Appeal from the United States District Court for the District of Arizona John M. Roll, District Judge, Presiding D.C. No. CV-04-00264-JMR.
The opinion of the court was delivered by: Canby, Circuit Judge
Argued and Submitted November 20, 2008 -- San Francisco, California
Before: William C. Canby, Jr. and Kim McLane Wardlaw, Circuit Judges, and Richard Mills,*fn2 District 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 Officers and the United States separately.*fn3 The court held that the 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 prosecutorial 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.
In December 2002, the Tribal Police Department was operating 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 operating 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 certification 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 pursuant 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 about four hours of intermittent exchanges between the Officers and Bressi, during which time Bressi was handcuffed and taken to the side of the road, the Officers cited Bressi for violating two Arizona laws: Ariz. Rev. Stat. § 28-1595(B) (failure to provide a driver's license or proof of identity) and Ariz. Rev. Stat. § 28-622(A) (failure to comply with a police officer's lawful order). Bressi was allowed to leave after he signed the citations.
The Pima County Justice Court dismissed without prejudice 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 ...