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9th Circuit Rules In Favor of Checkpoint USA, Remands Case Back To District Court

Written by Subject: Criminal Justice System

On August 4, 2009, the 9th Circuit Court of Appeals finally rendered a verdict in my six year civil rights roadblock lawsuit against several police officers with the Tohono O'odham Police Department. The lawsuit stemmed from an illegal checkpoint operation conducted on December 20, 2002.

In the ruling, the court reversed Judge John Roll from the Tucson Federal District Court on several points and reinstated lawsuit claims regarding the constitutionality of the roadblock while remanding the case back to district court for further proceedings:

"We conclude that a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians."

"Applying this analysis to the present record, we reverse the summary judgment in favor of the Officers on the § 1983 claim.The record indicates that the Officers realized quickly that Bressi was not impaired. It is not clear from the record exactly when or how the Officers determined that Bressi was not an Indian. There is no dispute in the evidence, however, that the Officers, after stopping Bressi, did not confine themselves to inquiring whether he was or was not an Indian. Their general request for identification was permissible as part of that determination, but they specifically requested Bressi to show his drivers’ license and immediately treated his refusal as a violation of state law. Once they departed from, or went beyond, the inquiry to establish that Bressi was not an Indian, they were acting under color of state law. These actions established, beyond any dispute of fact, that the roadblock functioned not merely as a tribal exercise, but also as an instrument for the enforcement of state law."
- Bressi v Ford

Additionally, the court reinstated my request for injunctive relief:

"Because we reverse the dismissal of Bressi’s claim for damages under § 1983, we also reverse the district court’s denial of his claim for injunctive relief. The district court held that Bressi could not show a constitutional violation—because of sovereign immunity—and he was thus not entitled to injunctive relief. Upon remand, Bressi has the opportunity to demonstrate such a constitutional violation." - Bressi v Ford

The court also made it clear that tribal governments have no lawful authority to ban non-tribal members from state highway right-of-ways running through tribal land:

"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 (1997). The usual tribal power of exclusion of nonmembers does not apply there." - Bressi v Ford

This latter issue was somewhat of a concern because the Tohono O'odham Nation had been making thinly veiled threats of banning me from traveling along sections of SR86 that pass through the reservation for years, presumably in retaliation for bringing this legal action forward. Fortunately, the ruling makes it clear the tribe has no such authority on state highways running through tribal land.

I haven't had an opportunity to fully digest the court decision yet or touch base with my attorneys but this ruling affirms the original basis for the lawsuit and places the tribe on notice that business as usual is no longer acceptable.

I'll write more about the ruling after I've had a chance to review it in more detail but wanted to post this initial notice sooner rather then later. I would encourage folks to read the ruling for themselves given the nuance associated with it.

A brief announcement from my attorney regarding the case appears below:

Nearly 2 years after the briefs were filed, and almost 9 months after oral argument, the Ninth Circuit three-judge panel has decided Bressi v. Ford.

This is a published opinion, which means it will be binding law on every tribal jurisdiction in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

We didn't win on every claim, but we won on the most important part - that if a tribal police department wants to run a "sobriety checkpoint" on a state highway right-of-way, thereby expecting non-Indians to travel on it, the tribal police must first ask if the driver is Indian or non-Indian, and then non-Indians who are not obviously impaired must immediately be allowed to go on their way. What the tribal police did with Terry was unconstitutional, and now it's a senior jurist who literally wrote the book on Indian Law who agrees with us.

Since both sides lost something, both sides may choose to appeal / cross-appeal. But as it stands now, we have good law.

1 Comments in Response to

Comment by Brock Lorber (11655)
Entered on:

Congratulations, Terry.  Your suit has been an absolutely fascinating journey to follow, but frustratingly, painfully slow and never-ending.

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