It's been a busy year for me, both personally & professionally, which is why you haven't seen much activity on these pages lately. Fortunately the dust is beginning to settle allowing me some much needed time to get caught up on various projects. One of the first things I intend on getting caught up on is the status of my ongoing civil rights lawsuit which has seen a fair amount of activity this year.

The lawsuit stemmed from a checkpoint incident I was involved in way back in December of 2002. My last formal update on this lawsuit took place in August 2009, shortly after winning a significant victory in the 9th Circuit Court of Appeals that re-instated the lawsuit after being dismissed by Tucson District Court Chief Judge John Roll. The 9th Circuit also imposed significant limitations on tribal traffic enforcement operations along state right-of-ways running through tribal land that hadn't been in place prior to their ruling & made it clear a tribe's normal power of exclusion for non-tribal members doesn't apply in these areas either.

After the 9th circuit victory, we underwent formal settlement talks with the defendants in late 2009 but no settlement agreement was reached. Afterwards, we waited for the district court to setup a scheduling conference for trial but no action was taken by the court for over a year. Then in January 2011, tragedy struck when Jared Loughner went on a rampage in Tucson at a 'Congress On Your Corner' event sponsored by Congresswoman Gabrielle Giffords. Loughner's rampage killed six individuals and wounded thirteen others. One of the individuals killed included Chief Judge John Roll who was shot in the back while shielding another individual from Loughner's bullets. Judge Roll was the district court judge who had been handling this case.

After Judge Roll's death, his caseload was redistributed within the federal judiciary. Senior status Judge Atsushi Wallace Tashima with the Court of Appeals for the Ninth Circuit took up Judge Roll's civil calendar which included this case. Since then, a scheduling conference has been held, another round of discovery completed and motions for summary judgement for both sides recently submitted.

For the remainder of this update, I will highlight a deposition taken of former Tohono O'odham Police Dept. (TOPD) Officer Nicolas Romero on February 17, 2011 in Southern California by the attorney for the defendants. Officer Nicholas Romero is not a named defendant in this lawsuit, nor did I have any direct interaction with him at the checkpoint in December of 2002. Why then you may ask, would anyone be interested in deposing him for this lawsuit over eight years after the fact?

Way back in 2005 during our first round of discovery when the defendants still thought sovereign immunity was a sure thing, they released several incident reports from that night instead of destroying or "losing" them as they did with several other key pieces of evidence that should have been preserved. One of those incident reports was authored by Officer Romero and detailed his interaction with a driver who was ultimately arrested for driving on a suspended license, transporting an illegal alien and transporting marijuana. While these facts aren't all that interesting for purposes of this lawsuit, what did have the defendants quite worried after losing their sovereign immunity argument in the 9th Circuit was his description of the checkpoint itself. Specifically, the very first sentence of the report states:

"On 12/20/2002, this investigator was in service assisting with a checkpoint to locate intoxicated drivers, stolen vehicles, undocumented alien smuggling and drug contraband."

 

- Officer Nicolas Romero Incident Report, December 2002

Being one of the most honest statements from the TOPD regarding checkpoint operations to date, Officer Romero's opening statement dove tailed nicely with eyewitness accounts at the checkpoint, explained why U.S. Border Patrol agents and U.S. Customs agents were actively working the front line with tribal police and reinforced a checkpoint memo written two years earlier by TOPD Lt. Kevin Shonk and approved by then-Captain Saunders and then-Chief Seligman. The now infamous Shonk Memo had effectively become departmental policy according to Chief Saunders in his 2006 deposition. Saunders was police chief during the 2002 checkpoint up until his retirement a few years ago:

* Mr. Euchner: "Do you know if there were any memorandums -- I'm sorry, memoranda after May 4th, 2000 that changed the substance of these expectations as contained within the memorandum?"

* Chief Saunders: "I don't recall."

* Mr Euchner: "On December 20th, 2002, would this memorandum still be the policy of roadblocks for the tribal police?"

* MR. FRAZIER: "Form and foundation and -- I will explain later."

* Chief Saunders: "Yeah, I would have to say it would still be the practice to follow. Yes."

- TOPD Chief Saunders Deposition, p. 40-43, November 2006

In Shonk's memo, it was made clear the purpose of tribal police checkpoints was to look for stolen vehicles, illegal drugs, undocumented aliens, liquor (possession of liquor is illegal on the reservation) and drunk drivers:

"Over the past few months we have seen a marked increase in the number of stolen vehicles and amount of illegal drugs passing through the Nation. State Route 86 is one of the main corridors for this activity. We have also seen a dramatic increase in the number of undocumented aliens passing through the Nation. In addition, State Route 86 is the main corridor into the Tohono O'dham Nation and is a common road for introduction of liquor into the Nation, where such liquor is illegal. State Route 86 also has number of incidents of Driving Under the Influence."

- The Shonk Memo, May 2000

"After contacting the driver the same questions will be asked of every driver. They are:

1. Can I see your driver's license, registration, and proof of insurance, please (Check to see that the driver is the owner, or the owner is in the vehicle, or establish that the driver has permission to have the vehicle. If you suspect the driver or any passenger in the vehicle is an undocumented alien, have the driver pull over to the designated secondary inspection area. Try to confirm if the driver is in the U.S. legally and contact a U.S. Border Patrol Agent)

2. Have you consumed any illegal drugs or alcohol today? (If you suspect the driver is under the influence do not have him drive the vehicle any further. Have him get out of the vehicle and TOPD personnel will move the vehicle while the contact Officer begins Field Sobriety Tests)

3. Do you have any illegal drugs, alcohol, or contraband of any kind in the vehicle?

(If you suspect the driver is being untruthful ask him/her to pull over to the designated secondary inspection area. Ask him/her to open the trunk of the vehicle. If he/she refuses, ask some questions as to where he/she is going, where he/she is coming from, etc. to establish probable cause. Have the K-9 walk around the exterior of the vehicle. If the K-9 alerts on the vehicle have the driver exit the vehicle and conduct a thorough search of the vehicle. If you have no reason to believe the driver is being untruthful wish them a good day and have them continue on their way)"

 

- The Shonk Memo, May 2000

Unfortunately for the tribal police, the U.S. Supreme Court struck down general law enforcement and/or drug checkpoints as illegal in City of Indianapolis V Edmond. What that means is that a police department can't hide behind a sobriety checkpoint as a pretense to stop vehicles absent suspicion and look for illegal narcotics, stolen vehicles, etc. like the tribal police were doing on a regular basis.

In this lawsuit, the defendants have argued the Shonk memo wasn't in effect during the roadblock I was stopped at but as I already pointed out, the Chief of Police admitted during his 2006 deposition that it was effectively departmental policy during the 2002 roadblock. Even more damning is the fact the defendants haven't been able to point to a single document superceding the procedures outlined in the Shonk Memo. They claim the operational plan for the 2002 roadblock appropriately limited its scope but according to the defendants, this department-wide plan was somehow "lost" while they were purportedly trying to preserve it for the lawsuit and despite there having been a copy on the TOPD computer system and copies distributed to all 20+ officers assigned to the checkpoint.

Taken in aggregate, these facts start to make it clear why the defense bent over backwards to track down former TOPD Officer Nicolas Romero in the hopes he would backpedal at a deposition in 2011 on an incident report he wrote in 2002.

Getting back to the deposition, the following exchange can be found on page 4 of Romero's condensed deposition:

* Mr. Frazier: "Do you recall any briefing that you went to?"

* Ofc. Romero: "I don't recall."

* Mr. Fraizer: "We're talking about something that was over eight years ago; correct?"

* Ofc. Romero: "Yes, sir."

...

* Mr Frazier: "Do you have any recall as you sit here today of talking to Lieutenant Ford at this checkpoint?"

* Ofc. Romero: "No"

* Mr. Frazier: "Do you have any recall of reading any memorandum about what was to be done at this checkpoint?"

* Ofc. Romero: "No"

 

- Officer Romero Deposition, February 2011

In other words, Romero had no recollection of either receiving guidance verbally or reading any departmental memo providing guidance on how to conduct roadblock operations on December 2002. This is additional evidence officers conducting checkpoint operations had essentially unlimited discretion to do whatever they wanted at the roadblock.

I also want to point out several statements made by Romero that support my testimony that not all vehicles & vehicle occupants were treated the same. Some were waved through when traffic was backing up while others were specifically targeted for additional scrutiny based upon individual officer discretion instead of relying upon a neutral pattern of stopping vehicles. Indeed, the specific vehicle in Romero's report appears to have been stopped by Romero based upon his individual discretion during a time frame when other vehicles were being waved through due to backed up traffic. The following quotes come from page 5 of the condensed deposition:

* Ofc. Romero: "I'm trying to think how this goes. Just checking identification on drivers coming in. Sometimes the traffic would get backed up. We were kind of, like, letting a little bit more vehicles go by and just doing kind of like a visual of impairment, I guess, to see if there was anything that we could actually see that --"

* Mr. Frazier: "Well --"

* Ofc. Romero: "Go ahead"

* Mr. Frazier: "I was thinking more about with this individual car."

*Ofc. Romero: "Okay"

* Mr. Frazier: "But since you've brought that up, let me just back up to that. You said that sometimes you were letting cars go by. Was there a time where every car was being stopped that you can recall.?"

* Ofc. Romero: "Not every car was being stopped"

* Mr. Frazier: "Pardon me?"

* Ofc. Romero: "No. There were times when we were letting some cars go by because of the traffic getting backed up."

* Mr. Frazier: "Okay. When the traffic was not backed up, was every car being stopped?"

* Ofc. Romero: "Yes"

While being cross-examined, Officer Romero made another series of statements highlighting the disparate treatment different individuals received at the roadblock based upon individual officer discretion:

* Mr Frazier: "And Mr. Euchner asked you about calling in checks on driver's licenses. Lieutenant Ford said that that was done to all of the drivers that came through, but you said you did not do that."

* Ofc. Romero: "I don't recall that. I mean, if we were to make checks on every driver's license, nobody would ever get through that checkpoint."

Romero's statements makes it clear this was a standardless checkpoint. First, Romero testified he didn't remember receiving any verbal or written guidance for conducting operations that night. Romero then testified he didn't conduct license checks through dispatch, or conduct wants and warrants checks for that matter, while Lt. Ford and other officers did. Each officer assigned to the checkpoint was effectively conducting operations as they saw fit instead of operating from a common set of principles & guidelines.

On page 6 of Romero's condensed deposition, Frazier finally gets to the primary purpose for travelling out to Southern California to depose a former tribal police officer regarding a single sentence in a report he wrote over eight years earlier:

* Mr. Frazier: "I'd like to ask you about your first sentence in the report, the narrative part. Can you just read that?"

* Ofc. Romero: "On 12/20/2002, this investigator was in service assisting with a checkpoint to locate intoxicated drivers, stolen --"

* The Reporter: "Okay. I'm going to have to slow you down. 'Stolen,' last word I have."

* Ofc. Romero: "On 2/20/2002, this investigator was in service assisting with a checkpoint to locate intoxicated drivers, stolen vehicles, undocumented alien smuggling, and drug contraband. I was positioned to check oncoming eastbound traffic."

* Mr. Frazier: "Okay. That's all. it was just the first sentence."

* Ofc. Romero: "Okay"

* Mr. Frazier: "Why did you write in there that you were at a checkpoint to locate drug contraband or undocumented alien smuggling?"

* Ofc. Romero: "Because the incident that actually occurred dealt with illegal alien smuggling and also drug contraband."

* Mr. Frazier: "Did you read anything before this checkpoint, though, that said that that would be a purpose of this --"

* Ofc. Romero: "No."

* Mr. Frazier: "--checkpoint? So those were -- that was your own wording?"

* Ofc. Romero: "Yes."

* Mr. Frazier: "Did you have anything to do with planning this checkpoint yourself?"

* Ofc. Romero: "No."

There you have it. A former tribal police officer who, at the beginning of his deposition, couldn't remember having read anything related to checkpoint operations or interacting with the onscene commander prior to seizing people absent suspicion at a roadblock conducted over 8 years earlier is suddenly certain the purpose of the checkpoint had nothing to do with drug interdiction or alien smuggling despite his 8 year old incident report explicitly stating it did. He's so sure of this that when cross-examined by my attorney, he claims the first sentence of his report from 8 years ago was clearly a mistake yet has a hard time recalling anything else of substance from the same time period.

One may ask how could he seriously claim the roadblock wasn't for illegal aliens, drugs & stolen vehicles if he never received any verbal or written guidance detailing what the scope of the checkpoint was supposed to be? Did I mention not one individual was arrested for DUI at the checkpoint that night while quite a few arrests for things having nothing to do with driving impaired were made, including illegal drugs?

What's especially interesting to note is Frazier's objection when my attorney makes an inquiry regarding what Romero and Frazier talked about during their interactions prior to the deposition:

* Mr. Euchner: "Okay, When you got the notice for being here, did you speak with Mr. Frazier at all before setting up this deposition?"

* Ofc. Romero: "Yes"

* Mr. Euchner: "What did you talk about with Mr. Frazier?"

* Mr. Frazier: "I'm going to object to work product -- based on work product on things I told you about what I think. You can tell him facts that I told you."

* Ofc. Romero: "That my deposition would be to primarily the first sentence of my report."

Discovery later revealed that Frazier had talked with Officer Romero for over 90 minutes regarding the pending deposition. Since Officer Romero is not Mr. Frazier's client in these proceedings, one must ask the question what did Mr. Frazier have to say to Officer Romero that could possibly account for 90 minutes of conversation when the only information Officer Romero needed was when and where to show up for the deposition.

An overview of the work-product doctrine indicates that an attorney's mental impressions or legal theories fall under this doctrine & Frazier specifically indicates he's concerned with Romero divulging information regarding what he was thinking to my attorney. What attorney however would confide what he's thinking to a witness (who's not his client) prior to a deposition if the intent of the attorney wasn't to sway the witness's testimony? While I'm not claiming this is what Frazier did, the fact of the matter is we don't know because Frazier is attempting to cloak his 90+ minute communications with a witness in these proceedings behind the work-product doctrine. This is especially disturbing given that the witness recanted a written statement he made regarding the scope of checkpoint operations over 8 years after the fact while not being able to remember anything else of significance during the same time frame.

Regardless of whether or not Romero's recantation can be taken seriously, what's clear from his testimony along with other evidence in this case is that tribal police officers operating the 2002 checkpoint had virtually unfettered discretion to conduct checkpoint operation however they saw fit with no written guidance at the departmental level that wasn't already several years old and no verbal guidance from those tasked with setting up and conducting the operation. This fact alone makes it clear the checkpoint was an illegal exercise of police power:

"In Prouse, we invalidated a discretionary, suspicionless stop for a spot check of a motorist’s driver’s license and vehicle registration. The officer’s conduct in that case was unconstitutional primarily on account of his exercise of “standardless and unconstrained discretion.” 440 U.S., at 661." - City of Indianapolis V Edmond

I have several additional updates that will be percolating out in the near future that will include information about additional discovery, the recently completed round of summary judgment motions and feedback from the court regarding summary judgment once the court has a chance to review and rule on the motions.