Those of you who have been following this incident know that we've now entered our 40th month of litigation. The first twelve were spent successfully defending against a malicious prosecution based on trumped up charges from tribal police working for the Bureau of Indian Affairs. The remaining twenty-eight have been absorbed in tribal, state, and federal jurisdictional battles while the merits of the lawsuit have taken a back seat.
Since October 2005, the federal court has been largely silent on this case and has not yet responded to our motion for reconsideration regarding its September ruling. How we proceed from here will largely depend on how the court responds to our motion which leaves the case in limbo until a ruling is made.
The discussion below is based on the USA's answer to our third amended complaint. In the discussion you'll find more evidence of bad faith and malfeasance on the part of various government actors involved in this case.
In September 2005, judge Roll allowed our third amended complaint to go forward which resulted in the USA being added as a defendant with regards to the malicious prosecution charge. In February 2006, the USA formally responded to the judge's decision. As such, a brief recap of this issue is in order.
We initially filed malicious prosecution charges, amongst others, against the tribal police in their individual and state law enforcement capacities in late 2003 after charges against me were dismissed with prejudice. You'll remember that after we filed the complaint in the Arizona Superior Court, the federal government swooped in and substituted itself as the defendant on behalf of the tribal police regarding the malicious prosecution claim. The case was subsequently removed to the federal district court against our wishes. The basis for this action was a certification from the U.S. Attorney's Office that the tribal police were acting within their capacity as federal employees under the federal tort claims act during the time frame when the cause of action arose.
Judge Roll accepted the certification and at the urging of the U.S. Attorney's office, dismissed the malicious prosecution charge without prejudice. In response, I filed a claim with the Bureau of Indian Affairs which had contracted with the tribal police to provide law enforcement services during the time frame in question. Several months later, Shari Mauney of the DOI Field Solicitors Office issued a final administrative denial of my claim based upon a misrepresentation of federal law.
In her response, Mz. Mauney indicated that the tort claims act allows the government to settle claims based upon negligent acts or omissions by federal employees but failed to mention 'wrongful acts' which are also covered. She went on to state that because there was no indication of government negligence in my case, my claim could not be processed under the federal tort claim act.
Since it was the U.S. Attorney's Office that certified the tribal police were covered under the federal tort claims act to begin with, Mz. Mauney's reasoning made no sense whatsoever. I revisited the wording of the law just to make sure I hadn't misinterpreted it and found the following at 28 USC 2680(h):
"....with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346 (b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution."
My claim was never based upon negligence. Rather it was based upon the 'wrongful act' of malicious prosecution by tribal police acting within their capacity as federal law enforcement officers. Given the clear wording of the statute, Mz. Mauney purposefully misrepresented federal law in order to deny my administrative claim.
Gerald Frank, the defense attorney for the USA in this lawsuit, was cc 'd on Mz. Mauney's ruling so was well aware of her misrepresentation. In Mr. Frank's answer to the civil lawsuit, he states on pg. 3 at 19:
"The injuries and/or damages alleged in the Complaint were not proximately caused by a negligent or wrongful act or omission of an employee of the United States acting within the scope of his or her employment"
Which deviates from Mz. Mauney's decision:
"After reviewing the submitted claim and supporting documents, as well as the Agency reports, it does not appear that government negligence is indicated. Accordingly, we are required by the Federal Tort Claims Act to deny your claim."
In other words, U.S. Attorney Gerald Frank explicitly recognized that a 'wrongful act' must be considered in relation to this tort claim while Mz. Mauney denied my claim specifically BECAUSE it referenced a 'wrongful act' as opposed to negligence. In doing so, the BIA avoided investigating the incident - an investigation that would have uncovered evidence in support of this lawsuit.
One must either believe that Mz. Mauney is woefully incompetent or that she intentionally misrepresented federal law while U.S. Attorney Gerald Frank looked the other way. Regardless of the reason though, the bad faith being displayed by government actors in this case should be enough to outrage anyone.
If one reads through the entire response Mr. Frank filed on behalf of the federal government, you'll note that Mr. Frank admits to not knowing very much at all about this particular case. Nonetheless, that doesn't stop him from making several outlandish claims towards the end of the filing.
On page 3 at 20, Mr. Frank claims any damages I suffered weren't the fault or responsibility of the defendant's. How he comes to this conclusion based on his admitted lack of knowledge regarding the details of this case is a mystery. Nonetheless, he'll have quite a mountain to climb to convince anyone with integrity that the defendants weren't responsible for stopping me absent reasonable suspicion at an illegal multi-jurisdictional roadblock operation, dragging me from my vehicle for asking several probing questions, unlawfully detaining me for several hours along the side of the road, falsely charging me with violations of state law, and maliciously prosecuting me six months after the fact in retaliation to notice of claims served on the defendants for violation of my rights.
Mr. Frank goes on to state that I failed to mitigate damages or avoid consequences and that I was comparatively negligent. In other words Mr. Frank presumes that because I dared to seek justice through the justice system for the illegal acts committed against me by the defendant police officers, that I am equally culpable for damages suffered. Mr. Frank and I clearly live in different worlds. In my world, everyone is treated equally under the law and individuals who break the law, regardless of who they are, are held accountable. In Mr. Frank's world, government agents and employees are largely immune to responsibility for their transgressions and things such as administrative due process and the justice system are merely systems to be manipulated for the benefit of government actors.
Finally and most egregiously, Mr. Frank claims that I'm not entitled to damages according to A.R.S. 12-712 because I was in the midst of committing a criminal act when the damages resulted. Mr Frank must have taken a few pointers from Mz. Mauney with this one because he's either grossly incompetent for not being aware that all malicious charges against me were dismissed WITH PREJUDICE in state court or Mr. Frank is purposefully misrepresenting the facts to the federal court.
Given his position within the justice system and his responsibility to the American people, one has to wonder just how much justice is being dispensed by Mr. Frank from the U.S. Attorney's Office and whether or not he's even cognizant of the difference between power and justice.