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


Permalink 23:53:56, Categories: Privacy, Right to Travel, Roadblock Lawsuit, Checkpoints, 881 words   English (EU)

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

I apologize for being quiet the past few weeks on this blog. Serious internet connectivity issues kept me offline until yesterday. Fortunately, everything was taken care of in time to post some good news regarding my roadblock lawsuit.

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.


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 one of my attorney's 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.


Comment from: Pafoofnik1 [Visitor]
Virtual "high-five" for your victory.

I wonder why the courts don't require the law enforcement agencies to pay all of your costs of bringing them to trial? It seems only fair. I mean, you are already paying for their defense.
Permalink 2009-08-05 @ 04:05
Comment from: Guy Mac [Visitor]
Congratulations, besides being a victory for you personally, it is an important clarification of citizens rights on our roadways!
Permalink 2009-08-05 @ 08:52
Comment from: Wretched Gnu [Visitor]

But it is still infuriating that court decrees that one cannot hold agents accountable for their "lawful orders" even if the seizure is determined to be unconstitutional.

Did the court take into account at all during the proceedings the fact that the officers repeatedly cited bogus laws -- and many outright lies -- in the articulation of their "lawful orders"? Does this really not matter to the court?
Permalink 2009-08-05 @ 11:55
Comment from: Alex [Visitor] ·
Well Done- from Washington State!

Thanks for what you do.

Permalink 2009-08-05 @ 14:05
Comment from: Don [Visitor]
Congratulations. I'm glad you're happy with the decision - I didn't know if you would be. I found it irritating that the decision said you were required to show your Driver's License and follow police orders (illegal orders from an illegal stop). Thank you so much for what you are doing. I am in awe of your courage. You are exceptionally well spoken. There are so few Americans who value the Constitution.
Permalink 2009-08-05 @ 19:21
Comment from: Bill Scannell [Visitor]
Permalink 2009-08-07 @ 01:04
Comment from: Kneverr [Visitor]
Thank you for fighting this battle for you do it for all Americans... even though many are sadly oblivious.

Congratulations! You are a true American hero and should stand proud.
Permalink 2009-08-07 @ 04:50
Comment from: David [Visitor]
I read the decision and it seems to me that the outcome was simply postponed and is still in limbo. I wonder why this higher court could not simply make a decision on what is (still) a basic constitutional issue. I find it troubling that the higher circuit court seems to accept the premise in their decision that “All vehicles are stopped, with no suspicion required.”

If tribal nations are allowed to stop non-Indians, Indians, Italians, or whatever, this still amounts to a seizure without probable cause. Everyone is still required to stop. This violates the spirit and the letter of the fourth amendment. That is, people are assumed to be doing something wrong until they can prove that they are not doing anything wrong. If I am ever driving on this Arizona road, I suppose it is now incumbent upon me to show how I am not an Indian. The issue would really strike my wife, who is from the Philippines, but looks very much like a Native American. Perhaps she would quickly wipe away the rouge from her cheeks, lest the U.S. Security Guards mistake it for war paint.

My comments should not detract from the courage you have shown in pursuit of what is right. You are courageous, patriotic, and a true American hero. I take inspiration from this, and hope many others will too. It is also good to see the local news reporting on something important. I wish you well in your efforts with the district court.

Permalink 2009-08-08 @ 08:49
Comment from: ndn941 [Visitor]
Mr. Bressi, I shake your hand for the courage it took to stand up for your rights and expose the unlawful detainment (?), among other things, by the TOPD and other agencies. Too many times I have seen tribal LEO and courts violate basic rights of individuals, knowing that the individuals wouldn't pursue federal action as you did. Almost all pay and whine. These individuals only make it harder for the next guy to make a stand. I guess, like you, I believe that an individual that does not stand up for his rights...has no rights. (have you found an atheletic supporter,i.e. jock-strap, that fits you yet? hahahahahahahahahahahahaha
Permalink 2009-12-27 @ 16:56
Comment from: Hawk [Visitor]
Congrats on pursuing what you believe in to be a wrong. Although this is somewhat similar to the Arizona law, it is still different, due to the Indian (Native American) or not issue and if they had jurisdiction over you. I don't feel as though this is the same issue as the border patrol while it may be somewhat similar in nature.

So, what has become of your 1983 claim after the remand? Keep fighting for what you believe in. Although our opinions may differ as I believe in the Arizona Law, I still have respect for your opinion and your fight for justice.
Permalink 2010-06-07 @ 15:41

Comments are closed for this post.

Roadblock Revelations

Welcome to Checkpoint USA's blog. Here you'll find general information and discussions regarding growing threats to our right to privacy & travel.

While I refer to court cases along with state and federal law frequently in this blog, nothing written here should be construed as legal advice. I am not an attorney. Rather, I'm someone concerned about the growing disregard for individual rights present at all levels of government.

My conclusions are my own based upon personal experience and research. The law is made purposely complex however and varies significantly from place to place and circumstance to circumstance.

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