Post details: Romero Deposition & Lawsuit Update

2011-11-09

Permalink 10:27:04, Categories: News, Roadblock Lawsuit, 2951 words   English (EU)

Romero Deposition & Lawsuit Update

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.

[More:]

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.

Comments:

Comment from: Bill [Visitor]
The Romero deposition of 2011 gives me the impression that Romero has been used against his own self interest. Romero could have stayed clean in this, and clear. With his 2011 deposition, Romero has now made inconsistent statements which give the appearance of possible perjury. It is kind of a sad thing to see, because it looks like the government may be using a dumb guy (Romero), to further their own interests. Why this case would be of so much interest to the government, for them to sink to these depths, is puzzling. Romero was not a principal in this, and now, perhaps, he is. I almost feel sorry for him (but not quite).
My impression is that Romero may be perjuring himself in his 2011 testimony. It appears Romero is now changing his story on the objectives of the checkpoint, to give the impression that the checkpoint was being conducted in a lawful manner. Romero is obviously contradicting what he said previously about the objectives of the checkpoint, and he's defensive about it, which gives the appearance of being self-serving and of lying. The 2011 deposition gives the appearance of perjury. Naturally one wonders whether Defense Attorney Frazier may have coached Romero ("horse-shedding the witness"), and in so doing he may have suborned perjury. That's what it smells like. On the other hand, it's hard to imagine that an attorney such as Frazier would be so reckless, because if he did suborn perjury, then Romero now owns Frazier, if he wants to, especially if subornation of perjury was audio recorded. I don't know if unannounced audio recording can be used as evidence in AZ, but it's a nagging worry where I live. You think back and wonder - was I recorded? If you were, it's admissible, where I live. When it dawns on Romero that he was used like an unpaid Ho, and put in potential jeopardy, with no benefit to himself, he may get testy. I wonder if Frazier could be disbarred if it could be shown that he suborned perjury.
Certainly Romero's inconsistent statements can be used to impeach his credibility. I wonder if he could be questioned on the stand about whether he was coached to change his story about the objectives of the checkpoint. If Romero is indeed lying, it would be good to lock that in even more. It does appear that the inconsistent statements are now pretty well locked in, and the new story is self-serving for the government (I can't see that Romero had a dog in this fight - maybe he's just too dumb to know that). The government maybe chummed up to him and did the buddy buddy thing that he (Romero) was on their side, and that he should help them. Romero probably is dumb enough to fall for that. It would be appalling if the government attorneys would be scummy enough to do that to Romero. Romero's changed story is NOT self serving to Romero. From what I can see, Romero was not even a part of this - until his inconsistent statements in the 2011 deposition, that suggest impropriety. Now Romero is part of this, potentially. It appears to me that Romero may be being used in an incredibly shabby manner by the government counsel, and it appears to be a potentially dangerous game for them to play, and I don't know why they would take the chance. Are they getting paid extra or something? Frazier may be improperly using Romero to manipulate the case, but Romero is jeopardized in the process, and now becomes part of the case. If Romero starts feeling squeezed somehow, there is the possibility that he could turn on Frazier.
Romero doesn't appear to be too bright, so it's perhaps not unusual that he could be used so blatantly by the government. This conjures up a mental image of Romero covered with goo all over his face after a government g-bang. One wonders if Romero knows what they did to him, even now.
On the other hand, I would think it would be foolish for a government attorney to suborn perjury from a cop, because often the cops are so dumb they could rat you out without even intending to. Are the stakes here that high for the government for an attorney to be getting dirty for it? That's kind of what it smells like here, as reckless as that would seem.
When I was a kid we'd turn over a rock in a drainage pipe and all the millipedes and ballbugs and other creatures of the wet, stank, darkness would scurry about with the vague scent of cyanide and the anoxic smell of the dark world. That's what I am reminded of here. Look at them scurry about. Dumb cops and government creeps. Yikes.
Sorry if I was over the top a little here. The state has an unclean appearance here, and it does conjure up some unsettling mental images.

pages 46 and 47 of https://www.checkpointusa.org/roadblock/lawsuit/docs/preTrial/depositionDocs/Romero/RomeroDeposition.pdf
Permalink 2011-11-16 @ 21:39
Comment from: Bill [Visitor]
The origin of Romero's disability?

http://www.kold.com/Global/story.asp?s=8965128
Permalink 2011-11-16 @ 22:17
Comment from: Bill [Visitor]
Judge Francis Finch of the New York
Court of Appeals in In the Matter of
Eldridge, 37 N.Y. 161, 171 (1880), that
the attorney’s “duty is to extract the
facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.”
Permalink 2011-11-16 @ 23:22
Comment from: Roger [Visitor]
Who is paying Frazier. Is it the defendants, Tohono O'odham, ?
Thanks
Permalink 2011-11-17 @ 23:47
Comment from: rivo [Visitor]
This case is the front lines in the fight to regain the 4th Amendment. You are a credit to America. It surprises me that the Defense would have contact with a deponent before a deposition, especially with the circumstances here. I think (I hope) that's highly unusual. I'm surprised the judge hasn't restricted that. This has already been remanded once. Maybe the judge will pull up his socks. He doesn't appear to have control. I think he'd better rein in the Defense. The Defense appears to be reckless to an extent that's hard to fathom. If you back away, and look at the forest instead of the trees, the question is . . . do we think those Tribal cops even had a clue that they were prohibited from conducting a general crime control checkpoint. When I look at the totality of the circumstances, I conclude those tribal cops thought they were SUPPOSED to conduct a general crime control checkpoint. I think it's hard to hide that. It is perhaps more disturbing that the Feds were there exploiting the situation. They paid no attention to the Supreme Court Decisions. Maybe they weren't even aware of them. That's the way it looks to me. As an American, I find the disregard for the Constitution by the Justice System to be chilling.
Permalink 2011-11-18 @ 02:22
Comment from: Chris [Visitor]
Will you be filing a post-deposition motion to compel discovery on the 90 minute "witness preparation?" It seems far-fetched to hide behind work product on that one. It seems improper.
Permalink 2011-11-18 @ 12:49
Comment from: RobertZ [Visitor]
If Romero's testimony was so important to them, you'd think they'd be more careful about how they got it, so they could actually use it to help their case. If they use his deposition now, the rest of the story comes out, and makes the Defense look awful. They have lost credibility, and the Romero deposition will work against them. Not a good outcome, I would think, for the Defense. Defense will need to count on that Court being totally corrupt, but that court is under the shadow of the 9th Circuit. It is interesting to follow this.
Permalink 2011-11-21 @ 00:23
Comment from: pablo [Visitor]
This is a good example of how hard fought our rights are gotten.

People who cavalierly throw away their rights and refuse to exercise them are a disgrace.
Maybe if they went through a ordeal like this to exercise and defend the constitution, they might honor and appreciate those who sacrificed to get us these rights.

Utube is so full of bootlickers its embarrassing. I never realized how many people prefer a police nanny state over personal liberties.
Permalink 2011-11-24 @ 07:33
Comment from: VAPA [Visitor]
These checkpoints will take on a whole new meaning once the President signs into law Senate Bill 1867. Now when they claim they have PC, and order you out of the vehicle, you should wonder if *somebody* doesn't suspect you of being a "terrorist" - that suspicion alone will justify them arresting you, transporting you to Cuba or any other military prison outside the U.S., and keeping you there without charge or trial indefinitely.

Sounds crazy I know! It's crazy knowing that this law is obviously unconstitutional. I'm beside myself on this one too. But that is what is happening. Once the President signs this law already passed by House and Senate (and he will), the Fourth Amendment and the entire Bill of Rights will have been destroyed.

By mere suspicion that you are aiding terrorists, they will according to this law be able to arrest you and detain you indefinitely off-shore without a charge or a trial. In America.

Only the courts will be able to save our liberty, but will they when people can be disappeared from America without charge or the right to trial?

All the "show your papers" comments concerning checkpoints will take on a whole new meaning. HR 1687. It's about to get real and some of our Senators can't wait to make it so: http://www.youtube.com/watch?v=m7tavj7Jhko
Permalink 2011-12-04 @ 11:08
Comment from: checkpoint charlie [Visitor]
Thank you. This is part of larger police/BP movement.
from a Libertarian site:
On a nice summer day, when the lights are red, there can be lines of backed up traffic, sometimes 50 cars deep at each of these signals. This one day I noticed that with each red light, cops on both sides of the street would walk alongside the trapped cars and look inside. Many of the cars were then motioned over to an area where two cops were stationed, ticket books in hand. It got me curious, so I went over and asked one of the cops what was going on. "Traffic safety patrol", he answered.
Permalink 2011-12-12 @ 12:02

Comments are closed for this post.

Roadblock Revelations

Welcome to Checkpoint USA's blog. Here you'll find general information and discussions regarding growing threats to our right to privacy & travel.

While I refer to court cases along with state and federal law frequently in this blog, nothing written here should be construed as legal advice. I am not an attorney. Rather, I'm someone concerned about the growing disregard for individual rights present at all levels of government.

My conclusions are my own based upon personal experience and research. The law is made purposely complex however and varies significantly from place to place and circumstance to circumstance.

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