No. CIV-97-113-B

DOUGLAS G. DRY, et al.,

Plaintiffs,

VS. UNITED STATES OF AMERICA, et al.,

Defendants.

The Plaintiffs, Douglas G. Dry, Juanita McConnell, and Rosie Burlison, hereby submit their Response to the Motion to Dismiss filed on behalf of the United States of America, Bruce Babbitt, Ada Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson, Larry Mings, Robert L. Rabon, and Kim Reed.

1. On September 4, 1995, Plaintiffs were arrested and charged on September 14, 1995, with 19 crimes.

2. Defendant Kim Reed, Director of Choctaw Nation Law Enforcement Program, was present in Tuskahoma, Oklahoma, on September 4, 1995, in a law enforcement capacity. Defendant Reed accosted Plaintiff Rosie Burlison while Burlison was recording the arrest of Plaintiff Juanita McConnell. Reed's agression was captured by the video camera as shown by Defendant's Reeds outstretched hand in her pursuit to turn off Plaintiff Burlison's
video camera. See Plaintiff's Response to Kim Reed's Motion to Dismiss, at Exhibit B, video. In Defendant Reed's actions to prevent Plaintiff Burlison from recording the willful and agressive actions of Choctaw Nation police officers. Defendant Reed did turn off the shutter lense of the camera, but mistakenly left the audio recorder on. Defendant Reed asked Plaintiff Burlison, "Do you want to go to jail? Defendant Reed told Choctaw Chief of Police, Hoppy Denison, "Hoppy, we need some help over here," and then ordered Burlison "you turn the camera off." Shortly thereafter, Defendant Reed seized Burlison's video camera with physical force. Plaintiff Burlison was handcuffed by Defendant Bill Barrow.

3. Defendant Reed was also present in Tuskahoma, Oklahoma, on September 4, 1995, in an investigative capacity. Plaintiff McConnell was placed in a Choctaw Nation police car and Plaintiff Burlison's video camera still recording with shutter closed and audio only, was placed in the back seat by the Choctaw Nation police with Plaintiff McConnell. While in the Choctaw Nation police car, and prior to leaving Tuskahoma, Defendant Reed radioed to Choctaw Nation Chief of Police, Hoppy Denison, saying, "Hoppy, ...man in checkered shirt, I mean in purple hat has more literature ... ". See Plaintiffs' Response to Kim Reed's Motion to Dismiss, at Exhibit B, video.

4. Defendant Reed further assisted Choctaw Nation police officers by supervising female escorts for both Plaintiffs Burlison and McConnell.

5. Robert L. Rabon is tribal prosecutor for the Choctaw CFR Court of Indian 0ffenses, the judicial branch of the Choctaw government, and tribal attorney representing the executive, legislative, and judicial branch of the Choctaw government. See Exhibit A, Contract for Legal Services, TAC-025-91, attached hereto.

6. In 1995, five criminal cases were filed in the Choctaw CFR Court. Plaintiffs were four of these five cases, and Randal Hicks was the fifth. Hicks was arrested for possessing the literature distributed by Plaintiff's, arraigned but formal charges were not filed.1During the year of 1995, the Choctaw Nation law enforcement received reports or investigated 205 offenses, broken down by quarter as follows:

January, February, and March 1995 reported 41 offenses2

April, May, and June 1995 reported 51 offenses3

July, August, and September, 1995 reported 60 offenses4 (back)

October, November, and December 1995 reported 60 offenses5

In September 1995, 21 offenses were reported or investigated, See Plaintiffs' Response to Robert L. Rabon's Motion to Dismiss, at Exhibit . It is assumed Plaintiffs Burlison, McConnell and Dry were the three disturbing the peace, identified with the number "3" in Exhibit ____, since they were all charged for this crime at the same time. There are two single incident reports of disturbing the peace during this same month. However, no criminal cases were filed against anyone else, except the Plaintiffs for the entire year for disturbing the peace. It appears from the statistics that Plaintiffs were the only citizens charged during the entire year for disturbing the peace, even though other reports of disturbing the peace were investigated by the Choctaw Nation law enforcement.

7. Defendant United States admitted it was exercising federal criminal jurisdiction contracted from the Bureau of Indian Affairs ("BIA"). See Plaintiffs' Response to Defendant Bob Rabon's Motion to Dismiss, at Exhibit C, Defendant's Bureau of Indian Affairs, Responses to Plaintiffs' Request for Admissions.

8. Further, the BIA admitted that the Court of Indian Offenses for the Choctaw Nation is a federal administrative court with criminal jurisdiction contracted from the federal government through a Public Law 93-638 contract. Id. The BIA is required to approve all criminal laws adopted by the Choctaw Council prior
to enforcement. Id.

PROPOSITION I: THE MOTION TO DISMISS MAY NOT ASSERT FACTS OUTSIDE THE PLAINTIFF'S PLEADING

Generally, a petition may be dismissed as a matter of law for two reasons: (1) lack of any cognizable legal theory, or (2) insufficient facts under a incognizable legal theory. Kentucky Central Life Insurance Co. v. LeDuc, 814 F.Supp. 832, 835 (N.D. Cal. 1992). When a trial court is considering its ruling on a Rule 12(b)(6) motion it should not ask whether the petition points to an appropriate statute or legal theory, but whether relief is possible under any set of facts that could be established consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 2 L.Ed.2d 80 (1957); Bartholet v. Reishauer, A.G., 953 F.2d 1073 (10th Cir. 1992). While reviewing a motion to dimiss, the court must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them. Williams v. Eaton, 443 F.2d 422 (10th Cir 1971). Defendants United States of America, Bruce Babbitt, Ada Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson, Larry Mings, Robert L. Rabon, and Kim Reed have not met their burden in the Motion to Dismiss, and it should be denied.

PROPOSITION II: THIS COURT HAS JURISDICTION TO HEAR COUNT XVII OF PLAINTIFF'S AMENDED COMPLAINT

In Count XVII of the Amended Complaint, Plaintiffs seek damages for violations of Article 7 of the Treaty of Dancing Rabbit Creet, Article 14 of the Treaty signed between the Choctaw Nation, the Chickasaw Nation, and the United States on June 22, 1985, and Article 10 of the Treaty signed between the Choctaw Nation, the Chickasaw Nation, and the United States on July 10, 1866. In the Motion to Dismiss, the United States seeks to dismiss Count XVII, asserting that the claim should have been brought in the Court of Federal Claims because the Plaintiffs seek damages in excess of $10,000.

The jurisdiction of the Court of Claims is limited to claims against the United States "in favor of any tribe, band or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States..." 28 USC § 1505. "The jurisdictional acts authorizing the claims litigation constitute an exception to the sovereign immunity of the federal government from suit, the acts are read narrowly to exclude claims not specifically authorized." Cohen's Handbook on Federal Indian Law, 563 (1983 ed.). Plaintiffs are individual Indians, not a tribe over which the Court of Claims has jurisdiction. Plaintiffs are individual Indians, not a tribe over which the Court of Claims has jurisdiction. Rather, the district court has jurisdiction to hear all civil actions arising under the Constitution, laws or treaties of the United States. 28 USC § 1331.

Further, the Treaties under which Plaintiffs' claims are based say that petitioners only need to make demand of treaty violations to the federal agency.

The Motion to Dismiss also states that the claims asserted in Count XVII should be dismissed as to the individual defendants, claiming that the Amended Complaint contains no factual allegations regarding their involvement with the treaties. Contrary to the Defendants assertions, the Amended Complaint sets forth the specific facts upon which its claims are based. Further, the Amended Complaint provides the obligations promised under the treaties which were violated.

Plaintiffs have not asserted that the Defendants were "involved with any of the alleged treaties." Rather, Plaintiffs claim that the Defendants failed to honor their obligations under the treaties. Rule 8(a) of the Rules of Civil Procedures mandates that complaints for relief must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Plaintiffs' Amended Complaint complies with Rule 3(a), and therefore provides the Defendants with adequate notice of the claims against them.

Although Defendants alleged, without support, in their Motion to Dismiss that the Plaintiffs are held to a heightened standard of pleading with regard to Count XVII, Rule 9 of the Rules of Civil Procedure does not include allegations of treaty violations as those requiring more than a notice pleading. Therefore, Plaintiffs have complied with all pleading
requirements, and Count XVII is properly before this court.

PROPOSITION III: THIS COURT HAS JURISDICTION OVER THE PARTIES AND SUBJECT MATTER TO HEAR COUNTS III, IX, AND XIII OF PLAINTIFF'S AMENDED COMPLAINT.

Counts III, IX, and XIII of Plaintiffs' Amended Complaint allege that the United States and named federal officials' actions constitutted a deprivation of Plaintiffs Dry, McConnell, and Burlison's constitutional and statutory rights guaranteed by the 1st, 4th, and 5th Amendments and protected by 42 U.S.C. Section 1983. In its motion, the United States argues that the jurisdiction to proceed under a 42 U.S.C. Section 1983 claim is granted under 28 U.S.C. Section 1343. The United States argues that Section 1343 does not waive the sovereign immunity of the United States and therefore, the United States cannot be sued for an action arising under 42 U.S.C. Section 1983. The Plaintiffs need only file a motion to amend their complaint with respect to this issue.

The United States asserts that Counts III, IX, and XIII should be dismissed on the grounds that Section 1983 does not waive its sovereign immunity, however, that does not provide the grounds for dismissal of Counts III, IX, and XIII. These counts in addition to asserting claims under 42 U.S.C. Section 1983, also assert constitutional claims under the 1st, 4th, and 5th Amendments. The Court can correctly rule that Plaintiffs' causes of action under 42 U.S.C. Section 1983 are correctly asserted against certain defendants named in this case, i.e., Cities of
Talihina and Clayton officials. The Court should rule that as to Counts III, IX, and XIII against the named federal defendants, 42 U.S.C. Section 1983, does not apply, however, the constitutional claims are correctly asserted. The case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2nd, 619, 91 S Ct 1999 (1971) clearly provides a cause of action as well as providing a remedy for the cause of action in the case at bar.

Based on this, the United States asserts that Counts III, IX, and XIII should be dismissed. Even assuming that the United States is correct in its assertion that Section 1343 does not waive its sovereign immunity, it still does not provide the grounds for dismissal of Counts III, IX, and XIII. Those counts, in addition to asserting claims under 42 U.S.C. Section 1983, also asserts constitutional claims under the 1st, 4th, and 5th Amendments. The United States Motion to Dismiss does not mention anywhere that this Court does not have jurisdiction to hear claims against it for constitutional violations of the 1st, 4th, and 5th Amendments.

A. STANDARD OF PLEADING REQUIRED

This Court has jurisdiction to hear suits for damages based on constitutional violations. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In Bivens. the U.S. Supreme Court held that a plaintiff may recover money damages for injuries consequent upon a violation of the Constitution by federal
officials. Id. at 2005. Defendants properly assert that claims of constitutional violations must meet a heightened standard of pleading which requires the plaintiff to allege facts that demonstrate how the defendant violated a constitutional right. However, Defendants improperly allege that the Plaintiffs, Amended Complaint fails to comply with the pleading requirements. In fact, Plaintiffs' Amended Complaint specifically sets forth the facts upon which each assertion of a constitutional violation is based.

Complaints for claims under 42 U.S.C. Section 1983 should include "all of the factual allegations necessary to sustain a conclusion that defendant violated clearly established law." Dominque v. Telb. 831 F.2d 673,676 (6th Cir. 1987). "The law (is] clear ... on the necessity of probable cause for an arrest, the impermissability of excessive force in making an arrest, and the elements of the offenses for which the arrests had been made." Martin v. Malhoyt. 830 F.2d 237, 246 (D.C. Cir. 1987). In the case at bar, Plaintiffs' Amended Complaint sets forth those facts necessary to show that the Defendants violated these clearly established laws.

B. QUALIFIED IMMUNITY

Certain actions of federal officials are granted qualified immunity. Pueblo Neighborhood Health Centers v. Losavio. 847 F.2d 642 (10th Cir. 1988). The qualified privilege would shield the Defendants "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton. 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). If the Defendants believe that they are immunie from liability for constitutional violations based on a qualified privilege, as they indicate their Motion to Dismiss, then that affirmative defense is properly raised in a motion for summary judgment. Id. at 646. Therefore, the Defendants' claim that the Plaintiffs, action should be dismissed based on qualified privilege is not properly the subject of a motion to dismiss.

Plaintiffs have properly set forth factual allegations demonstrating that the Defendants violated their civil rights, as well as their constitutional rights under the 1st, 4th, and 5th Amendments to the United States Constitution. Further, the Defendants have waived sovereign immunity as to Counts III, IX, and XIII. Therefore, the Defendant's Motion to Dismiss should be denied as to Counts III, IX, and XIII.

C. CLAIMS AGAINST FEDERAL OFFICIALS IN THEIR SUPERVISORY CAPACITY

The Secretary of Interior, Defendant Bruce Babbitt, is is authorized to delegate his powers and duties to the Commissioner of Indian Affairs. 25 USC § 1a. The Commissioner of Indian Affairs, defendant Ada Deere, shall have the management of all Indian affairs and all matters arising out of Indian relations. 25 USC § 2. The Secretary of Interior and the Commissioner of Indian Affairs must endorse contracts made by any person with the tribe. 25 USC § 81. The Secretary of Interior, or his authorized representatives, must approve contracts for legal services made by the Choctaw Nation. 25 USC § 82a. The Indian SelfDetermination Act, 25 USC § 450, et sea., authorized the Secretary of Interior to contract with Indian tribes for program previously provided by the Bureau of Indian Affairs. Defendant Curtis Wilson was the contracting officer supervising the contract for the Choctaw court and law enforcement programs.

As this delegated authority pertains to the Choctaw CFR Court of Indian 0ffenses, the Tenth Circuit found in Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir. 1991) that "the creation of Courts of Indian 0ffenses is a valid exercise of the power of the Secretary of Interior as delegated to him by the Congress which holds plenary power over Indian tribes." Though these courts are not explicitly authorized by statute, Congress is aware of their existence, Indian Civil Rights Act, 25 USC § 1301, and implicitly recognized the courts by authorizing funding for "Indian judges." Tillett v. Hodel, 730 F.Supp. 381, 383 (W.D.Okla. 1990).

Courts of Indian 0ffenses are established pursuant to 25 CFR Part 11. The Secretary of Interior must approve all criminal laws passed by the tribal council before such laws are enforceable in a CFR Court. 25 CFR Part 11.100(e). Defendants Dennis Springwater and Karen Ketcher were responsible for approving such laws, making revisions and following through to ensure the revisions were implemented. Plaintiffs were charged under laws that were approved by Defendants Springwater and Ketcher, however, were not revised pursuant to instructions.
Further, the superintendent, Defendant Larry Mings, appointed Defendant Robert L. Rabon prosecutor for the Choctaw CFR Court of Indian 0ffenses, 25 CFR Part 11.204, without the competitive bidding or Indian preference as required by the contracting procedure.

PROPOSITION IV: BOTH DEFENDANT REED AND DEFENDANT RABON ARE INVESTIGATIVE OR LAW ENFORCEMENT OFFICERS UNDER THE FEDERAL TORTS CLAIMS ACT

The United States' sovereign immunity is waived under the Federal Torts Claims Act ("FTCA") for the tort claims asserted in Plaintiffs' Amended Complaint. Plaintiffs seek damages for intentional and other torts. Under the FTCA, sovereign immunity is waived for intentional torts when the perpetrator is an investigative or law enforcement officer. Both Reed and Rabon acted as investigative or law enforcement officers while committing the intentional torts against the Plaintiffs.

A. REED WAS ACTING AS A FEDERAL OFFICIAL ON SEPTEMBER 4, 1995

The Choctaw CFR court does not have jurisdiction over "Federal or state official(s)" it could not exercise if it were a tribal court. 25 CFR Part 11.104(a). According to the Choctaw Constitution, the tribal court of the Choctaw Nation does not have jurisdiction over general civil, criminal, or probate matters. Therefore, there is no Choctaw tribal court or CFR court that has jurisdiction over Defendant Reed. If this Court does not assume jurisdiction, the Plaintiffs will be left without a form to address their grievances.

The jurisdiction of the tribal court is defined by the Constitution of the Choctaw Nation of Oklahoma. This exclusive jurisdiction is limited to 'decide disputes arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council'." Morrison v. Choctaw Nation, CA-95-1 (September 23, 1995), 23 ILR 6093, 6094 (1996). This decision eliminates a civil lawsuit in Choctaw CFR Court stemming from the events on September 4, 1995.6

B. REED WAS ACTING AS A LAW ENFORCEMENT OFFICER IN AN INVESTIGATIVE CAPACITY

Defendant Reed is the Director of the Choctaw Nation Law Enforcement Program. As director, she commanded the Choctaw Nation police on September 4, 1995. As evidenced in the video tape. Reed instructed the Chief of Choctaw Nation Police, Hoppy Denison, to assist Reed in the arrest of Plaintiff Burlison.

Defendant Reed accosted Plaintiff Burlison and physically turned off the shutter lense of Burlison's camera. Even though Reed was attired in street clothes, her action coupled with the question to Burlison, "Do you want to go to jail?" would lead Burlison to believe she was a police officer with the authority and capacity to take Burlison to jail. Griffin v. Maryland, 378 U.S. 130 12 L.Ed.2d 754 (1964). Officer Bill Barrow assisted Defendant Reed in arresting and handcuffing Burlison after Reed requested assistance from Denison.

Defendant Reed obviously had the capacity and authority to investigate crimes and arrest those she believed to have committed a crime. Id. at 135, Lusby v. T.G. &Y, Stores, Inc., 749 F.2d 1423, 1429 (10th Cir. Okla. 1984). For example, Defendant Reed observed an unnamed individual "in a purple hat" in possession of unidentified literature, and informed Denison of such possession. Defendant Reed acted as a Choctaw Nation police officer as evidenced by these actions. She was not an innocent observer in these arrests. Defendant Reed was an active participant, acting pursuant to federal criminal jurisdiction contracted from the federal government.

C. RABON WAS ACTING AS AN INVESTIGATIVE OFFICER

Rabon's role in Plaintiffs7 wrongful arrests, unlawful detainment, and malicious prosecution is beyond that of mere prosecutor.

Plaintiffs were charged with nineteen crimes' stemming from the incidences of September 4, 1995. With Randal Hicks7 charges being dismissed, the Plaintiffs were the only Choctaw citizens charged that year. Activity in the Choctaw CFR Court from the time of its establishment breaks down as follows:

1994, seven Choctaw citizens was charged with two crimes.8

1996, seven Choctaw citizens were charged with seven crimes.9 Two of these were Plaintiff Burlison's husband, Bob Burlison, and Plaintiff Burlison's nephew, Tryge Jorgenson for violating CB-113. 10 The five other Choctaw citizens were arrested for public intoxication.

1997 to date, two Choctaw citizens have been charged with two crimes. Assault and battery upon a police officer was filed on January 24, 1997, against Plaintiff Douglas Dry, CRM-97-02. A Choctaw citizen was charged with unlawfully pointing a firearm on January 24, 1997, CRM-97-01. Plaintiffs Burlison, McConnell and Dry are members of Choctaws for Democracy (CFD), as are Plaintiff Burlison's husband, Bob Burlison, and her nephew, Tryg Jorgenson. These five Choctaws for Democracy members have been charged with 22 crimes by Defendant Rabon in the Choctaw CFR Court, facing over 15 years in jail collectively with fines. Seven non-Choctaws for Democracy members have been charged with eight crimes, mostly public intoxication, with punishment of a fine, and less than a year in jail.

In 1995, Plaintiff Dry was one of three (or one-third) of all Choctaw citizens charged, and he was charged with over onethird of all the crimes charged. In 1997, Plaintiff Dry was one of two (or one-half) of all Choctaw citizens charged, and he was charged with one-half of all crimes charged. Plaintiff Juanita McConnell was one of three (one-third) of the Choctaw citizens charged, and she was charged with slightly less than one-third of all the crimes charged in 1995. Plaintiff Rosie Burlison was one of three (one-third) of the Choctaw citizens charged, and she was charged with over onethird of all the crimes charged in 1995.

It would appear from the above facts that Defendant Rabon singled out Plaintiffs due to their exercise of free speech, and criticism of then-chief Roberts. This was both the effect and the intent of Defendant Rabon's prosecutorial decisions. Snowden vs. Hughes, 321 U.S. 1, 88 L.Ed. 497 (1944).

Clearly, Rabon's actions in wrongfully pursuing the Plaintiffs was an abuse of his law enforcement and investigative authority. Rabon's commission of intentionally tortious acts should be punishable under the FTCA.

D. THIS COURT HAS JURISDICTION TO HEAR COUNTS IV, X, AND XIV AGAINST DEFENDANTS REED AND RABON

Both Reed and Rabon acted as investigative or law enforcement officers with respect to the intentional torts they perpetrated against the Plaintiffs. Accordingly, Counts IV, X, and XIV are properly before this Court, and Defendants, Motion to Dismiss should be denied.

In reviewing a motion to dismiss, the Court must consider all of the allegations in the pleadings, as well as all reasonable inferences which may be drawn from them as true. Review of Plaintiffs' Amended Complaint clearly shows that this Court has jurisdiction and Plaintiffs have legitimate claims for which relief may be granted.

For the reasons stated above, the Motion to Dismiss filed on behalf of the United States of America, Bruce Babbitt, Ada Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson, Larry Mings, Robert L. Rabon, and Kim Reed should not be granted..

Respectfully Submitted,

1. No formal charges were filed against Hicks, though he was arraigned on September 4, 1995, with Plaintiffs. Hicks filed a civil suit in Choctaw CFR Court against Choctaw Nation Chief of Police Hoppy Denison and other officers. The Defendants filed a Motion to Dismiss, to which Hicks responded on March 4, 1996. On April 29, 1996, Hicks' attorney, Rick Moore, wrote a letter to the CFR Judge James Wolfe requesting a hearing on the motion. Exhibit D. To date, no hearing has been set and the case is still pending. (back)

2. Quarterly report for January, February, and March, 1995, Exhibit -----. (back)

3 Quarterly report for April, May and June, 1995, Exhibit _______. (back)

4. Quarterly report for July, August, and September, 1995, Exhibit ______. (back)

5. Quarterly report for October, November, and December, 1995, Exhibit ______. (back)

6. Moreover, since Defendant Reed is a federal agent, subject to the FTCA Plaintiffs cannot make a claim to the BIA and file in Choctaw CFR Court when such claim is denied, even if the other prohibitions were cured. On May 6, 1994, the Choctaw Council adopted Council Bill 99-94, "to approve court rules for the CFR Court of Indian 0ffenses." These rules shortened the civil statute of limitations, by amending the criminal procedure portion of the rules, from three years to six months. The minutes of that council meeting reflect that the reason for such shortening of time was to deny a victim of then-chief Hollis Roberts a civil forum in Choctaw court. The rules have not been changed since that time, and the six months statute of limitations is still in effect. The time restraints for filing a lawsuit under the FTCA is six months after notice of the tort claim demand is submitted to the federal government. It is either legally impossible to file a claim with the BIA, allow time for the BIA to investigate, either deny the claim or fail to reply, then file a civil lawsuit in Choctaw CFR Court before the statute of limitations run. The actions of the tribal council forecloses a tribal forum. (back)

7. Douglas Dry has been charged with Section 5-5 (resisting executive officer), 16-12 (attempt to intimidate officer), 17-8 (assault, battery or assault and battery upon police officer or other peace officer), 41-2 (public nuisance), 46-3 (disturbing lawful meetings), 46-4 (disturbance by loud or unusual noise or abusive, violence, obscene, profane or threatening language), and 46-5 (use of language calculated to arouse anger or cause breach of peace). Rosie Burlison has been charged with Section 2-11 (attempt to commit crime), 5-4 (preventing officer's performance of duty), 16-7 (obstructing officer), 41-2, 46-3, 46-4, and 46-5. Juanita McConnell has been charged with Section 5-5, 41-2, 46-3, 46-4, and 46-5. (back)

8. Jerome Paul Bonaparte, CRM-94-01. (back)

9. Elton B. Williams, CRM-96-01; Jimmy Ray Robinson, CRM-9602; Heath Allen Watson, CRM-96-03; Bobbie Burlison, Jr., CRM-9604; Tryge Jorgenson, CRM-96-05; Lance Baker, CRM-96-06; Jason Glen Stratton, CRM-96-07. (back)

10. See Dry vs. City of Durant. in the United States District Court for the Eastern District of Oklahoma, CIV-97-334-B, for history of CB-113. (back)

On the 21st day of July, 1997, 1 certify that I placed in the U.S. Mail, first class postage pre-paid a true and correct copy of the above and foregoing Plaintiff's Response to the Motion to Dismiss filed on behalf of the United States of America, Bruce Babbitt, Ada Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson, Larry Mings, Robert L. Rabon, and Kim Reed, to the following:

Peter Bernhart
Assistant U.S. Attorney
333 W. Fourth St., Suite 3460
Tulsa, OK 74103

Alison Cave
Steidley & Cave
P.O. Box 1609
Muskogee, OK 74402

Eric Janzen
W.G. "Gil" Steidley, Jr.
Steidley & Neil
P.O. Box 1165
McAlester, OK 74502