Tohono O'odham Roadblock Incident

Update #2 - January 6, 2003:

Previous | Home | Next

Introduction:

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

I've just finished putting together an email list consisting of individuals who have shown an interest in keeping up to date on the roadblock incident that occurred on December 20th, 2002. I've received several hundred emails from across the country and as far away as Australia. With limited time to respond  to each one individually,  I  thought I'd setup  an email list to   send out periodic updates. The vast majority of responses have been very  supportive & I'd like to thank everyone for your interest, support and recommendations.

If you do not wish to receive email on this subject, let me know and I will remove your address ASAP. On the flip side, feel free to forward/post these emails wherever you deem appropriate. I will add email addresses on demand & they will only appear in the blind carbon copy section of the header to protect privacy. In the near future, I hope to have a web site up which will contain pertinent documentation, updates, links to related web sites, and a legal/philosophical discussion on these types of issues. I'll pass on the web address once the site is up and running.

Update:

After a meeting in Mesa, Arizona last week, Marc Victor with the law firm

Victor & Hall  has agreed to represent me while David Euchner, a local Tucson lawyer, has agreed to assist with the case. I knew I liked Marc as soon as I saw the Gadsden Flag hanging in his office. The flag has an image of a rattlesnake with the motto, 'Don't Tread on Me' beneath it and the back of his business card reads in part:

gadsden flag

"I refuse to consent to any search whatsoever. As such, I do not consent to a search of my premises, my person, my immediate location or any vehicle or affects. I hereby exercise my rights as enumerated by the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution as well as Article Two of the Arizona Constitution...".


This is definitely the mind set I want representing me in the court room.

My initial court appearance was scheduled for January 3rd. The law firm filed a Notice of Appearance with the Ajo Justice court along with some other paperwork to put the court on notice that I was being represented and we would be seeking a jury trial along with full discovery. This notice also served to stand in my place with regards to appearing. I wasn't able to verify this with the court though until about 0830 Friday morning - a short time before I was scheduled to appear.

I learned later in the day that the Tohono O'odham police had NOT filed the required paperwork with the court by close of business on Friday. It would seem that the police had plenty of time to illegally stop and detain me, threaten me with lethal force, bodily drag me out of my vehicle, & place me in a state of arrest for over three hours but couldn't find time in over two weeks to file a copy of the complaint with the Justice Court. This is curious considering that Arizona law at 28-1558A requires the following:

"On issuing a traffic complaint to an alleged violator of any provision of the motor vehicle laws of this state or of any traffic ordinance of any city or town, each traffic enforcement officer shall deposit the original or a copy of the traffic citation with a court having jurisdiction over the alleged offense or with its traffic violations bureau."

Further 28-1558C reads:

"It is unlawful and official misconduct for any traffic enforcement officer or other officer or public employee to dispose of a traffic complaint or copies of a traffic complaint or of the record of the issuance of the complaint or copies in a manner other than as required by this article."


The importance of such a statute becomes apparent when one considers the amount of time, energy, resources and planning an individual must put into preparing to go to court on the date established on an original traffic complaint by the arresting officer. If a complaint that has been issued to an alleged offender could be held indefinitely by the arresting officer - issues surrounding due process and rights to a speedy & public trial would be adversely affected not to mention the state of flux it leaves the individual being charged.

At this stage, we are waiting for the judge to decide what to do about the paperwork currently in his possession. According to the court clerk, the judge was only in for half a day on Friday and hadn't reviewed the paperwork associated with the case.

Discussion:

Any & all discussions I engage in regarding legal matters are based solely on my own research and should not be construed as legal advice in any way. I am not a lawyer but neither do I consider legal matters to be outside my ability to grasp. If we are all expected to obey the law, we must by necessity understand the obligations placed on us by the law. The law in turn ultimately has to be understandable. With this said, I'd like to point out a few aspects of Arizona law that seem to be applicable to this situation. I'll start with sections from Article 2 of the Arizona Constitution:

"Section 1. Fundamental principles, recurrence to
 
A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.

Section 2. Political Power; purpose of government

All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

Section 3. Supreme law of the land

The Constitution of the United States is the supreme law of the land."

What's important to note here is that the Arizona Constitution clearly recognizes that the primary purpose of government is to protect and maintain INDIVIDUAL rights & that to do this, frequent recurrence to fundamental principles is necessary. I must then ask myself how stopping an individual at a roadblock with neither probable cause nor ANY level of suspicion of wrongdoing furthers government's legitimate goal of protecting and maintaining individual rights?

When I look at Arizona's criminal code in title 13, I find the following at ARS 13-101:

"It is declared that the public policy of this state and the general purposes of the provisions of this title are:

1. To proscribe conduct that unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests."

The statutes I was cited with are criminal in nature and carry a potential jail term with them. I ask myself again how does driving home from work while exhibiting no signs of wrongdoing rise to the level of unjustifiably and inexcusably threatening substantial harm to either individual or public interests? How does being threatened with the use of lethal force while being physically assaulted for asking a few question in a respectful manner NOT rise to the level of unjustifiably and inexcusably causing or threatening substantial harm to individual or public interests?

Surely there's something in the code that authorizes this type of behavior by law enforcement. Instead of finding something that lends credence to their actions though, I find the following:

28-1594. Authority to detain persons

"A peace officer or duly authorized agent of a traffic enforcement agency may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of this title and to serve a copy of the traffic complaint for an alleged civil or criminal violation of this title."


and in the criminal code:

13-3883B Arrest by officer without warrant

"A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of any traffic law committed in the officer's presence and may serve a copy of the traffic complaint for any alleged civil or criminal traffic violation. A peace officer who serves a copy of the traffic complaint shall do so within a reasonable time of the alleged criminal or civil traffic violation."


Two separate sections of State law clearly indicate that a stop by law enforcement must be premised on some level of probable cause or reasonable suspicion but yet my inquiries at this roadblock, where hundreds if not thousands of people were detained, clearly show the officers had none. A key word search throughout the code came back empty with regards to exceptions associated with roadblocks, checkpoints, etc.

While I might be naive with regards to these matters, I'm a firm supporter of our constitutional form of government. I don't think it's too much to ask that our public servants obey the very laws they have been hired to enforce. Nor do I think it is too much to ask to be free from unreasonable search and seizure as I go about my lawful business.

I intend to pursue this matter as far as I can. If this incident serves to do no more than start a dialogue with regards to where we are as well as where we are headed as a country, I will consider it time well spent.

Related Links:

  • Arizona Statutes Online
  • City of Indianapolis et al. v. EDMOND et al.
  • Victor & Hall - Attorney's web site
  • The Roadblock Registry
  • John Gilmore's Right to Travel site
  • Federal Observer article
  • Devvy Kidd article
  • Lance Brown article

Thanks for your time.

Terry




Previous | Home | Next