DEFENDANT UNITED STATES' REPLY TO PLAINTIFF'S OPPOSITION TO MOTION

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DEFENDANT UNITED STATES' REPLY TO PLAINTIFF'S OPPOSITION TO MOTION Powered By Docstoc
					 1     DANIEL G. KNAUSS
       United States Attorney
 2     District of Arizona
       Gerald S. Frank
 3     Assistant U.S. Attorney
       Arizona State Bar No. 003545
       Suite 4800
 4     405 W. Congress Street
       Tucson, Arizona 85701-5040
 5     Telephone: (520) 620-7300
       Civil fax: (520) 620-7138
 6     gerry.frank@usdoj.gov
       Attorneys for United States of America
 7
 8                               UNITED STATES DISTRICT COURT
 9                                         DISTRICT OF ARIZONA
10
        Terrence Bressi,                                      CIV 04-264 TUC-JMR
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                              Plaintiff,
12                                                      DEFENDANT UNITED STATES’
               v.                                         REPLY TO PLAINTIFF’S
13                                                      OPPOSITION TO MOTION FOR
                                                           SUMMARY JUDGMENT
14      Michael Ford, Eric O’Dell, George
        Traviolia, and Richard Saunders, and
15      United States of America,
16                            Defendants.
17
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19            Defendant United States of America, by and through undersigned counsel, and
20     pursuant to Rule 56, Federal Rules of Civil Procedure, hereby files its Reply to
21     Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment. This Reply is
22     supported by the accompanying Memorandum of Points and Authorities and all
23     matters of record.
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     Case 4:04-cv-00264-JMR        Document 126     Filed 04/03/2007   Page 1 of 11
 1                     MEMORANDUM OF POINTS AND AUTHORITIES
 2
 3                        I. Objections to Plaintiff’s Statement of Facts
 4           1. Plaintiff references fact statements 1 - 30 set forth in his Statement of Facts
 5     in Support of Plaintiff’s Opposition to Defendants” Motion for Summary Judgment
 6     dated November 24, 2006, as his first statement of fact. In 22 of those 30 fact
 7     statements, defendant further references exhibits attached to Plaintiff’s Separate
 8     Statement of Facts Supporting Amended Response to Motion for Reconsideration,
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       dated May 6, 2005. Defendant United States has been unable to obtain copies of
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       those attached exhibits to the latter document because the Government was not a
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       party to this suit at that time and thus was not served a copy, and because the
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       Clerk’s Office file in this matter does not have any such document at that docket entry
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       number 48. To the extent that other available sources of facts are referenced, the
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       following are the Governments objections or admissions to facts 1 - 30:
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                    2. Admit the last sentence.
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                    3., 4. Admit.
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                    5. Admit the last sentence.
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                    6., 7. Admit.
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                    8. Admit the first 2 sentences.
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                    9. Admit.
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                    10. Admit the first sentence.
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                    11. - 13. Admit.
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                    14. Object. Chief Saunders testified that officers might run a warrants
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             check if time and traffic conditions permitted. (Exh. E, Saunders Deposition,

26           p. 47, line 22 - p. 49, line 13.)

27                  17.   Admit the first sentence.      Object with respect to Lt. Ford’s

28           recollection of the exact questions that Plaintiff asked regarding suspected

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     Case 4:04-cv-00264-JMR      Document 126       Filed 04/03/2007   Page 2 of 11
 1           wrongdoing. (Exh. A, Ford Dep., p. 33, line 12 - p. 35, line 4.)
 2                   18. Admit the first sentence.
 3                   20. Admit.
 4                   22., 23., 27., 28., Admit the last sentence.
 5                   29. Object. Officer Traviolia looked up the statute citation numbers
 6           himself. (Exh. B, Traviolia Dep., p. 51, lines 11 - 21.)
 7
 8           2. - 4. Admit
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             5. Object. The transcript of Traviolia interview with Mark Victor was not under
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       oath and is not a competent evidence in a summary judgment motion. The Federal
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       Rules of Civil Procedure requires statements considered in disposing of a motion for
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       summary judgment to be "admissible in evidence" and "made on personal
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       knowledge." Fed. R. Civ. P. 56(e). “Like affidavits, deposition testimony that is not
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       based on personal knowledge and is hearsay is inadmissible” in a motion for
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       summary judgment. Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir.
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       1990).
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             6. Same objection as number 5 above; Lt. Ford’s phone interview was not
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       under oath.
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             7.   Object.    Most of the recitations in this fact paragraph are accurate.
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       However, Lt. Ford testified at his deposition that the operational plan for the
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       December 2, 2002, checkpoint were not produced because they simply could not be
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       found. (Exh. A, Ford Dep., p. 72, lines 1 - 17.)
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             Additional facts will be referred to as necessary in the text of the argument
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       below.

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     Case 4:04-cv-00264-JMR       Document 126       Filed 04/03/2007   Page 3 of 11
 1                                            II. Argument
 2              A. Applicable Law
 3              Plaintiff first argues that probable cause is determined by Arizona law, not
 4     federal law. Since the Tohono O’odham officers were citing Plaintiff for a state
 5     offense, Plaintiff is correct. In the end, this is a distinction without a difference.
 6     Probable cause to believe that a traffic offense had been committed is essentially the
 7     same under Arizona law:
 8              [Arizona Revised Statute] subsection 13-3883(A)(4)1 ... plainly grants authority
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                to arrest a person for a misdemeanor offense if the officer has probable cause
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                to believe both that the offense has been committed and that the person to be
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                arrested has committed the offense.
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       State v. Keener, 73 P.3d 119, 121 (Ariz. App. 2003). Probable cause to arrest for a
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       violation of A.R.S. 28-1595(B) is based on the simple failure of a vehicle operator to
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       produce his driver’s license to an officer upon demand. State v. Bonillas, 3 P.3d
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       1016 (Ariz. App. 1999). “The thrust of Part B of this statute is to penalize motorists
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       who refuse to display their driver’s licenses...” Bonillas at 1017, quoting State v.
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       Boudette, 791 P.2d 1063, 1065 (Ariz. App. 1990) (upholding similar language in
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       A.R.S. 28-1075(B), the predecessor statute of § 1595(B)).
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                B. Constitutional Challenge
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                Much of Plaintiff’s response is directed at the constitutionality of the sobriety
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       checkpoint conducted by the TOPD officers. In doing so he conflates the Fourth
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       Amendment probable cause constitutional issue pertaining to the sobriety checkpoint
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       with the affirmative defense of probable cause to arrest and cite for the traffic

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            1
27            A.R.S. 13-3883(A)(4) permits an officer to make a warrantless arrest if he has
     probable cause to believe: “A misdemeanor or a petty offense has been committed and
28   probable cause to believe the person to be arrested has committed the offense....”

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     Case 4:04-cv-00264-JMR        Document 126      Filed 04/03/2007    Page 4 of 11
 1     violations asserted in defense of the malicious prosecution tort claim. He claims that
 2     the checkpoint was constitutionally deficient and therefore there could not have been
 3     probable cause to detain and question Plaintiff, which led to his refusal to produce
 4     his driver’s license or to move his vehicle. Plaintiff is essentially arguing that this
 5     Court should apply the exclusionary rule to preclude an affirmative defense by the
 6     Government that there was probable cause for his subsequent traffic citations.
 7           First, Plaintiff’s challenge to the constitutionality of the checkpoint is foreclosed
 8     by this Court’s orders in this matter of September 27, 2005, and March 28, 2007,
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       granting summary judgment to the TOPD officers on Plaintiff’s complaint against the
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       officers for alleged Fourth Amendment violations arising out of their conduct of the
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       checkpoint. The Court found that the officers had tribal immunity from liability for the
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       roadblock, and thus were not liable for making an illegal stop. (Order, March 28,
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       2007, pp. 7 - 8.)
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             Second, the Fourth Amendment exclusionary rule generally does not apply to
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       civil proceedings. Townes v. City of New York, 176 F.3d 138, 149 (2d Cir.1999)
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       (“[T]he fruit of the poisonous tree doctrine is not available to assist a § 1983
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       claimant.”); Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir.1997) (exclusionary rule
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       does not apply in a § 1983 action; “Such an application would be inappropriate. The
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       Supreme Court has never applied the exclusionary rule to civil cases, state or
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       federal,” citing City of Waco v. Bridges, 710 F.2d 220, 225 (5th Cir.1983)). This is
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       true even where the evidence is used against the person aggrieved by the violation.
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       I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984) (exclusionary rule does not apply to
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       deportation proceeding; evidence of alien’s admission of illegal entry admissible
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       despite unlawful arrest). But see, Gonzalez-Rivera v. I.N.S, 22 F.3d 1441 (9th Cir.

26     2005) (exclusionary rule may apply to civil deportation proceedings where there is

27     egregious conduct on the part of the officers).

28           The Second Circuit explained the rationale for not applying the exclusionary

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     Case 4:04-cv-00264-JMR      Document 126       Filed 04/03/2007     Page 5 of 11
 1     rule to civil constitutional or common law tort actions in Townes, supra:
 2           Civil actions brought under § 1983 are analogous to state common law tort
 3           actions, serving primarily the tort objective of compensation. See Carey v.
 4           Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 1047, 55 L.Ed.2d 252 (1978); see
 5           also Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct.
 6           2537, 2543, 91 L.Ed.2d 249 (1986) (“Deterrence is also an important purpose
 7           of this system, but it operates through the mechanism of damages that are
 8           compensatory-damages grounded in determinations of plaintiffs' actual
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             losses.”). A § 1983 action, like its state tort analogs, employs the principle of
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             proximate causation. See Gierlinger v. Gleason, 160 F.3d 858, 872 (2d
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             Cir.1998). The fruit of the poisonous tree doctrine, however, disregards
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             traditional causation analysis to serve different objectives. See Wong Sun, 371
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             U.S. at 487-88, 83 S.Ct. at 417; United States v. Walker, 535 F.2d 896, 898
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             (5th Cir.1976) (“The Court [in Wong Sun ] specifically rejected a ‘but for’ or
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             proximate cause test.”). To extend the doctrine to § 1983 actions would
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             impermissibly recast the relevant proximate cause inquiry to one of taint and
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             attenuation. See Reich [v. Minnicus], 886 F.Supp. [674] at 685 [S.D. Ind. 1993]
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             (“In this [§ 1983] analysis, ... the operative standard is the tort principle of
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             proximate cause, not the exclusionary rule's principle of taint and attenuation.
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             The two are not identical.”).
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                   In a § 1983 suit, constitutionally invalid police conduct that by itself
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             causes little or no harm is assessed on ordinary principles of tort causation
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             and entails little or nominal damages. The fruit of the poisonous tree doctrine
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             is not available to elongate the chain of causation.

26     Townes v. City of New York, 176 F.3d at 146 (footnote omitted).

27           Finally, the checkpoint complied with Fourth Amendment principles. The

28     Supreme Court has upheld the concept of suspicionless checkpoint stops at a fixed

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     Case 4:04-cv-00264-JMR     Document 126      Filed 04/03/2007    Page 6 of 11
 1     Border Patrol checkpoint. United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
 2     In Martinez-Fuerte, the Supreme Court held that the government's legitimate
 3     interests advanced by the temporary seizure outweighed the minimal intrusion on a
 4     motorist's privacy. Martinez-Fuerte, 428 U.S. at 561-62.
 5           In balancing these interests during a checkpoint stop, the Court specifically
 6     considered: (1) whether the procedure was routinely and evenly applied to all
 7     vehicles; (2) whether the checkpoint involved little officer discretion and was not likely
 8     to result in abuse; and, (3) whether the appearance of authority of the officers at the
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       checkpoint would allay the concerns of lawful travelers. Id. at 556-60. As this Court
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       noted in its March 28 order at p. 3, the officers stopped vehicles at the roadblock and
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       asked all drivers the same questions pertaining to intoxication and identification. If
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       evidence of violations were found, the offenders were cited into the appropriate court
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       or, in the case of federal drug or immigration violations, turned over to federal officers
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       on the scene. It is uncontested that the officers were uniformed and in marked law
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       enforcement vehicles. Thus the basic criteria of Martinez-Fuerte were satisfied.
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             Sobriety checkpoints of the type conducted by TOPD were upheld in Michigan
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       Department of State Police v. Sitz, 496 U. S. 444 (1990). Moreover, the Supreme
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       Court previously suggested that a similar checkpoint solely for checking for driver’s
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       licences and vehicle registrations would not offend the Fourth Amendment:
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             This holding does not preclude the State of Delaware or other States from
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             developing methods for spot checks that involve less intrusion or that do not
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             involve the unconstrained exercise of discretion. [Footnote omitted.]
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             Questioning of all oncoming traffic at roadblock-type stops is one possible
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             alternative. We hold only that persons in automobiles on public roadways may

26           not for that reason alone have their travel and privacy interfered with at the

27           unbridled discretion of police officers.

28     Delaware v. Prouse, 440 U.S. 648, 663 (1979). The Ninth Circuit has upheld

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     Case 4:04-cv-00264-JMR      Document 126       Filed 04/03/2007    Page 7 of 11
 1     temporary checkpoints on a U.S. Marine base where the purpose was to check
 2     vehicles for aliens. United States v. Hernandez, 739 F.2d 484 (9th Cir. 1984). In
 3     United States v. Prichard, 645 F.2d 854 (10th Cir. 1981), the Tenth Circuit upheld a
 4     roadblock set up on Interstate 40 to conduct a routine driver’s license and car
 5     registration check. Furthermore, the fact that the officers made arrests for non-DUI
 6     offenses, or that it may have been one of their purposes, does not invalidate the
 7     legality of the checkpoint as long as there was an independent administrative
 8     justification for the checkpoint. United States v. Soto-Camacho, 58 F.3d 408, 411-12
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       (9th Cir. 1995). Accordingly, the officers were well within constitutional parameters
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       in requesting that Plaintiff display his driver’s license at the checkpoint.
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             C. Authority to Cite Plaintiff for a State Violation
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             Plaintiff makes the argument that the TOPD officers “...specifically eschewed
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       that authority [under Arizona Peace Officers Standards and Training (AZ-POST)
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       authority to enforce state law] when operating this roadblock.” (Plaintiff’s Opposition
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       to Defendant USA’s Motion for Summary Judgment, p. 7, line 26 - p. 8, line1.) The
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       short answer to that argument is that they certainly did not lose their authority to cite
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       non-Indians into state court for state law violations and had every right – and duty –
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       to do so. Nor were the officers required to advise Plaintiff of their various authorities.
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       He apparently never asked and, in any case, took his chances when he refused to
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       obey their lawful demand.
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             Plaintiff also makes a claim that the citing officer did not “check the statutes”
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       either on December 20, 2002, or when he re-issued the citation. He makes no claim
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       that the officer cited the wrong statute on either occasion.           Plaintiff’s factual

26     recitations are simply wrong. The officer did not call dispatch for “some statute

27     codes” on the evening of the offense. He knew that Bressi’s refusal to display his

28     driver’s license and to move his vehicle were violations and looked up the actual

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     Case 4:04-cv-00264-JMR      Document 126       Filed 04/03/2007    Page 8 of 11
 1     statute numbers himself at the scene. (Exh. B, Deposition of George P. Traviolia, II,
 2     p. 51, lines 11 - 21.) Later when he re-issued the citation, he called the prosecutor
 3     at the county attorney’s office. (Exh. B, Traviolia Dep., p. 80, lines 7 - 16.)
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 5
 6            D. Plaintiff Could Not Have Violated A.R.S § 1595(B).
 7            Plaintiff claims that he could not have violated A.R.S. § 1595(B) because the
 8     officers eventually found his driver’s license. He cites A.R.S. § 1595(E) which
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       provides that there shall be no conviction if the cited person produces other
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       identification in conformance with § 1595(B)(1 - 5) and later produces a driver’s
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       license to the court which was valid at the time. This argument is, of course,
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       specious. The defense provided in § 1595(E) is designed for one who inadvertently
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       forgot to bring his driver’s license, not for individuals like Plaintiff who in fact had his
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       driver’s license and refused to display it on demand. In fact, he never produced an
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       alternative identification at the scene, and, for obvious reasons, did not later produce
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       a valid driver’s license to a court. The officers found it on the scene despite Bressi’s
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       best efforts to withhold it. As the Bonillas court noted, the thrust of the statute is to
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       penalize those who refuse to produce their driver’s licenses. State v. Bonillas, 3 P.3d
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       at 1017.
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              There is no genuine issue of fact that Plaintiff refused to produce his driver’s
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       license. Plaintiff does not even contest the probable cause for the other citation,
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       failure to move his vehicle as directed by the officers directing traffic, in violation of
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       A.R.S. § 28-622(A). Finally, this Court found in its March 29 order, pp. 7, 11, that
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       there was probable cause to believe the Plaintiff committed both cited violations.

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27            E. Independent Prosecutorial Decision to Prosecute

28            Plaintiff appears to argue that the Government cannot assert the defense of

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     Case 4:04-cv-00264-JMR       Document 126       Filed 04/03/2007     Page 9 of 11
 1     an independent prosecutorial decision as an affirmative defense to the malicious
 2     prosecution claim because the TOPD officers may have had some hand in not
 3     producing the records ordered to be produced on the day of trial. However, that is
 4     an issue that arose after the independent decision was made by the prosecutor to go
 5     forward with the previously dismissed charges. Although the records simply could
 6     not be found, nevertheless, even assuming that a law enforcement decision was
 7     made at the trial not to produce the records, that was a post-charging discovery
 8     decision that has no bearing on the independent decision of the prosecutor to go
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       forward with the charges in the first instance.
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                      Respectfully submitted this 3rd day of April, 2007.
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                                                          DANIEL G. KNAUSS
14                                                        United States Attorney
                                                          District of Arizona
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16                                                        s/ Gerald S. Frank
                                                          Gerald S. Frank
17                                                        Assistant U.S. Attorney
18     Copy of the foregoing has been served electronically
       or by other means this 3rd day of April, 2007, to:
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       David J. Euchner
20     32 North Stone Avenue
       Suite 400
21     Tucson, AZ 85701-1406
       Attorney for Plaintiff
22     (520) 740-5765
       deuchner@comcast.net
23
       James Palmore Harrison
24     The First Amendment Project
       1736 Franklin Street, 9th Floor
25     Oakland, CA 94612
       510-208-7744
26     Co-counsel for Plaintiff
       JPH@well.com
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     Case 4:04-cv-00264-JMR         Document 126      Filed 04/03/2007   Page 10 of 11
 1     Roger W. Frazier
       Gust Rosenfeld, P.L.C.
 2     One S. Church Ave., Suite 1900
       Tucson, AZ 85701-1627
 3     (520) 628-7070
       Attorneys for Defendant Officers
 4      of the Tohono O’odham Police Dept.
       rfrazier@gustlaw.com
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     Case 4:04-cv-00264-JMR      Document 126   Filed 04/03/2007   Page 11 of 11