the TOPD to provide the subpoenaed documents was aired in the courtroom along with the motion to continue from the prosecutor and a motion to dismiss from my attorney. In short order the Judge announced his decision and stated all charges were dismissed with prejudice. My attorney then stood up and requested sanctions be imposed on the TOPD for their disregard of the rule of law. The judge showed interest in this motion and indicated he would look into available options.

While many of the fundamental issues were not flushed out in these proceedings, they went a long way towards showing the nature of the TOPD. Clearly this police department has no respect for due process of law or individual rights and does not believe in accountability. They thumb their nose at the judicial branch of the State while expecting the executive branch, through the county attorney's office, to prosecute non-tribal members charged on the Tohono O'odham Nation. They do this while refusing to cooperate with the prosecuting attorney who for some unknown reason is acting on their behalf.

The conflict here is clear. The Tohono O'odham Nation is utilizing the police powers of the State to indiscriminately stop travelers on a State highway passing through the reservation. Police officers of the Tohono O'odham Nation operate under color of law while refusing to be bound by the very law they purportedly enforce. This is a fundamental due process violation which is being aided and abetted by the Pima County Attorney's Office. The office prosecutes cases brought to them by the TOPD knowing full well that the TOPD and the Tohono O'odham Nation will claim that national sovereignty allows them to ignore judicial subpoenas compelling the discovery of witnesses and evidence that can be used to exonerate individuals unjustly accused of crimes by "peace officers" on the reservation. Further - the Arizona Peace Officer Standards and Training Board certifies TOPD officers as State peace officers even though the officers and the department they represent have no intention of complying with the rule of law when push comes to shove. This of course is very convenient for Federal law enforcement agencies such as U.S. Customs and the Border Patrol that can piggy back off TOPD roadblock operations knowing the difficulty anyone who challenges such a roadblock will have in getting necessary information related to the nature of the roadblock to defend themselves.

Needless to say I have no intention of stopping here. This victory means little if the TOPD and it's officers aren't held accountable for their actions. The civil lawsuit paperwork is being generated as I write this email and I fully intend to flush out the underlying issues in court. Now I can do so without fear of further prosecution stemming from the initial charges. Your thoughts and comments are appreciated. Please feel free to forward this email as you see fit - especially to anyone else who has ever been charged or ticketed by the TOPD while driving on a State highway inside the Tohono O'odham Nation.


Terry



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