Gambling-Shakedown Claims Advance in Ariz.

     (CN) – Denying tribal officers immunity Tuesday, the Ninth Circuit advanced claims by gamblers who say police robbed them for making too much money at the casino.
     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.
     The three men 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,” a federal judge in Arizona said such relief would be inappropriate “because the district court has ‘power generally to hear these kinds of claims.'”
     The court also found that the tribal defendants were not immune if they were sued as individuals.
     A three-judge panel of the Ninth Circuit affirmed Tuesday, also emphasizing that the tribal defendants were sued as individuals and not in their official capacities.
     “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,” Judge Marsha Berzon wrote for the court in San Francisco. “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.” (Emphasis in original.)
     The lower court did get it wrong, however, as to a jurisdictional issue, according to the ruling.
     “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,” Berzon found.
     Glenn Feldman, an attorney for the tribal defendants, says 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, is out of the country and could not be reached for comment.

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