No. CIV-97-113-B

DOUGLAS G. DRY, et al.,

Plaintiffs,
vs.

UNITED STATES OF AMERICA, et. al.

Defendants.

Comes now Plaintiffs, Douglas G. Dry, Juanita McConnell and Rosie Burlison, and for their response to federal defendant's motion with supporting brief to suspend discovery, to vacate scheduling order including trial date and to strike jury trial setting, assert the following:

The defense of qualified immunity is a factually dependent defense. In reviewing Rule 12(b)(6) motion to dismiss, the appellate court must accept all factual allegations in the complaint as true. Dababneh v. FDIC, 971 F.2d 428, 431 (10th Cir. 1992); Stump v. Gates, 986 F.2d 1429 (10th Cir. 1993). Assuming plaintiff's allegations are true, the court will not dismiss the complaint unless plaintiff apparently cannot prove facts entitling him/her to relief. Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir. 1994).

The test for determining qualified immunity is whether defendants violated clearly established statutory or constitutional rights of which a reasonable person would have known at the time of the challenged conduct occurred. Harlow v. Fitzegerald, 457 U.S. 800 818 (1982). The test is one of objective reasonableness, in light of the law at the time of the alleged violation. Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992). "For plaintiffs to defeat a claim of qualified immunity, the 'contours of the right must be sufficiently clear that a reasonable official would understand that what he was doing violates that right.'" Stump v. Gates, 986 F.2d 1429 (10th Cir. 1993), citing Snell v. Tunnell, 920 F.2d 673, 696 (10th Cir. 1990). Once plaintiff has satisfies his burden, the defendant must then show "no material issues of facts remain as to whether the defendant's actions were objectively reasonable in light of the law and the information the defendant possessed at the time of his actions." Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. 1991).

With this analytical structure in mind, plaintiffs first turn to the issue of whether clearly established law was violated by the federal defendants. First, the defendants Secretary of Interior and Bureau of Indian Affairs (BIA) officials were aware that the Choctaw Nation constitution limited criminal jurisdiction over tribal members. The BIA was a defendant in Morris v. Watt, 640 F.2d 404 (D.C. Cir. 1981), a case that ordered the Choctaw Constitutional referendum. The BIA conducted the referendum where Choctaw voters rejected expanding the jurisdiction of the court to include criminal jurisdiction, and the election adopting the constitution with such limitation. Defendant Larry Mings, BIA Talihina Agency Superintendent, was on the committee conducting these elections. The defendants Department of Interior, BIA, and the named federal officials were aware that the Indian and constitutional law expert Fred Ragsdale, Jr., had testified at the March 5, 1996, hearing in Choctaw CFR Court on the issue of criminal jurisdiction of the Choctaw Nation. Defendant Robert L. Rabon was prosecutor at this hearing. These federal defendants were aware that Ragsdale testified that the Choctaw Nation did not have criminal jurisdiction, and the tribe could only acquire criminal jurisdiction by amending the Choctaw Constitution and that no constitutional principle of law could support the federal government contracting criminal jurisdiction to the tribe, a separate sovereign. Ragsdale was appointed by the federal judge in Watt to arbitrate between the parties and chair the election committee, and was compensated by defendant Department of Interior. Plaintiffs have a right to be free from prosecution in a court that does not have jurisdiction over them, and such prosecution violates due process. Plaintiffs have the right to due process and to be free from malicious and selective prosecution. Plaintiffs have the right of free speech and free association. Plaintiffs have met their burden of showing clearly established law at the time of the arrest on September 4, 1995. The U.S. Constitution applies to the Choctaw Nation law enforcement and court by admission of defendant BIA in another case, therefore plaintiffs have all rights secured under the U.S. Constitution and Plaintiffs' allegations clearly allege U.S. Constitutional violations outlined above. The Plaintiffs have adequately pled their burden, and the burden is now on the federal defendants to allege facts sufficient for the claim of qualified immunity.

The federal defendants cannot met their burden of showing no material issues of acts remain as to whether defendants' actions were objectively reasonable in light of the law and the information defendant possessed at the time of the actions. The federal defendants deny all allegations of Plaintiffs' complaint. Such denial demonstrates a dispute of material facts. Defendant Kim Reed alleged she was not acting in an investigative or law enforcement capacity, an allegation Plaintiffs refuted with a video of Reed actively participating in the arrest of Plaintiff Burlison. Thus far, Plaintiffs have clearly showed at least one defendant has asserted to the court false statements. The Plaintiffs have not been shown to have made any false allegation or statement. With the current track record of the defendants, it would clearly appear the allegations asserted in Plaintiffs' complaint merit further discovery. Defendant Robert L. Rabon asserted that he did not maliciously prosecute Plaintiffs in Choctaw CFR Court, an allegation Plaintiffs refutes with factual allegations. Factual disputes exist over whether the officers had probable cause to arrest Plaintiff or whether such arrests violated their free speech.

Denial of the federal defendants' motion to dismiss on the grounds of qualified immunity "grounded upon a finding that disputed material facts exist in the case" is appealable. DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F.2d 714, 719 (10th Cir. 1988), quoted in Maxey by Maxey v. Fulton, 890 F.2d 279 (10th Cir. 1989). However, this does not foreclose discovery to Plaintiffs. As noted in Mitchell v. Forsyth, 472 U.S. 511, 86 L.Ed.2d 411 (1985), "[e]ven if plaintiffs' complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." 472 U.S. at 526. Discovery is permissible when plaintiff adequately alleges a violation, as Plaintiffs have at the case at bar. The 10th Circuit in Maxey agreed with the 5th Circuit that Harlow, Mitchell, and Jacquez v. Procunier, 810 F.2d 789 (5th Cir. 1986) make clear that:

"qualified immunity does not shield government officials from all discovery but only from discovery which is either avoidable or overly broad. Discovery designed to flesh out the merits of a plaintiff's claim before a ruling on the immunity defense or discovery permitted in cases where the defendant is clearly entitled to immunity would certainly fall within this category. Immediate appeal would lie from these orders because Harlow, Mitchell and Jacquez require that immune defendants be exempt from avoidable, burdensome pretrial matters."

Maxey, 890 F.2d at 282, quoting Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987). The 10th Circuit agreed that:

"Discovery orders entered when the defendant's immunity claim turns at least partially on a factual question; when the district court is unable to rule on the immunity defense without further clarification of the facts; and which are narrowly tailored to uncover only those facts needed to rule on the immunity claim are neither avoidable or overly broad. Such orders are not immediately appealable."

Id at 507-08. Plaintiffs should be allowed to move forward with discovery to build a sufficient record to determine if the federal defendants have a valid qualified immunity claim. If, after discovery, it is established that the federal defendants committed no unlawful act, there is no liability from which the defendant need claim immunity.

One defendant officer and another Choctaw officer are no longer working for the tribe. The separation from the Choctaw law enforcement employment will make availability for deposition and answering interrogatories more difficult. Even though these officers are federal officers, the Choctaw administration may fire officers of the Choctaw law enforcement at will with no cause or notice. If this right were exercised by the current chief as he re-organizes his government, with the assistance of the defendant BIA, Plaintiffs ability to obtain discovery from officers separated from Choctaw Nation employment would be hampered. Plaintiffs must prepare for trial and with discovery, may be entitled to summary judgment prior to trial. In the interest of justice, discovery must be allowed to proceed.

The federal defendants are essentially asking the court to issue judgment against Plaintiffs by staying discovery until the qualified immunity question is decided but qualified immunity cannot be decided without discovery. This motion must be denied.

Respectfully submitted,

_________________________
SCOTT KAYLA MORRISON, OBA #017323
Attorney for Plaintiffs
103 _ West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033

On the ____ day of July, 1997, I certify that I placed in the U.S. Mail, first class postage pre-paid a true and correct of the above and foregoing Plaintiff's Response to Federal Defendant's motion with supporting brief to suspend discovery, to vacate scheduling order including trial date and to strike jury trial setting to the following:

Peter Bernhardt Eric Janzen
Assistant U.S. Attorney W.G. "Gil" Steidley, Jr.
333 W. Fourth Street, Ste. 3460 Steidley & Neal
Tulsa, OK 74103 P.O. Box 1165
McAlester, Oklahoma 74502

Alison Cave
Steidley & Neal
PO Box 1165
McAlester, OK 74502

_________________________________
Scott K. Morrison