NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
TERRENCE BRESSI, No. 22-15123
Plaintiff-Appellant, D.C. No. 4:18-cv-00186-DCB
v. MEMORANDUM* PIMA COUNTY BOARD OF SUPERVISORS; MARK NAPIER, Former Pima County Sheriff, in his individual capacity; CHRISTOPHER NANOS, Pima County Sheriff, in his official capacity; RYAN ROHER, Pima County Deputy Sheriff, in his individual capacity; BRIAN KUNZE, Pima County Deputy Sheriff, in his individual capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PATROL; UNITED STATES OFFICE OF BORDER PATROL; ALEJANDRO N. MAYORKAS, Secretary, DHS; CHRIS MAGNUS, Commissioner, CBP; RAUL L. ORTIZ; JOHN R. MODLIN; UNITED STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted February 7, 2023 Phoenix, Arizona
Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.
Terrence Bressi appeals the adverse grant of summary judgment on his claims
that the Border Patrol’s operation of a checkpoint on State Route 86 in Southern
Arizona (the “SR-86 checkpoint”) violates the Fourth Amendment and that he has
been falsely arrested and routinely retaliated against for protesting the checkpoint.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
grant of summary judgment, Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th
Cir. 2018), and may affirm on any basis supported by the record, In re Leavitt, 171
F.3d 1219, 1223 (9th Cir. 1999). We affirm.
1. To prevail on his claim that the SR-86 checkpoint violates the Fourth
Amendment, Bressi must demonstrate that the checkpoint has an impermissible
primary purpose or that the checkpoint’s operation is unreasonable. See Demarest
v. City of Vallejo, 44 F.4th 1209, 1220 (9th Cir. 2022). Defendants put forth
evidence that the SR-86 checkpoint is an immigration checkpoint that operates
within the parameters approved by the Supreme Court in United States v. Martinez-
Fuerte, 428 U.S. 543 (1976). Bressi’s video recordings of his interactions at the
checkpoint also depict agents routinely identifying the checkpoint as an
“immigration checkpoint” and limiting their encounters to a few immigration-related
questions and open-view inspections of the passing vehicles. Contrary to Bressi’s
2 contention, the evidence on which he relies tends to show, at most, that the
checkpoint has a secondary purpose of illegal-narcotics interdiction, which is
insufficient to raise a triable issue as to the permissibility of the checkpoint’s clear
primary purpose of immigration enforcement. Demarest, 44 F.4th at 1220; United
States v. Soto-Camacho, 58 F.3d 408, 411–12 (9th Cir. 1995). Nor does the evidence
cited by Bressi raise a triable issue of fact as to the reasonableness of the
checkpoint’s operation. United States v. Soyland, 3 F.3d 1312, 1314 (9th Cir. 1993);
United States v. Wilson, 7 F.3d 828, 833 (9th Cir. 1993).
2. Summary judgment was also warranted on all claims relating to
Bressi’s April 10, 2017, arrest. As an element of his Fourth Amendment, false
imprisonment, and retaliatory arrest claims relating to that arrest, Bressi must show
the absence of probable cause. See Lacey v. Maricopa County, 693 F.3d 896, 918
(9th Cir. 2012) (en banc) (Fourth Amendment claim under 42 U.S.C. § 1983);
Cullison v. City of Peoria, 584 P.2d 1156, 1160 (Ariz. 1978) (false imprisonment
claim); Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019) (First Amendment retaliatory
arrest claim).
The undisputed evidence demonstrates that there was probable cause to arrest
Bressi. See Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). When
Pima County Sheriff’s Department Deputy Roher arrived at the scene, Border Patrol
Agent Frye informed Deputy Roher that Bressi had not answered Agent Frye’s
3 immigration-related questions and had refused his instruction to move to the
secondary inspection site. Deputy Roher instructed Bressi to move his vehicle out
of the primary inspection lane and informed Bressi that he was obstructing traffic.
Bressi did not comply. Deputy Roher instructed Bressi twice more to move his
vehicle to the secondary inspection area, and Bressi did not comply. An officer in
Deputy Roher’s position could reasonably believe that Bressi’s refusal to move his
vehicle out of the primary lane constituted a reckless obstruction of traffic, in
violation of Arizona Revised Statutes section 13-2906(A)(1), or a willful failure to
comply with a lawful order of a police officer invested with the authority to direct
traffic, in violation of Arizona Revised Statutes section 28-622. See Vanegas v. City
of Pasadena, 46 F.4th 1159, 1164 (9th Cir. 2022) (“Probable cause . . . ‘is not a high
bar.’” (quoting Kaley v. United States, 571 U.S. 320, 338 (2014))); see also District
of Columbia v. Wesby, 138 S. Ct. 577, 584 n.2 (2018) (explaining that “an arrest is
lawful if the officer had probable cause to arrest for any offense, not just the offense
cited at the time of arrest or booking”).
Although it is possible to prevail on a First Amendment retaliatory arrest claim
notwithstanding the existence of probable cause, Bressi failed to present the
necessary “objective evidence that he was arrested when other similarly situated
individuals not engaged in the same sort of protected speech had not been.” Nieves,
139 S. Ct. at 1727. The sole incident on which Bressi relies involved a motorist that
4 complied with instructions to move his vehicle out of the primary inspection lane
and was in the secondary inspection area at the time of the Pima County deputy’s
arrival. Cf. Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022) (question of fact
precluded summary judgment where plaintiffs presented evidence that other
individuals chalking sidewalk at the courthouse were not arrested while plaintiffs,
who were chalking anti-police messages, were arrested).
3. We need not decide the precise standard governing Bressi’s remaining
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
TERRENCE BRESSI, No. 22-15123
Plaintiff-Appellant, D.C. No. 4:18-cv-00186-DCB
v. MEMORANDUM* PIMA COUNTY BOARD OF SUPERVISORS; MARK NAPIER, Former Pima County Sheriff, in his individual capacity; CHRISTOPHER NANOS, Pima County Sheriff, in his official capacity; RYAN ROHER, Pima County Deputy Sheriff, in his individual capacity; BRIAN KUNZE, Pima County Deputy Sheriff, in his individual capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PATROL; UNITED STATES OFFICE OF BORDER PATROL; ALEJANDRO N. MAYORKAS, Secretary, DHS; CHRIS MAGNUS, Commissioner, CBP; RAUL L. ORTIZ; JOHN R. MODLIN; UNITED STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted February 7, 2023 Phoenix, Arizona
Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.
Terrence Bressi appeals the adverse grant of summary judgment on his claims
that the Border Patrol’s operation of a checkpoint on State Route 86 in Southern
Arizona (the “SR-86 checkpoint”) violates the Fourth Amendment and that he has
been falsely arrested and routinely retaliated against for protesting the checkpoint.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
grant of summary judgment, Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th
Cir. 2018), and may affirm on any basis supported by the record, In re Leavitt, 171
F.3d 1219, 1223 (9th Cir. 1999). We affirm.
1. To prevail on his claim that the SR-86 checkpoint violates the Fourth
Amendment, Bressi must demonstrate that the checkpoint has an impermissible
primary purpose or that the checkpoint’s operation is unreasonable. See Demarest
v. City of Vallejo, 44 F.4th 1209, 1220 (9th Cir. 2022). Defendants put forth
evidence that the SR-86 checkpoint is an immigration checkpoint that operates
within the parameters approved by the Supreme Court in United States v. Martinez-
Fuerte, 428 U.S. 543 (1976). Bressi’s video recordings of his interactions at the
checkpoint also depict agents routinely identifying the checkpoint as an
“immigration checkpoint” and limiting their encounters to a few immigration-related
questions and open-view inspections of the passing vehicles. Contrary to Bressi’s
2 contention, the evidence on which he relies tends to show, at most, that the
checkpoint has a secondary purpose of illegal-narcotics interdiction, which is
insufficient to raise a triable issue as to the permissibility of the checkpoint’s clear
primary purpose of immigration enforcement. Demarest, 44 F.4th at 1220; United
States v. Soto-Camacho, 58 F.3d 408, 411–12 (9th Cir. 1995). Nor does the evidence
cited by Bressi raise a triable issue of fact as to the reasonableness of the
checkpoint’s operation. United States v. Soyland, 3 F.3d 1312, 1314 (9th Cir. 1993);
United States v. Wilson, 7 F.3d 828, 833 (9th Cir. 1993).
2. Summary judgment was also warranted on all claims relating to
Bressi’s April 10, 2017, arrest. As an element of his Fourth Amendment, false
imprisonment, and retaliatory arrest claims relating to that arrest, Bressi must show
the absence of probable cause. See Lacey v. Maricopa County, 693 F.3d 896, 918
(9th Cir. 2012) (en banc) (Fourth Amendment claim under 42 U.S.C. § 1983);
Cullison v. City of Peoria, 584 P.2d 1156, 1160 (Ariz. 1978) (false imprisonment
claim); Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019) (First Amendment retaliatory
arrest claim).
The undisputed evidence demonstrates that there was probable cause to arrest
Bressi. See Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). When
Pima County Sheriff’s Department Deputy Roher arrived at the scene, Border Patrol
Agent Frye informed Deputy Roher that Bressi had not answered Agent Frye’s
3 immigration-related questions and had refused his instruction to move to the
secondary inspection site. Deputy Roher instructed Bressi to move his vehicle out
of the primary inspection lane and informed Bressi that he was obstructing traffic.
Bressi did not comply. Deputy Roher instructed Bressi twice more to move his
vehicle to the secondary inspection area, and Bressi did not comply. An officer in
Deputy Roher’s position could reasonably believe that Bressi’s refusal to move his
vehicle out of the primary lane constituted a reckless obstruction of traffic, in
violation of Arizona Revised Statutes section 13-2906(A)(1), or a willful failure to
comply with a lawful order of a police officer invested with the authority to direct
traffic, in violation of Arizona Revised Statutes section 28-622. See Vanegas v. City
of Pasadena, 46 F.4th 1159, 1164 (9th Cir. 2022) (“Probable cause . . . ‘is not a high
bar.’” (quoting Kaley v. United States, 571 U.S. 320, 338 (2014))); see also District
of Columbia v. Wesby, 138 S. Ct. 577, 584 n.2 (2018) (explaining that “an arrest is
lawful if the officer had probable cause to arrest for any offense, not just the offense
cited at the time of arrest or booking”).
Although it is possible to prevail on a First Amendment retaliatory arrest claim
notwithstanding the existence of probable cause, Bressi failed to present the
necessary “objective evidence that he was arrested when other similarly situated
individuals not engaged in the same sort of protected speech had not been.” Nieves,
139 S. Ct. at 1727. The sole incident on which Bressi relies involved a motorist that
4 complied with instructions to move his vehicle out of the primary inspection lane
and was in the secondary inspection area at the time of the Pima County deputy’s
arrival. Cf. Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022) (question of fact
precluded summary judgment where plaintiffs presented evidence that other
individuals chalking sidewalk at the courthouse were not arrested while plaintiffs,
who were chalking anti-police messages, were arrested).
3. We need not decide the precise standard governing Bressi’s remaining
First Amendment retaliation claim because summary judgment was warranted
regardless of the applicable standard. See Bello-Reyes v. Gaynor, 985 F.3d 696, 700
(9th Cir. 2021). It is undisputed that Bressi has crossed the checkpoint more than
500 times over approximately 15 years, and he identified 18 incidents in which he
contends agents retaliated against him. Of those incidents, a reasonable jury could
infer that Bressi was detained after agents had identified him and completed an open-
view inspection of his vehicle on, at most, two or three occasions.
Even assuming the agents acted in retaliation for Bressi’s speech on those two
or three occasions, which occurred five to ten years prior to Bressi’s complaint in
the underlying litigation, those incidents are insufficient to support Bressi’s claim
for equitable relief. See Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1044 (9th
Cir. 1999) (en banc) (affirming adverse grant of summary judgment on claim
seeking declaratory and injunctive relief against Border Patrol by plaintiffs who saw
5 Border Patrol nearly every day over ten-year period and were stopped only once
each).
4. Because summary judgment was warranted on Bressi’s predicate
claims, summary judgment was also warranted on his claims under Monell v.
Department of Social Services, 436 U.S. 658 (1978). See, e.g., Dougherty v. City of
Covina, 654 F.3d 892, 900 (9th Cir. 2011) (deprivation of constitutional right
necessary to establish liability for governmental entities under Monell).
AFFIRMED.