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.