Joe Parks
Engineer Terry Bressi travels from Tucson, Arizona, to Kitt Peak National Observatory (pictured here) every day for work, crossing a tribal boundary and coming into conflict with local police working on behalf of U.S. Border Patrol.
Each weekday morning, engineer Terry Bressi makes a fifty-mile journey from Tucson, Arizona, to Kitt Peak National Observatory, a sprawling, mountaintop astronomical research complex on the Tohono O’odham reservation. Working with the University of Arizona’s Lunar and Planetary Laboratory, the graying, no-nonsense scientist divides his time between maintaining Kitt Peak’s telescopes, and searching the heavens for comets, asteroids, and other earth-threatening projectiles. But as he returns home each night, Bressi must drive through a government checkpoint that he says threatens his civil rights.
Now he has filed a lawsuit that could have a sweeping impact upon how these intrusive checkpoints are conducted.
The Tohono O’odham Nation straddles the U.S.-Mexico border, sharing about sixty-five miles of borderline with Mexico, and it has a heavy U.S. Border Patrol presence. All major roads are monitored by military-style checkpoints at the edge of the reservation. Over time, agents at the checkpoint on State Highway 86, leading back to Tucson, have come to know Bressi. Indeed, he’s hard to miss, with four cameras mounted around the perimeter of his truck, to record what transpires when he refuses to answer their questions.
The Tohono O’odham Nation straddles the U.S.-Mexico border and has a heavy U.S. Border Patrol presence.
Bressi’s first run-in with mission-murky checkpoints occurred in December 2002, when he passed through a DUI stop set up by tribal police. In what would become a chummy—and potentially unlawful—pattern, federal agents were also clustered at the stop, checking vehicles for drugs and undocumented immigrants. When Bressi questioned whether the stop was federal or tribal, and meant to snare smugglers or drunks, a federal agent demanded that he comply with Tohono O’odham officers. According to court records, after Bressi failed to obey their commands, one cop yelled “Don’t give me that Fourth Amendment crap!” Ultimately, the scientist was arrested for failing to show his driver’s license, and held at the roadside for several hours by tribal police.
The charges were subsequently dismissed, and Bressi later sued the Tohono O’odham Police Department for malicious prosecution, winning a $210,000 settlement.
Since then, he has been arrested five more times. In each case, the charges have either been dropped or dismissed. Sometimes, as with the tribal police, he goes on the offensive. Now he’s fighting back again, in a case that could have far-reaching First Amendment and Fourth Amendment implications.
Bressi maintains that he has no legal obligation to declare his citizenship to agents—a position supported by law, and by the ACLU. This assertion seems to irritate those agents to no end, because they’re always finding new ways to hassle him. He says he is routinely kept waiting in the line of traffic, or subjected to drug-sniffing dogs that roam his truck bed. The conversation usually goes something like this:
Agent: “Are you an American citizen?”
Bressi, through his rolled-up window: “Am I being detained, or am I free to go?”
Agent: “Are you an American citizen?”
Bressi: “Am I being detained, or am I free to go?”
And so it goes, until the agent sighs in disgust, and waves Bressi on.
Since Bressi has violated no federal law, agents sometimes summon the local cops, so they can find some pretext for placing him under arrest. It’s a facile arrangement, given that officers often linger at the checkpoint, trolling for drunk drivers or broken tail lights.
Agent: “Are you an American citizen?”
Bressi: “Am I being detained, or am I free to go?”
Federal courts have held that such blurring of law enforcement missions, at a stop designated only to catch undocumented immigrants, operates on the fringes of legality. Nonetheless, under a U.S. Department of Homeland Security program called Operation Stonegarden, such close cooperation between local authorities and the CBP has become only more common. Each year, those police and sheriffs’ that assist in border enforcement receive millions of dollars in Stonegarden grants.
To Bressi, that’s a recipe for abuse. “These grants pay deputies time-and-a-half to be at the beck-and-call of their Border Patrol handlers,” he says, “and the Border Patrol is using them to harass people they don’t like. Every single citation, every single arrest I’ve ever suffered, has not been at the hands of the border Patrol. It’s been at the hands of local cops working on behalf of the Border Patrol.”
The latest incident unfolded on April 10, 2017, when Bressi was returning from work. As usual, he stopped at the checkpoint, where agents asked whether he was a U.S. citizen. And as usual, Bressi refused to answer, which apparently irritated the agents. At that point, Deputy Ryan Roher of the Pima County Sheriff’s Department came over to confront Bressi. Long a participant in Operation Stonegarden, Pima County stretches for 9,200 square miles across Southern Arizona, reaching down to the border and encompassing the Border Patrol checkpoint on State Highway 86.
Roher told Bressi to leave the checkpoint, then proceeded to follow and arrest him. The charge? Obstructing a state highway while at the checkpoint—although Bressi was only blocking traffic because he was being questioned by Border Patrol agents.
The charges were later dropped, and on April 9, 2018, Bressi sued the Pima County Sheriff’s Department for violating his civil rights.
Despite the absurdity of Bressi’s latest arrest, his lawsuit raises serious constitutional issues, including an individual’s First Amendment right not to speak to agents. “This could mark a significant shift in case law,” says Billy Peard, a staff attorney with the ACLU of Arizona. “The principle not to speak has never been applied to the checkpoint scenario, from what I can tell. So this could be opportunity to establish that legally.”
Bressi’s suit also challenges the legality of having local cops parked at Border Patrol checkpoints. By law, such stops must have a single, narrow mission—in this case, immigration control—and can’t simply become law enforcement free-for-alls. “But on the specific day that Terry was arrested at the checkpoint, local police were operating at that checkpoint alongside Border Patrol employees,” says Peard. “So our position is that it was a dual purpose checkpoint at least as it was operating on that particular day. The checkpoint, from our perspective, was operating unconstitutionally.”
This could mark a significant shift in case law—an opportunity to establish the principle not to speak at a border checkpoint.
Responding to emailed to questions about Bressi’s suit, the Border Patrol’s Tucson Sector wrote that the “Pima County Sheriff's Department deputies are not assigned to CBP Immigration Checkpoints.” (CBP, or Customs and Border Protection, is the Border Patrol’s parent agency.)
The sheriff’s department sent a similar response, writing that deputies “at times have been called to checkpoints by agents (in) reference (to) crimes such as DUI investigations or outstanding warrants. Our deputies are not assigned to sit at checkpoints and we do not have the authority to enforce federal crimes only state crimes.”
But that claim was contradicted by Deputy Roher himself. In a deposition for Bressi’s lawsuit, Roher explained that he and his fellow officers routinely work alongside Border Patrol agents out on State Highway 86. “At one point, we were actually assigned to that checkpoint for the day,” he said.
Incidentally, the issue recently came before the Pima County Board of Supervisors, which in September voted to discontinue participation with Operation Stonegarden due to concerns about cost and potential abuse. Bressi’s case, which could go to trial as early as June 2019, is certain to raise even more questions.
Meanwhile, as Bressi awaits his latest date in court, he hopes his latest suit will prompt badly needed reforms at all Border Patrol checkpoints dotting the Southwest. “It’s so fundamentally important, with regards to the type of society we want to live in,” he says. “Do we want a society where government agents have the power to arbitrarily stop, seize, detain, harass and interrogate people just for being outside of their homes? Because that’s what this is.”