Pistor v. Garcia

Tribal Defendants are not entitled to sovereign immunity when they are sued in their individual capacity, rather than their official capacities, regardless if they are sued for actions done in the course of their official duties, unless any recovery will run against the tribe.

Plaintiffs Rahne Pistor, George Abel, and Jacob Whitherspoon (“the Gamblers”) were using legal technique to win at a casino owned and operated by the Tonto Apache Tribe (“the Tribe”). Carlos Garcia, chief of the Tribe’s police, and Lisa Kaiser, a Tribal Gaming Office Inspector, (“Tribal Defendants”) arrested and interrogated the Gamblers inside the casino. The Tribal Defendants also seized large sums of cash and personal property from the Gamblers; the scheme was planned in hope of stealing back the earnings the Gamblers’ had won. The Gamblers filed suit seeking damages from the Tribal Defendants under 42 U.S.C. § 1983, alleging the deprivation of rights under color of law for violations of their Fourth and Fourteenth Amendment rights, along with other state tort law claims. The Tribal Defendants moved to dismiss the case arguing the district court lacked jurisdiction and asserting tribal sovereign immunity. The district court denied the motion to dismissed, reasoning that it would be inappropriate to do so, even if they were entitled to immunity. Further, the court held in the alternative, dismissing case was inappropriate because defendants were being sued as their individual capacities under color of state law rather than their official capacities, and thus not entitled to immunity. On appeal, the Ninth Circuit Court held the district court erred in its reasoning, however, affirmed the denial of dismissal. The panel reasoned that if sovereign immunity is raised as a Federal Rule of Civil Procedure 12(b)(1) motion, it must be addressed and decided. The panel agreed with the district court, reaffirming the Maxwell decision, holding that Tribal Defendants are not entitled to sovereign immunity when they are sued in their individual capacity, regardless if they are sued for actions done in the course of their official duties, unless any recovery will run against the tribe. AFFIRMED.