California Tribe Asks 9th Circ. To Hear Officer Prosecution Row

Law360, New York (March 31, 2016, 9:58 PM ET) — The Bishop Paiute Tribe hit back at a California county’s arguments to dismiss its appeal of the prosecution of one of its police officers, telling the Ninth Circuit Wednesday that county officials have simply parroted a district court’s incorrect ruling in the case without offering any other legal authorities to support their arguments.

U.S. District Judge Garland E. Burrell Jr. had tossed out the tribe’s complaint in July 2015, finding there was no controversy to rule on after Inyo County, its Sheriff William Lutze and District Attorney Thomas Hardy charged tribal police officer Daniel Johnson with assault with a stun-gun, false imprisonment, impersonating a public officer and battery.

The charges followed Johnson’s alleged use of a stun gun on a non-Native American woman on the tribe’s reservation, and her subsequent detention and delivery to the sheriff’s deputies, according to court documents.

The county had asked the Ninth Circuit to dismiss the tribe’s appeal of Judge Burrell’s decision last week, but the tribe said there is indeed a controversy based on whether Johnson was acting in accord with his inherent tribal authority or whether he was impersonating a California peace officer.

“The inherent authority exercised by the tribe’s police officer is derivative of and inextricably intertwined in its sovereign authority to exclude non-Indians from tribal lands,” the tribe said. “The inherent authority of exclusion is well established under Supreme Court case law and has not been altered, divested or diminished by Congress.”

The county’s interference with the tribe’s inherent law enforcement authority on reservation lands has undermined the tribe’s ability to maintain peace and security by putting its officers in the “untenable situation” of facing arrest and prosecution for doing their job, the tribe said.

“The appellees’ action has also cast doubt in both the tribal and non-Indian communities regarding the authority of tribal police officers to take actions against any person violating tribal, state and federal laws while on tribal lands,” the tribe said, adding that Johnson was acting under well-delineated federal rules that apply to non-natives entering tribal lands and breaking tribal, state or federal laws.

The tribe, whose reservation lies in a remote part of eastern California nestled between national forests, sued the county, Lutze and Hardy in March 2015, alleging the charges against Johnson interfered with its authority to police its own lands.

The feud arose from a domestic dispute on the 875-acre reservation when Johnson responded to a call from a tribe member who said his non-Native American ex-wife was causing a disturbance at his home in violation of both a tribal and state protective order, the complaint said.

Johnson found the woman in her car outside the home, and the two got into a scuffle when she refused to exit her vehicle, according to the tribe’s complaint.

The county argued it couldn’t be sued over actions taken by Lutze and Hardy, claiming they are independently elected officials who were acting within their duties when they arrested and charged Johnson with multiple felonies in January.

While the tribe said it agreed that Hardy was acting as a state official rather than a county official, it claimed Lutze acted with final policymaking authority that made the county responsible for his actions in arresting Johnson and for issuing a “cease and desist” order threatening further prosecutions if tribal officers continued to exercise authority on the reservation.

In July, Judge Burrell tossed the complaint, explaining that it did “not allege ‘a definite and concrete dispute’ regarding what anticipated conduct is involved with the declaratory and injunctive relief it seeks.”

The judge said that the tribe appeared to root its allegations of an actual controversy in its concerns about a warning in the cease and desist letter that stated its tribal officers could be subject to a civil action or a criminal prosecution if they exercise “unlawful force during the unlawful exercise of authority.” But he noted that, in a letter responding to the cease and desist, the tribe said it had intended to comply with the issues addressed in the letter.

Representatives for the parties could not be reached for comment late Thursday.

The Bishop Paiute Tribe is represented by Dorothy Alther and Jasmine Andreas of California Indian Legal Services.

Inyo County, William Lutze and Thomas Hardy are represented by John Douglas Kirby of the Law Offices of John D. Kirby and Marshall S. Rudolph of the County of Inyo’s Office of the County Counsel.

The case is Bishop Paiute Tribe v. Inyo County, et al, case number 15-16604, in the U.S. Court of Appeals for the Ninth Circuit.

By Vidya Kauri

http://www.law360.com/articles/778635/calif-tribe-asks-9th-circ-to-hear-officer-prosecution-row