[00:00:00] Speaker 02:
We'll turn to our next case on the docket, Walden versus City of Duncan.

[00:00:04] Speaker 02:
25-6153, Mr. Hammonds.

[00:00:29] Speaker 04:
Thank you, your honor.

[00:00:30] Speaker 04:
Members of the court, my name is Mark Hammons.

[00:00:33] Speaker 04:
I represent Sean Walden, the appellate in this case.

[00:00:37] Speaker 04:
The central issue is whether or not the police officer who arrested him acted under color municipal law, state action.

[00:00:47] Speaker 04:
This court had asked us to take special attention to four other decisions, Griffin versus Maryland, Romero versus Peterson,

[00:01:00] Speaker 04:
and then that same case on its second appeal, and then Dry versus the city of Durant.

[00:01:07] Speaker 04:
And those cases, I think, are illustrative and set out the parameters of what we needed to show and did show in this particular case.

[00:01:17] Speaker 04:
Griffin versus Maryland, in particular, contains a statement that is dispositive of the color of law issue.

[00:01:26] Speaker 04:
The court there said if an individual is possessed of state authority and purports to act under that authority, his action is state action.

[00:01:38] Speaker 04:
It is irrelevant that he might have taken the same action had he acted in a purely private capacity.

[00:01:46] Speaker 04:
That statement at the court in Griffin was repeated by the Supreme Court.

[00:01:50] Speaker 04:
in West versus Atkins and then again in Polk versus County of Dodson and was repeated by this court in Dry versus City of Durant, one of the cases that U.S.

[00:02:03] Speaker 04:
is to look at.

[00:02:04] Speaker 04:
Now, in this case, there's no dispute that Officer Archer approached Mr. Walden as a City of Duncan police officer.

[00:02:16] Speaker 04:
He was dressed as one.

[00:02:18] Speaker 04:
That's how he appeared, all of his equipment, the cars, uniforms, everything that he acted with was from the city of Duncan.

[00:02:30] Speaker 04:
He continued in that throughout his encounter with Mr. Walden.

[00:02:38] Speaker 04:
The first time the tribal issue arose was after Mr. Walden had been booked into the Stevens County Jail in Notkin.

[00:02:48] Speaker 04:
state offenses.

[00:02:49] Speaker 04:
He was initially charged with state offenses.

[00:02:52] Speaker 04:
Thereafter, he was asked if he had a Native American card, and he did.

[00:02:58] Speaker 04:
And at that point in time, it was recognized that this was Indian land and that he was subject to the jurisdiction of the tribal court.

[00:03:07] Speaker 04:
And only at that point in time, after the arrest was complete, after the incarceration was complete, was an affidavit filed by the police officer

[00:03:18] Speaker 04:
for the tribal court.

[00:03:19] Speaker 04:
Now, the officer was cross-deputized, and the district court felt that a retrospective analysis should be used to say, well, he could have arrested him as a tribal officer, and he later did that affidavit, and therefore the arrest is valid under tribal law because he had the authority.

[00:03:40] Speaker 04:
But that's not the test.

[00:03:42] Speaker 04:
As a matter of fact, in Griffin, they emphasized that the question was

[00:03:47] Speaker 04:
What authority was the individual initially purporting to exercise?

[00:03:54] Speaker 02:
Now, in terms of your complaint, are you complaining about anything that happened to him?

[00:04:02] Speaker 02:
Excuse me.

[00:04:03] Speaker 02:
I'm speaking to the mic.

[00:04:05] Speaker 02:
Anything that happened to him after he presented his tribal card?

[00:04:10] Speaker 02:
No.

[00:04:11] Speaker 02:
All the misconduct that you're complaining about precedes that.

[00:04:16] Speaker 02:
So we don't need to decide whether there's some sort of problem with your claim after the card was presented?

[00:04:23] Speaker 04:
The only claim was with the initial arrest and whether or not there was probable cause, an issue that the court did not reach because it decided that the police officer was not acting under color of law when he made the arrest.

[00:04:37] Speaker 04:
But a retrospective analysis is simply not consistent with what Griffin says.

[00:04:41] Speaker 04:
It's not consistent with what this court said in

[00:04:45] Speaker 04:
Romero versus Stevenson, where it said you make that determination at the moment of the constitutional violation.

[00:04:53] Speaker 04:
This court has also said that in Howe versus City of Baxter Springs, although that is a non-precedential decision.

[00:05:01] Speaker 04:
But it's said very clearly that you make the decision about color of law at the time of the constitutional violation, not at some time thereafter.

[00:05:11] Speaker 03:
Well, Mr. Hammond.

[00:05:13] Speaker 03:
The Griffin case concerned a private security guard, correct?

[00:05:18] Speaker 03:
That's correct.

[00:05:19] Speaker 03:
And at least so far, I think your argument is that it's possible, given the circumstances of that case, for the defendant to be acting under color of state law, even if he wasn't at the time exercising his actual

[00:05:43] Speaker 03:
authority as a police officer because he was a security guard.

[00:05:47] Speaker 03:
But that takes us into these other cases and the question I think is why it's possible for an officer to exercise both actual authority, which Officer Archer was under tribal law, and apparent authority, which would be the under color of state law.

[00:06:11] Speaker 03:
Can you do that

[00:06:13] Speaker 03:
simultaneously.

[00:06:14] Speaker 03:
And so I'm really asking this as a segue to these other cases.

[00:06:19] Speaker 03:
Do they answer that question?

[00:06:22] Speaker 03:
Because I'm not sure Griffin gets you there.

[00:06:25] Speaker 04:
It doesn't get us all the way there, Your Honor.

[00:06:28] Speaker 04:
It does suggest that the critical inquiry is at the moment of the offense and not what happens thereafter.

[00:06:35] Speaker 04:
And I do recognize that if Officer Archer had said, I'm acting as a tribal officer,

[00:06:42] Speaker 04:
in arresting you, done any of those things during the course of the arrest, then it would be a different question.

[00:06:48] Speaker 04:
But he didn't do any of that until afterwards.

[00:06:53] Speaker 00:
Now, the other cases that Stephen... Well, let me, before you move off of that.

[00:06:57] Speaker 00:
Okay.

[00:06:57] Speaker 00:
So, because Officer Archer could not legally arrest on Indian country this defendant,

[00:07:10] Speaker 00:
Does the fact that he did not have actual authority affect how we view color of state law if he did have, quote, apparent authority?

[00:07:21] Speaker 00:
I'm not sure I caught your question exactly, Your Honor, but the dry cast... Well, I think it's a variation of Judge Matheson's question, which is we have a situation here where he's dressed as the city officer and in a car and actually makes the arrest.

[00:07:39] Speaker 00:
acting on behalf of the city, but the truth is he doesn't have any actual authority to make that arrest because of the circumstances, where it occurred and who we arrest.

[00:07:53] Speaker 00:
How does that factor into our analysis of color of state law?

[00:07:58] Speaker 04:
Well, you know, actual authority doesn't make any difference for the color of law inquiry.

[00:08:02] Speaker 04:
In the dry case, there's a discussion by the court about apparent authority or

[00:08:08] Speaker 04:
acting without any actual authority as long as you appear or present yourself to have authority.

[00:08:16] Speaker 04:
And the court said, and it's, I think, really virtually black-letter law at this point in time, that what color of law is concerned with is the misuse of authority that you have or the use of authority you claim to have but do not have, the fact that you

[00:08:36] Speaker 04:
have authority is not part of that inquiry.

[00:08:40] Speaker 04:
The whole color of law issue arises usually because you don't have authority.

[00:08:48] Speaker 04:
Either you had an area of authority and you exceeded that, did more than you were supposed to, but you were still under color of law, or you didn't have any authority at all, but acted as if you had the authority.

[00:09:02] Speaker 02:
It's a little more complicated than that.

[00:09:04] Speaker 02:
For apparent authority, at least in the

[00:09:06] Speaker 02:
usual law of agency, which I think the courts are applying here, the principal is not liable unless the principal does something to enable the agent to look like the agent has authority.

[00:09:24] Speaker 02:
So if someone, if in this case the defendant

[00:09:29] Speaker 02:
just made up his own uniform and put some stickers on his car and said, I'm a city police officer, a county sheriff officer or something, and did this.

[00:09:39] Speaker 02:
There would not be apparent authority because there's nothing the principal did to give the apparent officer his authority.

[00:09:49] Speaker 02:
Here, that's not the situation.

[00:09:51] Speaker 02:
He was in a police car, in uniform, et cetera.

[00:09:57] Speaker 02:
But I think you're overstating what apparent authority can be, at least for common law agency purposes, and I suspect that's also true for color of law.

[00:10:09] Speaker 02:
Are you disagreeing with me on that?

[00:10:10] Speaker 04:
Well, a little bit, Your Honor, in the sense that we don't have an agency issue because it's only the police officer who's being sued for the constitutional violation.

[00:10:20] Speaker 04:
He's acting under the authority he claims to purport.

[00:10:26] Speaker 04:
The city of Duncan is not being held liable for anything that he did except under state law, which is a different test under the Governmental Tort Claims Act.

[00:10:37] Speaker 04:
So his liability arises from his own actions.

[00:10:42] Speaker 04:
Now, he is vested with authority, and the issue is

[00:10:49] Speaker 04:
You know, did he act in a constitutional fashion when he was doing and purporting to do the things that he was authorized to do by the city of Duncan?

[00:11:03] Speaker 04:
If it's a retrospective analysis, then that's a different thing.

[00:11:07] Speaker 02:
But do you think if someone just manufactured his own vehicle as a local law enforcement vehicle and put on a uniform, he could be liable under 1983?

[00:11:19] Speaker 04:
I don't know, I'll be honest with you, I've never even thought of a circumstance where the apparent authority was completely manufactured and had no source in reality, but that isn't the circumstance we're dealing with here today.

[00:11:33] Speaker 02:
Why is apparent authority, there's got to be a theory behind apparent authority allowing liability.

[00:11:42] Speaker 02:
Yeah.

[00:11:43] Speaker 02:
It's got to be because the state actually played a role in enabling this person to violate the law.

[00:11:53] Speaker 04:
Well, it is, but what this court said in the Dreimers' City of Duncan case is that whether or not the defendant lacked actual state authority is not determinative, as the Supreme Court has noted,

[00:12:09] Speaker 04:
If 1983 was designed to embrace only actions when the state in fact authorized, and the court emphasized those words, the words under a cover of law or any law were hardly apt words to express the idea.

[00:12:25] Speaker 04:
But the state has to be involved in some way.

[00:12:27] Speaker 04:
Well, I think that's true, and they were.

[00:12:31] Speaker 04:
The question is, did the authority of the state allow him to, or,

[00:12:38] Speaker 04:
caused Mr. Walden to submit to his jurisdiction and authority.

[00:12:44] Speaker 04:
And the facts on that are undisputed.

[00:12:46] Speaker 04:
Mr. Walden always thought he was a police officer, never had any idea that he was acting pursuant to tribal law.

[00:12:55] Speaker 04:
He submitted to the authority of the police officer because the police officer presented himself as the city of Duncan police officer, not as anything else.

[00:13:08] Speaker 04:
but in that manner.

[00:13:10] Speaker 04:
And then he conducted an arrest, which we say did not meet constitutional standards, which you wouldn't get to if it was a tribal officer.

[00:13:19] Speaker 04:
It would be a different matter.

[00:13:21] Speaker 04:
But what does matter is that Mr. Walden's involvement in this as the person being arrested was that he is submitting to authority that is given to Archer and misused.

[00:13:34] Speaker 04:
as a city police officer.

[00:13:37] Speaker 04:
He's not submitting to him as a tribal officer.

[00:13:40] Speaker 04:
The search, the arrest, everything that took place up to the point after the arrest is complete and he's incarcerated is done as a state officer.

[00:13:52] Speaker 00:
Should we do the same thing here we did in Romero and clarify the factors the district court should have considered?

[00:14:00] Speaker 00:
And remand?

[00:14:01] Speaker 04:
And that's possible because there are six factors in Romero.

[00:14:05] Speaker 04:
I think we would establish most of those factors, but some of them the record is not complete on.

[00:14:11] Speaker 04:
In dry, the court suggested that both subjective factors, well, subjective factors on the part of the actor and subjective factors on the part of the plaintiff.

[00:14:22] Speaker 04:
were relevant.

[00:14:23] Speaker 04:
Those are not expressly set out, although Archer admitted he approached as a police officer and never claimed to be anything else.

[00:14:31] Speaker 04:
And I think those actions speak to his subjective state of mind.

[00:14:36] Speaker 04:
Walden did testify as to his subjective state of mind, as Ryan indicated, and said, I thought I was a city police officer.

[00:14:44] Speaker 04:
That's what I always thought.

[00:14:47] Speaker 03:
Could I just ask you, does Mr. Walden have a remedy in

[00:14:52] Speaker 03:
tribal court if his arrest was unlawful?

[00:14:57] Speaker 04:
Only the dismissal of the charges, which is what happened.

[00:15:01] Speaker 03:
So no recourse is an alternative to 1983?

[00:15:06] Speaker 03:
None that I know of.

[00:15:07] Speaker 04:
I don't think there's any equivalent of a federal court claims act, like an Indian court claims act, that applies.

[00:15:15] Speaker 04:
None that I know of, Your Honor.

[00:15:24] Speaker 02:
Mr. Hendrickson.

[00:15:38] Speaker 01:
Good morning, Your Honors.

[00:15:39] Speaker 01:
May it please the Court, Jeffrey Hendrickson for Defendant Appellee, City of Duncan, and Officer Christian Archer.

[00:15:46] Speaker 01:
Your Honors, I wasn't intending to start out this way, but I think a hypothetical might be useful to drive home the point

[00:15:52] Speaker 01:
between actual and apparent authority.

[00:15:55] Speaker 01:
If I had gotten up this morning and instead of put on this suit and come to speak to you, I had instead put on a uniform of the Denver Police Department and I had walked outside and I had placed one of my fellow citizens under arrest out in front of the courthouse.

[00:16:11] Speaker 01:
And the entire time I was wearing a Denver Police Department uniform and I had a badge and I told him, I'm with the Denver Police Department and you're under arrest and I'm going to take you down to wherever it is the Denver Police Department takes people they arrest.

[00:16:30] Speaker 01:
I might be kidnapping this person and I might go to jail, but I think it is almost without question that I would not be acting

[00:16:38] Speaker 01:
as an officer of the Denver Police Department and that I would not be acting with the authority granted by the Denver Police Department.

[00:16:45] Speaker 01:
And if this individual turned around and sued me in civil court, there might be a number of reasons that I would lose.

[00:16:52] Speaker 01:
But one of them would not be because I was acting under the color of state law and I was exercising state authority.

[00:16:58] Speaker 01:
And certainly the Denver Police Department and the City and County of Denver would think that as well.

[00:17:02] Speaker 02:
So what does it take for a parent authority?

[00:17:06] Speaker 02:
Because you admit that,

[00:17:09] Speaker 02:
The color of law can be based on apparent authority, do you not?

[00:17:12] Speaker 01:
Judge Hart, I do actually don't necessarily agree with that position.

[00:17:18] Speaker 01:
I think under Section 1983, common law principles of responding at superior are not necessarily always used in making determinations.

[00:17:28] Speaker 01:
One of the best examples of that is to have a claim against a municipality under Section 1983, you have to allege that that municipality itself did something wrong by virtue of a policy or custom.

[00:17:39] Speaker 01:
It's not sufficient to say that the officer that you employed violated the Constitution, and thereby you are responsible as well.

[00:17:47] Speaker 01:
So with respect to the act...

[00:17:49] Speaker 01:
application of these common law principles of agency law, I don't necessarily agree that they cleanly apply to this situation.

[00:17:57] Speaker 01:
And I think that that is for a couple of reasons.

[00:18:00] Speaker 01:
And the first and foremost is, from the line of cases that this court has directed the parties to be prepared and familiar with to discuss, Griffin v. Maryland, Romero v. Peterson 1 and 2, and then the Drive v. City v. Durant, I think all of those express at their core

[00:18:17] Speaker 03:
Counsel, before you jump into those cases, let me throw one other, certainly you.

[00:18:23] Speaker 03:
We have a case from 1995, Joujola versus Chavez.

[00:18:28] Speaker 03:
And in that case, the panel said that the authority with which the defendant is allegedly clothed may be either actual or apparent.

[00:18:39] Speaker 03:
It seems to me you're arguing against circuit law right now.

[00:18:44] Speaker 01:
Your Honor, I will posit that either under actual or apparent authority, the defendants should prevail.

[00:18:52] Speaker 01:
And I'm happy to walk through the discussion of apparent authority as it was laid out in Dry V. City of Durant and Romero v. Peterson.

[00:18:59] Speaker 01:
I'm not saying that what we're asking for, the ruling we're asking for today seeks an overruling of three or four different cases, including Trezola, potentially Ross v. Neff.

[00:19:10] Speaker 01:
That's not what I'm saying.

[00:19:11] Speaker 01:
What I am saying is the point of actual authority is so fundamentally more critical to the analysis than apparent authority ever should be.

[00:19:21] Speaker 01:
And I think that's most clearly expressed by the Drivey City of Durant case that we were directed to brief and be familiar with.

[00:19:27] Speaker 01:
And in that case, the fundamental component that this court found this positive was the fact that

[00:19:38] Speaker 01:
Those officers had no state authority.

[00:19:40] Speaker 03:
Now, beyond that, it also... That's what they ultimately found, but the panel said that an officer's actual authority under state law is not determinative on whether the officer acted under color of state law.

[00:19:55] Speaker 01:
Certainly, Judge Matheson, and my point in saying

[00:20:00] Speaker 01:
And I kind of harken back to the Griffin v. Maryland, the way that it asserted what the test for under color state law is, and that same expression in West v. Akins, that if an individual is purported, if an individual is possessed of state authority and purports to act under that state authority, that action is state action.

[00:20:18] Speaker 01:
My central point is, that very first question, possessive state authority, does not exist in this case.

[00:20:26] Speaker 01:
And what Griffin goes on to talk about is it's irrelevant if the act could have been done by the officer in a private capacity or if it was later said to exceed or not be authorized by the state.

[00:20:37] Speaker 01:
But I think that requires context.

[00:20:40] Speaker 01:
Certainly the cases that an officer cannot argue, I wasn't acting under color of state law when I went and violated this individual's constitutional rights because I used excessive force.

[00:20:51] Speaker 01:
The argument that they can't make is it wasn't within my authority to use excessive force.

[00:20:56] Speaker 01:
That's not what the color of state law test is.

[00:20:58] Speaker 01:
Color of state law looks at do you have the power and did you misuse the power?

[00:21:03] Speaker 01:
And the fundamental point that the appellees are making here is that power never existed in the first place with respect to Officer Archer over Mr. Walden.

[00:21:13] Speaker 01:
And that's because Mr. Walden was a member of the Choctaw Tribe.

[00:21:16] Speaker 03:
Well, let me ask this then.

[00:21:19] Speaker 03:
If Officer Archer had not been cross-deputized by the Chickasaw Nation

[00:21:26] Speaker 03:
could Mr. Walden proceed with his 1983 claim?

[00:21:29] Speaker 01:
Judge Matheson, I think that's a real tension, and I think Ross v. Neff certainly suggests that it's possible that he could proceed with the Section 1983 claim if the cross-commissioning did not exist.

[00:21:40] Speaker 01:
However, there's a couple key points on that.

[00:21:43] Speaker 01:
In Ross v. Neff,

[00:21:45] Speaker 01:
The panel went out of its way to make clear that one of the things that did not exist in that case was a cross-commissioning agreement.

[00:21:53] Speaker 01:
And it suggested specifically that there was no evidence that the police chief in Adair County had the ability to extend authority into Tribal's jurisdictions via a cross-commissioning agreement by way of suggesting that had a cross-commissioning agreement existed, this might be a different analysis.

[00:22:12] Speaker 01:
So under Ross V. Neff, Judge Mathis, you've identified an accurate tension in the law, but I think the reality is that a cross-commissioning agreement in this case did exist and it invested Mr. Officer Archer with the only set of authority that was actually legally applicable.

[00:22:28] Speaker 03:
Well, okay, but taking this back, I think, to the point you've been trying to make is even without the cross-deputization, given it's on Indian country,

[00:22:41] Speaker 03:
Given that Mr. Walden is Indian, Officer Archer still would not have actual state authority to make the arrest.

[00:22:52] Speaker 03:
And yet you're saying that there can still be a 1983 claim, but the only way that's going to happen is if he was exercising apparent authority under colored state law.

[00:23:03] Speaker 01:
Judge Matson, I think that the key point is the existence of the Cross Commission Agreement establishes the authority that he can act under.

[00:23:11] Speaker 01:
And when there is authority that is valid and legitimate, what tribal authority was in this case, where a state law authority was not, there is no line of cases that stands for the proposition that an officer could be acting under both.

[00:23:25] Speaker 03:
Ah, that takes us to the cases we asked you to look at.

[00:23:29] Speaker 01:
Certainly.

[00:23:30] Speaker 03:
So why doesn't, I mean, wasn't that precisely what we did in Romero 1 is we remanded for the court to examine that very issue because the officers,

[00:23:41] Speaker 03:
were employed by the tribes.

[00:23:44] Speaker 03:
That's true.

[00:23:45] Speaker 03:
And so they had actual authority under tribal authority, and yet the door was still open to find that they acted under color of federal law for purposes of the Bivens action.

[00:24:02] Speaker 03:
So it seems the court was at least suggesting that those officers could simultaneously

[00:24:10] Speaker 03:
act under BIA, apparent authority, and actual tribal authority.

[00:24:18] Speaker 03:
Now, at the end of the day, after Romero II, the decision was, well, they only really, there wasn't enough for under color of, but why wouldn't we read the case that way?

[00:24:33] Speaker 01:
Well, respectfully, Judge Matheson, I think that the question that Romero was deciding was between two sources of valid authority and which one would apply.

[00:24:42] Speaker 01:
In fact, in the briefing in Romero 1, one of the points that was made by the officers was, if they did have federal authority, then what should have been done in that case is that the appellant plaintiff should have brought the claim under the Federal Tort Claims Act.

[00:24:58] Speaker 01:
And so the difference between applying that assessment in Romero to the facts of this

[00:25:03] Speaker 01:
is in Romero, certainly the officers were employed by the Pueblo of Pecura's tribe.

[00:25:08] Speaker 01:
And the question in that case was a decision between two sources of valid legitimate authority.

[00:25:15] Speaker 01:
If the BIA had cross-commissioned those officers and if there were other indicia of the BIA's continued involvement in that area,

[00:25:23] Speaker 01:
excuse me, then it's certainly possible that those officers could have been found to be federal officers in that case.

[00:25:32] Speaker 01:
But the point is, is they were deciding between one of two sets of valid authority.

[00:25:37] Speaker 01:
If the officers were able to act under dual authority, then every line of cases that, or every case that we've talked about thus far would have been doing a superfluous analysis.

[00:25:46] Speaker 01:
The question would have been,

[00:25:48] Speaker 01:
Well, did they have that authority in some semblance?

[00:25:51] Speaker 01:
Yes, they did.

[00:25:51] Speaker 01:
Okay.

[00:25:52] Speaker 01:
Well, then they can be sued there or they could be sued here.

[00:25:55] Speaker 03:
Whoa, whoa, whoa.

[00:25:55] Speaker 03:
Wait a minute.

[00:25:57] Speaker 03:
Can they be sued in tribal court?

[00:26:00] Speaker 01:
Well, Your Honor, I'm not aware of that.

[00:26:02] Speaker 03:
I don't know that there is a... Don't know, but what you just said, they could be sued here, they could be sued there.

[00:26:06] Speaker 03:
Can they be sued there?

[00:26:07] Speaker 01:
Well, in the Romero case, the reason that Romero too didn't proceed was because it was declared that the officers had sovereign immunity by virtue of the tribes.

[00:26:14] Speaker 01:
However... I didn't.

[00:26:14] Speaker 03:
That's not the question.

[00:26:16] Speaker 03:
Is there a remedy here?

[00:26:17] Speaker 03:
Is there a remedy here for Mr. Walden, if we agree with you?

[00:26:24] Speaker 01:
Judge Matheson.

[00:26:26] Speaker 01:
on its face, the remedy is going to have to come from Congress.

[00:26:30] Speaker 03:
It is clear that the... So the answer is no.

[00:26:32] Speaker 01:
The answer is no in terms of Section 1983.

[00:26:35] Speaker 03:
Well, no, I didn't ask about 1983.

[00:26:37] Speaker 03:
Is there some other recourse that Mr. Walden would have?

[00:26:42] Speaker 01:
Your Honor, there is a possible set of recourse that could be available to Mr. Walden under the Federal Tort Claims Act, which... No, no, no.

[00:26:50] Speaker 03:
In Tribal.

[00:26:52] Speaker 01:
Your Honor, I am not aware of any particular recourse in tribal court that Mr. Walden could have with respect to Officer Archer.

[00:26:58] Speaker 01:
But the point overall is the outcome of this case should not be dictated by whether there is a remedy or not, because in reality, the remedy should come from Congress in the form of amending... Why doesn't that question shed some light on how we should interpret the interplay between, under color of state law,

[00:27:21] Speaker 03:
on the federal side here, or I guess it's the state side with Officer Archer and the actual tribal authority that he was exercising.

[00:27:34] Speaker 01:
Judge Matheson, I don't think it illuminates it because the law with respect to what authority was active at the time is what controls.

[00:27:44] Speaker 01:
And so with respect to the availability of a remedy or not, when the law is clear as to what authority was legitimate and what authority is not, that's what should drive the outcome.

[00:27:55] Speaker 03:
So you're reading of Romero, it's either or.

[00:27:58] Speaker 01:
That is our reading of Romero, as it is either or.

[00:28:01] Speaker 01:
And I want to just say a little bit more about the remedies question in this context.

[00:28:06] Speaker 01:
When it comes to section 1983, in the 1970s in the Supreme Court case, District Court of Columbia v. Carter,

[00:28:13] Speaker 01:
The Supreme Court itself held that there was no Section 1983 claim available to be a petitioner in that case, specifically because the text of Section 1983 did not list the District of Columbia, and the Supreme Court found that the District of Columbia was not a state or a territory.

[00:28:32] Speaker 01:
And so in that case, the Supreme Court ruled that there was no Section 1983 claim available.

[00:28:37] Speaker 03:
What's that case again?

[00:28:38] Speaker 01:
DCV Carter.

[00:28:41] Speaker 01:
Thank you.

[00:28:42] Speaker 01:
If you give me a second, I can give you the actual citation number.

[00:28:48] Speaker 01:
It's DC News Carter.

[00:28:49] Speaker 01:
I promise you it's there.

[00:28:50] Speaker 00:
I have a question.

[00:28:51] Speaker 00:
If our City of Duncan police officer went into Oklahoma City where he lacked jurisdiction and went into a home there without a warrant and arrested someone, is it your position

[00:29:12] Speaker 00:
that there would not be an 1983 remedy for that person because he was in the wrong city when he did it.

[00:29:21] Speaker 01:
Judge McHugh, no, that is not our position.

[00:29:23] Speaker 01:
I think there would be a 1983 remedy, but that gets to... Well, why?

[00:29:27] Speaker 00:
Because he is... He doesn't have any actual authority to do that, does he?

[00:29:31] Speaker 01:
Well, as a state law officer, as an officer of the city of Duncan, but it's a political subdivision of the state of Oklahoma, that would be the scope of, I believe, that would get into the question of a misuse of lawfully granted authority in the sense that it's clear from... Will you agree he has no authority to make an arrest in the other city?

[00:29:55] Speaker 01:
I would agree that that would be a...

[00:29:58] Speaker 01:
unlawful use of power granted to him as a law enforcement officer in the state of Oklahoma, which would be different than the line of cases that say from Ross v. Neff and McGirt v. Oklahoma that the state has no jurisdiction at all to prosecute crimes against Native Americans on Native American territory.

[00:30:16] Speaker 00:
I agree with you that the entering the home without a warrant is the offense that wouldn't really affect where you do it.

[00:30:26] Speaker 00:
But if he only has authority to make arrests in the city of Duncan, which is my hypothetical.

[00:30:33] Speaker 00:
And let's say he goes across state lines.

[00:30:36] Speaker 00:
I mean, and he does it in his Duncan City police officer uniform with the car or says I'm arresting you as an officer of the city of Duncan and he takes him and he puts him in jail in the city of Duncan and he charges him with a city of Duncan violation.

[00:30:55] Speaker 00:
Is there no remedy under 1983 under your analysis?

[00:31:00] Speaker 01:
Judge McHugh, I think that the remedy would likely be a Section 1983 action, but the difference again with respect to this, and I assume the individual in your hypothetical is not a Native American, but the difference there is,

[00:31:17] Speaker 01:
the weight of authority starting with Ross and ending with McGirt is there's no criminal jurisdiction whatsoever with respect to Native Americans on tribal land.

[00:31:26] Speaker 00:
Does the city of Duncan, Oklahoma, officer have any jurisdiction whatsoever if he goes over to Colorado and makes an arrest?

[00:31:39] Speaker 01:
I'm not aware of any, Your Honor.

[00:31:40] Speaker 00:
So but you're saying it's still you would have a 1983 cause of action there?

[00:31:46] Speaker 01:
I think it's possible.

[00:31:47] Speaker 01:
I think the existence of the cross-commissioning agreement is the key fact that takes this case from kind of the hypotheticals that are being provided.

[00:31:56] Speaker 01:
Your Honor, see, I'm out of time.

[00:31:57] Speaker 01:
I would just urge the court to affirm the district clerk's order.

[00:32:00] Speaker 01:
Thank you.

[00:32:03] Speaker 02:
Does the bill have any more time?

[00:32:09] Speaker 02:
You can take 30.

[00:32:14] Speaker 04:
Your Honor, the argument that we were getting into at the end is whether or not you can act under dual authority, which Presley in the Ninth Circuit said you could.

[00:32:23] Speaker 04:
And under the common law of torts, which is the background for Section 19 to 83 action, it's well established that you can act

[00:32:32] Speaker 04:
under dual authority.

[00:32:34] Speaker 04:
And I've found no cases that have rejected that in the constitutional sphere.

[00:32:39] Speaker 04:
It would seem to me to make sense that if you have color of law as a tribal authority and color of law as a state, that you are acting under a dual authority.

[00:32:52] Speaker 04:
And it doesn't foreclose 1983 action.

[00:32:56] Speaker 04:
The question becomes,

[00:33:00] Speaker 04:
Under which set of circumstances or authority did you cause the injured party to submit to your jurisdiction?

[00:33:08] Speaker 04:
And in this case, it's clear, only the authority granted by virtue of his employment with the city of Duncan caused Mr. Walden to submit to the authority of the police officer.

[00:33:21] Speaker 04:
The tribal issue was never a part of that until after the constitutional wrong had been completed.

[00:33:31] Speaker 02:
Thank you.

[00:33:41] Speaker 02:
Thank you.

[00:33:42] Speaker 02:
Thank you.