Bressi v. Ford

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRENCE BRESSI, 

Plaintiff-Appellant,

v. No. 07-15931

MICHAEL FORD; ERIC O’DELL;  D.C. No.

CV-04-00264-JMR

GEORGE TRAVIOLIA; RICHARD

SAUNDERS; UNITED STATES OF OPINION

AMERICA, and JOSEPH DELGADO,*

Defendants-Appellees.



Appeal from the United States District Court

for the District of Arizona

John M. Roll, District Judge, Presiding

Argued and Submitted

November 20, 2008—San Francisco, California

Filed August 4, 2009

Before: William C. Canby, Jr. and Kim McLane Wardlaw,

Circuit Judges, and Richard Mills,** District Judge

Opinion by Judge Canby

*Joseph Delgado is substituted for his predecessor Richard Saunders as

Chief of Police. Because Richard Saunders is also being sued in his offi-

cial capacity, he remains in the case.

**The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

10143

10146 BRESSI v. FORD

COUNSEL

David J. Euchner, Tucson, Arizona; James P. Harrison, The

First Amendment Project, Oakland, California; for the

plaintiff-appellant.

BRESSI v. FORD 10147

Roger W. Frazier, Gust Rosenfeld P.L.C., Tucson, Arizona;

Gerald S. Frank, Assistant United States Attorney, Tucson,

Arizona; for the defendants-appellees.

Samuel F. Daughety, Assistant Attorney General, Tohono

O’odham Nation, Sells, Arizona, for the amicus curiae.

OPINION

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 (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 Offi-

cers and the United States separately.1 The court held that the

1

The Officers filed a motion to dismiss for lack of subject matter juris-

diction, presenting a factual challenge to the court’s jurisdiction on the

ground of tribal sovereign immunity. Fed. R. Civ. P. 12(b)(1). The court

converted the motion into one for summary judgment after deciding that

the jurisdictional and substantive questions were intertwined. See Safe Air

for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The United

States moved for dismissal under a summary judgment standard.

10148 BRESSI v. FORD

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 prosecu-

torial 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 oper-

ating 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 operat-

ing 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 certifica-

tion 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 pur-

suant 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

BRESSI v. FORD 10149

about four hours of intermittent exchanges between the Offi-

cers and Bressi, during which time Bressi was handcuffed and

taken to the side of the road, the Officers cited Bressi for vio-

lating two Arizona laws: Ariz. Rev. Stat. § 28-1595(B) (fail-

ure to provide a driver’s license or proof of identity) and Ariz.

Rev. Stat. § 28-622(A) (failure to comply with a police offi-

cer’s lawful order). Bressi was allowed to leave after he

signed the citations.

The Pima County Justice Court dismissed without preju-

dice 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).

2

The United States removed on the ground that the Officers were oper-

ating under a contract between the Tribal Police Department and the

Bureau of Indian Affairs that provided coverage of the Federal Tort

Claims Act to the Officers. Because at least one common law tort, mali-

cious prosecution, was asserted against the Officers, the United States sub-

stituted itself as defendant on that claim.

10150 BRESSI v. FORD

III

A. The Roadblock

1. Section 1983 Action

[1] Bressi’s primary contention is that the roadblock con-

ducted by the Officers did not meet the federal constitutional

standards applicable to suspicionless roadblocks. See City of

Indianapolis v. Edmond, 531 U.S. 32 (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 pursu-

ant 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 chal-

lenge to the roadblock itself is whether the Officers were act-

ing under color of state law, and whether they violated

Bressi’s constitutional rights, when they stopped and ques-

tioned Bressi at the roadblock. If there is a factual issue as to

3

In addition to his other constitutional claims, Bressi asserts that his

First Amendment right to travel was violated. Contrary to Bressi’s asser-

tions, he failed to raise this issue in the district court. His presentation of

an argument based on the Arizona constitutional right to privacy was not

sufficient to raise a claim based on the First Amendment right to travel.

Accordingly, the First Amendment claim is waived. Bressi also raises for

the first time the argument that, because § 1983 is a general statute, it

applies to the Officers acting under color of tribal law, citing Fed. Power

Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960). This argument

is squarely foreclosed by R. J. Williams Co. v. Fort Belknap Hous. Auth.,

719 F.2d 979, 982 (9th Cir. 1983).

4

The district court ruled that, to the extent that the Officers acted under

color of tribal law, they were entitled to tribal sovereign immunity.

5

Bressi’s claims relating to his arrest and release after the issuance of

citations are discussed below.

BRESSI v. FORD 10151

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 (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, 850 P.2d 1332 (Wash. 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 (1997). The

usual tribal power of exclusion of nonmembers does not apply

there. See id.

[2] 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 (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 (1978).

This limitation has led to obvious practical difficulties. For

10152 BRESSI v. FORD

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 offi-

cers 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.

[3] 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 intru-

sion 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 amount of time it takes to determine that

the violator is not an Indian is not great. If it is apparent that

a state or federal law has been violated, the officer may detain

the non-Indian for a reasonable time in order to turn him or

her over to state or federal authorities. Id.

[4] The intrusion and inconvenience becomes significantly

greater, however, when a roadblock is placed across a state

highway. The tribe has no general power of exclusion on the

right-of-way. All vehicles are stopped, with no suspicion

required. The likelihood is substantial that a great proportion

of those stopped will be non-Indians not subject to tribal crim-

inal jurisdiction. Yet the tribe does have a legitimate purpose

in stopping all vehicles with Indian operators to check for vio-

BRESSI v. FORD 10153

lations of tribal drunken-driving and safety laws, and other

violations for which roadblocks are authorized by tribal law.6

[5] We conclude that a roadblock on a public right-of-way

within tribal territory, established on tribal authority, is per-

missible 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 offi-

cers 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.

[6] 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 them-

selves 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 estab-

lished, beyond any dispute of fact, that the roadblock func-

tioned not merely as a tribal exercise, but also as an

instrument for the enforcement of state law. We emphasize

6

Such roadblocks are subject to any restrictions that may be imposed by

the prohibition of unreasonable searches and seizures of the Indian Civil

Rights Act, 25 U.S.C. § 1302(2), but, except for habeas corpus challenges,

any private right of action under that Act lies only in tribal court. See

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

10154 BRESSI v. FORD

function, rather than intent, because function is a more readily

ascertainable guide to conduct and furnishes a more practical

rule for determining whether a roadblock is operated (at least

in part) under color of state law.

[7] Of course, the Officers were free to set up a roadblock

for the purpose of checking the drivers’ licenses, vehicle reg-

istrations and the sobriety of non-Indian motorists, because

the Officers were authorized to enforce state law. See

Edmond, 531 U.S. at 39 (suggesting that roadblock was per-

missible for checking licensing, registration and vehicle

inspection compliance); Michigan Dept. of State Police v.

Sitz, 496 U.S. 444 (1990) (upholding constitutionality of

checkpoint for sobriety). But any such roadblock must meet

the constitutional requirements set by the Supreme Court for

such suspicionless stops. See Edmond, 531 U.S. 32 (holding

roadblock for general enforcement of criminal drug laws

unconstitutional). Bressi alleges that the roadblock did not

satisfy those requirements; among other things, his affidavit

asserts that the roadblock was not total and that some cars

were permitted to drive by, which in his view rendered his

suspicionless stop discretionary and unlawful. See Delaware

v. Prouse, 440 U.S. 648, 663 (1979) (holding discretionary

suspicionless stops, as opposed to roadblock, unconstitu-

tional). There are also questions of fact concerning instruc-

tions that may or may not have governed operation of the

roadblock. Bressi is entitled to pursue his claim of constitu-

tional deficiencies in the roadblock on remand.7

We recognize that one result of our ruling is that tribal offi-

cers who are authorized to enforce state as well as tribal law,

7

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 injunc-

tive relief. The district court held that Bressi could not show a constitu-

tional 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 10155

and proceed to exercise both powers in the operation of a

roadblock, will be held to constitutional standards in estab-

lishing roadblocks. That result is consistent with our prior

decision in Evans v. McKay, 869 F.2d 1341, 1348 (9th Cir.

1989), which held that officers acting pursuant to both tribal

and city authority in making arrests were subject to a § 1983

claim. This result also appears to us to be an inevitable conse-

quence of the accommodation of tribal authority over rights-

of-way within Indian country and the rights of non-Indians to

travel those rights-of-way. If a tribe wishes to avoid such con-

stitutional restraints, its officers operating roadblocks will

have to confine themselves, upon stopping non-Indians, to

questioning to determine non-Indian status and to detention

only for obvious violations of state law.

[8] For the above reasons, we reverse the summary judg-

ment on Bressi’s § 1983 claim against the Officers for the

roadblock stop, and remand for further proceedings on that

claim. Because Officer Saunders may have authorized the

roadblock and directed some of the procedures or policies

involved in Bressi’s § 1983 claim, we include him in the

reversal of the § 1983 claim relating to the operation of the

roadblock. We leave to the district court to address in the first

instance any claims of qualified immunity that may be

asserted by any of the Officers with regard to the roadblock.

2. Bivens Action

[9] Bressi’s Bivens claim requires a showing that the tribal

officers acted under color of federal authority. Bivens, 403

U.S. at 389. Under the “symbiotic relationship” test that is

often discussed in Bivens cases, there must exist some interde-

pendence between the federal government and the Tribal

Police Department during the operation of the roadblock. See

Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1342-

43 (9th Cir. 1997); Rendell-Baker v. Kohn, 457 U.S. 830, 842-

43 (1982).

10156 BRESSI v. FORD

[10] We are satisfied that the district court correctly deter-

mined that there is no issue of fact as to the Officers’ status

as federal actors in operating the roadblock. When Bressi

arrived at the roadblock, he witnessed U.S. Customs and Bor-

der Patrol agents on the scene. Bressi’s only interaction with

a federal agent occurred after he refused the Officers’ com-

mands; Customs Agent William Dreeland walked up to Bres-

si’s car and informed him that he should comply with the

Officers’ request. In their affidavits, the Officers declared that

no federal agents were consulted for the initiation of the

roadblock—at most Officer Ford may have contacted the U.S.

Customs and Border Patrol agencies beforehand to alert them

that the Tribal Police Department could be sending suspected

federal law violators their way. Merely referring suspected

federal law violations to the appropriate authorities is not tan-

tamount to acting under color of federal law. See Cabrera v.

Martin, 973 F.2d 735, 742-44 (9th Cir. 1992) (requiring sub-

stantial cooperation between state and federal actors in order

to find that the federal actors were acting under color of state

law; de minimis support role was insufficient). Agent Dree-

land’s independent decision to approach Bressi does not

amount to a substantial nexus between the Officers’ conduct

and that of the federal agencies.

[11] The mere presence of federal agents at the roadblock

does not convert the Officers into federal actors. All of the

evidence indicates that the federal agents were present to deal

with any federal violations that turned up. The evidence is

insufficient to create an issue of fact as to whether the Offi-

cers were acting under federal authority in establishing the

roadblock, which was clearly a tribal initiative.

B. The Arrest and Citation

1. Section 1983

The district court properly ruled that probable cause sup-

ported the arrest and citation of Bressi for state law violations

BRESSI v. FORD 10157

in refusing to show his drivers’ license and refusal to obey a

lawful order of an officer. In that regard, no constitutional

rights of Bressi were infringed.

Bressi’s attack on his arrest and citation are derivative,

however, of his challenge to the constitutional validity of the

roadblock. If the roadblock were to be determined unconstitu-

tional on remand, the result might taint the subsequent arrest

and citations. See Brendlin v. California, 551 U.S. 249 (2007)

(holding that passenger may challenge arrest as “seizure” fol-

lowing unlawful traffic stop); United States v. Millan, 36 F.3d

886 (9th Cir. 1994) (holding that unlawful stop of vehicle

tainted subsequent interrogation and search). The district

court anticipated this possibility, however. It held that, even

if the stop was determined to be unlawful and to taint the

probable cause for the arrest, this principle was not clearly

established law at the time of the arrest. Thus, the Officers

were entitled to qualified immunity; reasonable officers

would not have believed that the subsequent arrest violated

Bressi’s constitutional rights. See Saucier v. Katz, 533 U.S.

194, 205 (2001) (holding that immunity is to be judged from

standpoint of reasonable officer).

[12] We agree with the district court’s analysis of qualified

immunity with regard to the arrest and citations, and we

accordingly affirm the district court’s dismissal of that claim

with regard to all of the Officers.8

8

Officer Saunders was not present at the roadblock, so the district court

construed Bressi’s claim against him as one for respondeat superior liabil-

ity and dismissed it. To be liable under § 1983, a state actor must be per-

sonally involved to some extent in the deprivation of a federal right. Jones

v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To the extent that Bressi

seeks recovery against Saunders for the arrest, the district court is correct.

Saunders did not direct the arrest, nor did he know of it until after the fact.

10158 BRESSI v. FORD

2. Arizona Constitution

[13] The district court properly granted the Officers sum-

mary judgment on Bressi’s claim that they violated his pri-

vacy rights under art. 2, § 8 of the Arizona Constitution.

Arizona applies an objectively reasonable test to determine

whether one’s privacy rights have been violated. See State v.

Jeney, 787 P.2d 1089, 1092-93 (Ariz. Ct. App. 1989). For the

same reasons that supported qualified immunity for the arrest,

the district court properly determined that it was objectively

reasonable to arrest Bressi for failing to show his drivers’

license or to obey the lawful order of an officer. There was

accordingly no violation of the state constitutional right to pri-

vacy.

C. Malicious Prosecution Claim

[14] The district court also properly dismissed Bressi’s

malicious prosecution claim under the Federal Tort Claims

Act against the United States. There is no evidence contradict-

ing the United States’ assertion that the Pima County Attor-

ney independently decided to re-file the complaint against

Bressi. Arizona law9 holds that when a criminal prosecutor

judges the propriety of proceeding with a case and acts upon

his own initiative in doing so, a malicious prosecution claim

will not lie. Walsh v. Eberlein, 560 P.2d 1249, 1252 (Ariz. Ct.

App. 1976). Here, Bressi’s only supporting evidence is the

temporal proximity between the filing of his claims against

the Officers and Officer Traviolia’s re-filing of the charges

against him in the Pima County Justice Court. Officer

Traviolia’s affidavit states that he did not do so in retaliation,

but the significant factor is that the county attorney indepen-

dently decided to pursue the charges. Thus, there is no genu-

ine issue of fact with respect to this claim.

9

Because this claim arises under the Federal Tort Claims Act, we look

to state substantive law. See Delta Sav. Bank v. United States, 265 F.3d

1017, 1025 (9th Cir. 2001), cert. denied, 534 U.S. 1082 (2002).

BRESSI v. FORD 10159

IV

We reverse the district court’s grant of summary judgment

on Bressi’s § 1983 action as it relates to the operation of the

roadblock, and we remand that claim for further proceedings.

We affirm the dismissal of Bressi’s claims relating to his

arrest and citations. We also affirm the grants of summary

judgment on the Bivens action, the right to privacy under the

Arizona Constitution, and the malicious prosecution claim.10

The parties will bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, and

REMANDED.

10

The Officers’ motion to strike Bressi’s right-to-travel and his Tusca-

rora argument is granted. Their motion for sanctions is denied.