Authoritarian Overreach

A Tucson engineer fights what he calls unconstitutional checkpoints

Terry Bressi is not some hapless schmuck who won't fight a bully. Just ask the Tohono O'odham Police Department. Or the U.S. Border Patrol. Or, for that matter, U.S. Immigration and Customs Enforcement.

Ever since December 2002, when Bressi was stopped at a jurisdictionally murky checkpoint on Highway 86 near the Tohono O'odham Reservation, and held roadside for four hours, he's fought back hard.

"To me," he says, "a checkpoint goes so much against the grain of what this society is supposed to stand for."

Especially that particular stop. It was ostensibly created to snare drunk drivers, but it ultimately allowed authorities to scan for everything from illegal aliens to packets of smack. And that likely slams headlong into Fourth Amendment protections against unreasonable search and seizure.

It was nearly Christmas, and Bressi was returning to Tucson from the Kitt Peak National Observatory, up in the Baboquivari Mountains on the O'odham reservation west of town. An engineer with the UA's Lunar and Planetary Laboratory, he maintains telescopes and searches the heavens for comets, asteroids and other Earth-threatening projectiles.

Not far along Highway 86, he came upon a road block set up by the Tohono O'odham Police. "They claimed that it was a sobriety checkpoint," he says. "But there were a lot of U.S. Customs and Border Patrol agents working the front line with the tribal police. And if you know anything about checkpoint law--and especially Supreme Court law--you know that when you conduct sobriety checkpoints, they have to be very limited in scope, to just sobriety. Federal agents don't have jurisdiction over local sobriety laws.

"The fact that there were a lot of federal agents present, and they were working that front line with local police, (means) the shape and the scope of the checkpoint far exceeded the sobriety aspect. When you get into that type of an issue, there's a good chance that the checkpoint is being conducted unlawfully."

Chris Calabrese is an attorney with the ACLU's Technology and Liberty Program. He calls Bressi's account troubling. "The first concern is that you risk confusion of authority," Calabrese says. "What is the purpose of the roadblock? There has to be a temptation (by law enforcement) to say after the fact, 'Well, the purpose was whatever allowed us to justify our actions.'

"But local police have different authority than Customs and Border Patrol do," he says. "So you have this overlapping authority. There are also a lot of problems with local law enforcement being tied into branches of (U.S. Customs and Border Protection), because the police exist to protect everyone. Their first concern--for good reason--is not to determine the lawful status of folks in the country."

A call to Joseph Delgado, chief of the Tohono O'odham Police Department, was not returned. But Border Patrol spokeswoman Dove Crawford has a different take. "The TOPD has set up some of their own checkpoints, and all the roads in that area have a pretty heavy frequency of use by people who are trying to smuggle," she says. "So I guess out there at one of the (TOPD) checkpoints, if they uncovered illegal aliens in the course of a stop, then they would call us. But it would be more like a general-assistance call. It's not any formal joint operation of any kind."

That doesn't mesh with Bressi's version of idling up to the Tohono O'odham checkpoint.

"As it progressed, and I saw all the federal agents that were present and assisting with the checkpoint, I started asking questions," he says. "At one point during the conversation, a federal Customs agent actually kind of pushed himself forward and demanded my compliance with the police, because they wanted my license. And I'm thinking, hey, there's something funky going on here."

Court records note one cop yelling, "Don't give me that Fourth Amendment crap!" and an agent muttering that Bressi acted like a "peace protestor." Several officers rested hands on their guns.

Ultimately, "the police officers didn't like my questions," Bressi says. "So they dragged me out of my vehicle and arrested me and charged me with a couple of violations of state law."

Thus began a long roadside stint, as he refused to sign paperwork consenting to the charges. "I had four hours," Bressi says, "in which I watched operations and interactions between the tribal police and U.S. Customs and Border Patrol."

When he asked the Tohono O'odham police commander what was occurring, "He said it was a joint task force operation that they were working with Customs and Border Patrol," Bressi says. "But now the on-scene commander denies that he ever made that statement, because that will change the way it's reviewed by the court."

And there have been court reviews aplenty. "I fought the charges and had them dismissed with prejudice," says Bressi. "Then I turned around and filed a civil rights lawsuit that's still ongoing today."

In fact, he's so pissed off that he even started his own Web site. Now each time he travels to Kitt Peak, he takes videos of the checkpoint agents. Then he posts those videos on his site and on YouTube.

Bressi is well within his rights to do so, says the ACLU's Calabrese. "I know they don't like it, but I don't think there's any law saying you can't take pictures of police officers doing their duties."

Indeed, Bressi's actions haven't won him fans in law enforcement circles. He says that Ed Tuffly, president of the Border Patrol's union local, has even approached his bosses at the UA to have him stopped. Tuffly didn't return phone calls from the Weekly.

Then come the death threats (which is why we are not showing Bressi's face) and nasty e-mail comments from his Web site: "One person, who claims he's an agent at one of the Yuma checkpoints, wrote a comment to one of my videos that said, 'You can come on down to my checkpoint. I'll beat your f***ing ass.'

"Other comments are along the line of, 'If I'm ever behind you when you pull that stunt at the checkpoint, I'm going to take out my rifle, and I'm going to shoot you in the back of the head.'"

But Bressi says he's not about to stop fighting checkpoint abuse. "People tell me, 'That kind of thing happens all the time. Why are you making such a big deal over it?' But to me, it just shows how far government is overreaching."

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