Bressi v. Ford

• Decision Date: 04 August 2009
• Docket Number: No. 07-15931.,07-15931.
• Citation: 575 F.3d 891
• Parties: Terrence BRESSI, Plaintiff-Appellant, v. Michael FORD; Eric O'Dell; George Traviolia; Richard Saunders; United States of America, and Joseph Delgado,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

575 F.3d 891

Terrence BRESSI, Plaintiff-Appellant, v. Michael FORD; Eric O'Dell; George Traviolia; Richard Saunders; United States of America, and Joseph Delgado,^* Defendants-Appellees.

No. 07-15931.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 20, 2008.

Filed August 4, 2009.

David J. Euchner, Tucson, AZ; James P. Harrison, the First Amendment Project, Oakland, CA; for the plaintiff-appellant.

Roger W. Frazier, Gust Rosenfeld P.L.C., Tucson, AZ; Gerald S. Frank, Assistant United States Attorney, Tucson, AZ; for the defendants-appellees.

Samuel F. Daughety, Assistant Attorney General, Tohono O'odham Nation, Sells, AZ, for the amicus curiae.

Appeal from the United States District Court for the District of Arizona, John M. Roll, District Judge, Presiding. D.C. No. CV-04-00264-JMR.

Before WILLIAM C. CANBY, JR. and KIM McLANE WARDLAW, Circuit Judges, and RICHARD MILLS,^** District Judge.

CANBY, Circuit Judge:

Plaintiff-Appellant Terrence Bressi is a non-Indian who filed this action against four officers of the Tohono O'odham Police Department ("Tribal Police Department") and the United States after he was stopped and cited at a roadblock on a state highway crossing the Tohono O'odham Nation Indian Reservation. Defendant Officers Michael Ford, Eric O'Dell, and George Traviolia all had some contact with Bressi at the roadblock; Defendant Officer Richard Saunders was acting police chief at the time—not present at the roadblock but alleged to have ordered it. Bressi sought relief pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against these individual Officers for the operation of the roadblock. He also sought relief under § 1983 and the right to privacy provision of art. 2, § 8 of the Arizona Constitution for his subsequent citation and arrest. Finally, Bressi sought relief under the Federal Tort Claims Act against the United States on a malicious prosecution claim arising out of Bressi's aborted prosecution.

The district court granted summary judgment to the Officers and the United States separately.¹ The court held that the Officers' operation of the roadblock was purely a tribal endeavor; therefore, sovereign immunity barred Bressi's § 1983 and Bivens actions. See United States v. Oregon, 657 F.2d 1009, 1013 n. 8 (9th Cir.1981) ("[Sovereign immunity] extends to tribal officials when acting in their official capacity and within their scope of authority."). The court also held that Bressi's malicious prosecution claim under the Federal Tort Claims Act failed because there was an independent prosecutorial decision to pursue the complaint against Bressi.

We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse in part the judgment of the district court.

I

In December 2002, the Tribal Police Department was operating a roadblock on an Arizona state highway that runs through the Nation's reservation. The roadblock itself was wholly within the reservation's borders. The Officers operating the roadblock were tribal officers who were authorized to enforce tribal law against any Indian, and to investigate any state or federal law violation by any person. The Nation did not authorize the Officers to enforce federal law; they could eject non-tribal members from tribally-controlled areas or turn them over to federal custody. Arizona law, however, did authorize them to enforce state law by virtue of their certification with the Arizona Peace Officer Standards and Training Board ("AZ POST"). Thus, the Officers could enforce tribal and state law, but not federal law.

The Nation's tribal law allows roadblocks to check for sobriety, drivers' licenses, registration, and possession of alcohol. See Tohono O'odham Nation v. Ahill, No. CR12-1762-88 (Jud. Ct. Tohono O'odham Nation Oct. 23, 1989). Bressi was stopped at a roadblock tribal authorities set up pursuant to this authorization. He insisted that the stop was unconstitutional, and refused to produce his driver's license or other identification or to give the Officers his name. After about four hours of intermittent exchanges between the Officers and Bressi, during which time Bressi was handcuffed and taken to the side of the road, the Officers cited Bressi for violating two Arizona laws: Ariz.Rev.Stat. § 28-1595(B)(failure to provide a driver's license or proof of identity) and Ariz.Rev. Stat. § 28-622(A)(failure to comply with a police officer's lawful order). Bressi was allowed to leave after he signed the citations.

The Pima County Justice Court dismissed without prejudice the county attorney's complaint against Bressi because a copy of the citation did not reach the court in time. Bressi then sued the Officers in state court. Shortly thereafter a county prosecutor re-filed the complaint against Bressi. This re-filed complaint was again dismissed after the prosecution was unable to produce records that the court had ordered. Bressi then amended his complaint to include a malicious prosecution claim. At this point, the United States substituted itself as the defendant for that claim and removed the action to federal district court.² Bressi ultimately filed a third amended complaint in district court alleging § 1983 and Bivens claims against the Officers.

II

We review de novo the district court's order granting a motion for summary judgment. McFarland v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir.2008).

III

A. The Roadblock

1. Section 1983 Action

Bressi's primary contention is that the roadblock conducted by the Officers did not meet the federal constitutional standards applicable to suspicionless roadblocks. See City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).³ Because the United States Constitution does not restrict actions by tribal governments, however, Bressi cannot succeed in a claim against the Officers for deprivation of constitutional rights to the extent that the Officers were acting under color of tribal law. See R.J. Williams Co., 719 F.2d at 982.⁴ The Officers concede that they were acting under color of state law pursuant to their AZ POST certification when they arrested Bressi and then released him after issuing citations for violations of Arizona law.⁵ The question that is crucial to Bressi's challenge to the roadblock itself is whether the Officers were acting under color of state law, and whether they violated Bressi's constitutional rights, when they stopped and questioned Bressi at the roadblock. If there is a factual issue as to whether the Officers can "fairly be said to be" state actors during the operation of the roadblock, summary judgment is inappropriate. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

In holding that the tribal Officers were acting under color of tribal law when they stopped Bressi at the roadblock, the district court relied in considerable part on the authority of tribal officers to investigate violations of state and federal law by any person within the Reservation. When tribal officers discover such violations, they may detain the violators in order to deliver them to state or federal authorities. See Ortiz-Barraza v. United States, 512 F.2d 1176, 1180(9th Cir.1975); State v. Schmuck, 121 Wash.2d 373, 850 P.2d 1332 (1993). The district court ruled, in essence, that stopping Bressi at the roadblock was an exercise of such tribal authority.

The situation is complicated, however, by the fact that the roadblock was set up on a state highway. Unlike the case within most of the reservation, the Nation is not a gate-keeper on a public right of way that crosses the reservation. See Strate v. A-1 Contractors, 520 U.S. 438, 455-56, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). The usual tribal power of exclusion of nonmembers does not apply there. See id.

On the other hand, the state highway is still within the reservation and is part of Indian country. 18 U.S.C. § 1151(a). The tribe therefore has full law enforcement authority over its members and nonmember Indians on that highway. See United States v. Lara, 541 U.S. 193, 210, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (upholding 25 U.S.C. § 1301(2), in which Congress reaffirmed tribal criminal jurisdiction over nonmember Indians). The tribe accordingly is authorized to stop and arrest Indian violators of tribal law traveling on the highway. In the absence of some form of state authorization, however, tribal officers have no inherent power to arrest and book non-Indian violators. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). This limitation has led to obvious practical difficulties. For example, a tribal officer who observes a vehicle violating tribal law on a state highway has no way of knowing whether the driver is an Indian or non-Indian. The solution is to permit the officer to stop the vehicle and to determine first whether or not the driver is an Indian. In order to permit tribal officers to exercise their legitimate tribal authority, therefore, it has been held not to violate a non-Indian's rights when tribal officers stop him or her long enough to ascertain that he or she is, in fact, not an Indian. See Schmuck, 850 P.2d at 1337. If the violator turns out to be a non-Indian, the tribal officer may detain the violator and deliver him or her to state or federal authorities. Id.; see Strate, 520 U.S. at 456 n. 11, 117 S.Ct. 1404.

This rule permitting tribal authority over non-Indians on a public right-of-way is thus a concession to the need for legitimate tribal law enforcement against Indians in Indian country, including the state highways. The amount of intrusion or inconvenience to the non-Indian motorist is relatively minor, and is justified by the tribal law enforcement interest. Ordinarily, there must be some suspicion that a tribal law is being violated, probably by erratic driving or speeding, to cause a stop, and the...