9th Circuit Rules In Favor of Checkpoint USA

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• published: 22 Aug 2009
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On August 4, 2009, the 9th Circuit Court of Appeals finally rendered a verdict in my six year civil rights 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. See: https://www.checkpointusa.org/roadblock/roadblock.html In the ruling, the court reversed Judge John Roll with the Tucson Federal District Court on several key 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 Bressis claim for damages under § 1983, we also reverse the district courts 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 Finally, the court made 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 has been making thinly veiled threats of banning me from traveling along sections of the state highway 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. The 9th circuit's ruling in its entirety is located here: https://www.checkpointusa.org/roadblock/lawsuit/docs/appeals/07-15931Opinion.pdf The case now goes back to district court for further proceedings.