Metropolitan News-Enterprise


Wednesday, July 1, 2015


Page 1


Court Allows Gambling-Shakedown Claims to Advance


From Staff and Wire Service Reports


Indian tribal officers lack sovereign immunity from civil rights claims brought against them in their individual capacities, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel ruled that Senior U.S. District Judge Frederick J. Martone correctly denied the defendants’ motion to dismiss the plaintiffs’ 42 U.S.C. §1983 action, although it said the district judge erred in avoiding the immunity issue and going straight to the merits of the complaint.

Plaintiffs Rahne Pistor, George Abel, and Jacob Whitherspoon say they had won big at the Mazatzal Hotel and Casino in Payson, Ariz., through a legal technique called advantage gambling, in which players limit themselves only to games with a statistical advantage in their favor.

Most casino games favor the house, but Pistor, Abel and Whitherspoon were playing video blackjack machines at the Mazatzal on Oct. 25, 2011.

They claim that the Tonto Apache Tribe wanted to punish them for winning so much so Police Chief Carlos Garcia, Mazatzal general manager Farrell Hoosava, and Tribal Gaming Office Inspector Lisa Kaiser escorted them from the gambling floor.

In interrogation rooms, the men were handcuffed, questioned and fleeced of their money and property, they allege. They filed their complaint against Garcia, Hoosava, Kaiser and several nontribal defendants, alleging unlawful detention and property seizure.

They claim that the tribal defendants orchestrated the shakedown a day earlier in a meeting with the Gila County Sheriff’s Office and the Arizona Department of Gaming.

Though the tribal defendants moved to dismiss on the basis of tribal immunity, Martone said such relief would be inappropriate “because the district court has ‘power generally to hear these kinds of claims.’”

The district judge should not have been reluctant to rule on the issue of sovereign immunity, Judge Marsha Berzon wrote for the appeals court, citing Maxwell v. County of San Diego, 708 F.3d 1075, 1089 (9th Cir. 2013), which she said “makes our determination pretty much foreordained.”

Berzon wrote:

“To the contrary, as the tribal defendants invoked sovereign immunity in an appropriate manner and at an appropriate stage, i.e. in a Rule 12(b)(1) motion to dismiss, if they were entitled to tribal immunity from suit, the district court would lack jurisdiction over the claims against them and would be required to dismiss them from the litigation.”

She went on to say:

“The question whether defendants were acting in their official capacities under color of state or under color of tribal law is wholly irrelevant to the tribal sovereign immunity analysis. By its essential nature, an individual or personal capacity suit against an officer seeks to hold the officer personally liable for wrongful conduct taken in the course of her official duties.”

Glenn Feldman, a Phoenix attorney for the tribal defendants, said the ruling is disappointing.

“Our concern is rather than clarifying the law as respect to tribal sovereign immunity, the decision will further confuse the issue,” Feldman said in an interview. “We are a little concerned that the court hasn’t really given us a rule to apply.”

Bob Nersesian, an attorney for the gamblers, was out of the country and could not be reached for comment.

The case is Pistor v. Garcia, 12-17095.


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