Loren Shirk v. United States

concurring:

I am in full agreement with the judgment of the Court. I write only to register my doubts as to one of the district court’s conclusions, which the panel’s opinion need not and, properly in my view, does not reach in the course of its remand. Were we squarely presented with the issue, I would conclude that the relevant agreements between the federal government and the tribe authorize, indeed perhaps require, the enforcement of Arizona state law by tribal police officers.

The Multi-Year Financing Agreement, as the panel opinion notes, requires the tribe to ensure that all its uniformed officers and criminal investigators maintain state “peace officer certification,” and it specifically mentions “AZPOST” certification. MYFA § 2(L). In Arizona, AZ-POST certification supplies the necessary and sufficient condition for Indian tribal officers engaged in the conduct of their employment to possess the legal powers and duties of state peace officers. See Ariz.Rev.Stat. §§ 13-3874(A), 41~1823(B). These powers and duties include the authority to enforce state law and the duty to protect the public order and make arrests. Id. §§ 13-3874(A) (providing that certified tribal…

concurring in part, dissenting in part:

This court need not remand. I disagree that “uncertainty about which contractual obligations were in force between the United States and the GRIC at the time of Shirk’s accident” compels remand. Op. at 1008. 1 According to the majority, the district court “assumed that the 638 Contract’s limitations on the authority of tribal officers applied to the 2003 Compact.” Op. at 1008 (citation omitted). “On appeal, however, the GRIC has argued that the 638 Contract expired before the enactment of the 2003 Compact, that the 2003 Compact superseded the terms of the 638 Contract, and that the provisions of the 638 Contract no longer apply.” Op. at 1008 (citation omitted). All this court need do, however, is to look within the four comers of the contracts in the record: if the 638 Contract contains an expiration provision, it expired pursuant to that provision; if the 2003 Compact contains a provision superseding the 638 Contract, then it super-cedes the 638 Contract. 2 There are no issues of fact that require remand. Therefore, even though the district court did not employ the new two-part test we hand down today, and “[tjypically, a federal appellate…

Opinion by Judge O’Scannlain; Concurrence by Judge Sack; Partial Concurrence and Partial Dissent by Judge Bea.

OPINION

We are asked to decide whether the United States may be held liable under the Federal Tort Claims Act for the off-reservation actions of two tribal police officers.

I

A

On October 19, 2006, at approximately 5:00 p.m., Detective Michael Lancaster and *1001 Sergeant Hilario Tanakeyowma (the “Officers”), two tribal police officers employed by the Gila River Indian Community (“GRIC” or the “Community”), were traveling northbound on State Route 587 in a GRIC Police Department vehicle. 1 They had attended a mandatory police counter-terrorism training class in Tucson, Arizona, and were returning to Sergeant Ta-nakeyowma’s residence in Chandler, Arizona.

As the Officers approached the intersection of Chandler Heights Road and State Route 87/Arizona Avenue, outside the boundaries of the GRIC reservation, they observed a white compact vehicle driving erratically. The driver of the vehicle was later determined to be Leshedriek Sanford, a paroled felon. The Officers began to pursue Sanford. When Sanford came to a stop at a red light at the intersection of Ocotillo Road…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOREN R. SHIRK; JENNIFER ROSE, No. 10-17443 individually and as husband and wife, D.C. No. Plaintiffs-Appellants, 2:09-cv-01786-

NVW

v.

UNITED STATES OF AMERICA, on OPINION behalf of its agency, Department of Interior, Bureau of Indian Affairs, Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted June 12, 2014—San Francisco, California

Filed December 8, 2014

Before: Diarmuid F. O’Scannlain, Robert D. Sack*, and Carlos T. Bea, Circuit Judges.

* The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. Opinion by Judge O’Scannlain; Concurrence by Judge Sack; Partial Concurrence and Partial Dissent by Judge Bea

SUMMARY**

Federal Tort Claims Act

The panel vacated the district court’s dismissal for lack of subject matter jurisdiction of a Federal Tort Claims Act action brought against the United States after Jennifer…