15-72440 #11 Plaintiffs' Opp To Motion To Stay

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Case: 15-72440, 09/03/2015, ID: 9672081, DktEntry: 11-1, Page 1 of 29
No. 15-72440
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re JOSEPH M. ARPAIO, in his official capacity as Sheriff of Maricopa
County, Arizona
Defendant/Petitioner
and GERARD A. SHERIDAN,
Specially appearing non-party/Petitioner
v.
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA,
Respondent Court
and MANUEL DE JESUS ORTEGA MELENDRES, ET AL.,
Plaintiffs/Real Parties in Interest.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
2:07-cv-02513-GMS
The Honorable G. Murray Snow
United States District Judge
PLAINTIFFS-APPELLEES RESPONSE IN OPPOSITION TO
PETITIONERS MOTION TO STAY DISTRICT COURT PROCEEDINGS
Stanley Young
Michelle Morin
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood shores, CA 94065-1418
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
syoung@cov.com
mmorin@cov.com
Tammy Albarran
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7036
Facsimile: (415) 955-6566
talbarran@cov.com
(counsel continued on next page)
Attorneys for Plaintiffs-Appellees

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.
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Dan Pochoda
ACLU FOUNDATION OF ARIZONA
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
dpochoda@acluaz.org
jlyall@acluaz.org
Jorge Martin Castillo

MEXICAN AMERICAN LEGAL AND
EDUCATIONAL FUND
634 South Spring Street, 11th Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
jcastillo@maldef.org
Cecillia D. Wang
ACLU FOUNDATION
IMMIGRANTS RIGHTS PROJECT
39 Drumm Street
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
cwang@aclu.org
Anne Lai
401 E. Peltason Dr.
Law 4800-P
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
alai@law.uci.edu
Andre Segura
ACLU FOUNDATION
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
asegura@aclu.org
MANUEL DE JESUS ORTEGA MELENDRES, ET AL.
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TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1
STATEMENT OF RELEVANT FACTS ................................................................. 1
Evidence of Contempt ..................................................................................... 2
Petitioners Knowledge Regarding the District Courts Brother-inLaw ....................................................................................................... 6
Motions to Recuse and Stay in District Court ................................................ 8
ARGUMENT ............................................................................................................ 8
I.
Petitioners Fail to Show Likelihood of Success on the Merits. ..................... 8

A.
The District Court Correctly Declined to Recuse Itself in 2012. ......... 9
B.
Petitioners Recusal Motion Was Untimely in the District

Court, and Remains Untimely Now. .................................................. 11
C.
Petitioners Assertion That the District Court and His Spouse

Are Material Witnesses Is Unsupported. ........................................... 12
D.
As Plaintiffs Should Not Be Allowed To Manufacture A Basis

For Judicial Disqualification, No Reasonable Observer Would
Perceive An Appearance of Bias........................................................ 13
E.
Petitioners Assertions Regarding Extrajudicial Investigation

by the Court Are Also Unsupported................................................... 14
F.
The District Court Has Authority to Modify the Monitors Role

in Response to Defendants Continued Recalcitrance. ...................... 16
G.
The District Court Has Not Denied Petitioners Due Process. ........... 18
II.
Petitioners Will Not Be Irreparably Injured Absent a Stay. ......................... 19
III.
A Stay Would Substantially Injure the Plaintiffs Class by Further

Delaying Relief, and Would Be Against the Public Interest. ....................... 20
CONCLUSION ....................................................................................................... 20
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TABLE OF AUTHORITIES
Page(s)
CASES
Allied Chemical Corp. v. Daiflon, Inc.,
449 U.S. 33 (1980) .....................................................................................................................8
Barba-Reyes v. United States,
387 F.2d 91 (9th Cir. 1967) .....................................................................................................18
Bauman v. United States Dist. Ct.,
557 F.2d 650 (9th Cir. 1977) .....................................................................................................9
Cheney v. United States Dist. Ct. for D.C.,
542 U.S. 367 (2004) ...................................................................................................................8
Clemens v. U.S. Dist. Ct. for the Central Dist. of California,
428 F.3d 1175 (9th Cir. 2005) .............................................................................................9, 10
E. & J. Gallo Winery v. Gallo Cattle Co.,
967 F.2d 1280 (9th Cir. 1992) .................................................................................................12
Hutto v. Finney,
437 U.S. 678 (1978) .................................................................................................................18
Liteky v. United States,
510 U.S. 540 (1994) .................................................................................................................16
In re Marshall,
721 F.3d 1032 (9th Cir. 2013) ...................................................................................................9
In re Mercedes-Benz Antitrust Litigation,
226 F. Supp. 2d 552 (D. N. J. 2002) ..........................................................................................9
Molina v. Rison,
886 F.2d 1124 (9th Cir. 1989) .................................................................................................11
Nken v. Holder,
556 U.S. 418 (2009) ...................................................................................................................8
Pashaian v. Eccelston Props., Ltd.,
88 F.3d 77 (2d Cir. 1996) ........................................................................................................10
Preston v. U. S.,
923 F.2d 731 (9th Cir. 1991) ...................................................................................................11
Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367 (1992) .................................................................................................................17
ii
(5 of 866)
U. S. v. Rogers,
119 F.3d 1377 (9th Cir. 1997) .................................................................................................11
In re Union Leader Corp.,
292 F.2d 381 (1st Cir. 1961) ....................................................................................................13
United States v. Bray,
546 F.2d 851 (10th Cir. 1976) .................................................................................................13
United States v. Cerrella,
529 F. Supp. 1373 (S.D. Fla. 1982) .........................................................................................13
United States v. Fujimoto,
101 F. Supp. 293 (D. Haw. 1951) ............................................................................................13
United States v. Garrison,
340 F. Supp. 952 (E.D. La. 1972) ............................................................................................13
United States v. Holland,
519 F.3d 909 (9th Cir. 2008) .............................................................................................13, 16
United States v. Spangle,
626 F.3d 488 (9th Cir. 2010) ...................................................................................................13
United States v. Studley,
783 F.2d 934 (9th Cir. 1986) ...................................................................................................13
United States v. Yonkers Bd. of Educ.,
946 F.2d 180 (2d Cir. 1991).....................................................................................................15
STATUTES
28 U.S.C. 455 ..................................................................................................................12, 13, 15
OTHER AUTHORITIES
Fed. R. Evid. 614 ...........................................................................................................................18
iii
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INTRODUCTION
Plaintiffs/Appellees oppose the motion to stay the district court proceedings
pending resolution of Sheriff Arpaios and Chief Deputy Sheridans (Petitioners)
request for a writ of mandamus (Dkt. 8-1). Petitioners have not met their
substantial burden of proving that the district court is biased against them and
cannot show clear error in the courts well-reasoned 40-page order denying their
untimely and unsubstantiated recusal motion. Through their defiant efforts, after
receiving adverse rulings, to undermine the district court judge, Petitioners
themselves have created and/or injected into the case the grounds that they now
cite in their attempt to disqualify him. A stay would compound their attempted
manipulation, causing even further damage to the plaintiff class by delaying
compensation for illegal detentions.
Petitioners also fail to show that any errors by the district court in the as yet
unresolved contempt proceedings would not be adequately remedied on appeal,
and they have not demonstrated that the circumstances of this case warrant the
extraordinary relief they seek. The motion to stay should be denied.
STATEMENT OF RELEVANT FACTS
This case commenced in 2007, when Plaintiffs sought to end the illegal and
discriminatory enforcement of federal immigration laws against Hispanic persons
by the Maricopa County Sheriffs Office (MCSO). On December 23, 2011, the
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district court preliminarily enjoined MCSO from detaining persons based only on
suspicion that they were in this country illegally. Dkt. 494 (Ex. 1) at 40.1 After a
bench trial, the district court found in 2013 that MCSO had violated the
Constitution and the preliminary injunction, and ordered remedial injunctive relief,
including appointment of a Monitor. Dkt. 579 (Ex. 5) at 139-42; Dkt. 606 (Ex. 6).
Evidence of Contempt
Defendants have on multiple occasions defied and undermined the district
courts orders.2 For example, in October 2013, just days after the Court issued a
Supplemental Injunction, Sheriff Arpaio publicly mocked the district courts
requirement (later withdrawn) that MCSO engage in community outreach to
remedy past violations and build trust, and announced plans for a large-scale
saturation patrol (of the same general type that had been found to violate the
Constitution), stating that some courts want community outreach. I just started it.
Apr. 23, 2015 Tr. (Ex. 30) 579:4-580:24. During a briefing prior to that operation,
Chief Deputy Sheridan directed deputies not to take seriously the Courts order
1
Docket citations, except to Dkt. 1-2 (Petition) and 8-1 (Petitioners motion), are
to No. 07-cv-2513 (D. Ariz.). Petitioners refers to Sheriff Arpaio and Deputy
Chief Sheridan. Defendants refer to MCSO (subsequently replaced by Maricopa
County as the proper jural entity) and Sheriff Arpaio.
2
The district court considered abundant evidence relating to Petitioners contempt

of its orders. See generally Dkt. 1150 (Ex. 20), Dkt. 843 (Ex. 10) (plaintiffs
briefs); Order to Show Cause, Dkt. 880 (Ex. 12); Order Denying Motion for
Recusal, Dkt. 1164 (Ex. 21).
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that they track the race or ethnicity of individuals whom they stop. Apr. 24, 2015
Tr. (Ex. 31) 908:7-917:19. After that operation, Arpaio declared that no one is
going to take away my authority that I have under the Constitution. Apr. 23, 2015
Tr. (Ex. 30) 581:25-582:16. Top MCSO officials mischaracterized the District
courts findings, requiring a corrective message to be sent to MSCO employees so
that they could understand the court orders that they were supposed to follow.
Dkts. 680 (Ex. 8), 684 (Ex. 9).
Other violations remain yet unaddressed. On January 8, 2015, Plaintiffs
requested an order to show cause (OSC) why Petitioners should not be held in
contempt. Dkt. 843 (Ex. 10). The district court granted the motion for an OSC on
February 12, 2015, citing three grounds: violation of the December 23, 2011
preliminary injunction barring MSCO from detaining individuals based solely on
suspected unauthorized presence in the United States, violation of a May 14, 2014
order that Petitioners cooperate with the Monitor to collect newly-revealed videos
of MCSOs traffic stops, and violation of Petitioners pretrial discovery obligations
in relation to the withheld videos. Dkt. 880 (Ex. 12) at 9-25. On March 17, 2015,
Petitioners admitted civil contempt on all three grounds, and stated that they would
not present arguments or evidence to materially dispute the facts in the OSC or in
Plaintiffs request for an OSC. See Dkt. 948 (Ex. 14) at 1-3. Petitioners sought to
vacate the contempt hearing but did not request recusal, on any grounds. Id. The
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district court denied the motion to vacate after Respondents opposed the motion on
the ground that a hearing was still needed to determine the facts relating to the
admitted contempt and to determine appropriate remedies. Dkt. 1004 (Ex. 15).
In April 2015, the district court commenced the contempt hearing, seeking
both to determine the scope of and circumstances surrounding the admitted civil
contempt, and to determine appropriate remedies. Dkt. 1007 (Ex. 16) at 1-2. The
district court indicated that it would consider evidence regarding the adequacy of
MCSOs internal investigations in relation to these issues. Dkt. 1150 (Ex. 20) at 3
(citing, e.g., Mar. 20, 2015 Tr. (Ex. 28) 11:6-12, 12:21-25, 13:1-21); Apr. 23, 2015
Tr. (Ex. 30) 630:7-642:14.
During the contempt hearing, counsel and the district court3 questioned
Petitioners about a June 4, 2014 Phoenix New Times article (Dkt. 1166 (Ex. 22) at
Ex. A), and its allegation that MCSO was paying Dennis Montgomery, a
confidential informant and former CIA consultant, to investigate the district court
judge for collusion with the U.S. Department of Justice and plaintiffs counsel.
Dkt. 1164 (Ex. 21) at 7-10; Apr. 23, 2015 Tr. (Ex. 30) 642-53; Apr. 24, 2015 Tr.
3
At the outset of the April 2015 hearing, the district court noted that it would
participate in questioning witnesses, and that it would entertain objections to its
questions. Dkt. 1164 (Ex. 21) at 6 and n.9. Counsel raised successful objections to
the Courts questions throughout the hearing. Id. (citing, e.g., Apr. 23-24, 2015 Tr.
(Exs. 30-31) 626:18-24, 985:19-986:19); see also Apr. 24, 2015 Tr. (Ex. 31)
966:4-11.
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(Ex. 31) 958-67, 998-1008. Petitioners acknowledged that they had instigated such
an investigation, but testified that the information that they had received from
Montgomery appeared to be junk. Dkt. 1164 (Ex. 21) at 9 (citing Apr. 23-24,
2015 Tr. (Exs. 30-31) 650:18-25, 652:16-18, 961:1-11, 1003:1-2, 19-29).
Documents later produced by Defendants suggested that, although they knew by
November 2014 that Montgomerys information was false and fraudulent, they
continued to push Montgomery for work product until the eve of the April 2015
contempt hearings. Dkt. 1164 (Ex. 21) at 10; Dkt. 1166 (Ex. 22) at Exs. C-E. One
document suggests that an investigator at the MCSO itself leaked the information
about the MCSO-Montgomery investigation to the Phoenix New Times. Id. at Ex.
B. The district court authorized the Monitor to collect documents and conduct
additional interviews on the matter, and invited Petitioners to address
inconsistencies between their testimony and the documents during resumed
contempt hearings. Dkt. 1164 (Ex. 21) at 10.
During the district courts April 2015 questioning about the Montgomery
investigation described in the New Times article, Sheriff Arpaio brought up an
additional investigation of the district court judges wife, which his counsel had
commenced after he received a Facebook message from a Ms. Grissom. The
district court had not known of the Grissom investigation until Sheriff Arpaio
mentioned it in response to a general question about investigations of the judge or
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his family. See, e.g., Apr. 23-24, 2015 Tr. (Exs. 30-31) 642:17-655:12, 959:9968:9; Dkt. 1164 (Ex. 21) at 10:18-20 (The second investigation, the Grissom
matter, came to light during the Courts questioning of Sheriff Arpaio about the
Montgomery investigation; the Court was unaware of the Grissom matter until
Sheriff Arpaio testified to its existence.). Petitioners stated that Ms. Grissom had
alleged in 2013 that the judges wife had commented to her that the judge wanted
to do everything to make sure that [Sheriff Arpaio was] not elected. Dkt. 1150
(Ex. 20) at 4 (citing, e.g., Apr. 23, 2015 Tr. (Ex. 30) 654:6-655:12); Dkt. 1164 (Ex.
21) at 10-13. Petitioners and their counsel investigated this matter, concluded that
Grissoms information was fundamentally flawed and let the matter go. Dkt.
1164 (Ex. 21) at 31; Dkt. 1115 (Ex. 18) at 4 (use of the Grissom information would
be unethical); id. at 7-9, 18-19; Dkt. 1166 (Ex. 22) Ex. H at 4; Dkt. 1150 (Ex. 20)
at 4-5 (citing Apr. 24, 2015 Tr. (Ex. 31) 968:5-9; May 14, 2015 (Ex. 32) Tr. 10:124). The district court considers the Grissom matter closed and irrelevant to the
ongoing contempt hearing. Aug. 21, 2015 Tr. (Ex. 33) 46:16-48:7, e.g., at 47:2-4,
57:4-60:12.
Petitioners Knowledge Regarding the District Courts Brother-in-Law
In June 2012, Plaintiffs counsel at Covington & Burling noted to Sheriff
Arpaio, the MCSO and the district court their discovery that the district courts
brother-in-law was a partner in Covington & Burlings Washington, D.C. office,
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and stated that they had isolated the brother-in-law from any role in or potential
financial benefit from the firms involvement in the case. Dkt. 542 (Ex. 4) at 3. The
district judge considered the underlying circumstances of his brother-in-laws
employment and the views of the parties, and concluded that recusal was not
necessary. The district courts reasons included that Covington is a very large law
firm, the brother-in-law was in a different practice area than Plaintiffs attorneys,
any benefit the brother-in-law might receive as a result of any fee award to the firm
was speculative, and in the event of a fee award, the brother-in-law would receive
no financial distribution from the proceeding. Dkt. 542 (Ex. 4) at 3-4; June 14,
2012 Letter from S. Young (Ex. 35). The district court allowed the parties to be
heard, and Sheriff Arpaio expressly waived any recusal argument premised upon
these facts, both orally during a status conference and in a written filing. Dkt. 542
(Ex. 4) at 4; Dkt. 1150 (Ex. 20) at 11; Dkt. 537 (Ex. 2); June 29, 2012 Tr. (Ex. 26)
at 5:19-7:2, 16:6-17:2; Dkt. 541 (Ex. 3) (written waiver).
Chief Deputy Sheridan became a formal individual participant in the
litigation on February 12, 2015, when he was named as a contemnor. Dkt. 880 (Ex.
12). He did not seek the district court judges recusal at that time, nor at any time
prior to the April 2015 order denying Petitioners motion to vacate the contempt
hearing. It was not until May 22, 2015, after the district court denied his motion to
vacate the contempt hearing, that Sheridan, along with Arpaio, sought recusal. Dkt.
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1117 (Ex. 19).

Motions to Recuse and Stay in District Court
Petitioners recusal motion in the district court cited the Grissom,
Montgomery and Covington issues. On July 10, 2015, the district court issued a
40-page order denying the motion. Dkt. 1164 (Ex. 21). Petitioners filed a petition
for writ of mandamus, which remains pending without a request for response. Dkt.
1-2. Petitioners subsequently tacked on the present motion. Dkt. 8-1.
ARGUMENT
I.
Petitioners Fail to Show Likelihood of Success on the Merits.

A writ of mandamus is an extraordinary remedy, warranted only in
extraordinary circumstances. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33,
34 (1980); Cheney v. United States Dist. Ct. for D.C., 542 U.S. 367, 380 (2004).
Before a writ may issue, the party seeking it must show that it has no other
adequate means to obtain the relief it desires, that its right to issuance of the writ is
clear and indisputable, and that the writ is appropriate under the circumstances.
Id. at 381 (internal quotation omitted). A stay of the district court litigation pending
resolution of Petitioners request for a writ would be even more extraordinary
relief. Nken v. Holder, 556 U.S. 418, 434 (2009) (strong showing of likelihood
of success required to warrant stay on appeal). Petitioners cannot show that such
extreme measures are warranted here.
First, to prevail on a petition for a writ of mandamus, Petitioners must show
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clear error in the district courts orders. Clemens v. U.S. Dist. Ct. for the Central
Dist. of California, 428 F.3d 1175, 1178, 1180 (9th Cir. 2005); see also Bauman v.
United States Dist. Ct., 557 F.2d 650, 654-55 (9th Cir. 1977). Petitioners cannot
make that showing, because, in light of the circumstances of this litigation, a
reasonable person would not be convinced that the district court was biased against
them. In re Marshall, 721 F.3d 1032, 1041 (9th Cir. 2013) (It is well established
that the recusal inquiry must be made from the perspective of a reasonable
observer who is informed of all surrounding facts and circumstances.). Petitioners
also cannot show that the district court committed clear error; and even if there was
error, Petitioners cannot show that the error cannot be addressed through an appeal.
A.
The District Court Correctly Declined to Recuse Itself in 2012.
The district court gave full consideration to the issues potentially arising
from his brother-in-laws employment at Covington & Burling in 2012, including
considering competing authorities on the issue of recusal in light of a relatives
status as equity partner in a law firm that represents a party. Dkt. 542 (Ex. 4) at 5
(discussing Advisory Opinion 58). The district court correctly concluded that the
authorities did not create a per se rule of recusal, but only recognized that
circumstances may require recusal when the partners interest in the proceedings is
substantial, which is a fact sensitive inquiry. Dkt. 542 (Ex. 4) at 6 (quoting In
re Mercedes-Benz Antitrust Litigation, 226 F. Supp. 2d 552, 555 (D. N. J. 2002);
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see also Pashaian v. Eccelston Props., Ltd., 88 F.3d 77, 83 (2d Cir. 1996) ([i]t
would simply be unrealistic to assume . . . that partners in todays law firms
invariably have an interest that could be substantially affected by the outcome of
any case in which any other partner is involved.).
The district court in 2012 offered to recuse itself on the request of any party.
Dkt. 537 (Ex. 2) at 7; Dkt. 542 (Ex. 4) at 4; June 29, 2012 Tr. (Ex. 26), e.g. at 1523. Defendants not only did not request recusal at that time, but affirmatively
requested that the district court not recuse itself. Id. at 15, 19-20; Dkt. 541 (Ex. 3)
(waiver of any and all appeal issues regarding only the Courts potential bias,
impartiality, and/or conflict of interest as set forth in the Courts Order dated June
19, 2012.). In light of the lack of any financial benefit to the brother-in-law here,
even in the event of a fee award to Plaintiffs, the district court judge properly
concluded that he had no interest that could be substantially affected by the
outcome of the proceedings. Dkt. 542 (Ex. 4) at 7; see also June 14, 2012 Letter
from S. Young (Ex. 35). The court has as strong a duty to sit when there is no
legitimate reason to recuse as he does to recuse when the law and facts require,
and recusal here would not merely have been unwarranted, it would have violated
that duty. Clemens, 428 F.3d at 1179. The district courts July 10, 2015 order
recapitulates the deliberations and rationale leading to its 2012 decision on this
issue. Dkt. 1164 (Ex. 21) at 34-37.
10
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B.
Petitioners Recusal Motion Was Untimely in the District Court,

and Remains Untimely Now.
Sheriff Arpaio learned of the district court judges brother-in-law

relationship in 2012. Both Petitioners commenced and abandoned the Grissom
investigation in 2013, and instigated the Montgomery investigation no later than
2014. Chief Deputy Sheridan formally joined the case as a contemnor on February
12, 2015, but had been involved as Arpaios second-in-command at MCSO for
years prior, including at a May 14, 2014 status conference and during MCSOs
period of compliance and reporting to the court-ordered Monitor throughout most
of 2014. Arpaio and Sheridan together made a motion to vacate the contempt
hearing in March 2015, without contesting the district courts impartiality. Only
after denial of that motion (Dkt. 1007 (Ex. 16)), and after the start of the hearing on
the contempt OSC, did they file their May 22, 2015 recusal motion.
Petitioners recusal motion was not made with the required reasonable
promptness after the grounds for the motion were ascertained. The district court
could have denied the motion on this basis alone. Preston v. U. S., 923 F.2d 731,
733 (9th Cir. 1991) (recusal motions must be made with reasonable promptness
after the ground for such a motion is ascertained); see also Molina v. Rison, 886
F.2d 1124, 1131 (9th Cir. 1989) (citing cases); U. S. v. Rogers, 119 F.3d 1377,
1380 (9th Cir. 1997) ([A] party having information that raises a possible ground
for disqualification cannot wait until after an unfavorable judgment before bringing
11
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the information to the courts attention.); E. & J. Gallo Winery v. Gallo Cattle
Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (recusal motion untimely where filed
long after movant became aware of grounds for refusal, and after movant suffered
adverse ruling).
C.
Petitioners Assertion That the District Court and His Spouse Are
Material Witnesses Is Unsupported.
Petitioners fail to explain how the Grissom statements would make either the
district court or his spouse a material witness in contempt proceedings which
relate to MCSO and Petitioners admitted failure to comply with the district courts
orders. The contempt proceedings have nothing to do with the district courts
spouse or her views, which are not admissible evidence of the courts state of
mind. In 2013, after full investigation, Petitioners chose to disregard the Grissom
statements. Petitioners themselves even argued that the facts underlying the
Grissom investigation did not relate to the contempt proceedings. Dkt. 1164 (Ex.
21) at 31. The district court considered these matters when Petitioners filed their
recusal motion in the district court, concluding that there was no actual bias against
Petitioners, and recusal was therefore not warranted under 28 U.S.C. 455(b)(1).
Id. at 25-34. There is no factual issue here on which Ms. Snow would be a material
witness.
12
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D.
As Plaintiffs Should Not Be Allowed To Manufacture A Basis For

Judicial Disqualification, No Reasonable Observer Would
Perceive An Appearance of Bias.
The district courts order (Dkt. 1164 (Ex. 21)) explains at length why recusal
is not warranted under 28 U.S.C. 455(a). Petitioners own decisions to
investigate the district court judge should not be the basis for a recusal motion.
United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986). Otherwise, defendants
could readily manipulate the system . . . [and] force delays . . . . Such blatant
manipulation would subvert our processes, undermine our notions of fair play and
justice, and damage the publics perception of the judiciary.4 United States v.
Holland, 519 F.3d 909, 915 (9th Cir. 2008); see also United States v. Spangle, 626
F.3d 488, 496 (9th Cir. 2010) (properly declining recusal, even after personal
information about judge and judges family was found in defendants car).
The district court has stated that, in its view, the Grissom matter is irrelevant
to the contempt proceeding (while not precluding Petitioners themselves from
raising it). See, e.g., Aug. 21, 2015 Tr. (Ex. 33) 47:2-14, 56:16-23. Petitioners may
not of their own volition raise the issue and seek to make the district court judges
4
Numerous cases have held that a party cannot effect recusal of the trial judge by
the partys own actions, such as through statements critical of the judge or
accusing the judge of wrongdoing. United States v. Cerrella, 529 F. Supp. 1373,
1380 (S.D. Fla. 1982) (citing United States v. Bray, 546 F.2d 851 (10th Cir. 1976);
United States v. Garrison, 340 F. Supp. 952, 957 (E.D. La. 1972); United States v.
Fujimoto, 101 F. Supp. 293, 296 (D. Haw. 1951)); In re Union Leader Corp., 292
F.2d 381, 388-89 (1st Cir. 1961).
13
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wife a material witness and on that basis seek the judges recusal.
Similarly, Petitioners should not be able to commence a bogus conspiracy
investigation against the judge, and then argue that the judge is biased because he
thinks that the MCSO should have allocated its resources differently. As the
district court stated:
Sheriff Arpaio began a time- and resource-intensive operation involving Mr.
Montgomery at a time when MCSO was under an obligation to implement
the Supplemental Permanent Injunction. To the extent that MCSO may have
been trying to use Montgomery to discredit the Court and undermine the
legitimacy of its judgment in the underlying lawsuit, these facts are relevant
to the attitude that Defendants have toward the Court and its orders, and to
the corrective measures that may be necessary to remedy Movants contempt
and achieve the implementation of the permanent injunctive relief. This may
be particularly germane in light of the evidence that MCSO apparently
continued to press Mr. Montgomery for work product up until the eve of the
show-cause hearings even after his credibility was found to be lacking.
Dkt. 1164 (Ex. 21) at 27-28. A stay under such circumstances would only reward
defiance and manipulation. Petitioners motion should be denied.
E.
Petitioners Assertions Regarding Extrajudicial Investigation

by the Court Are Also Unsupported.
Petitioners appear to argue that the district court may not ever speak with its
Monitor, whose job it is to help ensure compliance with the courts order,
regarding matters relating to the issues in the contempt hearing. Dkt. 8-1 at 6-7.
This argument is misplaced, and mischaracterizes both the law and the facts
regarding the role of the Monitor in this litigation.
First, the Monitor is an agent of the court and must communicate with the
14
(20 of 866)
district court in order to perform his function of overseeing Defendants

compliance with the courts orders. United States v. Yonkers Bd. of Educ., 946 F.2d
180, 184 (2d Cir. 1991) (denying motion to recuse based on communications
between judge and court-appointed outside housing advisor). Neither 28 U.S.C.
455, nor any other authority, prevents a district court from communicating with its
own Monitor. And notably, the communication about which Petitioners complain,
Dkt. 8-1 at 6, was simply the Monitors unprompted comment during a break in
proceedings, to the effect that MCSO and the volunteer Cold Case Posse may
have separate financesconsistent with Sheriff Arpaios testimony that Maricopa
County had not paid for a Cold Case Posse members trips to Seattle. The court did
not take the Monitors comment at face value, but instead asked Sheriff Arpaio
about the financing of the Cold Case Posse, giving him a chance to respond on the
record. See Dkt. 1164 (Ex. 21) at 20 (informing the parties, and noting that the only
evidence on this matter is that put in through Sheriff Arpaios testimony). The
district court correctly held that the Monitors comment did not provide the Court
with the kind of substantive information about proceedings that cannot be
controverted or tested by the tools of the adversary process. Id.
Second, to the extent Petitioners complain that the district court judge is
biased because of his apprehension of information gleaned through Petitioners
testimony, or through the Monitors reports regarding MCSOs failure to
15
(21 of 866)
implement corrective reforms to address MCSOs constitutional violations, that

information and the courts resulting opinions are not a basis for recusal. Only in
the rarest of circumstances need a court recuse itself on the basis of knowledge
or opinion gained in its judicial capacity or its statements about that knowledge or
opinion, made during judicial proceedings. Holland, 519 F.3d at 913-14. Liteky v.
United States, 510 U.S. 540, 551 (1994) (judge is not . . . recusable for bias or
prejudice for knowledge and . . . opinion . . . [that] were properly and necessarily
acquired in the course of the proceedings, and are indeed sometimes (as in a bench
trial) necessary to completion of the judges task).
F.
The District Court Has Authority to Modify the Monitors Role in

Response to Defendants Continued Recalcitrance.
In addition to its authority to communicate with the Monitor, the district

court also possesses broad equitable authority to modify the monitoring and
compliance tasks it delegates to that Monitor. The district court has been forced to
undertake substantial judicial corrective action to address MCSOs noncompliance
with its orders, starting with MCSOs violation of the preliminary injunction and
discovery violations, and continuing through the Petitioners admitted
disobedience of the district courts order to work with the Monitor to collect
important video evidence quickly and quietly. See, e.g., Dkt. 579 (Ex. 5)
(Findings); Dkt. 670 (Ex. 7) (injunction); Dkt. 880 (Ex. 12) (Order to Show
Cause); Dkt. 1170 (Ex. 23) at 3, 7 (Monitors Report reflecting no appreciable
16
(22 of 866)
gains in compliance during the most recent reporting period); Dkt. 1010 (Ex. 17)
(Monitors Report). In light of that history, the district court was well within its
power to authorize the Monitor to inquire into the sufficiency of MCSOs internal
investigations process and the implications of the Montgomery investigation.
Whether MCSOs and Petitioners actions reflect an attitude of resistance to the
district courts authority and/or inability to comply with its orders is highly
relevant to the scope and nature of the remedy for the admitted contempt.
The courts authority to modify its use of the Monitor remains critical to its
authority to remedy the constitutional violations at issue in this case. Defendants
recently failed to comply with a court-ordered deadline to produce emails that are
relevant to the contempt issues and that had originally been ordered to be produced
in February 2015. Dkt. 1203 (Ex. 24), 1208 (Ex. 25); Aug. 21, 2015 Tr. (Ex. 33)
12:6-16:19. And at a status conference on August 28, 2015, Defendants indicated
that 61-65 additional identification documents, including documents apparently
seized from members of the Plaintiffs class, have been found. Aug. 28, 2015 Tr.
(Ex. 34) 31:22-32:10. This disclosure suggests that, despite the previous orders
relating to the Monitors activities, further expansion or amendment of the courts
use of the Monitor may yet be necessary. Where, as here, there has been doubt cast
upon whether constitutional violations have ceased and will not be repeated, the
district court has broad authority to address those issues. Rufo v. Inmates of Suffolk
17
(23 of 866)
Cnty. Jail, 502 U.S. 367, 380-81 (1992); Hutto v. Finney, 437 U.S. 678, 687 (1978)
(courts have ample authority to go beyond earlier orders to insure against
inadequate compliance).
G.
The District Court Has Not Denied Petitioners Due Process.
Petitioners assertion that they have been denied due process is equally
baseless. First, the district court modified the Monitors authority in response to
serious and admitted breaches by Petitioners, as it is entitled to do. Second, the
district court consistently gives all parties opportunities to be heard on any issue,
including its intent to participate in questioning witnesses5 at the April contempt
hearing. See Apr. 21, 2015 Tr. (Ex. 29) 140:6-12. Petitioners will continue to have
the opportunity to be heard, as the contempt hearing has not concluded and is
scheduled to resume with up to 24 additional days of testimony. Dkt. 1208 (Ex. 25)
at 2. Third, Petitioners did not object to the district courts general line of inquiry at
the hearing, and their counsel successfully accepted the courts invitations to object
to individual questions when needed. See, e.g., Apr. 23, 2015 Tr. (Ex. 30) 624:12626:24. Because no objection was contemporaneously raised to the courts line of
questions regarding the Phoenix New Times article, this objection has been waived.
Questioning by the court is plainly allowed under the Federal Rules of Evidence,
Fed. R. Evid. 614 & Adv. Comm. Notes; Barba-Reyes v. United States, 387 F.2d
91, 93 (9th Cir. 1967), and no fact witness has a constitutional right to advance
notice of every question. See Dkt. 1164 (Ex. 21) at 23-24.
18
(24 of 866)
Apr. 23, 2015 Tr. (Ex. 30) 624-660.

II.
Petitioners Will Not Be Irreparably Injured Absent a Stay.

Petitioners argue that the prospect of resuming contempt proceedings before
a biased judge, when proceedings would encompass MCSOs internal

investigations and the Grissom and Montgomery investigations, warrants a stay.
Dkt. 8-1 at 11. This argument fails.
First, Petitioners have not shown that any error could not be remedied
through an appealnor could they, as the contempt hearing has not concluded and
they do not know what remedies the district court will impose.
Second, Petitioners have waived objections to the subject of the contempt
hearings by failing to raise them before the district court. MCSOs willingness and
ability to conduct internal investigations to prevent and to impose discipline for
constitutional violations is highly relevant to the ongoing proceedings, because
improvements in internal investigation procedures may be needed to remedy the
civil contempt. See, e.g., Dkt. 880 (Ex. 12) at 2-6, 8-9, 25-26; Dkt. 881(Ex. 13) at
2; Dkt. 1164 (Ex. 21) at 6-7. Petitioners have known this for months, as they have
been producing related documents to the Monitor and to Plaintiffs. See, e.g., Dkt.
881 (Ex. 13) at 3, Dkt. 862-1 (Ex. 11) (ordering production of documents relating
to internal affairs investigations).
19
(25 of 866)
III.
A Stay Would Substantially Injure the Plaintiffs Class by Further

Delaying Relief, and Would Be Against the Public Interest.
Petitioners can show no irreparable injury from denial of the stay motion. In
contrast, a stay would substantially injure Plaintiffs by further delaying

compensation to those who were detained in violation of the December 23, 2011
preliminary injunction. Some of those victims may be those whose identity
documents the MCSO unlawfully seized; the current contempt proceedings are
intended in part to locate those victims. See, e.g., Dec. 4, 2014 (Ex. 27) Tr. 18-19,
21-22. The more time that passes, the fewer victims are likely to be located and
compensated. A stay would also further impede implementation of the
Supplemental Permanent Injunction. According to the most recent Monitor report
filed July 14, 2015, MCSO is in compliance with only 40.3% of the tracked
remedies for the policies and procedures phase of implementation and 24.7% of the
tracked remedies for the operational phase of implementation, and the Monitor
reported that MCSO made no appreciable gains in compliance during the most
recent reporting period. Dkt. 1170 (Ex. 23) at 3, 7. A stay would substantially
injure both the Plaintiff class and the public interest by allowing these
transgressions to continue unchecked.
CONCLUSION
For all the above reasons, Petitioners motion to stay the district court
proceedings should be denied.
20
(26 of 866)
Dated: September 3, 2015
By /s/ Stanley Young

Stanley Young
Michelle Morin
syoung@cov.com
mmorin@cov.com
Redwood Shores, CA 94065-1418
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
Tammy Albarran
talbarran@cov.com
1 Front Street
San Francisco, CA 94111-5356
Telephone: (415) 591-7066
Facsimile: (415) 955-6566
Dan Pochoda
dpochoda@acluaz.org
ACLU FOUNDATION OF
ARIZONA
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
Cecillia D. Wang
cwang@aclu.org
ACLU FOUNDATION
Immigrants Rights Project
39 Drumm Street
San Francisco, California 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
21
(27 of 866)
Andre Segura
asegura@aclu.org
ACLU FOUNDATION
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
Jorge Martin Castillo
MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL
FUND
Los Angeles, California 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
Anne Lai
alai@law.uci.edu
401 E. Peltason, Suite 3500
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
22
(28 of 866)
CERTIFICATE OF COMPLIANCE
I certify that pursuant to Fed. R. App. P. 27-1, the attached brief is in
compliance with Fed. R. App. P. 27(d) and does not exceed 20 pages.
Date: September 3, 2015
/s/ Stanley Young

STANLEY YOUNG
23
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CERTIFICATE OF SERVICE
I hereby certify that on September 3, 2015, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Date: September 3, 2015
/s/ Stanley Young

STANLEY YOUNG
24
(30 of 866)
Manuel De Jesus Ortega Melendres, Et Al.

15-72440 Index of Materials
Exhibit
Date
12/23/2011
06/19/2012
06/29/2012
07/03/2012
05/24/2013
10/02/2013
04/04/2014
04/17/2014
04/29/2014
10
01/08/2015
11
01/23/2015
12
02/12/2015
13
02/12/2015
14
3/17/2015
15
04/13/2015
16
04/14/2015
17
04/16/2015
18
05/21/2015
19
05/22/2015
20
06/12/2015
21
07/10/2015
Description
No. CV07-2513, Dkt. 494 - Order on Motions for Summary
Judgment
No. CV07-2513, Dkt. 537 - Order on Covington Representation
No. CV07-2513, Dkt. 541 - Defendants Notice of Waiver on
Limited Issue
No. CV07-2513, Dkt. 542 - Order re Trial Proceedings
No. CV07-2513, Dkt. 579 - Court Findings of Fact and
Conclusions of Law
No. CV07-2513, Dkt. 606 - Supplemental Permanent
Injunction/Judgment Order
No. CV07-2513, Dkt. 670 - Amendments to the Supplemental
Permanent Injunction/Judgment Order
No. CV07-2513, Dkt. 680 - Enforcement Order
No. CV07-2513, Dkt. 684 - Order on Request to Clarify/Modify
April 17, 2014 Order
No. CV07-2513, Dkt. 843 - Plaintiffs Memorandum of Law
and Facts re Contempt Proceedings and Request for Order to
Show Cause
No. CV07-2513, Dkt. 862-1 - Exhibit A to Plaintiffs Motion
for Expedited Discovery
No. CV07-2513, Dkt. 880 - Order to Show Cause
No. CV07-2513, Dkt. 881 - Order re Plaintiffs Motion for
Expedited Discovery
No. CV07-2513, Dkt. 948 - Expedited Motion to Vacate
Hearing and Request for Entry of Judgment
No. CV07-2513, Dkt. 1004 - Plaintiffs Opposition to
Defendants Supplemental Motion to Vacate Hearing and
Request for Entry of Judgment
No. CV07-2513, Dkt. 1007 - Order on Defendants Motion re
Order to Show Cause
No. CV07-2513, Dkt. 1010 - Third Report of Independent
Monitor for the Maricopa County Sheriffs Office
No. CV07-2513, Dkt. 1115 - Order re Work Product Protections
No. CV07-2513, Dkt. 1117 - Motion for Recusal or
Disqualification of District Court Judge G. Murray Snow
No. CV07-2513, Dkt. 1150 - Response in Opposition to Sheriff
Arpaio and Chief Deputy Sheridans Motion for Recusal or
Disqualification of the Court
No. CV07-2513, Dkt. 1164 - Order Denying Motion for
Recusal or Disqualification
(31 of 866)
Manuel De Jesus Ortega Melendres, Et Al.

15-72440 Index of Materials
Exhibit
Date
22
07/10/2015
23
07/14/2015
24
07/29/2015
25
07/31/2015
26
06/29/2012
27
12/04/2014
28
03/20/2015
29
04/21/2015
30
04/23/2015
31
04/24/2015
32
05/14/2015
33
08/21/2015
34
08/28/2015
35
06/14/2012
Description
No. CV07-2513, Dkt. 1166 - Declaration of Cecillia Wang in
Support of Plaintiffs Response in Opposition to Sheriff Arpaio
and Chief Deputy Sheridans Motion for Recusal or
Disqualification of the Court
No. CV07-2513, Dkt. 1170 - Fourth Report of Independent
Monitor for the Maricopa County Sheriffs Office (excerpts)
No. CV07-2513, Dkt. 1203 - Defendants Statement re
Proposed Deadlines for Document Production
No. CV07-2513, Dkt. 1208 - Order re Documents Turned Over
to Marshalls
No. CV07-2513, June 29, 2012, Status Conference Transcript
No. CV07-2513, December 4, 2014, Evidentiary Hearing
Transcript (Pgs. 18-19, 21-22)
No. CV07-2513, March 20, 2015, Status Conference Transcript
(Pgs. 11-13)
No. CV07-2513, April 21, 2015, Day 3 Evidentiary Hearing
Transcript (Pg. 140)
Transcript (Pgs. 579-582, 624-660)
Transcript (Pgs. 908-917, 958-968, 985-986, 998-1008)
No. CV07-2513, May 14, 2015, Status Conference Transcript
(Pg. 10)
No. CV07-2513, August 21, 2015, Status Conference Transcript
(Pgs. 12-16, 46-48, 57-60)
No. CV07-2513, August 28, 2015, Status Conference Transcript
(Pgs. 31-32)
Letter from Stanley Young to Judge Snow re Keith Teel
(32 of 866)
EXHIBIT 1
(33 of 866)
Case
Case:2:07-cv-02513-GMS
15-72440, 09/03/2015,
Document
ID: 9672081,
494 DktEntry:
Filed 12/23/11
11-2, Page
Page41ofof837
40
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
8
9
10
11
12
13
14
15
16
Manuel de Jesus Ortega-Melendres, et al.,)

)
)
Plaintiffs,
)
)
vs.
)
)
Joseph M. Arpaio, in his individual)
capacity as Sheriff of Maricopa County,)
)
Arizona, et al.,
)
)
Defendants.
)
)
)
No. CV-07-2513-PHX-GMS
ORDER
17
18
Pending before the Court are Defendants Motion for Summary Judgment (Doc. 413),
19
Plaintiffs Renewed Motion for Class Certification (Doc. 420), Plaintiffs Motion for Partial
20
Summary Judgment (Doc. 421), and Defendants Motion for Leave to File Sur-Reply. (Doc.
21
469). At oral arguments on December 22, 2011, Plaintiffs moved for summary judgment on
22
Ortega-Melendress Fourth Amendment claims. (Doc. 490). For the reasons stated below,
23
Defendants motion for summary judgment is granted in part and denied in part, Plaintiffs
24
motion for partial summary judgment on the Equal Protection claims is denied, Plaintiffs
25
motion for summary judgment on the Fourth Amendment claims is granted in part and denied
26
in part, Plaintiffs motion for class certification is granted, and Defendants motion for leave
27
28
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to file a sur-reply is dismissed as moot.1

BACKGROUND
2
3
4
1. Factual Background
This putative class action civil rights suit alleges that the Maricopa County Sheriffs
5 Office (MCSO) engages in a policy or practice of racial profiling, and a policy stopping
6 persons without reasonable suspicion that criminal activity is afoot, in violation of Plaintiffs
7 rights under the Fourteenth and Fourth Amendments. (Doc. 26 2). Under an agreement with
8 the Department of Immigration and Customs Enforcement (ICE), certain MCSO deputies
9 had been certified to enforce federal civil immigration law. (Doc 413, Ex. 5). The agreement
10 between MCSO and ICE operated pursuant to section 287(g) of the Immigration and
11 Nationality Act (INA), and the participating officers were therefore said to be 287(g)
12 certified. 8 U.S.C. 1357(g) (2006). On October 16, 2009, the agreement between MCSO and
13 ICE was modified so that MCSO officers no longer had authority to enforce federal civil
14 immigration violations in the field, but could continue to do so in the jails. (Doc. 422 10).
15 Plaintiffs allege that under the guise of enforcing immigration law, MCSO officers are in fact
16 engaged in a policy of racially profiling Latinos. (Doc. 26 3).
17
The five named Plaintiffs were stopped by MCSO officers during three incidents, on
18
September 27, 2007, December 7, 2007, and March 28, 2008. (Id. 53119). In addition,
19
Somos America (Somos), a non-profit membership organization, claims that it and its
20
members have been harmed by the alleged policy. (Id. 10). In Count One, Plaintiffs claim
21
that MCSO has violated and is violating the Equal Protection Clause of the Fourteenth
22
Amendment. (Id. 12837). In Count Two, they allege that MCSOs stops of the named
23
Plaintiffs violated the Fourth Amendment, as applied to MCSO through the Fourteenth
24
Amendment. (Id. 13843). In Count Three, they allege that those same stops also violated
25
1
27
Plaintiffs motion for sanctions (Doc. 416) was granted in an order issued earlier
today. (Doc. 493). A discussion of the history of discovery issues in this case is contained
in that order.
28
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26
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the search and seizure protections of Article II, Section 8 of the Arizona State Constitution.
(Id. 14447). In Count Four, they argue that MCSOs policy violates Title VI of the Civil
Rights Act of 1964, which forbids race discrimination in federally funded programs. (Id.
14854). Plaintiffs seek certification of a class consisting of All Latino persons who, since
January 2007, have been or will be in the future, stopped, detained, questioned or searched
by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area
in Maricopa County, Arizona. (Doc. 420 at 1). Plaintiffs seek only equitable relief, in the
form of a declaratory judgment, an injunction against Defendant, attorneys fees, and such
other relief as the Court deems just and proper. (Doc. 26 at 2829).
10
Defendants now move for summary judgment on all counts. First, they argue that the
11
Plaintiffs are not likely to suffer future injury, and that they therefore lack standing to obtain
12
equitable relief under the test established in City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
13
(Doc. 413 at 1417). Next, they argue that the vehicle traffic stops of the named Plaintiffs
14
were supported by probable cause, and that the Fourth Amendment and Arizona
15
Constitutional claims therefore fail under Whren v. U.S., 517 U.S. 806 (1996). (Doc. 413 at
16
1822). Finally, they claim that the record shows that MCSO does not engage in intentional
17
discrimination, and that the Fourteenth Amendment and Title VI claims therefore fail. (Doc.
18
413 at 2331). Plaintiffs seek summary judgment on Claim One and Claim Four, and
19
certification of their proposed class. (Docs. 416, 420, 421).
20
2. Legal Background
21
In 1952, Congress passed the Immigration and Nationality Act (INA), 8 U.S.C.
22
1101 et seq., which set forth a comprehensive federal statutory scheme for regulation of
23
immigration and naturalization. De Canas v. Bica, 424 U.S. 351, 353 (1976). The INA
24
contains both criminal and civil provisions regarding those who either enter the United States
25
without legal authority or enter with legal authority but remain after that authority expires.
26
See, e.g., 8 U.SC. 1302, 1306, 1325 (2006) (criminal provisions); 8 U.S.C.
27
1182(a)(6)(A)(i), 1227(a)(1)(B)(C) (2006) (civil provisions regarding admissibility and
28
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deportation). The Supreme Court, referencing specific criminal provisions of the INA, has
written that entering or remaining unlawfully in this country is itself a crime. I.N.S. v.
Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). The criminal provisions cited in Lopez-
Mendoza set forth with particularity what actions constitute entering or remaining
unlawfully. For example, entering or attempting to enter the United States other than at a
legal border crossing is a federal crime. 8 U.S.C. 1325. A non-citizen who remains within
the United States and willfully fails to register or be fingerprinted after thirty days, or who
knowingly files a fraudulent application, has also committed a federal offense. 8 U.S.C.
1302, 1306. All aliens over the age of 18, moreover, must carry their registration papers
10
at all times, under penalty of a criminal misdemeanor. 8 U.S.C. 1304(e). There is no
11
provision in the INA or any other federal law, however, that specifically criminalizes mere
12
presence in the United States without authority to remain.2 The Supreme Court has
13
acknowledged that [a] deportation proceeding is a purely civil action to determine eligibility
14
to remain in this country. Lopez-Mendoza, 468 U.S. 1032.
15
Being present in the country without authorization to remain is only a civil
16
violation. Gonzales v. City of Peoria, 722 F.2d 468, 476 (9th Cir. 1983) overruled on other
17
grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). Nothing in Lopez-
18
Mendoza alters this law. In a recent decision, the Ninth Circuit found that a state trooper did
19
not commit an egregious violation of the Fourth Amendment sufficient to trigger the
20
exclusionary rule in a civil proceeding because the language of Lopez-Mendoza was such that
21
a reasonable officer could have interpreted that statement to mean an aliens unlawful
22
presence in this country is itself a crime. Martinez-Medina v. Holder, 616 F.3d 1011, 1017
23
(9th Cir. 2010). In amending and superceding that opinion, the court clarified that
24
25
27
It is also a crime for a person who has previously been denied admission, excluded,
deported or removed to be present in the United States unless the Attorney General expressly
consents to the persons reapplication for admission or the alien establishes that he was not
required to obtain such advance consent. 8 U.S.C. 1326(a).
28
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[a]lthough a reasonable officer could have been confused by these statements in Lopez-
Mendoza and Martinez . . . a close reading of those cases demonstrates that neither meant to
suggest that an aliens mere unauthorized presence is itself a crime. Martinez-Medina, ___
F.3d ___, 2011 WL 855791, at *6 (9th. Cir. Mar. 11, 2011). The panel went on to emphasize
that Gonzaless observation that an alien who is illegally present in the United States . . .
[commits] only a civil violation, . . . remain[s] the law of the circuit, binding on law
enforcement officers. Id. (quoting Gonzales, 722 F.2d at 47677). An alien who overstays
a valid visa or otherwise remains in the country after the expiration of a period authorized
by the Department of Homeland Security, therefore, although he may be subject to
10
deportation, has violated no criminal statute. Martinez-Medina, ___ F.3d at ___, 2011 WL
11
855791, at *5 n.4.
12
Officers enforcing the immigration laws must comply with the Fourth Amendment,
13
which protects the right of the people to be free from unreasonable searches and seizures.
14
U.S. CONST. amend IV. Probable cause to arrest a person will flow when the facts and
15
circumstances within the knowledge of the arresting officers and of which they had
16
reasonably trustworthy information were sufficient to warrant a prudent man in believing that
17
[the person arrested] had committed or was committing an offense. United States v. Jensen,
18
425 F.3d 698, 704 (9th Cir. 2005). Absent probable cause, when circumstances require
19
necessarily swift action predicated upon the on-the-spot observations of the officer on the
20
beat,officers may make brief investigatory seizures based only on reasonable suspicion that
21
criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 20, 30 (1968). An investigatory
22
stop is lawful if an officer reasonably suspects that the person apprehended is committing
23
or has committed a criminal offense. Arizona v. Lemon Montrea Johnson, 555 U.S. 323, 326
24
(2009). Stopping a vehicle is usually analogous to a so-called Terry stop;officers
25
ordinarily may stop a vehicle based on reasonable suspicion of criminal activity. Berkemer
26
v. McCarty, 468 U.S. 420, 439 (1984).
27
28
Federal ICE officers have the power to investigate and enforce both criminal and civil
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immigration law, including the power to interrogate any alien or person believed to be an
alien as to his right to be or to remain in the United States. 8 U.S.C. 1357(a)(1).
Authorized officers may stop vehicles pursuant to this authority so long as they are aware
of specific articulable facts, together with rational inferences from those facts, that
reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the
country. U.S. v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). Reasonable suspicion for a
federal officer to stop a car to investigate the immigration status of the occupants depends
upon the totality of the circumstances. U.S. v. Arvizu, 534 U.S. 266, 277 (2002) (border
patrol agent had reasonable suspicion to stop a minivan when (1) it had turned onto a dirt
10
road frequently used by smugglers to avoid a checkpoint, (2) it had slowed when the driver
11
saw the officer, (3) the children sitting in the back began to wave mechanically, and (4) the
12
children had their knees propped up, as though there was cargo beneath them).
13
In considering the totality of the circumstances, however, an officer cannot rely
14
solely on generalizations that, if accepted, would cast suspicion on large segments of the
15
lawabiding population. U.S. v. Manzo-Jurado, 457 F.3d 928, 935 (9th Cir. 2006). Hispanic
16
appearance, for example, is of such little probative value that it may not be considered as
17
a relevant factor where particularized or individualized suspicion is required. U.S. v.
18
Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000). Moreover, while an inability to
19
speak English is probative of immigration status, it does not supply reasonable suspicion
20
unless other factors suggest that the individuals are present in this country illegally.
21
Manzo-Jurado, 457 F.3d at 937. The Ninth Circuit has also held that individuals
22
appearance as a Hispanic work crew, inability to speak English, proximity to the border, and
23
unsuspicious behavior, taken together, do not provide a federal immigration officer
24
reasonable suspicion to conduct a stop. Id. at 932.
25
Local law enforcement officers who have been certified under section 287(g) may
26
perform a function of an immigration officer in relation to the investigation, apprehension,
27
or detention of aliens in the United States. 8 U.S.C. 1357(g)(1). They are therefore
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permitted to enforce civil violations of federal immigration law. Officers certified under the
287(g) program may make traffic stops based upon a reasonable suspicion, considering the
totality of the circumstances, that people in the vehicle are not authorized to be in the United
States. Brignoni-Ponce, 422 U.S. at 884.
Local law enforcement officers, however, do not have the inherent authority to
investigate civil immigration violations, including status violations. U.S. v. Arizona, 641 F.3d
339, 362 (9th Cir. 2011).3 Since the MCSO lost its 287(g) field authority after October 16,
2009, the only immigration laws its officers can investigate are federal criminal laws or state
laws that have not been enjoined. Gonzales, 722 F.2d at 47677.
10
Local law enforcement officers, even those not certified under 287(g), are generally
11
not prohibited from investigating and enforcing federal criminal law. Ker v. California, 374
12
U.S. 23, 37 (1963). The Ninth Circuit has held that local law enforcement officers, therefore,
13
may investigate and enforce the criminal provisions of the [INA]. Gonzales, 722 F.2d at
14
477.4 Non-287(g) officers may detain those whom they have reasonable suspicion to believe
15
have illegally crossed a border in violation of 1325, fraudulently filed an immigration
16
application under 1306, failed to carry documentation of their immigration status under
17
1304(e), or committed other criminal immigration violations.
18
Moreover, actual knowledge, let alone suspicion, that an alien is illegally present is
19
not sufficient to form a reasonable belief he has violated federal criminal immigration law.
20
21
22
23
24
25
The Supreme Court has granted a writ of certiorari to review the Ninth Circuits
decision. U.S. v. Arizona, 641 F.3d 339, 362 (9th Cir. 2011), cert. granted 60 U.S.L.W. 3090
(U.S. Dec. 12, 2011) (No. 11-182). The question presented in that case is whether federal
laws impliedly preempt four provisions of SB 1070 on their face. Id. The Supreme Court has
not been asked to decide whether states have an inherent authority to enforce civil provisions
of the immigration law. At oral argument, Defendants conceded that they had no authority
to enforce federal civil immigration law.
4
27
Plaintiffs stated at oral argument that local law enforcement officers do not have the
inherent authority to enforce federal criminal immigration law. They cited no authority for
this proposition, which is in conflict with Gonzales, upon which they otherwise rely.
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The Ninth Circuit recently affirmed that an aliens admission of illegal presence . . . does
not, without more, provide probable cause of the criminal violation of illegal entry,
precisely because the criminal sections of the INA contain additional elements, such as
crossing a border without authorization, willfully refusing to register, or filing a fraudulent
application. Martinez-Medina, ___ F.3d ___, 2011 WL 855791, at *6 (quoting Gonzales, 722
F.2d at 47677).5 MCSO officers, none of whom are now 287(g) certified, therefore have no
power to detain or investigate violations such as those regulating authorized entry, length
of stay, residence status, and deportation. U.S. v. Arizona, 641 F.3d at 362. Seizing a civilian
pursuant to such a violation, absent reasonable suspicion of criminal activity, violates the
10
Fourth Amendment.
11
Local law enforcement officers can investigate violations of state law, including
12
validly enforceable state laws that involve immigration matters. The State of Arizona, in
13
response to rampant illegal immigration, escalating drug and human trafficking crimes, and
14
serious public safety concerns, along with a perceived failure by the federal government to
15
enforce federal immigration law, has passed a number of state laws involving immigration
16
issues. U.S. v. Arizona, 703 F. Supp. 2d 980, 985 (D. Ariz. 2010). Some of the provisions of
17
Senate Bill (SB) 1070, one of the laws in question, have been enjoined, but some portions
18
of the law remain valid.
19
Portions of SB 1070 that have not been enjoined allow local law enforcement officials
20
to turn over those who have been convicted of a state crime to federal authorities to
21
determine their immigration status. Ariz. Rev. Stat. (A.R.S.) 11-1051(C)(F); See U.S.
22
v. Arizona, 703 F. Supp. 2d at 985 (D. Ariz. 2010) (upholding the provisions). Additionally,
23
24
27
The Tenth Circuit has found that officers have probable cause to believe people have
crossed a border without authorization when their car was stopped legally, the driver of the
vehicle failed to provide a valid drivers license, the driver and his passenger admitted they
were not legally present in the country, and the driver and passenger indicated they were
coming from Mexico. U.S. v. Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001).
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a person who is in violation of a criminal offense commits a further offence if he transports
or moves an unauthorized alien if the person recklessly disregards that persons unlawful
status. A.R.S. 13-2929(A)(1) (2010). However, no one may determine the transported
aliens status except for a federal officer or a law enforcement officer who is authorized by
the federal government to verify or ascertain an aliens immigration status. A.R.S 13-
2929(D)(1)(2). Officers without such authorization cannot therefore collect evidence to
satisfy a key element of the crime.6
In addition, some Arizona state immigration laws predate SB 1070. The Legal
Arizona Workers Act of 2007 allows state courts to suspend or revoke the license to do
10
business of any employer who knowingly or intentionally employs an alien who is not
11
authorized to work. A.R.S. 23-211, 212, 212.01 (2007). It has been held to be
12
constitutional by the Supreme Court. See Chamber of Commerce of U.S. v. Whiting, 131
13
S.Ct. 1968, 1977 (2011) (upholding the measure). However, the law explicitly provides an
14
enforcement process by which individuals file written complaints to the Attorney General,
15
16
27
SB 1070 also includes provisions prohibiting stopping a vehicle to hire or pick up

passengers for work at a different location if the motor vehicle blocks or impedes the normal
movement of traffic, or for someone to enter a vehicle for such a purpose while the vehicle
blocks or impedes traffic. A.R.S. 13-2928(A)(B). These provisions have not been
enjoined, but their status remains uncertain. In upholding them, the district court found that
the June 9, 2010, decision of the Ninth Circuit Court of Appeals in a case contesting a
virtually identical local ordinance in Redondo Beach, California forecloses a challenge. U.S.
v. Arizona, 703 F. Supp. 2d at 1000 (citing Comite de Jornaleros de Redondo Beach v. City
of Redondo Beach, 607 F.3d 1178, 118493 (9th Cir. 2010)). An en banc decision of the
Ninth Circuit has since overturned that panel decision and found that the Redondo Beach
ordinance, Redondo Beach Mun. Code 37.1601(a), is a facially unconstitutional
restriction on speech, since soliciting work as a day laborer is protected First Amendment
activity. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,
940 (9th Cir. 2011) (en banc). It is therefore not clear whether local law enforcement officers,
including MCSO officers, can enforce A.R.S. 132928(A) or 132928(B). In an
unrelated lawsuit, a preliminary injunction is currently being sought against A.R.S.
132928(A) and 132928(B) based on the en banc ruling in Redondo Beach. See
Friendly House, et al. v. Whiting, et al., CV-10-01061-SRB.
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who in turn conducts an investigation before a license is revoked. A.R.S. 23-212. It has no
provisions through which enforcement actions can be taken against employees, and
specifically exempts independent contractors from its definition of employee, suggesting
that it cannot be enforced against those who hire day laborers as independent contractors.
A.R.S. 23-211(3)(b).
Since 2005, human smuggling has been an Arizona state crime. A.R.S. 13-2319
(2010). The human smuggling statute reads: It is unlawful for a person to intentionally
engage in the smuggling of human beings for profit or commercial purpose. A.R.S. 13-
2319(A). The statute defines smuggling of human beings as the transportation,
10
procurement of transportation or use of property or real property by a person or an entity that
11
knows or has reason to know that the person or persons transported or to be transported are
12
not United States citizens, permanent resident aliens or persons otherwise lawfully in this
13
state or have attempted to enter, entered or remained in the United States in violation of law.
14
A.R.S. 13-2319(F)(3). In order for the elements of the crime to be satisfied, therefore, a
15
person must 1) transport, procure transportation for, or harbor a person, 2) know or have
16
reason to know that the person is not legally in the country, and 3) do so for profit or
17
commercial purpose.7 If a driver does not know or have reason to know that his passengers
18
are not legally in the country, no one has violated the statute. If the transportation is not being
19
conducted for profit or a commercial purpose, no one has violated the statute. People who
20
cross the international border at an unauthorized location have violated 8 U.S.C. 1325, but
21
have not violated or conspired to violate the human smuggling statute unless the other
22
23
27
A current lawsuit in the District Court of Arizona challenges a policy in which nonsmuggler migrants are arrest[ed], detain[ed], and punish[ed] . . .for conspiring to transport
themselves. We are America/Somos America, Coalition of Arizona v. Maricopa Cty. Bd. of
Supervisors, ___ F. Supp. 2d. ___, 2011 WL 3629352 (D. Ariz. Aug. 18, 2011, CV-0602816-RCB). For the purposes of this order, the Court assumes, without deciding, that those
who are smuggled may be prosecuted for conspiring to smuggle themselves, so long as all
elements of the statute are satisfied.
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elements of A.R.S. 13-2319 are met.
A law enforcement officer must have a reasonable suspicion that the smuggling is
afoot to conduct a brief investigatory stop to enforce the human smuggling law. Terry, 392
U.S. at 20. Therefore, an officer must have reasonable suspicion that 1) a person is being
transported or harbored, 2) by a person who knows or has reason to know that the person
being transported or harbored is not legally present in Arizona or the United States, and 3)
that the person is currently being transported or harbored for profit or commercial purpose.
A.R.S. 13-2319(A)(F). The fact that a law enforcement officer suspects, or even knows,
that a vehicle passenger is not legally present in the country does not in and of itself provide
10
reasonable suspicion that the passenger was or is being smuggled. Moreover, a passengers
11
lack of legal status, standing alone, is in no way probative as to whether the driver is
12
transporting the passenger for profit or commercial purpose. Since an aliens admission of
13
illegal presence . . . does not, without more, provide probable cause of the criminal violation
14
of illegal entry, knowledge of illegal presence, standing alone, can likewise not provide
15
reasonable suspicion or probable cause that the human smuggling statute has been violated
16
sufficient to justify a Terry stop. Martinez-Medina, 2011 WL 855791, at *6.
17
A minor traffic infraction provides officers sufficient probable cause to stop a motor
18
vehicle. Whren v. U.S., 517 U.S. 806, 810 (1996). When officers stop a car for probable
19
cause, the fact that they actually intend to investigate another crime for which they lack
20
probable cause is irrelevantthe ulterior motive does not serve to strip the agents of their
21
legal justification to conduct the initial stop. Id. at 813. While an ulterior motive does not
22
remove objective probable cause for a car stop, neither it nor the initial probable cause
23
provides limitless authority to detain passengers for unrelated crimes or civil violations. This
24
is because while [t]here is probable cause to believe that the driver has committed a minor
25
vehicular offense, . . . there is no such reason to stop or detain the passengers. Maryland v.
26
Wilson, 519 U.S. 408, 413 (1997).
27
28
For any detention to be valid under the Fourth Amendment, [t]he scope of the
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detention must be carefully tailored to its underlying justification. Florida v. Royer, 460
U.S. 491, 500 (1983). Applied to the car stop context, this principle means that officers may
question a driver who has been lawfully stopped if the questioning does not unreasonably
prolong the duration of the stop. U.S. v. Turvin, 517 F.3d 1097, 1099, 1104 (9th Cir. 2008)
(when officer recognized driver as previously arrested drug dealer, asking for drivers
consent to search a box in the vehicle that look[ed] very odd did not prolong the stop).
During this questioning, however, unless the detainees answers provide the officer with
probable cause to arrest him, he must then be released. Berkemer, 468 U.S. at 439440.8
Vehicle passengers are legally seized based on the reasonable suspicion that
10
provided justification for the stopan officer need not have, in addition, cause to believe
11
any occupant of the vehicle is involved in criminal activity. Lemon Montrea Johnson, 555
12
U.S. at 327. To question or search a passenger beyond the scope of investigating the cause
13
for the original stop, however, an officer needs suspicion particular to that passengerfor
14
example, in order to frisk a passenger, an officer needs reasonable suspicion independent of
15
the reason for the stop that the person subjected to the frisk is armed and dangerous. Id.9
16
Local law enforcement officers may therefore not detain vehicle passengers based
17
upon probable cause, or even actual knowledge, without more, that those passengers are not
18
19
20
21
22
23
24
25
Defendants reliance on Muehler v. Mena, 544 U.S. 93 (2005) for the proposition
that [a] traffic violation provides probable cause to stop the vehicle and to reasonably detain
a driver and other occupants of the vehicle, is unavailing. (Doc. 413 at 5). In Muehler, there
was no traffic stop; rather, Mena was handcuffed and asked about her immigration status
while her house was searched for weapons pursuant to a valid warrant. Mueler, 544 U.S. at
96. The Supreme Court held that the detention was reasonable in light of the nature of the
search, and that an interrogation that did not prolong the search did not constitute an
independent Fourth Amendment seizure. The officers who asked about Menas immigration
status were federal immigration officers. Id.
9
27
The Fourth Circuit has held that, without extending the duration of the stop, officers
may direct very limited requests to passengers, writing that a request for identification from
passengers falls within the purview of a lawful traffic stop and does not constitute a separate
Fourth Amendment event. U.S. v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007).
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lawfully in the United States, since such knowledge does not provide officers with reasonable
suspicion that the passengers are violating any law that local law enforcement officers can
enforce. Martinez-Medina, 2011 WL 855791, at *6. This prohibition holds true even when
the car has been reasonably stopped for other cause, such as a traffic violation, because such
cause provides no such reason to stop or detain the passengers. Wilson, 519 U.S. at 413.
Defendants, citing Terry and its progeny, claim that if an officer has reasonable
suspicion that a person has satisfied one significant element of a criminal statute, the officer
may stop that person to develop reasonable suspicion that the person has violated the other
elements. A line of Ninth Circuit cases has emphasized that since probable cause is an
10
objective standard relying upon the totality of the circumstances, an officer may have
11
probable cause to arrest or search when he does not have probable cause for every element
12
of the offense. U.S. v. McCarty, 648 F.3d 820, 839 (9th Cir. 2011) (When airport traveler
13
opened his bag and photographs of nude children fell out, TSA did not need probable cause
14
that the photographs met the precise definition of child pornography in order to have
15
probable cause to search bags further). Nevertheless, officers still need an objectively
16
reasonable belief that [a person] has committed a crime before they have probable cause to
17
proceed further. Id. Although [p]robable cause does not require the same type of specific
18
evidence of each element of the offense as would be needed to support a conviction, Adams
19
v. Williams, 407 U.S. 143, 149 (1972), officers must have some reliable information that a
20
person has committed a crime, usually including violating its key elements. See, e.g., Gasho
21
v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994) (finding that while an officer need not
22
have probable cause for every element of the offense . . . when specific intent is a required
23
element, the arresting officer must have probable cause for that element in order to
24
reasonably believe that a crime has occurred.). Regardless of whether some crimes contain
25
some elements for which an officer need not have probable cause in order to have probable
26
cause that the crime has been committed, in the immigration context, an aliens admission
27
of illegal presence . . . does not, without more, provide probable cause of the criminal
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violation of illegal entry. Martinez-Medina, 2011 WL 855791, at *6.
To justify a Terry stop, an officer must have reasonable suspicion that a crime is
about to be committed, and a person has not committed a crime if the necessary elements
have not been satisfied. Cf. In re Winship, 397 U.S. 358, 361 (1970) (To convict a person of
a crime, a prosecutor must convince the trier of all the essential elements of guilt.) (internal
quotation omitted). If the totality of the circumstances do not provide reasonable suspicion
that a person is about to commit or is committing a crime, then the officer cannot stop the
person. Moreover, an officer cannot conduct a Terry stop in order to acquire the reasonable
suspicion necessary to justify the stop itself; the demand for specificity in the information
10
upon which police action is predicated is the central teaching of [the Supreme Courts]
11
Fourth Amendment jurisprudence. Terry, 392 U.S. at 22 n.18 (collecting cases).
12
Defendants also cite U.S. v. Cortez, 449 U.S. 411 (1981), Scarbrough v. Myles, 245
13
F.3d 1299 (11th Cir. 2001), and a number of cases in which officers frisked individuals for
14
weapons during a legally justified stop, including U.S. v. Orman, 486 F.3d 1170 (9th Cir.
15
2007), Lemon Monrea Johnson, and Terry itself. Cortez involved federal immigration
16
officers stopping a vehicle after an extended field investigation and overnight surveillance;
17
since federal immigration officers may stop vehicles based on reasonable suspicion that
18
passengers have violated federal civil immigration law, there were no criminal elements that
19
needed to be satisfied. U.S. v. Cortez, 449 U.S. at 42122. Scarbrough was a qualified
20
immunity case. In that case, the court held that Officer Myles had arguable probable cause
21
that defendants had committed of a crime, and therefore met the lower standard necessary
22
to be afforded qualified immunity. Scarbrough, 245 F.3d at 1303. It in no way suggests that
23
a Terry stop is justified without reasonable suspicion that a crime has been committed, or that
24
essential elements can remain unsatisfied.10
25
26
10
27
Cases detailing the standards for conducting a frisk are not relevant to this
complaint, and need not be discussed in detail.
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As a matter of law, belief without more that a person is not legally authorized to be
in the country cannot constitute reasonable suspicion to believe that he or she has violated
the state human smuggling law. The Ninth Circuit has held that actual knowledge that a
person is not lawfully in the country does not provide probable cause that the person has,
additionally, crossed the border at an unauthorized place. Martinez-Medina, 2011 WL
855791, at *6. If an officer does not have reasonable suspicion that criminal activity is afoot,
he does not have reason to detain someone under Terry.

DISCUSSION
8
9
I. Legal Standard
10
Summary judgment is appropriate if the pleadings and supporting documents, viewed
11
in the light most favorable to the non-moving party, show that there is no genuine issue as
12
to any material fact and that the moving party is entitled to judgment as a matter of law.
13
FED. R. CIV. P. 56(c). A dispute is genuine if the evidence is such that a reasonable jury
14
could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
15
242, 248 (9th Cir. 1986). In considering such evidence, at the summary judgment stage the
16
judges function is not himself to weigh the evidence and determine the truth of the matter
17
but to determine whether there is a genuine issue for trial. Id. at 249.
18
The party moving for summary judgment bears the initial burden to identify the
19
portions of the record it believes demonstrate the absence of a genuine issue of material
20
fact. F.T.C. v. Stefanchick, 559 F.3d 924, 927 (9th Cir. 2009) (quoting Celotex Corp. v.
21
Cartrett, 477 U.S. 317, 323 (1986)). Should the moving party meet this burden, the non-
22
moving party then must set forth, by affidavit or as otherwise provided in Rule 56, specific
23
facts showing that there is a genuine issue for trial. Horphang Research Ltd. v. Garcia, 475
24
F.3d 1029, 1035 (9th Cir. 2007) (internal quotations omitted). District courts rely on the
25
nonmoving party to identify with reasonable particularity the evidence that precludes
26
summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).
27
28
Affidavits must be made on personal knowledge, not information and belief in order
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to be considered at summary judgment. Taylor v. List, 880 F.2d 1040, 1046 n.3 (9th Cir.
1989). Expert testimony may be considered unless it consists of a legal conclusion. U.S.
v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999). The Ninth Circuit has refused to find a genuine
issue where the only evidence presented is uncorroborated and self-serving testimony.
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (internal quotations
omitted).
II. Analysis
A. Search and Seizure Claims
A plaintiff does not have standing to seek injunctive relief, even if he has suffered
10
harm, unless that harm is accompanied by continuing, present adverse effects. OShea v.
11
Littleton, 414 U.S 488, 496 (1974). Continuing, present adverse effects may be found when
12
a plaintiff demonstrates that there is a sufficient likelihood that he will again be wronged
13
in a similar way. Lyons, 461 U.S. at 111. Standing for injunctive relief will not flow,
14
however, if an injury is contingent upon [plaintiffs] violating the law. Spencer v. Kemna,
15
523 U.S. 1, 15 (1998). Plaintiffs have no standing to enjoin police conduct, therefore, if by
16
conduct[ing] their activities within the law they will avoid exposure to the challenged
17
course of conduct. Lyons, 461 U.S. at 103 (quoting OShea, 414 U.S. at 497). To have
18
standing to seek an injunction on their Fourth Amendment claims, Plaintiffs must present a
19
genuine question as to whether they are likely to be seized again in violation of the Fourth
20
Amendment, not merely that the traffic stops are conducted in a discriminatory fashion or are
21
pretextual efforts to enforce other law. See Whren v. U.S., 517 U.S. at 810.
22
In the unique circumstances of this case, Defendants assertions about the scope of
23
their authority to stop persons to investigate potential violations of the state smuggling statute
24
establish that plaintiffs are sufficiently likely to be seized in violation of the Fourth
25
Amendment to provide them with standing to seek injunctive relief. MCSO has conceded
26
that it has no authority, inherent or otherwise, to enforce federal civil immigration law, but
27
now claims the authority to detain persons it believes are not authorized to be in the country
28
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based on its ability to enforce Arizonas human smuggling statute. A.R.S. 13-2319.
Defendants claim, therefore, that their authority to stop people to investigate violations of the
state human smuggling statute is the same as a federal immigration officers authority to
enforce federal civil immigration law. In supplemental briefing and at oral argument,
Defendants asserted that MCSO officers could briefly detain people based only upon a
reasonable suspicion, without more, that the person is not legally present within the United
States. (Doc. 488 at 17).
The fact that a person is unlawfully present, without more, does not provide officers
with reasonable suspicion that the person is currently being smuggled for profit, nor does it
10
provide probable cause that the person was at some point in the past smuggled for profit. Cf.
11
Martinez-Medina, 2011 WL 855791, at *6. To the extent that Defendants claim that the
12
human smuggling statute, or any Arizona or federal criminal law, authorizes them to detain
13
people based solely on the knowledge, let alone the reasonable suspicion, that those people
14
are not authorized to be in the country, they are incorrect as a matter of law.
15
The likelihood that any particular named Plaintiff will again be stopped in the same
16
way may not be high. However, if MCSO detains people, as they claim a right to do, without
17
reasonable suspicion that they have violated essential elements of a criminal laweither
18
state or federalexposure to that policy is both itself an ongoing harm and evidence that
19
there is sufficient likelihood that Plaintiffs rights will be violated again. Lyons, 461 U.S.
20
at 111. Although some MCSO officers were certified under 287(g) to enforce civil provisions
21
of the federal immigration law during the incidents that gave rise to the complaint, since that
22
authority has been revoked they may no longer do so. In Lyons itself, the court wrote that a
23
victim of police misconduct could seek an injunction if he could show that department
24
officials ordered or authorized police officers to act in such manner. Id. at 106 (emphasis
25
added). MCSO affirmatively alleges that its officers are authorized to stop individuals based
26
only on reasonable suspicion or probable cause that a person is not authorized to be in the
27
United States. This assertion establishes the standing of all named Plaintiffs to seek
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injunctive relief. Further, because this assertion is wrong as a matter of law, named Plaintiffs
(and all members of the putative class) are entitled to partial summary judgment on their
Fourth Amendment claims, to the extent that Defendants are detaining persons without
reasonable suspicion that the state human smuggling statute has been violated. Defendants
need not be enjoined from enforcing federal civil immigration law because they concede that
they have no authority to enforce such law.
To be granted injunctive relief, a plaintiff must establish four elements. A plaintiff
must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips in his favor, and
10
that an injunction is in the public interest. Winter v. Natt Res. Def. Council, 555 U.S. 7, 20
11
(2008); see FED. R. CIV. P. 65. The loss of constitutional rights unquestionably constitutes
12
irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). The balance of equities and
13
public interest both favor enforcing class members Fourth Amendment rights. Injunctive
14
relief is appropriate.
15
To the extent that named Plaintiffs claim a right to additional injunctive relief on
16
summary judgment based on the facts of their individual detentions, those detentions are
17
discussed below.
18
1. Ortega-Melendres
19
On September 19, and September 22, 2007, undercover MCSO deputies went to a
20
church in Cave Creek posing as day laborers. (Doc. 433, Ex. 139). The officers discovered
21
that the church maintained a sign-in sheet for those looking for work in order to fairly
22
distribute the jobs among the day laborers. (Id.). An email to Lieutenant Joseph Sousa of
23
MCSOs Human Smuggling Unit (HSU) detailing the officers undercover operation
24
concluded that [o]n both days, there was no information discovered pertaining to forced
25
labor, human smuggling or possible drop houses. (Id.). On September 27, MCSO
26
conducted an operation related exclusively to stopping for probable cause following traffic
27
violations only those vehicles that were observed to have picked up people congregating at
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the church property and that had left the property. (Doc. 453 172).
Plaintiff Manuel de Jesus Ortega-Melendres, a Mexican national who was legally in
the United States at the time, along with two other men, entered a vehicle from the parking
lot. (Doc. 413, Ex. 1 14). Deputy DiPietro was participating in the operation, which he
understood to be focused on a church parking lot that had day laborers working from it or
being picked up by people. (Doc. 413, Ex. 4 at 46, ln 2225). Officers of the HSU who were
monitoring the church contacted Deputy DiPietro and told him to follow the vehicle Ortega-
Melendres had entered and attempt to develop probable cause to stop it. (Doc. 413, Ex. 1
15). DiPietro followed the truck for a mile and a half, and then pulled it over for traveling
10
above the speed limit. (Doc. 422 177). DiPietro spoke to the driver of the vehicle and to the
11
passengers, and formed, in his own words, reasonable suspicion from that they were day
12
laborers and here illegally. (Doc. 413, Ex. 4 at 49, ln 1820). When asked whether he
13
believed that the passengers had committed any state crime, he stated, Im not sure what the
14
employer sanction laws and when they came into effect or not. But I had reason to believe
15
that they were here illegally. (Doc. 413, Ex. 4 at 4950).11 When asked specifically if he was
16
concerned about human smuggling, he stated, There was a concern ofwhen I found out
17
that this church was doing this, you know, allowing day laborers to be worked out, theres
18
a possibility that it could have been some type of human smuggling type ofsome type of
19
criminal activity could have been going on out of that parking lot. (Doc. 413, Ex. 4 at 120,
20
ln 611) (emphasis added). DiPietro decided not to give the driver of the vehicle a traffic
21
ticket, and summoned Deputy Rangel, who was 287(g) certified and spoke Spanish, to
22
investigate the immigration status of the passengers of the truck, including Ortega-
23
Melendres. (Doc. 413, Ex. 1 2022). Defendants and Plaintiffs agree that Melendres
24
25
11
27
As discussed above, Arizonas employer sanctions law contains no provision for

penalties of any sort levied on employees, rather than employers, and specifically exempts
independent contractors from its definition of employee. See A.R.S 23-211, 212,
212.01.
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provided Rangel with his tourist visa, but disagree as to whether he also provided his I-94
form. (Doc. 456 26). The driver was allowed to leave with a warning.12 (Doc. 422 178).
After between fifteen and twenty-one minutes of questioning, Ortega-Melendres and the
other passengers were taken to an MCSO substation, where they were detained for roughly
two hours, and then transported to an ICE Detention and Removal Office, where Ortega-
Melendres was held for six more hours. (Doc. 453 185). After he was seen by an ICE agent,
Ortega-Melendres was released. (Doc. 453 184).
It is not clear from the record that the HSU officers who first radioed Deputy DiPietro
were themselves certified under the 287(g) program to enforce federal immigration law.
10
Assuming that they were, they would only have had reasonable suspicion to stop the vehicle
11
if the facts and reasonable inferences drawn from those facts could reasonably warrant
12
suspicion that the vehicles contain[ed] aliens who may be illegally in the country. Brignoni-
13
Ponce, 422 U.S. at 884. They did not stop the vehicle themselves, and instead requested that
14
Deputy DiPietro do so.
15
Defendants assert that in training 287(g) officers, ICE informs them that race or
16
apparent ancestry may be used as one factor in evaluating whether officers have reasonable
17
suspicion to stop an individual, although it cannot be considered the sole factor. (Doc. 452
18
at 15; Doc. 453, Ex. 9 at 19, ln 1021). Whether or not such information is provided by ICE
19
to local law enforcement officers during their 287(g) training, the law in the Ninth Circuit
20
is clear: Hispanic appearance is of little or no use in determining which particular
21
individuals among the vast Hispanic populace should be stopped by law enforcement
22
officials on the lookout for illegal aliens. Montero-Camargo, 208 F.3d at 1134. Defendants
23
cite Montero-Camargo for the proposition that the courts do not preclude the use of racial
24
or ethnic appearance as one factor relevant to reasonable suspicion or probable cause, but
25
12
27
To the extent that Defendants now assert that Deputy DiPietro detained Orgeta
Melendres pursuant to his authority to enforce Arizonas human smuggling statute, they offer
no explanation why he did not also detain the driver for violating that same statute.
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fail to quote the sentence in its entirety, which limits this use to when a particular suspect
has been identified as having a specific racial or ethnic appearance. Id. at 1134 n.21
(emphasis added). Defendants at no time claim that Ortega-Melendres matched a particular
description of a suspect of any specific crime before his vehicle was stopped. Assuming that
Ortega-Melendres was dressed as a member of a work crew, his appearance would be
inadequate to justify a stop. Manzo-Jurado, 457 F.3d at 932.
In addition to his dress and his appearance, Ortega-Melendres gathered at an area
where day laborers were known to congregate and entered a vehicle with others from the
same location. The Ninth Circuit has yet to consider whether this type of behavior provides
10
officers with reasonable suspicion to investigate immigration status, and it is not necessary
11
to consider that question in this Order. The HSU officers who observed Ortega-Melendres
12
enter the vehicle did not stop the vehicle themselves to determine his immigration status;
13
rather they requested that Deputy DiPietro follow the vehicle and develop probable cause to
14
stop it.
15
Deputy DiPietro stopped the vehicle for traveling 34 miles per hour in a 25 mile per
16
hour zone, but Plaintiffs claim does not rest on whether he had probable cause to effect the
17
initial traffic stop. DiPietro himself acknowledges that he dismissed the driver but called
18
Deputy Rangel to investigate the immigration status of the vehicles passengers because I
19
had reasonable suspicion . . . that they were day laborers and here illegally. (Doc. 453, Ex.
20
13 at 49, ln 1821). In their original briefing on the pending motion, Defendants conceded
21
that Deputy DiPietro had no reason to believe that any passengers of the truck had
22
committed any violation of criminal law. (Doc. 453 176). In their supplemental briefing,
23
however, in which the Court asked them to respond to specific questions concerning
24
Plaintiffs Fourth Amendment claims, they now assert that DiPietro had formed a reasonable
25
suspicion that Ortega-Melendres had violated the human smuggling statute and was
26
27
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conspiring to smuggle himself.13 Even assuming that Ortega-Melendress behavior or
DiPietros conversation with the driver provided reasonable suspicion that Ortega-Melendres
was in the United States without authorization, no evidence has been offered suggesting that
DiPietro had reasonable suspicion that any other elements of a federal or state crime had been
satisfied. See Martinez-Medina, ___ F.3d ___, 2011 WL 855791, at *6 (2011). Previous
undercover work by MCSO had revealed no evidence of human smuggling or drop houses,
and there is no evidence to suggest probable cause that Ortega-Melendres had previously
been transported for profit or commercial purpose. (Doc. 433, Ex. 139). DiPietros statement,
based on no evidence in the record, that the church might possibly have been engaged in
10
human smuggling or other undefined criminal activity, constitutes merely a inchoate and
11
unparticularized suspicion or hunch and did not objectively provide him reasonable
12
suspicion that Ortega-Melendres in particular was committing, or conspiring to commit, any
13
crime. U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 27).
14
Further, that the stop itself may have been justified did not provide reasonable
15
suspicion to detain Ortega-Melendres. Officer DiPietro was justified under Whren in
16
stopping the car, and was permitted to question the driver without reasonable suspicion so
17
long as he did not unreasonably prolong the duration of the stop. Turvin, 517 F.3d at 1099.
18
During that questioning, however, unless the detainees answers provide the officer with
19
probable cause to arrest him, he must then be released. Berkemer, 468 U.S. at 439440.
20
Defendants argue that it was completely proper for MCSO deputies to make traffic
21
stops of motorists under Arizona law and then call for a 287(g) certified deputy to determine
22
23
13
27
To the extent that they also claim, relying on Martinez-Medina, that Deputy
DiPietro could have reasonably concluded that unauthorized presence in the United States
is a crime, DiPietros reasonable but wrong belief would be relevant only in determining
whether to afford him qualified immunity in a suit for damages. Whether he in fact violated
the Fourth Amendment is a purely objective question. See Whren, 517 U.S. 806, 813
(discussing cases that foreclose any argument that the constitutional reasonableness of
traffic stops depends on the actual motivations of the individual officers involved).
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if someone in the stopped vehicle might be unlawfully in the country. (Doc. 452 at 11). For
this proposition, they cite to the deposition of Alonzo Pena, the Special Agent in Charge for
ICE Phoenix. In his deposition, however, Special Agent Pena states that a local officer may
call a federal or 287(g) officer to check a detainees immigration status, but that he has to
have the legal basis to detain that person on his own state charges. (Doc. 453, Ex. 1 at 98,
ln 89). Of course, state officers may summon federal officers to investigate the immigration
status of those who have been convicted of state crimes. A.R.S. 11-1051(C)(F). However,
MCSO had no legal basis under state criminal law on which to detain Ortega-Melendres or
the other passengers while Deputy DiPietro called Deputy Rangel, nor to detain Ortega-
10
Melendres once MCSO allowed the driver to leave. Passengers in a vehicle are technically
11
seized when the vehicle is stopped, and thus may challenge a stop under the Fourth
12
Amendment. Brendlin v. California, 551 U.S. 249, 259 (2007). Any argument, however, that
13
the probable cause used to stop the vehicle provided DiPietro with reasonable suspicion to
14
detain and investigate the passengers in that vehicle is pure bootstrapping. Id. at 413 (There
15
is probable cause to believe that the driver has committed a minor vehicular offense, but
16
there is no such reason to stop or detain the passengers.). DiPietro had no reasonable
17
suspicion that Ortega-Melendres and the other passengers were committing, or probable
18
cause that they had committed, any state or federal crime.
19
DiPietros stated reason for detaining the passengers was that he suspected that they
20
were in the country without authorization. As a 287(g) certified officer, he had the authority
21
to detain them if this suspicion was reasonable. 8 U.S.C. 1357(g). Certain material facts
22
that would resolve this question are currently still in dispute. For example, the parties dispute
23
whether the driver provided DiPietro with information adequate to support reasonable
24
suspicion that Ortega-Melendres was not in the country legally, and they dispute whether
25
Ortega-Melendres produced documentation verifying his status to Deptuy Rangel. (Doc. 413,
26
Ex. 1 18; Doc. 456 26). Therefore, summary judgment in favor of Ortega-Melendres is
27
appropriate to the extent that it enjoins MCSO from detaining persons for further
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investigation without reasonable suspicion that a crime has been or is being committed. On
Ortega-Melendress underlying claims, however, granting either party summary judgment
would be inappropriate at this juncture.
2. Plaintiffs Jessika and David RodriguezClaims Two and Three
On December 7, 2007, David and Jessika Rodriguez were driving on Bartlett Dam
Road when they were stopped by Deputy Matthew Ratcliffe of the MCSO. (Doc. 422
18687). The road had been closed by the Maricopa County Department of Transportation
and a Road Closed sign had been posted on it. (Doc. 413, Ex. 1 40; Doc 413, Ex. 9). Mr.
and Mrs. Rodriguez claim that they approached in a manner that would not have allowed
10
them to see the sign. (Doc. 453 189). Deputy Ratcliffe pulled over the vehicle. (Doc. 422
11
187). Although the parties disagree as to whether Deputy Ratcliffe asked Mr. Rodriguez
12
for his social security card, it is undisputed that he issued Mr. Rodriguez a citation. (Doc. 453
13
193). Deputy Ratcliffe had stopped other vehicles that day; he states that he turned the
14
drivers over to the Tonto National Forest Rangers, while Mr. and Mrs. Rodriguez state the
15
other drivers were only given warnings, not citations. (Doc. 453 19798).
16
Since the Rodriguezes were driving on a road that had been closed by the Department
17
of Transportation, Deputy Ratcliffe had probable cause to stop them, whether or not they had
18
seen the sign. See Whren, 517 U.S. at 810. For the purposes of Defendants motion for
19
summary judgment, it must be assumed that Deputy Ratcliffe asked the Rodriguezes for a
20
social security card, not merely for a social security number as Defendants allege. (Doc. 456
21
52). Furthermore, for the purposes of this motion, Plaintiffs claim that requesting a social
22
security card or number is not standard practice within MCSO when issuing traffic citations
23
may be presumed. (Doc. 422 195). Nevertheless, when a traffic stop is supported by
24
probable cause, whether the officers conduct deviated materially from usual police
25
practices is immaterial for the purposes of Fourth Amendment analysis. Whren, 517 U.S.
26
at 814. The MCSOs Arizona Traffic Ticket and Complaint form has a space in which to
27
enter a suspects social security number, and a social security card is a commonly understood
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document for verifying that number. (Doc. 413, Ex. 7). Plaintiffs offer no evidence
suggesting that the Rodriguez stop took any longer than it would have had Deputy Ratcliffe
not requested the card. Their claim that Deputy Ratcliffe enforced the traffic laws selectively
in choosing their vehicle to stop and ticket does not bear on the Fourth Amendment analysis.
Whren, 517 U.S. at 813. Moreover, their claim that Deputy Ratcliffe followed their vehicle
after issuing a summons does not state a Fourth Amendment claim, since people traveling
in an automobile on public thoroughfares ha[ve] no reasonable expectation of privacy in
[their] movements from one place to another. U.S. v. Knotts, 460 U.S. 276, 281 (1983).
Therefore, partial summary judgment in favor of the Rodriguezes is appropriate to the
10
extent that in enjoins MCSO from detaining persons for further investigation without
11
reasonable suspicion that a crime has been or is being committed. On their remaining
12
underlying claims, however, the Court grants summary judgment to Defendants.

3. Plaintiffs Manuel Nieto and Velia MerazClaims Two and Three
13
14
On March 28, 2008, MCSO officers were conducting special operations in North
15
Phoenix. (Doc. 453 200). On that date, Manuel Nieto and Velia Meraz drove into a
16
convenience store where MCSO Deputy Charley Armendariz was standing by another
17
vehicle that he had stopped. (Doc. 422 201). Plaintiffs and Defendants disagree about the
18
details of the encounter between Armendariz, Nieto, and Meraz, but agree that Deputy
19
Armendariz ordered Nieto and Meraz to leave and that he radioed for backup. (Doc. 453
20
202). By the time backup officers arrived, Nieto and Meraz had in fact left the vicinity of the
21
convenience store. (Doc. 453 203). The backup officers pursued Nieto and Merazs vehicle,
22
which pulled into the parking lot of a nearby auto repair shop owned by Nietos father. (Doc.
23
456 87). Plaintiffs and Defendants dispute much of what Nieto, Meraz, and the officers did
24
during the course of this second encounter, but agree that Deputy Michael Kikes forcibly
25
removed Mr. Nieto from the vehicle and handcuffed him while checking his identification.
26
(Doc. 453 212). Mr. Nieto was released from custody without being charged. (Doc. 453
27
213).
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Summary judgment on Nieto and Merazs claim would be improper because many
material facts are in dispute. (Doc. 456 7072, 7483, 87, 92). Defendants and Plaintiffs
disagree about Nieto and Merazs behavior when they first pulled into the convenience store
near Deputy Armandariz. (Doc. 456 7072). They disagree about whether Nieto and
Meraz immediately obeyed Deputy Armandarizs order to leave the area. (Doc. 456
7476). They disagree about the nature of the later stop by Deputy Kikes and about Nietos
behavior before he was forcibly removed from the vehicle. (Doc. 456 87, 92). The parties
offer drastically different versions of the stop, each supported by deposition testimony. The
disputed facts are material to the question of whether the MCSO officers had probable cause
10
for the initial stop, whether they had probable cause to remove Nieto from the car, and
11
whether they had probable cause to handcuff him.
12
Therefore, partial summary judgment in favor of Nieto and Meraz is appropriate to
13
the extent that in enjoins MCSO from detaining persons for further investigation without
14
reasonable suspicion that a crime has been or is being committed. On their underlying claims,
15
however, granting either party summary judgment would be inappropriate at this juncture.
16
B. Discrimination ClaimsCounts One and Four
17
Just as Plaintiffs needed to demonstrate standing to seek injunctive relief on their
18
Fourth Amendment Claims, so too must they demonstrate a sufficient likelihood that their
19
Equal Protection rights will be violated again in order to seek equitable relief on Claim One
20
and Claim Four. Lyons, 461 U.S. at 111. Courts have consistently held that a racially
21
discriminatory law enforcement policy constitutes ongoing harm, and thereby supports
22
standing to seek an injunction. See LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985);
23
Thomas v. Cty of L.A., 978 F.2d 504, 508 (9th Cir. 1992); Rodriguez v. California Highway
24
Patrol, 89 F. Supp. 2d 1131 (N.D. Cal. 2000); Committee for Immigrant Rights of Sonoma
25
v. Cty. of Sonoma, 644 F. Supp. 2d 1177 (N.D. Cal. 2009). Plaintiffs demonstrate a sufficient
26
likelihood that they will again be wronged when they do not have to induce a police
27
encounter before the possibility of injury can occur because stops are the result of an
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unconstitutional pattern of conduct. LaDuke, 762 F.2d at 1326. Injunctive relief is
appropriate when plaintiffs show that police misconduct is purposefully aimed at minorities
and that such misconduct was condoned and tacitly authorised by department policy makers.
Thomas, 978 F.2d at 508. A plaintiff challenging law enforcement policies on Equal
Protection grounds must show both that the . . . system had a discriminatory effect and that
it was motivated by a discriminatory purpose. Wayte v. U.S., 470 U.S. 598, 608 (1985); see
also Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 26465
(1977) ([O]fficial action will not be held unconstitutional solely because it results in a
racially disproportionate impact.). Likewise, Title VI authorizes a private right of action
10
only in cases involving intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280
11
(2001). Consideration of race need not be the dominant or primary purpose of a policy for
12
it to be discriminatory. Arlington Heights, 429 U.S. at 265. Instead, a finder of fact must
13
determine whether a discriminatory purpose was a motivating factor in the policy. Id. at
14
266. Plaintiffs may demonstrate that a policy was intentionally discriminatory if they can
15
show that it was based in part on reports that referred to explicit racial characteristics.
16
Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir. 1980) (Kennedy, J.). Frequent stops of
17
minorities can serve as evidence of a discriminatory policy, but the Ninth Circuit has held
18
that a single stop, even if discriminatory, does not alone provide sufficient evidence of a
19
discriminatory policy to support standing to seek an injunction. Hodgers-Durgin v. de la
20
Vina, 199 F. 3d 1037, 1044 (9th Cir. 1999).
21
Plaintiffs here provide evidence from which a finder of fact could conclude that
22
MCSO racially profiles Latinos. Sheriff Arpaio has made public statements that a fact finder
23
could interpret as endorsing racial profiling, such as stating that, even lacking 287(g)
24
authority, his officers can detain people based upon their speech, what they look like, if they
25
look like they came from another country. (Doc. 426, Ex. 4 at 274). Moreover, he
26
acknowledges that MCSO provides no training to reduce the risk of racial profiling, stating
27
if we do not racial profile, why would I do a training program? (Doc. 426, Ex. 4 at 41).
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In addition, Sheriff Arpaio keeps a file containing letters and news clippings that a
reasonable fact finder could determine advocate or support racial profiling. Sample
sentiments include, Stopping Mexicans to make sure they are legal is not racist, If you
have dark skin, then you have dark skin! Unfortunately, that is the look of the Mexican
illegal, and a person who stated that her mother, who had been profiled during World War
II, believed that profiling was the right thing to do. (Doc. 427, Exs. 22, 23, 36). Arpaio
wrote personal thank-you letters to a number of the authors. (Doc. 435, Exs. 18485 ). In
addition, the file contains clippings of letters to the editors of local papers advocating racial
profiling that included the following statements: Call it racial profiling but if there are 12
10
million illegals that fit a profile then it is what it is, Id say they should be looking for
11
Mexicans, and Hooray for profiling. (Doc 427, Ex. 18; Doc. 428, Ex. 37). Arpaio also
12
underlined key phrases in an email regarding this case which referred to the Honorable Mary
13
Murguia, the original judge in this matter, as the token Hispanic female judge that sits in
14
your so-call [sic] federal court in Sand Land, and suggested that she had made rulings in
15
this case in exchange for Dinero? Favors? Human smuggling money? He ordered three
16
copies of the email made for himself, and had it forwarded to four other staff members. (Doc.
17
427, Ex. 16).
18
The available documentary evidence could further lead a reasonable finder of fact to
19
conclude that MCSOs special operations were conducted in response to citizen requests that
20
it engage in law enforcement operations based on race. The department received a number
21
of citizen communications asking MCSO to conduct special operations in places where the
22
writers described Latinos congregating, but did not provide evidence of a crime. (Doc. 428,
23
Exs. 2526, 28). The letters were forwarded, sometimes by Sheriff Arpaio, to people who
24
planned the special operations, among them Chief Brian Sands, with annotations that
25
included phrases such as for our operations, and I will be going to Mesa. (Id.). MCSO
26
subsequently conducted special operations in the areas described by the letter writers and the
27
Sheriffs annotations. (Doc. 453 6568). Chief Sands stated in a deposition that if Sheriff
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Arpaio instructed him to conduct special operations in a particular location, he would do so.
(Doc. 453, Ex. 14 at 75, ln 17). In addition, MCSO officers, including officers associated
with the special operations, circulated emails that compared Mexicans to dogs, ridiculed
stereotypical Mexican accents, and portrayed Mexicans as drunks. ( Doc. 431, Exs. 96, 103,
105). From the totality of this evidence, along with the adverse inferences that the finder of
fact will be permitted to make at trial, it would be possible for a fact finder to conclude that
the MCSO engaged in an intentional policy of racial discrimination.
A finder of fact here could determine that MCSO engaged in a policy that had both
a discriminatory effect and a discriminatory intent. Defendants challenge Plaintiffs expert
10
report supporting discriminatory effect, but fail to show that no reasonable fact finder could
11
credit it. (Doc. 424; Doc. 453 233). If a fact finder determines that MCSO had a policy of
12
conducting special operations solely in response to citizen complaints that referred to racial
13
characteristics rather than reports of crime, as it could based on this evidence, MCSO
14
engaged in intentional discrimination. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (Private
15
biases may be outside the reach of the law, but the law cannot, directly or indirectly, give
16
them effect.); see also U.S. v. City of Yonkers, 96 F.3d 600, 612 (2nd Cir. 1996) (Even
17
assuming . . . that the actions of the municipal officials are only responsive . . . the Equal
18
Protection Clause does not permit such actions where racial animus is a significant fact or
19
in the community position to which the city is responding.). Cf. Watkins v. U.S. Army, 875
20
F.2d 699, 730 (9th Cir. 1989) ([E]qual protection doctrine does not permit notions of
21
majoritarian morality to serve as compelling justification for laws that discriminate against
22
suspect classes.).
23
Further, if a fact finder determines the MCSO operations were conducted based upon
24
the citizen emails and as described publicly by Sheriff Arpaio even after MCSO lost its
25
287(g) authority, Plaintiffs would not be able to prevent being stopped by conduct[ing] their
26
activities within the law. Lyons, 461 U.S. at 103. They could invite investigation by
27
speaking Spanish in restaurants, by dressing like day laborers, or by looking like they
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came from another country. (Doc. 428, Exs. 2526, 28; Doc. 426, Ex. 4 at 274, ln 23).
Moreover, the fact that the individual Plaintiffs have not been stopped again during the
course of this litigation does not preclude standing to seek injunctive relief. In Hodgers-
Durgin, the plaintiffs drove every day through a region in which INS officers were
patrolling all over the place. 199 F.3d at 1044. They lacked standing not because they had
only been stopped once in ten years, but more precisely because a single stop provided no
evidence that INS had a policy of racial profiling. Id. They had produced no additional
evidence that INS racially profiled anyone, and the single stop, even if improper, did not
demonstrate that a policy existed. As discussed above, Plaintiffs here have presented
10
sufficient evidence aside from the stops themselves.
11
If such a policy exists, it presents a sufficient likelihood that the named Plaintiffs
12
will suffer ongoing harm. Continued, ongoing harm results from a pattern or practice of
13
constitutional violations or policies promoting constitutional violations, including racial
14
profiling.Committee for Immigrant Rights, 644 F. Supp. 2d at 1195 (N.D. Cal 2009); see
15
also Thomas, 978 F.2d at 508. The named Plaintiffs have standing to seek injunctive relief
16
for their Equal Protection claims.
17
Given the fact that the Plaintiffs involved in the stops have standing, it is not
18
necessary to determine whether Somos America has standing as well. The general rule
19
applicable to federal court suits with multiple plaintiffs is that once the court determines that
20
one of the plaintiffs has standing, it need not decide the standing of the others. Preminger
21
v. Peake, 552 F.3d 757, 764 (9th Cir. 2008) (quoting Leonard v. Clark, 12 F.3d 885, 888 (9th
22
Cir. 1993)).
23
The fact that Plaintiffs have demonstrated that there is a genuine issue of material fact
24
as to whether MCSO has a racial profiling policy not only grants them standing, but
25
precludes a finding in favor of Defendants summary judgment motion with regards to Claim
26
One and Claim Four. However, it would be equally improper to find for Plaintiffs at this
27
stage. Defendants allege that they do not consider race when making traffic stops or deciding
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where to conduct special operations. Both Chief Sands and Lieutenant Sousa state that the
operations are conducted based upon multiple criteria, including crime data, rather than
solely on citizen complaints. (Doc. 453, Ex. 14 at 79, ln 1422; Doc. 453, Ex. 5 at 88, ln
1722). While the deposition statements by MCSO deputies that they had alternate reasons
for conducting operations cannot form the sole basis for granting summary judgment in their
favor, Villiarimo, 281 F.3d at 1061 (no genuine issue exists when the only evidence
presented is uncorroborated and self-serving testimony) (internal quotations omitted), intent
to discriminate is required to establish an equal protection violation, and the states of mind
of MCSO officers is therefore relevant to Claims One and Four. The officers statements
10
about their intent raise sufficient issues of material fact to defeat Plaintiffs motion for
11
summary judgment. Lieutenant Sousa, for example, claims that complaints of people
12
stepping into the street and littering, while not mentioned in the MCSOs undercover
13
investigation of the Cave Creek church, were relevant factors in deciding to conduct special
14
operations there on September 27, 2007. (Doc. 453, Ex. 5 at 100, ln 813). Determining
15
whether MCSO was relying in some degree upon the citizen complaints that contained no
16
description of criminal activity, and therefore had a policy of racial discrimination, demands
17
a sensitive inquiry into such circumstantial and direct evidence of intent as may be
18
available. Arlington Heights, 429 U.S. at 266. Such an inquiry is best conducted by a finder
19
of fact at trial, not by the court at summary judg2ment. See Sluimer v. Verity, Inc., 606 F. 3d
20
584, 587 (9th Cir. 2010) (Credibility determination, the weighing of the evidence, and the
21
drawing of legitimate inferences from the facts are . . . not those of a judge . . . ruling on a
22
motion for summary judgment.) (quoting Anderson, 477 U.S. at 255).
23
24
C. Class Certification
Plaintiffs move for class certification on all of their claims. A class may not be certified
25 unless it meets each of the four requirements of Rule 23(a), ordinarily referred to as
26 numerosity, commonality, typicality, and adequacy of representation. FED. R. CIV. P. 23(a).
27 In addition, a class action must satisfy at least one of the three requirements of Rule 23(b), one
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1 of which is that the party opposing the class has acted or refused to act on grounds that apply
2 generally to the class, so that final injunctive relief or corresponding declaratory relief is
3 appropriate regarding the class as a whole. FED. R. CIV. P. 23(b)(2). The party seeking
4 certification bears the burden of demonstrating that it has met all of these requirements, and
5 the trial court must conduct a rigorous analysis to determine whether it has met that
6 burden. Zinser v. Accufix Research Inst., 253 F.3d 1180, 1186 (9th Cir. 2001) (quoting
7 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1233 (9th Cir. 1996)). Defendants claim that
8 class certification is not appropriate because Plaintiffs lack standing to seek injunctive relief
9 and because their claims fail as a matter of law. (Doc. 444 at 67). As discussed above, the
10 named Plaintiffs have established that they have standing to seek injunctive relief on their
11 Search and Seizure claims because MCSO has publicly stated that it may stop persons based
12 solely on a belief that they are not legally present in the country, and on their Equal Protection
13 claims because they have brought forth evidence suggesting that MCSO engages in a policy
14 or practice of racial profiling. LaDuke, 762 F.2d at 1326. Should it be determined after trial
15 that Plaintiffs lack standing to seek injunctive relief on any claim, the class may then be de16 certified or partially de-certified. FED. R. CIV. P. 23(c)(1)(C).
17
Defendants do not dispute that Plaintiffs proposed class is sufficiently numerous, but
18
claim that Plaintiffs have not demonstrated commonality, typicality, or adequacy of
19
representation. (Doc. 444 at 713). They further claim that Plaintiffs have not demonstrated
20
that the class satisfies the requirements of Rule 23(b)(3). (Doc. 444 at 1314). Finally,
21
Defendants claim that the proposed class is overbroad. (Doc. 444 at 1416).
22
To satisfy the commonality prong, class members need not allege that they have all
23
suffered a violation of the same provision of law, but their claims must depend upon a
24
common contentionfor example, the assertion of discriminatory bias on the part of the
25
same supervisor. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011). Although
26
the factual circumstances of the individual stops involving the named Plaintiffs differ, they
27
claim generally that MCSO has a policy of racial profiling, in violation of the Fourteenth
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Amendment, which leads officers to detain individuals without reasonable suspicion that they
committed a crime, in violation of the Fourth Amendment. (Doc. 26 24). In a civil rights
suit, commonality is satisfied where the lawsuit challenges a system-wide practice or policy
that affects all of the putative class members. Armstrong v. Davis, 275 F.3d 849, 868 (9th
Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005)
(citing LaDuke, 762 F.2d at 1332). As other courts have noted, commonality in cases alleging
racial profiling is satisfied when the injuries complained of by the named plaintiffs allegedly
resulted from the same unconstitutional practice or policy that allegedly injured or will injure
the proposed class members. Daniels v. City of New York, 198 F.R.D. 409, 418 (S.D.N.Y.
10
11
2001).
Likewise, differences in the subjective motivations between MCSO officers conducting
12 stops does not defeat typicality of claims alleging a departmental policy of violating
13 constitutional rights, whether under the Fourth or the Fourteenth Amendments. In assessing
14 typicality, the court considers the nature of the claim or defense of the class representative,
15 and not . . . the specific facts from which it arose or the relief sought. Winkler v. DTE, Inc.,
16 205 F.R.D. 235, 241 (D. Ariz. 2001) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497,
17 508 (9th Cir. 1992)). Defendants further argue that the individual claims are subject to unique
18 defenses because some officers were acting pursuant to their authority under 287(g) of the
19 INA. (Doc. 444 at 12). It is true that state officers acting pursuant to 287(g) shall be
20 considered to be acting under color of Federal authority for purposes of determining the
21 liability, and immunity from suit, of the officer or employee in a civil action brought under
22 Federal or State law, but acting under color of federal law does not provide them an adequate
23 defense to alleged Constitutional violations. 8 U.S.C. 1357(g)(8) (2006); see generally
24 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
25 (1971). At any rate, no MCSO officer has had 287(g) authority since October of 2009, and
26 none could assert this defense going forward; since Plaintiffs seek only prospective relief,
27 these potential defenses are irrelevant. Moreover, MCSO concedes that it believes it has legal
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1 authority to detain persons, if only briefly, to investigate possible criminal violations based
2 only on a reasonable suspicion that they may be in the country without authorization.
3 Plaintiffs claims that they were and continue to be subject to an unconstitutional practice or
4 policy by MCSO are typical of class members claims.
5
Representation is adequate when named plaintiffs will pursue the action vigorously
on behalf of the class and when they have no conflicts of interest with other class members.
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Defendants claim that
Plaintiffs have a conflict of interest because the named Plaintiffs lack standing; they lack
a valid Fourth Amendment claim under the facts presented; and they lack a valid intentional
10
discrimination claim. (Doc. 444 at 13). These substantive arguments are addressed
11
elsewhere in this order, and they lack merit. The failure of the Rodriguezes underlying
12
Fourth Amendment claim does not create a conflict of interest with putative class members,
13
especially when they, like other named representatives, argue that MCSO does not have
14
authority to stop people to the extent that MCSO asserts. Defendants do not challenge
15
Plaintiffs contention that they will prosecute the case vigorously and on behalf of the class.
16
Plaintiffs have met the requirements of Rule 23(a).
17
Plaintiffs may seek certification under Rule 23(b)(2) only when a single injunction
18
or declaratory judgment would provide relief to each member of the class. Wal-Mart, 131
19
S.Ct. at 2557. The rule does not require, as does Rule 23(b)(3), that common issues of law
20
and fact predominate, but only that class members complain of a pattern or practice that
21
is generally applicable to the class as a whole. Walters v, Reno, 145 F.3d 1032, 1047 (9th
22
Cir. 1988). Moreover, [e]ven if some class members have not been injured by the
23
challenged practice, a class may nevertheless be appropriate. Id. Plaintiffs have alleged a
24
prototypical Rule 23(b)(2) suit, one in which a single injunction or declaratory judgment
25
would provide all class members relief from MCSOs allegedly unconstitutional policy. Wal-
26
Mart, 131 S.Ct at 2257. Defendants do not challenge Plaintiffs argument that class
27
certification is proper under Rule 23(b)(2), but instead claim that Plaintiffs have not met the
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predominance requirement of Rule 23(b)(3). This rule, however, is not applicable to the
nature of the class sought to be certified. Walters, 145 F.3d at 1047 (Although common
issues must predominate for class certification under Rule 23(b)(3), no such requirement
exists under 23(b)(2).). Plaintiffs have demonstrated that their proposed class meets the
requirements for certification.
Finally, Defendants challenge the class as overbroad. (Doc. 444 at 1416). The rule
that class definitions not be overbroad is designed to protect absentees. Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 620 (1997). When a class is certified under Rule 23(b)(2),
notice need not be given to individual class members, and members do not have the
10
opportunity to opt-out of the litigation. FED. R. CIV. P. 23(c)(2). There remains a risk after
11
a Rule 23(b)(2) certification, therefore, that individuals who may never learn of the
12
pendency of [the] case might encounter difficulty in pursuing meritorious individual
13
litigation in the future, on the basis of lis pendens, res judicata, or collateral estoppel. Rice
14
v. City of Philadelphia, 66 F.R.D. 17, 21 (E.D. Pa. 1974). Regarding the equitable relief
15
sought by Plaintiffs in Count One and Count Four, such concerns are mitigated and it is
16
usually unnecessary to define with precision the members of a 23(b)(2) class. Id. at 19; see
17
also Crawford v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994) (In a Rule 23(b)(2) class
18
action for equitable relief, the due process rights of absent class members generally are
19
satisfied by adequate representation alone.).
20
The Fourth Amendment class, however, presents an overbreadth issue that the Equal
21
Protection class does not. In considering the preclusive effect of class actions, the general
22
rule is that a class action suit seeking only declaratory and injunctive relief does not bar
23
subsequent individual damage claims by class members, even if based on the same events.
24
Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996). Here, however, Ortega-Melendres was
25
originally seeking damages in addition to injunctive relief, and only dropped his damages
26
claims in the amended complaint. (Doc. 1 at 20; Doc. 26 at 2930). Since class members may
27
not opt-out of a 23(b)(2) class, individuals who may have legitimate damages claims against
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MCSO for violating the Fourth Amendment could potentially face difficulty pursuing their
claims because courts could find that the class members initial damages claims may be res
judicata to their suit. No class member other than Ortega-Melendres ever sought damages
in this action. Further, the Ninth Circuit has found that class notice, rather than the original
complaint, determines whether class actions certified under Rule 23(b)(2) are res judicata
to subsequent damages claims. Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir.
2000) ([N]otice in [the earlier suit] was not sufficient under Rule 23 to preclude monetary
claims in later suits, for the class in [the earlier suit] was certified and given notice as a Rule
23(b)(2) injunction class action.). In other circuits, class actions that have been certified
10
under Rule 23(b)(2), even when they contain ancillary damages claims that are ruled on in
11
litigation, have been found not to bar subsequent damages claims by class members who
12
were not notified that participation in the class action would preclude a subsequent
13
individual damage action. Wright v. Collins, 766 F.2d 841, 848 (4th Cir. 1985). The class
14
in this case is being certified pursuant to Rule 23(b)(2), and at this point in the litigation no
15
damages claims are being sought. No class is certified as to any damages claim and this
16
litigation does not preclude future damages claims against MCSO or its officers.
17
In a case seeking injunctive relief, [t]he fact that the class includes future members
18
does not render the class definition so vague as to preclude certification. Probe v. State
19
Teachers Retirement Sys., 780 F.2d 776, 780 (9th Cir. 1986). Moreover, the class definition
20
is not overbroad in a case alleging racial discrimination when the Plaintiffs, as here, define
21
the class by the activities of defendants. Intl. Molders and Allied Workers Local Union No.
22
164 v. Nelson, 102 F.R.D. 457, 464 (N.D. Cal 1983).14
23
14
27
The class certified in International Molders consisted of all persons of Hispanic

or other Latin American ancestry, residing or working within the jurisdiction of the San
Francisco District Office of the United States Immigration and Naturalization Service (INS)
and/or the Livermore Border Patrol Sector, who have in the past, are now, or may in the
future be subjected to the policies, practices and conduct of INS and/or the Border Patrol
during the course of INS area control operations directed at places of employment. 102
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25
26
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The Plaintiffs proposed class is therefore certified as All Latino persons who, since
January 2007, have been or will be in the future, stopped, detained, questioned or searched
by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area
in Maricopa County, Arizona. As in all class actions, the Court has the right to tailor or
amend the class definitions should future events suggest that it is appropriate to do so. FED.
R. CIV. P. 23(c)(1)(C).
D. Motion for Sur-Reply
Defendants have filed a motion for leave to file a sur-reply, claiming that Plaintiffs
presented new evidence in their reply supporting their partial summary judgment motion.
10
(Doc. 469). Since Plaintiffs partial summary judgment motion has been denied, Defendants
11
motion is dismissed as moot.
12
E. Relief
13
Any justification the MCSO had in detaining Ortega-Melendres relied solely on
14
DiPietros status as a 287(g)-certified officer, a status that no MCSO officer currently has.
15
Regardless of whether federal law pre-empts specific provisions of SB 1070, states do not
16
have the inherent authority to enforce the civil provisions of federal immigration law. U.S.
17
v. Arizona, 641 F.3d at 362. Even knowledge, let alone reasonable suspicion, that a person
18
is not legally in the country does not provide probable cause that the person has violated
19
federal criminal immigration law or state criminal law. Martinez-Medina, ___ F.3d at ___,
20
2011 WL 855791, at *6; A.R.S. 13-2319(A).
21
Therefore, for the reasons previously stated, the certified class is presently entitled to
22
partial injunctive relief enjoining Defendants from detaining any person based solely on
23
knowledge, without more, that the person is in the country without lawful authority. To be
24
clear, the Court is not enjoining MCSO from enforcing valid state laws, or detaining
25
individuals when officers have reasonable suspicion that individuals are violating a state
26
27
28
F.R.D. at 460.
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criminal law. Instead, it is enjoining MCSO from violating federal rights protected by the
United States Constitution in the process of enforcing valid state law based on an incorrect
understanding of the law.
A policy of detaining people pursuant to laws that MCSO has no authority to enforce,
or detaining them without reasonable suspicion that they are violating laws it can enforce
constitutes continuing, present adverse effects and therefore merits injunctive relief.
OShea, 414 U.S at 496. MCSO and its officers need not be enjoined from detaining
individuals in order to investigate civil violations of federal immigration law, because they
concede that they have such authority. MCSO and all of its officers are, however, enjoined
10
from detaining any person based on knowledge, without more, that the person is unlawfully
11
present within the United States. It follows of course that MCSO may not stop any person
12
based on reasonable suspicion or probable cause, without more, that the person is unlawfully
13
present within the United States. Nor may they seek to develop reasonable suspicion that a
14
person is violating state law by detaining them to ask questions in the absence of reasonable
15
suspicion that they are committing a crime.
16
While MCSO officers can, of course, continue to investigate federal and state criminal
17
law, including immigration-related criminal law, to stop people pursuant to such law, officers
18
must have reasonable suspicion that the person is violating that law, or probable cause that
19
the person has violated that law. MCSO does not have reasonable suspicion that a person is
20
violating or conspiring to violate the state human smuggling law or any other state or federal
21
criminal law because it has knowledge, without more, that the person is in the country
22
without legal authorization.
23
CONCLUSION
24
Plaintiffs are granted partial summary judgment on their Fourth Amendment claims
25
to the extent that they claim MCSOs stated position that it has the authority to detain persons
26
based on reasonable suspicion, without more, that they are not legally present in the country
27
will cause them future harm. Material questions of fact exist as to whether the underlying
28
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stops of Ortega-Melendres and Nieto and Meraz were justified under the authority MCSO
had at the time, so summary judgment on those claims is inappropriate. The stop of the
Rodriguezes was objectively supported by probable cause, and was not prolonged even if
Deputy Radcliffe requested their social security cards, so partial summary judgment is
granted to Defendants on the Rodriguezes underlying search and seizure claims.
Plaintiffs have demonstrated that there is a genuine issue of fact as to whether MCSO
engages in a policy or practice of considering race during its operations. They therefore have
standing to seek equitable relief for their equal protection claims, which therefore cannot be
dismissed at the summary judgment phase. Because the question of whether MCSO engaged
10
in a policy of intentional discrimination requires credibility determinations best suited to a
11
trial, however, Plaintiffs will also not be granted summary judgment on their equal protection
12
claims.
13
Plaintiffs have met their burden for class certification under Rule 23. The litigation
14
is certified as a class action, with the following certified class: All Latino persons who,
15
since January, 2007, have been or will be in the future, stopped, detained, questioned or
16
searched by MCSO agents while driving or sitting in a vehicle on a public roadway or
17
parking area in Maricopa County, Arizona.
18
Since Plaintiffs Motion for Summary Judgment is denied even considering the record
19
presented, there is no need to consider Defendants Motion to File a Sur-Reply, which is
20
dismissed as moot.
21
MCSO acknowledges that enforcing immigration law is one of the purposes of the
22
special operations. Local law enforcement agencies, such as the MCSO, may not enforce
23
civil federal immigration law. Defendants are therefore enjoined from detaining individuals
24
in order to investigate civil violations of federal immigration law, including those regulating
25
authorized entry, length of stay, residence status, and deportation. U.S. v. Arizona, 641 F.3d
26
at 362. They are further enjoined from detaining any person based on actual knowledge,
27
without more, that the person is not a legal resident of the United States.
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IT IS THEREFORE ORDERED:
1) Defendants Motion for Summary Judgment (Doc. 413) is granted in part and
denied in part. Summary judgment is granted with regards to Plaintiffs Jessika and David
Rodriguezs underlying claims under Claim Two and Claim Three, which are hereby
dismissed. Summary judgment is denied with regards to the underlying claims of Plaintiffs
Melendres, Nieto, and Meraz under Claim Two and Claim Three. Defendants motion for
summary judgment is denied with regards to Claim One and Claim Four.
2) Plaintiffs Motion for Class Certification (Doc. 420) is granted. The litigation is
certified as a class action, with the following defined class for the purposes of the equal
10
protection claim: All Latino persons who, since January, 2007, have been or will be in the
11
future, stopped, detained, questioned or searched by MCSO agents while driving or sitting
12
in a vehicle on a public roadway or parking area in Maricopa County, Arizona.
13
14
3) Plaintiffs Motion for Partial Summary Judgment on Claim One and Claim Four
(Doc. 421) is denied.
15
4) Plaintiffs Motion for Summary Judgment on Claim Two and Claim Three (Doc.
16
490) is denied in part as it relates to the underlying claims, and granted in part as it relates
17
to future enforcement actions of the MCSO.
18
4) Defendants Motion for Leave to File Sur-Reply (Doc. 469) is dismissed as moot.
19
5) MCSO and all of its officers are hereby enjoined from detaining any person based
20
only on knowledge or reasonable belief, without more, that the person is unlawfully present
21
within the United States, because as a matter of law such knowledge does not amount to a
22
reasonable belief that the person either violated or conspired to violate the Arizona human
23
smuggling statute, or any other state or federal criminal law.
24
25
Dated this 23rd day of December, 2011
26
27
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(74 of 866)
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WO
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4
5
6
8
9
10
11
12
13
14
15
Manuel de Jesus Ortega Melendres et al.,)

)
)
Plaintiffs,
)
)
vs.
)
)
)
Arizona, et al.
)
)
Defendants.
)
)
ORDER
16
17
The Court is in receipt of Plaintiffs letter dated June 14, 2012. After considering that
18
letter the Court concludes that further action by the Court is necessary. In light of the
19
following facts and the pending trial date, the Court will schedule a conference to determine
20
whether further proceedings will be necessary before trial.
21
FACTUAL BACKGROUND
22
This lawsuit was filed on December 12, 2007 on behalf of Manuel de Jesus Ortega
23
Melendres and others who allege that the Maricopa County Sheriffs Office (MCSO)
24
engages in a policy of racial profiling in violation of the Fourteenth Amendment. (Doc. 1).
25
The case was originally before the Honorable Mary H. Murguia. (Id.). At that time, Plaintiffs
26
were represented by attorneys from Ballard Spahr Andrews & Ingersoll, LLP. (Id.). On May
27
2, 2008, the attorneys from Ballard Spahr withdrew, and with the consent of Judge Murguia,
28
attorneys from Steptoe & Johnson LLP (the Steptoe Attorneys) were substituted. (Doc. 16).
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On July 15, 2009, Judge Murguia issued an order granting Defendants Motion to Recuse.
Describing the issue as a close call, Judge Murguia found that a reasonable person could
question her impartiality because her identical twin sister was the president and CEO of an
organization that had published highly disparaging material about one party, and therefore
Judge Murguia recused herself. The case was subsequently assigned to this Court. (Doc.
144).
This Court thereafter conducted various proceedings involving discovery disputes
between the parties. Pursuant to these proceedings, on February 10, 2010, the Court issued
an order directing Defendants to pay for attorneys fees and costs necessitated by the re-
10
deposition of a number of the representatives of the Defendant. (Doc. 261 at 13).
11
On June 17, 2010, the Steptoe Attorneys withdrew from the case with the Courts
12
permission, and attorneys from the Redwood Shores, California office of Covington &
13
Burling LLP (the Covington Attorneys) were substituted for them. (Doc. 313). When the
14
Covington Attorneys were substituted for the Steptoe Attorneys, the Court considered
15
whether withdrawing from the case was appropriate under 28 U.S.C. 455(a). This statute
16
requires that [a]ny justice judge, or magistrate of the United States shall disqualify himself
17
[or herself] in any proceeding in which his [or her] impartiality might reasonably be
18
questioned. 28 U.S.C. 455(a) (2006).
19
This is the same requirement set forth in the Code of Conduct for United States Judges
20
and the commentary thereto. The canons state that a judges impartiality might reasonably
21
be questioned when the spouse of a person related to the judge is known by the judge to
22
have an interest that could be substantially affected by the outcome of the proceeding. Code
23
of Conduct for United States Judges, Canon 3C(1)(d)(iii). Keith Teel, a partner in the
24
Washington D.C. office, is married to the Courts sister.
25
The commentaries to the canons note that [t]he fact that a lawyer in a proceeding is
26
affiliated with a law firm with which a relative of the judge is affiliated does not itself
27
disqualify the judge. Id., Commentary to Canon 3C(1)(d)(iii). The commentary affirms,
28
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however, that the judge should withdraw if the relative is known to have an interest that
could be substantially affected by the outcome of the proceeding. Id. The commentary
offers no further guidance defining what constitutes an interest substantially affected by the
outcome of the proceeding.
At the time the Court reviewed some caselaw and some advisory opinions to
determine what would constitute an interest that could be substantially affected by the
outcome of the proceeding. While emphasizing that such determinations must be made on
a case-by-case basis, judicial ethics committees have identified various factors that should
be considered in determining whether a relative has such an interest. While varied, these
10
general factors include whether the relative is a partner in a law firm, the size of the law firm,
11
whether the relative would receive a commission, contingency or bonus from the case, the
12
size of the community, the nature of the fee being sought, and the administrative burden of
13
the recusal on the Courts. See, e.g., Colo. Supreme Court Judicial Ethics Advisory Board,
14
Op. 2005-02 (Jun. 3, 2005) (advising withdrawal from all cases brought by a five-person firm
15
in which the judges brother-in-law was an equity partner in a rural jurisdiction with a
16
closely-knit legal community). Other professional ethics committees have come to similar
17
conclusions, outlining slightly different multi-factor tests but emphasizing that the evaluation
18
must ultimately be made on a case-by-case basis. See, e.g., Ill. Judicial Ethics Comm., Op.
19
94-18 (Aug. 25, 1994) (recommending that a judge consider 1. The nature of the case, in
20
particular its financial or other impact on the relatives law firm; 2. The relatives position
21
in the firm as a partner, shareholder, associate, or of counsel; and 3. The size of the firm),
22
Wisc. Judicial Conduct Advisory Comm. Op. 00-01 (Jan. 18, 2011) (finding that a judge
23
need not withdraw when cases are brought by a firm in which his niece practices).
24
The Courts brother-in-law, Keith Teel, is and was to the Courts knowledge, a partner
25
in Covington & Burlings Washington D.C. office, where he is an insurance, patent, and
26
product liability litigator who represents tobacco, pharmaceutical, alcohol and other
27
manufacturers and trade associations. See Biography of Keith A. Teel, available at
28
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http://www.cov.com/kteel.1 When a relative has an ownership interest in a firm, he or she has
a greater interest in the outcome of a judicial proceeding, than does an associate or an
employee of the firm. In most cases this factor is dispositive of whether a relative has a
substantial interest.2 But, as the advisory opinions and common sense dictate, the extent of
even a partners interest is affected by the size of the firm itself and the extent of its
operations, as well as other factors. As the Judicial Ethics Committees of several states have
observed, in noting the factors to be considered when determining whether a relatives
interest in a case was substantial, the size of the law firm in question and the number and
geographic spread of its offices, is relevant to this inquiry with the individual interests of
10
firm members being diluted, under normal circumstances, the greater the size of the firm.
11
Tenn. Judicial Ethics Comm., Op. 04-01 (Feb. 17, 2004); see also Ill. Advisory Opinion 94-
12
18 ([I]f the relative is a partner in a two-person law firm, and the case could generate
13
substantial attorneys fees, the relatives interest is more than de minimis. On the other hand,
14
if the relative is a beginning associate in a 200-person law firm, and the case involves a fee
15
of only a few thousand dollars, the relatives interest is de minimis. In most cases the facts
16
will fall somewhere between these extremes), Wash. Ethics Advisory Comm. Op. 88-12
17
(Aug. 30, 1988) ([t]he size of the firm or the position of the lawyer-spouse as an associate
18
or partner are not in themselves controlling but may be factors to be considered by the judge
19
in determining whether the judges impartiality might reasonably be questioned.); Colo.
20
21
22
23
Although at one time the Courts sister was also a member of Covington & Burling,
at the time the Court made its evaluation, and through the present, the Courts sister had not
worked at Covington & Burling for over ten years, and no longer had any interest in the firm.
2
27
In 2009, The United States Committee on Codes of Conduct issued Advisory

Opinion No. 58, in which the Committee advises that if the relative . . . is an equity partner
in a law firm that represents a party, the judge must recuse, because it concludes that an
equity partner in a law firm generally has an interest that could be substantially affected by
the outcome of the proceeding in all cases where the law firm represents a party before the
court. United States Comm. on Codes of Conduct. Op. 58 (June 2009). The Court was not
aware of this advisory opinion at the time of the substitution of the Covington Attorneys.
28
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Advisory Opinion 05-2 (emphasizing the size of the firm as a factor to consider when
evaluating whether to withdraw).
Covington and Burling is a very large international law firm. At the time the Court
looked at its website, it had approximately two hundred and fifty partners and several times
more than that number of attorneys who were employed by the firm either as associates or
affiliated in of counsel positions. In addition to its Redwood Shores and Washington D.C.
offices, the firm has offices in Beijing, Brussels, London, New York, San Diego, and San
Francisco.
In this case Plaintiffs seek only injunctive relief and not damages. It is the Courts
10
understanding that, pursuant to statute, Covington may seek reimbursement for the
11
reasonable time and costs it expends on Plaintiffs behalf only if Plaintiffs are determined to
12
be the prevailing part[ies] in this matter. 42 U.S.C. 1988(b) (2006). Further, Covington
13
is the third national law firm in succession to assume representation on behalf of the
14
Plaintiffs. Thus, in its consideration, the Court determined that even if Covington were
15
ultimately determined to be entitled to seek reimbursement of the reasonable attorneys fees
16
it expended in this matter, and even assuming that Covingtons reimbursement scheme
17
awarded significant compensation credit outside of its Redwood Shores office for any
18
reimbursement of reasonable expenses awarded to its attorneys in the Redwood Shores
19
office, that amount would be divided among the approximately two-hundred and fifty
20
Covington partners as well as any amounts to be paid in bonuses to associates and of counsel
21
attorneys. Even in such a best-case scenario for Covington, the Court determined that a
22
reasonable person with knowledge of all the facts, Pesnell v. Arsenault, 543 F.3d 1038,
23
1043 (9th Cir. 2008) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.
24
1997), would conclude that the interest that the Courts brother-in-law has in his salary
25
would not be substantially affected by a reimbursement or non-reimbursement of reasonable
26
fees in this case, and would not assume that the Courts judgment could be affected by the
27
remote possibility of enhancing a relatives compensation by such a small and speculative
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amount.
Courts have not required recusal when a judge or family member has an interest in the
litigation that is remote, contingent, or speculative. In re Drexel Burnam Lambert Inc., 861
F. 2d 1307, 1313 (2d Cir. 1998). The Ninth Circuit affirmed a decision not to recuse by a
judge whose spouse sat on the board of a legal aid society which would benefit from a cy
pres distribution. Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011). Other circuits have
affirmed denial by district courts of motions requesting recusal when a judges spouse or
relative had a connection to a firm representing a party in the litigation. See In re Medtronic,
Inc. Sprint Fidelis Leads Products Liability Litigation, 601 F. Supp. 2d 1120 (D. Minn. 2009)
10
(order denying recusal affirmed where judges son was a shareholder in the law firm
11
representing a party but practiced in a different area); ClearOne Communications, Inc. v.
12
Bowers, 643 F.3d 735 (10th Cir. 2011) (order denying recusal affirmed when judges spouse
13
was of counsel to the firm that often represented one of the parties, although the firm did not
14
represent the party in the matter at hand).
15
Nor could the court in its deliberation identify any other substantial interest of Mr.
16
Teel that would be affected. Mr. Teel was not in a similar practice group, nor was he in the
17
same office as the attorneys for the firm who were appearing before the Court. He was and
18
is, in fact, officed across the country. Further, to the extent that the Court did not believe that
19
withdrawal was necessary, it considered not only the fact that it could not identify any
20
interest of Mr. Teels that would be substantially affected by the outcome of the case, but
21
also the need for this case to proceed and the possible administrative burden on proceeding
22
if the case was again transferred. Given the emergence of national law firms in this country,
23
and such firms being those willing to undertake Plaintiffs representation in this case, and the
24
history of recusal and delay that had already occurred, the Court also determined that
25
excessive caution could again unduly delay presentation of the case, or unduly limit the pool
26
of judges available to hear the matter.
27
28
Based upon this evaluation and the commentary to the Canon, the Court felt that
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withdrawal was not warranted, and continued to hear the case. In making this determination,
the Court did not confer with Mr. Teel or Ms. Snow, with whom it has never discussed this
issue. Further, however, the Court did not inform the parties of its deliberations. As one
ethics committee noted, while the canons do[] not contain a recommendation, let alone a
requirement that judges disclose information regarding disqualification, the Committee
nevertheless believes that such disclosure is the better practice. Ill. Judicial Ethics Comm.,
Op. 94-18. The Court agrees, and believes it would have been the better course to notify the
parties at the time of the substitution of the Covington Attorneys.
It is true that the June 14 letter, filed by Covington when the Redwood Shores lawyers
10
became aware of the Courts relation to Mr. Teel, confirms that Mr. Teel has not had nor will
11
he have involvement with the case. It also removes the possibility that Mr. Teel will have any
12
financial interest, even a speculative or small one, in Covingtons representation.
13
Nevertheless, the Court is disinclined to proceed with this matter without providing all
14
parties the opportunity to take whatever action they deem necessary to represent the interests
15
of their respective clients given the above information. Because such actions could
16
conceivably take more time than is currently available before trial, and involve additional or
17
supplemental proceedings, the Court wishes to confer with the parties concerning any actions
18
they may wish to take in light of the above information. The Court will therefore contact the
19
parties and set a status conference in this matter.
20
DATED this 19th day of June, 2012.
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22
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1
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Timothy J. Casey (#013492)

James L. Williams (#026402)
SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.
1221 East Osborn Road, Suite 105
Phoenix, AZ 85014-5540
Telephone: (602) 277-7000
Facsimile: (602) 277-8663
timcasey@azbarristers.com
Counsel for Defendants Joseph M. Arpaio and
the Maricopa County Sheriffs Office
6
7
8
9
10
Thomas P. Liddy (#019384)

MARICOPA COUNTY ATTORNEYS OFFICE
Civil Services Division
222 N. Central, Suite 1100
Phoenix, Arizona 85004
602-506-8066
Co-counsel for Defendants Joseph M. Arpaio and
11
12
13
Manuel de Jesus Ortega Melendres, et al.,
14
No. CV 07-02513-PHX-GMS
Plaintiffs,
DEFENDANTS NOTICE OF WAIVER
ON LIMITED ISSUE
15
vs.
16
Joseph M. Arpaio, et al.,
17
Defendants.
18
19
20
21
22
23
In follow-up to the Status Conference heard this date (Dkt#540), defendants Joseph
M. Arpaio (Arpaio) and the Maricopa County Sheriffs Office (MCSO) hereby waive any
and all appeal issues regarding only the Courts potential bias, impartiality, and/or conflict of
interest as set forth in the Courts Order dated June 19, 2012 (Dkt#537). This waiver is
authorized by Arpaio on his own behalf and on behalf of the MCSO.
Arpaio and MCSO expressly reserve the right to appeal any other issue(s).
24
25
26
27
28
SCHMITT SCHNECK SMYTH
CASEY & EVEN, P.C.
Professional
Corporation
DATED this 29th day of June, 2012.

SCHMITT SCHNECK SMYTH CASEY & EVEN,
P.C.
/S/Timothy J. Casey
Timothy J. Casey
James L. Williams
______
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1221 E. Osborn Rd., Suite 105

Telephone: (602) 277-7000
Facsimile:(602) 277-8663
timcasey@azbarristers.com
Counsel for Defendants Joseph M. Arpaio and the
Maricopa County Sheriffs Office
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CASEY & EVEN, P.C.
Professional
Corporation
I hereby certify that on June 29, 2012, I electronically transmitted the attached
document to the Clerks Office using the CM/ECF System for filing and transmittal of a
Notice of Electronic Filing to the following CM/ECF registrants:
The Honorable G. Murray Snow
United States District Court
401 West Washington Street,
Phoenix, Arizona 85003-2158
Stanley Young, Esq.
Andrew Carl Byrnes, Esq.
COVINGTON & BURLING, LLP
333 Twin Dolphin Road
Redwood Shores, California 94065
Counsel for Plaintiffs
Daniel Pochoda, Esq.
Annie Lai, Esq.
ACLU FOUNDATION
OF ARIZONA
3707 N. 7th Street, Suite 235
Cecillia Wang
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
39 Drumm Street
Andre Segura, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS RIGHTS
PROJECT
New York, NY 10004
Nancy Ramirez, Esq.
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATION FUND
634 S. Spring Street, 11th Floor
2
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Thomas P. Liddy
Deputy County Attorneys, Civil Services Division
Maricopa County Attorneys Office
222 N. Central, Suite 1100
Co-counsel for Defendants Joseph M. Arpaio and
5
6
_/S/Eileen Henry
_____
Eileen Henry, Paralegal
SCHMITT SCHNECK SMYTH CASEY & EVEN, P.C.
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CASEY & EVEN, P.C.
Professional
Corporation
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EXHIBIT 4
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WO
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Manuel de Jesus Ortega Melendres et al.,)

)
)
Plaintiffs,
)
)
vs.
)
)
)
Arizona, et al.,
)
)
Defendants.
)
)
ORDER
16
17
The Court held a status conference in this matter to discuss issues implicating the
18
Courts obligations under 28 U.S.C. 455(a) (2006) and Canon 3C(1)(d)(iii) of the Code of
19
Conduct for United States Judges as informed by Advisory Opinion No. 58 of the United
20
States Committee on Codes of Conduct. For the reasons discussed below, the Court
21
determines that it may hear this case, and the case may proceed to trial.
22
BACKGROUND
23
This lawsuit was filed on December 12, 2007 on behalf of Manuel de Jesus Ortega
24
Melendres and others. (Doc. 1). The case was originally before the Honorable Mary H.
25
Murguia. (Id.). On July 15, 2009, Judge Murguia issued an order granting Defendants
26
Motion to Recuse. (Doc. 138). Describing the issue as a close call, Judge Murguia found
27
that a reasonable person could question her impartiality because her identical twin sister was
28
the president and CEO of an organization that had published disparaging material about one
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party, and therefore Judge Murguia recused herself. The case was subsequently assigned to
this Court. (Doc. 144). This Court conducted various proceedings and issued various orders
incident to the processing of the case, including orders granting Plaintiffs motions for
sanctions regarding discovery issues. (Docs. 227, 290).
On June 17, 2010, after some discovery sanctions were ordered but before specific
award values were calculated, and before a determination was made as to whether other
sanctions were appropriate, Plaintiffs attorneys from the law firm of Steptoe & Johnson LLP
(the Steptoe Attorneys) withdrew from the case with the Courts permission, and attorneys
from the Redwood Shores, California office of Covington & Burling LLP (the Covington
10
Attorneys) were substituted for them (Doc. 313). As is set forth in greater detail in its
11
previous order the Courts brother-in-law, Keith Teel, is a partner in the Washington, D.C.
12
office of Covington & Burling (Doc. 537). The Court thus considered at that time whether
13
it should recuse itself.
14
Federal statutory law requires that [a]ny justice judge, or magistrate of the United
15
States shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality
16
might reasonably be questioned. 28 U.S.C. 455(a) (2006). The Code of Conduct for
17
United States judges similarly requires a judge to disqualify himself or herself when the
18
judges impartiality might reasonably be questioned. Code of Conduct for United States
19
Judges, Canon 3C(1). The Code further specifies that a judges impartiality might reasonably
20
be questioned when the spouse of a person related to the judge is known by the judge to
21
have an interest that could be substantially affected by the outcome of the proceeding. Id.,
22
Canon 3C(1)(d)(iii). The commentaries to the canons note that [t]he fact that a lawyer in a
23
proceeding is affiliated with a law firm with which a relative of the judge is affiliated does
24
not itself disqualify the judge. Id., Commentary to Canon 3C(1)(d)(iii). But, the commentary
25
offers no further guidance defining what constitutes an interest substantially affected by the
26
outcome of the proceeding.
27
The Court at the time researched what it believed to be the relevant decisional law
28
under 455 and some opinions filed by state judicial ethics advisory committees that
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construed identical or similar ethical provisions for judges. In its research, the Court did not
locate or consider Advisory Opinion No. 58 of the United States Committee on Codes of
Conduct. The advisory opinions of the state courts reviewed by the Court that interpreted
identical provisions in state codes of conduct generally determined that there was no per se
rule with respect to when a relative of the judge affiliated with a law firm appearing before
him or her would have an interest that could be substantially affected by the outcome of the
proceeding, such that the judges recusal would be required. Rather, the state advisory
committees generally opined that such determinations be made on a case-by-case basis after
the court considered various factors. These factors generally included: whether the relative
10
was a partner in the firm, the size of the firm, whether the relative would receive a bonus
11
from the case, the size of the community, the nature of the fee being sought, and the
12
administrative burdens of recusal. See, e.g., Colo. Supreme Court Judicial Ethics Advisory
13
Board, Op. 2005-02 (June 3, 2005), Ill. Judicial Ethics Comm., op. 94-18 (Aug. 25, 1994)
14
Tenn. Judicial Ethics comm., Op. 04-01 (Feb. 17, 2004), Wash. Ethics Advisory Comm. Op.
15
88-12 (Aug. 30, 1988).
16
As set forth in greater detail in its previous order (Doc. 537), the Court considered that
17
its brother-in-law was a partner in the Washington D.C. office of Covington & Burling
18
engaged in a different practice area than Plaintiffs attorneys. The Court also considered that
19
Covington & Burling was an international firm with multiple offices, over 200 partners and
20
hundreds of other attorneys who were either associates or of counsel to the firm. The Court
21
also considered the nature of Covington & Burlings representation of the Plaintiff class, the
22
nature of the injunctive relief which was the sole relief sought by the class, the statutory
23
prerequisites on Covington & Burlings ability to seek reasonable reimbursement for the time
24
and costs its lawyers expended in representing the Plaintiffs, and the speculative and small
25
nature of any benefit that its brother-in-law could conceivably receive as a result of any
26
possible fee award to the firm. The Court also considered the administrative burden on the
27
Court in light of the national firms that had been willing to assume Plaintiffs representation,
28
and the possible resulting recusals. After having considered these factors, the Court
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concluded that a reasonable person with knowledge of all the facts, Pesnell v. Arsenault,
543 F.3d 1038, 1043 (9th Cir. 2008) (quoting United States v. Hernandez, 109 F.3d 1450,
1454 (9th Cir. 1997)) would not believe that the Courts brother-in-law had an interest in the
proceeding that could be substantially affected by its outcome. Thus, the Court continued to
hear the case.
Nevertheless, when Plaintiffs counsel recently advised the Court upon learning of
Mr. Teels relation, that Mr. Teel was unaware of the proceeding, and would receive no
distribution from it, the Court again reviewed the question. When it did, it located Advisory
Opinion No. 58 by the United States Committee on Codes of Conduct (June 2009). The
10
Court noticed a status conference on the matter and requested the parties to be ready to
11
discuss the extent, if any, to which Advisory Opinion No. 58 issued by the United States
12
Committee on Codes of Conduct in June of 2009, affects this Courts obligations under 28
13
U.S.C. 455(a) (2006).
14
At the hearing on June 29th, all parties argued that recusal in this matter was neither
15
mandated nor appropriate. All parties agreed that Advisory Opinion 58 was predicated on the
16
conclusion that an equity partner in a law firm generally has an interest that could be
17
substantially affected by the outcome of the proceeding. United States Comm. on Codes
18
of Conduct. Op. 58 (June 2009) (emphasis added). All parties further agree that such a
19
presumption would not be appropriately applied consistent with the applicable Canon when
20
no interest of a relative of the Court may be substantially affected. All parties agreed that
21
pursuant to the facts here, Mr. Teels interest would not be substantially affected by the
22
outcome of the proceeding, and that therefore no reasonable objective observer could
23
conclude that the judge would be impartial or biased based on his relationship to Mr. Teel.
24
ANALYSIS
25
1. Canon 3C(1)(d)(iii), Its Commentary and Advisory Opinion No. 58
26
In determining its ethical obligations, the Court is obliged to follow the text of the
27
Canons that make up the Code of Conduct for United States Judges. There is official
28
commentary that accompanies the Canons. That commentary specifies that the Canons are
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rules of reason, they should be applied consistently . . . in the context of relevant
circumstances. Code of Conduct for United States Judges, Commentary to Canon 1. As a
further interpretive aid, [t]he judicial conference has authorized its Committee on Codes of
Conduct to render advisory opinions about this Code only when requested by a judge to
whom this Code applies. Id., Introduction.
In those instances in which an advisory opinion requested by an individual judge in
one case would contradict, or exceed, the text of the Canon as applied to the facts of another,
the Court is obliged, in determining what is ethically appropriate, to follow the text of the
Canon rather than the contradictory advice contained in the advisory opinion. Further, the
10
official commentary is entitled to precedence over a contrary advisory opinion in interpreting
11
a Courts ethical obligation in a given circumstance. This is especially the case when
12
extending the obligation to recuse beyond that contemplated by the Canons themselves
13
would cause the Court to violate its existing obligations under the Canons to hear and
14
decide matters assigned, unless disqualified. Id. Canon 3(A)(2); see also Clemens v. U.S.
15
Dist. Court for the Central Dist. of California, 428 F.3d 1175, 1179 (9th Cir. 2005) (holding
16
that a judge has as strong a duty to sit when there is no legitimate reason to recuse as he
17
does to recuse when the law and the facts require).
18
Of course, even though an opinion of the United States Commission on Codes of
19
Conduct is advisory in nature, it should be considered carefully. Advisory Opinion 58, issued
20
in June of 2009, which is in many relevant respects similar to its predecessors, advises that
21
if the relative . . . is an equity partner in a law firm that represents a party, the judge must
22
recuse, because it concludes that an equity partner in a law firm generally has an interest
23
that could be substantially affected by the outcome of the proceeding in all cases where the
24
law firm represents a party before the court. United States Comm. on Codes of Conduct. Op.
25
58 (June 2009). It further notes that if a judges relative is an equity partner of a firm
26
appearing before him, the remittal procedures of Canon 3D are not available, and that
27
[r]ecusal is required. Id.
28
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While such a cautious approach may have value as a prophylactic rule, to the extent
that this advisory opinion is interpreted or attempts to create a per se rule of recusal whenever
a Court has a firm appearing before it in which a relative or the spouse of a relative is an
equity partner, the opinion would extend the rule beyond the text of the Canon or the official
commentary to it. The advisory opinion itself seems to recognize as much. To the extent that
it states that an equity partners interest generally, rather than always could be affected
by the outcome of the proceeding, it implicitly recognizes that there are some circumstances
in which an equity partners interest in a law firm will or may not be substantially affected
by the outcome of a proceeding before a judge. If the facts involve a circumstance in which
10
the equity partners interest would not be substantially affected by the outcome of the
11
proceeding, then Canon 3C(1)(d)(iii) provides no basis for the Courts recusal. In such
12
circumstances, the Advisory Opinions per se rule is contrary to the Code of Conduct and the
13
commentaries thereto which make clear that [t]he fact that a lawyer in a proceeding is
14
affiliated with a law firm with which a relative of the judge is affiliated does not of itself
15
disqualify the judge. Commentary to Canon 3C(1)(d)(iii), Code of Conduct for United
16
States Judges.
17
The Canon requires recusal when an interest is substantial, and whether an interest
18
is substantial is necessarily a fact sensitive inquiry. In re Mercedes-Benz Antitrust
19
Litigation, 226 F. Supp. 2d 552, 555 (D. N. J. 2002). Other courts have previously
20
recognized, as this Court did in its original analysis, that [i]t would simply be unrealistic to
21
assume, . . . that partners in todays law firms invariably have an interest that could be
22
substantially affected by the outcome of any case in which any other partner is involved.
23
Pashaian v. Eccelston Props., Inc., 88 F.3d 77, 83 (2d Cir. 1996) (emphasis in original). All
24
parties to this case, being made familiar with the facts and the previous determinations of this
25
Court, have made clear their position that Mr. Teel has no interest that can be substantially
26
affected by the outcome of these proceedings. Plaintiffs are not seeking damages, but the
27
court in its discretion, may allow the prevailing party, other than the United States, a
28
reasonable attorneys fee. 42 U.S.C. 1988(b) (2006). The award of such a fee is both
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speculative and very small as it might apply to augment the salary of an equity partner in
Covington & Burling. The outcome of the proceeding therefore would not substantially affect
an interest of Mr. Teel even if he were not walled off from any participation in, or benefit
from, this case.
Nevertheless, even should Plaintiffs prevail, and even should the Court thereafter
exercise its discretion to award fees, Mr. Teel will not receive any financial benefit due to
the further steps subsequently taken by Covington & Burling to screen him from this case.
And, as this Court set forth in its previous order, the Court cannot identify any other interest
that Mr. Teel has that would be substantially affected by the outcome of these proceedings.1
10
None of the parties, after having been fully apprised of the facts, have identified such an
11
interest. As such, while the Court acknowledges that an equity partner in a law firm
12
generally has an interest that could be substantially affected by the outcome of the
13
proceeding, in the facts particular to this case, Mr. Teels interest cannot be so affected.
14
United States Comm. on Codes of Conduct. Op. 58 (June 2009) (emphasis added). In such
15
circumstances, the Court has an obligation to follow the language of the Canons themselves,
16
not merely the per se rule of the advisory opinion. Because the Court has as strong a duty
17
to sit when there is no legitimate reason to recuse as he does to recuse when the law and the
18
facts require, recusal would not merely be unwarranted, it would itself violate that duty.
19
Clemens, 428 F.3d at 1179. To the extent that the Advisory Opinions per se rule attempts
20
to extend the preclusive effect of Canon 3C(1)(d)(iii) beyond its actual terms, the Court will
21
abide by the Code in determining its ethical responsibilities.
22
23
24
25
26
27
28
The Court has considered the impact this case may have on Covington & Burlings
reputation, and therefore the reputation on that firms partners, whether they are involved in
the case or not. Although the case is a significant one, it is significant principally in Arizona,
where Covington & Burling does not have an office. To the extent that there is some
attention to the case nationwide, the Court concludes, like the district court in Pashaian, that
the impact of a single case is not of the significance to either add or detract from its
reputation . . . even in the nation or perhaps the world. Pashaian, 88 F.3d at 84. Mr. Teels
reputation at Covington & Burling, where he practices in a different area and a different city
than Plaintiffs attorneys, will not be substantially affected by the outcome of this case.
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2. 28 U.S.C. 455
Advisory Opinion No. 58 acknowledges that it does not serve to interpret 28 U.S.C.
455. But, as the Committee also notes, Canon 3C of the Code closely tracks the language
of 455, and the Committee is authorized to provide advice regarding the application of the
Code. Id.
Federal circuit courts have twice had the opportunity to interpret the predecessor of
Advisory Opinion 58 in the context of the recusal statute. In 1980, the Fifth Circuit adopted
the per se rule of the Advisory Opinion, holding that when a partner in a law firm is related
to a judge within the third degree, that partner will always be known by the judge to have
10
an interest that could be substantially affected by the outcome of a proceeding involving the
11
partners firm. Postashnick v. Port City Constr. Co., 609 F.2d 1101, 1113 (5th Cir. 1980)
12
(quoting 28 U.S.C. 455(b)(5)(iii)) (emphasis in original). In Potashnick, three factors
13
weighed in favor of recusal: (1) the judge was so connected with [plaintiffs] law firm Hand,
14
Arendall, Bedsole, Greaves & Johnston (Hand, Arendall) and with [plaintiffs] chief trial
15
counsel . . . that his impartiality might reasonably be questioned; (2) the judge was being
16
personally represented in other matters by Hand, Arendall and by [plaintiffs chief trial
17
counsel]; and (3) the judges father was a partner in Hand, Arendall. Potashnick, 609 F.2d
18
at 1106. The Circuit declined to find that the judges actual rulings demonstrated any bias in
19
favor of the plaintiff, who was represented by the judges personal lawyer, working at a mid-
20
sized Mobile law firm in which the judges father was a senior partner, but concluded that
21
a per se rule will serve to promote public confidence in the integrity and impartiality of the
22
judiciary in general and of the participating judge in particular. Potashnick, 609 F.2d at
23
1114.
24
The rise of national law firms led the Second Circuit to reconsider the appropriateness
25
of the Advisory Opinions per se rule sixteen years later. Considering whether recusal was
26
required when a judges brother-in-law was an equity partner in a 200-lawyer national firm
27
but had played no role in the case before the judge, the Second Circuit found that relying on
28
a predecessor to Advisory Opinion 58 in the recusal context was dubious because the
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advisory opinion is a nonbinding interpretation of a different rule. Pashaian v. Eccelston
Props., Inc., 88 F.3d 77, 84 (2d Cir. 1996). In Pashaian, the Second Circuit wrote that [i]t
would simply be unrealistic to assume, with Potashnick, that partners in todays law firms
invariably have an interest that could be substantially affected by the outcome of any case
in which any other partner is involved. Id. at 83 (emphasis in original). The Second Circuit
approved of the district courts reasonable conclusions that the interest one partner in an
international law firm with gross revenues in excess of $100 million could not be
substantially affected by the outcome of any particular case. Id. at 84.
Although district courts in the Fifth Circuit continue to follow the per se rule of the
10
advisory opinion and Potashnick, at least one has noted that it some serious problems with
11
the advisory opinion and with the appellate court interpretations. Southwest Louisiana
12
Healthcare System v. MBIA Ins., 2006 WL 724809, at *3 (Mar. 14, 2006). In that case, the
13
court noted that associates and partners alike see some benefit from the firms success:
14
partners in the form of their equity interest and associates in the form of bonuses, which are
15
determined by the amount of profits realized by the total practice of the firm. Id. The court
16
decided that the proper inquiry was whether the individual actually had a substantial interest
17
in the proceeding at hand, and found that the individual in question (the judges father, who
18
was of counsel to the firm before the judge) has been completely insulated from any
19
participation whatsoever in this case and that he will receive no funds on the profits of [the
20
client], rendering recusal unwarranted. Id. at 4. A district court in New Jersey has likewise
21
held that relevant precedents teach that section 455(b)(5)(iii) cannot be applied as a per se
22
bar to firms whose partners are related to the judiciary. In re Mercedes-Benz Antitrust
23
Litigation, 226 F. Supp. 2d 552, 555 (D. N. J. 2002). Whether an interest is substantial is
24
necessarily a fact sensitive inquiry, and it cannot fairly be answered by a mechanical no
25
partners application of section 455(b)(5)(iii). Id. at 55556..
26
Under the particular circumstances of this case, for the reasons previously set forth,
27
no reasonable person with knowledge of all the facts would conclude that the judges
28
impartiality might reasonably be questioned. Clemens, 428 F.3d at 1178 (quoting

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10
Herrington v. Cty. of Sonoma, 834 F.2d 1488, 1502 (9th Cir. 1987)). In this case, even more
than in Pashaian, the relative in question is a partner at a large international law firm, who
has played and will play no role in this matter. Mr. Teels relationship to this matter is also
more remote than the brother-in-laws was in Pashaian, because Mr. Teel has been excluded
from any financial gain that may accrue to Plaintiffs in this suit, substantial or otherwise. All
parties to this suit have acknowledged that the Pashaian precedent arising from the Second
Circuit is the appropriate precedent to follow and urge this Court not to recuse. Recusal under
28 U.S.C. 455(a) is therefore not warranted. The Court finally notes that the decision on
whether to recuse is here made in circumstances that greatly favor resolution of this lawsuit:
10
the case was filed four and one-half years ago, plaintiffs are represented by their third set of
11
attorneys, and one federal judge has already recused herself. Therefore,
12
13
14
IT IS ORDERED affirming that the trial will proceed on July 19, 2012 at 8:30 a.m.,
as scheduled.
Dated this 3rd of July, 2012.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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EXHIBIT 5
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WO
2
3
4
6
7
8
Manuel de Jesus Ortega Melendres, on

behalf of himself and all others similarly
situated; et al.
10
v.
11
Joseph M. Arpaio, in his individual and

official capacity as Sheriff of Maricopa
County, AZ; et al.
13
FINDINGS OF FACT AND

CONCLUSIONS OF LAW
Plaintiffs,
12
No. PHX-CV-07-02513-GMS
Defendants.
14
At issue in this lawsuit are: 1) the current policies and practices of the Maricopa
15
County Sheriffs Office (MCSO) by which it investigates and/or detains persons whom
16
it cannot charge with a state crime but whom it believes to be in the country without
17
authorization, and 2) the operations the MCSO claims a right to use in enforcing
18
immigration-related state criminal and civil laws, such as the Arizona Human Smuggling
19
Statute, Ariz. Rev. Stat. (A.R.S.) 13-2319 (Supp. 2010), and the Arizona Employer
20
Sanctions Law, A.R.S. 23-211 et seq. (Supp. 2010). According to the position of the
21
MCSO at trial, it claims the right to use the same type of saturation patrols to enforce
22
state laws that it used during the time that it had authority delegated from the federal
23
government to enforce civil violations of federal immigration law.
24
During the time relevant to this lawsuit, the Immigration and Customs
25
Enforcement Office of the Department of Homeland Security (ICE) delegated authority
26
to enforce federal immigration law to a maximum of 160 MCSO deputies pursuant to
27
Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. 1357(g) (the 287(g)
28
program). In the 287(g) training that ICE provided, and in other policies and procedures
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promulgated by the MCSO, MCSO deputies were instructed that they could consider race
or Mexican ancestry1 as one factor among others in making law enforcement decisions
during immigration enforcement operations without violating the legal requirements
pertaining to racial bias in policing. Pursuant to its 287(g) authority, the MCSO used
various types of saturation patrols described below in conducting immigration
enforcement. During those patrols, especially the large-scale saturation patrols, the
MCSO attempted to leverage its 287(g) authority by staffing such operations with
deputies that both were and were not 287(g) certified.
ICE has since revoked the MCSOs 287(g) authority. In response, the MCSO
10
trained all of its officers on immigration law, instructed them that they had the authority
11
to enforce it, and promulgated a new LEAR policy. The MCSO continues to follow its
12
LEAR policy, which requires MCSO deputies to detain persons believed to be in the
13
country without authorization but whom they cannot arrest on state charges. Such persons
14
are either delivered directly to ICE by the MCSO or detained until the MCSO receives a
15
response from ICE as to how to deal with them. Until December 2011, the MCSO
16
operated under the erroneous assumption that being an unauthorized alien in this country
17
established a criminal violation of federal immigration law which the MCSO was entitled
18
to enforce without 287(g) authorization. However, in the absence of additional facts,
19
being within the country without authorization is not, in and of itself, a federal criminal
20
offense. The LEAR policy, however, remains in force.
21
Pursuant to this policy and the MCSOs enforcement of state law that incorporates
22
immigration elements, the MCSO continues to investigate the identity and immigration
23
1
24
25
26
27
Historically, there is no separate racial designation for persons of Hispanic or

Latino ancestry. Nevertheless, to the extent that such persons are separately classified for
purposes of distinctions in their treatment by the government, courts have applied the
strict scrutiny analysis that is reserved for racial distinctions. Johnson v. California, 543
U.S. 499, 502 (2005); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205, 227
(1995); U.S. v. OchoaOchoa, 114 Fed. Appx 295, 296 (9th Cir. 2004).
28
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status of persons it encounters in certain situations. In undertaking such investigations,
MCSO deputies continue to apply the indicators of unlawful presence (including use of
race as one amongst other factors) they received in the 287(g) training from ICE. Further,
in enforcing immigration-related state laws, the MCSO either continues to use, or asserts
the right to continue to use, the same type of saturation patrols that it used when it had
full 287(g) authority. Those saturation patrols all involved using traffic stops as a pretext
to detect those occupants of automobiles who may be in this country without
authorization. The MCSO asserts that ICEs termination of its 287(g) authority does not
affect its ability to conduct such operations because a persons immigration status is
10
relevant to determining whether the Arizona state crime of human smugglingor
11
possibly the violation of other state laws related to immigrationare occurring.
12
Plaintiffs challenge these policies and practices. The Court certified a Plaintiff
13
class of [a]ll Latino persons who, since January 2007, have been or will be in the future
14
stopped, detained, questioned or searched by MCSO agents while driving or sitting in a
15
vehicle on a public roadway or parking area in Maricopa County Arizona. Ortega-
16
Melendres v. Arpaio, 836 F. Supp. 2d 959, 992 (D. Ariz. 2011) (internal quotation marks
17
omitted). The issues in this lawsuit are: (1) whether, and to what extent, the Fourth
18
Amendment permits the MCSO to question, investigate, and/or detain Latino occupants
19
of motor vehicles it suspects of being in the country without authorization when it has no
20
basis to bring state charges against such persons; (2) whether the MCSO uses race as a
21
factor, and, if so, to what extent it is permissible under the Fourth Amendment to use race
22
as a factor in forming either reasonable suspicion or probable cause to detain a person for
23
being present without authorization; (3) whether the MCSO uses race as a factor, and if
24
so, to what extent it is permissible under the equal protection clause of the Fourteenth
25
Amendment to use race as a factor in making law enforcement decisions that affect
26
Latino occupants of motor vehicles in Maricopa County; (4) whether the MCSO prolongs
27
traffic stops to investigate the status of vehicle occupants beyond the time permitted by
28
the Fourth Amendment; and (5) whether being in this country without authorization
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provides sufficient reasonable suspicion or probable cause under the Fourth Amendment
that a person is violating or conspiring to violate Arizona law related to immigration
status.
As is set forth below, in light of ICEs cancellation of the MCSOs 287(g)
authority, the MCSO has no authority to detain people based only on reasonable
suspicion, or probable cause, without more, that such persons are in this country without
authorization. The MCSO lost authority to enforce the civil administrative aspects of
federal immigration law upon revocation of its 287(g) authority. And, in the absence of
additional facts that would provide reasonable suspicion that a person committed a
10
federal criminal offense either in entering or staying in this country, it is not a violation of
11
federal criminal law to be in this country without authorization in and of itself. Thus, the
12
MCSOs LEAR policy that requires a deputy (1) to detain persons she or he believes only
13
to be in the country without authorization, (2) to contact MCSO supervisors, and then (3)
14
to await contact with ICE pending a determination how to proceed, results in an
15
unreasonable seizure under the Fourth Amendment to the Constitution.
16
Further, in determining whom it will detain and/or investigate, both with respect to
17
its LEAR policy, and in its enforcement of immigration-related state law, the MCSO
18
continues to take into account a suspects Latino identity as one factor in evaluating those
19
persons whom it encounters. In Maricopa County, as the MCSO acknowledged and
20
stipulated prior to trial, Latino ancestry is not a factor on which it can rely in arriving at
21
reasonable suspicion or forming probable cause that a person is in the United States
22
without authorization. Thus, to the extent it uses race as a factor in arriving at reasonable
23
suspicion or forming probable cause to stop or investigate persons of Latino ancestry for
24
being in the country without authorization, it violates the Fourth Amendment. In addition,
25
it violates the Plaintiff classs right to equal protection under the Fourteenth Amendment
26
to the Constitution and Title VI of the Civil Rights Act of 1964.
27
Moreover, at least some MCSO officers, as a matter of practice, investigate the
28
identities of all occupants of a vehicle when a stop is made, even without individualized
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reasonable suspicion. Further, MCSO policy and practice allow its officers to consider
the race of a vehicles occupants in determining whether they have reasonable suspicion
to investigate the occupants for violations of state laws related to immigration, or to
enforce the LEAR policy. In some instances these policies result in prolonging the traffic
stop beyond the time necessary to resolve the issue that initially justified the stop. When
the deputies have no adequate reasonable suspicion that the individual occupants of a
vehicle are engaging in criminal conduct to justify prolonging the stop to investigate the
existence of such a crime, the extension of the stop violates the Fourth Amendments
prohibition against unreasonable seizures.
10
Finally, the knowledge that a person is in the country without authorization does
11
not, without more, provide sufficient reasonable suspicion that a person has violated
12
Arizona criminal laws relating to immigration, such as the Arizona Human Smuggling
13
Act, to justify a Terry stop for purposes of investigative detention. To the extent the
14
MCSO is authorized to investigate violations of the Arizona Employer Sanctions law,
15
that law does not provide criminal sanctions against either employers or employees. A
16
statute that provides only civil sanctions is not a sufficient basis on which the MCSO can
17
arrest or conduct Terry stops of either employers or employees.
18
For the reasons set forth above, Plaintiffs are entitled to injunctive relief to protect
19
them from usurpation of rights guaranteed under the United States Constitution.
20
Therefore, in the absence of further facts that would give rise to reasonable suspicion or
21
probable cause that a violation of either federal criminal law or applicable state law is
22
occurring, the MCSO is enjoined from (1) enforcing its LEAR policy, (2) using Hispanic
23
ancestry or race as any factor in making law enforcement decisions pertaining to whether
24
a person is authorized to be in the country, and (3) unconstitutionally lengthening stops.
25
The evidence introduced at trial establishes that, in the past, the MCSO has aggressively
26
protected its right to engage in immigration and immigrationrelated enforcement
27
operations even when it had no accurate legal basis for doing so. Such policies have
28
apparently resulted in the violation of this courts own preliminary injunction entered in
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this action in December 2011. The Court will therefore, upon further consideration and
after consultation with the parties, order additional steps that may be necessary to
effectuate the merited relief.

FINDINGS OF FACT
4
5
I.
General Background
A.
According to the trial evidence, approximately 31.8% of the residents of Maricopa
County are Hispanic or Latino.2 (Tr. at 157:21158:4.)3 As even the testimony of
Defendants expert demonstrated, the considerable majority of those residents are legal
10
residents of Maricopa County and of the United States.4 (Id. at 1301:14.) Due to the large
11
12
13
14
15
16
17
18
19
20
Maricopa County
Cf. United States Census, State & County QuickFacts, Maricopa County,
Arizona, http://quickfacts.census.gov/qfd/states/04/04013.html (last visited May 21,
2013) (reporting 30.0% of the population as of Hispanic or Latino origin). The
Defendants expert placed the Hispanic population at 30.2% for the relevant period. Ex.
402 at 3. Throughout this litigation, both parties have used the term Hispanic and
Latino interchangeably. A recent study by the Pew Hispanic Center found that a new
nationwide survey of Hispanic adults finds that these terms [Hispanic and Latino]
still havent been fully embraced by Hispanics themselves. Paul Taylor et al., Pew
Hispanic Center, When Labels Dont Fit: Hispanics and their Views of Identity 2 (2012).
The Court will principally use the term Hispanic because most of the testimony and
evidence presented at the trial on this matter used the term Hispanic rather than Latino.
Still, where the evidence principally uses the term Latino, the Court will likewise use
Latino. Both words are used interchangeably in this Order.
3
Tr. refers to the continually paginated trial transcript.
21
4
22
23
24
25
26
27
28
At trial, Defendants expert Dr. Steven Camarota noted that his estimate as to the
percentage of the Arizona population not legally present within the United States had
been cited by the United States Supreme Court in Arizona v. United States, ___ U.S. ___,
___, 132 S. Ct. 2492, 2500 (2012). In that study Dr. Camarota concluded that 8.9% of the
population of the state of Arizona was made up of unauthorized immigrants. See
Camarota & Vaughan, Center for immigration Studies, Immigration and Crime:
Assessing a Conflicted Situation 16 (2009). During his trial testimony, Dr. Camarota
testified that he assumed that his state-wide estimate would also apply to Maricopa
County. His trial testimony was consistent with the figure cited in Arizona as he noted
that he assumed that approximately one in three Hispanic residents of Maricopa County
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number of authorized residents of Maricopa County who are Latino, the fact that
someone is Latino in Maricopa County does not present a likelihood that such a person is
here without authorization.
Nevertheless, it is also true that the overwhelming majority of the unauthorized
aliens in Maricopa County are Hispanic. As Defendants expert report notes, the Pew
Hispanic Center estimates that 94% of illegal immigrants in Arizona are from Mexico
alone.5 (Ex. 402 at 14.)
As trial testimony further demonstrated, MCSO officers believe that unauthorized
aliens are Mexicans, Hispanics, or Latinos. (Tr. at 359:1114, 991:23992:4.) As
10
Defendants acknowledged at the summary judgment stage and in their post-trial briefing,
11
many MCSO officersas well as Sheriff Arpaiotestified at their depositions that most
12
of the unauthorized immigrants they have observed in Maricopa County are originally
13
from Mexico or Central or South America.6 (Doc. 453 at 150, 151 2830, 36.)
14
B.
The MCSO
15
The MCSO is a law enforcement agency operating within the confines of
16
Maricopa County. (Doc. 530 at 4 1.) It employs over 800 deputies. (Id. 17.) Sheriff
17
Joseph Arpaio serves as the head of the MCSO and has final authority over all of the
18
19
20
21
22
23
24
was here without authorization. (Tr. at 1301:911.) In Arizona, however, the Supreme
Court also cited a study of the Pew Hispanic Center that determined that 6% of the states
population was unauthorized. 132 S. Ct. at 2500. Nevertheless, if Dr. Camarotas
testimony is applied, and one assumes that virtually all of the unauthorized residents in
the state are of Latino ancestry, about 73% of the Latino residents of Maricopa County
are legal residents of the United States. If the Pew Hispanic Centers estimates are
applied, and the same assumptions are made, about 81% of the Latino residents of
Maricopa County are legal residents. In either case, a great majority of the Latino
residents of Maricopa County are authorized to be in the United States.
25
Ex. denotes the number of the exhibit admitted at trial.
26
Doc. denotes the number at which the document can be found on the Courts
27
docket.
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agencys decisions. (Id. 18.) He sets the overall direction and policy for the MCSO. The
MCSO is composed of multiple bureaus, including the detention bureau, the patrol
bureau, and the patrol resources bureau. (Id. 19.)
The Sheriff of Maricopa County is elected, thus the Sheriff has to be responsive to
his constituents if he desires to remain in office. In the words of the MCSOs Chief of
Enforcement Brian Sands, Sheriff Arpaio is a political person, who receives significant
popular support for his policies. (Tr. at 808:14809:12.) A chief element of Sheriff
Arpaios popular support is his prioritization of immigration enforcement. (Id.) The
MCSO receives federal funding and federal financial assistance. (Doc. 530 at 4 173
10
74.)
11
C.
Prioritization of Immigration Enforcement and the ICE Memorandum
12
In 2006, the MCSO created a specialized unitthe Human Smuggling Unit
13
(HSU)to enforce a 2005 human smuggling law, A.R.S. 13-2319 (2007). (Doc. 530
14
at 4 2728.) The HSU is a division within the patrol resources bureau and makes up a
15
part of the larger Illegal Immigration Interdiction Unit (the Triple I or III). (Id.
16
2729.) The HSU unit consisted of just two deputies when it was created in April of
17
2006. (Id. 44.)
18
In 2006, the Sheriff decided to make immigration enforcement a priority for the
19
MCSO. In early 2007, the MCSO and ICE entered into a Memorandum of Agreement
20
(MOA) pursuant to which MCSO could enforce federal immigration law under certain
21
circumstances. (Id. 40.) After the MOA was signed, the HSU grew. By September of
22
2007 it consisted of two sergeants, 12 deputies, and four detention officers, all under the
23
leadership of a lieutenant. (Id. 44.) In September 2007, Lieutenant Sousa assumed
24
command of the HSU. (Tr. at 988:1314.) He remained in charge of the unit and later the
25
Division including the unit, until April 1, 2012. (Tr. at 988:1223.) He reported to Chief
26
David Trombi, who is the commander of the Patrol Resources Bureau. (Doc. 530 at 1,
27
33.) Chief Trombi reported to Chief of Enforcement Brian Sands. (Id. 31.) For most of
28
the period relevant to this lawsuit, Chief Sands reported to Deputy Chief David
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Hendershott, who reported directly to Sheriff Arpaio. (Id. 21, 23.)
Sergeant Madrid was one of the two supervising sergeants from the founding of
HSU until he was transferred in February 2011. (Id. at 1131:1925.) Sergeant Palmer was
the other HSU supervising sergeant. He joined the HSU in April of 2008, apparently
succeeding Sergeant Ryan Baranyos. He remained as a supervising sergeant until May of
2012. (Id. at 661:2021.) According to the testimony of Sgts. Madrid and Palmer, each of
them supervised their own squad of deputies and also cross-supervised the others squad.
(Id. at 663:2325.)
The MOA permitted up to 160 qualified MCSO officers to enforce administrative
10
aspects of federal immigration law under the 287(g) program.7 (Ex. 290.) It required
11
MCSO deputies that were to be certified for field operations to complete a five-week
12
training program. (Id.) Witnesses who took the training program testified that the topic of
13
race in making decisions related to immigration enforcement covered an hour or two of
14
the five-week course. (Tr. at 948:820, 1387:231388:7.)
15
All or virtually all of the deputies assigned to the HSU became 287(g)-trained and
16
certified. A number of other MCSO deputies did as well. The MCSO generically
17
designated all non-HSU officers who were certified under 287(g) as members of the
18
Community Action Team or CAT. According to an MCSO policy memo CAT refers
19
to all 287g trained deputies who are not assigned to HSU. (Ex. 90 at MCSO 001887
20
88.) Members of the HSU, CAT and MCSO detention officers who were 287(g) certified
21
constituted the Triple I Strike Team. (Id.)
22
Nevertheless, according to ICE Special Agent Alonzo Pena, under the MOA,
23
287(g) certified officers could not use their federal enforcement authority to stop persons
24
or vehicles based only on a suspicion that the driver or a passenger was not legally
25
26
27
The 160 maximum persons included both deputies trained for field enforcement
and the MCSO personnel who worked solely in a correctional facility or ICE detention
facility. (Ex. 290.)
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present in the United States. (Tr. at 1811:1516, 1854:811, 1856:1523.) Rather, the
287(g) power was appropriately used as adjunct authority when Sheriffs deputies made
an otherwise legitimate stop to enforce provisions of state law. (Id.) Special Agent Pena
further testified that he would definitely be concerned if traffic stops were being used as
pretext to investigate immigration violations. (Id. at 1859:1722.)
Still, nothing in the text of the MOA prohibits the MCSO from making pre-textual
traffic stops in order to investigate the immigration status of the driver of a vehicle. The
MCSO Triple I Strike Team Protocols, however, did specify that before investigating a
persons immigration status, a 287(g)-trained deputy must have probable cause or
10
reasonable suspicion to stop a person for violation of state criminal law and civil
11
statutes. (Ex. 92 at MCSO 001888.) As the testimony at trial also established, MCSO
12
deputies are generally able, in a short amount of time, to establish a basis to stop any
13
vehicle that they wish for some form of Arizona traffic violation. (Tr. at 1541:811
14
(Armendariz: You could not go down the street without seeing a moving violation.),
15
1579:2023 (Armendariz: [I]ts not very difficult to find a traffic violation when youre
16
looking for one.); see also Doc. 530 at 86 (Deputy Rangel testified that it is possible
17
to develop probable cause to stop just about any vehicle after following it for two
18
minutes.).)
19
The necessity of having a state law basis for the stop prior to engaging in
20
immigration enforcement did not appear in MCSO news releases. At the February 2007
21
press conference announcing the partnership between MCSO and ICE, Sheriff Arpaio
22
described the MCSOs enforcement authority in the presence of ICE officials as
23
unconstrained by the requirement that MCSO first have a basis to pursue state law
24
violations. He stated: Actually, . . . , ours is an operation, whether its the state law or
25
the federal, to go after illegals, not the crime first, that they happen to be illegals. My
26
program, my philosophy is a pure program. You go after illegals. Im not afraid to say
27
that. And you go after them and you lock them up. (Tr. at 332:1925; Ex. 410d.)
28
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Upon completion of the first 287(g) training course for deputies in March 2007,
Sheriff Arpaio described the duties of CAT certified patrol deputies in a news release as
arresting suspects even solely for the crime of being an illegal alien, if they are
discovered during the normal course of the deputies duties. (Ex. 184.) In July 2007, in
describing the MCSO as quickly becoming a full-fledged anti-illegal immigration
agency he also announced that MCSO had created a dedicated hotline for citizens to
use to report illegal aliens to the MCSO. (Ex. 328.) In this same news release, the
Sheriff further announced a policy that when his deputies stopped any vehicle for
suspicion of human smuggling, the immigration status of all of the occupants of the
10
vehicle would be investigated. (Id.)
11
D.
12
In approximately July of 2007, at the same time it implemented its illegal
13
immigrant hotline, the MCSO also announced that the HSU would begin conducting
14
saturation patrols, in which MCSO officers would conduct traffic enforcement
15
operations with the purpose of detecting unauthorized aliens during the course of normal
16
traffic stops. (Tr. at 1136:79.) There were several different types of traffic saturation
17
patrols, including day labor operations, small-scale saturation patrols, and large-scale
18
saturation patrols. HSU deputies sometimes recruited other deputies and MCSO posse
19
members to assist in day labor and small-scale saturation patrols. Other deputies were
20
always a part of large-scale saturation patrols. There is no evidence that all deputies
21
participating in such patrols from other units were 287(g) certified. All of these saturation
22
patrols were supervised by the HSU command structure, and HSU deputies conducted, or
23
at least participated in, all of the saturation patrols at issue in this lawsuit.
24
MCSOs Immigration Enforcement Operations
1.
Day Labor Operations
25
In a typical day labor operation, undercover HSU officers would station
26
themselves at locations where Latino day laborers assembled and identify vehicles that
27
would pick up such day laborers. Once a vehicle was identified, the undercover officers
28
notified patrol units that were waiting in the area. (Id. at 242:723; Exs. 123, 126, 129,
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131.) The patrol units located the vehicle, followed it, and establish[ed] probable cause
for a traffic stop. (Id.) Once the MCSO deputy had stopped the vehicle, HSU deputies
would proceed to the scene to investigate the immigration status of any passengers. (Tr.
at 242:24244:6.) The patrol officer would either issue a traffic citation or give the driver
a warning, while the HSU deputies would investigate the immigration status of the
passengers and detain them if there was a basis to do so.
Day labor operations took place on: (1) September 27, 2007, at the Church of the
Good Shepherd of the Hills in Cave Creek, (2) October 4, 2007, in Queen Creek, (3)
October 15, 2007, in the area of 32nd Street and Thomas (Pruitts Furniture Store) in
10
Phoenix, and (4) October 22, 2007, in Fountain Hills. (Exs. 123, 126, 129, 131.)
11
According to the arrest reports of the four day labor operations, all of the 35
12
arrests were for federal civil immigration violations, and the arrestees were turned over to
13
ICE for processing. (Id.) None of the 35 persons were arrested for violating state laws or
14
municipal ordinances. (Id.) Further, they were all passengers in the vehicle, not drivers.
15
(Id.) Thus, their identity and immigration status were investigated during the course of a
16
stop based on the drivers violation of traffic laws, even when that stop resulted in the
17
driver only receiving a warning. The MCSO made 14 total traffic stops, 11 of which
18
resulted in the 35 arrests. (Id.) Thus, only three of the 14 stops did not result in
19
immigration arrests, all of those coming from the Fountain Hills operation. (Id.)
20
None of the arrest reports of these operations contains any description of anything
21
done by the passengers once the vehicle was stopped that would create reasonable
22
suspicion that the passengers were in the country without authorization. The stops were
23
made purely on the observation of the undercover officers that the vehicles had picked up
24
Hispanic day laborers from sites where Latino day laborers were known to gather. It was
25
the nature of the operation that once the stop had been made, the HSU officers proceeded
26
to the scene to conduct an investigation of the Latino day laborer passengers.
27
The two news releases that covered the day labor operations communicated that
28
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morning, September 27, 2007, Sheriffs deputies began cracking down on illegal
immigration in Cave Creek), and were directed at day laborers whom the MCSO
perceived as coming from Mexico (quoting Sheriff Arpaio to the effect that [a]s far as I
am concerned the only sanctuary for illegal aliens is in Mexico). (Exs. 30708.) They
further encouraged citizens to report day labor locations to the MCSO as part of its illegal
immigration enforcement operations. (Id.)

2.
Small-Scale Saturation Patrols
There was testimony and evidence introduced at trial concerning 25 patrols that
were described as saturation patrols but were neither explicitly identified as day labor
10
operations nor as one of the 13 large-scale saturation patrols whose arrest reports were
11
admitted at trial. During 15 of the 25 small-scale saturation patrols, all of the persons
12
arrested were unauthorized aliens.8 During six of the patrols, the great majority of all
13
persons arrested were unauthorized aliens.9 During four of these patrols, the MCSO made
14
very few total arrests and of that number only a few of the arrests or no arrests were of
15
unauthorized aliens.10
16
17
18
19
20
21
22
23
24
25
26
27
28
The 2007 patrols in which all persons arrested were unauthorized aliens occurred
on October 30 (ten of ten arrests), November 7 (eight of eight arrests), November 15
(nine of nine arrests), November 21 (12 of 12 arrests), November 29 (nine of nine
arrests), December 1 (eight of eight arrests), December 5 (13 of 13 arrests), December 14
(26 of 26 arrests), and December 22 (two of two arrests). (Exs. 80, 81, 114, 120.) The
2008 patrols in which all persons arrested were unauthorized aliens occurred on January
4 (six of six arrests), January 5 (four of four arrests), January 31 (two separate patrols)
(six of six arrests), February 4 (three of three arrests), and September 4 (11 of 11 arrests).
(Exs. 112, 114.)
9
The 2007 patrols in which the great majority of all persons arrested were
unauthorized aliens occurred on December 8 (16 of 17 arrests), and December 10 (five of
eight arrests). (Ex. 114.) The 2008 patrols in which the great majority of all persons
arrested were unauthorized aliens occurred on February 29, (eight of 11 arrests), May 67
(14 of 18 arrests), July 8 (18 of 19 arrests), and August 19 (12 of 16 arrests). (Exs. 108,
117, 119.)
10
The 2008 patrols in which no arrests were made of unauthorized aliens occurred
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The small-scale saturation patrols seem to be divisible into two different types of
operations. As with day labor operations, many of these small-scale saturation patrols,
particularly those conducted before May 2008,11 show an extremely high correlation
between the total number of traffic stops executed in an operation and the number of
those stops that resulted in one or more immigration arrests. These small-scale patrols
with high arrest ratios seem to have been either day labor operations or had targeting
elements very similar to day labor operations in that the patrols targeted vehicles that
picked up Latino day laborers.
The second type of small-scale patrol (post-May 2008) appears to principally rely
10
on traffic patrols which, while using traffic stops as a pretext for enforcing immigration
11
laws, did not uniquely target vehicles who picked up day laborers. These patrols thus had
12
a higher number of stops during the operation. Both types of small-scale patrols were
13
conducted at locations either where the MCSO had previously conducted day labor
14
operations or day laborers were known to congregate. (Exs. 76, 80, 81, 108, 112, 114,
15
117, 119, 120, 125, 175, 286.)
16
Participating deputies kept track of certain figures during their patrols. Although
17
there was some variation in the categories of information kept by the deputies, the
18
deputies were always required to keep track at least of the number of persons arrested for
19
federal immigration violations and the number of unauthorized aliens who were arrested
20
on state charges. (See, e.g., Exs. 97, 102, 111.) After the patrol, supervising officers
21
would collect the individual stat sheets and summarize the activity during the patrol by
22
23
24
25
26
27
on February 25 (zero of two arrests) and on October 10 (zero of one arrest). (Exs. 114,
125.) The 2009 patrols in which a majority of the arrests made were of other than
unauthorized aliens occurred on January 23 (one of five arrests) and May 29 (three of 11
arrests). (Exs. 175, 286.)
11
One exception is the December 2007 traffic operation at Aguila, Wickenburg,

and Wittmann. (Ex. 76.)
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statistical category.12 (Tr. at 1009:1123.) After the patrol statistics were tallied, Lt.
Sousa, Sgts. Madrid or Palmer, or another MCSO officer would send out an e-mail
briefing describing the total officer activity during the patrol. (Id. at 1010:712, 1133:13
14, 690:23691:3.) Sgt. Madrid would brief Sheriff Arpaio personally on how many
unauthorized aliens had been arrested during the patrol. (Id. at 1133:1315.) He would
relay the number of people arrested for not being legally present in the country up his
chain of command, because he was asked for this information by his supervisors. (Id. at
1153:1625.) Sgt. Palmer would do likewise. (Id. at 690:23691:3.)
9
10
During both types of small-scale patrols, the MCSO issued news releases that
emphasized that their purpose was immigration enforcement.
a.
11
Small-Scale Patrols with High Arrest Ratios
12
After the day labor operation at Pruitts Furniture Store, the Pruitts area remained
13
a focal point for activists. In response to the protests and the continuing presence of day
14
laborers, the MCSO conducted 11 small-scale traffic saturation patrols in that area in the
15
months between November 2007 and February 2008.13 Its first two large-scale saturation
16
patrols were also centered on the same area.14
17
18
19
20
21
22
23
24
25
26
27
28
12
Although most of the deputies actual statistics sheets have been destroyed, a
few remain and are in the record, although there was some variance between in the
categories of information requested for various patrols. (Doc. 235-3, Exs. 911.) Many if
not all of the summary sheets remain and are in the record.
13
October 30, November 7, November 21, December 1, December 8, December

10, and December 22, 2007, and January 5, January 31, February 4, and February 25,
2008. The exhibit for the January 5 patrol reports two separate small-scale saturation
patrols occurring on the same dayone at Pruitts and one in Avondale. The operation at
Pruitts had one stop that resulted in two immigration arrests with a citation issued to the
driver.
14
At the Courts request, the parties filed a stipulation concerning exhibits that
contained arrest information associated with particular MCSO operations. That
stipulation omitted three follow-up operations that occurred at Pruitts on December 22,
2007, (Ex. 114 at MCSO 014904), January 5, 2008, (Ex. 114 MCSO 014693), and
February 25, 2008 (Ex. 114, MCSO 014533). Although, as will be detailed below, none
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As a whole, the individual reports of the small-scale operations around Pruitts
show an extremely high correlation between total stops and stops that resulted in
immigration arrests. Only about half of the Pruitts arrest reports kept track of the exact
number of stops made during an operation. Others made general estimates of the total
number of stops, stated the number of immigration arrests resulting from the total stops,
or stated the number of citations issued to other vehicles from which no arrest was made.
This information is probative of the correlation that existed between total stops and stops
that resulted in immigration arrests during these operations.
Reports of the October 30 and November 7 operations were written by Sgt.
10
Baranyos, who preceded Sgt. Palmer at HSU. These reports, while not specifying the
11
total number of stops,15 nevertheless show that all recorded stops resulted in one or more
12
immigration arrests.16 (Ex. 114.)
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of these reports resulted in significant arrests either on immigration or state criminal

charges, they apparently were saturation patrols, even if small ones, and the Court thus
considers them.
15
To the extent that the reports authored by Sgt. Baranyos state that numerous
stops were made during an operation, the Court notes that he may have had a generous
understanding of the word numerous. Note for example his report of the October 30
operation in which he stated that numerous traffic violations occurred that resulted in
four traffic stops. (Ex. 114 at MCSO 014678.) Further, in his November 15 report of a
saturation patrol in Mesa, Sgt. Baranyos noted that numerous traffic stops were
conducted in the area with the following results, and then sets forth three traffic stops
that resulted in the issuance of three citations and six immigration arrests. (Ex. 120.) His
use of the term numerous thus suggests that for Sgt. Baranyos four stops were
numerous stops.
16
In the October 30 report, Sgt. Baranyos stated that HSU conducted four traffic
stops for numerous traffic violations and that the four stops resulted in the arrest of ten
illegal immigrants. All ten were arrested for violating federal immigration law and turned
over to ICE for administrative processing. While the report does not establish that each
traffic stop resulted in the arrest of at least one illegal immigrant, it does establish a high
number of arrests of illegal aliens for a relatively low number of traffic stops. The drivers
of all four vehicles were issued civil citations, and there is no other record of arrests or
citations issued during the operation. (Ex. 114 at MCSO 014678.) Similarly, in the
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The next four of the small-scale operations at Pruitts (taking place between
November 21 and December 10) specified both the total number of traffic stops made
during each operation and the number of traffic stops that resulted in the arrest of
unauthorized aliens. 24 stops were made, and 21 resulted in immigration arrests.17 (Id.)
5
6
7
After the first six operations, the number of stops and immigration arrests at
Pruitts declined.18 (Id.)
These reports suggest that as the Pruitts location became known for constant
8
9
10
11
November 7 operation, Sgt. Baranyos stated that Detectives conducted numerous traffic
stops in the area with the following results. He then set forth four stops which resulted
in the eight immigration arrests. Sgt. Baranyos noted no other traffic citations issued or
arrests occurring during the operation. All eight persons arrested were passengers in their
respective vehicles. (Id. at MCSO 01467273.)
12
17
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
The MCSO made four traffic stops during its November 21 operation. (Id. at
MCSO 014893.) All four of them resulted in the arrest of persons who were in the
country illegally. (Id.) In the December 1, 2007 operation, the MCSO made five stops
each of which resulted in at least one federal immigration arrest. (Id. at MCSO 014665
67.) In its December 8 operation, nine out of ten total traffic stops resulted in the arrest of
at least one unauthorized resident. (Id. at MCSO 01466364.) In its December 10
operation three out of five stops resulted in the arrest of five unauthorized persons. (Id. at
MCSO 014659.)
18
In the December 22 summary report, Sgt. Madrid noted that one stop resulted in
both immigration arrests made during the operation where several stops were made
resulting in six other traffic citations being written to U.S. citizens. (Id. at MCSO
014909.) In its January 5, 2008 operation two out of four total traffic stops resulted in
arrests of unauthorized aliens. (Id. at MCSO 014693.) In his reports for January 31,
February 4, and February 25, Sgt. Madrid noted, apparently as a matter of form, that
several traffic stops were made. On January 31, one of these several stops resulted in
the arrest of two unauthorized aliens, on February 4, two of these several stops resulted
in the arrests of three unauthorized aliens. [A] few other stops were made that resulted
only in traffic citation. (Id. at MCSO 014519, 014525.) In the final Pruitts operation, on
February 25, 2008, none of the several stops resulted in the arrest of an unauthorized
aliensome stops resulted in traffic citations, one driver was arrested for driving on a
suspended license, and another was arrested for possessing drug paraphernalia. (Id. at
MCSO 014533.)
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immigration patrols, both small and large scale, the success rate of such operations
declined. But prior to that time, the MCSO made an extraordinary number of immigration
arrests per vehicle pulled over. The MCSO kept the public apprised of its efforts to
combat illegal immigration at Pruitts. (Ex. 309 (Illegal immigration activists have
protested at Pruitts every Saturday in the last six weeks since Sheriff Arpaios deputies
began patrolling the vicinity of the furniture store near 36th Street and Thomas Road.
Already, 44 illegal aliens have been arrested by Sheriffs deputies, including eight illegals
arrested this past Saturday during the weekly protest.).)
Several of the remaining small-scale saturation patrols that occurred in the same
10
time frame, but did not occur at Pruitts, such as the small-scale patrols at Mesa,19 Cave
11
Creek and Bell Roads,20 35th Avenue and Lower Buckeye Road,21 and in Avondale,22
12
19
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Three successive Mesa patrols occurred in the same general neighborhood on

November 15, November 29 and December 5, 2007. (Exs. 120, 80, 81.) For the
November 15 operation, Sgt. Baranyoss report details that numerous traffic stops and
one observed drug transaction resulted in four stops during which MCSO made nine
immigration arrests. (Ex. 120.) Reports for the November 29 and December 5 Mesa
small-scale saturation patrols were written by Sgt. Madrid. (Exs. 80, 81.) As he did with
the last Pruitts reports, Sgt. Madrid noted in each report that several traffic stops were
made. (Id.) During the November 29 operation, nine immigration arrests occurred in the
five stops detailed in the reportthus five of several traffic stopsthat were all
processed by ICE. (Ex. 80.) During the December 5 Mesa operation, 13 immigration
arrests occurred in seven of several traffic stops, and all arrestees were processed by
ICE. (Ex. 81.)
20
The operation at 24th Street and Bell Road took place on January 4, 2008. (Ex.
114 at MCSO 014512.) During this patrol, the MCSO arrested six unauthorized aliens in
three traffic stops during an operation in which five total traffic citations were issued.
(Id.) A total of two civil traffic citations were written to United States Citizens that did
not result in immigration arrests during the operation. (Id.)
21
On January 31, 2008, the MCSO conducted a saturation patrol in the area of
the Durango complex at 35th and Lower Buckeye roads. (Id. at MCSO 014519.) Three
stops at or close to that intersection each resulted in the immigration arrests of a total of
four persons, all of whom were unauthorized but most, if not all, of whom were arrested
on unspecified state charges. (Id.) There were a few other stops made during this
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similarly involved operations that demonstrated a remarkably high correlation between
the number of stops made by deputies in an operation and the number of stops that result
in an immigration arrest.
Based on the high arrest to stop ratios in the 17 small-scale saturation patrols
discussed above, if the MCSO was not conducting day labor operations, it was
conducting operations very similar to them with comparable targeting elements.23 As
with the day labor operations, these high-ratio small-scale saturation patrols all involve
only several stops at most. Yet the MCSO deputies participating in these operations
made immigration arrests on a considerable majority of their recorded traffic stops. Many
10
of the stops resulted in the arrest of multiple illegal aliens for each stop. All or a
11
considerable number of these small-scale patrols may in fact have been day labor
12
operations. But even if not, the high stop to arrest ratio leads the Court to conclude that
13
the targeting factors used by the MCSO in these operations to determine whether to stop
14
the vehicles included the race and work status of the vehicles occupants.
b.
15
Small-Scale Operations Without High Arrest Ratios
16
17
18
19
20
21
22
23
24
25
26
27
operation that resulted only in traffic citation. (Id.) Note that this report was filed as a
joint report for saturation operations that occurred both at the Durango complex and at
Pruitts on the same day. The Pruitts operation resulted in one stop that resulted in two
arrests of unauthorized persons. The Durango operation resulted in three stops that
resulted in four arrests of unauthorized persons. Both operations resulted in the arrest of
six persons, who were not authorized to be in the country, but five out of the six were
arrested on state charges, one was turned over to ICE. (Ex. 114 at MCSO 014519.)
22
On February 29, 2008, the MCSO conducted a saturation patrol in District 2 in

Avondale and made seven total traffic stops. Four of those stops resulted in eight arrests
of unauthorized aliens. (Ex. 119.)
23
13 of the 25 small-scale operations reflect a high ratio of total stops to stops that
resulted in immigration arrests. Four more Pruitts operations were the final small-scale
operations conducted at Pruitts after it would have become apparent that MCSO was
conducting repeated enforcement out of that location.
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The remaining eight operations24 continued, for the most part, to be located in
areas where, based at least on their past operations, the MCSO knew Latino day laborers
assembled. While many arrests were made, they arose out of a smaller percentage of total
stops.
For example, the December 14, 2007 Aguila operation produced 29 arrests, 26 of
which were for immigration violations with all the immigration arrests processed
administratively through ICE. (Ex. 76.) 25 Those arrests, however, came from only five of
the 3540 stops. (Id.) Still, the nature of the arrests demonstrates that the operation, no
matter how it was carried out, was designed to engage in immigration enforcement.
10
Therefore, the persons who were stopped, contacted or cited, were all contacted with the
11
premier goal of enforcing immigration laws.
12
On May 67, 2008, the MCSO returned to Fountain Hills, where it had previously
13
conducted a day labor operation, and conducted a two-day saturation patrol there. During
14
the first day of this operation, MCSO made seven traffic stops with four of those seven
15
stops resulting in immigration arrests, thus reflecting a high ratio of stops to immigration-
16
related arrests. (Ex. 108.) Seven of the eight unauthorized persons arrested were
17
processed through ICE while one was arrested on state charges for an outstanding felony
18
warrant and an ICE detainer was attached. (Id.) During the operations second day, Sgt.
19
Palmer estimated that MCSO made approximately 20 stops. (Id.) Only seven of those
20
21
22
23
24
25
26
27
24
The December 14, 2007 operation in Aguila; the May 67, 2008 operation in
Fountain Hills; the Cave Creek operations on July 8, August 19, and September 4, 2008;
the two operations at 7th Street and Thunderbird operations occurring on October 10,
2008 and January 23, 2009; and the May 29, 2009 operation in Avondale.
25
The MCSO conducted this saturation patrol with the primary focus on the town
of Aguila and a secondary focus on the City of Wickenburg and the Town of Wittmann.
As the earlier October 4, 2007 MCSO news release demonstrates, an earlier saturation
patrol had occurred in the Wickenburg area at which approximately 25 unauthorized
aliens were arrested. (Ex. 308).
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stops resulted in arrests. (Id.) Four of those seven stops resulted in the immigration arrest
of seven unlawful residents who were processed through ICE. (Id.) While eight of the
total of approximately 27 stops that occurred during the two-day operation may still be an
impressive ratio of stops to immigration arrests, it is not as high as the ratios for the other
small-scale saturation patrols previously discussed.
That trend continued during the subsequent Cave Creek,26 7th Street and
Thunderbird,27 and Avondale28 operations. The MCSO had previously conducted day
labor operations in Cave Creek, and Avondale was the site of a prior small-scale patrol
and two large-scale patrols. Of note is that during the September 4, 2008 operation in
10
26
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
In the first Cave Creek patrol, on July 8, 2008, the MCSO made 59 stops and
arrested 19 people. 18 of the 19 persons arrested were unauthorized aliens. (Ex. 117.)
During the August 19 saturation patrol, the MCSO made 47 stops that resulted in 16
arrests, 12 of whom were unauthorized aliens. (Ex. 109.) During the September 4
saturation patrol, the MCSO arrested 11 persons on 33 stops with all of the persons
arrested being unauthorized aliens. (Ex. 114.)
27
The 7th Street and Thunderbird operations took place on October 10, 2008, and
January 23, 2009. The October 10 saturation patrol was made in response to vandalism
complaints, and only one arrest was made for a liquor violation warrant. (Ex. 125.)
During the January 23 saturation patrol, five arrests were made, only one of which was of
an unauthorized alien booked on state charges. (Ex. 286.)
28
The May 29, 2009 Avondale patrol was apparently not planned in advance, but
was conducted [d]ue to the vendor detail being rescheduled. (Ex. 175.) On that date,
the MCSO made 11 arrests, three of whom were unauthorized aliens and all of whom
were arrested on state charges ranging from driving on a suspended license to open
container. (Id.) A vendor detail was apparently an operation in which MCSO targeted
unpermitted food vendors, which are generally peddlers using shopping carts or
modified bicycles selling food. (Ex. 100.) One of the goals of the operation was to
enforce the County Health Code, but such operations were also targeted at unauthorized
aliens as the same instructions about contacting a suspect about his immigration status
that were eventually given in large-scale saturation patrols were also given to deputies
participating in such operations. (Id.) Because food vendors are not by definition
members of the Plaintiff class as certified in this action, the Court does not further
consider such operations.
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Cave Creek, ten of the 11 persons arrested provided their names, all of which were
Hispanic.29 (Ex. 112.) The single person arrested who did not provide his name was
nevertheless arrested on immigration charges, as were the ten others. (Id.) All were
administratively processed through ICE. (Id.)
Despite the lower stop to immigration arrest ratios, the MCSO specifically
identified some of these operations in news releases as an integral part of Sheriff Arpaios
illegal immigration stance. (Ex. 316; see also Exs. 315 (May 8, 2008 news release
describing arrests of illegal aliens in Fountain Hills), 186 (July 8, 2008 news release
describing Sheriffs Illegal Immigration Interdiction Unit responding to complaints from
10
Cave Creek citizens and announcing that in a matter of five hours, deputies conducted
11
81 interviews, in the process of making 59 traffic violation stops. During those traffic
12
stops, 19 people were arrested and taken into custody, including the 18 illegal aliens),
13
332 (news release dated September 4, 2008 stating, Early this morning Sheriff Arpaios
14
Illegal Immigration Interdiction unit (Triple I) saturated the towns of Cave Creek and
15
Carefree. In four short hours, eleven illegal aliens were arrested; . . . In the last two weeks
16
deputies have arrested twenty three illegal aliens in Cave Creek.).)

3.
17
Large-Scale Saturation Patrols
18
The first 13 large-scale saturation patrols that the MCSO conducted were the
19
principal focus of trial testimony. The large scale saturation patrols were preceded by,
20
21
22
23
24
25
26
27
29
At trial, the parties introduced a list of Hispanic surnames from the 1980 U.S.
census. (Ex. 320.) If a surname or part of a hyphenated surname appeared on the census
list of Hispanic surnames, the Court concluded that the name was a Hispanic name. If the
name did not appear on the list, the Court did not count it as a Hispanic surname even if it
was a close alternate spelling or the name otherwise appeared to be Hispanic. At trial, the
MCSO noted that Hispanic surnames are not a flawless indicator of Hispanic identity.
Several deputies noted, for example, that Sgt. Madrids wife is not Hispanic although she
now has a Hispanic surname. The Court accepts that Hispanic names are not a perfect
indicator of Hispanic identity. A Hispanic surname is nevertheless probative of Hispanic
identity.
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and to some extent conducted simultaneously with, the smaller-scale saturation patrols.
The large-scale saturation patrols began in January 2008. They continued until well after
the period that arrest reports for such operations were provided in evidence. Like the last
eight small-scale saturation patrols discussed above, large-scale saturation patrols mostly
consisted of enforcing traffic and other laws. Participating deputies made stops for minor
infractions of the traffic code that departed from MCSOs normal traffic enforcement
priorities. Again, once a vehicle was stopped, the deputies would determine whether to
investigate the identities of the occupants of the vehicle.
Unlike the small-scale saturation patrols, the large-scale operations involved many
10
more patrol deputies and covered larger areas. Lt. Sousa, who supervised the HSU as of
11
September 2007, oversaw most of the large-scale saturation patrols either as Operations
12
Commander or Deputy Operations Commander. The two HSU supervising sergeants
13
for most such patrols, Sgts. Madrid and Palmer, and before Sgt. Palmer, Sgt. Baranyos
14
were typically Operations Supervisors for such patrols. Deputies participating in the
15
large scale patrols were frequently assigned from multiple divisions of the MCSO,
16
whether or not the deputies were 287(g) certified. (Tr. at 697:1923, 1135:2024.) Both
17
HSU and non HSU deputies who participated in such patrols investigated the identity of a
18
vehicles passengers.30 If non-287(g) certified officers encountered persons they believed
19
to be in the United States without authorization, they were supposed to detain the person
20
and place a radio call for a 287(g) certified deputy to respond and handle the matter.
21
Deputies assigned to participate in large-scale saturation patrols were expected to
22
sign-in at a briefing that would take place at the command post prior to the patrol and
23
30
24
25
26
27
Deputies Kikes and Beeks, who testified at trial, were not 287(g) certified at the
time that they participated in all or most of the saturation patrols, but they nevertheless
made immigration arrests in each such patrol. Deputy Kikes participated in at least three
saturation patrols, Deputy Beeks participated in at least four. They both were noted as the
arresting officer in making 287(g) arrests during operations in which they were not
authorized to make such arrests. (Ex. 82 at MCSO 001851; Tr. at 1477:310.)
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read all or parts of the operation plans at that time. (Id. at 995:611.) Lt. Sousa did not
distribute many copies of such operation plans because he did not want them to become
available to the general public. (Id. at 1059:212.) Deputies were also frequently given an
oral briefing at the command post by Lt. Sousa, or other members of the MCSO
command structure at the time of sign-in. Not all participating deputies attended the
briefings, signed in to the operation, or read all of the operations plans.31
After conducting each large-scale saturation patrol, MCSO created records
documenting arrests made on those patrols. (Exs. 77, 79, 82, 87, 90, 97, 102, 111, 168,
170, 174, 176, 17982.) There are not complete arrest records for all such patrols, but the
10
arrest reports generally contain the names of the persons arrested, the charges on which
11
they were arrested, the initial reason for stopping the vehicle in which the arrested
12
person(s) were occupants, and whether the person was an unauthorized alien.
13
The first two large-scale patrols are exceptions. The report for the January 1819,
14
2008 large-scale saturation patrol at Pruitts contains no names of arrestees, arresting
15
officers, or the probable cause that justified the initial stop. (Ex. 77.) Consequently, that
16
report is not included in many of the calculations that appear later in this Order. The
17
report for the second large-scale saturation patrol at Pruitts (March 2122, 2008)
18
contains a list of arrestees that includes their names, but it does not identify arresting
19
officers or the probable cause supporting the initial stop.32 (Ex. 79.)
20
The reports from the 11 large-scale patrols that took place between March 27,
21
31
22
23
24
25
26
27
The arrest records demonstrate that not infrequently an officer made an arrest
who did not sign in. For example, Deputy Kikes conducted an arrest during the saturation
patrol on March 27, 2008, but never signed the roster. (Tr. at 616:315; Ex. 82.) And
while virtually every HSU officer would participate in the saturation patrols, (id. at
683:1821), members of the HSU would typically not attend the briefings conducted
prior to the saturation patrols (Id. at 1501:1825).
32
Although the arrest sheets give the name of 43 people arrested, the tally sheet
suggests that 44 people were arrested. (Ex. 79.)
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2008, and November 18, 2009, generally include the name of an arresting officer, the
alleged probable cause supporting the stop, the name of the person arrested, the charge
for which the person was arrested, and whether the person was processed under 287(g)
for not being legally present in the country.33 (Exs. 82, 87, 90, 97, 102, 111, 168, 170,
174 178.)
Most of the MCSO administrators and deputies who testified acknowledged that
immigration enforcement was at least a primary purposeif not the primary purposeof
such operations. Insofar as any MCSO officers testified that there was no particular
purpose associated with the large scale saturation patrols at issue other than general law
10
enforcement, their testimony is outweighed by substantial, if not overwhelming, evidence
11
to the contrary.34
12
As with the day labor operations and small-scale saturation patrols, participating
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
33
The report for the saturation patrol on September 5, 2009, does not record the
alleged probable cause supporting the stop. (Ex. 170). The reports for the October 1617,
2009, and November 1618, 2009, saturation patrols again include the name of an
arresting officer, the alleged probable cause for the stop, and the charge for which a
person was arrested. (Exs. 174, 178.) Because the MCSOs 287(g) field authority had
been revoked by this time, they do not indicate the use of 287(g) authority, although they
do indicate that some detainees were turned over to ICE. (Id.)
34
For example, Sgt. Madrid readily acknowledged that the principal purpose of
such patrols was immigration enforcement. (Tr. at 1136:1120.) Sheriff Arpaio testified
that in addition to using the patrols to enforce federal immigration laws, he used the
saturation patrols to enforce the state human smuggling and employer sanctions laws. (Id.
at 330:912.) Chief Sands testified, although somewhat reluctantly, that immigration
enforcement was one of the purposes of the saturation patrols. (Id. at 786:1418, 787:5
6.) Sgt. Palmer, while not acknowledging that immigration enforcement was a purpose of
such patrols, did acknowledge that he expected to arrest a large number of people who
were not lawfully present in the country on 287(g) authority during such patrols. (Id. at
688:911.) Lt. Sousa and Deputy Rangel denied that immigration enforcement was a
purpose of such patrols and testified that the saturation patrols were based on citizens
complaints referenc[ing] criminal activity or criminal nuisance. (Id. at 993:24994:1,
943:1516.)
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deputies were required to keep track of the number of unauthorized aliens they arrested
during the large-scale patrols and report these figures to their supervising sergeants. The
supervising sergeants compiled and summarized these figures to emphasize the number
of unauthorized aliens arrested and sent the reports to the MCSO command structure,
including the public relations department.
The MCSO public relations department issued news releases discussing the large-
scale saturation patrols that either emphasized that their purpose was immigration
enforcement, or prominently featured the number of unauthorized aliens arrested during
such operations. (Exs. 310 (dated January 18, 2008, announces Central Phoenix operation
10
in which Illegal Immigration Arrests [are] Anticipated), 311 (The Thomas Road crime
11
suppression operation around Pruitts Furniture Store occurred over a two month time
12
period and resulted in 134 people arrested, 94 of whom were determined to be in the
13
United States illegally.), 312 (dated March 28, 2008, announces ongoing Bell Road
14
Operation and announces 21 arrests, 12 of whom are illegal immigrants five of whom
15
were arrested on state charges), 313 (dated April 3, 2008, announcing crime suppression
16
operation in Guadalupe because tensions are escalating between illegal aliens and town
17
residents, and further referring to Bell Road/ Cave Creek and 32nd Street and Thomas
18
operations at which 79 of 165 arrests were determined to be illegal aliens), 314 (dated
19
April 4, 2008, announcing 26 arrests of which five were of suspected illegal aliens), 316
20
(dated June 26, 2008, describing Mesa illegal immigration operation, and recent similar
21
operations in Phoenix, Guadalupe and Fountain Hills), 330 (dated July 15, 2008,
22
describing Mesa crime suppression/illegal immigration operation), 331 (dated August 13,
23
2008, describing West Valley operation designed to capture human smugglers and their
24
co-conspirators), 333 (dated January 9, 2009, announcing Buckeye operation to capture
25
human smugglers and their co-conspirators, and in the course of their law enforcement
26
duties, where illegal immigrants are found, they will be arrested and booked into jail),
27
334 (dated April 23, 2009, announcing Avondale operations targeting criminal
28
violations including drugs, illegal immigration and human smuggling), 349 (dated
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October 16, 2009, announcing operation in Northwest Valley targeting all aspects of
illegal immigration laws such as employer sanctions, human smuggling, and crime
suppression), 350 (dated October 19, 2009, announcing 66 arrests, 30 of whom were
suspected of being in the country illegally).)
a.
Operations Plans
The operations plans for the first three large-scale saturation patrols (two at
Pruitts, and the third at Cave Creek and Bell Roads) were very rudimentary. Those plans
did not include any language regarding officers use of race, or their discretion (or lack
thereof) in making stops and arrests. (Exs. 75, 79, 82.) They included the following
10
instructions: 1) All criminal violations encountered will be dealt with appropriately,
11
and 2) Contacts will only be made with valid PC. (Id.; see also Tr. at 996:1417.)
12
The operations plan for the MCSOs fourth large-scale saturation patrol on April
13
34, 2008, at Guadalupe contained more detail. It gave brief instruction on the primary
14
(criminal and traffic enforcement) and secondary (public relations contacts with citizens
15
in the community) objectives of the patrol. (Ex. 86.) It provided separate paragraphs on
16
Conducting traffic stops on saturation patrol, and Conducting interviews
17
reference a contact or violators citizenship. (Id. (emphasis in original).) The revised
18
instructions also included a sentence that required MCSO officers to book anyone that
19
they observed committing a criminal offense. (Id.)

1)
20
Instructions on Conducting Stops
21
A paragraph in the instructions specified that [a]ll sworn personnel will conduct
22
all traffic stops in accordance with MCSO Policy and Procedures, as well as training
23
received at the basic academy level. Note: At no time will MCSO personnel stop a
24
vehicle based on the race of the subjects in the vehicle (racial profiling is prohibited).
25
(Ex. 86.) That general instruction remained in operation plans for many of the operations
26
thereafter, (Exs. 90, 97, 102, 111, 169, 174), and was further incorporated into the Triple
27
I team protocols, (Ex. 90 at MCSO 001888).
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2)
Instructions on Investigating Citizenship
The next paragraph in the operations plans contained specific instructions both to
officers who were 287(g) certified, and those who were not, about [c]onducting
interviews reference a contact or violators citizenship during a large scale saturation
patrol. (Ex 86 (emphasis in original).) Certified 287(g) officers were instructed that they
could conduct interviews regarding a persons citizenship status only when indicators
existed per the U.S. Immigration and Nationality Act, Title 8 U.S.C. 1324, 287g and
training received during the 287g training course. (Exs. 86, 90, 97, 102, 111, 169.) The
plans did not include the indicators set forth in 1324, but provided as an example that
10
[t]he violator does not have a valid identification and does not speak English.35 (Ex.
11
86.)
12
287g refers to the section of the act, codified at 8 U.S.C. 1357(g), that
13
authorizes ICE to certify local law enforcement authorities to enforce federal immigration
14
law. That section itself, however, provides no indicators as to unauthorized presence.
15
Nonetheless, as will be further discussed below, the plans reference to training received
16
[by MCSO officers] during the 287g training course explicitly authorized MCSO
17
18
19
20
21
22
23
24
25
26
27
35
In fact, while in appropriate circumstances an inability to speak English and an

inability to provide a drivers license may be indicators of unauthorized presence, neither
is an indicator listed under 1324. Section 1324 is the federal criminal smuggling statute,
which provides criminal penalties to anyone who knowing that a person is an alien,
brings to or attempts to bring to the United States in any manner whatsoever such person
at a place other than a designated port of entry. 8 U.S.C. 1324(a)(1)(A)(i) (2006). To
determine whether the person being smuggled in such circumstances is an alien, the
statute provides that any of the three following indicators shall be evidence that an alien
involved in the alleged violation had not received prior official authorization to come to,
enter, or reside in the United States: a) records of proceedings in which it was
determined that a person was not lawfully present, b) official State Department
documents showing that the person was not granted authorization to enter the country, or
c) testimony by a federal immigration officer with personal knowledge that a person is
not legally present in the country. Id. 1324(b)(3)(AC). The statute is silent on civil
immigration violations or factors like not speaking English or not carrying identification.
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deputies to consider race as one factor among others in forming reasonable suspicion in
an immigration enforcement context that a person is in the country without authorization.
The instructions also noted that a non-287(g) certified officer could detain persons
she or he believed were violating immigration law pending the arrival of a 287(g) officer,
but at no time could such a deputy call for a 287(g) certified deputy based on race.
(Exs. 86, 97.) However, this instruction was modified for subsequent saturation patrols to
indicate that at no time will a deputy call for a 287g certified deputy based just [or only]
on race. (Exs. 90 at MCSO 001898, (Mesa saturation patrol in June 2627, 2008)
(emphasis added), 102 (Sun City saturation patrol in August 2008) (at no time will a
10
deputy call for a 287g certified deputy based just on race), 111 (January 2009 in
11
Southwest Valley), 169 (September 2009 in Southwest Valley) (at no time will a deputy
12
call for a 287g certified deputy based only on race).) These instructions were also
13
incorporated into the III strike team protocols. (Ex. 90 at MCSO 001888.) This
14
modification made the MCSOs policy on how race could be considered consistent with
15
the instructions given to 287(g) certified officers about conducting interviews.
16
When presented with an operation plan which stated that officers could not call for
17
a 287(g) certified deputy based just on race, Sgt. Palmer confirmed that this meant that
18
officers could call a 287(g) certified officer based on race in combination with other
19
factors. (Tr. at 783:3.)
20
3)
Instruction to Book All Criminal Offenders
21
The operation plan also contained limited instruction concerning those individuals
22
deputies were required to arrest during saturation patrols. This instruction specified in
23
bold print that All criminal offenders will get booked. (Ex. 87.) These instructions,
24
then, while not indicating how deputies should handle civil violations, presumably
25
removed the discretion to issue criminal citations or give only warnings for minor
26
criminal conduct. According to the instruction, if the deputy witnessed or became aware
27
of criminal conduct during the operation, she or he must arrest and book the criminal
28
offender. A similar instruction appeared in the operation plans for many of the large-scale
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saturation patrols thereafter. (Exs. 86, 90, 97, 102, 111, 169, 174.)
b.
Large-Scale Saturation Patrol Results
By the Courts count, of the 727 arrests recorded during large scale saturation
patrols, 347nearly halfwere of persons who were not in the country legally. (Exs. 77,
79, 82, 87, 90, 97, 102, 111, 168, 170, 174, 176, 17982.) The MCSO itself arrived at an
even higher figure. (Ex. 359 (March 18, 2010 news release stating that, [a]ccording to
the Sheriff, the 13 previous two-day crime-suppression operations netted a total of 728
arrests. Some legal U.S. residents were arrested but of the 728 total arrests, 530 or 72%
were later determined to be illegal aliens.).)
10
During the large scale saturation patrols for which arrest records were placed in
11
evidence and last names were available, 496 out of 700 total arrests or 71% of all persons
12
arrested, had Hispanic surnames. (Exs. 79, 82, 87, 90, 97, 102, 111, 168, 170, 174, 176,
13
17982.) 341 of those arrests involved immigration-related offenses. (Id.) Of the 583
14
people who were arrested during saturation patrols that took place while the MCSO had
15
287(g) authority, and where records of the last names were kept, 414, or 71%, appeared
16
to have Hispanic surnames. (Exs. 79, 82, 87, 90, 97, 102, 111, 168, 170.) That percentage
17
remained consistent after ICE revoked the MCSOs 287(g) authorityeven then, 82 of
18
the 117 arrests (70%) involved a person with a Hispanic surname. (Exs. 174, 176, 179
19
82.)
c.
20
ICEs Revocation of the MCSOs 287(g) Authority
21
Prior to the actual revocation of 287(g) authority (announced in early October and
22
effective on October 16, 2009) MCSO began noting in its news releases that a move is
23
underway to suspend [Sheriff Arpaios] 287 G agreement. (Ex. 353.) ICE began
24
refusing to accept some of the persons that were arrested during MCSO saturation
25
patrols. (Exs. 128, 342.) And in saturation patrols the MCSO began for what appears to
26
be the first time to arrest some unauthorized aliens on the charge of conspiring to violate
27
the Arizona human smuggling law instead of making an arrest on federal immigration
28
charges. (Ex. 168.)

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Moreover, sometime before July 15, 2009, Chief Sands asked Sgt. Palmer to
conduct legal research into whether the MCSO had authority to enforce immigration law
absent the authorization of the Department of Homeland Security. (Tr. at 702:1924.)
Sgt. Palmer conducted an internet search, and copied his findings into an e-mail to Chief
Sands on July 15, 2009. (Id. at 703:11.) The e-mail stated that State and local law
enforcement officials have the general power to investigate and arrest violators of federal
immigration statutes without INS knowledge or approval, as long as they are authorized
to do so by state law. (Ex. 269.) It continued, [t]he 1996 immigration control legislation
passed by Congress was intended to encourage states and local agencies to participate in
10
the process of enforcing federal immigration laws. (Id.) The e-mail provided as a
11
citation for this proposition 8 U.S.C. 1324(a)(1)(A)(iv)(b)(iii).36
12
That section of the United States Code did not then and does not now exist.
13
Nevertheless, it apparently provided the impetus for Sheriff Arpaios public statements
14
that the MCSO maintained the authority to make immigration arrests despite ICEs
15
suspension of 287(g) authority. In his interview with Glenn Beck a few days after the
16
effective date of the ICE revocation, Sheriff Arpaio stated that MCSO officers retained
17
the authority to enforce federal immigration law because it had been granted by that law
18
in 1996, part of the comprehensive law that was passed, its in there. (Tr. at 364:24
19
363:5.)
20
In such interviews the Sheriff stated that the revocation of 287(g) authority did
21
not end the MCSOs attempts to enforce federal immigration law. At the time of the
22
revocation the MCSO had approximately 100 field deputies who were 287(g) certified.
23
(Exs. 356, 359, 360.) Shortly after the revocation of his 287(g) authority, Sheriff Arpaio
24
25
26
27
36
Sgt. Palmer also wrote an email to Lt. Sousa which claimed that all violations
of the INA are federal criminal violations. (Tr. at 708:1619.) During his 2010
deposition, Sgt. Palmer testified that the MCSO had inherent authority to enforce
immigration laws, based on training he had received from Kris Kobach. (Id. at 698:23
699:7.)
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decided to have all of his deputies trained on illegal immigration law. According to the
MCSO, that training enabled all MCSO deputies to make immigration arrests. An MCSO
news release dated March 18, 2010 notes:
4
5
6
7
Arpaio recently ordered that all 900 sworn deputies be properly trained to
enforce illegal immigration laws, a move made necessary after the recent
decision by Department of Homeland Security to take away the federal
authority of 100 deputies, all of whom had been formally trained by ICE
(Immigration and Customs Enforcement) to enforce federal immigration
laws.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
They took away the ability of 100 federally trained deputies to enforce
immigration laws, and so I replaced them with 900 sworn deputies, all of
whom are now in a position to enforce illegal immigration laws in
Maricopa County, Arpaio said.
(Ex. 359; see also Exs. 356, 358 (MCSO news release dated March 1, 2010 stating that
[t]hese arrests are a result of Sheriff Joe Arpaios recent promise to ensure that all 900 of
his sworn deputies receive training on the enforcement of illegal immigration laws.),
360, 362.)
This training erroneously instructed MCSO deputies that a person within the
country without authorization was necessarily committing a federal crime, and they thus
maintained the authority to detain them for criminal violations. (Tr. 699:3700:17.) Sgt.
Palmer continued to provide such instruction and training until December 2011, when
this Court entered its injunctive order preventing the MCSO from detaining persons on
the belief, without more, that those persons were in this country without legal
authorization. Ortega-Melendres, 836 F. Supp. 2d at 994.
At the same time, Sheriff Arpaio gave interviews to the national and local press in
which he asserted that if a person is in the country without authorization that person has
necessarily committed a criminal offense. They did commit a crime. They are here
illegally. (Tr. at 362:1721.)
After the revocation of his 287(g) authority the Sheriff continued to run numerous
saturation patrols that focused on arresting unauthorized immigrants. (Exs. 350
28
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([D]eputies turned over a total of 19 of the 30 suspected illegal aliens who were not
charged for any state violations to Immigration and Custom Enforcement officials
without incident.), 358, 359 (in the 13 previous operations 530 of 728 arrests were of
illegal aliens), 361, 362 (in the 14 previous operations, 436 of 839 arrests were of illegal
aliens, 78 of 111 arrests in most recent operation were of illegal aliens), 363 (63 of 93
arrests of illegal aliens), 367.) In such operations he continued to arrest and turn over to
ICE the unauthorized aliens that his deputies arrested during these patrols. (Ex. 360
(MCSO news release noting that 47 of 64 people arrested in a post-revocation saturation
patrol were illegal aliens. 27 of those 47 were arrested on state charges with the
10
remainder being turned over to ICE).) At trial, Sheriff Arpaio testified that he has
11
continued to enforce the immigration laws, human smuggling, employer sanction as he
12
did previously. (Tr. at 473:23474:2.)
13
In sum, according to the Sheriff, the loss of 287(g) authority did not affect how the
14
MCSO conducted its immigration related operations, including the saturation patrols. (Id.
15
at 469:23470:5). The Sheriff still maintains the right and intention to conduct such
16
operations today. (Tr. at 330:914, 469:20470:2; 473:5474:7; 474:2024.) Sheriff
17
Arpaio testified that the last saturation patrol the MCSO conducted prior to trial occurred
18
during October 2011 and was conducted in southwest Phoenix. (Id. at 474:813.)
19
Nevertheless, the Sheriff testified that the MCSO continues to engage in immigration
20
enforcement even though not using saturation patrols to do so. (Id. at 474:1424.) He
21
noted during his testimony that in the two weeks prior to trial, the MCSO arrested
22
approximately 40 unauthorized aliens, and those that it couldnt charge with a state
23
violation it successfully turned over to ICE. (Id. at 502:25503:6.)
24
Once the MCSO lost its 287(g) authority, it revised its operation plans for
25
saturation patrols. See Section I.D.3.a, supra. While the MCSO continued to assert the
26
authority to arrest and detain persons it believed to be in the country without
27
authorization but could not arrest on state charges, it had no practical authority to process
28
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them absent the participation of ICE.37 Neither the MCSO, nor any state authority, had
any prerogative to initiate removal proceedings, authorize voluntary departure or, in
appropriate cases, bring criminal immigration charges against such persons. See, e.g.,
Arizona v. United States, ___ U.S. ___, ___, 132 S. Ct. 2492, 250607 (2012); Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483484 (1999) (federal
government retains exclusive discretion on these matters); Martinez-Medina v. Holder,
673 F.3d 1029, 1036 (9th Cir. 2011).
Accordingly, the MCSO revised its operation plans for the large scale saturation
patrols. Lt. Sousa directed either Sgt. Palmer or Sgt. Madrid to draft what became known
10
as the LEAR Protocol. (Tr. at 1056:1423.) The LEAR protocol states that IF a Deputy
11
Sheriff believes with reasonable suspicion he has one or more illegal aliens detained
12
AND there are no state charges on which to book the subject(s) into jail THEN the
13
Deputy will follow the LEAR Procedures outlined below. (Ex. 174.) An officer is to call
14
a field supervisor to location when he has indicators as outlined above leading him to
15
believe (Reasonable Suspicion) a violator or other subject he is in lawful contact with is
16
in fact an illegal alien in the United States. (Id.) Thus the LEAR protocol authorized the
17
deputy to detain the individual prior to further processing from ICE.
18
Thereafter, the protocol requires the MCSO field supervisor to obtain and provide
19
a brief summary of the contact, including how the contact was made and what indicators
20
exist that lead to the belief the person is an illegal alien.38 (Id.) The operational plans
21
37
22
23
24
25
26
27
28
In a press interview, Sheriff Arpaio apparently stated, however, that if ICE

refused to take them he would load them on a bus and drive them to the border.(Ex.
348.) But aside from this comment in a newspaper article admitted into evidence, there is
no evidence that the MCSO actually did, or is doing so.
38
The LEAR procedures require the field supervisor to ensure that a detailed
written record of the encounter is made that includes all information concerning the
contact with any illegal aliens as well as any LEAR contact. (Ex. 174.) It specifies that
information that will be recorded includes . . . the full and complete name of the illegal
alien(s), the aliens DOB, full descriptors, an address in AZ if obtainable, the Deputys
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continue to specify that ICE LEAR will want to talk with the suspected illegal alien via
cell phone in order to confirm illegal alien status in the United States. ICE LEAR will
determine if their unit will respond to take custody of the illegal alien. (Id.) The policy
further specifies that [a]ny person detained solely for illegal alien status in the U.S.
whom LEAR refuses to respond for AND for which there is no other probable cause to
detail WILL be immediately released from custody. (Id.)
MCSO drafted, placed in effect, and trained all of its deputies on this policy. (Tr.
at 1055:141056:13, 1069:171070:18, 1076:1118.) This policy remains in force at the
MCSO. In determining who may be present without authorization for purposes of
10
application of the LEAR Policy, Lt. Sousa noted that MCSO officers still had the
11
[287(g)] training, so they could definitely still use the indicators from that training in
12
carrying out the LEAR policy. (Id. at 1007:611.)
13
II.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
SPECIFIC FINDINGS
Based on the facts presented at trial, the Court draws the following factual
conclusions:
1.
The purpose of the saturation patrols discussed above was to enforce

immigration laws.
Many MCSO administrators and deputies who testified acknowledged that

immigration enforcement was at least a primary purpose, if not the primary purpose, of
saturation patrols. During all types of saturation patrols discussed above, all participating
deputies were required to keep track of the number of unauthorized aliens they arrested
and report these figures to their supervising sergeants. The supervising sergeants
compiled and summarized these figures to emphasize the number of unauthorized aliens
arrested and the reports were sent to the MCSO command structure, including the public
relations department.
name and serial number making the original contact, a phone number to reach the
Deputy and the person the supervisor spoke to at LEAR. (Id.)
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The MCSO public relations department issued news releases discussing the
saturation patrols. These news releases either emphasized that the patrols purpose was
immigration enforcement, or prominently featured the number of unauthorized aliens
arrested during such operations. Most of the time, the reports ignored any other arrests
that took place.
6
7
The large-scale operation plans contained instructions on initiating investigations

into the citizenship status of persons contacted during the operation.
The arrest records also support this conclusion. Every person arrested during the
day labor operations was arrested on immigration charges. The vast majority of persons
10
arrested during small-scale saturation patrols were unauthorized aliens. Finally, a
11
significant number of persons arrested during the large-scale saturation patrols were
12
unauthorized aliens.
13
14
2.
ICE trained HSU officers that it was acceptable to consider race as one
factor among others in making law enforcement decisions in an
immigration context.
15
The testimony of MCSO officers and deputies makes clear that ICE training
16
allowed for the consideration of race as a factor in making immigration law enforcement
17
decisions. At trial, Sgt. Palmer testified that ICE training permitted the use of race as one
18
factor among many in stopping a vehicle, (Tr. at 715:319), and that ICE trained him that
19
Mexican Ancestry could be one among other factors that would provide him reasonable
20
suspicion that a person is not lawfully present in the United States (id. at 715:912). Sgt.
21
Madrid testified that he was trained by ICE that a subjects race was one relevant factor
22
among others that officers could use to develop reasonable suspicion that a subject was
23
unlawfully present in the United States. (Id. at 1164:4-12.)
24
Lt. Sousa testified at his deposition that since he was not 287(g) certified and his
25
sergeants were, when it came to what ICE taught in 287(g) training regarding the use of
26
race, I would have to rely on my sergeants, and that when we start getting into all the
27
specifics, thats when I lean on my sergeants. (Doc. 431-1, Ex. 90 at 56:1519.)
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Nevertheless, Lt. Sousa testified at trial that it was his understanding that ICE officers
taught MCSO deputies in their 287(g) training that while race could not be used even as
one factor when making an initial stop, it could be used as one of a number of indicators
to extend a stop and investigate a persons alienage. (Tr. at 1016:37.)
Similarly, the ICE 287(g) training manual expressly allows for consideration of
race. The 287(g) training manual for January 2008 that was admitted in the record cites to
United States v. Brignoni-Ponce, 422 U.S. 873 (1975), for the proposition that apparent
Mexican ancestry was a relevant factor that could be used in forming a reasonable
suspicion that a person is in the country without authorization but standing alone was
10
insufficient to stop the individuals. (Ex. 68 at 7.) In referring to Brignoni-Ponce, the ICE
11
materials go on to observe that [t]his is an administrative case but it also applies in
12
criminal proceedings and further notes that [a]n example of this in action in the
13
criminal context is that a LEA Officer cannot stop a vehicle for an investigation into
14
smuggling just because the occupants appear Mexican. (Id.)
15
Alonzo Pena, ICEs Special Agent in Charge of Arizona at the time that ICE
16
began its 287(g) certification training of MCSO officers, testified that it was his
17
understanding that officers with 287(g) authority can form a reasonable suspicion that a
18
person is unlawfully present when several factors in combination are present, with race
19
being one of those factors. (Tr. at 1831:17832:19.) Agent Pena does not believe that
20
race is sufficient in and of itself to give rise to such suspicion, but he does believe that
21
race can be a factor in forming such a suspicion. (Id.)
22
25
In an immigration enforcement context, the MCSO did not believe that

it constituted racial profiling to consider race as one factor among
others in making law enforcement decisions. Its written operational
plans and policy descriptions confirmed that in the context of
immigration enforcement, the MCSO could consider race as one factor
among others.
26
The MCSO has no general written policy concerning racial profiling. (Id. at
27
465:1824.) In his trial testimony the Sheriff acknowledged that he had earlier testified
23
24
3.
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that the MCSO does not need a training program to prevent racial profiling because he
did not believe the MCSO engages in racial profiling. (Id. at 466:1619.) He further
testified that he believes that the MCSO is the most trained law enforcement agency in
the country with the five weeks of training from the government, [presumably the 287(g)
training for those deputies who received it], academy training, in-house training. (Id. at
465:2124.)
The large-scale saturation patrol operation plans written after April 2008 refer
deputies to the MCSO Academy training they received about racial profiling. MCSO
witnesses who testified concerning the Academy training stated that they received brief
10
and generalized instruction regarding racial profiling, but could remember nothing else
11
about it.39 There was no testimony that such training defined racial profiling or provided
12
any instruction to officers on how to proceed in the circumstances present in Maricopa
13
County when the MCSO decided to enforce immigration laws.
14
In addition to the Academy training, Sgt. Madrid testified that Lt. Sousa would
15
also yell at the briefings prior to the large-scale saturation patrols that we dont
16
racially profile . . . several times to make sure everybody was clear. (Id. at 1191:57.)
17
Again, no definition of racial profiling was provided during those instructions, and no
18
19
20
21
22
23
24
25
26
39
Deputy Rangel testified that he was trained not to racially profile as part of a
course on criminal law, and received no further academy or in-service training from the
MCSO on racial bias. (Tr. at 899:410.) Deputy Armendariz believed the MCSO training
was part of a basic ethics class, and described it as follows: I believe it was short and
sweet, and we dont racial profile. (Id. at 1549:1720.) He remembers being told not to
racially profile, but has never received a definition of what racial profiling meant. (Id.at
1151:1821.) Deputy DiPietro does not recall how the term racial profiling was defined
during his training prohibiting racial profiling. (Id. at 320:35.) When asked if he was
trained at the MCSO academy regarding the prohibition on racial profiling, Sgt. Palmer
stated that he believe[s] there was such training. (Id. at 753:36.) Sgt. Madrid states
that he is sure there was training at the academy level prohibiting racial profiling, but
that I dont specifically remember it now. (Id. at 1214:1719.)
27
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examples of what would constitute racial profiling were offered. (Id. at 1215:512.)
Further, as Lt. Sousa himself testified, when he issued such oral instruction he also told
those assembled that he knew that they were not racially profiling, but that he was giving
the briefing to remind you of what people are saying out there and being proactive. (Id.
at 1024:1821, 1025:68.) According to his testimony a primary reason he issued the
instruction was not because he deemed it necessary, but so he could demonstrate to the
public that his officers were receiving such instruction and testify during this lawsuit that
he had in fact issued such instructions. (Id. at 1025:1217.)
The MCSO introduced in evidence an electronic bulletin board posting on the
10
MCSOs electronic Briefing Board for October 21, 2008, where the MCSO published
11
its Illegal Immigration Enforcement Protocols. That posting repeated the instruction that
12
also appeared in the large-scale saturation patrol operations plans after April 2008. At no
13
time will sworn personnel stop a vehicle based on the race of any subject in a vehicle.
14
Racial profiling is prohibited and will not be tolerated. (Ex. 92 at 3 (emphasis in
15
original).) All those who testified in this lawsuit agreed that it constituted impermissible
16
racial profiling for a law enforcement officer to stop a person for a law enforcement
17
purpose based uniquely or primarily on a persons race.40 Nevertheless, a number of
18
19
20
21
22
23
24
25
26
27
28
40
Sheriff Arpaio testified when presented with a hypothetical example of a law

enforcement officer stopping a person solely because of his race, that that would be
racial profiling. (Id. at 468:21469:5.) MCSOs police practices expert, former Dallas
Police Chief Bennie Click defined racial profiling as the unlawful, discriminatory
practice of treating race, ethnicity or skin color as a primary indication of criminal
conduct. (Ex. 1070 at 43 (emphasis added).) Agent Pena defined racial profiling as
picking an individual for law enforcement action based solely on his race and no other
particular criteria, and understood that ICE 287(g) certification process included training
that racial profiling was prohibited under this definition. (Tr. at 1818:241819:3.) Agent
Jason Kidd of ICE defined racial profiling as the use of race as a determining factor
for a law enforcement activity. (Id. at 1388:1516.) Lt. Sousa went so far as to testify
that it would constitute racial profiling to make a law enforcement contact based on
race, even as one among other factors. (Id. at 1015:711.) Deputy Kikes testified that
when instructed not to engage in racial profiling, that meant that [y]ou don't just pick on
thethe Chinese, the Americans, the whites, the blacks, the browns, the greens.
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MCSO witnesses also testified it was appropriate to consider race as one factor among
others in making law enforcement decisions in an immigration enforcement context.
As the operations plans themselves and other public pronouncements of the
MCSO make plain, while officers were prohibited from using race as the only basis to
undertake a law enforcement investigation, they were allowed as a matter of policy and
instruction to consider race as one factor among others in making law enforcement
decisions in the context of immigration enforcement. For example, while prohibiting
racial profiling generally, the operations plans simultaneously instruct MCSO officers
that they may consider the race of persons they encountered as one factor among others
10
in making law enforcement decisions. First, according to the operations plans, a 287(g)
11
certified officer should initiate investigations into a persons citizenship status when
12
indicators existed per . . . the training received during the 287g training course. (Exs. 86,
13
90, 92, 97, 102, 111, 169.) The testimony at trial was uniform that during their 287(g)
14
training course MCSO officers were taught that they could use race as one indicator
15
among others in forming reasonable suspicion that a person was in the country without
16
authorization.
17
Second, the operations plans instructed MCSO officers who were not 287(g)
18
certified that they should not summon a 287(g) certified officer to the scene to investigate
19
a persons immigration status based only on that persons race. (Ex. 90 at MCSO 001898;
20
Exs. 102, 111, 169.) In discussing this instruction at trial, both Sgts. Palmer and Madrid
21
testified that, under such instruction, MCSO officers could consider the race of the
22
subject as one factor among others in making such a determination; they just could not
23
24
25
26
27
Anybody and everybody who had a violation was to be stopped; was to be cited; was to
be pulled over. (Id. at 612:1013.) Deputy Armendariz, an HSU deputy, testified that
ICE training provided a list of indicators with which to do investigations. He does not
recall if race was one of the indicators. (Id. at 1486:191487:13.) Deputy Ratcliffe stated
that during his 287(g) training, he was taught that there was no place for the use of race
in making law enforcement decisions. (Tr. at 1355:810.)
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consider the subjects race as the only factor. (Tr. at 782:811, 783:3, 1162:1423,
1170:515.) This testimony reasonably acknowledged the obvious: that while MCSO
policy prohibits using race as the only or sole factor, it still permits an officer to use race
as a factor in making a law enforcement decision.
The MCSOs frequently-issued news releases reflect this understanding. In one,
the MCSO described its policy pertaining to decisions about whom to pull over during
these operations. (Ex. 342.) Like the operation plans, the policy described in the news
release prohibits racial profiling without defining the term, while at the same time
permitting the use of race as a factor in an officers decision to pull over a vehicle. (Id.)
10
In the news release the Sheriff is quoted as saying, All stops will be made in full
11
accordance with Sheriffs Office policy and procedures and at no time will any vehicle be
12
stopped solely because of the race of the occupants inside that vehicle. Racial profiling is
13
strictly prohibited, Arpaio says. (Id. (emphasis added).) In interpreting similar language
14
in the operations plans that governed when a non-certified deputy should summon a
15
certified deputy to initiate an immigration investigation, Sgts. Palmer and Madrid noted
16
that in prohibiting such a deputy from acting solely based on the race of the subject, the
17
policy permitted the deputy to consider race as one factor among others in deciding to
18
act. (Tr. at 782:811, 783:3, 1162:1423, 1170:515.) This same understanding would
19
apply to the MCSO policy that prohibits using race as the sole factor in deciding to pull
20
over a vehicle during a saturation patrol. (Ex. 342.)
21
Further, as is discussed below, both Sgts. Palmer and Madrid testified that so long
22
as there was a legitimate basis for an officer to pull over a vehicle for a traffic infraction,
23
there was by definition no racial profiling involved in the stop. For example, Sgt. Palmer
24
testified that if, in reviewing arrest reports, he saw that a deputy had reported that he had
25
reasonable suspicion to justify a stop that meant the deputy did not engage in racial
26
profiling. (Tr. at 724:22725:1.) Sgt. Madrid testified that if he determined that an
27
officer had probable cause to make a stop, he wouldnt even suspect that the officer had
28
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Thus, as illustrated by these operation plans and news releases, while the MCSO
did prohibit racial profiling, it understood racial profiling to mean making law
enforcement decisions based exclusively on racial factors. The MCSO did not understand
this term, in an immigration context, to prohibit the use of race as a factor among others
in making a law enforcement decision. Thus, MCSO deputies could consider race as one
factor in stopping a vehicle or initiating an investigation so long as race was not the sole
basis on which deputies made that decision. Accordingly, the Court finds that the MCSO
operated pursuant to policies that, while prohibiting racial profiling, did not require
MCSO officers to be race-neutral in deciding how to act with respect to immigration
10
investigations; the policies merely required that race not be the sole reason for their
11
decision.
12
4.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The MCSO considered Latino ancestry as one factor among others in

choosing the location for saturation patrols.
The MCSO almost always scheduled its day labor and small-scale saturation
patrols where Latino day laborers congregated; the same is true for a considerable
number of its large-scale saturation patrols.
The MCSO witnesses uniformly testified that there is nothing about being a day
laborer per se that is illegal. But, as both the testimony at trial and a number of MCSOs
news releases demonstrate, in selecting locations for day labor, small-scale and largescale saturation patrols, the MCSO equated being a day laborer with being an illegal
alien. (Exs. 307 (news release describing a crackdown on illegal aliens at a day labor
center), 308 (news release entitled Sheriff Arpaio Goes After Day Laborers), 309 (news
release referring to illegal immigrant day laborers and pro-illegal day laborer
supporters who continue to protest the Sheriffs MCSO policies at Pruitts Furniture
Store), 310 (anticipating the arrest of many unauthorized aliens in the Pruitts location
because it remains a popular spot for day laborers), 311 (news release which noted there
are two legal day laborer centers in the Bell Road area which are magnets for more
illegal aliens); see also Doc. 453 at 150 36 (the MCSO acknowledges that many
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MCSO officers thought day laborers were illegal aliens).) It is presumably for this reason
that the MCSO news releases invited Maricopa County citizens to report day laborers to
the MCSO on its immigration hotline. (Ex. 309 (The Sheriff recently initiated an Illegal
Immigration Hot Line . . . to help citizens report information regarding illegal aliens.
Since the tip line was implemented, over 120 calls of 2,100 have been received
specifically about day laborers.).)
Theoretically, the MCSO could have selected sites for operations due only to the
presence of day laborers absent any racial considerations. A day laborer is neither
necessarily Latino nor unauthorized. And there is nothing about being a day laborer that
10
is, in and of itself, illegal. (Tr. at 386:1722, 1193:89, 864:24.) But the MCSO did not
11
conduct operations in which it simply checked the identity and immigration status of all
12
day laborers. Nor did it present at trial evidence that would suggest that during the time it
13
had 287(g) authority, it had a reasonable basis on which to form a suspicion that any day
14
laborer, regardless of race, was an unauthorized alien. Rather, pursuant to at least its own
15
policy, the MCSO had to have a basis under Arizona law to stop and question persons
16
prior to checking their immigration status. When the MCSOs underlying purpose was
17
immigration enforcement and not traffic enforcement it implemented that policy by
18
directing patrol vehicles to follow and strictly enforce all requirements of the traffic code
19
against vehicles that picked up Latino day laborers. Sgt. Madrid, and Deputies Rangel
20
and DiPietro confirmed that the purpose of the day labor and small-scale operations was
21
to investigate day laborers for their immigration status. (Tr. at 1152: 1214, 792:124,
22
908:811, 1137:68.)
23
The evidence demonstrates that the MCSO specifically equated being a Hispanic
24
or Mexican (as opposed to Caucasian or African-American) day laborer with being an
25
unauthorized alien. (Exs. 308 (MCSO news release asserting that the only sanctuary for
26
illegal alien day laborers is in Mexico), 310 (MCSO news release asserting that despite
27
the anticipated arrest of many illegal aliens the MCSO is not engaged in racial
28
profiling.), 311; see also Doc 453 at 150 2830 (the MCSO acknowledging that the
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Sheriff and MCSO deputies believed the overwhelming number of illegal aliens in
Maricopa County are from Mexico and South America).) In his testimony Sheriff Arpaio
acknowledged that he would not investigate Caucasians for immigration compliance
because it would not have occurred to him that they were in the country without
authorization. (Tr. at 441:22442:3.) For the totality of all of the MCSO operations in
which it targeted and arrested day laborers, Chief Sands could not identify a single
instance in which the MCSO arrested a day laborer who was not Hispanic on any charge.
(Doc. 530 at 1 84.) Similarly, there is no evidence that undercover officers directed
patrol officers during day labor operations to stop vehicles that had picked up day
10
laborers that were not Latino. Thus, the Court concludes as a matter of fact that MCSO
11
officers, who believed that Latino day laborers were unauthorized, centered day labor
12
operations in locations where specifically Latino day laborers assembled, and where
13
MCSO deputies perceived they had a higher likelihood of encountering persons present
14
in the country in violation of immigration laws. The logistics of such operations, together
15
with other evidence introduced at trial, show that the MCSO used this combination of
16
race and work status in determining where to locate operations in which it would target
17
vehicles for pretextual enforcement of traffic regulations to investigate immigration
18
status.
19
However, several MCSO witnesses testified that the locations for these operations
20
were selected in response to complaints about day laborers being involved in other illegal
21
activity, and not principally to enforce immigrations laws against Hispanics. While the
22
Court recognizes that a single law enforcement operation can serve multiple purposes,
23
and that law enforcement officials are entitled to considerable deference in locating and
24
conducting their operations, the Court does not credit such testimony because, among
25
other reasons, there are in the record some direct connections between a citizen complaint
26
regarding Hispanics and Latinos congregating in a certain area and an MCSO
27
enforcement action.
28
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A.
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3
4
5
6
7
8
9
10
11
12
13
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16
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19
20
21
22
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27
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The Cave Creek day labor operation was not in response to

public safety issues presented by the gathering of day laborers.
According to the news release issued by the MCSO after the first Cave Creek
operation, the genesis for that operation was tips received on [Sheriff Arpaios] newly
implemented illegal immigration hotline about a local church providing assistance to
day laborers. (Ex. 307.) According to the news release, the day laborers also caused
public safety issues along Cave Creek Road. (Id.) However, on September 19 and 22,
2007, several days previous to the September 27 operation, Latino HSU officers went
undercover to the church, signed up for work, and verified the presence of day laborers
inside the church parking lot. The undercover reports detailed that the Good Shepherd of
the Hills congregation allowed day laborers to sign-in and wait inside their property
to be employed, in turn, by those who wished to hire day laborers. (Ex. 122.) The Church
would post a sign outside on the street, noting the availability inside the property of day
laborers for hire. (Id.) The undercover investigation discovered no information
pertaining to forced labor, human smuggling, or possible drop houses.41 (Id.) And, of
course, the reports contained nothing about the day laborers in the church parking lot
causing public safety problems along Cave Creek Road. Nevertheless, on the September
27, the MCSO conducted a day labor operation at the church.
As the undercover reports indicated, the day laborers gathered inside the parking
lot of the church. Thus, the day labor operation at the church was not conducted because
the day laborers presented public safety issues on Cave Creek Road. Further, no arrests
were made or citations issued during the operation on such a basis.42 Thus while the
41
In an email sent on September 24, 2007, Deputy Sean Ross informed Lt. Sousa
that Deputies Rangel and Gonzalez had gone to the church undercover. (Ex. 122.) At
trial, Deputy Rangel denied that he had done so. (Tr. at 908:1219.)
42
There is evidence that day laborers gathered at other locations in Cave Creek
that may have caused such problems. For example, when a day labor operation was
scheduled for a Cave Creek location several weeks later, deputies discovered that the
problem along Cave Creek Road was at least temporarily cured by a Cave Creek anti-
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Court credits the news release to the extent that it announced the results of an operation
launched at a Church that assisted day laborers, it does not credit the statement that the
operation was in response to traffic problems along Cave Creek Road.
B.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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22
23
24
25
26
27
The Queen Creek day labor operation was a response to citizen

complaints about the presence of Hispanic day laborers.
The second day labor operation in Queen Creek on October 4, 2007, was also
connected to a specific complaint regarding Hispanic day laborers. Two days before the
operation, the Queen Creek Town Manager had forwarded a complaint to Lieutenant
DAmicowho was the MCSO lieutenant in charge of the MCSO district incorporating
Queen Creekthat had been originally sent to the Queen Creek Mayor and town
council.43 (Ex. 219.) In the complaint, the author states that a Hispanic man jeered at her
on the corner of Ocotillo and Ellsworth. (Id.) According to the e-mail He then ran back
to another Hispanic man and exchanged high fives while both laughed. (Id.) The e-mail
further stated [t]hen as I turned right another Hispanic man on the same corner, gave me
what I would describe as a very intimidating look. Kids passing this area when on the
school bus have seen Hispanic man [sic] take out cell phones and look like they were
taking a picture of the kids. These men have whistled or made other noises at very young
teenage girls. (Id.)
The next day, October 3, Lieutenant DAmico forwarded the complaint to
Lieutenant Sousa, the commander of the HSU. (Id.) The day after that, October 4, the
HSU conducted a day labor operation at the corner detailed in the complaintOcotillo
loitering ordinance that had recently become effective and the MCSO presence in the
area. As a result they engaged in no day labor operations and the only person on whom
they conducted a traffic stop was apparently not eligible for 287g action. (Ex. 121.)
Follow-up patrols took place at both the church and along the Carefree Highway in Cave
Creek during the following year. (See, e.g., Ex. 186.)
43
The Town Manager appears to have forwarded the complaint at the request of
Lieutenant DAmico. (Ex. 219.)
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and Ellsworth. (Id.)
When he was presented with the exhibit containing the e-mail complaint and its
transmission history at trial, Sheriff Arpaio testified that he could not tell whether any of
the conduct complained of in the exhibit was criminal, but would have referred the matter
for investigation. (Tr. at 390:16391:5.) He further testified that the e-mail complaint
would not have resulted in the Queen Creek operation by the MCSO without some
conclusion that a crime had been committed because the MCSO does not just go
grabbing people on street corners unless we have a crime committed. (Id. at 392:1415.)
He further testified that the MCSO would not have had time to mount the Queen Creek
10
operation between the time that it received the complaint and the time that the operation
11
occurred two days later, because it takes three to four weeks to plan such an operation.
12
(Id. at 393:614.) At any rate, he testified, those who were arrested in the Queen Creek
13
operation were arrested by the MCSO for committing state crimes, (id. at 392:1693:5),
14
and thus their arrest presumably did not demonstrate that MCSO was conducting
15
operations against Latino day laborers purely on the basis that they were Latino day
16
laborers.
17
However, as the contemporaneous records and other testimony demonstrate,
18
Sheriff Arpaios testimony in this respect is incorrect. On the same day as the Queen
19
Creek operation, Lt. Sousa forwarded the e-mail complaint to Paul Chagolla, who ran the
20
MCSOs public relations, with a designation of high importance. The MCSO swiftly
21
issued a news release that day titled Sheriff Arpaio Goes After Day Laborers. It
22
confirmed that the operation was in response to the citizens complaint. The news release
23
noted: [t]oday, Maricopa County Sheriffs Joe Arpaios Office [sic] Illegal Immigration
24
Interdiction Unit (Triple I), responding to Queen Creek citizen complaints regarding day
25
laborers harassing school children at a bus stop, arrested 16 more illegal aliens under the
26
federal immigration laws. The news release further noted [c]itizens complained that
27
day laborers are shouting at the children and photographing them at the bus stop.
28
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Sheriffs deputies contacted the 16 illegals during traffic investigations.44 (Ex. 308.)
The news release directly refers to the complaint received by Lieutenant Sousa
only a day before as the reason for the operation regarding Hispanic day laborers, and
notes that the operation was run by the Illegal Immigration Interdiction Unit. (Id.) As the
news release also states, the 16 persons were arrested not for state crimes, but for federal
immigration violations and turned over to ICE. (Id.; Ex. 129.) Thus, the evidence
demonstrates that on October 4, 2007, the MCSO conducted a small-scale saturation
patrol on the corner of Ellsworth and Ocotillo, based on a complaint transmitted to the
MCSO on October 2 that Hispanic day laborers congregated there.
10
C.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
The Pruitts day labor operations were a response to complaints

of day laborers and illegal immigration.
By October 2007, the MCSO had been aware for two years that the area around
Pruitts Furniture Store was a significant gathering spot for Latino day laborers. In late
November 2005, the Sheriff received a letter from the Minuteman Civil Defense Corps, a
group of citizens concerned about illegal immigration who conducted protest rallies at
day labor sites and pick up points throughout the valley. (Ex. 385.) In their letter to
Sheriff Arpaio they identified two significant day laborer centers, one at 36th Street and
Thomas (Pruitts), and the other at Cave Creek and Bell Roads. (Id.) The letter
described how the past weekend there had been around 100 day laborers, 30 minuteman
protestors, six members of the American Civil Liberties Union (ACLU), and members
of the media to report on the day[]s activities at the Pruitts site. (Id.) The letter further
44
This news release also refers to the Sheriffs previous enforcement efforts in
Wickenburg and Cave Creek that resulted in 34 arrests of unauthorized persons. Because
the September 27 Cave Creek operation resulted in 9 arrests, the Court infers, pursuant to
its Order, (Docs. 261, 493) that a previous day labor operation at Wickenburg resulted in
the arrest of 25 unauthorized aliens. The news release further claims that [s]ince the hot
line began operating 96 illegal aliens have been arrested by Sheriffs deputies. (Ex. 308.)
The Court thus infers that other operations occurred in which 46 other unauthorized
aliens were arrested.
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informed the Sheriff that [w]e will hold these rallies every Saturday until the end of the
year, and complained that neither Phoenix Police nor ICE would respond to the
Minutemens request to investigate day laborers. (Id.)
The letter, which equated day laborers with illegal immigrants, stated that the
Minutemen want to work with an organization that is willing to investigate and deport
illegal immigrants when they are spotted in our cities, and further asked [i]s it
unreasonable to ask our police to question day laborers about their immigration status?
(Id.) Sheriff Arpaio suggested an internal meeting about how to respond to this group.
(Tr. 329:711; Ex. 385.) Although the MCSOs actions at these locations almost two
10
years after the date of the letter is hardly a direct response to the letter, the letter and
11
Sheriff Arpaios notations on it demonstrate the MCSOs knowledge of the group, the
12
day labor centers of which it complained, and that these locations were areas of activism
13
and press coverage regarding immigration issues.
14
The Friday before the Monday, October 15 operation occurred, MCSO Detective
15
Gabriel Almanza had a conversation with a doctor whose office was located in the
16
commercial complex adjacent to Pruitts and who was also aware of an apparent
17
successful operation previously conducted by the MCSO at the day labor locations at
18
Cave Creek and Bell Road. The detective asked the doctor to send him an e-mail
19
memorializing their conversation. (Ex. 124.) The doctor did so.
20
After commenting that what you did out at 25th St. and Bell was wonderful!45
21
the e-mail complained of the high concentration of day laborers who were illegal
22
immigrants and congregated in the commercial complex at 36th Street and Thomas. (Id.)
23
According to her e-mail, the day laborers were all illegal because they admit it when
24
asked. (Id.) She complained that they harassed her patients, made sexual innuendos,
25
26
27
45
The MCSO was thus apparently involved in similar unreported operations at

25 St. and Bell Roads. The Court therefore infers, pursuant to its order, (Docs. 261,
493), that previous day labor operations occurred at 25th St. and Bell Roads.
th
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trespassed, loitered, littered, blocked sidewalks, urinated and defecated on the property
and showed their bellies to everyone. (Id.) The doctor also complained that the
neighborhood had become a focal point in which neighborhood residents had regular
showdowns with Hispanic Rights advocates since the owner of Pruitts Furniture Store
had forced the day laborers off of his property. (Id. (Reza & Gutierrez staged a large
chanting protest at Pruitts to shut Pruitts out of business for kicking them off his
property, and Salvador Reza & Alfredo Gutierrez come out here every other week &
tell these workers they can do anything they want anytime and are protected. We know
this because [O]fficer Ruelas said they told him this & we see Reza out here all the
10
time.).)
11
The following Monday, October 15, 2007, the HSU conducted a day labor patrol
12
in this location. (Ex. 131.) Although MCSO successfully sought to have the complainant
13
document her complaint in an e-mail, MCSOs resulting operation was not targeted at
14
those persons who committed the acts complained of. Rather, during the day labor
15
operations at Pruitts, just as with the previous operations, the MCSO targeted vehicles
16
picking up day laborers and arrested them only on federal immigration charges. (Id.)
17
A week later, the MCSO also conducted a day labor operation in Fountain Hills
18
based on information provided by local businesses that day laborers were in the area with
19
no other specific complaint being made. (Doc. 123) All persons were arrested on federal
20
violations and turned over to ICE.
21
Despite the yield from the Pruitts operation being disappointing to Sgt. Madrid,
22
(see, e.g., Ex. 131 (It should be noted that this area had far less day laborers in the area
23
than our two previous details completed by HSU.)), the MCSO continued to run its
24
small-scale saturation patrols at and around that location because of the activism and
25
resulting media focus that the location had drawn. (Ex. 309.)
26
In its December 5, 2007 news release, the MCSO noted that Sheriff Arpaio is set
27
to increase the presence at Pruitts of his Illegal Immigration Interdiction Unit (Triple I)
28
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laborers continue to protest his illegal immigration policies on the driveways of the
Pruitts Furniture Store. (Ex. 309.) The news release further observed that [i]llegal
immigration activists have protested at Pruitts every Saturday in the last six weeks since
Sheriff Arpaios deputies began patrolling the vicinity. (Id.) In response, Sheriff Arpaio
pledged to keep running such operations until the activists stopped their protests. This
weekend, I will increase the number [of] deputies to patrol the Pruitts area, and I
promise that my deputies will arrest all violators of the state and federal immigration
laws. . . . I will not give up. All the activists must stop their protest before I stop
enforcing law in that area. (Id.; see also Ex. 124 (noting the repeated presence of press,
10
and Hispanic activists Alfredo Gutierrez and Salvador Reza).) This scheduling of small-
11
scale patrols in response to the activities of activists may be equally or more indicative of
12
Sheriff Arpaios desire to generate media attention of his immigration enforcement
13
activity than of the MCSOs use of race in selecting locations for patrols. Nevertheless,
14
the selection of this location because of the presence of Hispanic activists is indicative of
15
the MCSOs focus on illegal immigration on conducting patrols, and its general
16
association of day laborers with illegal immigration.
17
18
19
20
21
22
23
24
25
26
27
28
D.
The Mesa small-scale patrols were in response to complaints

about illegal immigration and Mexicans.
Contemporaneous with the small-scale operations scheduled at Pruitts, the MCSO

began conducting similar small-scale patrols in Mesa in response to citizen complaints. In
late September 2007, Sheriff Arpaio reviewed transcribed comments from the MCSOs
immigration hot line. One of the callers stated: [w]e have called the non-emergency and
illegal hot line numerous times and nobody gets all the Mexicans hanging out at Mesa Dr.
between Southern and Broadway. Why isnt anything being done? (Ex. 375.) The
Sheriff highlighted that hot line entry and sent the comment and his annotation to Chief
Sands and Deputy Sheriff Hendershott, and placed a copy of the comment in his
immigration file. (Id.)
Beginning on November 15, 2007, the MCSO conducted three separate saturation
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patrols in that same neighborhood (Broadway and Stapley), with stops and arrests
occurring in the several square miles surrounding that intersection. Almost all persons
arrested during these operations were transported to ICE and processed for violating
federal immigration law, although a few were also processed on state charges.
5
6
7
8
9
10
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12
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14
15
16
17
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E.
The large-scale patrols were conducted to target Hispanic

unauthorized immigrants.
As with the day labor and small-scale saturation patrols, many of the large-scale
saturation patrols were centered either on locations where day laborers gathered, or on
locations that had a high concentration of Latino residents. Chief Sands testified at trial
that although he would take direction from Sheriff Arpaio if he ever gave it in
designating a location for a large-scale saturation patrol, it was generally Chief Sands that
selected the locations. (Tr. at 707:1618, 809:20810:3, 814:21815:1, 824:24825:6.)
He acknowledged that in selecting some of the locations he considered complaints from
members of the public and from businesses about day labor activity. (Id. at 790:5791:11,
814:21 25.) However, he testified that that he would not conduct a saturation patrol based
solely on a complaint that did not allege violations of law. (Id. at 795:1821.)
When considered in light of the reasons the MCSO contemporaneously gave in the
news releases that announced the pending operations, this testimony is not quite as
persuasive. As the news release announcing the first large scale saturation patrol
demonstrates, the principal reason the site was chosen was because, even after the
departure of the activists, the location remained a gathering spot for day laborers which
the MCSO knew to be Hispanic. The news release quoted the Sheriff as saying that
[t]he protestors who support the illegal immigration movement may have
left the area, but the problems that caused Pruitts Furniture Store to
contract with the Sheriffs Office for security still exist. . . . The posse
volunteers and deputy sheriffs will not racially profile anyone in this
operation . . . . Still, I anticipate that many illegal immigrants will be
arrested as this central Phoenix neighborhood remains a popular spot for
day laborers. All criminal violations will be subject to arrest which means if
we come across illegals, properly trained officers will be there to enforce
the state and federal immigration laws.
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(Ex. 310.) The next large-scale saturation patrol operation likewise centered on this same
location.
When the MCSO initiated its third large-scale saturation patrol at the intersection
of Cave Creek and Bell Road, the MCSO news releases again demonstrate that this site
was chosen because of the presence of Latino day laborers. The MCSO stated that the site
had two day laborer centers which are magnets for more illegal aliens and which create
an atmosphere detrimental to business. (Ex. 311 (Hundreds of the Sheriffs volunteer
armed posse member and deputies will migrate today . . . from central Phoenix and the
Thomas Road area to 25th Street and Bell Road to assist with the atmosphere
10
detrimental to business created by the growing number of day laborers in the area.).)
11
The news release goes on to note that the operation would address at least two day
12
laborer centers in the Bell Road area which are magnets for more illegal aliens.46 (Id.)
13
Further, this was the location that, together with the Pruitts location, the Minuteman had
14
identified to the MCSO two years earlier as a frequent day labor location. Finally, the
15
MCSO had previously conducted the January 4, 2008 small-scale saturation patrol at this
16
location (Ex. 114) and at least one earlier operation for which records were not submitted
17
at trial.
18
The fourth large-scale saturation patrol occurred on April 34, 2008, at
19
Guadalupe. (Ex. 87.) The MCSO also considered race as one factor among others in
20
selecting Guadalupe as the site for a large-scale saturation patrol. Although the news
21
release announcing the operation stated that Guadalupe was selected because tensions
22
are escalating between illegal aliens and town residents, (Ex. 313), there was no
23
46
24
25
26
27
Chief Sands testified that he planned a saturation patrol on Bell Road and Cave
Creek Road because Sheriff Arpaio requested that he conduct a saturation patrol there
after receiving a written request from ten business owners. (Tr. at 797:1520.) Chief
Sands is not aware of any effort made by the MCSO to investigate the claims made by
the small business owners, interview them, or check the sources of the letter in any way
before planning and executing the saturation patrol. (Id. at 797:24798:15.)
28
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testimony or evidence as to how the MCSO came to that conclusion. Chief Sands
testified that he does not necessarily consult crime data to select saturation patrol
locations, and would not use an increase in crime to determine where to have a saturation
patrol. (Tr. at 787:25788:8.) He testified that any crime analysis he did conduct would
be attached to the saturation patrol operation plans. (Id. at 789:1013.) The operations
plans for the saturation patrol in Guadalupe have no crime analysis attached.47
Further, the only document in evidence that even suggests a reason for the
operation is an e-mail written by Lt. Siemens to various contacts in the police
departments of the adjacent municipalities in advance of the patrol that describes the
10
operation as a response to the MCSO District 1 Commanders complaint of increased
11
criminal and gang activity in the area. (Ex. 87 at MCSO 0018767.) No mention of
12
illegal aliens is made.
13
It is also clear that the MCSO did not conduct the saturation patrol at the request
14
of the town. In fact, during the middle of the operation, the town mayor asked the MCSO
15
to cease the operation and leave. (Ex. 314 (dated April 4, 2008, announcing that the
16
results of the first day of the saturation patrol, and further noting that the Mayor had
17
asked the Sheriff to leave town).) In response to the Guadalupe Mayors request to leave,
18
the MCSO issued a news release quoting Sheriff Arpaio as saying that the Sheriff still
19
has jurisdiction here and I will still enforce the illegal immigration laws in Guadalupe.
20
21
22
23
24
25
26
27
47
Chief Sands acknowledged that, although occasionally he assembled crime

statistics for the areas in which a large-scale saturation patrol was planned, the locations
for such operations were not typically selected as a result of comparing crime rates
among different valley locations, (Tr. at 789:1922), or an increase or spike in crime in
any particular location (id. at 787:16788:8). The nature of crime statistics and analysis
attached to those plans that have them vary: some provide local crime statistics indicating
a spike in a particular area (Ex. 168 at MCSO 05700203), some provide only statistics
on the raw numbers of major crimes in a city over the past quarter (Exs. 90 at MCSO
001890, 97 at MCSO 001937), some provide information on immigration enforcement in
an area (Ex. 111 at MCSO 00155758), and some, like Guadalupe, include no crime data
at all (Ex. 102).
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(Id.) This appears to be a more frank assessment of the MCSOs purpose for the
operation. Because the MCSOs purpose for the operation was to enforce immigration
law, and it believed that the vast majority of illegal immigrants in Maricopa County were
Hispanic, the Court concludes the MCSO desired to conduct such an operation in a
neighborhood densely populated with Hispanic residents. 48
After conducting its small-scale patrols in Guadalupe, the MCSO conducted the
fifth and sixth large scale operations in Mesa,49 the eighth and ninth large scale saturation
patrols in Avondale (MCSOs District II)50 (Ex. 111), and the eleventh large-scale patrol,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
48
According to the 2010 United States Census Bureau, 62.2% of the residents of
Guadalupe are of Hispanic or Latino origin. State & County Quickfacts: Guadalupe
(town), Arizona, http://quickfacts.census.gov/qfd/states/04/0430270.html. A court may
take judicial notice of facts that can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b)(2). The Ninth
Circuit has determined that census data meets these requirements. United States v.
Esquivel, 88 F.3d 722, 727 (9th Cir. 1996).
49
In addition to the hotline complaint, Ex. 375, that prompted the initial Mesa
small-scale saturation patrols in November and December 2007, (Exs. 80, 81, 121),
Sheriff Arpaio had received, and referred to Chief Sands for action, additional
communications about day labor locations in the City of Mesa that associated such
locations with Latinos before holding the large-scale saturation patrols there. (Exs. 223
(May 8, 2008 letter complaining that illegal immigrants know little to nothing about this
country other than the fact that welfare is better here than in Mexico, and noting that
[l]iving in Mesa, I can drive down any of the streets where day laborers (most of whom,
I would believe to be here illegally) gather and wait for work yet Mesa city police do not
inquire about their citizenship), 244 (May 24, 2008 letter complaining of Mesa declining
to investigate illegals due to Hispanic head of Mesa police union and MCSO Hispanic
deputies, and also complaining of the 30+ illegals that were on all four corners at
Nortons corner and other Mesa and southeast valley locations). In his operations plans,
the Sheriff also noted that he was responding to the invitations of East Valley legislators
in scheduling his large-scale saturation patrols in Mesa. (Exs. 90 at MCSO 001881, 97 at
MCSO 001929.)
50
A second, and apparently impromptu, small-scale saturation patrol again

occurred there on May 29, 2009, (Ex. 175), after these two large-scale patrols.
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in the Durango area on the 35th Ave. corridor in September 2009 (Exs. 16970).51 Due to
its previous day labor and small-scale saturation operations, the MCSO at least knew that
Latino day laborers assembled in these areas. Unlike the first three large-scale saturation
patrols, however, there is no evidence in the record that these patrols were covered by
advance news releases that directly stated that the reason for the site selection was the
presence of day laborers. To the extent that these large-scale patrols included more
officers and covered larger geographic areas than the small-scale patrols that preceded
them, the fact that the large-scale operations covered areas in which the MCSO had
previously conducted successful smaller-scale operations makes considerations of race in
10
their selection somewhat more attenuated.
11
Of the additional large-scale patrols that followed, the record is clear that at least
12
three of themthe seventh and twelfth in the far northwest valley and the tenth in the
13
southeast valleyoccurred in locations for which the Sheriff had received previous
14
complaints about the presence of Mexicans or day laborers or both. The MCSO held the
15
first of its two operations in the Sun City area on August 1314, 2008, and the second
16
slightly more than a year later on October 1617, 2009. (Exs. 102, 103, 174.) While this
17
general area had not been the location of a reported small-scale saturation patrol, the
18
operation occurred slightly more than a week after Sheriff Arpaio reviewed
19
correspondence from two separate constituents. The first correspondence, dated August
20
1, 2008, came from a Sun City woman who complained of Spanish being spoken in a
21
McDonalds at Bell Road and Boswell and requested that the Sheriff rid the area of
22
illegal immigrants. (Ex. 237.) The Sheriff annotated the memorandum indicating he
23
would look into it and copied it to Brian Sands on August 5, noting that the letter was
24
for our operation. (Id.) On August 8, 2008, the Sheriff was sent another e-mail that
25
26
27
51
The MCSO had earlier conducted a small-scale saturation patrol at 35th Ave.
and Lower Buckeye Road with high arrest ratios on January 31, 2008. (Ex. 114 at MCSO
014519.)
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stated, I would love to see an immigrant sweep conducted in Surprise, specifically at the
intersection of Grand and Greenway. The area contains dozens of day workers attempting
to flag down motorists seven days a week. The Sheriff reviewed the e-mail on August
13 and had a copy sent to Brian Sands and Lita at the PLO on that same date. (Ex. 235.)
The first day of the two-day operation, however, was on the same day the Sheriff
annotated the second e-mail and sent it to Chief Sands. Thus, he would not have had time
to plan the operation after having read the e-mail. Further, Sheriff Arpaios notation on
August 5 that the complaint was for our operation, suggests that an operation had
already been planned and that the letter served to justify it, rather than serving as the
10
motivation for the site selection. Moreover, in announcing the operation, the MCSO news
11
release stated in part that during the operation it would be traveling well known
12
smuggling routes on I-17 in the north county area. (Ex. 331.) The operation did appear
13
to result in the arrest of five separate human smuggling loads with at least three of those
14
loads being stopped on I-17 and thus not in locations that were the subject of the
15
correspondence. (Ex. 102 at MCSO 001974.)
16
The tenth saturation patrol occurred on July 2324, 2009, in the Southeast valley.
17
(Exs. 128, 168.) To be sure, the Sheriff had received and referred for action at least one
18
previous letter which complains of day labor locations in the southeast valley areas that
19
were covered by this patrol. (Ex. 244.) Nevertheless, the letter had been sent a full year
20
earlier. (Id. (dating the letter at May 25, 2008).) Thus, while the MCSO was aware of day
21
labor locations in the southeast valley area covered by the patrol, the July 2324, 2009
22
patrol was not a direct response to the May 24, 2008 complaint.
23
The thirteenth and final large-scale saturation patrol discussed in detail at trial
24
occurred on a countywide basis. (Ex. 176.) Such a generalized location can support no
25
inference that it was selected as a result of the race of the persons who inhabit it.
26
At trial, Plaintiffs attempted to draw a direct link between citizen complaints
27
received by the MCSO that referred to racial or ethnic characteristics of persons in
28
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those locations. Plaintiffs have established such a direct link between the day labor
operations in Cave Creek and Queen Creek in October 2007, and the three small-scale
saturation patrols in Mesa in November and December 2007. In those patrols, the MCSO
responded directly with saturation patrols to complaints about the gathering of
Hispanic and Mexican day laborers without sufficient indication that they were
otherwise engaged in violations of state or municipal law. To the extent that Plaintiffs
attempted to establish such a direct link between citizen complaints about operations in
Sun City and or elsewhere, they have not met their burden of proof that the operations
were planned in response to the specific citizen complaints about ethnicity. Nevertheless,
10
due to the MCSOs conflation of racial and work status indicators in locating these
11
operations, Plaintiffs have established that as a whole, in the site selection for all of the
12
MCSOs day labor operations, most of their small-scale patrol operations, and many of
13
their large-scale patrol operations, race was a factor, among others, to the extent that the
14
MCSO sought to base such operations around locations at which Latino day laborers
15
were known to assemble.
16
5.
17
18
19
20
21
22
23
24
25
26
27
All saturation patrols relied on pre-textual stops as a basis to

investigate the occupants of a vehicle.
Even when it had 287(g) authority, the MCSO, pursuant to its own policy, did not
directly stop persons that it believed to be in the country without authorization.
287g trained deputies cant contact someone just because they think they
are here illegally. 287g deputies can only screen people reference their
immigration status that they come across during their duties as a Deputy
Sheriff and then indicators must exist per the US Immigration and
Nationality Act, Title 8 USC, 287g, before screening can take place (must
have probable cause or reasonable suspicion to contact a violator or suspect
for state criminal and civil statutes).
(Ex. 92.)
Thus, even when the purpose of an operation was to enforce federal immigration
laws, as with the operations at issue in this lawsuit, MCSO deputies first needed a basis in
state law to contact and detain the persons they sought to screen. The saturation patrols at
28
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issue in this lawsuit all involved traffic stops used as a pretext to detect those occupants
of automobiles who may be in this country without authorization. (Tr. at 837:117.)
Defendants have never asserted that they stopped vehicles during the saturation patrols
based solely on a reasonable suspicion that the drivers or passengers were not legally
present in the country. Instead, they stopped the vehicles because of traffic violations and
then investigated occupants for immigration offenses once the stops had been made.
6.
8
9
During saturation patrols, participating deputies conducted many

stops for minor violations of the traffic code, including minor
equipment violations. This departs from MCSOs traffic enforcement
priorities during regular patrols.
10
The MCSO so stipulated prior to trial. (Doc. 530 85 at 12.)
11
7.
12
13
14
15
16
17
18
19
20
Generally, MCSO officers had no difficulty in finding a basis to stop

any vehicle they wished for a traffic infraction.
MCSO witnesses who testified at trial acknowledged that if you follow any
vehicle on the roads of this country for even a short amount of time, you will be able to
pull that person over for some kind of violation. (Tr. at 696:1721, 1541:811 (You
could not go down the street without seeing a moving violation.), 1579:2023; Doc. 530
at 86 (Deputy Rangel testified that it is possible to develop probable cause to stop just
about any vehicle after following it for two minutes.).) Chief Sands also testified that it
is not feasible to require officers to stop every driver whom they observe committing a
traffic violation. (Tr. at 830:1014.)
22
The MCSO provided no race-neutral criteria for deputies to use in

determining whom to pull over for traffic violations during the three
types of saturation patrols.
23
One of the MCSOs chief defenses against the arguments of the Plaintiff class was
24
that during saturation patrols it used a zero tolerance policy that required participating
25
MCSO officers to pull over every vehicle that they observed committing any traffic
26
infraction, no matter how slight. The MCSO represented to the Court that this policy
27
ensured that there was no racial bias in the selection of vehicles that MCSO pulled over
28
during saturation patrols. After having reviewed the evidence of the parties and heard the
21
8.
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testimony, the Court concludes that no such policy was ever clearly promulgated or
understood by MCSO deputies participating in such patrols.
As an initial matter, no written instructions were given for small-scale saturation
patrols or day labor operations. (Id. at 1155:1020.) The first several large-scale
saturation patrols also occurred before the promulgation of any policy that was
subsequently identified as a zero tolerance policy. (Id. at 996:1517.) Even after the
large-scale saturation patrol instructions were modified in April 2008, they specified only
that all persons committing a criminal violation should be booked. (Id. at 996:2125.)
The operations plans contained no specific instruction to deputies about how to
10
determine, in a race-neutral way, which vehicles to pull over for traffic or equipment
11
infractions.52
12
Other than the written instructions explaining that all criminal offenders should be
13
booked, there was no consistent understanding about the substance of any zero tolerance
14
policy. Lt. Sousa, who identified himself as the author of the policy, testified that it
15
pertained only to what a deputy could do after he had already made a stop. He testified:
16
[I]f we made a lawful traffic stop, and you had a criminal defendant with an arrestable
17
charge, they would get booked. And whoever we stopped, we would write a citation for
18
the probable cause for the stop.53 (Id. at 996:2125). He testified that the policy did not
19
52
20
21
22
23
24
25
26
27
28
The HSU officers and others who participated in small-scale patrols may have
been aware of such instructions once they were developed for the large-scale saturation
patrols, but even assuming the deputies would have applied such instructions to smallscale patrols, such plans were not written until April of 2008. By then all but the last
seven small-scale patrols discussed at trial had occurred. These last patrols, together with
the December 2007 operation in Aguila, were the patrols with the lower stop to arrest
ratios.
53
The revised plans contain no instructions concerning citing those who were
stopped. Nor do they require patrol deputies to pull over every vehicle that they observe
that is committing a traffic infraction. And, as a practical matter, the shift summaries and
trial testimony demonstrate that MCSO officers did not issue citations to every vehicle
they stopped. For example, during the January 910, 2009 saturation patrol in the
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remove officer discretion as to making the decision as to which cars to stop in the first
instance. (Id. at 998:1825, 999:47.)
The testimony of other command personnel and deputies participating in
saturation patrols varied considerably as to what the zero tolerance policy was. Sheriff
Arpaio, Chief Sands and Deputies Armendariz, Beeks, and DiPietro described the policy
as did Lt. Sousait did not specify which vehicles deputies should stop and deputies
retained discretion on that matter.
Sheriff Arpaio, for example, in an MCSO news release, described a zero
tolerance law enforcement operation as requiring deputies to arrest any person found to
10
have committed a criminal offense. All violators of any law . . . will be booked into his
11
jails with no one getting a get out of jail free card. (Ex. 342.) Chief Sands testified that
12
the policy did not require officers to stop every vehicle they observed violating the traffic
13
laws, but that officers were required to arrest any person whom they had probable cause
14
to believe committed a criminal offense. (Tr. at 830:18831:8.) Unlike Lt. Sousa, he
15
testified that deputies were not required to issue a citation to every vehicle they stopped
16
for violating the traffic law. (Id.) He further testified that the MCSO did not analyze
17
officer activity to determine whether officers in fact followed this definition of the zero
18
tolerance policy. (Id. at 831:14.) Lt. Sousa expressly conceded that one of the reasons
19
he included language prohibiting racial profiling in operations plans and directives was so
20
that he could testify to it in any subsequent litigation. (Id. at 1025:121026:7.) Chief
21
Sands confirmed that the phrase zero tolerance policy is rhetoric used by Lt. Sousa.
22
23
24
25
26
Southwest Valley, officers stopped 473 and 246 cars, respectively, and arrested or cited
only 320 and 167 people, suggesting that at least 232 vehicle stops over the two days
resulted in neither a citation nor an arrest. (Ex. 111.) Further, as David Vasquez testified,
he was pulled over for a cracked windshield during the first large-scale Mesa saturation
patrol, but was neither cited nor arrested. (Tr. at 201:15.)
27
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(Id. at 831:1.)
Although Deputy Armendariz could not remember what he was instructed as to
the particulars of the zero tolerance policy, (id. at 1581:221), he testified that he
understood that he still had discretion as to whether or not to stop a particular vehicle, (id.
at 1579:241580:2). Nevertheless, it was his understanding that the policy required him
to take a person into custody instead of issuing a citation when an arrest is likely. (Id. at
1581:1721.) Deputy Beeks agreed that the zero tolerance policy did not take away a
deputys discretion when it came to deciding which traffic offender to stop. He
understood that under the zero tolerance policy, [w]e were told to be proactive, and if
10
we saw violations, to address them, but that [w]e were given discretion to make stops.
11
(Id. at 1475:26.) Deputy DiPietro testified that while on saturation patrols, he was not
12
given any instruction about which vehicle to pull over and answered affirmatively when
13
asked whether the decision to stop a vehicle on a saturation patrol was completely
14
within your discretion. (Id. at 303:2425.)
15
On the other hand, both HSU sergeants and Deputies Rangel and Kikes offered
16
definitions of a zero tolerance policy that dictated to deputies on patrol who must be
17
pulled over in the first place. Sgt. Palmer testified that the zero tolerance policy
18
required officers to stop any car which they observed to be in violation of any traffic law,
19
and to issue a citation for that violation. (Id. at 694:26.) Sgt. Madrid also stated that the
20
zero tolerance policy took away the ordinary officer discretion to let things slide and
21
required officers to pull over any vehicle on the road that had committed any traffic
22
infraction. (Id. at 1155:211156:6.) Sgts. Madrid and Palmer did not often participate in
23
arrests during large-scale saturation patrols, however, as they were both engaged in
24
supervisory functions with Sgt. Madrid mostly stationed at the command post and Sgt.
25
Palmer doing field supervision. (Id. at 1160:58, 759:410.)
26
Deputies Rangel and Kikes also described the policy as removing discretion from
27
the deputies as to which vehicles to stop. Deputy Rangel testified that, under the policy,
28
he would stop every person he saw committing a traffic violation, ask every person in the
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car for identification, and investigate those passengers who did not provide identification.
(Id. at 944:4947:11.) Deputy Kikes testified that under the policy officers were to stop
anybody and everybody who had a violation, and issue citations. (Id. at 612:1019.)
Both officers who testified that the zero tolerance policy required them to stop
every car that committed any traffic infraction, and other MCSO officers who testified,
acknowledged, however, that such a policy would be impossible to enforce because it
would involve stopping nearly every car on the road. For example, Deputy Kikes testified
that so many people on the road commit minor traffic or equipment infractions that
stopping every person who commits a violation, and therefore following the policy as he
10
understood it, is impossible. (Id. at 613:36.) Sgt. Palmer acknowledged that if you
11
follow any vehicle on the roads of this country for even a short amount of time, you will
12
be able to pull that person over for some kind of violation. (Id. at 696:1721.) Chief
13
Sands testified that it is not feasible to require officers to stop every driver whom they
14
observe committing a traffic violation. (Id. at 830:1014.)
15
Deputy Kikes own arrest record while participating on saturation patrols suggests
16
that in practice he followed no such policy. Deputy Kikes participated in at least three
17
large-scale saturation patrols over the course of at least four days.54 There is no record of
18
any civil citations he issued during the patrol, because the MCSO kept no such records,
19
but, according to the operations plans, he was under an obligation to arrest anyone for
20
any criminal violation he observed during any part of his patrols including traffic stops.
21
In the three saturation patrols in which Deputy Kikes participated, comprising at least
22
four patrol days, he arrested a total of five people. All of the persons he arrested had
23
Hispanic surnames and all arrested were classified as 287(g) and thus in the country
24
25
26
27
54
Deputy Kikes testified that he does not recall if he worked both days of all
patrols, but knows that he worked a full day on every day that he did work. (Tr. at
608:23609:3.) The arrest records demonstrate that he made arrests on four separate days
during such patrols.
28
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without authorization. (Exs. 82, 87, 111.) To accept Deputy Kikess testimony in its
entirety would mean that Deputy Kikes spent at least four days on traffic patrol in an
environment where so many people commit traffic or equipment infractions it would be
impossible to stop them all. He nevertheless followed the zero tolerance policy and
stopped anybody and everybody he could. (Tr. at 612:1213.) Once he made a stop, he
arrested every person with an outstanding warrant or who was otherwise committing a
criminal violation. (Id. at 1423.) And all of that resulted in five arrests over four days,
all of which just happened to be of Hispanic persons who were in the country without
authorization. The Court rejects such a factual proposition. In the face of such facts, the
10
Court concludes that Deputy Kikes, in fact, was not following the zero tolerance policy
11
that he described during trial.
12
The same is true, although less starkly so, for Deputy Rangel. Deputy Rangel
13
participated in at least seven large-scale saturation patrols, some of which took place over
14
multiple days. By the Courts calculations, 54 of the 60 arrests made by Deputy Rangel
15
during the large-scale saturation patrols, or 90% of the total arrests he made, were of
16
persons with Hispanic names.55 If the human-trafficking loads intercepted by Deputy
17
Rangel during the August 2008 Sun City and the November 2009 countywide patrols are
18
19
20
21
22
23
24
25
26
27
55
During the large-scale saturation patrol at Cave Creek and Bell he arrested a
total of two people, one of whom had a Hispanic surname. (Ex. 82.) During the largescale patrol at Guadalupe he arrested five people, four of whom had Hispanic surnames.
(Ex. 87.) During the first large-scale Mesa patrol he arrested six people, three of whom
had Hispanic names. (Ex. 90.) During the second large-scale Mesa patrol he arrested two
people both of whom had Hispanic surnames. (Ex. 97.) During the first Sun City patrol in
August 2008 he arrested 33 people, 32 of whom had Hispanic names.55 (Ex. 102.)
Although the probable cause listed on the arrest report for stopping this vehicle was lane
change, no one was arrested for the state law charge of human smuggling, but all were
arrested and processed through ICE on federal immigration charges. (Id.) During the
second Sun City patrol of October 16, 2009 he arrested one person who had a Hispanic
surname. (Ex. 174.) During the November 16, 2009 countywide patrol he arrested eleven
people, all of whom had Hispanic surnames. (Ex. 180.) These eleven persons were all
turned over to ICE based on the MCSOs LEAR policy.
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excluded, then 11 of 16 arrests or 68.7% had Hispanic names. To accept Deputy Rangels
testimony in its entirety would mean that Deputy Rangel spent at least nine to ten days on
traffic patrol in an environment where so many people commit traffic or equipment
infractions it would be possible to develop probable cause to stop just about any vehicle
after following it for two minutes. (Doc. 530 at 86.) In accordance with the zero
tolerance policy, Deputy Rangel stopped all such vehicles, and investigated the identity
of every passenger in every vehicle he stopped. He subsequently arrested every person
with an outstanding warrant or who were otherwise committing a criminal violation.
Nevertheless, during the nine to ten days, he made only 16 arrests (excluding the four van
10
loads from two patrols that resulted in 44 arrests). Of the 16 arrests 11 just happened to
11
be of Hispanic persons who were in the country without authorization, and four of them
12
were arrested on immigration charges. In the face of such facts, the Court concludes that
13
Deputy Rangel, in fact, was not following the zero tolerance policy that he described
14
during trial.
15
A look at the arrest reports in general also demonstrates that officers exercised
16
individual discretion regarding stops. More often than not, the disparities of arrest rates
17
between officers participating in saturation patrols cannot be easily explained. For
18
example, 47 officers signed in for the July 14, 2008 saturation patrol in Mesa. (Ex. 97.)
19
Of these 47, 13 arrested at least one person, and 41 total people were arrested.56 (Id.)
20
Deputy Armendariz arrested 18 of the 41 people arrested, including the drivers and
21
passengers of 11 different cars. (Id.) 11 of the persons arrested by Deputy Armendariz,
22
and five of the six of the passengers he arrested, were processed for not being legally
23
present in the country. (Id.) Ten of the arrestees had Hispanic surnames.57 (Id.) The next-
24
56
25
57
26
27
Another officer made an arrest, but did not sign in. (Ex. 97.)
The name of the eleventh person arrested as being unauthorized, Minerva

Vujando, also strongly suggests that this person was of Hispanic ancestry. Nevertheless,
the name did not appear as in Exhibit 320. Hence the Court did not count it as an
Hispanic name.
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highest arrest total for any officer was for Deputies Silva and Roughan, who both arrested
four people. (Id.) Six of the eight people whom Deputies Silva and Roughan arrested had
Hispanic surnames, and seven were processed for not being legally present in the
country.58 (Id.) These statistics again do not suggest that officers were following a zero
tolerance policy in which they pulled over every vehicle for an infraction no matter how
small and arrested every person they encountered who had committed a criminal
violation.
Further, the activity of at least some officers suggests a definite focus on vehicles
with Hispanic occupants. For example, during the April 23, 2009 operation in Avondale,
10
Deputy Armendariz arrested 12 people, 11 of whom had Hispanic surnames and 10 of
11
whom were processed through the 287(g) program. (Ex. 111.) These arrests came from a
12
total of seven vehicle stops, and included the arrests of five passengers, all of whom were
13
Hispanic and all of whom were processed through the 287(g) program. (Id.) The deputies
14
arresting the next-highest number of people during this saturation patrol arrested only
15
two. (Id.)
16
Few of the stat sheets documenting the activity of individual officers remain.
17
Those stat sheets that do remain, however, also suggest that the number of stops made by
18
individual officers varied widely during the same saturation patrol. For example,
19
individual stat sheets for the November 16, 2009 saturation patrol, which were preserved,
20
show that officers working the same patrol during the same twelve-hour shift made the
21
following number of traffic stops: 5, 15, 0, 9, 5, 6, 0, 4, 12, 2, 3, 12, 4, 2, 6, 24, 10, and
22
10. (Doc. 235, Ex. 10.) If an officer could stop virtually any vehicle for a traffic
23
infraction after following it for a minute or two, these statistics demonstrate that no zero
24
tolerance policy was uniformly followed that would provide neutral criteria about which
25
26
27
58
Again the name of the seventh person arrested as being unauthorized, Jario
Olampo, also strongly suggests that this person was also Hispanic. Nevertheless, the
name did not appear as Hispanic in Exhibit 320, and hence was not counted as such.
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cars should be stopped by participating deputies. The reports, therefore, establish that
MCSO personnel were not following the zero tolerance policy as described by Sgts.
Palmer and Madrid.
Based upon the contradictory testimony regarding the effect and definition of the
zero tolerance policy, that the MCSO shredded individual officers stat sheets while under
a discovery obligation to preserve them, that most witnesses testified that it would be
impossible to follow a policy that required them to stop every vehicle they observed
committing a traffic or equipment violation, that the MCSO conducted no analysis to
determine whether officers were in fact following any zero tolerance policy, and that
10
those records which were preserved suggest that officers did not follow a zero
11
tolerance policy based on any of the definitions suggested, the Court concludes that to
12
the extent any zero tolerance was in effect, it was merely the sentence of instruction
13
contained in the operation plans that required MCSO deputies to book all criminal
14
offenders, and contained no race-neutral criteria for deputies to follow in saturation
15
patrols.
16
9.
17
The MCSO used race as one factor among others in making law
enforcement decisions during saturation patrols.
A.
18
The MCSO used race as a factor in choosing vehicles to pull over

during day labor and high-ratio small-scale operations.
19
As has been previously set forth in the discussion relating to the selection of
20
locations for saturation patrols, during the day labor and small-scale saturation patrols
21
with high arrest ratios, participating MCSO officers determined which vehicles they
22
would pull over for traffic enforcement based, at least in part, on their observations of the
23
Latino ancestry of the persons that entered the vehicles. After the vehicles were pulled
24
over, the immigration status of the Latino passengers was investigated as a matter of
25
course.
26
The arrest statistics from the day labor operations demonstrate that race was used
27
as such a factor in a way that does not merely rely on the total number or total percentage
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of Hispanics arrested during such operations. All 35 arrests of unauthorized persons
resulted from 11 traffic stops. A total of 14 traffic stops were made during all day labor
operations. It is extraordinary that with only 9% of the Maricopa County population
being unauthorized, the MCSO could make arrests of unauthorized aliens on 11 of the 14
traffic stops it made, with virtually all such stops resulting in multiple arrests. This
extremely high ratio of stops resulting in immigration arrests to the total stops made
during the operations shows that the MCSO used targeting factors including both race
and work status to achieve this ratio.
The same is true for the small-scale saturation patrols with high arrest ratios, in
10
which 115 out of 124 arrests were of persons unauthorized. See Section I.D.2.a, supra.
11
While an exact number of total stops resulting in these arrests of unauthorized persons is
12
not specifically ascertainable based on the reports, the reports do reveal that a great
13
majority of all stops during such operations resulted in the arrest of unauthorized aliens
14
and frequently multiple unauthorized aliens per stop. Id. The day labor and small-scale
15
saturation patrols with high arrest ratios, due to the nature of the operations, considered
16
race and work status as factors of a vehicles occupants in determining which ones would
17
be stopped.
18
B.
19
The MCSO used race as a factor in determining whom to

investigate and arrest during the small-scale patrols
without high arrest ratios.
20
The arrest reports for these eight operations did not, for the most part, permit the
21
Court to determine the number of stops that resulted in immigration arrests. To the extent
22
that such determinations could be estimated by the reports kept, with one exception, they
23
did not demonstrate the high ratio between stops and arrests that the previous operations
24
had demonstrated.59 Thus the evidence that verified that the MCSO used race in the day
25
26
27
28
59
During six hours on the first day of the Fountain Hills operation, the HSU
(assisted by the Enforcement Support (ES) Unit) made a total of seven traffic stops,
four of which resulted in seven arrests of unauthorized aliens. (Ex. 108.) Such statistics,
including the low number of total stops, seem to bear out that the first day of the
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labor and small-scale saturation patrols with high arrest ratios was not present in these
eight operations.
Nevertheless, the arrest reports provide strong evidence that the purpose of most
such operations was arresting unauthorized aliens. 85 out of 107 persons arrested were
unauthorized aliens. See Section II.D.2.b, supra. To the extent it was disclosed by the
reports, the remaining 22 authorized residents arrested during such operations were
arrested for driving on a suspended license, or having outstanding misdemeanor or felony
warrants. Id. There is little to no evidence in the record that would indicate how many of
these authorized residents arrested were Latino.
10
Still, three of the eight arrest reports from these operations provide information
11
from which the number of passengers actually arrested from an estimated number of
12
stops can be derived. Two of those three reports further list the names of all persons
13
arrested.60 They demonstrate that during these three operations MCSO deputies stopped a
14
total of approximately 95 to 100 vehicles. During these stops a total of 55 persons were
15
arrested. 51 of the 55 persons were unauthorized aliens, and 36 of these were
16
passengers.61 During the two operations for which the names of persons arrested were
17
18
19
20
21
22
23
24
25
26
27
28
operation may have been a day labor operation. Nevertheless on the next day Sgt. Palmer
estimates in the arrest report that of twenty stops, only four resulted in immigration
arrests. The total operation, therefore, did not have a high arrest ratio as did previous
operations.
60
The arrest reports for the Aguila (Ex. 76), Fountain Hills (Ex. 108), and
September 4, 2008 Cave Creek (Ex. 112), operations provide information concerning the
estimated total number of stops made during each operation and specific information
concerning the stops that resulted in immigration arrests. The Fountain Hills and Cave
Creek arrest reports also provide the names of persons arrested.
61
The Aguila arrest report designates that the driver was cited for each of the five
stops that resulted in the arrest of unauthorized aliens. (Ex. 76.) It also lists the number of
aliens detained. (Id.) The Court assumed that one of the persons detained for each of the
vehicles was the driver. If this is not true it does not serve to change the number of total
persons arrested, it merely increases the percentage of those who were passengers. The
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kept, all passengers and drivers arrested for immigration offenses had Hispanic names.
Thus the Court can conclude from the three saturation patrols with sufficient
records that 51 of the 55 arrests were of unauthorized persons, most if not all of whom
had Hispanic surnames. 52 of these persons have names that indicate Latino descent.
There is no evidence from these arrest reports from which it can be determined that the
MCSO investigated or arrested any passenger during these operations who was not of
Latino descent. Of the three persons arrested without Hispanic names, two had to be
drivers because they were arrested for driving without a license. The reports provide no
information about the other person, including whether she was in a motor vehicle at all,
10
or, if so, whether she was a driver or a passenger, other than that she was arrested on an
11
outstanding felony warrant.62 While these numbers do come from a limited sample, and
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Fountain Hills report explicitly distinguishes between drivers and passengers arrested in
the narrative. It also discusses the arrest of two more unauthorized residents during the
welfare check of a residence. Because these arrests did not result from a motor vehicle
stop they were not counted in the Courts totals. (Ex. 108.) The third page of the Cave
Creek report, designates whether a person arrested was a passenger. (Ex. 112.) However,
two persons were arrested for failing to provide identification during a single stop, and
neither was designated as a passenger. (Id.) Since a vehicle can have but a single driver,
the Court has also counted one of those two persons as a passenger and the other as a
driver in arriving at the above estimated totals. (Id.)
62
The narrative arrest report of the Aguila operation only discusses the arrest of 26
personsall unauthorized. (Ex. 76.) The narrative arrest report of the September 4 Cave
Creek operation only discusses the arrest of 11 personsall unauthorized. (Ex. 112.) It is
possible, however, to read the summary total sheets of these operations to conclude that
three additional people were taken into custody during the Aguila operation and four
were taken into custody during the Cave Creek operation. Nevertheless, the narrative
report of the Cave Creek operation plainly states that only 11 total arrests were made
during the operationall of unauthorized aliens, and the sheet listing the names of all
persons arrested contains only 11 names. If the Aguila summary total sheet, or the Cave
Creek summary total sheet, means to suggest that additional persons were arrested other
than those listed in the narrative report, they provided no information about such persons
or their arrest. If additional arrests were made, but not otherwise discussed in either
narrative report or the total summary sheet, it only confirms that the deputies
participating were principally focused on the arrest of unauthorized aliens, as they
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are not definitively indicative of racial bias, they do strongly suggest that in at least these
three operations the MCSO was both: (1) principally looking to arrest unauthorized aliens
whom they believed to be Hispanic persons; and (2) they were more likely to investigate
the identities of Hispanic passengers than non-Hispanic passengers.
5
6
7
8
9
10
11
C.
The MCSO used race as a factor in law enforcement decisions

during large-scale saturation patrols.
As discussed, beginning in April 2008, the large-scale saturation patrols were

subject to different and more specific instructions than were small-scale or day labor
saturation patrols. The operational plans were revised in at least three important
particulars, and a comparison of those revisions with the patrol results shows that the
MCSO relied on race as a factor in making law enforcement decisions.
14
During large-scale patrols, participating MCSO deputies

were instructed to not racially profile and were obliged to
book all criminal offenders. Yet arrest records show a
disproportionate number of arrests of persons with
Hispanic surnames.
15
Because the purpose of the saturation patrols was to arrest unauthorized aliens,
16
and because the great majority of unauthorized aliens in Maricopa County are persons of
17
Hispanic descent, it would not be in and of itself indicative of a racial bias in an operation
18
for a disproportionate number of Hispanic persons to be arrested. Nevertheless, when the
19
plans prohibit racial profiling, and further require that all persons committing crimes be
20
arrested regardless of race, and yet a highly disproportionate percentage of the persons
21
arrested during the operation are nevertheless persons with Hispanic names, the
22
disconnect between the operational plans and instructions and the observable results of
23
the large-scale patrols demonstrates that the deputies are not following their instructions,
24
or that a racial bias is permitted, or even systematically implemented, in such
12
13
1.
25
26
27
omitted non-immigration arrests from their reports or summaries.
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operations.63
The overall arrest rates of persons with Hispanic names arising from the large-
scale saturation patrols are very disproportionate to the population as a whole. Beginning
with the large scale patrol held near Pruitts on March 2122, 2008, 42 out of the 43
arrests (97%) were of persons with Hispanic names. (Ex. 79.) For the Cave Creek
operation on March 2728, 2008, 36 of the 54 arrestees (67%) of the arrestees had
Hispanic names. (Ex. 82.) (These two operations, however, were conducted prior to the
issuance of the new instructions). At the Guadalupe patrol of April 34, 2008, the
operation during which the new instructions were first implemented, 33 of the 47
10
arrestees (70%) had Hispanic names. (Ex. 87.) At the first large-scale Mesa patrol, the
11
deputies arrested 63 people, 35 (57%) of whom had Hispanic names (Ex. 90); during the
12
second Mesa patrol, 26 out of 41 persons arrested (63%) had Hispanic names (Ex. 97).
13
During the first Sun City patrol, 88 of the 105 arrests (84%) were of persons with
14
Hispanic names.64 (Ex. 102.) In the first Southwest Valley operation on January 910,
15
2009, 34 of 53 arrests (64%) had Hispanic names. (Ex. 111.) In the West Valley
16
operation on April 23-24, 2009, 30 of 41 arrests (73%) were of persons with Hispanic
17
names. (Id.) During the Southeast Valley operation of July 2324, 2009, 30 of the 41
18
arrestees (59%) had Hispanic surnames. (Exs. 128, 168.) Then, in the operation at
19
Durango and 35th Ave. on September 56, 2009, 37 of the 51 persons arrested (72%) had
20
Hispanic surnames. (Ex. 170.)
21
Two more large-scale patrols occurred following revocation of the MCSOs
22
287(g) authority. In the October 2009 Sun City operation, 45 out of 66 persons arrested
23
63
24
25
26
27
Even if MCSO deputies were particularly looking for undocumented immigrants

without regard to race in these large-scale saturation patrols, the percent of
undocumented immigrants in Maricopa County is, at most, 8.9%. See note 4, supra.
64
During this patrol the MCSO interdicted five vans that were transporting
undocumented individuals.
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(68%) had Hispanic surnames. (Ex. 174.) During the final county-wide operation for
which arrest reports were filed, 37 out of the 51 persons (73%) arrested had Hispanic
surnames. (Exs. 176, 17882.) In total 700 offenders were arrested during these
operations.65 496 out of 700 arrests or 71% of all persons arrested, had Hispanic
surnames. This 71% arrest rate occurred in a county where between 30 and 32% of the
population is Hispanic, and where, as the MCSOs expert report acknowledges, the rates
of Hispanic stops by the MCSO are normally slightly less than the percentage of the
population that they comprise. (Ex. 402 at 3.) This arrest rate further occurred in
operations in which deputies were instructed to arrest all persons committing any kind of
10
criminal offense, and were instructed that they should not racially profile.
11
While a disproportionate number of persons with Hispanic names were generally
12
arrested during such operations, that gulf widens when the arrest rate of Latino
13
passengers is considered. According to the large-scale saturation patrol arrest reports, 184
14
passengers in vehicles were arrested on some charge other than the traffic pre-text given
15
for stopping the vehicle. 175 of these passengers, or 95%, had Hispanic surnames. Even
16
removing all of passengers who were arrested on immigration charges from the equation
17
(141 total, 140 Hispanic),66 35 of the 43, or 81% of the passengers arrested on non-
18
immigration charges had Hispanic surnames. Only nine passengers who did not have a
19
Hispanic surname were ever arrested on any charge. The Court recognizes that there were
20
several human smuggling loads that the MCSO intercepted: some on the August 2008
21
Sun City patrol (70 passengers), the October 2009 Sun City patrol (20), and the
22
November 2009 countywide patrol (25). (Exs. 102, 174, 17882.) Exclude the passenger
23
65
24
25
26
27
As discussed above, the Court has excluded the first large-scale saturation patrol
at Pruitts (January 2008), where 27 arrests were made (six for 287(g)), because no
surname data was included. (Ex. 77.)
66
One passenger in a vanload interdicted by Officer Rangel did not have a name
listed in Ex. 320 (Gerseldiade Rugio) and was not counted as Hispanic.
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tallies from those vanloads (115, 114 of which were Hispanic), and 61 of the 69
passengers (88%) were Hispanic. Clearly a disproportionate number of passengers with
Hispanic surnames were arrested during the large-scale saturation patrols. This indicates
that the MCSO was more likely to investigate and arrest passengers if they were
Hispanic.
In sum, a remarkably high percentage of arrests during the large scale patrols were
of people with Hispanic surnames. These results occurred while the MCSO claimed to be
operating under a policy that forbade racial profiling and required deputies to arrest all
criminal offenders. In light of the arrest numbers, the Court finds that either the MCSO
10
was in fact not operating under those policies during the large-scale saturation patrols or
11
MCSOs policy forbidding racial profiling nevertheless permitted the consideration of
12
race as a factor in executing the operations.
13
2.
15
MCSO officers were instructed that during large-scale

saturation patrols they could use race, as one factor
among others, in initiating investigations into the
immigration status of a person contacted.
16
And, in fact, the MCSO deputies operated under the idea that they were allowed to
17
consider race in making immigration-related law enforcement decisions. The large-scale
18
saturation plans contained a paragraph prohibiting racial profiling and specifically
19
prohibiting deputies from making a decision to stop a vehicle based on the race of its
20
occupants. Nevertheless, as previously discussed, the MCSO determined that it did not
21
constitute racial profiling to base decisions in part on race, so long as race was not the
22
sole basis for that decision. The operations plans for the large-scale saturation patrols
23
explicitly instructed the MCSO officers who were 287(g) certified that they could use the
24
indicators taught them in their 287(g) training in deciding whether to initiate
25
investigations into a contacts immigration status. And all MCSO officers testified that
26
ICE taught them that one such indicator, among others, was a persons race. The
27
operations plans also instructed non-287(g)-certified officers that they should not
28
summon a 287(g) officer to initiate such an investigation based on race alone. But, as at
14
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least Sgts. Palmer and Madrid testified, this instruction meant that officers could consider
race as one amongst a number of factors in making such a determination.
Further, all of the MCSO command staff including Sheriff Arpaio, Chief Sands,
Lt. Sousa, and Sgts. Madrid and Palmer, acknowledged that the MCSO uses race as one
factor in assessing whether an immigration investigation should be conducted after a stop
has been made. At trial, Sheriff Arpaio was referred to media interviews in which he
commented that a factor the MCSO considered in evaluating whether a person is in the
country legally is whether they look like they came from another country, (Ex. 410b),
or look like they just came from Mexico, (Ex. 410c). He explained that when he made
10
these comments he meant that such appearance could be a factor for an MCSO officer to
11
consider in determining whether further investigation of immigration status was
12
appropriate once a vehicle had already been stopped. (Tr. at 498:22503:6.) Chief Sands,
13
Sgt. Madrid, and Sgt. Palmer also acknowledged that the MCSO did use and continues to
14
use Hispanic ancestry in this manner in deciding which occupants of a vehicle should be
15
investigated for immigration compliance. Chief Sands confirmed that the MCSO does not
16
prohibit officers from relying on the race of a vehicles occupant as one factor when
17
initiating an immigration investigation once the vehicle has been stopped, so long as race
18
was not a factor in the stop itself. (Id. at 782:516.) Lt. Sousa testified at trial that it was
19
his understanding that ICE officers taught MCSO deputies in their 287(g) training that
20
while race could not be used even as one factor when making an initial stop, it could be
21
used as one of a number of indicators to extend a stop and investigate a persons alienage.
22
(Id. at 1016:36.)
23
The Court thus determines that as a matter of both policy and practice, the MCSO
24
allowed its deputies participating in saturation patrols to consider race as one factor
25
among others in determining whom it should investigate during large-scale saturation
26
patrols.
27
///
28
///
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3.
MCSO officers were instructed that they could use race as

one factor among others in making a decision to stop
vehicles during large-scale saturation patrols, and did so.
As indicated above, the large-scale saturation plans contained a paragraph
specifically prohibiting deputies from making a decision to stop a vehicle based on the
race of its occupants. Nevertheless, as has been previously discussed, the MCSO
determined that it did not constitute racial profiling to base decisions to stop a vehicle in
part on the race of its occupants, so long as race was not the sole basis for that decision.
When the MCSO described its own policy as it pertained to stops during such operations,
it stated that MCSO officers in making stops during saturation patrols, could not use race
10
as the sole factor on which to pull a vehicle over so as to avoid racial profiling. (Ex.
11
342 (at no time will any vehicle be stopped solely because of the race of the occupants
12
inside that vehicle).) It pointedly did not prohibit officers from using race as a
13
consideration in deciding to make such a stop.
14
Sgt. Palmer testified that if there was a legitimate basis to pull a vehicle over, for a
15
traffic infraction or otherwise, then, by definition, a deputy would not be racially
16
profiling. (Tr. at 724:22725:1.) And Sgt. Madrid testified that so long as there was a
17
legitimate basis to pull over a vehicle, it would never occur to him that a deputy could be
18
racially profiling by doing so.67 (Id. at 1172:2024.)
19
With such understandings, once an MCSO deputy had identified a particular
20
vehicle with Hispanic occupants, he or she could develop a legitimate basis under the
21
Arizona traffic code to pull over that vehicle with very little difficulty without racially
22
profiling. Once they observed a traffic infraction, MCSO deputies had a factor in
23
addition to race on which to pull the vehicle over. Their decision would never be
24
25
26
27
67
At any rate, all of the MCSO command personnel acknowledged that they never
examined their arrest statistics or otherwise made any effort to determine whether their
deputies were engaging in racial profiling in the stops and arrests they made during
saturation patrols.
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reviewed nor racial bias suspected by their supervising sergeants because the stop was
not made solely on the basis of race.
At trial, Sheriff Arpaio and much of the rest of the MCSO command staff testified
that the MCSO could use race as a factor in deciding to interrogate vehicle passengers
once a vehicle had been pulled over, but could not use race as a factor in deciding
whether to pull the vehicle over. That distinction, however, is a very fine one. There is no
evidence, in the operations plans or otherwise, that once MCSO deputies had been
instructed that it was acceptable to consider race as one factor among others in an
immigration context, they were further instructed that they nevertheless could not
10
consider race as any factor in determining whether to stop a vehicle. Further, Sheriff
11
Arpaios testimony in this respect seems contradictory to his quote from the MCSO news
12
release, in which he indicates it would constitute racial profiling if the only reason a
13
vehicle was pulled over was because of the race of the occupants. (Ex. 342.)
14
Despite Lt. Sousas understanding to the contrary, at least one of his sergeants
15
testified that ICE specifically trained MCSO deputies that they could use race or Mexican
16
ancestry as one consideration among others in deciding whether or not to stop a vehicle,
17
and that MCSO deputies in fact did so. (Tr. at 715:319, 1164:412.) And Sgt. Madrid
18
acknowledged that he could not know whether one of his deputies used race as a factor in
19
making a stop unless he was actually present at the stop. (Id. at 1171:1014.) He also
20
testified that he would not typically be present at a stop during saturation patrols, since he
21
was usually assigned to the command post during such operations. (Id. at 1160:125.)
22
Nevertheless, Deputy Rangel, and to some extent Sgt. Madrid, testified that due to
23
tinted windows and headrests an officer could not always perceive the race of the
24
occupants of vehicles before making a stop. (Id. at 927:921, 1192:415.) Thus, the
25
MCSO argues, it was impossible for its officers to be racially profiling. While the Court
26
accepts the testimony of Deputy Rangel and Sgt. Madrid, it rejects the assertion that such
27
obstructions always or even regularly prevented deputies from making an assessment of
28
the race of the occupants of a vehicle in which they are interested. The large-scale patrols
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were conducted in an environment in which MCSO deputies knew that the operations
were designed to enforce immigration laws. (Id. at 1136:1520; see also id. at 786:1418,
787:514, 901:4902:17.) The deputies were required to keep track of the number of
unauthorized aliens they arrested during such patrols and report that figure to their
supervisors. (See, e.g., Exs. 102 at MCSO 001978001986, 111 at MCSO 056988
056998; see also Tr. at 690:23691:1, 1153:1318.) They correctly believed that the vast
majority of unauthorized residents of Maricopa County are of Hispanic origin. They were
trained to use race as one factor among others when investigating immigration status.
While some MCSO pronouncements indicated that it constituted racial profiling to stop
10
vehicles based on the race of its occupants, others stated that it constituted racial profiling
11
only when race was the sole consideration in making the decision to stop a vehicle.
12
Further, their supervising sergeants did not believe that racial profiling could exist in a
13
stop so long as there was a legitimate basis to stop the vehicle. And every time Lt. Sousa
14
instructed participants in large scale saturation patrols not to racially profile, he assured
15
them that he knew they were not doing so. (Id. at 1025:68.) There was no policy or race-
16
neutral criteria that governed which vehicles to stop on saturation patrols. Due to the
17
pervasive nature of traffic or equipment infractions that exist on the road, an MCSO
18
deputy could stop virtually any vehicle he or she wished to stop on a legitimate basis.
19
Based upon these policies, practices, and, to a lesser extent, the arrest records from the
20
operations, the Court finds that MCSO officers emphasized the enforcement of traffic and
21
vehicle infractions against vehicles that had Hispanic occupants, and in so doing,
22
considered and incorporated the use of race as a factor in deciding which vehicle to pull
23
over during large-scale saturation patrols.
24
This determination is fortified by the testimony of Dr. Ralph Taylor. Dr. Taylor
25
conducted a study of the MCSOs CAD records related to MCSO large-scale saturation
26
patrols to determine whether stops during large scale saturation patrols focused on
27
vehicles with Hispanic occupants. The MCSOs CAD database provides detail of those
28
incidents during which MCSO officers contact their dispatch. (Id. at 69:49.) When an
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MCSO deputy asks dispatch to run a name through the MCSO database, the name is
captured in the CAD database. The CAD database also records categories for individual
stops, and type T is the category for a traffic stop or a traffic violation. (Id. at 69:89.)
A stop that begins as a traffic stop but during which an officer makes an arrest on another
charge, such as a drug arrest, will have a different final call than type T. (Id. at 130:22.)
Thus, presumably, stops during which any arrests, including immigration arrests, were
made, were not counted in the totals arrived at by Dr. Taylor. This means that Dr.
Taylors statistics reflecting an increase in inquiries in Hispanic names during large-scale
saturation patrols did not include those stops in which Hispanic names were checked and
10
immigration arrests resulted.
11
Dr. Taylor only had complete information on 11 of the 13 large-scale saturation
12
patrols on which testimony was offered at trial. (Id. at 76:2477:3.) He had no
13
information concerning the individual officers signed in to the first two large-scale
14
saturation patrols at Pruitts on which to run an analysis.68 In addition to the CAD
15
database, Dr. Taylor relied on independent U.S. Census data correlating the likelihood
16
that a person with any given name self-identified as Hispanic. He did a differential
17
analysis that focused particularly on names whose owners identified as Hispanic more
18
than 90% of the time, more than 80% of the time, and more than 70% of the time. (Id. at
19
193:27.) He also included names whose owners self-identified as Hispanic at a 60%
20
threshold as a type of robustness analysis.69 (Id. at 193:67.)
21
22
23
24
25
26
68
Nevertheless, records produced at trial demonstrate that during the first Pruitts
large-scale patrol there were six of 27 arrests that were of unauthorized persons. (Ex. 77.)
During the second Pruitts large-scale operation 42 of 43 people arrested were
unauthorized persons. (Exs. 79, 82.)
69
Dr. Taylors statistics in this respect were, apparently, more sophisticated than
those provided in the 1980 census list of Spanish surnames. (Ex. 320.)
27
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Dr. Taylor compared the names that MCSO officers called in to central dispatch
during saturation patrols to the names called in by MCSO officers during non-saturation
patrol days. (Id. at 99:22100:3.)70 He also compared the names called in by MCSO
officers who worked on saturation patrols, regardless of whether they were working a
saturation patrol, to the names called in by MCSO officers who did not work on
saturation patrols. (Id. at 100:25101:6.) Further, he compared the names called in on
days when saturation patrols took place, regardless of whether the name was called in as
part of a saturation patrol, to names called in on all other days. (Id. at 155:14.) Finally,
Dr. Taylor studied the relative lengths of stops involving at least one likely-Hispanic
10
surname.
11
He concluded that, depending on which threshold of Hispanic surname was used,
12
names checked by an officer participating in a saturation patrol during a saturation patrol
13
were between 46% and 54% more likely to be Hispanic than those checked by other
14
officers operating on the same day. (Id. at 96:1220.) He also found that, depending on
15
the name threshold, names checked by all MCSO officers on saturation patrol days were
16
between 26% to 39% more likely to be Hispanic than names checked on non-saturation
17
patrol days. (Id. at 91:2225.) Compared to names checked one week before and one
18
week after a saturation patrol, names checked on a saturation patrol day were between
19
28.8% and 34.8% more likely to be Hispanic, (id. at 93:2025), and names checked by
20
saturation patrol officers operating on saturation patrol days were between 34% and 40%
21
more likely to be Hispanic than names checked by officers who were never involved in a
22
saturation patrol, (id. at 97:2298:5). Finally, Dr. Taylor found that stops in which an
23
70
24
25
26
As previously stated, in all patrol operations for the relevant period, the
percentage of vehicles that the MCSO pulled over with Hispanic occupants is slightly
lower than the percentage of the population of Maricopa County that is Hispanic. (Ex.
402 at 3.)
27
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officer checked at least one Hispanic name lasted between two and three minutes longer
than comparable stops in which no Hispanic names were run. (Id. at 109:1416.)
Defendants called Dr. Steven Camarota to rebut Dr. Taylors conclusions.
Although, for the most part, Dr. Camarota did not take issue with Dr. Taylors tabulations
from the CAD records maintained by the MCSO, he did question several of the
assumptions underlying Dr. Taylors analysis and the adequacy of the information on
which it was based. He further offered alternative explanations for the results of Dr.
Taylors analysis.
While Dr. Camarota did not independently verify Dr. Taylors findings, he agreed
10
that officers checked Hispanic names at a higher rate during saturation patrols. (Id. at
11
1310:69.) He further agreed that the Hispanic surname tables Dr. Taylor used are
12
reliable. (Id. at 1305:221306:2.) In his own analysis, Dr. Camarota found that on days in
13
which a saturation patrol was underway, the share of names checked that was Hispanic
14
was 4.8% higher than on other days of the year. (Id. at 1309:221310:1.) Dr. Camarota
15
speculated that different poverty rates could result in disparate stop rates between
16
Hispanics and non-Hispanics, because people with low incomes are going to have more
17
difficulty. . . meeting the equipment standards. (Id. at 1260:1621.) Dr. Camarota
18
presented no analysis of the stop rates corrected for poverty rates to support his
19
speculation.
20
As between Dr. Taylor and Dr. Camarota in this respect, the Court credits the
21
opinion of Dr. Taylor. Dr. Camarota testified that his opinions were based in part on Lt.
22
Sousas description to him of the zero tolerance policy that was followed on saturation
23
patrols. Dr. Camarota testified that Lt. Sousa told him that on such patrols officers
24
attempt when practicable, and when its viable, to pull over during saturation patrol
25
anybody they see in violation making equipment violations or violating the rules of the
26
road. (Id. at 1334:221335:5.) As the Court has already determined, however, the
27
MCSO followed no such policy during large-scale saturation patrols, and the description
28
of the zero tolerance policy Dr. Camarota testified that he received from Lt. Sousa is
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different than Lt. Sousas description given during trial. Thus, Dr. Camarotas
conclusions that relied on the existence of the zero tolerance policy as he understood it
are impaired. Dr. Camarota himself acknowledged in his testimony that if his
understanding of the zero tolerance policy was inaccurate and if thats not what happens
during a saturation patrol, then that can matter with respect to his analysis that
socioeconomic factors could account for different stop rates. (Id. at 1336:415.) The
Court, therefore, gives more weight to the opinion of Dr. Taylor.71
Regarding the length of stops, Dr. Camarota suggested that the need to translate
information for the person stopped may contribute to stops of Hispanics taking more
10
time. (Id. at 1297:1115.) Dr. Taylor agreed that if officers translate information during a
11
stop, the stop could take longer than a stop where no translation is required. (Id. at 175:9
12
17.) Dr. Camarota testified that Hispanics are more likely to have hyphenated last names,
13
which would require officers to check both alternate last names and could also increase
14
the length of a stop. (Id. at 1298:923.) While the Court agrees that both of these
15
alternative explanations carry weight, as multiple MCSO officers admitted, once they
16
stopped a vehicle with Latino passengers, they used the race of the occupants of the
17
vehicle as one factor among others to prolong the stop and investigate the immigration
18
status of the vehicles passengers. The Court believes that the MCSOs pursuit of this
19
practice, even if it did not ultimately result in an arrest, is a more likely explanation for
20
the increased stop time resulting from stops with Hispanic names.
21
Further, Dr. Camarota testified that missing data could affect the reliability of Dr.
22
23
24
25
26
27
71
Defendants police practices expert, Bennie Click, similarly opined in his report
that there was no impermissible racial profiling occurring during saturation patrols due to
a zero tolerance policy that limited the discretion of MCSO deputies in whom they could
pull over. (Ex. 1070 at 46.) He arrived at this conclusion based on a description of the
zero tolerance policy provided him by Sgt. Madrid. (Id.) The Court similarly rejects Mr.
Clicks conclusion based on his misassumption regarding a zero tolerance policy that was
never effectively implemented at the MCSO.
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Taylors conclusions. In conducting his analysis, Dr. Taylor recorded only those stops in
which the CAD Database recorded the fact that an officer had checked at least one name.
(Id. at 75:1719.) In approximately 30% of the recorded stops in the CAD Database, the
officer did not check any names at all. (Id. at 1236:910.) In conducting his analysis, Dr.
Taylor included only those stops in which the CAD Database recorded that the stop was
categorized as final call type T. (Id. at 75:1415.) Slightly over 80% of the stops for each
year were categorized as final call type T. (Id. at 78:15.) Dr. Taylors data set therefore
did not include data for a number of stops conducted by the MCSO, apparently including
those that would have resulted in immigration arrests. Further, the MCSO does not
10
review the CAD data for quality control, and makes no attempt to verify the accuracy of
11
the CAD data. (Id. at 1265:2025, 1252:1924.)
12
While the Court does weigh the incompleteness of the available information, there
13
is no question that all of the information used was provided to the Plaintiffs by the
14
MCSO, and was all the information that it kept on the topic.72 Since the data that was
15
excluded did not include any name that could be evaluated, the Court concludes that
16
drawing conclusions from limited data sets is still probative when complete data are not
17
available. Further, the non-T stops that were excluded from Dr. Taylors analysis
18
involved a collection of stops which, in the aggregate, involved a lower degree of officer
19
discretion than stops designated as a traffic stop or a traffic violation. The Court thus
20
credits Dr. Taylors analysis and finds it credible and probative as to whether MCSO
21
deputies used race as a factor among others in stopping vehicles with Latino occupants on
22
saturation patrols.
23
Despite the voluminous evidence to the contrary, the MCSO argues that a number
24
72
25
26
The MCSOs police practices expert acknowledged that the MCSO fell below
the standard in not keeping more complete records of its officers encounters during this
period. (Tr. at 1752:624, 1753:171754:1.)
27
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of specific deputies testified at trial that they never used race in the law enforcement
decisions they made, even in an immigration context. For example, Deputy Armendariz
testified that he never used race or ethnicity to make a decision to stop a vehicle, detain a
driver or occupant, or to initiate questioning of anyone. (Id. at 1507:1120.) Similarly,
Detective Beeks testified that race and ethnicity are not criteria for a traffic stop. (Id. at
1436:810.) Deputy Kikes also testified that he never tries to determine anything about
the race, ethnicity, or demographics of vehicle occupants in deciding who to pull over.
(Id. at 625:1014.) Deputy Rangel joined Deputy Armendariz in testifying that, as a
matter of course, they and other deputies investigate the identity of every occupant of
10
every vehicle they stop, regardless of race. (Id. at 1518:1419, 1543:412 (Deputy
11
Armendariz testifies that its typical for all law enforcement officers to ask all passengers
12
to volunteer their identification after pulling over a car, and he always does this whether
13
its a routine traffic stop or a saturation patrol), 931:213, 944:916 (Deputy Rangel
14
testifies that he asks everybody in a vehicle for identification as a matter of habit, and not
15
only while conducting saturation patrols).)
16
While the Court does not doubt the work ethic of these deputies, nor their desire
17
to follow the various directives pertaining to their operations, it is difficult to reconcile
18
their testimony in this respect with their actual performance during large-scale saturation
19
patrols. That analysis demonstrates that it is unlikely that Deputy Armendariz, Deputy
20
Rangel, Deputy Beeks, or Deputy Kikes engaged in the race-neutral policing that they
21
claimed.
22
Deputy Armendariz participated in at least nine of the large-scale saturation
23
patrols, some of which took place over multiple days. 75 of the 97 arrests made by
24
Deputy Armendariz during the large-scale saturation patrols, or 77.3% of his total arrests,
25
were of persons with Hispanic names.73 Further, at least 35 of these arrests were made of
26
27
28
73
During the large-scale saturation patrol at Cave Creek and Bell he arrested a
total of four people, all of whom had Hispanic surnames. (Ex. 82.) During the first largescale Mesa patrol he arrested five people, all of whom had Hispanic names. (Ex. 87.)
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passengers. 33 of them were determined to be unauthorized aliens, although only 32 of
them had names that are listed as Hispanic in Exhibit 320.74 Deputy Armendariz did
arrest two passengers with non-Hispanic names.
Such statistics as exist regarding Deputy Armendarizs performance in small-scale
patrols are even more indicative of racial disproportionality, albeit in a smaller sample.75
Looking at the records for those operations that identify arresting officers, Officer
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
During the second large-scale Mesa patrol he arrested 18 people, ten of whom had
Hispanic names (Actually, eleven persons were designated in the arrest report as being
unauthorized aliens, however, the name of the eleventh, Minerva Vujando, was not
included in Ex. 320 as an Hispanic name, so the Court does not count it here). (Ex. 97.)
During the first Sun City patrol he arrested 17 persons on one arrest, all of whom had
Hispanic names. (Ex. 102.) Although the probable cause listed on the arrest report for
stopping this vehicle was a violation of Arizonas Human Smuggling Act, all persons in
this arrest processed with ICE on federal immigration charges. While the arrest was not
made on the state charge, the Court is willing to assume that, due to the large number
being transported, there was sufficient probable cause to pull the persons over for a
violation of state law, even if Deputy Armendariz had not considered race as a factor.
During the first Southwest Valley saturation patrol, he arrested nine people over the
course of two days, five of whom had Hispanic surnames. (Ex. 111.) On the April 2324
West Valley patrol, he arrested 16 people, 14 of whom had Hispanic surnames. (Id.) On
the July 2324 Chandler Southeast Valley patrol, he arrested 17 people, 11 of whom had
Hispanic surnames. (Exs. 128, 168.) On the September 5, 2009 patrol at Durango and
35th Ave, he arrested eight people, six of whom had Hispanic surnames. (Ex. 170.)
During the November 16, 2009 countywide patrol he arrested three people, all of whom
had Hispanic surnames. (Exs. 176, 17882.)
74
During the August 2008 Sun City large-scale patrol, Deputy Armendariz pulled
over a vehicle with 17 occupants. The passengers were arrested for federal immigration
violations. However, even if those arrests are removed from the equation as having
sufficient probable cause to investigate and arrest absent Deputy Armendarizs use of
race as a factor in making the stop, then 58 of 80 his arrests, or 72.5%, had Hispanic
names, and 16 of 19 passengers arrested had Hispanic names.
75
Although technically speaking the operation plans prohibiting racial profiling

and requiring all possible arrests applied only to large-scale saturation patrols, Deputy
Armendariz testified that he never considered race in any aspect of his law enforcement.
Thus, if true, his arrests should reflect that reality.
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Armendariz participated in at least the first day of the Fountain Hills operation, and in the
September 2008 Cave Creek operation. The Fountain Hills operation lasted six hours.
(Ex. 108.) During those six hours, seven stops were made, four of which resulted in
immigration arrests. (Id.) Of the four stops that resulted in immigration arrests, three were
made by Deputy Armendariz, the other was made by Deputy Cosme. (Id.) All of the
recorded stops made by Deputy Armendariz resulted in the arrest of unauthorized
aliens.76 (Id.)
The records for the September 2008 Cave Creek operation also reveal which
officers made the stops that resulted in immigration arrests. Four of the 33 stops made on
10
that day resulted in immigration arrests. (Ex. 112.) Deputy Armendariz made two of
11
those four stops. (Id.) The ratio of stops to immigration arrests made does not serve to
12
demonstrate whether Deputy Armendariz may have been using race as a criteria on which
13
to stop traffic violators. Nevertheless, during these two days of operations, Deputy
14
Armendariz made five traffic stops that resulted in ten arrests of unauthorized residents.
15
(Id.) All of the persons arrested by Deputy Armendariz had Hispanic surnames and each
16
of them was arrested on federal immigration charges. (Id.) At least six, but possibly as
17
many as eight of these persons were passengers in vehicles. (Id.) During these two days,
18
it is clear that Deputy Armendariz made no effort to pull over every vehicle he observed
19
committing a traffic violation because during the entire first day of the Fountain Hills
20
operation, both units of the MCSO pulled only over seven vehicles. During the
21
September 2008 Cave Creek operation, although more vehicles were stopped, and more
22
vehicles may have been stopped by Deputy Armendariz, he never arrested anyone on
23
either day, other than Hispanic drivers or passengers. (Id.)
24
25
26
27
When asked to explain his disparate arrest rate of Hispanic persons, Deputy
76
On the second day of the Fountain Hills operation no record was kept of the
officers who made the stops, so it is not possible to know if Deputy Armendariz
participated, or how many of the stops he made.
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Armendariz testified that the majority of Maricopa Countys population is Hispanic. (Tr.
at 1504:101505:2.) That assertion is simply wrong. Approximately 30% of the
population of Maricopa County is Hispanic. See United States Census, State & County
QuickFacts, Maricopa County, Arizona, http://quickfacts.census.gov/qfd/states/04/
04013.html (last visited May 21, 2013). Approximately 77% of the arrests made by
Deputy Armendariz during large-scale saturation patrols had Hispanic surnames. 100%
of the persons he arrested during the limited sampling of small-scale patrols had Hispanic
surnames. The Court concludes that Deputy Armendariz considered race as one factor
among others in making law enforcement decisions during both large- and small-scale
10
saturation patrols.
11
Deputy Beeks participated in at least four of the large-scale saturation patrols. (Id.)
12
From the Courts calculations 14 of the 15 arrests made by Deputy Beeks during the
13
large-scale saturation patrols, or 93.3% of the total arrests he made were of persons with
14
Hispanic names.77 Further, during these large scale saturation patrols, Deputy Beeks
15
arrested 11 passengers. (Exs. 82, 90, 174.) Nine of them were determined to be
16
unauthorized aliens, and all of them had names that are listed as Hispanic in Exhibit 320.
17
It is likely that the ten arrests Deputy Beeks made during the second Sun City patrol
18
stemmed from a human smuggling load. All ten came from the same vehicle.78 (Ex. 174.)
19
Excluding those numbers, Deputy Beeks made five other arrests, four of whom had
20
21
22
23
24
25
26
27
77
During the large-scale saturation patrol at Cave Creek and Bell he arrested one
person, and that person had a Hispanic surname. (Ex. 82.) During the first large-scale
Mesa patrol he arrested three people, all of whom had Hispanic surnames. (Ex. 90.)
During the April 2009 West Valley patrol he made one arrest of a person who did not
have a Hispanic surname. (Ex. 111.) During the second Sun City patrol of October 17,
2009, he arrested ten people. (Ex. 174.) All of them had Hispanic surnames.
78
Three of the ten were arrested on state charges and seven of the ten were turned
over to ICE under MCSOs LEAR policy, presumably meaning there was no basis to
arrest on state charges.
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Hispanic last names and were in the country without authorization. The Court concludes
that Deputy Beeks considered race as one factor among others in deciding whom he
would stop.
The large-scale patrol arrest statistics for both Deputy Rangel and Deputy Kikes
have been previously discussed. See Section II.8, supra. As noted, Deputy Kikes
participated in three large-scale saturation patrols over four days and made a total of five
arrests on all such patrols. All five had Hispanic names. Thus 100% of all persons he
arrested during a minimum of three days of saturation patrols were Hispanic. Similarly,
Deputy Rangel participated in seven large-scale saturation patrols in which 54 out of the
10
60 people he arrested had Hispanic surnames.79 The Court concludes that Deputies Kikes
11
and Rangel considered race as one factor among others in making law enforcement
12
decisions in an immigration context.
13
To the extent that the MCSO invites the Court to find that the MCSO saturation
14
patrols did not incorporate racial bias in design or execution based on the testimony of
15
these officers that they did not so engage, the Court declines to do so. The great weight of
16
the evidence is that all types of saturation patrols at issue in this case incorporated race as
17
a consideration into their operations, both in design and execution, the vehicles the
18
deputies decided to stop, and in the decisions made as to whom to investigate for
19
immigration violations.
20
The day labor operations and similar small-scale patrols with high arrest ratios
21
specifically required the investigation of passengers that were Latino day laborers, which
22
23
24
25
26
27
79
If the human-trafficking load(s) arrested by Deputy Rangel during the August

2008 Sun City patrol are removed from the equation, then 11 of 16 arrests or 68.7% of
his total arrests are of persons with Hispanic names. During the nine days, he made 60 (or
16) arrests. Of the 60 (or 16) arrests, 54 (or 11) just happened to be of Hispanic persons
who were in the country without authorization, and 47 (or 4) of them were on
immigration charges. The Court rejects the proposition that Deputy Rangel was not
considering race in the vehicles he stopped or the passengers he investigated and arrested.
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meant a disproportionate number of Latino passengers had their identities investigated,
regardless of whether that investigation resulted in arrest. The number and types of
resulting arrests for each of these operations demonstrates that their principal purpose
was the investigation and arrest of persons likely to be unauthorized residents. As shown
above, members of the MCSO believe that virtually all unauthorized residents in
Maricopa County are Hispanic. Because (1) the MCSO was involved in an operation
whose principal purpose was to investigate and arrest unauthorized residents, (2) it was
trained by ICE that it could take into account Hispanic background as one factor among
others leading to the reasonable suspicion that a person is not here legally, and (3)
10
individual deputies were required during such operations to keep track specifically of the
11
number of people they arrested who were not authorized, the Court concludes that those
12
deputies emphasized stopping and investigating the identities of Hispanic persons during
13
such operations.
14
In the large-scale patrols, MCSO policy instructed officers to rely on their 287(g)
15
certification training in making similar decisions and consequently allowed the officers to
16
consider the passengers race in making the decision to investigate the passengers
17
identity. That direction would have resulted in the disproportionate investigation of
18
passengers of Latino background, regardless of whether probable cause or reasonable
19
suspicion otherwise existed to justify such a search. Dr. Taylors analysis confirms that
20
Hispanic names were more likely to be checked. During the T-Stops that included names
21
called into dispatch during the 11 operations that were the subject of Dr. Taylors
22
analysis, 308 people were arrested for being present in the country without authorization.
23
(Tr. at 1311:20-1313:3). Further, according to Dr. Taylor, depending on the threshold of
24
name used, between an additional 1,312 and 1,988 Hispanic names were checked during
25
the CAD stops that he monitored. (Id. at 90:1216.)
26
Further, as demonstrated below, in its ongoing enforcement of state laws related to
27
immigration and the LEAR policy, the MCSO continues to consider race as one
28
indicator, among others, that a person is in the country without authorization. Therefore,
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MCSO officers continue to stop and check the identities of a disproportionate number of
Hispanic persons.
10.
The MCSO stops a vehicle for the length of time it takes to investigate
its occupants, not the amount of time necessary to dispose of the traffic
infraction that resulted in the stop.
MCSO traffic stops at issue lasted as long as it took to check the identity of the
Hispanic occupants of a vehicle. Some of these stops lasted much longer than it would
have taken to handle the traffic infraction that justified pulling the vehicle over in the first
place. This is demonstrated by comparing two similar stops during which the MCSO took
the same enforcement action.
10
At trial, David Vasquez testified that he was pulled over by Deputy Ratcliffe of
11
the MCSO during the first large-scale saturation patrol in Mesa. (Tr. at 199:2022,
12
201:24202:2.) Mr. Vasquez acknowledged that the stated purpose for the stop was a
13
very small if not imperceptible chip in his windshield. (Ex. 54.) Mr. Vasquez is Hispanic
14
and his wife is not Hispanic. (Tr. at 198:1517, 19923.) Deputy Ratcliffe asked Mr.
15
Vasquez for his identification but did not make the same inquiry of his wife. (Id. at
16
200:21201:6.) After Deputy Ratcliffe checked Mr. Vasquezs identification, he was
17
released without being issued a citation for the chipped windshield or any other reason.
18
(Id. at 201:16.) Although Mr. Vasquez estimated in his testimony that the stop took ten
19
or 15 minutes, he was confronted on cross-examination with the CAD record of the stop
20
that demonstrated that it took just over four minutes. (Id.) Upon cross-examination Mr.
21
Vasquez acknowledged that the stop could have taken as little as four minutes. (Id. at
22
206:1314, 208:27.) The Court credits the CAD record.
23
By contrast, although the stop that resulted in the arrest of Jose de Jesus Ortega-
24
Melendres also resulted in only an oral warning to the driver, it lasted approximately 40
25
minutes. Considerable trial testimony concerned that stop. On that day, Deputy Louis
26
DiPietro, a member of the canine unit, was recruited by the HSU and assigned to follow
27
cars the HSU officers targeted until he could develop probable cause to stop the car for a
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traffic violation. (Id. at 242:1020.) Members of the undercover team observed Mr.
Ortega-Melendres and other Hispanic individuals get into a vehicle, and radioed to
Deputy DiPietro that he should follow the car and develop probable cause to stop it. (Id.
at 244:1824.) Deputy DiPietro followed the car for between one and three miles, then
pulled it over for speeding. (Id. at 245:824.)
The evidence established that Sgt. Madrid and Deputy Rangel, both HSU officers,
came to the scene after they heard that Deputy DiPietro had stopped the car. Deputy
DiPietro testified that he did not believe that he had probable cause to detain the
passengers for any state crime,80 but he held all of the occupants of the vehicle pending
10
the arrival of Sgt. Madrid and Deputy Rangel and their completion of an investigation
11
into the immigration status of the passengers. (Id. at 256:918.) It took up to ten minutes
12
for Deputy Rangel and Sgt. Madrid to arrive.81 The Court so concludes because Deputy
13
Rangel testified that the driver would have been at the scene a total of between 30 and 40
14
minutes, and that the driver would have been at the scene for approximately 30 minutes
15
after Deputy Rangel arrived. (Id. at 952:46.) It then took Deputy Rangel and Sgt.
16
Madrid, operating in tandem, approximately 30 minutes to conduct their investigation
17
into the immigration status of the three passengers that were in the car before placing the
18
passengers under arrest. (Id. at 952:911.) Deputy DiPietro then released the driver. (Id.
19
at 246:68.)
20
Upon arrival, Deputy Rangel, who had no reason to believe that the passengers
21
80
22
23
24
25
26
27
DiPietro did testify that he believed the majority of day laborers to be

unauthorized immigrants. However, when questioned further, he admitted that he did not
form this belief until he participated in the day labor operation that resulted in the OrtegaMelendres stop. (Tr. at 299:14-300:17.)
81
To the extent that Deputy DiPietro testified he made any independent analysis as
to whether the passengers were unlawfully present or breaking any laws, the Court
concludes that pursuant to the operation, HSU officers would have arrived regardless of
Deputy DiPietros conclusions. (Ex. 129; see also Ex. 126.)
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had violated any state law accordingly to his own testimony, asked the passengers in the
vehicle for their identification.82 (Id. at 910:320.) Deputy Rangel and Sgt. Madrid began
questioning the passengers. Sometime thereafter they received from Mr. Ortega-
Melendres his B-1/B-2 visa. They may have also received from him his valid I-94 form.83
(Id. at 910:1925.) At some point, after examining the documentation provided by
Ortega-Melendres and the information provided by his fellow passengers, Deputy Rangel
determined to arrest the Hispanic passengers. He handcuffed them and arranged for their
transportation to ICE. (Id. at 915:57.)
Neither Deputy Rangel nor Deputy Madrid ever spoke to the driver. Deputy
10
DiPietro alone had contact with him. (Id. at 952:1415, 246:2025, 247:2324.) Deputy
11
Rangel testified that he never spoke with the driver because it was not HSUs job to clear
12
the driver. (Id. at 910:1118.) Although Deputy DiPietro vacillated several times in his
13
testimony, and was confronted with contrary testimony from his deposition, the Court
14
ultimately credits Deputy DiPietros testimony that he held the driver until HSU had
15
completed its investigation. Therefore, 40 minutes after the initial stop, after the
16
investigation of the vehicles passengers was complete and the HSU had determined to
17
18
19
20
21
22
23
24
25
26
27
82
Deputy Rangel, who is and was at all times relevant to this lawsuit a member of
the MCSOs Human Smuggling Unit, has not been trained in the human smuggling
statute, although he has read it. (Tr. at 953:1925.) He has never been trained that day
laborers are committing criminal violations by seeking or accepting labor. (Id. at 935:12
17.) Deputy Rangel did not believe that the vehicle that Deputy DiPietro stopped was
involved in human smuggling. (Id. at 938:1922.) Deputy Rangel does not believe that
transporting a day laborer implicates the human smuggling statute, even if the person
transporting the day laborer knows or has reason to believe that the day laborer is not
authorized to be in the country. (Id. at 953:5954:2.)
83
Deputy Rangel disputes that Ortega Melendres ever produced an I-94 form.
According to ICE documentation, however, when he was presented at the ICE detention
facility, Ortega-Melendres did have his I-94 in his wallet. (Ex. 1093.) After being held
for several more hours at ICE pending investigation Ortega-Melendres was released
without further action being taken against him.
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detain the passengers, Deputy DiPietro gave the driver a verbal warning and let him go.
(Id. at 246:1116.) Yet, as the stop of Mr. Vasquez demonstrates, it would only have
taken approximately four minutes to issue a warning to the driver. That Deputy DiPietro
retained the driver until the investigation of the passengers was complete does not
establish that it would have reasonably taken forty minutes to give the driver an oral
warning for speeding.
A brief review of the arrest reports shows that a great number of the arrests during
the saturation patrols involved the arrest of multiple passengers during a stop when
drivers received only a traffic warning or citation. In many such cases, merely
10
investigating the identities of the passengers would have dwarfed the amount of time
11
necessary to issue a traffic citation. For example, during the first day labor operation at
12
Cave Creek, Deputy DiPietro issued only warnings to both drivers he stopped. As with
13
the driver of the Ortega-Melendres vehicle, Deputy DiPietro also issued only a traffic
14
warning to the second driver he stopped on that day. There were, however, six passengers
15
who were investigated and arrested during that stop. (Ex. 126.) The Court finds that it
16
would have taken longer than 40 minutes, and certainly longer than four, for the MCSO
17
officers to investigate the identities of those six passengers.
18
Similarly, during the balance of the day labor operations, and apparently the small-
19
scale saturation patrols, many of the immigration arrests arose from traffic stops during
20
which multiple passengers were arrested. (Exs. 76, 80, 81, 108, 112, 114, 117, 119, 120,
21
123, 125, 129, 131, 175, 286.) Based on the Ortega-Melendres stop, it would take three
22
deputies approximately 40 minutes to issue a citation or a warning to the driver and
23
investigate the identity of three passengers who did not have ready identification in their
24
possession. Thus, the Court finds that many of the traffic stops conducted during those
25
operations would have taken around 40 minutes.
26
There was, however, additional evidence about how much time it takes to
27
investigate the identity of a passenger. Deputies Rangel and Armendariz both testified
28
about the process. As discussed above, they testified that MCSO deputies ask all
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passengers for identification during every traffic stop. If an occupant provides them with
identification they run the identification through the standard database accessible from
their patrol vehicles. If a passenger provides no identification, they next ask the passenger
to provide his or her name and date of birth. They then run the provided name and date of
birth in the standard database.
Deputy Rangel testified that if the standard MVD database contained no
information concerning a person with that name and date of birth, he returns and asks the
vehicles occupant(s) for another form of identification and/or asks questions concerning
their identity and status. (Tr. at 946:59.) If he received no further identification, and
10
Deputy Rangel was on a saturation patrol, he would then arrest the person for an
11
immigration violation. (Id. at 947:220.) Since the termination of MCSOs 287(g)
12
authority, when he encounters an individual who he suspects is undocumented but he has
13
no basis to take into custody for violation of a state crime, he takes that person into
14
MCSO custody, pending their transfer to ICE. (Id. at 958:23959:7.)
15
Deputy Armendariz testified that if the database accessible from his patrol vehicle
16
provided no information on a person with the name and date of birth supplied, he then
17
takes the person into custody until their identity could be ascertained. (Id. at 1544:79,
18
1585:71586:12.) In such a circumstance, he accesses other databases that may or may
19
not be available through the MVD database such as the JWI, NCIC, and ACIC. (Id. at
20
1520:251524:4.) If these databases are not accessible to him from his patrol vehicle, or
21
if, for other reasons it would be beneficial to have dispatch run the searches, he contacts
22
dispatch and has dispatch run the supplied identity through other databases, including
23
PACEa system maintained by the City of Phoenix. (Id. at 1526:2124.) He
24
acknowledged that such a process takes time, and it would be impossible to calculate an
25
average. Nevertheless, he testified that such an inquiry takes
26
27
28
a while because the dispatchersthe dispatcher that we have that we

run on that particular channel runs information for the entire county.
. . You have to base it on the fact that whenwere on the satellite
or were on a mobile system and the computers run real slow. There
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are a lot of cases where DPS, the DPS system itself is down and the
queue is down.
2
3
4
5
6
7
8
There is when we go to our info channel and we run them on our

information channel where the dispatcher is backlogged because, as
I said, she runs its one dispatcher for the entire county, whoever
transfers over to that channel that needs information.
And also I request a PACE check, which is through the City of
Phoenix. So she has to callthe dispatcher that is to contact the City
of Phoenix for more information.
(Id. at 1525:2123, 1526:1224.)
Deputy Armendariz acknowledged that while he is waiting for a response, he
10
returns to the vehicle and asks further questions to the passenger, or requests other forms
11
of identification including the passengers social security number. (Id. at 1525:414,
12
1585:231586:12.) He further noted, consistent with other testimony, that such inquiries
13
can prolong the stop because Hispanic surnames are often hyphenated, requiring a check
14
of each permutation of the same name. (Id. at 1508:41509:3, 1527:1318.)
15
Deputy Armendariz does not believe that it has ever taken him more than a half
16
hour to run such a database check, but acknowledged that an identification check would
17
run approximately fifteen minutes. (Id. at 1590:512.) Deputy Armendariz then twice
18
confirmed that it is still his practice to go through this process of investigating passengers
19
during all of his stops. (Id. at 1526:13, 1546:317.) After the lunch break in his
20
testimony, however, he seemed to contradict himself in part when he testified that now
21
that he does not have 287(g) authority, if he is unable to figure out a passengers identity
22
he just lets them go. (Id. at 1589:1218.) The Court finds that such testimony is not
23
credible especially in light of the LEAR policy, discussed below, which would require
24
Deputy Armendariz to detain such persons if he develops reasonable suspicion that they
25
are not in the country legally.
26
As the investigation of Deputy Rangel and Sgt. Madrid into the identity of Mr.
27
Ortega-Melendres and his fellow passengers demonstrates, investigating the identity of
28
multiple persons per stop extends the duration of the time that it takes to conduct such
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stops, even when multiple officers are conducting the inquiries.
While writing a citation would take somewhat longer than issuing a warning, it
would not take considerably longer. Many cases suggest that such stops last around ten
minutes. See, e.g., Illinois v. Caballes, 543 U.S. 405, 406 (2005) (noting that the issuance
of a warning ticket, arrival of another officer, tour around the car with a narcotics-
detection dog, search of the trunk and resulting arrest took less than 10 minutes in
total). Yet, Deputy DiPietro estimated that it typically could take up to twenty minutes to
issue a citation. (Tr. at 297:1622.) Even accepting this higher estimate, many of the
arrests during saturation patrols resulted in the arrest of multiple passengers, and thus
10
their investigation would have taken significantly more time than it would have taken to
11
issue a ticket to the driver. Although most arrest reports of the operations show that a
12
traffic stop resulted in at most a citation to the driver, during a few the driver was arrested
13
on criminal charges. Even so, the majority of the evidence indicates that investigating the
14
identities of passengers occurred frequently during MCSO operations and that such
15
investigations took significantly longer than it would take to warn or cite the driver. Thus,
16
the Court finds that for most stops conducted by the MCSO, the length of the stop lasted
17
the time it took to investigate the passengers rather than to deal with the traffic citation.
18
19
20
21
22
23
24
25
26
27
28
11.
Some MCSO deputies claim to conduct identity checks on all vehicle

occupants. Due to MCSO policy that allows officers to consider race in
determining whether to initiate an immigration investigation, vehicle
occupants who are Latino are more likely to have their identity
checked as a matter of operational procedure and policy.
The MCSO acknowledges that there is no legal requirement in this state that
passengers in vehicles carry identification. Nevertheless, Sheriff Arpaio stated in a
national press interview that when persons were passengers in a vehicle with a driver
stopped on criminal suspicion, MCSO deputies were entitled to investigate the passengers
in the vehicle as a matter of course. (Ex. 410a (stating that if unauthorized aliens were
passengers in a vehicle with a driver stopped for an immigration violation or other crime,
we have the right to talk to those people).) Some MCSO witnesses at trial, including
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Deputy Armendariz, testified that, as a matter of continuing practice, MCSO officers
investigate the identity of all passengers in every vehicle they stop regardless of whether
the stop was made during a saturation patrol. (Tr. at 1518:1419, 1543:412 (Deputy
Armendariz testifies that its typical for all law enforcement officers to ask all passengers
to volunteer their identification after pulling over a car, and he always does this whether
its a routine traffic stop or a saturation patrol), 923:1214, 931, 944:916 (Deputy
Rangel testifies that he asks everybody in a vehicle for identification as a matter of habit,
and not only while conducting saturation patrols).) Further, Chief Click stated in his
report that it was his understanding that all passengers in vehicles that had been stopped
10
would be contacted because of the zero tolerance policy. (Ex. 1070 at 46.) At least some
11
deputies understood the purpose of saturation patrols to be making contact with as many
12
people as possible during the course of each traffic stop. (Tr. at 302:1622.) Thus, many
13
stat sheets requested the number of contacts made during patrol stops. To the extent that
14
the deputies understood this to be the purpose of saturation patrols, they would have
15
likely asked for the identity of every person stopped as a matter of course, as Deputy
16
Armendariz suggested.
17
Regardless of whether individual officers routinely investigated the identity of
18
every person in every car they stopped, Sgt. Madrid testified that officers participating in
19
day labor operations were instructed that when they responded to a vehicle that had been
20
stopped, they were to investigate all passengers for immigration violations. (Id. at
21
1144:114.) As set forth above, investigating passengers identities was a basic element
22
of a day labor operation. None of the reports made any attempt to set forth reasonable
23
suspicion to investigate the passengers once a stop was made.84 Rather, they confirm that
24
25
26
27
84
At trial, Deputy DiPietro testified that the HSU officers were en route to the
scene once they heard he stopped the vehicle. (Tr. at 256:918.) Thus, as an operational
matter, the deputies were not looking to establish independent reasonable suspicion to
investigate the passengers once the vehicle was stopped, even if they could have
established it.
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the investigation of the passengers identifies followed the traffic stop as a matter of
course. (Exs. 123, 129, 131.) Three of the four reports state:
3
4
5
6
7
traffic stops [were] made from UC [undercover] vehicles relaying that day
laborers were picked up from the area. Once the pick up vehicle was
located by MCSO marked patrol units, detectives would establish probable
cause for a traffic stop. Once the vehicle was stopped HSU detectives
would interview the subjects in the vehicles in reference to their legal status
to be in the US.
(Exs. 123, 129, 131; Tr. at 1144:18; 1151:411.)
As with the reports of the day labor operations, the great majority of the small-
scale saturation patrol reports, especially those with high arrest ratios, set forth for every
10
traffic stop that resulted in the arrest of an unauthorized alien: (1) the basis for the traffic
11
stop, (2) whether and for what the driver was cited and/or arrested, (3) the number of
12
unauthorized aliens arrested during the stop, and (4) the number of persons, including
13
unauthorized aliens, that were arrested on state charges as opposed to federal immigration
14
charges. It is clear from these arrest reports that officers investigated passengers because
15
many of the stops resulted in multiple arrests per stop. In any small-scale patrol where the
16
deputy developed reasonable suspicion during the traffic stop that another state crime was
17
being or had been committed, the MCSO arrested the vehicles occupant on that basis.
18
The reports, however, do not state any observations made after the vehicle was pulled
19
over that would provide reasonable suspicion that the passengers were in the country
20
without authorization.
21
The arrest reports for large-scale saturation patrols confirm that separate probable
22
cause or reasonable suspicion as to passengers was not considered a necessity prior to
23
investigating their identities. Those reports contain a column listing the probable cause
24
that lead to each arrest. Again, in almost all cases involving passengers who were
25
arrested, the only probable cause listed is that the person was a passenger in a vehicle
26
stopped for a traffic violation. (Exs. 79, 82 (particularly the arrests of Deputies Ruiz,
27
Almanza, Smith, Calderon, Armendariz, Romney, Sloup and Seclacek), 90, 97
28
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(particularly the arrests of Deputies Armendariz, Schmizer, Doyle, Beeks, Brockman,
Trombi, Komoroski, Cosme, Templeton, Silva, Summers, Roughan and Rangel); 102,
111, 174, 178, 180.) Thus, as with the small-scale patrols, these arrest reports do not
delineate any individualized reasonable suspicion or probable cause on which an MCSO
deputy could detain a passenger or prolong a stop to investigate a passengers
authorization for being in the United States.
Based on the weight of the evidence and testimony, the Court concludes that
officers in the MCSO operations frequently detained passengers to investigate their
immigration status as a matter of course, whether based in part on the race of the
10
occupants or otherwise. In some of those stops, some officers may have had an
11
objectively reasonable suspicion with respect to individual passengers sufficient to
12
prolong detention for a reasonable time to conduct a brief investigation. Nevertheless,
13
MCSO practice and some of its operational procedures do not require its deputies to have
14
such suspicion beyond the initial traffic stop or to document their bases to routinely
15
investigate the identities of a vehicles occupants.
16
12.
17
18
19
20
21
22
23
24
25
26
27
28
The MCSO never made an evaluation to determine whether its

saturation patrols were being implemented with racial bias.
MCSO command personnel uniformly testified that they did not conduct any sort
of investigation or monitoring to determine whether the saturation patrols were being
implemented in a racially-biased fashion. For example, Chief Sands testified that the
MCSO does not collect data on those people it stops or detains to determine whether
officers are engaging in racial profiling.85 (Id. at 833:68.) Sgt. Palmer testified that if he
85
Chief Click, the MCSOs standard of care expert at trial, testified that any
supervisor who wanted to minimize racial profiling would have to take active steps to
combat it by reviewing records, investigating unusual findings, and retraining officers as
needed. (Tr. at 1746:241747:5, 1750:201751:9, 1754:413.) He testified that
anything that would raise the specter of racial profiling needs to be investigated and
looked at further. (Id. at 1765:1214.) Chief Click testified that to determine whether
or not officers are improperly using race during a saturation patrol, a department would
not merely look to see if there was probable cause for a particular stop, but look at the
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saw that a deputy had reported that he had reasonable suspicion to justify a stop, he knew
that the deputy did not engage in racial profiling. (Id. at 724:22725:1.) He further
testified that he socializes with other officers in the MCSO off-duty, and based on
knowing them socially and knowing them as well as he does, he knows that they do not
engage in racial profiling. (Id. at 778:25779:2.) He also testified that he believes there
is no need to investigate whether MCSO officers improperly use race in the course of
their law enforcement duties because quite frankly, sir, I know my brothers, and we
abide by the law.86 (Id. at 779:1718.) Because he is certain that the other members of
the HSU would never engage in racial profiling, Sgt. Palmer never took any action to
10
determine whether HSU deputies engaged in racial profiling and never put any system in
11
place to monitor for racial profiling. (Id. at 780:1522.)
12
Sgt. Madrid has never reviewed his deputies incident reports for the purpose of
13
checking whether they are engaged in racial profiling. (Id. at 1172:1215.) If Sgt. Madrid
14
15
16
17
18
19
20
21
22
23
24
25
26
bigger picture, how many people did either the individual deputy stop or how many were
stopped, how many total people were stopped during the patrol? (Id. at 1764:23
1765:1.)
86
The deputies that Sgt. Palmer supervised in the HSU are, apparently the same
ones with whom he exchanged e-mails demeaning Mexicans. (Exs. 18, 29.) Sgt. Palmer,
considering the e-mails a joke, forwarded them to the deputies he supervised in the
HSU. (Tr. at 735:1113.) Although Sgt. Palmer believes he was disciplined for sending
the emails, he remained a supervising sergeant in the Human Smuggling Unit. (Id. at
737:1718.) A year later, Sgt. Palmer circulated to the HSU a fictional article from the
Los Angeles Times purporting to be about immigration which contained baseless
statistics regarding the unauthorized population in California. (Ex. 2.) Sgt. Palmer did not
investigate whether the statistics in the e-mail were true before sending it to his
subordinates. (Tr. at 729:2123.) Sgt. Palmer forwarded the e-mail to his deputies in the
Human Smuggling Unit as factual information for training purposes. (Id. at 732:26.)
Sgt. Palmer later learned that the statistics in the e-mail were not from the Los Angeles
Times and were not factual, but does not recall ever sending an e-mail to his deputies
mentioning that the earlier e-mail was a hoax. (Id. at 732:13.)
27
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determined that an officer had probable cause to make a stop, he wouldnt even suspect
that the officer had engaged in racial profiling. (Id. at 1172:2024.) Lt. Sousa did not
review citations, stat sheets, or any other documents to determine whether racial profiling
was occurring in the Human Smuggling Unit because he believed that racial profiling
was a nonissue. (Id. at 1022:1216.) Lt. Sousa is not aware of the MCSO ever
disciplining an officer for racial profiling. (Id. at 1023:2325.)
11
After the revocation of its 287(g) status, the MCSO erroneously trained
all of its 900 deputies that they could enforce federal immigration law.
The MCSO further erroneously trained its deputies that unauthorized
presence in the country, without more, was a criminal as opposed to an
administrative violation of federal immigration law. The MCSO
operated under that misunderstanding during most of the period
relevant to this lawsuit.
12
Until December 2011, the MCSO continued to operate under the erroneous
13
premise that being an unauthorized alien in this country in and of itself established a
14
criminal violation of federal immigration law which the MCSO was entitled to enforce
15
without 287(g) authorization. (Tr. at 699:3702:17.) At the time of revocation, the MCSO
16
had approximately 100 field deputies who were 287(g) certified. (Exs. 356, 359, 360.)
17
Shortly after the revocation of his 287(g) authority, Sheriff Arpaio decided to have all of
18
his deputies trained on immigration law. Being so trained, the MCSO asserted, all MCSO
19
deputies could make immigration arrests. (Exs. 359 (MCSO news release dated March
20
18, 2010 stating that because ICE revoked the ability of 100 287(g)-trained officers to
21
enforce immigration law, the MCSO would now use all 900 of its deputies to enforce
22
immigration laws in Maricopa County), 356, 358 (MCSO news release dated March 1,
23
2010 stating that [t]hese arrests are a result of Sheriff Joe Arpaios recent promise to
24
ensure that all 900 of his sworn deputies receive training on the enforcement of illegal
25
immigration laws), 360, 362.)
8
9
10
13.
26
This training erroneously instructed MCSO deputies that a person within the
27
country without authorization was necessarily committing a federal crime, and the MCSO
28
thus maintained the authority to detain them for criminal violations. (Tr. at 699:3
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702:17.) Further, Sheriff Arpaio gave interviews to the national and local press in which
he asserted that if a person is in the country without authorization, that person has
necessarily committed a criminal offense. (Id. at 362:1721 ([T]hey did commit a crime.
They are here illegally.).) Sgt. Palmer continued to provide such instruction and training
until December 2011, when this Court enjoined the MCSO from detaining persons on the
belief, without more, that those persons were in this country without legal authorization.
Ortega-Melendres, 836 F. Supp. 2d at 994.
Moreover, the Sheriff continued to run numerous saturation patrols focused on
arresting unauthorized immigrants generally. (Exs. 350 ([D]eputies turned over a total of
10
19 of the 30 suspected illegal aliens who were not charged for any state violations to
11
Immigration and Custom Enforcement officials without incident.); 35862 (emphasizing
12
the number of illegal immigrants arrested in these operations).) In such operations, he
13
continued to arrest and turn over to ICE the unauthorized aliens that his deputies arrested
14
during these patrols. (Ex. 360 (MCSO news release noting that 47 of 64 people arrested
15
in a post-revocation saturation patrol were illegal aliens. 27 of those 47 were arrested on
16
state charges with the remainder being turned over to ICE).)
17
18
14.
When enforcing state laws related to immigration the MCSO continues

to use race as an indicator, among others, of unauthorized presence, as
it did in its previous operations.
19
At trial, Sheriff Arpaio testified that the loss of 287(g) authority did not affect how
20
the MCSO conducted its immigration related operations, including the saturation patrols.
21
(Tr. at 469:23470:5.) He has continued to enforce the immigration laws, human
22
smuggling, employer sanction as he did previously. (Id. at 473:23474:1.) The Sheriff
23
maintains the right and intention to conduct such operations in the future. (Id. at 469:20
24
470:2, 473:5474:7, 474:2024.) Sheriff Arpaio testified that the last saturation patrol the
25
MCSO conducted prior to trial occurred during October 2011 in southwest Phoenix. (Id.
26
at 474:813.) He testified that although the MCSO had not conducted a saturation patrol
27
in the eight months prior to trial, he has not re-evaluated the propriety of the patrols based
28
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on the current litigation or other litigation. (Id. at 474:14475:1.) Further, the MCSO
continues to make immigration arrests. As the Sheriff testified, they arrested about 40
unauthorized persons in Maricopa County in the two weeks prior to trial. They charged
those they could with state law violations and they successfully turned the rest over to
ICE. (Id. at 503:311.) The Sheriff reaffirmed that the MCSO will continue to do all that
we can to reduce the number of illegal aliens making their way into the United States and
Maricopa County. (Id. at 336:23337:8.)
Several officers and deputies likewise affirmed that, essentially, nothing has
changed. Chief Sands testified that he does not believe that the revocation of 287(g)
10
authority had any impact on MCSOs ability to conduct saturation patrols or Human
11
Smuggling operations. (Id. at 845:1422, 837:67.) Chief Sands testified that, the MCSO
12
will continue enforcement of immigration issues. (Id. at 837:67.)
13
Sgt. Madrid also testified that ICEs termination of the MCSOs 287(g) authority
14
does not affect the MCSOs ability to conduct immigration enforcement operations
15
because a persons immigration status is relevant to determining whether there has been a
16
violation of the Arizona state crime of human smuggling, or possibly other state laws
17
related to immigration. (Id. at 1157:171158:6.) As discussed above, Sgt. Madrid
18
testified that, in enforcing the state human smuggling statute, MCSO officers continue to
19
consider race as one factor among many in deciding whether someone is suspected of
20
being an undocumented immigrant in a smuggling load. (Id. at 1164:412.) In reviewing
21
a report prepared by an MCSO deputy under his supervision in which the deputy stated
22
that he was suspicious that passengers in a vehicle were unauthorized immigrants based
23
on, among other factors, [t]he Hispanic decent [sic] of his passengers the pungent body
24
odor and the lack of luggage for traveling, (Ex. 157 at MCSO 024667), Sgt. Madrid
25
stated that he would not conduct any corrective follow up on the officer who submitted it
26
based on the use of race as a factor in forming his original suspicion, (Tr. at
27
1170:221171:3.)
28
Sgt. Palmer similarly testified that MCSO policy allows officers to decide to
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initiate an investigation during a stop based on race or ethnicity, among other factors.
(Id. at 717:24.) He specifically testified a passengers race could be used to determine
whether the vehicle was a human smuggling load. (Id. at 721:18.) He stood by his sworn
deposition testimony that he believed a subjects race was one relevant factor among
others that officers could use to develop reasonable suspicion that the subject was
unlawfully present in the United States. (Id. at 726:115.) Further, when presented with
the same report that Sgt. Madrid had reviewed in which a deputy described the suspects
Mexican descent as a basis, among others, for his belief that the suspect was in the
country illegally, Sgt. Palmer stated that [a]mong the other indicators listed there I dont
10
see a problem with that, no. (Id. at 721:12.)
11
Finally, Deputy Rangel testified that he currently uses the 287(g) factors to
12
determine whether he has reasonable suspicion that someone is unlawfully present. (Id. at
13
956:25957:5.)
14
16
MCSO deputies continue to follow the LEAR policy, which directs

them to detain persons whom they cannot arrest on state charges, but
whom they believe to be in the country without authorization, pending
direction from, or delivery to, ICE.
17
The MCSO continues to arrest those it believes to be unauthorized aliens, charges
18
those it can on state charges, and turns the rest over to ICE. At trial, Sheriff Arpaio
19
testified that in the last two weeks weve made over 40 arrests of illegal aliens coming
20
into our county, and a few we did not have the state charge, including some young
21
children, and ICE did accept those people. (Id. at 503:36.) He specified that the state
22
charge to which he referred was the Arizona Human Smuggling Act and then noted that
23
when the MCSO arrested unauthorized aliens that could not be charged under the Act,
24
we havent had any problem yet turning those that we cannot charge in state court over
25
to ICE. (Id. at 503:1011.) Although the LEAR policy as written does not require ICE to
26
accept such persons, according to Sheriff Arpaio, there is no problem with ICE doing so.
27
Nevertheless, the Sheriff has apparently stated in press interviews that if he encounters a
28
problem with ICE agreeing to accept the unauthorized aliens he arrests, the Sheriff will
15
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have the MCSO transport such persons back to Mexico. (Ex. 348.)
Similarly, according to Chief Sands under MCSOs current practice [i]ts the
ones that you possibly cant determine theres enough evidence to charge them with the
state law, and then you would turn them over to ICE. (Id. at 845:1517.)
Deputy Rangel similarly testified that MCSO initially take[s] into custody and
then turns over to ICE an individual that you suspect is an illegal immigrant but for
which you do not have probable cause of a state crime. (Id. at 958:23959:14.) He
repeated that the individual would be detained by the MCSO until the MCSO . . .
receives a response from ICE as to whether ICE wants the individual or wants them to be
10
released. (Id.)
11
Likewise, Lt. Sousa testified at trial that after the Department lost its 287(g)
12
authority, its officers continued to detain people whom they believed to be unlawfully
13
present in the country and make that phone call to ICE if they didnt have the state
14
charge. (Id. at 1007:911.)
15
Sgt. Madrid also testified that after the MCSO lost its 287(g) authority, MCSO
16
deputies would continue to arrest persons that they believed were present without
17
authorization and turn such people over to ICE. (Id. at 1161:1419 (testifying that his
18
practice was to detain a suspected illegal immigrant and make a call to ICE and let them
19
make that determination), 1226:823 (testifying that, after the loss of 287(g) authority,
20
HSU continued to operate in the same way except that they would have to call ICE after
21
detaining a suspected illegal immigrant rather than arresting that person with their own
22
287(g) authority).)
23
Sgt. Palmer testified that MCSO officers who encounter people they believe are
24
unlawfully present in the country ha[ve] to wait for contact with an ICE agent. (Id. at
25
698:811.) MCSO has drafted, placed in effect, and trained all of its deputies on this
26
policy. (Id. at 1055:1424, 1056:913, 1070:110, 1076:1118.) Deputy DiPietro
27
testified that he received some online training on the effect of the loss of 287(g)
28
authority, and that we were to call ICE, because we didnt have our 287(g) any longer.
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(Id. at 291:2223.) Deputy Armendariz stated that it is his current practice to conduct
investigative detentions of vehicle passengers to determine whether they are in the
country legally. (Id. at 1519:1315; 1544:79, 1585:81586:9.) He also testified that if
the database accessible from his patrol vehicle provided no information on a person with
the name and date of birth supplied, he then takes the person into custody until their
identity could be ascertained. (Id.)
The Court thus concludes that it is current MCSO policy to detain people on the
reasonable suspicion, without more, that they are not legally present in the country while
MCSO deputies attempt to or do contact MCSO field officers and/or ICE personnel to
10
investigate the detainees alienage. (Id. at 1590:112, 959:314, 503:311, 845:722,
11
1161:719, 1162:622, 1205:101206:9, 1226:514, 958:23959:2, 1055:1424,
12
1056:913, 1070:110, 1076:1118.)
13
16.
14
15
16
17
18
19
20
21
22
23
24
25
In following its LEAR policy, the MCSO continues to use race as an

indicator of unauthorized presence.
Pursuant to its LEAR policy, MCSO deputies continue to apply the indicators of
unlawful presence that were identified in the 287(g) training their officers received from
ICE to determine whether there is reasonable suspicion that someone is in the country
without authorization. Lt. Sousa stated that in implementing the LEAR policy, the
formerly certified 287(g) officers still had that training, so they would definitely know
the indicators. (Id. at 1007:910.) Sgt. Madrid testified that agents continue to look for
indications of unauthorized presence during stops and that they are trained to use race as
one of those indicators. (Id. at 1162:6-1164:12.) Deputy Rangel testified that he currently
uses the 287(g) factors to determine whether he has reasonable suspicion that someone is
unlawfully present. (Id. at 957:15.) The MCSO therefore continues to pursue the same
policies and practices it did before it lost 287(g) authority.
27
The MCSO arrests and/or detains all persons it believes to be

unauthorized, and it remains the regular practice of some of MCSO
deputies to investigate all the occupants of every vehicle they stop.
28
The MCSO continues to investigate the identity and immigration status of persons
26
17.
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it detains during vehicle stops. (Id. at 503:912 (Arpaio), 845:1422 (Sands), 1007:911
(Sousa), 1226:823 (Madrid), 698:811 (Palmer), 958:23959:7 (Rangel) 1526:13,
1546:317 (Armendariz), 291:2223 (DiPietro).) Deputy Armendariz twice confirmed
that it is still his practice to go through this process of investigating passengers during all
of his stops. (Id. at 1526:13, 1546:317.)
Sgt. Madrid testified that agents continue to look for indications of unauthorized
presence during stops and that they are trained to use race as one of those indicators. (Id.)
Further, once a vehicle has been stopped, MCSO policies allow MCSO deputies to
consider the Latino ancestry of a vehicles occupants, as one factor among others, in
10
deciding whether to inquire into the immigration compliance of persons stopped.

CONCLUSIONS OF LAW
11
12
I.
PROPRIETY OF INJUNCTIVE RELIEF
13
In this action, Plaintiffs seek injunctive relief only. To obtain such relief, Plaintiffs
14
have the burden of establishing that, not only have they been wronged, but there is a
15
sufficient likelihood that [they] will again be wronged in a similar way. City of Los
16
Angeles v. Lyons, 461 U.S. 95, 111 (1983). To the extent the MCSO has ongoing policies
17
or practices that violate the constitutional protections of the Plaintiff class, such policies
18
or practices constitute a sufficient possibility of ongoing harm to support an injunction.
19
See LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985); Thomas v. Cnty. of L.A., 978
20
F.2d 504, 508 (9th Cir. 1992); Walter v. Reno, 145 F.3d 1032, 1048 (9th Cir. 1998).
21
When it had 287(g) enforcement authority, the MCSO implemented operations,
22
policies and practices to take full advantage of its expanded authority to enforce federal
23
administrative immigration regulations and enhance the efficiency of its enforcement
24
operations against unauthorized aliens. Because the federal government has terminated
25
the MCSOs 287(g) authority, and because Plaintiffs seek injunctive relief only, the
26
MCSOs policies, operations, and practices adopted to implement its 287(g) authority
27
would not otherwise be relevant except that, as was made clear by the testimony of the
28
Sheriff and other members of the MCSO command staff at trial, nothing has changed: the
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MCSO both uses these same policies, operations and practices, and claims the right to
continue to use them in its enforcement of both immigration-related state law and its
LEAR policy.
Plaintiffs challenge a number of aspects of the policies, operations and practices
that the MCSO has used and continues to use. The MCSO stipulated that Sheriff Arpaio
is its ultimate policy maker. A policy, endorsed by an officer who claims he has final
decisionmaking authority, combined with statements by officers who are responsible for
implementing the policy, provides evidence that the MCSO made a deliberate choice to
follow a course of action made from among various alternatives by the official or
10
officials responsible for establishing final policy with respect to the subject matter in
11
question. Meehan v. Cnty. of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (quoting
12
Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (emphasis in original).
13
Thus, to the extent such practices violate the constitutional rights of the Plaintiff
14
class, Plaintiffs are entitled to injunctive relief. See LaDuke, 762 F.2d at 1326 (holding
15
that plaintiffs do not have to induce a police encounter before the possibility of injury
16
can occur because stops are the result of an unconstitutional pattern of conduct);
17
Thomas, 978 F.2d at 508 (stating that injunctive relief is appropriate when plaintiffs show
18
that police misconduct is purposefully aimed at minorities and that such misconduct was
19
condoned and tacitly authorized by department policy makers).
20
To the extent the MCSO asserts that, despite any potential future harm to the
21
certified class resulting from its policies, Plaintiffs cannot prevail because none of the
22
class representatives demonstrated at trial that they suffered personal harm, its argument
23
is not well-founded. It is true that to gain class certification, named plaintiffs must allege
24
and show that they personally have been injured. Warth v. Seldin, 422 U.S. 490, 502
25
(1975). However, when the claims of named plaintiffs are not proven at trial, unnamed
26
class members may be awarded relief so long as a controversy still exists between the
27
unnamed class members and the defendants. Sosna v. Iowa, 419 U.S. 393, 402 (1975).
28
(The controversy may exist, however, between a named defendant and a member of the
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class represented by the named plaintiff, even though the claim of the named plaintiff has
become moot.); see also Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 753 (1976)
(granting relief to class members in multiple subclasses even though the named class
representatives claim failed, because [t]he unnamed members of the class . . . have such
a personal stake in the outcome of the controversy . . . as to assure that concrete
adverseness) (internal quotations and citation omitted). The evidence demonstrates that
such a controversy exists between Defendants and unnamed class members here.
At any rate, as discussed in greater detail below, Mr. Ortega-Melendress Fourth
and Fourteenth Amendment claims succeed, so he personally [has] been injured and is
10
an appropriate class representative. Warth, 422 U.S. at 502.
11
II.
SPECIFIC CONCLUSIONS
12
A.
The MCSO is enjoined from enforcing its LEAR policy.
13
Mere unauthorized presence in this country, without more, is not a criminal
14
offense. It is true that use of unauthorized methods of entry into this country generally
15
constitutes at least misdemeanor or petty criminal violations of federal immigration law.
16
See, e.g., 8 U.S.C. 1325 (2005) (making it a federal misdemeanor to enter or attempt to
17
enter the United States at any time or place other than as designated by immigration
18
officers.). However, aliens may enter the country legally, but become subject to removal
19
either by staying longer than authorized or otherwise acting in excess of their
20
authorization. Although a number of such aliens are here without or in excess of
21
authorization, they have only committed a civil, as opposed to a criminal, violation of
22
federal law. As the Supreme Court recently explained [a]s a general rule, it is not a
23
crime for a removable alien to remain present in the United States. If the police stop
24
someone based on nothing more than possible removability, the usual predicate for an
25
arrest is absent. Arizona v. United States, ___ U.S. ____, ____, 132 S. Ct. 2492, 2505
26
(2012) (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)).
27
This Court preliminarily enjoined the MCSO on December 23, 2011 from
28
detaining persons based only on a suspicion that they were in this country without
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authorization in the absence of additional facts. The MCSO appealed the preliminary
injunction to the Ninth Circuit. In affirming the preliminary injunction, the Ninth Circuit
reiterated these principles:
4
5
6
7
8
9
10
11
12
13
We have long made clear that, unlike illegal entry, mere unauthorized
presence in the United States is not a crime. See Martinez-Medina v.
Holder, 673 F.3d 1029, 1036 (9th Cir. 2011) (Nor is there any other
federal criminal statute making unlawful presence in the United States,
alone, a federal crime, although an aliens willful failure to register his
presence in the United States when required to do so is a crime, and other
criminal statutes may be applicable in a particular circumstance.) (citation
omitted); Gonzales v. City of Peoria, 722 F.2d 468, 47677 (9th Cir. 1983)
(explaining that illegal presence is only a civil violation), overruled on
other grounds by Hodgers-Durgin, 199 F.3d 1037. The Supreme Court
recently affirmed that, [a]s a general rule, it is not a crime for a removable
alien to remain present in the United States. Arizona v. United States, 132
S.Ct. at 2502.
Ortega-Melendres v. Arpaio (Ortega-Melendres II), 695 F.3d 990, 1000 (9th Cir. 2012).
14
As demonstrated by the testimony of every MCSO officer at trial, the MCSOs
15
LEAR policy directs its deputies to detain persons believed to be unauthorized aliens but
16
whom they cannot arrest on state charges. The focus of the LEAR policy on detaining
17
any removable alien as opposed to aliens who have committed criminal offenses
18
necessarily means that the MCSO is detaining persons based only on its suspicion that
19
they have committed a civil infraction of federal immigration law. As a local law
20
enforcement agency without 287(g) authority, the MCSO has no statutory, inherent, or
21
constitutional authority to detain people for civil violations of federal immigration law.
22
See Martinez-Medina, 673 F.3d at 1036 ([U]nlike illegal entry, which is a criminal
23
violation, an aliens illegal presence in the United States is only a civil violation.) (citing
24
Gonzales, 722 F.2d at 476).
25
As the Supreme Court explained in Arizona, removable aliens are subject to
26
administrative removal proceedings that are civil in nature. 132 S. Ct. at 2499. Thus,
27
Congress has put in place a system in which state officers may not make warrantless
28
arrests of aliens based on possible removability except in specific, limited
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circumstances.87 Id. at 2507. After the termination of its 287(g) authority, the MCSO
offers no legal authority that would place it, or its LEAR policy, in one of those
circumstances. When the MCSO merely suspects a person of being in the country without
authorization, it does not, in the absence of additional facts that would make the person
guilty of an immigration-related crime, have a basis to arrest or even engage in a brief
investigatory detention of such persons.
In affirming this Courts preliminary injunction, not only did the Ninth Circuit
establish that the MCSO has no power to arrest such persons under such circumstances, it
made clear that the MCSO has no power to detain them to investigate their immigration
10
status. It is the existence of a suspected crime that gives a police officer the right to detain
11
a person for the minimum time necessary to determine whether a crime is in progress.
12
[P]ossible criminality is key to any Terry investigatory stop or prolonged detention. . . .
13
Absent suspicion that a suspect is engaged in, or is about to engage in, criminal activity,
14
law enforcement may not stop or detain an individual. Ortega-Melendres II, 695 F.3d at
15
1000 (quoting United States v. Sandoval, 390 F.3d 1077, 1080 (9th Cir. 2004).88
16
In the absence, then, of any reasonable suspicion of a possible crime, there is no
17
basis on which the MCSO can make an investigative detentionlet alone an arrest
18
based only on the belief that someone is in the country without authorization. See also
19
Arizona v. Johnson, 555 U.S. 323, 326 (2009) (holding that an investigatory stop is
20
justified at its inception only when an officer reasonably suspects that the person
21
apprehended is committing or has committed a criminal offense).
22
23
24
25
26
27
87
As an example, the Court cited the Attorney Generals authority to enter into a
287(g) agreement. Arizona, 132 S. Ct. at 2506. Other examples include an imminent
mass influx of aliens off the coast of the United States. 8 U.S.C. 1103(a)(10).
88
In United States v. Brignoni-Ponce, 422 U.S. 873, 88182 (1975) the Supreme
Court extended the authority to conduct Terry-like stops to civil immigration contexts for
those who had authority to investigate such violations. But, after revocation of its 287(g)
authority, the MCSO cannot claim such authority or benefit from this extension.
28
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The MCSOs LEAR policy is not saved by that part of the Supreme Courts
decision in Arizona that upheld, as against a preemption challenge, a provision in SB
1070 which provides that, [f]or any lawful stop, detention or arrest made by a law
enforcement official . . . a reasonable attempt shall be made, when practicable, to
determine the immigration status of the person. A.R.S. 11-1051(B); see Arizona, 132
S. Ct. at 2515-16. The threshold requirement is a lawful stop or detention. As explained
above, any stop or detention based only on a reasonable suspicion that a person is in the
country without authorization, without more facts, is not lawful. Thus, the LEAR policy
does not fall under the ambit of A.R.S. 11-1051(B).
10
Further, while 8 U.S.C. 1357(g)(10) does not require a 287(g) agreement for a
11
local law enforcement agency to report that a particular alien is not lawfully present in
12
the United States, or to cooperate in the identification, apprehension, detention, or
13
removal of aliens not lawfully present in the United States, such statutory language does
14
not negate constitutional guarantees or authorize local law enforcement agencies to
15
unilaterally arrest such individuals. As the Supreme Court said in discussing this statutory
16
authorization, [d]etaining individuals solely to verify their immigration status would
17
raise constitutional concerns. Arizona, 132 S.Ct. at 2509. Thus, in describing the
18
cooperation anticipated by the statute, the Supreme Court observed:
19
20
21
22
23
24
25
26
27
28
There may be some ambiguity as to what constitutes cooperation under the

federal law; but no coherent understanding of the term would incorporate
the unilateral decision of state officers to arrest an alien for being
removable absent any request, approval, or other instruction from the
Federal Government. The Department of Homeland Security gives
examples of what would constitute cooperation under federal law. These
include situations where States participate in a joint task force with federal
officers, provide operations support in executing a warrant, or allow federal
immigration officials to gain access to detainees held in state facilities. . . .
State officials can also assist the Federal Government by responding to
requests for information about when an alien will be released from their
custody. . . . But, . . . unilateral state action to detain . . . goes far beyond
these measures, defeating any need for real cooperation.
Id. at 2507.
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The LEAR policy requires the arrest of the subject encountered by the MCSO. As
Sheriff Arpaio testified, the MCSO continues to arrest all persons that it comes across
that it believes to be unauthorized aliens. When the MCSO finds some aliens that it
cannot charge with a violation of state law, it turns them over to ICE (and has done so
consistently without problem). Of course, his testimony highlights the fact that once such
persons come into the custody of the MCSO, they are not free to leave and are hence
under arrest. His testimony in this respect is supported by the similar testimony of a
number of other MCSO witnesses. Chief Sands, Deputy Rangel, and others testified that
such persons are taken into custody first, and only those that cannot be charged on state
10
charges are then turned over to ICE. Such persons are investigated and apprehended upon
11
the prerogative of the MCSO and not at the direction of ICE. And such apprehensions
12
occur despite the lack of any authority on the part of the MCSO to investigate or arrest
13
for civil immigration violations.
14
Even if this Court accepted the MCSOs argument that the application of the
15
LEAR policy involves only a detention of the subject pending contact with ICE, it would
16
not make the detention constitutional. In the absence of a reasonable suspicion that a
17
crime has been committed, the MCSO lacks authority to engage in a detention of
18
someone pending such contact. As stated above, a law enforcement officer must suspect
19
that an individual is engaged in, or is about to engage in, criminal activity, before he or
20
she can stop or detain that individual. Ortega-Melendres II, 695 F.3d at 1000. To the
21
extent the MCSO actually follows the written requirements of the LEAR policy, it
22
requires the MCSO deputy to summon an MCSO supervisor to the scene and requires the
23
supervisor to obtain certain information, contact ICE, pass along the information to ICE,
24
await an ICE response, and/or deliver the arrestees to ICE. This inevitably takes time in
25
which the subject is not free to leave regardless of whether the detention is officially
26
termed an arrest. If the cooperation clause in 8 U.S.C. 1357(g)(10) were to be read
27
broadly enough to countenance such arrests as cooperation, there would be no need for
28
the 287(g) authorization and training which the same statute authorizes. Cf. Christensen
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v. C.I.R., 523 F.3d 957, 961 (9th Cir. 2008) (stating that courts should avoid
interpretations that would render . . . subsections redundant).
In the MCSOs operations, there appears to be no practical difference between
how it presently implements the LEAR policy and how it performed when it had full
287(g) authority. Even after the revocation of its 287(g) authority, the MCSO continues
to look for indications of unauthorized presence using its 287(g) training, which taught
officers that race could be used as an indicator. The MCSO further continues to take
credit in the press for unauthorized aliens that it arrested but could not charge and thus
turned over to ICE pursuant to its LEAR policy.
10
The MCSOs LEAR policy is not authorized by Arizona v. United States, 8 U.S.C.
11
1357(g)(10), or any other case or statute. The policy is further in excess of the MCSOs
12
constitutional authority because the policys focus on removable aliens as opposed to
13
aliens who have committed criminal offenses violates the strictures against unreasonable
14
seizures set forth in the Fourth Amendment.89 The Court therefore concludes as a matter
15
of law that when MCSO detains a vehicles occupant(s) because a deputy believes that
16
the occupants are not legally present in the country, but has no probable cause to detain
17
them for any other reason, the deputy violates the Fourth Amendment rights of the
18
occupants. See Arizona, 132 S. Ct. at 2509 (Detaining individuals solely to verify their
19
immigration status would raise constitutional concerns.) (citation omitted). The Court
20
further concludes, as a matter of law, that the MCSO has violated the explicit terms of
21
this Courts preliminary injunction set forth in its December 23, 2011 order because the
22
MCSO continues to follow the LEAR policy and the LEAR policy violates the
23
injunction. See Ortega-Melendres v. Arpaio (Ortega-Melendres I), 836 F. Supp. 2d 959,
24
25
26
27
89
The Fourth Amendments application to unauthorized aliens is unclear and may

vary based on the aliens ties to the country. See U.S. v. VerdugoUrquidez, 494 U.S.
259, 265 (1990). However, it is clear that law enforcement actions may not diminish the
Fourth Amendment rights of citizens who may be mistaken for aliens. BrignoniPonce,
422 U.S. at 884.
28
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994 (D. Ariz. 2011). The MCSO is thus permanently enjoined from enforcing its LEAR
policy with respect to Latino occupants of motor vehicles in Maricopa County.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B.
The MCSO is enjoined from using Hispanic ancestry or race as any

factor in making law enforcement decisions.
The day labor, small-scale, and large-scale saturation patrols either incorporate
racial considerations into their operational structure, as is the case with day labor
operations, or the MCSO explicitly allows its deputies to consider the race of subjects as
one factor among others in forming reasonable suspicion that the subjects are
unauthorized aliens. The MCSO presently claims the right to enforce state law with the
same operations guided by the same policies that it used to enforce federal immigration
law. Sheriff Arpaio and others specifically claim that the Arizona Human Smuggling Act
and the Employer Sanctions laws afford the MCSO the right to pursue unauthorized
aliens. Because they follow the same policies and procedures as they did previously, the
MCSO and its officers continue to consider race as an indicator of illegal presence in
enforcing state laws related to immigration, and in enforcing the MCSOs LEAR policy.
There are, however, at least two problems with the methods in which the MCSO
pursues these enforcement prerogatives that render those methods unconstitutional.
1.
The MCSOs use of Hispanic ancestry or race as a factor in

forming reasonable suspicion that persons have violated state
laws relating to immigration status violates the Fourth
Amendment.
The Fourth Amendment prohibits unreasonable searches and seizures by the

Government, and its protections extend to brief investigatory stops of persons or vehicles
that fall short of traditional arrest. United States v. Arvizu, 534 U.S. 266, 273 (2002)
(citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). However, the Fourth Amendment is satisfied
if an officers action is supported by reasonable suspicion supported by articulable facts
that criminal activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7 (1989)
(citing Terry, 392 U.S. at 30).
During a so-called Terry stop, an officers reasonable suspicion that a person
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may be involved in criminal activity permits the officer to stop the person for a brief time
and take additional steps to investigate further. Terry, 392 U.S. at 24. Under Ninth Circuit
law, the race of an individual cannot be considered when determining whether an officer
has or had reasonable suspicion in connection with a Terry stop, including for
immigration investigation. See, e.g., Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000);
(Doc. 530 at 23 c). Nevertheless, analysis under the Fourth Amendment, including that
relating to reasonable suspicion, is wholly objective, and [s]ubjective intentions play no
role in ordinary, probable-cause Fourth Amendment analysis. See Whren v. United
States, 517 U.S. 806, 813 (1996).
10
All parties to this action stipulated as a matter of law that [r]ace cannot be
11
considered as a factor for reasonable suspicion. (Doc. 530 at 23 c.) The parties
12
stipulation comes from the following legal background. In Brignoni-Ponce, 422 U.S. at
13
88182, the Supreme Court held that the Border Patrol had to have reasonable suspicion
14
that a person was in the country without authorization prior to stopping a vehicle to
15
question its occupants about their immigration status. Even then, absent consent or the
16
development of probable cause, it could only make a brief Terry-like stop to conduct a
17
quick and limited inquiry. In that case, the Court further held that the Hispanic race of the
18
occupants of a vehicle being driven in close proximity to the border did not, without
19
more, provide reasonable suspicion to stop a car at all.
20
26
Even if [the officers] saw enough to think that the occupants were of
Mexican descent, this factor alone would justify neither a reasonable belief
that they were aliens, nor a reasonable belief that the car concealed other
aliens who were illegally in the country. Large numbers of native-born and
naturalized citizens have the physical characteristics identified with
Mexican ancestry, and even in the border area a relatively small proportion
of them are aliens. The likelihood that any given person of Mexican
ancestry is an alien is high enough to make Mexican appearance a relevant
factor, but standing alone it does not justify stopping all MexicanAmericans to ask if they are aliens.
27
Id. at 88687. Brignoni-Ponce thus generally stands for the proposition that a persons
21
22
23
24
25
28
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Mexican ancestry, even when that person is in proximity to the border, does not provide
sufficient reasonable suspicion, on its own, to justify even a brief investigative detention.
However, the opinions observation in dicta that [t]he likelihood that any given person
of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant
factor has been interpreted by ICE to mean that a persons Hispanic appearance can be
used as one amongst a number of factors in establishing the requisite quantum of
reasonable suspicion to justify a brief investigative detention. The 287(g) training manual
for January 2008 that was used by ICE in training the MCSO cites to Brignoni-Ponce for
the proposition that apparent Mexican ancestry was a relevant factor that could be used
10
in forming a reasonable suspicion that a person is in the country without authorization but
11
standing alone was insufficient to stop the individuals. (Ex. 68 at 7.)
12
ICE failed to take into account that its interpretation of the Brignoni-Ponce dicta
13
in this respect was rejected by the en banc Ninth Circuit 13 years ago in United States v.
14
Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000) (en banc). In Montero-Camargo, the
15
Ninth Circuit held, at a minimum, that in locations where a significant portion of the legal
16
resident population is of Hispanic ancestry, Hispanic descent was not a permissible factor
17
to consider, either alone or in conjunction with other factors, in forming reasonable
18
suspicion justifying the detention of a suspect based on his or her suspected unauthorized
19
presence. Id. at 113133.
20
In that case, the Border Patrol had stopped the drivers of two vehicles who
21
reversed course and headed back in the direction of Mexico after passing a sign
22
indicating that an upcoming border patrol facility, previously closed, was now open
23
again. Id. at 112627. The location where the drivers reversed their direction was 50
24
miles north of the border, not visible from the border patrol facility, and had been
25
frequently used to exchange illegal immigrants or drugs. Id. Border Patrol agents began
26
following the vehicles after they observed them change their direction. Id. To the agents
27
trailing the vehicles from behind, the occupants of the vehicles appeared to be Hispanic.
28
Id. They thus pulled the vehicles over and asked the occupants about their citizenship. Id.
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A subsequent search of the cars revealed quantities of marijuana, and the drivers were
arrested and convicted for, among other things, possession with intent to distribute
marijuana. Id. Both the district court and the Ninth Circuit panel allowed reliance upon
the Hispanic appearance of the vehicles occupants as one factor among others giving rise
to reasonable suspicion to justify the stop. Id. at 1131. While the en banc Ninth Circuit
also affirmed the convictions, it emphasized that the defendants Hispanic appearance
was not a proper factor to consider in determining whether the Border Patrol agents had
reasonable suspicion to stop the vehicles. Id. In so holding, the Ninth Circuit noted that
for reasonable suspicion to exist, the totality of the circumstances must arouse a
10
reasonable suspicion that the particular person being stopped has committed or is about
11
to commit a crime.90 Id. at 1129 (citing United States v. Cortez, 449 U.S. 411, 418
12
(1981) (emphasis in original). The court went on to note that:
13
17
[t]he likelihood that in an area in which the majorityor even a substantial

partof the population is Hispanic, any given person of Hispanic ancestry
is in fact an alien, let alone an illegal alien, is not high enough to make
Hispanic appearance a relevant factor in the reasonable suspicion calculus.
As we have previously held, factors that have such a low probative value
that no reasonable officer would have relied on them to make an
investigative stop must be disregarded as a matter of law.
18
Id. at 1132; see also Gonzalez-Rivera, 22 F.3d at 1446. The court concluded its opinion
14
15
16
19
20
21
22
23
24
25
26
27
90
The court observed that it was permissible for police in making an arrest in a
specific crime to consider a description of the particular suspect including race for
purposes of forming probable cause in making an arrest. Montero-Camargo, 208 F.3d at
1134 n.21 (Nor do we preclude the use of racial or ethnic appearance as one factor
relevant to reasonable suspicion or probable cause when a particular suspect has been
identified as have a specific racial or ethnic appearance, be it Caucasian, AfricanAmerica, Hispanic or other.) (emphasis in original). It held, however, as had previous
courts before it, that it is not appropriate for law enforcement to consider race as being an
indicator that a person is more likely to be a perpetrator of a generic class of crime. See
id. at 1122 n.10 (citing United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir.
1994) (holding that reasonable suspicion cannot be based on broad profiles which case
suspicion on entire categories of people without any individualized suspicion of the
particular person to be stopped)).
28
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by noting at this point in our nations history, and given the continuing changes in our
ethnic and racial composition, Hispanic appearance is, in general, of such little probative
value that it may not be considered as a relevant factor where particularized or
individualized suspicion is required. Id. at 1135.
The MCSO stipulated that Ninth Circuit law prohibits its officers from using race
or Hispanic appearance in determining whether an officer has or had reasonable
suspicion in connection with a Terry stop, including for immigration investigation.
(Doc. 530 at 23 c.) To the extent the Court finds that the MCSO nevertheless uses and
has used race or Hispanic appearance as a factor in forming reasonable suspicion, the
10
MCSO urges the Court to determine whether the actions taken were justified based upon
11
other factors constituting the totality of the circumstances. (Doc. 562 at 30 n.29.) It
12
suggests that [t]o do otherwise, would be contrary to the holding in Montero-Camargo
13
in which the Ninth Circuit, while rejecting the use of race as any criteria in arriving at
14
reasonable suspicion, nevertheless recognized that there were sufficient facts independent
15
of race to provide reasonable suspicion justifying the stop. (Id.)
16
To the extent that there was a legitimate, pretextual traffic basis for the original
17
stop that does not involve race, it does not matter to Fourth Amendment analysis that the
18
officers underlying decision to make the stop may have subjectively been based on
19
considerations of race. See Whren, 517 U.S. at 813. Further, to the extent that other
20
factors in combination, and excluding race as a consideration, were sufficient to justify
21
reasonable suspicion for the stops, there is no Fourth Amendment violation. See United
22
States v. Manzo-Jurado, 457 F.3d 928, 93436 (9th Cir. 2006). As discussed below,
23
however, such motivations do make a difference to the equal protection analysis.
24
As to the investigation and arrests of vehicle occupants for unauthorized presence,
25
with few exceptions, the arrest reports contain insufficient facts on which this Court
26
could determine that, even absent their consideration of race, MCSO deputies could have
27
formed reasonable suspicion that an occupant of the vehicle was in the country without
28
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authorization. That is true for most of the MCSOs operations at issue in this trial.91 See,
e.g., Manzo-Jurado, 457 F.3d at 932 (holding that an individual[s] appearance as a
member of a Hispanic work crew, [his] inability to speak English, [his] proximity to the
border, and unsuspicious behavior, cannot together provide law enforcement with
reasonable suspicion to investigate his immigration status).
The problem with the MCSOs policies and procedures is that they institutionalize
the systematic consideration of race as one factor among others in forming reasonable
suspicion or probable cause in making law enforcement decisions. To the extent that
officers do consider the race of a person in making law enforcement decisions that result
10
in his or her seizure, they necessarily consider race as a factor in forming the reasonable
11
suspicion or probable cause that led to their arrest. It is true that in any given factual
12
setting there may be other facts independent of race sufficient to justify reasonable
13
suspicion that a state statute related to immigration has been violated. But, that possibility
14
does not justify the MCSOs systematic policy in using race as a factor in forming
15
reasonable suspicion. Further, it is apparent that allowing the MCSO to consider race as
16
one factor among others in forming reasonable suspicion will produce irreparable injury
17
to the Plaintiff class. The MCSO is thus enjoined from promulgating, implementing,
18
continuing, or following any such policy or practice.
19
20
21
22
23
24
25
26
27
2.
The MCSOs use of Hispanic ancestry or race as a factor in
91
In a few cases, however, there are such facts. In the few examples noted in the
footnotes, for instance, the Court has presumed, based on the sheer number of persons
arrested from a single vehicle that there was at least reasonable suspicion to believe that
the state crime of human smuggling was occurring. Further, a few arrest reports do
demonstrate that MCSO officers made a stop that resulted in the driver being taken into
custody. In such cases, it would be within the scope of the arrest, even if not within the
basis for the original stop, for the MCSO deputies to investigate the identity of a
passenger to see if he or she could drive the vehicle away from the scene. If ICE had
placed a detainer on the passenger, the resulting arrest would have originated from the
investigation into his or her identity that would have been within the scope of the original
arrest. United States v. Diaz-Castaneda, 494 F.3d. 1146 (9th Cir. 2007).
28
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forming reasonable suspicion that persons have violated state

laws relating to immigration status violates the Equal Protection
Clause of the Fourteenth Amendment.
The MCSOs consideration of race or ethnicity as a factor in developing probable
cause or reasonable suspicion also gives rise to equal protection issues. The Equal
Protection Clause provides that no state shall deny any person within its jurisdiction the
equal protection of the law. U.S. Const. Amend. XIV, 1. The Clause is a direction
that all persons similarly situated should be treated alike.92 City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985).
The Equal Protection Clause is violated by governmental action undertaken with
10
intent to discriminate against a particular individual or class of individuals. See Personnel
11
Admr of Mass. v. Feeney, 442 U.S. 256, 27172 (1979). Discriminatory intent may be
12
demonstrated by statutory language, or by governmental action that creates a disparate
13
impact on the individual or class and there is direct or circumstantial evidence of a
14
discriminatory purpose. Id. at 27274; Vill. of Arlington Heights v. Metro. Hous. Dev.
15
Corp., 429 U.S. 252, 266 (1977).
16
The MCSOs policies and practices, some of which it apparently received from
17
ICE, expressly permitted officers to make racial classifications. Such racial classifications
18
are subject to strict scrutiny, and the policies here fail to withstand that scrutiny, for the
19
reasons described below. See Parents Involved in Community Schools v. Seattle School
20
Dist. No. 1, 551 U.S. 701 (2007). Nevertheless, the MCSO, consistent with its argument
21
that the Plaintiff class has been unable to demonstrate that the representatives of the class
22
suffered any harm, argues that there is no evidence that Deputies DiPietro or Rangel had
23
any racial motivation for stopping the vehicle in which Mr. Ortega-Melendres was a
24
25
26
27
92
The text of the Fourteenth Amendment makes explicit distinctions between

citizens and persons in the rights it protects. The right to the equal protection of the laws
applies to persons and not just citizens of the United States. U.S. Const. amend. XIV;
Plyler v. Doe, 457 U.S. 202, 211.
28
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passenger. That argument, however, fails to address the most relevant facts. Those facts
reveal an institutionalized consideration of race in MCSO operations.
According to the news release issued by the MCSO after the first Cave Creek
operation at which Mr. Ortega-Melendres was arrested, the genesis for that operation was
tips received on [Sheriff Arpaios] newly implemented illegal immigration hotline
about a local church providing assistance to day laborers. (Ex. 307.) As has been
discussed above, the MCSO had solicited such complaints from citizens because it sought
to enforce federal immigration laws against Hispanic day laborers. Other courts have
found an equal protection violation when plaintiffs status as day laborers was
10
inextricably intertwined with race in the minds of . . . law enforcement officials. Doe v.
11
Vill. of Mamoraneck, 462 F. Supp. 2d 520, 552 (S.D.N.Y. 2006).
12
On September 19 and 22, 2007, several days previous to the September 27
13
operation, Latino HSU officers went undercover to the church, signed up for work, and
14
verified the presence of day laborers inside the church parking lot. They then held their
15
operation there, in part, based on the racial makeup of the day laborers who were present.
16
Thus, the location for the operation was selected, at least in part, based on racial makeup
17
of the day laborers that were present there. When locations are selected, in whole or in
18
part, because they will enhance enforcement of the law against a specific racial
19
component of the community, that selection involves racial classification and must meet
20
the requirements of strict scrutiny. As an MCSO witness acknowledged, it would be
21
racial profiling for deputies to aggressively enforce traffic laws in predominantly Latino
22
neighborhoods because of an assumption that illegal immigrants live or work there. (Tr.
23
at 1152:2024.)
24
As is also explained above in some detail, Deputy DiPietro received his instruction
25
to stop the vehicle from the undercover officers based in part on their observation that
26
Mr. Ortega-Melendres and those who entered the truck with him were Latino. Therefore,
27
regardless of whether Deputy DiPietro or even Deputy Rangel were able to observe the
28
racial makeup of the occupants of the vehicle, the direction to develop a basis to stop the
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vehicle in which Mr. Ortega-Melendres was a passenger was based, in part, on his race.
Similarly, in day labor and small-scale operations, MCSO undercover officers
routinely directed that vehicles that picked up Hispanic day laborers be targeted for pre-
textual traffic enforcement. And, pursuant to MCSO policy and practice in other
operations, MCSO deputies, in determining which vehicles they will stop for traffic
enforcement purposes, emphasize those vehicles that have Hispanic occupants. As the
supervising sergeants noted, according to their understanding, it would be impossible for
a deputy to commit racial profiling if he has a legitimate reason to pull over a vehicle.
This is clearly a limited and incorrect understanding.
10
Further, having pulled over a vehicle with Hispanic occupants, MCSO deputies
11
are further authorized by policy, operation plans, and continuing practice to consider the
12
race of the occupants in deciding which ones they will investigate for immigration-related
13
violations of state law. The fact that Mr. Ortega-Melendress vehicle was stopped and his
14
identity investigated, based at least in part on racial considerations, makes Mr. Ortega-
15
Melendres an adequate representative for persons in the class that were subjected to
16
similar policies or practices.
17
Any government policy or practice that discriminates based upon race is subject to
18
strict judicial scrutiny. In such cases, the racial distinction must be narrowly tailored to
19
serve a compelling governmental interest. See Parents Involved, 551 U.S. at 720 (holding
20
that when the government distributes burdens . . . on the basis of individual racial
21
classifications that action is reviewed under strict scrutiny.); Gratz v. Bollinger, 539
22
U.S. 244, 270 (2003) (holding that racial classifications are simply too pernicious to
23
permit any but the most exact connection between justification and classification.);
24
Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (same). Government decisions are further
25
subject to equal protection review when race is merely one factor that motivates action,
26
even if it is not the predominant factor. A government policy is presumed to be racially
27
discriminatory when it is based in part on reports that referred to explicit racial
28
characteristics. Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir. 1980) (emphasis added)
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(Kennedy, J.). In Grutter, the Supreme Court applied strict scrutiny to a policy which
involved race as one factor among many even though plaintiffs expert conceded that
race is not the predominant factor in the policy. 539 U.S. at 320; see also Arlington
Heights, 429 U.S. at 263 (subjecting government action to equal protection review on
proof that a discriminatory purpose has been a motivating factor in the decision).
The enforcement of immigration-related civil or criminal offenses amounts to a
compelling governmental interest. Yet Defendants have not argued that this policy is
narrowly tailored to meet that interest. Given the facts surrounding the presence of
Hispanics in Maricopa County, the MCSO could not successfully do so. The great
10
majority of Hispanic persons in the county are citizens, legal residents of the United
11
States, or are otherwise authorized to be here. Thus the fact that a person is Hispanic and
12
is in Maricopa County is not a narrowly-tailored basis on which one could conclude that
13
the person is an unauthorized alien, even if a great majority of the unauthorized persons
14
in Maricopa County are Hispanic. Further, as has been explained above, in the Ninth
15
Circuit, race cannot be used under the Fourth Amendment to form probable cause or
16
reasonable suspicion that a crime has been committed. Thus, there is no legitimate basis
17
for considering a persons race in forming a belief that he or she is more likely to engage
18
in a criminal violation, and the requisite exact connection between justification and
19
classification, Gratz, 539 U.S. at 270, in focusing on Hispanic persons in immigration
20
enforcement is lacking. 93
21
Despite the presence of express racial classifications in the policies, practices, and
22
23
24
25
26
27
93
Plaintiffs Title VI claim differs from the Equal Protection Clause claim only in
that Title VI provides that covered entities may not discriminate based on national origin
in addition to race. Some officers testified about the use of apparent Mexican ancestry
in the use of law enforcement, but no evidence was presented that any MCSO policy had
a disparate impact on people of Mexican ancestry as opposed to on Hispanics generally.
The Title VI claim thus succeeds only with respect to the Equal Protection Clause
concerning racial discrimination.
28
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procedures followed by the MCSO, it argues that a plaintiff challenging law enforcement
policies on equal protection grounds must show both that the . . . system had a
discriminatory effect and that it was motivated by a discriminatory purpose. Wayte v.
U.S., 470 U.S. 598, 608 (1985) (citation omitted); see also Arlington Heights, 429 U.S.
252, 265 (1977) (Proof of racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause.).94 But the discriminatory intent requirement
arises when law enforcement operations that are race-neutral nevertheless produce
racially disparate results. Feeney, 442 U.S. at 272. In those circumstances, the Supreme
Court has determined that such policies are not violations of the Fourteenth Amendment
10
if there is no discriminatory intent. Id. at 28081. As discussed above, however, the
11
operations in this case are not race-neutral. They expressly incorporate racial bias. The
12
MCSOs policies at issue here make overt racial classifications because they permit the
13
consideration of race as one factor among others in making law enforcement decisions. In
14
such circumstances, according to Wayte, [a] showing of discriminatory intent is not
15
necessary. 470 U.S. at 609 n.10.
16
In light of the facts found above, the Plaintiffs have sufficiently established a basis
17
for injunction on equal protection grounds without the need for additional analysis.
18
Nevertheless, even if Plaintiffs were required to show additional indicia of discriminatory
19
intent, they have sufficiently done so. A sensitive inquiry into such circumstantial .and
20
direct evidence of intent as may be available, Arlington Heights, 429 U.S. at 266,
21
demonstrates that the MCSO discrimination against Hispanics was intentional, even if it
22
was done to be responsive to some elements of the electorate.
23
The Court finds direct evidence of discriminatory intent based on the MCSOs
24
policies, operations plans and procedures. Although such discrimination must be
25
intentional in a disparate impact case, it need not be based on ill-will. That is, although
26
27
94
Title VI similarly authorizes a private right of action only in cases involving

intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
28
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the MCSO permits its officers to make overt racial classifications in making law
enforcement decisions, it does not necessarily follow that such policies and practices are
based on overt antipathy towards Hispanics. The policies, at least originally, may have
been based on a desire to produce the most efficient immigration enforcement.95 Yet, to
the extent the MCSO intended and does discriminate based on race, through its policies,
the lack of racial antipathy as a motivation makes no difference in the constitutional
analysis. The Supreme Court has noted that their cases clearly reject the argument that
motives affect the strict scrutiny analysis. Parents Involved, 551 U.S. at 741 (2007)
(collecting cases). According to the Supreme Court, all governmental action based on
10
racea group classification long recognized as in most circumstances irrelevant and
11
therefore prohibitedshould be subjected to detailed judicial inquiry to ensure that the
12
personal right to equal protection of the laws has not been infringed. Adarand
13
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (quoting Hirabayashi v. United
14
States, 320 U.S. 81, 100 (1943) (emphasis in original).
15
In addition to the explicit policies and practices of the MCSO discussed above,
16
there is circumstantial evidence of discriminatory intent. The MCSO further made
17
changes in its policies and instructions to present the appearance of racially-neutral
18
operations without actually implementing such operations. One such measure was the so-
19
called zero tolerance policy. No officer could provide a consistent definition of that
20
policy as instituted by the MCSO for large-scale saturation patrols. At best, it did not
21
limit in any way a deputys discretion as to whom to pull over for traffic violations during
22
an operation. By Lt. Sousas own admission, the zero tolerance policy was specifically
23
designed to avoid the perception of racial profiling. (Tr. at 998:517.). Lt. Sousa
24
expressly conceded that one of the reasons he included language prohibiting racial
25
26
27
95
Nevertheless, after fielding reports and critiques from some within the Hispanic
community about its policies, the MCSOs response to those critiques reflects a
confrontational attitude, including its response to the protests at Pruitts.
28
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profiling in operations plans and directives was so that he could testify to it in any
subsequent litigation. Chief Sands himself referred to this policy as rhetoric. (Id. at
830:23831:1.)
Further, Lt. Sousa periodically instructed deputies at pre-operational briefings that
they should not racially profile. At the same time, however, Lt. Sousa told them he was
sure that they were not racially profiling. Coincident with these self-assuring instructions
and assurances, the MCSO continued to implement policies and operations plans
regarding saturation patrols that instructed officers that while race could not be the only
basis on which to base law enforcement action, it was a legitimate factor, among others,
10
on which they could base decisions pertaining to immigration enforcement. The MCSO
11
did so in spite of criticisms from the media and other sources that its officers were
12
engaging in racial profiling.
13
In addition to its policies that permitted the consideration of race as a factor in
14
making law enforcement decisions, the MCSO did no monitoring to determine whether
15
operations as a whole, or individual officers participating in operations, demonstrated
16
patterns of racial bias. Based on the Courts review of the arrest statistics and shift
17
summaries, the Court concludes that a cursory review of the shift summaries after the
18
HSU operations would have demonstrated high disparities of Hispanic surnames among
19
those arrested during saturation patrols, even for non-immigration related offenses. It
20
would further have revealed a high incidence of Hispanic surnames among passengers
21
arrested, even for non-immigration related offenses. Such a review would have suggested
22
to the MCSO the possibility that such stops and arrests were being effectuated in a
23
manner that was not race-neutral.
24
Chief Click, the MCSOs standard of care expert at trial, testified that any
25
supervisor who wanted to minimize racial profiling would have to take active steps to
26
combat it by reviewing records, investigating unusual findings, and retraining officers as
27
needed. He testified that anything that would raise the specter of racial profiling needs to
28
be investigated and looked at further. (Id. at 1765:1214.) Despite the presence of arrest
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reports, stat sheet summaries, and other records that raised the specter of racial profiling,
Sgts. Madrid and Palmer, Lt. Sousa and Chief Sands took no action to investigate racially
biased policing during the saturation patrols.
Chief Click testified that to determine whether or not officers are improperly using
race during a saturation patrol, a department would not merely look to see if there was
probable cause for a particular stop, but look at the bigger picture, how many people did
either the individual deputy stop or how many were stopped, how many total people were
stopped during the patrol? (Id. at 1764:231765:1.) Yet both supervising sergeants
testified that as long as there was probable cause to stop a particular vehicle, they would
10
have no suspicion of racially-biased policing in an operation.
11
When asked about a policy to prevent racial profiling, Chief Click stated that, I
12
think if it was solely, I trust them, so I therefore dont have to monitor them, that would
13
fall below the standard of care. (Id. at 1754:1113.) Sgt. Palmer testified that he simply
14
trusted his deputies not to engage in racial profiling, even as he exchanged e-mails that
15
denigrated people of Mexican ancestry and Spanish-speakers with those very deputies.
16
Although he claimed to have been subject to unspecified discipline for such e-mails, he
17
was not removed from his position. Sgt. Palmers e-mails to his deputies would have led
18
those deputies to believe that racial insensitivity towards Hispanics was practiced and
19
endorsed within the HSU. See DeWalt v. Carter, 224 F.3d 607, 612 n.3 (7th Cir. 2000)
20
(holding that the use of racially offensive language does not constitute a per se
21
constitutional violation, but it is strong evidence of racial animus).
22
Further, the MCSO did not have its deputies make a record of all their stops
23
during saturation patrols, even though, as testified to by Chief Click, it is a standard
24
reasonable practice for a law enforcement officer to document any law-enforcement
25
related stop he or she has with any person. (Tr. at 1778:413.) Thus, the MCSOs failure
26
to monitor its deputies actions for patterns of racial profiling was exacerbated by its
27
inadequate recordkeeping, which made it more difficult to conduct such monitoring.
28
During the time that the MCSO was aware that ICE was contemplating
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terminating its 287(g) certification, it relied, in significant part, on the internet research of
Sgt. Palmer to determine whether it could continue to enforce federal immigration law
without 287(g) authority. The sergeant supplied to his command staff a non-existent
federal law obtained from the internet, by which the MCSO erroneously concluded that it
had legal authority to continue to enforce federal immigration law. After MCSOs 287(g)
authority was revoked, Sheriff Arpaio, on national television, professed MCSOs
erroneous position that it could continue to enforce federal immigration law absent
federal authorization based on this non-existent statute as justification. In relying on Sgt.
Palmers unverified internet research, the MCSO did not make any competent effort to
10
ensure that its legal positions were in compliance with controlling authority, and
11
therefore made no real effort to ensure that its deputies were following the law pertaining
12
to the rights of minorities during such operations.96
13
Further, Sheriff Arpaios public statements about the HSU operations and the
14
saturation patrols signaled to MCSO deputies that the purpose of those operations and
15
patrols was to arrest people who were not legally present in the United States. As the
16
chief policymaker within the MCSO, Sheriff Arpaios public comments may have created
17
the impression both in and out of the MCSO that considering a persons race when
18
evaluating whether that person was legally present in the United States was appropriate
19
and endorsed by the MCSO.
20
At trial, Sheriff Arpaio testified that he did not agree with his statements on CNN
21
or the Glenn Beck show. (Id. at 363:17; 365:17.) Yet later on in his testimony he
22
inconsistently explained that when he made these comments he only meant that such
23
appearance could be a factor for an MCSO officer to consider in determining whether
24
25
26
27
96
The MCSO did eventually base its training concerning its deputies continued
authority to enforce federal immigration law on the legal theories of Kris Kobach. (See,
e.g., Tr. At 747:1824.) Mr. Kobach is apparently legally trained, but it is not clear that
MCSO sought his legal counsel on whether his theories were in compliance with the law
in this jurisdiction.
28
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further investigation of immigration status was appropriate once a vehicle had already
been stopped. (Id. 498:22-503:6.) Whether or not he believed at the time or believes now
the statements that he made during these nationally-televised interviews is not relevant to
the question of whether the interviews would have led MCSO officers to believe that the
sentiments were the policy of the MCSO. Defendants stipulated that Sheriff Arpaio has
final authority over all the agencys decisions, and sets the overall direction and policy
for the MCSO. (Doc. 513 at 8.) Sheriff Arpaios statements and the attendant news
releases shed light not only on [t]he historical background of the decision, but also
provide contemporary statements by members of the decisionmaking body. Arlington
10
Heights, 429 U.S. at 26768.
11
Finally, after December 2011, when this Court entered its preliminary injunction
12
prohibiting the MCSO from detaining persons based solely on a belief that the person
13
was in the country without authorization, the MCSO continued to conduct its LEAR
14
policy in violation of the explicit terms of that injunction. Its officers continued to race as
15
a factor in doing so.
16
The MCSO asserts that it had no discriminatory purpose in promulgating its
17
policies because they were based on training received by ICE. Even assuming this is true,
18
the MCSO cannot suggest that it can continue system-wide policies applying racial
19
classifications, because even though they are legally erroneous and facially
20
discriminatory, the MCSO believed in good faith that they were permissible at the time of
21
their adoption. Such reliance does not prevent the Equal Protection Clause from barring
22
the future use of such facially discriminatory systemic classifications, even assuming they
23
were implemented in good faith.
24
Defendants cite numerous cases holding that advice of counsel is a defense to an
25
equal protection claim. They do not cite any evidence that the ICE officers conducting
26
the training were attorneys providing legal advice to the MCSO.97 And again, even
27
28
97
Defendants also cite U.S. v. Lopez-Moreno, 420 F.3d 420, 434 (5th Cir. 2005),
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assuming that counsel wrongfully advised the MCSO that it could promulgate system-
wide policies in enforcing state laws related to immigration, the MCSO has a
constitutional responsibility to refrain from wrongfully using race in law enforcement
decisions independent of any advice provided by another law enforcement agency, even
ICE. U.S. Const. amend. XIV, 1
Based on the factors set forth in Arlington Heights and discussed above, Plaintiffs
have established that the MCSO had sufficient intent to discriminate against Latino
occupants of motor vehicles. Further, the Court concludes that the MCSO had and
continues to have a facially discriminatory policy of considering Hispanic appearance
10
probative of whether a person is legally present in the country in violation of the Equal
11
Protection Clause. The MCSO is thus permanently enjoined from using race, or allowing
12
its deputies and other agents to use race as a criteria in making law enforcement decisions
13
with respect to Latino occupants of vehicles in Maricopa County.
14
16
The MCSO is enjoined from unconstitutionally lengthening stops

unless during the legitimate course of the stop it develops reasonable
suspicion, based on permissible factors, that a state crime is being
committed.
17
In appropriate circumstances, it is acceptable for law enforcement to engage in
18
pre-textual traffic stops to investigate other potential criminal acts. See Whren, 517 U.S.
19
at 810813. Analysis under the Fourth Amendment is wholly objective, and [s]ubjective
20
intentions play no role in ordinary, probable-cause Fourth Amendment analysis. Id. at
21
813. However, [a] seizure that is justified solely by the interest in issuing a warning
22
ticket to the driver can become unlawful if it is prolonged beyond the time reasonably
23
required to complete that mission. Illinois v. Caballes, 543 U.S. 405, 407 (2005);
15
C.
24
25
26
27
in which the Fifth Circuit denied an equal protection claim when it found that an officer
who questioned the Hispanic passengers of a vehicle whose driver was unresponsive to
the officers questions had not demonstrated the requisite intent to discriminate. This outof-circuit case involved an individual officer and not a department policy.
28
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Florida v. Royer, 460 U.S. 491, 500 (1983) (holding that the scope of the stop must be
carefully tailored to its underlying justification); United States v. Turvin, 517 F.3d 1097,
1099, 1104 (9th Cir. 2008) (same).
When the driver of their vehicle is stopped, passengers are legally seized for the
same time it takes the officer to resolve the basis for the stop with the driver. Brendlin v.
California, 551 U.S. 249, 25758 (2007). Yet, stopping a driver for a traffic violation
provides no reason to stop or detain the passengers. Maryland v. Wilson, 519 U.S. 408,
413 (1997). The deputy cannot prolong the stop to investigate a passenger unless the
deputy through his or her observations obtains particularized reasonable suspicion that
10
the passenger is committing a violation that the deputy is authorized to enforce. See
11
United States v. Cortez, 449 U.S. 411, 41718 (1981). In such cases, the deputy is only
12
allowed to prolong the stop for the brief time sufficient to investigate the existence of the
13
crime. Arizona, 132 S. Ct. at 2528. When the MCSO deputies were 287(g) authorized,
14
that authority presumably extended to include administrative and hence non-criminal
15
violations of federal immigration law. Such authority, however, no longer exists.
16
Even in the absence of reasonable suspicion, however, an officer may make
17
inquiries of the driver and passengers concerning matters unrelated to the justification
18
for the traffic stop. But again, such inquiries may not measurably extend the duration
19
of the stop. Johnson, 555 U.S. at 323 (emphasis added). See also Muehler v. Mena, 544
20
U.S. 93, 101 (2005) (Mere police questioning does not constitute a seizure unless it
21
prolongs the detention of the individual) Even if a simple request for passenger
22
identification is thus within the scope of a traffic stop for a minor infraction to the extent
23
it does not extend the stop, see United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th
24
Cir. 2007), detaining passengers to investigate their immigration status once they have
25
either provided or not provided identification runs into the Fourth Amendment. Detaining
26
a passenger while running his or her identification through an MCSO database is not
27
reasonably related in scope to the traffic infraction and therefore requires independent
28
reasonable suspicion. Caballes, 543 U.S. at 407; Terry, 392 U.S. at 20. Detaining
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individuals solely to verify their immigration status raises constitutional concerns.
Arizona, 132 S. Ct. at 2509.
The evidence demonstrates that during many saturation patrol stops, officers
investigated the identities of and arrested multiple passengers on immigration violations,
while also being responsible for issuing a citation to the driver. In such circumstances,
based on the amount of time it took to resolve the stop of Mr. Ortega-Melendres, together
with the process testified to by Deputies Armendariz and Rangel, the Court concludes
that the investigation of the passengers would have frequently taken significantly more
time than it generally took to issue a traffic citation to a driver.98
10
As the facts summarized above indicate, at least some MCSO deputies claim that
11
they investigate the identities of all of the passengers of the vehicles they stop as a matter
12
of course. The arrest reports do not generally support this proposition. Nevertheless, to
13
the extent that MCSO officers investigate the identity of all vehicle occupants as a matter
14
of course, they do so without determining whether there is reasonable suspicion with
15
respect to the individual occupants that would justify their extension of the stop. The
16
same is also true to the extent that: (1) Sheriff Arpaio claimed the right for the MCSO to
17
investigate all the passengers in a vehicle when the driver was pulled over, and (2) during
18
day labor operations, during which participating deputies were instructed to investigate
19
the immigration status of all of the occupants of a vehicle.
20
Even if some officers participating during saturation patrols extended the duration
21
of the stop only upon obtaining reasonable suspicion as they saw it that some or all of the
22
vehicles occupants were unauthorized, they had been erroneously instructed that in
23
98
24
25
26
27
As discussed above, the traffic stops would only have taken longer once 287(g)
authority was revoked. A passenger pulled over under the MCSOs LEAR policy would
have to wait for the deputy to resolve the traffic violation and contact a supervisor, for the
supervisor to arrive and conduct additional investigation into the passengers identity, and
for any additional time he or she might spend in custody if an officer determined to hold
him or her while waiting for a response from ICE.
28
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doing so they could use race as one factor among others in forming that reasonable
suspicion. Montero-Camargo, 208 F.3d at 1135 (holding that Hispanic appearance, for
example, is of such little probative value that it may not be considered as a relevant
factor where particularized or individualized suspicion is required). Thus, to the extent
that officers considered race as a necessary factor in forming the reasonable suspicion on
which they prolonged the stop, they had insufficient basis for both the reasonable
suspicion and the prolonged stop.
As a result of its enforcement of state law related to immigration and its LEAR
policy, MCSO deputies continue to screen the occupants of vehicles they stop for
10
immigration compliance despite the revocation of their 287(g) authority. In doing so, they
11
are either prolonging a stop to investigate a civil violation of federal law which they have
12
no authority to enforce, or, as demonstrated by their past activities, present a substantial
13
likelihood that they will prolong the stop beyond the time reasonably necessary to resolve
14
the traffic stop. The MCSO, in so operating and claiming a right to so operate, presents a
15
likelihood that it will violate the Fourth Amendment rights of the Plaintiff class, and is
16
thus prohibited from prolonging stops in the absence of reasonable suspicion, formed on
17
a permissible basis, that a separate crime is or is about to be committed.
18
D.
19
20
21
22
23
24
25
26
The MCSO is enjoined from using reasonable suspicion of

unauthorized presence, without more, as probable cause or reasonable
suspicion that the Human Smuggling Act or Employer Sanctions Law
has been violated sufficient to justify an investigatory detention or
arrest.
As is stated above, the MCSO has no probable cause to arrest or even hold a
person that it only believes has committed a civil infraction of state or federal laws.99 At
trial, Sheriff Arpaio testified to two specific state statutes that he claims give the MCSO
authority to continue to engage in ongoing enforcement operationsthe Arizona
Employers Sanction Law and the Arizona Human Smuggling Statute.
99
27
Of course, an MCSO officer can detain someone for purposes of issuing a civil
traffic or other citation to the extent authorized to do so by state law.
28
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The Arizona Employer Sanctions Law, A.R.S. 23-211 (2010) et seq., explicitly
authorizes the county sheriff or any other local law enforcement agency to assist in
investigating a complaint filed pursuant to that law. A.R.S. 23-212, 23-212.01. But
the law contains only civil, and not criminal, sanctions against employers. It imposes no
criminal sanction against unauthorized aliens. The law thus provides no basis for the
MCSO to criminally cite, arrest, or engage in investigatory detentions of persons whom it
believes to be in the country without authorization based upon a reasonable suspicion that
they have violated the Employer Sanctions Law or are conspiring with others to do so. As
the Ninth Circuit has already noted, possible criminality is key to any Terry
10
investigatory stop or prolonged detention. . . . Absent suspicion that a suspect is engaged
11
in, or is about to engage in, criminal activity, law enforcement may not stop or detain an
12
individual. Ortega-Melendres II, 695 F.3d at 1000 (quoting United States v. Sandoval,
13
390 F.3d 1077, 1080 (9th Cir. 2004). The Arizona Employer Sanctions Law, a non-
14
criminal law, thus provides the MCSO with no basis to stop or detain any person that it
15
believes to be in the country without authorization.
16
By contrast, the Arizona Human Smuggling Act provides criminal sanctions
17
against those who smuggle unauthorized persons. The Act specifies that [i]t is unlawful
18
for a person to intentionally engage in the smuggling of human beings for profit or
19
commercial purpose. A.R.S. 13-2319. As defined by the Act, smuggling of human
20
beings means:
[1] the transportation, procurement of transportation or use of property or
real property
21
22
23
24
25
26
27
[2] by a person or an entity that knows or has reason to know that the
person or persons transported or to be transported are
[a] not United States citizens, permanent resident aliens or persons
otherwise lawfully in this state or
[b] have attempted to enter, entered or remained in the United States in
violation of law.
A.R.S. 13-2319(F)(3).
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There is nothing in the Act that criminalizes unauthorized presence. The Act
criminalizes smuggling an unauthorized alien. Even to the extent that an unauthorized
alien could be charged for committing the crime of conspiracy to violate the Arizona
Human Smuggling Act with his or her smuggler, an MCSO officer could only have
reasonable suspicion sufficient to detain the unauthorized alien on conspiracy charges if
he had reasonable suspicion under the totality of the circumstances that both the crime
of human smuggling is being committed and the unauthorized alien conspired in its
commission. Montero-Camargo, 208 F.3d at 1129.
Having reasonable suspicion that the Arizona state crime of human smuggling is
10
being violated requires considerably more facts than merely having reasonable suspicion
11
that a person is in the country without authorization. There must be, at the least, a
12
reasonable suspicion under all of the circumstances of the conjunction of the elements
13
necessary for the crime to be present. Aside from the other elements, an MCSO officer
14
would have to have reasonable suspicion that the person who was transporting the
15
unauthorized alien knew or had reason to know that the [unauthorized alien was] not [a]
16
United States Citizen[], permanent resident alien[], or person[] otherwise lawfully in this
17
state. A.R.S. 13-2319(F)(3).
18
One does not have reason to know that an alien is unauthorized merely because he
19
or she is unauthorized. To offer an example from the facts of the present case, Deputy
20
DiPietro set forth no legitimate basis on which he could have formed a reasonable
21
suspicion that the driver of the vehicle in which Ortega-Melendres was a passenger knew
22
or had reason to know that the persons he was transporting were not lawfully in this state.
23
When Deputy DiPietro himself was asked how he came to the opinion that the day
24
laborers were likely to be unauthorized, he testified that he did not form that belief until
25
after participating in the operation during which he arrested Ortega-Melendres.
26
When a 287(g)-trained MCSO deputy participating in an HSU operation did not
27
purport to have the experience to form a reasonable suspicion that day laborers in general
28
were unauthorized aliens until after the operation in which he made the arrest that is
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subject to question, it is not clear how he could successfully attribute to the driver of the
vehicle he stopped during the operation reason to know that day laborers were likely to
be unauthorized aliens. Even if he had this experience, the idea that day laborers are
usually unauthorized aliens is unsupported by any statistics presented at trial, and, as
discussed above, is typically compounded with an unconstitutional association between
work status and race, at least within the MCSO.100
Further, the MCSO acknowledges that, at the time of his arrest, Ortega-Melendres
was in possession of a visa that was validly issued and, on its face, authorized his
presence on the day of his arrest. Thus, even assuming that he did not have his I-94
10
document in his possession and/or was otherwise out-of-status with the federal
11
immigration requirements of his visa, the status violation was a violation of federal civil
12
immigration regulations, and did not constitute a violation of the Arizona Human
13
Smuggling Act. Pursuant to his existing and validly issued visa, Ortega-Melendres was
14
lawfully in this state. To the extent that he was lawfully in this state, but out of
15
compliance with federal immigration regulations, that is an issue presented by the federal
16
immigration regulations, and not state law, and thus not within the jurisdiction of MCSO
17
officers after the revocation of their 287(g) authority.
18
Additionally, the MCSO cannot use Ortega-Melendress Hispanic origin as any
19
basis for arguing that the driver of his vehicle had reason to know that he was in the
20
21
22
23
24
25
26
27
100
A section of the Human Smuggling Act does state that [n]otwithstanding any
other law, in the enforcement of this section a peace officer may lawfully stop any person
who is operating a motor vehicle if the officer has reasonable suspicion to believe the
person is in violation of any civil traffic law. A.R.S. 13-2319(E). This section of the
statute does nothing more than to allow peace officers to stop drivers of motor vehicles
who have committed traffic infractions. Nothing in the text of the statute allows a peace
officer to prolong a traffic stop to investigate a potential violation of the Arizona Human
Smuggling Act in the absence of reasonable suspicion that the Act is being violated. A
reasonable suspicion that a person is in violation of a civil traffic law, does not, in and of
itself, provide reasonable suspicion that a driver has violated the Act. Any interpretation
of the statute to the contrary would create constitutional problems.
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country without authorization. If an MCSO officer cannot use Hispanic ancestry as a
reason on which to base reasonable suspicion that a crime is being committed, then he or
she cannot use it to establish that a human smuggler had reason to know that he was
transporting an unauthorized alien.101
Thus, a reasonable suspicion that someone is in the country without authorization
does not alone constitute sufficient reasonable suspicion to detain someone on the basis
that the Arizona Human Smuggling Act is being violated. The preliminary injunction
entered by this Court on September 23, 2011 is made permanent. Further, suspected
violations of the Arizona Employer Sanctions Law provides the MCSO with no basis to
10
conduct investigatory detentions of persons that it believes to be in the country without
11
authorization. The MCSO is thus enjoined from detaining persons on the belief that they
12
are involved with a violation of, or have otherwise conspired to violate, the Arizona
13
Employer Sanctions Law. The MCSO is further permanently enjoined from detaining
14
persons based only on the belief that they are in the country without authorization, for the
15
reasons set forth in this Courts order of December 23, 2011.

CONCLUSION
16
17
Injunctive relief in a class action must be properly tailored to the actual harm
18
proven at trial. See Lewis v. Casey, 518 U.S. 343, 358 (1996) (It is the role of courts to
19
provide relief to claimants, in individual or class actions, who have suffered, or will
20
immediately suffer, actual harm; it is not the role of courts, but that of the political
21
branches, to shape the institutions of government in such fashion as to comply with the
22
laws and Constitution.). Plaintiffs are entitled to injunctive relief necessary to remedy
23
the Fourth and Fourteenth Amendment violations caused by MCSOs past and continuing
24
25
26
27
101
To the extent that the officers systematically only held and investigated the
Hispanic persons being smuggled for conspiracy to commit human smuggling and
released the alleged Caucasian smugglers, as they apparently did in the case of OrtegaMelendres and other day labor operations, that would present equal protection problems
additional to those already discussed.
28
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operations. The MCSO is thus permanently enjoined from: (1) detaining, holding or
arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief,
without more, that such persons are in the country without authorization, (2) following or
enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County;
(3) using race or Latino ancestry as a factor in determining to stop any vehicle in
Maricopa County with a Latino occupant; (4) using race or Latino ancestry as a factor in
making law enforcement decisions with respect to whether any Latino occupant of a
vehicle in Maricopa County may be in the country without authorization; (5) detaining
Latino occupants of vehicles stopped for traffic violations for a period longer than
10
reasonably necessary to resolve the traffic violation in the absence of reasonable
11
suspicion that any of them have committed or are committing a violation of federal or
12
state criminal law; (6) detaining, holding or arresting Latino occupants of a vehicle in
13
Maricopa County for violations of the Arizona Human Smuggling Act without a
14
reasonable basis for believing that, under all the circumstances, the necessary elements of
15
the crime are present; (7) detaining, arresting or holding persons based on a reasonable
16
suspicion that they are conspiring with their employer to violate the Arizona Employer
17
Sanctions Act.
18
The permanent injunctive relief ordered above is immediately effective. But, as
19
the Court previously discussed with the parties at the end of trial, it will confer with them
20
before ordering any further relief that the evidence demonstrates to be necessary to
21
effectuate this relief. In considering the necessity and extent of such additional relief, and
22
in addition to the other matters discussed at length during this order, the Court has
23
determined that the MCSO is aggressively responsive to the wishes of a significant
24
portion of the Maricopa County electorate that desires vigorous law enforcement
25
operations against unauthorized residents by state and local law enforcement authorities.
26
The MCSO continues to engage in law enforcement efforts against unauthorized aliens,
27
and continues to aggressively assert its authority to do so. In doing so, the MCSO
28
erroneously trained its patrol deputies that, despite the revocation of its 287(g) authority,
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the MCSO nevertheless had authority to enforce federal immigration law. It further
violated and continues to violate the terms of this courts preliminary injunction entered
on December 23, 2011 by enforcing its LEAR policy.
To the extent that the MCSO implemented faulty instruction from ICE through the
racially-biased policies and practices governing its enforcement operations, its own
implementation of those operations was also significantly flawed by its failure to observe
normal standards of police conduct as defined by its own practices expert. Among other
things the MCSO implemented a zero tolerance policy without meaningful effect to
mollify those concerned about the racial disparity caused by MCSO operations, and thus
10
failed to have a clear policy that required execution of the saturation patrols and other
11
enforcement efforts in a race neutral manner; made no efforts to determine whether its
12
officers were engaging in racially-biased enforcement during its saturation patrols, and
13
failed to comply with standard police practices concerning record-keeping maintained by
14
other law enforcement authorities engaged in such operations.
15
The Court will entertain any proposals that are mutually acceptable to the parties
16
in implementing steps to ensure compliance with its above orders, but in the absence of
17
such proposals will proceed to enter such orders as are necessary to effectuate the above
18
relief. In determining what authority may be necessary to provide such relief, the Court
19
is particularly interested in the views of the parties concerning the following questions:
20
(1) To what extent, if any, should any law enforcement operations of the MCSO that have
21
the potential to involve members of the Plaintiff class be subject to the direct oversight
22
and pre-approval? (2) To what extent, if any, should the MCSO be required to provide
23
training to all of its personnel including posse members concerning the inappropriate use
24
of race as an indicator of legal violations? (3) To what extent, if any, should the MCSO
25
be required to provide training to all of its personnel concerning the elements of the
26
Arizona Human Smuggling Statute and the requirements necessary to have reasonable
27
suspicion that the statute is being violated? (4) To what extent, if any, does the MCSO
28
still hold itself out to the general public as enforcing laws against illegal aliens or as
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currently engaged in immigration enforcement? (5) To what extent should the MCSO be
required to keep publicly available records of all persons with whom it has law
enforcement contact in vehicles so long as it is engaged in the enforcement of state laws
that have immigration-related elements such as the state Human Smuggling Act? (6) To
what extent should those records be required to contain the purpose of any law
enforcement stops, the names of persons contacted, and the resulting length of the stop?
7
8
9
10
11
12
13
14
As further guidance for the proceeding, the Court asks the parties to consider the
following stipulations of settlement in place in other jurisdictions:
1) Daniels v. New York, No. 99 Civ. 1695 (S.D.N.Y. Sept. 24, 2003), available at
http://ccrjustice.org/files/Daniels_ StipulationOfSettlement_12_03_0.pdf
2) United States v. Los Angeles, No. 00-11769 GAF (C.D. Cal. June 15, 2001),
available at http://www.lapdonline.org/assets/pdf/final_consent_decree.pdf
3) United States v. State of New Jersey, Civil No. 99-5970 (D.N.J. Dec. 30, 1999),
available at http://www.nj.gov/oag/jointapp.htm.
15
IT IS THEREFORE ORDERED that Plaintiffs are entitled to injunctive relief
16
necessary to remedy the Fourth and Fourteenth Amendment violations caused by
17
MCSOs past and continuing operations. The MCSO is thus permanently enjoined from:
18
1.
Detaining, holding or arresting Latino occupants of vehicles in Maricopa
19
County based on a reasonable belief, without more, that such persons are in the country
20
21
22
23
24
25
2.
Following or enforcing its LEAR policy against any Latino occupant of a
vehicle in Maricopa County.

3.
Using race or Latino ancestry as a factor in determining to stop any vehicle
in Maricopa County with a Latino occupant.

4.
Using race or Latino ancestry as a factor in making law enforcement
26
decisions with respect to whether any Latino occupant of a vehicle in Maricopa County
27
may be in the country without authorization.
28
5.
Detaining Latino occupants of vehicles stopped for traffic violations for a

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period longer than reasonably necessary to resolve the traffic violation in the absence of
reasonable suspicion that any of them have committed or are committing a violation of
federal or state criminal law.

6.
Detaining, holding or arresting Latino occupants of a vehicle in Maricopa
County for violations of the Arizona Human Smuggling Act without a reasonable basis
for believing that, under all the circumstances, the necessary elements of the crime are
present.
7.
8
9
Detaining, arresting or holding persons based on a reasonable suspicion that
they are conspiring with their employer to violate the Arizona Employer Sanctions Act.
10
IT IS FURTHER ORDERED setting a hearing at which the above matters will
11
be discussed for Friday, June 14, 2013 at 9:30 a.m. in Courtroom 602, Sandra Day
12
OConnor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003-
13
2151.
14
Dated this 24th day of May, 2013.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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EXHIBIT 6
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WO
2
3
4
6
7

situated; et al.,
8
9
10
11
12
13
SUPPLEMENTAL PERMANENT
INJUNCTION/JUDGMENT ORDER
Plaintiffs,
v.
County, AZ; et al.,
Defendants.
BACKGROUND
14
15
On May 24, 2013, the Court issued Findings of Fact and Conclusions of Law after
16
conducting a bench trial in this matter. (Doc. 579.) The Court held that Defendants operations at
17
issue violated the Plaintiff classs rights under the Fourth and Fourteenth Amendments to the
18
19
United States Constitution.
20
The Court permanently enjoined Defendants from the following:
21
(1) Detaining, holding or arresting Latino occupants of vehicles based on a

reasonable belief, without more, that such persons are in the country without
authorization;
22
23
24
25
26
27
28
(2) Following or enforcing its LEAR policy, as currently written, against any
Latino occupant of a vehicle in Maricopa County;
(3) Using race or Latino ancestry as a factor in determining whether to stop any
vehicle;
(4) Using race or Latino ancestry as a factor in making law enforcement decisions
with respect to whether any Latino occupant of a vehicle may be in the country
without authorization;
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(5) Detaining Latino occupants of vehicles stopped for traffic violations for a
period longer than reasonably necessary to resolve the traffic violation in the
absence of reasonable suspicion that any of the vehicles occupants have
committed or are committing a violation of federal or state criminal law;
1
2
3
(6) Detaining, holding, or arresting Latino occupants of a vehicle for violations of

the Arizona Human Smuggling Act without a reasonable basis for believing that
the necessary elements of the crime are present; and
4
5
(7) Detaining, arresting, or holding persons who are occupants of motor vehicles
based on a reasonable suspicion that they are conspiring with their employer to
violate the Arizona Employer Sanctions Act.
After issuing the injunctions, the Court held a status conference with the Parties on June
14, 2013. (Doc. 582.) The Parties desired to negotiate the terms of a consent decree to ensure
10
Defendants compliance with the injunctions. On August 16, the Parties filed a Proposed
11
12
Consent Decree that contained both terms to which the parties were able to reach agreement, and
13
terms on which they could not agree. (Doc. 592.) The Court held a hearing on August 30 at
14
which it discussed both the terms agreed upon and the disputed terms with the Parties. (Doc.
15
599.) As a result of the trial and the subsequent proceedings, the Court orders the following
16
supplemental injunctive relief.
17
REMEDIES
18
I.
19
20
21
22
1.
DEFINITIONS
The following terms and definitions shall apply to this Order:

a. Boilerplate means language that is stock, formulaic, appears repeatedly in different
reports, and fails to attest to the unique facts of an incident;
23
b. CAB means the Community Advisory Board;
24
c. CAD means Computer Aided Dispatch, the electronic system that tracks
25
26
communications between MCSO deputies and dispatch while on patrol;

d. CBP means U.S. Customers and Border Protection;
27
28
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e. Complainant means any person, including a member of the public, MCSO deputy,
detention officer, civilian employee, or posse member, who makes a complaint
against MCSO;
f. Complaint means any allegation of improper conduct made by a member of the
public or MCSO personnel regarding MCSO services, policy or procedure, that
alleges dissatisfaction with or misconduct by MCSO personnel;
g. Order means this Order;
h. County means Maricopa County, including its agents and employees;
i. Court means the United States District Judge for the District of Arizona presiding
10
11
12
13
14
over this case;

j. Defendants means defendants in the above-captioned action, i.e., Joseph M. Arpaio,
in his official capacity as Sheriff of Maricopa County, and the MCSO;
k. Deputy or deputy means any sworn law enforcement officer employed by or
working for MCSO, including Supervisors, patrol and reserve officers;
15
l. Discipline means a personnel action for violation of any law, regulation, rule, or
16
MCSO policy, including, but not limited to, an admonishment, written reprimand,
17
suspension, demotion or termination;
18
m. Discriminatory Policing means selective enforcement or non-enforcement of the
19
law, including the selecting or rejecting of particular policing tactics or strategies,
20
based on a persons actual or perceived race or ethnicity. Discriminatory Policing
21
does not include using a persons race or ethnicity in any reliable suspect-specific
22
description or for purposes of data collection;
23
n. District refers to one of the seven police service areas of MCSO;
24
o. Effective Date means the day this Order is entered by the Court;
25
p. Exigent Circumstances means emergencies in which a reasonable person would
26
believe that imminent death or bodily harm to a person or persons or the destruction
27
of evidence is likely or as otherwise defined by law;
28
q. EIS means Early Identification System;
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r. Full and Effective Compliance means compliance with all relevant provisions of
this Order. The Defendants shall begin to be in Full and Effective Compliance with
this Order when all of the following have been both completed and consistently
maintained:
i. A Monitor has been appointed pursuant to Paragraphs 119121 of this Order.
ii. The MCSO has formed an Implementation Unit pursuant to Paragraph 9 of
this Order.
iii. The MCSO has developed, and, pursuant to Paragraph 30, either the Monitor
or the Court has approved, and the MCSO has fully implemented the Policies
10
and Procedures and amendments to Policies and Procedures set out in Section
11
V of this Order.
12
iv. The MCSO has developed curriculum and training materials that have,
13
pursuant to Paragraph 46 of this Order, been approved by the Monitor or the
14
Court.
15
16
17
18
v. The MCSO has developed and implemented a training schedule pursuant to

Paragraph 44 of this Order.
vi. The MCSO has trained all existing MCSO Supervisors, Deputies, and posse
members pursuant to Paragraphs 4153 of this Order.
19
vii. The MCSO has developed proposed protocols, including draft templates and
20
instructions for Significant Operations and Patrols as set out in Section VI of
21
this Order that have, pursuant to Paragraph 37, been approved by the Monitor
22
or the Court, and have been implemented.
23
24
25
26
27
28
viii.
The MCSO has provided an adequate number of Supervisors as well as
proper Deputy assignments pursuant to Paragraphs 82 and 84 of this Order.

ix. The MCSO has developed and implemented a system for performance
evaluations pursuant to Paragraph 98 of this Order.
x. The MCSO has developed and implemented eligibility criteria for assignment
to specialized units pursuant to Paragraph 101 of this Order.
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xi. The MCSO has developed and implemented an audit check plan to detect
Deputy misconduct pursuant to Paragraph 103 of this Order.
2
3
xii. The MCSO has developed and implemented a system to collect traffic stop
data and a protocol for audit checks of that system pursuant to Paragraphs 54
59 of this Order.
xiii.
analysis of the traffic stop data pursuant to Paragraph 64 of this Order.
7
8
xiv.
The MCSO has developed and implemented a system for electronic data
entry by Deputies pursuant to Paragraph 60 of this Order.
9
10
The MCSO has developed and implemented a protocol for the periodic
xv.
The MCSO has developed and implemented a system for the audio and
11
video recording of traffic stops and a protocol for reviewing the recordings
12
pursuant to Paragraphs 6163 of this Order with the understanding that Full
13
and Effective Compliance may be achieved once all traffic patrol vehicles that
14
make traffic stops used by Specialized Units have been mounted with the
15
audio and video equipment, so long as the remaining vehicles are timely
16
equipped with the audio and video equipment according to the requirements
17
of those Paragraphs.
18
xvi.
The MCSO has formed a Unit to aid in the development and
19
implementation of the EIS, developed and implemented the EIS, and trained
20
all MCSO personnel on the use of the EIS pursuant to Paragraphs 7281 of
21
this Order.
22
23
24
25
26
xvii.
The MCSO has developed and implemented a community outreach
program pursuant to Paragraphs 107112 of this Order.

xviii. The MCSO has selected or hired a Community Liaison Officer pursuant to
Paragraphs 113114 of this Order.
xix.
The MCSO has worked with Plaintiffs representatives and community
27
representatives and created a Community Advisory Board pursuant to
28
Paragraphs 115116 of this Order.
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xx. The MCSO has conducted at least one comprehensive internal assessment
pursuant to Paragraphs 1213 of this Order.
xxi.
The Monitor has conducted a comprehensive assessment pursuant to
Paragraphs 13 or 138 and has certified that the MCSO is in compliance with
all of the scheduled obligations described above in Paragraph 1 and in
compliance with all other periodic and/or continuing obligations in this Order
since the Effective Date.
8
9
s.
IA means Internal Affairs, the MCSO unit charged with conducting internal and
administrative investigations of MCSO deputies, agents, and employees;
10
t. ICE means U.S. Immigration and Customs Enforcement;
11
u. Immigration-Related Law means any civil or criminal offense related to
12
13
14
immigration status;
v. Immigration-Related Crime means any statute imposing criminal punishment in
which immigration status is an element of the offense;
15
w. include or including means include or including, but not limited to;
16
x. Investigatory Stop, Investigatory Contact, or Investigatory Detention means a
17
detention short of an arrest in accordance with Terry v. Ohio, 392 U.S. 1 (1968);
18
y. LEAR Policy, means the MCSO policy described on page 2 and 113 of the Courts
19
May 24, 2013 Findings of Fact and Conclusions of Law of detaining persons believed
20
to be in the country without authorization but whom they cannot arrest on state
21
charges, in order to summon a supervisor and communicate with federal authorities;
22
z. MCSO means the Sheriff of the Maricopa County Sheriffs Office acting in his or
23
her official capacity, including the MCSOs agents, deputies, detention officers,
24
Supervisors, employees (both sworn and unsworn), and posse volunteers;
25
26
aa. MCSO Implementation Unit means the unit created by the MCSO and consisting of
MCSO Employees to facilitate implementation of this Order;
27
28
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bb. MCSO Personnel or MCSO Employee means all MCSO Employees, contractors
and volunteers, including command staff, deputies, detention officers, civilian
employees and posse volunteers;
4
5
6
7
8
9
10
cc. MDT means Mobile Data Terminal, the computerized system used in MCSO
vehicles to conduct inquiries on individuals encountered on patrol;
dd. Monitor means a person or team of people who shall be selected to assess and
report on the Defendants implementation of this Order;
ee. On-site Observation means first-hand observation by the Monitor of MCSO
activities, e.g., ride-alongs with Deputies on patrol or attendance at MCSO meetings
or trainings;
11
ff. Parties means Plaintiffs and Defendants collectively in the above-captioned action;
12
gg. Patrol Operations means all MCSO law enforcement operations conducted by
13
Deputies in a law enforcement support or patrol capacity which involves motor
14
vehicle traffic stops, including Significant Operations as defined below. Jail or
15
detention facility operations are not a part of Patrol Operations;
16
hh. Plaintiffs means plaintiffs in the above-captioned action;
17
ii. Policies and Procedures means written regulations or directives, regardless of the
18
name of the regulation or directive, describing the duties, functions, and obligations
19
of MCSO personnel, and providing specific direction in how to fulfill those duties,
20
functions, or obligations. All Policies and Procedures should be available in
21
hardcopy and electronically;
22
jj. Sheriff means the current and future sheriffs of MCSO;
23
kk. Significant Operation or Significant Patrol means any pre-planned Patrol
24
Operation that will involve traffic stops of vehicles within Maricopa County
25
involving 10 or more MCSO Personnel excluding posse members;
26
ll. Specialized Unit means a temporary or permanent organization of deputies within
27
MCSO whose operational objectives are focused on a specific law enforcement
28
purpose beyond general patrol or criminal investigations;
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mm.
Supervisor or supervisor means a sworn MCSO employee at the rank of
sergeant or above (or anyone acting in those capacities) with oversight responsibility
for MCSO personnel;
nn. Training or training means MCSO instruction that aspires towards industry best
practices and includes adult-learning methods that incorporate realistic role-playing
scenarios, interactive exercises, traditional lecture formats, and testing and/or writings
that indicate that MCSO personnel taking the Training comprehend the material
taught;
oo. Vehicle stop means any instance where a MCSO Deputy directs a civilian operating
10
a motor vehicle of any type to stop and in which the driver and any passengers are
11
detained for any length of time.

II.
12
EFFECTIVE DATE, JURISDICTION AND PARTY REPRESENTATIVES
13
2.
This Order shall become effective upon entry by the Court.
14
3.
To ensure that the requirements of this Order are properly and timely implemented, the
15
Court will retain jurisdiction over this action for all purposes until such time as the
16
Defendants have achieved Full and Effective Compliance and maintained such
17
compliance for no less than three years.
18
4.
The Parties may agree to jointly ask the Court to terminate this Order if the Parties agree
19
that Defendants have achieved Full and Effective Compliance and maintained such
20
compliance for no less than three continuous years. If the Parties disagree on whether
21
Defendants have achieved Full and Effective Compliance for no less than three
22
continuous years, either Party may seek to terminate this Order. If Defendants move to
23
terminate, Defendants must provide the Monitor and Plaintiffs with notice that they
24
intend to do so at least 60 days prior to filing a motion to terminate. The Parties shall
25
confer with each other and the Monitor to see if any disagreements can be resolved
26
before Defendants file their motion with the Court. If, after a reasonable period of
27
consultation and the completion of any audit or evaluation that Plaintiffs and/or the
28
Monitor may wish to undertake, including On-Site Observations, document review, or
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interviews with the Defendants personnel, the Parties cannot resolve any compliance
issues, the Defendants may file a motion to terminate this Order. If the Defendants move
for termination of this Order, Plaintiffs will have 60 days after the receipt of the
Defendants motion to object to the motion. If Plaintiffs do not object, the Court may
grant the Defendants motion. If Plaintiffs do make an objection, the Court may hold a
hearing on the motion, but at any rate shall resolve the dispute.
5.
After Defendants have reached Full and Effective Compliance, Defendants shall also
have the right to move to terminate any part, portion, or term of this Order if they believe
that they have maintained compliance with such portion, part, or term of this Order for no
10
less than three continuous years. At least 60 days prior to filing a motion to terminate,
11
Defendants must provide the Monitor and Plaintiffs with notice that they intend to do so.
12
The Parties shall confer with each other and the Monitor to see if any disagreements can
13
be resolved before Defendants file their motion with the Court. If, after a reasonable
14
period of consultation and the completion of any audit or evaluation that Plaintiffs and/or
15
the Monitor may wish to undertake, including On-Site Observations, document review, or
16
interviews with the Defendants personnel, the Parties cannot resolve any compliance
17
issues, the Defendants may file a motion to terminate this Order. Plaintiffs shall have the
18
right to oppose such motion within 60 days after receipt of the Defendants motion. If
19
Plaintiffs do not object, the Court may grant the Defendants motion. If Plaintiffs do
20
make an objection, the Court may hold a hearing on the motion, but at any rate shall
21
resolve the dispute.
22
6.
Compliance with this Order.
23
24
At all times, the Defendants shall bear the burden of demonstrating Full and Effective
7.
This Order shall run against the Sheriff in his official capacity, as well as the MCSO. For
25
purposes of implementation and enforcement of the Order, the representatives for the
26
Parties shall be:
27
a. Plaintiffs: The American Civil Liberties Union of Arizona (ACLU-AZ) and any
28
other representative(s) designated by the ACLU-AZ;
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b. Defendants: Chief David Trombi and Captain Larry Farnsworth (or other designee
selected by the Sheriff).
2
3
8.
The Court, upon 60 days notice to the Parties, retains the right to modify or terminate
this Order in whole or in part if it is satisfied that the Defendants have substantially
complied with any or all of the terms of the Order for a period of three years, or if it is
otherwise satisfied that a modification is justified.
7
III.
MCSO IMPLEMENTATION UNIT AND INTERNAL AGENCY-WIDE

ASSESSMENT
9
10
9.
disciplinary unit with the skills and abilities necessary to facilitate implementation of this
11
Order. This unit shall be called the MCSO Implementation Unit and serve as a liaison
12
between the Parties and the Monitor and shall assist with the Defendants implementation
13
of and compliance with this Order. At a minimum, this unit shall: coordinate the
14
Defendants compliance and implementation activities; facilitate the provision of data,
15
documents, materials, and access to the Defendants personnel to the Monitor and
16
Plaintiffs representatives; ensure that all data, documents and records are maintained as
17
provided in this Order; and assist in assigning implementation and compliance-related
18
tasks to MCSO Personnel, as directed by the Sheriff or his designee. The unit will
19
include a single person to serve as a point of contact in communications with Plaintiffs,
20
the Monitor and the Court.
21
22
23
24
25
26
27
28
Defendants shall hire and retain, or reassign current MCSO employees to form an inter-
10.
MCSO shall collect and maintain all data and records necessary to: (1) implement this
order, and document implementation of and compliance with this Order, including data
and records necessary for the Monitor to conduct reliable outcome assessments,
compliance reviews, and audits; and (2) perform ongoing quality assurance in each of the
areas addressed by this Order. At a minimum, the foregoing data collection practices
shall comport with current professional standards, with input on those standards from the
Monitor.
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11.
Beginning with the Monitors first quarterly report, the Defendants, working with the unit
assigned for implementation of the Order, shall file with the Court, with a copy to the
Monitor and Plaintiffs, a status report no later than 30 days before the Monitors quarterly
report is due. The Defendants report shall (i) delineate the steps taken by the Defendants
during the reporting period to implement this Order; (ii) delineate the Defendants plans
to correct any problems; and (iii) include responses to any concerns raised in the
Monitors previous quarterly report.
12.
The Defendants, working with the unit assigned for implementation of the Order, shall
conduct a comprehensive internal assessment of their Policies and Procedures affecting
10
Patrol Operations regarding Discriminatory Policing and unlawful detentions in the field
11
as well as overall compliance with the Courts orders and this Order on an annual basis.
12
The comprehensive Patrol Operations assessment shall include, but not be limited to, an
13
analysis of collected traffic-stop and high-profile or immigration-related operations data;
14
written Policies and Procedures; Training, as set forth in the Order; compliance with
15
Policies and Procedures; Supervisor review; intake and investigation of civilian
16
Complaints; conduct of internal investigations; Discipline of officers; and community
17
relations. The first assessment shall be conducted within 180 days of the Effective Date.
18
Results of each assessment shall be provided to the Court, the Monitor, and Plaintiffs
19
representatives.
20
13.
The internal assessments prepared by the Defendants will state for the Monitor and
21
Plaintiffs representatives the date upon which the Defendants believe they are first in
22
compliance with any subpart of this Order and the date on which the Defendants first
23
assert they are in Full and Effective Compliance with the Order and the reasons for that
24
assertion. When the Defendants first assert compliance with any subpart or Full and
25
Effective Compliance with the Order, the Monitor shall within 30 days determine
26
whether the Defendants are in compliance with the designated subpart(s) or in Full and
27
Effective Compliance with the Order. If either party contests the Monitors determination
28
it may file an objection with the Court, from which the Court will make the
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determination. Thereafter, in each assessment, the Defendants will indicate with which
subpart(s) of this Order it remains or has come into full compliance and the reasons
therefore. The Monitor shall within 30 days thereafter make a determination as to
whether the Defendants remain in Full and Effective Compliance with the Order and the
reasons therefore. The Court may, at its option, order hearings on any such assessments
to establish whether the Defendants are in Full and Effective Compliance with the Order
or in compliance with any subpart(s).

IV.
8
9
14.
MONITOR REVIEW PROCESS
In any place where this Order provides for Defendants to submit policies, procedures,
10
protocols or other materials to the Monitor for his or her review, Defendants shall submit
11
such materials to the Monitor and provide a copy to Plaintiffs representatives within the
12
specified time.
13
15.
Plaintiffs shall have an opportunity to provide any comments or recommendations on the
14
materials within 14 days of receipt. The Monitor shall thereafter communicate to the
15
Parties the results of its review. If the Monitor has any concerns or recommendations
16
regarding the materials, it will include those concerns or recommendations. The MCSO
17
may then amend the materials and resubmit them to the Monitor within 14 days for
18
further review. Either Party may apply to the Monitor for an extension of the deadlines in
19
this Paragraph. In conducting its review, the Monitor may take into account industry best
20
practices and the record in this litigation.
21
16.
If the Monitor approves the matter submitted, the Monitor will make a record of his or
22
her approval and inform both parties. In cases where neither party objects to the
23
Monitors action, the Monitors determination will be final. When the Monitor approves
24
such matter, no further action is needed before the MCSO implements the relevant
25
policies, procedures, protocols or materials. The MCSO shall do so promptly and without
26
delay.
27
28
17.
If either Party does not agree with the Monitors determination, then the Party may make
a motion directly to the Court for resolution of the dispute. The non-moving Party may
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respond to such motion within 14 days of filing. The moving Party may file a reply
within 7 days after that. Any policies, procedures, protocols or other materials subject to
the dispute need not be implemented until the Court makes a determination.
V.
4
5
18.
POLICIES AND PROCEDURES
MCSO shall deliver police services consistent with the Constitution and laws of the
United States and State of Arizona, MCSO policy, and this Order, and with current
professional standards. In conducting its activities, MCSO shall ensure that members of
the public receive equal protection of the law, without discriminating based on actual or
perceived race or ethnicity, and in a manner that promotes public confidence.
10
19.
To further the goals in this Order, the MCSO shall conduct a comprehensive review of all
11
Patrol Operations Policies and Procedures and make appropriate amendments to ensure
12
that they reflect the Courts permanent injunction and this Order.
13
20.
The MCSO shall comply with and operate in accordance with the Policies and
14
Procedures discussed in this Order and shall take all reasonable measures to ensure that
15
all Patrol Operations personnel comply with all such Policies and Procedures.
16
a.
17
21.
Policies and Procedures to Ensure Bias-Free Policing
The MCSO shall promulgate a new, department-wide policy or policies clearly
18
prohibiting Discriminatory Policing and racial profiling. The policy or policies shall, at a
19
minimum:
20
a. define racial profiling as the reliance on race or ethnicity to any degree in making law
21
enforcement decisions, except in connection with a reliable and specific suspect
22
description;
23
24
25
26
b. prohibit the selective enforcement or non-enforcement of the law based on race or

ethnicity;
c. prohibit the selection or rejection of particular policing tactics or strategies or
locations based to any degree on race or ethnicity;
27
28
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d. specify that the presence of reasonable suspicion or probable cause to believe an
individual has violated a law does not necessarily mean that an officers action is
race-neutral; and
e. include a description of the agencys Training requirements on the topic of racial
profiling in Paragraphs 4851, data collection requirements (including video and
audio recording of stops as set forth elsewhere in this Order) in Paragraphs 5463 and
oversight mechanisms to detect and prevent racial profiling, including disciplinary
consequences for officers who engage in racial profiling.
22.
and consistently reinforce to subordinates that Discriminatory Policing is unacceptable.
10
11
MCSO leadership and supervising Deputies and detention officers shall unequivocally
23.
Within 30 days of the Effective Date, MCSO shall modify its Code of Conduct to
12
prohibit MCSO Employees from utilizing County property, such as County e-mail, in a
13
manner that discriminates against, or denigrates, anyone on the basis of race, color, or
14
national origin.
15
24.
The MCSO shall ensure that its operations are not motivated by or initiated in response to
16
requests for law enforcement action based on race or ethnicity. In deciding to take any
17
law enforcement action, the MCSO shall not rely on any information received from the
18
public, including through any hotline, by mail, email, phone or in person, unless the
19
information contains evidence of a crime that is independently corroborated by the
20
MCSO, such independent corroboration is documented in writing, and reliance on the
21
information is consistent with all MCSO policies.
22
b.
23
25.
Policies and Procedures to Ensure Bias-Free Traffic Enforcement
The MCSO will revise its policy or policies relating to traffic enforcement to ensure that
24
those policies, at a minimum:
25
a. prohibit racial profiling in the enforcement of traffic laws, including the selection of
26
which vehicles to stop based to any degree on race or ethnicity, even where an officer
27
has reasonable suspicion or probable cause to believe a violation is being or has been
28
committed;
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b. provide Deputies with guidance on effective traffic enforcement, including the
prioritization of traffic enforcement resources to promote public safety;
c. prohibit the selection of particular communities, locations or geographic areas for
3
4
targeted traffic enforcement based to any degree on the racial or ethnic composition
of the community;
d. prohibit the selection of which motor vehicle occupants to question or investigate
based to any degree on race or ethnicity;
e. prohibit the use of particular tactics or procedures on a traffic stop based on race or
ethnicity;
9
10
f. require deputies at the beginning of each stop, before making contact with the
11
vehicle, to contact dispatch and state the reason for the stop, unless Exigent
12
Circumstances make it unsafe or impracticable for the deputy to contact dispatch;
13
g. prohibit Deputies from extending the duration of any traffic stop longer than the time
14
that is necessary to address the original purpose for the stop and/or to resolve any
15
apparent criminal violation for which the Deputy has or acquires reasonable suspicion
16
or probable cause to believe has been committed or is being committed;
17
h. require the duration of each traffic stop to be recorded;
18
i. provide Deputies with a list and/or description of forms of identification deemed
19
acceptable for drivers and passengers (in circumstances where identification is
20
required of them) who are unable to present a drivers license or other state-issued
21
identification; and
j. instruct Deputies that they are not to ask for the Social Security number or card of any
22
23
motorist who has provided a valid form of identification, unless it is needed to
24
complete a citation or report.

c.
25
26
27
26.
Policies and Procedures to Ensure Bias-Free Detentions and Arrests
The MCSO shall revise its policy or policies relating to Investigatory Detentions and
arrests to ensure that those policies, at a minimum:
28
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a. require that Deputies have reasonable suspicion that a person is engaged in, has
1
2
committed, or is about to commit, a crime before initiating an investigatory seizure;
b. require that Deputies have probable cause to believe that a person is engaged in, has
committed, or is about to commit, a crime before initiating an arrest;
4
5
c. provide Deputies with guidance on factors to be considered in deciding whether to
cite and release an individual for a criminal violation or whether to make an arrest;
d. require Deputies to notify Supervisors before effectuating an arrest following any
7
8
immigration-related investigation or for an Immigration-Related Crime, or for any
crime by a vehicle passenger related to lack of an identity document;

e. prohibit the use of a persons race or ethnicity as a factor in establishing reasonable
10
11
suspicion or probable cause to believe a person has, is, or will commit a crime, except
12
as part of a reliable and specific suspect description; and
13
f. prohibit the use of quotas, whether formal or informal, for stops, citations, detentions,
14
or arrests (though this requirement shall not be construed to prohibit the MCSO from
15
reviewing Deputy activity for the purpose of assessing a Deputys overall
16
effectiveness or whether the Deputy may be engaging in unconstitutional policing).

d.
17
Laws
18
19
Policies and Procedures Governing the Enforcement of Immigration-Related
27.
The MCSO shall remove discussion of its LEAR Policy from all agency written Policies
20
and Procedures, except that the agency may mention the LEAR Policy in order to clarify
21
that it is discontinued.
22
28.
The MCSO shall promulgate a new policy or policies, or will revise its existing policy or
23
policies, relating to the enforcement of Immigration-Related Laws to ensure that they, at
24
a minimum:
25
a. specify that unauthorized presence in the United States is not a crime and does not
26
itself constitute reasonable suspicion or probable cause to believe that a person has
27
committed or is committing any crime;
28
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1
2
3
b. prohibit officers from detaining any individual based on actual or suspected

unlawful presence, without something more;
c. prohibit officers from initiating a pretextual vehicle stop where an officer has
reasonable suspicion or probable cause to believe a traffic or equipment violation has
been or is being committed in order to determine whether the driver or passengers are
unlawfully present;
d. prohibit the Deputies from relying on race or apparent Latino ancestry to any degree
to select whom to stop or to investigate for an Immigration-Related Crime (except in
connection with a specific suspect description);
10
e. prohibit Deputies from relying on a suspects speaking Spanish, or speaking English
11
with an accent, or appearance as a day laborer as a factor in developing reasonable
12
suspicion or probable cause to believe a person has committed or is committing any
13
crime, or reasonable suspicion to believe that an individual is in the country without
14
authorization;
15
f. unless the officer has reasonable suspicion that the person is in the country unlawfully
16
and probable cause to believe the individual has committed or is committing a crime,
17
the MCSO shall prohibit officers from (a) questioning any individual as to his/her
18
alienage or immigration status; (b) investigating an individuals identity or searching
19
the individual in order to develop evidence of unlawful status; or (c) detaining an
20
individual while contacting ICE/CBP with an inquiry about immigration status or
21
awaiting a response from ICE/CBP. In such cases, the officer must still comply with
22
Paragraph 25(g) of this Order. Notwithstanding the foregoing, an officer may (a)
23
briefly question an individual as to his/her alienage or immigration status; (b) contact
24
ICE/CBP and await a response from federal authorities if the officer has reasonable
25
suspicion to believe the person is in the country unlawfully and reasonable suspicion
26
to believe the person is engaged in an Immigration-Related Crime for which unlawful
27
immigration status is an element, so long as doing so does not unreasonably extend
28
the stop in violation of Paragraph 25(g) of this Order;
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g. prohibit Deputies from transporting or delivering an individual to ICE/CBP custody
1
2
from a traffic stop unless a request to do so has been voluntarily made by the
individual;
h. require that, before any questioning as to alienage or immigration status or any
4
5
contact with ICE/CBP is initiated, an officer check with a Supervisor to ensure that
the circumstances justify such an action under MCSO policy and receive approval to
proceed. Officers must also document, in every such case, (a) the reason(s) for
making the immigration-status inquiry or contacting ICE/CBP, (b) the time
Supervisor approval was received, (c) when ICE/CBP was contacted, (d) the time it
10
took to receive a response from ICE/CBP, if applicable, and (e) whether the
11
individual was then transferred to ICE/CBP custody.

e.
12
13
29.
MCSO Policies and Procedures shall define terms clearly, comply with applicable law
and the requirements of this Order, and comport with current professional standards.
14
15
Policies and Procedures Generally
30.
Unless otherwise noted, the MCSO shall submit all Policies and Procedures and
16
amendments to Policies and Procedures provided for by this Order to the Monitor for
17
review within 90 days of the Effective Date pursuant to the process described in Section
18
IV. These Policies and Procedures shall be approved by the Monitor or the Court prior to
19
their implementation.
20
31.
Within 60 days after such approval, MCSO shall ensure that all relevant MCSO Patrol
21
Operation Personnel have received, read, and understand their responsibilities pursuant to
22
the Policy or Procedure. The MCSO shall ensure that personnel continue to be regularly
23
notified of any new Policies and Procedures or changes to Policies and Procedures. The
24
Monitor shall assess and report to the Court and the Parties on whether he/she believes
25
relevant personnel are provided sufficient notification of and access to, and understand
26
each policy or procedure as necessary to fulfill their responsibilities.
27
28
32.
The MCSO shall require that all Patrol Operation personnel report violations of policy;
that Supervisors of all ranks shall be held accountable for identifying and responding to
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policy or procedure violations by personnel under their command; and that personnel be
held accountable for policy and procedure violations. The MCSO shall apply policies
uniformly.
33.
MCSO Personnel who engage in Discriminatory Policing in any context will be subjected
to administrative Discipline and, where appropriate, referred for criminal prosecution.
MCSO shall provide clear guidelines, in writing, regarding the disciplinary consequences
for personnel who engage in Discriminatory Policing.
34.
MCSO shall review each policy and procedure on an annual basis to ensure that the
policy or procedure provides effective direction to MCSO Personnel and remains
9
10
consistent with this Order, current law and professional standards. The MCSO shall
11
document such annual review in writing. MCSO also shall review Policies and
12
Procedures as necessary upon notice of a policy deficiency during audits or reviews.
13
MCSO shall revise any deficient policy as soon as practicable.

VI.
14
15
35.
PRE-PLANNED OPERATIONS
The Monitor shall regularly review the mission statement, policies and operations
16
documents of any Specialized Unit within the MCSO that enforces Immigration-Related
17
Laws to ensure that such unit(s) is/are operating in accordance with the Constitution, the
18
laws of the United States and State of Arizona, and this Order.
19
36.
The MCSO shall ensure that any Significant Operations or Patrols are initiated and
20
carried out in a race-neutral fashion. For any Significant Operation or Patrol involving 10
21
or more MCSO personnel, excluding posse members, the MSCO shall develop a written
22
protocol including a statement of the operational motivations and objectives, parameters
23
for supporting documentation that shall be collected, operations plans, and provide
24
instructions to supervisors, deputies and posse members. That written protocol shall be
25
provided to the Monitor in advance of any Significant Operation or Patrol.
26
37.
The MCSO shall submit a standard template for operations plans and standard
27
instructions for supervisors, deputies and posse members applicable to all Significant
28
Operations or Patrols to the Monitor for review pursuant to the process described in
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Section IV within 90 days of the Effective Date. In Exigent Circumstances, the MCSO
may conduct Significant Operations or Patrols during the interim period but such patrols
shall be conducted in a manner that is in compliance with the requirement of this Order.
Any Significant Operations or Patrols thereafter must be in accordance with the approved
template and instructions.
38.
If the MCSO conducts any Significant Operations or Patrols involving 10 or more MCSO
Personnel excluding posse members, it shall create the following documentation and
provide it to the Monitor and Plaintiffs within 30 days after the operation:
a. documentation of the specific justification/reason for the operation, certified as
10
drafted prior to the operation (this documentation must include analysis of relevant,
11
reliable, and comparative crime data);
12
13
14
15
16
17
b. information that triggered the operation and/or selection of the particular site for the
operation;
c. documentation of the steps taken to corroborate any information or intelligence
received from non-law enforcement personnel;
d. documentation of command staff review and approval of the operation and operations
plans;
18
e. a listing of specific operational objectives for the patrol;
19
f. documentation of specific operational objectives and instructions as communicated to
20
21
22
23
24
participating MCSO Personnel;

g. any operations plans, other instructions, guidance or post-operation feedback or debriefing provided to participating MCSO Personnel;
h. a post-operation analysis of the patrol, including a detailed report of any significant
events that occurred during the patrol;
25
i. arrest lists, officer participation logs and records for the patrol; and
26
j. data about each contact made during the operation, including whether it resulted in a
27
citation or arrest.
28
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39.
The MCSO shall hold a community outreach meeting no more than 30 days after any
Significant Operations or Patrols in the affected District(s). MCSO shall work with the
Community Advisory Board to ensure that the community outreach meeting adequately
communicates information regarding the objectives and results of the operation or patrol.
The community outreach meeting shall be advertised and conducted in English and
Spanish.
40.
The MCSO shall notify the Monitor and Plaintiffs within 24 hours of any immigration-
related traffic enforcement activity or Significant Operation involving the arrest of 5 or
more people unless such disclosure would interfere with an on-going criminal
10
investigation in which case the notification shall be provided under seal to the Court,
11
which may determine that disclosure to the Monitor and Plaintiffs would not interfere
12
with an on-going criminal investigation. In any event, as soon as disclosure would no
13
longer interfere with an on-going criminal investigation, MCSO shall provide the
14
notification to the Monitor and Plaintiffs. To the extent that it is not already covered
15
above by Paragraph 38, the Monitor and Plaintiffs may request any documentation
16
related to such activity as they deem reasonably necessary to ensure compliance with the
17
Courts orders.
VII.
18
a.
19
20
41.
General Provisions
To ensure that the Policies and Procedures provided for by this Order are effectuated, the
MCSO shall implement the following requirements regarding Training.
21
22
TRAINING
42.
The persons presenting this Training in each area shall be competent instructors with
23
significant experience and expertise in the area. Those presenting Training on legal
24
matters shall also hold a law degree from an accredited law school and be admitted to a
25
Bar of any state and/or the District of Columbia.
26
27
43.
The Training shall include at least 60% live training (i.e., with a live instructor) which
includes an interactive component and no more than 40% on-line training. The Training
28
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shall also include testing and/or writings that indicate that MCSO Personnel taking the
Training comprehend the material taught whether via live training or via on-line training.
44.
Within 90 days of the Effective Date, MCSO shall set out a schedule for delivering all
Training required by this Order. Plaintiffs Representative and the Monitor shall be
provided with the schedule of all Trainings and will be permitted to observe all live
trainings and all on-line training. Attendees shall sign in at each live session. MCSO
shall keep an up-to-date list of the live and on-line Training sessions and hours attended
or viewed by each officer and Supervisor and make that available to the Monitor and
Plaintiffs.
10
45.
scenarios, interactive exercises, as well as traditional lecture formats.
11
12
The Training may incorporate adult-learning methods that incorporate role-playing
46.
The curriculum and any materials and information on the proposed instructors for the
13
Training provided for by this Order shall be provided to the Monitor within 90 days of
14
the Effective Date for review pursuant to the process described in Section IV. The
15
Monitor and Plaintiffs may provide resources that the MCSO can consult to develop the
16
content of the Training, including names of suggested instructors.
17
47.
MCSO shall regularly update the Training to keep up with developments in the law and
18
to take into account feedback from the Monitor, the Court, Plaintiffs and MCSO
19
Personnel.
20
b.
21
48.
Bias-Free Policing Training
The MCSO shall provide all sworn Deputies, including Supervisors and chiefs, as well as
22
all posse members, with 12 hours of comprehensive and interdisciplinary Training on
23
bias-free policing within 240 days of the Effective Date, or for new Deputies or posse
24
members, within 90 days of the start of their service, and at least 6 hours annually
25
thereafter.
26
49.
The Training shall incorporate the most current developments in federal and Arizona law
27
and MCSO policy, and shall address or include, at a minimum:
28
a. definitions of racial profiling and Discriminatory Policing;
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1
2
3
4
5
6
7
b. examples of the type of conduct that would constitute Discriminatory Policing as well
as examples of the types of indicators Deputies may properly rely upon;
c. the protection of civil rights as a central part of the police mission and as essential to
effective policing;
d. an emphasis on ethics, professionalism and the protection of civil rights as a central
part of the police mission and as essential to effective policing;
e. constitutional and other legal requirements related to equal protection, unlawful
discrimination, and restrictions on the enforcement of Immigration-Related Laws,
including the requirements of this Order;
10
f. MCSO policies related to Discriminatory Policing, the enforcement of Immigration-
11
Related Laws and traffic enforcement, and to the extent past instructions to personnel
12
on these topics were incorrect, a correction of any misconceptions about the law or
13
MCSO policies;
14
15
g. MCSOs protocol and requirements for ensuring that any significant pre-planned
operations or patrols are initiated and carried out in a race-neutral fashion;
16
h. police and community perspectives related to Discriminatory Policing;
17
i. the existence of arbitrary classifications, stereotypes, and implicit bias, and the impact
18
19
20
21
22
that these may have on the decision-making and behavior of a Deputy;

j. methods and strategies for identifying stereotypes and implicit bias in Deputy
decision-making;
k. methods and strategies for ensuring effective policing, including reliance solely on
non-discriminatory factors at key decision points;
23
l. methods and strategies to reduce misunderstanding, resolve and/or de-escalate
24
conflict, and avoid Complaints due to perceived police bias or discrimination;
25
26
27
28
m. cultural awareness and how to communicate with individuals in commonly

encountered scenarios;
n. problem-oriented policing tactics and other methods for improving public safety and
crime prevention through community engagement;
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o. the benefits of actively engaging community organizations, including those serving
youth and immigrant communities;
p. the MCSO process for investigating Complaints of possible misconduct and the
disciplinary consequences for personnel found to have violated MCSO policy;
4
5
q. background information on the Melendres v. Arpaio litigation, as well as a summary
and explanation of the Courts May 24, 2013 Findings of Fact and Conclusions of
Law in Melendres v. Arpaio, the parameters of the Courts permanent injunction, and
the requirements of this Order; and

r. instruction on the data collection protocols and reporting requirements of this Order.
9
10
c.
11
Related Laws
12
50.
Training on Detentions, Arrests, and the Enforcement of Immigration-
In addition to the Training on bias-free policing, the MCSO shall provide all sworn
13
personnel, including Supervisors and chiefs, as well as all posse members, with 6 hours
14
of Training on the Fourth Amendment, including on detentions, arrests and the
15
enforcement of Immigration-Related Laws within 180 days of the effective date of this
16
Order, or for new Deputies or posse members, within 90 days of the start of their service.
17
MCSO shall provide all Deputies with 4 hours of Training each year thereafter.
18
51.
The Training shall incorporate the most current developments in federal and Arizona law
19
and MCSO policy, and shall address or include, at a minimum:
20
a. an explanation of the difference between various police contacts according to the
21
level of police intrusion and the requisite level of suspicion; the difference between
22
reasonable suspicion and mere speculation; and the difference between voluntary
23
consent and mere acquiescence to police authority;
24
25
26
27
b. guidance on the facts and circumstances that should be considered in initiating,

expanding or terminating an Investigatory Stop or detention;
c. guidance on the circumstances under which an Investigatory Detention can become
an arrest requiring probable cause;
28
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d. constitutional and other legal requirements related to stops, detentions and arrests,
and the enforcement of Immigration-Related Laws, including the requirements of this
Order;
e. MCSO policies related to stops, detentions and arrests, and the enforcement of
Immigration-Related Laws, and the extent to which past instructions to personnel on
these topics were incorrect, a correction of any misconceptions about the law or
MCSO policies;
8
9
10
f. the circumstances under which a passenger may be questioned or asked for

identification;
g. the forms of identification that will be deemed acceptable if a driver or passenger (in
11
circumstances where identification is required of them) is unable to present an
12
Arizona drivers license;
13
14
h. the circumstances under which an officer may initiate a vehicle stop in order to
investigate a load vehicle;
15
i. the circumstances under which a Deputy may question any individual as to his/her
16
alienage or immigration status, investigate an individuals identity or search the
17
individual in order to develop evidence of unlawful status, contact ICE/CBP, await a
18
response from ICE/CBP and/or deliver an individual to ICE/CBP custody;
19
j. a discussion of the factors that may properly be considered in establishing reasonable
20
suspicion or probable cause to believe that a vehicle or an individual is involved in an
21
immigration-related state crime, such as a violation of the Arizona Human Smuggling
22
Statute, as drawn from legal precedent and updated as necessary; the factors shall not
23
include actual or apparent race or ethnicity, speaking Spanish, speaking English with
24
an accent, or appearance as a Hispanic day laborer;
25
k. a discussion of the factors that may properly be considered in establishing reasonable
26
suspicion or probable cause that an individual is in the country unlawfully, as drawn
27
from legal precedent and updated as necessary; the factors shall not include actual or
28
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apparent race or ethnicity, speaking Spanish, speaking English with an accent, or
appearance as a day laborer;

l. an emphasis on the rule that use of race or ethnicity to any degree, except in the case
of a reliable, specific suspect description, is prohibited;
m. the MCSO process for investigating Complaints of possible misconduct and the
n. provide all trainees a copy of the Courts May 24, 2013 Findings of Fact and
7
8
Conclusions of Law in Melendres v. Arpaio and this Order, as well as a summary and
explanation of the same that is drafted by counsel for Plaintiffs or Defendants and
reviewed by the Monitor or the Court; and
10
o. instruction on the data collection protocols and reporting requirements of this Order,
11
particularly reporting requirements for any contact with ICE/CBP.
12
d.
13
14
52.
Supervisor and Command Level Training
MCSO shall provide Supervisors with comprehensive and interdisciplinary Training on
15
supervision strategies and supervisory responsibilities under the Order. MCSO shall
16
provide an initial mandatory supervisor training of no less than 6 hours, which shall be
17
completed prior to assuming supervisory responsibilities or, for current MCSO
18
Supervisors, within 180 days of the Effective Date of this Order. In addition to this initial
19
Supervisor Training, MCSO shall require each Supervisor to complete at least 4 hours of
20
Supervisor-specific Training annually thereafter. As needed, Supervisors shall also
21
receive Training and updates as required by changes in pertinent developments in the law
22
of equal protection, Fourth Amendment, the enforcement of Immigration-Related Laws,
23
and other areas, as well as Training in new skills.
24
25
53.
The Supervisor-specific Training shall address or include, at a minimum:

a. techniques for effectively guiding and directing Deputies, and promoting effective
26
and constitutional police practices in conformity with the Policies and Procedures in
27
Paragraphs 1834 and the Fourth and Fourteenth Amendment Training in Paragraphs
28
4851;
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b. how to conduct regular reviews of subordinates;
c. operation of Supervisory tools such as EIS;
d. evaluation of written reports, including how to identify conclusory, canned, or

perfunctory language that is not supported by specific facts;
e. how to analyze collected traffic stop data, audio and visual recordings, and patrol data
to look for warning signs or indicia of possible racial profiling or unlawful conduct;
f. how to plan significant operations and patrols to ensure that they are race-neutral and
how to supervise Deputies engaged in such operations;
g. incorporating integrity-related data into COMSTAT reporting;
h. how to respond to calls from Deputies requesting permission to proceed with an
10
investigation of an individuals immigration status, including contacting ICE/CBP;
11
i. how to respond to the scene of a traffic stop when a civilian would like to make a
12
Complaint against a Deputy;
13
14
j. how to respond to and investigate allegations of Deputy misconduct generally;
15
k. evaluating Deputy performance as part of the regular employee performance

evaluation; and
16
l. building community partnerships and guiding Deputies to do the Training for
17
Personnel Conducting Misconduct Investigations.
18
VIII.
19
TRAFFIC STOP DOCUMENTATION AND DATA COLLECTION AND

REVIEW
20
a.
21
22
54.
Collection of Traffic Stop Data
Within 180 days of the Effective Date, MCSO shall develop a system to ensure that
23
Deputies collect data on all vehicle stops, whether or not they result in the issuance of a
24
citation or arrest. This system shall require Deputies to document, at a minimum:
25
a. the name, badge/serial number, and unit of each Deputy and posse member involved;
26
b. the date, time and location of the stop, recorded in a format that can be subject to
27
28
geocoding;
c. the license plate state and number of the subject vehicle;
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d. the total number of occupants in the vehicle;
e. the Deputys subjective perceived race, ethnicity and gender of the driver and any
passengers, based on the officers subjective impression (no inquiry into an
occupants ethnicity or gender is required or permitted);
5
6
7
8
9
f. the name of any individual upon whom the Deputy runs a license or warrant check
(including subjects surname);
g. an indication of whether the Deputy otherwise contacted any passengers, the nature of
the contact, and the reasons for such contact;
h. the reason for the stop, recorded prior to contact with the occupants of the stopped
10
vehicle, including a description of the traffic or equipment violation observed, if any,
11
and any indicators of criminal activity developed before or during the stop;
12
i. time the stop began; any available data from the E-Ticketing system regarding the
13
time any citation was issued; time a release was made without citation; the time any
14
arrest was made; and the time the stop/detention was concluded either by citation,
15
release, or transport of a person to jail or elsewhere or Deputys departure from the
16
scene;
17
j. whether any inquiry as to immigration status was conducted and whether ICE/CBP
18
was contacted, and if so, the facts supporting the inquiry or contact with ICE/CBP,
19
the time Supervisor approval was sought, the time ICE/CBP was contacted, the time
20
it took to complete the immigration status investigation or receive a response from
21
ICE/CBP, and whether ICE/CBP ultimately took custody of the individual;
22
k. whether any individual was asked to consent to a search (and the response), whether a
23
probable cause search was performed on any individual, or whether a pat-and-frisk
24
search was performed on any individual;
25
26
27
28
l. whether any contraband or evidence was seized from any individual, and nature of the
contraband or evidence; and
m. the final disposition of the stop, including whether a citation was issued or an arrest
was made or a release was made without citation.
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55.
(e.g., citations, incident reports, tow forms) can be linked back to the stop.
2
3
MCSO shall assign a unique ID for each incident/stop so that any other documentation
56.
The traffic stop data collection system shall be subject to regular audits and quality
control checks. MCSO shall develop a protocol for maintaining the integrity and
accuracy of the traffic stop data, to be reviewed by the Monitor pursuant to the process
described in Section IV.
57.
MCSO shall explore the possibility of relying on the CAD and/or MDT systems to check
if all stops are being recorded and relying on in-car recording equipment to check
whether Deputies are accurately reporting stop length. In addition, MCSO shall
10
implement a system for Deputies to provide motorists with a copy of non-sensitive data
11
recorded for each stop (such as a receipt) with instructions for how to report any
12
inaccuracies the motorist believes are in the data, which can then be analyzed as part of
13
any audit. The receipt will be provided to motorists even if the stop does not result in a
14
citation or arrest.
15
58.
The MCSO shall ensure that all databases containing individual-specific data comply
16
with federal and state privacy standards governing personally-identifiable information.
17
MCSO shall develop a process to restrict database access to authorized, identified users
18
who are accessing the information for a legitimate and identified purpose as defined by
19
the Parties. If the Parties cannot agree, the Court shall make the determination.
20
59.
Notwithstanding the foregoing, the MCSO shall provide full access to the collected data
21
to the Monitor and Plaintiffs representatives, who shall keep any personal identifying
22
information confidential. Every 180 days, MCSO shall provide the traffic stop data
23
collected up to that date to the Monitor and Plaintiffs representatives in electronic form.
24
If proprietary software is necessary to view and analyze the data, MCSO shall provide a
25
copy of the same. If the Monitor or the Parties wish to submit data with personal
26
identifying information to the Court, they shall provide the personally identifying
27
information under seal.
28
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b.
1
2
60.
Electronic Data Entry
Within one year of the Effective Date, the MCSO shall develop a system by which
Deputies can input traffic stop data electronically. Such electronic data system shall have
the capability to generate summary reports and analyses, and to conduct searches and
queries. MCSO will explore whether such data collection capability is possible through
the agencys existing CAD and MDT systems, or a combination of the CAD and MDT
systems with a new data collection system. Data need not all be collected in a single
database; however, it should be collected in a format that can be efficiently analyzed
together. Before developing an electronic system, the MCSO may collect data manually
10
but must ensure that such data can be entered into the electronic system in a timely and
11
accurate fashion as soon as practicable.
12
c.
13
61.
Audio-Video Recording of Traffic Stops
The MCSO will install functional video and audio recording equipment in all traffic
14
patrol vehicles that make traffic stops, and shall commence regular operation and
15
maintenance of such video and audio recording equipment. MCSO shall prioritize the
16
installation of such equipment in all traffic patrol vehicles that makes traffic stops used
17
by Specialized Units that enforce Immigration-Related Laws, and such installation must
18
be complete within 180 days of the Effective Date. MCSO shall equip all traffic patrol
19
vehicles that make traffic stops with video and audio recording equipment within 2 years
20
of the Effective Date. Subject to Maricopa County code and the State of Arizonas
21
procurement law, the Court shall choose the vendor for the video and audio recording
22
equipment if the Parties and the Monitor cannot agree on one.
23
62.
Deputies shall turn on any in-vehicle video and audio recording equipment as soon the
24
decision to initiate the stop is made and continue recording through the end of the stop.
25
MCSO shall repair or replace all non-functioning video or audio recording equipment, as
26
necessary for reliable functioning. Deputies who fail to activate and to use their recording
27
equipment according to MCSO policy or notify MCSO that their equipment is non-
28
functioning within a reasonable time shall be subject to Discipline.
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63.
MCSO shall retain traffic stop written data for a minimum of 5 years after it is created,
and shall retain in-car camera recordings for a minimum of 3 years unless a case
involving the traffic stop remains under investigation by the MCSO or the Monitor, or is
the subject of a Notice of Claim, civil litigation or criminal investigation, for a longer
period, in which case the MCSO shall maintain such data or recordings for at least one
year after the final disposition of the matter, including appeals. MCSO shall develop a
protocol, to be reviewed by the Monitor pursuant to the process described in Section IV,
for reviewing the in-car camera recordings and for responding to public records requests
in accordance with the Order.

d.
10
11
64.
Review of Traffic Stop Data
Within 180 days of the Effective Date, MCSO shall develop a protocol for periodic
12
analysis of the traffic stop data described above in Paragraphs 54 to 59 (collected traffic
13
stop data) and data gathered for any Significant Operation as described in this Order
14
(collected patrol data) to look for warning signs or indicia or possible racial profiling or
15
other improper conduct under this Order.
16
65.
MCSO shall designate a group with the MCSO Implementation Unit, or other MCSO
17
Personnel working under the supervision of a Lieutenant or higher-ranked officer, to
18
analyze the collected data on a monthly, quarterly and annual basis, and report their
19
findings to the Monitor and the Parties. This review group shall analyze the data to look
20
for possible individual-level, unit-level or systemic problems. Review group members
21
shall not review or analyze collected traffic stop data or collected patrol data relating to
22
their own activities.
23
66.
MCSO shall conduct one agency-wide comprehensive analysis of the data per year,
24
which shall incorporate analytical benchmarks previously reviewed by the Monitor
25
pursuant to the process described in Section IV. The benchmarks may be derived from
26
the EIS or IA-PRO system, subject to Monitor approval. The MCSO may hire or contract
27
with an outside entity to conduct this analysis. The yearly comprehensive analysis shall
28
be made available to the public and at no cost to the Monitor and Plaintiffs.
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67.
In this context, warning signs or indicia of possible racial profiling or other misconduct
include, but are not limited to:
a. racial and ethnic disparities in deputies, units or the agencys traffic stop patterns,
including disparities or increases in stops for minor traffic violations, arrests
following a traffic stop, and immigration status inquiries, that cannot be explained by
statistical modeling of race neutral factors or characteristics of deputies duties, or
racial or ethnic disparities in traffic stop patterns when compared with data of
deputies peers;
b. evidence of extended traffic stops or increased inquiries/investigations where
investigations involve a Latino driver or passengers;
10
c. a citation rate for traffic stops that is an outlier when compared to data of a Deputys
11
12
peers, or a low rate of seizure of contraband or arrests following searches and
13
investigations;
d. indications that deputies, units or the agency is not complying with the data collection
14
requirements of this Order; and
15
e. other indications of racial or ethnic bias in the exercise of official duties.
16
17
68.
When reviewing collected patrol data, MCSO shall examine at least the following:
18
a. the justification for the Significant Operation, the process for site selection, and the
19
procedures followed during the planning and implementation of the Significant
20
Operation;
21
b. the effectiveness of the Significant Operation as measured against the specific
22
operational objectives for the Significant Operation, including a review of crime data
23
before and after the operation;
24
25
26
c. the tactics employed during the Significant Operation and whether they yielded the
desired results;
d. the number and rate of stops, Investigatory Detentions and arrests, and the
27
documented reasons supporting those stops, detentions and arrests, overall and broken
28
down by Deputy, geographic area, and the actual or perceived race and/or ethnicity
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and the surname information captured or provided by the persons stopped, detained
or arrested;
e. the resource needs and allocation during the Significant Operation; and
f. any Complaints lodged against MCSO Personnel following a Significant Operation.
69.
In addition to the agency-wide analysis of collected traffic stop and patrol data, MCSO
Supervisors shall also conduct a review of the collected data for the Deputies under his or
her command on a monthly basis to determine whether there are warning signs or indicia
of possible racial profiling, unlawful detentions and arrests, or improper enforcement of
Immigration-Related Laws by a Deputy. Each Supervisor will also report his or her
10
conclusions based on such review on a monthly basis to a designated commander in the
11
MCSO Implementation Unit
12
70.
If any one of the foregoing reviews and analyses of the traffic stop data indicates that a
13
particular Deputy or unit may be engaging in racial profiling, unlawful searches or
14
seizures, or unlawful immigration enforcement, or that there may be systemic problems
15
regarding any of the foregoing, MCSO shall take reasonable steps to investigate and
16
closely monitor the situation. Interventions may include but are not limited to
17
counseling, Training, Supervisor ride-alongs, ordering changes in practice or procedure,
18
changing duty assignments, Discipline, or of other supervised, monitored, and
19
documented action plans and strategies designed to modify activity. If the MCSO or the
20
Monitor concludes that systemic problems of racial profiling, unlawful searches or
21
seizures, or unlawful immigration enforcement exist, the MCSO shall take appropriate
22
steps at the agency level, in addition to initiating corrective and/or disciplinary measures
23
against the appropriate Supervisor(s) or Command Staff. All interventions shall be
24
documented in writing.
25
71.
In addition to the underlying collected data, the Monitor and Plaintiffs representatives
26
shall have access to the results of all Supervisor and agency level reviews of the traffic
27
stop and patrol data.
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IX.
1
a.
2
3
72.
potentially problematic behaviors, including racial profiling, unlawful detentions and
arrests, and improper enforcement of Immigration-Related Laws within one year of the
Effective Date. MCSO will regularly use EIS data to promote lawful, ethical and
professional police practices; and to evaluate the performance of MCSO Patrol
Operations Employees across all ranks, units and shifts.
10
73.
otherwise expand the already existing role of the MCSO information technology
13
specialist to facilitate the development, implementation, and maintenance of the EIS.
14
MCSO shall ensure that there is sufficient additional staff to facilitate EIS data input and
15
provide Training and assistance to EIS users. This unit may be housed within Internal
16
Affairs (IA).
17
74.
responsible for capturing and inputting data.
20
23
24
25
26
27
MCSO shall develop and implement a protocol setting out the fields for historical data,
deadlines for inputting data related to current and new information, and the individuals
19
22
Within 180 days of the Effective Date, MCSO shall either create a unit, which shall
include at least one full-time-equivalent qualified information technology specialist, or
12
21
MCSO shall work with the Monitor, with input from the Parties, to develop, implement
MCSO Deputies and employees, including the identification of and response to
18
Development and Implementation of the EIS
and maintain a computerized EIS to support the effective supervision and management of
11
EARLY IDENTIFICATION SYSTEM (EIS)
75.
The EIS shall include a computerized relational database, which shall be used to collect,
maintain, integrate, and retrieve:
a. all misconduct Complaints or allegations (and their dispositions), excluding those
made by inmates relating to conditions of confinement or conduct of detention
officers (i.e,, any complaint or allegation relating to a traffic stop shall be collected
and subject to this Paragraph even if made by an inmate);
b. all internal investigations of alleged or suspected misconduct;
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c. data compiled under the traffic stop data collection and the patrol data collection
mechanisms;
d. all criminal proceedings initiated, as well as all civil or administrative claims filed
3
4
with, and all civil lawsuits served upon, the County and/or its Deputies or agents,
resulting from MCSO Patrol Operations or the actions of MCSO Patrol Operation
Personnel;
e. all arrests;
f. all arrests in which the arresting Deputy fails to articulate probable cause in the arrest
report, or where an MCSO Supervisor, court or prosecutor later determines the arrest
10
was not supported by probable cause to believe a crime had been committed, as
11
required by law;
g. all arrests in which the individual was released from custody without formal charges
12
being sought;
13
h. all Investigatory Stops, detentions, and/or searches, including those found by the
14
15
Monitor, an MCSO supervisor, court or prosecutor to be unsupported by reasonable
16
suspicion of or probable cause to believe a crime had been committed, as required by
17
law;
18
i. all instances in which MCSO is informed by a prosecuting authority or a court that a
19
decision to decline prosecution or to dismiss charges, and if available, the reason for
20
such decision;
21
j. all disciplinary action taken against employees;
22
k. all non-disciplinary corrective action required of employees;
23
l. all awards and commendations received by employees;
24
m. Training history for each employee; and
25
n. bi-monthly Supervisory observations of each employee.
26
27
76.
The EIS shall include appropriate identifying information for each involved Deputy (i.e.,
name, badge number, shift and Supervisor) and civilian (e.g., race and/or ethnicity).
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77.
MCSO shall maintain computer hardware, including servers, terminals and other
necessary equipment, in sufficient amount and in good working order to permit
personnel, including Supervisors and commanders, ready and secure access to the EIS
system to permit timely input and review of EIS data as necessary to comply with the
requirements of this Order.
78.
MCSO shall maintain all personally identifiable information about a Deputy included in
the EIS for at least five years following the Deputys separation from the agency.
Information necessary for aggregate statistical analysis will be maintained indefinitely in
the EIS. On an ongoing basis, MCSO shall enter information into the EIS in a timely,
10
accurate, and complete manner, and shall maintain the data in a secure and confidential
11
manner. No individual within MCSO shall have access to individually identifiable
12
information that is maintained only within EIS and is about a deputy not within that
13
individuals direct command, except as necessary for investigative, technological, or
14
auditing purposes.
15
79.
The EIS computer program and computer hardware will be operational, fully
16
implemented, and be used in accordance with policies and protocols that incorporate the
17
requirements of this Order within one year of the Effective Date. Prior to full
18
implementation of the new EIS, MCSO will continue to use existing databases and
19
resources to the fullest extent possible, to identify patterns of conduct by employees or
20
groups of Deputies.
21
b.
22
80.
Training on the EIS
MCSO will provide education and training to all employees, including Deputies,
23
Supervisors and commanders regarding EIS prior to its implementation as appropriate to
24
facilitate proper understanding and use of the system. MCSO Supervisors shall be trained
25
in and required to use EIS to ensure that each Supervisor has a complete and current
26
understanding of the employees under the Supervisors command. Commanders and
27
Supervisors shall be educated and trained in evaluating and making appropriate
28
comparisons in order to identify any significant individual or group patterns. Following
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the initial implementation of the EIS, and as experience and the availability of new
technology may warrant, MCSO may propose to add, subtract, or modify data tables and
fields, modify the list of documents scanned or electronically attached, and add, subtract,
or modify standardized reports and queries. MCSO shall submit all such proposals for
review by the Monitor pursuant to the process described in Section IV.
c.
81.
Protocol for Agency and Supervisory Use of the EIS
MCSO shall develop and implement a protocol for using the EIS and information
obtained from it. The protocol for using the EIS shall address data storage, data retrieval,
reporting, data analysis, pattern identification, identifying Deputies for intervention,
10
Supervisory use, Supervisory/agency intervention, documentation and audit. Additional
11
required protocol elements include:
12
a. comparative data analysis, including peer group analysis, to identify patterns of
13
14
15
16
17
18
activity by individual Deputies and groups of Deputies;

b. identification of warning signs or other indicia of possible misconduct, including, but
not necessarily limited, to:
i. failure to follow any of the documentation requirements mandated pursuant to
this Order;
ii. racial and ethnic disparities in the Deputys traffic stop patterns, including
19
disparities or increases in stops for minor traffic violations, arrests following a
20
traffic stop, and immigration status inquiries, that cannot be explained by
21
statistical modeling of race neutral factors or characteristics of Deputies
22
specific duties, or racial or ethnic disparities in traffic stop patterns when
23
compared with data of a Deputys peers;
24
25
26
iii. evidence of extended traffic stops or increased inquiries/investigations where

iv. a citation rate for traffic stops that is an outlier when compared to data of a
27
Deputys peers, or a low rate of seizure of contraband or arrests following
28
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v. Complaints by members of the public or other officers; and
vi. other indications of racial or ethnic bias in the exercise of official duties;
c. MCSO commander and Supervisor review, on a regular basis, but not less than bi-
monthly, of EIS reports regarding each officer under the commander or Supervisors
direct command and, at least quarterly, broader, pattern-based reports;
d. a requirement that MCSO commanders and Supervisors initiate, implement, and
assess the effectiveness of interventions for individual Deputies, Supervisors, and
units, based on assessment of the information contained in the EIS;
e. identification of a range of intervention options to facilitate an effective response to
10
suspected or identified problems. In any cases where a Supervisor believes a Deputy
11
may be engaging in racial profiling, unlawful detentions or arrests, or improper
12
enforcement of Immigration-Related Laws or the early warning protocol is triggered,
13
the MCSO shall notify the Monitor and Plaintiffs and take reasonable steps to
14
investigate and closely monitor the situation, and take corrective action to remedy the
15
issue. Interventions may include but are not limited to counseling, Training,
16
Supervisor ride-alongs, ordering changes in practice or procedure, changing duty
17
assignments, Discipline, or other supervised, monitored, and documented action plans
18
and strategies designed to modify activity. All interventions will be documented in
19
writing and entered into the automated system;
20
f. a statement that the decision to order an intervention for an employee or group using
21
EIS data shall include peer group analysis, including consideration of the nature of
22
the employees assignment, and not solely on the number or percentages of incidents
23
in any category of information recorded in the EIS;
24
25
26
27
g. a process for prompt review by MCSO commanders and Supervisors of the EIS
records of all Deputies upon transfer to their supervision or command;
h. an evaluation of whether MCSO commanders and Supervisors are appropriately using
the EIS to enhance effective and ethical policing and reduce risk; and
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i. mechanisms to ensure monitored and secure access to the EIS to ensure the integrity,
proper use, and appropriate confidentiality of the data.
2
X.
3
4
82.
SUPERVISION AND EVALUATIONS OF OFFICER PERFORMANCE
MCSO and the County shall ensure that an adequate number of qualified first-line
Supervisors are available to provide the effective supervision necessary to ensure that
Deputies are following the Constitution and laws of the United States and State of
Arizona, MCSO policy, and this Order. First-line Supervisors shall ensure that Deputies
are policing actively and effectively, are provided with the instruction necessary to
correct mistakes, and are held accountable for misconduct. To achieve these outcomes,
10
MCSO shall undertake the following duties and measures:
11
a.
12
83.
General Duties of Supervisors
MCSO Supervisors shall provide the effective supervision necessary to direct and guide
13
Deputies. Effective supervision requires that Supervisors: respond to the scene of certain
14
arrests; review each field interview card and incident report; confirm the accuracy and
15
completeness of Deputies daily activity reports; respond to each Complaint of
16
misconduct; ensure Deputies are working actively to engage the community and increase
17
public trust and safety; provide counseling, redirection, support to Deputies as needed,
18
and are held accountable for performing each of these duties.
19
84.
Within 120 days of the Effective Date, all patrol Deputies shall be assigned to a single,
20
consistent, clearly identified Supervisor. First-line field Supervisors shall be assigned to
21
supervise no more than twelve Deputies.
22
85.
First-line field Supervisors shall be required to discuss individually the stops made by
23
each Deputy they supervise with the respective Deputies no less than one time per month
24
in order to ensure compliance with this Order. This discussion should include, at a
25
minimum, whether the Deputy detained any individuals stopped during the preceding
26
month, the reason for any such detention, and a discussion of any stops that at any point
27
involved any immigration issues.
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86.
On-duty field Supervisors shall be available throughout their shift to provide adequate
on-scene field supervision to Deputies under their direct command and, as needed, to
provide Supervisory assistance to other units. Supervisors shall be assigned to and shall
actually work the same days and hours as the Deputies they are assigned to supervise,
absent exceptional circumstances.
87.
MCSO shall hold Commanders and Supervisors directly accountable for the quality and
effectiveness of their supervision, including whether commanders and Supervisors
identify and effectively respond to misconduct, as part of their performance evaluations
and through non-disciplinary corrective action, or through the initiation of formal
10
investigation and the disciplinary process, as appropriate.
11
b.
12
88.
Additional Supervisory Measures
To ensure compliance with the terms of this Order, first-line Supervisors in any
13
Specialized Units enforcing Immigration-Related Laws shall directly supervise the law
14
enforcement activities of new members of the unit for one week by accompanying them
15
in the field, and directly supervise the in-the-field-activities of all members of the unit for
16
at least two weeks every year.
17
89.
A Deputy shall notify a Supervisor before initiating any immigration status investigation,
18
as discussed in Paragraph 28. Deputies shall also notify Supervisors before effectuating
19
an arrest following any immigration-related investigation or for an Immigration-Related
20
Crime, or for any crime related to identity fraud or lack of an identity document. The
21
responding Supervisor shall approve or disapprove the Deputys investigation or arrest
22
recommendation based on the available information and conformance with MCSO
23
policy. The Supervisor shall take appropriate action to address any deficiencies in
24
Deputies investigation or arrest recommendations, including releasing the subject,
25
recommending non-disciplinary corrective action for the involved Deputy, and/or
26
referring the incident for administrative investigation.
27
28
90.
MCSO Deputies shall submit documentation of all stops and Investigatory Detentions
conducted to their Supervisors by the end of the shift in which the action occurred.
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Absent exceptional circumstances, within 72 hours of receiving such documentation, a
Supervisor shall independently review the information. Supervisors shall review reports
and forms for Boilerplate or conclusory language, inconsistent information, lack of
articulation of the legal basis for the action, or other indicia that the information in the
reports or forms is not authentic or correct. Appropriate disciplinary action should be
taken where Deputies routinely employ Boilerplate or conclusory language.
91.
As part of the Supervisory review, the Supervisor shall document any Investigatory Stops
and detentions that appear unsupported by reasonable suspicion or are otherwise in
violation of MCSO policy, or stops or detentions that indicate a need for corrective action
10
or review of agency policy, strategy, tactics, or Training. The Supervisor shall take
11
appropriate action to address all violations or deficiencies in Investigatory Stops or
12
detentions, including recommending non-disciplinary corrective action for the involved
13
Deputy, and/or referring the incident for administrative or criminal investigation.
14
92.
Supervisors shall use EIS to track each subordinates violations or deficiencies in
15
Investigatory Stops or detentions and the corrective actions taken, in order to identify
16
Deputies needing repeated corrective action. Supervisors shall notify IA. The Supervisor
17
shall ensure that each violation or deficiency is documented in the Deputys performance
18
evaluations. The quality and completeness of these Supervisory reviews shall be taken
19
into account in the Supervisors own performance evaluations. MCSO shall take
20
appropriate corrective or disciplinary action against Supervisors who fail to conduct
21
complete, thorough, and accurate reviews of Deputies stops and Investigatory
22
Detentions.
23
93.
Absent extraordinary circumstances, MCSO Deputies shall complete all incident reports
24
before the end of shift. MCSO field Supervisors shall review incident reports and shall
25
memorialize their review of incident reports within 72 hours of an arrest, absent
26
exceptional circumstances.
27
28
94.
As part of the Supervisory review, the Supervisor shall document any arrests that are
unsupported by probable cause or are otherwise in violation of MCSO policy, or that
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indicate a need for corrective action or review of agency policy, strategy, tactics, or
Training. The Supervisor shall take appropriate action to address violations or
deficiencies in making arrests, including notification of prosecuting authorities,
recommending non-disciplinary corrective action for the involved Deputy, and/or
referring the incident for administrative or criminal investigation.
95.
Supervisors shall use EIS to track each subordinates violations or deficiencies in the
arrests and the corrective actions taken, in order to identify Deputies needing repeated
corrective action. The Supervisor shall ensure that each violation or deficiency is noted
in the Deputys performance evaluations. The quality of these supervisory reviews shall
10
be taken into account in the Supervisors own performance evaluations, promotions, or
11
internal transfers. MCSO shall take appropriate corrective or disciplinary action against
12
Supervisors who fail to conduct reviews of adequate and consistent quality.
13
96.
A command-level official shall review, in writing, all Supervisory reviews related to
14
arrests that are unsupported by probable cause or are otherwise in violation of MCSO
15
policy, or that indicate a need for corrective action or review of agency policy, strategy,
16
tactics, or Training. The commanders review shall be completed within 14 days of
17
receiving the document reporting the event. The commander shall evaluate the corrective
18
action and recommendations in the Supervisors written report and ensure that all
19
appropriate corrective action is taken.
20
97.
MCSO Commanders and Supervisors shall periodically review the EIS reports and
21
information, and initiate, implement, or assess the effectiveness of interventions for
22
individual Deputies, Supervisors, and units based on that review. The obligations of
23
MCSO Commanders and Supervisors in that regard are described above in Paragraphs
24
81(c)(h).
25
d.
26
27
98.
Regular Employee Performance Review and Evaluations
MCSO, in consultation with the Monitor, shall create a system for regular employee
performance evaluations that, among other things, track each officers past performance
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to determine whether the officer has demonstrated a pattern of behavior prohibited by
MCSO policy or this Order.
99.
The review shall take into consideration all past Complaint investigations; the results of
all investigations; Discipline, if any, resulting from the investigation; citizen Complaints
and commendation; awards; civil or administrative claims and lawsuits related to MCSO
operations; Training history; assignment and rank history; and past Supervisory actions
taken pursuant to the early warning protocol.
100.
performance evaluations.
9
10
The quality of Supervisory reviews shall be taken into account in the Supervisors own
101.
Within 180 days of the Effective Date, MCSO shall develop and implement eligibility
11
criteria for assignment to Specialized Units enforcing Immigration-Related Laws. Such
12
criteria and procedures shall emphasize the individuals integrity, good judgment, and
13
demonstrated capacity to carry out the mission of each Specialized Unit in a
14
constitutional, lawful, and bias-free manner. Deputies assigned to a Specialized Unit
15
who are unable to maintain eligibility shall be immediately re-assigned.
16
17
18
19
20
21
22
23
24
25
26
27
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XI.
1
a.
2
3
102.
MISCONDUCT AND COMPLAINTS
Internally-Discovered Violations
MCSO shall require all personnel to report without delay alleged or apparent misconduct
by other MCSO Personnel to a Supervisor or directly to IA that reasonably appears to
constitute: (i) a violation of MCSO policy or this Order; (ii) an intentional failure to
complete data collection or other paperwork requirements required by MCSO policy or
this Order; (iii) an act of retaliation for complying with any MCSO policy; (iv) or an
intentional provision of false information in an administrative investigation or any
official report, log or electronic transmittal of information. Failure to voluntarily report or
10
document apparent misconduct described in this Paragraph shall be an offense subject to
11
Discipline.
12
b.
13
103.
Audit Checks
Within one year of the Effective Date, MCSO shall develop a plan for conducting
14
regular, targeted, and random integrity audit checks to identify and investigate Deputies
15
possibly engaging in improper behavior, including: Discriminatory Policing; unlawful
16
detentions and arrests; improper enforcement of Immigration-Related Laws; and failure
17
to report misconduct.
18
c.
19
104.
Complaint Tracking and Investigations
Subject to applicable laws, MCSO shall require Deputies to cooperate with administrative
20
investigations, including appearing for an interview when requested by an investigator
21
and providing all requested documents and evidence. Supervisors shall be notified when
22
a Deputy under their supervision is summoned as part of an administrative investigation
23
and shall facilitate the Deputys appearance, absent extraordinary and documented
24
circumstances.
25
105.
Investigators shall have access to, and take into account as appropriate, the collected
26
traffic stop and patrol data, Training records, Discipline history, and any past Complaints
27
and performance evaluations of involved officers.
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106.
Records of Complaints and investigations shall be maintained and made available,
unredacted, to the Monitor and Plaintiffs representatives upon request. The Monitor and
Plaintiffs representatives shall maintain the confidentiality of any information therein
that is not public record. Disclosure of records of pending investigations shall be
consistent with state law.

XII.
6
a.
7
8
107.
COMMUNITY ENGAGEMENT
Community Outreach Program
To rebuild public confidence and trust in the MCSO and in the reform process, the
MCSO shall work to improve community relationships and engage constructively with
9
10
the community during the period that this Order is in place. To this end, the MCSO shall
11
create the following district community outreach program.
12
108.
Community Outreach and Public Information program in each MCSO District.
13
14
Within 180 days of the Effective Date, MCSO shall develop and implement a
109.
As part of its Community Outreach and Public Information program, the MCSO shall
15
hold a public meeting in each of MCSOs patrol Districts within 90 days of the Effective
16
Date, and at least one meeting in each District annually thereafter. These meetings shall
17
be used to inform community members of the policy changes or other significant actions
18
that the MCSO has taken to implement the provisions of this Order. Summaries of audits
19
and reports completed by the MCSO pursuant to this Order shall be provided. The MCSO
20
shall clarify for the public at these meetings that it does not enforce immigration laws
21
except to the extent that it is enforcing Arizona and federal criminal laws.
22
110.
The meetings present an opportunity for MCSO representatives to listen to community
23
members experiences and concerns about MCSO practices implementing this Order,
24
including the impact on public trust. MCSO representatives shall make reasonable
25
efforts to address such concerns during the meetings and afterward.
26
111.
English- and Spanish-speaking MCSO Personnel shall attend these meetings and be
27
available to answer questions from the public. At least one MCSO Supervisor with
28
extensive knowledge of the agencys implementation of the Order, as well as the
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Community Liaison Officer (described below) shall participate in the meetings.
Plaintiffs representatives shall be invited to attend.
112.
The meetings shall be held in locations convenient and accessible to the public. At least
one week before such meetings, the MCSO shall widely publicize the meetings using
English and Spanish-language television, print media and the internet.
b.
113.
Community Liaison Officer
Within 90 days of the Effective Date, MCSO shall select or hire a Community Liaison
Officer (CLO) who is a sworn Deputy fluent in English and Spanish. The hours and
contact information of the CLO shall be made available to the public including on the
10
MCSO website. The CLO shall be directly available to the public for communications
11
and questions regarding the MCSO.
12
114.
The CLO shall have the following duties:

a. to coordinate the district community meetings described above in Paragraphs 109 to
13
112;
14
b. to provide administrative support for, coordinate and attend meetings of the
15
Community Advisory Board described in Paragraphs 117 to 118;
16
c. to compile any Complaints, concerns and suggestions submitted to CLO by members
17
18
of the public about the implementation of this Order and the Courts order of
19
December 23, 2011, and its findings of fact and conclusions of law dated May 24,
20
2013, even if they dont rise to the level of requiring formal action by IA or other
21
component of the MCSO, and to respond to Complainants concerns;

d. to communicate concerns received from the community at regular meetings with the
22
Monitor and MCSO leadership; and
23
e. to compile concerns received from the community in a written report every 180 days
24
and share the report with the Monitor and the Parties.
25
c.
26
27
28
115.
Community Advisory Board
MCSO and Plaintiffs representatives shall work with community representatives to

create a Community Advisory Board (CAB) to facilitate regular dialogue between the
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MCSO and community leaders, and to provide specific recommendations to MCSO about
policies and practices that will increase community trust and ensure that the provisions of
this Order and other orders entered by the Court in this matter are met.
116.
The CAB shall have six members, three to be selected by the MCSO and three to be
selected by Plaintiffs representatives. Members of the CAB shall not be MCSO
Employees or any of the named class representatives, nor any of the attorneys involved in
this case. However, a member of the MCSO Implementation Unit and at least one
representative for Plaintiffs shall attend every meeting of the CAB. The CAB shall
continue for at least the length of this Order.
10
117.
The CAB shall hold public meetings at regular intervals of no more than four months.
11
The meeting space shall be provided by the MCSO. The CLO shall coordinate the
12
meetings and communicate with Board members, and provide administrative support for
13
the CAB.
14
118.
During the meetings of the CAB, members will relay or gather concerns from the
15
community about MCSO practices that may violate the provisions of this Order and the
16
Courts previous injunctive orders entered in this matter and make reasonable efforts to
17
address such concerns. Members will also hear from MCSO Personnel on matters of
18
concern pertaining to the MCSOs compliance with the orders of this Court.
19
XIII. INDEPENDENT MONITOR AND OTHER PROCEDURES REGARDING
20
ENFORCEMENT
21
a.
22
23
119.
agree on the selection of a Monitor to be appointed by the Court.
25
27
28
The Court shall appoint an Independent Monitor to assist with implementation of, and
assess compliance with, this Order. Within 60 days of the Effective Date, the Parties shall
24
26
Selection of the Monitor
120.
The Parties shall have an opportunity to separately interview prospective candidates if

they choose, as well as request additional information about prospective candidates
background and experience, proposed annual fees and costs, proposed annual budget,
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including references and a list of recent consulting or monitoring work and the fees and
costs from that prior consulting or monitoring work as well as information as to whether
the candidate meet or exceeded any budgets for that prior consulting or monitoring work.
121.
If the Parties are unable to agree on a Monitor or an alternative method of selection
within 60 days of the Effective Date, each Party shall, no later than 70 days from the
Effective Date, submit the names and resumes of three candidates with experience as law
enforcement practices experts or monitors to the Court, and the Court shall select a
Monitor from among the qualified candidates.
122.
The Monitor shall be appointed for the term of this Order. In the event a Monitor is to be
10
replaced, the Parties shall select a new Monitor by the same process as above. The Court
11
may order the removal of the Monitor for any reason sua sponte, or upon Motion by any
12
party.
13
123.
Defendants shall provide the Monitor with permanent office space and reasonable office
14
support such as office furniture, secure internet access, telephones, secure document
15
storage, and photocopying, faxing and scanning equipment. Defendants shall bear all
16
reasonable fees and costs of the Monitor. However, the Parties recognize the importance
17
of ensuring that the fees and costs borne by Defendants are reasonable. In the event that
18
any dispute arises regarding the reasonableness or payment of the Monitors fees and
19
costs, Defendants, Plaintiffs, and the Monitor shall attempt to resolve such dispute
20
cooperatively prior to seeking the assistance of the Court. All Parties shall be included in
21
any communications related to such a dispute.
22
124.
The Monitor, at any time after his or her initial selection, may request authorization from
23
the Court to be allowed to hire or employ or contract with such additional persons or
24
entities as are reasonably necessary to perform the tasks assigned to the Monitor by this
25
Order or by the Court. The Monitor shall submit to the Court the task to be performed by
26
the proposed additional person or entity, the scope of the work to be performed, the
27
project fees and expenses associated with such work, the expected length of time for such
28
work, and the reasons the Monitor is unable to perform such work and requires the
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assistance of the additional person or entity and why existing MCSO personnel cannot
perform the task requested by the Monitor. Any person or entity hired or otherwise
retained by the Monitor to assist in furthering any provision of this Order shall be subject
to the provisions of this Order. The Monitor shall notify the Defendants and Plaintiffs
representatives in writing if the Monitor wishes to hire such additional persons or entities.
The notice shall identify and describe the qualifications of the person or entity to be
hired, the monitoring tasks to be performed, the estimated cost and length of time of the
task, and explain why existing MCSO personnel cannot perform the task requested or
desired by the Monitor. If the County and Plaintiffs agree to the Monitors proposal, the
10
Monitor shall be authorized to hire or employ such additional persons or entities. The
11
County or Plaintiffs have 15 business days to state any disagreement with the proposal.
12
If the County and Plaintiffs are unable to reach agreement within 15 business days of
13
receiving notice of the disagreement by the other Party, the Court shall resolve the
14
dispute.
15
125.
Should any Party determine that the Monitors individual members, agents, employees, or
16
independent contractors have exceeded their authority or failed to satisfactorily perform
17
the duties required by this Order, the Party may petition the Court for such relief as the
18
Court deems appropriate, including replacement of the Monitor, and/or any individual
19
members, agents, employees, or independent contractors. The Party or Parties, as the case
20
may be, shall attempt to resolve such disputes cooperatively prior to seeking the
21
assistance of the Court. All Parties shall be included in any communications related to
22
such a dispute.
23
b.
24
126.
Role of the Monitor
The Monitor shall be subject to the supervision and orders of the Court, consistent with
25
this Order. The Monitor shall have the duties, responsibilities and authority conferred by
26
the Court and this Order, including, but not limited to: (1) reviewing the MCSO Patrol
27
Operations Policies and Procedures provided for by this Order and making
28
recommendations to the Court regarding the same; (2) reviewing a protocol with the
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Parties to ensure that any Significant Operations conducted by the MCSO are conducted
in a race-neutral fashion; (3) reviewing the curriculum, materials and proposed instructors
for Training required by this Order; (4) reviewing the collected traffic stop data and the
collected Saturation Patrol data to determine whether the data required to be gathered by
this Order is, in fact, being collected by the MCSO; (5) reviewing protocols regarding the
collection, analysis, and use of such data and determining whether the MCSO is in
compliance with those protocols; (6) reviewing the collected data to determine whether,
in the opinion of the Monitor, MCSO is appropriately reviewing the collected data to
determine possible isolated or systemic racial profiling occurring, and if so, reporting the
10
factual basis supporting that judgment to the Parties and the Court; (7) evaluating the
11
effectiveness of the MCSOs changes in the areas of supervision and oversight and
12
reporting the same to the parties and the Court; (8) reviewing the corrective action taken
13
by the MCSO concerning any possible violations of this Order or MCSO policy and
14
procedures and reporting the same to the parties and the Court; (9) evaluating the
15
MCSOs engagement with the communities affected by its activities as set forth by this
16
Order; and (10) assessing the MCSOs overall compliance with the Order.
17
127.
To assess and report on the Defendants implementation of this Order and whether
18
implementation is resulting in the constitutional and professional treatment of individuals
19
by MCSO, the Monitor shall conduct the audits, compliance reviews and outcome
20
assessments specified below, and such additional audits and assessments as the Monitor
21
or the Parties deem appropriate.
22
128.
The ultimate arbiter of compliance is the Court and Parties may make their own
23
submissions regarding compliance separate from the Monitors reports. In any areas
24
where the Parties are not able to resolve issues with the Monitorincluding those areas
25
where the Order provides for input from the Monitorthe Parties may submit their
26
grievances directly to the Court for resolution.
27
28
129.
In carrying out these duties, the Monitor shall be permitted to have ex parte
communications with the Parties.
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c.
1
2
130.
Monitoring Plan and Review Methodology
The Monitor shall file with the Court quarterly written, public reports covering the
reporting period that shall include:
a. a description of the work conducted by the Monitor during the reporting period;
b. a listing of each Order requirement which indicates whether each requirement has
been addressed by the MCSO, is the subject of sufficient Training, and whether the
MCSO is in compliance with that requirement of the Order in the judgment, opinion,
and experience of the Monitor;

c. the methodology and specific findings for each audit or review conducted;
9
10
d. for any requirements that were audited and reviewed and found not to have been fully
11
implemented in practice in the judgment, opinion, and experience of the Monitor, the
12
Monitors recommendations to the Court regarding necessary steps to achieve
13
compliance;
e. in the judgment, opinion, and experience of the Monitor an assessment of MCSOs
14
15
progress in achieving the desired outcomes for each area covered by the Order, noting
16
issues of concern or particular achievement;
17
f. the methodology and specific findings for each outcome assessment conducted; and
18
g. a projection of the work to be completed during the upcoming reporting period and
19
any anticipated challenges or concerns related to implementation of the Order.
20
131.
The Monitors reports shall be public except for information covered by privacy laws or
21
that is otherwise confidential. If any information is redacted from the Monitors report, an
22
unredacted version shall be filed under seal with the Court and provided to the Parties.
23
The underlying data for each audit, review or assessment need not be made publicly
24
available but shall be retained by the Monitor and provided to either or both Parties upon
25
request.
26
132.
The Monitor shall provide a copy of quarterly reports to the Parties in draft form at least
27
21 business days prior to filing them with the Court to allow the Parties to provide written
28
comment on the reports. The Monitor shall consider the Parties responses and make any
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changes the Monitor deems appropriate before issuing the report. The Monitor shall
attach to his or her report copies of any comments submitted by the Parties.
133.
Within 60 days of his or her appointment, the Monitor shall develop a plan for
conducting the above audits, reviews and outcome assessments, and shall submit this plan
to the Parties for review and approval. In the event that the Parties cannot agree, the plan
will be submitted to the Court for final approval. This plan shall:
a. clearly delineate the requirements of the Order to be assessed for compliance,

indicating which requirements will be assessed together;
b. set out a schedule for conducting an initial audit or review of each requirement of the
Order, and periodic audits and reviews thereafter;
10
c. set out a schedule for conducting initial outcome assessments for each area of the
11
Order, and periodic assessments thereafter.
12
13
134.
Where the Monitor recommends and the Parties agree, the Monitor may refrain from
14
conducting an audit or review of a requirement previously found to have been fully
15
implemented in practice by the Monitor, or refrain from conducting an outcome
16
assessment if previous assessments indicate that the outcome intended by a requirement
17
has been achieved.
18
135.
At least 30 days prior to the initiation of any audit, review or assessment, the Monitor
19
shall submit a proposed methodology to the Parties. The Parties shall submit any
20
comments or concerns regarding the proposed methodology to the Monitor within 15
21
days of the proposed date of the assessment, review or audit. The Monitor shall modify
22
the methodology as necessary to address any concerns or shall inform the Parties in
23
writing of the reasons it is not modifying its methodology as proposed. If Parties do not
24
agree with the proposed methodology, the Monitor shall then file with the Court the
25
proposed methodology for approval.
26
27
136.
In conducting the outcome assessments, the Monitor should measure not only the
MCSOs progress in implementing the provisions of this Order, but the effectiveness of
28
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the reforms. To do so, the Monitor shall take into account the following performance-
based metrics and trends:
a. Deputies awareness and comprehension of issues addressed by departmental policies

and Training;
4
5
b. data relating to the race and ethnicity of individuals stopped, detained and arrested by
the MCSO, including the rate at which investigations result in a citation or arrest;
c. data related to the documented reasonable suspicion or probable cause to stop, detain
or arrest individuals encountered on traffic stops, broken down by the actual or
perceived race or ethnicity of the person(s) stopped/arrested;
10
d. the use and deployment of Specialized Units;
11
e. the execution of any significant operations, including planning and site selection,
12
tactics employed, staffing and units involved, and the intended and actual results of
13
such operations;
14
f. the amount and quality of supervision provided by the MCSOs chain of command;
15
g. the prevalence of civilian Complaints regarding biased policing or unlawful

detentions and arrests by MCSO Patrol Operation deputies;
16
h. the number and rate of Complaints that are accepted, sustained and not sustained,
17
18
overall and broken down by type, unit, geographic area and the actual or perceived
19
race or ethnicity of Complainants;
20
i. disciplinary outcomes for any violations of departmental policy;
21
j. whether any Deputies are the subject of repeated misconduct Complaints, civil suits,
or criminal charges, including for off-duty conduct; and
22
k. the level of MCSO engagement and participation with the community advisory board;
23
24
137.
To facilitate the Monitors outcome assessments, the Monitor may also conduct his or her
25
own periodic analysis of the traffic stop and Significant Operations data collected by the
26
MCSO pursuant to this Order, subject to the terms of this Order as to the Monitors
27
proposed hiring of assistance. The Monitor shall retain an individual or entity with
28
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expertise in social science research and statistics to conduct the survey if the Monitor
does not have this expertise him/herself.
138.
The Monitor shall conduct a comprehensive re-assessment each year after the Effective
Date to determine whether and to what extent the outcomes intended by this Order have
been achieved, and any modifications to the Order that he/she believes are necessary for
continued achievement in light of changed circumstances or unanticipated impact (or lack
of impact) of a requirement. This re-assessment shall also address areas of greatest
achievement and the requirements that appear to have contributed to this success, as well
as areas of greatest concern, including strategies for accelerating Full and Effective
10
Compliance. Based upon this comprehensive re-assessment, the Monitor may
11
recommend to the parties and the Court modifications to the Order that he/she believes
12
are necessary to achieve and sustain intended outcomes.
13
d.
14
139.
Monitor Recommendations and Technical Assistance
The Monitor may make additional recommendations to the Parties regarding measures
15
necessary to ensure timely, Full and Effective Compliance with this Order and its
16
underlying objectives. Such recommendations may include a recommendation to change,
17
modify, or amend a provision of the Order, a recommendation for additional Training in
18
any area related to this Order, or a recommendation to seek technical assistance. In
19
addition to making recommendations, the Monitor may also, at the request of the Parties,
20
provide technical assistance directly to the MCSO consistent with the Monitors
21
responsibilities under this Order. In the event that full and effective implementation of
22
this Order requires technical assistance beyond the scope of what the Monitor can
23
provide, Defendants shall reasonably arrange for prompt initiation of such technical
24
assistance consistent with the terms of this Order.
25
e.
26
140.
Communication between Monitor and Parties
The Monitor shall maintain regular contact with the Parties in order to ensure effective
27
and timely communication regarding the status of Defendants implementation of and
28
compliance with this Order.
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f.
1
2
141.
Public Statements, Testimony, Records, and Conflicts of Interest
Except as required or authorized by the terms of this Order or the Parties acting together:
neither the Monitor, nor any agent, employee, or independent contractor thereof, shall
make any public statements, outside of statements to the Court as contemplated in this
Order, with regard to any act or omission of the Defendants, or their agents,
representatives, or employees; or disclose non-public information provided to the
Monitor pursuant to the Order. Any press statement made by the Monitor regarding its
employment or monitoring activities under this Order shall first be approved by the
Parties.
10
142.
Unless such conflict is waived by the Parties, the Monitor shall not accept employment or
11
provide consulting services that would present a conflict of interest with the Monitors
12
responsibilities under this Order, including being retained (on a paid or unpaid basis) by
13
any current or future litigant or claimant, or such litigants or claimants attorney, in
14
connection with a claim or suit against Maricopa County or its departments, Deputies,
15
agents or employees.
16
143.
The Monitor is not a state or local agency, or an agent thereof, and accordingly the
17
records maintained by the Monitor shall not be deemed public records subject to public
18
inspection.
19
144.
The Monitor shall not be liable for any claim, lawsuit, or demand arising out of the
20
Monitors performance pursuant to this Order.
21
g.
22
145.
Access and Confidentiality
Defendants shall ensure that the Monitor has timely, full and direct access to all
23
personnel, documents, facilities and Order-related Trainings and meetings that the
24
Monitor reasonably deems necessary to carry out its duties. The Monitor shall cooperate
25
with the Defendants to access people and facilities in a reasonable manner that, consistent
26
with the Monitors responsibilities, minimizes interference with daily operations. To
27
facilitate his or her monitoring responsibilities, the Monitor may conduct On-Site
28
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Observations, visits and assessments without prior notice to the Defendants absent
Exigent Circumstances.
146.
Defendants may withhold from the Monitor any documents or data protected by the
attorney-client privilege. Should the Defendants decline to provide the Monitor access to
documents or data based on attorney-client privilege, the Defendants shall inform the
Monitor and Plaintiffs that it is withholding documents or data on this basis and shall
provide the Monitor and Plaintiffs with a log describing the documents or data.
147.
Defendants shall ensure that Plaintiffs representatives and their consultative experts and
agents shall have full and direct access to all Defendants staff, employees, facilities,
9
10
documents and data relevant to this Order upon reasonable notice. Plaintiffs
11
representatives and their consultative experts and agents shall cooperate with the
12
Defendants to access involved personnel, facilities, and documents in a reasonable
13
manner that, consistent with Plaintiffs responsibilities to enforce this Order, minimizes
14
interference with regular duties.
15
148.
The Monitor and Plaintiffs shall provide the Defendants with reasonable notice of a
16
request for copies of documents. Upon such request, the Defendants shall provide in a
17
timely manner copies (electronic, where readily available) of the requested documents.
18
149.
The Monitor shall have access to all records and information relating to criminal
19
investigations relevant to this Order as permissible by law. The Monitor shall treat such
20
records as confidential and shall not disclose the same to any third party. The Monitor
21
and Plaintiffs shall have access to all documents in concluded or closed MCSO criminal
22
investigation files. The Monitor shall also have reasonable access to all arrest reports,
23
warrants, and warrant applications whether or not contained in open criminal
24
investigation files absent Exigent Circumstances.
25
150.
The Parties may make use of protective orders or agreements to ensure the confidentiality
26
of any non-public information as appropriate and necessary. Other than as expressly
27
provided herein, this Order shall not be deemed a waiver of any privilege or right the
28
Defendants may assert, including those recognized at common law or created by statute,
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rule or regulation, against any other person or entity with respect to the disclosure of any
document.
h.
151.
Modification and Enforcement of the Order
Where the Parties agree with the Monitors recommendations to change a provision of
the Order, the Parties may apply to the Court via stipulated Motion or other appropriate
filing to make the desired change.
152.
Plaintiffs representatives may seek enforcement of this Order if they determine that the
Defendants have failed to fully comply with any provision contained herein. Plaintiffs
representatives are not required to prove that the MCSO is engaged in racial profiling in
10
order for the Court to find that Defendants have failed to fully comply. Plaintiffs may
11
demonstrate that the MCSO has failed to fulfill a particular obligation under this Order or
12
failed to make sustained and continuing progress on applicable performance-based
13
metrics.
14
153.
The Parties shall first attempt to resolve any dispute informally by notification and
15
conferral. If a dispute cannot be resolved informally, Plaintiffs representatives may
16
apply to the Court for appropriate relief, up to and including the imposition of contempt
17
sanctions. Interventions short of an imposition of contempt sanctions may include, but are
18
not limited to, additional oversight, further restrictions on agency activities, and
19
additional Training or reporting requirements.
20
154.
Defendants may move the Court for a protective order and/or other appropriate relief if
21
they reasonably believe Plaintiffs representative is abusing its rights under this Order or
22
acting solely to annoy or harass Defendants. Prior to moving for any such protective
23
order or other relief, Defendants shall be required to provide Plaintiffs with notice of their
24
intent to do so and shall confer with Plaintiffs in good faith to resolve any such dispute.
25
155.
The Parties shall notify each other of any court or administrative challenge to this Order.
26
In the event any provision of this Order is challenged in any local or state court, removal
27
to a federal court shall be sought by the Parties and transfer of venue to this District will
28
be sought.
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156.
The Defendants agree to promptly notify Plaintiffs if any term of this Order becomes
subject to collective bargaining consultation and to consult with Plaintiffs in a timely
manner regarding the implications of any collective bargaining consultation in relation to
this Order.
157.
Defendants shall pay reasonable fees and costs incurred as a result of having to initiate
litigation to secure enforcement, should Plaintiffs prevail in such litigation. Nothing in
this provision affects the right of Plaintiffs to seek fees and costs for work performed in
the case prior to the Effective Date or in connection with any appeal taken by Defendants
of the Courts May 24, 2013 Findings of Fact, Conclusions of Law and Order.
10
158.
Defendants reserve the right to move the Court to alter, amend, modify, or terminate this
11
Order at any time based on an adverse decision of an appellate court of competent
12
jurisdiction ruling on the Courts Order dated December 23, 2011 and its Findings of
13
Fact, Conclusions of Law, and Order dated May 24, 2013.
14
159.
Nothing in this Section, nor in this Order is intended to, nor shall, constitute a waiver,
15
termination, abrogation, or ending of the appeal rights of the Defendants to challenge the
16
Courts Order dated December 23, 2011 and its Findings of Fact, Conclusions of Law,
17
and Order dated May 24, 2013.
18
IT IS THEREFORE ORDERED that the Courts injunction of December 23, 2011 is
19
made permanent. The Courts injunction of May 24, 2013 shall remain permanent. For removal
20
of doubt, both the December 23, 2011 injunction and the May 24, 2013 injunction shall survive
21
the termination of this Order until and unless specifically dissolved or modified by the Court or
22
an appellate court of competent jurisdiction.

IT IS FURTHER ORDERED that this Order is an appealable final judgment. The Clerk
23
24
of Court is directed to enter judgment accordingly.
25
///
26
///
27
///
28
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1
2
3
IT IS FURTHER ORDERED that this Court retains jurisdiction over this case for the
purposes of implementing this Order.
Dated this 2nd day of October, 2013.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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EXHIBIT 7
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WO
2
3
4
6
7

situated; et al.,
8
9
10
11
Plaintiffs,
AMENDMENTS TO THE
SUPPLEMENTAL PERMANENT
INJUNCTION/JUDGMENT ORDER
v.
County, AZ; et al.,
12
Defendants.
13
14
At the status conference held on March 24, 2014, and in a previous order (Doc.
15
663 App. A) this Court proposed amendments to the Supplemental Permanent Injunction/
16
Judgment Order (Doc. 606). The parties were given an opportunity to respond in writing and at
17
the April 2, 2014, status conference. As a result of those conferences, the Court orders the
18
following amendments to the Supplemental Permanent Injunction/Judgment Order (Doc. 606).
19
This amendment order presents only the paragraphs with changes. All other
20
paragraphs not mentioned shall remain the same. Unchanged language is presented in
21
normal font. Additions are indicated by underlined font. Deletions are indicated by
22
crossed-out font. Where an entire paragraph has been removed, that is indicated with
23
brackets, but the numbering remains unchanged. For example: 108. [REMOVED].
24
25
PROPOSED AMENDMENTS
....
26
REMEDIES
27
28
I.
1.
DEFINITIONS
The following terms and definitions shall apply to this Order:
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....
r.
Full and Effective Compliance means compliance with all relevant provisions of
this Order. The Defendants shall begin to be in Full and Effective Compliance with
this Order when all of the following have been both completed and consistently
maintained:
....
xvii.
[REMOVED] The MCSO has developed and implemented a
community outreach program pursuant to Paragraphs 107112 of this
Order.
xviii. [REMOVED] The MCSO has selected or hired a Community Liaison
10
Officer pursuant to Paragraphs 113114 of this Order.
11
xix.
12
[REMOVED] The MCSO has worked with Plaintiffs representatives
13
and community representatives and created a Community Advisory Board
14
pursuant to Paragraphs 115116 of this Order.

....
15
VI.
16
....
17
18
PRE-PLANNED OPERATIONS
38.
If the MCSO conducts any Significant Operations or Patrols involving 10 or more MCSO
19
Personnel excluding posse members, it shall create the following documentation and
20
provide it to the Monitor and Plaintiffs within 30 10 days after the operation:
21
....
22
39.
The MCSO Monitor shall hold a community outreach meeting no more than 30 40 days
23
after any Significant Operations or Patrols in the affected District(s). MCSO shall work
24
with the Community Advisory Board to ensure that the community outreach meeting
25
adequately communicates information regarding the objectives and results of the
26
operation or patrol. The Monitor shall communicate the operational details provided to it
27
by the MCSO and shall hear any complaints or concerns raised by community members.
28
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The Monitor may investigate and respond to those concerns. The community outreach
meeting shall be advertised and conducted in English and Spanish.
....
XII.
4
a.
5
6
107.
COMMUNITY ENGAGEMENT
Community Outreach Program
To rebuild public confidence and trust in the MCSO and in the reform process, the
MCSO Monitor shall work to improve community relationships and engage
constructively with the community during the period that this Order is in place. To this
end, the MCSO shall create the following district community outreach program.
10
108.
[REMOVED] Within 180 days of the Effective Date, MCSO shall develop and
11
implement a Community Outreach and Public Information program in each MCSO
12
District.
13
109.
As part of its Community Outreach and Public Information program, the MCSO The
14
Monitor shall hold a public meeting in each of MCSOs patrol Districts within 90 180
15
days of the Effective Date issuance of this amendment to the Order, and at least between
16
one and three meetings in each of MCSOs patrol Districts annually thereafter. The
17
meetings shall be under the direction of the Monitor and/or his designee. These meetings
18
shall be used to inform community members of the policy changes or other significant
19
actions that the MCSO has taken to implement the provisions of this Order. Summaries
20
of audits and reports completed by the MCSO pursuant to this Order shall be provided.
21
The MCSO Monitor shall clarify for the public at these meetings that it the MCSO does
22
not lacks the authority to enforce immigration laws except to the extent that it is
23
enforcing Arizona and federal criminal laws.
24
110.
The meetings present an opportunity for MCSO representatives the Monitor to listen to
25
community members experiences and concerns about MCSO practices implementing
26
this Order, including the impact on public trust. MCSO representatives shall make
27
reasonable efforts to address such concerns during the meetings and afterward. The
28
Monitor may investigate and respond to those concerns. To the extent that the Monitor
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receives concerns at such meetings that are neither within the scope of this order nor
useful in determining the Defendants compliance with this order, it may assist the
complainant in filing an appropriate complaint with the MCSO.
111.
English- and Spanish-speaking MCSO Monitor Personnel shall attend these meetings and
be available to answer questions from the public about its publicly available reports
concerning MCSOs implementation of this Order and other publicly-available
information. At least one MCSO Supervisor with extensive knowledge of the agencys
implementation of the Order, as well as the Community Liaison Officer (described
below) shall participate in the meetings. The Monitor may request Plaintiffs and/or
10
Defendants representatives shall be invited to attend such meetings and assist in
11
answering inquiries by the community. The Defendants are under no obligation to attend
12
such meetings, but to the extent they do not attend such meetings after being requested by
13
the Monitor to do so, the Monitor may report their absence to the public and shall report
14
their absence to the Court.
15
112.
The meetings shall be held in locations convenient and accessible to the public. At least
16
one week ten days before such meetings, the MCSO Monitor shall widely publicize the
17
meetings using English and Spanish-language television, print media and the internet.
18
The Defendants shall either provide a place for such meetings that is acceptable to the
19
Monitor, or pay the Monitor the necessary expenses incurred in arranging for such
20
meeting places. The Defendants shall also pay the reasonable expenses of publicizing the
21
meetings as required above, and the additional reasonable personnel and other expenses
22
that the Monitor will incur as a result of performing his obligations with respect to the
23
Community Outreach Program. If the Monitor determines there is little interest or
24
participation in such meetings among community members, or that they have otherwise
25
fulfilled their purpose, he can file a request with the Court that this requirement be
26
revised or eliminated.
27
b.
Community Liaison Officer Monitor
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113.
[REMOVED] Within 90 days of the Effective Date, MCSO shall select or hire a
Community Liaison Officer (CLO) who is a sworn Deputy fluent in English and
Spanish. The hours and contact information of the CLO shall be made available to the
public including on the MCSO website. The CLO shall be directly available to the public
for communications and questions regarding the MCSO.
114.
In addition to the duties set forth in Title XIII of this order, The CLO the Monitor shall
have the following duties in relation to community engagement:

112;
b. to provide administrative support for, coordinate and attend meetings of the
10
Community Advisory Board described in Paragraphs 117 to 118; and
11
c. to compile any Complaints, concerns and suggestions submitted to CLO him by
12
13
members of the public about the implementation of this Order and the Courts order
14
of December 23, 2011, and its findings of fact and conclusions of law dated May 24,
15
2013, even if they dont rise to the level of requiring formal action by IA or other
16
component of the MCSO, and to respond to Complainants concerns;

d. [REMOVED] to communicate concerns received from the community at regular
17
meetings with the Monitor and MCSO leadership; and
18
e. [REMOVED] to compile concerns received from the community in a written report
19
every 180 days and share the report with the Monitor and the Parties.
20
c.
21
22
115.
Community Advisory Board
MCSO The Monitor and Plaintiffs representatives shall work with community
23
representatives to create a Community Advisory Board (CAB) to facilitate regular
24
dialogue between the MCSO Monitor and community leaders, and to provide specific
25
recommendations to MCSO about policies and practices that will increase community
26
trust and ensure that the provisions of this Order and other orders entered by the Court in
27
this matter are met.
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116.
The CAB shall have six three members, three to be selected by the MCSO and three to be
selected by Plaintiffs representatives. Members of the CAB shall not be MCSO
Employees or any of the named class representatives, nor any of the attorneys involved in
this case. However, a member of the MCSO Implementation Unit and at least one
representative for Plaintiffs shall attend every meeting of the CAB. The CAB shall
continue for at least the length of this Order.
117.
The CAB shall hold public meetings at regular intervals of no more than four months.
The meetings may be either public or private as the purpose of the meeting dictates, at the
election of the Board. The Defendants shall either provide a suitable place for such
10
meetings that is acceptable to the Monitor, or pay the Monitor the necessary expenses
11
incurred in arranging for such a meeting place. The Defendants shall also pay to the
12
Monitor the additional reasonable expenses that he will incur as a result of performing his
13
obligations with respect to the CAB including providing the CAB with reasonably
14
necessary administrative support. The meeting space shall be provided by the MCSO.
15
The CLO Monitor shall coordinate the meetings and communicate with Board members,
16
and provide administrative support for the CAB.
17
118.
During the meetings of the CAB, members will relay or gather concerns from the
18
community about MCSO practices that may violate the provisions of this Order and the
19
Courts previous injunctive orders entered in this matter and make reasonable efforts to
20
address such concerns. and transmit them to the Monitor for his investigation and/or
21
action. Members will may also hear from MCSO Personnel on matters of concern
22
pertaining to the MCSOs compliance with the orders of this Court.
23
24
XIII. INDEPENDENT MONITOR AND OTHER PROCEDURES REGARDING
25
ENFORCEMENT
26
....
27
b.
Role of the Monitor
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126.
The Monitor shall be subject to the supervision and orders of the Court, consistent with
this Order. The Monitor shall have the duties, responsibilities and authority conferred by
the Court and this Order, including, but not limited to: (1) reviewing the MCSO Patrol
Operations Policies and Procedures provided for by this Order and making
recommendations to the Court regarding the same; (2) reviewing a protocol with the
Parties to ensure that any Significant Operations conducted by the MCSO are conducted
in a race-neutral fashion; (3) reviewing the curriculum, materials and proposed instructors
for Training required by this Order; (4) reviewing the collected traffic stop data and the
collected Saturation Patrol data to determine whether the data required to be gathered by
10
this Order is, in fact, being collected by the MCSO; (5) reviewing protocols regarding the
11
collection, analysis, and use of such data and determining whether the MCSO is in
12
compliance with those protocols; (6) reviewing the collected data to determine whether,
13
in the opinion of the Monitor, MCSO is appropriately reviewing the collected data to
14
determine possible isolated or systemic racial profiling occurring, and if so, reporting the
15
factual basis supporting that judgment to the Parties and the Court; (7) evaluating the
16
effectiveness of the MCSOs changes in the areas of supervision and oversight and
17
reporting the same to the parties and the Court; (8) reviewing the corrective action taken
18
by the MCSO concerning any possible violations of this Order or MCSO policy and
19
procedures and reporting the same to the parties and the Court; (9) evaluating the
20
MCSOs providing engagement with the communities affected by its the activities as set
21
forth by this Order; and (10) assessing the MCSOs overall compliance with the Order.
22
....
23
c.
24
....
25
136.
Monitoring Plan and Review Methodology
In conducting the outcome assessments, the Monitor should measure not only the
26
MCSOs progress in implementing the provisions of this Order, but the effectiveness of
27
the reforms. To do so, the Monitor shall take into account the following performance-
28
based metrics and trends:
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....
1
2
i. disciplinary outcomes for any violations of departmental policy; and
j. whether any Deputies are the subject of repeated misconduct Complaints, civil suits,
or criminal charges, including for off-duty conduct; and
k. [REMOVED] the level of MCSO engagement and participation with the community
advisory board;
6
7
....
f.
141.
Public Statements, Testimony, Records, and Conflicts of Interest
Except as required or authorized by the terms of this Order or the Parties acting together:
10
neither the Monitor, nor any agent, employee, or independent contractor thereof, shall
11
make any public statements, outside of statements to the Court as contemplated in this
12
Order, with regard to any act or omission of the Defendants, or their agents,
13
representatives, or employees; or disclose non-public information provided to the
14
Monitor pursuant to the Order. As required and authorized, the Monitor shall conduct the
15
public community outreach meetings provided in this order and the CAB meetings. Any
16
press statement made by the Monitor regarding its employment or monitoring activities
17
under this Order shall first be approved by the Parties.
18
....
19
End of amendments.
20
IT
IS
THEREFORE
ORDERED
amending
the
Supplemental
Permanent
21
Injunction/Judgment Order (Doc. 606) as indicated above. The Courts injunctions of December
22
23, 2011; May 24, 2013; and October 2, 2013 shall remain permanent as amended by this Order
23
until and unless specifically dissolved or modified by the Court or an appellate court of
24
competent jurisdiction.
25
26
IT IS FURTHER ORDERED that this Order is an appealable final judgment. The Clerk
of Court is directed to enter judgment accordingly.
27
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IT IS FURTHER ORDERED that this Court retains jurisdiction over this case for the
purposes of implementing the October 2, 2013, Supplemental Permanent Injunction/Judgment
Order (Doc. 606) and these amendments to it.
Dated this 4th day of April, 2014.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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EXHIBIT 8
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WO
2
3
4
5
6
8
9
10

situated; et al.
ENFORCEMENT ORDER
Plaintiffs,
11
12
v.
13

County, AZ; et al.
14
Defendants.
15
16
Pending before the Court is Defendants Notice of Lodging the Parties Counsels
17
Agreed Upon Draft Corrective Statement (Doc. 674) and Defendants Amended Notice
18
and New Revised Unilateral Draft Corrective Statement (Doc. 676). As a result of these
19
20
21
22
23
24
25
26
27
28
filings the Court makes the following Findings of Fact and enters the following
Enforcement Order.
FINDINGS OF FACT
Over the past month this Court has become aware of and investigated the extent to
which Defendants have been misinforming MCSO employees regarding this Courts
Orders in this case. The Court reviewed the video of the training held in October before
the Significant Operation and held a hearing at which Chief Deputy Sheridan addressed
the Court about the erroneous training he provided. The Court also reviewed the video of
the community meeting in March and held a hearing at which Deputy Chief Trombi
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testified about his comments there and the communications he observed and participated
in at the MCSO.
Based on that evidence, the Court makes the following findings of fact:
a.
The Sheriff and at least Chief Deputy Sheridan have, in MCSO trainings or
briefings since this Courts order, mischaracterized this Courts May 2013 Findings of
Fact and Conclusions of Law and its October 2013 Supplemental Order to the MCSO;
7
8
9
10
11
12
13
b.
These statements have resulted in persistent and serious misunderstandings
among MCSO personnel both about the bases on which the Court made its Findings and
Conclusions and also, about MCSOs obligation to comply with this Courts order;
c.
MCSO personnel have made the same general mischaracterizations of the
Courts findings, and the bases for them, repeatedly over the last six months;
d.
Those misstatements have resulted in persistent misperceptions which are
widespread through the MCSO generally, including both command staff as well as other
14
15
16
17
18
19
personnel, employees, and volunteers;

e.
Chief Trombi never read the Courts Findings of Facts and Conclusions of
Law, or its Order, until this month when he was ordered by the Court to appear and
answer questions;
f.
Chief Trombi is unaware of any other MCSO personnel, including
20
command staff, who have read the Courts Findings of Fact and Conclusions of Law.
21
(The Court has, nevertheless been informed by its Monitor that Captain Farnsworth, the
22
head of the compliance unit, demonstrates an appropriately thorough knowledge of at
23
least the Courts October Order);
24
g.
To rectify the constitutional violations identified in this Courts Findings of
25
Fact and Conclusions of Law, MCSO personnel must have an accurate understanding of
26
how they have been violating the constitutional rights of members of the Plaintiff class.
27
28
h.
The Sheriff and his Chief Deputy initially agreed to take voluntary
corrective action, by drafting jointly with Plaintiffs a summary of the Courts Findings
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and Order to be transmitted to all MCSO personnel over the signature of the Sheriff and
his Chief Deputy;
i.
Although the parties submitted a joint statement that had been approved by
both parties and which the Sheriff and his Chief Deputy had agreed to sign and transmit
to all MCSO personnel, (Doc. 674), subsequent press coverage of the statement has
caused the Sheriff to withdraw his agreement to sign the statement unless alterations are
made to it, (Doc. 676);
8
9
10
11
12
13
j.
Those alterations came after the deadline for submitting a ready-to-sign
statement, were not submitted to the Plaintiff for approval, are not acceptable to the
Plaintiff class, (Doc. 678), and are unacceptable to this Court; and,
k.
Defendants have not yet provided the Monitor with the curriculum for
training required by the order, and thus the Monitor has not yet been able to determine
whether that proposed training concerning the constitutional principles that are set forth
14
15
16
17
18
19
in the Courts previous findings and orders is accurate, effective, and appropriately
integrated with new department policies and procedures and appropriately implements
this Courts orders. That process may yet take some time.
The misinformation, misunderstanding, and confusion caused by the inaccurate
statements and inappropriate training that has occurred throughout the MCSO cannot
20
wait until such future training or briefing may be approved and implemented to be
21
corrected. They require immediate attention.
22
ORDERS
23
In light of the Sheriffs decision not to take the voluntary action to correct the
24
misinformation he and others provided during training, the Court is required to enter the
25
following Order pursuant to its authority to enforce its October Order. Hoffman v. Beer
26
Drivers Local No. 888, 536 F.2d 1268, 1276 (9th Cir. 1976) ([W]here the court
27
supervises a continuing course of conduct and where as new facts develop additional
28
supervisory action by the court is required, an appeal from the supervisory order does not
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divest the district court of jurisdiction to continue its supervision, even though in the
course of that supervision the court acts upon or modifies the order from which the
appeal is taken.); Lara v. Secy of Interior, 820 F.2d 1535, 1543 (9th Cir. 1987) (The
district court may issue orders pending appeal to enforce its judgment.).
IT IS HEREBY ORDERED that:
1.
The Sheriff need not sign, but will immediately disseminate the summary
attached as Exhibit A to this Order to all MCSO personnel. No other communication of
any kind will be disseminated to MCSO personnel with that summary, except to indicate
9
10
11
12
13
that the Court requires them to read and report on their understanding as explained in this
order. The Sheriff will further undertake the following measures to ensure that all MCSO
personnel read and understand the Courts orders as follows:
2.
All MCSO personnel, including civilian employees and volunteer personnel
(such as the Sheriffs posse) below the rank of sergeant will read the summary attached
14
15
16
17
18
19
as Exhibit A and, by their signature on an appropriate form, attest that they read and took
the time necessary in doing so to understand the summary;
3.
Within two weeks of the date of this Order, all MCSO personnel will file
such attestations with the MCSO, copies of which shall be transmitted to the Monitor. If
such personnel do not report for duty, employment or service within the next two weeks
20
they shall, immediately upon their return to service, read the summary and attest that they
21
have taken the time in doing so to understand it. They shall make such attestation prior to
22
participating in any law enforcement duty or operation;
23
4.
The MCSO will maintain such attestation sheets and provide copies of such
24
attestation sheets to the Monitor together with accompanying rolls of MCSO personnel,
25
civilian employees and volunteers such as posse members or others. The attestation sheet
26
shall include separate spaces for each individual to legibly print their name, rank, and
27
identification number; and to sign their name and date it;
28
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5.
All MCSO command staff holding the rank of sergeant or above will read
the Courts entire 142 page Findings of Fact and Conclusions of Law, and the Courts
October Supplemental Order as amended and attest, by their signature on an appropriate
form, that they read both documents and in doing so took the necessary time to
understand them;
6.
Within two weeks of the date of this Order, all MCSO command staff
holding the rank of sergeant or above will attest that they have read the Courts entire
Findings of Fact and Conclusions of Law and entire October Supplemental Order as
9
10
11
12
13
amended, and that they have taken the time in doing so to understand them. If such
command staff do not report for duty, employment or service within the next two weeks
they shall, immediately upon their return to service, read the Courts Findings of Fact and
Conclusions of Law and entire October Supplemental Order as amended, and attest that
they have taken the time in doing so to understand them. They shall make such attestation
14
15
16
17
18
19
20
21
prior to participating in any law enforcement duty or operation;

7.
The MCSO will maintain such attestation sheets and provide copies of such
attestation sheets to the Monitor together with accompanying rolls of MCSO command
staff with the rank of sergeant or above. The attestation sheet shall include separate
spaces for each individual to legibly print their name, rank, and identification number;
and to sign their name and date it;
8.
The Monitor or his staff shall, at the Monitors discretion, verify
22
compliance with this Enforcement Order. In doing so the Monitor is authorized to
23
question MCSO personnel, randomly or otherwise, to determine their compliance with
24
this Enforcement Order and to ascertain whether their level of knowledge of the Courts
25
orders is consistent with the effort required by the procedure specified above. The
26
Monitor shall inform the parties and the Court of MCSO personnel found not to be in
27
satisfactory compliance;
28
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9.
This Enforcement Order shall not take the place of any training required by
the October Supplemental Order, but may be considered by the Monitor in evaluating the
adequacy of the future instruction to be provided with respect to the Courts specific
orders;
10.
The Monitor shall inform the Court of any MCSO personnel who
mischaracterize its Findings of Fact and Conclusions of law or its October Order as
amended, or who otherwise obstruct the implementation of the Courts October Order as
amended; and,
9
10
11.
The Defendants shall pay any additional cost incurred by the Monitor in
verifying compliance with this Enforcement Order.
11
IT IS FURTHER ORDERED setting a Status Conference for May 7, 2014 at
12
10:00 a.m. in Courtroom 602, Sandra Day OConnor U.S. Federal Courthouse, 401 W.
13
Washington St., Phoenix, Arizona 85003-2151. If this Order has not been fully
14
implemented, Sheriff Arpaios attendance will be required and he may be subject to
15
questioning by the Court.
16
17
18
19
20
21
22
23
24
25
26
27
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Corrective Statement
This statement concerns the federal class action lawsuit, Ortega Melendres v.
Arpaio, a constitutional challenge to conduct by the Maricopa County Sheriffs Office.
There have been several important Court orders in the Ortega Melendres case. First, on
December 26, 2011, the federal district court granted partial summary for the Plaintiff
Class, holding that the MCSO was violating the Fourth Amendment by detaining
individuals based solely on suspicion that they were in the United States without
authorization. Second, on May 24, 2013, the federal district court issued Findings of Fact
and Conclusions of Law, based upon the two-week trial in the summer of 2012. Among
other things, the Court held that the MCSO had violated the Fourteenth Amendment of
the U.S. Constitution by targeting Latinos for traffic stops and had violated the Fourth
Amendment by detaining Latinos without a valid legal justification. On October 2, 2013,
the Court issued a permanent injunction as a remedy for the constitutional violations.
This injunction order includes many changes to MCSO policies and practices, and
appoints an independent monitor to oversee MCSOs compliance with the Courts orders.
The following is a summary of the Courts Findings of Fact and Conclusions of
Law dated May 24, 2013 and the Courts Supplemental Permanent Injunction / Judgment
Order dated October 2, 2013.
This summary shall be distributed to all MCSO personnel to identify and correct
errors and misinformation given by MCSO personnel concerning such Orders.
Specifically, Chiefs Sheridan and Trombi incorrectly stated that the Courts factual basis
for its conclusion that the MCSO violated the Fourteenth Amendment was based solely
on: (a) the conduct of just two or three MCSO deputies that relied on ICE training that
authorized the use of race or ethnicity as one factor among others to determine a persons
immigration status; and (b) the erroneous statement that the Court found that the MCSO
detained Hispanic drivers fourteen (14) seconds longer than non-Hispanic drivers.1 In
fact, these were not findings in the Courts order, and Chiefs Sheridan and Trombi
erroneously mischaracterized the order.
This statement is intended to serve as a summary of the key provisions of these
orders. It is not intended to replace these orders. As such, copies of the aforementioned
orders are available on the MCSO website, at its homepage.
Melendres v. Arpaio: Summary of Findings
1
Testimony by expert Ralph Taylor, Ph.D. for the Plaintiffs in the Melendres trial included
testimony that Hispanic drivers were detained fourteen percent (14%) longer than non-Hispanic
drivers.
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On May 24, 2013, the Court, in a 142-page written order, made the following
findings of fact and conclusions of law:
MCSO Deputies Do Not Have Authority to Enforce Federal Civil Immigration
Law
o The MCSO has no authority to detain people based only on a belief
(whether reasonable suspicion, probable cause, or more) that such
persons are in this country without authorization.
o The MCSO lost authority to enforce the civil administrative aspects of
federal immigration law upon revocation of its 287(g) authority in 2009.
o It is not a violation of state or federal criminal law to be in this country
o The LEAR policy as described by the Court impermissibly required
MCSO deputies to detain persons based only upon suspicion of
unauthorized presence in the United States, without any basis to believe
the person had committed a crime. Further, MCSO deputies
impermissibly used race or ethnicity as an indicator of unlawful
presence when applying the LEAR policy.
o A policy requiring a deputy (1) to detain persons she or he believes only
to be in the country without authorization, (2) to contact MCSO
supervisors, and then (3) to await contact with ICE pending a
determination how to proceed, would result in an unreasonable seizure
under the Fourth Amendment to the Constitution.
o In the absence of a reasonable suspicion that a crime has been
committed, the MCSO lacks authority to engage in a detention of
someone pending contact with ICE.
o The extension of a traffic stop violates the Fourth Amendment
prohibition against unreasonable seizures if the deputy does not have
reasonable suspicion that the individual occupants of the vehicle are
engaging in criminal conduct. Without such additional legal
justification, traffic stops cannot be prolonged beyond the time it
reasonably takes to deal with the traffic violation.
o The MCSO mistakenly believed that state and local law enforcement
officials, even in the absence of 287(g) authority, had the
general/inherent power to investigate and arrest violators of federal civil
immigration violations such as unlawful presence in the United States.
o The MCSO mistakenly instructed its deputies that mere unlawful
presence in the United States was a crime rather than a civil violation.
o The MCSO impermissibly prolonged traffic stops to investigate the
immigration status of the occupants, detaining the individuals for longer
than the amount of time necessary to dispose of the traffic infraction
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(318 of 866)
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that resulted in the stop. The extension of stops in this manner violated
the Fourth Amendment rights of the occupants of the vehicles.
Suspicion of Unauthorized Presence Also Is Not An Adequate Basis for
Detention Under Arizona State Law
o The knowledge that a person is in the country without authorization
does not, without more, provide sufficient reasonable suspicion that a
person has violated Arizona criminal laws such as the Arizona Human
Smuggling Act. The knowledge that a person is in the country without
authorization does not, therefore, by itself justify a Terry stop for
purposes of investigative detention.
o The Arizona Employer Sanctions law does not provide criminal
sanctions against either employers or employees and is not a sufficient
basis on which the MCSO can arrest or conduct Terry stops of either
employers or employees.
The MCSO Impermissibly Used Race or Ethnicity In Making Law
Enforcement Decisions
o The district court found that the MCSO, as a matter of policy and
practice, impermissibly used race or ethnicity in conducting traffic
stops, in violation of the Equal Protection Clause of the Fourteenth
Amendment.
o The use of race or ethnicity as a factor, even as one factor among others,
in arriving at reasonable suspicion or forming probable cause to stop or
investigate persons violates the Fourth Amendment and the right to
equal protection under the Fourteenth Amendment to the Constitution
and Title VI of the Civil Rights Act of 1964. The only exception is
when there is a specific suspect description that includes the race or
ethnicity and other characteristics of the suspect of a particular crime.
o The MCSOs written operational plans and policy descriptions
improperly informed deputies that, in the context of immigration
enforcement, the MCSO could use the ICE indicators which incorrectly
indicated that deputies could consider race or ethnicity as one factor
among others.
o MCSO deputies were improperly instructed regarding investigating
citizenship.
o The consideration of race or ethnicity by MCSO deputies in determining
whether to take a law enforcement action was unconstitutional. This is
true despite any training to the contrary received from ICE.
o ICE did provide erroneous training that race or ethnicity can be
considered as one factor among others in forming reasonable suspicion
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or probable cause about immigration status. But the district court also
found that MCSO had an independent policy to consider race or
ethnicity in making law enforcement decisions, from the planning
criteria for saturation patrols, to individual traffic stops and questioning.
All such policies relying on the use of race or ethnicity are
unconstitutional.
Sheriff Arpaios public statements about the Human Smuggling Unit
(HSU) operations and the saturation patrols signaled to MCSO
deputies that the purpose of those operations and patrols was to arrest
people who were not legally present in the United States. Such
statements may have created the impression both in and out of the
MCSO that considering a persons race or ethnicity when evaluating
whether that person was legally present in the United States was
appropriate and endorsed by the MCSO. Race or ethnicity, including
Latino or Hispanic ancestry or appearance, cannot be used in
forming reasonable suspicion or probable cause.
The MCSO impermissibly used race or ethnicity as one factor in
selecting the locations for at least some day labor operations, smallscale saturation patrols and large-scale saturation patrols.
The MCSO impermissibly used race or ethnicity as a factor in choosing
vehicles to pull over during such operations.
The MCSO impermissibly used race or ethnicity as a factor in
determining whom to investigate and arrest during such operations.
The MCSO was more likely to investigate the identities of Hispanic
passengers than non-Hispanic passengers during small-scale saturation
patrols.
The MCSO appeared to conduct saturation patrols and day laborer
operations in response to citizen complaints, including those with racial
or ethnic statements.
The purpose of the MCSOs large-scale saturation patrols was to
enforce immigration laws. The operations targeted Latinos because
MCSO policy and practice was to use race or ethnicity as an indicator of
unlawful immigration status.
The Court cited to statistics showing that MCSOs practices affected
Latinos. Based upon arrest reports, nearly one-half or more of the
arrests from large-scale saturation patrols were of persons not in the
country legally.
Based upon a surname analysis, 71% of the arrests from large-scale
saturation patrols were of Hispanic persons.
During large-scale patrols, MCSO deputies arrested a disproportionate
number of persons with Hispanic surnames.
(320 of 866)
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Injunctive Relief
Based on the Courts findings, the Court issued several injunctions. MCSO personnel are
enjoined from, meaning MCSO personnel cannot do any of, the following:
1. Detaining, holding or arresting Latino occupants of vehicles in Maricopa County
based on a reasonable belief, without more, that such persons are in the country
2. Following or enforcing LEAR policy, as defined by the Court, against any
Latino occupant of a vehicle in Maricopa County (i.e., holding a person to turn
over to ICE or Border Patrol when no state or federal crime exists to charge that
person).
3. Using race or ethnicity or Latino ancestry as a factor in determining to stop any
vehicle in Maricopa County with a Latino occupant.
4. Using race or ethnicity or Latino ancestry as a factor in making law enforcement
decisions with respect to whether any Latino occupant of a vehicle in Maricopa
County may be in the country without authorization.
5. Detaining Latino occupants of vehicles stopped for traffic violations for a period
longer than reasonably necessary to resolve the traffic violation in the absence of
reasonable suspicion that any of them have committed or are committing a
violation of federal or state criminal law.
6. Detaining, holding or arresting Latino occupants of a vehicle in Maricopa County
for violations of the Arizona Human Smuggling Act without a reasonable basis for
believing that, under all the circumstances, the necessary elements of the crime are
present.
7. Detaining, arresting or holding persons based on a reasonable suspicion that they
are conspiring with their employer to violate the Arizona Employer Sanctions Act.
On October 2, 2013, the Court, in a 59-page written order, ordered the following
supplemental injunctive relief to ensure MCSOs compliance with the Courts May 24,
2013 Order:
The MCSO must revise its policies and procedures in various ways to ensure
that none of the forgoing conduct occurs.
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The MCSO must create an approved template for pre-planned operations that
ensures that they are not conducted in a discriminatory or unconstitutional
manner.
The MCSO must provide additional training in the areas of bias-free policing,
detentions/arrests, and enforcement of immigration-related laws.
The MCSO must provide additional training to supervisors.
The MCSO must collect certain data regarding traffic stops, including the
deputys perceived impression, based upon the deputys best effort, of the race
and ethnicity of the driver and passengers after every stop without asking such
persons about their race or ethnicity.
The MCSO must review and analyze the collected traffic stop data.
The MCSO must eventually ensure that all traffic stops are recorded.
The MCSO must implement and provide training on an early identification
system (EIS) to identify and respond to potentially problematic behaviors,
including racial profiling, unlawful detentions and arrests, and improper
enforcement of immigration-related laws.
The MCSO shall ensure that no more than 12 deputies are supervised by a
single supervisor and implement additional procedures for supervisors.
The MCSO must ensure that all complaints regarding misconduct are tracked
and investigated.
A monitor shall be appointed by the Court to make recommendations to the
MCSO and the Court regarding the MCSOs compliance with the Courts
orders.
It is imperative that every employee of MCSO comply with all of the Courts
orders, including the requirement that deputies record data about their traffic stops.
Recording Racial Data
On October 18 and 19, 2013, the MCSO conducted a saturation patrol. In a
briefing prior to that patrol, two misrepresentations were made by MCSO leadership.
Chief Sheridan stated that the Court ruled against MCSO on the Fourteenth Amendment
claim because only three deputies used race or ethnicity when making law enforcement
decisions. That was not accurate. The Court made no such finding.
Chief Sheridan also stated that the Court ruled against MCSO on the Fourth
Amendment claim because it stopped Hispanic drivers in cars 14 seconds longer than
non-Hispanic drivers. That also was not accurate. The Court made no such finding.
This Corrective Statement intends to correct those misstatements, and any other
statements regarding the contents of the Courts Order dated May 24, 2013 that were not
accurate.
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In addition, Chief Sheridan made comments about the new requirement that
MCSO deputies record their subjective assessment of drivers/passengers race or
ethnicity, amongst other data, during traffic stops. Specifically, the Chief Deputy said it
could be difficult for deputies to accurately identify such information and stated that
deputies could use the unknown field in recording race or ethnicity.
In order to correct any possible misimpression from Chief Sheridans statement,
and so it is clear, the Courts Order requires deputies to make their best assessment of the
race or ethnicity of each individual stopped. Although a deputy, at times, may not be
absolutely certain of an individuals race or ethnicity, MCSO deputies are certainly
capable of making informed decisions regarding the apparent race or ethnicity of
individuals they encounter.
Deputies must, in all cases, record what they perceive to be the race or ethnicity of
the individual(s) as accurately as possible on the contact forms. The unknown field
should be used only in the limited circumstances where a deputy cannot determine what
he or she (the deputy) perceives as the race or ethnicity of an individual based on all
available information to him or her at the time.
MCSOs Appeal
The MCSO has filed an appeal. However, MCSO is not appealing all of the
Courts findings that the MCSO violated the United States Constitution. Based on the
evidence presented at trial, the Court found that the MCSO has violated the Fourth and
Fourteenth Amendment rights of Latinos because the MCSO used race or ethnicity in
conducting traffic stops. The MCSO is appealing the Courts order only as far as it
covers traffic stops outside of saturation patrols. The MCSO is not appealing the Courts
findings that MCSO violated the constitutional rights of Latinos during saturation patrols.
That conclusion of the Court will not be altered by the appeal even if the MCSO prevails
on that appeal.
The MCSO is also appealing the scope of the injunctions put in place by the Court.
Specifically, the MCSO is arguing that the Court's injunction goes too far in regulating
regular patrols. Regardless of the appeal, the Court's injunction is the law and must
be obeyed during all traffic stops.
While the MCSO disagrees with some of the Courts findings, the Courts Orders
are the law. All MCSO personnel are required to fully comply with the Courts Orders.
(323 of 866)
EXHIBIT 9
(324 of 866)
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situated; et al.
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v.
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County, AZ; et al.
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ORDER
Plaintiffs,
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Defendants.
Pending before the Court is Defendants Request to Clarify/Modify Order of April
17, 2014. Within the limitations set forth below, that request is granted.
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In its motion, Defendant requests that this Court clarify or modify its April 17,
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2014 Enforcement Order, Doc. 680, (Enforcement Order) to make it inapplicable to
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the MCSO personnel on the jail side as well as to some MCSO personnel on what it
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denominates as being on the sworn side. It asserts that, on the jail side, the order
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applies to 1,815 detention officers and 782 jail volunteers such as religious volunteers
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and part-time teachers.
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some of whom, it avows, are not involved in street enforcement operations. It cites to
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Aviation and Helicopter posse members who are not involved in making traffic stops, as
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well as Advisory and Technology Posse members whose duties entail only fund-raising
27
and administrative support. It thus requests that the Court limit its order to those
28
volunteers who are or might become engaged in making traffic stops.
As to the sworn side the MCSO has 1,750 posse members
(325 of 866)
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The Court assumes the good faith effort by the MCSO to exempt from the terms of
the Enforcement Order, those who, as a practical matter, have nothing to do with it. The
Court further concurs that persons who have no connection with MCSO other than that
they volunteer within MCSO jails as part-time teachers or religious volunteers have little
actual connection with MCSO or the implementation of this Courts previous orders.
Therefore, upon Sheriff Arpaios certification of a list individually identifying persons
whose only connection with MCSO is that they volunteer services within MCSO jail
facilities, the MCSO is exempted from obtaining such volunteers compliance with the
Courts enforcement order.
Nevertheless, it appears that large numbers of the Sheriffs posse are involved in
law enforcement or support of such activities. As to them, and the Sheriffs jail side
personnel the grounds of distinction suggested by the MCSO for the remaining
exemptions it proposes are not sufficiently workable as stated to give rise to a meaningful
ability by this Court to ensure MCSOs compliance with its enforcement orders. Nor are
they sufficient to ensure that MCSO personnel subject to this Courts orders, have
received a clear understanding of the Courts order. Nor are they sufficient to prevent the
MCSOs misleading public statements, made by MCSO personnel who have assignments
over the jail or otherwise, from being misunderstood by MCSO personnel who are
involved in the operations that are subject to the Courts injunction. To obtain an
exemption for any such persons, therefore, the Sheriff must personally provide the
specific and individualized certification as further detailed below.
First, the Defendants request that the Courts Enforcement Order be limited to
those volunteer personnel who are or might become engaged in making traffic stops is
insufficient to cover the scope of the Injunctions in this case The certified Plaintiff class
in this case is All Latino persons who, since January 2007, have been or will be in the
future, stopped, detained, questioned or searched by MCSO agents while driving or
sitting in a vehicle on a public roadway or parking area in Maricopa County, Arizona.
(Doc. 494 at 37.)
Aviation and helicopters posse members are involved in law
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enforcement operations and as such could conceivably be involved in operations that

would directly involve members of the Plaintiff class. Further, to the extent that the
Courts injunctions pertain not only to traffic stops, but to Latino persons who are
detained by MCSO agents in vehicles, it seems to the Court that depending on the facts,
the injunctions could conceivably apply to MCSO personnel on the jail side. (For
purposes of illustration, for example, it is not clear to the Court that personnel on the jail
side were not involved in transporting detainees to ICE during the saturation patrols).
Even if the injunctions would not apply to jail personnel in the broad run of cases, they
do apply more broadly than merely to those MCSO personnel who are or might become
engaged in making traffic stops. The Court thus declines to limit the dissemination of
the description of the Courts Order to such persons whether volunteer or employed staff.
Further, it is the Courts understanding that it is a practice for MCSO personnel to
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supplement their income by obtaining off-duty employment as security, traffic control, or

other enforcement personnel during off-duty hours, during which service they still have
access, and utilize MCSO facilities, uniforms, vehicles, weapons, and other resources,
and in which capacity they may also have involvement with members of the Plaintiff
class. The Court has no assurance that MCSO personnel that engage in such activities are
only the sworn personnel as opposed to the jail personnel or that jail personnel are
not otherwise engaged in off-duty activities in which they benefit from their MCSO
status, use MCSO facilities, and yet may have contact with members of the Plaintiff
class.
Further, there seems to be, at least at the supervisory level, responsibilities that
combine jail operations and sworn personnel. It is the Courts recollection, for example,
that Deputy Chief Sheridan, Chief Trombi, and Chief McIntyre either in the past or
presently have all been or are currently involved with the operations of the MCSO jails.
To the extent that their current assignment may include the operation of the jails, they are
not excluded from the operation of the enforcement order. It is further not apparent to the
Court that service within the jail side of the MCSO precludes service within the sworn
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operations side of the MCSO. Nor is it clear that there is such a precise dichotomy within
the MCSO administration which cleanly separates such operations among MCSO
supervisory, staff or support personnel. It is not clear to the Court to what extent MCSO
supervisory administrative or support personnel may have responsibilities that include
both jail operations and law enforcement operations. Further, it is not clear, for reasons
stated above, that MCSO jail staff never temporarily assume law enforcement functions,
or are ineligible to assume such functions as a matter of promotion or otherwise.
Even if some jail personnel are never involved with operations that pertain to
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members of the Plaintiff class, certainly the statements of MCSO command staff who
may primarily have responsibility for the jails, may create confusion among the MCSO
sworn deputies concerning their operations. For example, the Plaintiffs note that Chief
McIntyre, who apparently during the course of this lawsuit had the title of Deputy Chief
Custody Bureau One and whose responsibilities apparently include or included the
management of two MCSO jails and its central intake, has recently given a press
interview in which he has stated that [t]here is no equivocation here. Despite the fact of
reports in the media, there is no court finding that the sheriffs office racially profiled.
See
http://kjzz.org/content/2641/term-racial-profiling-sparks-language-debate-mcso-
lawsuit.1
This statement sows confusion rather than clarity. In its Findings of Fact and
Conclusions of Law, this Court set forth a number of instances, instructions and policies
in which the MCSO unconstitutionally and inappropriately considered race as one factor
among others in making law enforcement decisions. Nevertheless, since the Court made
these findings, MCSO and its command staff, including Sheriff Arpaio, have stated, both
in public statements and in training/briefing to deputies, that the MCSO never engaged in
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Defendants in their Reply, indicate that Chief McIntyre has other responsibilities.
The Court is not sure whether the responsibilities set forth in the Reply constitute Chief
McIntyres sole responsibilities. But, even if so, that does not change the nature of the
Courts concern with the categories suggested by the Defendant upon which the Court
should mandate compliance with its Enforcement Order as they may apply to MCSO
command staff that operate the jails.
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(328 of 866)
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racial profiling and/or that the Court never so found. Such statements are misleading at
best.
As this Court has previously stated, it has no present intention of attempting to
restrict the MCSOs public statements, even if, in its assessment, those statements are
inaccurate and misleading. Nevertheless, to the extent that such misstatements stand
without correction to MCSO personnel, or are made directly to them, they create
confusion in the very personnel who must understand the Courts Order to appropriately
implement it. The MCSO is a single agency. Misunderstandings that affect parts of the
agency that are the result of misstatements made by the Sheriff and others in command,
affect the understanding of the entire agency.
Based on the testimony of Chief Trombi,
misimpressions within the MCSO are widespread and rampant.
They result from
communications among unspecified MCSO staff and others. In his attempt to identify
the source of his misstatements, Chief Trombi specifically identified deputies and
office staff members and just general conversations around the office and in other
areas in which he participated involving other MCSO personnel:
A. I thought about that, and I cannot, in all honesty, tell you who
specifically. I can tell you, sir, that I heard those incorrect statements that I
made in conversation in -- in meetings or in settings with others within the
Sheriff's Office that -- that those statements over the last, I suppose, six
months kind of permeated my brain, unfortunately, and stuck with me, and
unfortunately, and regrettably, I used those.
Doc. 672 at p. 11
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A. I don't know if meetings are accurate. At times when I might

have been together with other deputies or office staff members that we were
just talking and those incorrect statements were used, I retained them and
then used them.
Id. at p. 12
A. I wish I could honestly tell you the group, the command staff, or
any -- any group that those statements were made. It's just general
conversation that I've had around the office and in different areas.
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Id. at p. 13
Q. I appreciate the specification. Whether or not you heard Chief
Deputy Sheridan say it, you had heard it a number of times and you can't be
specific because you've heard it so many times at other places throughout
the MCSO.
A. That is correct, sir.
Q. All right. And you can't give me a specific idea where you got
that -- from any specific conversation about that 14 seconds, other than that
just seemed to be -- and again, I don't want to put words in your mouth, so
correct me -- but that was sort of the general received knowledge that's over
at the MCSO.
A. It was my general perceived knowledge, yes.
Q. All right. And you obtained that from others at the MCSO,
because you didn't come up with it on your -- on your own, correct?
A. I did not, correct.
Q. And was that the view that seems to -- seemed to generally
prevail, as far as you're aware, over at the MCSO?
A. Yes.
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Id. at p. 15
Q. All right. Do you have any recollection where you got the
characterization that that decision was based only upon the action of two
officers?
A. Your Honor, both of those statements that I made were usually
hand in hand, if you will, so not knowing where I specifically heard my
first incorrect statement regarding 14 seconds longer, I can no more tell you
where the other usually hand-in-hand statement of and two deputies were
found to have used race when making the determination whether or not to
arrest somebody, they were -- they were joined together usually in that
conversation or where I had heard those things.
Q. All right. And is it fair to say that if they are joined together,
you'd heard it from a number of different sources throughout the MCSO
over the six-month period that preceded your participation in the
community meeting a few weeks ago?
A. Yes, sir.
Q. All right. And you -- you couldn't identify any particular source
but that it was many sources, is that fair?
A. Several, many, yes, sir. I can't argue -- I can't say one way or the other.
Id. at p. 21
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The Court certainly does not wish to create a category of persons within the
MCSO who can mischaracterize the Courts statements to others within the MCSO with
impunity. The Courts best remedy to such situations, without restricting the ability of
the Sheriff or members of his command staff to publicly speak, is to make sure that all
MCSO personnel have direct familiarity with its order.
It is not clear to the Court that those who principally participate in the jail
operations or have support, administrative or supervisory responsibilities within the
MCSO have not been a part and will not continue to be a part of public or MCSO
communications or in-office discussions in which the Courts Orders may be
mischaracterized, and which may, thus, influence the understanding of those who have
responsibility to implement those orders.
To the extent that the MCSO continues to make public statements that
mischaracterize the Courts orders, as Chief McIntyres statements indicate it continues
to do, the Court does not wish to artificially limit the extent to which the misimpressions
sown by such statements within MCSO personnel may be corrected by an appropriate
understanding.
Nevertheless, with the reservations expressed above, the Court does not wish to
require that MCSO obtain the compliance certification set forth in its Enforcement Order
from persons that could, in no way, affect the implementation of this Courts Order.
Therefore, to the extent that the Sheriff sets forth a list of persons in which he
individually identifies by name, position, identification number if any, and employment
status, and if he personally certifies, by his signature, that such persons:
(1) are never engaged in official or off-duty law-enforcement related functions that
impact members of the Plaintiff class, and
(2) he does not anticipate placing such persons in a position that could possibly
impact members of the Plaintiff class and they are not authorized to participate in an offduty capacity in such functions; and
(3) such persons have not received instruction or training from MCSO personnel
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about the Courts Order; and

(4) such persons have not received or participated in, nor will they receive or
participate in any MCSO or workplace communications that misrepresent the courts
order; and
(5) such persons will not make public statements that can be attributed to the
MCSO regarding the Courts Order which misstate its terms.
Then the MCSO is excused, with respect to such persons, from individually
certifying compliance with the terms of this Courts Enforcement Order. Within his
discretion, the Monitor or his staff is authorized to investigate whether the persons so
designated by the Sheriff fit the requirements set forth in this clarifying order.
IT IS THEREFORE ORDERED:
1.
Excusing the MCSO from certifying compliance with this Courts
Enforcement Order of those persons who Sheriff Arpaio individually lists and certified
have no connection with MCSO other than that they volunteer within MCSO jails as parttime teachers or religious volunteers.
2.
Excusing the MCSO from certifying compliance with this Courts
Enforcement Order of such additional persons who Sheriff Arpaio individually identifies
by name, position, identification number if any, and employment status, and if he
personally certifies, by his signature, that such persons:
(a) are not engaged in official or off-duty
law-enforcement related
functions that impact members of the Plaintiff class, and

(b) he does not anticipate placing such persons in a position that could
possibly impact members of the Plaintiff class and they are not authorized to participate
in an off-duty capacity in such functions; and
(c) such persons have not received instruction or training from MCSO
personnel about the Courts Order; and
(d) such persons have not received or participated in, nor will they receive
or participate in any MCSO or workplace communications that misrepresent the Courts
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Order; and
(e) such persons will not make public statements that can be attributed to
the MCSO regarding the Courts Order which misstate its terms.
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EXHIBIT 10
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1
2
3
4
5
Cecillia D. Wang (Pro Hac Vice)

cwang@aclu.org
ACLU Foundation
39 Drumm Street
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
6
7
8
9
10
Daniel J. Pochoda
dpochoda@acluaz.org
ACLU Foundation of Arizona
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
11
12
Attorneys for Plaintiffs (Additional attorneys

for Plaintiffs listed on next page)
13
14

15
16
17
Manuel de Jesus Ortega Melendres,

et al.,
Plaintiffs,
18
19
v.
20
21
22
23
24
25
26
27
28

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
CV-07-2513-PHX-GMS
PLAINTIFFS MEMORANDUM OF
LAW AND FACTS RE CONTEMPT
PROCEEDINGS AND REQUEST
FOR ORDER TO SHOW CAUSE
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Additional Attorneys for Plaintiffs:
2
3
4
5
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8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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28
Andre I. Segura (Pro Hac Vice)

asegura@aclu.org
ACLU Foundation
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
Jorge M. Castillo (Pro Hac Vice)

Mexican American Legal Defense and
Educational Fund
Los Angeles, CA 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
Anne Lai (Pro Hac Vice)

alai@law.uci.edu
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
Stanley Young (Pro Hac Vice)

syoung@cov.com
Hyun S. Byun (Pro Hac Vice)
hbyun@cov.com
Covington & Burling LLP
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
Priscilla G. Dodson (Pro Hac Vice)

pdodson@cov.com
One City Center, 850 Tenth Street, NW
Washington, DC 20001
Telephone: (202) 662-5996
Facsimile: (202) 778-5996
Tammy Albarran (Pro Hac Vice)

talbarran@cov.com
One Front Street
Telephone: (415) 591-7066
Facsimile: (415) 955-6566
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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................... 1
ARGUMENT .................................................................................................................. 1
I.
Defendants Committed Contempt by Violating the Courts

December 23, 2011, Preliminary Injunction ............................................. 1
A.
Defendants In-Court Admissions and Deposition

Testimony Establish That They Failed to Comply with the
Preliminary Injunction ................................................................... 2
B.
Defendants Knowingly Continued Their Policy of

Detaining Persons Solely Based on Unlawful Presence
After Such Conduct Was Ruled Unlawful and Enjoined .............. 4
6
7
8
9
II.
Defendants Committed Contempt by Violating This Courts May

14, 2014, Order Concerning Collection of Video Evidence ..................... 9
III.
Defendants Numerous Acts of Defiance Support the Need for

Serious Sanctions To Compensate Plaintiffs and To Ensure Future
Compliance. ............................................................................................ 12
IV.
The Court Should Begin With Limited and Expedited Document

Discovery and an Evidentiary Hearing on Civil Contempt Against
Defendants and Individual MCSO Personnel ......................................... 17
V.
16
Court Ordered Remedies Are Necessary To Compensate the

Plaintiffs and To Secure Future Compliance with Court Orders ............ 18
17
A.
The Court Should Order Defendants To Assist in the

Identification of Victims of Defendants Noncompliance
with the December 23, 2011, Preliminary Injunction, and
To Pay Compensation to Individual Victims ............................... 19
B.
The Court Should Order Compensation to the Plaintiff

Class as a Whole .......................................................................... 21
C.
The Court Should Order Injunctive Relief Provisions To

Ensure That Defendants Violations Stop, and That Future
Violations Do Not Occur ............................................................. 22
D.
The Court Should Order Attorneys Fees and Costs.................... 24
10
11
12
13
14
15
18
19
20
21
22
23
24
CONCLUSION ............................................................................................................. 25
25
26
27
28
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TABLE OF AUTHORITIES
1
2
Cases
Ahearn ex rel. Natl Labor Relations Bd. v. Intl Longshore and Warehouse Union,
721 F.3d 1122 (9th Cir. 2013) ................................................................................... 20
5
6
Commodity Futures Trading Commn v. Premex, Inc., 655 F.2d 779 (7th Cir. 1981) . 25
F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) ......................................... 12
Falstaff Brewing Corp. v. Miller Brewing Corp., 702 F.2d 770 (9th Cir. 1983)
....................................................................................................................... 19, 22, 24
10
11
12
13
14
Intl Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994) ............... 20, 22, 25
Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert. denied, 384 U.S. 929
(1966)......................................................................................................................... 19
Natl Labor Relations Bd. v. Local 825, Intl Union of Operating Engineers, 430 F.2d
15
16
1225 (3d Cir. 1970) ................................................................................................... 25
17
Perry v. ODonnell, 759 F.2d 702 (9th Cir. 1985) ........................................................ 24
18
Peterson v. Highland Music, Inc., 140 F.3d 1313 (9th Cir. 1998)................................ 17
19
Stone v. City & Cnty. of San Francisco, 968 F.2d 850 (9th Cir. 1992), as amended on
20
21
denial of rehg (Aug. 25, 1992) ............................................................................. 2, 12
22
United States v. Ayres, 166 F.3d 991 (9th Cir. 1999) ................................................... 17
23
Whittaker Corp. v. Execuair Corp., 953 F.2d 510 (9th Cir. 1992) ................... 17, 19, 22
24
Xcentric Ventures, LLC v. Stanley, No. 2:07-cv-00954- GMS, 2009 WL 113563
25
26
(D. Ariz. Jan. 16, 2009) ............................................................................................. 12
27
Statutes
28
Fed. R. Civ. P. 37(b); .................................................................................................... 24

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Plaintiffs respectfully submit the following memorandum of law and facts in
support of the initiation of civil contempt proceedings against Defendants and certain
other command staff of the Maricopa County Sheriffs Office (MCSO).
INTRODUCTION
Though Defendants have not yet disclosed numerous documents that may
support a finding of contempt of the Courts orders, there is already ample evidence on
which this Court could find Defendants in civil contempt for violating two separate
orders of the Court.
First, Defendants admit that they failed to take steps to comply with the Courts
10
December 23, 2011, preliminary injunction, a failure which predictably led to repeated
11
violations of that order. Second, and also by their own admission, Defendants directly
12
contravened this Courts May 14, 2014, order directing them to consult with the
13
Monitor to formulate a plan to quietly collect deputies self-recorded videos of traffic
14
stops, instead acting unilaterally and in a manner that may have led to the destruction
15
of evidence, and then misleading the Monitor as to their actions.
16
Plaintiffs therefore request that the Court initiate a civil contempt proceeding to
17
expeditiously vindicate the rights of the Plaintiff Class and compensate those injured
18
by the contempt. And because there appears already to be evidence supporting a
19
finding of criminal contempt, Plaintiffs also submit that the Court should refer these
20
matters for criminal contempt proceedings following the civil contempt proceedings.
21
22
23
24
25
26
27
28
ARGUMENT
I.
Defendants Committed Contempt by Violating the Courts December 23,

2011, Preliminary Injunction
The Courts preliminary injunction was entered on December 23, 2011. It
required changes in the widespread unconstitutional practices of the MCSO by

prohibiting MCSO and all of its officers . . . from detaining any person based only on
knowledge or reasonable belief, without more, that the person is unlawfully present
within the United States. Doc. 494 at 40, 5, affd by Ortega Melendres v. Arpaio,
1
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695 F.3d 990 (9th Cir. 2012). Defendants committed civil contempt because, far from
taking the legally required all reasonable steps within their power to insure
compliance with the courts order[,] Stone v. City & Cnty. of San Francisco, 968 F.2d
850, 856 (9th Cir. 1992), as amended on denial of rehg (Aug. 25, 1992) (internal
quotations omitted), Defendants, by their own admission, failed to take the most basic
steps to comply with the Courts order, and apparently never intended to comply.
7
8
A. Defendants In-Court Admissions and Deposition Testimony Establish

That They Failed to Comply with the Preliminary Injunction
On November 20, 2014, Defendants revealed that they never transmitted the
10
Courts December 2011 preliminary injunction order to relevant MCSO personnel,
11
including deputies in the Human Smuggling Unit (HSU). Transcript of Nov. 20,
12
2014 Hearing (Nov. 20 Tr.) at 67 (MCSO has concluded, that this Courts order
13
was not communicated to the line troops in the HSU.), unsealed by Doc. 811. HSU
14
was the principal unit charged with the very activities enjoined. Defendants have
15
further admitted that news of the preliminary injunction was communicated by defense
16
counsel to three top commanders and the Lieutenant overseeing the HSU at MCSO.
17
Nov. 20 Tr. at 67-68 (We have identified an e-mail from Mr. Casey to Brian Sands,
18
Chief Brian Sands, Chief Jack MacIntyre, Chief Jerry Sheridan, and Lieutenant
19
Sousa.). And yet, Defendants admit, not one of those commanders communicated the
20
Courts preliminary injunction order to MCSO personnel.
21
The sworn testimony of command staff in a related matter, United States v.
22
Maricopa County, No. 2:12-cv-00981-ROS (D. Ariz. filed May 10, 2012),
23
demonstrates that the commanders had the responsibility to communicate the Courts
24
order, and failed to do so. In depositions in the United States v. Maricopa County
25
case, Sheriff Arpaio, Chief Deputy Jerry Sheridan, and Executive Chief (Ret.) Brian
26
Sands all testified that they took no action to communicate the Courts preliminary
27
injunction order to MCSO rank and file or otherwise ensure that those responsible for
28
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interacting with civilians in the implementation of MCSO policy were aware of and
complied with the preliminary injunction.
Sheriff Arpaio testified that he was aware of the preliminary injunction when
the Court issued it but did not recall doing anything to ensure that MCSO complied
with the order. See Declaration of Anne Lai (Lai Decl.), Ex. B (Arpaio Dep.) at
65:13-68:18; see generally id. at 59:5-73:17. Chief Deputy Sheridan testified that it
would have been his responsibility as Chief Deputy to inform MCSO officers about
the preliminary injunction, see Lai Decl. Ex. D (Sheridan Dep.) at 122:13-18, but
that he assumed that Executive Chief Sands would take care of it, id. at 123:22-125:7.
10
Sheridan admitted that he did not communicate with Sands about this purported
11
delegation of responsibility, however, and did not know whether Sands understood he
12
had any responsibility to relay the Courts preliminary injunction to deputies. Id. at
13
124:14-125:7. Sands, on his part, responded to a question about whether he had
14
informed his subordinates about the Courts preliminary injunction by stating, Our
15
attorney, as I remember, handled all of that with our staff. See Lai Decl. Ex. C
16
(Sands Dep.) at 183:7-185:15. Lieutenant Sousa could not recall any electronic
17
bulletin board posting (or Briefing Board) being issued after the preliminary
18
injunction order. See Lai Decl. Ex. F (Sousa Dep.) at 178:6-23. Deputy Chief Jack
19
MacIntyre should also have taken responsibility for communicating the preliminary
20
injunction, as he is an attorney who works with outside counsel defending lawsuits
21
against Defendants, see Doc. 235-1 1-2, and previously was held responsible for
22
failing to communicate a document retention notice in this litigation, leading to the
23
spoliation of evidence and sanctions against Defendants, see Doc. 261 at 3.
24
25
26
27
28
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2
In sum, Defendants own admissions establish that they took no stepsmuch

less the required all reasonable stepsto follow this Courts clear order.1
3
4
B. Defendants Knowingly Continued Their Policy of Detaining Persons

Solely Based on Unlawful Presence After Such Conduct Was Ruled
Unlawful and Enjoined
Since Defendants took no steps to implement and to obey the preliminary
injunction, MCSO continued to detain persons solely based on unlawful presence in
direct violation of the Courts order. See Doc. 494 at 40, 5 (prohibiting MCSO and
all of its officers . . . from detaining any person based only on knowledge or reasonable
belief, without more, that the person is unlawfully present within the United States).
10
As set out below, Sheriff Arpaios public statements as to specific MCSO operations
11
reveal that he was not only aware of the continued use of the LEAR policy, but sought
12
to ensure that individuals held only on suspicion of unlawful presence were not
13
released. Sheriff Arpaio directed that if ICE refused to accept a person detained by
14
MCSO solely under the LEAR protocol, MCSO deputies should retain custody of that
15
person and attempt to transfer that person to the custody of U.S. Border Patrol. The
16
continued detention of individuals solely on the basis of suspected unlawful presence
17
is in clear violation of this Courts preliminary injunction.
18
As evidence disclosed thus far establishes, MCSO repeatedly detained persons
19
based solely on unlawful presence, after the Courts preliminary injunction prohibiting
20
that practice. While Plaintiffs have not had the opportunity to determine the full scope
21
or timeframe of the violations, Plaintiffs are aware of at least the following four
22
incidents in which individuals were held unlawfully on this basis alone. Given that
23
24
25
26
27
The above deposition testimony also establishes that Defendants failed to inform any
patrol officers of the preliminary injunction, see Arpaio Dep. 65:13-68:18; Sheridan
Dep. 122:13-18, 123:22-125:7; Sands Dep. 183:7-185:15; Sousa Dep. 178:6-23, not
merely that they failed to inform HSU officers, as Defendants admitted in court on
November 20, 2014, see Nov. 20 Tr. at 67.
28
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MCSO has maintained an affirmative policy of detaining individuals based on
suspected unlawful presence alone, it is likely that there have been other similar
incidents yet to be uncovered.
First, on September 20, 2012, MCSO deputies detained five suspected illegal
aliens. See Declaration of Andre Segura (Segura Decl.), Ex. A at A3-A5 (News
Release, MCSO, ICE Refuses to Accept Illegal Aliens from Sheriffs Deputies During
Human Smuggling Operation, Sept. 21, 2012). The MCSO deputies detained the
suspects and summoned HSU officers to interview them. Id. at A3. The HSU officers
arrested three of them on human smuggling charges. Id. at A3-A4. The MCSO
10
deputies then continued to detain the two remaining individualswho were not
11
charged with any crimein order to transfer them to ICE custody. Id. MCSOs press
12
release states that the only basis for the detention of the two remaining individuals was
13
MCSOs belief that they were unlawfully present in the United States. See id. at A4
14
(Sheriffs detectives were unable to gather enough evidence on the remaining two
15
suspects to charge them with a state charge of human smuggling and attempted to turn
16
the suspects over to ICE as has been the practice during the last six years.). This
17
detention plainly violated the preliminary injunction.
18
The press release further states that the LEAR policy had been the practice
19
during the last six years, thus indicating that it had not been altered in response to the
20
preliminary injunction. See id. at A4. It is clear that MCSO considered the detentions
21
a routine application of policy. What made the operation noteworthy to MCSO was
22
that ICE refused to take the suspects. Id. at A3. The press release also reveals that
23
Sheriff Arpaio had been actively considering the possibility that ICE might cease to
24
accept alleged undocumented immigrants from MCSO in this manner, and had devised
25
a back up plan to turn them over to the Border Patrol instead. Id. at A4 (I expected
26
that it [ICEs refusal] would happen eventually, so I had a back up plan in place which
27
was to take these illegal immigrants not accepted by ICE to the Border Patrol, Sheriff
28
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Arpaio said.). In other words, Sheriff Arpaio was well aware that MCSO was
continuing to implement the LEAR policy even though, as he has admitted in
deposition testimony in the United States case, he was aware of this Courts
preliminary injunction at the time it issued (see supra at 3). The September 21, 2012,
press release closes with the Sheriffs announcement that he would continue his
immigration detention policy: Regardless of the Obama Administration[]s policy, I
am going to continue to enforce all of the illegal immigration laws. Id. at A4-A5.
Second, on September 26, 2012, MCSO again detained individuals based on
civil immigration violations alone, this time in the course of a worksite raid seeking
10
suspects believed to be using false identification in employment. See Lai Decl. Ex. A
11
(Brockman Dep.) at 225:23-235:4; Lai Decl. Ex. E (Almanza Dep.) at 218:7-
12
223:24; Lai Decl. Ex. G (Jakowinicz Dep.) at 150:8-154:3; Lai Decl. Ex. H; Lai
13
Decl. Ex. I. During the operation, MCSO made a traffic stop of a vehicle that was
14
leaving the site. Brockman Dep. 233:11-23. MCSO determined that two of the
15
occupants were not current employees and therefore that no state charges could be
16
brought against them. Id. at 234:11-20. MCSO then detained the occupants solely on
17
suspicion that they were unlawfully present in the United States, in violation of the
18
preliminary injunction. See id.; id. at 229:17-18. As with the September 20, 2012
19
detentions, this was a typical application of MCSO policy. See id. at 234:19-20 (We
20
did what we normally [did], which was to call ICE ERO or DRO.); Jakowinicz Dep.
21
153:10-22 (it was protocol at the time that when a person admitted to being unlawfully
22
present, HSU would detain them and call ICE). After ICE declined to take the
23
individuals into custody, MCSO called Border Patrol and then had a couple posse
24
units drive the detainees to the Border Patrol office south of Gila Bend, see Brockman
25
Dep. 234:19-22, 234:23-235:1, a distance of approximately 66.5 miles.
26
27
MCSO issued a press release about the incident the next day, noting Sheriff
Arpaios personal role: [ICE] refused to arrest two illegal aliens that were looking for
28
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work while deputies were investigating the establishment. Arpaio refused to allow the
suspected illegal aliens to be released into the streets and ordered the deputies to
transport these two suspects to the United States Border Patrol. See Segura Decl. Ex.
A at A6-A7 (News Release, MCSO, Sheriffs Deputies Execute Search Warrant at
Construction Company: Criminal Employment Investigation Nets 17 Arrests of
Suspected Illegal Aliens, Sept. 27, 2012). The conduct described in the press release
violated the preliminary injunction and the U.S. Constitution.
8
9
Third, on October 8, 2012, HSU officers stopped a vehicle with two men and
again detained them based solely on suspected civil immigration violations. See id. at
10
A8 (News Release, MCSO, 2nd Time ICE Refuses to Accept Illegal Alien From
11
Sheriffs Deputies Since September, Oct. 9, 2012). The driver was arrested on a state-
12
law charge of operating a motor vehicle without a license. Id. Meanwhile, MCSO
13
maintained custody of the passenger and attempted to turn him over to ICE. Id. After
14
ICE refused to take the passenger, MCSO transported him to the Border Patrol office
15
in Casa Grande. Id. Sheriff Arpaio is quoted as saying, My back up plan is still in
16
place and we will continue to take these illegal aliens not accepted by ICE to the
17
Border Patrol. The press release concludes: [t]his is the 82nd arrest made over the
18
last month. Id.
19
In each of these three incidences, MCSO kept the individuals in custody in
20
violation of the Courts preliminary injunction during the time it took (a) to
21
communicate with ICE, (b) to await ICEs decision not to take custody, (c) to
22
subsequently communicate with Border Patrol, and (d) to transport the individuals to
23
Border Patrol custody.
24
25
26
27
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Fourth, although Plaintiffs notified Defendants of the problematic nature of
these stops,2 Defendants apparently nevertheless continued to detain individuals
unlawfully on the basis of their immigration status. On November 1, 2012, MCSO
officers engaged in what Defendants have referred to as the Korean stop during a
status conference before this Court. See Nov. 20 Tr. at 67. The documents detailing
this stop are under seal, but Defendants have indicated in an unsealed portion of a
court proceeding that the stop occurred during an immigration interdiction patrol and
that MCSO deputies detained persons on suspicion of unlawful presence, in violation
of the preliminary injunction. Id.
10
As discussed above, there are likely other incidents of violations not known to
11
Plaintiffs. In sum, well after December 23, 2011, Defendants policy of detaining
12
undocumented immigrants based on their immigration status remained wholly intact
13
and was knowingly endorsed, if not personally directed, by Sheriff Arpaio. The only
14
apparent change after the Courts preliminary injunction order was that pursuant to the
15
Sheriffs new directive, if ICE refused to take individuals held solely on suspected
16
17
18
19
20
21
22
23
24
25
26
27
On October 11, 2012, Plaintiffs sent Defendants a letter expressing serious concerns
about the September 20, September 26, and October 8, 2012 events. See Segura Decl.
Ex. A at A1-A2. On October 18, 2012, Defendants responded, insisting that these
events did not constitute violations of the preliminary injunction, apparently because
U.S. Border Patrol had, in response to MCSOs calls, directed MCSO to deliver the
already detained persons to a Border Patrol station or, in the alternative in one
instance, to hold them for transport. See Segura Decl. Ex. B. But this course of action,
which necessitates detaining an individual pending an inquiry to federal authorities
based on nothing more than suspected civil immigration violations, did in fact violate
the Courts injunction. As this Court subsequently found, the LEAR policy that
requires a deputy to (1) to detain persons she or he believes only to be in the country
without authorization, (2) to contact MCSO supervisors, and then (3) to await contact
with [federal officials] pending a determination how to proceed, results in an
unreasonable seizure under the Fourth Amendment and violates the Courts
preliminary injunction. Doc. 579, May 24, 2013 Findings of Fact and Conclusions of
Law, 4, 113-14; see also id. at 114 (The Court further concludes, as a matter of law,
that the MCSO has violated the explicit terms of this Courts preliminary injunction set
forth in its December 23, 2011 order because the MCSO continues to follow the LEAR
policy and the LEAR policy violates the injunction.).
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civil immigration violations, MCSO would call Border Patrol. Through this practice,
Defendants repeatedly violated the preliminary injunction.
II.
There is also ample evidence to show that Defendants were in contempt of a
5
6
7
8
separate order by this Court concerning the necessary role of the Court-appointed
Monitor in the investigation arising from the arrest and death of former MCSO Deputy
Charley Armendariz.
On May 14, 2014, in a now-unsealed proceeding, counsel for the Defendants
9
10
11
12
13
14
15
16
17
18
19
20
21
Defendants Committed Contempt by Violating This Courts May 14, 2014,

Order Concerning Collection of Video Evidence
revealed that MCSO discovered about 900 hours of video recordings of Deputy
Armendarizs traffic stops in his home. Transcript of May 14, 2014 Hearing (May 14
Tr.) at 45, unsealed by Doc. 706. None of these recordings had been officially logged
into an MCSO database or turned over to Plaintiffs during discovery.3 Id. at 45-66.
Armendariz had recorded these videos using a dashboard camera and an eyeglassmounted camera. Id. Upon questioning, Chief Deputy Sheridan further revealed that
MCSO had purchased and installed Armendarizs dashboard camera, along with
dashboard cameras for other deputies, and that MCSO was also aware that some
deputies recorded their activities with body-mounted cameras. Id. at 52 (THE
COURT: Was the Maricopa County Sheriffs Office aware that some of its officers
were recording traffic stops? CHIEF DEPUTY SHERIDAN: The best way to answer
that, Your Honor, is the dash cams would have been purchased and installed by the
22
23
24
25
26
27
As the Court has noted, these videos should have been produced during discovery.
Question Four of Plaintiffs First Set of Requests for Production, dated February 25,
2009, requested [a]ll documents relating to all traffic stops performed by every
MCSO supervisor, officer, posse member, or volunteer for years 2005 to present that
include information such as the location, time, and duration of the stop; the reason for
the stop; the questions asked of the drivers and passengers; etc. See Declaration of
Jessie Baird, Ex. A at 7, 4. That Request for Production also defined documents
specifically to include video tapes. Id. at 3, 11.
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Sheriffs Office, so the answer would be yes, to some extent.); id. at 57 (I do believe
that there are other deputies that have recorded traffic stops and other activities with
their own purchased video cameras.). Sheridan stated that he did not know how many
dashboard cameras were in existence when he took over his current duties in 2010 or
what happened to the recordings from those cameras. Id. at 53, 57. Sheridan also
stated that MCSO had, until recently, not had any policy governing deputies self-
recording of traffic stops. Id. at 55, 57-58.
Both Plaintiffs and the Court expressed substantial concern about these
recordings, MCSOs failure to disclose them, and the possibility that deputies might
10
destroy incriminating recordings in response to a request for production. See, e.g., id.
11
at 56-61, 79-81. The Court mentioned that it could order subpoenas requiring every
12
MCSO officer with videos and other pertinent information to disclose them, id. at 59,
13
but Defendants asked the Court to allow us to do it in a softer manner than
14
subpoenas, id. at 60. The Court allowed such an approach, but stated that it expected
15
a thought-through plan . . . in which you can quietly gather such material. Id. at 61.
16
The Court therefore directed Defendants to cooperate completely with my monitor,
17
id. at 72, and to work with the Monitor on a plan that [the Monitor] can approve thats
18
your best thinking about how you can, without resulting in any destruction of
19
evidence, gather all the recordings, id. at 75. The Court also directed Defendants to
20
bring any disagreements with the Monitor to the attention of the Court. Id. at 73, 94,
21
96. Defendants assented, id. at 72-73, 96, noting that the Monitor had already
22
provided some good advice that MCSO would incorporate into how we approach
23
this situation, id. at 76.
24
Within hours of assenting to the Courts clear directions, Defendants acted in a
25
manner inconsistent with these mandates and their representations to the Court, as well
26
as with best practices for the critical and complex investigation of MCSO personnel.
27
These events of May 14, 2014, have been recounted in detail by the Monitor, who was
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himself a witness to some of these events. In brief, after the hearing, in the early
afternoon of May 14, 2014, Arpaio, Sheridan, and counsel met and decided, without
consulting with the Monitor and therefore in violation of the Courts direction during
the earlier status conference, to collect any videos of traffic stops in the hands of
MCSO personnel by sending an email to division commanders. See Doc. 795-1
(Monitors Report) at 4. Deputy Chief David Trombi was then summoned into the
meeting and directed, by Sheridan, to send the email. Id.; Nov. 20 Tr. at 59. Sheridan,
Captain Holmes, and defense counsel then held a two-and-a-half hour meeting with the
Monitor to discuss how to collect the videos, without disclosing that they had already
10
formulated and executed a plan that contradicted the Courts directions to collect the
11
videos quietly and in cooperation with the Monitor. See Monitors Report at 3; May
12
14 Tr. at 61, 72, 75. Sheriff Arpaio briefly attended the latter meeting. Monitors
13
Report at 3.
14
Later that day, Sheridan informed the Monitor of Trombis email, which had
15
already been disseminated widely to MCSO personnel. Id. Initially, Sheridan claimed
16
that Trombi had sent the email without Sheridans knowledge. Id. It was not until
17
later that evening that Sheridan revealed to the Monitor that there had been an earlier
18
meeting in which MCSO had directed Trombis email. Id. And it was not until the
19
November 20, 2014 hearing that Sheridan revealed, through counsel, that he himself
20
had authorized the Trombi email. Nov. 20 Tr. at 59. The Monitor found Sheridans
21
shifting explanations and lack of memory not credible. Monitors Report at 4.
22
On May 15, 2014, the Court issued an order under seal, directing MCSO to
23
collect quickly certain information relating to officers video recording of traffic stops.
24
Doc. 693, unsealed by Doc. 706. MCSO then sent an email to all deputies, containing
25
a self-reporting survey linked to the Courts order. At that point, any possibility of
26
collecting the recordings quietly, as directed by the Court, had been foiled by
27
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Sheridans direction to Trombi and by Trombis subsequent email widely disseminated
to MCSO personnel.
By sending the Sheridan-Trombi email without consulting with the Monitor
and then participating in a meeting in which they made a show of agreeing upon a
different course of action with the Monitor, without mentioning that the Sheridan-
Trombi email had already been sent outDefendants violated the Courts specific and
definite order to cooperate completely with my monitor in gathering the videos.
Because that violation is already established, [t]he burden . . . shifts to the contemnors
to demonstrate why they were unable to comply. F.T.C. v. Affordable Media, 179
10
F.3d 1228, 1239 (9th Cir. 1999). The excuses that Sheridan made to the Monitor are
11
not credible on their face and, even if they were credible, would not establish that
12
Defendants were unable to comply. See also Stone, 968 F.2d at 856 (the law
13
requires enjoined parties to perform[ ] all reasonable steps within their power to
14
insure compliance with the courts order[]); Xcentric Ventures, LLC v. Stanley, No.
15
2:07-cv-00954- GMS, 2009 WL 113563, at *4 (D. Ariz. Jan. 16, 2009) (there is no
16
willfulness requirement or good faith defense for civil contempt).
17
III.
18
Defendants Numerous Acts of Defiance Support the Need for Serious

Sanctions To Compensate Plaintiffs and To Ensure Future Compliance.
19
The two bases on which Plaintiffs move for contempt are not isolated matters,
20
but rather part of a pattern of consistent disregard by Defendants of this Courts orders.
21
As set forth by Plaintiffs during the October 28, 2014 hearing, on numerous occasions,
22
Defendants have directly contravened and misrepresented this Courts trial findings
23
and injunctions. This history of misconduct solidifies the need for strong sanctions to
24
prevent further recurrence and to compensate Plaintiffs who have been injured.
25
Defendants failure to comply with this Courts orders dates back to the start of
26
this litigation. This Court has previously issued sanctions against Defendants for
27
conduct nearly identical to the present issue of Defendants failure to properly preserve
28
and produce video recordings made by deputies. In 2010, the Court found that
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Defendants had failed to preserve and actively destroyed documents that they had an
obligation to produce for purposes of discovery. Doc. 261. As detailed in that order,
Defendants had similarly failed to properly communicate down the chain of command
that certain documents must be preserved. In fact, Deputy Chief MacIntyre testified
with respect to this previous spoliation of evidence that he must have simply, albeit
regrettably, forgot to forward [the demand for documents] to others at the MCSO. Id.
at 3. Unfortunately, monetary sanctions against Defendants, in the form of Plaintiffs
attorneys fees and costs, were insufficient to prevent history from repeating itself.
Since this earlier transgression, Defendants have displayed little regard for
10
ensuring compliance with this Courts orders. In addition to the violations of their
11
earlier spoliation of evidence, this Courts preliminary injunction and the failure to
12
preserve video recordings, Defendants have directly violated this Courts orders on
13
several other occasions. On October 28, 2014, the Court conducted a hearing to
14
address a public statement by Defendant Arpaioregarding a law enforcement
15
operation in the town of Guadalupe that this Court held unconstitutionalthat [w]ith
16
the same circumstances, Id do it all over again.4 This Court found that Arpaios
17
statement demonstrated that MCSO was not in compliance with this Courts October
18
24, 2013, Supplemental Injunction order and, as a result, ordered Defendant Arpaio to
19
personally complete the training required of all MCSO sworn personnel and posse
20
members. Transcript of Oct. 28, 2014 Hearing at 64-65. Clearly, this remedy and the
21
others ordered so far by the Court have not been adequate to deter Defendants
22
repeated violations, as demonstrated by the long history of Defendants defiance of this
23
Courts orders.
24
25
26
27
Jacques Billeaud, Judge unleashes criticism on Arpaios office, Associated Press,

Oct. 28, 2014, http://www.washingtontimes.com/news/2014/oct/28/hearing-to-focuson-investigations-of-ex-officer; see also Doc. 746 3.
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Since the Court issued its trial findings and remedial order, Defendants have
consistently misrepresented those decisions both internally and publicly. Shortly after
this Courts May 24, 2013, trial findings, Defendant Arpaio stated publicly that the
Courts finding of liability was based only on faulty training by the federal
government, ignoring the several other findings of independent constitutional
violations that permeated the MCSO itself.5 As of at least January 2014, Defendant
Arpaio continued to blame the federal government for all of the Courts findings,
going as far as to send a letter to Attorney General Eric Holder demanding payment by
the federal government for all litigation costs as a result of this case. In the letter,
10
Defendant Arpaio again laid the blame on the federal government, stating that the
11
Court determined that MCSO had violated the constitutional rights of the class
12
members because some MCSO deputies acted and relied on the ICE training and
13
education provided to them in the 287(g) program which was, in fact, contrary to Ninth
14
Circuit law and stating, contrary to the Courts actual findings in the May 2013 order,
15
that [b]ut for [this training], there would have been no adverse finding against the
16
MCSO.6 Other members of MCSO top command staff, including Chiefs Sheridan
17
and Trombi, also made misrepresentations of this Courts May 24, 2013, trial order by
18
inaccurately describing the order as limited to a finding of racial profiling by only two
19
MCSO deputies or a showing that people with Hispanic surnames were held 14
20
seconds longer than people without.7 And just two days after this Court ordered
21
22
23
24
25
26
27
Sheriff Arpaio responds to federal judge ruling on racial profiling, YouTube, May
29, 2013, https://www.youtube.com/watch?v=w38eFaTmufY.
6
Letter from Sheriff Joseph M. Arpaio to Attorney General Eric H. Holder, Jr., Jan.
16, 2014,
http://www.mcso.org/MultiMedia/PressRelease/Arpaio%20Letter%20to%20Holder.pd
f.
7
See, e.g., Jerry Sheridan, Here are the facts in profiling suit vs. MCSO, Ariz.
Republic, Jan. 12, 2014, http://archive.azcentral.com/opinions/articles/20140112factsprofiling-suit-mcso.html.
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Defendants to issue a corrective statement to address all of these inaccuracies, news
outlets reported that Defendant Arpaio had sent out a fundraising letter in which he
stated that there have been rampant, UNFOUNDED charges of racism and racial
profiling in my office.8
These misstatements by the Sheriff and his top command staff are not merely
statements of opinion; in the command structure of a law enforcement agency, they
have a direct impact on deputies conduct because they represent the official views of
the highest policy makers within MCSO as to how court orders should be interpreted
and observed. By repeatedly misrepresenting the Courts orders, Defendants failed to
10
properly inform all MCSO employees of the full scope of the Courts findings and the
11
requirements under the Courts injunctions.
12
Defendants have repeatedly and openly defied the Courts authority. In an
13
August 2013 fundraising letter, Defendant Arpaio stated that he wont stand for a
14
Court-appointed monitor and insinuated that MCSO will continue enforcing
15
immigration laws, stating that [m]illions enter our country illegally every year with
16
very little consequence and that he is working day and night to protect our land and
17
keep Arizona and America safe.9 Just days after the Court issued the October 2013
18
Supplemental Injunction, Sheriff Arpaio announced plans for a large-scale operation
19
and outwardly mocked this Courts requirement that MCSO engage in community
20
21
22
23
24
25
26
27
Yvonne Wingett Sanchez, Sheriff Arpaio: Donate in case I run for governor, Ariz.
Republic, Mar. 26, 2014,
http://www.azcentral.com/story/politicalinsider/2014/03/26/joe-arpaio-consideringrun-for-governor/6916521; Letter from Sheriff Joe Arpaio,
http://archive.azcentral.com/ic/pdf/arpaio-donation.pdf.
9
Stephen Lemons, Arpaios Letter Shows Why Judge Snow Must Appoint a Monitor
in Melendres, Phoenix New Times, August 29, 2013,
http://www.phoenixnewtimes.com/2013-08-29/news/arpaio-s-letter-shows-why-judgesnow-must-appoint-a-monitor-in-melendres/full/; Letter from Sheriff Joe Arpaio,
http://httpmyblogblogspotcom-norsu.blogspot.com/2013_08_01_archive.html.
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outreach to remedy past violations and built trust with the community, stating that
some courts want community outreach. I just started it.10 During a briefing prior to
that operation, Chief Deputy Sheridan went as far as to direct deputies not to take
seriously the Courts order that they track the race or ethnicity of individuals whom
they stop. See Recording of Oct. 18, 2013 Crime Suppression Briefing. After that
operation, Defendant Arpaio stated to the media that he was not concerned about
being in violation of the Courts order because no one is going to take away my
authority I have under the constitution.11
Further, as documented in the Monitors Report, Defendants not only defied the
10
Courts May 14, 2014, order about the collection of video recordings, but also
11
demonstrated contempt for the Monitors role throughout that investigation, which
12
undermined the effectiveness and likely outcome of the investigation. Doc. 795-1.
13
Such contempt was also displayed in Defendants recalcitrant response to the
14
Monitors report. Doc. 755.
15
Defendants transgressions of this Courts orders are abundant. In the
16
command structure of a law enforcement agency, Defendants misrepresentations and
17
defiant attitude have direct consequences because they set the tone for, and give
18
direction to, inferior officers in the rank and file of MCSO. In determining the nature
19
and extent of sanctions against Defendants, this Court should take these prior flagrant
20
contraventions into account. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510,
21
22
23
24
25
26
27
10
CBS, Sheriff Arpaio Defends Latest Crime Sweep, Oct. 19, 2013, updated Nov. 2,
2013, http://www.kpho.com/story/23737670/sheriff-arpaio-defends-latest-crimesweep.
11
Stephen Lemons, Arpaios Sweep of the West Valley Could Turn Judge Snows
Order Into a Paper Tiger, Phoenix New Times, Oct. 24, 2013,
http://www.phoenixnewtimes.com/2013-10-24/news/arpaio-s-sweep-of-the-westvalley-could-turn-judge-snow-s-order-into-a-paper-tiger/full/; CBS, supra n.10.
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516 (9th Cir. 1992) (taking into account Defendants flagrant contempt in affirming
the propriety of a high fine as a civil sanction).
IV.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
The Court Should Begin With Limited and Expedited Document Discovery
and an Evidentiary Hearing on Civil Contempt Against Defendants and
Individual MCSO Personnel
Based on the foregoing, Plaintiffs request that the Court issue an order to show
cause why Defendants and specific individuals named below should not be held in
civil contempt, and schedule an evidentiary hearing. See United States v. Ayres, 166
F.3d 991, 995-96 (9th Cir. 1999) ([C]ivil contempt may be imposed in an ordinary
civil proceeding upon notice and an opportunity to be heard, and, although a fullblown evidentiary hearing is not required, the Ninth Circuit do[es] not encourage the
imposition of contempt sanctions on the papers.); Peterson v. Highland Music, Inc.,
140 F.3d 1313, 1323 (9th Cir. 1998) (a non-party can be held in contempt if he (1) had
notice of the courts order and (2) either abetted the defendants violation or is legally
identified with him). Plaintiffs also request that subpoenas issue to each of the
individuals named below and to any further witnesses that Plaintiffs timely name by a
date set by the Court, or subsequent to that date if new information comes to light.
Sheriff Arpaio should be subject to contempt proceedings for the reasons set
forth above. He is a named defendant with full knowledge of the Courts orders and
the greatest ability to implement them. His knowing violations of the orders warrant a
contempt finding.
Chief Deputy Sheridan should be subject to contempt proceedings for causing
and abetting Defendants violation of both the December 23, 2011, preliminary
injunction and the May 14, 2014, order. Sheridan must answer to the first charge
because there is evidence that it was his responsibility to inform MCSO officers about
the preliminary injunction, but that he did not do so. See Sheridan Dep. 122:13-18;
Nov. 20 Tr. at 67. Sheridan must answer to the second charge because he directed
Deputy Chief Trombi to send the May 14, 2014 email, and then misrepresented his
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actions to the Court-appointed Monitor. See Nov. 20 Tr. at 59; Monitors Report at 3-
4.
Executive Chief Sands, Deputy Chief MacIntyre, and Lieutenant Sousa should
be subject to contempt proceedings for abetting Defendants violation of the December
23, 2011 preliminary injunction. All three, as well as Chief Deputy Sheridan, received
the email from counsel about the preliminary injunction but failed to take action to
communicate it to others at MCSO and to direct that MCSO follow the Courts order.
See Nov. 20 Tr. at 67-68.
Deputy Chief Trombi should be subject to contempt proceedings for
10
participating in Defendants violation of the May 14, 2014 order, by sending the email
11
that contravened the Courts order. See Monitors Report at 3-4.
12
In addition, Plaintiffs request that the Court order Defendants to respond to
13
limited document discovery on an expedited basis, in advance of an evidentiary
14
hearing.12
15
V.
16
Court Ordered Remedies Are Necessary To Compensate the Plaintiffs and

To Secure Future Compliance with Court Orders
17
Plaintiffs will not be in a position to recommend the full scope of remedies
18
warranted in light of Defendants violations of the Courts orders until they have had
19
an opportunity to engage in limited document discovery and question MCSO
20
personnel during an evidentiary hearing. However, based upon Defendants
21
22
23
24
25
26
27
12
At the December 4, 2014 hearing, Sheriff Arpaios counsel, Mr. McDonald,

requested that he be provided any information that youre turning over to the United
States Attorney. Transcript of Dec. 4, 2014 Hearing at 30. Plaintiffs requested the
opportunity to research that request. Id. at 31. Plaintiffs do not object to Mr.
McDonald receiving unsealed information that is provided to the United States
Attorney. To the extent this Court comes into possession of information that is not in
the public record and pertains to potential criminal contempt or other criminal
misconduct by Sheriff Arpaio, Mr. McDonald should receive that information pursuant
to the normal processes defined by the Federal Rules of Criminal Procedure, unless he
can identify authority supporting earlier or more expansive disclosure.
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admissions and the evidence that has already come to light, Plaintiffs submit that the
following remedies are justified and minimally needed in order (1) to compensate the
Plaintiff Class for harms suffered as a result of Defendants noncompliance with the
Courts orders and (2) to stop ongoing harms and to prevent future noncompliance to
the detriment of the Plaintiff Class. See Falstaff Brewing Corp. v. Miller Brewing
Corp., 702 F.2d 770, 778 (9th Cir. 1983) (citing Shillitani v. United States, 384 U.S.
364, 370 (1966)) (two purposes of civil contempt are to compensate the moving party
for injuries arising from noncompliance and to compel obedience to the courts order);
see also Whittaker, 953 F.2d at 517-18 (district court could properly use its coercive
10
civil contempt authority to prohibit the contemnor corporation from engaging in the
11
airline parts business until the corporation demonstrated to the satisfaction of the court
12
that it would comply with the courts prior injunction in good faith); Lance v.
13
Plummer, 353 F.2d 585, 591-92 (5th Cir. 1965), cert. denied, 384 U.S. 929 (1966)
14
(district court could properly use its coercive civil contempt authority to prohibit
15
deputy sheriff who had violated civil rights injunction from acting as a law
16
enforcement officer until the officer satisfied the court that he would comply with the
17
injunction in good faith).
18
19
20
21
22
23
24
25
26
27
28
A. The Court Should Order Defendants To Assist in the Identification of

Victims of Defendants Noncompliance with the December 23, 2011,
Preliminary Injunction, and To Pay Compensation to Individual
Victims
Defendants violations of the Courts preliminary injunction ordera direct
result of the actions (and in some cases failures) of the MCSO command staff that
Plaintiffs identify above as proposed targets of contempt proceedingscaused the
illegal detentions of members of the Plaintiff class and others. Each of those
individuals who have been detained in violation of the Courts preliminary injunction
should be compensated for their unconstitutional detention in violation of this Courts
preliminary injunction order in an amount commensurate to the length of his or her
detention and any other facts particular to the harm suffered. Such a compensatory
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fine is proper in a civil contempt proceeding as it makes the Plaintiff whole for harms
suffered from the Defendants noncompliance with the Courts orders.13 See Intl
Union, United Mine Workers v. Bagwell, 512 U.S. 821, 829 (1994) (citing United
States v. Mine Workers, 330 U.S. 258, 303-04 (1947)). Plaintiffs intend to submit
detailed requests for damages after identifying such individuals and investigating the
extent of the harms they have suffered.
The Court should order Defendants to take steps to identify and assist Plaintiffs
in locating all victims of illegal detentions pursuant to MCSOs policy and practice of
continuing to detain individuals based solely on suspected unlawful presence in the
10
United States after the Court enjoined that practice on December 23, 2011. Defendants
11
should work in cooperation with the Monitor and Plaintiffs counsel to determine what
12
steps would be useful. At a minimum, they should disclose the following information:
13
1) Identification documents seized by MCSO personnel from apparent

members of the Plaintiff class;14
14
15
2) All individuals who were the subject of any ICE or CBP inquiry and/or
16
detained by MCSO after December 23, 2011 based on suspected unlawful
17
presence, and who were not charged with or cited for any crime;
18
19
20
21
22
23
24
25
26
27
13
This compensation is not necessarily limited to members of the Plaintiff class. See
Ahearn ex rel. Natl Labor Relations Bd. v. Intl Longshore and Warehouse Union,
721 F.3d 1122, 1131 (9th Cir. 2013) (civil contempt sanctions may be awarded to nonparties where doing so [is] directly necessary to enforce an injunction).
14
Plaintiffs have so far not received from Defendants the identity documents that
Defendants recently described to the Court, which were found in the possession of
former HSU deputies in November 2014, see Nov. 20 Tr. at 47-50, even though
Plaintiffs requested those documents on December 3, 2014. Plaintiffs should have
access to this information, so that they may conduct their own follow-up inquiries into
the circumstances in which such documents were seized by MCSO deputies, and
whether the owners of these identity documents were detained in violation of the
Courts preliminary injunction order.
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3) All information concerning the circumstances and length of any detention
described in point (2) above, including but not limited to MCSO incident
reports, departmental reports, field interview cards, traffic stop data
collection forms, CAD data and recordings or MDT records, video or audio
recordings, and officer or supervisor notes.
4) All communications, in any form, between MCSO and CBP or ICE after
December 23, 2011, concerning the immigration status or custody status of
any individual in MCSO custody or detention; and
5) A description of all forms in which any communication described in point
10
(4) above might be documented, including radio, telephonic, or electronic
11
communications by a MCSO deputy on patrol to CBP and ICE.
12
In addition, the Court should order individual MCSO deputies and supervisors
13
involved in any such detentions to testify at an evidentiary hearing, as set forth below,
14
so that Plaintiffs counsel may question them about the MCSO policies and practices
15
that permitted such detentions to occur and the extent of unlawful detentions, despite
16
the Courts order prohibiting them.
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Plaintiffs also intend to take additional measures to identify and locate potential
victims, such as by seeking relevant information from federal officials.
B. The Court Should Order Compensation to the Plaintiff Class as a
Whole
Defendants obstinate, continued enforcement of the LEAR policy caused
untold numbers of Plaintiff class members to spend 18 months living in fear that they
would be unlawfully seized by Defendants and further damaged the relationship
between the Latino community and the MCSO. The Plaintiff class as a whole should
be compensated for this harm, potentially by an award from Defendants to a non-profit
organization or organizations (other than Plaintiffs counsel) that works with the
Latino community in Maricopa County to educate members about their civil and
constitutional rights. The Court could take additional steps to ensure the award would
21
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go towards services that would substantially benefit the Plaintiff class and be related to
the issues in this lawsuit.
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C. The Court Should Order Injunctive Relief Provisions To Ensure That

Defendants Violations Stop, and That Future Violations Do Not Occur
Defendants separate violations of the Courts December 2011 preliminary
injunction order and the May 2014 order directing Defendants to cooperate with the
Monitor in the collection of video recordings demonstrate persistent, structural
command and supervision problems at MCSO that leave the members of the Plaintiff
Class at risk for ongoing violations of their constitutional rights. Accordingly, the
Court should order additional injunctive and remedial relief, as follows:
1)
Communication of court orders and other litigation-related matters to
MCSO personnel: Defendants admitted failure to communicate a critical federal court

order to MCSO personnel, coming after admitted spoliation of evidence after a similar
failure of communication earlier in this litigation, demonstrates the need for (a) a
thorough evaluation of MCSO policies and practices concerning the communication of
court orders and document preservation notices and reform of those policies and
practices, in cooperation with the Monitor and Plaintiffs counsel; (b) a court order
putting Defendants on notice of the likely need to increase the amount of such fines
upon future violations, and possibly setting out a conditional fine schedule. Such a
conditional schedule serves the purpose of coercing future compliance with the Courts
orders and therefore is a proper remedy in civil contempt. See Falstaff Brewing Corp.,
702 F.2d at 780; Intl Union, 512 U.S. at 827. Such a conditional coercive fine is
especially warranted where a contemnor, like Defendant Arpaio and other MCSO
command staff here, have a record of flagrant violations of prior court orders as set
forth above in Section III. See Whittaker, 953 F.2d at 516.
2)
Procedures for immediate notification to Plaintiffs representatives and
the Monitor of future immigration detentions: To ensure that future immigrationrelated detentions do not go undetected, in addition to the current provisions in the
22
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Courts Supplemental Injunction/Order, MCSO should be required to notify Plaintiffs
and the Monitor within 24 hours of any traffic stop involving MCSO personnel in
which ICE or CBP is contacted and/or an individual is questioned about his or her
citizenship or immigration status. All information concerning the circumstances and
length of any such stop, including but not limited to, MCSO incident reports,
departmental reports, field interview cards, traffic stop data collection forms, CAD
data and recordings or MDT records, video recordings, and officer or supervisor notes,
should be disclosed to Plaintiffs and the Monitor as soon as possible.
3)
Procedures for collection, disposition, and chain of custody of evidence:
10
The information revealed so far demonstrates that MCSOs policies and procedures
11
concerning the collection and disposition of evidence, including possessions seized
12
during traffic stops and video recordings of traffic stops, are utterly inadequate.
13
Defendants admit that it was common knowledge at MCSO that deputies have for
14
years used both MCSO-issued and personally-purchased video cameras to record
15
traffic stops and other activities, but that there has been no MCSO policy concerning
16
the collection and retention of such video recordings. Similarly, the Armendariz and
17
related investigations have revealed that MCSO personnel have retained items seized
18
during patrol (including identity documents, vehicle license plates, and purses and
19
other personal belongings) without properly delivering them to the official
20
evidence/property unit or even logging them. This is unacceptable by any standard
21
and has led to the current situation in which the parties to this action are unable to
22
readily identify the owners of any item or to associate any given item of evidence to a
23
traffic stop or other MCSO law enforcement action.
24
Plaintiffs have already proposed to the Defendants that the parties engage in a
25
collaborative process to formulate a policy governing the use of MCSO-issued body-
26
mounted video cameras. Such a policy should govern all video recordings made by
27
MCSO personnel. In addition, the Court should order new injunctive relief to ensure
28
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that MCSO promulgates and follows a proper policy on the seizure and chain of
custody for all evidence seized by MCSO personnel.
4)
Misconduct investigations and civilian complaints: The limited evidence
revealed so far reveals serious deficiencies in MCSOs procedures for handling civilian
complaints and internal investigations. First, the conduct of MCSO command staff in
the Armendariz-related investigationsincluding the Sheridan-Trombi email sent in
disregard of the plan agreed upon in Court, to quietly collect video recordings without
triggering possible destruction of evidence, demonstrates that MCSOs internal
investigation policies and practices fall short of generally accepted standardseven
10
when the highest levels of command staff are directly involved and even under the eye
11
of the Court and the Court-appointed Monitor. These failures come after numerous
12
investigative deficiencies revealed by the failure of MCSO supervisors and
13
commanders to adequately address numerous civilian complaints against Deputy
14
Armendariz. Plaintiffs submit that new MCSO policies and practices relating to the
15
handling of civilian complaints and internal investigations are needed to protect the
16
interests of the Plaintiff Class. Plaintiffs will be requesting additional supplemental
17
injunctive relief separately from the contempt proceedings, because there is relevant
18
evidence unrelated to the contempt proceedings.
19
D. The Court Should Order Attorneys Fees and Costs
20
The Court should order attorneys fees and costs to Plaintiffs counsel to
21
compensate for the expense of litigating the compliance issues and other monitoring
22
work since the Courts October 2012 Supplemental Injunction. Such fees are justified,
23
among other reasons, as a penalty for Defendants failure to produce records in
24
response to discovery requests pre-trial. Fed. R. Civ. P. 37(b); Falstaff Brewing Corp.,
25
702 F.2d at 784. An award of attorneys fees and costs is also justified as
26
compensation for the time and costs of Plaintiffs counsel in responding to Defendants
27
noncompliance with the Courts orders, separate from any award of compensatory
28
damages. Perry v. ODonnell, 759 F.2d 702, 704-06 (9th Cir. 1985) (affirming award
24
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of attorneys fees and costs in civil contempt proceeding as a remedial measure);
Commodity Futures Trading Commn v. Premex, Inc., 655 F.2d 779, 785-86 (7th Cir.
1981); Natl Labor Relations Bd. v. Local 825, Intl Union of Operating Engineers,
430 F.2d 1225, 1229 (3d Cir. 1970). Indeed, the Supreme Court has held that the
failure to comply with document discovery is appropriate for imposition through civil
proceedings and also can be remedied through means other than contempt, including
assessing costs, to penalize a partys failure to comply with the rules of conduct
governing the litigation process. Intl Union, 512 U.S. at 833. Plaintiffs will submit a
separate, detailed application for attorneys fees and costs.
10
11
CONCLUSION
For the foregoing reasons, the Court should issue an order to show cause why
12
Defendants and the individuals named herein should not be held in civil contempt,
13
order limited written discovery, and schedule an evidentiary hearing.
14
Respectfully submitted this 8th day of January, 2015.
15
By: /s/ Cecillia D. Wang
16
17
18
Daniel Pochoda

ACLU Foundation
19
20
21
22

Covington & Burling, LLP

Educational Fund
23
24
25
Attorneys for Plaintiffs
26
27
On the brief:
Joshua Bendor
28
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1
2
3
I hereby certify that on January 8, 2014, I electronically transmitted the attached

document to the Clerks office using the CM/ECF System for filing and caused the
4
5
attached document to be e-mailed to:
6
7
8
9
Thomas P. Liddy
liddyt@mcao.maricopa.gov
Michele M. Iafrate
miafrate@iafratelaw.com
10
11
A. Melvin McDonald
mmcdonald@jshfirm.com
12
13
14
Attorneys for Defendant Sheriff Joseph Arpaio and the

15
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21
22
23
24
25
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27
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/s/ Cecillia D. Wang
(364 of 866)
EXHIBIT 11
(365 of 866)
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Exhibit A
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3
CECILLIA D. WANG
DIRECTOR
IMMIGRANTS
RIGHTS PROJECT
May 21, 2014

Via Electronic Mail
Timothy J. Casey
Schmitt, Schneck, Smyth, Casey & Even, P.C.
1221 E. Osborn Rd., Ste. 105
Phoenix, AZ 85014
tim@azbarristers.com
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
CALIFORNIA OFFICE
39 DRUMM STREE T
SAN FRANCISCO, CA 94111-4805
T/ 415.343.0775
F/415.395.0950
CWANG@ACLU.ORG
NEW YORK OFFICE
125 BROAD STREE T, 18TH FL.
NEW YORK, NY 10004-2400
WWW.ACLU.ORG
Thomas P. Liddy
Maricopa County Attorneys Office - Civil Services Division
222 N. Central Ave., Ste. 1100
Phoenix, AZ 85004
RE: Ortega Melendres v. Arpaio, No. CV 2007-02513-PHX-GMS
Dear Tim and Tom:
In the past two weeks, there have been a number of documents
discussed during status conferences with the Court and in other conversations
and documents relating to the investigation triggered by the Armendariz
matter. I am writing to list all the documents that Plaintiffs are currently
requesting from Defendants:
1. An unredacted version of a May 19, 2014, memorandum from
Captain Holmes to Lieutenant Munley, titled Internal Affairs
#2014-0221 Investigative Plan. My understanding is that this is
the same document Plaintiffs originally requested during the status
conference on May 14 (transcript 80:6-11), and which the Court
ordered MCSO to provide in an order dated May 16, 2014 (at page
2). We acknowledge receipt of a redacted version of the Holmes
memorandum from you via email dated May 19, and your offer to
provide an unredacted version on the condition that we keep it
confidential. We agree to that condition.
2. Records (including identification documents and video recordings)
seized from Armendarizs home (May 7 transcript 39:24-40:19).
3. Video recording of interview of Armendariz (May 7 transcript 43:918).
4. Records of interviews with other MCSO personnel relating to the
investigation triggered by the Armendariz matter (May 14 transcript
(367 of 866)
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Timothy J. Casey and Thomas P. Liddy

May 21, 2014
Page 2
74:23-75:6).
5. MCSOs response(s) to the Courts order dated May 15, 2014,
directing MCSO to provide specific information concerning its
investigation (categories (a) through (n)) to the Monitor on a
weekly basis. We acknowledge that under email cover dated May
16, you have already provided us with a copy of Chief Deputy
Sheridans preliminary report to Chief Warshaw that is
mentioned in the Courts May 15 order.
6. Any other materials that have been provided, or that will be
provided, to the Monitor pursuant to the Courts May 15 order.
7. Personnel records and performance evaluations for Deputy
Armendariz and any records of complaints made against him.
8. Personnel records and performance evaluations of any other MCSO
personnel now under investigation in connection with the
Armendariz matter, and any records of complaints made against
such individuals.
9. Spreadsheets prepared by Internal Affairs documenting the recorded
Armendariz traffic stops (see Memorandum from Capt. Holmes to
Lt. Munley dated May 19, 2014, at 2, which you provided to us via
email on May 19).
10. Copies of any notices to MCSO personnel concerning the
Armendariz investigation (see, e.g., May 14 transcript at 58:7-8
(Sheridan referring to a Briefing Board that went out May 14)).
11. Privilege log for any records seized but withheld based upon any
asserted privilege (May 7 transcript 43:21-44:9).
AMERICAN CIVIL LIBERTIES

UNION FOUNDATION
We will, of course, honor reasonable requests that we should treat

materials as confidential.
Sincerely,
Cecillia D. Wang
Counsel for the Plaintiff Class
cc:
Chief Robert Warshaw (by email)

Chief Raul Martinez (by email)
Commander John Girvin (by email)
(368 of 866)
EXHIBIT 12
(369 of 866)
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3
4
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8
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situated; et al.
11
ORDER TO SHOW CAUSE
Plaintiffs,
12
v.
13

County, AZ; et al.
14
15
Defendants.
16
17
18
19
20
21
22
23
24
25
26
27
28
Pending before the Court is Plaintiffs Request for an Order to Show Cause (Doc.
843) and the opposition thereto by Defendants and those non-parties who have specially
appeared in this action. (Docs. 83842, 844.) For the reasons stated below, Plaintiffs
Request is granted.
BACKGROUND
In December 2007, Latino motorists brought a class action under 42 U.S.C. 1983
against the Maricopa County Sheriffs Office and Sheriff Joseph Arpaio, among others,
alleging that Defendants engaged in a custom, policy, and practice of racially profiling
Latinos, and a policy of unconstitutionally stopping persons without reasonable suspicion
that criminal activity was afoot, in violation of Plaintiffs Fourth and Fourteenth
Amendment rights. (Doc. 1, amended by Doc. 26.) The Plaintiffs sought declaratory and
injunctive relief to prevent Defendants from engaging in racial profiling and exceeding
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the limits of their authority to enforce federal immigration law. (Doc. 1 at 1920.)
After pre-trial discovery was closed, the parties filed competing motions for
summary judgment; Plaintiffs motion included a request for the entry of a preliminary
injunction. (Docs. 413, 421.) This Court granted the Plaintiffs motion in part, and
entered a preliminary injunction on December 23, 2011.1 (Doc. 494.) The injunction
prohibited MCSO from detaining individuals in order to investigate civil violations of
federal immigration law, and from detaining any person based on actual knowledge,
without more, that the person is not a legal resident of the United States. (Id. at 39.) The
injunction further stated that, absent probable cause, officers may only detain individuals
10
based on reasonable suspicion that criminal activity may be afoot. (Id. at 5 (quoting
11
Terry v. Ohio, 392 U.S. 1, 27, 30 (1968).) The Court explained that being present in the
12
country without authorization to remain does not, in and of itself, violate any criminal
13
statute and, therefore, actual knowledge, let alone suspicion, that an alien is illegally
14
present is not sufficient to form a reasonable belief he has violated federal criminal
15
immigration law. (Id. at 7.) Moreover, Hispanic appearance, an inability to speak
16
English, and proximity to the border do not supply reasonable suspicion that a crime was
17
being committed sufficient to stop a vehicle to investigate the immigration status of the
18
occupants. (Id. at 6.)
19
Seventeen months later and following a bench trial, the Court issued its Findings
20
of Fact and Conclusions of Law in May 2013 in which it found MCSO liable for a
21
number of constitutional violations in its operations and procedures. (Doc. 579 at 115
22
31.) After allowing the Parties, at their request, to attempt to negotiate the terms of a
23
consent decree, in October 2013 the Court ordered supplemental injunctive relief to
24
remedy the violations it outlined in its Findings and Conclusions and defined
25
enforcement mechanisms for such remedies. (Doc. 606.) This Court has continuing
26
authority over the enforcement and implementation of that order.
27
28
The Ninth Circuit affirmed the preliminary injunction in September 2012. See
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).
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Around this time, Chief Deputy Jerry Sheridan was videotaped during an October
2013 training session for deputies about to engage in a large-scale patrol, where he
referred to this Courts order as ludicrous and crap, and incorrectly stated that this
Court had found only a small number of officers had unconstitutionally used race as a
factor in traffic stops. (See Doc. 662 at 2223.) On the recording, which did not surface
until early the next year, both Chief Deputy Sheridan and Sheriff Arpaio are seen
apparently directing deputies not to take seriously the Courts requirement that they track
the race and ethnicity of individuals whom they stop. (Id. at 23.) This Court has since
held a number of hearings to address the repeated mischaracterization and condemnation
10
of its Orders by MCSO officials. (See Docs. 662; 672; 776 at 6168.) For example, at a
11
March 2014 community meeting, Deputy Chief David Trombi told residents that the
12
Court had only found that MCSO deputies detained Latinos fourteen seconds longer than
13
other drivers, which was not in the Courts Findings of Fact. (Doc. 672 at 14.) In April
14
2014, Deputy Chief John MacIntyre made a statement to the press denying that the Court
15
had concluded the Sheriffs Office had engaged in racial profiling. (Doc. 684 at 4.) In lieu
16
of contempt, the Court entered an enforcement order requiring that a corrective statement
17
summarizing the Courts holding and emphasizing that the order was to be followed,
18
pending appeal, be distributed within MCSO. (Docs. 680, 684.)
19
On May 14, 2014, Defendants informed the Court that a former member of the
20
Human Smuggling Unit, Deputy Charley Armendariz, was found to be in possession of
21
hundreds of personal items, many of which appear to have been appropriated from
22
members of the Plaintiff class. (See Doc. 700 at 1213.) Deputy Armendariz was a
23
regular participant in the HSUs saturation patrols, both large and small scale. He also
24
testified at trial and was personally implicated by the allegations of two representatives of
25
the Plaintiff class regarding his involvement in a 2008 immigration sweep in which two
26
Hispanic American citizens were allegedly profiled and illegally detained on the basis of
27
their suspected undocumented status. (Doc. 576.) After his apparent suicide, in addition
28
to the numerous personal items apparently seized from persons he had stopped, MCSO
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also discovered numerous video recordings of traffic stops Armendariz had conducted,
apparently going back several years. (Doc. 700 at 11.) Some of those videos revealed
what MCSO characterized as problematic activity on the part of Deputy Armendariz
during the stops. (Id. at 35, 57.) Other officers, and at least one supervisor of Armendariz
who also testified at the trial in this action, were depicted on these recordings during one
or more problematic stops. (Id. at 35.)
Upon questioning by the Court, Chief Deputy Sheridan acknowledged that many,
if not all, deputies made audio recordings of their traffic stops pursuant to departmental
practice and had done so for some time. (Id. at 2931.) Further, Sheridan stated that there
10
was reason to believe that some deputies videotaped their own traffic stops, that there
11
was no departmental policy that prevented deputies from doing so, and that some video
12
devices had been purchased in earlier years by MCSO or through other government
13
programs for use during traffic stops. (Id. at 21, 2324.) Prior to May 2014, there was
14
apparently no agency-wide policy that governed the collection and catalogue of such
15
recordings. (Id. at 24.)
16
In light of the inappropriate activity observable on Deputy Armendarizs
17
videotapes and the ambiguity surrounding other officers use of video- and audio-
18
recording devices during the time period in which pre-trial discovery in this case was
19
occurring, the Court ordered Defendants to immediately formulate and obtain the
20
Monitors approval of a plan designed to quietly retrieve all recordings made by officers
21
that might still be in existence. (Id. at 2527.) The Court emphasized that the substance of
22
the hearing was not to be shared with those outside the Courtroom. (Id. at 7, 5051, 69.)
23
Within two hours of this hearing, however, Chief Deputy Sheridan met with Sheriff
24
Arpaio and attorneys for MCSO. An e-mail was circulated immediately thereafter by
25
Deputy Chief Trombi (who was not present at the hearing), at the direction of Chief
26
Deputy Sheridan, to twenty-seven Departmental Commandersincluding the supervisor
27
who had been present during one of Armendarizs problematic stops. (See Doc. 795,
28
Attach. 1, at 34.) The e-mail advised MCSO commanders that they should simply
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gather all such recordings from their personnel. (Id. at 4.) When, later that afternoon, the
Monitor met with MCSO officials to develop a retrieval strategy, neither the Sheriff nor
Chief Deputy Sheridan informed the Monitor that MCSO had already broadcast its
collection efforts. (Id. at 45.) In the end, MCSO conducted a survey-approach of its
present and past employees to collect any outstanding recordings (Id. at 4), incurring the
additional risk that advertising their collection efforts might prompt officers to destroy
existing recordings rather than surrender them to MCSO leadership.
Even so, the ensuing investigations unearthed previously undisclosed recordings
of traffic stops undertaken by the HSU and at the apparent direction of other MCSO
10
departments. They have also unearthed documents apparently requiring officers to make
11
such recordings during the period of time relevant to Plaintiffs claims. In addition,
12
dozens of personal identifications have been found in offices formerly occupied by the
13
HSU. There is evidence that, during the period relevant to this lawsuit, a number of
14
deputies were also confiscating items of personal propertysuch as identifications,
15
license plates, Mexican currency and passports, credit cards, cell phones, purses, and
16
religious shrinesfrom individuals detained in conjunction with immigration
17
enforcement activities. These items were apparently routinely retained by deputies,
18
destroyed, or deposited in collection bins in the various administrative districts of MCSO.
19
While these materials appear to have been requested by Plaintiffs prior to the trial
20
of this lawsuit, it does not appear that any of them were identified or provided to the
21
Plaintiff class. There is also evidence that at least some recordings made during the
22
period relevant to the Plaintiffs claims are no longer in existence. Moreover, the
23
Armendariz videotapes resulted in administrative interviews with MCSO personnel that
24
have apparently revealed that Defendants, as a matter of regular practice and operation,
25
continued actively enforcing federal immigration law by conducting immigration
26
interdiction operations, and detaining persons after officers concluded that there was no
27
criminal law basis for such detention, for at least seventeen months after this Court issued
28
its preliminary injunction. Plaintiffs previously contacted Defendants in October 2012
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about suspected violations of the injunction after MCSO published News Releases
pertaining to three immigration enforcement endeavors. (Doc. 843, Ex. A, at A1A5.)
The Court also noted in its May 2013 Findings of Fact and Conclusions of Law that as a
matter of law . . . MCSO has violated the explicit terms of this Courts preliminary
injunction set forth in its December 23, 2011 order because the MCSO continues to
follow the LEAR policy and the LEAR policy violates the injunction. (Doc 579 at 114.)
DISCUSSION
I.
Contempt Power
Federal courts have the authority to enforce their Orders through civil and criminal
10
contempt. Spallone v. United States, 493 U.S. 265, 276 (1990). In addition to the Courts
11
inherent power, Title 18, Section 401 of the United States Code provides:
12
13
A court of the United States shall have power to punish by

fine or imprisonment, or both, at its discretion, such contempt
of its authority, and none other, as
14
...
15
(3) Disobedience or resistance to its lawful writ, process,

order, rule, decree, or command.
16
17
18 U.S.C. 401(3); United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980) (Section
18
401 applies to both criminal and civil contempt.). Within the enumerated statutory limits
19
of this power, a district court has wide latitude in determining whether there has been a
20
contemptuous defiance of its orders. Stone v. City & Cnty. of San Francisco, 968 F.2d
21
850, 856 (9th Cir. 1992). Because an injunctive decree binds not only party-defendants
22
but also those who are represented by them, are subject to their control, or are
23
in privity with them, contempt charges may be brought against non-parties to the
24
underlying litigation who are also bound by an injunction but fail to comply with its
25
terms.2 For non-party respondents to be held liable in contempt for violating a courts
26
27
28
See Fed. R. Civ. P. 65(d)(2) (defining scope of individuals bound by a court

order to include the parties, the parties officers, agents, servants, employees, and
attorneys; and other persons who are in active concert or participation with the parties
and their officers, agents, etc., provided they receive actual notice of the order); Fed. R.
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order, they must have had notice of the order and either abet the defendant or be legally
identified with him. Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir.
1998) (quoting N.L.R.B. v. Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628,
633 (9th Cir. 1977)). The Ninth Circuits rule regarding contempt has long been whether
defendants have performed all reasonable steps within their power to insure compliance
with the courts orders. Stone, 968 F.2d at 856 (quoting Sekaquaptewa v. MacDonald,
544 F.2d 396, 404 (9th Cir. 1976)).
The moving party bears the initial burden of establishing by clear and convincing
evidence that the contemnors violated a specific and definite order of the court. Balla v.
10
Idaho State Bd. of Corrs., 869 F.2d 461, 466 (9th Cir. 1989). The burden then shifts to
11
the contemnors to demonstrate why they were unable to comply. Donovan v. Mazzola,
12
716 F.2d 1226, 1240 (9th Cir. 1983). The contemnors must show that they took every
13
reasonable step to comply. Sekaquaptewa, 544 F.2d at 406. In assessing whether an
14
alleged contemnor took every reasonable step, a district court may consider a history of
15
noncompliance. Stone, 968 F.2d at 857. A partys subjective intent is irrelevant to a
16
finding of civil contempt.3 Id. at 856.
17
A courts exercise of its contempt authority must be restrained by the principle
18
that only the least possible power adequate to the end proposed should be used in
19
contempt cases. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987)
20
(internal quotation marks omitted). If contemptuous conduct is punished criminally,
21
Federal Rule of Criminal Procedure 42(a) requires the appointment of a federal
22
prosecutor, notice to the contemnor of the charges against him, and a trial. See Fed. R.
23
24
25
26
27
28
Civ. P. 71 (noting that the procedure for enforcing an order against a non-party is the
same as against a party); United States v. Baker, 641 F.2d 1314 (9th Cir. 1981) (finding
that non-party fishers were bound by and could be criminally prosecuted for contempt for
non-compliance with an injunction issued by a federal court to manage the state salmon
fishing industry, because the evidence was sufficient to prove that the defendants had
notice of the injunction and violated it intentionally).
3
A party cannot disobey a court order and later argue that there were
exceptional circumstances for doing so. This proposed good faith exception to the
requirement of obedience to a court order has no basis in law. In re Crystal Palace
Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir. 1987).
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Crim. P. 42; Powers, 629 F.2d at 625. The Supreme Court has suggested that a trial judge
should first consider the feasibility of prompting compliance through the imposition of
civil contempt, utilizing criminal sanctions only if the civil remedy is deemed inadequate.
See Young, 481 U.S. at 801. The Court does so through these proceedings.
II.
Application
In their Request for an Order to Show Cause, as supplemented by the telephonic
status conference held with the parties and specifically named non-parties on January 15,
2015, Plaintiffs have provided sufficient evidence that Defendants and their specified
agents have committed contempt insofar as their conduct amounted to disobedience of (1)
10
the Courts preliminary injunction; (2) the Federal Rules governing pre-trial discovery;4
11
and (3) the Courts oral directives at the sealed hearing held on May 14, 2014.5
12
At its December 4, 2014 hearing, the Court expressed concern whether, if a
13
contempt finding was appropriate, civil contempt alone would be sufficient to vindicate
14
the constitutional substantive rights involved and compensate the Plaintiff class for its
15
injuries resulting from the contemnors behavior, particularly in light of the scope of
16
individuals possibly affected by their contempt of the preliminary injunction.
17
Nevertheless, out of deference to the elected office held by Sheriff Arpaio and because
18
the principle of restraint in contempt counsels caution in this Courts exercise of its
19
20
4
21
22
23
24
25
Plaintiffs Request for an Order to Show Cause outlines two grounds for civil
contempt: the violation of the preliminary injunction and the conduct surrounding the
May 15, 2014 hearing and development of an evidence-retrieval plan with the Monitor.
(Doc. 843 at 5.) After reviewing the briefs, the Court held a telephonic conference with
the parties regarding the possible pre-trial discovery violations and whether or not any
such violations should be included in these contempt proceedings. (See Doc. 858 at 14
18.) At that time, Plaintiffs orally moved for an Order to Show Cause on this basis, and
Defendants consented to resolve any questions involving MCSOs obligation to disclose
and produce audio and video evidence of traffic stops at the hearing in April. (Id.)
5
26
27
28
The Court specifies below the factual basis on which it deems Plaintiffs have set
forth evidence sufficient to present a prima facie case of contempt with respect to the
various parties and non-parties named in this Order. Additional facts and/or persons
subject to contempt may become known during the expedited discovery process that the
Court concurrently authorizes. A failure to include facts in this Order does not prevent
the parties from relying on them at the evidentiary hearing to the extent they relate to the
grounds for which the parties and non-parties have been ordered to show cause.
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powers, the Court noted that it would hold civil contempt hearings first to assess the
adequacy of civil remedies before referring the matter, if appropriate, for criminal
contempt prosecution. Id.; see also United States v. Rylander, 714 F.2d 996, 1001 (9th
Cir. 1983). Accordingly, this Order to Show Cause and the noticed hearings to be held in
April 2015 only contemplate civil contempt charges. If further action proves necessary,
the Court will give separate notice, appoint a prosecutor pursuant to Rule 42, and initiate
criminal proceedings that are separate from this matter.
A.
A party may be held in civil contempt when, after receiving notice, it fails to take
10
all reasonable steps within its power to comply with a specific and definite injunctive
11
decree. In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th
12
Cir. 1993). The preliminary injunction detailed that MCSO lacked the authority to
13
enforce civil federal immigration law and, concomitantly, lacked the authority to detain
14
persons not suspected of violating any state or criminal law based on the belief, however
15
reasonable, that such persons were present in the country unlawfully. (Doc. 494 at 39
16
40.) The Court orders the following individuals/entities to show cause why they should
17
not be held in contempt for their failure to abide by and apprise MCSO deputies of the
18
terms of the preliminary injunction:
19
Preliminary Injunction Violations
1.
20
Defendant MCSO does not appear to contest that it received notice of the
21
injunction and that it failed to implement the order. By MCSOs own admission, the
22
preliminary injunction was also not distributed within the HSUthe special operations
23
unit which bore the primary responsibility for enforcing state and federal immigration
24
laws and conducting interdiction patrols. (Doc. 804 at 5 (MCSO has concluded[] that
25
this Courts order was not communicated to the line troops in the HSU.); Doc. 843, Ex.
26
F, at 62 (Dep. of Lt. Joseph Sousa at 178:623, United States v. Maricopa Cnty., No. 2-
27
12-cv-00981-ROS (D. Ariz. filed May 10, 2012) (I dont remember a briefing board
28
because it would be contradictory to the LEAR policy . . . .).) Nor was the preliminary
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injunction communicated to any other MCSO patrol officer. (See Doc. 843 at 8 n.1.) As a
result, MCSO immigration enforcement activities continued apace despite the issuance of
the preliminary injunction.
While it continued this immigration enforcement activity in violation of the
injunction, MCSO also wrongfully believed that it could consider Hispanic ancestry in
making law enforcement decisionssuch as whom to detain to investigate immigration
violations. In addition to a Fourth Amendment violation, this error in belief would have
resulted in the violation of the Fourteenth Amendment rights of persons of Hispanic
ancestry who were detained and investigated by MCSO for immigration violations due to
10
their ethnic heritage, regardless of whether the initial stop resulted in a further detention.
11
There is also evidence that, during the period relevant to this lawsuit, a number of
12
deputies confiscated items of personal propertysuch as identifications, license plates,
13
credit cards, cell phones, purses, Mexican currency and passports and religious shrines
14
from individuals detained in conjunction with immigration enforcement activities and
15
who were members of the Plaintiff class. These items were apparently routinely kept by
16
deputies, destroyed, or deposited in collection bins in the various administrative districts
17
of MCSO. The confiscation of these items apparently continued during the period in
18
which MCSO was enjoined from all immigration enforcement and illustrates further
19
damage that was inflicted as a result of MCSOs violation of the preliminary injunction.
20
The MCSO officials who received notification of the injunction when it was
21
issued via an e-mail from then-counsel Timothy Casey6 have conceded that this failure
22
was the result of inaction on their part. (Doc. 804 at 56.) As a result of these
23
shortcomings, the order enjoining Defendant from enforcing federal immigration law,
24
operating under the LEAR policy, and unconstitutionally detaining persons based solely
25
on the belief that they were in the country without authorization was never implemented.
26
27
6
28
Defendants have identified an e-mail from Casey to Chief Deputy Sheridan,

Executive Chief (Retired) Brian Sands, Chief MacIntyre, and Lieutenant Sousa regarding
the injunction shortly after its filing. (Doc. 804 at 56.)
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Plaintiffs have identified sufficient evidence confirming the occurrence of
violations of this Courts injunction. The Armendariz videotapes, for example,
demonstrate that Deputy Armendariz participated in immigration enforcement well after
the issuance of the preliminary injunction and even the trial in this matter. (See Doc. 843
at 12.) The MCSO investigations that stemmed at least in part from the Armendariz
videotapes resulted in an acknowledgement by Defendants that the HSU continued to
conduct immigration interdictions as a part of its regular operations well after the
issuance of the preliminary injunction and at least up to the entry by this Court of its
Findings of Fact and Conclusions of Law. (Doc. 804 at 5.)
10
Plaintiffs have also provided evidence that civil immigration laws were being
11
enforced by regular MCSO patrol deputiese.g., including those not in the HSUand
12
that such immigration enforcement was occurring as a matter of MCSO policy and
13
directive. (See Doc. 843, Ex. A, at A3A8 (detailing three other possible violations of the
14
preliminary injunction).) On September 20, 2012, MCSO deputies apparently detained
15
five Mexican nationals on the belief that they were clearly recent border crossers and
16
summoned HSU officers to the scene to question them. (Id., Ex. 2, at A3A4 (News
17
Release, MCSO, ICE Refuses to Accept Illegal Aliens from Sheriffs Deputies During
18
Human Smuggling Operation, Sept. 21, 2012).) The MCSO press release regarding the
19
incident details that, after detectives were unable to charge two of the men for any state
20
crimes, they nevertheless continued to detain these individuals and attempted to transfer
21
them to U.S. Immigration and Customs Enforcement, as [had] been the practice during
22
the last six years. (Id. at A5.) In at least two other instances over the next few weeks,
23
individuals stopped by MCSO deputies on the belief that they were in the country without
24
authorization but who could not be charged with any crime were apparently detained
25
pursuant to department policy until they could be transferred to ICE or U.S. Customs and
26
Border Patrol. (See id., Ex. B, at A4 (discussing MCSOs back-up plan); see also id.,
27
Ex. B, at A8.) This course of actiondetaining individuals based solely on suspected
28
civil immigration violations pending an inquiry to federal authoritieswould have been
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in direct contradiction of the terms of the preliminary injunction. This is true regardless
of whether deputies believed to be operating at the direction of federal officers, to the
extent that obedience necessitated conduct that violated this Courts Orders. (See id., Ex.
B, at 23.)
2.
Sheriff Joseph M. Arpaio
Defendant Joseph M. Arpaio is the head of MCSO, its chief policy maker, and has
final authority over all of the agencys decisions. (Doc. 530 at 6.) Moreover, as a
named Defendant, he has been under a duty at all times during this litigation to take such
steps as are necessary to reasonably ensure MCSO is in compliance with this Courts
10
Orders. To this end, Sheriff Arpaio received a Notice of Electronic Filing through his
11
lawyer when the injunction was issued. Sheriff Arpaio has confirmed under oath that he
12
was aware of the order when it came out and discussed it with [his] attorneys. (Doc.
13
843, Ex. B, at 3132 (Dep. of Sheriff Joseph M. Arpaio at 65:1367:20, Maricopa Cnty.,
14
No. 2-12-cv-00981-ROS).) A front-page article published in the Arizona Republic on
15
December 24, 2011, the day after the injunction was filed, corroborates Arpaios
16
knowledge of the preliminary injunction, noting his intention to appeal it but nevertheless
17
obey its terms in the meantime.7
18
Plaintiffs have proffered evidence that Arpaio failed to take reasonable steps to
19
implement the preliminary injunctions proscriptions. See Sekaquaptewa, 544 F.2d at
20
406. In a related case brought by the U.S. Department of Justice, Sheriff Arpaio stated
21
that he could not recall giving any instructions to ensure his office complied with the
22
preliminary injunctions terms. (Doc. 843, Ex. B, at 32 (Arpaio Dep. at 67:25, Maricopa
23
Cnty., No. 2-12-cv-00981-ROS).) Plaintiffs have also identified evidence that suggests, to
24
the contrary, Sheriff Arpaio directed operations and promulgated policies that violated
25
the terms of the preliminary injunction. For example the September 21, 2012 press
26
release described above in which MCSO announced ICEs refusal to accept custody over
27
28
See J.J. Hensley, Judge Curbs MCSO Tactics, Ariz. Republic, December 24,
2011, at A1.
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two Mexican nationals against whom MCSO could bring no criminal charges, Sheriff
Arpaio is credited with organizing a back up plan in which suspected illegal aliens not
taken by ICE would be transferred to Border Patrol: as directed by the Sheriff, the
deputies took the two suspects detained near the Mexico border that could not be arrested
to a CBP station. (Doc. 843, Ex. 2 at 7.) The press release further quotes Sheriff Arpaio
as saying Regardless of the Obama Administration[]s policy, I am going to continue to
enforce all of the illegal immigration laws, (id. at 8), despite the preliminary injunction
prohibiting him from doing so.
Similarly, according to another MCSO press release, on September 26, 2012
10
Sheriff Arpaio personally ordered deputies to transport two persons for whom no criminal
11
charges could be brought to Border Patrol after ICE refused to take custody of them. (Id.,
12
Ex. 2, at 9 (News Release, Sheriffs Deputies Execute Search Warrant at Construction
13
Company, September 27, 2012).) An additional MCSO press release dated October 9,
14
2012 again emphasized that it was Sheriff Arpaios personal directive that deputies detain
15
persons believed to be in the country without authorization but who could not be charged
16
with crimes until they could be transported to Border Patrol agents: [m]y back up plan is
17
still in place and we will continue to take these illegal aliens not accepted by ICE to the
18
Border Patrol. (Id., Ex. 2, at 11 (News Release, 2nd Time ICE Refuses to Accept Illegal
19
Alien From Sheriffs Deputies Since September, October 9, 2012).)
20
Sheriff Arpaios public pronouncements, in conjunction with MCSOs admission
21
that the HSU continued to conduct immigration interdictions as part of its regular law
22
enforcement activities, contextualize his July 12, 2012 trial testimony as reflecting a more
23
problematic enforcement approach than just continuing the LEAR policy on an ad hoc
24
basiswhich itself violated the preliminary injunction. At trial, Arpaio testified that,
25
despite the federal government revoking MCSOs 287(g) authorization in 2009, he
26
believed his agency still had the authority, pursuant to a legitimate arrest, to determine
27
that person was here illegally. And then if there was no state charge to book that person
28
into the jail, [to] turn that person over to ICE. (Doc. 572 at 502.) In response to
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questioning by defense counsel, Sheriff Arpaio testified to some instances in which
MCSO continued to retain custody of individuals who could not be lawfully detained on
any criminal charges and attempt to transfer them to federal Border Patrol agents:
4
5
6
7
8
9
Q:
And you have that authority today [July 24, 2012]. In
any of your law enforcement actions can you, if you come
across someone unlawful, detain them?
A:
Yes. . . . I think probably in the last two weeks weve
made over forty arrests of illegal aliens coming into our
county, and a few we did not have the state charge, including
some young children, and ICE did accept those people. . . .
We havent had any problem yet turning those that we cannot
charge in state court over to ICE.
10
(Id. at 50203.) From his testimony and other public statements he has made, a prima
11
facie case has been made that Arpaio directed his deputies to carry out immigration
12
enforcement operations and promulgated a policy within MCSO that individuals who
13
could not lawfully be detained on any criminal charges should still be held solely on
14
suspicion of unlawful presence for months after the Court enjoined such practices.
15
3.
Chief Deputy Gerald Sheridan
16
Sheridan has held the position of MCSOs Chief Deputy since November 2010.
17
(Doc. 840 at 3.) The position is second-in-command in the department and is responsible
18
for supervising all of MCSOs operations on both the enforcement and detention sides.
19
(Doc. 530 at 6.) Neither MCSO nor Sheridan denies that he was a recipient of the e-mail
20
from Timothy Casey to which the December 23, 2011 order was attached. (Doc. 840 at
21
4.) Nevertheless, in his Memorandum re: Criminal Contempt Sheridan asserts that he was
22
not aware of the preliminary injunction when it was issued and it was not his
23
responsibility to disseminate such information. (Id.)
24
Chief Deputy Sheridans deposition testimony in United States v. Maricopa
25
County, provided by Plaintiffs, appears to be inconsistent with these statements. Under
26
oath, Sheridan indicated that it was his responsibility to communicate the injunction to
27
inferior MCSO officers but that he assumed Executive Chief Sands would deal with it.
28
(Doc. 843, Ex. D, at 4649 (Dep. of Gerard Sheridan at 122:1125:7, Maricopa Cnty.,
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No. 2-12-cv-00981-ROS).) Sheridan concedes, however, that he never discussed this
purported delegation with Sands. (Id.) Neither MCSO nor Sheridan took any steps to
ensure MCSOs compliance with the injunction. (Doc. 840 at 4.)
In addition, the Court may evaluate Sheriff Arpaio and Chief Deputy Sheridans
history of non-compliance with respect to other and related orders of this Court in
determining whether contempt is merited in this instance. See Stone, 968 F.2d at 857.
4.
Executive Chief Brian Sands
Before his retirement, Chief Sands was the Chief of Enforcement at MCSO and
reported directly to the Chief Deputy. (Doc. 530 at 6.) With respect to the injunctions
10
execution, Sands allegedly understood it to be the attorneys responsibility to
11
communicate the order to his subordinates, but could not confirm whether or not any
12
directives to this effect had actually been given. (Doc. 843, Ex. C, at 43 (Dep. of Brian
13
Sands at 185:1220, Maricopa Cnty., No. 2-12-cv-00981-ROS).) Therefore, it appears
14
that Executive Chief Sands may also have failed to take reasonable steps to communicate
15
the injunction to the appropriate individuals within MCSO after receiving notice of it
16
from defense counsel.
17
5.
Deputy Chief John MacIntyre
18
Deputy Chief John McIntyre acknowledges that he received notice of the
19
preliminary injunction from Timothy Casey shortly after its issuance. (Doc. 839 at 3.) He
20
further acknowledges that he did nothing to communicate the existence and/or terms of
21
the order to patrol personnel. (Id.) MacIntyre justifies his inaction on the grounds that he
22
believed to be under no obligation to implement the preliminary injunction within
23
MCSO. (Id. at 3; Doc. 838 at 2.) However, as Plaintiffs note, there is evidence suggesting
24
that Deputy Chief MacIntyre may bear accountability. In addition to his duties deriving
25
from his rank as a commander, MacIntyre is an attorney who consults with the County
26
Attorneys Office and outside counsel as needed in MCSOs defense. (Doc. 235, Ex. 1, at
27
12.) Furthermore, in 2009 at least MacIntyre appears to have been a principal contact
28
within MCSO for outside counsel relating to matters involving the Melendres litigation.
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(Doc. 235 at 7.) MacIntyre also assumed responsibility for MCSOs disregard of the
document retention notice sent to Casey as outside counsel for Defendants, (see Doc. 235
at 78, Ex. 3, at 3), that resulted in court-imposed sanctions for spoliation of evidence.
(Doc. 261.) Thus, at some points over the course of this litigation, MacIntyre has
apparently been under just such an obligation to ensure Defendants compliance with its
duties that he now contests. (See Doc. 838.)
6.
Lieutenant Joseph Sousa
Beginning in 2007, Sousa was the unit commander for the HSU. (Doc. 530 at 7.)
Lieutenant Sousa was noticed by Timothy Casey of the preliminary injunction and, in his
10
role as a supervisor, had the ability to direct and oversee the routine policing of inferior
11
officers including Deputy Armendariz. Based on the evidence Plaintiffs have presented of
12
persistent immigration interdiction patrols being conducted by the HSU after December
13
2011, Plaintiffs have sufficiently demonstrated that Lieutenant Sousa may not have taken
14
all reasonable steps as required to ensure the injunction was being complied with by line
15
officers in his division.
16
-------------------------
17
Defendants, joined by the specially appearing non-parties, argue that they had no
18
fault for the deficiencies that resulted in the preliminary injunction not being shared with
19
officers, citing a lack of communication throughout the department. (Doc. 842 at 14,
20
18.) This argument lacks merit. Apart from the evidence in the record that MCSO and
21
Sheriff Arpaio have had no difficulty communicating their enforcement priorities
22
throughout the department, the nature of an injunction is such that compliance is
23
mandatory even if it requires some effort by the party bound; the standard by which a
24
partys efforts to comply are judged is one of reasonableness. See Sekaquaptewa, 544
25
F.2d at 406.
26
Rather than offering evidence that any reasonable steps were undertaken to
27
encourage compliance with the injunction, Defendants insist that their subsequent good
28
faith efforts to disseminate the terms of the May 2013 permanent injunction to MCSO
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personnel should excuse their noncompliance with the previous order. (Doc. 842 at 19.)
As has been previously noted, bad faith is not a prerequisite to a finding of civil
contempt. Stone, 968 F.2d at 856. Further it does little to ameliorate the harms incurred
by the Plaintiff class in the seventeen months after the injunction was issued that in
2013pursuant to a subsequent orderDefendants implemented a new policy . . . to
ensure all deputies received proper training and guidance to ensure compliance with the
Courts Order. (See Doc. 842 at 19.) The history of MCSOs compliance with the
permanent injunction, which incorporated and extended the terms of the preliminary
injunction, does not illustrate good faith on the part of MCSO; rather, it illustrates and
10
justifies, in part, the very necessity of this Order to Show Cause.
11
In evaluating the appropriateness of a contempt order, Defendants record of
12
compliance and non-compliance with this Courts previous orders may be considered. In
13
March and April 2014, the Court held several hearings to address misrepresentations of
14
its orders by multiple high-ranking MCSO officials, including Sheriff Arpaio and Chief
15
Deputy Sheridan. (See Docs. 662, 672.) Sheridan, in addition to describing the permanent
16
injunction as ludicrous, averred that attorneys had informed him the Courts May 2013
17
order was unconstitutionala statement that he later repudiated in a hearing before this
18
Court. These hearings also confirmed that other MCSO command staff members, without
19
having read this Courts orders, were repeating Sheridans mischaracterizations to
20
members of the general public. Sheriff Arpaio and Chief Deputy Sheridan both
21
apologized to the Court, and agreed to sign and promulgate a corrective statement within
22
MCSO. After the text of the statement was drafted by both parties and submitted to the
23
Court for approval, however, Sheriff Arpaio rescinded his assent to sign and distribute it.
24
In the end, the Court coerced the statements transmission to and signature by all MCSO
25
law enforcement personnel, other than Sheriff Arpaio or Chief Deputy Sheridan, via court
26
order under the Monitors supervision. (Doc. 680.) The Defendants compelled
27
circulation
28
mischaracterizations of this Courts orders, therefore, is not an example of past
of
the
memorandum
correcting
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compliance and in no way mitigates the need for the present hearings.
B.
The Federal Rules of Civil Procedure require parties to reasonably and diligently
respond to discovery requests. As the Advisory Committee explains, [i]f primary
responsibility for conducting discovery is to continue to rest with the litigants, they must
be obliged to act responsibly and avoid abuse. Fed. R. Civ. P. 26(g) (Advisory
Committee Notes); cf. Qualcomm Inc. v. Broadcom Corp., No. 05CV1958-B, 2010 WL
1336937 (S.D. Cal. Apr. 2, 2010) (discussing the good faith and professional obligations
inuring to litigants and counsel to search for and produce responsive documents). In
10
addition to Rule 37, the Court possesses inherent powers to punish misconduct in
11
discovery proceedings by an order finding the offending person in contempt. Fed. R. Civ.
12
P. 37(d); Shillitani v. United States, 384 U.S. 364, 370 (1966). Individuals who are not
13
parties to a lawsuit may be held in contempt for their noncompliance with a discovery
14
order. U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 79
15
(1988).
Pre-Trial Discovery Violations
16
During the pre-trial phase of litigation Plaintiffs submitted a number of formal
17
discovery demands, including requests for admissions, requests for documents, and
18
interrogatories, for records on MCSOs traffic stops:
19
20
21
22
23
24
25
26
27
28
Describe all documents that an MCSO officer may request,

review, reference or create during, or as a result of, a Routine
Traffic Stop, including the purposes of each document
identified and the factors that guide the exercise of an
officers discretion, if any, to request such documents from a
driver or passenger.
(Pls. 1st Set Interrogs. at 5.)
If incident histories or summaries of the traffic stops
conducted in the above-listed operations are not contained
with MCSOs computer aided dispatch (CAD) database that
was produced to Plaintiffs, please explain in detail: (1) what
documents would reflect those traffic stops; (ii) how such
documents are created and maintained; and (iii) who would
have access to, or control over, those documents.
(Pls. 2d Set Interrogs. at 4.)
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[Produce] [a]ll documents relating to all traffic stops

performed by every MCSO supervisor, officer, posse member
or volunteer for years 2005 to present
that may include one or
more of the following [information]8. . . [and] [a]ll documents
relating to MCSOs policies, practices, instructions, or
training pertaining to traffic stops of any type. . . .
1
2
3
4
(Pls. 1st Req. Produc. at 78.)
[Produce] [a]ll documents relating to MCSOs Human

Smuggling Unit, Illegal Immigration and Interdiction Unit . . .
or volunteer posses as they pertain to . . . MCSOs
enforcement of federal immigration law, state immigration
law . . . and [t]he performance of Routine Traffic Stops.
6
7
8
9
(Id. at 9.) The term document was defined broadly by Plaintiffs to include all
matters, instruments or other tangible things, including any
electronically stored information (ESI) contained on
computer diskette or other media, within the scope of Federal
Rules of Civil Procedure 26 and 34, including, without
limitation: any and all correspondence, memoranda,
complaints, grievances, citations, booking papers, arrestee
statements, arrest reports, incident reports, field reports,
departmental reports, disciplinary reports or write-ups, draft
reports, preliminary reports, final reports and underlying
materials, witness statements, witness interview summaries,
field interrogation cards, meeting minutes, meeting agendas,
notes of meetings, bulletins, written briefings, intra- and
interoffice communications, including CAD and MDT
reports, policies, manuals, training materials, books of
account, worksheets, desk diaries, appointment books, daily
logs, end-of-shift logs, expense accounts, and records of
every type and description, all written, recorded and graphic
matter of every type and description, electronic mail,
electronic databases, radio logs, recordings, transcriptions of
recordings,
notes
of
conversations,
telegraphic
communications, pamphlets, schedules, studies, books,
computer printouts, photographs and photographic records,
maps, charts, tapes (including video tapes), transcriptions of
tapes, and any other device or medium on or through which
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The location, time and duration of the stop; The specific reason(s) or
justification(s) for the stop; any and all details about the vehicle, such as plate number,
make, model and year; The names of driver(s) and passenger(s); The age, gender and race
or ethnicity of the driver(s) and passenger(s); Whether any driver or passenger was
questioned, warned, cited, searched, arrested, detained or investigated and the reason(s)
therefor; The specific questions asked of driver(s) and passenger(s); Any database checks
run on the driver(s), passenger(s) or vehicle; Whether a search was conducted and the
basis therefor; If searched, whether any contraband was found; and Whether any driver or
passenger was referred to, held for, or subsequently transferred to the custody of ICE and
the reason(s) therefor. (Pls. 1st Req. Produc. at 78.)
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information of any type is transmitted, recorded, or preserved.

The term document also means every copy of a document
where such copy is not an identical.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(E.g., id. at 34.) Despite these requests, Defendants apparently never disclosed to
Plaintiffs that (1) someif not the majorityof MCSO deputies had audio-recording
devices issued to them as a matter of policy; (2) such audio-recording devices were in use
during the relevant discovery periods; (3) at least some MCSO deputies had body- and/or
vehicle-mounted video-recording devices issued to them during the relevant discovery
periods; (4) at least some MCSO deputies recorded their on-duty activities with privately
purchased video equipment during the relevant discovery periods; (5) HSU procedures
apparently required some video recordings of traffic stops to be made; (6) HSU
maintained a catalog of DVDs containing recordings of traffic stops by officers; and (7)
at least some MCSO deputies had video cameras issued to them as a supervisory measure
to monitor their on-duty activities. Defendants apparently never identified nor produced
to Plaintiffs the associated physical copies of these audio and video recordings. In
addition, dozens of personal identifications and items of personal property have been
found in offices previously used by the HSU and elsewhere, along with a number of
boxes of written reports pertaining to HSU operations. There is also no evidence that they
were ever provided to the Plaintiffs as part of Defendants pre-trial discovery obligations
in this matter.
These materials appear to be relevant both to the merits of Plaintiffs civil rights
claims and for impeachment purposes, and their production prior to trial may have led to
the admission at trial of evidence of additional infringements suffered by the Plaintiff
class as a result of MCSOs actions. Such evidence may have resulted in a broader scope
of injunctive relief ultimately entered by this Court. MCSO leadership has acknowledged
that officersboth within the HSU and in other unitswere regularly making audio
recordings of their traffic stops pursuant to departmental practice and that some deputies
even videotaped their traffic stops using devices purchased by MCSO for such purpose.
(Doc. 700 at 21, 2324.) There is also evidence that MCSO officers routinely confiscated
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items of personal property from members of the Plaintiff class during periods that were
either subject to discovery disclosure and/or during the time that the MCSO was violating
the preliminary injunction. Plaintiffs have sufficiently demonstrated the likelihood that
Defendants had at least some of this knowledge at a time in which they had an obligation
under the Federal Rules of discovery to disclose it. For these reasons, Defendants MCSO
and Sheriff Arpaio are ordered to show cause why the non-disclosure of this evidence
does not constitute a contemptuous violation of Defendants pre-trial discovery
obligations.
In addition to the named Defendants, Deputy Chief MacIntyre is also ordered to
10
show cause why he should not be held in contempt for abetting Defendants discovery
11
violations. MacIntyre has already once borne responsibility for evidence spoliation at an
12
earlier stage in this litigation: in July 2008, counsel for Plaintiffs wrote a letter to
13
Timothy Casey demanding the preservation of all MCSO records that had to do with
14
immigration patrols since the initial putative class action complaint was filed and any
15
subsequent crime suppression operations. Deputy Chief MacIntyre is an attorney who
16
also served as Caseys contact within MCSO at this time and admitted that he simply,
17
albeit regrettably, forgot to forward [the demand for documents] to others at the
18
MCSO. . . . (Doc. 235, Ex. 3, at 3.) In an affidavit, MacIntyre explained that his
19
standard practice upon receiving requests for the production

of MCSO documents in litigation or requests to preserve
MCSO documents in litigation . . . [is] to forward such
requests for handling to the MCSO Legal Liaison Division,
and the appropriate personnel within the MCSO that . . . may
have documents potentially responsive to the particular
request.
20
21
22
23
24
25
26
27
28
(Id. at 23.) His statements as to the role he played in MCSOs discovery process are
sufficient evidence that he may also have been responsible for Defendants failure to
disclose the evidence at issue now.
C.
Failure to Cooperate with May 14, 2014 Oral Orders
The third ground on which Plaintiffs assert that Defendants should be ordered to
show cause relates to Defendants non-compliance with the Courts May 14, 2014
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Orders. In sealing the hearing in which the Armendariz evidence was disclosed, the Court
commanded that the information discussed therein be kept confidential. (Doc. 700 at 7,
5051, 69.) The Court then directed Defendants to quietly develop an evidence
collection protocol to retrieve outstanding recordings, such as those made by Armendariz,
that were in the possession of patrol deputies. (Id. at 2527.) The following persons are
ordered to show cause why their conduct subsequent to this hearing did not constitute
contempt of Court:
1.
The Maricopa County Sheriffs Office is responsible for its leaders apparent
10
sharing of confidential information discussed under seal with non-participants, in
11
contravention of this Courts order. At the hearing, both MCSO and the Court
12
acknowledged the need for confidentiality to preserve the efficacy of an ongoing criminal
13
investigation and to discourage the destruction of evidence by culpable parties within
14
MCSO. (Id. at 5, 2223.) In the early afternoon, Deputy Chief Trombi was summoned
15
into a meeting that included Sheriff Arpaio, Chief Deputy Sheridan, and MCSOs
16
attorneys and directed to e-mail division commanders about collecting past video
17
recordings of patrol operations. (Docs. 795, Attach. 1, at 4; Doc. 803 at 59.) Neither
18
Trombi nor any of the twenty-seven MCSO commanders he subsequently notified by
19
memorandum were present at this hearing.
20
The resulting e-mail from Trombi to division commanders, and the survey-
21
approach strategy of collecting the recordings described in the e-mail and ultimately
22
employed by MCSO, also apparently constituted disobedience to the Court. During the
23
hearing, the Court indicated that what it expected from MCSO with respect to a video-
24
retrieval course of action
25
26
27
28
is a thought-through plan that is executed very quickly,

because this is all, likely, already through part of the
department, in which you can quietly gather up such material,
such data, and that you can determine where it was held,
when it was held, and if any particular officer says it was
deleted, when that deletion occurred, and from where. Or
destruction, if it was held on DVDs like Armendarizs.
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(Doc. 700 at 27.) At numerous points the Court discussed the Monitors involvement in
the development of a retrieval plan,9 and near the end of the hearing the Court concluded,
Im going to direct the monitor to work with you on a plan

that he can approve thats your best thinking about how you
can, without resulting in any destruction of evidence, gather
all the recordings, and then based on what you find, and/or
maybe beginning before you can assess what you find,
depending upon your thoughts, you result in an appropriate
and thorough investigation.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(Id. at 41 (emphasis added).) Tim Casey, representing MCSO, affirmatively stated that
the investigation was within the purview of the Monitors authority: [W]e agree that
Bob Warshaw and his team, because of the Armendariz material, have the need, as an
officer of the Court, to investigate those matters. (Id. at 3940.) In the end, the executive
leaders of MCSO and their legal counsel pursued an independent plan without consulting
the monitoring team, communicated that plan to subordinate personnel, and failed to
inform the Monitor at the first available opportunity that they had done so. Chief Deputy
Sheridan and Christine Stutz, another attorney for MCSO who had been present during
the earlier meeting with Trombi, later met with the monitoring team for several hours
discussing investigative strategies for retrieving outstanding recordings without
mentioning that a contrary decision had already been reached and implemented.
2.
Sheriff Joseph Arpaio
Sheriff Arpaio, a named Defendant in this case, was present at the hearing in
which the Court ordered MCSO to develop a plan to comprehensively collect any
outstanding recordings of traffic stops while minimizing the risk of evidence destruction.
He was also apparently present at the meeting in which Deputy Chief Trombi was
instructed by Chief Deputy Sheridan to e-mail commanders. In clear terms, the Court
ordered Arpaio to take full and complete steps to investigate who may have been aware
26
27
28
(See, e.g., Doc. 700 at 27 (I will have my monitor work with you to develop a
proif you want his assistance.); id. at 29 ([D]o your best, and I mean your level best,
come up with a plan, review it with the monitor if you will, if you need to, to recover all
of that data.).)
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that this activity was going on, no matter how high up the chain it goes, and to be
involved in the supervision and the understanding and the direction of . . . such
investigations. (Id. at 37.) Arpaio assented, and further acknowledged the role the
Monitor would play:
The Court:
All right. And you will cooperate completely

with my monitor.
Arpaio:
Yes, I
The Court:
And no information will be withheld from

him. . . . You will cooperate with the monitor,
Sheriff?
Arpaio:
Yes. If we have some differences . . . we will

bring that forward and try to alleviate any
problems.
The Court:
And do that in a timely fashion. But withto

me. But in the meantime, I believe that all
records and all activity pursuant to any of these
investigations is under his authority. And Mr.
Casey, if you have any problem with that, its
time to let me know now.
Casey:
No.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Id. at 3839.) Despite his statements to the Court, Sheriff Arpaio apparently failed to
take such steps as were necessary to ensure MCSO was in compliance with this Courts
May 14, 2014 orders as they related to evidence collection and administrative oversight.
As MCSOs elected leader, Arpaio may delegate the authority vested in him by the
residents of Maricopa County to his subordinates. Ultimately, however, he must bear
responsibility for any deficiencies on their part that causes MCSO as an agency to violate
this Courts directives.
3.
Chief Deputy Gerald Sheridan.
Chief Deputy Sheridan was also present at the May 14 hearing. Apparently at the
direction of Sheriff Arpaio, Sheridan bore primary responsibility for collecting
outstanding recordings and investigating MCSO personnel implicated by the tapes as
having engaged in problematic police practices. (Id. at 37, 40.) Sheridan has admitted
that, despite the sealed nature of the hearing and his admonition that he would work with
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the Monitor, (see id. at 42), he instructed Deputy Chief Trombi to send the e-mail to
commanding officers that countermanded the Courts order and preemptively
undermined the arrangement subsequently agreed to in consultation with the monitoring
team. (Doc. 803 at 59.)
III.
Remedies
Civil contempt sanctions are imposed to coerce obedience to a court order, or to
compensate injured parties for harm resulting from the defendants contemptuous
behavior, or both. Intl Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821,
82728 (1994). Given the remedial purpose of the sanction, a finding of civil contempt
10
should be accompanied by conditions by which the contempt judgment may be purged.
11
United States v. Bright, 596 F.3d 683, 696 (9th Cir. 2010). In contrast, a criminal
12
contempt proceeding punishes intentional disobedience with a judicial order and, thus,
13
vindicates the authority of the court. Bagwell, 512 U.S. at 828. The crime of contempt is
14
completed when the contumacious conduct occurs, regardless of whether the subject later
15
complies with the order he or she violated. The same conduct may give rise to both civil
16
and criminal contempt. Rylander, 714 F.2d at 1001.
17
It is the Courts expectation that these contempt proceedings will allow for the
18
development of an evidentiary record sufficient for the Court to evaluate whether it can
19
fashion an appropriate judicial response that vindicates the rights of the Plaintiff class,
20
and whether other remedies may be appropriate. To this end, the Parties have proposed a
21
number of suggestions for providing remuneration to the individuals harmed by
22
Defendants violations of the injunction and/or an award of damages to the Plaintiff class
23
as a whole. (Doc. 843 at 2225.) However, the feasibility of these measures remains to be
24
seen: Defendants have cautioned, for example, that the compensatory purpose of civil
25
contempt could prove impractical under the circumstances. (Doc. 842 at 17; Doc. 858 at
26
30.) The viability of crafting suitable civil relief for each of the grounds on which
27
contempt is charged will be of chief interest to the Court if Defendants, or their
28
subordinates, are ultimately adjudged to be in contempt of court.
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CONCLUSION
Based upon the foregoing facts, Plaintiffs have set forth sufficient evidence that
MCSO and the aforementioned individuals acted in contempt of this Courts lawful
writs, processes, orders, rules, decrees, or commands by (1) failing to implement and
comply with the preliminary injunction; (2) violating their discovery obligations; and (3)
acting in derogation of this Courts May 14, 2014 Orders. See 18 U.S.C. 401(3).
After an appropriate hearing, the Court will determine whether these individuals
have committed contempt of court and the sanctions for any such violations. In
conjunction with this Order to Show Cause, an order has also been filed granting
10
Plaintiffs requests for expedited discovery in anticipation of an evidentiary hearing in
11
these matters.
12
IT IS THEREFORE ORDERED setting an evidentiary hearing for April 21, 22,
13
23, and 24, 2015. Proceedings will begin daily at 9:00 a.m. in Courtroom 602 of the
14
Sandra Day OConnor Courthouse at 401 W. Washington Street, Phoenix, Arizona
15
85003.
16
IT IS FURTHER ORDERED that the following parties are to appear before the
17
Court and show cause, as indicated, why the Court should not impose sanctions on them
18
pursuant to 18 U.S.C. 401 and/or Federal Rule of Civil Procedure 37(d): the Maricopa
19
County Sheriffs Office, Sheriff Joseph Arpaio, Chief Deputy Gerald Sheridan, Executive
20
Chief (ret.) Brian Sands, Deputy Chief John MacIntyre, Lieutenant Joseph Sousa.
21
///
22
///
23
///
24
///
25
///
26
///
27
///
28
///
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IT IS FURTHER ORDERED that the Clerk of the Court is DIRECTED to
submit a copy of this Order to Show Cause to the United States Marshal for service upon
the following: the Maricopa County Sheriffs Office, Joseph Arpaio, Gerald Sheridan,
Brian Sands, John MacIntyre, and Joseph Sousa. A copy of this Order shall also be
provided to the United States Attorney for the District of Arizona.
Dated this 12th day of February, 2015.
7
8
9
Honorable G. Murray Snow

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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EXHIBIT 13
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1
2
3
4
5
6
8
9
10

situated; et al.
11
ORDER
Plaintiffs,
12
v.
13

County, AZ; et al.
14
15
Defendants.
16
17
18
19
20
21
22
23
24
25
26
27
28
Pending before the Court are Plaintiffs Motion for Expedited Discovery (Doc.
862) and Defendants Motion to Set a Rule 16 Settlement Conference (Doc. 867). For the
reasons set forth below, Plaintiffs Motion (Doc. 862) is GRANTED. Defendants
Motion (Doc. 867) is GRANTED in part and DENIED in part. At this time, the setting
of a pre-trial conference shall not affect the deadlines or schedules set forth in this or any
other Order of the Court.
IT IS HEREBY ORDERED as follows:
1.
Defendants are ordered to produce the following documents, and any
associated privilege logs, by February 27, 2015. Plaintiffs have requested documents
that are relevant to the allegations that Defendants and MCSO personnel violated this
Courts Preliminary Injunction by detaining persons based solely on their belief that the
individuals were unlawfully present in the United States and by using Hispanic
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appearance as a factor in forming reasonable suspicion or probable cause to believe
persons had committed a crime. The documents sought are also relevant to the Courts
ability, through its civil contempt power, to fashion an appropriate remedy for any such
violations. The request is narrowly tailored to the alleged contemptuous conduct.

a. Copies of identification documents seized by MCSO personnel from
apparent members of the Plaintiff Class.
6
7
b. All documents relating to any individuals who were the subject of any U.S.
Immigrations and Customs Enforcement (ICE) or U.S. Customs and Border
Protection (CBP) inquiry and/or individuals who were detained by MCSO
10
after December 23, 2011 based upon suspected unlawful presence in the
11
United States, and who were not charged with or cited for any crime.
12
c. All documents relating to information concerning the circumstances and
13
length of any detention described in (b) above, including, but not limited to,
14
MCSO incident reports, departmental reports, field interview cards, traffic
15
stop data collection forms, CAD data and recordings or MDT records,
16
video or audio recordings, and officer or supervisor notes.
17
d. All documents relating to communications, in any form, between MCSO
18
and CBP or ICE after December 23, 2011 concerning the immigration
19
status or custody status of any individual in MCSO custody or detention.
20
e. All documents in Defendants possession or within their control relating to
21
the Courts December 23, 2011 preliminary injunction order and/or the
22
LEAR policy, as defined in the Courts order, including all documents that
23
mention the preliminary injunction order or its substance that were sent or
24
received by any employee or agent of MCSO and any documents relating to
25
policies or guidance regarding contact with ICE or CBP regarding
26
individuals stopped or detained by MCSO other than in the jail context.
27
28
2.
Plaintiffs are granted leave to propound up to ten written interrogatories.
All interrogatories shall be served by February 27, 2015 and must be completed no later
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1
2
than March 13, 2015.

3.
The Plaintiffs are authorized to take up to ten depositions without further
Order of the Court. Depositions shall be limited to seven hours as provided in Rule
30(d)(2) of the Federal Rules of Civil Procedure. If the Defendants or non-parties that
are subjects of the Order to Show Cause wish to take depositions in advance of the
evidentiary hearing, they should immediately request authorization by the Court. All
depositions are to be concluded by March 27, 2015.
8
9
10
11
4.
The parties and non-party contemnors are ordered to disclose their full and
complete witness lists for the evidentiary hearing to be held on April 2124, 2015 by
March 13, 2015.
5.
Plaintiffs request to subpoena non-party witnesses for documents (1)
12
relating to the Courts December 23, 2011 Order and the LEAR policy, (2) describing
13
their duties at the MCSO during the period of time that includes December 23, 2011,
14
and/or (3) relating to the use of video- or audio-recording devices by MCSO personnel on
15
a traffic stop between 2007 and the present is GRANTED. This request is narrowly
16
tailored to generating information relevant to the grounds on which the contemnors have
17
been ordered to show cause why they should not be held in civil contempt.
18
6.
Plaintiffs request to serve a subpoena duces tecum on the U.S. Department
19
of Homeland Security for documents relating to incidents where Defendants contacted
20
ICE or CBP about an individual in MCSO custody or detention after December 23, 2011
21
is GRANTED. This request is narrowly tailored to the production of documents relevant
22
to the nature and magnitude of Defendants alleged non-compliance with this Courts
23
orders, as well as to the efficacy of any remedies for such non-compliance that this
24
Court may fashion.
25
7.
Defendants are ordered to produce any outstanding documents responsive
26
to Plaintiffs requests for documents dated May 21, 2014 and December 3, 2014, with an
27
accompanying privilege log for any withheld documents, by February 27, 2015.
28
(Reproduced at Doc. 862, Exs. A, B; see also Doc. 872.) Any supplemental responsive
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documents must be disclosed no later than April 14, 2015.1
Defendants MCSO and Sheriff Arpaio, in conjunction with Sheriff Arpaios
specially appearing counsel, have requested a Rule 16 Conference over which this Court
will preside. In their initial Motion the Defendants denominate the requested conference
as a settlement conference; they appear to slightly modify this request in their Reply.
(See Docs. 867, 869.) Plaintiffs have indicated their willingness to confer with
Defendants and report to the Court any progress and whether there is a realistic
possibility of resolution. (Doc. 868 at 3.) MCSO and Sheriff Arpaio, in their Reply,
apparently adopt this suggestion to separately discuss settlement options and further
10
assess whether some litigation matters can be simplified and eliminated, outside of court.
11
The Court is not averse to scheduling a pre-hearing conference to discuss issues if the
12
Parties would find it useful, and to the extent that it would benefit Defendants to schedule
13
it earlier rather than later, (see Doc. 869 at 2), such a hearing is scheduled on Thursday,
14
February 26, 2015 at 1:30pm.
15
Nevertheless, at this point and without further consideration and discussion with
16
the Parties of the matters set forth below, the Court declines to structure the hearing as a
17
confidential settlement conference at which it would act in a mediating role. While
18
willing to facilitate settlement between the parties if such a possibility exists, the Court
19
has the following concerns about its own participation in a settlement conference:
20
First, while a confidential setting may well lead to productive settlement
21
discussions, court proceedings generally are open to the publicalthough settlement
22
conferences are, as a matter of practice, not. Prior to determining whether there is a
23
reason to hold a confidential settlement conference, the Court desires that the parties
24
confer on the matter to set forth whether settlement is a realistic possibility and whether
25
26
27
28
The Court understands that further documents to be provided by Defendants to

Plaintiffs are set forth by Plaintiffs in Doc. 872. Such documents do not seem to be
included in those documents identified by Defendant in Doc. 865. To the extent that the
documents identified in Doc. 872 have not been provided to Plaintiffs they shall be
immediately provided. To the extent that Defendants have fully provided such
documents, they shall immediately so inform the Plaintiffs and the Court.
-4-
(401 of 866)
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ID: 9672081,
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such discussions would be aided by a non-public proceeding with the Court that can be
justified consistent with Ninth Circuit law. See Kamakana v. City & Cnty. of Honolulu,
447 F.3d 1172, 1178 (9th Cir. 2006) (discussing presumption of common law right of
access to the courts and judicial records).
Second, to the extent that Defendants seek to settle the civil contempt proceedings
against the parties and non-parties represented by Ms. Iafrate, the Court declines to
participate in a settlement conference absent a discussion with all parties and potential
parties of the possible ramifications of such participation. Whether the individuals and
entities charged committed civil contempt is a matter to be decided by the Court. Int'l
10
Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994). The Ethics
11
Advisory Opinions note that a judge may participate in settlement conferences and
12
subsequently determine the issues in dispute if no settlement occurs; however, additional
13
concerns arise when the matter will be tried to the judge as opposed to a jury. See Guide
14
to Judiciary Policies and Procedures, Vol. 2, Ch. 2 at 95-1 (Advisory Opinion No. 95). In
15
light of the foregoing, the Court suggests that the parties consider the appointment of a
16
Magistrate Judge from this district for settlement facilitation, all of whom are
17
experienced and skilled in facilitating settlements. The Court is, however, able to confer
18
with the parties on discrete issues as necessary to facilitate settlement prior to holding
19
such a conference. The Court, of course, would have to approve any settlement agreed to
20
among the parties and potential parties.
21
Third, to the extent that Defendants seek to settle potential criminal contempt
22
liability, as the joinder of Mr. McDonald in the request suggests, the Court queries
23
whether any settlement of criminal contempt charges could be appropriately effectuated
24
without the presence of the United States Attorneys Office. In criminal contempt
25
proceedings, the Court must appoint a federal prosecutor to try the case. Fed. R. Crim. P.
26
42. It would, therefore, appear that the United States Attorney, or a representative thereof,
27
is a necessary participant at any formal settlement conference.
28
-5-
(402 of 866)
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With those caveats in mind, the Court ORDERS the Parties and specially
appearing non-parties to appear for a pre-trial conference on Thursday, February 26,
2015 at 1:30 p.m. At this time, the Court will address the matters alluded to in
Defendants Motion to Set a Rule 16 Settlement Conference as well as any other issues or
discovery disputes that require the Courts attention.
6
7
8
The Clerk of the Court is DIRECTED to provide a copy of this Order to the
United States Attorney.
Dated this 12th day of February, 2015.
9
10
11

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-6-
(403 of 866)
EXHIBIT 14
(404 of 866)
Case:
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ID: 9672081,
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Michele M. Iafrate (#015115)

IAFRATE & ASSOCIATES
649 North Second Avenue
Telephone: (602) 234-9775
WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
By Thomas P. Liddy (#019384)
Douglas A. Schwab (#019289)
Deputy County Attorney
MCAO Firm No. 00032000
Attorneys for Defendants Sheriff Joseph M.
Arpaio and Maricopa County Sheriffs Office
UNITED STATES DISTRICT COURT
Manuel de Jesus Ortega Melendres, et al., )
)
Plaintiffs,
)
)
v.
)
)
)
)
Defendants.
)
)
EXPEDITED MOTION TO VACATE
HEARING AND REQUEST FOR
ENTRY OF JUDGMENT
Preliminary Statement
The purpose of this Motion is to convey to the Court and to Plaintiffs that
Defendants Joseph M. Arpaio and Maricopa County Sheriffs Office, and identified nonparty Chief Deputy Gerard Sheridan (collectively, Defendants) consent to a finding of
civil contempt against them and the imposition of remedies designed to address their
conduct. Under these circumstances, a 4-day evidentiary hearing, which would cost the
county taxpayers hundreds of thousands of dollars, and which would consume significant
(405 of 866)
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time of the Court, is unnecessary. Defendants acknowledge and appreciate that they have
violated the Courts orders and that there are consequences for these violations. There is
nothing Defendants can do to change what has already been done, but through the entry
of an order finding them in civil contempt and by implementing remedies discussed
herein, Defendants can express sincere remorse to the Court and to Plaintiffs, begin to
make amends to those who have been injured and take affirmative steps to ensure nothing
like this occurs in the future. Defendants respect the Court and the Courts Orders.
Discussion
The Order to Show Cause identifies the following three areas of contemptuous
9
10
conduct: (1) a failure to abide by and apprise MCSO deputies of the terms of the
11
[December 23, 2011] preliminary injunction. [Doc. 880 at 90]; (2) the failure to
12
disclose audio and video recordings made and maintained by MCSO deputies, as well as
13
other materials maintained by or relating to the MCSO HSU. [Doc. 880 at 20]; and (3)
14
the failure to cooperate with the Courts May 14, 2014 oral directives with respect to the
15
collection of recordings that were in the possession of patrol deputies. [Doc. 880 at 21-
16
22].
17
The facts, with respect to each of these areas, have been discussed in detail in the
18
Order to Show Cause (Doc. 880) and the Plaintiffs Memorandum of Law and Facts re
19
Contempt Proceedings and Request for Order to Show Cause (Doc. 843). Defendants do
20
not intend to present any arguments or evidence which materially dispute these facts.
21
Thus, consuming the Courts time and the parties time is unnecessary and wasteful. See
22
Thomas, Head and Greisen Employees Trust v. Buster, 95 F.3d 1449, 1458-59 (9th Cir.
23
1996) (a finding of contempt without a hearing did not constitute a denial of due process
24
when alleged contemnors do not present any arguments which created any material issues
25
of fact); Peterson v. Highland Music, Inc., 140 F.3d 1313, 1324 (9th Cir. 1998) (district
26
court did not abuse discretion finding contempt on basis of affidavits submitted in
27
response to order to show cause when defendants did not controvert plaintiffs facts);
28
New York State Natl Organization for Women v. Terry, 732 F. Supp. 388, 396 n.3 (S.D.
-2-
(406 of 866)
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N.Y. 1990)(hearing not necessary when no material facts in dispute; defendants did not
dispute the fact they blocked access to abortion clinic and did not dispute they had
knowledge of court order prohibiting them from doing so). 1

Accordingly, Defendants will adopt and stipulate to the facts as stated in the
4
5
Courts Order to Show Cause, as well as to the entry of an order finding them in civil
contempt of court, as described in the Order to Show Cause. To the extent the Court
believes that such a stipulation is not sufficient to establish an appropriate factual basis to
support an order finding Defendants in contempt, Defendants attach at Exhibit A a
proposed statement of facts, to which they will stipulate as well.

A necessary component of a civil contempt is the imposition of a remedy that
10
11
ensures compliance and compensates injured parties for harm they have suffered. Intl
12
Union, United Mine Workers of Am. V. Bagwell, 512 U.S. 821, 827-28 (1994).
13
Defendants and their legal counsel are committed to identifying and implementing
14
measures that accomplish both of these objectives. In particular, Defendants
15
acknowledge that the remedies will encompass the identification and compensation of
16
individuals who were harmed by violations of the December 23, 2011 preliminary
17
injunction, as well as putting in place structural measures to ensure that the Courts
18
orders are disseminated and complied with in a timely fashion. Defense counsel,
19
plaintiffs counsel, and the court monitor can collectively meet and confer and present a
20
plan for Court. Defendants further acknowledge that in order for some of the remedies to
21
be meaningful, they will need to be the responsibility of Defendants personally. To that
22
///
23
///
24
///
25
///
26
27
28
In addition, this ongoing litigation is taking a heavy toll on the manpower and resources
of MCSO by diverting management from their law enforcement functions to the
detriment of the public safety and welfare.
-3-
(407 of 866)
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end, attached at Exhibit B is a proposed list of remedial measures to which Defendants
are prepared to stipulate and implement. 2

Relief Requested
Defendants have been ordered to appear before the Court and show cause . . .
4
5
why the Court should not impose sanctions on them pursuant to 18 U.S.C. 401 and/or
Federal Rule of Civil Procedure 37(d). [Doc. 880 at 26] Because Defendants, by their
stipulations, consent to the Court imposing sanctions upon them, there is no need for an
evidentiary hearing. Accordingly, Defendants request that the evidentiary hearing set for
April 21 24, 2015 be vacated and that the Court enter orders finding Defendants in civil
10
contempt and imposing the remedial measures identified in Exhibit B. See Mercer, 908
11
F.2d at 769 n.11 (When there are no disputed factual matters that require an evidentiary
12
hearing, the court might properly dispense with the hearing prior to finding the defendant
13
in contempt and sanctioning him.); U.S. v. Ayres, 166 F.3d 991, 996 (9th Cir. 1999) (no
14
need for hearing when defendant conceded contempt motion by explaining why he chose
15
not to comply with court order rather than asserting he could not comply); United States
16
v. City of Yonkers, 856 F.2d 444, 453 (2d Cir. 1988) (need for plaintiffs to present
17
evidence to meet burden to establish defendants contempt was obviated when defendants
18
did not dispute the representation they had violated courts order); In re Grand Jury
19
Proceedings, 795 F.2d 226, 234-35 (1st Cir. 1986) (evidentiary hearing not required
20
where documentary evidence established the contempt and no material issues of fact
21
about ownership of documents in question were raised); Hush v. Taylor, 995 N.Y.S. S.2d
22
336, 339 (2014) (no evidentiary hearing necessary on question whether defendants had
23
24
25
26
27
28
The remedies proposed in Exhibit B are suggestions to the Court that the Court may
adopt, reject or modify, at its discretion. The remedies are designed to address the courts
directives mentioned in the February 26, 2015 status conference in which the Court
stated: I dont want to refer this matter to a criminal contempt hearing if I can have
adequate assuranceif I can have adequate remedies for the victims of this case; if I can
have, if I believe it is necessary, a punitive element to the individuals who may have been
culpable of criminal contemptuous behavior such that it will not happen again. See
February 26, 2015 transcript pp. 62:20-63:1.
-4-
(408 of 866)
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violated court order not to interfere with plaintiffs use of rights-of-way and easements
where defendants did not dispute factual allegations or challenge authenticity of
underlying property deeds).
4
5
6
7
RESPECTFULLY SUBMITTED March 17th, 2015.

By:
Michele M. Iafrate
Attorneys for Sheriff Joseph M. Arpaio
and Maricopa County Sheriffs Office
9
10
11
12
13
14
MARICOPA COUNTY ATTORNEY

CIVIL SERVICES DIVISION
By:
s:/Thomas P. Liddy (w/permission)

Thomas P. Liddy
Douglas A. Schwab
Attorneys for Sheriff Joseph M. Arpaio
and Maricopa County Sheriffs Office
15
16
17
18
s:/Michele M. Iafrate
JONES SKELTON & HOCHULI
19
20
By:
21
22
23
24
25
26
s:/A. Melvin McDonald (w/permission)

A. Melvin McDonald
Attorney for Sheriff Joseph M. Arpaio
MITCHELL STEIN & CAREY

By:
27
28
-5-
s:/Lee Stein (w/permission)

Lee Stein
Barry Mitchell
Attorneys for Chief Deputy Sheridan
(409 of 866)
Case:
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ID: 9672081,
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1
2
3
4
I hereby certify that on March 17th, 2015, I electronically transmitted the attached
document using the CM/ECF system for filing, and which will be sent electronically to
all registered participants as identified on the Notice of Electronic Filing, and paper
copies will be sent to those indicated as non-registered participants.
5
6
7
s:/Jill Lafornara
8
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-6-
(410 of 866)
EXHIBIT 15
(411 of 866)
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ID: 9672081,
1004DktEntry:
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1
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5

cwang@aclu.org
ACLU Foundation
39 Drumm Street
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
6
7
8
9
10
11
12
13
14
Daniel J. Pochoda
dpochoda@acluaz.org
Joshua D. Bendor
jbendor@acluaz.org
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
15

16
17
18

et al.,
19
20
Plaintiff(s),
v.
21
22
23
24
25
26
27
28

Defendants(s).
)
)
)
)
)
)
)
)
)
)
)
)
CV-07-2513-PHX-GMS
PLAINTIFFS OPPOSITION
TO DEFENDANTS
SUPPLEMENTAL MOTION TO
VACATE HEARING AND
REQUEST FOR ENTRY OF
JUDGMENT
(412 of 866)
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asegura@aclu.org
ACLU Foundation
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
alai@law.uci.edu
Irvine, CA 92697-8000
Telephone: (949) 824-9894
Facsimile: (949) 824-0066
syoung@cov.com
hbyun@cov.com
333 Twin Dolphin Drive
Suite 700
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
talbarran@cov.com
One Front Street
Telephone: (415) 591-7066
Facsimile: (415) 955-6566
pdodson@cov.com
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
Telephone: (202) 662-5996
Facsimile: (202) 778-5996

Educational Fund
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
(413 of 866)
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ID: 9672081,
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Plaintiffs oppose Defendants supplemental motion to vacate. Plaintiffs believe
that the evidence, much of it yet to be seen by the Court, will demonstrate that there
were intentional and, as to the December 23, 2011 preliminary injunction, extended
violations of the Courts orders, which is relevant to the inquiry into the proper remedy
for those violations. Defendants proposed stipulation of facts fails to recite the facts
that the scheduled hearing will bring to light. Plaintiffs believe that, among other
things, an appropriate remedy for the violations will include greater oversight and
control by the Monitor over the operations of the MCSO so as to prevent the future
violation of the Courts remedial orders. A hearing will allow presentation to the
10
Court of the reasons for the violations and evidence about what will be required to
11
avoid repetition, which will facilitate the Courts decision about the appropriate
12
remedy.
13
RESPECTFULLY SUBMITTED this 13th day of April, 2015.
14
15
By: /s/ Stanley Young
16

ACLU Foundation
17
18
19
Daniel Pochoda
Joshua D. Bendor
20
21
22
23
24
25
26

Educational Fund
27
28
1
(414 of 866)
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1004DktEntry:
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I hereby certify that on April 13, 2015, I electronically transmitted the attached
document to the Clerks office using the CM/ECF System for filing and caused the
attached document to be e-mailed to:
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Thomas P. Liddy
Michele M. Iafrate
Attorneys for Defendant Sheriff Joseph Arpaio and the
Maricopa County Sherriffs Office
A. Melvin McDonald
Attorney for Defendant Sheriff Joseph Arpaio
Gary L. Birnbaum
gbirnbaum@dickinsonwright.com
David J. Ouimette
douimette@dickinsonwright.com
Attorneys for Deputy Chief Jack MacIntyre
Lee Stein
lee@mitchellsteincarey.com
Barry Mitchell
barry@mitchellsteincarey.com
Attorneys for Chief Deputy Jerry Sheridan
19
20
21
22
23
Gregory Stephen Como

greg.como@lewisbrisbois.com
Dane Adam Dodd
dane.dodd@lewisbrisbois.com
John Douglas Wilenchik
jackw@wb-law.com
Attorneys for Executive Chief (ret.) Brian Sands
24
25
26
David S. Eisenberg
david@deisenbergplc.com
Attorney for Joseph Sousa
27
/s/ Stanley Young
28
2
(415 of 866)
EXHIBIT 16
(416 of 866)
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situated; et al.
12
v.
13

County, AZ; et al.
15
ORDER
Plaintiffs,
11
14
Defendants.
16
17
Before the Court are Defendants Motions relating to the show cause hearing
18
scheduled to begin on April 21. On March 17, 2015, Defendants filed a Motion to vacate
19
the hearing and enter findings of civil contempt against Sheriff Joseph Arpaio, the
20
Maricopa County Sheriffs Office, and named contemnor Gerald Sheridan. (Doc. 948.)
21
Defendants filed a supplemental Motion to Vacate on April 10, 2015 (Doc. 1003), and
22
have now moved for an expedited hearing on these issues (Doc. 1005). Plaintiffs have
23
opposed Defendants requests to vacate the evidentiary hearing. (Docs. 952, 1004.)
24
As the Court indicated during the March 20, 2015 status conference, it would
25
grant Defendants request to vacate the contempt hearing upon its approval of the terms
26
of a global settlement of civil liabilityif an agreement were timely reached between
27
Plaintiffs and the contemnors that mooted the need for a hearing on the civil charges. (See
28
Doc. 965 at 5961.) According to Defendants most recent filing, negotiations with
(417 of 866)
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Plaintiffs have not been fruitful in this regard. (Doc. 1005 at 1.) In addition to outstanding
questions regarding the liability of the other named contemnors, Plaintiffs indicate that
they wish to present facts relating to the scope of, and circumstances surrounding, the
admitted contempt of Sheriff Arpaio, MCSO, and Chief Deputy Sheridan, which are
relevant to the appropriateness of any remedies the Court might order to address that civil
contempt. Plaintiffs may present evidence on these matters at the April hearing and/or, if
necessary, during the supplemental hearing scheduled for June 1619, 2015. Thus, the
hearing to begin next week shall proceed as planned, as will any supplemental hearings.
In evaluating the need to refer the matter for criminal contempt hearings, the Court
will keep in mind that Defendants Arpaio and Sheridan expressed willingness to settle the
matter prior to the civil contempt hearing by publicly admitting to civil contempt, by
voluntarily paying personal amounts to a charitable organization, and by seeking to
facilitate other terms of settlement with the Maricopa County administration. The Court
will complete its evaluation regarding the need to refer the matter for criminal contempt
after the civil contempt hearing(s) have been completed.
IT IS THEREFORE ORDERED that Defendants Motions to Vacate (Docs.
948, 1003) are DENIED without prejudice. Because oral argument is unlikely to
materially add to the Parties briefs, Defendants Motion for a Hearing (Doc. 1005) is
also DENIED.
21
22

23
24
25
26
27
28
-2-
(418 of 866)
EXHIBIT 17
(419 of 866)
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ID: 9672081,
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837
THIRD REPORT
Independent Monitor
For the
Review Period Fourth Quarter 2014

Robert S. Warshaw
Independent Monitor
April 16, 2015
(420 of 866)
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Table of Contents
Section 1: Introduction ................................................................................................................. 3
Section 2: Executive Summary .................................................................................................... 4
Section 3: Implementation Unit Creation and Documentation Requests................................ 7
Section 4: Policies and Procedures ............................................................................................ 10
Section 5: Pre-Planned Operations ........................................................................................... 26
Section 6: Training...................................................................................................................... 32
Section 7: Traffic Stop Documentation and Data Collection.................................................. 47
Section 8: Early Identification System (EIS)............................................................................ 71
Section 9: Supervision and Evaluation of Officer Performance............................................. 80
Section 10: Misconduct and Complaints................................................................................. 100
Section 11: Community Engagement ...................................................................................... 106
Section 12: Concluding Remarks ............................................................................................ 112
Page 2 of 113
(421 of 866)
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Section 1: Introduction
This is my third report issued in my capacity as the Court-appointed Monitor in the case of
Manuel de Jesus Ortega Melendres, et al., v. Joseph M. Arpaio, et al. (No. CV-07-02513-PHXGMS), and documents activities occurring during the fourth quarter of 2014.
This review period saw measured progress in some areas, such as policy development and
training, contrasted by a lack of advancement in other key areas which are critical to the
Maricopa County Sheriffs Office (MCSO) coming into compliance with the Supplemental
Permanent Injunction/Judgment Order (Order) issued by the Honorable G. Murray Snow in the
above-referenced litigation. Advances and setbacks will be chronicled in the pages that follow.
Subsequent to my appointment, and as a result of further Court proceedings, my duties have been
expanded in the areas of community engagement, oversight of internal investigations, and
independent investigative authority. The Order was amended on April 4 th, 2014 with respect to
community engagement, and therefore my community engagement activities and those of my
Team are detailed in this report.
Our expanded authority regarding investigations MCSOs and our own is outside the
confines of the Order and will not be addressed in detail here. There are other mechanisms
established to advise the Court and the Parties of our activities, which respect the confidentiality
issues associated with this subject matter. However, I am compelled to comment in general
regarding some of the insights we have gained from that process as they have a direct bearing on
MCSOs ability to comply with the Orders requirements.
We have stressed from the beginning of our tenure that complying with the Order can be neither
a paper and pencil, or a check the box exercise. Unless there are systemic and cultural changes
in the organization, all of the new structures and forms implemented to address technical
compliance with the Order will not significantly impact delivery of law enforcement services to
the community or increase the level of trust for certain segments of MCSOs service population.
This has been brought into sharp focus as we fulfill our other responsibilities.
There is lack of leadership at all levels of the Maricopa County Sheriffs Office, and in
particular, in the upper command ranks of the Office. In short, the organization, and its
leadership team, has failed both the community and its personnel. Incumbents in command
positions are quick to blame their predecessors for misdeeds, be they acts of commission or
omission. This is done while completely ignoring their own complicity during the events which
led to this litigation and throughout the duration of the Court proceedings. Each of the current
command staff held accountable positions under their predecessor superiors and followed their
lead without challenge.
MCSO does not provide formal supervisory training prior to, or at the time of promotion of their
personnel to supervisory positions. There exists no documented training process within the
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organization to develop, implement, and improve supervision. While MCSO successfully

delivered the legal training required by the Order, the development of Order-required
supervisory training has stalled, despite accommodations by the Plaintiffs and my Team to allow
for the offering of training in two phases in order to expedite its delivery.
This is not to say that MCSO does not have good personnel and, in some cases, good
supervisors. We have met many. But they seem to acquire their skill sets in spite of and not
because of the environment in which they work. In general, MCSOs supervisors are set up for
failure due to a lack of training and a lack of agency wide systems of accountability.
MCSO has made progress in implementing the Orders requirements, and it is not my intent to
minimize that progress. It is well documented in these pages. But without systemic changes that
reach to every level of the Office, the ethos which allowed the activities at the heart of this
litigation to flourish will not be significantly impacted.
Section 2: Executive Summary

The Order is divided into several main parts, as outlined below, along with a brief description of
some of the developments in each area over the review period.
COURT ORDER III. MCSO IMPLEMENTATION UNIT AND INTERNAL AGENCYWIDE ASSESSMENT: MCSOs Court Compliance and Implementation Division saw
an increase in staff over the review period. The Captain and his staff continue to be
available and responsive to our requests. The Division published its quarterly report as
required by Paragraph 11.
COURT ORDER V. POLICIES AND PROCEDURES: MCSO has promulgated and
trained to the policies identified in this section of the Order. The policies were distributed
in conjunction with the agency wide Fourth and Fourteenth Amendment training which
was completed during the review period. While this training provided the vehicle for
documenting receipt of these policies, MCSO is still developing a system to document
receipt of policies that are distributed outside of Order-mandated training.
COURT ORDER VI. PRE-PLANNED OPERATIONS: During this reporting period,
MCSO conducted Operation Borderline from October 20th, 2014 to October 27th, 2014.
This operation was intended to interdict the flow of narcotics being transported into
Maricopa County. MCSO complied with all requirements as outlined in this section of
the Order.
COURT ORDER VII. TRAINING: MCSO completed delivery of the Fourth and
Fourteenth Amendment Training during this review period. However, progress has
stalled on development of the Supervisory Training required by the Order. MCSOs
policy GG-2 Training Administration requires substantial changes. Review of this
policy was delayed because of conflicting information provided by CCID and the Deputy
Chief responsible for Training.
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COURT ORDER VIII. TRAFFIC STOP DOCUMENTATION AND DATA

COLLECTION AND REVIEW: MCSO continues to provide traffic stop data to us on a
monthly basis. Most of the systems used to collect the data have been automated, and
deputies for the most part are complying with the information capture and documentation
requirements associated with traffic stops. We also continue to note some of the
inadequacies of MCSO practices surrounding the setting of alert thresholds used for
ongoing monthly and quarterly data analyses related to these. However, MCSO is in the
process of contracting with an outside consultant to improve the statistical legitimacy of
their monthly, quarterly and annual analyses of data. On October 10th, 2014, the Order
was amended to allow MCSO to substitute on-person recording devices for fixed
mounted recording devices. MCSO has received approval for the purchase of this
equipment and is in the process of drafting policies to cover all aspects of their
distribution, operation and maintenance. We intend to have an active role in assessing the
quality of these policies.
COURT ORDER IX. EARLY IDENTIFICATION SYSTEM (EIS): The policies
which describe the EIS and the Bureau of Internal Oversight in which it is housed remain
under development. MCSO in in the process of acquiring software (EI Pro) which should
address an issue we have raised in prior reports the lack of unfettered access by
supervisors to their subordinates information stored in the EIS System.
COURT ORDER X. SUPERVISION AND EVALUATIONS OF OFFICER
PERFORMANCE: We have noted deficiencies in GB-2, Command Responsibility, and
the policy is in the process of being revised. We note that many supervisors are not
adequately documenting their interactions with their deputies or properly memorializing
their oversight of deputy activity. MCSO has yet to create a daily activity log that would
provide an additional means for supervisors to monitor the activities of their deputies, and
also allow for documentation of supervisory response to scenes. This is a matter that we
have raised with the organization since the inception of our engagement.
COURT ORDER XI. MISCONDUCT AND COMPLAINTS: While necessary policies
have been promulgated, and training begun, the turnover in personnel impedes the ability
of MCSO to adequately conduct investigations and respond to concerns about the
performance of employees in a consistent and cohesive fashion, particularly at the
District level. There is a disparity in the quality and types of documentation submitted,
depending on which unit conducts an investigation. MCSO has made no progress in the
area of integrity testing as required by Paragraph 103.
COURT ORDER XII. COMMUNITY ENGAGEMENT: Two community outreach
events were held during this review period. The purpose of these events is to inform
community members of the many changes taking place within MCSO, as well as to
provide community members the opportunity to voice support or criticism in a safe
forum. The responsibility for Community Engagement has been transferred to the
Monitor. However, key members of the MCSOs leadership, representatives from the
Court Compliance Implementation Division, and District personnel have participated at
each of these events.
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This report documents compliance with applicable order requirements, or Paragraphs, in two
phases. For Phase 1, compliance is assessed according to whether requisite policies and
procedures have been developed and approved and agency personnel have received documented
training on their contents. For Phase 2 compliance, generally considered operational
implementation, MCSO must demonstrate that the applicable Order requirements are being
complied with more than 94% of the time, or in more than 94% of the instances being reviewed.
We use four levels of compliance: In compliance, Not in compliance, Deferred, and Not
applicable. In compliance and Not in compliance are self-explanatory. Deferred is used in
circumstances in which we are unable to fully determine the compliance status due to a lack of
data or information, incomplete data, or other reasons which are explained in the narrative of the
report. We will also use Deferred in those situations in which the Office, in practice, is fulfilling
the requirements of a Paragraph but has not yet memorialized the requirements in a formal
policy. Not applicable is only used when describing Phase 1 compliance, and is reserved for
those Paragraphs where a policy is not required.
The table below and subsequent chart summarize the compliance status of paragraphs tracked in
this report. The percent in compliance estimate of 44.3 percent for Phase I is calculated by
dividing the number of Order paragraphs determined to be in compliance by the total number of
paragraphs requiring a corresponding policy or procedure. Paragraphs with the status of
Deferred are included in the denominator, while paragraphs with the status of Not Applicable are
not included. The percent in compliance estimate of 25.8 percent for Phase II is calculated in the
same manner (as there are no paragraphs Not Applicable to Phase II, the denominator is 89).
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Section 3: Implementation Unit Creation and Documentation Requests

COURT ORDER III. MCSO IMPLEMENTATION UNIT AND INTERNAL AGENCYWIDE ASSESSMENT (court order wording in italics)
Paragraph 9. Defendants shall hire and retain, or reassign current MCSO employees to form an
interdisciplinary unit with the skills and abilities necessary to facilitate implementation of this
Order. This unit shall be called the MCSO Implementation Unit and serve as a liaison between
the Parties and the Monitor and shall assist with the Defendants implementation of and
compliance with this Order. At a minimum, this unit shall: coordinate the Defendants
compliance and implementation activities; facilitate the provision of data, documents, materials,
and access to the Defendants personnel to the Monitor and Plaintiffs representatives; ensure
that all data, documents and records are maintained as provided in this Order; and assist in
assigning implementation and compliance-related tasks to MCSO Personnel, as directed by the
Sheriff or his designee. The unit will include a single person to serve as a point of contact in
communications with Plaintiffs, the Monitor and the Court.
Shortly after the issuance of the Order, MCSO created an Implementation Unit. At the beginning
of our tenure, the Unit was staffed with a Captain, two Lieutenants, and two Sergeants. As
mentioned in our last report, the Unit has undergone some transition and continues to do so. The
initial driving force behind most of the early changes has been the promotions of incumbents,
resulting in their transfers, although additional staff was added. One of the original Lieutenants
is now a Captain and has assumed command of the Court Compliance and Implementation
Division (CCID), formerly the Implementation Unit. His staff has grown significantly, and as of
this writing consists of one lieutenant, five sergeants, two deputies, one management analyst, and
one administrative assistant. The Captain and his staff continue to be responsive to all of our
requests. The Division is well supported by MCAO attorneys, who frequently participate in our
meetings and phone calls with Division Personnel.
Compliance Status:
Phase 1: Not Applicable
Phase 2: In compliance
Paragraph 10. MCSO shall collect and maintain all data and records necessary to: (1)
implement this order, and document implementation of and compliance with this Order,
including data and records necessary for the Monitor to conduct reliable outcome assessments,
compliance reviews, and audits; and (2) perform ongoing quality assurance in each of the areas
addressed by this Order. At a minimum, the foregoing data collection practices shall comport
with current professional standards, with input on those standards from the Monitor.
As mentioned above, CCID has always been responsive to our requests. In many instances, we
have asked for material that has not been routinely collected or even generated by MCSO. In
this respect, our first several months served as a learning curve for CCID and our team regarding
what may be available and the best ways to produce it. Our first inquiries focused on policies
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more than data. As progress on policies moved forward, our requests have become more data
driven. Despite their diligent efforts, CCID on occasion struggles with compiling compliance
data in a timely manner. As of this writing, some of our requests made before and during our
December site visit remain unfilled, and consequently the requested material cannot be
considered when determining compliance verification.
We have taken two significant steps to address this issue. First, we adjusted the dates of our full
Team site visits, pushing them back by one month. Second, we collaborated with CCID on a list
of data that will be collected and sent to the Monitoring Team on a monthly basis. This should
relieve some of the pressure of assembling the entire data request at the end of the quarter. It
will also allow our Team members additional time to review the data for compliance verification
purposes. We will continue to work with MCSO on what constitutes appropriate compliance
assessment data, as well as assess if these changes alleviate some of the data collection issues.
Compliance Status:
Phase 1: Not applicable
Phase 2: Deferred
Paragraph 11. Beginning with the Monitors first quarterly report, the Defendants, working with
the unit assigned for implementation of the Order, shall file with the Court, with a copy to the
Monitor and Plaintiffs, a status report no later than 30 days before the Monitors quarterly
report is due. The Defendants report shall (i) delineate the steps taken by the Defendants during
the reporting period to implement this Order; (ii) delineate the Defendants plans to correct any
problems; and (iii) include responses to any concerns raised in the Monitors previous quarterly
report.
MCSO filed its Fourth Quarter Report for 2014 as required by this Paragraph on February 25th,
2015. MCSOs report covers the period from October 1, 2014 December 31, 2014.
Their report was divided into three major Parts. PART I: Background and Overview of MCSOs
Major Efforts Towards Compliance, outlines the key activities undertaken by MCSO and CCID
during the reporting period. It also includes a table that was developed from information
provided in our Second Quarterly Report (covering the reporting period of July 1 September
30, 2014) and then updated by MCSO to reflect what MCSO believes to be its compliance
progress. It appears that MCSOs assessment is based on publication of policies (which we
distinguish as Phase 1 compliance) rather than compliance in practice with the Orders
requirements. MCSO also highlighted its compliance with the Courts Corrective Statement
Order of April 2014, and its successful completion of the Fourth and Fourteenth Amendment
Training in December 2014.
PART II: Steps Taken By MCSO and Plans to Achieve Full and Effective Compliance, provides
greater detail on MCSOs activities working towards compliance, and is organized by the major
sections of the Order.
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PART III: Response to Concerns Raised in Monitors Previous Quarterly Report, addresses some
of the concerns raised in our Second Report. In one instance, MCSO cites the numerous times
that Policy GG-2: Training Administration, was provided for our review. The report fails to
mention the numerous times we advised MCSO that their Training Director asserted that this
policy was under revision and the policy we were provided would be changed. We therefore
refrained from reviewing it. The Training Director took this position as recently as our
December site visit, after our last report was published.
In another instance, MCSO cites documentation it provided on December 9th, 2014 in response to
one of our document requests. This material was received after the Second Report was drafted
and circulated to the Parties.
MCSO submitted its status report in a timely manner, and is compliance with this Paragraph.
Compliance Status:
Paragraph 12. The Defendants, working with the unit assigned for implementation of the Order,
shall conduct a comprehensive internal assessment of their Policies and Procedures affecting
Patrol Operations regarding Discriminatory Policing and unlawful detentions in the field as well
as overall compliance with the Courts orders and this Order on an annual basis. The
comprehensive Patrol Operations assessment shall include, but not be limited to, an analysis of
collected traffic-stop and high-profile or immigration-related operations data; written Policies
and Procedures; Training, as set forth in the Order; compliance with Policies and Procedures;
Supervisor review; intake and investigation of civilian Complaints; conduct of internal
investigations; Discipline of officers; and community relations. The first assessment shall be
conducted within 180 days of the Effective Date. Results of each assessment shall be provided to
the Court, the Monitor, and Plaintiffs representatives.
See Paragraph 13.
Compliance Status:
Phase 2: Deferred
Paragraph 13. The internal assessments prepared by the Defendants will state for the Monitor
and Plaintiffs representatives the date upon which the Defendants believe they are first in
compliance with any subpart of this Order and the date on which the Defendants first assert they
are in Full and Effective Compliance with the Order and the reasons for that assertion. When the
Defendants first assert compliance with any subpart or Full and Effective Compliance with the
Order, the Monitor shall within 30 days determine whether the Defendants are in compliance
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with the designated subpart(s) or in Full and Effective Compliance with the Order. If either party
contests the Monitors determination it may file an objection with the Court, from which the
Court will make the determination. Thereafter, in each assessment, the Defendants will indicate
with which subpart(s) of this Order it remains or has come into full compliance and the reasons
therefore. The Monitor shall within 30 days thereafter make a determination as to whether the
Defendants remain in Full and Effective Compliance with the Order and the reasons therefore.
The Court may, at its option, order hearings on any such assessments to establish whether the
Defendants are in Full and Effective Compliance with the Order or in compliance with any
subpart(s).
MCSO submitted its first internal assessment on April 7, 2014. The 11-page document outlined
MCSOs efforts to comply with the Orders requirements, and discussed Patrol Operations,
Written Policies and Procedures, Training, Supervisor Review, Intake and Investigation of
Civilian Complaints, Discipline of Officers, Community Relations, and Miscellaneous
Procedures. We found the document to be informative and a very good summary of the state of
play as we were beginning our tenure. All of these areas have been topics of our meetings,
discussions and correspondence with CCID personnel and other MCSO staff. MCSOs and the
Monitors responsibilities in some of these areas have been modified by Court Order. MCSO did
not assert Full and Effective Compliance with the Order during this review period.
During our December site visit, we and CCID established the schedule for future comprehensive
annual assessments as required by these Paragraphs. They will cover MCSOs fiscal year, which
runs from July 1st to June 30th. Reports are to be submitted on or before September 15th.
Compliance Status:
Phase 2: Deferred
Section 4: Policies and Procedures
COURT ORDER V. POLICIES AND PROCEDURES
Paragraph 18. MCSO shall deliver police services consistent with the Constitution and laws of
the United States and State of Arizona, MCSO policy, and this Order, and with current
professional standards. In conducting its activities, MCSO shall ensure that members of the
public receive equal protection of the law, without discriminating based on actual or perceived
race or ethnicity, and in a manner that promotes public confidence.
Paragraph 19. To further the goals in this Order, the MCSO shall conduct a comprehensive
review of all Patrol Operations Policies and Procedures and make appropriate amendments to
ensure that they reflect the Courts permanent injunction and this Order.
MCSO Policy GA-1 (Development of Written Orders) states that policies will be reviewed
annually or as deemed appropriate, and revised, as necessary, by Policy Development. MCSO
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has taken steps towards a comprehensive review of its Patrol Operations Policies and Procedures
in three phases. First, on December 31, 2013, prior to my appointment as Monitor, MCSO filed
with the Court all of its policies and procedures, with amendments, that MCSO believed
complied with the various Paragraphs of the Order. Second, in the internal assessment
referenced above, MCSO discussed its ongoing evaluation of Patrol Operations and its
development of policies and procedures. Third, MCSO, in response to our requests, provided all
of the policies and procedures it believes are applicable to the Order for our review and that of
the Plaintiffs. MCSO received our feedback on these policies, which also included the Plaintiffs
comments, on August 12, 2014. Based on that feedback, MCSO made adjustments to many of
the policies, concentrating first on those policies to be disseminated in Detentions, Arrests, and
the Enforcement of Immigration-Related Laws Training and the Bias Free Policing Training
(often referred to as Fourth and Fourteenth Amendment Training) that commenced in early
September. We reviewed MCSOs updated policies and provided our approval for several on
August 25, 2014. Many policies unrelated to the training, however, remain in development, and
MCSO has not completed a review of ALL Patrol policies and procedures for potential conflicts
with the Orders requirements. We will work with MCSO to identify an acceptable means to
document such a review in the next reporting period.
Compliance Status:
Phase 2: Not in compliance
Paragraph 20. The MCSO shall comply with and operate in accordance with the Policies and
Procedures discussed in this Order and shall take all reasonable measures to ensure that all
Patrol Operations personnel comply with all such Policies and Procedures
a. Policies and Procedures to Ensure Bias-Free Policing

Paragraph 21. The MCSO shall promulgate a new, department-wide policy or policies clearly
prohibiting Discriminatory Policing and racial profiling. The policy or policies shall, at a
minimum:
a.
define racial profiling as the reliance on race or ethnicity to any degree in making law
enforcement decisions, except in connection with a reliable and specific suspect description;
b.
prohibit the selective enforcement or non-enforcement of the law based on race or
ethnicity;
c.
prohibit the selection or rejection of particular policing tactics or strategies or locations
based to any degree on race or ethnicity;
d.
specify that the presence of reasonable suspicion or probable cause to believe an
individual has violated a law does not necessarily mean that an officers action is race-neutral;
and
e.
include a description of the agencys Training requirements on the topic of racial
profiling in Paragraphs 4851, data collection requirements (including video and audio
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recording of stops as set forth elsewhere in this Order) in Paragraphs 5463 and oversight
mechanisms to detect and prevent racial profiling, including disciplinary consequences for
officers who engage in racial profiling.
MCSO has developed policies and has addressed the policy deficiencies previously noted by my
team. They have finalized and published policies, including: CP-2 Code of Conduct (September
5, 2014); CP-8 Preventing Racial and Other Bias Based Profiling (September 5, 2014); EA-5
Communications (September 5, 2014); EA-11 Arrest Procedures (September 5, 2014); EB-1
Traffic Enforcement, Violators Contacts and Citation Issuance (September 22, 2014); EB-2
Traffic Stop Data (September 22, 2014); and GJ-33 Significant Operations (September 5, 2014).
Each of these contains the appropriate policy direction related to this Paragraph. These policies
have been distributed to Department personnel and specifically trained to during the required
Fourth and Fourteenth Amendment training conducted by MCSO in 2014. Specific references to
areas of required compliance in this section have been personally observed by a member of my
team during the training.
The Department has achieved Phase 1 compliance with this Paragraph. Implementation of these
policies is covered in the other Paragraphs of the Order. Therefore, Phase 2 compliance with this
Paragraph is Deferred.
Compliance Status:
Phase 2: Deferred
Paragraph 22. MCSO leadership and supervising Deputies and detention officers shall
unequivocally and consistently reinforce to subordinates that Discriminatory Policing is
unacceptable.
MCSO Policy CP-8 Preventing Racial and Other Biased-Based Profiling and EB-1 Traffic
Enforcement, Violator Contacts and Citation Issuance have been finalized, approved, distributed
and trained to in the MCSO Fourth and Fourteenth Amendment Training for sworn personnel
and Posse members. This training was completed in 2014. The Department has achieved Phase
1 compliance with this Paragraph.
During our December 2014 site visit, we met with members of the CCID to discuss methods and
procedures MCSO could put in place to consistently reinforce to subordinates that
Discriminatory Policing is unacceptable. This discussion included the review of monthly
supervisor notes, facility and vehicle inspections, as well as conducting both e-mail and CAD
(Computer Aided Dispatch) audits.
During this same site visit, members of our team visited Districts 4, 6 and 1 to conduct facility
inspections and, where feasible, meet with supervisory personnel.
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At District 4, a facility inspection was done by my team and no evidence of any inappropriate or
discriminatory posters, pictures or other items were noted. The District 4 Captain advised that the
topic of racial profiling is covered regularly in supervisor meetings, but was not able to provide
any specific documentation. The Captain was able to show my team documentation of a
December 15, 2014 meeting with the District sergeants and lieutenants, during which a
discussion was held regarding professional e-mails, appropriate use of the Internet, and
appropriate language when utilizing radio communication. One sergeant interviewed advised
that he regularly reinforces appropriate policing methods in his shift briefings, but could not
provide any written documentation to support this. One sergeant advised that he regularly
discusses immigration topics with his team and they all know that he must be contacted on any
such arrests. Supervisory personnel present at the meeting also said that they will now be doing
their notes in Blue Team.
At District 6, a facility inspection was done by my team and no evidence of any inappropriate or
discriminatory posters, pictures or other items were noted. This is a very small District Office
and no interviews were conducted with first line supervisory personnel during this visit.
At District 1, a facility inspection was done by my team. While no evidence of any inappropriate
or discriminatory posters or pictures were noted, there was what appeared to be an old street sign
from Guadalupe in the office of one of the deputies. When questioned about the presence of this
sign, a sergeant at the District did immediate follow up with the deputy. According to the deputy
the street sign was there when he was assigned the office. The sergeant assured my team that he
would take appropriate action to deal with the sign.
MCSOs Bureau of Internal Oversight (BIO) conducted its first quarterly audit for the time
period of October through December 2014. This audit included supervisory notes, emails,
CAD/MDC communications, and facilities. A vehicle inspection was not conducted during this
first audit. The Bureau of Internal Oversight also noted that all of the inspections are published
on the BIO website at MCSOBIO.org.
The first supervisory notes inspection by the BIO was conducted in November of 2014. The
stated purpose of this inspection was to determine compliance with office policies, promote
proper supervision, and support compliance with the Melendres Order. Inspectors utilized IA
Pro to select random employees from each District/Division and included a matrix procedure to
determine compliance.
Inspectors randomly selected 47 supervisors from all patrol districts/divisions. Out of the 47
supervisors, thirty-two (68%) of the supervisors, including Chiefs, Captains, Lieutenants, and
Sergeants did not make any entries into supervisory notes. Fifteen (32%) of the 47 did make at
least one entry. Following the first month of availability of Blue Team, it was concluded that 1
(2%) supervisor was in monthly compliance. A list of those supervisors who were not in
compliance and comments as to why was included. The deficiencies included some instances
where there were no notes at all, and many instances where there were some notes, but none on
traffic or collected data. At the conclusion of this first inspection, the Bureau of Internal
Oversight recommended that there should be a review of GB-2 and additional training in the
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proper use of Blue Team Supervisory Notes with a signature log to document the completion of
that training.
MCSO has made efforts in this area, has developed policies, and implemented Blue Team for the
reporting of supervisory notes. Individual supervisory personnel have told my team that they are
consistently reinforcing this information. However, there is a lack of documentation to support
these statements. The supervisory inspection conducted by the Bureau of Internal Oversight
clearly shows that there is still much to be done for MCSO supervisory personnel to consistently
show that the paragraph is being complied with. In addition, this paragraph applies to those
personnel supervising both deputies and detention officers. It does not appear that the
detention population was included in the supervisory notes inspection completed by the BIO.
During this reporting period, the Bureau of Internal Oversight also conducted an inspection of
both email and CAD messages. They found numerous instances of inappropriate emails and
several instances of inappropriate CAD messages.
The detailed outcomes of these
inspections/audits are covered in Paragraph 23.
MCSO has made notable efforts to inspect and identify any deficiencies in meeting the
requirements of this paragraph. Future reviews by my team will include follow up on the
outcome of any noted potential violations. The inspections conducted by the BIO have identified
that there needs to be further training and accountability at both the employee and supervisory
level to obtain Phase 2 compliance with this paragraph.
Compliance Status:
Paragraph 23. Within 30 days of the Effective Date, MCSO shall modify its Code of Conduct to
prohibit MCSO Employees from utilizing County property, such as County e-mail, in a manner
that discriminates against, or denigrates, anyone on the basis of race, color, or national origin.
On September 5, 2014, MCSO Policy CP-2, (Code of Conduct) was published and has since
been distributed. It has been specifically trained to in the Fourth and Fourteenth Amendment
training that was completed by MCSO in 2014. The Department has achieved Phase 1
compliance with this Paragraph.
During the prior reporting period, discussion took place with MCSO CCID and BIO personnel
regarding the potential to conduct random e-mail audits or other inspections to show compliance
with this paragraph.
On December 8, 2014, a random sample of the entire population of MCSO employee email
accounts was generated. This sampling included 35 employees being selected using a
randomized process. Emails for these 35 employees, between November 8, 2014 and Dec. 8,
2014, were checked for compliance with MCSO CP-2 (paragraph 1) and MCSO GM-1 policies.
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The actual number of emails inspected from the total population of 11,745 available for
inspection was 2,474. MCSO business emails were eliminated from the population. Employees
in the sample included 8 from Enforcement, 21 from Detention, 5 from Administration, and 1
from Operations Command. Twenty-seven of the 35 randomly selected accounts (77.1%) had no
deficiencies notes. Fifty-seven issues from 12 employees were discovered, documented, and
disseminated to MCSO Chain of Command. MCSO BIO noted the following deficiencies:
48 emails were not professional in content or appearance.

45 emails could be perceived as offensive.
6 emails could be perceived as discriminating or denigrating.
9 emails contained profane or offensive language.
3 emails that could be perceived as discriminating or denigrating were forwarded by
employees.
1 employee forwarded a non-business chain email.
1 employees email signature contained an embedded quote.
As a result of this inspection, MCSO Bureau of Oversight authored and forwarded 5 deficiency
memorandums to Division Commanders for review and 4 memorandums of concern to
Professional Standards Bureau for review. In addition, the Bureau of Internal Oversight
recommended additional training to employees and the reinforcement for MCSO employees to
immediately report any violations of MCSO Policy GM-1 or CP-2 to a supervisor. A BIO
Follow-up Action Form is required to be completed and returned within 30 days for any instance
where discrepancies were noted. The documentation provided stated that the Bureau of Internal
Oversight would conduct a follow up inspection within the following 30 days.
On December 31, 2014, the Bureau of
entire population of MCSO employee
being selected. Emails for these 35
December 31, 2014, were checked for
Policy.
Internal Insight again generated a random sample of the

email accounts. This sampling included 35 employees
employees, generated between December 9, 2014 and
compliance with MCSO CP-2 Policy and MCSO GM-1
The actual number of emails inspected from the total population of 10,261 available for
inspection was 1,872. MCSO business emails were eliminated from the population. Employees
in the sample included 9 from Enforcement, 20 from Detention, 4 from Administration, and 2
from Operations Command. Thirty-four of the thirty-five randomly selected employee accounts
had no deficiencies noted (97.2%). Eight potential issues from one employee were discovered,
documented, and disseminated to the MCSO Chain of Command to be handled in accordance
with MCSO Policy and Procedure. There were 8 emails by this single employee that were not
professional in content and appearance, and could be perceived as offensive, discriminating, or
denigrating. In addition to addressing the one deficiency found, the Bureau of Internal
Oversight recommended additional training for the employee and the reinforcement for MCSO
employees to immediately report any violations of MCSO Policy GM-1 or CP-2 to a supervisor.
A BIO Follow-up Action Form is required to be completed and returned within 30 days for any
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instance where discrepancies were noted. The documentation provided stated that the Bureau of
Internal Oversight would conduct a follow up audit within 30 days.
Between December 22, 2014 and January 5, 2015, The MCSO Bureau of Oversight conducted
an inspection of CAD messages from Office components listed in the CAD System database.
Using a Generally Accepted Government Auditing Standard (GAGAS), ten days out of the 31
days in December were selected as samples. The CAD messages were reviewed in an effort to
identify compliance with MCSO policies CP-2, CP-3, and GM-1. A total of 5 concerns were
identified during the inspection.
The documentation provided by MCSO did include the specific nature of most of the identified
concerns. The concerns included such things as personal conversations, disrespectful remarks
about a supervisor, and a possible violation of the required supervisory oversight. One CAD
message was identified that was potentially disrespectful to residents of the community, but the
specific comments were not included in the summary.
The Bureau of Oversight forwarded the noted concerns through the respective MCSO Chain of
Commands to be addressed in accordance with MCSO Policy and further recommended that
employees should be reminded of Office policy and procedure related to CAD Messaging
System entries.
MCSO has made notable efforts to inspect and identify any deficiencies in meeting the
requirements of this paragraph. Future reviews by my team will include robust follow- ups on
the outcome of the noted potential violations and requests for more detailed information on
potential violations in future audits. The inspections conducted by the BIO have identified that
there needs to be further training and accountability at both the employee and supervisory level
to obtain Phase 2 compliance with this paragraph.
Compliance Status:
Paragraph 24. The MCSO shall ensure that its operations are not motivated by or initiated in
response to requests for law enforcement action based on race or ethnicity. In deciding to take
any law enforcement action, the MCSO shall not rely on any information received from the
public, including through any hotline, by mail, email, phone or in person, unless the information
contains evidence of a crime that is independently corroborated by the MCSO, such independent
corroboration is documented in writing, and reliance on the information is consistent with all
MCSO policies.
MCSO policy EB-1 Traffic Enforcement, Violator Contacts and Citation Issuance was finalized
and published on September 22, 2014 and trained to during the 4 th and 14th Amendment training
completed by MCSO in 2014. The Department has achieved Phase 1 compliance with this
Paragraph.
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To determine Phase 2 compliance, MCSO will be requested to provide information on hotlines

maintained by MCSO or other means by which they receive information from the public
regarding potential criminal activity. Requests will also be made for information and
documentation of all operations conducted at the District levels in response to public input or
requests regarding potential criminal activity.
Compliance Status:
Phase 2: Deferred
b. Policies and Procedures to Ensure Bias-Free Traffic Enforcement
Paragraph 25. The MCSO will revise its policy or policies relating to traffic enforcement to
ensure that those policies, at a minimum:
a.
prohibit racial profiling in the enforcement of traffic laws, including the selection of
which vehicles to stop based to any degree on race or ethnicity, even where an officer has
reasonable suspicion or probable cause to believe a violation is being or has been committed;
b.
provide Deputies with guidance on effective traffic enforcement, including the
prioritization of traffic enforcement resources to promote public safety;
c.
prohibit the selection of particular communities, locations or geographic areas for
targeted traffic enforcement based to any degree on the racial or ethnic composition of the
community;
d.
prohibit the selection of which motor vehicle occupants to question or investigate based
to any degree on race or ethnicity;
e.
prohibit the use of particular tactics or procedures on a traffic stop based on race or
ethnicity;
f.
require deputies at the beginning of each stop, before making contact with the vehicle, to
contact dispatch and state the reason for the stop, unless Exigent Circumstances make it unsafe
or impracticable for the deputy to contact dispatch;
g.
prohibit Deputies from extending the duration of any traffic stop longer than the time that
is necessary to address the original purpose for the stop and/or to resolve any apparent criminal
violation for which the Deputy has or acquires reasonable suspicion or probable cause to
believe has been committed or is being committed; h. require the duration of each traffic stop to
be recorded;
i.
provide Deputies with a list and/or description of forms of identification deemed
acceptable for drivers and passengers (in circumstances where identification is required of
them) who are unable to present a drivers license or other state-issued identification; and
j.
Instruct Deputies that they are not to ask for the Social Security number or card of any
motorist who has provided a valid form of identification, unless it is needed to complete a
citation or report.
MCSO has developed several policies that, in concert, incorporate the requirements of this
Paragraph. These include: EB-1 (Traffic Enforcement, Violator Contacts, and Citation
Issuance), dated September 22, 2014; EB-2 (Traffic Stop Data Collection), dated September 22,
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2014; EA-5 (Enforcement Communications), dated September 5, 2014; and CP-8 (Preventing
Racial and other Bias-Based Policing), dated September 5, 2014. In our policy feedback, we
required that the definition of racial profiling be consistent throughout all policies where it is
included, and that it mirror the definition provided in the Order. MCSO made the requested
policy changes in each of the affected documents, which were then reviewed and approved. The
policies were disseminated and trained to during the Fourth and Fourteenth Amendment training
which was completed in December, 2014. MCSO is in Phase 1 compliance with this paragraph.
During the finalization of the Fourth and Fourteenth Amendment training curricula required by
the Order, the Parties agreed to a list and/or description of forms of identification deemed
acceptable for drivers and passengers, as required by this Paragraph. The data required for
verification to ensure compliance with these policies is captured in Paragraph 54 by the TracS
system. The system documents the requirements of the Order and MCSO policies. MCSO has
been making ongoing changes to the TracS system to ensure that mandatory fields on the forms
utilized to collect the data must be completed by the deputies in order to capture the required
information.
Paragraph 25.a prohibits racial profiling in the enforcement of traffic laws, including the
selection of which vehicles to stop based to any degree on race or ethnicity, even where an
officer has reasonable suspicion or probable cause to believe a violation is being or has been
committed. Our review of the 103 traffic stops provided in the sample indicated that MCSO was
following protocol and we did not determine that they were in violation of the Order or internal
policies. MCSO is compliant with this Subparagraph.
Paragraph 25.b requires MCSO to provide deputies with guidance on effective traffic
enforcement, including the prioritization of traffic enforcement resources to promote public
safety. MCSO policy EB-1.A-E addresses these concerns. Our review of the data indicates
MCSO is compliant with this Subparagraph.
Paragraph 25.c requires MCSO to prohibit the selection of particular communities, locations or
geographic areas for targeted traffic enforcement based to any degree on the racial or ethnic
composition of the community. Our review of the sample data for the quarter did not indicate
MCSO was in violation of this Subparagraph.
Paragraph 25.d requires MCSO to prohibit the selection of which motor vehicle occupants to
question or investigate based to any degree on race or ethnicity. When we reviewed the data we
determined that deputies did not base their traffic stops to any degree on race or ethnicity. (See
Paragraph 54e). MCSO is compliant with this Subparagraph.
Paragraph 25.e requires MCSO to prohibit the use of particular tactics or procedures on a traffic
stop based on race or ethnicity. (See Paragraph 54e). Our review indicated that traffic stops
were not based on race or ethnicity and reflected the general makeup of the population of the
County; therefore, MCSO is compliant with this Subparagraph.
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Paragraph 25.f requires deputies at the beginning of each stop, before making contact with the
vehicle, to contact dispatch and state the reason for the stop unless exigent circumstances make it
unsafe for the deputy to contact dispatch. Our review indicates that MCSO is compliant with
this Subparagraph (See Paragraph 54e).
Paragraph 25.g prohibits deputies from extending the duration of any traffic stop longer than the
time that is necessary to address the original purpose for the stop and/or to resolve any apparent
criminal violation for which the deputy has or acquires reasonable suspicion or probable cause to
believe has been committed or is being committed. In our review of the documentation of 103
traffic stops we determined that one stop may have been for a longer duration than necessary;
therefore MCSO is compliant with this Subparagraph (See Paragraph 54i).
Paragraph 25.h requires the duration of each traffic stop to be recorded. In our review we
determined that traffic stops were recorded accurately in 97 of the 103 traffic stops. In the
remaining six cases there was a difference of five or more minutes in the start or end time of the
stop, when comparing the Vehicle Contact Face Sheet (VCFS) and the dispatch CAD printout
(See Paragraphs 54b and 54i). MCSO is compliant with this Subparagraph.
Paragraph 25i requires that MCSO provide deputies with a list and/or description of forms of
identification deemed acceptable for drivers and passengers (in circumstances where
identification is required of them) who are unable to present a driver license or other state-issued
identification. The Plaintiffs and MCSO have agreed on acceptable forms of identification and
this information has been included in the Fourth and Fourteenth Amendment training conducted
by outside consultants. MCSO is compliant with this Subparagraph.
Paragraph 25j requires MCSO to instruct deputies that they are not to ask for the Social Security
number or card of any motorist who has provided a valid form of identification, unless it is
needed to complete a citation or report. We have not reviewed any documentation from MCSO
that has indicated deputies are requiring motorists or passengers to provide their Social Security
number during the stop. The forms completed by deputies on a traffic stop (VCFS,
Warning/Repair Form and the Arizona Traffic Complaint) do not contain boxes to capture this
information. MCSO is compliant with this Subparagraph.
Compliance Status:
Phase 2: In Compliance
c. Policies and Procedures to Ensure Bias-Free Detentions and Arrests
Paragraph 26. The MCSO shall revise its policy or policies relating to Investigatory Detentions
and arrests to ensure that those policies, at a minimum:
a.
require that Deputies have reasonable suspicion that a person is engaged in, has
committed, or is about to commit, a crime before initiating an investigatory seizure;
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b.
require that Deputies have probable cause to believe that a person is engaged in, has
committed, or is about to commit, a crime before initiating an arrest;
c.
provide Deputies with guidance on factors to be considered in deciding whether to cite
and release an individual for a criminal violation or whether to make an arrest; d. require
Deputies to notify Supervisors before effectuating an arrest following any immigration-related
investigation or for an Immigration-Related Crime, or for any crime by a vehicle passenger
related to lack of an identity document;
e. prohibit the use of a persons race or ethnicity as a factor in establishing reasonable
suspicion or probable cause to believe a person has, is, or will commit a crime, except as part of
a reliable and specific suspect description; and
f. Prohibit the use of quotas, whether formal or informal, for stops, citations, detentions, or
arrests (though this requirement shall not be construed to prohibit the MCSO from reviewing
Deputy activity for the purpose of assessing a Deputys overall effectiveness or whether the
Deputy may be engaging in unconstitutional policing).
The MCSO has finalized and published policies EB-1 Traffic Enforcement, Violator Contacts
and Citation Issuance on September 22, 2014 and EA-11 Arrest Procedures on September 5,
2014. Both contain the appropriate policy direction and have been specifically trained to during
the required Fourth and Fourth Amendment training completed by MCSO in 2014. Specific
references to areas of required compliance in this section were personally observed by the
Monitoring Team during the training. The Department has achieved Phase 1 compliance with
this Paragraph.
During this reporting period, CCID has provided documentation that there were no immigration
related enforcement actions or operations. MCSOs Court Compliance and Implementation
Division conducted a database search of all calls that could be potentially related to their criteria
for immigration related enforcement (misconduct involving weapons, forgery, and human
smuggling). They determined through their search that there were no cases that would qualify
under these crimes for the reporting period of October 1 December 31, 2014 and provided
memoranda to that effect. They further determined that no arrests were made where a vehicle
passenger was arrested for any crime related to a lack of identity documentation.
There were fourteen arrests of vehicle drivers that included charges for lack of an identity
document. In all cases, these were traffic stops with articulated Title 28 violations precipitating
the stop. The drivers were all cited or booked on the traffic charges and for the lack of an
identity document. There were no cases where the required boxes for immigration status check,
delay for immigration violation, or ICE contact were checked in the affirmative on the Vehicle
Stop Contact Form. In six cases (43%), the report was not reviewed by a supervisor within 72
hours. In eleven of the cases the involved deputy failed to notify a supervisor of the lack of
identity investigation or arrest. In 11 cases (79%), there was no documentation of the notification
of a supervisor and in 3 cases (21%), there was no IR attached. We intend to closely scrutinize
the measure of supervisory oversight.
During this review period, we have reviewed all arrests made by the Anti-Trafficking Unit
(formerly the HSU). All arrests reviewed between Oct. 1st and Dec. 31st, 2014 were made for
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narcotics trafficking. Almost without exception the initial contacts with suspects was made by
U.S. Border Patrol patrolling the area near Gila Bend. All of the suspects were arrested by
Border Patrol and turned over to MCSO for charging and booking. The charges noted were
exclusively for the transportation of marijuana for sale.
Compliance Status:
d. Policies and Procedures Governing the Enforcement of Immigration-Related Laws
Paragraph 27. The MCSO shall remove discussion of its LEAR Policy from all agency written
Policies and Procedures, except that the agency may mention the LEAR Policy in order to clarify
that it is discontinued.
MCSO has provided the finalized policy for EA-11 (Arrest Procedures), the Investigations
Division Operations Manual and the former HSU Operations Manual. The only reference to a
LEAR (Law Enforcement Agency Response) Policy is in the former HSU (Human Smuggling
Unit) Operations Manual where references are made to a U.S. Immigration and Customs
Enforcement (ICE) LEAR Policy. We have reviewed the relevant policies and find no reference
to an MCSO LEAR Policy. We have met with MCSO staff and have been told that MCSO has
never had a LEAR Policy of its own, though ICE does have one that was referenced in former
policies and draft memorandums. These draft memorandums and policy references to the ICE
LEAR policy may have contributed to the belief by many MCSO personnel that MCSO did in
fact have a LEAR policy. MCSO needs to ensure that any future references to policies or
procedures of other agencies are clearly defined and explained to their personnel.
MCSO is in Phase 1 and Phase 2 compliance with this Paragraph.
Compliance Status:
Paragraph 28. The MCSO shall promulgate a new policy or policies, or will revise its existing
policy or policies, relating to the enforcement of Immigration-Related Laws to ensure that they,
at a minimum:
a. specify that unauthorized presence in the United States is not a crime and does not itself
constitute reasonable suspicion or probable cause to believe that a person has committed or is
committing any crime;
b. prohibit officers from detaining any individual based on actual or suspected unlawful
presence, without something more;
c. prohibit officers from initiating a pre-textual vehicle stop where an officer has reasonable
suspicion or probable cause to believe a traffic or equipment violation has been or is being
committed in order to determine whether the driver or passengers are unlawfully present;
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d. prohibit the Deputies from relying on race or apparent Latino ancestry to any degree to select
whom to stop or to investigate for an Immigration-Related Crime (except in connection with a
specific suspect description);
e. prohibit Deputies from relying on a suspects speaking Spanish, or speaking English with an
accent, or appearance as a day laborer as a factor in developing reasonable suspicion or
probable cause to believe a person has committed or is committing any crime, or reasonable
suspicion to believe that an individual is in the country without authorization;
f. unless the officer has reasonable suspicion that the person is in the country unlawfully and
probable cause to believe the individual has committed or is committing a crime, the MCSO
shall prohibit officers from (a) questioning any individual as to his/her alienage or
immigration status; (b) investigating an individuals identity or searching the individual in
order to develop evidence of unlawful status; or (c) detaining an individual while contacting
ICE/CBP with an inquiry about immigration status or awaiting a response from ICE/CBP. In
such cases, the officer must still comply with Paragraph 25(g) of this Order. Notwithstanding
the foregoing, an officer may (a) briefly question an individual as to his/her alienage or
immigration status; (b) contact ICE/CBP and await a response from federal authorities if the
officer has reasonable suspicion to believe the person is in the country unlawfully and
reasonable suspicion to believe the person is engaged in an Immigration-Related Crime for
which unlawful immigration status is an element, so long as doing so does not unreasonably
extend the stop in violation of Paragraph 25(g) of this Order;
g. prohibit Deputies from transporting or delivering an individual to ICE/CBP custody from a
traffic stop unless a request to do so has been voluntarily made by the individual;
h. Require that, before any questioning as to alienage or immigration status or any contact with
ICE/CBP is initiated, an officer check with a Supervisor to ensure that the circumstances
justify such an action under MCSO policy and receive approval to proceed. Officers must also
document, in every such case, (a) the reason(s) for making the immigration-status inquiry or
contacting ICE/CBP, (b) the time approval was received, (c) when ICE/CBP was contacted,
(d) the time it took to receive a response from ICE/CBP, if applicable, and (e) whether the
individual was then transferred to ICE/CBP custody.
On September 5, 2014, MCSO finalized policies CP-8, Preventing Racial and Other Biased
Based Profiling, and EA-11 Arrest Procedures. EB-1 Traffic Enforcement, Violator Contacts
and Citation Issuance was finalized on September 22, 2014. These policies have been approved,
distributed and trained to during the mandatory Fourth and Fourteenth Amendment training
completed during 2014. Specific references to areas of required compliance in this section were
personally observed by the Monitoring Team during the training. The Department has achieved
Phase 1 compliance with this Paragraph.
During the previous reporting period, The Court Compliance and Implementation Division
provided memorandum information that during the previous reporting period there were no
arrests made for: misconduct involving weapons, forgery, or human smuggling that would
qualify under this Paragraph. They also provided written documentation that no instances of an
individual being transported to ICE, or their Officers having contact with ICE occurred during
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this evaluation period. They determined this by a search of the Early Identification System for
vehicle stop contacts in TRACS.
During the current reporting period, at the request of my team, the document request related to
contacts and transportation to ICE was modified to include contacts, transportation to
ICE/Border Patrol. MCSO has provided written documentation that there were no instances of
any subject being transported to ICE/Border Patrol, no instances of officers having contacts with
ICE/Border Patrol for the purpose of making an immigration status inquiry, and that there were
no arrests made following any immigration related investigation or for any immigration-related
crime during the period between October 1 and December 31, 2014.
Compliance Status:
e. Policies and Procedures Generally
Paragraph 29. MCSO Policies and Procedures shall define terms clearly, comply with
applicable law and the requirements of this Order, and comport with current professional
standards.
See Paragraph 30.
Compliance Status:
Paragraph 30. Unless otherwise noted, the MCSO shall submit all Policies and Procedures and
amendments to Policies and Procedures provided for by this Order to the Monitor for review
within 90 days of the Effective Date pursuant to the process described in Section IV. These
Policies and Procedures shall be approved by the Monitor or the Court prior to their
implementation.
MCSO has provided the Monitoring Team and the Plaintiffs with drafts of its Order-related
policies and procedures prior to publication as required by the Order. We and the Plaintiffs
attorneys review the policies to insure that they define terms clearly, comply with applicable law
and the requirements of the Order, and comport with current professional standards. Once drafts
are finalized, incorporating the feedback of the Plaintiffs and the Monitoring Team, they are
again provided to the Monitoring Team for final review and approval. As this process has been
followed for those Order-related policies published thus far, MCSO is in compliance with this
Paragraph.
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Compliance Status:
Paragraph 31. Within 60 days after such approval, MCSO shall ensure that all relevant MCSO
Patrol Operation Personnel have received, read, and understand their responsibilities pursuant
to the Policy or Procedure. The MCSO shall ensure that personnel continue to be regularly
notified of any new Policies and Procedures or changes to Policies and Procedures. The
Monitor shall assess and report to the Court and the Parties on whether he/she believes relevant
personnel are provided sufficient notification of and access to, and understand each policy or
procedure as necessary to fulfill their responsibilities.
Thus far, the only Order related Policies that have been approved and disseminated to the rank
and file have been in conjunction with the required Fourth and Fourteenth Amendment Training.
Therefore, there has been appropriate records kept of receipt of the policies, and their contents
were covered in the course of the training.
MCSO has yet to finalize the means by which they will document the receipt of future Orderrelated policies particularly those that are not distributed in conjunction with structured training
classes. They are exploring an addition to their E-Learning system their online training vehicle
which they project will be able to adequately document receipt and understanding of new
policies. This system, E-Policy, is slated to become operational in the first quarter of 2015. We
consider this imperative and shall follow up accordingly.
While we acknowledge compliance with this Paragraph for the policies distributed with the
above-referenced training, until such time as a system is in place for all policies, compliance is
deferred.
Compliance Status:
Phase 2: Deferred
Paragraph 32. The MCSO shall require that all Patrol Operation personnel report violations of
policy; that Supervisors of all ranks shall be held accountable for identifying and responding to
policy or procedure violations by personnel under their command; and that personnel be held
accountable for policy and procedure violations. The MCSO shall apply policies uniformly.
The following MCSO policies were originally offered in response to this Paragraph: CP-2 (Code
of Conduct), CP-8 (Preventing Racial and other Biased-Based Profiling), GC-17 (Employee
Disciplinary Procedure), and GH-2 (Internal Investigations). However, we rejected them as not
comporting with the requirements of this paragraph. These policies were revised, and approved,
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effective September 5, 2014. The requirements of this Paragraph are incorporated through the
combination of these policies. These policies were disseminated and trained to during the
Fourth and Fourteenth Amendment Training that was completed during this review period.
We requested the list of all internal investigations that were closed during October, November
and December, 2014. From the list of 185 cases, we selected 36 where the allegations appeared
to be applicable to paragraph 32. In those 36 cases, we found five that were related to violations
of policy in Patrol Operations. One case involved a sergeant who filed an internal complaint
related to Truthfulness against a deputy who failed to complete a report on a recovered bicycle.
Three involved policy violations by Posse members. All three members were removed from the
program. Finally, one involved a commander who did not advance a complaint of racially
discriminatory remarks to the Professional Standards Bureau for investigation.
Not all policy or procedure violations will or should rise to the level of an internal
investigation. Paragraphs 91 and 94 require supervisors to address all violations or deficiencies
in investigatory stops, detentions, and arrests. We and MCSO noted several instances in which
apparent policy violations went unaddressed by first line supervisors. These are further
described in those paragraphs.
Compliance Status:
Paragraph 33. MCSO Personnel who engage in Discriminatory Policing in any context will be
subjected to administrative Discipline and, where appropriate, referred for criminal prosecution.
MCSO shall provide clear guidelines, in writing, regarding the disciplinary consequences for
personnel who engage in Discriminatory Policing.
MCSO offered policies CP-8 (Preventing Racial and other Biased-Based Profiling) and GC-17
(Employee Disciplinary Procedure) as proofs of compliance with this Paragraph. The
requirements of this Paragraph are incorporated in the combination of these policies. MCSO
considers acts of discriminatory policing as Category 6 violations under its Disciplinary Matrix,
and the penalties range from a 40-hour suspension to dismissal for a first offense. Penalties for a
second offense range from an 80-hour suspension to dismissal, and dismissal is the mandatory
penalty for a third offense.
CP-8 and GC-17 were revised and re-issued effective September 5th, 2014. These policies were
distributed to all attendees at the Bias Free Policing and Fourth Amendment Training described
later in this report.
We requested a list of all complaints received during October December 2014 alleging
Discriminatory Policing as well as documentation of any discipline associated with these
complaints, where discipline was recommended and /or imposed during this period. In response,
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we received a spreadsheet containing six external complaints. Only one was closed during the
reporting period, with a finding of not sustained.
Given the small sample size, we will defer a compliance determination until we have a larger
universe of completed cases to assess.
Compliance Status:
Phase 2: Deferred
Paragraph 34. MCSO shall review each policy and procedure on an annual basis to ensure that
the policy or procedure provides effective direction to MCSO Personnel and remains consistent
with this Order, current law and professional standards. The MCSO shall document such annual
review in writing. MCSO also shall review Policies and Procedures as necessary upon notice of
a policy deficiency during audits or reviews. MCSO shall revise any deficient policy as soon as
practicable.
MCSO Policy GA-1 (Development of Written Orders) states that policies will be reviewed
annually or as deemed appropriate, and revised, as necessary, by Policy Development. As
mentioned above, throughout the first few months of our tenure, MCSO has been reviewing its
policies in response to Order requirements and our document requests. Many of their policies
have been adjusted based on our feedback and that of the Plaintiffs. Several have been issued to
sworn personnel and posse members in conjunction with the ongoing Fourth and Fourteenth
Amendment Training.
During our December site visit, we established a schedule for the annual reviews required by the
Order. We agreed that the cycle for this review requirement will be MCSOs fiscal year, which
runs from July 1 to June 30. Documentation of the first annual review will be submitted on or
before September 15, 2015.
Compliance status:
Phase 2: Deferred
Section 5: Pre-Planned Operations

MCSO was advised to notify the Monitor, as well as the two Deputy Monitors, of any upcoming
Significant Operation via email, and by a phone call, to insure a prompt response by monitoring
team personnel. MCSO was asked to provide the Monitor with a submitted plan, as well as the
name and contact information of the on-scene commanding officer of any scheduled operation.
The following Paragraph responses provide more detail with regard to particular aspects of the
Court Order for Pre-Planned or Significant Operations.
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COURT ORDER VI. PRE-PLANNED OPERATIONS

Paragraph 35. The Monitor shall regularly review the mission statement, policies and operations
documents of any Specialized Unit within the MCSO that enforces Immigration-Related Laws to
ensure that such unit(s) is/are operating in accordance with the Constitution, the laws of the
United States and State of Arizona, and this Order.
MCSO has taken the position that they no longer have Specialized Units that enforce
immigration laws. The Special Investigation Division (SID) Operational Manual identifies
eleven different units, none of which appear to be directly involved in enforcing immigration
laws. During discussions with the Court Compliance and Implementation Division (CCID) and
attorneys from the Maricopa County Attorneys Office (MCAO), we suggested that applicable
immigration laws and immigration related crimes, as those terms are defined in the Order, be
identified. From there, a determination could be made as to which units, if any, enforce these
laws as one of their core missions.
During the previous evaluation period, MCSO articulated that the three criminal violations they
believed qualified as potentially immigration related include human smuggling, forgery, and
misconduct with weapons, since immigration status may be an element of these offenses. At that
time, we requested the monthly arrest and enforcement statistics for the months March August
2014 for the Units assigned to SID, as well as all arrests for the identified immigration related
crimes. We also requested any documentation that outlines the core mission of the various SID
Units.
During the December 2014 site visit, we met with the MCSO Special Investigations Division
Chief and his staff. He advised that the CEU (Criminal Employment Unit) would be disbanded
in January or February of 2015 and removed from the agency organizational chart. Any
information regarding the kinds of violations previously investigated by MCSO CEU that came
to their attention would be forwarded to a federal agency for review and any action. He also
advised that MCSO would be returning any unused grant funds dedicated to these types of
investigations. He told us that they are not doing any human smuggling investigations and that
the Human Smuggling Units name has been changed to the Anti-Trafficking Unit (ATU). He
said there is no Unit within MCSO whose core function is the investigation of immigration
related crimes. Those crimes that may in some cases have immigration status as an element of
the crime (misconduct with weapons, forgery) would be investigated by District Detectives, as
would be the case for those same crimes without the element of immigration status.
During our review of the arrests made by the Anti-Trafficking Unit for the reporting period
between October 1 and Dec. 31, 2014, we did not note any arrests for human smuggling
violations. All arrests made by this Unit were for the trafficking of narcotics.
While MCSO has addressed the crimes and investigative responsibilities verbally, there has been
no documentation received by my team that memorializes these decisions and protocols. Phase 1
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and Phase 2 compliance is deferred until such time as we receive documentation that CEU has
been disbanded, and we review the mission statement, policies and operations documents of
ATU to verify MCSOs assertion that this Paragraph is not applicable to that Unit. We urge
MCSO to address this matter expeditiously.
Compliance Status:
Phase 1: Deferred
Phase 2: Deferred
Paragraph 36. The MCSO shall ensure that any Significant Operations or Patrols are initiated
and carried out in a race-neutral fashion. For any Significant Operation or Patrol involving 10
or more MCSO personnel, excluding posse members, the MSCO shall develop a written protocol
including a statement of the operational motivations and objectives, parameters for supporting
documentation that shall be collected, operations plans, and provide instructions to supervisors,
deputies and posse members. That written protocol shall be provided to the Monitor in advance
of any Significant Operation or Patrol.
As of September 5, 2014 MCSO had finalized and distributed the Significant Operations Policy
GJ-33. The Protocols, Planning Checklist, and Supervisor Daily Checklists have also been
finalized and distributed. The policy (GJ-33) has been specifically trained to during the Fourth
and Fourteenth Amendment training for sworn personnel and posse members. We have found
their policies and protocols to accurately reflect the requirements of the Order. The Department
has achieved Phase 1 compliance with this Paragraph.
During the first two reporting periods, MCSO did not report any significant operations that
would invoke the requirements of this paragraph.
During this reporting period, MCSO did conduct a significant operation meeting the
requirements of this paragraph. Operation Borderline was conducted from October 20 th, 2014
through October 27th, 2014. This operation was intended to interdict the flow of illegal narcotics
into Maricopa County. MCSO submitted documentation, including the statement of operational
motivations and objectives, and the parameters for supporting documentation to us as required.
During the pre-operation briefing on October 15, 2014, attended by a member of my team,
MCSO provided all attendees with copies of the required operational documents and policies and
conducted a thorough briefing on the requirements of this paragraph. The attending member of
my team also received a copy of the same briefing packet that included all documents for the
operation and copies of all relevant policies.
MCSO has completed the required 4th and 14th Amendment training for sworn employees and
posse members, and those involved in this operation were provided specific direction and
training as required to comply with this paragraph during the Oct. 15 th pre-operation briefing for
Operation Borderline.
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On January 12, 2015, MCSO submitted documentation to us that no additional significant

operations as defined in this paragraph were completed during this reporting period.
Compliance Status:
Paragraph 37. The MCSO shall submit a standard template for operations plans and standard
instructions for supervisors, deputies and posse members applicable to all Significant
Operations or Patrols to the Monitor for review pursuant to the process described in Section IV
within 90 days of the Effective Date. In Exigent Circumstances, the MCSO may conduct
Significant Operations or Patrols during the interim period but such patrols shall be conducted
in a manner that is in compliance with the requirement of this Order. Any Significant Operations
or Patrols thereafter must be in accordance with the approved template and instructions.
As of September 5, 2014 MCSO finalized and distributed the Significant Operations Policy GJ33. The Protocols, Planning Checklist, and Supervisor Daily Checklists have also been finalized.
The policy (GJ-33) was specifically trained to during the Fourth and Fourteenth Amendment
training conducted by MCSO during 2014. The Department has achieved Phase 1 compliance
with this Paragraph.
MCSO did not conduct any Significant Operations or Patrols that required notification to the
Monitor during the first two reporting periods.
During this reporting period, MCSO did conduct Operation Borderline from Oct. 20 th, 2014 to
October 27th, 2014. This operation was intended to interdict the flow of narcotics being
transported in to Maricopa County. MCSO did submit all required documents to us for this
operation and specifically provided relevant information to those assigned during their preoperation briefing on Oct. 15, 2014 that was attended by a member of our team.
Compliance Status:
(Note: Unchanged language is presented in italicized font. Additions are indicated by
underlined font. Deletions are indicated by crossed-out font.)
Paragraph 38. If the MCSO conducts any Significant Operations or Patrols involving 10 or more
MCSO Personnel excluding posse members, it shall create the following documentation and
provide it to the Monitor and Plaintiffs within 30 10 days after the operation:
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a. documentation of the specific justification/reason for the operation, certified as drafted prior
to the operation (this documentation must include analysis of relevant, reliable, and
comparative crime data);
b. information that triggered the operation and/or selection of the particular site for the
operation;
c. documentation of the steps taken to corroborate any information or intelligence received from
non-law enforcement personnel;
d. documentation of command staff review and approval of the operation and operations plans;
e. a listing of specific operational objectives for the patrol;
f. documentation of specific operational objectives and instructions as communicated to
participating MCSO Personnel;
g. any operations plans, other instructions, guidance or post-operation feedback or debriefing
provided to participating MCSO Personnel;
h. a post-operation analysis of the patrol, including a detailed report of any significant events
that occurred during the patrol;
i. arrest lists, officer participation logs and records for the patrol; and
j. data about each contact made during the operation, including whether it resulted in a citation
or arrest.
On September 5th, 2014 MCSO finalized and distributed the Significant Operations Policy GJ33. The Protocols, Planning Checklist, and Supervisor Daily Checklists have also been finalized.
The policy (GJ-33) was specifically trained to during the Fourth and Fourteenth Amendment
training completed by MCSO is 2014. The Department has achieved Phase 1 compliance with
this Paragraph.
During the first two reporting periods, MCSO did not conduct any Significant Operations or
Patrols that required notification to the Monitor.
During this reporting period, MCSO did conduct Operation Borderline from Oct. 20 th, 2014
through Oct. 27th, 2014.
On November 5th, 2014, 9 days after concluding this operation, MCSO submitted complete
documentation as required under this Paragraph. A memo entitled The Post Operation
Analysis was included. It contained an overview of the operation and contained required
information including an overview of the operation, and significant events during the operation.
Also included was all original documentation of the Operation and other requirements of this
paragraph including: documentation of the specific reason for the Operation drafted prior to the
Operation (38.a), information that triggered the Operation (38.b), documentation of law
enforcement intelligence received (38.c), verification of command staff review and approval
(38.d), a listing of specific operational objectives (38.e), documentation of operational objectives
and instructions to participating MCSO personnel (38.f), operations plans and post operation
debriefing (38.g), post operation analysis (38.h), arrest lists and officer participation logs (38.i),
and data about each contact made (38.j). All submitted documents have been reviewed and
determined to contain the information required under this paragraph.
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Compliance Status:

underlined font. Deletions are indicated by crossed-out font.)
Paragraph 39. The MCSO Monitor shall hold a community outreach meeting no more than 30 40
days after any Significant Operations or Patrols in the affected District(s). MCSO shall work
with the Community Advisory Board to ensure that the community outreach meeting adequately
communicates information regarding the objectives and results of the operation or patrol The
Monitor shall communicate the operational details provided to it by the MCSO and shall hear
any complaints or concerns raised by community members. The Monitor may investigate and
respond to those concerns. The community outreach meeting shall be advertised and conducted
in English and Spanish.
The Court has amended the original Order to move responsibility for Community Outreach to the
Monitor. This section no longer applies to the activities of MCSO.
During this review period, MCSO conducted Operation Borderline from October 20th, 2014,
through October 27th, 2014. While no longer required under this Order to conduct a community
meeting regarding Significant Operations, MCSO did conduct such a meeting after the
conclusion of this operation. This meeting was held by MCSO on November 18, 2014 at the
School District Auditorium in Gila Bend, Arizona. Numerous members of MCSO were present
at the meeting, as was a member of my team. The meeting was publicized by MCSO and
attended by six community members. MCSO provided a briefing on the intent and outcome of
the operation and then opened the floor for questions. All attendees were supportive of the
operation and appreciative of MCSOs efforts to interdict the flow of narcotics and hold this
meeting. Attendees had few questions regarding the operation and only a couple of comments
regarding their concern about the drug trafficking as it affected their community.
On December 16th, 2014, we conducted a community outreach meeting regarding Operation
Borderline as required under this Paragraph. The meeting was publicized by my team and held
in Buckeye, Arizona. Numerous members of the MCSO were also present at the meeting. We
were prepared to provide all the information required in this Paragraph in both English and
Spanish to those who attended. No interested parties or community members attended the
meeting.
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Paragraph 40. The MCSO shall notify the Monitor and Plaintiffs within 24 hours of any
immigration related traffic enforcement activity or Significant Operation involving the arrest of
5 or more people unless such disclosure would interfere with an on-going criminal investigation
in which case the notification shall be provided under seal to the Court, which may determine
that disclosure to the Monitor and Plaintiffs would not interfere with an on-going criminal
investigation. In any event, as soon as disclosure would no longer interfere with an on-going
criminal investigation, MCSO shall provide the notification to the Monitor and Plaintiffs. To the
extent that it is not already covered above by Paragraph 38, the Monitor and Plaintiffs may
request any documentation related to such activity as they deem reasonably necessary to ensure
compliance with the Courts orders.
MCSO developed The Significant Operations Protocol as required, and has modified it to include
Section 7 that requires notification to the Plaintiffs. The Department has achieved Phase 1
MCSO did not conduct any significant operations during the first two reporting periods that
required notification under this Paragraph.
From October 20th, 2014 through October 27th, 2014, MCSO did conduct one significant
operation, Operation Borderline. During this operation, there were two occasions that arrests
were made of more than five people. On October 25, 2014, MCSO arrested nine male suspects
for transportation of marijuana and on October 26, seven male suspects were arrested for
transportation of marijuana. The MCSO Operation Borderline team notified the CCID in both
cases and provided a shift summary. This information was transmitted to us as required.
On January 12, 2015, MCSO submitted documentation that no additional significant operations
as defined in this operation were completed during this reporting period.
Compliance Status:
Section 6: Training
COURT ORDER VII. TRAINING
a. General Provisions
Paragraph 41. To ensure that the Policies and Procedures provided for by this Order are
effectuated, the MCSO shall implement the following requirements regarding Training.
Paragraph 42. The persons presenting this Training in each area shall be competent instructors
with significant experience and expertise in the area. Those presenting Training on legal matters
shall also hold a law degree from an accredited law school and be admitted to a Bar of any state
and/or the District of Columbia.
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MCSO has developed a single policy, GG-2, Training Administration, created January 24, 2014,
that was intended to incorporate the requirements of this Paragraph. GG-2, Training
Administration, fails to identify instructor criteria, including for Order mandated areas of BiasFree Policing, Fourth Amendment, and Supervisor and Command Level Training. It is
recommended that areas such as Academy training, Post Academy, and Field Training Officers
training also be included. The document in its present form does not include any provisions for
the establishment of instructor selection criteria, proof of expertise and educational
achievements, Professional Standards Bureau reviews or the establishment of an instructor
database.
The aforementioned criteria was previously utilized to generate the proposed list of instructors
agreed upon by the attorneys for the Defendants and the attorneys for the Plaintiffs to determine
that they possessed qualifications that were compliant with the requirements of Paragraph 42.
The final joint selection of qualified instructors to deliver Bias Free Policing; and Detentions,
Arrests, Immigration Related Laws training was completed in August 2014.
During the previous monitoring period we had been advised by Training Command that policy
GG-2, Training Administration, was in draft form and under review for modification. On
December 16, 2014, Training Command personnel reaffirmed to our team that this policy
remained in draft form due to pending modifications. Further query during our exit interview on
December 19, 2014, prompted MCSO Command Staff to inquire internally regarding the status
of this policy. On December 22, 2014, the policy as approved on January 24, 2014, was
resubmitted as the final official submission. This policy was not reviewed during this review
period.
During this review period it was anticipated that MCSO would have taken the opportunity to
memorialize the instructor selection process within their training policy and allow for party
review of newly created instructor criteria and documentation. As newly developed training is
delivered it will be incumbent upon MCSO to institutionalize this process.
The selection and hiring of instructors to provide Supervisor Specific Training did not commence
during this review period. The process to select instructors for the Fourth and Fourteenth
Amendment Training was cooperative and successful. We noted that additional training for EIS
was delivered during this period. To our knowledge there was no use of this criteria to identify
instructors eligible to deliver the training program.
MCSO is not in compliance with this paragraph.
Compliance Status:
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Paragraph 43. The Training shall include at least 60% live training (i.e., with a live instructor)
which includes an interactive component and no more than 40% on-line training. The Training
shall also include testing and/or writings that indicate that MCSO Personnel taking the Training
comprehend the material taught whether via live training or via on-line training.
MCSO has developed a single policy, GG-2, Training Administration, created January 24, 2014,
that was intended to incorporate the requirements of this Paragraph. The existing policy fails to
make distinction between the requirements of a live training delivery and an on-line training
delivery. Additionally, it fails to establish mandated testing criteria and administration.
Although not a requirement of the Order, live training mandates could be better addressed in this
policy with the establishment of a database designed for the documentation of all approved
training lesson plans. GG-2 could include provisions for the development of such a database and
a requirement that the Training Division would have sole responsibility for update and
maintenance of this database. This database would contain all Academy training lesson plans,
Field Officer Training lesson plans, In-service training lesson plans, and Advanced or Specialty
training lesson plans and would specifically include provisions to identify all lesson plans
requiring an in class delivery. A review of this type of database would provide the required
information to effectively review compliance in this regard as well as improve MCSOs ability to
update lesson plans in accordance with paragraph 47 in order to gain institutionalized
compliance.
Obviously, a pre-requisite to database development would be specific language developed and
incorporated into policy GG-2, Training Administration. This language should include: 1)
documentation of the need for training lesson plan development; 2) standardized lesson plan
development criteria and format; 3) standardized instructor selection protocols; 4) inclusion on
the Master Training Calendar; and 5) documentation of the delivery of the training. This
language would improve not only the quality of the development and delivery of training, but
ensure that the Training Division embraces their responsibility for all departmental training.
Additionally, GG-2, Training Administration should specifically outline their required testing
processes and the documentation of testing delivered to training recipients. In its current form
GG-2 is deficient in this regard.
Between October 1, 2014 and continuing through December 21, 2014, MCSO continued to
deliver the Order mandated Bias Free Policing and Detentions, Arrests, Immigration Related
Laws training, utilizing 100% live training (i.e., with a live instructor). During the period the
training was observed by a member of the Monitoring Team on an announced and unannounced
basis. Students were assigned to the training by their respective supervisors and were required to
sign into and out of the training sessions on Training Division provided Sign-In Rosters.
Students were provided reference materials to include copies of PowerPoint presentations and
MCSO policies GH-2 Internal Investigations, GC-17 Employee Disciplinary Procedures, GJ-33
Significant Operations, CP-8 Preventing Racial and Other Biased- Based Profiling, EB-1 Traffic
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Enforcement, Violator Contacts, and Citation Issuance, EB-2 Traffic Stop Data Collection, EA-5
Enforcement Communications, and CP-2 Code of Conduct. Documents relative to the
Melendres Case, such as the Courts Findings of Fact and Conclusions of Law, the Courts
Supplemental Permanent Injunction of October 2, 2013, and the April 17, 2014 Corrective
Statement summary are all available to the students on the E-Learning system. Each student is
required to access the E-Learning system within 5 days to take the testing portion of the training
program. The students are provided with a Course Assessment at the end of the training program,
requesting feedback relative to the instructors and course content using a rating scale of 1-5,
along with four additional questions soliciting specific feedback.
The final MCSO Training Schedule for the period of October 1, 2014 through December 31,
2014 was provided to the Monitor for review along with documented modifications for Week 12
(December 6 and 7, 2014), Week 13 (December 13 and 14, 2014), and Week 14 (December 20
and 21, 2014). The provided Training Schedule specifically included Bias Free Policing and
Detentions, Arrests, Immigration Related Laws training. Notably absent from this schedule was
EIS Blue Team training that had been conducted October 6-10, 13-17, 2014, November 17,2014,
December 2, 4, 15, 17, 18, 2014. The lesson plans for Detentions, Arrests and ImmigrationRelated Laws, and for Bias-Free Policing were previously reviewed by the attorneys for the
Defendants, the attorneys for the Plaintiffs, and the Monitoring Team. We had reviewed and
commented on the first segment of the EIS Blue Team Training. Due to its complexity and
interrelatedness with several paragraphs of the Order, EIS training as a whole has not been
approved by our team. We recognize that paragraph 80 is specific to the training on the EIS,
however the development and delivery of these Order mandated trainings are addressed within
the paragraphs of section VII, Training, more specifically paragraphs 42 through 47.
MCSO has implemented a post training testing requirement for the Bias Free Policing and
Detentions, Arrests, Immigration Related Laws training, that each deputy must attain a minimum
passing score of 100% in order to receive credit for the Order mandated training. However, each
deputy is allowed up to 5 attempts to achieve this score. This training is delivered in a classroom
setting with a live instructor. MCSO cites this 100% requirement to be a mandate of the Arizona
Peace Officers Standards and Training Board. MCSO would be accurate in the application of this
requirement if the training had been delivered through an on-line platform or an e-learning
system, which would then be required to contain an assessment model wherein there would be a
100% score on each assessment. However, Arizona Peace Officers Standards and Training Board
has informed us and MCSO that there is no learning assessment requirement for in-person
continuing training sessions. We revisited this subject with MCSO during our December site
visit in an attempt to encourage movement away from what is considered to be an unrealistic
passing score requirement. In the most simplistic terms it is unreasonable to expect every deputy
to achieve 100% for the testing process. Actual test score reviews bear this out. A
recommendation to revise this mandate was presented by our team during our December 2014
site visit but it has met resistance by Training Division Command and as of this date remains in
effect. In order to effectively evaluate the whole testing process and review the individual scores
for each deputy, one is required to review several different reports and cross reference each. A
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summary from the E-Learning administrative reports, Skills Manager reports of Passed
students, and the Master Rosters individually for Sworn, Posse and Reserves are required to
accomplish this. The ability to conduct thorough training assessments and improve the
organizational training program continues to remain deficient.
As of the close of this reporting period, the lesson plan for Supervisor Responsibilities-Effective
Law Enforcement is under development and pending review by the Parties attorneys and the
Monitoring Team.
Compliance Status:
Paragraph 44. Within 90 days of the Effective Date, MCSO shall set out a schedule for
delivering all Training required by this Order. Plaintiffs Representative and the Monitor shall
be provided with the schedule of all Trainings and will be permitted to observe all live trainings
and all on-line training. Attendees shall sign in at each live session. MCSO shall keep an up-todate list of the live and on-line Training sessions and hours attended or viewed by each officer
and Supervisor and make that available to the Monitor and Plaintiffs.
MCSO has developed a single policy, GG-2 Training Administration, created January 24, 2014,
that was intended to incorporate the requirements of this Paragraph. The policy fails to identify
the establishment and adherence to the development and maintenance of the Order mandated
Training Calendar, and attendance sign in requirements for all training attended.
The training for Bias Free Policing and Detentions, Arrests, Immigration Related Laws training
continued between October 1, 2014 and December 21, 2014. Training has been observed on an
announced and unannounced basis during the review period ending December 31, 2014.
The Sworn Training Compliance Report Roster indicates that as of December 31, 2014, a total of
684 sworn (compensated) personnel were required to receive the Order mandated training and
682 had completed same. Two deputies have not completed the mandatory training due to leave
issues.
The Reserve Training Compliance Report indicates that as of December 31, 2014, a total of 34
reserve personnel were required to receive the Order mandated training and 33 had completed
the mandatory training.
The Retired Reserve Training Compliance Report indicates that as of December 31, 2014, a total
of 30 reserve personnel were required to receive the Order mandated training and 28 had
completed the mandatory training.
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During the previous monitoring period the Posse Reserve Roster accounted for 1250 Posse
personnel who were required to receive the Bias Free Policing and Detentions, Arrests,
Immigration Related Laws mandated training. In November 2014, CCID provided what was
termed a baseline number of 1033 Posse personnel requiring the mandated training. CCID had
indicated that this number was being created from the actual number of Posse personnel who had
completed the mandatory training. CCID has advised that failure to complete the training results
in mandatory deselection from the Posse Program.
The Quarterly Training Report, issued by the Training Division accounts for a combined total of
1346 (318 sworn personnel, 34 reserve personnel, 29 retired reserve, 957 posse personnel, and 8
civilians) who have received the mandatory training during the monitoring period.
The inability of MCSO to link together the Skills Manager Database, the MCSO Sworn Training
Compliance Report, the Posse Training Compliance Report, the Reserve Training Compliance
Report, and the Retired Reserve Training Compliance Report with Master Rosters continues to
hamper documentation of training. This deficiency will continue to hamper documentation
efforts as the volume of training increases with the development and delivery of other Order
mandated training in order to achieve compliance, such as EIS and the use of Body Cams.
Mandatory Supervisory training has yet to occur.
Paragraph.
MCSO is not in compliance with this
Compliance Status:
Paragraph 45. The Training may incorporate adult-learning methods that incorporate
roleplaying scenarios, interactive exercises, as well as traditional lecture formats.
We were involved in a collaborative review with attorneys for the Plaintiffs and attorneys for the
Defendants of Detentions, Arrests and Immigration-Related Laws; Bias-Free Policing; and the
initial Supervisor Responsibilities Effective Law Enforcement curricula. The Bias-Free
Policing and Detentions, Arrests and Immigration-Related Laws curricula are in compliance with
the requirements in Paragraph 45. The final approved curriculum incorporated adult-learning
methods and included PowerPoint presentations, interactive learning exercises, and lecture.
During the previous monitoring period MCSO had requested that they be able to provide the
Supervisor Training in two phases, so as to not unnecessarily delay training that they have the
capability to deliver in the near future. We and the Plaintiffs agreed with this approach in order to
keep training ongoing and consistent with new systems as they come online and into practice.
We anticipate that the Parties will engage in a similar curriculum review process for these
various components of Supervisor Responsibilities Effective Law Enforcement training. On
December 17, 2014 the monitor was presented with an initial outline document to be utilized to
develop a segment of a supervisor course entitled Supervisor Responsibilities-Effective Law
Enforcement Course. No lesson plan has been developed that could be reviewed by the parties.
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Compliance Status:
Paragraph 46. The curriculum and any materials and information on the proposed instructors
for the Training provided for by this Order shall be provided to the Monitor within 90 days of the
Effective Date for review pursuant to the process described in Section IV. The Monitor and
Plaintiffs may provide resources that the MCSO can consult to develop the content of the
Training, including names of suggested instructors.
MCSO has previously provided the curricula for Bias-Free Policing; Detentions, Arrests, and
Immigration-Related Laws; and Supervisor Responsibilities-Effective Law Enforcement to the
Monitor and the Plaintiffs. These have been jointly reviewed by the Parties, and the Defendants
attorneys have been very receptive to the input from the Plaintiffs attorneys and the Monitoring
Team. We reviewed the proposed list of instructors and identified those who are qualified.
During our December site visit, we were advised that training entitled Blue Team Entry System
for IAPro had been delivered on multiple dates (October 6-10, 13-17, 2014, November 17,
2014, and December 15, 18, 2014) during the review period. The delivery of this training did not
appear on the Master Training Calendar in accordance with paragraph 44 and as a result we were
not afforded the ability to observe this training segment. Although the Order specifies that the
Training Calendar is to document all Order mandated training, it is recommended that the newly
developed calendar incorporate all training. We previously reviewed, commented on and
approved this segment of EIS curriculum that is primarily focused on the processes for
completing an entry into the Blue Team database and for completing a Supervisor Note in the
Blue Team system, in accordance with paragraph 46. Due to the complexity of the EIS training,
and a need for segmented training, which has not been currently developed, all EIS training has
not been approved by the monitor. The Training Division lesson outline indicates that this was a
one-hour computer based presentation that included an on-line testing component, although no
test results were provided. Although specific instructors were identified to deliver this training,
the Instructor Schedule indicated that substitutes had been assigned to deliver the training
component. Submitted Class Rosters indicated that alternative instructors actually delivered
the training. In light of the criticality of EIS training, it is recommended that the Training
Division document the criteria and selection of all instructors for EIS components in accordance
with paragraphs 42 and 73 and that instructor assignments as well as all modifications should be
documented as well. Additionally, although Class Rosters indicating sign in to the class took
place, we have not received a Master Supervisory Roster indicating who the total complement of
supervisors are that require this training. Therefore there is no ability, based upon the submitted
documentation, to determine who has not received the training.
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MCSO has not provided the lesson plans for the bi-furcated Supervisory Training.
Compliance Status:
Paragraph 47. MCSO shall regularly update the Training to keep up with developments in the
law and to take into account feedback from the Monitor, the Court, Plaintiffs and MCSO
Personnel.
that was intended to incorporate the requirements of this Task. The policy fails to identify any
semblance of a Training Cycle that should include such issues as diagnosis and needs
assessment, development of training, delivery of training, evaluation of training, revision of
training, an observation and evaluation of how deputies perform the field activities associated
with the training, and documentation of each step of the process. It is recommended that existing
policy be modified to direct that an annual review of all training lesson plans be conducted.
During this annual review each lesson plan would be updated with new developments in law,
participant feedback and training evaluations.
Compliance will be determined based upon whether or not MCSOs policy GG-2, Training
Administration complies with this paragraph and is followed in practice. The intended purpose of
this policy should be to delineate the procedures and clearly establish the duties and
responsibilities of all contributors to the MCSO training process. Adequate development and
adoption of a complete policy will enable the Training Division to oversee and ensure the
quality of all training provided by, or under the direction of the MCSO.
A total of 93 randomly selected course evaluations from the Bias-Free Policing; Detentions,
Arrests, and Immigration-Related Laws training were reviewed. In general, the selected
instructors and the course content were perceived to be above average although there were
noticeable repeat deviations. It is recommended that the MCSO conduct a thorough analysis and
review of these evaluations in order to improve upon the course content, provide critical
feedback to the instructors, and determine instructor retention. MCSO can reasonably expect that
members of the Monitoring Team shall attend training for the purposes of rendering assessments
to the parties and the Court.
Compliance Status:
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b. Bias-Free Policing Training
Paragraph 48. The MCSO shall provide all sworn Deputies, including Supervisors and chiefs, as
well as all posse members, with 12 hours of comprehensive and interdisciplinary Training on
bias-free policing within 240 days of the Effective Date, or for new Deputies or posse members,
within 90 days of the start of their service, and at least 6 hours annually thereafter.
Previously we conducted a curriculum review over several weeks with all Parties participating
together in every meeting either in person or by teleconference with document viewing
capabilities. The process included a line-by-line scrutiny of the entire Bias-Free Policing;
Detentions lesson plans until consensus was reached among the attorneys for the Plaintiffs and
the attorneys for the Defendants, with the approval of the Monitoring Team, that the content and
wording were factual, legally accurate and fully compliant with the requirements set forth in
Paragraph 49 of the Order. We will continue to review any additional associated training
materials as they are developed, and also observe training as it progresses to verify that the
approved lesson plans are being adhered to by the instructors.
The training continued between October 1, 2014 and December 21, 2014. The Sworn Training
Compliance Report Roster indicates that as of December 31, 2014, a total of 684 sworn
(compensated) personnel were required to receive the Order mandated training and 682 had
completed same. Two deputies have not completed the mandatory training due to leave issues.
Immigration Related Laws mandated training. In November 2014, CCID provided what was
termed a baseline number of 1033 Posse personnel requiring the mandated training. CCID
completed the mandatory training. CCID has advised that failure to complete the training results
in mandatory deselection from the Posse Program.
The Quarterly Training Report accounts for a combined total of 1346 (318 sworn personnel, 34
reserve personnel, 29 retired reserve, 957 posse personnel, and 8 civilians) who have received
the mandatory training during the monitoring period.
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On November 7, 2014, in the United States District Court for the District of Arizona, Order No.
CV-10-01413-PHX-SRB was filed finding that A.R.S. 13-2319, as amended by Section 4 of
S.B. 1070, was declared preempted by federal law and was permanently enjoined. This finding
impacted the curriculum and training materials related to the Bias-Free Policing; Detentions,
Arrests, and Immigration-Related Laws training. The parties came together jointly and
immediately modified the training documents to reflect the current legal standard in accordance
with paragraph 49.
As noted above, the Parties have worked collaboratively to finalize the curriculum for Bias-Free
Policing. The training continued between October 1, 2014 and December 21, 2014, and was
completed within the review period. As a result of CCIDs accounting of Posse Personnel,
Reserve Personnel, and Retired Reserve Personnel, MCSO is in compliance with this paragraph.
Compliance Status:
Paragraph 49. The Training shall incorporate the most current developments in federal and
Arizona law and MCSO policy, and shall address or include, at a minimum: a. definitions of
racial profiling and Discriminatory Policing;
b.
examples of the type of conduct that would constitute Discriminatory Policing as well as
examples of the types of indicators Deputies may properly rely upon;
c.
the protection of civil rights as a central part of the police mission and as essential to
effective policing;
d.
an emphasis on ethics, professionalism and the protection of civil rights as a central part
of the police mission and as essential to effective policing;
e.
constitutional and other legal requirements related to equal protection, unlawful
discrimination, and restrictions on the enforcement of Immigration-Related Laws, including the
requirements of this Order;
f.
MCSO policies related to Discriminatory Policing, the enforcement of ImmigrationRelated Laws and traffic enforcement, and to the extent past instructions to personnel on these
topics were incorrect, a correction of any misconceptions about the law or MCSO policies;
g.
MCSOs protocol and requirements for ensuring that any significant pre-planned
operations or patrols are initiated and carried out in a race-neutral fashion; h. police and
community perspectives related to Discriminatory Policing;
i.
the existence of arbitrary classifications, stereotypes, and implicit bias, and the impact
that these may have on the decision-making and behavior of a Deputy;
j.
methods and strategies for identifying stereotypes and implicit bias in Deputy decisionmaking;
k.
methods and strategies for ensuring effective policing, including reliance solely on nondiscriminatory factors at key decision points;
l.
methods and strategies to reduce misunderstanding, resolve and/or de-escalate conflict,
and avoid Complaints due to perceived police bias or discrimination; m. cultural awareness and
how to communicate with individuals in commonly encountered scenarios;
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n. problem-oriented policing tactics and other methods for improving public safety and crime
prevention through community engagement;
o. the benefits of actively engaging community organizations, including those serving youth and
immigrant communities;
p. the MCSO process for investigating Complaints of possible misconduct and the disciplinary
consequences for personnel found to have violated MCSO policy;
q. background information on the Melendres v. Arpaio litigation, as well as a summary and
explanation of the Courts May 24, 2013 Findings of Fact and Conclusions of Law in
Melendres v. Arpaio, the parameters of the Courts permanent injunction, and the
r. Instruction on the data collection protocols and reporting requirements of this Order.
capabilities. The process included a line-by-line scrutiny until consensus was reached among the
attorneys for the Plaintiffs and the attorneys for the Defendants, with the approval of the
Monitoring Team, that the content and wording were factual, legally accurate and fully
compliant with the requirements set forth in Paragraph 49 of the Order. We will continue to
review any additional associated training materials as they are developed, and also observe
training as it progresses to verify that the approved lesson plans are being adhered to by the
instructors.
immediately modified the training documents to reflect the current legal standard.
Compliance Status:
Phase 1: Not applicable.
c. Training on Detentions, Arrests, and the Enforcement of Immigration- Related Laws
Paragraph 50. In addition to the Training on bias-free policing, the MCSO shall provide all
sworn personnel, including Supervisors and chiefs, as well as all posse members, with 6 hours of
Training on the Fourth Amendment, including on detentions, arrests and the enforcement of
Immigration-Related Laws within 180 days of the effective date of this Order, or for new
Deputies or posse members, within 90 days of the start of their service. MCSO shall provide all
Deputies with 4 hours of Training each year thereafter.
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Training on the Fourth Amendment, including detentions, arrests and the enforcement of
Immigration-Related Laws continued between October 1, 2014 and December 21, 2014. As
previously noted, the Parties had worked collaboratively to finalize this curriculum.
The Sworn Training Compliance Report Roster indicates that as of December 31, 2014, a total of
684 sworn (compensated) personnel were required to receive the Order mandated training and
682 had completed same. Two deputies have not completed the mandatory training due to leave
issues.
Immigration Related Laws mandated training. In November 2014, the CCID provided what was
termed a baseline number of 1033 Posse personnel requiring the mandated training. CCID had
completed the mandatory training. CCID advised that failure to complete the training results in
mandatory deselection from the Posse Program.
The Quarterly Training Report accounts for a combined total of 1346 (318 sworn personnel, 34
reserve personnel, 29 retired reserve, 957 posse personnel, and 8 civilians) who have received
the mandatory training during the monitoring period.
with paragraph 51.
MCSO is in compliance with the requirements of Paragraph 50.
Compliance Status:
Paragraph 51. The Training shall incorporate the most current developments in federal and
Arizona law and MCSO policy, and shall address or include, at a minimum:
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a.
an explanation of the difference between various police contacts according to the level of
police intrusion and the requisite level of suspicion; the difference between reasonable suspicion
and mere speculation; and the difference between voluntary consent and mere acquiescence to
police authority;
b.
guidance on the facts and circumstances that should be considered in initiating,
expanding or terminating an Investigatory Stop or detention;
c.
guidance on the circumstances under which an Investigatory Detention can become an
arrest requiring probable cause;
d.
constitutional and other legal requirements related to stops, detentions and arrests, and
the enforcement of Immigration-Related Laws, including the requirements of this Order;
e.
MCSO policies related to stops, detentions and arrests, and the enforcement of
Immigration-Related Laws, and the extent to which past instructions to personnel on these topics
were incorrect, a correction of any misconceptions about the law or
MCSO policies;
f.
the circumstances under which a passenger may be questioned or asked for
identification;
g.
the forms of identification that will be deemed acceptable if a driver or passenger (in
circumstances where identification is required of them) is unable to present an Arizona drivers
license;
h.
the circumstances under which an officer may initiate a vehicle stop in order to
investigate a load vehicle;
i.
the circumstances under which a Deputy may question any individual as to his/her
alienage or immigration status, investigate an individuals identity or search the individual in
order to develop evidence of unlawful status, contact ICE/CBP, await a response from ICE/CBP
and/or deliver an individual to ICE/CBP custody;
j.
a discussion of the factors that may properly be considered in establishing reasonable
suspicion or probable cause to believe that a vehicle or an individual is involved in an
immigration-related state crime, such as a violation of the Arizona Human Smuggling Statute, as
drawn from legal precedent and updated as necessary; the factors shall not include actual or
apparent race or ethnicity, speaking Spanish, speaking English with an accent, or appearance as
a Hispanic day laborer;
k.
a discussion of the factors that may properly be considered in establishing reasonable
suspicion or probable cause that an individual is in the country unlawfully, as drawn from legal
precedent and updated as necessary; the factors shall not include actual or apparent race or
ethnicity, speaking Spanish, speaking English with an accent, or appearance as a day laborer;
l.
an emphasis on the rule that use of race or ethnicity to any degree, except in the case of a
reliable, specific suspect description, is prohibited;
m.
the MCSO process for investigating Complaints of possible misconduct and the
n.
provide all trainees a copy of the Courts May 24, 2013 Findings of Fact and
Conclusions of Law in Melendres v. Arpaio and this Order, as well as a summary and
explanation of the same that is drafted by counsel for Plaintiffs or Defendants and reviewed by
the Monitor or the Court; and
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o.
Instruction on the data collection protocols and reporting requirements of this Order,
particularly reporting requirements for any contact with ICE/CBP.
capabilities. The process included a line-by-line scrutiny of the entire Bias-Free Policing;
Detentions, Arrests, and Immigration-Related Laws lesson plans until consensus was reached
among the attorneys for the Plaintiffs and the attorneys for the Defendants, with the approval of
the Monitoring Team, that the content and wording were factual, legally accurate and fully
compliant with the requirements set forth in Paragraph 51 of the Order. We will continue to
review any additional associated training materials as they are developed, and also observe
training as it progresses to verify that the approved lesson plans are being adhered to by the
instructors.
with paragraph 51.
Compliance Status:
Phase 1: Not applicable.
d.
Supervisor and Command Level Training
Paragraph 52. MCSO shall provide Supervisors with comprehensive and interdisciplinary
Training on supervision strategies and supervisory responsibilities under the Order. MCSO shall
provide an initial mandatory supervisor training of no less than 6 hours, which shall be
completed prior to assuming supervisory responsibilities or, for current MCSO Supervisors,
within 180 days of the Effective Date of this Order. In addition to this initial Supervisor
Training, MCSO shall require each Supervisor to complete at least 4 hours of Supervisorspecific Training annually thereafter. As needed, Supervisors shall also receive Training and
updates as required by changes in pertinent developments in the law of equal protection, Fourth
Amendment, the enforcement of Immigration-Related Laws, and other areas, as well as Training
in new skills.
that was intended to incorporate the requirements of this Task. The policy does reference the
requirements of paragraph 52 in section 2 Mandatory Training, A. 5., in minimal fashion. The
policy fails to identify a standardized process for the development of training in general, and the
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inclusion of adult-learning methodology. The requirements of paragraph 52 are very specific in

regards to minimum topics that must be included in the curriculum for the supervisory training.
Although we are aware that specific lesson plans would not be included within an administrative
policy, a standardized process for development and oversight should be included.
As noted above, the Parties worked collaboratively on the curriculum for Supervisor
Responsibilities - Effective Law Enforcement. We and the Parties jointly agreed that
development of this training should be placed on hold and precedence given to development of
the Fourth and Fourteenth Amendment training, which was scheduled to commence in
September.
During our September site visit, MCSO requested they be able to provide the Supervisor
Training in two phases, so as to not unnecessarily delay training that they have the capability to
deliver in the near future. We and the Plaintiffs agreed with this approach in order to keep
training ongoing and consistent with new systems as they come online and into practice.
However, the development and submission of appropriate training materials for ANY phase of
supervisory training has been completely lacking. The alleged reason for the bifurcated
approach to allow some supervisor training to occur sooner rather than later appears to be
baseless. This is unacceptable, particularly given that a lack of consistent, quality supervision is
a key contributor to the environment that allowed the behaviors at the center of this case to
flourish. MCSO must make delivery of supervisory training a priority.
Compliance Status:
Paragraph 53. The Supervisor-specific Training shall address or include, at a minimum: a.
techniques for effectively guiding and directing Deputies, and promoting effective and
constitutional police practices in conformity with the Policies and Procedures in Paragraphs
1834 and the Fourth and Fourteenth Amendment Training in Paragraphs
4851;
b. how to conduct regular reviews of subordinates;
c. operation of Supervisory tools such as EIS;
d. evaluation of written reports, including how to identify conclusory, canned, or perfunctory
language that is not supported by specific facts;
e. how to analyze collected traffic stop data, audio and visual recordings, and patrol data to look
for warning signs or indicia of possible racial profiling or unlawful conduct;
f. how to plan significant operations and patrols to ensure that they are race-neutral and how to
supervise Deputies engaged in such operations;
g. incorporating integrity-related data into COMSTAT reporting;
h. how to respond to calls from Deputies requesting permission to proceed with an investigation
of an individuals immigration status, including contacting ICE/CBP; i. how to respond to the
scene of a traffic stop when a civilian would like to make a complaint against a Deputy;
j. how to respond to and investigate allegations of Deputy misconduct generally;
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k.evaluating Deputy performance as part of the regular employee performance evaluation; and
l. Building community partnerships and guiding Deputies to do the Training for Personnel
Conducting Misconduct Investigations.
As noted above, there has been essentially no progress in the development of Supervisory
Training, despite the Parties agreeing to an approach that was predicated on speeding up the
development and delivery of this training to the Agencys supervisors. This situation must be
addressed as soon as possible. In the investigations we are conducting and/or monitoring as part
of our other Court assigned responsibilities, a consistent theme appears to be a lack of
supervisory training for anyone with supervisory authority, regardless of rank.
Compliance Status:
Section 7: Traffic Stop Documentation and Data Collection
For Paragraphs 54 and 55, in particular, it was necessary to request traffic stop data from MCSO.
The following explanation describes how this was done and how the data were handled once
received. These data may also be referred to in other areas of Section 8 and the report as a
whole.
In selecting traffic stop cases for our compliance review, we modified our statistical
technique in that, rather than selecting a representative random sample of 100 cases per
quarter, we instead pulled a sample of about 35 cases per month. The sample of traffic
stop cases continues to be pulled from the Districts and the Lakes Patrol (the areas).
By way of background, MCSO reported a total of 6,105 cases of traffic stop events for
these areas between October 1, 2014 and December 31, 2014. Once we received files
each month containing these traffic stop case numbers from MCSO, denoting which area
they came from, we then selected a sample of up to 35 cases representing the areas and
then selected a subsample averaging 10 cases, from the 35 selected cases, to obtain CAD
tapes. Our sampling process involved selecting a sample of cases stratified by the areas
according to the proportion of specific area cases relative to the total area cases.
Stratification of the data was necessary to ensure that each area was represented
proportionally in our review. Randomization of the cases and the selection of the final
cases for CAD review were achieved using a statistical software package (IBM SPSS
Version 22), which contains a specific function that randomly selects cases and that also
allows cases to be weighted by the areas. Our utilization of SPSS required that we first
convert the MCSO Excel spreadsheet into a format that would be readable in SPSS. We
next pulled the stratified sample each month for the areas and then randomly selected a
CAD subsample from the selected cases. The unique identifiers for these two samples
were relayed back to MCSO personnel, who produced documentation for the selected
sample (including the CAD documentation for the subsample).
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On October 10, 2014 the Court issued an ORDER GRANTING STIPULATION TO AMEND
SUPPLEMENTAL/PERMANENT INJUNCTION/JUDGMENT ORDER (Document 748). The
stipulation affects Paragraphs 57, 61, 62 and Paragraph (1)(r)(xv) and will be incorporated in the
body of our next Quarterly Report. The stipulations referenced amends the Courts Order of
October 2, 2013 and will be addressed in Chapter VIII.
COURT ORDER VIII. TRAFFIC
COLLECTION AND REVIEW
STOP
DOCUMENTATION
AND
DATA
a. Collection of Traffic Stop Data

Paragraph 54. Within 180 days of the Effective Date, MCSO shall develop a system to ensure
that Deputies collect data on all vehicle stops, whether or not they result in the issuance of a
citation or arrest. This system shall require Deputies to document, at a minimum:
a. the name, badge/serial number, and unit of each Deputy and posse member involved;
b. the date, time and location of the stop, recorded in a format that can be subject to geocoding;
c. the license plate state and number of the subject vehicle;
d. the total number of occupants in the vehicle;
e. the Deputys subjective perceived race, ethnicity and gender of the driver and any
passengers, based on the officers subjective impression (no inquiry into an occupants
ethnicity or gender is required or permitted);
f. the name of any individual upon whom the Deputy runs a license or warrant check
(including subjects surname);
g. an indication of whether the Deputy otherwise contacted any passengers, the nature of the
contact, and the reasons for such contact;
h. the reason for the stop, recorded prior to contact with the occupants of the stopped vehicle,
including a description of the traffic or equipment violation observed, if any, and any
indicators of criminal activity developed before or during the stop;
i. time the stop began; any available data from the E-Ticketing system regarding the time any
citation was issued; time a release was made without citation; the time any arrest was made;
and the time the stop/detention was concluded either by citation, release, or transport of a
person to jail or elsewhere or Deputys departure from the scene;
j. whether any inquiry as to immigration status was conducted and whether ICE/CBP was
contacted, and if so, the facts supporting the inquiry or contact with ICE/CBP, the time
Supervisor approval was sought, the time ICE/CBP was contacted, the time it took to
complete the immigration status investigation or receive a response from
ICE/CBP, and whether ICE/CBP ultimately took custody of the individual;
k. whether any individual was asked to consent to a search (and the response), whether a
probable cause search was performed on any individual, or whether a pat-and-frisk search
was performed on any individual;
l. whether any contraband or evidence was seized from any individual, and nature of the
contraband or evidence; and
m. The final disposition of the stop, including whether a citation was issued or an arrest was
made or a release was made without citation.
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MCSO developed several policies that, together, incorporate the requirements of these
Paragraphs. These include: EB-1 (Traffic Enforcement, Violator Contacts, and Citation
Issuance) dated September 22, 2014; EB-2 (Traffic Stop Data Collection) dated September 22,
2014; EA-5 (Enforcement Communications), dated September 5, 2014 and CP-8 (Preventing
Racial and Other Biased-Based Profiling), dated September 5, 2014. We note that these four
policies underwent several revisions and all were finally approved in September 2014 and
disseminated during the Fourth and Fourteenth Amendment training conducted from September
through December of 2014. According to documents received, 99% of the sworn, compensated
personnel were trained, and all existing posse members1 attended the training as of the close of
the reporting period.
In order to capture the information required for this paragraph, MCSO created, and we reviewed,
the Vehicle Stop Contact Face Sheet, the Vehicle Stop Contact Supplemental Sheet, the
Incidental Contact Receipt and the Written Warning/Repair Order for those motorists who
commit a traffic violation or are operating a vehicle with defective equipment and provided with
a warning. We also reviewed the Arizona Traffic Ticket and Complaint forms issued for
violations of Arizona Statutes, Internet I/Viewer Event Unit printout, Justice Web Interface
printout and any Incident Report associated with the event. We selected a sample of 103 traffic
stops conducted by MCSO deputies from October 1, 2014 through December 31, 2014 for
purposes of this review and assessed the collected data from the above listed documents for
compliance with Subparagraphs 54.a-54.m. All of the listed documentation was used for our
review of the following subsections of this paragraph.
The Paragraph requires that MCSO create a system for data collection. The data collected
pursuant to this Paragraph will be captured in the Early Identification System, which will be
discussed further in subsequent sections of this report.
Paragraph 54.a requires MCSO to document the name, badge/serial number, and unit of each
deputy and posse member involved. Our review indicated that in the 103 vehicle traffic stops,
there were 34 cases where the deputys unit had another deputy assigned to the vehicle or
another deputy unit was on the scene, and these members were identified by the primary unit. In
our previous report there were 20 instances where the initial deputy failed to indicate their unit
number on the Vehicle Contact Face Sheet. However for this reporting period the deputies
indicated their unit numbers for every stop.
There were seven instances where we found another unit or units on the scene that were not
identified on the Vehicle Contact Face Sheet (VCFS). We have yet to see a Posse member noted
as being on the scene of a traffic stop and listed on the Vehicle Contact Face Sheet in the nine
months of samples we have reviewed. There were at least two instances in this sample where
Posse members were on the scene but not noted on the VCFS by the initial deputy. Note: the
Vehicle Contact Face Sheet is completed by the deputy on every traffic stop whether a citation is
written or a warning issued. During our September 2014 site visit, CCID advised that a
1
Failure to attend the training resulted in deselection from the Posse Program.
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programming change had been made to the Vehicle Contact Form and if the deputy fails to
indicate their unit number in the appropriate box, the system will not allow them to complete the
form. The identity of personnel on such scenes is a core issue in this case, and we shall
consistently evaluate the agencys measure of compliance with this requirement. We found that
the deputies serial numbers were listed on all required forms and identified on the VCFS. While
progress was made, with 93% compliance, MCSO is not in compliance with this Subparagraph.
Paragraph 54.b requires MCSO to document the date, time and location of the stop, recorded in a
format that can be subject to geocoding. Our reviews of the CAD printout for all 103 traffic
stops in the sample indicate that this data is captured and is geocoded with the time the stop is
initiated and the time the stop is cleared. We note that occasionally the CAD time of stop and
end of stop times may not be exactly the same time as those listed on the Vehicle Contact Face
sheet, due to extenuating circumstances the deputy may encounter. We found six instances
where the start or end time on the VCFS differed by five minutes or more from the CAD
printout. MCSO uses GPS to determine location for the CAD system. GPS collects coordinates
from 3 or more satellites to enhance the accuracy of location approximation. The data from the
satellites can be decoded to determine the longitude and latitude of traffic stop locations should
that be necessary. Since the CAD data system has been upgraded to include the geocoding of
traffic stops, MCSO is in compliance with this Subparagraph.
Paragraph 54.c requires MCSO to document the license plate and state of the subject vehicle. In
our First Quarterly Report there were three instances of the 94 where the vehicle stop did not
result in the deputy indicating a tag number on the Vehicle Stop Contact form. We found in our
Second Quarterly Report that deputies properly recorded the license plate and state of origin in
all instances. For this review we found that 102 of the 103 traffic stop cases included the vehicle
tag number and state of origin for a compliance rate of 100%. In the one exception the vehicle
did not have a vehicle license plate displayed and that was the reason the deputy made the traffic
stop. MCSO is in compliance with this Subparagraph.
Paragraph 54.d requires MCSO to document the total number of occupants in the vehicle when a
stop is conducted. There were a total of 103 traffic stops and in 37 of these stops, the vehicle
was occupied by more than one occupant. The Vehicle Contact Face Sheet, completed by the
deputy on every traffic stop, is utilized to capture the total number of occupants and contains a
separate box on the form for that purpose. In four instances the deputy did not document the
number of occupants of the subject vehicle and therefore, MCSOs compliance rate is 96% for
this Subparagraph (see para. 54f). MCSO is in compliance with this Subparagraph.
Paragraph 54.e requires MCSO to document the perceived race, ethnicity and gender of the
driver and any passengers, based on the officers subjective impression (no inquiry into the
occupants ethnicity or gender is required or permitted). In thirty-seven of the 103 stops, there
were more than one occupant in the vehicle. In our review of the traffic stops we identified four
cases where the post stop race/ethnicity and gender for the driver was listed on the Vehicle
Contact Face sheet as unknown, in violation of MCSO policy. The compliance rate for
identifying the race/ethnicity of the driver is 96%.
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In the 37 traffic stops where passengers were in the vehicle, we found nine cases where the
deputy failed to identify the race/ethnicity or gender of one or more passengers in each vehicle.
We have been advised by MCSO that they have instructed the deputies not to indicate the word
unknown when describing the race/ethnicity of drivers or passengers. In one of these cases the
deputy indicated the drivers name was the same as the passenger in the vehicle. We were able
to determine the passengers name from the comments made by the deputy in the accompanying
Incident Report. The compliance rate for identifying the race/ethnicity of the passengers is 76%.
This is not acceptable.
The stops included 46 white male drivers, 21 white females, 15 Hispanic males, 6 Hispanic
females, 7 black males, 2 black females, 1 Indian/Alaskan male, and 1 Indian/Alaskan female.
When the Bureau of Internal Oversight (BIO) conducts audits of the traffic stop data, they issue
memorandums to the individual Districts so they are aware of the deficiencies and can provide
corrective action. We do review the internal audits and associated matrices conducted by MCSO
and occasionally we will disagree with their findings.
There were 42 instances where deputies chose to issue warnings to drivers instead of issuing a
citation. The ethnic breakdown of those receiving warnings reflected the numbers indicated in
the number of total stops. The breakdown of those motorists issued warnings is as follows: 22
white males, 9 white females, 4 Hispanic males, 1 Hispanic female, 3 Black males and 1 Indian
American/Alaskan male. In two of the cases where warnings were issued in lieu of a citation the
deputy failed to indicate the race/ethnicity of the driver. We note that while deputies do a good
job of completing the Arizona Traffic Complaint, their completion of the Warning/Repair form is
lacking in thoroughness and accuracy. They frequently fail to list the registered owner or fail to
indicate the full description of the driver. MCSO is aware of these deficiencies and is working to
correct them.
We did review documentation where BIO would send memorandums to the District commanders
when their audits found that deputies were not following protocol when completing required
documentation for traffic stops. Previously deputies did not indicate the race, ethnicity or gender
of passengers when no contacts were made with them. The Order requires MCSO deputies to
document the perceived race, ethnicity and gender of any passengers whether contact is made
with them or not. MCSO is aware of the deputies failure to indicate the race/ethnicity of
passengers when no contact is made with them and is working on a solution to include this
documentation. The Order does not require the names of passengers unless a passenger is
contacted and the reason for the contact is documented; in those instances where contact is made
the passenger's name should be listed on the Vehicle Stop Form.
MCSO is not in compliance with this Subparagraph.
Paragraph 54.f requires that MCSO record the name of any individual upon whom the deputy
runs a license or warrant check (including the subjects surname). When we reviewed traffic
stop documentation for our First Report, there were only two individuals identified during the 94
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traffic stops that had queries (record checks) indicated on the CAD printout. When we visited
one of the Districts during our September 2014 site visit, we interviewed a deputy who indicated
that license plate or driver record checks are made on almost every traffic stop. We inquired
further and the deputy produced a copy of a record check on the Intergraph I/Viewer.
However, we did not receive the information from the Intergraph I/Viewer system for our first
report. We did review I/Viewer checks deputies had run for the September sample. In
addition, on the deputys Mobile Data Computer (MDC), there is an icon that allows the deputy
to run checks on the Justice Web Interface (JWI). This system provides deputies additional tools
that Intergraph CAD does not, such as photographs, criminal history and booking history. MCSO
must provide a mechanism to verify the existence of all access to the JWI in the samples we
request. MCSO indicated in a memorandum dated October 8, 2014 that they will provide the
documentation beginning with the October sample request. MCSO has provided the JWI
documentation for the October-December 2014 quarter for our review.
For this review we found that in the 103 traffic stops conducted all stops had license checks run
and there were 77 (82 total checks including passengers) stops where the driver or one or more
passengers had a warrant check run. Four of these warrant checks were not listed on the Vehicle
Contact Face Sheet and thus are in violation of the policy.
MCSOs compliance rate is 95%
and is compliant with this Subparagraph.
Paragraph 54.g requires the deputy to document whether contact was made with any passengers,
the nature of the contact, and the reasons for the contact. There were four instances where
deputies made contact with passengers. In one case the reason for contact with the passenger
was indicated as a contact during a traffic stop; this phrase is ambiguous and does not
adequately describe the reason the deputy initiated the contact. In another case the deputy made
contact with a passenger to determine if she had a valid driver license due to the possibility of the
vehicle being towed. In the remaining two cases the deputy documented the reason for the
contact: one a passenger seatbelt violation; and in the other, the passenger initiated the contact.
MCSO made several changes to the Vehicle Stop Contact Face Sheet during the previous quarter
to better capture the reason for the stop and the reason the passenger was contacted by changing
the check box on the form to a fill in the blank section requiring the deputy to indicate the
precise violation or reason for the passenger contact.
To insure that deputies are accurately capturing passenger information and if passengers are
contacted, we compare the number of passengers listed by the deputy with the number of
passengers on the Vehicle Contact Face sheet. We also review the I/Viewer System and the
Justice Web Interface to see if a record check was requested for anyone other than the driver.
Deputies must ensure that they explain why they made contact with any passengers. Indicating
moving, non-moving violation or contact during a traffic stop as a reason for the stop describes
why they stopped the driver, but not why they made contact with any passengers. Of the four
cases where passengers were contacted, the deputies listed the name of the contacted passenger
for three of the stops. In the exception, the deputy listed the driver of the vehicle twice, once in
the box marked for the driver and again in the box for the passenger. We were able to determine
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the passengers name by locating it in the Incident Report completed by the deputy. In our
experience the vast majority of traffic stops do not require contact with a passenger unless the
driver is arrested, the vehicle will be towed, or there are minor children in the vehicle that will
need care. If contact with a passenger is made, deputies should indicate the name of the person
contacted. Due to the infrequent contact of passengers during traffic stops, deputies must be
diligent in documenting passenger contacts as one or two violations have a direct impact on
compliance. MCSOs compliance rate for this Subparagraph is 75%.
Paragraph 54.h requires deputies to record, prior to the stop, the reason for the vehicle stop,
including a description of the traffic or equipment violation observed and any indicators of
criminal activity developed before or during the stop. For this review, we took a random sample
of 10 cases from the 34 cases we initially requested each month for a CAD audio review. (Note:
for the December sample we requested 35 cases for review and 11 CAD audio recordings.) We
listened to 31 CAD dispatch audio recordings from the sample of 103 used for this review and
found that the deputies advised Communications of the location and license plate and state for all
31 stops. The audio recordings we reviewed were clear and the deputy advised of the reason for
the stop in all 31 of the cases. There were 72 instances in the sample where we did not listen to
the CAD audio tapes but did review the CAD printout where the reason for the stop, if advised
by the deputy, is documented by the dispatcher. In two instances, the documentation for the
reason for the stop is not listed on the CAD report and it would indicate that either the deputy did
not advise Communications of the reason or the dispatcher failed to list the reason for the stop on
the printout. The CAD printout does document the time the stop begins and when it is concluded
either by arrest, citation or warning. We did find six instances where the deputy did advise
dispatch of the reason for the traffic stop but indicated moving violation, M or signal 910 as
the reason for the stop on the VCFS. These comments by the deputy do not meet the
requirements of the Order. The issues were identified during MCSOs internal audit and our
review. MCSOs compliance rating for this Subparagraph is 98%.
Paragraph 54.i requires deputies to document the time the stop began; any available data from
the E-Ticketing system regarding the time any citation was issued; the time a release was made
without a citation; the time any arrest was made; and the time the stop/detention was concluded
either by citation, release, or transport of a person to jail or elsewhere or the deputys departure
from the scene. In our review of the documentation provided, the CAD printouts, the Vehicle
Stop Contact forms created by MCSO along with the E-Ticketing system and the Arizona Ticket
and Complaint form capture the information required. As we noted in Subparagraph 54b, the
stop times on the CAD printout and the Vehicle Contact Face Sheet varies slightly on occasion.
We understand that this may occur due to extenuating circumstances and we reported on those
that were five minutes or more in duration from either the initial stop time or end time.
We understand that some stops vary in time for any number of reasons that may, or may not, be
justified. We looked at all stops in our sample and determined that there were 16 traffic stops
where the duration of the stop may have been excessive. In one of the stops the deputy failed to
describe the circumstances for the extension, while in the remaining 15 the deputies justified the
reason for extending the stop. Our review of the extended stops indicates that four individuals
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were arrested and booked into a facility; there were six cases where the driver of the vehicle was
charged with a criminal traffic offense and in the five remaining cases the deputy justified the
extension of the stop.
The ethnicity and gender of the extended stops are as follows: nine white males, three Hispanic
males, one white female, one black male, one male of Indian/Alaskan ethnicity and one male
where the deputy failed to indicate the ethnicity of the driver on the Vehicle Contact Face Sheet.
MCSO is in compliance with this Subparagraph with a compliance rating of 99%.
Paragraph 54.j requires MCSO to document whether any inquiry as to immigration status was
conducted and whether ICE/CBP was contacted, and if so, the facts supporting the inquiry or
contact with ICE/CBP, the time Supervisor approval was sought, the time ICE/CBP was
contacted, the time it took to complete the immigration status investigation or receive a response
from ICE/CBP, and whether ICE/CBP ultimately took custody of the individual. Our review of
the collection of the traffic stop data for this reporting period did not reveal any immigration
status investigations. We have been advised that MCSO is no longer conducting immigration
investigations when deputies are initiating traffic stops. We will continue to verify this assertion
in our reviews.
On November 7, 2014 a United States District Court Judge issued an Order permanently
enjoining enforcement of Arizona Revised Statute (A.R.S.) 13-2319 commonly referred to as the
Arizona Human Smuggling Act. On November 17, 2014, MCSO issued Administrative
Broadcast 14-75, prohibiting deputies from enforcing the above state statute, including arresting,
detaining, or questioning persons for suspected (or even known) violations of the Act and from
extending the duration of traffic stops or other deputy-civilian encounters in order to do so.
MCSO is in compliance with this Subparagraph.
Paragraph 54.k requires MCSO to document whether any individual was asked to consent to a
search (and the response), whether a probable-cause search was performed on any individual, or
whether a pat-and frisk search was performed on any individual. In our review we did not find
any indications where an individual was asked for a consent search or of any individual who was
frisked during the stop. We did find 12 cases where an arrest was made for a criminal traffic
offense. In eight of these cases the violator was cited and released. In one case the violator
received a warning for the traffic violation but was arrested and booked on an outstanding
warrant. The deputy indicated a search incident to arrest on this case. In another case the driver
was arrested and booked on a reckless driving charge. The other two cases involved DUI arrests
where the violator was arrested and transported and the deputy failed to document a search
incident to arrest, if one occurred. Although other MCSO policies were possibly violated as a
result of the two DUI arrests, MCSOs compliance rate for this Subparagraph is 97% since in all
but three cases reviewed the deputy did indicate whether a search was or was not made.
Paragraph 54.l requires MCSO to document whether any contraband or evidence was seized
from any individual, and the nature of the contraband or evidence. During our review of the
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collected traffic stop data, there were no stops where contraband or evidence was seized during
the reporting period. MCSO is in compliance with this Subparagraph.
Paragraph 54.m requires the documentation of the final disposition of the stop, including whether
a citation was issued or an arrest was made or a release was made without a citation. In all 103
of the cases we found documentation indicating the final disposition of the stop, whether an
arrest was made, a citation was issued, a warning was given, or a release was made without a
citation. MCSOs submission of the December sample included a duplicate case that they
discovered prior to our review and advised us. We mutually agreed to replace the duplicate with
another traffic case in an email exchange. MCSO is in compliance with this Subparagraph with
a compliance rating of 100%.
In order to be compliant with Paragraph 54 of the Order, all Subparagraphs must be in
compliance.
Compliance Status:
Paragraph 55. MCSO shall assign a unique ID for each incident/stop so that any other
documentation (e.g., citations, incident reports, tow forms) can be linked back to the stop.
We reviewed Policy EA-5 (Enforcement Communications; effective September 5, 2014), which
complies with the Paragraph requirement.
We met with the Deputy Chief of the Technology Bureau during our June 2014 site visit, who
confirmed that the unique identifier went live when the CAD system was implemented in
September 2013. This number provides the mechanism to link all data related to a specific
traffic stop. The number is automatically generated by the CAD software and is sent to the
deputys MDT at the time of the stop. We have visited the Communications Center (Dispatch) in
previous site visits where we observed and listened to several traffic stops and conversed with
dispatchers about how the unique identifier is assigned.
We visited two Districts for the July-September review and had an in-car demonstration of how
the deputy inputs the traffic stop data into TracS. Once the deputy scans the motorists driver
license the system automatically populates most of the information into one or more forms
required by the Order. If the data cannot be entered into TracS from the vehicle (malfunctioning
equipment), policy requires the deputy to enter the data electronically prior to the end of the
shift.
Since our first visit for monitoring purposes in June 2014, TraCS has been implemented in all
Districts and the unique identifier (CFS number) is automatically entered from the deputys
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MDT; no user intervention was required. TracS Administrators discovered that the Event
Number (unique identifier) was being duplicated on the vehicle stop forms. The Event Number
was previously auto-populated by CAD, however, when connection to CAD was lost because of
dead zones, CAD populated the last known number, which assigned an incorrect number to the
stop. To overcome this deficiency, deputies must now manually enter the previously supplied
unique Event Number on the vehicle stop forms; a warning alert is given prompting the deputy to
confirm the number.
In order to determine compliance, we reviewed 103 traffic stop cases and reviewed the CAD
printouts and the Vehicle Contact Forms for all stops. We reviewed the Warning/Repair Forms,
when applicable, for those stops where a warning was issued or the vehicle had defective
equipment. The unique identification number assigned to each event was listed on all CAD
printouts for every stop, and the number was also listed on the Vehicle Contact Forms. Policy
EA-5, Enforcement Communications, effective September 5, 2014, has been disseminated and
trained to.
Compliance Status:
Paragraph 56. The traffic stop data collection system shall be subject to regular audits and
quality control checks. MCSO shall develop a protocol for maintaining the integrity and
accuracy of the traffic stop data, to be reviewed by the Monitor pursuant to the process
described in Section IV.
Policy EB-2 (Traffic Stop Data Collection), effective September 22, 2014, addresses the issue of
regular audits and quality control checks. We recommended in our First Quarterly Report that
the policy distinguish between the two. While audits require in-depth analysis, quality control
checks are more of an inspection or spot check of the data. MCSO has made the required
distinction between the two and changed the policy to comply. We have not yet been provided
with the protocol developed by MCSO for maintaining the integrity and accuracy of the traffic
stop data. MCSO originally indicated that the requirements of this paragraph would be included
in GH-2 (Internal Investigations), but they may be more appropriate for the EIS (Early
Intervention System) policy.
We were advised that MCSO conducted an audit of traffic stop data in January of 2014 and then
again beginning in April 2014. After the January 2014 audit, new handwritten forms were
created to collect the data required by policy until full electronic data entry began on April 1,
2014. MCSO advises that they are currently in the process of conducting another audit. CCID
advises that they have conducted spot audits that were directed at portions of data or the actions
of individual deputies. They did provide us with an inspection during our September 2014 site
visit. We reviewed the BIOs October December monthly audits of the traffic samples and
found them complete and thorough. In order to be in compliance MCSO must provide the
protocol specifically addressing the requirements for maintaining the integrity and accuracy of
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the traffic stop data. The approved policy requires regularly scheduled audits on a monthly,
quarterly and annual basis. At present, MCSO is not in compliance with this Paragraph.
Compliance Status:
Paragraph 57. MCSO shall explore the possibility of relying on the CAD and/or MDT systems to
check if all stops are being recorded and relying on in-car recording equipment to check whether
Deputies are accurately reporting stop length. In addition, MCSO shall implement a system for
Deputies to provide motorists with a copy of non-sensitive data recorded for each stop (such as a
receipt) with instructions for how to report any inaccuracies the motorist believes are in the
data, which can then be analyzed as part of any audit. The receipt will be provided to motorists
even if the stop does not result in a citation or arrest.
The system for providing receipts is outlined in EB-1 (Traffic Enforcement, Violator Contacts,
and Citation Issuance) and EB-2 (Traffic Stop Data Collection), both effective September 22,
2014. Every person contacted on a traffic stop will be provided with either an Arizona Traffic
Ticket or Complaint (Citation), a Written Warning/Repair Order (Warning), or an MCSO
Incidental Contact Receipt. During this reporting period, there were 42 incidents where the
deputy gave a warning to the motorist for a traffic violation and in nine of these cases, the deputy
failed to have the violator sign the warning/repair form and in five instances the deputy wrote
SERVED in the box requiring a signature for the warning. In order to verify compliance that
the violator received the required receipt from the deputy, a signature is required, or, if the
violator refuses to sign the deputy may note the refusal on the form. We cannot verify that
motorists have been given a receipt without a signature on the form or the deputy advising of the
refusal of the receipt from the driver. Placing SERVED in the signature box without any
explanation does not comply with the requirement. MCSOs compliance for this portion of the
Subparagraph is 67%.
In the 61 cases where drivers were issued citations, we found five instances where the driver did
not sign the Arizona Traffic Citation. In three of the cases, the deputies indicated a valid reason
for not obtaining a signature and in the remaining two cases, they indicated SERVED on the
citation.
The approved policy dictates that the CAD system will be used for verification of the recording
of the initiation of the stop. The stops termination is noted by the deputy verbally announcing
the same on the radio. CAD then permanently records this information. Once MCSO acquires
on-body recording equipment, policies must be developed which account for its use in verifying
stop duration.
In order to address the use of in-car recording equipment to check on whether deputies are
accurately recording stop length, MCSO developed a draft policy, EA-4, Use of Body Worn
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Cameras, and provided the Monitor and the Plaintiffs with copies for our input on December 4,
2014. Recommendations were provided, and MCSO advises that a new draft is pending.
The Court amended, on October 10, 2014, the word in-car with on-person in the first
sentence of Paragraph 57. (See also Paragraph 61).
MCSO is not in compliance with this subparagraph.
Compliance Status:
Phase 1: Not in Compliance
Phase 2: Not in Compliance
Paragraph 58. The MCSO shall ensure that all databases containing individual-specific data
comply with federal and state privacy standards governing personally-identifiable information.
MCSO shall develop a process to restrict database access to authorized, identified users who are
accessing the information for a legitimate and identified purpose as defined by the Parties. If the
Parties cannot agree, the Court shall make the determination.
Policies GF-1 (Criminal Justice Data Systems ), effective November 7, 2006, and GF-2
(Criminal History Record Information and Public Records), effective January 7, 2000, state that
all databases containing specific data identified to an individual comply with federal and state
privacy standards and it limits access to only those employees who are authorized to access the
system.
The policies go further to include that the dissemination of Criminal History Record Information
(CHRI) is based on federal guidelines, Arizona Statutes, the Department of Public Safety, the
Arizona Criminal Justice Information System and that any violation is subject to fine. No
secondary dissemination is allowed. We reviewed an internal MCSO memorandum of April 12,
2014 that required all TOC (Terminal Operator Certification) personnel in these positions to be
re-certified on a new testing procedure developed by the Training Division and the Systems
Security Officer. We previously met with two Deputy Chiefs who advised that MCSO had been
vigilant in security of the data systems and had previously prosecuted violators and currently
have one outstanding case in the system. We will continue to observe the security issues
outlined in Paragraph 58 of this Order, but at present MCSO is in compliance with this
Paragraph.
Compliance Status:
Paragraph 59. Notwithstanding the foregoing, the MCSO shall provide full access to the
collected data to the Monitor and Plaintiffs representatives, who shall keep any personal
identifying information confidential. Every 180 days, MCSO shall provide the traffic stop data
collected up to that date to the Monitor and Plaintiffs representatives in electronic form. If
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proprietary software is necessary to view and analyze the data, MCSO shall provide a copy of
the same. If the Monitor or the Parties wish to submit data with personal identifying information
to the Court, they shall provide the personally identifying information under seal.
Electronic traffic stop data capture began on April 1, 2014. In our review of 103 traffic stop
cases from October 1, 2014 through December 31, 2014, there were two instances where the data
provided by MCSO was written in by hand on the Vehicle Stop Contact form. Both of these
cases involved the motorists signature on either the citation or warning/repair form. The deputy
did explain the reason in both cases and it was acceptable. This form captures most of the traffic
stop details required by MCSO policy and paragraphs 25 and 54 of the Order. BIO provided the
traffic stop data which included a spreadsheet of all traffic stops from October 1, 2014 through
December 31, 2014, listing event numbers as described at the beginning of Section 8. We then
requested a stratified sample from all traffic stops. With the exception of two vehicles, all patrol
vehicles used for traffic stops are now equipped with the automated TraCS system, but there may
be some deputies who have not yet been trained in TraCS data entry. MCSO has provided full
access to all available collected data since April 1st. Electronic data were not collected before
this time. MCSO is in compliance with this Paragraph.
Compliance Status:
b. Electronic Data Entry
Paragraph 60. Within one year of the Effective Date, the MCSO shall develop a system by which
Deputies can input traffic stop data electronically. Such electronic data system shall have the
capability to generate summary reports and analyses, and to conduct searches and queries.
MCSO will explore whether such data collection capability is possible through the agencys
existing CAD and MDT systems, or a combination of the CAD and MDT systems with a new data
collection system. Data need not all be collected in a single database; however, it should be
collected in a format that can be efficiently analyzed together. Before developing an electronic
system, the MCSO may collect data manually but must ensure that such data can be entered into
the electronic system in a timely and accurate fashion as soon as practicable.
We reviewed the approved MCSO policies EB-1 (Traffic Enforcement, Violator Contacts, and
Citation Issuance), and EB-2 (Traffic Stop Data Collection), both effective September 22, 2014
and found them to be compliant with the provisions of the paragraph. However, the system must
be able to generate summary reports and analyses as well as be used to conduct searches of the
data. The requirement also includes that the system enable the deputies to enter the traffic stop
electronically from the field. If TraCS experiences a malfunction in the field, there is a protocol
that requires the deputy to electronically enter the traffic stop data prior to the end of the shift.
We have reviewed documents indicating that the Bureau of Internal Oversight (BIO) is
conducting spot checks of the data and forwarding those instances of non-compliance to the
Districts for action. The CCID provided a memorandum on April 28, 2014, that indicates MCSO
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was in the process of conducting an audit to determine the validity of the data captured. We did
receive from BIO an audit of the traffic stop data sample for October-December 2014 and upon
our review found it to be thorough. Initially the traffic stop data was captured on forms created
by MCSO, completed by the deputy in the field, and manually entered in the database by
administrative personnel located at each District.
As of June 30, 2014, there were 257 total vehicles equipped with the TraCS e-citation system.
We were advised that at the end of the review period, 267 units were so equipped. We looked
specifically at all Districts for those units that are used to conduct traffic enforcement to ensure
that deputies were able to enter the data electronically from the field. Therefore, we did remove
from the vehicle population those vehicles that were obviously specialized or special purposed,
and are not used to conduct traffic stops. We reviewed a document from MCSO generated in
October 2014 that indicated all but four of the 180 marked vehicles assigned to the Districts that
are used to enforce traffic laws have TraCS currently installed. During the December 2014 onsite visit, MCSO advised they now have 181 patrol vehicles and seven marked patrol vehicles
that are not equipped with TraCS, for 96% compliance.
In addition, MCSO must provide documentation pertaining to the training of deputies that use
electronic data entry systems for traffic stops. During the June site visit, we were informed that
training was being done through train the trainer processes, whereby EIS personnel train
Supervisors who then train deputies under their command. However, no documentation of said
training had been created; therefore, MCSO is not able to document who has received this
training and who hasnt. We spoke with a Deputy Chief during the December 2014 site visit who
indicated that there is a new training and documentation process being developed by the Training
Division to identify those deputies who have received TraCS training. We reiterated that a
process of memorialization for training was required by the Order. Therefore, while progress is
being made, MCSO is not in compliance with Paragraph 60.
Compliance Status:
c. Audio-Video Recording of Traffic Stops
Paragraph 61. The MCSO will install functional video and audio recording equipment in all
traffic patrol vehicles that make traffic stops, and shall commence regular operation and
maintenance of such video and audio recording equipment. MCSO shall prioritize the
installation of such equipment in all traffic patrol vehicles that makes traffic stops used by
Specialized Units that enforce Immigration-Related Laws, and such installation must be
complete within 180 days of the Effective Date. MCSO shall equip all traffic patrol vehicles that
make traffic stops with video and audio recording equipment within 2 years of the Effective
Date. Subject to Maricopa County code and the State of Arizonas procurement law, the Court
shall choose the vendor for the video and audio recording equipment if the Parties and the
Monitor cannot agree on one.
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During our September 2014 on-site visit we met with two MCSO Deputy Chiefs and other staff
to discuss the progress of acquiring in-car video and audio equipment for all patrol vehicles used
to conduct traffic stops. MCSO had initially set out to purchase fixed in-car cameras as required
by the Order, but expressed an interest in acquiring on-body video and audio recording devices
for their deputies. We believe this is a prudent choice in that it allows for capturing additional
data, where a fixed mounted camera has limitations. The change will capture more citizen
interactions when contact is away from the vehicle.
On October 10, 2014 the Court issued an Order providing an amendment/stipulation for
Paragraph 61 of the Courts Order of October 2, 2013. The stipulation strikes the word invehicle and adds the phrase issued-on-person audio and video equipment. The Order goes
on to state that issuance must be complete within 120 days of the approval of the policies and
procedures for the operation, maintenance, and data storage for such on-person body cameras
and approval of the purchase of such equipment and related contracts by the Maricopa Board of
Supervisors.
During the December 2014 site visit we met with the Deputy Chief of Technology and staff from
BIO and CCID and were advised that MCSO personnel visited an out-of-state agency to view
their operation of body-worn cameras. MCSO advised that their request to the County Board
will be to purchase 700 body cameras, 150 docking stations and 50 individual docking stations
for those deputies who do not regularly report to District Offices.
CCID is developing recommendations for field personnel to participate in drafting the business
requirements for on-body cameras. When the procurement process is finalized, MCSO must
develop a policy/protocol to address the requirements for the use of the video/audio recording of
every traffic stop, and the security and maintenance of associated equipment. The policy must
address, in addition, what deputies are required to do if equipment is malfunctioning, as well as
the documented process of how such malfunctions are reported and serviced. MCSO did provide
a draft policy, EA-4, Use of Body Worn Cameras, which did not meet all of the requirements.
The Monitoring Team and the Plaintiffs provided input on the draft, and a new policy will be
forthcoming. MCSO is not in compliance with this Paragraph.
Compliance Status:
Paragraph 62. Deputies shall turn on any in-vehicle video and audio recording equipment as
soon the decision to initiate the stop is made and continue recording through the end of the stop.
MCSO shall repair or replace all non-functioning video or audio recording equipment, as
necessary for reliable functioning. Deputies who fail to activate and to use their recording
equipment according to MCSO policy or notify MCSO that their equipment is nonfunctioning
within a reasonable time shall be subject to Discipline.
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In the Courts amended Order of October 10, 2014, the word in-vehicle should be struck from
the first sentence of Paragraph 62.
MCSO has evaluated on-person body cameras from other jurisdictions and have decided on a
vendor (Taser International). We have suggested that MCSO deputies conduct a functionality
test at the beginning and end of their tour of duty. When the policy is developed it must state the
requirement that deputies are subject to discipline if they fail to activate and use their recording
equipment and it must address how non-functioning equipment will be repaired or replaced. At
present MCSO is not in compliance with this Paragraph.
Compliance Status:
Paragraph 63. MCSO shall retain traffic stop written data for a minimum of 5 years after it is
created, and shall retain in-car camera recordings for a minimum of 3 years unless a case
involving the traffic stop remains under investigation by the MCSO or the Monitor, or is the
subject of a Notice of Claim, civil litigation or criminal investigation, for a longer period, in
which case the MCSO shall maintain such data or recordings for at least one year after the final
disposition of the matter, including appeals. MCSO shall develop a protocol, to be reviewed by
the Monitor pursuant to the process described in Section IV, for reviewing the in-car camera
recordings and for responding to public records requests in accordance with the Order.
Policy EB-2 (Traffic Stop Data Collection) includes the requirement that MCSO retain written
traffic stop data completed on the Vehicle Stop Contact form for a minimum of five years after it
is created, unless a case involving a traffic stop remains under investigation by the Office or is
subject of a Notice of Claim, civil litigation or criminal investigation, in which case MCSO shall
maintain such data or recordings for at least one year after the final disposition of the matter,
including appeals. They have developed a protocol and a policy that requires the original hard
copy form to be kept at the division level and filed separately for each deputy. When a deputy is
transferred, his written traffic stop information will follow him to his new assignment. MCSO
has yet to develop a protocol for reviewing the in-car (now on-body) camera recordings and for
responding to public records requests in accordance with the Order. This policy must address the
retention of recordings. MCSO is not in compliance with this Paragraph.
The Court, in an Order issued October 10, 2014, amended the last sentence of Paragraph 63 as
follows: MCSO shall develop a formal policy, to be reviewed by the Monitor and the Parties
pursuant to the process described in Section IV and subject to review by the District Court to
govern proper use of the on-person cameras; accountability measures to ensure compliance with
the Courts orders, including mandatory activation of video cameras for traffic stops; review of
the camera recordings; responses to public records requests in accordance with the Order and
governing law; and privacy protections. The MCSO shall submit such proposed policy for
review by the Monitor and Plaintiffs counsel within 60 days of the Courts issuance of an order
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approving the use of on-body cameras as set forth in this stipulation. The MCSO shall submit a
request for funding to the Maricopa County Board of Supervisors within 45 days of the approval
by the Court or the Monitor of such policy and the equipment and vendor(s) for such on-body
cameras.
MCSO developed and submitted a draft policy, EA-4, that did not meet the requirements of the
Paragraph. We, along with the Plaintiffs provided the agency with suggestions to correct the
deficiencies in the proposed draft. MCSO advised that they have incorporated our concerns into
a new draft that would be submitted in the near future. In order to be compliant the new policy
governing the use of on-person cameras must consider accountability measures to ensure
compliance, activation of video cameras for traffic stops, review of camera recordings and
response to public records request. Therefore, until the policy is approved, disseminated and
trained to, they remain not in compliance with the requirements of the Paragraph.
Compliance Status:
d. Review of Traffic Stop Data
Paragraph 64. Within 180 days of the Effective Date, MCSO shall develop a protocol for
periodic analysis of the traffic stop data described above in Paragraphs 54 to 59 (collected
traffic stop data) and data gathered for any Significant Operation as described in this Order
(collected patrol data) to look for warning signs or indicia or possible racial profiling or
other improper conduct under this Order.
We reviewed MCSO policies EB-1 (Traffic Enforcement, Violator Contacts, and Citation
Issuance, dated September 22, 2014) and EB-2 (Traffic Stop Data Collection, dated September
22, 2014), the Significant Operations/Patrols guidelines (GJ-33, dated September 5, 2014), and
responses to the Monitor production requests related to this paragraph (dated January 26, 2015).
A draft EIS policy was also received by the Monitor and Plaintiff Attorneys in September, 2014.
Suggestions for modification and change to this policy were provided to MCSO on October 16,
2014. The EIS policy remains under development and review.
However, none of the aforementioned policies sufficiently address the issue of protocols to look
for warning signs or indicia of possible racial profiling or other improper conduct. Therefore,
MCSO is not in Phase 1 compliance at this time.
We also reviewed information obtained from MCSO staff interviews conducted during the
December 2014 site visit. Members of the EIU (Early Intervention Unit) responsible for the EIS
system were able to show evidence of investigations based upon data they had compiled from
Vehicle Stop Contact Forms entered into the TraCS system. During the site visit, we discussed
how EIU staff conducts analyses of traffic stop data to identify cases of outliers that might
involve racial profiling or other misconduct. In general, we learned that the EIU staff sets
alerts (identifying cases that require further review beyond a spreadsheet analysis) based on
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assumptions made about excessive activities (e.g., more than 10 traffic stops in a month by a
single officer). MCSO personnel recognize that setting alerts in this fashion creates an arbitrary
boundary that may or may not uncover all inappropriate behavior. Therefore, while they have
begun the inspection of traffic data, they have not developed a protocol that adequately captures
the requirements of Paragraphs 54 to 59. MCSO is in the process of contracting with persons
who can assist them in the development of this protocol. We will continue to advise on and
observe this process. Finally, in addition to conducting these analyses MCSO should develop a
template for describing why some alerts may be cleared while others warrant investigation. At
present MCSO only provides a table of alerts and investigations without any additional
information.
EIU staff would prefer to use statistical methods for identifying outliers, such as setting alerts for
those officers two to three standard deviations from the mean behavior for the unit, but such
criteria will have to wait until MCSO hires their own consultant on research methods. In
addition, EIU has provided documentation about their current methodology used to conduct
analyses for indications of racial profiling. While the documentation did provide valuable insight
into what EIU staff considers outliers, racial profiling, and improper conduct, it continues
to lack information about how their opinion will be supplanted with more sophisticated
techniques for detecting cases of improper conduct. For example, the documentation in January
2015, in response to our request, does a good job of describing how analysts currently review
traffic stop data on a weekly and monthly basis (note, there is no mention of quarterly or annual
analyses). However, as was discussed during our December 2014 site visit with EIU staff, the
current methodology is too qualitative to satisfy the requirements of the Order. MCSO stated
that they intend to identify more sophisticated statistically valid methodologies with outside
experts who have been identified. Once the contract with the outside experts is finalized, MCSO
recommended that the Monitors team meet with them (and EIU and BIO Staff) to discuss
methodologies. At present, while EIU staff is working in earnest to address the requirements of
this paragraph, MCSO is not in compliance with Paragraph 64.
Compliance Status:
Paragraph 65. MCSO shall designate a group with the MCSO Implementation Unit, or other
MCSO Personnel working under the supervision of a Lieutenant or higher-ranked officer, to
analyze the collected data on a monthly, quarterly and annual basis, and report their findings to
the Monitor and the Parties. This review group shall analyze the data to look for possible
individual-level, unit-level or systemic problems. Review group members shall not review or
analyze collected traffic stop data or collected patrol data relating to their own activities.
We reviewed all the updated documentation set forth in Paragraph 64 above (MCSO policies EB1 (Traffic Enforcement, Violator Contacts, and Citation Issuance, dated September 22, 2014),
EB-2 (Traffic Stop Data Collection, dated September 22, 2014), and the Significant
Operations/Patrols guidelines (GJ-33, dated September 5, 2014)). Additionally a draft EIS
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policy was received by the Monitor and Plaintiff Attorneys in September, 2014. Suggestions for
modification and change to this policy were provided to MCSO on October 16, 2014. The EIS
policy remains under development and review at this time. We also received information
obtained from MCSO staff interviews conducted during the December 2014 site visit that have
bearing on our compliance review. While MCSO has designated the EIU as the unit to conduct
the monthly and quarterly analyses of data, in particular in the draft EIS policy, consistent with
this Paragraph they are still in the process of negotiating with an outside contractor to assist with
the annual analysis. In addition, the manner of data analyses conducted up to this time, while
informative, does not allow for the statistically defensible approach implied by this Paragraph.
Therefore, MCSO is not in Phase 1 compliance with Paragraph 65.
During the December visit, we reviewed detailed information provided by MCSO staff about
their approach to identifying individual-level, unit-level, or systemic problems. The discussion
was based on the documentation, Protocols to Analyze Traffic Stop Data, dated October 8,
2014 that describes the analytic steps used to conduct weekly and monthly analyses. Subsequent
documents recently provided by EIU staff delineates the criteria used by the EIU to identify
cases requiring investigations of potential racial profiling. This document mirrors what we
learned from our December 2014 visitthat thresholds used for identifying potential cases are
arbitrarily set. For example, one of the criterion involves looking for outliers after comparing
deputies making 10 traffic stops a month in one zip code to other deputies making 10 traffic
stops in the same zip code in terms of percentages of race or ethnicity in post stop perceived race
or ethnicity. The percentages used are not based on any systematic statistical analysis, which
renders them to be qualitative rather than quantitative. According to the documentation,
problems are identified at the zip code level, but not at larger geographic levels or district-wide.
Thus, protocols that the Order requires MCSO staff to use in identifying potential cases of
biased-policing at the individual-level, unit-level, and systemic-level still do not exist.
According to the draft EIS policy the newly formed Bureau of Internal Oversight (BIO)
incorporates the Early Intervention Unit (EIU). As of this writing we have received a draft
policy covering the EIS Process, and the responsibilities of the EIU. However, MCSO must
develop a policy that specifically identifies the review group that will conduct the monthly,
quarterly, and annual analysis of traffic stop data. The policy must include the requirement that
the review group members recuse themselves from analyzing data pertaining to their own
activities. This latter issue will be moot if MCSO hires an outside consultant as indicated in the
December site visit interviews. MCSO must also develop a protocol delineating the
methodological (including statistical) tools and techniques that the review group will use to
conduct the periodic analyses. At present MCSO is not in compliance with Paragraph 65.
Compliance Status:
Paragraph 66. MCSO shall conduct one agency-wide comprehensive analysis of the data per
year, which shall incorporate analytical benchmarks previously reviewed by the Monitor
pursuant to the process described in Section IV. The benchmarks may be derived from the EIS or
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IA-PRO system, subject to Monitor approval. The MCSO may hire or contract with an outside
entity to conduct this analysis. The yearly comprehensive analysis shall be made available to the
public and at no cost to the Monitor and Plaintiffs.
MCSO provided documentation on January 27, 2015 stating [T]he analytic benchmarks for the
annual agency wide review of data has not yet been established. During the December 2014
site visit, MCSO staff informed us that one of the top priorities of the newly formed BIO will be
to work with an outside expert to develop a proposed methodology and benchmarks for
conducting the annual, agency-wide comprehensive analysis. This methodology will include
establishing a protocol for the annual, all-agency comprehensive review of data. It must include
benchmarks previously reviewed by the Monitor and it must describe the methodological
(including statistical) tools and techniques that will be used to conduct the annual evaluation.
These benchmarks may include aspects of analyses currently used by the EIU that incorporate
data from IA Pro/Blue Team. However, the incorporation of these data needs to be approved by
the Monitor as outlined in Section IV of the Order. Until those documents are developed and
evaluated MCSO is not in compliance with this Paragraph.
Compliance Status:
Paragraph 67. In this context, warning signs or indicia of possible racial profiling or other
misconduct include, but are not limited to:
a.
racial and ethnic disparities in deputies, units or the agencys traffic stop patterns,
including disparities or increases in stops for minor traffic violations, arrests following a traffic
stop, and immigration status inquiries, that cannot be explained by statistical modeling of race
neutral factors or characteristics of deputies duties, or racial or ethnic disparities in traffic stop
patterns when compared with data of deputies peers;
b.
evidence of extended traffic stops or increased inquiries/investigations where
c.
a citation rate for traffic stops that is an outlier when compared to data of a Deputys
peers, or a low rate of seizure of contraband or arrests following searches and investigations;
d.
indications that deputies, units or the agency is not complying with the data collection
e.
other indications of racial or ethnic bias in the exercise of official duties.
We reviewed MCSO policies EB-1 (Traffic Enforcement, Violator Contacts, and Citation
Issuance, dated September 22, 2014) and EB-2 (Traffic Stop Data Collection, dated September
22, 2014), the Significant Operations/Patrols guidelines (GJ-33, dated September 5, 2014), and
responses to the Monitor production requests related to this paragraph (dated January 26, 2015).
A draft EIS policy was received by the Monitor and Plaintiff Attorneys in September, 2014.
Suggestions for modification and change to this policy were provided to MCSO on October 16,
2014. The EIS policy remains under development and review. None of the aforementioned
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policies sufficiently develops measures, methods and protocols to conduct a statistical analysis as
prescribed by this Paragraph. Therefore MCSO is not in Phase 1 compliance.
MCSO has begun conducting analyses of traffic stop data, looking for outliers or persons who
have triggered particular alerts, but these types of analyses are not sufficient to address the
requirements of this Paragraph. We will continue to work with MCSO and their designated
contractors in future review periods.
In addition we reviewed information obtained first-hand from MCSO staff interviews conducted
during the December 2014 site visit. We continue to find that while the EIU has begun doing
investigations of data compiled from Vehicle Stop Contact Forms and the EIU personnel now
have documented their methodology for conducting these investigations, the methodology they
are using, while seeking to comply with the intent of the Order, does not provide a statistically
defensible approach in identifying warning signs or indicia of racial profiling or other police
misconduct. This also pertains to the list of other criteria offered by MCSO that will be included
above and beyond those specified in Paragraph 67. In addition, the protocol should ensure that
the criteria will be used in the annual, comprehensive, agency-wide evaluation required by
Paragraph 66. Finally, in addition to conducting these analyses MCSO should develop a
template for describing why alerts may be cleared while others warrant investigation. At present
MCSO only provides a table of alerts and investigations without any additional information. A
well-defined template would eliminate the perception that both the alerts and the investigations
may be arbitrary. MCSO is not in compliance with Paragraph 67.
Compliance Status:
Paragraph 68. When reviewing collected patrol data, MCSO shall examine at least the
following:
a. the justification for the Significant Operation, the process for site selection, and the
procedures followed during the planning and implementation of the Significant
Operation;
b. the effectiveness of the Significant Operation as measured against the specific operational
objectives for the Significant Operation, including a review of crime data before and after the
operation;
c. the tactics employed during the Significant Operation and whether they yielded the desired
results;
d. the number and rate of stops, Investigatory Detentions and arrests, and the documented
reasons supporting those stops, detentions and arrests, overall and broken down by Deputy,
geographic area, and the actual or perceived race and/or ethnicity and the surname
information captured or provided by the persons stopped, detained or arrested;
e. the resource needs and allocation during the Significant Operation; and
f. any Complaints lodged against MCSO Personnel following a Significant Operation.
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As referenced in Paragraph 36, MCSO has finalized, distributed and trained personnel to a
Significant Operations Policy GJ-33. Therefore the department has achieved Phase 1
compliance with this paragraph.
During the December 2014 site visit, we were informed that one Significant Operation had
occurred during the period from October to December of 2014 Operation Borderline which
was a drug interdiction effort described completely in Section 6: Pre-Planned Operations. In
response to a request for documentation for this paragraph, CCID personnel produced a
Memorandum, dated January 12, 2015, stating that CCID had contacted the Chief of Patrol and
Enforcement Support Bureau and the Chief of Detectives and Investigations Bureau, who both
stated that no applicable Significant Operations had occurred during this reporting period that
involved only traffic patrol. We believe that this Paragraph references Significant Operations as
described in Section 6, and the one operation described in that section complies with the
requirements of this Paragraph.
Compliance Status:
Paragraph 69. In addition to the agency-wide analysis of collected traffic stop and patrol data,
MCSO Supervisors shall also conduct a review of the collected data for the Deputies under his
or her command on a monthly basis to determine whether there are warning signs or indicia of
possible racial profiling, unlawful detentions and arrests, or improper enforcement of
Immigration-Related Laws by a Deputy. Each Supervisor will also report his or her conclusions
based on such review on a monthly basis to a designated commander in the MCSO
Implementation Unit.
As noted elsewhere in this report MCSO has provided a new draft of the EIS policy which
incorporates the Blue Team reporting system that allows supervisors to make regular notations
about the traffic stop activity of persons under their command. While this policy has yet to be
approved, MCSO is conducting ongoing training for Blue Team as noted in a memorandum
pertaining to this Paragraph dated January 27th, 2015. Therefore, MCSO is not in Phase 1
compliance at this time.
MCSOs memorandum in response to the request for information for this paragraph describes a
new drop down menu for supervisors making notations about their subordinates that allows the
supervisor to choose from a list of MCSO policies regarding the notations they are making.
These include EA11-Arrest Procedures, CP2- Code of Conduct, CP3-Workplace
Professionalism, CP8- Preventing Racial and Other Biased based Profiling, EB1-Traffic
Enforcement, Violator contact and Citation Issuance, and EB2-Traffic Stop Data Collection,
among other criteria.
The EIS policy is now also purported to include an EI Pro component that allows supervisors to
review all information, except the details of internal and external complaints, regarding persons
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under their command. In addition, supervisors are able to use a drop down menu that would
trigger concerns the supervisor has about deputies workplace professionalism, preventing
Racial and Other Biased based Profiling and the like as enumerated in this memorandum. In
addition, MCSO provided the supervisory notes from October 20 th to December 31st, 2014. As
noted in the memorandum, there is not one particular way for supervisors to draft these notes
indicating a particular problem. EIU personnel and command staff will regularly review these
notes for indications of problems with deputy behavior with the drop down menu mentioned
above. A review of the 324 Supervisory Notes attached to this memorandum shows that
supervisors are reviewing the traffic stop activity of their subordinates. Included in these notes
are descriptions of the type of traffic stops deputies are involved in as well as the race and
ethnicity of the persons they come into contact with. The majority of these notes indicate
deputies are meeting the requirements of their position. However, there are also clear examples
of deputy behavior that has caused the supervisor to include a negative appraisal and counseling
to their subordinate, including notations about their failure to stay up-to-date on e-learning
systems and a lack of evidence of patrol activity. These positive or negative appraisals can be
viewed by deputies and their supervisors, with the addition of EI Pro. However, MCSO should
develop a method by which they can capture these aberrations in a swift and effective manner.
In coming site visits, this will be a major issue to address with EIU and supervisory personnel.
Compliance Status:
Paragraph 70. If any one of the foregoing reviews and analyses of the traffic stop data indicates
that a particular Deputy or unit may be engaging in racial profiling, unlawful searches or
seizures, or unlawful immigration enforcement, or that there may be systemic problems
regarding any of the foregoing, MCSO shall take reasonable steps to investigate and closely
monitor the situation. Interventions may include but are not limited to counseling, Training,
Supervisor ride-alongs, ordering changes in practice or procedure, changing duty assignments,
Discipline, or of other supervised, monitored, and documented action plans and strategies
designed to modify activity. If the MCSO or the Monitor concludes that systemic problems of
racial profiling, unlawful searches or seizures, or unlawful immigration enforcement exist, the
MCSO shall take appropriate steps at the agency level, in addition to initiating corrective and/or
disciplinary measures against the appropriate Supervisor(s) or Command Staff. All interventions
shall be documented in writing.
As noted in response to Paragraphs 64 and 65, we have reviewed EB 1 (Traffic Enforcement,
Violator Contacts and Citation Issuance) as well as EB 2 (Traffic Stop Data Collection). In
addition a draft EIS policy was received by the Monitor and Plaintiffs Attorneys in September,
2014. Suggestions for modification and change to this policy were provided to MCSO on
October 16, 2014. We also met with several CCID and EIU staff during the December site visit
regarding issues related to this paragraph. Several concerns were raised with MCSO about
definitions and protocols in earlier drafts of the EIS policy. Since the EIS policy remains under
development and review MCSO is not in Phase 1 compliance with Paragraph 70. In addition, we
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note below that the documentation describing the alert of problematic behavior is not sufficient
to judge whether any particular alert may have been cleared prematurely.
In response to the latest documentation request MCSO has produced a new draft policy that will
be reviewed and returned with comments.
Also in response to the latest request for
documentation MCSO has included a memorandum for Paragraphs 67 and 74 that includes a
description of the audits, analyses and protocols to be employed by the EIU. These protocol
descriptions are general in nature but refer to alert triggers that will be included in the Early
Intervention Program Supervisors Manual as described in a memorandum dated November 19,
2014. We will address the sufficiency of that list with the review of the proposed EIS policy.
EIU staff has provided memoranda on their methodology used to analyze traffic stop data on a
weekly and monthly basis. These documents, and communication during the site visit, have
clarified how EIU personnel try to identify outliers, racial profiling, and improper conduct.
Members of the Monitoring Team will continue working with EIU staff to fine-tune their
analysis. However, as we have noted in earlier paragraphs, MCSO should develop a statistically
defensible process that excludes as much as possible the arbitrary and artificial setting of alert
thresholds.
The EIU also produced a memorandum regarding this Paragraph, dated January 27 th, 2015,
detailing the process they conducted in response to the data request for Paragraphs 65, 67, 74 and
70, since they dealt with similar issues but requested different specific details. For example, the
memorandum notes that in October of 2014 the review of TraCS data indicated that seventeen
deputies activity required further analysis. After review of these 17 cases, only one required
further investigation which led to counseling of a deputy about the proper way to fill out the
TraCS forms. In both November and December of 2014, the data of ten and nine deputies,
respectively, resulted in a closer look and in each month there is an ongoing investigation of a
single deputys actions. While illuminating, these descriptions lack the details necessary to
adequately judge whether the clearing of these alerts was appropriate. This appears to be a
judgment call on the part of EIU personnel conducting the investigation. However, there is no
memorialization of why these alerts were unfounded. This remains an area of concern that we
will continue to raise with MCSO until such time as they draft requirements, or create a template,
that requires that these internal reviews result in a document supporting such outcomes.
Furthermore, this memorandum notes that analysis of TraCS data yielded no indication of INS
inquiries by deputies or the contacting of ICE/CBP. Finally, alerts for the use of unknown for
post stop perceived ethnicity occurred in 92 instances from October 1st to December 31st of 2014.
Of these, 18 involved continued investigation beyond the EIU team and four of these remain
open; several were closed with counseling or training of deputies and one turned out to be a false
alert. However, once again, there is no report that explains who conducted the investigations,
and why they came to the conclusions they did. We will continue to work with MCSO on issues
such as these to improve the transparency of such alert investigations and reviews. At present
MCSO is not in compliance with this Paragraph.
Compliance Status:
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Paragraph 71. In addition to the underlying collected data, the Monitor and Plaintiffs
representatives shall have access to the results of all Supervisor and agency level reviews of the
traffic stop and patrol data.
We have been provided access to all existing data. Several memoranda have shown that not all
personnel have been trained in all aspects of Blue Team, and the new EI Pro component of the
EIS is still under review and installation. However, to this point we have had access to all data
that we have requested. We will continue to expect unfettered access to these reviews as they
are completed.
Compliance Status:
Section 8: Early Identification System (EIS)
COURT ORDER IX. EARLY IDENTIFICATION SYSTEM (EIS)
a. Development and Implementation of the EIS
Paragraph 72. MCSO shall work with the Monitor, with input from the Parties, to develop,
implement and maintain a computerized EIS to support the effective supervision and
management of MCSO Deputies and employees, including the identification of and response to
potentially problematic behaviors, including racial profiling, unlawful detentions and arrests,
and improper enforcement of Immigration-Related Laws within one year of the Effective Date.
MCSO will regularly use EIS data to promote lawful, ethical and professional police practices;
and to evaluate the performance of MCSO Patrol Operations Employees across all ranks, units
and shifts.
The Early Intervention Unit (EIU) staff continues to do a noteworthy job of providing data,
conducting audits, and developing an EIS system that incorporates pieces of information from
across the organization. This was accomplished without the benefit of an over-arching policy to
guide them. This early experience culminated in a draft policy provided on September 4, 2014 to
the Monitor Team and the Plaintiffs Attorneys, who suggested several changes and
modifications. The EIS policy was returned to MCSO on October 16, 2014. MCSO has
provided an additional draft policy after the close of the review period. In coming weeks we will
evaluate the changes proposed and relay that information to MCSO.
MCSO is not in Phase 1 compliance with this Paragraph.
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While several physical components of the EIS system are in place IA Pro, TraCS, and Blue
Team MCSO is proposing the addition of EI Pro which would afford supervisors direct access
to the historical information about deputies under their command. This is in response to earlier
critiques of their existing data processes. In addition, according to training records, much of the
training has been accomplished for Blue Team, aside from persons out on medical or other leave.
In coming reviews, we will insure that training for the newest components, which have yet to be
completely installed, is properly documented. Notwithstanding these developments, there
remain significant issues being addressed in the continued revision of an over-arching EIS
policy. For example, a major issue with Blue Team, as it stood during this reporting period, was
when and how first line supervisors would be able to access information pertinent to the people
under their command. During the reporting period, EIU personnel maintained control over
access to these data. During the September site visit we made it clear that first line supervisors
must have immediate access to information regarding the deputies assigned to them at all hours
of the day. MCSO offered alternatives that were equally unacceptable. However, at the
December site visit we were informed that MCSO was evaluating the inclusion of EI Pro into the
EIS system. With this new component, supervisors would have immediate access to all deputy
information, except for internal and external complaints, which would have to be requested from
the Professional Standards Bureau. First line supervisors would benefit from having access to, at
a minimum, summary or aggregate information regarding complaints without the need to interact
with the Professional Standards Bureau. We will continue to work with MCSO to evaluate and
overcome these issues.
Compliance Status:
Paragraph 73. Within 180 days of the Effective Date, MCSO shall either create a unit, which
shall include at least one full-time-equivalent qualified information technology specialist, or
otherwise expand the already existing role of the MCSO information technology specialist to
facilitate the development, implementation, and maintenance of the EIS. MCSO shall ensure that
there is sufficient additional staff to facilitate EIS data input and provide Training and assistance
to EIS users. This unit may be housed within Internal Affairs (IA).
The EIU has come together well to this point. It is coordinated by a Lieutenant, with three
Sergeants working investigations, one analyst and one administrative staff. MCSO has provided
an up-to-date organizational chart for the Bureau of Internal Oversight that incorporates the EIU
personnel. The EIU staff continue to conduct Pre-EIS data analysis, since there is not yet an
approved EIS policy, using data they have compiled from across the organization: CAD, RMS,
Blue Team, TraCS, etc. MCSO is not in Phase 1 compliance with this Paragraph.
Several issues remain from past site visits or reports pertaining to the sufficiency of data entry
and inclusion even though the EIU unit has been organized as outlined above. Some of these
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issues are technological in nature and others result from inadequate training or personnel unable
to enter data into the electronic system.
For instance, in a memo from the Deputy Chief of the Technology Bureau in response to a
request for information, we were advised that the current RMS system does not accommodate the
incorporation of Incident/Field Based Reporting narratives into the data sharing system;
therefore, MCSO is in the process of developing the necessary forms in TraCS.
A major concern expressed in the First and Second Quarterly Reports pertained to the backlog of
Vehicle Stop Contact Forms (VCSF) that accumulated at District Offices prior to the automation
and training for TraCS. This issue was raised during both the September and December site
visits. In a follow-up memorandum responding to a request for documentation, we were advised
that all hard copies have been entered into the automated system, including over two hundred
that had accumulated in Lakes Patrol and District 7. The complete automation of TraCS means
that the deputies themselves are now responsible for data entry, with EIU personnel conducting
integrity audits. However, during the December site visit we were also apprised of the fact that
some Districts continued to have several hundred open VCSFs in TraCS as the result of
missing information that would not allow the form to be closed. We will continue to work with
the Operations Audit/Inspections Unit to follow these issues.
A second issue raised in both the September and December site visits, as well as the Request for
Documentation, regarded whether all of the vehicles on routine patrol assignments were supplied
with equipment to facilitate TraCS entry. In response to requests regarding Paragraph 60,
MCSO has shown that over 98% of all patrol vehicles have TraCS equipment installed.
Moreover, the Sheriffs Department has now put in place a tracking system to be able to
ascertain the status of equipment available to patrol personnel. We will evaluate this system
during our next site visit.
Compliance Status:
Paragraph 74. MCSO shall develop and implement a protocol setting out the fields for historical
data, deadlines for inputting data related to current and new information, and the individuals
responsible for capturing and inputting data.
As mentioned above, a draft EIS policy was received by the Monitor and Plaintiff Attorneys in
September, 2014. Suggestions for modification and change to this policy were provided to
MCSO on October 16, 2014. The EIS policy remains under development and review.
Therefore, MCSO is not in Phase 1 compliance with this Paragraph.
We have asked for clarification of the definitions included in the draft EIS policy including, but
not limited to, biasedbased policing, critical incidents, County Attorney Actions, and the
like. In a memorandum responding to a request for documentation the EIU has further clarified
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these definitional issues. Once MCSO has created a new draft proposal, we can evaluate if these
problems have been ameliorated. This will require input from both the Monitor Team and
Plaintiffs Attorneys.
In addition, at the September and December site visits, EIU personnel provided insight into the
ways that they used the data to conduct weekly and monthly analysis looking for outliers,
potential questionable behavior, and racial profiling. As a result of these discussions we
requested more documentation to support the analysis conducted. Similar to our observations in
Paragraphs 64 and 65, the documentation provided in January of 2015 does provide insight into
what EIU personnel are doing, but the process remains largely qualitative since they rely
heavily on judgments of EIU personnel. MCSO is in the process of contracting with an outside
vendor to develop a quantitative protocol for these alerts and investigations. In addition, while
MCSO appears to be capturing the necessary information through the alert settings, the way in
which they arrived at these alert thresholds remains unclear. From the documents they have
provided, it remains ambiguous how and why these alerts are cleared or transferred for further
processing to District personnel. We will continue to work with MCSO to clarify these issues.
We have recommended that MCSO develop an alert protocol or template that includes a
description of what judgments may lead an EIU personnel to clear an alert, or, in the case of
further processing by District personnel, what the outcome of that process is and why.
Compliance Status:
Paragraph 75. The EIS shall include a computerized relational database, which shall be used to
collect, maintain, integrate, and retrieve:
a. all misconduct Complaints or allegations (and their dispositions), excluding those
made by inmates relating to conditions of confinement or conduct of detention officers (i.e.,, any
complaint or allegation relating to a traffic stop shall be collected and subject to this Paragraph
even if made by an inmate);
b. all internal investigations of alleged or suspected misconduct;
c. data compiled under the traffic stop data collection and the patrol data collection
mechanisms;
d. all criminal proceedings initiated, as well as all civil or administrative claims filed with, and
all civil lawsuits served upon, the County and/or its Deputies or agents, resulting from MCSO
Patrol Operations or the actions of MCSO Patrol Operation Personnel;
e. all arrests;
f. all arrests in which the arresting Deputy fails to articulate probable cause in the arrest
report, or where an MCSO Supervisor, court or prosecutor later determines the arrest was
not supported by probable cause to believe a crime had been committed, as required by law;
g. all arrests in which the individual was released from custody without formal charges being
sought;
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h. all Investigatory Stops, detentions, and/or searches, including those found by the Monitor, an
MCSO supervisor, court or prosecutor to be unsupported by reasonable suspicion of or
probable cause to believe a crime had been committed, as required by law;
i. all instances in which MCSO is informed by a prosecuting authority or a court that a decision
to decline prosecution or to dismiss charges, and if available, the reason for such decision;
j. all disciplinary action taken against employees;
k. all non-disciplinary corrective action required of employees;
l. all awards and commendations received by employees;
m. Training history for each employee; and
n. bi-monthly Supervisory observations of each employee.
The EIS policy outlining the data elements and processes remains under development and
review. Therefore, MCSO is not in compliance with this Paragraph.
Some of the issues raised in past evaluations of the draft policy are definitional; for instance, in
75a the IR Memorialization (IRM) includes the concept of biased-based profiling but does not
define it, and, in 75c (IRM) we suggested that MCSO should provide definitions of Investigatory
Stop Violations and Incidental Contacts. Plaintiffs Attorneys have also suggested a more
complete definition of County Attorney Actions in 75f, g, h and i. Issues such as these can be
easily rectified. Others involved access to the data for Supervisory personnel who, under
previous versions of the draft policy, were not able to review information for deputies under their
command without the assistance of EIU personnel or their designees. The purported introduction
of EI Pro in the most recent formulation of EIS software appears to afford such access for
Supervisors. However this will have to be confirmed through onsite examination.
Finally, as noted in Paragraph 73, the Technology Bureau Chief has advised that they are
working to insure that Field reports are included in the data that combines to make the entirety of
the EIS data system.
Compliance Status:
Paragraph 76. The EIS shall include appropriate identifying information for each involved
Deputy (i.e., name, badge number, shift and Supervisor) and civilian (e.g., race and/or
ethnicity).
EB-2 (Traffic Stop Data Collection) requires the capture of the information necessary for EIU
personnel to link an officers traffic stops, along with the racial and ethnic make-up of those
stopped, to the actions the officers take in those stops. In addition, the integrity analyses
conducted by our personnel have shown that this information is rarely missing from the TraCS
data supplied by MCSO. MCSO is in compliance with this Paragraph.
Compliance Status:
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Paragraph 77. MCSO shall maintain computer hardware, including servers, terminals and other
necessary equipment, in sufficient amount and in good working order to permit personnel,
including Supervisors and commanders, ready and secure access to the EIS system to permit
timely input and review of EIS data as necessary to comply with the requirements of this Order.
As noted above, during our September and December site visits, the issue of necessary
equipment, in sufficient amount and in good working order was requested from MCSO. As
noted in Paragraph 73, MCSO provided documentation that over 98% of vehicles assigned to
Districts for patrol activities are already equipped with TraCS. Moreover, in the rare event that a
TraCS vehicle is not available, or the vehicle equipment is not working, each District has
equipment within their offices that would allow a deputy to input their traffic stop information
before the end of their shift (EB 2 Traffic Stop Data Collection, 4A1). In addition, the Deputy
Chief of the Technology Management Bureau has included a memorandum in response to our
document request that comprehensively shows the deployment of personal computers and
printers across the Districts and Specialty Units. The memorandum is also a testament to the
security of the system. At present it would appear that the technology and equipment available
meet the requirements of the Order.
Compliance Status:
Paragraph 78. MCSO shall maintain all personally identifiable information about a Deputy
included in the EIS for at least five years following the Deputys separation from the agency.
Information necessary for aggregate statistical analysis will be maintained indefinitely in the
EIS. On an ongoing basis, MCSO shall enter information into the EIS in a timely, accurate, and
complete manner, and shall maintain the data in a secure and confidential manner. No
individual within MCSO shall have access to individually identifiable information that is
maintained only within EIS and is about a deputy not within that individuals direct command,
except as necessary for investigative, technological, or auditing purposes.
As noted previously the EIS policy remains under development and review. Therefore, MCSO is
not in Phase 1 compliance with this paragraph.
Prior to the September site visits a draft EIS policy was received by Monitor and Plaintiffs
attorneys on September 4, 2014. This document was returned to MCSO on October 16, 2014
with extensive comments from both Monitor personnel and Plaintiff Attorneys. In response to a
document request for this report, MCSO provided a new draft EIS policy on February 23, 2015.
Future reports will discuss this latest policy effort.
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In addition, The Deputy Chief of the Technology Management Bureau provided a memorandum
in response to Paragraph 77 that is also pertinent to Paragraph 78. On page 2 of this
memorandum, dated October 17, 2014, there is a description of the security of the database and
server. At present, MCSO is not in compliance with this Paragraph.
Compliance Status:
Paragraph 79. The EIS computer program and computer hardware will be operational, fully
implemented, and be used in accordance with policies and protocols that incorporate the
requirements of this Order within one year of the Effective Date. Prior to full implementation of
the new EIS, MCSO will continue to use existing databases and resources to the fullest extent
possible, to identify patterns of conduct by employees or groups of Deputies.
In the absence of a finalized EIS policy, or a fully integrated database as noted previously,
MCSO personnel in the EIU have done a notable job pulling together data to conduct analyses
looking for behavior that may appear to be outside the norm. However, at present MCSO is not
in Phase 1 compliance with this Paragraph. A new draft of the EIS policy is under development
and the Chief of the Technology Bureau has enumerated in a memorandum provided after the
December site visit how they are developing new forms in TraCS to deal with the inadequacies
of the current RMS system to integrate Incident/Field Based Reporting narratives into the data
sharing system.
We were apprised of the weekly and monthly audits being conducted by EIU personnel during
the December site visit. Subsequently, MCSO has provided a memorandum dated February 12,
2015 that enumerates the alerts discovered during the fourth quarter of 2014 through the use of
TraCS and IA Pro. Of the 411 alerts found during this period, 106 were sent out for what is
presumed to be additional investigation by supervisors or District Staff. However, it should be
noted that at the December site visit, EIU personnel were notified that a chart enumerating these
alerts would not be sufficient without a descriptive report explaining how alerts are cleared by
EIU personnel and what the follow-up with District personnel involves. These reports were not
included with the memorandum. Therefore, while these descriptions were discussed in detail
during the December meeting, there was no follow-through that allows us to understand what
causes some alerts to be cleared quickly and what causes further investigation. For instance, we
can see from the chart that there were 30 External Complaints as noted by IA Pro, but only 14 of
these were sent out for investigation. It is crucial that we be apprised of the details surrounding
these decisions.
Therefore, while EIU personnel are doing well during this pre-EIS stage, they need to be more
comprehensive and detailed in the process and production of their reports.
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Compliance Status:
b. Training on the EIS
Paragraph 80. MCSO will provide education and training to all employees, including Deputies,
Supervisors and commanders regarding EIS prior to its implementation as appropriate to
facilitate proper understanding and use of the system. MCSO Supervisors shall be trained in and
required to use EIS to ensure that each Supervisor has a complete and current understanding of
the employees under the Supervisors command. Commanders and Supervisors shall be educated
and trained in evaluating and making appropriate comparisons in order to identify any
significant individual or group patterns. Following the initial implementation of the EIS, and as
experience and the availability of new technology may warrant, MCSO may propose to add,
subtract, or modify data tables and fields, modify the list of documents scanned or electronically
attached, and add, subtract, or modify standardized reports and queries. MCSO shall submit all
such proposals for review by the Monitor pursuant to the process described in Section IV.
As noted above and in a memorandum for Paragraph 80 dated January 26 th, 2015, the EIU is
currently developing a new version of the EIS policy. However, at this point since the policy has
not yet been approved MCSO is not in Phase 1 compliance with this Paragraph.
According to statements made by MCSO personnel at the December site visit, the EIS system
includes an addition to the IA Pro software named EI Pro that allows supervisors and
commanders in the Districts to access data for people under their command. The sufficiency of
these changes will be evaluated during the next site visit.
MCSO has provided a detailed description of the training plans and dates that were taking place
in January and February of 2015 with regard to both Blue Team and EIS. An evaluation of this
training will also be incorporated into future reports. The concerns regarding previous versions
of the Blue Team process included the lack of unfettered access to information for first line
supervisors and District command staff about personnel under their command. EIU personnel
previously had control over access to this data and supervisors needed to request information
from them. During the December site visit, MCSO was informed that this would be
unacceptable, as first line supervisors should be able to access information about their personnel
at any time of the day. Now that MCSO has acquired the EI Pro addition to EIS, we will review
its functionality to monitor supervisory training material as it becomes available. The
memorandum for the above Paragraphs shows the Blue Team notations made by supervisors and
command staff. These notations appear to respond to many of the concerns brought to the
attention of MCSO during past site visits and document requests.
However, as a result of the limitations outlined above, MCSO is not in compliance with
Paragraph 80.
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Compliance Status:
c. Protocol for Agency and Supervisory Use of the EIS
Paragraph 81. MCSO shall develop and implement a protocol for using the EIS and information
obtained from it. The protocol for using the EIS shall address data storage, data retrieval,
reporting, data analysis, pattern identification, identifying Deputies for intervention, Supervisory
use, Supervisory/agency intervention, documentation and audit. Additional required protocol
elements include:
a.
comparative data analysis, including peer group analysis, to identify patterns of activity
by individual Deputies and groups of Deputies;
b.
identification of warning signs or other indicia of possible misconduct, including, but not
necessarily limited, to:
i. failure to follow any of the documentation requirements mandated pursuant to
this Order; ii. racial and ethnic disparities in the Deputys traffic stop patterns, including
disparities or increases in stops for minor traffic violations, arrests following a traffic stop, and
immigration status inquiries, that cannot be explained by statistical modeling of race neutral
factors or characteristics of Deputies specific duties, or racial or ethnic disparities in traffic
stop patterns when compared with data of a Deputys peers;
iii. evidence of extended traffic stops or increased inquiries/investigations where investigations
involve a Latino driver or passengers; iv. a citation rate for traffic stops that is an outlier when
compared to data of a Deputys peers, or a low rate of seizure of contraband or arrests following
searches and investigations;
v. Complaints by members of the public or other officers; and vi. other indications of racial or
ethnic bias in the exercise of official duties;
c.
MCSO commander and Supervisor review, on a regular basis, but not less than
bimonthly, of EIS reports regarding each officer under the commander or Supervisors direct
command and, at least quarterly, broader, pattern-based reports;
d.
a requirement that MCSO commanders and Supervisors initiate, implement, and assess
the effectiveness of interventions for individual Deputies, Supervisors, and units, based on
assessment of the information contained in the EIS;
e.
identification of a range of intervention options to facilitate an effective response to
suspected or identified problems. In any cases where a Supervisor believes a Deputy may be
engaging in racial profiling, unlawful detentions or arrests, or improper enforcement of
Immigration-Related Laws or the early warning protocol is triggered, the MCSO shall notify the
Monitor and Plaintiffs and take reasonable steps to investigate and closely monitor the situation,
and take corrective action to remedy the issue. Interventions may include but are not limited to
counseling, Training, Supervisor ride-alongs, ordering changes in practice or procedure,
changing duty assignments, Discipline, or other supervised, monitored, and documented action
plans and strategies designed to modify activity. All interventions will be documented in writing
and entered into the automated system;
f.
a statement that the decision to order an intervention for an employee or group using EIS
data shall include peer group analysis, including consideration of the nature of the employees
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assignment, and not solely on the number or percentages of incidents in any category of
information recorded in the EIS;
g.
a process for prompt review by MCSO commanders and Supervisors of the EIS records
of all Deputies upon transfer to their supervision or command;
h.
an evaluation of whether MCSO commanders and Supervisors are appropriately using
the EIS to enhance effective and ethical policing and reduce risk; and
i.
mechanisms to ensure monitored and secure access to the EIS to ensure the integrity,
proper use, and appropriate confidentiality of the data.
The EIS policy and the protocols to be used by supervisory personnel remain under development
and revision. Therefore, MCSO is not in Phase 1 compliance with this Paragraph. Both the
Monitor and Plaintiffs Attorneys have made suggestions and comments on the draft EIS policy
and returned same to MCSO on October 16, 2014. Highlights of those suggestions for this
Paragraph include: 1) delineating a more thorough description of the threshold limits for actions
that could result in an alert and including it in the policy; including how the EIU may set
different thresholds depending on the assignment of any given deputy (81f); 2) training on EIS
should be included in the checklist of training and MCSO should attempt to capture which
individuals received training in TraCS, since there is no memorialization of this at present; 3) as
noted previously in the discussion of alerts related to racial profiling, MCSO should consider a
more robust operationalization of this concept in a way that is understandable to all parties; and
4) create a protocol or template for EIU and District personnel to further memorialize how alerts
are cleared, forwarded for additional investigation, or result in counseling or retraining. At
present, MCSO is not in compliance with Paragraph 81.
Compliance Status:
Section 9: Supervision and Evaluation of Officer Performance
COURT ORDER
PERFORMANCE
X.
SUPERVISION
AND
EVALUATIONS
OF
OFFICER
Paragraph 82. MCSO and the County shall ensure that an adequate number of qualified firstline Supervisors are available to provide the effective supervision necessary to ensure that
Deputies are following the Constitution and laws of the United States and State of Arizona,
MCSO policy, and this Order. First-line Supervisors shall ensure that Deputies are policing
actively and effectively, are provided with the instruction necessary to correct mistakes, and are
held accountable for misconduct. To achieve these outcomes, MCSO shall undertake the
following duties and measures:
a. General Duties of Supervisors
Paragraph 83. MCSO Supervisors shall provide the effective supervision necessary to direct and
guide Deputies. Effective supervision requires that Supervisors: respond to the scene of certain
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arrests; review each field interview card and incident report; confirm the accuracy and
completeness of Deputies daily activity reports; respond to each Complaint of misconduct;
ensure Deputies are working actively to engage the community and increase public trust and
safety; provide counseling, redirection, support to Deputies as needed, and are held accountable
for performing each of these duties.
We have reviewed all policy submissions and the policy requirements for Paragraph 83 are
covered under GC-17 (Employee Disciplinary Procedure) that was revised on September 5,
2014. MCSOs policy is in compliance with Paragraph 83.
We conducted interviews with supervisors and commanders from two districts during our
December visit to determine if there is compliance with the policy. In our interview with the
District 6 Commander, he advised us that Field Interview (FI) cards are automated into the
Justice Web Interface (JWI), which provides a searchable index. There is no review of FI cards
by supervisors. In regard to field supervision, sergeants are encouraged to go by every call and
required to go by every critical call.
We conducted interviews with a District 4 supervisor and a District 4 Commander. The
supervisor indicated that he responds to all arrests but rarely goes by any other stops, and that
supervisors review, sign and date all incident reports. The Commander indicated that District 4
deputies do not complete Field Interview (FI) cards. The commander stated that the same
information that would go on an FI card could be placed in the CAD Alpha Page, where it can be
stored for later review. In MCSOs document submission of seventeen (17) Field Interview
cards, four (4) were completed in District 4. The only district that did not complete an FI card
was District 7. Deputies and sergeants do not complete daily activity reports in either District 4
or District 6.
We reviewed a representative sample of incident reports for the months of October, November,
and December of 2014 to check for supervisory reviews. We reviewed incident reports for the
randomly selected dates of October 31, November 22, and December 10. A total of one hundred
and forty-six (146) incident reports were evaluated for timeliness of supervisory reviews. For
October 31, forty-four (44) reports were reviewed. Of the forty-four (44) reports, thirty-five (35)
had been reviewed, signed, and the date of the review was memorialized, as required by this
paragraph. Of the forty-four (44) reports, nine (9) were reviewed at least five (5) days after the
completion of the report. The longest time elapsed for an incident report before the supervisory
review was completed was forty-seven (47) days. Of the forty-four (44) reports, nine (9) were
crash reports that were signed by a supervisor, but do not contain the supervisors date of review.
For November 22, forty-eight (48) reports were reviewed: thirty-three (33) had been reviewed
and signed by a supervisor, and the date of the review was memorialized as required by this
paragraph. Ten (10) incident reports had been signed but not memorialized with the date of the
review; nine (9) of the ten (10) incidents, which did not have a date of review were crash reports.
Of the forty-eight (48) reports, one (1) was reviewed six (6) days after the completion of the
report; another was reviewed twenty (20) days after the completion of the report.
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For December 10, fifty-four (54) reports were reviewed. Of the fifty-four (54) incident reports,
thirty-four (34) were signed by a supervisor and the date of the review was memorialized as
required by this paragraph. Of the fifty-four (54) reports, ten had been reviewed by a supervisor
and the date of the review was memorialized but the review was conducted at least six (6) days
after the completion of the report; the longest time lapsed for an incident report before the
supervisory review was completed was thirty-eight (38) days. Four (4) crash reports were
reviewed and signed by a supervisor, but the date of the review was not memorialized. In
addition, four (4) crash reports contained the name of the supervisor, but not the supervisors
signature or date of review.
We reviewed seventeen (17) Field Interview (FI) cards that were completed in the review period.
The FI cards are done in the Justice Web Interface (JWI). There is no evidence of supervisory
review in any of the completed FI cards; the FI information format on JWI does not have a field
to capture or memorialize supervisory review.
Compliance Status:
Paragraph 84. Within 120 days of the Effective Date, all patrol Deputies shall be assigned to a
single, consistent, clearly identified Supervisor. First-line field Supervisors shall be assigned to
supervise no more than twelve Deputies.
We reviewed GB-2 (Command Responsibility), dated April 19, 1996 and Briefing Board 14-43,
(Immediate Change to GB-2), dated May 1, 2014, as they pertain to Paragraph 84 which requires
that, within 120 days of the Effective Date, all patrol Deputies shall be assigned to a single,
consistent, clearly identified supervisor and that first-line supervisors shall be assigned to
supervise no more than 12 Deputies. GB-2, as written, is non-compliant in that it states that no
individual shall report to more than one (1) commander or supervisor at any given time but does
not state that it would be a single, consistent and clearly identified supervisor. GB-2 also does
not require that first-line supervisors shall be assigned to supervise no more than 12 Deputies.
The proposed changes to the policy outlined in the Briefing Board will not address all of these
issues, particularly that all patrol deputies shall be assigned to a single, consistent, clearly
identified supervisor. In Order to be compliant, GB-2 must include these requirements. On
November 16, 2014, we received MCSOs Third Quarter Report. In the report, MCSO states
that they continue to work on GB-2, Command Responsibility. MCSO is not in Phase 1
We reviewed monthly rosters and shift rosters for October, November, and December of 2014
for Districts 1, 2, 3, 4, 6, 7, and Lake Patrol as proof of Phase 2 compliance. Monthly and daily
rosters show that deputies are assigned to one single consistent supervisor and supervisors are
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assigned no more that twelve (12) deputies. With the exception of Lake Patrol, all districts are
completing monthly rosters. Lake Patrol has daily shift rosters that are updated when personnel
transfer in and out. For better tracking of personnel and for consistency throughout the districts,
it is recommended that Lake Patrol also complete monthly personnel rosters.
Compliance Status:
Phase 2: Deferred
Paragraph 85. First-line field Supervisors shall be required to discuss individually the stops
made by each Deputy they supervise with the respective Deputies no less than one time per
month in order to ensure compliance with this Order. This discussion should include, at a
minimum, whether the Deputy detained any individuals stopped during the preceding month, the
reason for any such detention, and a discussion of any stops that at any point involved any
immigration issues.
We have reviewed MCSOs policy submissions and the requirements for Paragraph 85 are
covered under EB-1 Rev. 09/22/2014 (Traffic Enforcement, Violator Contacts, and Citation
Issuance) as revised on 9/22/2014. EB-1 is in compliance with Paragraph 85. EB-1 (Rev.
09/22/2014) states, Supervisory Responsibilities: First line supervisors shall individually
discuss the traffic stops made by each deputy under their supervision at least one time per month.
The discussion shall include whether the deputy detained any individuals and the reason for such
detention, and whether any stops involved immigration issues.
We have reviewed MCSOs submission as proof of compliance with Paragraph 85. A document
request was made for MCSO to provide copies of reports documenting that supervisors are
meeting with and discussing individually the stops made by each deputy, at least once per month.
The documentation requested was for one randomly selected supervisor from each district, and
the squad of deputies that reports to that supervisor. Only one supervisor out of seven (7) had
documentation of discussions related to stops or detentions, for all deputies reporting to the
supervisor; the documentation only covered two of the three months of the review period, and
only the last months comments covered the requirements of this paragraph. A second
supervisor submitted documentation of the discussions related to stops and detentions with one
(1) deputy from his squad. The discussions covered the last two (2) of the three (3) months of
the review period, but the comments did not cover the requirements of this paragraph.
MCSO submitted the following information in response to our request for proof of Phase 2
compliance with this paragraph, Per the Bureau of Internal Oversight, the supervisor note
function within Blue Team was not in place in October 2014, and Blue Team training for the
Patrol Bureau was not complete until December of 2014. There were only two sergeants from
the follow-up request who had entries fitting the request parameters.
It is further noted that supervisors need to specify the month they are reviewing with the deputy,
and include comments regarding all stops and detentions, not only traffic. These discussions
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need to address whether the deputy made any stops or detentions during the preceding month, the
reason for the stop or detention, and whether the stop or detention involved any immigration
issues.
Compliance Status:
Paragraph 86. On-duty field Supervisors shall be available throughout their shift to provide
adequate on-scene field supervision to Deputies under their direct command and, as needed, to
provide Supervisory assistance to other units. Supervisors shall be assigned to and shall actually
work the same days and hours as the Deputies they are assigned to supervise, absent exceptional
circumstances.
We reviewed Policy GB-2 (Command Responsibility), with regard to the Paragraph 86
requirement that on-duty field supervisors shall be available throughout their shift to provide
adequate on-scene field supervision to deputies under their direct command and, as needed, to
provide supervisory assistance to other units. Paragraph 86 also requires that supervisors shall be
assigned to work the same days and hours as the deputies they are assigned to supervise, absent
exceptional circumstances. GB-2 is non-compliant in that it does not address the Paragraph 86
requirements. GB-2 is under review and revision by MCSO. Policy GB-2 must include the
Paragraph 86 requirements cited above in order to be compliant. On November 16, 2014, we
received MCSOs Third Quarter Report. In the report, MCSO states that they continue to work
on GB-2, Command Responsibility.
We conducted interviews of supervisors from District 4, and District 6, in our December 2014
site visit. The supervisor from District 4 that was interviewed stated that he responds to all
arrests but rarely goes by any other type of call. The supervisor stated that he has regular contact
with his subordinates but does not document these contacts. We conducted an interview with the
captain in charge of District 6. The captain from District 6 stated that supervisors are encouraged
to go by every call, but are required to respond to every critical incident. MCSO has now
standardized monthly rosters, and all districts, with the exception of Lake Patrol, are using the
standard format. We reviewed monthly rosters and shift rosters from all the districts for the
months of October, November, and December of 2014. The rosters show supervisors working
the same days and hours as the deputies that report to them. However, MCSO deputies and
supervisors are not presently completing daily activity reports. There is no documentation that
can be audited, of contacts that occur throughout the shift between supervisors and deputies, and
no documentation that supervisors are responding to incidents in the field.
Compliance Status:
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Paragraph 87. MCSO shall hold Commanders and Supervisors directly accountable for the
quality and effectiveness of their supervision, including whether commanders and Supervisors
identify and effectively respond to misconduct, as part of their performance evaluations and
through non-disciplinary corrective action, or through the initiation of formal investigation and
the disciplinary process, as appropriate.
We have reviewed the submissions and the policy requirements for Paragraph 87 covered under
GC-17, which was revised on September 5, 2014 (Employee Disciplinary Procedure). MCSOs
policy is in compliance with Paragraph 87.
GC-17 (Rev. 9/15/2014) states, Commanders and supervisors shall be accountable for the
quality and effectiveness of their supervision, including whether commanders and supervisors
identify and effectively respond to misconduct, as part of performance evaluations or through
non-disciplinary corrective action, or through the initiation of a formal investigation and the
disciplinary process, as appropriate.
MCSO noted that policy GC-4 (Performance Appraisals) is currently under revision and will
contain the requirements of this Paragraph. GC-4 must include the requirement of Paragraph 87
since it directly relates to Performance Appraisals. Until such time as GC-4 is published, MCSO
is not in Phase 1 compliance with this paragraph.
We requested the performance appraisals for all deputies and supervisors who were evaluated
during the review period. We reviewed thirty-six (36)2 performance evaluations submitted for
deputies who received evaluations between October 1, 2014, and December 31, 2014. We also
reviewed performance appraisals for fifteen (15) sergeants who received performance appraisals
in the time period being reviewed. All fifteen (15) evaluations of the supervisors contained an
assessment of the quality and effectiveness of their supervision. Eleven (11) of the fifteen (15)
supervisor performance evaluations did not contain comments regarding the supervisors
demonstrated ability to identify and effectively respond to misconduct. In one performance
evaluation, the employee (a supervisor) signed the performance appraisal four (4) months after
the reviewer had completed the evaluation. In another appraisal, the employee (a supervisor)
signed the appraisal three (3) months after the review had been completed. Performance
appraisals should be provided to the employee in a timelier manner in order to provide feedback
and to assist the employee with correcting areas of underperformance as quickly as possible, as
well as to acknowledge areas of strong performance.
Compliance Status:
MCSO submitted thirty-seven (37) but one was a duplicate performance appraisal.
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b. Additional Supervisory Measures

Paragraph 88. To ensure compliance with the terms of this Order, first-line Supervisors in any
Specialized Units enforcing Immigration-Related Laws shall directly supervise the law
enforcement activities of new members of the unit for one week by accompanying them in the
field, and directly supervise the in-the-field-activities of all members of the unit for at least two
weeks every year.
immigration laws. During discussions with CCID and MCAO Attorneys, we have suggested that
applicable immigration laws and immigration related crimes, as those terms are defined in the
Order, be identified. From there, a determination can be made as to which units, if any, enforce
these laws as one of their core missions.
During the previous evaluation period, MCSO and their attorneys articulated that the three
criminal violations they believe qualify as potentially immigration related include: human
smuggling, forgery, and misconduct with weapons. During our December site visit we were
informed that MCSO was disbanding the Criminal Employment Unit, which was part of the
Special Investigation Division. We requested the monthly arrest and enforcement statistics for
the months October, November and December of 2014, which includes all reports related to
immigration status investigations, any immigration related crime, or incidents or arrests
involving lack of identity. We have reviewed MCSOs submissions and discussed our findings in
our review of Paragraph 89 compliance.
On November 7, 2014, a United States District Court Judge issued an Order permanently
Broadcast 14-75 prohibiting deputies from enforcing the above statute including arresting,
Compliance is deferred until such time as we verify the disbanding of the Criminal Employment
Unit, and we review the mission statement, policies and operations documents of ATU to verify
MCSOs assertion that this Paragraph is not applicable to that Unit.
Compliance Status:
Phase 1: Deferred
Phase 2: Deferred
Paragraph 89. A Deputy shall notify a Supervisor before initiating any immigration status
investigation, as discussed in Paragraph 28. Deputies shall also notify Supervisors before
effectuating an arrest following any immigration-related investigation or for an Immigration
Related Crime, or for any crime related to identity fraud or lack of an identity document. The
responding Supervisor shall approve or disapprove the Deputys investigation or arrest
recommendation based on the available information and conformance with MCSO policy. The
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Supervisor shall take appropriate action to address any deficiencies in Deputies investigation or
arrest recommendations, including releasing the subject, recommending non-disciplinary
corrective action for the involved Deputy, and/or referring the incident for administrative
investigation.
We reviewed the following documents submitted by MCSO as policy documentation relative to
Paragraph 89 requirements: EA-11 which was revised on September 5, 2014 (Arrest Procedures),
GC-17 which was revised on September 5, 2014 (Employee Disciplinary Procedure); proposed
EB-1 which was revised on September 22, 2014 (Traffic Enforcement, Violator Contacts, and
Citation Issuance). The requirements of the paragraph are covered as a result of the combination
of these policies.
We requested to inspect all reports related to immigration status investigations, any immigration
related crime, or incidents or arrests involving lack of identity. The incident reports submitted
were for the period from October 1, 2014 to December 31, 2014. The MCSO submission
consisted of nineteen (19) incident reports that occurred during the time period requested. The
request produced reports as follows: District 1- 3 reports, District 2 - 2 reports, District 3 - 2
reports, District 6 - 2 reports, Lake Patrol - 4 reports. We reviewed fourteen (14) arrest reports
for Lack of Identity Documents for the period in review. Out of fourteen (14) arrests, six (6)
were not reviewed by a supervisor within 72 hours; Eleven (11) had no documentation that a
supervisor was notified prior to the commencement of the investigation or arrest; three (3) were
cited as traffic violators and released, with no Incident Report associated. Only one (1) Lack of
Identity arrest of fourteen (14) was in 100% compliance.
As a corrective measure, the Bureau of Internal Oversight recommended that policy GF-4, Office
Reports, include a directive that requires MCSO deputies to sign and date the face sheet of the
report to memorialize that it was turned in before the end of the shift. The recommendation also
includes additional training for deputies and supervisors on this issue.
MCSO has yet to establish daily activity reports for deputies and supervisors. Daily activity
reports can be used document any arrests or investigations related to immigration, immigration
related crime, identity fraud, or lack of identity documents, and corresponding supervisory
approvals or disapprovals. A supervisors daily activity report may also be used to document
any deficiencies or corrective actions related to any arrest or investigation in violation of MCSO
policy.
Compliance Status:
Paragraph 90. MCSO Deputies shall submit documentation of all stops and Investigatory
Detentions conducted to their Supervisors by the end of the shift in which the action occurred.
Absent exceptional circumstances, within 72 hours of receiving such documentation, a
Supervisor shall independently review the information. Supervisors shall review reports and
forms for Boilerplate or conclusory language, inconsistent information, lack of articulation of
the legal basis for the action, or other indicia that the information in the reports or forms is not
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authentic or correct. Appropriate disciplinary action should be taken where Deputies routinely
employ Boilerplate or conclusory language.
We reviewed EA-11 (Arrest Procedures), which was revised on September 5, 2014. EA-11 states
that deputies shall submit documentation of all stops, investigatory detentions, and arrests to
their supervisors by the end of the shift in which the action occurred. Absent exceptional
circumstances, within 72 hours of receiving such documentation, supervisors shall independently
review the reports. If the incident did not include an arrest or detention, the supervisor shall
review the IR within seven calendar days, absent exigent circumstances. Supervisors shall review
reports and forms for boilerplate or conclusory language, inconsistent information, lack of
articulation of the legal basis for the action, or other indicia that the information in the reports or
forms is not authentic or correct. Supervisors shall take appropriate action to address all
violations or deficiencies in investigatory stops or detentions, including non-disciplinary
corrective action for the deputy, or referring the incident for administrative review or criminal
investigation. We reviewed EA-11 that was revised on September 5, 2014, and it is in
compliance with Paragraph 90.
We reviewed thirty-four (34) incidents involving traffic stops for October of 2014. Out of thirtyfour, three (3) had the required documented supervisory review within the 72 hour timeline.
Only those stops that had an Incident Report associated with it had documentation of supervisory
review. The remaining thirty-one (31) stops had Vehicle Stop Forms, and in some instances also
traffic citations, but none of these contained any notations or signatures from a supervisor
indicating that a review had taken place, and the date of the review. There are no notations or
signatures on the Vehicle Stop Forms indicating the time they were submitted, so we are unable
to verify if any were turned in by the end of the deputys shift as required by this paragraph.
We reviewed thirty-four (34) incidents involving traffic stops for November of 2014. Out of
thirty-four stops, three (3) had the required documented supervisory review within the seventytwo (72) hour timeline. Only those stops that had an Incident Report associated with it had
documentation of supervisory review. Two (2) other traffic stops with Incident Reports
associated had documented supervisory review on the Incident Report, but not within the
seventy-two (72) hour time requirement. The remaining twenty-nine (29) stops had Vehicle Stop
Forms, and in some instances also traffic citations, but none of these contained any notations or
signatures from a supervisor indicating that a review had taken place, and the date of the review.
There are no notations or signatures on the Vehicle Stop Forms indicating the time they were
submitted, so we are unable to verify if any were turned in by the end of the deputys shift as
required by this paragraph.
We reviewed thirty-five (35) incidents involving traffic stops for December of 2014. Out of
thirty-five stops, two (2) had the required documented supervisory review within the seventy-two
(72) hour time requirement. Only those stops that had an Incident Report associated with it had
documentation of supervisory review. One (1) other traffic stop with an Incident Report
associated with it had a supervisors signature on the Incident Report, but it was not dated within
the seventy-two (72) hour time requirement. The remaining thirty-two (32) stops had Vehicle
Stop Forms, and in some instances also traffic citations, but none of these contained any
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notations or signatures from a supervisor indicating that a review had taken place, and the date of
the review. There are no notations or signatures on the Vehicle Stop Forms indicating the time
they were submitted, so we are unable to verify if any were turned in by the end of the deputys
shift as required by this paragraph.
Only eight (8) Incident Memorialization Forms were submitted for the period of October 1, 2014
to December 31, 2014 (nine were submitted but two Incident Memorialization Forms were for
the same incident). This still appears to be a very low number considering the total number of
incident reports completed on a quarterly basis. Of the eight (8) Incident Memorialization forms
submitted, only one (1) was completed within 72 hours. The remaining seven (7) were
completed between five (5) and nineteen (19) days after the incident occurred. Seven (7) of the
eight (8) Memorialization Forms had a corrective action listed. One Memorialization Form
made reference to an attachment that was not included. The deficiencies noted were lack of
articulation, missing elements of the crime, failure to read Miranda warnings, lack of probable
cause for arrest, and improper procedure. All deficiencies were addressed through counseling
and training. There were two (2) Incident Memorialization Forms done for the same incident and
one number in the Internal Affairs (IA) Incident Memorialization Form sequence was skipped. It
appears MCSO is still working out issues with the format.
MCSO does not presently have a process to record the time when deputies turn in documentation
related to investigatory stops and detentions to their supervisor, so we are unable to ascertain if
deputies are submitting this documentation before the end of their shift. MCSO does not
presently have the capability to sort out all stops that involve investigatory detentions for review.
MCSO advised us that they will work with the Technology Department to correct both issues.
Compliance Status:
Paragraph 91. As part of the Supervisory review, the Supervisor shall document any
Investigatory Stops and detentions that appear unsupported by reasonable suspicion or are
otherwise in violation of MCSO policy, or stops or detentions that indicate a need for corrective
action or review of agency policy, strategy, tactics, or Training. The Supervisor shall take
appropriate action to address all violations or deficiencies in Investigatory Stops or detentions,
including recommending non-disciplinary corrective action for the involved Deputy, and/or
referring the incident for administrative or criminal investigation.
EB-1 Revised September 22, 2014 (Traffic Enforcement, Violator Contacts and Citation
Issuance) is compliant with the Paragraph 91 requirements.
We reviewed EA-11 (Arrest Procedures), which was revised on September 5, 2014. EA-11 states
that deputies shall submit documentation of all stops, investigatory detentions, and arrests to
their supervisors by the end of the shift in which the action occurred. Absent exceptional
circumstances, within 72 hours of receiving such documentation, supervisors shall independently
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review the reports. If the incident did not include an arrest or detention, the supervisor shall
review the IR within seven calendar days, absent exigent circumstances. Supervisors shall review
reports and forms for boilerplate or conclusory language; inconsistent information, lack of
articulation of the legal basis for the action, or other indicia that the information in the reports or
forms is not authentic or correct. Supervisors shall take appropriate action to address all
violations or deficiencies in investigatory stops or detentions, including non-disciplinary
corrective action for the deputy; or referring the incident for administrative review or criminal
investigation. We reviewed EA-11 that was revised on September 5, 2014, and it complies with
Paragraph 91.
We reviewed traffic stop data for October of 2014. Thirty-four (34) reports for traffic related
events were submitted. MCSO reported that of the thirty-four (34) reports, fifteen (15) traffic
related events had no deficiencies noted. Thirty-five (35) potential issues were discovered. A
breakdown of the deficiencies discovered per district is as follows: District-1 with 25.7%;
District 2 with 42.8%; District 3 with 11.4%; District 4 with 2.8%; District 7 with 8.5%; and
Lake Patrol with 8.5%.
MCSO found that of the thirty-four (34) reports submitted, one (1) incident report was not
memorialized within the timelines outlined in MCSO Policies and Procedures; five (5) had
TRACS training issues; in two (2) the CAD times did not match times annotated on the Vehicle
Stop Forms; in six (6) Vehicle Stop Contact Forms the post stop perceived race/ethnicity did not
match with the Citation or Written Warning; three (3) Vehicle Stop Contact Forms had missing,
incomplete, or inaccurate information; one (1) Vehicle Stop Contact Form did not document
additional units on the scene; five (5) were instances of missing, incomplete or inaccurate
information on Citations, Written Warnings, Incidental Contact Forms or incident reports; two
(2) Vehicle Stop Contact forms did not record the perceived post stop race/ethnicity; in one (1)
stop the deputy ran an MVD/NCIC check on subjects who did not appear on the Vehicle Stop
Contact Form; in three (3) stops, the receipts did not contain a signature or acknowledgement
that the subject was served and did not contain the reason for the lack of signature or service.
We reviewed traffic stop data for November of 2014. Thirty-four (34) reports for traffic related
events were submitted. MCSO reported that of the thirty-four (34) reports, eleven (11) traffic
related events had no deficiencies noted. Forty-four (44) potential issues were discovered in the
remaining 23 traffic stops. A breakdown of the deficiencies discovered per district is as follows:
District-1 with 20.5%; District 2 with 20.5%; District 3 with 20.5%; District 4 with 9%; District
6 with 0%; District 7 with 2.3%; and Lake Patrol with 27.2%.
MCSO found that of the thirty-four (34) reports submitted, two (2) incident reports were not
memorialized within the timelines outlined in MCSO Policies and Procedures; three (3) had
TRACS training issues; four (4) the CAD times did not match times annotated on the Vehicle
Stop Forms; in nine (9) Vehicle Stop Contact Forms the post stop perceived race/ethnicity did
not match with the Citation or Written Warning; three (3) Vehicle Stop Contact Forms had
missing, incomplete, or inaccurate information; four (4) Vehicle Stop Contact Forms did not
document additional units on the scene; six (6) were instances of missing, incomplete or
inaccurate information on Citations, Written Warnings, Incidental Contact Forms or incident
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reports; four (4) Vehicle Stop Contact forms did not record the perceived post stop
race/ethnicity; in two (2) traffic stops the deputy ran an MVD/NCIC check on subjects who did
not appear on the Vehicle Stop Contact Form; in five (5) stops, the receipts did not contain a
signature or acknowledgement that the subject was served and did not contain the reason for the
lack of signature or service; in two (2) instances the passenger did not appear to have been issued
a receipt for a Citation, Written Warning or Incidental Contact Form; in two (2) stops, the reason
for the stop on CAD was not the same as the one listed in the Vehicle Stop Contact Form.
The MCSO Bureau of Oversight discovered that the served box on Citations, Written
Warnings and Incidental Contact Forms was only visible in the TRACS system. It was not
visible when forms are printed. MCSO stated that this issue was scheduled to be fixed by the end
of November of 2014. Training was also recommended to ensure deficiencies in capturing data
are addressed.
We reviewed traffic stop data for December of 2014. Thirty-five (35) reports for traffic related
events were submitted. MCSO reported that of the thirty-five (35) reports, fourteen (14) traffic
related events had no deficiencies noted. Thirty-one (31) potential issues were discovered in the
remaining 21 traffic stops. A breakdown of the deficiencies discovered per district is as follows:
District-1 with 29%; District 2 with 19.4%; District 3 with 5.7%; District 4 with 0%; District 6
with 3.2%; District 7 with 16.1%; and Lake Patrol with 32.3%.
MCSO found that of the thirty-five (35) reports submitted, one (1) Lack of Identity investigation
was conducted and the incident report does not indicate the supervisor was made aware of the
investigation; one (1) incident report was not memorialized within the timelines outlined in
MCSO Policies and Procedures; in three (3) incidents the CAD times did not the match times
annotated on the Vehicle Stop Forms; in six (6) Vehicle Stop Contact Forms the post stop
perceived race/ethnicity did not match with the Citation or Written Warning; one (1) Vehicle
Stop Contact Form had missing, incomplete, or inaccurate information; two (2) Vehicle Stop
Contact Forms did not document additional units on the scene; eight (8) were instances of
missing, incomplete or inaccurate information on Citations, Written Warnings, Incidental
Contact Forms or incident reports; in two (2) traffic stops the deputy ran an MVD/NCIC check
on subjects who did not appear on the Vehicle Stop Contact Form; in three (3) stops, the receipts
did not contain a signature or acknowledgement that the subject was served and did not contain
the reason for the lack of signature or service; in two (2) instances the passenger does not appear
to have been issued a receipt for a Citation, Written Warning or Incidental Contact Form; in one
(1) stop the reason for contacting the passenger was not stated or was ambiguous; in four (4)
stops, the reason for the stop on CAD is not the same as the one listed in the Vehicle Stop
Contact Form.
The MCSO Bureau of Internal Oversight discovered that the served box on Citations, Written
Warnings and Incidental Contact Forms was only visible in the TRACS system. It was not
visible when forms are printed. MCSO stated that this problem had been scheduled to be fixed by
the end of November of 2014, however this did not occur. MCSO stated that progress has been
made and the solution may be in place by January 2015.
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Eight (8) Incident Memorialization Forms were submitted for the period of October 1, 2014 to
December 31, 2014 (nine were submitted but two Incident Memorialization Forms were for the
same incident). This still appears to be a very low number considering the total number of
incident reports completed on a quarterly basis. Of the eight (8) Incident Memorialization forms
submitted, only one (1) was completed within 72 hours. The remaining seven (7) were
completed between five (5) and nineteen (19) days after the incident occurred. Seven (7) of the
eight (8) Memorialization Forms had a corrective action listed. One Memorialization Form
made reference to an attachment that was not included. The deficiencies noted were lack of
articulation, missing elements of the crime, failure to read Miranda warnings, lack of probable
cause for arrest, and improper procedure. All deficiencies were addressed through counseling
and training. There were two (2) Incident Memorialization Forms done for the same incident and
one number in the Internal Affairs (IA) Incident Memorialization Form sequence was skipped. It
appears MCSO is still working out issues with the format.
MCSO is conducting periodic inspections of investigatory stops and detentions to ensure the
deficiencies are identified and addressed. While we support BIO conducting reviews and
identifying issues associated with specific stops and detentions, this Paragraph requires that the
first line supervisors identify these issues as part of their review of their subordinates activities.
BIO should continue its efforts, but to the extent that they routinely identify deficiencies that
supervisors fail to identify, MCSO is not in compliance with this Paragraph.
Compliance Status:
Paragraph 92. Supervisors shall use EIS to track each subordinates violations or deficiencies in
Investigatory Stops or detentions and the corrective actions taken, in order to identify Deputies
needing repeated corrective action. Supervisors shall notify IA. The Supervisor shall ensure that
each violation or deficiency is documented in the Deputys performance evaluations. The quality
and completeness of these Supervisory reviews shall be taken into account in the Supervisors
own performance evaluations. MCSO shall take appropriate corrective or disciplinary action
against Supervisors who fail to conduct complete, thorough, and accurate reviews of Deputies
stops and Investigatory Detentions.
EA-11 was revised on September 5, 2014 (Arrest Procedures), and EB-1 was revised on
September 22, 2104 (Traffic Enforcement, Violator Contacts, and Citation Issuance). EB-1 is
compliant in that it states supervisors shall track each deputys deficiencies or violations and the
corrective action taken, in order to identify deputies who need repeated corrective action. EB-1
also states that supervisors shall take appropriate corrective or disciplinary action against
supervisors who fail to conduct complete, thorough, and accurate reviews of deputies
investigatory detentions and stops. EB-1 states that supervisors shall track, through the Early
Intervention System (EIS), each deputys deficiencies or violations and the corrective action
taken in order to identify deputies who need repeated corrective action. EB-1 also states
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supervisors shall notify the Professional Standards Bureau to ensure that each violation is
documented in the deputys performance evaluations and that the supervisory review shall be
taken into account in the supervisors own performance evaluations. EB-1 also states that MCSO
shall take appropriate corrective or disciplinary action against supervisors who fail to conduct
complete thorough and accurate reviews of deputies investigatory detention and stops. EB-1
meets the requirements of Paragraph 92.
We requested all performance appraisals done for deputies and supervisors during the review
period. We reviewed the performance evaluations of fifteen (15) sergeants who received
performance appraisals in the time period being reviewed. Five (5) of the fifteen (15) appraisals
contained an assessment of the quality and completeness of the supervisors reviews. None of
the supervisors had any discipline taken against them during the period of evaluation. In one
performance evaluation, the employee (a supervisor) signed the performance appraisal four (4)
months after the reviewer had completed the evaluation. In another appraisal, the employee (a
supervisor) signed the appraisal three (3) months after the review had been completed.
Performance appraisals should be provided to the employee in a timelier manner in order to
provide feedback and to assist the employee with correcting areas of underperformance as
quickly as possible, as well as to acknowledge areas of strong performance.
In response to our request for proof of compliance, MCSO submitted the following response:
Review of deputies EIS profile is currently accomplished through the Blue Team dashboard.
This dashboard displays colored lights. Red shows an alert has been set, Yellow shows one
incident away from an alert. Green shows more than one incident away from an alert. The
dashboard does not record when a supervisor looks at a deputys EIS profile. We have received
requests from supervisors concerning information in an employees EIS profile and we have
provided the information requested. However, there is no tracking method in place to record or
track these requests.
The Maricopa County Sheriffs Office has purchased from the IA Pro vendor, CI Technologies,
a new program called EI Pro. The Sheriffs Office is beta testing the original version of EI Pro.
This program does record when a supervisor looks at a specific incident in a deputys profile. In
the actual user log for the specific IA Pro incident, the following is recorded:
EIPRO: Employee user name [S] accessed incident XXXX, where XXXX is the specific IA
PRO internal number for the incident.
Compliance Status:
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Paragraph 93. Absent extraordinary circumstances, MCSO Deputies shall complete all incident
reports before the end of shift. MCSO field Supervisors shall review incident reports and shall
memorialize their review of incident reports within 72 hours of an arrest, absent exceptional
circumstances.
EA-11 (Arrest Procedures) as revised on September 5, 2014 states that deputies shall submit
documentation of all stops, investigatory detentions and arrests to their supervisors by the end of
the shift in which the action occurred. EA-11 that was revised on September 5, 2014 is
compliant with Paragraph 93.
We reviewed forty-four (44) incident reports for the month of October 2014. These incident
reports were from a randomly selected date of October 31, 2014. Twenty-eight (28) of the fortyfour (44) incident reports were memorialized within the seventy-two (72) hour time requirement.
Nine (9) incident reports were signed but not dated. Seven (7) incident reports were signed and
dated by a supervisor after the seventy-two (72) hour time requirement; the time lapse from the
completion of the report to memorialization in these seven (7) reports varied from five (5) days
to forty-seven (47) days.
We reviewed forty-eight (48) incident reports for the month of November 2014. These incident
reports were from a randomly selected date of November 22, 2014. Thirty-three (33) of the fortyeight (48) incident reports were memorialized within the seventy-two (72) hour time
requirement. Ten (10) incident reports were signed but not dated. Two (2) incident reports were
signed and dated by a supervisor after the seventy-two (72) hour time requirement; the time lapse
from the completion of the report to memorialization in these two were five (5) days for one and
twenty (20) days for the other. Three (3) reports were not memorialized.
We reviewed fifty-four (54) incident reports for the month of December 2014. These incident
reports were from a randomly selected date of December 10, 2014. Thirty-four (34) of the fiftyfour (54) incident reports were memorialized within the seventy-two (72) hour time requirement.
Four (4) incident reports were signed but not dated. Four (4) incident reports have the
supervisors name printed on the report but no signature or date. Eleven (11) incident reports
were signed and dated by a supervisor after the seventy-two (72) hour time requirement; the time
lapse from the completion of the report to memorialization in these eleven (11) reports ranged
from six (6) days to thirty-eight (38). One (1) report was not memorialized.
MCSO has no auditable method to document that Deputies are completing reports before the end
of their shift. MCSO reported that they are working on a solution.
Compliance Status:
Paragraph 94. As part of the Supervisory review, the Supervisor shall document any arrests that
are unsupported by probable cause or are otherwise in violation of MCSO policy, or that
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indicate a need for corrective action or review of agency policy, strategy, tactics, or Training.
The Supervisor shall take appropriate action to address violations or deficiencies in making
arrests, including notification of prosecuting authorities, recommending non-disciplinary
corrective action for the involved Deputy, and/or referring the incident for administrative or
criminal investigation.
Our process for verification consists of reviewing supervisors documentation of any arrests that
are unsupported by probable cause or are otherwise in violation of MCSO policy, or that indicate
a need for corrective action or review of agency policy, strategy, tactics, or training. MCSO
submitted policies EA-11 that was revised on September 5, 2014 (Arrest Procedures). EA-11
states that supervisors shall document any arrests that appear unsupported by probable cause or
are otherwise in violation of Office policy; or indicate a need for corrective action or review of
Office policy, strategy, tactics, or training. Supervisors shall take appropriate action to address
violations or deficiencies in making arrests, including notification of prosecuting authorities,
recommending non-disciplinary corrective action for the involved deputy, and/or referring the
incident for administrative or criminal investigation.
EA-11 is in compliance with the
requirements of Paragraph 94.
MCSOs submission cover sheet indicated that eight (8) incidents were submitted as proof of
compliance with Paragraph 94, for the period of review from October 1, 2014 to December 31,
2014. Only seven (7) reports were submitted. The seven (7) reports were submitted as arrests
that were unsupported by probable cause or were otherwise in violation of MCSO policy, or
indicated a need for corrective action or review of agency policy, strategy, tactics, or training.
With the exception of one (1) report that included a decline prosecution notification from the
Maricopa County Attorney, there was no documentation as to the reason the reports were
submitted as part of Paragraph 94 compliance. Three of the incidents involved an actual physical
arrest, three incidents involved citations to appear in court, and one was a robbery report with no
arrest. In four (4) of the seven incidents, the supervisor did not review and memorialize the
review within 72 hours.
Compliance Status:
Paragraph 95. Supervisors shall use EIS to track each subordinates violations or deficiencies in
the arrests and the corrective actions taken, in order to identify Deputies needing repeated
corrective action. The Supervisor shall ensure that each violation or deficiency is noted in the
Deputys performance evaluations. The quality of these supervisory reviews shall be taken into
account in the Supervisors own performance evaluations, promotions, or internal transfers.
MCSO shall take appropriate corrective or disciplinary action against Supervisors who fail to
conduct reviews of adequate and consistent quality.
We have reviewed EA-11 (Arrest Procedures) as revised on September 5, 2014 and the policy
meets most of the requirements of Paragraph 95. Both EIS and a Performance Evaluation
System are in development. Paragraph 95 states that supervisors shall use EIS to track each
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subordinates violations or deficiencies in the arrests and the corrective actions taken, in order to
identify deputies needing repeated corrective action. EA-11, revised on September 5th, 2014
(Arrest Procedures) is compliant with these requirements. EA-11 also states that supervisors
shall take appropriate corrective or disciplinary action against supervisors who fail to conduct
complete, thorough, and accurate reviews of deputies investigatory detentions and stops. EA-11
states that supervisors shall track, through the Early Intervention System (EIS), each deputys
deficiencies or violations and the corrective action taken in order to identify deputies who need
repeated corrective action. EA-11 also states supervisors shall notify the Professional Standards
Bureau to ensure that each violation is documented in the deputys performance evaluations and
that the supervisory review shall be taken into account in the supervisors own performance
evaluations.
We reviewed performance appraisals for thirty-six (36) deputies and sixteen (16) supervisors
who had received an evaluation between October 1, 2014 and December 31, 2014. Two (2) of
the deputy Performance Appraisals that were reviewed showed formal written disciplinary
actions had been taken. Five (5) deputies had noted deficiencies and received counseling. None
of the thirty-six (36) deputy Performance Appraisals reviewed had any dimension rated as
Improvement Needed. In addition, none of the appraisals reviewed contained any
documentation of subordinates violations or deficiencies in arrests. Finally, none of the sixteen
(16) Performance Appraisals for supervisors had any disciplinary activity, and none had any
dimension rated as Improvement Needed.
Given the absence of an EIS or governing policy, MCSO is not in compliance with Paragraph 95.
Compliance Status:
Paragraph 96. A command-level official shall review, in writing, all Supervisory reviews related
to arrests that are unsupported by probable cause or are otherwise in violation of MCSO policy,
or that indicate a need for corrective action or review of agency policy, strategy, tactics, or
Training. The commanders review shall be completed within 14 days of receiving the document
reporting the event. The commander shall evaluate the corrective action and recommendations
in the Supervisors written report and ensure that all appropriate corrective action is taken.
We reviewed EA-11(Arrest Procedures) which was revised on September 5, 2014 and the policy
meets the requirements of Paragraph 96. EA-11 states that Command level personnel shall
review, in writing, all supervisory reviews related to arrests that are unsupported by probable
cause or are otherwise in violation of Office policy; or, that indicate a need for corrective action
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or review of Office policy, strategy, tactics, or training. The commanders review shall be
completed within 14 days of receiving the document reporting the event. The commander shall
evaluate the corrective action and make recommendations in the supervisors written report and
ensure that all appropriate corrective action is taken.
We reviewed eight (8) completed Incident Report Memorialization Forms (nine (9) were
submitted but two (2) were for the same incident) submitted for the period of October 1, 2014 to
December 31, 2014. Of the eight (8) Report Memorialization Forms, six (6) had been reviewed
by a command level officer within the 14-day time requirement. Three Incident Report
Memorialization Forms had not been reviewed by a command level officer. The Incident Report
Memorialization Forms have designated areas for chain of command signatures, but none were
signed. The total amount of Incident Memorialization Forms submitted seems low considering
the number of incident reports that MCSO completes in a period of three months.
Compliance Status:
Paragraph 97. MCSO Commanders and Supervisors shall periodically review the EIS reports
and information, and initiate, implement, or assess the effectiveness of interventions for
individual Deputies, Supervisors, and units based on that review. The obligations of MCSO
Commanders and Supervisors in that regard are described above in Paragraphs 81(c)(h).
MCSO noted that policy GC-4 (Performance Appraisals) is currently under revision. We have
not seen evidence that MCSO is compliant with requirements of Paragraph 97. Until such time as
GC-4 is published, and we confirm that the requirements of Paragraph 97 are covered by policy,
MCSO is not in Phase 1 compliance with this paragraph.
In response to our request for proof of compliance, MCSO submitted the following response:
Review of Deputies EIS profile is currently accomplished through the Blue Team dashboard.
This dashboard displays colored lights. Red shows an alert has been set, Yellow shows one
incident away from an alert and green shows more than one incident away from an alert. The
dashboard does not record when a supervisor looks at a Deputys EIS profile. We have received
requests from supervisors concerning information in an employees EIS profile and we have
provided the information requested. However, there is no tracking method in place to record or
track these requests.
The Maricopa County Sheriffs Office has purchased from the IA Pro vendor, CI Technologies,
a new program called EI Pro. The Sheriffs Office is beta testing the original version of EI Pro.
This program does record when a supervisor looks at a specific incident in a Deputys profile. In
the actual user log for the specific IA Pro incident, the following information is recorded:
EIPRO: Employee user name [S] accessed incident XXXX, where XXXX is the specific IA
PRO internal number for the incident.
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Compliance Status:
d. Regular Employee Performance Review and Evaluations
Paragraph 98. MCSO, in consultation with the Monitor, shall create a system for regular
employee performance evaluations that, among other things, track each officers past
performance to determine whether the officer has demonstrated a pattern of behavior prohibited
by MCSO policy or this Order.
contain the requirements of this Paragraph. We will verify once we receive a draft of the
completed policy as well as a draft of an EIS policy.
MCSO believes that the IA Pro/Blue Team system should have the ability to track the data
required by this Paragraph. MCSO must, however, resolve the first line supervisor access issues
identified in Section IX (Early Intervention System). MCSO is not in compliance with
Paragraph 98.
MCSO has not submitted the updated policy GC-4, Performance Appraisals. GC-4 is still under
revision. Until the policy is revised and meets the requirements of Paragraph 98, MCSO is not in
compliance.
Compliance Status:
Paragraph 99. The review shall take into consideration all past Complaint investigations; the
results of all investigations; Discipline, if any, resulting from the investigation; citizen
Complaints and commendation; awards; civil or administrative claims and lawsuits related to
MCSO operations; Training history; assignment and rank history; and past Supervisory actions
taken pursuant to the early warning protocol.
Policy GC-4 (Performance Appraisals) is currently under revision and will purportedly contain
the requirements of Paragraph 99. We will verify once we receive a draft of the completed
policy as well as a draft of an EIS policy.
MCSO believes that the IA Pro/Blue Team system should have the ability to track the data
required by this Paragraph. MCSO must, however, resolve the first line supervisor access issues
identified in Section IX (Early Intervention System).
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MCSO has not submitted the updated policy GC-4, Performance Appraisals. GC-4 is still under
revision. Until the policy is revised and meets the requirements of Paragraph 98, MCSO is not in
compliance.
Compliance Status:
Paragraph 100. The quality of Supervisory reviews shall be taken into account in the
Supervisors own performance evaluations.
contain the requirements of Paragraph 100. We will verify once we receive a draft of the
completed policy as well as the EIS policy.
We reviewed 15 supervisors Performance Evaluations submitted for the period of October 1,
2014 to December 31, 2014. Sixteen (16) Performance Appraisals were submitted, but one (1)
was for a recently promoted sergeant who was evaluated as a deputy. The quality of supervisory
reviews is not addressed in twelve (12) of the fifteen (15) Performance Appraisals. One
supervisors Performance Appraisal was signed four (4) months after the appraisal was
completed. Another supervisors Performance Appraisal was signed three (3) months after the
appraisal was completed. We recommend that in order for Performance Appraisals to be
effective, they should be provided to the employee in a timelier manner.
Compliance Status:
Paragraph 101. Within 180 days of the Effective Date, MCSO shall develop and implement
eligibility criteria for assignment to Specialized Units enforcing Immigration-Related Laws.
Such criteria and procedures shall emphasize the individuals integrity, good judgment, and
demonstrated capacity to carry out the mission of each Specialized Unit in a constitutional,
lawful, and bias-free manner. Deputies assigned to a Specialized Unit who are unable to
maintain eligibility shall be immediately re-assigned.
immigration laws. During discussions with CCID and MCAO Attorneys, we have suggested that
applicable immigration laws and immigration related crimes, as those terms are defined in the
Order, be identified. From there, a determination can be made as to which units, if any, enforce
these laws as one of their core missions.
During the previous evaluation period, MCSO and their attorneys articulated that the three
criminal violations they believe qualify as having the potential to be immigration related include:
human smuggling, forgery, and misconduct with weapons. During our December site visit we
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were informed that MCSO was disbanding the Criminal Employment Unit, which was part of the
Special Investigation Division. We requested the monthly arrest and enforcement statistics for
the months October, November and December of 2014, which includes all reports related to
immigration status investigations, any immigration related crime, or incidents or arrests
involving lack of identity. We have reviewed MCSOs submissions and discussed our findings in
our review of Paragraph 89 compliance.
On November 7, 2014, a United States District Court Judge issued an Order permanently
Broadcast 14-75 prohibiting deputies from enforcing the above statute including arresting,
Compliance is deferred until such time as we can verify the disbanding of the Criminal
Employment Unit, and we review the mission statement, policies and operations documents of
ATU to verify MCSOs assertion that this Paragraph is not applicable to that Unit.
Compliance Status:
Phase 1: Deferred
Phase 2: Deferred
Section 10: Misconduct and Complaints
COURT ORDER XI. MISCONDUCT AND COMPLAINTS
a. Internally-Discovered Violations
Paragraph 102. MCSO shall require all personnel to report without delay alleged or apparent
misconduct by other MCSO Personnel to a Supervisor or directly to IA that reasonably appears
to constitute: (i) a violation of MCSO policy or this Order; (ii) an intentional failure to complete
data collection or other paperwork requirements required by MCSO policy or this Order; (iii) an
act of retaliation for complying with any MCSO policy; (iv) or an intentional provision of false
information in an administrative investigation or any official report, log or electronic transmittal
of information. Failure to voluntarily report or document apparent misconduct described in this
Paragraph shall be an offense subject to Discipline.
The following MCSO policies were offered in response to this Paragraph: GH-2 (Internal
Investigations), CP-8, (Preventing Racial and Other Biased-Based Profiling), CP-5
(Truthfulness), CP-2, (Code of Conduct), CP-3, (Workplace Professionalism), and GC-17
(Employee Disciplinary Procedure). These policies were disseminated and trained to during the
Fourth and Fourteenth Amendment training that was completed during this review period.
During the week of our site visit in September 2014, several patrol districts had experienced
changes in personnel assignments due to department wide promotions and transfers. The newly
assigned staffs were adjusting to their positions and were vaguely aware of the responsibilities
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outlined in the earlier version of GH-2 Internal Investigations (effective December 4th, 2013).
When we conducted our site visit in December 2014, there had been more personnel movement.
Additionally, the Patrol Division had assigned a sergeant to each of the district stations to
enhance supervision and serve in an administrative capacity, specifically to conduct internal
investigations.
We were aware that there had been little or no formal training for internal investigations that had
been conducted at the Districts and Jails during the last year. We were told during the visits that
the Professional Standards Bureau was planning to create a training program for those assigned
to conduct internal investigations. We will be interviewing these staff during the next visit to
determine their level of knowledge.
We asked MCSO to provide a list of all cases completed during this reporting period, and
specifically, any cases involving possible bias-based activities, retaliation, truthfulness or failure
to report violations of the Order for the quarter of October through December,2014. Of the 185
cases offered we selected 32 cases where the allegations might be applicable to this Paragraph.
The investigative packages that we received contained allegations that represented almost all of
the elements of this Paragraph. Eight cases were investigated by the Professional Standards
Bureau and twenty cases were investigated by Custody and Patrol. Four were memoranda that
represented the details of the investigations, with IA numbers and statement summaries from
witnesses, reporting the results of Official Inquiries. One included a Written Reprimand to a
supervisor for failure to complete the investigation that we requested during the required time
frames. Three of the cases involved allegations against Posse members. One had made
inappropriate racial comments during the Racial Bias training. One, who had previously resigned
from the Posse, sent a racially biased email to a member of the department. One had visited an
inmate acquaintance while he was wearing a department uniform. They were subsequently
removed from the program.
There was one investigation that was submitted that involved a Commander who did not forward
a complaint of racially discriminatory remarks by one officer to another to the Professional
Standards Bureau for further investigation. Additionally, we reviewed two investigations that
had been submitted during the last review period and deemed incomplete by us. We requested
them these to be resubmitted for further review. Both cases were determined to be sustained and
discipline was imposed. All of the investigations were signed by the respective chain-ofcommand, including the Deputy Chiefs. In addition the Chief Deputy signed all allegations
involving truthfulness.
There was no evidence in any of the documents that the divisional investigations were monitored
by an assigned resource from the Professional Standards Bureau. We discussed this issue during
the December site visit and were told that any person conducting an internal affairs investigation
could call and get assistance from any Professional Standards investigator. GH-2, Internal
Investigations, includes a decision matrix for determining where investigations will be assigned
as well as the responsibility for assigning a PSB resource to the investigator at any other
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assignment. We had also recommended that PSB develop a template for the investigative
documents, with indexing, to be used by the other units. This template has been developed. We
saw it in only two of the district cases that were reviewed during this period. It is still a work in
progress and should include more of the mandatory elements found in the policy GH-2, Internal
Investigations. GH-2 requires, as appropriate, the inclusion of collected traffic stop and patrol
data, training records, performance evaluations and discipline history of the involved employees.
The absence of a checklist, as well as a lack of training, has resulted in these documents not
being included in almost all of the investigations that were reviewed. Additionally, several
district sergeants said that they were waiting for training on the electronic personnel tracking
system, IA Pro /Blue Team, where they are supposed to be able to access this information.
Patrol data should be available to supervisors through the TraCS system. Obviously, access to
this information will benefit the investigator as well as the administrative command staff that
have the responsibility to review and make recommendations for discipline. If the training and
checklist development takes place, we would expect to see examples of more complete
investigation packages in the next review period.
We requested audio and/or video recordings related to the investigations. GH-2, Internal
Investigations 5.A states Audio and/or video recordings of the interview should be made by the
assigned investigator for administrative purposes. We reviewed ten of the recordings. Two
were not recordings of interviews, but were recordings of the Pre-disciplinary hearings. One
was a statement by the principal recalling the events and another was merely a reading of a
prepared statement. Other recordings included questions from the investigator(s) that
demonstrated the use of leading questions, or questions not designed to evoke other than minimal
information from the person being interviewed. One audio did not have the names of
participants, or any relevant information, identified on the recording. In spite of interviews not
being mandatory, it is a best practice and all efforts should be made to record all interviews.
We have been told that all interviews conducted at MCSO Headquarters, Internal Affairs are
audio and video recorded when conducted in the designated interview rooms.
Compliance Status:
b. Audit Checks
Paragraph 103. Within one year of the Effective Date, MCSO shall develop a plan for
conducting regular, targeted, and random integrity audit checks to identify and investigate
Deputies possibly engaging in improper behavior, including: Discriminatory Policing; unlawful
detentions and arrests; improper enforcement of Immigration-Related Laws; and failure to
report misconduct.
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MCSO did not submit any policies or audits in support of this paragraph. They did submit a
document showing a record of audits of Incident Reports.
During our first site visit, we were made aware of MCSOs acquisition of IA Pro for case
management and tracking. At that time, the system had not been completely populated with the
cases, nor had all IA employees been trained on the system. During the September site visit, we
were informed that several personnel changes had taken place in the Professional Standards
Bureau. They were not familiar with the all of the operations of the Unit at that time. None were
familiar with conducting integrity checks and proactively investigating deputies who may be
engaging in illegal or improper behavior. We referred them to an agency that has developed
multiple protocols for these types of investigations.
During our December site visit, we discussed the concept and purpose of integrity tests with a
different set of IA command staff. They stated that they had not been able to do the research on
other agencies use of integrity tests up to this point.. We were shown how the IA Pro system is
used to conduct some audits e.g., Property Storage (Missing Property Inquiries), Status of
Investigations, and missing Incident Reports. While these audits are important to the operation
of the department, there still is no development of policies and protocols for conducting the
integrity checks. The movement to date to develop this process is inadequate and we urge
MCSO to delegate someone in a management position to explore other agencies that have these
programs in place. We will review the policy on this topic when it is developed and ensure that it
incorporates an understanding of the intent of this Paragraph.
Compliance Status:
c. Complaint Tracking and Investigations
Paragraph 104. Subject to applicable laws, MCSO shall require Deputies to cooperate with
administrative investigations, including appearing for an interview when requested by an
investigator and providing all requested documents and evidence. Supervisors shall be notified
when a Deputy under their supervision is summoned as part of an administrative investigation
and shall facilitate the Deputys appearance, absent extraordinary and documented
circumstances.
MCSO policy GH-2 (Internal Investigations) Section G. 1, revised September 5, 2014, requires
personnel to cooperate with administrative investigations, including appearing for an interview
when requested by an investigator and providing all requested documents and evidence.
Commanders shall facilitate the employees appearance, absent extraordinary and documented
circumstances.
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We reviewed 32 completed Internal Affairs investigations for this review period. There were no
documents included that addressed compliance with appearing for interviews. There were also no
forms or memoranda indicating that commanders or supervisors were notified when a deputy
under their supervision had been summoned as part of an administrative investigation. More
importantly, at the end of this reporting period, Professional Standards Bureau personnel
reported that it has begun notifying supervisors by memorandum as they attempt to add a task to
the IA Pro System that will require investigators to acknowledge that supervisory personnel are
notified when employees under their supervision are being interviewed by PSB. Also,
investigators have been directed to make e-mail notifications to the interviewees supervisor and
save the e-mail in IA Pro under the investigation link. Traditionally, phone calls to supervisory
staff have been the manner in which investigators have made such notifications.
GH-2 was disseminated and trained to during the ongoing Fourth and Fourteenth Amendment
Training. MCSO is therefore in Phase 1 compliance with this Paragraph.
Compliance Status:
Paragraph 105. Investigators shall have access to, and take into account as appropriate, the
collected traffic stop and patrol data, Training records, Discipline history, and any past
Complaints and performance evaluations of involved officers.
The policy, GH-2, Internal Investigations, was revised September 5th, 2014 and includes
language that investigators shall have access to and take into account, as appropriate, the
collected traffic stop and patrol data, training records, discipline history, and any past complaints
and performance evaluations of involved officers. A revised Internal Affairs SOP (Standard
Operating Procedure), which should include a checklist with these tasks, has not been submitted
for review during this quarter. The SOP should not only encourage investigators to consider this
critical data, but also provide detailed guidance to investigators regarding how such data should
and should not be used.
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We reviewed 32 cases for this reporting period. Of those, four were memos reporting the results
of Official Inquiries, eight were investigated by Professional Standards, and twenty were
investigated by Patrol, Custody and Enforcement Support. There were no training records,
discipline history (besides the two), traffic stop or patrol data included, where it was clearly
appropriate. Discipline histories were found in various locations, including memoranda,
Personnel Action Forms and Pre-Disciplinary Hearing Notices. Any discipline that is imposed
should be determined by using the Discipline Matrix found in GC-17. We anticipate more
consistent inclusion of the required elements after the Internal Affairs SOP is amended to reflect
these requirements and the distribution and training on IA Pro/Blue Team is completed.
Compliance Status:
Paragraph 106. Records of Complaints and investigations shall be maintained and made
available, un-redacted, to the Monitor and Plaintiffs representatives upon request. The Monitor
and Plaintiffs representatives shall maintain the confidentiality of any information therein that
is not public record. Disclosure of records of pending investigations shall be consistent with
state law.
MCSOs record maintenance and/or retention policy as it pertains to complaints is incorporated

in GH-2 Internal Investigations (effective September 5, 2014) Professional Standards Bureau
investigative files will be maintained for five years after an employees separation or retirement
from Office employment.
MCSO has two obligations under this Paragraph to maintain and make records available. At
this time, we have no reason to believe that MCSO has withheld any data requested by the
Monitoring Team. However, the Paragraph also covers the requirement that MCSO make unredacted records of such investigations available to the Plaintiffs as well. The Plaintiffs advised
that MCSO had not produced certain information requested by Plaintiffs representatives after
multiple requests.
There still appears to be a problem with tracking cases while they are being investigated. Several
memos were included in the document production that indicated there were a number of delayed
investigations. Additionally, there is no format included in the investigations that we reviewed
that indicate any deadlines or supervisors oversight of on-going cases. The tracking system that
was purchased for the Professional Standards Bureau should be used to manage all of the internal
investigations, at least by case number, that are conducted throughout MCSO. The PSB needs to
be able to exhibit proof that this tracking occurs.
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Phase I is not applicable for this paragraph.

Compliance Status:
Section 11: Community Engagement
COURT ORDER XII. COMMUNITY ENGAGEMENT
a. Community Outreach Program
underlined font. Deletions are indicated by crossed-out font. Where an entire paragraph has
been removed, that is indicated with brackets, but the numbering remains unchanged. For
example: 108. [REMOVED].)
Paragraph 107. To rebuild public confidence and trust in the MCSO and in the reform process,
the MCSO Monitor shall work to improve community relationships and engage constructively
with the community during the period that this Order is in place. To this end, the MCSO shall
create the following district community outreach program.
On April 4, 2014 an amended Order (Document 670) made community outreach a Monitors
function. This is no longer an MCSO responsibility. We and the Plaintiffs have communicated
repeatedly about innovative ways to engage community members and leaders; supporting and
encouraging Community Advisory Board (CAB) members; advertising upcoming community
events; providing for the development of a complaint system that goes through us to assure
access to the appropriate process; and informing the public about the authority of MCSO
regarding immigration enforcement. Each of these issues will be dealt with in more detail in the
following Paragraphs.
Paragraph 108. [REMOVED] Within 180 days of the Effective Date, MCSO shall develop and
implement a Community Outreach and Public Information program in each MCSO District.
Paragraph 109. As part of its Community Outreach and Public Information program, the MCSO
The Monitor shall hold a public meeting in each of MCSOs patrol Districts within 90 180 days
of the Effective Date issuance of this amendment to the Order, and at least between one and
three meetings in each of MCSOs patrol Districts annually thereafter. The meetings shall be
under the direction of the Monitor and/or his designee. These meetings shall be used to inform
community members of the policy changes or other significant actions that the MCSO has taken
to implement the provisions of this Order. Summaries of audits and reports completed by the
MCSO pursuant to this Order shall be provided. The MCSO Monitor shall clarify for the public
at these meetings that it the MCSO does not lacks the authority to enforce immigration laws
except to the extent that it is enforcing Arizona and federal criminal laws.
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On April 4, 2014 an amended Order (Document 670) gave the requirement to hold public
meetings to the Monitor. We held two community meetings during this reporting period. The
first community meeting was held on October 29, 2014 at Parkview Elementary School located
at 16066 N. Parkview Place, Surprise, AZ 85374. Surprise is located in MCSO Patrol District 3.
The meeting was held from 6:40 PM until 8:00 PM. 15 community members attended this
meeting. The attendees brought up a few complaints about MCSO and demonstrated a genuine
interest in the ongoing efforts to bring about change in MCSO policies and procedures. There
were a number of questions and comments offered by the attendees. Members of MCSO and
representatives of the ACLU were in attendance and offered comments. One of the CAB
members was in attendance. Media representatives from the Arizona Republic and La Voz were
also in attendance.
The second community meeting held during this reporting period was conducted on December
17, 2014 at the Fountain Hills Community Center at 13001 N. La Montana Drive, Fountain Hills,
AZ. Fountain Hills is located in MCSO Patrol District 7. The meeting began at 6:30 PM and
ended at 9:00 PM. Approximately 120 community members attended. The meeting was attended
by members of the MCSO, representatives of the ACLU and a CAB member. The attendees
asked a number of questions. Many of the attendees expressed their support and appreciation for
Sheriff Arpaio and the MCSO, while other attendees relayed their personal experiences of what
they perceived as mistreatment by members of MCSO. There was considerable emotion
displayed by a number of the attendees. There was no media coverage at the meeting.
We conducted both meetings in English and Spanish to ensure the maximum amount of
participation and understanding took place.
At both meetings, we explained to the meeting attendees the role of the Monitor, his
responsibilities to the community, the progress being made, as well as challenges ahead in
implementing the Order. As part of the initial presentation, and during questions and answers,
we made it clear that MCSO did not have the authority to enforce immigration laws except to the
extent that it is enforcing Arizona and federal criminal laws. It was also explained to those in
attendance that the Monitoring Team would have a regular presence in Maricopa County and we
provided our contact information to all parties. We advised the attendees that the Monitor had
the authority to take complaints or compliments about MCSO, and to insure that complaints were
investigated completely. Further, we explained that new policies, procedures, training and
equipment were being developed for MCSO officers and supervisors to ensure that they were
working within the law and toward the best interests of the people of Maricopa County.
At both meetings, a number of questions were asked by community members. We responded to
these inquiries, as did Plaintiffs representatives, or members of MCSO, as appropriate. For
those who declined to ask their questions publicly, separate cards were made available for them
to write their questions. Attendees were also provided with forms to document complaints or
concerns.
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Paragraph 110. The meetings present an opportunity for MCSO representatives the Monitor to
listen to community members experiences and concerns about MCSO practices implementing
this Order, including the impact on public trust. MCSO representatives shall make reasonable
efforts to address such concerns during the meetings and afterward. The Monitor may
investigate and respond to those concerns. To the extent that the Monitor receives concerns at
such meetings that are neither within the scope of this order nor useful in determining the
Defendants compliance with this order, it may assist the complainant in filing an appropriate
complaint with the MCSO.
Approximately 120 community members were in attendance at the meeting in Fountain Hills and
15 community members attended the meeting in Surprise. Both meetings allowed ample
opportunity for attendees to ask questions or offer comments. They could either use the roving
microphone we provided, or write their comments or complaints on note cards that were
provided for us to read aloud and provide answers. Questions were successfully fielded at both
meetings. Attendees at both meetings politely waited their turn at the microphone and
Monitoring Team personnel moved throughout the meeting location, providing microphones
where needed or note cards for those who wished to ask their questions in writing.
A key objective of both meetings was to let those in attendance know that the Monitor had the
authority, provided by the Court, to take complaints about any activity involving MCSO
personnel and make sure that an investigation was adequately conducted. Forms were made
available for this purpose. After both meetings, all Monitoring Team personnel remained behind
to individually answer questions, and did so until the last attendee left the building.
Paragraph 111. English- and Spanish-speaking MCSO Monitor Personnel shall attend these
meetings and be available to answer questions from the public about its publicly available
reports concerning MCSOs implementation of this Order and other publicly-available
information. At least one MCSO Supervisor with extensive knowledge of the agencys
implementation of the Order, as well as the Community Liaison Officer (described below) shall
participate in the meetings. The Monitor may request Plaintiffs and/or Defendants
representatives shall be invited to attend such meetings and assist in answering inquiries by the
community. The Defendants are under no obligation to attend such meetings, but to the extent
they do not attend such meetings after being requested by the Monitor to do so, the Monitor may
report their absence to the public and shall report their absence to the Court.
Selected members of the Monitoring Team in Maricopa County for site visit assessments
attended the meetings. The Monitor and three of his team members are bilingual and they
provided translation into Spanish to insure all remarks, questions and answers were understood
by the Spanish speaking attendees.
In addition, Mr. Josh Bendor, attorney for ACLU and Chief Deputy Sheridan of MCSO offered
remarks at the meeting in Surprise. At the meeting in Fountain Hills, remarks were offered by
Sheriff Arpaio, Ms. Cecillia Wang of the ACLU Immigrants Rights Project, and Chief Deputy
Sheridan. MCSO was well represented at both meetings and were recognized for their
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attendance. Several of the MCSO personnel in attendance at both meetings play instrumental
roles in the implementation of the Courts Order.
Paragraph 112. The meetings shall be held in locations convenient and accessible to the public.
At least one week ten days before such meetings, the MCSO Monitor shall widely publicize the
meetings using English and Spanish-language television, print media and the internet. The
Defendants shall either provide a place for such meetings that is acceptable to the Monitor, or
pay the Monitor the necessary expenses incurred in arranging for such meeting places. The
Defendants shall also pay the reasonable expenses of publicizing the meetings as required
above, and the additional reasonable personnel and other expenses that the Monitor will incur
as a result of performing his obligations with respect to the Community Outreach Program. If
the Monitor determines there is little interest or participation in such meetings among
community members, or that they have otherwise fulfilled their purpose, he can file a request
with the Court that this requirement be revised or eliminated.
Preparations for both meetings began well in advance of the meeting dates. Issues such as site
selection, advertisement in local radio and print media in English and Spanish, agenda creation,
and meeting logistics are of utmost importance in the planning stages. Input from the
Community Advisory Board (CAB) as well as ACLU is taken into consideration before
finalizing these items. MCSOs Court Compliance and Implementation Division staff, as well as
the Chief Deputy, are kept abreast of the planning as well as consulted on meeting security
issues. Members of the Monitoring Team met with the ACLU of Arizona and Community
Advisory Board (CAB) members to discuss preparations for the public meetings.
Selection of venues for both meetings was based on accessibility, adequate meeting space,
adequate parking and ease in locating the meeting site. The meetings in Fountain Hills and
Surprise were widely publicized. Advertisements, in both English and Spanish, appeared in print
media with the widest circulation in the areas in which the meetings were held. These ads were
also included in the media outlets' Facebook pages and websites. The ACLU also submitted the
meeting notice to numerous online calendars via their local radio media contacts.
b. Community Liaison Officer Monitor
Paragraph 113. [REMOVED] Within 90 days of the Effective Date, MCSO shall select or hire a
Community Liaison Officer (CLO) who is a sworn Deputy fluent in English and Spanish. The
hours and contact information of the CLO shall be made available to the public including on the
MCSO website. The CLO shall be directly available to the public for communications and
questions regarding the MCSO.]
Paragraph 114. In addition to the duties set forth in Title XIII of this order, The CLO the
Monitor shall have the following duties in relation to community engagement:
112;
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b. to provide administrative support for, coordinate and attend meetings of the Community
Advisory Board described in Paragraphs 117 to 111; and
c. to compile any Complaints, concerns and suggestions submitted to CLO him by members
of the public about the implementation of this Order and the Courts order of December 23,
2011, and its findings of fact and conclusions of law dated May 24, 2013, even if they dont
rise to the level of requiring formal action by IA or other component of the MCSO, and to
respond to Complainants concerns;
[d.
[REMOVED] to communicate concerns received from the community at regular meetings
with the Monitor and MCSO leadership; and]
[e.
[REMOVED] to compile concerns received from the community in a written report every
180 days and share the report with the Monitor and the Parties.]
At both of the community meetings, we and Plaintiffs representatives explained the breadth of
the Order to the community members in attendance. An MCSO representative provided a
summary of actions taken by the MCSO to comply with the Order. Community members were
also allowed to ask any question of these representatives and were given an opportunity to
comment on the information provided by these representatives. Community members were also
provided forms to document any concerns or complaints. After the meetings, members of the
Monitoring Team remained and spoke to several attendees who voiced their compliments and/or
concerns and opinions regarding MCSOs operations.
c. Community Advisory Board
Paragraph 115. MCSO The Monitor and Plaintiffs representatives shall work with community
representatives to create a Community Advisory Board (CAB) to facilitate regular dialogue
between the MCSO Monitor and community leaders, and to provide specific recommendations to
MCSO about policies and practices that will increase community trust and ensure that the
provisions of this Order and other orders entered by the Court in this matter are met.
We have worked with Plaintiffs to support and provide guidance to the three member
Community Advisory Board (CAB). We have had meetings and other communications with
CAB members to discuss and explain their responsibilities. Advisory Board members have
notified us that they have engaged in ongoing communication with community leaders.
Paragraph 116. The CAB shall have six three members, three to be selected by the MCSO and
three to be selected by Plaintiffs representatives. Members of the CAB shall not be MCSO
Employees or any of the named class representatives, nor any of the attorneys involved in this
case. However, a member of the MCSO Implementation Unit and at least one representative for
Plaintiffs shall attend every meeting of the CAB. The CAB shall continue for at least the length of
this Order.
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The CAB is currently comprised of three community members. None of these members are, or
have been, MCSO employees, named as class representatives in this matter, or are attorneys
involved in the Melendres litigation.
Paragraph 117. The CAB shall hold public meetings at regular intervals of no more than four
months. The meetings may be either public or private as the purpose of the meeting dictates, at
the election of the Board. The Defendants shall either provide a suitable place for such meetings
that is acceptable to the Monitor, or pay the Monitor the necessary expenses incurred in
arranging for such a meeting place. The Defendants shall also pay to the Monitor the additional
reasonable expenses that he will incur as a result of performing his obligations with respect to
the CAB including providing the CAB with reasonably necessary administrative support. The
meeting space shall be provided by the MCSO. The CLO Monitor shall coordinate the meetings
and communicate with Board members, and provide administrative support for the CAB.
The CAB participated in meetings with various members of the Monitoring Team and Plaintiffs
representatives during the reporting period. While individual CAB members have attended the
community meetings we have held and communicated with members of the community to
increase community trust, the CAB has not initiated and held any community meetings during
the reporting period as required by the Order. We will continue to work with the CAB and
continue to emphasize the criticality of their holding community meetings in accordance with the
requirements of Paragraph 117. We will provide the CAB logistical support as required.
Paragraph 118. During the meetings of the CAB, members will relay or gather concerns from
the community about MCSO practices that may violate the provisions of this Order and the
Courts previous injunctive orders entered in this matter and make reasonable efforts to address
such concerns. and transmit them to the Monitor for his investigation and/or action. Members
will may also hear from MCSO Personnel on matters of concern pertaining to the MCSOs
compliance with the orders of this Court.
We have met with CAB members to discuss the issue of transmitting to us any complaints
received by CAB members that may require investigation. In addition, we have discussed the
crucial role of the Community Advisory Boards ability to reach into the community in a way
that the Monitoring Team cannot. The Board members have been advised to compile concerns
regarding MCSO actions or compliance with the Order. To facilitate this effort, the ACLU of
Arizona has launched a bilingual website, ChangingMCSO.org/CambiandoMCSO.org.
According to the ACLU, the website serves as a place where the public can gather information
about the monitoring process, including the times and locations for community meetings,
Monitor reports, MCSO reports and other court filings. The website also includes a form for
filling out complaints, which will then be directly conveyed to the CAB and Monitoring Team.
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Section 12: Concluding Remarks

MCSO has made some noteworthy progress during the review period. We assess compliance
with 89 Paragraphs of the Order. MCSO is in Phase 1 compliance with 31 of those Paragraphs,
or 44%. In 19 Paragraphs, Phase 1 compliance is not applicable that is, a policy is not
required. MCSO is in Phase 2 compliance with 23 Paragraphs, or 26%.
Most of MCSOs gains in compliance stem from the successful delivery during this review
period of the Fourth and Fourteenth Amendment training, and the associated publication of
policies which were distributed and referenced in this training. MCSO must develop the
capacity and processes to develop and distribute policies that are not provided in conjunction
with a major training initiative. This includes acquiring the capability to document receipt and
appropriate orientation for each effected employee receiving the policies, in a manner that is
verifiable and auditable. Some of the critical policies required by the Order will be distributed in
this fashion, rather than as part of an agency wide training initiative.
While we recognize that by necessity each Patrol District must have some autonomy and the
flexibility to address crime and quality of life issues which are unique to its service area, we do
note that in too many instances, there is a lack of standardization from District to District in
practices impacted by the Order. These include use of agency forms such as FI cards,
documentation of work attendance, and supervisory expectations such as responding to calls with
their subordinates or review of completed reports. MCSO must be mindful of those practices
that should be standardized across the agency, including but not limited to those required by the
Order. High, and consistent quality of police service must be a standard value of the
organization and its most important deliverable to the public. Anything short of this is wholly
unacceptable.
While we will not comment on specific investigations that we are monitoring as part of our
expanded duties, a common theme associated with many of them is the mishandling of nonagency property that comes into the possession of MCSO. The suicide of a former deputy
brought this issue to the forefront, but subsequent investigations revealed how potentially
widespread the problems are, impacting every District and some specialized units. Most
troubling is MCSOs apparent lack of urgency to address the issue. As recently as our December
site visit, we were learning of unsecured property much of it potentially evidentiary in nature
being found in used and unused workspaces and in vehicles. Each District handles seized
property differently, but a common theme in each is a lack of generally accepted minimum
security measures and appropriate documentation.
Finally, as I stated in my opening comments, complying with the Order cannot be looked at as a
written exercise. To its credit, MCSO has made some progress in its technical compliance with
many of the Orders requirements. Much of the credit for this is attributable to CCIDs oversight
of compliance processes and its attention to detail in assembling appropriate documentation.
However, at the very same time that MCSO is diligently trying to demonstrate compliance with
the letter of the Order, several members of its leadership team including the Sheriff and the
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Chief Deputy are facing potential civil and criminal contempt charges for egregious behaviors
which demonstrate a clear lack of respect for the spirit of the Order. Until such time as intent
matches practice, MCSO will not be able to demonstrate to the satisfaction of the community and
the Court that meaningful changes have been made to the fabric of the organization.
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1
2
3
4
5
6
8
9
Manuel de Melendres, et al.,

Plaintiffs,
10
11
v.
12
Maricopa, County of, et al.,
13
ORDER
Defendants.
14
15
On May 7, 2015, after conducting an in camera review, this Court ruled that
16
Timothy Caseys mental impressions and opinions regarding litigation strategy based on
17
the Grissom information and investigation findings, which are contained in a November
18
6, 2013 letter, are protected from disclosure as opinion work-product, and that immunity
19
has not been waived. (Doc. 1053.) Subsequently, as reported in the Arizona Republic,1
20
Chief Deputy Sheridan made the following comments to the press regarding the Grissom
21
information: (1) The Sheriff and I felt that we should have our lawyer look into the
22
comment in the event that it was made, and it was credible, because it went to the judges
23
state of mind; (2) it sat in my desk drawer for a year and a half, until it came out in
24
court when the sheriff was on the stand . . . . We had no intention to do anything with it
25
because we were told it would be unethical for us to make a complaint on third-party
26
27
28
See Yvonne Wingett Sanchez, How Mexican Food Drew Couple Into Heart of Arpaio
Case,
Ariz.
Republic,
May
08,
2015,
available
at
http://www.azcentral.com/story/news/local/phoenix/2015/05/07/mexican-fooddrew%20grissom-couple-heart%20-sheriff%20-joe-arpaio-civil-contempt%20-case/70990098/.
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hearsay; and (3) Timothy Casey told Sheridan and Sheriff Arpaio that there wasnt
enough evidence to take the tip any further. On May 14, 2015, District Judge G. Murray
Snow referred to this Court an evaluation of whether the work-product immunity
continues to apply to the redacted materials appended to Doc. 1053 in light of Chief
Deputy Sheridans statements. (Doc. 1093.) On May 19, 2015, Defendants submitted to
this Court an Objection to Re-evaluation of Disclosures Made on Behalf of Tim Casey.
(Doc. 1107.)
The Court has reviewed Chief Deputy Sheridans statements and Defendants
Objection. For the reasons detailed below, the Court finds that Chief Deputy Sheridans
10
comments waived the work-product immunity only as to the portions of the redacted
11
materials Chief Deputy Sheridan directly disclosed. The Court finds that the waiver does
12
not extend to the other redacted portions of the November 6, 2013 letter that were not
13
directly disclosed by Chief Deputy Sheridan during the interview.
14
Sheridans limited disclosure to the media does not warrant the wholesale disclosure of
15
pages of work-product opinion and litigation strategy outlined by Mr. Casey in the
16
November 6, 2013 letter.
17
I.
Chief Deputy
Waiver of Work-Product Immunity
18
Work-product protections may be waived by voluntary disclosures or using the at-
19
issue materials as evidence at trial. See, e.g., United States v. Nobles, 422 U.S. 225, 239
20
(1975); Hernandez, 604 F.3d 1095, 1100 (9th Cir. 2010). The disclosure of work-product
21
materials to a third party can result in waiver if the material is disclosed in a manner
22
inconsistent with keeping it from an adversary. In re Chevron Corp., 633 F.3d 153, 165
23
(3d Cir. 2011) (citation and quotations omitted); Westinghouse Elec. Corp. v. Republic of
24
Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991).
25
Here, there is no dispute that Chief Deputy Sheridan made the comments detailed
26
in the Arizona Republic article,2 and that the comments are now in the public domain.
27
2
28
During the May 14, 2015 status conference, Chief Deputy Sheridan, who was in
attendance, confirmed that he made the statements attributed to him in the article. (Doc.
1097 at 10:1-11:8.)
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The Court finds that this disclosure is inconsistent with keeping the protected materials
on those same topics from an adversary.
In their Objection, Defendants argue that Chief Deputy Sheridans comments do
not present any new information or evidence that suddenly put[s] Mr. Caseys mental
impressions and opinions of the Grissom investigation at issue in the contempt
proceedings. Therefore, the news article did not waive the work-product doctrine and the
mental impressions of Mr. Casey are protected. (Doc. 1107 at 4-5.) However, Chief
Deputy Sheridans statements to the press directly, and voluntarily, disclosed Mr. Caseys
conclusions that there was not enough evidence to pursue the Grissom information and
10
use of the information would be unethical. Accordingly, at a minimum, Chief Deputy
11
Sheridans comments waived the work-product protection as to those conclusions as they
12
appear in the November 6, 2013 letter.
13
II.
Scope of Waiver
14
The Court must now determine whether this waiver extends to the other redacted
15
portions of the November 6, 2013 letter that were not directly disclosed by Chief Deputy
16
Sheridan. The Court finds that it does not.
17
Pursuant to Rule 502(a) of the Federal Rules of Evidence, waiver of work-product
18
may extend to undisclosed materials if: the disclosed and undisclosed communications
19
or information concern the same subject matter; and [] they ought in fairness to be
20
considered together. However, the work product doctrine is distinct from and broader
21
than the attorney-client privilege. Nobles, 422 U.S. at 238 n.11. Work product
22
immunity furthers the clients interest in obtaining complete legal advice and creates a
23
protected area in which the lawyer can prepare his case free from adversarial scrutiny.
24
Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1024-25 (7th Cir. 2012) (citing Hickman,
25
329 U.S. 495, 511 (1947)). Accordingly, disclosure of some documents does not
26
necessarily destroy work-product protection for other documents of the same character.
27
Id. (quoting 8 Wright & Miller, Federal Practice & Procedure, 2024).
28
Further, opinion work-protect is entitled to greater protection. See Fed. R. Civ. P.
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26(b)(3)(B) (If the court orders discovery of those materials [for which a party has a
substantial need], it must protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a partys attorney or other representative
concerning the litigation.). In light of this heighted protection, [w]hile certainly actual
disclosure of pure mental impressions may be deemed waiver . . . . the underlying
rationale for the doctrine of subject matter waiver has little application in the context of a
pure expression of legal theory or legal opinion. In re Martin Marietta Corp., 856 F.2d
619, 626 (4th Cir. 1988); see also In re EchoStar Communs. Corp., 448 F.3d 1294, 1302
(Fed. Cir. 2006) ([W]ork product waiver only extends to factual or non-opinion work
10
product concerning the same subject matter as the disclosed work product.); Cox v.
11
Admr U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994) ([T]he subject-matter
12
waiver doctrine does not extend to materials protected by the opinion work product
13
privilege.).
14
Here, Chief Deputy Sheridan disclosed to the press Mr. Caseys conclusions that
15
there wasnt enough evidence to take the tip any further and use of the Grissom
16
information would be unethical. Chief Deputy Sheridans statements, however, do not
17
specifically discuss Mr. Caseys substantive analysis contained in the November 6, 2013
18
letter regarding use of the Grissom information and investigation findings. The Court
19
does not find that these limited statements warrant the disclosure of pages of Mr. Caseys
20
opinion work-product. Further, as the Court has already found, that analysis is not at
21
issue in the current proceedings. For these reasons, the Court finds that Chief Deputy
22
Sheridans waiver of the work-product immunity is limited to the specific information he
23
disclosed and does not extend to the other redacted portions of the November 6, 2013
24
letter. The Court will remove the redactions of those portions of the letter no longer
25
protected by the work-product immunity.3
26
27
28
The newly-released text in the November 6, 2013 letter can be found at the end of
Section A (page 2) and the beginning of Section E (pages 13 and 14).
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III.
Conclusion
For the reasons discussed above, the Court finds that Chief Deputy Sheridans
statements to the press waived the work-product protections as to the redacted portions of
the November 6, 2013 letter that are specifically addressed in those statements. The
waiver, however, does not extend to the other redacted portions of the letter that were not
discussed by Chief Deputy Sheridan in the interview. A copy of the newly-redacted
November 6, 2013 letter is attached to this Order.
Dated this 21st day of May, 2015.
9
10
Honorable John Z. Boyle

United States Magistrate Judge
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1
2
3
4
5
Michele M. Iafrate, Bar #015115

Iafrate & Associates
Tel: 602-234-9775
A. Melvin McDonald, Bar #002298

Jones, Skelton & Hochuli, P.L.C.
2901 North Central Avenue, Suite 800
Telephone: (602) 263-1700
Fax: (602) 200-7847
Attorneys for Defendant Joseph M. Arpaio
6
7
10
15
Barry Mitchell Bar #013975

Lee Stein Bar #12368
Mitchell, Stein, Carey, PC
One Renaissance Square
Telephone: (602) 358-0290
Fax: (602) 358-0291
barry@mitchellsteincarey.com
lee@mitchellsteincarey.com
16
Attorneys for Gerard Sheridan
11
12
13
14
17
18
DISTRICT OF ARIZONA
19
20
Manuel de Jesus Ortega Melendres, et al.,

Plaintiff,
21
v.
22
23
Motion for Recusal or

Disqualification of District Court
Judge G. Murray Snow

Defendant.
24
25
NO. CV 07-02513-PHX-GMS
I.
INTRODUCTION
26
No doubt, moving for the recusal or disqualification of any sitting judge is a
27
serious matter. Under statute, case law, and judicial canons, the perception of judicial bias
28
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and the appearance of impropriety, punctuated by the material witness status of the
presiding judge's spouse, mandate the recusal and disqualification of the Honorable G.
Murray Snow. Accordingly, Defendant Arpaio and Chief Deputy Gerard Sheridan have
no other choice but to file this Motion.
Pursuant to 28 U.S.C. 144 and 455, Defendant Arpaio and Chief Deputy
Gerard Sheridan respectfully move for recusal and/or disqualification of the Honorable G.
Murray Snow. (Affidavit of Sheriff Joseph M. Arpaio, attached as Exhibit 1). Defendant
Arpaio Chief Deputy Gerard Sheridan present this Memorandum and file the attached
affidavit and corresponding Certificates of Filing in Good Faith by Counsel. Defendant
10
Arpaio and Chief Deputy Gerard Sheridan respectfully request the transfer of this case to
11
a different judge, immediately, as provided by 28 U.S. Code 144, and the
12
disqualification or recusal of Judge Snow in further related proceedings concerning
13
Defendant Arpaio and Chief Deputy Gerard Sheridan.1
14
By his own official inquiry, statements, and questions in open court on the
15
record, one of the investigations into which Judge Snow unexpectedly inquired during
16
recent contempt proceedings concerns his spouse, Sheri Snow. No reasonable person with
17
knowledge of the facts can deny that Judge Snow is now investigating and presiding over
18
issues involving his own family.
19
disqualification. Furthermore, the fact that Judge Snows wife is now a material witness,
20
while dispositive, is not the only appearance of bias and impropriety requiring recusal.
This alone is sufficient to mandate recusal and
21
Defendant Arpaio and Chief Deputy Gerard Sheridan therefore move: (1)
22
for Judge Snow to recuse himself based upon the facts and law stated in the Motion for
23
Change of Judge for Cause; or (2) if Judge Snow declines to recuse himself, Defendant
24
Arpaio and Chief Deputy Gerard Sheridan move that this Motion for Change of Judge for
25
26
27
28
The legal opinion of Professor Ronald Rotunda, a renowned expert on

Professional Responsibility and Constitutional Law, is attached and incorporated in
support of this Court's disqualification. (Exhibit 10). As Professor Rotunda explains in his
declaration, Judge Snow now has- by his own admission- an incurable personal interest
in the case, at least in this new phase of this case as it has metastasized into something
entirely new. Id.
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Cause be assigned to another United States District Court judge.
II.
STATEMENT OF FACTS RELEVANT TO MOTION

A.
Melendres Preliminary and Permanent Injunction
In December 2007, Latino motorists brought a class action under 42 U.S.C.
1983 against the Maricopa County Sheriffs Office (MCSO) and Sheriff Joseph
Arpaio, in his official capacity only, alleging that Defendants engaged in a custom, policy,
and practice of racially profiling Latinos, and a policy of unconstitutionally stopping
persons without reasonable suspicion that criminal activity was afoot, in violation of
Plaintiffs Fourth and Fourteenth Amendment rights.2 [Doc. 1, amended by Doc. 26.] The
10
Plaintiffs sought declaratory and injunctive relief to prevent Defendants from engaging in
11
racial profiling and exceeding the limits of their authority to enforce federal immigration
12
law. [Doc. 1 at 1920.]
13
After pre-trial discovery was closed, the parties filed competing motions for
14
summary judgment; Plaintiffs motion included a request for the entry of a preliminary
15
injunction. [Docs. 413, 421.] Judge Snow granted the Plaintiffs motion in part, and
16
entered a preliminary injunction on December 23, 2011. [Doc. 494.] The injunction
17
prohibited MCSO from detaining individuals in order to investigate civil violations of
18
federal immigration law, and from detaining any person based on actual knowledge,
19
without more, that the person is not a legal resident of the United States. [Id. at 39.] The
20
injunction further stated that, absent probable cause, officers may only detain individuals
21
based on reasonable suspicion that criminal activity may be afoot. [Id. at 5.]
22
Seventeen months later, approximately nine months following a bench trial,
23
and one week before the recall petition for Sheriff Arpaio was due, Judge Snow issued his
24
Findings of Fact and Conclusions of Law in May 2013, in which he found MCSO liable
25
for a number of constitutional violations in its operations and procedures. [Doc. 579 at
26
11531.] The timing of the decision was curious and problematic, as it resulted in
27
28
MCSO, a non-jural entity, is no longer a named defendant in this action.

Maricopa County has recently become a defendant in this action.
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immediate marches and protests against Defendant Arpaio at a crucial point in his
political career.
After allowing the Parties, at their request, to attempt to negotiate the terms
of a consent decree, in October 2013 Judge Snow ordered supplemental injunctive relief
to remedy the violations outlined in his Findings and Conclusions and defined
enforcement mechanisms for such remedies. [Doc. 606.]
B.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Judge Snows Determination that a Civil Contempt Hearing was

Necessary.
On May 14, 2014, Defendants, on their own initiative, informed Judge
Snow and Plaintiffs counsel that a former member of the Human Smuggling Unit,
Deputy Charley Armendariz, was found to be in possession of hundreds of personal items,
many of which appeared to have been appropriated from members of the Plaintiff class.
[See Doc. 700 at 1213.] Deputy Armendariz was a regular participant in the HSUs
saturation patrols, both large and small scale. He also testified at trial and was personally
implicated by the allegations of two representatives of the Plaintiff class regarding his
involvement in a 2008 immigration sweep in which two Hispanic American citizens were
allegedly profiled and illegally detained on the basis of their suspected undocumented
status. [Doc. 576.] After his apparent suicide, in addition to the numerous personal items
apparently seized from persons he had stopped, MCSO also discovered numerous video
recordings of traffic stops that Armendariz had conducted, apparently going back several
years. [Doc. 700 at 11.] Some of those videos revealed what MCSO characterized as
problematic activity on the part of Deputy Armendariz during the stops. [Id. at 35, 57.]
Other officers, and at least one supervisor of Armendariz who also testified at the trial in
this action, were depicted on these recordings during one or more problematic stops. [Id.
at 35.]
In light of the inappropriate activity observable on Deputy Armendarizs
videotapes and the questions surrounding other officers use of video and audio recording
devices during the time period in which pre-trial discovery in this case was occurring,
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Judge Snow ordered Defendants to immediately formulate and obtain the Monitors
approval of a plan designed to retrieve all recordings made by officers that might still be
in existence. [Id. at 2527.] The ensuing investigations unearthed documents apparently
requiring officers to make such recordings during the period of time relevant to Plaintiffs
claims, and that those here-to-fore unknown documents and recordings were never
disclosed.
Moreover, the Armendariz videotapes resulted in administrative interviews
with MCSO personnel.
Those interviews have apparently revealed that, for at least
seventeen months after Judge Snow issued his preliminary injunction, Defendants, as a
10
matter of regular practice and operation, continued to enforce federal immigration law by
11
conducting immigration interdiction operations, and detaining persons after officers
12
concluded that there was no criminal law basis for such detention,.
13
Accordingly, Judge Snow determined that civil contempt proceedings were
14
necessary to determine if MCSO, Sheriff Joseph Arpaio, Chief Deputy Gerald Sheridan
15
and other MCSO leadership acted in contempt of this Courts lawful writs, processes,
16
orders, rules, decrees, or commands by (1) failing to implement and comply with the
17
preliminary injunction; (2) violating their discovery obligations; and (3) acting in
18
derogation of this Courts May 14, 2014 Orders. [Doc. 880 at 26.] Moreover, Judge
19
Snow noted that the development of the evidentiary record in the contempt proceedings
20
would permit him to evaluate whether civil remedies can vindicate the rights of the
21
Plaintiff class, or if criminal remedies are necessary.
22
C.
Pre-Civil Contempt Hearing Events
23
On March 17, 2015, Defendants Sheriff Arpaio and the MCSO filed an
24
Expedited Motion to Vacate Hearing and Request for Entry of Judgment. [Doc. 948.]
25
The purpose of that Motion was to convey to the Court and to Plaintiffs that Defendants
26
Joseph M. Arpaio and Maricopa County Sheriffs Office, and identified nonparty Chief
27
Deputy Gerard Sheridan (collectively, Defendants) consent[ed] to a finding of civil
28
contempt against them and the imposition of remedies designed to address their conduct.
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[Id. at 1.] Defendants expressed their most sincere remorse to the Court and to Plaintiffs
and explicitly acknowledged that they had violated the Courts Preliminary Injunction.
[Id. at 2.] Accordingly, Defendants adopted and stipulated to the facts as stated in the
Courts Order to Show Cause, [Doc. 880] as well as to the entry of an order finding them
in civil contempt of court. [Doc. 948 at 3.]
Judge Snow demanded, before accepting the proposal, that Arpaio have
skin in the game, specifically that Defendant Arpaio pay a sanction from his personal
funds and not from any defense funds supporting Defendant Arpaio. It is noteworthy that
Defendant Arpaio is only named as a defendant in his official capacity in this lawsuit. To
10
this end, Defendants attached a proposed list of stipulated remedial measures that
11
Defendants had agreed to implement, including the payment of $100,000 from Defendant
12
Arpaios personal funds to a civil rights organization and that a fund would be created to
13
compensate victims of the Defendants violation of the Courts December 2011
14
injunction.3 In light of these remedial measures, Defendants requested that Judge Snow
15
vacate the evidentiary hearing to determine the existence of the admitted contempt. [Doc.
16
948 at 4.]
17
Despite the admitted violation of this Courts preliminary injunction and the
18
remedial measures Defendants sought to implement, including Defendants agreeing to
19
Plaintiffs settlement terms that also would have mooted the need for contempt
20
proceedings, Judge Snow refused to vacate the contempt proceedings. [Doc. 1007.] In
21
fact, he requested that the United States Attorney for the District of Arizona attend the
22
proceedings to determine whether sufficient evidence would be presented to justify
23
24
25
26
27
28
The remedies proposed by Arpaio included: (1) acknowledging in a public forum

the violations of this Courts orders; (2) Sheriff Arpaio and MCSO will seek from
Maricopa County the creation and initial funding of a reserve to compensate victims of
MCSOs violation of the Courts December 2011 injunction; (3) develop and implement a
plan to identify victims of the Courts December 2011 order; (4) permit the Monitor to
investigate any matter that relates to Defendants violation of the Courts preliminary
injunction; (5) move to dismiss the then pending appeal in the Ninth Circuit Court of
Appeals; and (6) pay for Plaintiffs reasonable attorneys fees that were necessary to
ensure compliance with this Courts Orders. [Doc. 748, Ex. B].
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criminal contempt proceedings. In essence, Judge Snow requested that the U.S. Attorney
function as his investigator to determine whether criminal contempt of his Preliminary
Injunction had occurred.
invitation to participate in this capacity by letter and subsequently in open court.
D.
6
7
8
9
10
11
12
13
14
15
16
17
20
21
22
23
24
25
26
27
28
Judge Snows Surprise Examination of Unexpected, Irrelevant Subjects

During Contempt Proceedings.
On April 23, 2015, Judge Snow embarked on his own inquiries during the
testimony of Sheriff Arpaio. Those inquiries were entirely unrelated to the three grounds
that were the defined and noticed subjects of the contempt proceeding.4 Judge Snow
continued these inquiries when he examined Chief Deputy Sheridan following Sheriff
Arpaios testimony. These lines of questioning were based on Judge Snows reading of,
reference to, and reliance on hearsay statements contained in a Phoenix New Times blog
post by Stephen Lemons. [Phoenix New Times Blog Post, attached as Exhibit 2; see also
4/23/15 Transcript at 648-649, attached as Exhibit 3]. Importantly, this article had never
been disclosed and no advance notice was provided to any of the Defendants or their
counsel in the contempt proceeding that the article would be discussed or relied upon by
Judge Snow.
1.
18
19
The U.S. Attorney appropriately declined Judge Snows
The Grissom Investigation
Specifically, Judge Snow questioned Sheriff Arpaio regarding a blog

posting by Stephen Lemons in the Phoenix New Times that detailed an alleged
investigation by Sheriff Arpaio regarding comments made by Judge Snows wife
(Grissom Investigation). [4/23/15 Transcript at 643-644].
During this line of
questioning, Judge Snow questioned Sheriff Arpaio regarding whether he was aware if
Judge Snow or any of his family members had ever been investigated by anyone. [Id. at
647:8-17]. In response, Sheriff Arpaio testified that he had received a communication in
4
Again, the issues of the contempt proceeding were clearly defined: (1) failing to
implement and comply with the preliminary injunction; (2) violating [ ] discovery
obligations; and (3) acting in derogation of this Courts May 14, 2014 Orders. (Doc. 880
at 26.)
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August 2013 from Karen Grissom regarding comments that Judge Snows spouse had
made to her in a restaurant about Judge Snows hatred for Sheriff Arpaio and his desire to
do anything to get Sheriff Arpaio out of office. [Id. at 654-55; 4/24/15 Transcript at
962:14-16]. It was ultimately revealed that a private investigator hired by the Sheriffs
counsel had interviewed three individuals: Karen Grissom, her husband Dale Grissom,
and their adult son Scott Grissom, regarding the reliability of Mrs. Grissoms report.
[4/23/15 Transcript at 655].
8
9
The private investigators interviews of these individuals determined that

Mrs. Grissom was credible in the following statement:
10
11
12
13
14
15
16
[Facebook Message, attached as Exhibit 5; 4/23/15 Transcript at 655]. The Grissoms
17
have been unwavering in their recollection of the comments Judge Snows wife made
18
regarding Judge Snows hatred toward Sheriff Arpaio and his desire to do anything to get
19
him out of office. See 10/26/13 Transcript of Karen Grissom at 12:18-21, 14:18-20, 19,
20
28:10-18 attached as Exhibit 6; 10/28/13 Transcript of Dale Grissom at 13:21-25, 16:5-12,
21
22:19-23:9, attached as Exhibit 7; 5/20/15 Arizona Republic Article, attached as Exhibit
22
8].
23
Although the interviews of these individuals were deemed credible, in that
24
they corroborated Judge Snows spouse had made these statements, Sheriff Arpaio never
25
went any further than just verifying that [a] conversation [between Karen Grissom and
26
Sheri Snow] . . . occurred. [4/24/15 Transcript at 966:11-16]. Moreover, to date, neither
27
Judge Snow nor Mrs. Snow have denied that Mrs. Snow made the statements attributed to
28
her.
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2.
In addition, Judge Snow questioned Sheriff Arpaio and Chief Deputy
Sheridan regarding a second investigation, also unrelated to the three clearly defined
subjects of the contempt proceedings. Judge Snow inquired regarding athe unrelated
investigation and MCSOs use of a confidential informant, Dennis Montgomery,
involving e-mail breaches, including the e-mails of certain attorneys representing the
Sheriff, wiretaps of the Sheriff and judges, and computer hacking of 50,000 bank accounts
of Maricopa County citizens. [4/23/15 Transcript at 647:1-3, 649; 4/24/15 Transcript at
1003:9-11; 1006:6-10].
Neither the Grissom investigation nor the Montgomery investigation
10
11
involved any investigation of Judge Snow or his family. [4/23/15 Transcript at 649].
12
E.
13
14
15
16
17
18
19
20
23
24
25
26
27
Post Contempt Proceeding Expansion of Monitors Duties by Judge

Snow
As the sole arbiter of the matters relevant to the contempt proceedings,
Judge Snow has also utilized the Melendres Monitor to expand his investigation into these
unrelated issues. In an attempt to justify this expansion of power, Judge Snow is trying to
create a connection between the Grissom and Montgomery investigations and a
speculative pattern of knowing defiance rather than inadvertence of Judge Snows
Orders and necessary remedies for members of the Plaintiff class. [5/14/15 Transcript at
49:15-21, attached as Ex. 9]. In doing so, he has granted the Monitor broad leeway in
determining what matters are pertinent to the current contempt proceedings. [Id. at 51].
21
22
The Montgomery Investigation
When Defendant Arpaios counsel requested clarification regarding the

Monitors investigatory powers, Judge Snow refused. Instead, Judge Snow stated that he
is not going to limit the Monitors authority and [hes] not going to require [the Monitor]
to provide [Defendant Arpaios counsel] with advance notice of what [the Monitor] wants
to inquire into. [Id. at 53:15-21]. Defendant Arpaios counsel objected to the Courts
morphing of the OSC hearing into something quite different than the three subjects that
were a part of the original OSC Order and the expansion of the Monitors powers as a
28
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violation of her clients Due Process rights. Judge Snow overruled her objection and
refused to unduly shackle [the Monitor]. [Id. at 56:20]. Thus, the Monitor now has
court ordered unlimited investigatory power.
Accordingly, despite the Ninth Circuits recent Order, Judge Snow has
improperly expanded the authority and investigatory powers of the Monitor into matters
completely immaterial and irrelevant to the contempt proceedings and issues, as framed
by Judge Snows Order to Show Cause (e.g., the Grissom and Montgomery investigations,
and most recently MCSOs long past investigation into the authenticity of President
Obamas birth certificate).5
10
III.
JUDGE SNOW MUST RECUSE HIMSELF FROM THIS ACTION.
11
The right to a neutral and detached judge in any proceeding is protected by
12
the Constitution and is an integral part of maintaining the publics confidence in the
13
judicial system. Ward v. City of Monroeville, 409 U.S. 57, 61-62 (1972). Accordingly, in
14
order to preserve the integrity of the judiciary, and to ensure that justice is carried out in
15
each individual case, judges must adhere to high standards of conduct. York v. United
16
States, 785 A.2d 651, 655 (D.C. 2001).
17
Cannon 2 of the Code of Conduct for United States Judges provides that
18
[a] judge should avoid impropriety and the appearance of impropriety in all activities.
19
Avoidance of the appearance of impropriety in all judicial activities is important because:
20
Public confidence in the judiciary is eroded by irresponsible or

improper conduct by judges. A judge must avoid all
impropriety and appearance of impropriety. This prohibition
applies to both professional and personal conduct. A judge
must expect to be the subject of constant public scrutiny and
accept freely and willingly restrictions that might be viewed as
burdensome by the ordinary citizen.
21
22
23
24
25
26
27
28
The Ninth Circuit has advised Judge Snow against extending the Monitors
powers into areas not narrowly tailored to address the violations of federal law at issue in
this case. Id. (holding that the injunction improperly requires the Monitor to consider the
disciplinary outcomes for any violations of departmental policy and to assess whether
Deputies are subject to civil suits or criminal charges ... for off-duty conduct.). Judge
Snow now seeks to expand the authority of the Monitor without regard to the Ninth
Circuits Order.
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Comment 2A to Cannon 2.
Cannon 3 requires that [a] judge shall disqualify himself or herself in a
proceeding in which the judges impartiality might reasonable be questioned, including
but not limited to instances in which:
5
6
(a) the judge has a personal bias or prejudice concerning a

party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
...
(c) the judge knows that the judge [has an] interest that
could be affected
substantially by the outcome of the
proceeding;6
9
10
11
(d) the judge or the judges spouse, or a person related to

either within the third degree of relationship, or the spouse of
such a person is:
12
13
(iii) known by the judge to have an interest that could

be substantially affected by the outcome of the
proceeding; or
14
15
(iv) to the judges knowledge likely to be a material

witness in the proceeding;
16
17
18
19
20
21
22
Cannon 3 is, in essence, codified by 28 U.S.C. 455. Section 455(a)

covers circumstances that appear to create a conflict of interest, whether or not there is
actual bias. Preston v. United States, 923 F.2d 731, 734 (9th Cir.1991) (citation omitted)
(emphasis in original). In contrast, [s]ection 455(b) covers situations in which an actual
conflict of interest exits, even if there is no appearance of one. Id. (citation omitted).
Given the developments in this case, both provisions require recusal.
23
24
25
26
27
Proceeding includes pretrial, trial, appellate review, or other stages of

litigation. Cannon 3(C)(3)(d).
28
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A.
28 U.S.C. 455(b) Requires Mandatory Disqualification of Judge Snow.7
Section (b) of 28 U.S.C. 455 provides for mandatory recusal without
investigation into the appearance of partiality by a judge. Preston, 923 F.2d at 734 (9th
Cir. 1991) (We need not explore whether an appearance of partiality existed in this case.
The drafters of section 455 have accomplished this task for us.).
Section 455(b) requires disqualification under Section 455(a), even absent
any evidence of actual bias. Mangini v. United States, 314 F.3d 1158, 1161 (9th Cir.)
opinion amended on denial of reh'g, 319 F.3d 1079 (9th Cir. 2003); see also Preston, 923
F.2d at 734 (addressing Section 455(b)(2), which requires disqualification when the judge
10
either served as a lawyer or a lawyer with whom he previously practiced law served as a
11
lawyer during such association in the matter in controversy). [I]t is sufficient to state that
12
section 455(b) provides us with a concrete example where the appearance of partiality
13
suffices to establish a ground for recusal under section 455(a) even absent actual bias.
14
Preston, 923 F.2d at 734 (emphasis added).
15
1.
16
17
28 U.S.C. 455(b)(5) Requires Disqualification of Judge Snow

Due to Spousal Relationship.
Under 28 U.S.C. 455(b)(5), a judge shall disqualify himself in the

following circumstances:
18
19
(5) He or his spouse, or a person within the third degree of

relationship to either of them, or the spouse of such a person:
20
21
(ii) Is acting as a lawyer in the proceeding;
22
(iii) Is known by the judge to have an interest that could be

substantially affected by the outcome of the proceeding; or
23
(iv) Is to the judges knowledge likely to be a material
24
25
26
27
As a matter of style, most courts look first to Section 455(b), which provides that
a judge is automatically recused upon the existence of certain familial and/or financial
relationships, and then to the more general terms of 455(a).
In re Aetna Cas. & Sur. Co., 919 F.2d 1136, 1143 (6th Cir. 1990). Accordingly,
this Motion is organized in accordance with this principle.
28
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1
2
witness in the proceeding.

(Emphasis added).
This requirement is strictly imposed. Preston, 923 F.2d at 734 (9th Cir.
1991). For example, a judge was required to recuse himself when it was learned that his
daughter had participated in certain early depositions in a case, even though the daughter's
role in the depositions was minimal and the firm she was working for was no longer
involved in the case. See In re Aetna Cas. & Sur. Co., 919 F.2d 1136 (6th Cir. 1990).
Here, Judge Snows recusal is required for three reasons:

First, a person within the third degree of relationship to Judge Snow is
9
10
affiliated with Plaintiffs Counsel.
Judge Snows brother-in-law is an attorney with
11
Covington Burling. Early in this action, Defendant Arpaios former counsel waived this
12
conflict. However, in light of recent events, reconsideration of this previously waived
13
conflict is necessary.
14
Second, the interests of Judge Snow and his spouse are substantially
15
affected by the outcome of this proceeding. Judge Snow himself has recognized that the
16
documents involved in the Montgomery investigation appear to allege or suggest that this
17
Court had contact with the Department of Justice about this case before the Court was
18
ever assigned to it. [5/14/15 Transcript at 45:17-19]. Moreover, Judge Snow stated on
19
the record that the Montgomery Investigation appears to allege that the random selection
20
process of this Court was subverted so that the case was deliberately assigned to him and
21
that he had conversations with Eric Holder and Lanny Breuer about this case. [Id. at
22
45:19-25]. Judge Snow, therefore, has an interest that could be substantially affected by
23
the outcome of the proceeding because his reputation is squarely at stake. [Id. at 46:23-
24
47:7 (recognizing the potential of a bogus conspiracy theory to discredit the court)]; see
25
also 28 U.S.C. 455(b)(4) (requiring disqualification when a Judge knows that he
26
[has] any other interest that could be substantially affected by the outcome of the
27
proceeding.).
28
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Finally, and most importantly, the fact that the Judge himself believes that
the Grissom investigation is relevant to the contempt proceeding establishes his spouse as
a material witness.
proceeding (i.e., whether she made the statement at issue and/or what she meant by it and
the context in how it was made). Moreover, regardless of the irrelevance of the Grissom
and Montgomery investigations to the issue of whether the admitted contempt of the
Preliminary Injunction occurred, Judge Snow infused himself and the materiality of his
wife as a witness and her uncontradicted statement into the contempt proceeding.
Whether a sitting judge is admittedly biased toward a defendant in his Court and will do
10
anything to ensure he is not re-elected is without question a conflict that creates
11
grounds for recusal.8 Accordingly, even if at some point there is a denial that Mrs. Snow
12
made the statements at issue, the conflict that is created is unwaivable under 455(b). See
13
28 U.S.C. 455(e) (No justice, judge, or magistrate judge shall accept from the parties to
14
the proceeding a waiver of any ground for disqualification enumerated in subsection
15
(b).). Judge Snow is solely responsible for making his spouse a material witness to this
16
proceeding.9
17
2.
18
19
20
21
22
23
has a personal bias or prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding. Under Section 455(b), Judge Snow has
made comments that indicate he has a personal bias or prejudice concerning a party,
namely Sheriff Arpaio.
As revealed during the contempt proceeding, Judge Snow has engaged in
25
27
28
28 U.S.C. 455(b)(1) Requires Disqualification of Judge Snow

Due To His Personal Bias.
Under 28 U.S.C. 455(b)(1), a judge shall disqualify himself [w]here he
24
26
In fact, Mrs. Snow is undoubtedly a material witness in this
Implicitly, Judge Snow has complete and unfettered access to a material witness
in this case, his wife.
9
For the same reasons, Judge Snows wife has an interest that could be
substantially affected by the outcome of the proceeding because her reputation is also
squarely at stake under 42 U.S.C. 455(b)(5).
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outside investigations with regard to matters that he thought to be relevant and that he
infused into the proceeding. [Rotunda Declaration 20, attached as Ex. 10]. Whats
more, he apparently took evidence outside of court. [Id.]. Although Judge Snow did not
disclose the identity of the individual with whom he spoke regarding this matter, he
clearly stated that he engaged in an investigation outside the courtroom during a lunch
break. [Id.]. In addition, Judge Snow also asked leading questions on irrelevant matters
during the contempt proceeding.
[Id. at 19, 21].
In addition, he gave his own
testimony during the proceeding. [Id. at 22-23].
Furthermore, Judge Snow was
argumentative with witness Chief Deputy Sheridan when he was on the stand.
He
10
interrupted Chief Deputy Sheridan and challenged his decision to make an informant,
11
Dennis Montgomery, a confidential informant in an investigation unrelated to the
12
contempt proceeding. [Id. at 24]. Judge Snow has also ordered the production of
13
documents that may be protected by the work product doctrine or attorney client privilege.
14
Those documents pertain to an attorney, Larry Klayman, and his client, Dennis
15
Montgomery. Mr. Klayman is not an attorney who has appeared in this case and Mr.
16
Montgomery is not a party to this action. [Id. at 25].
17
Moreover, Judge Snows inquiry into matters unrelated to the contempt
18
proceeding deprived Sheriff Arpaio of his due process constitutional rights.
19
minimum, a Court must provide an alleged contemnor with notice and an opportunity to
20
be heard. Intl Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 827
21
(1994). The concept of notice includes prior disclosure and provision of documents used
22
at trial and prior identification of areas of examination. See generally, Stuart v. United
23
States, 813 F.2d 243, 251 (9th Cir.1987), rev'd on other grounds, 489 U.S. 353 (1989); DP
24
Aviation v. Smiths Indus. Aerospace & Def. Sys. Ltd., 268 F.3d 829, 846-47 (9th Cir.
25
2001). Such advance notice is consistent with an alleged contemnors right to present a
26
defense. See United States v. Powers, 629 F.2d 619, 625 (9th Cir. 1980). Further, the law
27
requires progressively greater procedural protections for indirect contempts of complex
28
injunctions that necessitate more elaborate and in-depth fact-finding, as in this case. See
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Intl Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 at 833-34. Here,
although Defendant Arpaio testified that he previously read the Phoenix New Times blog
Judge Snow utilized to justify his unauthorized line of questioning (Transcript, 643:23-
24), neither the Court nor any other party previously provided it to Defendants nor gave
notice that Defendant Arpaio or Chief Deputy Sheridan would be questioned about it. It
was not identified as an exhibit. Neither was Defendant Arpaio nor Chief Deputy Sheridan
provided notice that this subject area would be addressed. In contempt proceedings,
procedural protections such as prior notice are crucial in view of the heightened potential
for abuse posed by the contempt power. Taylor v. Hayes, 418 U.S. 488, 498 (1974).
10
Judge Snows failure to abide by these fundamental and basic constitutional requirements,
11
demonstrates further evidence of the perception of an unwaivable bias towards Sheriff
12
Arpaio.
13
Finally, Judge Snow has improperly expanded the authority and
14
investigatory powers of the Monitor into matters completely immaterial and irrelevant to
15
the contempt proceedings and issues, as framed by his own Order to Show Cause (e.g., the
16
Grissom and Montgomery investigations, and most recently MCSOs long past
17
investigation into the authenticity of President Obamas birth certificate). Judge Snows
18
willingness to ignore Defendant Arpaios and Chief Deputy Sheridans constitutional
19
rights in favor of granting the Monitor unfettered access to further his own
20
investigational curiosities or agenda further demonstrates a perception of bias.10
21
B.
22
Under 28 U.S.C. 455(a), a judge shall disqualify himself in any
23
24
25
26
27
28
28 U.S.C. 455(a) Requires Disqualification of Judge Snow Because His

Impartiality is Questionable.
10
Additionally, the procedure outlined by the Court in its Order (Doc. 1032) places
Defendants in an untenable position in which they must immediately provide documents
pursuant to the Courts Order in such a way that sacrifices the attorney-client and work
product privileges. The two Deputy County Attorneys who quickly reviewed documents
on April 23, 2015 made random selections throughout the documents to discern what the
documents were and made a cursory check for any privileged documents. They did not
view any privileged documents; however, time did not allow for a careful or thorough
review. It is probable that privileged documents were given to the monitors.
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proceeding in which his impartiality might reasonably be questioned. A violation of
section 455(a) occurs even if the judge is unaware of the circumstances that created the
appearance of impropriety. Lifjeberg v. Health Services Acquisition Corp., 486 U.S. 8847
(1988). In determining whether disqualification is proper, courts apply an objective test:
whether a reasonable person with knowledge of all the facts would conclude that the
judge's impartiality might reasonably be questioned. Clemens v. U.S. Dist. Ct. for
Central Dist. of California, 428 F.3d 1175, 1178 (9th Cir. 2005) (citations omitted). The
reasonable person in this context means a well-informed, thoughtful observer, as
opposed to a hypersensitive or unduly suspicious person.
Id. (citations omitted).
10
Further, the grounds for disqualification must arise from extrajudicial factors, namely,
11
factors not related to the judicial proceeding at hand. Id.
12
Under Arizona Judicial Canon Rule 2.11, the standard for disqualification is
13
identical to the disqualification standard under 28 U.S.C. 455(a). Rule 2.11 states that
14
the Judge shall disqualify himself in any proceeding in which his impartiality might
15
reasonably be questioned. For instance, a Judge shall disqualify himself if his spouse or a
16
person within the third degree of relationship to either of them is a person who has more
17
than a de minimis interest that could be substantially affected by the proceeding or is
18
likely to be a material witness in the proceeding. See Rule 2.11(A)(2)(c)(d). In addition,
19
the comments under Rule 2.11 provide guidance. For instance, comment 2 specifically
20
states that: A Judges obligation not to hear or decide matters in which disqualification is
21
required, applies regardless of whether a Motion to Disqualify is filed. Additionally,
22
Comment 5 to Rule 2.11 requires the Judge to disclose on the record information that he
23
believes the parties or their lawyers might reasonably consider relevant to a possible
24
Motion for Disqualification, even if the Judge believes there is no basis for
25
disqualification.
26
Finally, even in cases of a close question of judicial impartiality, this Court
27
should decide in favor of recusal. The U.S. Courts of Appeals for the First, Fifth, Tenth,
28
and Eleventh Circuits have said that close questions of judicial impartiality should be
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decided in favor of recusal. See Republic of Pan v. American Tobacco Co., 217 F.3d 343,
347 (5th Cir. 2000) (citing In re Chevron, 121 F.3d 163, 165 5th Cir. 1997)); In re United
States, 158 F.3d 26, 30 (1st Cir. 1998); Nichols v. Alley, 71 F.3d 347, 352 (10th Cir.
1995); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993); United States v.
Kelly, 888 F.2d 732, 744 (11th Cir. 1989).
For all of the reasons stated above, Judge Snows recusal is required
because his impartiality might reasonably be questioned. Even presuming this Court does
not find that the aforementioned actions by Judge Snow demonstrate evidence of actual
bias, see supra III(B), a reasonable person with knowledge of all the facts would
10
certainly question Judge Snows impartiality. Recusal is therefore required because of the
11
bedrock notion and importance of public confidence in the judiciary and that confidence
12
in the judiciary is severely eroded by even the appearance of irresponsible, improper or
13
biased conduct by judges.
14
IV.
CONCLUSION
15
For the aforementioned reasons Defendant Arpaio and Chief Deputy Gerard
16
Sheridan respectfully request that (1) Judge Snow recuse himself from these proceedings
17
and (2) if Judge Snow declines to recuse himself, Defendant Arpaio and Chief Deputy
18
Gerard Sheridan move that this Motion for Change of Judge for Cause be assigned to a
19
another United States District Court judge for immediate consideration.
20
21
DATED this 22nd day of May, 2015.
22
23
24
By s/ Michele M. Iafrate
Michele M. Iafrate
Attorneys for Defendants Joseph M. Arpaio
25
26
27
28
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1
2
JONES SKELTON & HOCHULI, PLC
3
4
By s/ A. Melvin McDonald
A. Melvin McDonald
Phoenix, Arizona 85012Attorneys for
Defendants Joseph M. Arpaio
5
6
7
8
MITCHELL STEIN CAREY, PC
9
10
By s/ Barry Mitchell
Barry Mitchell
Lee Stein
One Renaissance Square
Attorneys for Gerard Sheridan
11
12
13
14
15
16
17
18
19
20
I hereby certify that on this 22nd day of May, 2015, I caused the foregoing
document to be filed electronically with the Clerk of Court through the CM/ECF System
for filing; and served on counsel of record via the Courts CM/ECF system.
s/ Mance Caroll
21
22
23
24
25
26
27
28
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1
2
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cwang@aclu.org
ACLU Foundation
39 Drumm Street
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
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Daniel J. Pochoda
dpochoda@acluaz.org
Joshua Bendor
jbendor@acluaz.org
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
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et al.,
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Plaintiffs,
v.
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Defendants.
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CV-07-2513-PHX-GMS
RESPONSE IN OPPOSITION TO
SHERIFF ARPAIO AND CHIEF
DEPUTY SHERIDANS MOTION
FOR RECUSAL OR
DISQUALIFICATION OF
THE COURT
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asegura@aclu.org
ACLU Foundation
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654

pdodson@cov.com
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
Telephone: (202) 662-5996
Facsimile: (202) 778-5996

alai@law.uci.edu
Irvine, CA 92697
Telephone: (949) 824-9894
Facsimile: (949) 824-0066

Educational Fund
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
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syoung@cov.com
hbyun@cov.com
Redwood Shores, CA 94065
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
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talbarran@cov.com
Lauren E. Pedley (Pro Hac Vice)
lpedley@cov.com
One Front Street
Telephone: (415) 591-7066
Facsimile: (415) 955-6566
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1
2
INTRODUCTION
Plaintiffs respectfully submit this Response in Opposition to Sheriff Arpaio and
Chief Deputy Sheridans Motion for Recusal or Disqualification of the Court. The
motion fails to meet the standards for recusal in 28 U.S.C. 144 and 455, and runs afoul
of the long-settled principle that rulings and judicial remarks made during the course of
litigation are almost never a basis for recusal. Liteky v. United States, 510 U.S. 540, 550-
51 (1994). The motion also fails to demonstrate actual bias or an appearance of bias. The
Courts actionsquestioning the movants about MSCO investigationswere proper and
relevant to the ongoing contempt hearing and the question of remedies to ensure
10
compliance with prior orders. The motion is also untimely and appears to be filed for
11
purposes of manipulation and delay. In the words of ethics expert Professor Stephen
12
Gillers, each of the asserted grounds for recusal is baseless. Some are frivolous.
13
Gillers Decl. 5. The motion should be denied.
14
15
FACTUAL BACKGROUND
The procedural history of this case is centrally relevant under the recusal
16
standard, since the Courts actions and statements must be viewed in light of the evidence
17
it has seen. Liteky, 510 U.S. at 550-51.
18
Evidence of Sheriff Arpaio and Chief Deputy Sheridans Defiance of the Court
19
During the 18 months between the issuance of the Supplemental Permanent
20
Injunction [Doc. 606] and the beginning of the contempt hearing on April 21, 2015, the
21
Court saw evidence that top commanders of the MCSO, including Sheriff Arpaio and
22
Chief Deputy Sheridan, had repeatedly violated court orders, made statements that
23
mischaracterized and disparaged the Courts orders to MSCO personnel, and expressed
24
defiance towards the Courts orders. Those statements are set forth in Plaintiffs
25
Memorandum of Law and Facts re Contempt Proceedings and Request for Order to Show
26
Cause at 12-16 [Doc. 843], incorporated by reference here. See also Tr. of Status
27
Conference (Oct. 28, 2014) at 68:25-72:20. Among other things, in August 2013, Sheriff
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Arpaio stated in a letter to supporters that he wont stand for a Court-appointed
monitor. [Doc. 843 at 15]. And during the contempt hearing, Plaintiffs introduced a
video recording of a press interview in October 2013, after issuance of the Supplemental
Permanent Injunction, in which the Sheriff proclaimed, Im an elected constitutional
sheriff, and no one is going to take away my authority that I have under the Constitution.
Ex. 193C; Tr. of Apr. 23, 2015 at 581:25-582:17. And in October 2014, Sheriff Arpaio
made another defiant statement, telling a reporter that he would conduct the Guadalupe
operationone of the saturation patrols the Court held to have violated Plaintiffs
constitutional rightsall over again. Tr. of Oct. 28, 2014 at 61:9-77:5; Tr. of Apr. 23,
10
2015 at 583:20-584:6.
11
Grounds for Civil Contempt
12
In addition, over a period of months starting in May 2014, the three charged
13
grounds for contempt came to light. In April-May 2014, a former MCSO deputy,
14
Charley Armendariz, who had been a key witness at trial, was arrested and subsequently
15
committed suicide. MCSO searched Armendarizs home pursuant to a criminal warrant.
16
The search ultimately revealed, among other things, that there was a widespread practice
17
among MCSO personnel of recording traffic stops, that MCSO had no policy governing
18
the recording of traffic stops, and that such recordings should have been disclosed to
19
Plaintiffs before trial, but were not. Tr. of of Dec. 4, 2014 at 22:15-22:25. The failure to
20
disclose the recordings before trial is one of three charged grounds for civil contempt.
21
[Doc. 880 at 8, 18-21].
22
The second ground for contempt arose on May 14, 2014. During a status
23
conference on that date, the Court ordered Sheriff Arpaio and Chief Deputy Sheridan to
24
cooperate with the Monitor in formulating a plan to quietly collect the recordings of
25
traffic stops throughout MCSO. [Doc. 880 at 22]; Tr. of May 14, 2014 Status Conference
26
at 61 [Doc. 700]. The movants violated that court order that same day, by putting into
27
action a plan without the Monitors approval, and then agreeing to a different plan in
28
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consultation with the monitor, while failing to disclose that the initial, unapproved plan
had already been implemented. [Doc. 880 at 23].
The third ground for contempt came to light during the November 20, 2014 status
conference when Defendants counsel disclosed that one of the traffic stop recordings
recovered by the MCSO during the Armendariz investigations demonstrated that deputies
had violated the Courts preliminary injunction order. Counsel also revealed that the
Courts preliminary injunction order had never been communicated to MCSO deputies.
Tr. of Nov. 20, 2014 at 67:10-67:24 [Doc. 804].
Relevance of MCSOs Internal Investigations
10
During the same period leading to the contempt hearing, the adequacy of
11
MCSOs internal investigation processes became a central issue. Immediately upon
12
learning of the Armendariz investigations in May 2014, Plaintiffs raised concerns about
13
MCSOs internal investigation process. Tr. of May 14, 2014 at 102:6-18. In September
14
2014, the Monitor reported serious deficiencies with MCSOs Armendariz-related
15
internal investigations. [Doc. 795-1]. Plaintiffs also raised numerous issues with
16
MCSOs internal investigations and gave notice of their intent to seek remedies to protect
17
the interests of the Plaintiff class. See Plaintiffs Response to the Monitors Report at 7-
18
10 (Oct. 21, 2014) [Doc. 753]; Tr. of Dec. 4, 2014 at 23:1-24:21 [Doc. 812].
19
Prior to the beginning of the contempt hearing on April 21, 2015, the Court
20
indicated that it would not limit the scope of the evidence to liability for civil contempt,
21
but would take evidence on the remedies needed to ensure compliance with the Courts
22
prior orders, with a particular focus on the adequacy of MCSOs internal investigations.
23
See, e.g., Tr. of Mar. 20, 2015 at 11:6-12, 12:21-25, 13:1-21; Tr. of Apr. 21, 2015 at
24
15:19-22; [Doc. 1007]; [Doc. 880 at 25].
25
Questioning About Defendants Investigations of the Court
26
27
During the contempt hearing, as during the bench trial, the Court questioned
witnesses after the parties counsel, and gave counsel an opportunity to object to
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questions and to re-examine the witnesses after its examination. On April 23, 2015, the
Court questioned Sheriff Arpaio, beginning with the grounds for civil contempt. The
Court also questioned the Sheriff about the re-assignment of Captain Steven Bailey from
the command of the Special Investigations Division, with oversight of its subunit the
Human Smuggling Unit (which had been primarily responsible for the constitutional
violations found after trial), to the command of the Internal Affairs unit. Tr. of Apr. 23,
2015 at 637:2-642:22. Baileys reassignment occurred during a time when the Human
Smuggling Unit was under investigation by the Internal Affairs department because of
misconduct uncovered after Deputy Armendarizs arrest and death, and the apparent
10
conflict was an issue in the litigation leading up to the contempt hearing.
11
The Court then questioned Sheriff Arpaio about an article that had appeared in the
12
Phoenix New Times newspaper on June 4, 2014, reporting that two MCSO detectives,
13
Brian Mackiewicz and Travis Anglin, a member of the MCSOs civilian Cold Case
14
Posse, Mike Zullo, and a paid confidential informant named Dennis Montgomery, were
15
engaged in an investigation of a bizarre conspiracy theory that the Court and the U.S.
16
Department of Justice were conspiring to get Sheriff Arpaio. Wang Decl., Ex. A. The
17
Court questioned the Sheriff about the source of funding for the investigation and
18
whether Captain Bailey was involved in that process. Tr. of Apr. 23, 2014 at 658:4-
19
659:1.
20
During the Courts questioning of Sheriff Arpaio about the MCSO-Montgomery
21
investigation reported in the Phoenix New Times article, the Sheriff testified that there
22
was a second investigation involving the Court. The Sheriff testified that an outside
23
investigator hired by Defendants then-counsel had investigated an allegation that the
24
Courts spouse had stated to a woman named Grissom that Judge Snow wanted to do
25
everything to make sure Im not elected. Tr. of Apr. 23, 2015 at 654:6-655:12.
26
The next day, on April 24, 2015, Defendants counsel examined Chief Deputy
27
Sheridan about the investigations implicating the Court and the Courts spouse. After
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asking defense counsel if she had any objection and emphasizing that she should interrupt
with any objection, Tr. of Apr. 24, 2015 at 966:4-11, the Court joined in questioning of
Chief Deputy Sheridan on the subject of Karen Grissoms allegations about the Courts
spouse. In response to the Courts questions, Sheridan testified that Defendants counsel
had hired a private investigator who had interviewed Karen Grissom and her family, and
that MCSO did not do anything to follow up on the investigation. Id. at 968:5-9. The
Court then proceeded to question Chief Deputy Sheridan about the grounds for contempt,
MCSOs internal affairs operations, and other matters, and finally asked Chief Deputy
Sheridan about the MCSO-Montgomery investigation.
10
Chief Deputy Sheridan testified and stated publicly that MCSO ultimately decided
11
not to pursue the investigation of the Grissom allegations relating to the Courts spouse.
12
Tr. of Apr. 24, 2015 at 968:5-9; Tr. of May 14, 2015 at 10:1-24. Both Arpaio and
13
Sheridan testified that they concluded that confidential informant Dennis Montgomery
14
was not credible. Tr. of Apr. 23, 2015 at 650:18-25, Tr. of Apr. 24, 2015 at 961:1-11,
15
1002:14-15. Arpaio, however, testified that he did not know whether the Montgomery
16
investigation was still ongoing. Tr. of Apr. 23, 2015 at 652:5-6. Documents later
17
produced by the Defendants indicate that the MCSO-Montgomery investigation
18
continued at least up until the eve of the contempt hearing. Wang Decl., Ex. E.
19
The Court directed the Sheriff to preserve all documents relating to both of these
20
investigations. Tr. of Apr. 23, 2015 at 653:9-654:2, 655:13-17, 656:3-6, 656:25-657:2.
21
The Court later directed that copies of the documents be produced and instructed defense
22
counsel to review the material for attorney-client privilege, work product, and
23
confidential information. Tr. of May 8, 2015 at 30:1-4. The Court also sua sponte raised
24
a potential security issue about documents that Dennis Montgomery purportedly had
25
obtained from the U.S. Central Intelligence Agency, and proposed that the Monitor and
26
Defendants review such documents prior to disclosure to the Plaintiffs, and that defense
27
counsel communicate with the CIA. Both Plaintiffs and Defendants counsel agreed to
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that proposal. Tr. of May 8, 2015 at 30:25-31:15. Contrary to Defendants assertions,
the Court did not order the production of documents that may be protected by the
attorney-client privilege or work product doctrine.
At the close of the four days of evidence, the Plaintiffs had not completed their
case-in-chief. Prior to the evidentiary hearing, on April 7, 2015, the Court had
anticipated that four days of testimony might be insufficient and tentatively set additional
dates for a continuation of the evidentiary hearing, on June 16-19 and 23-26, 2015. Tr. of
Apr. 7, 2015 at 32:13-23.
ARGUMENT
10
I.
11
The Courts Actions During the Contempt Hearing Do Not Show Actual
Bias and Are Not a Ground for Recusal
12
In moving to disqualify the Court based upon actual bias under 28 U.S.C.
13
455(b)(1), Sheriff Arpaio and Chief Deputy Sheridan point to the Courts actions and
14
statements during the contempt proceeding.1 The motion therefore fails because rulings
15
and conduct during litigation almost never constitute a valid basis for a bias or
16
partiality motion. Liteky, 510 U.S. at 555; see also In re Marshall, 721 F.3d 1032, 1041
17
(9th Cir. 2013); United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012). Judicial
18
actions or remarks in the litigation will be a ground for recusal only if they reveal such a
19
high degree of favoritism or antagonism as to make fair judgment impossible. Liteky,
20
21
22
23
24
25
26
27
Although they do not assert it as a basis for recusal, the movants insinuate that the
timing of the Courts trial ruling was curious and problematic because it issued nine
months after the bench trial and purportedly one week before a recall petition against
the Sheriff was due. Defendants imputation of bad intent due to the time it took the
Court to issue its 142-page trial ruling is unwarranted. The movants also fail to
mention that the Sheriff faced a regular election six months earlier, in November 2012
(see http://recorder.maricopa.gov/electionarchives/2012/11-062012%20Final%20Summary%20Report.pdf)a more opportune time for a court, if it
had been biased, to time a ruling for improper purposes.
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510 U.S. at 555; United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000). The
motion entirely fails to meet this standard.
As evidence of actual bias, the motion cites only rulings and conduct during the
contempt hearingthat the Court asked leading questions on irrelevant matters; offered
his own testimony; was argumentative with Chief Deputy Sheridan on the stand;
interrupted Chief Deputy Sheridan and challenged his decision to use Dennis
Montgomery as a confidential informant; ordered the production of documents relating to
non-party Dennis Montgomery and his attorney Larry Klayman that may be protected
by the work product doctrine or attorney client privilege; inquired into matters
10
unrelated to the contempt proceeding and thereby purportedly deprived Sheriff Arpaio
11
of his due process rights; and improperly expanded the Monitors authority into
12
purportedly irrelevant matters. These are matters that should be raised, if at all, through
13
appeal, not through a recusal motion. Liteky, 510 U.S. at 555.
14
The motion also mischaracterizes the record. The Court questioned Sheridan
15
about how the MCSO-Montgomery investigation was conducted in order to elicit the
16
evidence. Tr. of Apr. 24, 2015 at 1000:19-1008:13. Nothing in the course of that
17
examination can fairly be construed as argumentative, as the movants claim. But even
18
if it were true that the Court expressed hostility toward Sheridan, that would not be a
19
ground for recusal. See Gillers Decl. 7.
20
21
22
23
24
25
26
27
28
The judge who presides at a trial may, upon completion of the evidence, be
exceedingly ill disposed toward the defendant, who has been shown to be a
thoroughly reprehensible person. But the judge is not therefore recusable for bias
or prejudice, since his knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are indeed sometimes
(as in a bench trial) necessary to completion of the judge's task.
Liteky, 510 U.S. at 550-51. Thus, a judges expressions of impatience, dissatisfaction,
annoyance, and even anger during litigation are not a ground for recusal. Id. at 555-56.
Moreover, none of the challenged actions by the Court was erroneous, much less
a ground for recusal. It is entirely proper for a court to examine witnesses and to
comment on the evidence (which Sheriff Arpaio and Chief Deputy Sheridan attempt to
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mischaracterize as testifying, see Gillers Decl. 8). Fed. R. Evid. 614(b). A court
should not hesitate to ask questions for the purpose of developing the facts; and it is no
ground of complaint that the facts so developed may hurt or help one side or the other.
Barba-Reyes v. United States, 387 F.2d 91, 93 (9th Cir. 1967); see also United States v.
Larson, 507 F.2d 385, 389 (9th Cir. 1994); United States v. Robinson, 449 F.2d 925, 933
(9th Cir. 1971); Hanson v. Waller, 888 F.2d 806, 810, 813 (11th Cir. 1989) (judges may
ask leading questions even in jury trial); Ruiz v. Estelle, 679 F.2d 1115, 1130 (5th Cir.
1982), amended in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir.
1982).
10
The Courts questions do not indicate any bias. Gillers Decl. 16-20. They
11
were a proper exercise of the Courts inherent power to protect the integrity of the
12
judicial process and ensure compliance with its prior orders, as they were relevant to
13
Sheriff Arpaios attitude toward the Court and compliance with the Courts orders and to
14
the subject of MCSOs internal investigations. The Phoenix New Times article that the
15
Court introduced as an exhibit indicated that the MCSO-Montgomery investigation was
16
aimed at developing a conspiracy theory to discredit the Court during that same time
17
period (October 2013 through April 2015) in which the movants had expressed defiance
18
of the Courts Supplemental Permanent Injunction, in which there were numerous
19
instances of noncompliance with the Courts orders, and leading up to the April
20
evidentiary hearing on contempt charges and remedies. Documents later produced by the
21
Defendants support the newspaper account thatcontrary to the testimony of Arpaio and
22
Sheridanthe MCSO-Montgomery investigation targeted the Court. Wang Decl., Ex. B,
23
F. The documents also reveal that MCSO personnel continued to press Dennis
24
Montgomery for results up until the eve of the contempt hearing, even though they had
25
already concluded that he was not credible. Wang Decl., Ex. C, D, E. The evidence thus
26
27
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suggested that the MCSO-Montgomery investigation might be an attempt to undermine
the Courts authority rather than comply with its lawful orders.2 This was particularly
problematic in light of the Monitors recent finding that MCSO was only 29 percent in
compliance with the Supplemental Injunction despite the passage of one-and-a-half years.
The movants allegation that the Court requested that the U.S. Attorney function
as his investigator to determine whether criminal contempt of his Preliminary Injunction
had occurred (Mot. at 7) is false. The Court invited the U.S. Attorneys Office to attend
status conferences in this case so that the government would be apprised of the facts and
would be in a position to make an independent determination whether to proceed with a
10
criminal contempt prosecution, if the Court were to make a referral in the future. Tr. of
11
Dec. 4, 2014 at 29:5-9, 29:24-30:3. Defendants did not object to the presence of a federal
12
prosecutor or even to the Courts suggestion that relevant documents be provided to the
13
U.S. Attorneys Office. Id. at 30:4-14. Moreover, Defendants themselves subsequently
14
sought the participation of the United States Attorneys Office in their efforts to settle the
15
contempt issues. Tr. of Feb. 26, 2015 at 32:23-34:1, 34:2-6, 34:8-17. Contrary to the
16
movants assertion, the U.S. Attorneys Office never declined any referral, as none has
17
yet been made. Tr. of Mar. 20, 2015 at 28:2-6.
18
19
2
20
21
22
23
24
25
26
27
Even more troubling, as the Court noted in a post-hearing status conference, the
evidence indicates that Dennis Montgomery informed MCSO personnelwith Chief
Deputy Sheridans knowledgethat he was using a database of information
harvested by the CIA and confiscated by him in his investigation, and also purported
to be tracking telephone calls between the Court, the Attorney General, the Assistant
Attorney General, and the U.S. Attorney for the District of Arizona. Tr. of May 14,
2015 at 44:22-45:2, 45:10-16; Wang Decl., Ex. C, F. This implicates possible
violations of federal criminal laws by MCSO personnel in the course of the MCSOMontgomery investigation. See, e.g., 18 U.S.C. 793(b)-(f) (taking or
communication of documents relating to national defense); 798 (disclosure of
classified information); 1503 (intimidation of federal court and obstruction of justice);
1509 (obstruction of court orders); 1924 (unauthorized removal of classified
information); 2511 (intercepting electronic communications); 2701 (unlawful access to
stored communications).
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Further, the Court properly authorized the Monitor to investigate MCSOs
investigative operations. Overruling the Defendants objections, the Court stated that it
would not require the Monitor to give Defendants advance notice of topics of interviews,
but that Defendants could contemporaneously raise any objections during any interviews
and that the Court would make itself available to hear such objections. The Court further
stated that the Monitors investigations would be limited to the enforcement of the
Courts prior orders. Tr. of May 14, 2015 at 53:12-56:25. There was nothing improper
in these orders since they were directly relevant to enforcing compliance with the Courts
prior orders.
10
Sheriff Arpaio and Chief Deputy Sheridan also mischaracterize the record when
11
they allege that the Court ordered the disclosure of confidential materials that may be
12
subject to the attorney-client privilege or work product immunity.3 In fact, the Court
13
gave the Defendants an opportunity to review documents for privilege and to produce a
14
log prior to producing documents relating to the MCSO-Montgomery investigation, and
15
the Court also proposed procedures to ensure that any confidential or sensitive documents
16
would be protected from disclosure. Tr. of May 8, 2015 at 30:1-4, 30:25-31:15.
17
Moreover, even if the Court had issued such an order, any objection should be addressed
18
through ordinary litigation, not through a recusal motion. Liteky, 510 U.S. at 555.
19
Finally, Sheriff Arpaio and Chief Deputy Sheridans assertion that the Court
20
violated their due process rights by failing to give notice of its intent to question them
21
about the MCSO-Montgomery investigations is misplaced. The Court stated clearly prior
22
to the beginning of the evidentiary hearing that subjects relating to remedies, and
23
24
25
26
27
The movants also allege that the Court apparently took evidence outside of court.
Mot. at 15. In fact, the Court stated on the record that it had been informed that the
Cold Case Posse has its own funds and asked Sheriff Arpaio whether that was
possible. Tr. of Apr. 23, 2015 at 658:1-2. Defense counsel did not object. The
record reveals that the Court did not take the information at face value, but asked the
Sheriff whether it was true. The Courts actions were proper. Gillers Decl. 15.
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particularly relating to MCSO investigations, would be within the scope of the hearing.
See Tr. of Mar. 20, 2015 at 11:6-12, 12:21-25, 13:1-21; [Doc. 880 at 25]; [Doc. 1007 at
2]; Tr. of Apr. 21, 2015 at 15:19-22. Arpaio and Sheridan were not unfairly surprised;
they acknowledged reading the New Times article and were also provided a copy by the
Court. Tr. of Apr. 23, 2015 at 642:17-25, 643:1-24; Tr. of Apr. 24, 2015 at 959:9-10,
959:17-18. Defense counsel made no objection to the Courts questions and indeed
initiated the questioning of Sheridan on this subject.
8
9
10
II.
Neither the Court nor the Courts Spouse Has a Disqualifying Interest
Sheriff Arpaio and Chief Deputy Sheridan argue for recusal under 28 U.S.C.
11
455(b)(5)(iv), which provides for recusal when a judge, his or her spouse, or a person
12
within a third degree of relationship to either of them, [i]s to the judges knowledge
13
likely to be a material witness in the proceeding, and under 28 U.S.C. 455(b)(1),
14
which provides for recusal when a judge has a personal bias or prejudice concerning a
15
party, or personal knowledge of disputed evidentiary facts concerning the proceeding.
16
These arguments fail on the merits.
17
First, the movants argue that recusal is required because the Courts brother-in-law
18
is a partner in the Washington, D.C. office of Covington & Burling (Mot. at 13), but they
19
expressly waived any recusal argument when they learned of this fact in 2012. See [Doc.
20
537 (order setting status conference on issue)]; Tr. of June 29, 2012 at 5:19-7:2 (Courts
21
offer to recuse on request of any party); id. at 16:6-17:2 (Defendants statement that they
22
would be prejudiced by Courts recusal and any order vacating prior orders); [Doc. 541
23
(Defendants written waiver of appeal of any recusal issue)]; [Doc. 542]. Moreover, the
24
Courts previous ruling on the merits was correct. Gillers Decl. 9-10.
25
Sheriff Arpaio and Chief Deputy Sheridan also assert that the Court must recuse
26
because the interests of the Court and the Courts spouse are substantially affected by
27
the outcome of this proceeding. Mot. at 13. The movants now insinuate that the Courts
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interests are at stake because the allegations of the MCSO-Montgomery investigation
that the Court conspired with the Attorney General of the United States and others to
subvert the random case assignment processmay actually be true. Mot. at 13. This
assertion fails because both Sheriff Arpaio and Chief Deputy Sheridan testified that they
concluded that the MCSO-Montgomery investigation was not credible and indeed was
junk. Tr. of Apr. 23, 2015 at 650:18-25; see also Tr. of Apr. 24, 2015 at 961:1-11,
1002:14-15. Documents relating to the MSCO-Montgomery investigation support that
testimony. Wang Decl., Ex. C, D, E.
Sheriff Arpaio and Chief Deputy Sheridan further assert that recusal is required
10
under 455(b)(5) because the Courts spouse is a material witness. While they do not
11
explain, presumably they assert that she is a witness on the factual issues arising from
12
their investigation of Karen Grissom. This assertion should be rejected because Chief
13
Deputy Sheridan testified that after a private investigator hired by their counsel
14
interviewed Ms. Grissom and her family members in 2013, MCSO chose not to pursue
15
the allegations. Tr. of Apr. 24, 2015 at 968:5-9; Tr. of May 14, 2015 at 10:1-24. And
16
Defendants own counsel, after reviewing the private investigators report, stated that
17
the Grissom information is so fundamentally flawed in its substance that it likely cannot
18
be used in a Rule 60 motion, appeal, or otherwise, without the lawyer who does so
19
violating the federal courts rule of civil procedure and the Arizona Rules of Professional
20
Conduct. [Doc. 1115 at 13-14 (letter from Timothy J. Casey to Joseph M. Arpaio dated
21
Nov. 6, 2013)]. This is likely because of the numerous inconsistencies in the various
22
statements that Karen and Dale Grissom made about their meeting with Mrs. Snow. See
23
Gillers Decl. 4.1-4.4, 12.
24
Notably, in asserting the grounds for recusal for actual bias, Sheriff Arpaio and
25
Chief Deputy Sheridan do not explicitly include Karen Grissoms allegation whichin
26
the strongest version, appearing in her Facebook message to the Sheriff more than a year
27
after her alleged conversation with Mrs. Snowwas that that Mrs. Snow stated that the
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Court hates the Sheriff and will do anything to get [him] out of office. See Mot. at
14-16 (grounds for assertion of actual bias based upon Courts statements and actions
during contempt proceedings). But in any event, the Courts spouse is not a material
witness on any issue in this litigation. Whether Mrs. Snow made the alleged statement to
Mrs. Grissom is not admissible evidence of the Courts state of mind. Gillers Decl.
13-14. Moreover, a court has an independent and self-executing obligation under 28
U.S.C. 455(b)(1) to recuse if it has an actual bias, and the Court has not done so here.
Gillers Decl. 14.
9
10
11
III.
No Reasonable Observer Would Perceive an Appearance of Bias
Sheriff Arpaio and Chief Deputy Sheridan move for recusal based upon 28
12
U.S.C. 455(a), which requires [a]ny justice, judge, or magistrate judge of the United
13
States [to] disqualify himself in any proceeding in which his impartiality might
14
reasonably be questioned. Section 455(a) imposes an objective standard, requiring
15
recusal when a reasonable third-party observer would perceive that there is a significant
16
risk that the judge will be influenced by the threat and resolve the case on a basis other
17
than the merits. United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008). The
18
standard is applied based upon all the relevant facts and an examination of the record
19
and the law. Id. (citing LoCascio v. United States, 473 F.3d 493, 496 (2d Cir. 2007)).
20
As an initial matter, Sheriff Arpaio and Chief Deputy Sheridan do not clearly
21
state the basis for their motion under 455(a), but Plaintiffs presume that it is based upon
22
the same allegations underlying their assertions under 455(b)(1) and (b)(5). The
23
motion therefore should fail because a reasonable observer would understand that in the
24
context of the record, as set forth above, none of the Courts conduct gives rise to any
25
appearance of improper bias. Rumor, speculation, beliefs, conclusions, innuendo,
26
suspicion, opinion, and similar non-factual matters are generally not sufficient to
27
warrant recusal under 455(a). Clemens, 428 F.3d at 1178. Nor are baseless personal
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attacks on or suits against the judge by a party, or quotes attributed to the judge or
others, but which are in fact false or materially inaccurate or misleading, or attempts to
intimidate the judge. Id. at 1179.
Moreover, Sheriff Arpaio and Chief Deputy Sheridans argument under 455(a)
should fail because courts have held that a party cannot manufacture a basis for recusal.
In this case, the movants appear to argue that there is an appearance of bias because they
themselves launched investigations to develop proof that the Court is biased, one of those
investigations (the MCSO-Montgomery investigation) was leaked to the press,4 and the
Court inquired about the news report, leading to the Sheriffs testimony about both the
10
MCSO-Montgomery and Grissom investigations. Contrary to the testimony of Arpaio
11
and Sheridan, the investigations were done by MCSO and MSCOs paid agents and they
12
did attempt to call the Courts impartiality into question. Sheriff Arpaios testimony that
13
the MCSO-Montgomery investigation did not target the Court is contradicted by
14
documents later produced by Defendants. Wang Decl., Ex. F. And when asked whether
15
MCSO had investigated the Courts spouse, Chief Deputy Sheridan equivocated by
16
answering it depends on how you define, investigated your wife. Tr. of Apr. 24, 2015
17
at 967:11-14. But in fact, Chief Deputy Sheridans complete testimony and documents
18
produced under an order by Magistrate Judge Boyle demonstrate that the investigation
19
was aimed at determining whether Mrs. Snow made the statement. [Doc. 1115].
20
Controlling cases do not require recusal in these circumstances. In cases where a
21
party has made allegations against the Court, for example, the Ninth Circuit has held that
22
recusal is not required. A judge is not disqualified by a litigants suit or threatened suit
23
against him, or by a litigants intemperate and scurrilous attacks. United States v.
24
25
26
27
One of the documents produced by the Defendants suggests that an MCSO

investigator leaked the MCSO-Montgomery investigation to the Phoenix New Times.
Wang Decl., Ex. B.
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Studley, 783 F.2d 934, 940 (9th Cir. 1986) (citing Ronwin v. State Bar of Ariz., 686 F.2d
692, 701 (9th Cir. 1981); United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977)).
Otherwise, defendants could readily manipulate the system [and] force delays.
Such blatant manipulation would subvert our processes, undermine our notions of fair
play and justice, and damage the publics perception of the judiciary. United States v.
Holland, 519 F.3d 909, 915 (9th Cir. 2008); see also United States v. Spangle, 626 F.3d
488, 496 (9th Cir. 2010) (court properly declined to recuse after police found personal
information about judge and judges family in the defendants car). Numerous cases
have held that a party cannot effect recusal of a trial judge by the partys own actions,
10
such as through statements critical of the judge or accusing the judge of wrongdoing.
11
United States v. Cerrella, 529 F. Supp. 1373, 1380 (S.D. Fla. 1982) (citing United States
12
v. Bray, 546 F.2d 851 (10th Cir. 1976); United States v. Garrison, 340 F. Supp. 952, 957
13
(E.D. La. 1972); United States v. Fujimoto, 101 F. Supp. 293, 296 (D. Haw. 1951)). In
14
Bray, 546 F.2d at 857-58, the Tenth Circuit rejected a recusal motion based upon the
15
moving partys accusation that the judge had committed bribery and conspiracy.
16
Similarly, the First Circuit held that negative statements about the court in a newspaper
17
the moving party owned, well into the proceedings, could not require recusal because
18
otherwise a party might manipulatively create a basis for recusal. In re Union Leader
19
Corp., 292 F.2d 381, 388-89 (1st Cir. 1961). In short, the law does not permit a party to
20
trigger recusal at will, simply by alleging that the Court participated in a conspiracy to
21
get him.
22
23
A reasonable observer with full knowledge the record of this case, and the
caselaw, would not conclude that there is an appearance of bias.
24
25
26
27
IV.
The Motion Should Be Denied as Untimely
The recusal motion also should be denied because it is untimely. Sheriff Arpaio
and Chief Deputy Sheridan knew of Karen Grissoms allegations in August 2013, and
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documents reveal that they had concluded their interviews on that issue by November
2013almost two years before filing this motion. [Doc. 1115]. Defendants knew of the
relationship between the Court and Keith Teel in June 2012three years before filing
their motionand expressly waived any claim to recusal. And to the extent the movants
now rely upon an insinuation that the allegations in the MCSO-Montgomery
investigation are true, despite their repudiation, they should be foreclosed as they knew
Montgomery was not credible at least by November 2014 (Wang Decl., Ex. C), seven
months before filing their motion. In light of these extraordinary delays, the recusal
motion should be denied as untimely. Gillers Decl. 9, 11-12. E. & J. Gallo Winery v.
10
Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (recusal motion untimely when
11
filed seven months after assignment of case to judge and after adverse ruling); Studley,
12
783 F.2d at 939 (recusal motion filed weeks after conclusion of trial in which court
13
allegedly exhibited bias was untimely).
14
These cases are based on the presumption that a party that delays the filing of a
15
recusal motion is presumed to be filing the motion for purposes of manipulation, after
16
suffering adverse rulings. See E. & J. Gallo Winery, 967 F.2d at 1295; United States v.
17
Rogers, 119 F.3d 1377, 1380 (9th Cir. 1997); Bivens Gardens Office Bldg., Inc. v.
18
Barnett Banks of Fla., Inc., 140 F.3d 898, 913 (11th Cir. 1983) (recusal cannot be used
19
as an insurance policy to be cashed in if a partys assessment of his litigation risks turns
20
out to be off and a loss occurs). In this case, there is good reason to believe that the
21
motion was in fact filed for manipulative purposes. Sheriff Arpaio and Chief Deputy
22
Sheridan attempted repeatedly to avoid the evidentiary hearing on contempt by filing
23
motions to vacate the hearing.5 It was only after those efforts failed, after the hearing
24
25
26
27
Defendants assert that the Court improperly refused to grant those motions and
rejected proposed remedies that Plaintiffs had agreed to as settlement terms. Mot. at 6.
This assertion on its face violates the confidentiality provision of Federal Rule of
Evidence 408 and also is misleading. Plaintiffs made clear on the record that they
(continued)
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brought forth clear evidence of their willful and systematic violations of the Courts
orders,6 and after the Court indicated in post-hearing status conferences that strong
remedies were in order (Tr. of May 8, 2015 at 19:8-21:4), that they finally moved for
recusal.7 Moreover, after filing the recusal motion, the Defendants initially took the
position that ongoing activities toward compliance with the Supplemental Permanent
Injunction were stayed, contrary to the terms of the Courts far more limited stay order.
Wang Decl., Ex. G; [Doc. 1120]. The timeliness requirement prevents precisely this sort
of manipulation. Gillers Decl. 11.
9
10
V.
11
The Motion Fails To Meet the Requirements for Recusal Under 144
Finally, the recusal motion fails to meet the requirements of 28 U.S.C. 144,
12
which provides for reassignment of a case to another judge upon the filing of a timely
13
and sufficient affidavit that the judge before whom the matter is pending has a personal
14
bias or prejudice either against him or in favor any adverse party. Section 144 provides
15
that a party may only file one such affidavit in any case. See also Adesanya v. West Am.
16
Bank, 1994 WL 56960, at *3 (9th Cir. Feb. 25, 1994) (unpub. op.) (construing recusal
17
motion as filed under 455 because party previously filed affidavit under 144).
18
Defendants Sheriff Arpaio, MCSO, and Maricopa County previously moved for the
19
20
21
22
23
24
25
26
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never agreed to any settlement. Tr. of Feb. 26, 2015 at 38:7-11, 41:20-42:24.
Plaintiffs opposed Defendants Motion to Vacate because Plaintiffs had not had an
opportunity to take discovery relevant to whether Defendants violations were
deliberate, or on the adequacy of remedies [Doc. 952 at 2-4], and the Court denied
Defendants motions on that ground. [Doc. 1003, 1007].
6
For example, the evidence developed during the contempt hearing on April 21-24,
2015 demonstrated that Chief Deputy Sheridan was not truthful with the Courtappointed Monitor about the events of May 14, 2014 underlying one of the charged
grounds of contempt. Tr. of Apr. 24, 2015 at 840:10-841:15; 846:22-848:5; 850:6-11;
851:22-25; 853:20-859:19; 861:4-11; 868:19-869:6.
7
Tellingly, immediately after the Courts examination of the Sheriff, his specially
appearing counsel (who filed the instant motion) stated publicly that there was no basis
for recusal of the Court. Wang Decl., Ex. H.
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recusal of Judge Murguia through the filing of an affidavit under 144. [Doc. 63].
While that affidavit was signed by then-Chief Deputy David Hendershott, it was done on
behalf of the Defendants as parties to this litigation.
In any event, 144 does not present any independent basis for recusal. It is
settled that the same substantive and timeliness standards apply whether the statutory
basis asserted is 144 or 455. Liteky, 510 U.S. at 548 (noting that 144 seems to be
properly invocable only when 455(a) can be invoked anyway). The remaining
distinction between 144 and 455 appears to be that under 144, the motion shall be
referred to a different district judge. But that is so only if the judge to whom the motion
10
is directed first determines that the affidavit is timely and sufficient. United States v.
11
Sibla, 624 F.2d 864, 868 (9th Cir. 1980); Gillers Decl. 3. For all the reasons set forth
12
above, the motion under 144 should be denied.
13
14
CONCLUSION
15
Sheriff Arpaio and Chief Deputy Sheridans motion to disqualify the Court
16
17
should be denied.
RESPECTFULLY SUBMITTED this 12th day of June, 2015.
18
19
By: /s/ Cecillia D. Wang
20

ACLU Foundation
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Daniel Pochoda
Joshua Bendor
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1
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Lauren E. Pedley (Pro Hac Vice)

Educational Fund
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1
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I hereby certify that on June 12, 2015, I electronically transmitted the attached
document to the Clerks office using the CM/ECF System for filing. Notice of this
filing will be sent by e-mail to all parties by operation of the Courts electronic filing
system or by mail as indicated on the Notice of Electronic Filing.
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(595 of 866)
EXHIBIT 21
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1
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8
9
10

situated; et al.
11
ORDER DENYING MOTION FOR

RECUSAL OR DISQUALIFICATION
Plaintiffs,
12
v.
13
Joseph M. Arpaio, in his official capacity as

Sheriff of Maricopa County, AZ; et al.
14
Defendants.
15
16
17
Pending before the Court is the Motion for Recusal/Motion for Disqualification
18
filed on May 22, 2015 by Defendant Joseph M. Arpaio and non-party contemnor Gerard
19
Sheridan pursuant to 28 U.S.C. 144 and 455. (Doc. 1117.) Along with their Motion,
20
Movants1 have submitted an affidavit by Sheriff Arpaio as required by 144, as well as
21
supporting exhibits and certifications from counsel.
22
In April, the Court began the first phase of civil contempt proceedings against
23
Movants and other members of MCSOs command staff for violating a number of the
24
25
26
27
28
For clarity, the Court will refer to Sheriff Arpaio and Chief Deputy Sheridan as
Movants in relation to their pending Motion, and use Defendants when referencing
the parties named in the underlying action, Sheriff Arpaio and Maricopa County/the
Maricopa County Sheriffs Office. Neither Maricopa County, MCSO, nor the other
named civil contemnors in this actionExecutive Chief (retired) Brian Sands, Deputy
Chief John MacIntyre, and Lieutenant Joseph Sousahave joined the Motion for
Recusal, or otherwise taken a position on its merits. (See Docs. 1129, 1135, 1137.)
(597 of 866)
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Courts orders, entered both before and after trial. Sheriff Arpaio and Chief Deputy
Sheridan have admitted the facts charged in the Order to Show Cause and have consented
to the Courts entering a finding of civil contempt against them, although issues remain
about the appropriate scope of remedies for their violations. The evidentiary hearings on
contempt were slated to resume in June but have been postponed pending the resolution
of the instant Motion.
The proposed bases on which the Motion is predicated are legally insufficient and
untimely. Further, to the extent that Movants, by their own actions, created the
circumstances on which they now seek the Courts recusal, they have improperly
10
attempted to invoke the recusal provisions for strategic purposes. For these reasons, more
11
fully explained below, Sheriff Arpaio and Chief Deputy Sheridans Motion is denied.
BACKGROUND
12
13
This case has a lengthy procedural history; the following limited facts provide
14
context for the grounds on which Sheriff Arpaio and Chief Deputy Sheridan have moved
15
for recusal.
16
Over two years ago, the Court ruled that Sheriff Arpaio and MCSO had violated
17
the Fourth and Fourteenth Amendment rights of the Plaintiff class and entered associated
18
injunctive relief. (Doc. 579.) For the past year and a half, a Monitor has been involved in
19
supervising and assessing Defendants implementation of the injunction and reporting to
20
the Court on MCSOs ongoing compliance.2 (See Doc. 649.) Since his appointment, the
21
22
23
24
25
26
27
28
The Monitors position is outlined in the Supplemental Permanent Injunction.

Defendants appealed the injunction to the Ninth Circuit, which affirmed all provisions
except those that permitted the Monitor to consider MCSOs discipline for any
violations of departmental policy as well as whether any deputies are repeatedly the
subject of Complaints, civil suits, or criminal charges, including for off-duty conduct.
Melendres v. Arpaio, 784 F.3d 1254, 1267 (9th Cir. 2015) (quoting Doc. 606 at 53). The
Ninth Circuit reasoned that not every instance of officer misconduct bear[s] on the
constitutional rights at stake here, and directed that the injunction be clarified to relate to
the constitutional violations found by the Court. Id. The mandate from the Ninth Circuit
issued the day before this Order was filed. (Doc. 1163.) Thus, the Court shall more
narrowly define the aspects of MCSOs internal affairs processes that the Monitor may
consider so that they are clearly tailored to addressing the violations of federal law at
issue in this case and matters related thereto.
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Court has adjusted the Monitors responsibilities in response to various issues presented
by Defendants actions.
On motion by Plaintiffs, in February the Court ordered the Sheriffs Office, Sheriff
Arpaio, Chief Deputy Sheridan, and others in MCSOs chain of command to show cause
why they should not be held in contempt for violating (1) the December 23, 2011
preliminary injunction; (2) their pre-trial discovery obligations under the Federal Rules of
Civil Procedure; and (3) the Courts orders at a sealed hearing directing Defendants to
cooperate with the Monitor in developing a protocol to recover audio/video recordings of
traffic stops that were not disclosed during discovery. (Doc. 880.) The Order to Show
10
Cause charged the named contemnors with civil contempt only.3 (Doc. 880 at 79.)
11
Sheriff Arpaio was noticed on all three matters; Chief Deputy Sheridan was implicated in
12
the first and the third.
13
The charges in the Order to Show Cause resulted from materials MCSO had
14
posthumously found in the home of Deputy Charley Armendariz as well as from
15
MCSOs ensuing administrative investigations into Armendariz, his supervisors, and his
16
former patrol division.4 The Monitor was responsible for evaluating the sufficiency of
17
these investigations, which revealed that Defendants had failed to disclose a considerable
18
quantity of relevant evidence during pre-trial discovery. Because of Defendants
19
omission, Plaintiffs were precluded from admitting the evidence in support of their case-
20
3
21
22
23
24
25
26
27
28
See United States v. Rylander, 714 F.2d 996, 1001 (9th Cir. 1983) (explaining
that it would usually be wiser to try the civil and criminal charges separately in light of
the additional safeguards applicable only to criminal proceedings). The Court has noted
that if a criminal contempt prosecution proves necessary to vindicate its authority after
the civil contempt hearing, it will refer such proceedings to another judge. (See Tr. of
Mar. 20, 2015 Status Conf. 61:2362:2, Doc. 965.)
4
Some of the evidence, such as the traffic stop recordings, was plainly requested
by Plaintiffs during discovery but was never identified nor produced by Defendants.
Other evidence suggested that members of the Plaintiff class may have been subjected to
additional routine constitutional infringements other than those that were addressed in the
underlying trial. The evidence also revealed that Defendants, as a matter of regular
practice and operation, had actively enforced federal immigration law and detained
persons after officers concluded that there was no legal justification for such detention for
at least seventeen months after the Court prohibited these practices in the preliminary
injunction. (Tr. Nov. 20, 2014 Status Conf. 67:1022, Doc. 804.)
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in-chief and uncovering the additional constitutional violations likely suffered by the
Plaintiff class before trial. Further, the Court did not have the evidence to consider when
making findings of fact and conclusions of law concerning what defects in MCSOs
operations and procedures had led to the deprivation of Plaintiffs rights, nor when
fashioning supplemental injunctive relief to remedy those defects. (See, e.g., Tr. of Sept.
10, 2013 Status Conf. 89:2191:23 (declining to incorporate Plaintiffs suggestions
regarding the inadequacy of MCSOs existing internal investigative practices into the
Supplemental Permanent Injunction due to the lack of evidence presented at trial on that
issue).) As a result of these revelations and procedural inadequacies in MCSOs self-
10
investigative processes that had been noted by the Monitor,5 the Court authorized
11
members of the monitoring team to conduct independent inquiries into the Armendariz
12
materials in addition to supervising those undertaken by MCSO and its Professional
13
Standards Bureau (PSB). This authorization was to allow the Monitor to assess whether
14
Defendants implementation of the Courts orders and responsiveness to the Armendariz
15
evidence promoted the constitutional and professional treatment of the Plaintiff class by
16
MCSO. (Doc. 795 at 1621, amended by Doc. 825 (following input by the parties).)
17
In the Order to Show Cause, the Court remarked that crafting suitable civil relief
18
for each of the grounds on which contempt is charged [would] be of chief interest to the
19
Court if Defendants, or their subordinates, [we]re ultimately adjudged to be in contempt
20
of court. (Doc. 880 at 25.) Prior to and throughout the contempt proceedings, the Court
21
reiterated its expectation that the parties would develop an evidentiary record sufficient
22
for the Court to fashion an appropriate remedy for members of the Plaintiff class whose
23
rights were impaired by the contemnors violations of the Courts orders and rules. (See,
24
e.g., Tr. of Mar. 20, 2015 Status Conf. 2:26, 11:612, 12:2125, 13:121, Doc. 965; Tr.
25
of Apr. 2124, 2015 Evid. Hrgs (Tr.) 44:1425, Docs. 1017, 1021, 1027, 1030, 1041,
26
5
27
28
See Memorandum from Chief Robert S. Warshaw to the Honorable G. Murray

Snow, Update and Assessment of MCSOs Armendariz and Related Investigations (Sept.
28, 2014) (Doc. 795, Attach. 1); (see generally Tr. Oct. 28, 2014 Status Conf., Docs. 776
780.)
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1043; Doc. 1007 at 12.) Such a remedy would both compensate those individuals
specifically harmed by Defendants noncompliance and also provide relief for possible
system wide deficiencies, relief to which Plaintiffs may have been entitled after trial but
for Defendants discovery violations.
Approximately one month before the scheduled hearing, Sheriff Arpaio and Chief
Deputy Sheridan filed an Expedited Motion to Vacate the hearing. (Doc. 948.) Movants
admitted to being in civil contempt on the charges in the Order to Show Cause and
suggested possible remedial measures. (Id.) Plaintiffs opposed the Motion because it did
not specify how the admitted violations of the Courts orders had occurred, nor did it
10
resolve all outstanding questions involving the appropriateness and feasibility of the
11
proposed remedies. (See Doc. 952.) At the next status conference, the Court encouraged
12
the parties to pursue settlement while advising that any remedies would need to
13
adequately compel Movants compliance with the Courts orders going forwardin
14
addition to any compensatory elementbefore the Court would approve the terms. (Tr.
15
of Mar. 20, 2015 Status Conf. 38:1242:18, Doc. 965.) In the end, negotiations with
16
Plaintiffs were unsuccessful. (See Doc. 1005 at 1.) A representative of the United States
17
Attorneys Office for the District of Arizona also declined, citing departmental policy, to
18
participate in any pre-referral settlement of criminal contempt with the contemnors.6
19
(Doc. 924; Tr. of Feb. 26, 2015 Status Conf. 35:716, Doc. 926.) The Court thus denied
20
the motion without prejudice, as well as Movants renewed Motion to Vacate that was
21
substantively identical to the first. (Docs. 1003, 1007.)
22
Although the Court had ordered expedited discovery in advance of the scheduled
23
hearings on contempt, (Doc. 881), this discovery was inhibited by Defendants delays in
24
25
26
27
28
The Court is required to designate the United States Attorney for the district in
which it sits to prosecute criminal contempt of court. Fed. R. Crim. P. 42. The Court
invited a representative of the Arizona USAO to attend status conferences following the
later Armendariz revelations, some of which had potential criminal implications for
members of MCSO. (Doc. 797 at 2; Tr. of Dec. 4, 2014 Status Conf. 5:48, Doc. 817.)
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completing the Armendariz investigations,7 assertion of a purported privilege over
information pertaining to ongoing internal investigations, and inadequate document
search and retrieval protocols. Consequently, Defendants had not disclosed the complete
catalog of documents responsive to Plaintiffs discovery requests by the beginning of the
April hearings.8 (Docs. 995, 1002, 1013; Tr. 16:1419:1.)
At the show-cause hearing, the Court noted that it would participate in questioning
witnesses, as it had done at trial. Nevertheless, the Court invited counsel to freely object
during its examination of the witnesses,9 and counsel did, in turn, successfully raise
objections. (See, e.g., Tr. 626:1824 (Ms. Iafrate: Your Honor, may I object just as to
10
the way that question is worded? Could we include civil contempt? The Court:
11
Surely.); see also Tr. 985:1986:19 (objection sustained).) Movants both had civil and
12
criminal representation during the hearing.
13
Sheriff Arpaio testified under oath on the second and third days of the contempt
14
hearing. In framing its examination of Sheriff Arpaio, the Court explained that it was
15
important, from a remedial perspective, whether Sheriff Arpaios admitted contempt was
16
an isolated incident or reflected a pattern of resistance on his part or by MCSO to the
17
Courts directives. (Tr. 635:1218.) Accordingly, the Court questioned Sheriff Arpaio on
18
7
19
20
21
22
For example, Defendants initially indicated that all internal investigations arising
out of the Armendariz matter would be completed by March 13, 2015. (Doc. 864.)
Defendants subsequently postponed the deadline for completing these investigations until
April 13 and, again, until May 18. (Docs. 923, 1052.) The investigations have still not
been completed. As a consequence of these delays, the Monitor was unable to make
outcome assessments and recommendations based on MCSOs handling of the
Armendariz investigations before the April hearings.
8
23
24
Defendants insufficient efforts to locate and produce the documents responsive

to Plaintiffs discovery request also led to the scheduling of the additional proceedings
that were supposed to begin in June.
9
25
26
27
28
Im going to have some questions, some of them may be difficult to answer, and
Im going to certainly let your attorneys participate if they have concerns, but Im going
to try and ask you [Sheriff Arpaio] my questions with respect, and I hope youll afford
me the same in response. (Tr. 625:1216; see also Tr. 42:2044:12 (explaining that
specially appearing counsel could object where necessary to protect contemnors criminal
interests, even in the civil proceeding); Tr. 965:411 (In all seriousness, Ms. Iafrate, I
think that if you have objections or if anybody else does, they ought to make
them . . . .).)
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aspects of MCSOs internal investigations that had previously raised concerns for the
Court and the Monitor about the integrity of those investigations, such as MCSOs
apparent reluctance to mete out punishment for violations of department policy and this
Courts orders. Sheriff Arpaio acknowledged that, although MCSOs failure to comply
with a court order is a pretty big deal, he had taken no action to hold anyone
responsible for the violations of the Preliminary Injunction or the Courts May 14
instructions. (Tr. 628:2029:1, 633:1219, 635:1922.) The Court also inquired about the
reassignment of Captain Steven Bailey from the command of the Special Investigations
Division (SID)which was responsible for the unit to which Deputy Armendariz was
10
assigned and that had been responsible for many of the constitutional violations found at
11
trialto the PSB at the time when the Human Smuggling Unit was under investigation
12
by the PSB because of the Armendariz materials. (Tr. 637:1938:1, 638:2540:12.) The
13
Monitor had previously identified this as a potential conflict of interest, which led to
14
MCSOs appointment of an independent contractor named Don Vogel to oversee the
15
two principal Armendariz-related investigations being conducted by MCSO. (See Tr.
16
979:2480:12.)
17
Sheriff Arpaio went on to confirm that, in addition to overseeing the Human
18
Smuggling Unit, the SID was also responsible for investigations that involved
19
confidential informants, and that someone in the SID chain of command would have been
20
responsible for approving payments to confidential sources during Captain Baileys
21
tenure there. (Tr. 642:314.) The Court then produced an article published in the Phoenix
22
New Times on June 4, 2014, the approximate time of Captain Baileys transfer to PSB.
23
(Tr. 642:1743:3.) The Court invited Sheriff Arpaio and all counsel to take a minute to
24
read the article, which alleged that MCSO was paying a confidential informant from
25
Seattle, Washington named Dennis Montgomery to investigate possible collusion
26
between this Court and the United States Department of Justice. (Tr. 643:1417.) Sheriff
27
Arpaio confirmed the existence of an investigation being conducted by MCSO, the
28
Maricopa County Sheriffs Cold Case Posse, and Mr. Montgomery, but repudiated the
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articles implication that what Montgomery was actually doing was investigating [the
Court]. (Tr. 647:412.) The Court directed Defendants to preserve and immediately
produce all documents implicated by Sheriff Arpaios testimony, subject to a
contemporaneous review for privilege by counsel. (Tr. 653:1825.)
Defense counsel initiated the questioning on this matter when Chief Deputy
Sheridan took the stand the following day, which was supplemented with a handful of
follow-up inquiries by the Court. (Tr. 958:967:10.) At the end of Chief Deputy
Sheridans testimony, three separate attorneys who presently or formerly represented
Sheriff Arpaio noted an ethical obligation to correct aspects of his testimony from the
10
previous day. They have since made a variety of disclosures in fulfillment of their duty to
11
act with candor toward the tribunal, including the submission of a November 8, 2013
12
letter/investigative summary from Movants then-attorney to Sheriff Arpaio, which was
13
copied to Chief Deputy Sheridan and others at the MCSO. (Tr. 101934; see also Docs.
14
1040, 1044, 1053.) From Sheriff Arpaio and Chief Deputy Sheridans testimony and the
15
corrective disclosures provided by former defense counsel, it is now apparent that Sheriff
16
Arpaio in fact testified as to two investigations with a possible connection to the Court.
17
The first, the Montgomery matter, was the topic of the New Times article and the
18
subject of the Courts examination. In approximately September 2013 MCSO apparently
19
hired Dennis Montgomery, a computer consultant based out of Seattle, Washington. (Tr.
20
960:914, 1006:24, 1007:2108:2.) Montgomery was given the status of an MCSO
21
confidential informant. (Tr. 998:1214, 1006:1016.) According to Movants,
22
Montgomery represented to MCSO that he was in possession of a large number of
23
documents he had obtained while employed by the United States Central Intelligence
24
Agency that the CIA had harvested from American citizens. (Tr. 1000:218.) Sheriff
25
Arpaio characterized Mr. Montgomerys investigation as pertaining to whether
26
someone had infiltrated Movants phone lines and the phones and e-mail accounts of
27
various local attorneys and judges connected to Defendants, including this Court. (Tr.
28
649:1450:6, 652:1153:8.) Chief Deputy Sheridan reiterated that Mr. Montgomery had
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made allegations that the CIA hacked into individual bank accounts of county
residents, (Tr. 960:1113, 1004:911), and that he, Sheriff Arpaio, and the two law firms
representing Defendants in a related lawsuit brought against the MCSO by the
Department of Justice had been the subject of a secret wiretap by the government. (Tr.
999:161000:6.) At some point during Montgomerys investigation, Chief Deputy
Sheridan was informed that Montgomery had evidence of a communication sent by the
DOJ to the Courts computer. (Tr. 1000:1214). Sheridan testified that he ordered the
MCSO personnel working on the project not to investigate any information involving
Judge Snow, and that [i]f any further information comes up, [he] want[ed] to know
10
immediately. (Tr. 1003:1219.) He further testified that, after he issued this instruction,
11
nothing further ever did materialize. (Tr. 1003:1929.)
12
Sheriff Arpaio avowed that nothing gleaned from Montgomery gave him any
13
concern that the Courts judgment or neutrality in this case might be affected, (Tr.
14
652:1618), and Chief Deputy Sheridan similarly confirmed that there was really
15
nothing [in the information from Montgomery] to think that there was any collusion
16
between this Court and the Department of Justice. (Tr. 1003:12.) Movants both declare
17
that MCSO eventually concluded that Montgomery had made false representations
18
regarding his work product, and that they have no confidence in Montgomery or his
19
allegations; they were junk. (Id. at 650:1825, 961:111.)
20
Documents pertaining to the Montgomery investigation that were subsequently
21
disclosed pursuant to this Courts orders, however, call into question the version of
22
events testified to by Movants. Some of these documents have been filed by Plaintiffs in
23
their Response to this Motion. (Doc. 1150, Aff. of Cecilia Wang, Exs. BF (available at
24
Doc. 1153).) Although the body of documents produced has not yet been reviewed in
25
full, and the Monitor has made document requests of the County that remain pending, at
26
least some of the materials dofalselyassert the existence of telephone calls between
27
this Court and agents of the DOJ, including Eric Holder, Lanny Breuer, and one of this
28
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Courts former law clerks, dating back to before this case was assigned to the Court.10
They also appear to imply that this Court authorized a wiretap on MCSO. (See id., Ex. F
(available at Doc. 1153).) These documents and Sheriff Arpaios hearing testimony
further suggest that the same persons in charge of implementing the Courts injunctive
decree within MCSO and supervising MCSOs internal affairs processes were aware of
Mr. Montgomerys attempt to construct a conspiracy between the Court and other agents
of the federal executive branch. In addition, although Movants apparently knew by at
least November 2014 that the CIA database of documents from which Montgomery was
supposedly providing this information was fraudulent, (id., Ex. C (available at Doc.
10
1153)), the investigation was still ongoing as of the contempt proceedings (Tr. 651:24
11
52:4) and MCSO continued to press Montgomery for work-product until the day before
12
the hearings began. (Doc. 1150, Aff. of Cecilia Wang, Ex. E (available at Doc. 1153).) It
13
was after the Court noted some of the apparent inconsistencies between the documents
14
from the Montgomery investigation and Movants previous testimony, authorized the
15
Monitor to collect documents and conduct additional interviews on the matter, and
16
invited Movants to address these inconsistencies in the resumed contempt hearings, that
17
Movants filed the instant Motion.
18
The second investigation, the Grissom matter, came to light during the Courts
19
questioning of Sheriff Arpaio about the Montgomery investigation; the Court was
20
unaware of the Grissom matter until Sheriff Arpaio testified to its existence. After Sheriff
21
Arpaio denied being aware of any investigation involving the Court, he then testified as
22
follows:
23
Q.
Are you aware that Ive ever been investigated by

anyone?
A.
You investigated?
Q.
Yes.
24
25
26
27
10
28
The phone number that is attributed to the Court in these documents is not,
however, accurate.
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1
2
3
4
5
6
7
8
9
A.
No. No.
Q.
Any of my activities?
A.
No.
Q.
Any of my family members?
A.
That have been investigated?
Q.
Yes.
A.
Not by our office.
Q.
Are you aware of anybody whos investigated any of

my family members by anyany office. Or anybody.
A.
I believe there was an issue, but once again, it wasnt

my office.
Q.
Well, whose office was it?
A.
It was an outside investigator not hired by us.
Q.
Who hired the outside investigator?
A.
Could have been Counsel.
Q.
Counsel meaning your counsel?
Q.
Yes.
10
11
12
13
14
15
16
17
(Tr. 647:848:3.) The Courts inquiry of Sheriff Arpaio on the Grissom matter lasted
18
only for a few minutes prior to the lunch recess. The next day, the Court asked a few
19
clarifying questions on this topic during defense counsels cross-examination of Chief
20
Deputy Sheridan. The Court asked no additional questions about a possible investigation
21
of its family members during its own colloquy with Sheridan.
22
MCSO apparently initiated the Grissom investigation after a woman named Karen
23
Grissom sent a message through Facebook.com to Sheriff Arpaio in August of 2013. Mrs.
24
Grissoms message to Sheriff Arpaio alleged that she heard this Courts wife make
25
remarks to the effect that [the Court] hates u [Arpaio] and will do anything to get u out
26
of office. (Doc. 1115 at 8; Doc. 1117, Ex. 5.) Mrs. Grissom attributes the statement to a
27
conversation she had with the Courts wife fourteen or fifteen months earlier at a local
28
restaurant. (Doc. 1115 at 6; Tr. 964:19.) Upon receiving the message, Sheriff Arpaio
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consulted with his counsel, Timothy Casey, who initially tried to locate Mrs. Grissom and
evaluate the credibility of her story. (Doc. 1115 at 89.) Although Mrs. Grissom repeated
the supposed memory of her encounter with the Courts wife, her demeanor and general
non-responsiveness led Mr. Casey to conclude that the matter was over and that the
information from Ms. Grissom lacked substance or merit. (Id. at 9.) Mr. Casey shared
this conclusion with Sheriff Arpaio and Chief Deputy Sheridan. (Id.)
Nevertheless, after a subsequent meeting with Sheriff Arpaio and Chief Deputy
Sheridan, Mr. Casey retained Don Vogelthe independent contractor to whom the
principal Armendariz investigations were later outsourced by MCSOin October 2013
10
to further investigate Mrs. Grissoms allegations. (Id. at 10; Tr. 966:23, 2123.) In the
11
interviews Mr. Vogel subsequently conducted with Mrs. Grissom and her family, all
12
corroborated that Mrs. Grissom had met with a woman at this particular restaurant who
13
had implied harboring negative feelings toward Sheriff Arpaio. (Doc. 1115 at 1011; Tr.
14
967:1768:2.) However, they were generally unable to remember the details of the
15
conversation. (Doc. 1115 at 1011.) There were also inconsistencies in the Grissoms
16
recounting of the statement pertaining to Sheriff Arpaio supposedly made by the woman
17
in the restaurant. (Id.) According to counsel, Mr. Vogel found the Grissoms sincere and
18
truthful in their statements about what they believe they heard from Mrs. Snow. (Id. at
19
6.) Nevertheless, at the conclusion of Mr. Vogels investigation, Mr. Casey made the
20
following determination: [T]he Grissom information is, in my judgment, so
21
fundamentally flawed in its substance that it likely cannot be used in a Rule 60 motion,
22
appeal, or otherwise without the lawyer doing so violating the Federal Rules of Civil
23
Procedure and the Arizona Rules of Professional Conduct. (Id. at 7, 1819.) Mr. Casey
24
recommend[ed] and strongly advise[d] Sheriff Arpaio against any use of the Grissom
25
information. (Id. (emphasis in original).)
26
Despite their hearing testimony that the investigator allegedly found the Grissoms
27
stories credible, Chief Deputy Sheridan stated that nothing came of the Grissom
28
allegations. (Tr. 968:59) He has since acknowledged both in interviews with the press
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and on the record that Movants took Mr. Caseys advice, given in November 2013, and
chose not to pursue the matter further (Tr. of May 14, 2015 Status Conf. 911, Doc.
1097.) Consequently, the matter sat in [Chief Deputy Sheridans] desk drawer for a year
and a half, until it came out in court when the Sheriff was on the stand because Movants
had no intention to do anything after they were told it would be unethical for [them] to
make a complaint on third-party hearsay. (Id. (quoting Yvonne Wingett Sanchez, How
Mexican Food Drew Couple Into Heart of Arpaio Case, Ariz. Republic, May 08, 2015).)
Movants counsel also avowed to the Court that the Sheriff and the Chief Deputy
accepted the advice of counsel and let it go. (Id.) Movants continue to maintain, as with
10
the Montgomery matter, that at no time was Judge Snow or his wife the subject of an
11
investigation. (Docs. 1083, Ex. 1; see also Doc. 1117 at 9; Tr. 961:89.)
12
LEGAL STANDARDS
13
The two principal statutes that govern federal judicial recusal are 28 U.S.C. 144,
14
Bias or Prejudice of Judge, and 28 U.S.C. 455, Disqualification of Justice, Judge, or
15
Magistrate Judge. Section 144 provides a statutory method for seeking recusal only on
16
the basis of a federal district judges personal bias and is triggered by the filing of a
17
timely and sufficient affidavit setting forth the facts that would convince a reasonable
18
person that the judge has a bias or prejudice. 28 U.S.C. 144. The affidavit must be
19
accompanied by a certificate of counsel of record stating that it is made in good faith.
20
Id. The affidavit and accompanying certificate are strictly construed for form, timeliness,
21
and sufficiency. United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993). The court has
22
a duty to proceed no further and assign the motion to another judge for a determination
23
of the merits only after it determines the affidavit is legally sufficient. United States v.
24
Sibla, 624 F.2d 864, 868 (9th Cir. 1980). A party may file only one affidavit pursuant to
25
144 in any case. 28 U.S.C. 144.
26
Section 455, in contrast, has two recusal provisions. Subsection (a) states that a
27
judge. . . of the United States shall disqualify himself in any proceeding in which his
28
impartiality might reasonably be questioned. 28 U.S.C. 455(a). An objective standard

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applies to disqualification under 455(a), which contemplates whether a reasonable
person with knowledge of all the facts would conclude the judge's impartiality might
reasonably be questioned. Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir.
1993). Subsection (b) enumerates specific situations that require a judge to disqualify
himself, regardless of whether the conflict of interest creates an appearance of
impropriety:
7
8
(1) Where he has a personal bias or prejudice concerning a

party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
...
10
(4) He knows that he, individually or as a fiduciary, or his

spouse . . . has a financial interest in the subject matter in
controversy . . . or any other interest that could be
substantially affected by the outcome of the proceeding; [or]
11
12
...
13
14
(5) He or his spouse, or a person within the third degree of

relationship to either of them, or the spouse of such a person:
15
...
16
(iii) Is known by the judge to have an interest that could be

substantially affected by the outcome of the proceeding; [or]
17
(iv) Is to the judges knowledge likely to be a material

witness in the proceeding.
18
19
20
21
22
23
24
25
26
28 U.S.C. 455(b)(1)(5). The analysis under section 455(b) is subjective and also selfenforcing on the part of the presiding judge. United States v. Holland, 519 F.3d 909, 915
(9th Cir. 2008).
Recusal for actual bias pursuant to subsection (b)(1) is required only if the moving
party can prove by compelling evidence that a reasonable person would be convinced
the judge was biased in a way that may prevent a fair decision on the merits.11 United
States v. Balistrieri, 779 F.2d 1191, 1201 (7th Cir. 1985); see also Liteky v. United States,
510 U.S. 540, 55356 (1994) (defining bias as animus or malice of a kind that a fair-
27
28
11
The standard is identical under 445(b)(1) and 144. Sibla, 624 F.2d at 867.
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minded person could not entirely set aside when judging certain persons or causes). The
party seeking recusal carries a substantial burden of overcoming the presumption that a
district court is free from bias. United States v. Denton, 434 F.3d at 1104, 1111 (8th Cir.
2006). The other relevant provisions of 455(b) mandate disqualification on the basis of
a judges personal interest in the case or his familial relationship with a material witness
or other interested party to a proceeding. 28 U.S.C. 455(b)(4)(5). The statute specifies
that the degree of relationship that necessitates recusal under 455(b) is calculated
according to the civil law system, which includes spouses and siblings. Id. 455(d)(2).
Motions brought pursuant to either 144 or 455 are subject to the extrajudicial
10
source rule, meaning that the disqualifying bias or prejudice must generally stem from
11
something other than information and beliefs the judge acquired while acting in his or
12
her judicial capacity. United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012)
13
(quoting United States v. Frias-Ramirez, 670 F.2d 849, 853 n.6 (9th Cir. 1982)); accord
14
United States v. Wilkerson, 208 F.3d 794, 799 (9th Cir. 2000) (To disqualify a judge, the
15
alleged bias must constitute animus more active and deep-rooted than an attitude of
16
disapproval toward certain persons because of their known conduct. (internal quotation
17
marks omitted)). A judges courtroom conduct, expressions of opinion, or adverse rulings
18
during the course of proceedings in which disqualification is sought, or in related
19
proceedings, do not constitute a valid basis for the judges disqualification under 144
20
or 455. See Liteky, 510 U.S. at 555; In re Marshall, 721 F.3d 1032, 1043 (9th Cir. 2013).
21
Recusal motions must also be filed in a timely manner. See 28 U.S.C. 144;
22
Preston v. United States, 923 F.3d 731, 73233 (9th Cir. 1991) (applying same timeliness
23
standard to 455 motion). This requirement avoids wasted judicial time and resources
24
and a heightened risk that litigants would use recusal motions for strategic purposes. Id.
25
(internal citations omitted). Although no per se rule exists regarding the time frame in
26
which recusal motions should be filed, they must be filed with reasonable promptness
27
after the ground for such a motion is ascertained. Id.
28
When a case is close, the balance should tip in favor of recusal. Holland, 519 F.3d
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at 912. Nevertheless, the recusal statute is not intended to give litigants a veto power
over sitting judges, or a vehicle for obtaining a judge of their choice. United States v.
Cooley, 1 F.3d 985, 993 (10th Cir. 1993). In considering whether recusal is appropriate
under 455, the judge is free to make credibility determinations, assign to the evidence
what he believes to be its proper weight, and to contradict the evidence with facts drawn
from his own personal knowledge. Balistrieri, 779 F.2d at 1202.

DISCUSSION
7
8
For the reasons set forth below, Movants have not satisfied the requirements to
bring a motion pursuant to 144. Therefore, the Court need not accept the truth of the
10
allegations in Sheriff Arpaios affidavit nor refer the Motion to another judge for a
11
determination of its merits. See Sibla, 624 F.2d at 868. The Court will instead consider
12
whether the record as a whole demonstrates actual bias against Movants, triggers the
13
automatic recusal provisions of 28 U.S.C. 455(b), or raises a reasonable question about
14
the Courts impartiality.12 (See Doc. 1117 (quoting 28 U.S.C. 455).)
15
I.
The Courts Actions and Rulings Relating to the Contempt Proceedings Are
16
Not Grounds for Recusal.
17
The record of the contempt proceeding belies Movants contention that the Court
18
exhibits antipathy toward Movants; nor would an objective third party perceive a
19
significant risk that the Court would resolve the case on a basis other than the merits.
20
Movants reliance on the Courts rulings and actions as the foundation for their Motion to
21
Recuse also ignores the long-settled principle that, to trigger recusal, any alleged bias
22
must spring from an extrajudicial source, not from information or beliefs the judge gained
23
over the course of litigation, or else the bias must be particularly excessive in degree. See
24
25
26
27
28
12
The Motion also refers to the recusal requirements under the Judicial Code of
Conduct. The standard for disqualification under the judicial canons is substantively
identical to that under the federal statutes. See Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 870 (1988) (Rehnquist, J., dissenting) (explaining that 455 was
substantially revised by Congress to bring it in conformity with Canon 3C of the Code of
Conduct for United States Judges). The state canons cited in the Motion are inapplicable
to federal courts.
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Litkey, 510 U.S. at 55051.
Sheriff Arpaio and Chief Deputy Sheridan argue that the Courts conduct during
the civil contempt proceedings establish that it has a personal bias or prejudice against
them, 28 U.S.C. 455(b)(1), or might cause a reasonable person to question the Courts
partiality. Id. 455(a). In particular, Movants challenge the Courts denial of their
Motions to Vacate and its invitation to the United States Attorneys Office to attend
status conferences. (Doc. 1117 at 57.) Movants further assert that the Court engaged in
outside investigations . . . that [it] infused into the proceeding, took evidence outside of
court, asked leading questions, was argumentative with and interrupted Chief
10
Deputy Sheridan, and gave [its] own testimony. (Id. at 15.) Movants attempt to prove
11
these allegations solely by reference to the declaration13 of Ronald D. Rotunda, who is a
12
professor at Chapman University School of Law. (See id. at 1415.)
13
However, the Rotunda declarationas well as Plaintiffs corresponding
14
declaration by Stephen Gillers, a professor at New York University School of Lawis an
15
expert opinion. The law of this and every Circuit is that while an expert may provide an
16
opinion to help the jury or judge understand a particular fact, the expert is not permitted
17
to give an opinion as to his legal conclusion. Hangarter v. Provident Life & Accident Ins.
18
Co., 373 F.3d 998, 1016 (9th Cir. 2004); see also Fed. R. Evid. 702(a) (requiring that
19
expert opinion evidence help the trier of fact to understand the evidence or to determine
20
a fact in issue). The question presented on the recusal motion is whether 28 U.S.C. 455
21
requires this Court to disqualify itself. This decision is solely a question of law. See
22
Jefferson Cnty. v. Acker, 92 F.3d 1561, 1581 (11th Cir. 1996), vacated on other grounds,
23
520 U.S. 1261 (1997) (Whether a judge is disqualified, that is, must not take part in
24
13
25
26
27
28
Movants reply memorandum is accompanied by a second declaration from

Professor Rotunda dated June 19, 2015. (Doc. 1158, Ex. 1.) In addition to the reasons
stated below, the Court will not consider this new declaration because parties may not
present new evidence for the first time in their reply briefs. Provenz v. Miller, 102 F.3d
1478, 1483 (9th Cir. 1996) (Where new evidence is presented in a reply to a motion . . .
the district court should not consider the new evidence without giving the [non-]movant
an opportunity to respond. (quoting Black v. TIC Inv. Corp., 900 F.2d 112, 116 (7th Cir.
1990))).
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deciding a case, is a question of law.); In re City of Houston, 745 F.2d 925, 927 (5th Cir.
1984) (same). Because both declarations only purport to offer interpretations and
analyses of 455 and express the professors opinions on whether the Court must
withdraw from this case, (see Doc. 1117, Decl. of Ronald Rotunda 2930; Doc. 1150,
Decl. of Stephen Gillers 21), they are not appropriate for the Court to consider in
deciding whether its recusal is appropriate. See in re Initial Pub. Offering Sec. Litig., 174
F. Supp. 2d 61, 64 (S.D.N.Y. 2001) (excluding expert opinions of law professors that trial
judge should recuse herself on the grounds that they impermissibly stated conclusions of
law); accord United States v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987).
10
Although the Court disregards both declarations, it is Movants who bear the
11
burden of overcoming the presumption that the Court is impartial. See Denton, 434 F.3d
12
at 1111. Movants failure to cite to anything admissible that might suggest how the
13
Courts course of examination or rulings demonstrate its actual bias against them falls
14
short of the compelling evidence standard that governs motions to recuse under
15
455(b)(1). See Hook, 89 F.3d at 355. Moreover, to the extent that the examples of the
16
Courts bias cited to by Movants are based on the Courts rulings and conduct during the
17
contempt proceedings, the Motion also fails under 455(a) and (b)(1) because judicial
18
rulings and conduct during litigation are not a valid basis for a bias or partiality motion
19
unless they display a deep-seated favoritism or antagonism that would make fair
20
judgment impossible. Liteky, 510 U.S. at 555. If the Court committed error in relation to
21
the contempt proceedings, Movants proper recourse is an appeal to the Ninth Circuit, not
22
a motion for recusal. Id. Under the circumstances, a person apprised of all relevant facts
23
would not reasonably doubt the Courts impartiality.
24
First, the proceedings in which the underlying events occurred were civil contempt
25
hearings, the factual basis for which Movants do not contest. (See Docs. 880, 948, 1003.)
26
Even if it were to accept Movants unsupported contention that the Court interrupted
27
Chief Deputy Sheridan or was argumentative, (see Doc. 1117 at 15), these actions
28
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seated animus toward Movants that requires the Courts recusal. See Liteky, 510 U.S. at
55556; see also Marshall, 721 F.3d at 1043 (holding that a series of hostile comments
toward litigant did not require the judges recusal because the comments might also be
reasonably seen as the product of [the judges] frustration with [the litigants] behavior
throughout the litigation). The record reflects that the Courts orders were violated from
a very early stage in this litigation, and that Movants continued to resist the Courts
directives after the Court entered its permanent injunction and throughout the compliance
phase. The Court has expressed concern for what it perceives to be, at best, Movants
negligent approach to the timely implementation of its orders and, at worst, a pattern of
10
knowing defiance and subversion of the Courts efforts to administer justice in this
11
action. Movants antagonism has necessitated substantial judicial corrective action; yet,
12
as of the Monitors last report, MCSO was not close to achieving full compliance with
13
the injunctive order entered nearly two years ago. See Robert S. Warshaw, Third
14
Quarterly Report 112 (2015) (Doc. 1010). The Courts comment about Movants having
15
skin in the game in any proposed settlement does not provide a basis for recusal for
16
similar reasons. The Court has previously questioned whether, due to the organization of
17
the Maricopa County governmentwhich requires the County as a whole to bear the
18
brunt of the financial costs incurred by Movants recalcitranceand Movants ability to
19
solicit contributions to fund their litigation, Movants might appreciate no adverse
20
consequences, financial or otherwise, from their admitted contempt. (See, e.g., Tr. of
21
Mar. 20, 2015 Status Conf. 52:1653:7, Doc. 965.) The Court need not ignore these facts
22
in making its rulings. See in re Yagman, 796 F.2d 1165, 118182 (9th Cir. 1986) (When
23
[a judge imposes sanctions], the judge will obviously be dissatisfied with some aspect of
24
the offending . . . conduct[;] . . .[w]ithout more, this natural responsive attitude does not
25
provide reasonable grounds to question the judge's impartiality . . . .). Disinterestedness
26
does not mean child-like innocence. If the judge did not form judgments of the actors in
27
those court-house dramas called trials, he could never render decisions. Liteky, 510 U.S.
28
at 551 (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)). In this case,
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the record does not support the conclusion that the Court was critical of or hostile toward
Movants, let alone that its behavior was serious enough to overcome the high standard
set forth in Liteky. Marshall, 721 F.3d at 1043.
Second, the accusation that recusal is required because the Court took evidence
outside of court is misplaced. (See Doc. 1117 at 15.) During the evidentiary hearing,
Sheriff Arpaio testified on the source of funding for the Montgomery investigation,
which involved MCSO deputies as well as a member of the Cold Case Posse. Sheriff
Arpaio stated that Maricopa County had not paid for the Cold Case Posse members trips
to the Seattle area. (Tr. 645:15.) During the ensuing lunch break, the Monitor mentioned
10
to the Court that the Cold Case Posse may have separate finances from MCSO. When the
11
proceedings resumed, the Court confirmed as much with Sheriff Arpaio during
12
questioning. (Tr. 657:1859:1.)
13
As an initial matter, only in the rarest of circumstances need the Court recuse
14
itself on the basis of knowledge gained in a judicial capacity. Holland, 519 F.3d at 913
15
14. The Monitor is an agent of the court and, in this role, has communicated with the
16
Court as necessary to oversee and coordinate Defendants compliance with existing
17
judicial orders on the Courts behalf. See United States v. Yonkers Bd. of Educ., 946 F.2d
18
180, 184 (2d Cir. 1991) (denying motion to recuse based on communications between
19
judge and court-appointed outside housing advisor). In addition, the Monitors
20
unprompted comment during the recess did not provide the Court with the kind of
21
substantive information about proceedings that cannot be controverted or tested by the
22
tools of the adversary process. See Edgar v. K.L., 93 F.3d 256, 259 (7th Cir. 1996).
23
Rather, the only evidence on this matter is in the record: Sheriff Arpaios testimony, as
24
developed through the Courts examination. Under the circumstances, then, the Courts
25
clarifying questions did not constitute an independent investigation or otherwise
26
demonstrate that the Court possessed impermissible knowledge of a disputed evidentiary
27
fact. See 28 U.S.C. 455(b)(1). This would also not cause a reasonable and informed
28
observer to question the Courts impartiality. See id. 455(a); Yonkers, 946 F.2d at 184.
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Third, the Courts orders after the first phase of the contempt hearings that
Defendants immediately produce all documents relating to the matters on which Sheriff
Arpaio had testified or pertaining to the Monitors discretion to inquire into matters . . .
pertinent to the current contempt findings are not an adequate basis for the instant
Motion.14 (See Tr. of May 14, 2015 Status Conf. 50:24-51:6, Doc. 1097.) The orders
relating to document production were justified by Defendants past failures to adequately
and timely conduct discovery and produce requested documents. These failures are one
of the grounds for contempt noticed in the Order to Show Cause to which the Movants
have admitted and are largely the reason the evidentiary hearings remain incomplete.
10
Defendants past destruction of responsive documents also has already resulted in the
11
imposition of sanctions at an earlier stage of litigation. (Doc. 493.) Movants non-
12
compliance with Court orders in a way that risked additional evidence spoliation is yet
13
another ground on which Movants are charged with, and have admitted to being in,
14
contempt. Further, Defendants ambivalence toward meeting self-imposed deadlines has
15
repeatedly delayed the judicious progression of this litigation; in the context of internal
16
affairs, for example, Defendants delay in completing the Armendariz-related
17
investigations has prevented the Monitor from being able to assess the adequacy of a
18
number of MCSOs self-investigations. In light of this history, the Courts efforts to
19
ensure the preservation of the Montgomery and Grissom documents and their timely
20
production do not fairly suggest that the tribunal is biased against Movants. See Marshall,
21
721 F.3d at 104243 (considering judges orders in light of litigants history in the case);
22
McTiernan, 695 F.3d at 892 (finding judges negative comments about a defendant did
23
not imply her partiality where they were based on the defendants known past
24
misconduct).
25
14
26
27
28
Movants arguments that the Court ordered the disclosure of materials without
providing an opportunity for counsel to conduct privilege review, or that the Court
provided the Monitor with unbounded investigative power bearing no relation to this
case, mischaracterize the record. (See, e.g., Doc. 1032; Tr. 653:1825; Tr. of May 8, 2015
Status Conf. 30:14, 30:2531:15, Doc. 1086; Tr. of May 14, 2015 Status Conf. 53:12
56:25, Doc. 1097.)
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The Courts specification following the first phase of the contempt hearing that the
Monitors investigative and oversight authority extended to the Montgomery
investigation is likewise responsive to Movants testimony and does not otherwise imply
an invidious motive on the part of the Court. Under the terms of the Supplemental
Permanent Injunction, the Federal Rules of Civil Procedure, and its inherent power, the
Court has continuing authority to modify the Monitors role in adaption to changed
circumstances. (See Doc. 606); Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 380
81 (1992). Since the permanent injunction was entered, Defendants actions have resulted
in a number of modifications to the scope of the Monitors authority.
10
For instance, in April 2014 the Court, at the parties request, amended the
11
Supplemental Permanent Injunction to transfer responsibility for conducting community
12
outreach programs designed to improve relations with the Plaintiff class from Defendants
13
to the appointed Monitor after Defendants objected to their compelled participation in
14
these programs. (Tr. of March 24, 2014 Hrg, Doc. 662; see Doc. 670.) Around this time,
15
the Court became aware that Movants and other members of MCSOs command staff had
16
repeatedly mischaracterized the Courts orders since it issued its Findings of Fact,
17
including during a training organized for MCSO patrol deputies and in other public
18
forums. (See Docs. 656 at 414, 680 at 13, 684 at 4; Tr. of Mar. 24, 2014 Hrg, Doc.
19
662; Tr. of Apr. 3, 2014 Hrg, Doc. 672; Tr. of Oct. 28, 2014 Status Conf., Doc. 776.)
20
After the Movants agreed to voluntarily address these misrepresentations, subsequent
21
press coverage caused Sheriff Arpaio to change his mind. (Doc. 680 at 3.) The Court, in
22
response, entered an enforcement order requiring that Defendants distribute a corrective
23
statement within MCSO and that command staff and patrol personnel take steps to
24
familiarize themselves with the content of the Courts Findings of Fact and Conclusions
25
of Law; the Court assigned to the Monitor the responsibility for verifying Defendants
26
compliance with that order. (Doc. 680 at 4.) The following month, developments brought
27
about by the death of Deputy Armendariz put MCSO in the conflicted position of
28
investigating its own operations and supervisors in matters related to this litigation. When
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MCSO insisted on undertaking such investigations despite the conflict of interest,
Defendants agreed that the Monitors involvement and oversight was appropriate. (See
Tr. of May 14, 2014 Status Conf. 95:696:15, Doc. 700.) In November 2014, concerns
about the adequacy of MCSOs investigations into the Armendariz issues, and the
revelation that MCSO had never complied with this Courts preliminary injunction,
resulted in the addition of an independent investigative component to the Monitors
authority. (Doc. 795.) At each stage, the supplements to the Monitors responsibilities
were discussed with the parties and the memorializing orders revised at their suggestion.
Movants do not explain why a detached third party would now infer bias from the
10
Courts specification that the Monitors independent investigative authority allowed him
11
to look into the Montgomery investigation. Certainly, the documents produced by
12
Defendants after Movants testimony do suggest, at a minimum, the inaccuracy of their
13
previous testimony sufficient to justify the Monitor to consider such matters in
14
conjunction with his investigative and oversight authority.
15
Lastly, Movants assertion that the Courts questions denied them of due process
16
is baseless. The Federal Rules of Evidence plainly extend to the Court the right to
17
participate in questioning witnesses. Fed. R. Evid. 614 & advisory committee notes; see
18
also Barba-Reyes v. United States, 387 F.2d 91, 93 (9th Cir. 1967) ([T]he function of a
19
federal trial judge is not that of an umpire or of a moderator at a town meeting. . . . [I]t is
20
his duty to see that a case on trial is presented in such way as to be understood . . . . He
21
should not hesitate to ask questions for the purpose of developing the facts; and it is no
22
ground of complaint that the facts so developed may hurt or help one side or the other.).
23
In addition, in a civil contempt proceeding, it is the offended judge [who is] solely
24
responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious
25
conduct. Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994).
26
The record further indicates that on the first day of the contempt proceedings the Court
27
informed the parties of its intent to participate in questioning witnesses. (Tr. 140:612.)
28
Movants were each represented by civil and criminal counsel at the show-cause hearings,
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none of which objected to the Courts examination at the time or to the questions posed to
either Movant, despite being invited to do so by the Court. (Tr. 625:1216); cf. Fed. R.
Evid. 614(b)(c); Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 839 (4th Cir. 1987)
([T]he failure of . . . counsel to object to any of this questioning at trial precludes our
review of this issue on appeal.). Due process guarantees the right to be fairly heard
before the Court arrives at a decision. See Little v. Kern Cnty. Sup. Ct., 294 F.3d 1075,
1080 (9th Cir. 2002). However, a fact witness in a legal proceeding has no constitutional
entitlement to advance notice of every question he might be asked. The now-challenged
topics on which the Court questioned Movants are relevant to the Courts determination
10
of the extent of Defendants resistance to the Courts orders and what measures are
11
necessary to compel Movants ongoing compliance with its orders and provide
12
comprehensive relief to the Plaintiff class for Movants contempt. Moreover, the Courts
13
intervention in witness examination was particularly appropriate in light of the fact that
14
Defendants had restricted Plaintiffs ability to develop the evidentiary record by
15
withholding discoverable evidence. See United States v. Parodi, 703 F.2d 768, 775 (4th
16
Cir. 1983) (noting judges questioning of witnesses is especially appropriate in such
17
circumstances). No due process violation occurred merely because Movants compelled
18
testimony revealed evidence contrary to Movants interests in the litigation, namely, that
19
MCSO may have hired a confidential informant at least partly in an attempt to discredit
20
this Court by linking it to a speculative conspiracy. Barba-Reyes, 387 F.2d at 93; cf.
21
Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (remarking on district courts inherent
22
power to police litigants whose actions show bad faith or the intent to hamper
23
enforcement of court orders).
24
Under the principles discussed above, Movants arguments for recusal that relate
25
to the Courts conduct in and around the contempt hearing are foreclosed by the record
26
and the extrajudicial source rule. The examples Movants provide of the Courts alleged
27
bias consist of rulings and conduct all occurred in the course of judicial proceedings and
28
neither reflect a negative opinion of Movants based on facts that the Court acquired
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extrajudicially, nor display a level of antagonism that would impede fair judgment on the
merits. See Liteky, 510 U.S. at 556. Sheriff Arpaio is a frequent litigant before this Court
on a wide variety of civil matters, and is a named defendant in a half-dozen pending cases
assigned to the Court in which he has not sought the Courts recusal. This further
suggests that the impetus for Movants efforts to disqualify the Court in this case is not
concern that the Court harbors any extrajudicial bias against Sheriff Arpaio or Chief
Deputy Sheridan, but, rather, stems from their dissatisfaction with the Courts rulings in
this case, which is not an issue properly resolved through a disqualification motion. See
id. at 55556. Although a court must recuse when the provisions of 455 are implicated,
10
it also has an obligation to hear all cases assigned to it when there is no legitimate reason
11
to recuse. Holland, 519 F.3d at 912. In this case, nothing about the Courts conduct
12
pertaining to the contempt hearing warrants its recusal under 455(a) or (b)(1).
13
II.
The Montgomery and Grissom Investigations Do Not Give the Court or its
14
Wife a Disqualifying Interest in the Outcome of the Proceedings,
15
Demonstrate its Actual Bias, or Otherwise Warrant Recusal.
16
Neither the facts underlying the Grissom and Montgomery investigations nor the
17
Courts inquiry into those investigations demonstrate actual bias or reasonably risk an
18
appearance of partiality to an objective third party with knowledge of the matters. See 28
19
U.S.C. 455(a)(b)(1). Furthermore, neither investigation implicates an interest of the
20
Court or its wife that stands to be substantially affected by the outcome of this
21
proceeding. See id. 455(b).
22
A.
The Montgomery Matter
23
A charge of bias or prejudice under 455(b)(1) or that a judges impartiality might
24
reasonably be questioned under 455(a) must be sufficiently grounded in fact to generate
25
doubt in the mind of a fully informed, objective observer; mere speculation or innuendo
26
is not enough. See in re United States, 666 F.2d 690, 695 (1st Cir. 1981). In this case,
27
nobodynot even Movantsasserts that the Court was actually involved in the alleged
28
conspiracy that is reflected in the documents on the Montgomery matter produced by

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Defendants subsequent to Movants testimony. (See Tr. 1003:12) Sheriff Arpaio and
Chief Deputy Sheridan testified that they no longer have confidence in any of the
materials provided by Mr. Montgomerythey believed those materials to be junk (Tr.
650:2025)that they had always been very skeptical of Mr. Montgomerys claims,
and that they finally realized that he was stringing [them] along. (Tr. 1002:216.)
Among other problems apparent from the face of the Montgomery materials, the
telephone number attributed to the Court in documents that purported to prove phone
calls with the Department of Justice, (Doc. 1150, Aff. of Cecilia Wang, Ex. B (available
at Doc. 1153)),
is similar to, but has never been, the Courts telephone number.
10
[R]umor, speculation . . . and similar non-factual matters that are advocated by no one
11
do not suffice to establish actual bias. Clemens v. U.S. Dist. Ct. for Cent. Dist. of Cal.,
12
428 F.3d 1175, 1178 (9th Cir. 2005).
13
Nor do they raise a reasonable question about the Courts impartiality: Sheriff
14
Arpaio testified that nothing about the Montgomery matter affected his perception of the
15
Courts ability to remain neutral in this case. (Tr. 652:1618.) Chief Deputy Sheridan
16
also disclaimed that the Montgomery materials caused him to believe there was collusion
17
between the Court and the Department of Justice. (Tr. 1002:12.) Movants continue to
18
contend under penalty of perjury that the Montgomery investigation never involved any
19
investigation of [the Court]. (Doc. 1117 at 9; Doc. 1083, Ex. 1 (At no time was an
20
investigation initiated against Judge Snow . . . . At no time was Judge Snow or his wife
21
the subject or target of investigation.).) Movants have neither sought to recant those
22
declarations nor assert the truth of the conspiracy apparently outlined in the Montgomery
23
documents. If Movants, knowing the facts of the Montgomery investigation as they did,
24
did not doubt the Courts impartiality it follows that a reasonable person would not either.
25
See 28 U.S.C. 455(a).
26
To the extent that the Movants seek to now implicitly assert the truth of the
27
Montgomery materials, they are precluded from doing so because a party must seek to
28
disqualify a judge in a timely fashion after he becomes aware of the basis for
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disqualification. Yet, Movants knew about the content of the Montgomery documents for
some time before they filed the instant Motion. See Preston, 923 F.3d at 73233 (quoting
Molina v. Rison, 886 F.2d 1124, 1131 (9th Cir. 1989)). At the contempt hearing, Chief
Deputy Sheridan testified that, over the course of Mr. Montgomerys investigation, he
was presented with materials suggesting that the Department of Justice had made contact
with the Court; it was at this point that he apparently ordered his subordinates to
undertake no investigation of the Court. He further testified that no additional materials
regarding the Court materialized after this point in time. Therefore, assuming the
accuracy of Chief Deputy Sheridans testimony, he has long been aware of all of the
10
Montgomery documents implicating the Court in an alleged conspiracy, but nevertheless
11
elected not to seek the Courts disqualification until May 2015after the Court invited
12
the parties to address the seeming inconsistencies between the Montgomery documents
13
and Movants testimony and months after Movants apparently lost faith in Mr.
14
Montgomerys credibility.15 There is a presumption that a recusal petition submitted after
15
the moving party suffers adverse rulings has been filed for suspect tactical and strategic
16
reasons. See E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir.
17
1992).
18
Furthermore, that the Court inquired into the Montgomery investigation is not a
19
proper basis for the Courts disqualification under 455(b)(1) because there is nothing to
20
suggest the Courts examination was the product of extrajudicial bias. See Liteky, 510
21
U.S. at 555. Aspects of the Montgomery investigation are relevant to this litigation for
22
reasons the Court has already explained on the record. Sheriff Arpaio began a time- and
23
resource-intensive operation involving Mr. Montgomery at a time when MCSO was
24
25
26
27
28
15
The New Times article that summarizes what the documents subsequently
produced by Defendants tend to show was also published over a year ago, and documents
that have since been produced by Defendants reinforce the timeline testified to by
Movants, that they suspected Mr. Montgomery was stringing MCSO along for at least
several months. (See Doc. 1150, Aff. of Cecilia Wang, Ex. C (compiling e-mails from at
least November 2014 challenging Mr. Montgomerys work product) (available at Doc.
1153).)
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under an obligation to implement the Supplemental Permanent Injunction. To the extent
that MCSO may have been trying to use Montgomery to discredit the Court and
undermine the legitimacy of its judgment in the underlying lawsuit, these facts are
relevant to the attitude that Defendants have toward the Court and its orders, and to the
corrective measures that may be necessary to remedy Movants contempt and achieve the
implementation of the permanent injunctive relief. This may be particularly germane in
light of the evidence that MCSO apparently continued to press Mr. Montgomery for work
product up until the eve of the show-cause hearings even after his credibility was found
to be lacking. (Doc. 1150, Aff. of Cecilia Wang, Exs. CE (available at Doc. 1153).)
10
The integrity and transparency of MCSOs PSB and SID processes are also
11
implicated by the Montgomery investigation. There is no dispute that there was
12
misconduct within the HSU and the MCSO generally that is relevant to this lawsuit,16
13
including patrol deputies unexplained confiscation of personal identifications and other
14
items. These matters were, at least at the time, systemically under-investigated by
15
supervisors within the SID. Further, the intentional destruction of the evidence of that
16
misconduct may have been sanctioned by those in charge. The inquiry into these issues
17
when they finally came to lightwas handled internally by PSB at the election of MCSO
18
and ultimately compromised by conflicts of interest, delays, and procedural inadequacies.
19
There now appears to have been substantial overlap in the personnel who failed to
20
adequately supervise Deputy Armendariz and the HSU, and those who were responsible
21
for the Montgomery investigation with its speculative ties to this Court. This raises
22
obvious questions about whether those personnel are, in fact, working to implement all of
23
this Courts orders in good faith, especially since the documents that have been produced
24
from the Montgomery investigation tend to suggest that Movants testimony on the
25
matter may have been at least partially inaccurate. Therefore, the Courts questions about
26
16
27
28
Defendants have never contested the relevance of the Armendariz materials to

the Plaintiffs underlying constitutional claims or that it falls within the scope of the
Monitors oversight. (See, e.g., Tr. of May 14, 2014 Status Conf. 55:2156:8, 73:2024,
Doc. 700.)
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the Montgomery investigation are relevant to this proceeding, and there is nothing to
suggest that the questions were motivated by deep-rooted antagonism against Movants.
See Liteky, 510 U.S. at 555.
In addition, to the extent that Movants are responsible for creating the
circumstances that they now offer as grounds for their Motion, the Montgomery materials
provide no basis for judicial disqualification. The Ninth Circuit is clear that a party
cannot effect recusal of a trial judge by its own actions. [B]aseless personal attacks on or
suits against the judge by a party, quotes attributed to the judge or others, but which are
in fact false or materially inaccurate or misleading, or attempts to intimidate the judge
10
will not suffice to trigger the Courts disqualification. Clemens, 428 F.3d at 1179
11
(quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)). Movants instigated the
12
Montgomery matter and have controlled the investigation and the limited disclosures to
13
date concerning its subject, scope, outcome, and relevance to this Court and Movants
14
contempt. By bringing the Motion, Movants stalled additional discovery into the
15
Montgomery materials from occurring. This kind of risk of strategic manipulation is what
16
455 (and its timeliness requirement) explicitly does not allow.
17
Lastly, none of the specific disqualifying subsections of 455(b) are applicable
18
here. Under 455(b)(4), a judge must recuse himself if he has a financial interest in the
19
subject matter in controversy or any other interest that could be substantially affected
20
by the outcome of the proceeding. 28 U.S.C. 455(b)(4). A judge must also disqualify
21
himself under 455(b)(5)(iii) where he or his spouse is known by the judge to have an
22
interest that could be substantially affected by the outcome of the proceeding. Id.
23
455(b)(5)(iii). A disqualifying interest is one that concerns the subject matter of the
24
litigation or a party to it. See in re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1314
25
(2d Cir. 1988). Courts have generally limited the kinds of interests for which recusal is
26
mandatory to those that are somehow pecuniary or proprietary in nature. See Guardian
27
Pipeline, LLC v. 950.80 Acres of Land, 525 F.3d 554, 557 (7th Cir. 2008); In re N.M.
28
Nat. Gas Antitrust Litig., 620 F.2d 794, 796 (10th Cir. 1980); In re Va. Elec. & Power
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Co., 539 F.2d 357, 367 (4th Cir. 1976); (see also Doc. 138 at 1516.) Even if a courts
concern with its general reputation were sufficient to constitute an interest within the
meaning of 455(b)(4) and (b)(5)(iii), such an interest would not be affected in this case
because no one claims that the conspiracy outlined in the Montgomery documents is true.
See Nachshin v. AOL, LLC, 663 F.3d 1034, 1042 (9th Cir. 2011) ([W]here an interest is
not direct, but is remote, contingent or speculative, it is not the kind of interest which
reasonably brings into question a judge's partiality. (quoting in parenthetical Sensley v.
Albritton, 385 F.3d 591, 600 (5th Cir. 2004))).
B.
The Grissom Matter
10
As with the Montgomery matter, the Courts questions and orders relating to the
11
Grissom matter do not warrant its recusal under 455(b)(1) or (a). See Liteky, 510 U.S.
12
at 555. The Courts knowledge of the Grissom investigation was acquired in the course of
13
this judicial proceeding, and the Courts conduct since learning of its existence in no way
14
suggests that the Court is now biased or prejudiced against Movants in a way that
15
threatens its ability to evaluate the case on the merits, let alone evidences the degree of
16
antagonism required to justify recusal where no extrajudicial source is involved. See id.
17
Although the Court had read the New Times article concerning an alleged
18
investigation of the Court by MCSO, the Court had no awareness of the Grissom matter
19
until Sheriff Arpaio testified, in response to the Courts questioning about the reported
20
investigation, that he knew of an investigation involving a member of the Courts family.
21
The Court asked a few follow-up questions of Sheriff Arpaio; then, the next day, defense
22
counsel elicited testimony on the matter from Chief Deputy Sheridan, apparently in an
23
attempt to clarify Sheriff Arpaios earlier statements. However, aspects of Sheriff
24
Arpaios testimony were sufficiently inaccurate to prompt the disclosure of additional
25
materials on the subject by Sheriff Arpaio and his former attorneys. (See generally Tr.
26
10191035; Doc. 1083, Ex. 1.) As a result, the Grissom matter garnered further attention
27
as the Parties litigated the applicability of attorney-client privilege and/or work-product
28
immunity to some of those disclosures. The Courts own examination of Movants on this
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matter has been minimal, and Movants provide no evidence that is reasonably suggestive
of any newly generated bias on the part of the Court since it learned of Mrs. Grissoms
allegations and Movants decision to investigate them.
Mrs. Grissoms paraphrasing of a statement allegedly made by the Courts wife,
alone, does not suffice to warrant the Courts recusal. Sheriff Arpaios counsel initially
evaluated the statement and Mrs. Grissom and concluded that her allegations lacked
substance or merit. (Doc. 1115 at 9.) Nonetheless, apparently at the request of Sheriff
Arpaio, Mr. Casey took the additional step of retaining Mr. Vogel to investigate the
matter further. (Id. at 10; Tr. 966:23, 2123.) After reviewing the results of that
10
investigation, Mr. Casey concluded that the Grissom information was fundamentally
11
flawed and provided no basis for a Rule 60 motion [or] appeal . . . without the lawyer
12
doing so violating the Federal Rules of Civil Procedure and the Arizona Rules of
13
Professional Conduct. (Doc. 1115 at 7, 1819.) Movants acknowledge that they
14
accepted this advice against any use of the Grissom information and let the matter go.
15
Movants stood by this decision even after the first phase of the contempt
16
proceedings. Sheriff Arpaios specially appearing counsel (who filed the instant motion)
17
stated publicly following Sheriff Arpaios testimony that the Grissom matter was not a
18
basis on which the Court should recuse. (See Doc. 1150, Aff. of Cecilia Wang, Ex. H.) In
19
addition, Movants argued before Magistrate Judge Boyle that nothing about the Grissom
20
investigation was relevant to issues at stake in this case in order to preserve attorney-
21
client privilege and work-product immunity over the November 2013 letter disclosed by
22
Mr. Casey in which he had summarized Mr. Vogels findings for Sheriff Arpaio. (See
23
Doc. 1073 at 45; Doc. 1107 at 5.) Movants were successful in preventing disclosure of
24
portions of the letter because Judge Boyle was apparently convinced, as Movants
25
claimed, that the facts underlying the Grissom investigation did not relate to the contempt
26
proceedings. (Doc. 1053 at 6.) The recusal statutes do not allow for the use of
27
disqualifying elements as a sword and a shield any more than the doctrines of attorney-
28
client privilege and work-product immunity do. See Bivens Gardens Office Bldg., Inc. v.
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Barnett Bks. of Fla., Inc., 140 F.3d 898, 913 (11th Cir. 1998) (noting that the
disqualification statute was intended as a shield, not a sword, and that disqualification
cannot be used as an insurance policy to be cashed in if a partys assessment of his
litigation risks turns out to be off and a loss occurs). Accordingly, the history amply
demonstrates that Movants themselves have concluded, repeatedly and after thorough
investigation of all of the facts, that the Grissom matter does not warrant the Courts
recusal. The Court agrees with these conclusions.
When a party becomes aware of a basis to seek to disqualify a judge, it must act
with reasonable promptness after the basis for disqualification is ascertained. Preston,
10
923 F.3d at 73233. The Ninth Circuit has cautioned that a party that unduly delays the
11
filing of a recusal motion is presumed to be filing it for manipulative purposes. See E. &
12
J. Gallo, 967 F.2d at 129596. Sheriff Arpaio became aware of the Grissom allegations
13
in August 2013, and, after inquiries by his attorney and an independent investigator,
14
elected not to pursue the Grissom matter further. Now, nineteen months later, Movants
15
have filed the instant Motion for disqualification. In the interim time, the Armendariz
16
materials came to light, precipitating the revelation of additional evidence of MCSOs
17
repeated failures to comply with the orders of this Court and the institution of civil
18
contempt hearings. Movants delay in raising the Grissom allegations until after the
19
contempt proceedings were underway not only raises the specter of attempted
20
manipulation of the judicial process, it runs counter to 455s requirement of prompt
21
action.
22
In an apparent attempt to bolster their argument for recusal, Movants now assert
23
that because testimony about the Grissom investigation occurred during the contempt
24
hearing, then Mrs. Snow is undoubtedly a material witness in this proceeding. (Doc.
25
1117 at 14; but see also id. at 14 (noting the irrelevance of the Grissom and
26
Montgomery investigations to the issue of whether the admitted contempt of the
27
Preliminary Injunction occurred . . .).) However, 455(b)(5)(iv) requires recusal only
28
when the judge or his spouse is to the judges knowledge likely to be a material witness
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in the proceeding. 28 U.S.C. 455(b)(5)(iv). A material witness is one who can testify
about matters having some logical connection with the consequential facts of a case.
Williams v. Stewart, 441 F.3d 1030, 1055 (9th Cir. 2006) (quoting Blacks Law
Dictionary (8th ed. 2004)); United States v. Vazquez-Botet, 453 F. Supp. 2d 362, 370
(D.P.R. 2006) (applying definition in context of motion under 455(b)(5)(iv)). The Court
has no reason to think that its spouse will be a material witness in any proceeding
pertaining to either the instant Motion or to the civil contempt proceedings. First, Sheriff
Arpaios former attorney already concluded that Mrs. Grissoms claims were
fundamentally flawed and legally insufficient. Movants accepted that conclusion. Second,
10
all of the facts from the Grissom investigation were known by Movants by the fall of
11
2013, and seeking disqualification on their basis now is untimely, regardless of which
12
provision of the statute Movants claim it triggers. See E. & J. Gallo, 967 F.2d at 1295
13
n.8; Preston, 923 F.2d at 733. Third, Movants do not suggest a single example of
14
admissible testimony that the Courts wife could offer: the Grissom allegation is not of
15
material importance to the show-cause hearing, nor did Movants request a hearing in
16
conjunction with their Motion for disqualification at which such testimonial evidence
17
might be taken. A judge will not be disqualified under 455(b)(5)(iv) based on mere
18
speculation that the judge or his family member will be called as a witness. See United
19
States v. Rivera, 802 F.2d 593, 601 (2d Cir. 1986) (finding judge was not required to
20
recuse himself on the basis of defendants allegations that judge would be material
21
witness at a requested hearing where defendants did not allege sufficient facts
22
demonstrating their entitlement to the hearing). Fourth, there is no precedent for
23
Movants contention that an alleged statement by a judges spouse that might be used to
24
question the judges impartiality is grounds for disqualification because the spouse is
25
likely to be a material witness. If this was the case, a party could deliberately
26
manipulate the recusal process by raising statements whose substance is fundamentally
27
flawed to demonstrate the supposed bias of the presiding judicial officer and attribute
28
them to the judge or a family member and, by forcing their contravening testimony to
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rebut the charge of bias, oblige the judge to recuse under 455(b)(5)(iv). That is exactly
what Movants attempt to do here by trying to re-raise a forfeited suggestion of alleged
bias. To the extent that anything about the Grissom matter continues to have incidental
relevance to this casefor example, it may illuminate that factual misrepresentations
have been made on the record, and suggests the existence of yet another potential conflict
in Defendants selection of Don Vogel as the independent contractor to whom to
outsource the Armendariz investigationsit is not because the Courts wife will be a
material witness.
Section 455s commitment to fairness in the administration of justice does not
10
require recusal upon the merest unsubstantiated suggestion of personal bias or
11
prejudice. Holland, 519 F.3d at 913. If a judge were to allow manipulation to deter the
12
normal course of litigation, this would equally risk subvert[ing] [judicial] processes,
13
undermin[ing] our notions of fair play and justice, and damag[ing] the publics
14
perception of the judiciary. Id. at 915. Accordingly, the reasonable person as to whom
15
the Court must evaluate the appropriateness of its recusal in light of a cases
16
particularities is not someone who is hypersensitive or unduly suspicious, but rather is
17
a well-informed, thoughtful observer. Id. at 913 (quoting In re Mason, 916 F.2d 384,
18
385 (7th Cir. 1990)). After careful consideration of all of the relevant facts, there is no
19
basis to believe the Court or its wife has a disqualifying bias or interest in the litigation
20
based on the Grissom matter. Moreover, Mrs. Grissoms allegations do not raise a
21
reasonable question about the Courts impartiality, because a neutral observer would not
22
infer the existence of actual prejudice against Movants from a single instance of third-
23
party hearsay that Movants own counsel determined to be baseless. See 28 U.S.C.
24
455(a).
25
III.
The Courts Brother-in-Laws Partnership Interest Does Not Require the
26
Courts Recusal
27
Movants also revive as an issue the Courts brother-in-laws affiliation with
28
Covington & Burling LLP, the law firm that represents Plaintiffs in this case. That a
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relative of a judge is a law partner of an attorney of record triggers a judges recusal only
if the nature of the familial relationship raises a reasonable question about the judges
impartiality, or if the relative is known by the judge to have an interest in the law firm
that could be substantially affected by the outcome of the proceeding. See 28 U.S.C.
455(a), (b)(5)(iii); Pashaian v. Eccelston Props., Ltd., 88 F.3d 77, 8384 (2d Cir.
1996).
The Court raised the issue of whether its withdrawal was appropriate in light of its
brother-in-laws partnership interest at Covington with the parties three years ago, prior
to trial. The Court entered an order setting forth the nature of its relationship with Mr.
10
Teel, the extent of its past consideration of the matter, and the reasons why its recusal
11
was not compelled by law or the judicial canons.17 (Doc. 537.) The Court also noticed a
12
hearing, (Doc. 539), at which it offered to recuse on the request of any party and to vacate
13
the orders it entered after Covington & Burlings appearance, including the Summary
14
Judgment and Preliminary Injunction order of December 23, 2011. (Tr. of June 29, 2012
15
Status Conf. 5:199:17, Doc. 1149.) At the hearing, Defendants agreed recusal was not
16
mandatory and affirmatively stated that they desired this case to remain on the Courts
17
docket. (Id. 15:1317:2.) Defendants also filed a notice indicating they expressly
18
waiv[ed] any and all appeal issues regarding . . . the Courts potential bias, impartiality,
19
and/or conflict of interest potentially implicated by its brother-in-laws partnership
20
interest at Covington & Burling. (Doc. 541.)
21
The Court, in another order, concluded that the Courts brother-in-law had no
22
interest, financial or otherwise, that required the Courts recusal under 455(b)(5)(iii),
23
and that no reasonable and objective observer would question the Courts impartiality
24
25
26
27
28
17
In 2010 when Covington was substituted as counsel for Plaintiffs the Court
reviewed the case law, the Code of Conduct for United States Judges, and the
commentaries to the canons and determined its recusal was not necessary, although the
Court later observed that it may have been preferable to have fully discussed the matter
with the parties at this time. (See Doc. 537.)
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based on Mr. Teels partnership at Covington.18 (Doc. 542.) As Plaintiffs explained,
Covington had screened Mr. Teel from participating in the case or receiving any income
that may accrue to the firm, so he had no existing economic stake in the case. Further, no
party had articulated a non-pecuniary interest of Mr. Teels that might be substantially
affected by the outcome of the proceeding, see 28 U.S.C. 455(b)(5)(iii), and the Court
reasoned that any speculative reputational benefits or Mr. Teels general interest in his
firms goodwill and client relationships did not amount to a disqualifying interest under
455(b)(5)(iii) under the facts of this case. In the intervening three years, nothing that
has occurred alters the Courts initial analysis: Movants offer no evidence suggesting that
10
Mr. Teel has acquired an interest in the interim time that could be substantially affected
11
by the outcome of these proceedings nor do they explain why the Courts impartiality
12
would now be questioned by any abstract personal interest of Mr. Teels in this litigation.
13
See Perry v. Schwarzenegger, 630 F.3d 909, 914 (9th Cir. 2011) (explaining that recusal
14
is not required where the alleged interest is remote).
15
In any event, this ground for recusal has long been forfeited. Covington & Burling
16
first entered an appearance in 2010. Sheriff Arpaio was aware of the issue prior to trial
17
three years ago and expressly waived the conflict. (See Doc. 541; see also Doc. 1117 at
18
13 (acknowledging that Movants waived this basis for recusal early in this action).)
19
Although the parties could not remit the Courts disqualification if recusal was required
20
under 455(b)(5)(iii), a conflict that is disqualifying only because it risks a judges
21
appearing impartial can be waived. 28 U.S.C. 455(e); United States v. Conforte, 624
22
23
24
25
26
27
28
18
The primary conflict observed by the Court was between the commentary to the
judicial canons, which notes that [t]he fact that a lawyer in a proceeding is affiliated
with a law firm with which a relative of the judge is affiliated does not of itself disqualify
the judge, Code of Conduct for U.S. Judges, cmt. Canon 3C(1)(d)(ii), and the advice of
the United States Committee on Codes of Conduct, which suggests a categorical rule of
recusal when a relative within the third degree of relationship of a judge has an equity
interest in a law firm in a case before that judge. Code of Conduct for U.S. Judges Canon
3C, Advisory Opinion No. 58. The Court explained at length in its earlier opinions on the
matter why the per se rule of disqualification set forth in Advisory Opinion No. 58 is an
erroneous interpretation of Judicial Canon 3C and the corollary subsection of 455(b).
(See Docs. 537, 542.).
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F.2d 869, 88081 (9th Cir. 1980). Further, even claims for recusal under 455(b) may be
lost by inaction after the facts supporting the claim are known by the party and no motion
is timely made. See E. & J. Gallo, 967 F.2d at 1295 n.8 (The timeliness of a partys
presentation to the court of information it has that comprises a potential ground for
disqualification is a different issue than is addressed by subsection (e).). Movants
failure to raise this ground for disqualification before now precludes them from
attempting to do so at this juncture.
IV.
This Motion Is Legally Insufficient Under 28 U.S.C. 144.
Section 144 provides for the assignment of a new judge when a party to a
10
proceeding files a timely and legally sufficient affidavit alleging personal bias or
11
prejudice on the part of a judge before whom the matter is pending. 28 U.S.C. 144. All
12
144 motions must also be accompanied by a certificate of good faith from counsel for
13
the party moving for recusal. Id. Because the judge must accept the truth of the facts
14
alleged in the affidavit as demonstrating the purported bias, the affidavit and certificate of
15
counsel are strictly construed for form, timeliness, and sufficiency. United States v.
16
Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993); see also Rademacher v. City of Phoenix, 442 F.
17
Supp. 27, 29 (D. Ariz. 1977) (explaining that affidavits filed in support of 144 motions
18
must be given the utmost of strict construction to safeguard the judiciary from frivolous
19
attacks upon its dignity and integrity and to prevent abuse and to insure orderly
20
functioning of the judicial system. (internal citations omitted)). The judge against whom
21
a 144 affidavit of bias is filed may pass on its legal sufficiency. Sibla, 624 F.2d at 868.
22
For the reasons set forth above, Movants affidavit is legally insufficient. Recusal
23
motions brought pursuant to 144 are subject to the same timeliness requirement and
24
extrajudicial source rule as 455 motions. See 28 U.S.C. 144; United States v. Studley,
25
783 F.2d 934, 939 (9th Cir. 1986). The Courts relationship to its brother-in-law and the
26
facts underlying the Grissom and Montgomery investigations were all known by Movants
27
for years before they filed their Motion. Furthermore, to the extent that any of the bases
28
in Sheriff Arpaios affidavit stem from the Courts conduct, they fail to establish
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recusable bias or prejudice. See Sibla, 624 F.2d at 868 ([A]n affidavit . . . is not legally
sufficient unless it specifically alleges facts that fairly support the contention that the
judge exhibits bias or prejudice directed toward a party that stems from an extrajudicial
source.); United States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (holding that actions
taken by a judge during proceedings are not a legally sufficient ground to include in a
144 affidavit). A litigant may also not compel a judges recusal through his own actions
under 144 any more than he can under 455. See Studley, 783 F.2d at 93940
(rejecting affidavit where intemperate and scurrilous attacks on the judge were the only
grounds for recusal asserted).
10
In addition, this is Defendants second Motion for Recusal brought pursuant to
11
144 and second accompanying affidavit of prejudice. Section 144 explicitly limits a
12
party to filing only one affidavit in support of recusal per case. 28 U.S.C. 144 (A party
13
may file only one such affidavit in any case.). In 2009, Defendants moved to recuse
14
Judge Murgua, then presiding over this case, on the grounds that her relationship with
15
her twin sister raised concerns about her impartiality or at least risked an appearance
16
thereof. (Doc. 63.) Defendants motion was accompanied by an affidavit pursuant to
17
144 and the requisite certification of good faith by counsel. (Id. at 17, Ex. 1.) Judge
18
Murgua granted Defendants motion and withdrew from the case. (Doc. 138.) Having
19
previously filed a Motion and affidavit under 144, in accordance with the express
20
provisions of the statute, Movants are not permitted to file another against this Court.19
21
See United States v. Merkt, 794 F.2d 950, 961 (5th Cir. 1986) ([Movants] affidavit
22
violates the one-affidavit rule of 28 U.S.C. 144 and need not be considered.);
23
Balistrieri, 779 F.2d at 1200 n.6 (same). The limit on successive affidavits is considered
24
necessary to prevent litigants from disqualifying each judge designated to the case and
25
thereby avoid any disposition of its merits. S.E.C. v. Loving Spirit Found. Inc., 392 F.3d
26
19
27
28
If a party discovers new grounds for recusal after submitting an affidavit under
144, it may still obtain the judges recusal through a 455 motion, to which the oneaffidavit rule does not apply. Cf. Sibla, 624 F.2d at 86768 (suggesting that an affidavit is
not required under 455).
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486, 496 (D.C. Cir. 2004). Movants do not address the one-affidavit rule in their Motion
or Reply nor have they credibly argued for its inapplicability even though it was raised to
them by the Court on the filing of their Motion. (See Tr. of May 22, 2015 Status Conf.
7:138:9, Doc. 1130; Doc. 1158 at 12.)
The certifications of counsel submitted in support of Sheriff Arpaio and Chief
Deputy Sheridans Motion also fail to meet the statutory requirements of 144, which
oblige counsel to personally certify that the affidavit of alleged bias as well as the motion
to which it is appended are filed in good faith. See Loving Spirit, 392 F.3d at 496. Like
the ban on successive affidavits, the certification is not simply a pro forma procedural
10
requirement but is key to the integrity of the recusal process. Klayman v. Judicial
11
Watch, Inc., 744 F. Supp. 2d 264, 270 (D.D.C. 2010); see also Loving Spirit, 392 F.3d at
12
496 ([T]he attorneys certificate plays a critical role in the recusal process. . . [by]
13
guard[ing] against the removal of an unbiased judge through the filing of a false
14
affidavit. . . (internal citations omitted)). Although attorneys may have an obligation to
15
consider the record in the light most favorable to their clients when certifying a motion
16
for recusal, there is a difference between presenting the facts in a way that highlights the
17
clients interests and misstating or mischaracterizing the facts in order to effect
18
reassignment of a case. The Court need not determine whether counsel have acted
19
improperly here, however, because the certificates filed by Movants counsel are legally
20
insufficient on their face. The four attorneys bringing this motion on behalf of Movants
21
have signed an identical certificate stating only that the associated affidavit from Joseph
22
M. Arpaio for the recusal of Judge G. Murray Snow is made in good faith. (Doc. 1117,
23
Exs. 1113.) Counsel has not, however, personally certified that there is a good faith
24
basis for the substantive factual allegations contained therein, nor that the Motion itself
25
has been filed in good faith. Each certificate is therefore in disregard of the statutory
26
mandate. The Court, therefore, denies Sheriff Arpaio and Chief Deputy Sheridans
27
alternative Motion to Recuse pursuant to 144 as legally insufficient.
28
///
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CONCLUSION
1
2
3
4
5
IT IS THEREFORE ORDERED that Sheriff Arpaio and Chief Deputy

Sheridans Motion for Recusal/Disqualification (Doc. 1117) is DENIED.
IT IS FURTHER ORDERED that any stay on pre-hearing discovery and/or the
activities of the Monitor related to the resumption of the show-cause hearings is lifted.
IT IS FURTHER ORDERED setting a status conference in these matters for
Monday, July 20, 2015, at 11:00 a.m. in Courtroom 602, Sandra Day OConnor U.S.
Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003. All parties and
specially appearing non-parties are required to attend.20 The parties shall be prepared to
10
discuss: (1) Defendants Motion relating to the definition of the Plaintiff Class (Doc.
11
1103); (2) Plaintiffs Motion to Compel (Doc. 1085); (3) the status of MCSOs remaining
12
internal investigations; (4) the Department of Justices request to see the database of
13
documents given by Montgomery to the MCSO, which he claims to have taken from the
14
CIA; (5) the procedures pertaining to Maricopa Countys independent review of the
15
Monitors billing; (6) whether Maricopa County is entitled to representation in this
16
litigation separate from Sheriff Arpaio; and (7) the scheduling of the second phase of the
17
civil contempt hearings.
18
Dated this 10th day of July, 2015.
19
20

21
22
23
24
25
26
27
28
20
Out-of-state counsel may appear telephonically for the status conference.

Plaintiffs counsel are directed to establish a call-in number and disseminate to the parties
and non-parties.
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2
3

et al.,
Plaintiffs,
5
6
7
v.
Defendants.
9
10
CV-07-2513-PHX-GMS
)
)
)
)
)
)
)
)
)
)
)
)
)
DECLARATION OF CECILLIA
WANG IN SUPPORT OF
PLAINTIFFS RESPONSE IN
OPPOSITION TO SHERIFF
ARPAIO AND CHIEF DEPUTY
SHERIDANS MOTION
FOR RECUSAL OR
DISQUALIFICATION OF
THE COURT
[UNDER SEAL]
11
12
13
I, Cecillia D. Wang, declare as follows:

1.
I am an attorney admitted to practice in California and New
14
York and in numerous federal courts and have been admitted pro hac vice to
15
represent the Plaintiffs in this matter. I am the Director of the American Civil
16
Liberties Union Foundation Immigrants Rights Project. I make the following
17
declaration based on my personal knowledge, except where indicated.
18
2.
I make this declaration in support of the Plaintiffs Response in
19
Opposition to Sheriff Arpaio and Chief Deputy Sheridans Motion for Recusal
20
or Disqualification of the Court.
21
3.
Attached hereto as Exhibit A is a document that was introduced
22
by the Court as Exhibit 522 during the evidentiary hearing in this matter, on
23
April 23, 2015. It is an article by Stephen Lemons published in the Phoenix
24
25
26
27
New Times on June 4, 2014, entitled Joe Arpaios Investigating Federal

Judge G. Murray Snow, DOJ, Sources Say, and Using a Seattle Scammer To
Do It. Exhibit A is a photocopy of the original document that was handed to
me and to defense counsel by the courtroom deputy. It bears my
28
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contemporaneous, handwritten notation of the announced exhibit number,
522.
4.
On May 6, 2015, Defendants produced documents to Plaintiffs
on an attorneys-eyes-only basis. Exhibits B-F, attached hereto, were among
those documents. I am submitting Exhibits B-F under seal, with redacted
copies in the publicly filed version of this Declaration.
a.
Attached hereto as Exhibit B is an email chain with the

top-most email dated June 29, 2014, from David Webb
to 1tick@earthlink.net, Bates-stamped MELC202132.
10
b.
11
Attached hereto as Exhibit C is an email chain with the

top-most email dated November 7, 2014, from Brian
12
Mackiewicz to Larry Klayman, Bates-stamped
13
MELC202173-75.
14
c.
15
Attached hereto as Exhibit D is a December 9, 2014

email from Mike to detmack@gmail.com, Bates-
16
stamped MELC202048.
17
d.
18
Attached hereto as Exhibit E is an email chain with the
19
top-most email dated April 20, 2015, from Larry
20
Klayman to Michael Zullo, Bates stamped
21
MELC202142-45.
e.
22
Attached hereto as Exhibit F is a document entitled Joe
23
Arpaio Brief/Timeline, Bates stamped MELC199917-
24
35.
25
5.
Attached hereto as Exhibit G is an email chain with the top-most
26
email dated May 27, 2015, from the Court-appointed Monitor, Robert
27
Warshaw, to me and to Defendants counsel Michele Iafrate and Richard
28
Walker. Exhibit G also includes an attachment to Chief Warshaws email, a
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letter dated May 22, 2015 from Michelle Iafrate to Robert Warshaw. In the
letter and in the email exchange, Ms. Iafrate took the position that the entire
litigation and all actions by the Monitor were stayed pending a decision on the
instant Motion to Recuse.
5
6
7
8
9
10
11
12
13
14
15
6.
Attached hereto as Exhibit H is a true and correct copy of an
article, Stephen Lemons, Arpaios Desperation Move: Lawyers Move To

Disqualify Judge Snow, Phoenix New Times May 22, 2015. I obtained this
copy from the Phoenix New Times website at
http://www.phoenixnewtimes.com/news/arpaios-desperation-move-lawyersmove-to-disqualify-judge-snow-7352908. The article quotes specially
appearing counsel for the Sheriff in April 2015:
I've heard comment or commentary from so-called lawyer experts,
saying, Gee, the judge should recuse himself, McDonald stated.
That's ridiculous, of course he shouldn't! People suggest we should
now get rid of Judge Snow. Why? It was an inquiry. It ended there. It
was not any kind of a witch hunt. Case closed.
16
The online version of this article includes a link to an audio recording of
17
counsels statement.
18
19
20
I hereby declare that the foregoing is true and correct under penalty of
perjury pursuant to 28 U.S.C. 1746.
Executed at San Francisco, California this 12th day of June, 2015.
21
22
23
24
25
26
27
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From:
To:
Subject:
Date:
David Webb
1tick@earthlink.net
PROJECT
Sunday, June 29, 2014 12:11:26 PM
From: Dennis [mailto:dennis@ncoder.net]

Sent: Sunday, June 29, 2014 12:08 PM
To: dwebb605@gmail.com
Subject: PROJECT
It is obvious that Anglin and his superiors have been trying to shut this project down since
its inception. On one hand Anglin tells not to produce information on Judge SNOW. Then
I am attacked for not producing information on Judge SNOW. Too many mixed signals
from Anglin. This job is tough enough, but Anglin telling me not me not to share
information with others until he gets the information was outrageous. Who was I
supposed to trust?
Brian has to take orders from his superiors. Brian has never stop believing in me or the
work. I can assure you Brian was getting the same mixed messages I was. But he must
follow the orders of his superiors to survive in MCSO. He has taken a lot of time from his
family, and for that I am sorry.
Anglin told by me that Sheridan didnt want to go in front of Judge Snow and be accused of
retaliating against the judge.
ANGLIN told me stop work on the BC day one, He told me never to trust Mike Zullo. I was
told directly by Anglin not to pass information on to Mike Zullo.
I was not allowed to discuss with Mike zullo what I am being told to do or not to do.
I was setup to fail. To ensure I failed, Anglin or his superiors fed false information to the
NEW PHOENIX TIMES. When that failed, I was hit with the SEATTLE WEEKLY news
article. I had a stroke, and was in ICU when they article was released.
Anglin would not talk to Carl Cameron in front of me. He knew that promising to deliver
data to FOX, and then not do it, would hurt me with FOX. He accomplished his goal.
Anglin or his superiors then fed false information again to the New Phoenix Times to
discredit the data, adding more doubt into Carl Camerons mind. Carl Camerons recent
email says it all.
I worked hard to gain credibility with FOXNEWS. Anglins plan to destroy my credibility
with FOXNEWS succeeded. Now there is doubt in FOXNEWS about the validity of my
accusations I filed with the CIA and DOJ. I now have a much higher hurdle to overcome
with them to regain my redibility.
I will bet you the next article in the New Phoenix Times will be on Brian, to hurt him and
kill this project.
I had no chance to succeed. Obviously some people in MCSO wanted for political reasons
to use my work to hurt the sheriff.
I can assure you that I have had only one goal since I began this work, and that was to get
the work done!
MELC202132
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From:
To:
Cc:
Subject:
Date:
Brian Mackiewicz
Larry Klayman
Michael Zullo; David Webb; Dina James
Re: DC
Friday, November 07, 2014 7:55:19 AM
Gentleman,
Good morning. Wanted to update everyone on the progress of this investigation. Significant information was learned yesterday concerning
the approximately 50 hard drives Dennis Montgomery provided as evidence to to the Maricopa County Sheriff's Office in April of 2014.
Dennis Montgomery represented the hard drives contained classified and sensitive information that he obtained while working at either
eTreppid, or Blixware on behalf of federal government as a CIA contractor.
When our experts examined the information contained on the drives, not only did the numerous drivesNOT contain any classified or
sensitive information, they were instead contained data dumps of you relevant computer informationhours off video feeds for Al Jazeera
news feed.
After reviewing all the hard drives our experts concluded that Dennis Montgomery deliberately complied massive amounts of data on to
these drives for the purpose ofobfuscating the fact the data itself contained no evidence to support Dennis Montgomery's claims. There
was no sensitive information contained on any of these 50 hard drives.
In addition, our experts brought question in
the validity concerning an number of emails Dennis Montgomery provided in the same hard drives.
Our experts also determined that much of the information that Dennis Montgomery has alleged that was harvested by the federal
government in violation of the fourth amendment protections cannot be sourced for validity based on the information contained in the 50
hard drives Dennis Montgomery provided.
Two days worth of email correspondence and telephone calls to Dennis Montgomery advising him all is required of him is to cooperate
and provide all source information supporting his allegations would remedy his situation immediately. He has refused. I should add he
refuses while at the same time professing to want to cooperate.
At this juncture, after a 13 month investigation,Maricopa County Sheriffs office CANNOT validate the credibility of Dennis Montgomery
and or his work without his full and candid cooperation in supplying the necessary evidence for our experts to substantiate his work and
deem it authentic and creditable.
Dennis Montgomery is leaving us no other alternative but to take this investigation in a completely different course going forward.
It is extremely discouraging to learn most if not all the representations made by Dennis Montgomery to investigators, the State of Arizona
Attorney General, and a Federal Judge have been less then truthful.
Mr. Klayman, if you can represent to me Dennis Montgomery's intentions of cooperating fully, candidly, without obstruction or
obfuscation, perhaps we can bring thisthis investigation to a successful conclusion for all parties concerned. Pleaseadvise me
immediately.
Sent from my iPad

On Nov 3, 2014, at 1:20 PM, Larry Klayman <leklayman@gmail.com> wrote:
I don't appreciate your games...there would be no judge if not for me. I suggest you do not mess with Lamberth. There is no
reason to do so at this time and your games are just to squeeze Dennis through me. I don't appreciate being played.
I am preparing for an oral argument for the NSA case and these tactics are offensive at this time in particular.
On Nov 3, 2014 11:35 AM, "Brian Mackiewicz" <detmack@gmail.com> wrote:
Larry,
Pardon me I included you out of courtesy. No worries point taken and I will exclude you from all other communications,
between our confidential informant and the judge going forward. That is to include what path this investigation takes going
forward. Have a wonderful day. Good luck in your argument.
Sent from my iPhone
On Nov 3, 2014, at 10:25, Larry Klayman <leklayman@gmail.com> wrote:
This is inappropriate! I asked Mike to have us talk after my oral argument in the NSA case. I do not appreciate
this lack of respect! More later...
On Mon, Nov 3, 2014 at 8:16 AM, Brian Mackiewicz <detmack@gmail.com> wrote:
Gentleman,
MELC202173
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I guess I will take a minute and respond to some of the issues at hand. Dennis you have no problem defending
the work because you truly believe your the only person on the face of the earth that knows what your
talking about. It is easy to hide behind, "we have a lack of understanding of software development and
programs" but do you really think we would ever take your word as gospel? I will admit we did take your
word as gospel for some time time but that time ended when you grossly misrepresented the work that you
said was completed.
It would have not been such a big deal Dennis but Mike and I represented the fact the work was complete and
it wasn't. Look I am not stupid you have lied to me several times over the past 12 months. I have caught you
in you lies and chosen to move forward and look past the fact you lied. I always kept hope and believed
when it came to your work product and your "STORY" you were always being truthful. The problem now is
were do the lies end and the truth start. I am not even sure you know the answer to that Dennis.
From day one I thought we all had a common goal in mind when it came to this investigation. If your
"STORY" was based on facts and the information you provided was all truthful Mike, I, and the Office was
dedicated do anything in our powers LEGALLY to help bring your story forward and expose the TRUTH. I
truly believe Mike, I, and the Office have lived up to out part of the deal. We have given you approximately
120,000 dollars plus in exchange for information. We brought you before the Arizona State Attorney
General, we found you two different Attorneys, and we opened the door to a Federal Judge to give you as
much protection as possible. Mike and I went to the Administration several times and asked for extensions to
continue this investigation because we believed your "STORY" and the information you provided. When you
had a stroke and you had NO one to turn you I was on a plane to assist you and you family. Not to mention
the personal sacrifices Mike and I have made over the past 12 months to make sure you and you family were
taken care of. Dennis if you don't remember Mike and I even gave you 200.00 dollars a piece out of our own
pockets so you could have a Thanksgiving with you family last year. Just to later find out you worked Tim
for 500.00 dollars also.
And to address one other issue that has seemed to come up more then once. If I remember correctly it was
you choice to get on a plane and fly to Washington DC. Mike, I, or the Office was not aware you were
advised by your Doctor not to travel UNTIL after you flew back to Seattle. I remember Mike and I
specifically told when you after you informed us of that information you would have to provide a doctors
letter before we would let you travel again. I also remember you getting so intoxicated at dinner while in
Washington DC I had to tell the waiter to start serving you cocktails with no alcohol. Mike, I, or the Office
would have never let you flight to Washington DC if we knew it was against your Doctors orders.
You also mention, "I was forced to sacrifice my recovery to adhere to your ridiculous timeframes to further
are agenda". Dennis I want to be clear last time I knew you were an adult. As adults sometimes we have to
make certain choices in life that might effect our future. Mike, I, or the Office did not hold a gun to your
head telling you had to do anything.
Dennis for some reason I think you believe it is Mike, I, and the Offices responsibility to support you and
your family's lifestyle, and to fix all your problems. From the beginning we all agreed we had some obstacles
to overcome based on what other people have said about you. I believe Mike, and I have and will continue to
overcome those obstacles if you are truthful with us.
Dennis your not a stupid person. You know exactly what we need and want to be able to move forward. You
know everything you provide us has to get verified by a third party. If I just believed everything people told
me without verifying it by facts or evidence everyone would be locked up. If you CANT or WONT provide
Mike, and I with what is necessary to prove and verify everything then be honest and tell us. There is more
then one way to skin a cat.
As far is Larry Klayman is concerned his involvement in this investigation is non existent. we understand he
is your attorney and he is representing you. BUT he has no bearing at all on how this case is investigated and
what the outcome maybe. You might be able to play Larry for what you need for a little while but in the end
you and Larry still need someone with CREDIBILITY to verify the information and your "STORY" .
And for my last and final point. Dennis I have been a Deputy Sheriff for almost 18 Years. When I graduated
the Police Academy I took an Oath of Office which I still keep believe in. I know you have heard me say this
more then once but this is one investigation of many in my Career. My job is to find the facts, verify the
facts, and come to a logical conclusion that a reasonable person would believe based on those facts. I have no
agenda is this investigation Dennis. When we decide this investigation is over I will look at all the facts,
statements, and evidence that has been collected over the past year and ask myself what would a reasonable
person would think. Remember that Oath I mention, it means no matter how I feel personally regarding the
outcome of this investigation I am sworn to do the right thing Dennis. I truly hope in the end we all
accomplish the same goal we all had in the beginning, but remember if not I am NOT AFRAID and I can
promise you I will do the right thing.
Dennis it is a great possibility that your future depends on what you do from here. We have days not weeks,
not months. Time is of the essence
Detective Brian Mackiewicz #1227
Sent from my iPad
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On Nov 2, 2014, at 9:54 PM, David Webb <dwebb605@gmail.com> wrote:

I have no problem defending my work. You have a lack of understanding of software development and
programs. This is what is hindering the work from moving forward.
If you look at the previous email I sent you, you will find all of the build numbers you have been looking
for.. The website is also up and contains the latest information on the various adobe builds.
You cant expect the technology to find data that Adobe leaves out in some of their formats.
Regarding the issue of money, I will leave that to the sheriff and Brian Mackweitz to address.
Regarding my commitment, at your and Brian Mickiewiczs request, I got on a plane 4 weeks after my
stroke and brain coiling
against medical advice. In addition, I was forced to sacrifice my recovery to adhere to you ridiculous
timeframe and further your agenda.
Once again you are upset at me for not getting on a plane to meet your NSA advisors, when my doctors
have advised against it.
As you well know I have lost the use of my left arm and hand. I have made some progress in moving my
arm, and hand, but it is impossible to program with it.
You told me in previous emails that you wanted this to get back on track. You most recent email convinces
me otherwise.
Go find someone else to do this work.
MELC202175
(656 of 866)
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From:
To:
Subject:
Date:
Mike
detmack@gmail.com
OZ
Tuesday, December 09, 2014 5:28:00 PM
Dennis
To answer the question, where we go from here, really is dependent upon you. A year-long
investigation and tens of thousands of dollars invested, we have absolutely nothing to show for it.
The 50 some odd drives we had in our possession shockingly turned out to contain nothing of any
significance on any level whether Federal or pertaining to the Sheriff's Office. There was absolutely
nothing of use on those drives.
Overwhelming content of meaningless information does absolutely nothing to further your cause
and obviously puts the Sheriff's office in a very precarious situation.
Dennis I think the bottom line is if you have the information this is the time to provide. We have an
extremely short window of opportunity to work in and the choice is yours. All you have to do is
produce what you said you were going to produce in exchange for the dollars you received.
But I have to stress to you the time is of the essence. We have been instructed to write up our final
report and be ready to hand it over to a different agency. I really don't want to see it come to that
but again the choice is yours.
MELC202048
(658 of 866)
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Exhibit E
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From:
To:
Cc:
Subject:
Date:
Larry Klayman
Michael Zullo
David Webb; Dennis
Re: 2nd Request
Monday, April 20, 2015 4:21:11 PM
I'll call tomorrow best

On Apr 20, 2015 7:10 PM, "Mike" <1tick@earthlink.net> wrote:
Larry,
This is now my second request asking for a date set for the completion of the work Dennis
Montgomery has been promising for over 16 months.. Mr. Montgomerys behavior and
lack of performance flies in the face of his numerous promises pledging to complete the
work.. This is especially concerning given the face that Mr. Montgomery needs validation
like a drowning man needs oxygen. His behavior simply erodes whatever thread of
credibility he may have left. In fact as of this date, our experience dealing with Mr.
Montgomery mirrors what has been written about him.. It is apparent to us that this is just
a game of running the clock in the hope Montgomery can position himself as a Whistle
Blower with some jurisdiction and with your help get out from under his obligation to
the us. In our opinion Montgomery does not qualify under Federal Whistle Blower
protections. A risky game.
I would like a response by close of business on Wednesday April 22nd, 2015. If we do not
here from you or your client we will complete final reports, close the matter and make the
appropriate notifications.
Larry we have bent over backwards to help your client and you however, it appears that you
have changed course and are no longer work to our mutual benefit.
Mike
From: Mike [mailto:1tick@earthlink.net]

Sent: Thursday, April 16, 2015 1:34 PM
MELC202142
(660 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
631
24ofof837
61
To: Larry Klayman (leklayman@gmail.com); 'David webb'; 'Brian Mackiewicz'

Subject: FW: Home
Larry,
Per our phone conversation , I need to know Denniss intentions on moving forward on a
timely basis and honor his agreement with us and set a hard date to complete the paid
work on the BC as he agreed to perform.. This work has nothing to do with the other
issues he is dealing with and as of last month he was one week away from completion.
That week as others came and went. Open ended e mails of promises of continued efforts
simple are no longer reliable given the history. Please let me know of his intentions to
provide a completion date in the very near future.
Mike
From: Mike [mailto:1tick@earthlink.net]
To: 'Dennis '; Larry Klayman (leklayman@gmail.com)
Cc: 'Brian Mackiewicz'
Subject: RE: Home
Dennis
While I understand your situation to some degree, the truth here is you knew for months you
would have to move out. You were in fact contractually obligated and paid a total of 15K
weeks ago just prior to vacating the residence as you formally agreed. To portray this
event as if you were unceremoniously or undeservingly thrown out of that house really is a
stretch.
Looking past that, your condition of not working again until you have a residence is
understandable to some extent however, the idea that once again we are at the mercy of you
or your circumstance is not going to be something we will be able to contend with much
longer. On my end of this you were compensated $10,000 from a charitable organization
for a service and software that I have yet to receive in any worthwhile or usable
configuration. I will not allow this organization to be victimized. This matter is going to
have to be resolved very soon. Additionally, the agreement between you and the Sheriffs
MELC202143
(661 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
632
25ofof837
61
Office to forgo official notification to our contact in DC is now very long in the tooth and
unproductive for us, as you have again failed to deliver anything as agreed.
You also recall we have 60 hard drives that you created, now in our custody. The Sheriffs
Office painfully drove them back to AZ as purported evidence of classified information
gathered by you. You will recall we had those drives examined and discovered there was
absolutely nothing of value on them. To be clear there was nothing of a classified nature
contained on any of them and as matter of fact there was evidence of fabrication on
numinous levels. Dennis I dont have to tell you what this smells of do I?
With your pending litigation in FL. You are aware that both Brian and I had met with the
defendant that last time we were in DC. He has our business cards. It will only be a matter
of time before we are contacted by his attorney. Also in light of your most recent attempt to
offer testimony as a WB and the fact that we have a videotaped Free Talk agreement you
made with the AZAG and you have breached that agreements as well, this is not
something I am prepared to allow to move forward without the proper notifications made on
our end under these agonizing circumstances.
Sixteen long months of ZERO s and just empty promises and lip service. Enough
We are going to allow you one last attempt to honor your agreement with us and set a hard
date in the very near future to complete the work as agreed. I will wait to hear from you or
Larry . Remember this is going to be a make or break moment.
Time is of the essences Dennis

Mike
From: Dennis [mailto:dennis@ncoder.net]

To: 1tick@earthlink.net
Subject: Home
MELC202144
(662 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
633
26ofof837
61
I am still trying to find a place to live. My life is in chaos since I have no home As soon as
I can get into a home and my needs are met, I will continue the work to the best of my
ability. You obviously know by now the sheriff enforced an eviction notice on us, and
removed us from the Yarrow property. Our situation is precarious at best.
MELC202145
(663 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
634
27ofof837
61
Exhibit F
(664 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
09/03/2015, Document
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
635 28
of 837
of 61
JOE ARPAIO BRIEF
Timeline
Description
Eric Holder Senior Partner Covington Burling Law Firm
2001 2009
Lanny Breuer Senior Partner Covington Burling Law Firm
02/12/07
ACLU Files Melendres Lawsuit Against Arpaio
06/15/08
US Department of Justice (DOJ) announces investigation into Joe Arpaio
02/01/09
US Department of Justice (DOJ) - Hires Eric Holder Attorney General US
03/15/09
Arizona Attorney General (AG) Issues Search Warrant Deputy Joel Fox
04/20/09
Lanny Breuer Hired As Assistant AG Criminal Div. - DOJ
07/07/09
Joe Arpaio Announces he will not cooperate with DOJ Investigation
07/15/09
US Federal Judge Mary Murguia recuses herself from the Arpaio case.
US Department of Justice (DOJ) - Calls Federal Judge G. Murray Snow
07/22/09
Judge G. Murray Snow Assigned To Arpaio Federal Cases (Not Random)
Time
From
To
Duration
Call
Call
Call
in (Min)
202.514.2000
602.322.7560
10
202.514.2000
602.322.7560
32
602.322.7650
202.514.2000
202.514.2000
602.322.7560
14
EN
07/20/09
IP
Address
TI
AL
Date
2001 - 2008

John Gray Starts Intern Clerk Job with Federal Judge G. Murray Snow
09/26/09
09/28/09
US Department of Justice (DOJ) - Wire Tap #56990-34
10/15/09
US Gov breached Maricopa all domains, and subdomains
156.42.184.18
Maricopa Government - mcao.maricpoa.gov - mcso.maricopa.gov
156.42.184.65
Mail servers: extmail1.maricopa.gov extmail2.maricopa.gov
156.42.103.166
FI
D
07/23/09
09/01/09
Block 602-920-4000,++
05/28/10
DOJ Criminal Division Wire Tap #64402-03
08/15/10
156.42.184.18
156.42.184.65
156.42.103.166
05/24/10
Federal Judge Mary Murguia nominated to the 9th Circuit Court Appeals.
US Department of Justice (DOJ) Calls Federal Judge G. Murray Snow
602-920-4400, 602-920-4000
03/25/10
07/10/10
Covington Burling Law Firm Take Over Melendres Lawsuit Against Arpaio.
09/02/10
US Department of Justice (DOJ) files suit against Arpaio
09/15/10
John Gray Ends Intern Clerk with Federal Judge G. Murray Snow
10/01/10
John Gray Joins Perkins Coie Law Firm
10/23/10
US Government Breached - www.jshfirm.com mail.jshfirm.com
216.119.127.142
Service25-us.mimecast.com ; service26-us.mimecast.com
_______________________________
Confidential Information Not to Be Disclosed
Rev 1.3a
MELC199917
(665 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
636 29
of 837
of 61
JOE ARPAIO BRIEF
Timeline
Date
Description
US Department of Justice (DOJ) Calls Perkins Coie (John Gray)
IP
Time
From
To
Duration
Address
Call
Call
Call
in (Min)
16:30
202.514.2000
602.351.8092
Perkins Coie Associate (John Gray) makes call to Federal Judge Snow Chambers
16:42
602.351.8092
602.322.7560
10
10/25/10
Perkins Coie Associate (John Gray) makes call to Maricopa County Cell Phone ++
16:55
602.351.8092
602.+++
10
01/04/11
04/23/11
US Federal Judge Mary Murguia approved as 9th Circuit Court of Appeals Judge
Sheriff Arpaio Fires Chief Deputy David Hendershott and Deputy Larry Black
10/21/11
Sheriff Arpaio Fires MSCO Captain Joel Fox
09/01/11
US Department of Justice (DOJ) files complaint against Sheriff Arpaio
07/19/12
Melendres vs. Sheriff Arpaio Trial Heard by Federal Judge G. Murray Snow
03/01/13
Lanny Breuer Resigns from DOJ and rejoins Covington Burling Law Firm
06/13/13
US Department of Justice (DOJ) Joins Melendres Lawsuit with Covington Law Firm
10/02/13
Judge G. Murray Snow Rules in Class Action Lawsuit Against Joe Arpaio
EN
Red - Phone Calls made to or from the Department of Justice
TI
AL
10/25/10
10/25/10
FI
D
Green - John Gray Interns for Federal Judge G. Murray Snow (2009 - 2010)
Blue - Judge G. Murray Snow Assigned To Arpaio Federal Case
_______________________________
Rev 1.3a
MELC199918
(666 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
637 30
of 837
of 61
FI
D
EN
TI
AL
JOE ARPAIO BRIEF

Timeline
_______________________________
Rev 1.3a
MELC199919
(667 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
638 31
of 837
of 61
FI
D
EN
TI
AL
JOE ARPAIO BRIEF

Timeline
_______________________________
Rev 1.3a
MELC199920
(668 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
639 32
of 837
of 61
JOE ARPAIO BRIEF
Timeline
Date
2001 - 2008
Description
2001 2009
02/12/07
06/15/08
02/01/09
03/15/09
04/20/09
07/07/09
07/15/09
07/20/09
07/22/09
07/23/09
09/01/09
09/16/09
Dennis Burke Becomes US Attorney General Arizona
09/25/09
US Department of Justice (DOJ) - Calls Dennis Burke US Attorney Arizona
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
202.514.2000
602.322.7560
10
202.514.2000
602.322.7560
32
202.514.2000
602.514.7500
10:43
09/26/09
Judge G. Murray Snow Calls US Department of Justice (DOJ)
11:04
602.322.7560
202.514.2000
16
09/28/09
Dennis Burke US Attorney - Calls Judge G. Murray Snow
11:44
602.514.7500
602.322.7560
09/28/09
10/15/09
202.514.6225
602.322.7560
14
202.307.0652
602.322.7560
Block 602-920-4000,++
156.42.184.18
156.42.184.65
156.42.103.166
05/24/10
US Department of Justice (DOJ) - Civil Rights Calls Federal Judge G. Murray Snow
05/28/10
08/15/10
03/25/10
602-920-4400, 602-920-4000
156.42.184.18
156.42.184.65
156.42.103.166
07/10/10
09/02/10
09/15/10
US Department of Justice (DOJ) Call Federal Judge G. Murray Snow
_______________________________
Rev 1.4c
MELC199921
(669 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
640 33
of 837
of 61
JOE ARPAIO BRIEF
Timeline
Date
09/15/10
Description
10/01/10
10/23/10
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
216.119.127.142
10/25/10
10/25/10
16:30
202.514.2000
602.351.8092
16:42
602.351.8092
602.322.7560
10
10/25/10
16:55
602.351.8092
602.+++
01/04/11
04/23/11
08/30/11
Dennis Burke Resigns As Us Attorney Arizona - Fast and Furious Scandal
10/21/11
09/01/11
07/19/12
03/01/13
06/13/13
10/02/13
_______________________________
Rev 1.4c
MELC199922
(670 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
641 34
of 837
of 61
JOE ARPAIO BRIEF
Timeline
_______________________________
Rev 1.4c
MELC199923
(671 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
642 35
of 837
of 61
JOE ARPAIO BRIEF
Timeline
_______________________________
Rev 1.4c
MELC199924
(672 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
643 36
of 837
of 61
JOE ARPAIO BRIEF
Timeline
Date
2001 - 2008
Description
2001 2009
02/12/07
06/15/08
02/01/09
03/15/09
04/20/09
07/07/09
07/15/09
07/20/09
07/22/09
07/23/09
09/01/09
09/16/09
09/25/09
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
202.514.2000
602.322.7560
10
202.514.2000
602.322.7560
32
202.514.2000
602.514.7500
10:43
09/26/09
11:04
602.322.7560
202.514.2000
16
09/28/09
11:44
602.514.7500
602.322.7560
09/28/09
10/15/09
202.514.6225
602.322.7560
14
202.307.0652
602.322.7560
Block 602-920-4000,++
156.42.184.18
156.42.184.65
156.42.103.166
05/24/10
05/28/10
08/15/10
03/25/10
602-920-4400, 602-920-4000
156.42.184.18
156.42.184.65
156.42.103.166
07/10/10
09/02/10
09/15/10
_______________________________
Rev 1.5a
MELC199925
(673 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
644 37
of 837
of 61
JOE ARPAIO BRIEF
Timeline
Date
09/15/10
Description
10/01/10
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
10/18/10
Covington Burling Law Firm Call Department of Justice (DOJ) - Not In This Case
14:55 650.632.4704
202.514.6225
10
10/22/10
Covington Burling Law Firm Call Perkins Coie (John Gray)
14:21
650.632.4704
602.351.8092
19
10/23/10
216.119.127.142
10/25/10
10/25/10
16:30
202.514.2000
602.351.8092
16:42
602.351.8092
602.322.7560
10
10/25/10
16:55
602.351.8092
602.+++
01/04/11
04/23/11
08/30/11
10/21/11
09/01/11
07/19/12
03/01/13
06/13/13
10/02/13
_______________________________
Rev 1.5a
MELC199926
(674 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
645 38
of 837
of 61
JOE ARPAIO BRIEF
Timeline
_______________________________
Rev 1.5a
MELC199927
(675 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
646 39
of 837
of 61
JOE ARPAIO BRIEF
Timeline
_______________________________
Rev 1.5a
MELC199928
(676 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
647 40
of 837
of 61
JOE ARPAIO BRIEF
Timeline
Date
2001 - 2008
Description
2001 2009
02/12/07
06/15/08
02/01/09
03/15/09
04/20/09
07/07/09
07/15/09
07/20/09
07/22/09
07/23/09
09/01/09
09/16/09
09/25/09
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
202.514.2000
602.322.7560
10
202.514.2000
602.322.7560
32
202.514.2000
602.514.7500
10:43
09/26/09
11:04
602.322.7560
202.514.2000
16
09/28/09
11:44
602.514.7500
602.322.7560
09/28/09
10/15/09
10/15/09
156.42.184.65
10/15/09
156.42.103.166
03/25/10
05/24/10
202.514.6225
602.322.7560
14
05/28/10
08/15/10
08/15/10
08/15/10
156.42.184.65
156.42.103.166
07/10/10
09/02/10
_______________________________
Block 602-920-4000,++
156.42.184.18
602-920-4400, 602-920-4000
156.42.184.18
Rev 2.0
MELC199929
(677 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
648 41
of 837
of 61
JOE ARPAIO BRIEF
Timeline
Date
09/15/10
Description
09/15/10
10/01/10
10/18/10
Covington Burling Law Firm Call Department of Justice (DOJ) - Not In This Case
10/22/10
Covington Burling Law Firm Call Perkins Coie (John Gray)
10/23/10
10/23/10
10/25/10
10/25/10
10/25/10
01/04/11
04/23/11
08/30/11
10/21/11
09/01/11
07/18/12
US Rep Jon Kyl office call Department of Justice Office Attorney - Amin Aminfar
07/19/12
Breach
Time
From
To
Duration
IP Address
Call
Call
Call
in (Min)
202.307.0652
602.322.7560
14:55
650.632.4704
202.514.6225
10
14:21
650.632.4704
602.351.8092
19
16:30
202.514.2000
602.351.8092
16:42
602.351.8092
602.322.7560
10
16:55
602.351.8092
602.+++
11:14
202.224.4521
202-307-0652
26
11:58
202.662.6000
202.224.4521
38
216.119.127.142
07/24/12
Covington Burling Law Fim Call to US Rep Jon Kyl office
06/13/13
10/02/13
_______________________________
Rev 2.0
MELC199930
(678 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
649 42
of 837
of 61
JOE ARPAIO BRIEF
Timeline
_______________________________
Rev 2.0
MELC199931
(679 of 866)
Case:
Case15-72440,
2:07-cv-02513-GMS
ID: 9672081,
1166
DktEntry:
Filed 07/10/15
11-2, PagePage
650 43
of 837
of 61
JOE ARPAIO BRIEF
Timeline
_______________________________
Rev 2.0
MELC199932
(680 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
651
44ofof837
61
MELC199933
(681 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
652
45ofof837
61
MELC199934
(682 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
653
46ofof837
61
MELC199935
(683 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
654
47ofof837
61
Exhibit G
(684 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
655
48ofof837
61
(685 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
656
49ofof837
61
(686 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
657
50ofof837
61
(687 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
658
51ofof837
61
(688 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
659
52ofof837
61
(689 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
660
53ofof837
61
(690 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
661
54ofof837
61
Exhibit H
(691 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
662
55ofof837
61
(692 of 866)
Case
15-72440, 09/03/2015,
Document
ID: 9672081,
1166 DktEntry:
Filed 07/10/15
11-2, Page
Page
663
56ofof837
61
(693 of 866)
Case
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EXHIBIT 23
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FOURTH REPORT
Independent Monitor
for the
Review Period First Quarter 2015

Robert S. Warshaw
Independent Monitor
July 14, 2015
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Section 1: Introduction
This is my fourth report issued in my capacity as the Court-appointed Monitor in the case of
Manuel de Jesus Ortega Melendres, et al., v. Joseph M. Arpaio, et al. (No. CV-07-02513-PHXGMS), and documents activities occurring during the first quarter of 2015.
Subsequent to my appointment, and as a result of further Court proceedings, my duties have been
expanded in the areas of community engagement, oversight of internal investigations, and
independent investigative authority. The Order was amended on April 4, 2014 with respect to
community engagement, and therefore my community engagement activities and those of my
Team are detailed in this report.
The Maricopa Sheriffs Office (MCSO) made no appreciable gains during this reporting period
in its compliance with the provisions of the Supplemental Permanent Injunction/Judgment Order
(Order) issued by the Honorable G. Murray Snow in the above-referenced litigation. Our last
report chronicled the advances made in achieving compliance with the Orders requirements,
primarily as the result of the successful delivery of Fourth and Fourteenth Amendment training,
accompanied by the issuance of several policies during that training process. There were no such
initiatives during this reporting period to significantly bolster the agencys momentum. To the
contrary, the development of the next major block of training required by the Order Supervisor
and Command Level Training has stalled, despite accommodations made by the Plaintiffs and
my Team to deliver the training in two phases in order to speed up the process. This is
particularly troubling in light of our observations chronicled in our last report regarding a lack of
leadership at all levels of the Maricopa County Sheriffs Office, and in particular, in the upper
command ranks of the Office. The agency is devoid of meaningful management and leadership
training, and the successful delivery of the supervisory training required by the Order would only
begin to address this systemic issue. Nonetheless, it must be made a priority.
We are encouraged by the progress made in the implementation of an Early Identification
System (EIS). While work remains to be done in finalizing policies and protocols, MCSOs
Bureau of Internal Oversight (BIO) and its Early Intervention Unit (EIU) continue to do an
adequate job of providing data, conducting audits, and developing an EIS system that
incorporates pieces of information from across the organization. While fine-tuning of their
processes is in order, we note that they have conducted several audits of Office activity and have
identified some of the issues that we are seeing in our own reviews. Having a robust system of
internal audits is necessary to assure sustainability once MCSO puts the Order-required reforms
in place, and we are optimistic about the manner in which these newly created organizational
components have embraced their mission.
Another accountability mechanism for the Office the administrative investigation process
does not engender similar optimism. We are required to review completed investigations as a
result of our obligations to monitor Section XI of the Order (Misconduct and Complaints) and
our expanded authority regarding investigations pursuant to the Courts Order of November 20,
2014. In our review, we found that many of the cases were not thoroughly investigated, findings
were not appropriate, discipline was not justified; and in the majority of cases, MCSOs own
policies were not followed. There is a notable and unacceptable disparity in the quality of
investigations conducted at the district level, as well as a lack of consistency from district to
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Compliance Summary:
This report documents compliance with applicable order requirements, or Paragraphs, in two
phases. For Phase 1, compliance is assessed according to whether requisite policies and
procedures have been developed and approved and agency personnel have received documented
training on their contents. For Phase 2 compliance, generally considered operational
implementation, MCSO must demonstrate that the applicable Order requirements are being
complied with more than 94% of the time, or in more than 94% of the instances being reviewed.
We use four levels of compliance: In compliance; Not in compliance; Deferred; and Not
applicable. In compliance and Not in compliance are self-explanatory. Deferred is used in
circumstances in which we are unable to fully determine the compliance status due to a lack of
data or information, incomplete data, or other reasons which are explained in the narrative of the
report. We will also use Deferred in those situations in which the Office, in practice, is fulfilling
the requirements of a Paragraph but has not yet memorialized the requirements in a formal
policy. Not applicable is only used when describing Phase 1 compliance, and is reserved for
those Paragraphs where a policy is not required.
The table below and subsequent chart summarize the compliance status of Paragraphs tracked in
this report. The percent in compliance estimate of 40.3 percent for Phase 1 is calculated by
dividing the number of Order Paragraphs determined to be in compliance by the total number of
Paragraphs requiring a corresponding policy or procedure. Paragraphs with the status of
Deferred are included in the denominator, while Paragraphs with the status of Not Applicable are
not included. The percent in compliance estimate of 24.7 percent for Phase 2 is calculated in the
same manner. Therefore, the number of paragraphs included in the denominator totals 77 for
Phase 1. This represents an increase from our last report, primarily because the Court
Implementation Division has drafted an Operations Manual that, once approved and distributed
to the personnel assigned there, will allow for Phase 1 compliance with six additional
Paragraphs. The number of Paragraphs included in the denominator for Phase 2 remained at 89.
Fourth Quarterly Report Summary

Compliance Status
Phase 1
Phase 2
Not Applicable
Deferred
Not in Compliance
In Compliance
12
3
43
31
12
55
22
40.3%
24.7%
Percent in Compliance
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EXHIBIT 24
(703 of 866)
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(602) 234-9775
Michele M. Iafrate, #015115
Attorney for Defendant Joseph M. Arpaio
Richard K. Walker, SBN004159
Charles W. Jirauch, SBN 004219
WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
rkw@azlawpartner.com
cwj@azlawpartner.com
Phone: (480) 483-6336
Facsimile: (480)483-6337
Counsel for Defendant Maricopa County
13

14
15
16

et al.,
Plaintiffs,
17
18
19
20
v.
Defendants.
21
24
25
26
CV-07-2513-PHX-GMS
DEFENDANTS STATEMENT RE
PROPOSED DEADLINES FOR
DOCUMENT PRODUCTION
Pursuant to the Courts order of July 20, 2015 (Doc. 1179), counsel for the
22
23
)
)
)
)
)
)
)
)
)
)
Plaintiffs and for Defendants Joseph Arpaio and Maricopa County met and conferred
regarding the schedule for Defendants production of documents in advance of the
continuation of a contempt hearing on September 22, 2015.
27
///
28
///
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Defendants will produce the following documents by the dates indicated below:
1.
3
4
5
6
Emails of specified Maricopa County Sheriffs Office (MCSO)
personnel from archived .pst files in the possession of Maricopa County will be
produced on or before August 21, 2015.
2.
The current version of the MCSO spreadsheet tracking the review of
video recordings of MCSO traffic stops, including information about recordings flagged
for lieutenant-level review, will be produced on or before July 31, 2015.
9
10
11
12
13
14
15
16
3.
All recordings of press interviews and press conferences by Sheriff
Arpaio will be produced on or before August 7.

4.
Raw data from MCSOs computer-aided dispatch (CAD) system for
traffic stops conducted from December 23, 2011 to the present will be produced on or
before August 7.
5.
All documents relating to violations of the Courts preliminary injunction
17
order of December 23, 2011, by MCSO personnel not assigned to the Human Smuggling
18
Unit will be produced on or before August 14.
19
20
21
22
23
24
25
26
6.
All documents relating to detentions of members of the Plaintiff class
during operations at work sites or during execution of warrants in connection with

employment-related violations will be produced on or before August 14.
7.
All documents relating to internal affairs investigations IA 2014-542 and
IA 2014-543 will be produced on or before August 7. This production will include all
correspondence between independent investigator Donald Vogel and MCSO personnel
27
and drafts, working papers and other documents relating to the foregoing investigations
28
in the files of MCSO personnel or Mr. Vogel.
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8.
Documents relating to approximately 20 other internal affairs
investigations including 2 that were initially assigned to Mr. Vogel, but completed by
MCSO personnel, will be produced on or before August 7.
4
5
6
9.
Documents relating to internal affairs investigations from 2008 forward,
relating to allegations of discrimination against or illegal detentions of members of the
Plaintiff class, will be produced on or before August 21. Plaintiffs agree to rewrite their
request to limit the overbroad scope of this request, as discussed with the Court in the
9
10
11
July 20, 2015 status conference.

10.
Documents in the possession of former defense counsel Tim Casey and
12
responsive to Plaintiffs subpoena were reviewed by Defendants current counsel and
13
were returned to Mr. Caseys counsel for production, along with a log identifying any
14
15
16
documents withheld on privilege grounds.

RESPECTFULLY SUBMITTED this 29th day of July, 2015.
17
18
19
By:
s/Michele M. Iafrate
Michele M. Iafrate
Iafrate & Associates
Attorney for Defendants Joseph M.
Arpaio and Maricopa County Sheriffs
Office
By:
s/Richard K. Walker (w/permission)

Richard K. Walker
Walker & Peskind
20
21
22
23
24
25
26
27
28
Attorney for Defendant Maricopa County,

Arizona
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I hereby certify that on July 29, 2015, I electronically transmitted the attached
document to the Clerks office using the CM/ECF System for filing. Notice of this
filing will be sent by e-mail to all parties by operation of the Courts electronic filing
system or by mail as indicated on the Notice of Electronic Filing.
Dated this 29th day of July, 2015.
8
9
s/Jill Lafornara
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11
12
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20
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25
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2
(707 of 866)
EXHIBIT 25
(708 of 866)
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situated; et al.
ORDER
Plaintiffs,
11
12
v.
13
Joseph M. Arpaio, in his official capacity as

Sheriff of Maricopa County, Arizona; et al.
14
Defendants.
15
16
17
18
On July 31, 2015, the Court held a hearing with the Parties and pursuant to
discussions at the hearing,
IT IS HEREBY ORDERED that Defendants are to turn over to the United States
19
Marshal Service:
20
1.
The external hard drive described by MCSO Deputy Chief Bill Knight in
21
his interview of this week with the Monitors staff which hard drive Chief Knight
22
described as remaining in his possession since it was provided to him by Deputy Brian
23
Mackiewicz on or about April 24, 2015, and that was provided to him by Mackiewicz in
24
response to the Courts orders. At hearing counsel for Defendants indicated that the hard
25
drive is in a secure location that cannot be accessed and requested that it be surrendered
26
to the Marshals on Monday. The Marshals have informed the Court that they have
27
verified that the identified hard drive is in a secure location and cannot be accessed by
28
anyone over the weekend. MCSO is therefore authorized to turn over the hard drive at
(709 of 866)
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1
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9:00 on Monday Morning.

2.
The identifications found in a training kit used by Sergeant Marshall and
identified by Lieutenant Kratzer to the Monitors staff last Friday that are associated with
IA-15-0475. Representatives of the United States Marshal shall contact the MCSO to
coordinate such transfer which shall be timely and efficiently provided. If Defendants
assert that these identifications have already been provided to the Marshal, the Marshals
shall verify that they, in fact, are already in the Marshals custody.
IT IS FURTHER ORDERED that the Defendant shall provide the Monitor with
the access and materials discussed in the sealed portion of the hearing pursuant to the
10
previous orders of the Court relating to such matters.
11
The Court also memorializes in writing its Order made during the hearing of July
12
24, 2015 that the MCSO is not to destroy any materials stored in its property unit until
13
such time as the Monitor may review the unit and its operation more fully with
14
Defendants. Materials that are removed from the property unit are to be accounted for in
15
detail and in writing which records shall be made available on request to the Monitor.
16
IT IS FURTHER ORDERED that the parties shall hold open the following dates
17
for the resumption of the contempt hearing: September 22-25, September 29October
18
2, October 8-9, 13-14, 27-30, November 2-6, 10, 12-13, 2015.
19
20
21
IT IS FURTHER ORDERED that Defendants shall provide to the Parties the

following documents pursuant to the following deadlines:
1.
E-mails of the requested Maricopa County Sheriffs Office (MCSO)
22
personnel from archived.pst files in the possession of Maricopa County on or before
23
August 20, 2015.
24
25
26
27
28
2.
All recordings of press interviews and press conferences by Sheriff Arpaio
on or before August 6, 2015.

3.
Raw Data from MCSOs computer-aided dispatch (CAD) system for traffic
stops conducted from December 23, 2011 to the present on or before August 6, 2015.
4.
-2-
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during operations at work sites or during executions of warrants in connection with
employment-related violations on or before August 13, 2015.
5.
during operations at work sites or during execution of warrants in connection with
employment-related violations on or before August 13, 2015.
6.
All documents relating to internal affairs investigations IA 2014-542 and
IA 2014-543 on or before August 6, 2015.
correspondence between independent investigator Donald Vogel and MCSO personnel
and counsel and drafts, working papers and other documents relating to the foregoing
10
This production will include all
investigations in the files of MCSO personnel, counsel or Mr. Vogel.
11
7.
All documents relating to the approximately 20 other internal affairs
12
investigations including 2 that were initially assigned to Mr. Vogel, but completed by
13
MCSO personnel, on or before August 6, 2015.
14
8.
All documents relating to internal affairs investigations from 2008 forward,
15
relating to allegations of discrimination against or illegal detentions of members of the
16
Plaintiffs class, as revised by Plaintiffs, on or before August 20, 2015.
17
9.
All subpoenaed documents pertaining to communications between Tim
18
Casey, Defendants former counsel and Defendants, along with a log identifying any
19
documents withheld on privilege grounds on or before August 3, 2015.
20
21
IT IS FURTHER ORDERED setting weekly Status Conferences for the

following dates and times in Courtroom 602:
22
1.
August 11, 2015 at 9:00 a.m.
23
2.
August 21, 2015 at 10:00 a.m.
24
3.
August 28, 2015 at 9:30 a.m.
25
4.
September 4, 2015 at 9:00 a.m.
26
///
27
///
28
///
-3-
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5.
6.
Dated this 31st day of July, 2015.
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6

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15
16
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18
19
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24
25
26
27
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-4-
(712 of 866)
EXHIBIT 26
(713 of 866)
3
4
5
6
7
8
9
Manuel de Jesus Ortega

Melendres, et al.,
Plaintiffs,
vs.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CV 07-2513-PHX-GMS
Phoenix, Arizona
June 29, 2012
1:32 p.m.
10
11
12
13
14
15
REPORTER'S TRANSCRIPT OF PROCEEDINGS
16
BEFORE THE HONORABLE G. MURRAY SNOW
17
(Status Conference)
18
19
20
21
22
23
24
25
Court Reporter:
Gary Moll
401 W. Washington Street, SPC #38
(602) 322-7263
Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription
(714 of 866)
CV07-2513, Melendres v. Arpaio, 6/29/12 Status Conference
A P P E A R A N C E S
2
3
For the Plaintiffs:
4
5
6
7
Andrew C. Byrnes, Esq.

COVINGTON & BURLING, L.L.P.
Redwood Shores, California 94065
(650) 632-4700
8
9
10
For the Defendants:
Timothy J. Casey, Esq.

James L. Williams, Esq.
SCHMITT, SCHNECK, SMYTH,
CASEY & EVEN, P.C.
1221 E. Osborn Road
Suite 105
Phoenix, Arizona 85014-5540
(602) 277-7000
For the Defendant Arpaio:
Thomas P. Liddy, Esq.

Senior Litigation Counsel
MARICOPA COUNTY ATTORNEY'S OFFICE
Civil Services Division
222 N. Central Avenue, Suite 1100
(602) 506-8066
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Daniel J. Pochoda, Esq.

Kelly J. Flood, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
P.O. Box 17148
(602) 650-1854
(715 of 866)
P R O C E E D I N G S
2
3
THE COURT:
Please be seated.
THE CLERK:
This is CV 07-2513, Melendres v. Arpaio,
on for status conference.
13:32:32
Counsel, please announce.
MR. BYRNES:
8
9
For the plaintiffs, Andrew Byrnes,
Covington and Burling.

MR. POCHODA:
Dan Pochoda for the ACLU.
10
MS. FLOOD:
And Kelly Flood with the ACLU.
11
MR. CASEY:
Your Honor, Tim Casey representing the
12
defendants, and with me is James Williams from my office.
13
THE COURT:
14
Let me just restate -- well, I have a number of
Good afternoon to you all.
15
questions to go over, and it strikes me that there may be very
16
few, actually, depending upon what the parties' reactions are.
17
But let me frame the issues as I see them and tell everybody
18
how I view this, and then, Mr. Byrnes, are you going to be
19
speaking on behalf of plaintiffs?
20
MR. BYRNES:
21
THE COURT:
22
And Mr. Casey, you'll be speaking on behalf of
23
13:32:43
Yes, I will.
13:33:05
13:33:24
So I'll invite you to say what you wish.
defendants?
24
MR. CASEY:
Yes, Your Honor.
25
THE COURT:
All right.
I might have some questions
13:33:31
(716 of 866)
for you.
What happened was when Covington -- as you, I think,
all know, this case was transferred to me from Judge Murguia.
Steptoe & Johnson was then the lead counsel representing
plaintiffs.
resolved and that I ruled on.
There were a number of discovery disputes that we
At some point during the discovery process, it was
after the initial Maricopa County documents were disclosed,
Covington & Burling substituted in for Steptoe & Johnson.
At
10
that time I considered whether or not I should recuse myself
11
based on Mr. Teel's -- my relation to Mr. Teel, who is a
12
partner in the Washington, D.C., Covington & Burling office.
13
I did look at the canon, I looked at the commentary, I
14
looked at the model rule, in trying to determine what a -- what
15
an interest that could be substantially affected by the outcome
16
was.
17
probably because when I looked at the model rule I did look at
18
some of the annotations in Section 445.
19
13:33:44
13:34:08
13:34:27
I did get diverted and started looking at state opinions,
I've laid out for you in my order my conclusions based
20
on the size of Covington and based on the nature of this case,
21
the fee award, and other matters.
22
reconsider it when Covington, in and of itself, discovered the
23
relationship and sent me a letter to assure me that Mr. Teel in
24
fact knew nothing and would receive no remuneration, let alone
25
slight remuneration.
13:34:42
But it did cause me to
13:35:01
(717 of 866)
When I went back and looked, I saw that there is an
advisory opinion for federal courts, which I have pointed out
to you, which, despite the fact that the states engage in a --
it looks to me like pretty much a fact by -- a case-by-case
analysis based on factors that I set forth in my previous
order, the federal advisory opinion is more of a per se rule,
and it just says even though -- it seems to me it says that
even though it recognizes there could be exceptions, generally
there's a per se -- because generally there would be a
10
13:35:16
substantial interest, there's a per se recusal rule.
11
13:35:32
Since then, of course, I provided you with that, asked
12
you to comment on it, I realize that there is a split between
13
the Second and the Fifth Circuits, the Second Circuit rejecting
14
the per se rule and noting that -- in a case very similar to
15
this one -- that because of the nature of large law firms, it's
16
unrealistic to assume that a partner in one will have a
17
substantial interest in every case, the Fifth Circuit,
18
nevertheless, abiding by the per se rule.
19
13:35:49
It seems to me that leaves us with three possibilities
20
here.
The first is the parties may wish me to continue to sit
21
on the matter.
22
it is something I can do in light of the advisory opinion.
23
realize that the advisory opinion is not used and is rejected
24
for purposes of interpreting this Court's obligation under
25
Section 455, so it involved my opinion of my own ethical
13:36:07
And if they do, then I have to consider whether

I
13:36:26
(718 of 866)
obligation as opposed to a Section 455 obligation, but I also
note that the language of the canon and Section 455 are -- they
do track one another.
do that even if the part -- you know, assuming the parties
wished me to do so, and assuming one wanted me to do -- do it
and another, then that would raise another matter.
So I'd have to consider whether I could
It does seem to me that in light of the fact that
this -- if I continue on the case, it almost certainly creates
an issue for an appeal.
It may be a -- may be a decision --
10
may be a matter about which the parties are agreed and they do
11
not wish me to sit any more.
12
in place my past orders.
14
case in the Second Circuit, which was affirmed, and that
15
strikes me as an option.
16
to me to give rise to a potential appeal which the parties may
17
not want and certainly, in light of the public interest at
18
stake, may be inadvisable.
That is what was done in the Pashaian
Although it still, of course, seems
13:37:24
Nevertheless, I realize that there are substantial
20
interests involved.
21
based on my earlier determinations, which I think were made in
22
good faith even if erroneously made.
23
13:37:06
The second option is I could recuse myself and leave
13
19
13:36:49
For what it's worth, I made the decisions
13:37:40
The third choice, of course, is for me to recuse now
24
and to vacate any orders that I entered after Covington entered
25
in the case that were substantive.
I have reviewed the -- and
13:38:00
(719 of 866)
that, it seems to me, would eliminate any appeal issues; it
would eliminate any questions of bias or impropriety.
I have reviewed the docket for purposes of advising
counsel before hearing from you today.
entry in the case I had already indicated that certain
sanctions against the defendant were appropriate, and that I
would consider certain other sanctions, and I had imposed
certain sanctions although I hadn't defined their amount.
For example, I had indicated that sanctions were
Prior to Covington's
10
appropriate for the destruction of the stat sheets.
11
indicated that I was going to wait until the end of discovery
12
before determining what those sanctions would be.
13
14
But I'd
And I don't know, Mr. Byrnes, if you were involved in

the case at that time.
17
recall it as well.
18
then.
13:38:52
Mr. Pochoda, I think you were; you will
Ms. Flood, I don't think you were around
-- we discovered the Maricopa County documents, I
20
indicated that I would determine whether sanctions were
21
appropriate at the end of the case based on what could be
22
recovered, what couldn't be recovered, and I think I entered
23
those orders.
25
13:38:36
recall --
16
24
13:38:22
In the middle of that process, Mr. Casey, as you will
15
19
13:39:03
I also, before Covington entered the case, ordered

that Sheriff Arpaio be redeposed because of the failure to
13:39:14
(720 of 866)
disclose his previous file prior to his first deposition, and I
ordered that you would pay for that deposition but I didn't
determine any amount.
It was also prior to Covington's entry in the case
that we had tracked a little bit through the documents that you
received from Maricopa County and I indicated that I would
likely enter a similar order as against the Maricopa County
defendants requiring them to pay for any re-depositions that
were necessary.
However, I did indicate that I likely would, I
10
didn't exactly enter that order, and then Covington entered the
11
case.
12
that I actually entered the fee award to Maricopa County.
13
13:39:49
It was after that that I ordered -- it was after that
So it seems to me that if I were to recuse and to
14
vacate my previous orders, I ought to vacate that order,
15
subject to a new court considering the appropriate amount to
16
award for Sheriff Arpaio's deposition, and the amount, if any,
17
that it would award for other depositions that were
18
necessitated in the case.
19
13:39:30
13:40:08
Actually, there weren't too many orders, because so
20
much of this was discovery, but the orders that I did enter
21
were significant.
22
class, denying relief, and granting relief on the cross-motions
23
for summary judgment.
24
would need to be vacated if I were going to vacate orders,
25
subject to a new judge redetermining -- making a
13:40:26
I also entered an order certifying the
It seems to me that all those orders
13:40:42
(721 of 866)
redetermination as to those orders.
Happily, at least, I suppose, the briefing's been done
on all of those orders, so it wouldn't require additional
effort by the parties, unless you wanted to rebrief the issues,
or unless the position of one of the other parties has changed
with regards to matters that I issued -- that I entered relief
on.
8
9
13:40:56
I also, prior to that -- after that time have set

trial and ruled on a few of the parties' motions in limine, or
10
all the motions in limine that were filed.
It seems to me, of
11
course, that the trial setting would have to be vacated, and
12
the Court's rulings on the motions in limine would have to be
13
vacated.
14
substantive orders I think that I have entered that would
15
require vacation.
16
position of the parties is before determining how I'm going to
17
rule.
13:41:13
But as I have reviewed the docket, those are the only
So I'm interested in hearing what the
18
Mr. Byrnes.
19
MR. BYRNES:
20
THE COURT:
13:41:26
Thank you, Your Honor.

And by the way, I am, as I think I
21
indicated, I am familiar with, for example, the Pashaian line
22
of cases in the Second Circuit and the Fifth Circuit line of
23
cases.
24
me of it in great detail, but are you aware of any Ninth
25
Circuit authority on this issue?
13:41:44
I'm aware of all of that, so you don't have to inform
13:42:02
(722 of 866)
CV07-2513, Melendres v. Arpaio, 6/29/12 Status Conference 10
MR. BYRNES:
Not on this particular point, ex -- well,
let me say this, Your Honor.
position that the -- neither the statute nor the advisory
opinion or the canons either counsel in favor of or mandate
your recusal, and we would not support your recusal.
First of all, it's plaintiffs'
The authority -- the Ninth Circuit authority that's
relevant here is the Nachshin case.
It's 666 F.3d 1034.
Circuit addressing specifically Section 455(a), which was the
That's N-a-c-h-s-h-i-n.
And that was last year from the Ninth
10
statutory provision you -- about which you asked us -- you
11
asked us to consider.
12
13:43:02
And the reason why that is important is it poses the
13
recusal question as whether a reasonable person with knowledge
14
of all the facts would conclude that the judge's impartiality
15
might reasonably be questioned.
16
13:42:30
13:43:18
So in light of that case, and the nonbinding nature of
17
the advisory opinion, and I can -- you know, as you went over
18
the Pashaian case from the Second Circuit also discussed, that
19
rather than -- that the -- any mandate that might be discerned
20
in the advisory opinion is in fact not a mandate to this Court
21
to recuse, but in fact, the Court must, as you noted in your
22
initial order with regard to today -- regard to this matter,
23
it's important the Court needs to look at the facts to really
24
determine, in light of Mr. Teel's interest in the case and the
25
other circumstances related to the case, whether recusal is
13:43:39
13:43:57
(723 of 866)
appropriate.
And with regard to those facts --
THE COURT:
MR. BYRNES:
THE COURT:
Let me ask you -Yes.

-- here's sort of an intriguing question,
and I realize it's already been decided as far as the Second
Circuit's concerned, but if I proceed, aren't I, according to
the advisory opinion, acting unethically?
8
9
MR. BYRNES:
13:44:07
You're not, Your Honor, for several
reasons, one of which simply that the advisory opinion itself
10
is simply that: it's advisory, it's nonbinding, and therefore,
11
it would not indicate --
12
THE COURT:
13
MR. BYRNES:
14
THE COURT:
Yeah, and I realize that it may --- whether or not you're ethically --- not set forth a very good rule in terms
15
of today's world and in terms of a firm life Covington, which
16
is massive, but it nonetheless is a per se rule, isn't it?
17
not wrong in reading it as a per se rule.
18
MR. BYRNES:
13:44:26
13:44:35
I'm
Your Honor, there is -- I think read in
19
its entirety I would not -- I -- I don't believe that the
20
advisory opinion in fact conveys a per se rule.
21
that, Your Honor, there is a sentence in the advisory opinion
22
that discusses -- it states the judge must recuse if a relative
23
is an equity partner of a firm.
24
from the canon, and then states:
25
an equity partner in a law firm generally has an interest that
And I say
13:44:52
It follows that by quoting

The committee concludes that
13:45:12
(724 of 866)
could be substantially affected by the outcome of a
proceeding --
THE COURT:
It does say that, but it also says -- and
I realize it's only an advisory opinion, and it's sort of odd
for an advisory opinion to be dealing in mandates -- but it
says after it says that that even though we recognize that this
isn't always going to be the case, nonetheless, if you have a
relative in a law firm, doesn't matter how big it is, doesn't
matter what the facts are, you must recuse.
10
Isn't that what it says?
11
MR. BYRNES:
12
THE COURT:
13:45:39
I don't believe so, Your Honor.

What about the portion of that opinion
13
that says the remittal procedure is otherwise unavailable if
14
you have a relative in the firm?
15
least as a matter of their advice, that even if you agreed with
16
the Sheriff's Office that I should continue on this case, I
17
can't do it?
18
MR. BYRNES:
Doesn't that mean that at
what that means.
20
regard to the statute as it affects remittal between a
21
determination that recusal would otherwise be appropriate under
22
455(a) versus 455(b), and it's --
It's referring there to a distinction with
23
THE COURT:
24
MR. BYRNES:
Honor.
13:45:56
No, Your Honor, I don't believe that's
19
25
13:45:25
13:46:09
Well --- it's basically stating -- sorry, Your

13:46:24
(725 of 866)
1
2
THE COURT:
Let me ask you:
to recuse under 455(b)?
MR. BYRNES:
THE COURT:
MR. BYRNES:
Is there any basis for me
I don't see it.
We don't believe so, Your Honor.

All right.
And so as I read the portion of the
advisory opinion to which I believe you're referring, they are
noting, which is what the canon and the statute notes, which is
that if Your Honor decides to recuse -- were to decide to
recuse himself under 455(b), then remittal would not be
10
available.
My understanding -- and certainly I can talk about
11
455(b), but with regard to 455(a), remittal is statutorily
12
available.
13
THE COURT:
14
authority you wanted to add?
15
MR. BYRNES:
Thank you.
13:46:35
13:46:49
Do you have any other
The only other comments I would make,
16
Your Honor, is that the conflict between the Second Circuit and
17
the Fifth Circuit is notable, certainly, as a conflict.
18
will note for the Court that the Second Circuit case, which is
19
from 1996, substantially more contemporary than the Potashnick
20
Fifth Circuit case from 1980, is more appropriately suited for
21
this case where you have a partner in a very large law firm --
22
in fact, in the Pashaian case it was the Cahill firm, which at
23
the time had 200 lawyers; they have substantially more now.
24
Our firm has 800 lawyers and over 200 partners.
25
the concept in the Pashaian case that any mandate that might be
13:47:03
But I
13:47:28
And therefore,
13:47:49
(726 of 866)
derived from the advisory opinion should be rejected in favor
of this fact-based consideration with regard to
disqualification, we believe that it's -- it's the Second
Circuit that would certainly not control but is much more
persuasive than the much older Fifth Circuit case.
13:48:09
And I would just like to add one final point, Your
Honor.
You know, obviously, Your Honor's decision with regard
to recusal is not being made in a vacuum.
this case was first filed four-and-a-half years ago.
As Your Honor knows,

If you
10
recuse yourself there will be three federal district judges
11
handling this case.
12
only a few weeks away, it would be delayed still further, and
13
recusal would certainly impose a significant administrative
14
burden on the Court.
15
that -- that recusal is required or its counsel in favor of
16
with regard to this advisory opinion, and we would urge the
17
Court not to recuse itself.
13:48:26
There's no question, given that trial is
And again we, plaintiffs do not believe
18
THE COURT:
So you'd like to buy yourself an appeal?
19
MR. BYRNES:
I suspect that if we win, we'll have an
20
appeal, regardless.
But I think the process that we're going
21
through now, the facts with regard to this matter, I -- you
22
know, the Ninth Circuit will do what it does, but I think that
23
the better argument by far if this were appealed is that Your
24
Honor -- if Your Honor does not recuse himself, that you acted
25
properly.
13:48:44
13:48:58
13:49:17
(727 of 866)
THE COURT:
MR. BYRNES:
THE COURT:
All right.
Thank you.

Mr. Casey, you're going to be speaking on
behalf of the defendants?
MR. CASEY:
Yes, Your Honor.
THE COURT:
All right.
You understand the issues I am interested in?
MR. CASEY:
Your Honor, I'd like to break it down two ways.
13:49:22
Yes, Your Honor.

I'd
10
like to first make a record of my clients' position, and then
11
I'd like to address the questions that you've asked of
12
Mr. Byrnes and that I think that you're interested in.
13
First, my clients, defendant Joe Arpaio and the
14
Sheriff's Office, MCSO, have no objection to this Court
15
continuing to preside over this matter and trying this case,
16
post-trial motions as well.
17
record is clear for the interests of all the parties and for
18
the Court.
19
have directly consulted my current client contact at the MCSO
20
for both the entity and for Sheriff Arpaio -- that's Deputy
21
Chief Jack MacIntyre -- and spoken to him on this.
22
without waiving any privilege, Deputy Chief MacIntyre has
23
advised me that defendants Arpaio and the MCSO have no
24
objection.
25
13:49:31
13:49:53
I want to make sure that the
Without waiving any attorney-client privilege, I
13:50:12
Again,
I also spoke personally on the 25th with chief -- the
13:50:28
(728 of 866)
new chief, chief deputy, Jerry Sheridan, and with
Sheriff Arpaio on Monday, the 25th, confirming that
representation.
telephonically -- on Wednesday with Sheriff Arpaio.
objection.
I also spoke personally -- again

We have no
13:50:49
It's important to note that the Court's sister is no
longer with the very large law firm, Covington & Burling, and
has not been there, as I understand it, for a decade or more.
Based on the representation of Mr. Young in his correspondence
10
to the parties and the Court, Mr. Teel, the Court's sister's
11
husband, has not, nor will have, any involvement in this case.
12
He has been ethically screened from this case by the
13
Covington & Burling law firm.
14
Mr. Young, Mr. Teel will not have any financial interest of any
15
amount of money should plaintiffs qualify in whole or in part
16
as a prevailing party under the statutes, 1983, 1988.
17
Based on the representation of
13:51:27
It's my clients' position, based on the foregoing
18
representations by Mr. Young and the entire history of this
19
Court's involvement in this case, that the Court's impartiality
20
in this case cannot be reasonably questioned by the defendants,
21
and the Court's impartiality in this case cannot be reasonably
22
questioned by any reasonable and fair-minded person.
23
13:51:05
13:51:48
Accordingly, recusal is neither warranted nor
24
desirable.
This case should be tried on the merits before this
25
Court and the trial date should be maintained.
It would be
13:52:07
(729 of 866)
unfairly prejudicial to my clients to have a vacating of any
prior orders and the removal of this Court.
The second prong of the answers, or at least directly
to your questions, is that I think the rule contemplates a
per se.
it's an advisory opinion.
a very different factual circumstance if Mr. Teel was actively
involved in the litigation, in fact, the trial attorney in this
case.
10
That's the canon, at least the advisory opinion, but

As I read it, I think we would have
He is not.
The reality, and knowing from my predecessor firm for
11
16 years at Snell and Wilmer, when I left it was 450 lawyers.
12
The reality is firms are large, can be large, and you may not
13
ever see your partner except at the annual events.
14
know what's going on here.
15
13:52:51
You may not
I do not believe in the circumstances we have here --
16
and I cannot answer the ethical question, I can just share with
17
you my reading of it is it does not create, under the facts we
18
have here, a per se rule that requires you, or in the language,
19
must recuse, because Mr. Teel is not here; he's not a party;
20
he's been ethically screened.
21
opinion says, but it is precisely that.
22
13:52:32
I understand what the advisory
13:53:09
13:53:30
I think Mr. Byrnes points out something on behalf of
23
his clients that is notable and worthwhile, and that is the
24
Court's not in a vacuum, and all the rules that you govern by,
25
that you interpret by, really not only are the ethical
13:53:48
(730 of 866)
standards part of it, but Rule 1.
determined by how we can have a just, speedy, expeditious
determination of this matter.
And everything is to be
It would be, I would respectfully submit, wrong for
the Court on its own to recuse itself.
enormous amount of time.
decisions we don't like we've appealed, but the reality in
litigation is there will be a winner and there will be a loser.
It has invested an
13:54:07
Decisions by the defendants are some
The important thing, I think, in any litigation,
10
whether you represent -- as an attorney, whether you represent
11
a plaintiff or you represent a defendant, is if you believe the
12
judge is going to be fair and impartial and do his or her best,
13
without any outside influences or effects.
14
that that exists here.
15
My clients believe
We may not agree with the Court's rulings in the past,
16
we may not agree with what the Court may do in the future, or
17
we may think you're the most wonderful judge, depending on what
18
you do in the future, the fact is the Court's rulings have been
19
viewed by my client, even though disagreeable or unpleasant to
20
the client, as fair.
21
13:54:35
That's the most any party can want.
13:54:48
13:55:06
The other thing is we're entitled to go to a trial.
22
There is enormous public interest in this case.
None of the
23
parties should try this case for the people in the gallery.
24
need to try it to you, since we don't have a jury.
25
want is resolution, because there's a tremendous stigma
We
But what we
13:55:27
(731 of 866)
associated with the issues in this case for my client,
particularly the good men and women that work at the MCSO.
this case, a resolution will provide a resolution, a closure on
the stigma that the charges in this case have been brought
against them, who they believe are doing good,
race/ethnicity-neutral law enforcement.
they want to bring it; they don't want it to delay.
8
9
In
13:55:48
They want closure;
So with that said, Your Honor, we have no objection.

We want you to continue on.
The ethical rules I do not believe
10
under the facts here allow you unilaterally, on the Court's own
11
motion sua sponte, to invoke an ethical rule to get out.
12
would not be appropriate for all the interests.
13
cannot speak for the plaintiffs, but I heard what Mr. Byrnes
14
said, and I think both parties have an interest in the
15
resolution of this before this Court.
16
deal with the issues and then we're going to challenge whatever
17
we need to challenge.
18
13:56:09
That
That is, I
The parties are going to
13:56:32
The public, to the extent it has any role in this,
19
also has a desire in having a resolution.
We just saw recently
20
a change in the government's position through the current
21
administration's policy on how they were going to handle
22
certain people of classifications that are in the country
23
unlawfully, we also had the SB 1070 decision I think came out
24
on Monday, and, you know, this is a front, center-stage issue.
25
In many ways, this is a landmark case that people throughout
13:56:47
13:57:05
(732 of 866)
the country are looking at and talking about in colleges and in
law schools.
We need to have it resolved.
For it to go to someone would require an enormous
amount of time for that court to get up to speed on, and the
fear that I have as a trial counsel is the Court's given each
side 20 hours.
enormous amount of time to devote to this case, could fairly,
even if he or she immersed themselves in it for 30 days
continuously, would be able to fully appreciate and understand
10
11
I doubt that a new court, if he or she had an
the issues and try this case in 20 and 20 hours per side.
THE COURT:
vacate my pretrial order and the new -- new court could set
13
whatever hours they wanted.

MR. CASEY:
13:57:49
Well, if I were to recuse, though, I would
12
14
13:57:26
The Court can do anything.
What I'm
15
suggesting to you is that that would be unfairly prejudicial to
16
my client.
17
particularly ready on the 19th.
18
Mr. Byrnes essentially say the same thing.
13:58:04
We're ready to go to trial and we'll be

I think I heard or understood
19
And again, I'm not accustomed to saying this to any
20
judge, but I respectfully submit to you, and I emphasize the
21
word "respectfully," that I do not believe it is appropriate
22
for the Court unilaterally to look at -- and I realize
23
that's a -- that you may or may not disagree; that's a decision
24
the Court needs to make.
25
believe it is not appropriate for the Court to look at that
13:58:21
But I'm submitting to you that I

13:58:38
(733 of 866)
canon or any of the statutes, I don't see the applicability of
the statutes, but this canon, and say, I must recuse because I
have a sister -- I have a brother-in-law who lives in another
state who has nothing to do with it but happens to be in this
law firm and knows nothing about it, has been ethically walled
out, is not trial counsel, I'm going to get out of here.
don't think ethically that is appropriate.
quite frankly, if I'm sitting in your shoes, and I know I'm
not, if I ever am some day, that doesn't require it.
10
The ethical rules,
So
that's --
13:59:14
11
THE COURT:
Well, you've read the opinion, right?
12
MR. CASEY:
Your Honor, I've just -- I've spoken to
13
you as an advocate for my client and also from my reading of
14
the case law for the decisions, for the advisory opinions; I
15
don't see it.
16
And I just think under the circumstances --
THE COURT:
13:59:30
What about the question I asked
17
Mr. Byrnes:
18
the two of you agree I can hear the case, I shouldn't hear it?
19
13:58:58
Doesn't the advisory opinion suggest that even if
MR. CASEY:
Yes and no.
It says "must recuse."
I've got the advisory
20
opinion.
Then I look down here:
21
someone's acting as a lawyer in the proceeding, or if the
22
judge's spouse or a person related to the third degree is.
23
think you've got to look at it as in the conjunctive.
24
why I tried to articulate that Mr. Teel's not here.
25
involved.
That's a different circumstance.
If
13:59:48
That's
He's not
Your sister is not
14:00:04
(734 of 866)
here.
I don't believe the facts fit squarely with this, so I
don't believe this -- it is a per se rule, but I don't believe
under the facts the per se rule is applicable to Judge Murray
Snow.
14:00:20
THE COURT:
Well, so I take it that you would be
telling me that the Pashaian line of cases out of the Second
Circuit is the right rule and the Potashnick line out of the
Fifth Circuit is the wrong rule?
10
MR. CASEY:
I think that is accurate.
11
THE COURT:
Are you waiving that on appeal?
12
MR. CASEY:
Your Honor, I will tell you sincerely that
14:00:33
13
I wish I -- I mean, I could talk to my client if you want to
14
continue this hearing for a minute.
15
would recommend to my client.
16
I have my own ideas what I

14:00:49
I am not authorized yet to -- and I actually have a
17
note here about the issue of waiving the bias of the judge on
18
appeal, but I don't have that authority.
19
frankly, asked my client on that for -- I think just as an
20
oversight.
21
I've not, quite
14:01:08
If you wish to have a continuance, I think I can talk
22
to the client and see if I can get ahold of them.
23
guaranty that we can have that done in a short period of time.
24
25
THE COURT:
Well, let me advise this way.
I can't
It does
seem to me, and I wish to express, as I have before, my
14:01:23
(735 of 866)
appreciation for the professionalism of counsel, but it does
seem to me that a factor here is -- a factor in my
consideration is whether or not the public is free from any
perception of bias.
you're telling me your clients' not going to assert bias and
the plaintiffs are all collectively telling me they're not
going to assert bias, that that weighs in factoring whether the
public's going to assert bias.
And of course, it means something to me if
But I guess another thing that weighs into my thinking
10
is if I decide that I can and should, under the rules of this
11
case, go ahead and consider it, I do not want to invest the
12
time and cause the turmoil that a decision either way will
13
resolve -- and likely it won't be either way, because I realize
14
there's multiple applications of the issue -- but whatever the
15
determination is, it has the potential for causing upset.
16
don't have any intention to cause that upset if both parties
17
are going to tell me that they want me to proceed with the case
18
and then one party is going to assert the right on appeal.
19
14:01:59
14:02:20
And it may well be that if you're telling me that you
20
think that the Second Circuit rule is appropriate you've waived
21
the issue on appeal, I'm not sure.
22
have that issue.
23
that issue as well, because they don't know how this case is
24
going to come out.
25
14:01:43
14:02:41
But it isn't just you that
It seems to me that all the plaintiffs have
MR. CASEY:
So I'm going to have to take -May I get a note, Your Honor?
14:02:54
(736 of 866)
THE COURT:
Sure.
MR. LIDDY:
(Handing note to Mr. Casey).
MR. CASEY:
May I make a comment, based on the note
Mr. Liddy -- you know, if the Court's concerned about future
appeals, is there a mechanism I'm not familiar with about
certifying the recusal question in the Ninth Circuit for
immediate decision?
THE COURT:
Is that something that -I am not familiar with any such procedure,
and if I were -- based on my time on the state appellate court,
10
if I were on the appellate court I would certainly not accept
11
such a referral as a good idea, Mr. --
12
13
MR. CASEY:
Would it be an advi -- it would sort of be
THE COURT:
It would be an advisory opinion, and
15
they're busy enough with important cases without giving
16
advisory -- without giving binding advisory opinions, so --
17
19
20
14:03:28
an advisory --
14
18
14:03:13
MR. CASEY:
note.
14:03:36
Well, I interrupted you because I got the
I -THE COURT:
Well, let me ask, are the plain -- are all
of the plaintiffs represented here by counsel?
21
MR. BYRNES:
22
THE COURT:
14:03:50
Yes, they are, Your Honor.

And as far as you're concerned, your view
23
is -- and I think you've indicated that, Mr. Byrnes -- your
24
view is that the Second Circuit rule is appropriate that in
25
certain circumstan -- that the advisory opinions are not a
14:04:02
(737 of 866)
basis under which 455 determinations should ever be considered,
and you're waiving any argument to the contrary.
MR. BYRNES:
We waive an argument on appeal with
regard to the matters presently before the Court, with regard
to advisory opinion number 58 and Section 455 of 28 U.S.C.
THE COURT:
14:04:20
Mr. Casey, I'll tell you what I think I'm
going to do, and I want to let you finish whatever you wanted
to say, I'm not going to decide this matter right this moment.
I'm going to think about it.
I realize that we've got trial
10
prep so I can't think about it forever.
11
I'm going to do.
12
You need to know what
If you want to make any additional representations on
13
behalf of your client, I would appreciate them.
14
in writing, unless plaintiffs have any objection to that.
15
then I'll try to issue my ruling within a matter of a very few
16
days.
17
18
MR. BYRNES:
I'll take them

And
14:04:55
We have no objection to that process,
Your Honor.
19
MR. CASEY:
Your Honor, thank you very much.
I will
20
do my best.
21
of July holiday.
22
make sure that I'm understanding this correctly is whether or
23
not my client would agree to --
24
25
14:04:38
You know, next weekend -- or next week is the 4th

So I will work on it today, and -- I want to
THE COURT:
it.
14:05:05
Well, I think you may have already done
Here's how I see it.
14:05:30
(738 of 866)
1
2
MR. CASEY:
Yeah, by acknowledging the Second Circuit
decision, which I think is applicable.
THE COURT:
Right.
You're arguing to me that the
Second Circuit is applicable.
MR. CASEY:
Yes.
THE COURT:
If you're arguing to me that that's
14:05:38
applicable, it seems to me you're waiving any argument that you
can subsequently argue that there's a separate basis that
results from the advisory opinion that should result in a
10
reversal in this matter.
11
14:05:48
Now, by saying that, I also want to make clear both
12
for you and for plaintiffs that I'm not asking about any other
13
issue.
14
other issues.
I mean, you retain your rights to appeal every and all
15
MR. CASEY:
Just not the judge bias issue.
16
THE COURT:
Well, it seems to me that to put a -- to
17
put a fine point on it so you understand what I'm saying, if I
18
understand the Second Circuit's opinion in Pashaian, it says
19
that an advisory opinion is an advisory opinion.
20
be considered in terms of a 455(a) recusal.
21
It is not to
application of the law, it seems to me that at least I would
23
point out to you that you risk waiving that argument on appeal.
25
14:06:18
If you are both arguing to me that that is the correct
22
24
14:06:03
MR. CASEY:
Then I put on the record I knowingly and
intelligently assume that risk because I've read it, I
14:06:37
(739 of 866)
understand it, and I'm authorized by my client to make the
representations I've made which I think necessarily covers that
particular issue.
THE COURT:
Well, it does seem to me, and I don't know if you have
All right.
any more you wanted to say, Mr. Casey --
MR. CASEY:
No, Your Honor.
THE COURT:
It does seem to me that in addition to
14:06:54
Thank you.
what the parties seem to be agreed on, I have to consider my
10
obligation to this court -- as you've said, it burdens another
11
judge -- but I also have to consider whether this is the sort
12
of thing that as a matter of my ethics it's appropriate for me
13
to continue to do.
14
I realize that you can't wait.
14:07:05
You've got a trial
15
that's pending.
So I will make my decision on that very
16
quickly and I will try to get my decision out very quickly for
17
you.
14:07:18
But I will issue my ruling on this.
18
MR. CASEY:
Your Honor, Tim Casey for the defendants.
19
I'm going to, if not -- if I get ahold of my client
20
today, you're going to hear something in writing today.
21
don't, then I'm going to get you something on Monday --
22
THE COURT:
All right.
23
MR. CASEY:
-- by the close of business.
24
THE COURT:
Thank you.
25
Is there anything else that any party has?
If I
14:07:32
14:07:40
(740 of 866)
MR. BYRNES:
MR. CASEY:
Nothing more from plaintiffs, Your Honor.

Just one housekeeping matter for the
record for trial.
anything.
We have an agreement that since they've subpoenaed a number of
MCSO law enforcement personnel, we're going to give each other
24 hours' notice of who actually needs to be in attendance on a
particular day so we don't have law enforcement wasting time.
Your Honor, I'm not being presumptuous about
Mr. Byrnes, Mr. Pochoda, and I have already talked.
THE COURT:
That seems to me to be a very good
10
stipulation, and I'm going to hold all parties to that if in
11
fact we proceed with trial in this matter.
12
MR. BYRNES:
13
THE COURT:
All right.
14
MR. CASEY:
No, Your Honor.
15
MR. BYRNES:
16
THE COURT:
17
(Proceedings concluded at 2:08 p.m.)
18
19
20
21
22
23
24
25
14:07:56
14:08:14

Any other matters?
No, Your Honor.

Thank you.
14:08:23
(741 of 866)
1
2
C E R T I F I C A T E
3
4
5
6
7
I, GARY MOLL, do hereby certify that I am duly
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
10
I FURTHER CERTIFY that the foregoing pages constitute
11
a full, true, and accurate transcript of all of that portion of
12
the proceedings contained herein, had in the above-entitled
13
cause on the date specified therein, and that said transcript
14
was prepared under my direction and control.
15
16
17
18
DATED at Phoenix, Arizona, this 30th day of May,

2015.
19
20
21
22
23
24
25
s/Gary Moll
(742 of 866)
EXHIBIT 27
(743 of 866)
3
4
5
6
7
8
9

Melendres, et al.,
Plaintiffs,
vs.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CV 07-2513-PHX-GMS
Phoenix, Arizona
December 4, 2014
1:31 p.m.
10
11
12
13
14
15
16
17
(Evidentiary Hearing)
18
19
20
21
22
23
24
25
Court Reporter:
Gary Moll
(602) 322-7263

(744 of 866)
CV07-2513 Melendres v. Arpaio, 12-4-14 Evidentiary Hearing 18
middle of the trial, the trial judge can jail them for the
pendency of the trial to see -- to coerce their testimony.
usually that authority ends when a trial ends.
Well, our trial's long since over.
We still are in
the period of injunctive relief that relates to that trial,
however.
interests me also for some of the other matters that we'll
discuss here today, and that is I can hold somebody in civil
contempt if I can compensate the victims of the contempt.
10
And
But the compensatory purpose is the one that
The problem is that in this case that is extremely
11
difficult to do.
12
we could identify everyone -- probably could not identify
13
everyone but we could identify some of the victims of Sheriff
14
Arpaio's conduct, or his office's conduct during the 18 months
15
in which he was apparently in violation of my preliminary
16
injunction.
17
difficult to know if we could find them.
18
13:51:35
I imagine that with some considerable effort
13:51:54
But even if we could identify them, it is
And we clearly couldn't identify, for example,
19
American citizens who may have been stopped in a desire to do
20
the kind of immigration patrols that were going on, and who
21
thus had their constitutional rights violated.
22
13:51:18
13:52:11
And also there's nothing we can do about the fact that
23
the Sheriff's Office, for 18 months, assumed authority that it
24
did not have under the Constitution.
25
for me, because this is a federal court designed to protect
And yet, it is impossible

13:52:36
(745 of 866)
those rights, and I did enter -- and this Court did enter
orders to protect those rights and those orders were violated,
it is impossible for me to leave that and to let it go without
some sort of appropriate response.
As I've indicated, I think that as the duly elected
sheriff of Maricopa County, the sheriff is entitled to some
deference by this Court if it can be offered.
that in the past when I've fined the sheriff, the sheriff just
passes the fine on to Maricopa County; and, in fact, depending
But I must say
10
upon who you believe, may be using my assessments of curative
11
procedures to actually expand his operating budget.
12
He also happened to make a comment, I think it was in
13
good jest, when he first met my monitor, that he loves to have
14
confrontations with the federal court because every time he
15
does his popularity goes up.
13:53:14
13:53:36
16
And so I really don't know, as I've thought about it,
17
whether there is a civil remedy that would fit this situation,
18
but I think that we ought to experiment -- we ought to think
19
about it:
20
through a civil contempt process without resort to a criminal
21
contempt process that would fit the violation that has occurred
22
here?
23
13:52:55
Is there some sort of civil remedy that is available

13:53:58
If not, Mr. McDonald, I fully intend -- you will see
24
for a minute my recommendation is going to be that we have a
25
civil contempt proceeding first on several matters.
But if at
13:54:21
(746 of 866)
MS. IAFRATE:
THE COURT:
That is correct, Your Honor.
But I believe that, if I understood your
motion correctly, you would be in a position to represent them
as far as civil contempt proceedings go.
MS. IAFRATE:
THE COURT:
That is correct, Your Honor.
All right.
And it does seem to me,
Ms. Wang, Mr. Young, for what it's worth, that if I initiate a
criminal contempt proceeding, that's actually a separate matter
tried by the United States Attorney.
Of course, you would be
10
interested in that matter, but you would not have a role in
11
that matter.
12
representing the class interests in this matter, I thought I
14
would raise to you another statute which I'm not going to put
15
on the monitor.
16
opposed to 401, and it basically says that if a crime has been
17
committed against victims of behavior that results from a
18
contempt, individual assessments of $1,000 can be made to be
19
paid by the contemnor as well as the jail fine, and because you
20
are representing people who may have been the victims of that
21
crime, I guess I want your input as to whether or not it's
22
worth pursuing such a contempt under that statute if civil
23
contempt doesn't meet it.
25
13:56:25
Nevertheless, to the extent that you have -- you are
13
24
13:56:10
It's 18, United States Code, Section 402 as
13:56:37
13:56:58
I would suggest that there's language in there that

the limit on the fine, if the fine goes to the United States,
13:57:11
(747 of 866)
is $1,000, and frankly, that's not worth the candle to me.
if the thousand dollars can go to -- if more than a thousand
dollars can go to individual victims of the crime, and if those
can be located without an enormous amount of difficulty and
trouble, I would appreciate it if you have any thoughts on
that.
But
13:57:31
The second matter, and these, again, are only
illustrative because there are a number of other matters, both
that the MCSO, I believe, has under good faith investigation
10
and other matters under investigation that are not appropriate
11
to discuss today and that I can't discuss today, but another
12
matter that I think involves the contempt statute is the
13
language that allows me to punish for contempt, disobedience,
14
or resistance to the lawful processes or rules of this Court.
15
In conjunction with the death of Sergeant Armendariz
16
and the disclosure by the MCSO of what they found there, there
17
was a number of recordings found that has led to, in subsequent
18
investigation, a number of all kinds of recordings of different
19
kinds, both audio and video, or at least knowledge of their
20
existence; reports that existed at the time that were
21
responsive to discovery that was requested that apparently were
22
not provided; license plates, licenses, identification cards,
23
credit cards, CDs, DVDs, purses, religious statuettes.
24
these are a matter of ongoing investigations by the MCSO and
25
the monitor.
13:57:46
13:58:08
13:58:26
Some of
13:58:51
(748 of 866)
1
2
3
4
5
6
7
10
11
12
13
14
15
16
17
18
DATED at Phoenix, Arizona, this 5th day of December,

2014.
19
20
21
22
23
24
25
s/Gary Moll
(749 of 866)
EXHIBIT 28
(750 of 866)
3
4
5
6
7
8
9

Melendres, et al.,
Plaintiffs,
vs.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CV 07-2513-PHX-GMS
Phoenix, Arizona
March 20, 2015
3:34 p.m.
10
11
12
13
14
15
16
17
(Status Conference)
18
19
20
21
22
23
24
25
Court Reporter:
Gary Moll
(602) 322-7263

(751 of 866)
being conducted by the MCSO with respect to potential officer
and command staff misconduct.
conducted by the PSB; some of them have been completed; some of
them are being conducted by Mr. Vogel, who is an independent
contractor to Maricopa County employed for that purpose.
But it does seem to me that because, as I think
Some of those are being
defendants have indicated in their motion, one of the things
that would make logical sense as a result of a civil contempt
is to expand the scope of the present injunction that governs
10
the MCSO.
11
15:43:14
15:43:35
It also seems to me that I need to know whether or not
12
there are adequate self-investigative procedures at MCSO.
13
Because the goal of this whole exercise of the injunctive
14
period is not simply to punish MCSO or to direct MCSO for a
15
three-year period, but it's to ensure that policies,
16
mechanisms, and procedures are put in place so that this never
17
happens again, and obviously one of those things has to be a
18
facility at MCSO to investigate itself and its own officers'
19
misconduct.
20
monitor's evaluation of how the MCSO has investigated itself
21
with respect to the Armendariz allegations and other matters.
22
15:43:55
A very important part of that would be the

15:44:19
I have already raised in these hearings my concerns
23
about some of those investigations.
I have a few other
24
concerns.
25
on any self-investigative privilege, I'm going to be careful
Some of those, just because I don't want to infringe

15:44:39
(752 of 866)
about talking about today, but there are some process concerns
that I think I can discuss without going into them too deeply.
For example, I've been told that Mr. Vogel's
performance -- my monitor has evaluated that performance, and
while I think that it may be likely that he would be concerned
about some of the potential conflicts and procedural
irregularities relating to the engagement of Mr. Vogel, I think
he has been satisfied, and perhaps even -- this is preliminary,
just based on my conversations with him -- satisfied, and even
10
11
somewhat praiseworthy, of Mr. Vogel's investigation to date.
15:45:22
However, it is my understanding that Mr. Vogel has
12
been directed by the MCSO that he is to provide facts only and
13
is not to evaluate those facts.
14
facts to somebody at MCSO and they will decide what the facts
15
mean, and whether or not there will be any discipline, and what
16
that discipline will be.
17
since Mr. Vogel has interviewed everyone from Sheriff Arpaio to
18
Chief Deputy Sheridan to everyone else.
19
there's an inherent conflict there, especially if Mr. Vogel
20
can't come to his own conclusions or make any recommendations.
21
15:44:57
And he is to provide those
15:45:46
I think that's pretty concerning,
It seems to me like
15:46:08
But even though I have those concerns and I share them
22
with you freely, it gets to the larger point, which is we have
23
those investigations, we have all the other investigations,
24
some of which are not complete and some of which are, and we
25
really don't have a complete evaluation of whether or not there
15:46:27
(753 of 866)
has been a fair and capable investigation, self-investigation
of MCSO of itself.
procedure, I think it's completely appropriate that in addition
to whatever other expansion that plaintiffs may seek of the
existing injunction that it include an expansion relating to
MCSO's self-investigative processes.
And if there isn't that facility and that
I kind of read your Exhibit A as suggesting that the
MCSO was open to that, but I don't really know how we flesh
that out in a way that doesn't require the completion of those
10
investigations unless you're just going to leave it up to the
11
discretion of the Court and the monitor, Ms. Iafrate.
12
Do you understand what I'm saying?
13
MS. IAFRATE:
14
THE COURT:
All right.
So that's a first concern, and
it strikes me that regardless of whatever else happens, we need
16
to have adequate relief that relates to that.
15:47:27
The second concern -- well, and so if in fact you
18
can't complete the investigations, I have some dates that I'll
19
want to review with you both that will be supplemental
20
hearing -- possible supplemental hearing dates for this civil
21
contempt after that investigation report is complete.
22
also realize that that may be appealed, depending upon what
23
discipline may or may not be imposed or suggested by the
24
individual persons involved.
25
15:47:12
I do.
15
17
15:46:46
15:47:50
And I
I understand that it may be the department's position
15:48:12
(754 of 866)
1
2
3
4
5
6
7
10
11
12
13
14
15
16
17
18
DATED at Phoenix, Arizona, this 24th day of March,

2015.
19
20
21
22
23
24
25
s/Gary Moll
(755 of 866)
EXHIBIT 29
(756 of 866)
3
4
5
6
7
8
9

Melendres, et al.,
Plaintiffs,
vs.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CV 07-2513-PHX-GMS
Phoenix, Arizona
April 21, 2015
9 o'clock a.m.
10
11
12
13
14
15
16
17
(Evidentiary Hearing)
18
19
20
21
22
23
24
25
Court Reporter:
Gary Moll
(602) 322-7263

(757 of 866)
Trombi - CR07-2513, Melendres v. Arpaio, 4/21/15
problem involving an HSU operation.
A.
Yes, sir.
Q.
And they could also go to Chief Sands if they preferred?
A.
Correct.
MR. POCHODA:
THE COURT:
Thank you.
140
Is that fair to say?
No further questions.
You know, Chief, I am going to try to
refrain from asking questions, but I do have a few questions
for you, just 'cause I'm not sure, and I'm going to ask them
now because I'm going to allow Mr. Pochoda to ask any
10
follow-ups that I have, and then I'm going to allow, again, the
11
attorneys to do their follow-up, and then at least for this
12
time you may be through, subject to recall.
13
13:25:20
13:25:40
EXAMINATION
14
BY THE COURT:
15
Q.
16
conversation with Deputy Armendariz in which you said you
17
believed him?
18
A.
Yes.
19
Q.
Can I ask you, sir, you said you were with MCSO, did you
20
say 26 years?
21
A.
24, sir.
22
Q.
24.
23
Do you remember when you were talking about your
13:25:54
13:26:11
And you were a deputy for a year and a half on Patrol?
24
A.
Approximately, maybe a little longer.
25
Q.
And then you went to the public information office?
13:26:18
(758 of 866)
CV07-2513, Melendres v. Arpaio, 4/21/15 Evidentiary Hrg 285
1
2
3
4
5
6
7
10
11
12
13
14
15
16
17
18
DATED at Phoenix, Arizona, this 22nd day of April,

2015.
19
20
21
22
23
24
25
s/Gary Moll
(759 of 866)
EXHIBIT 30
(760 of 866)
512
3
4
5
6
7
8
9

Melendres, et al.,
Plaintiffs,
vs.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CV 07-2513-PHX-GMS
Phoenix, Arizona
April 23, 2015
8:34 a.m.
10
11
12
13
14
15
16
17
(Evidentiary Hearing Day 3, pages 512-817)
18
19
20
21
22
23
24
25
Court Reporter:
Gary Moll
(602) 322-7263

(761 of 866)
Arpaio - Direct, Melendres v. Arpaio, 4/23/15
579
that called for various changes in your office and appointed --
or said it would appoint a monitor, is that right?
A.
Yes.
Q.
And at that time, anyway, the Court was also requiring some
form of community outreach for your office, correct?
A.
Yes.
Q.
Okay.
A.
I don't know --
Q.
And the judge later -- later canceled that part of the
You didn't like that part of the order, right?
10
order, but at the time that that order was issued, you didn't
11
like the part that called for community outreach, is that
12
right?
13
A.
14
felt that maybe we should do it, but I had -- I'm not opposed
15
to the monitor doing it.
16
Q.
17
saturation patrol in an area where one of your officers had
18
been murdered, is that right?
19
A.
Yes.
20
Q.
And you made some statements to the press at that
21
saturation patrol, correct?
22
A.
I may have.
23
Q.
Let's take a look at 193A.
24
you recognize it.
25
09:59:41
09:59:52
When you say "like," I had a management decision that I
10:00:12
Not long after that decision by the Court you held a
10:00:25
I'm going to ask you whether
(Video clip played as follows:)
10:00:40
(762 of 866)
THE CLERK:
Hold on one moment.
(Video clip concluded.)
(Pause in proceedings.)
THE CLERK:
INTERVIEWER:
Is there audio with this?
Okay.
10:01:20
It's a controversial operation labeled
as a crime sweep.
9
10
580
SHERIFF ARPAIO:
Some courts want community outreach.
I just started it.
11
10:01:31
12
BY MR. YOUNG:
13
Q.
14
do community outreach, you were referring to this Court,
15
correct?
16
A.
Yes.
17
Q.
That's you on that video, right?
18
A.
Yes.
Sheriff, when you were referring to courts wanting you to
10:01:43
19
MR. YOUNG:
I move to admit 193A.
20
MS. IAFRATE:
21
MR. WALKER:
22
MR. COMO:
23
THE COURT:
24
(Exhibit No. 193A is admitted into evidence.)
25
MR. YOUNG:
No objection.
10:01:54
No objection.
No objection.
193A is admitted.
Now, 193B, let's take a look at that.
10:02:03
(763 of 866)
That's from the same news segment.
2
3
THE CLERK:
You have to give me just a minute to
switch, because I can't turn that off separately.
Okay.
SHERIFF ARPAIO:
That's the law enforcement aspect.

BY MR. YOUNG:
10
Q.
11
Sheriff?
12
A.
13
down, backing down from what?
14
Q.
Well, that's you on that video, right?
15
A.
Yes.
Did that accurately reflect your views at that time,
10:02:36
I don't know what sequence, when I said I'm not backing
10:02:49
16
MR. YOUNG:
17
MS. IAFRATE:
18
10:02:24
The political aspect is that I'm not backing down.
8
9
581
I'd move for the admission of 193B.

Same objection.
The rule of inclusion,
Your Honor.
19
THE COURT:
20
MR. WALKER:
21
MR. COMO:
22
THE COURT:
23
(Exhibit No. 193B is admitted into evidence.)
24
BY MR. YOUNG:
25
Q.
Okay.
Same objection, same notation.
10:03:01
No objection.
193B is admitted.
Let's take a look at 193C, again from that same newscast.
10:03:10
(764 of 866)
INTERVIEWER:
582
Arpaio told me he hopes it sends a
message that this is his county.
SHERIFF ARPAIO:
I'm an elected constitutional
sheriff, and no one is going to take away my authority that I
have under the Constitution.
10:03:21
BY MR. YOUNG:
Q.
That's you, Sheriff, correct?
10
A.
Yes.
10:03:35
11
MR. YOUNG:
12
MS. IAFRATE:
Objection, rule of inclusion.
13
MR. WALKER:
Same objection, same notation.
14
BY MR. YOUNG:
15
Q.
I move to admit 193C.
Now, when you said that no one would -Mr. Young.
10:03:46
16
THE COURT:
193C is admitted.
17
(Exhibit No. 193C is admitted into evidence.)
18
MR. YOUNG:
Again, apologies
19
for jumping the gun.
20
BY MR. YOUNG:
21
Q.
22
authority, you were including anyone who might try to take away
23
your authority, correct?
24
A.
No.
25
Q.
I'm sorry, your answer?
10:03:58
Sheriff, when you said no one would take away your
10:04:09
(765 of 866)
Arpaio - Redirect, Melendres v. Arpaio, 4/23/15
A.
Can you repeat that?
Q.
When you -- well, strike that.
You told a big audience at a Barnes & Noble that you
wrote your book, the book that we've been talking about, the
same way that you testify in court, is that right?
MS. IAFRATE:
11:29:24
Your Honor, I'm going to object, beyond
the scope of cross.
THE COURT:
I'm going to sustain the objection.
MR. YOUNG:
All right.
10
Sheriff, thank you very much for your time.
11
12
THE COURT:
13
Sheriff, as you know, now is the time when I have
11:29:37
Thank you.
14
questions, that I ask them, and that will give Mr. Young the
15
opportunity to ask questions and give all the others
16
opportunity to ask questions based on my questions.
17
624
11:29:49
Normally, I try to ask questions that are only based
18
on what other attorneys have asked, but I do feel some
19
responsibility to make sure that the authority of this Court is
20
upheld, and so I have a few questions that weren't asked by the
21
other parties and I intend to ask them to you.
22
THE WITNESS:
23
THE COURT:
11:30:04
Thank you.
Do you want to pull that microphone up,
24
and can you hear me all right?
25
THE WITNESS:
Yes, sir.
11:30:18
(766 of 866)
Arpaio - Exam by Court, Melendres v. Arpaio, 4/23/15
625
EXAMINATION
BY THE COURT:
Q.
respect for the federal court and for judges.
was intended to be included among that group when you said it?
A.
Yes, sir.
Q.
I want you to know that while we have disagreements, and I
think some sharp ones in the past, I respect you in your
position as the sheriff of Maricopa County, and recognize that
I do appreciate that you have indicated that you have

I assume that I
10
you have been elected by the people of this county and I want
11
to afford you that same respect.
12
11:30:41
So I'm going to have some questions, some of them may
13
be difficult to answer, and I'm going to certainly let your
14
attorneys participate if they have concerns, but I'm going to
15
try to ask you my questions with respect, and I hope you'll
16
afford me the same in response.
17
A.
Yes, sir.
18
Q.
Now, we began by discussing -- or you began your
19
testimony -- I can't even remember whether it was this morning
20
or last night -- by discussing the scope of the matters that
21
you had -- in which you admit that you're in civil contempt.
22
And there were actually three matters that I specified in my
23
order to show cause.
24
25
11:30:26
Do you remember those?

were?
11:31:01
11:31:15
Do you remember what they
Three separate matters that related to civil contempt.
11:31:30
(767 of 866)
626
And the first was the violation of my preliminary injunction.
A.
Yes.
Q.
And do you admit that you're in civil contempt of that
order?
A.
Yes.
Q.
And the second was I discussed all of the documents,
videos, other things, that were requested prior to the
underlying trial of this matter that were not -- that were
apparently not provided by the MCSO.
11:31:44
And in that one I said
10
that it was in contempt of court rules, and that in addition to
11
the contempt authority, it also -- the Court had power to make
12
remedies based on its own inherent authority and for the
13
violation of court rules.
14
So I'm going to ask the first one, first question:
Do
15
you admit that you are in contempt for your failure to provide
16
requested materials prior to the underlying trial of this
17
matter?
18
MS. IAFRATE:
11:32:04
11:32:23
Your Honor, may I object just as to the
19
way that the question is worded?
20
contempt?
Could we include civil

11:32:40
21
THE COURT:
Surely.
22
MS. IAFRATE:
Thank you.
23
BY THE COURT:
24
Q.
I'll amend that to include civil contempt.
25
A.
Your Honor, I run this organization.
I'm really not
11:32:47
(768 of 866)
627
involved in that situation, but I'm still in charge of this
organization, so I take responsibility.
Q.
contempt for the failure to provide the requested documents and
other materials prior to trial?
A.
organization and take responsibility.
Q.
contempt?
And does that mean that you admit that you're in civil
11:33:05
On the -- on what I said, I am in charge of this
Does that mean yes, that you admit that you are in civil
10
A.
Yes.
11
Q.
All right.
12
authority, and are you conceding that, to create remedies for
13
that violation, even to the extent that contempt is not an
14
issue, but your violation of the court rules?
11:33:22
And do you recognize that I also have inherent
15
That's a poor question.
16
Do you also admit that you are in violation of court
17
rules that would have required you to produce those documents
18
and those materials prior to trial?
19
A.
Yes, because I'm responsible for the organization.
20
Q.
Okay.
21
authority to make remedies for that violation?
22
A.
Yes, sir.
23
Q.
Let me just ask a few questions about this.
24
to ask a lot of questions about things that you're going to
25
admit to, but I have a few questions both about the preliminary
11:33:38
And do you acknowledge that I have that the
11:33:54
I don't want
11:34:08
(769 of 866)
628
injunction, just to clarify, and then I have just a few about
the documents and other materials that were requested.
I will tell you that in -- there's been a lot of paper
in this matter.
It's gone on for years.
In some of the recent
paper that's gone across my desk in discovery disputes I have
seen responses to interrogatories served, I think, by
Chief Sands, but it might have been by the plaintiffs, in which
Mr. Casey provided his time records, and indicated that he
spoke with you, I think about -- he specified about this
10
preliminary injunction order, on December 26th, 2011, so that
11
must have been before you left town.
12
11:34:24
11:34:47
Do you have any recollection discussing the
13
preliminary injunction order with Mr. Casey on December 26,
14
2011?
15
A.
16
morning heading to Iowa.
17
Q.
18
had any communication with him on that date?
19
A.
I don't recall.
20
Q.
All right.
21
does it strike you that it's a pretty big deal to not comply
22
with my preliminary injunction for 18 months?
23
A.
Yes, sir.
24
Q.
And if you delegated this to somebody, have you taken any
25
actions to hold anyone responsible?
Your Honor, I was on an airplane, I think 10:00 in the
11:35:01
I don't recall speaking with him.
You don't recall a call from him, you just don't think you
Now, with respect to the failure to -- I mean,
11:35:22
11:35:46
(770 of 866)
629
A.
Not -- no, no, sir.
Q.
With respect to the documents, do you have any idea if your
department has any policies whatsoever about how to go about
retrieving materials that have been requested in litigation?
A.
lot of work, a lot of personnel, trying to abide by your order
to get those documents.
Q.
policies in your office that guide employees about how they
I don't know the mechanics, but I do know there's been a
I have a different question, and that is:
Do you have any
10
should go about responding to requests for materials and
11
documents in litigation?
12
A.
13
we're going to be doing it and do a lot of corrections.
14
Q.
15
this matter, at least, that there were a whole lot of documents
16
that were turned over that would have been responsive, and it
17
appears to me that there's been other testimony that other
18
recordings existed that may -- recordings and other documents
19
existed that may have been destroyed.
20
that's a pretty serious problem, don't you?
21
A.
Yes, sir.
22
Q.
And you do, as the sheriff's office, have a responsibility
23
to the public to let them know what your operations are.
24
A.
Yes.
25
Q.
And if in fact -- it's inevitable that any sheriff's going
I don't know.
11:36:12
11:36:33
I may not have, but we're still going to --
Now, you've heard testimony, I think from the paralegal in

11:36:52
And you recognize that

11:37:12
11:37:21
(771 of 866)
to get sued.
time.
but you get sued, and it's -- it's very important for your
office to be open and to respond in a responsible way to
litigation requests.
A.
Yes, sir.
Q.
Now, the third matter that I ordered up contempt on was
about the May 14th hearing.
in front of me, so did Deputy Chief Sheridan.
630
I have suits in front of me that name you all the
And that doesn't necessarily mean you're responsible,
You recognize that?
11:37:40
And in that hearing you did appear

He did most of
10
the talking, but to his credit, to the credit of your
11
department, you brought forward some very disturbing facts that
12
you became aware of as a result Deputy Armendariz -- a search
13
of Deputy Armendariz's home after his decease.
14
11:38:04
Do you remember that?
15
A.
Yes.
16
Q.
And you remember that during that hearing you actually
17
played for me a number of stops that were videotaped by Deputy
18
Armendariz that I think you car -- and when I say "you," I
19
don't mean you personally, but in that hearing you
20
characterized for me as problematic stops.
21
11:38:21
11:38:34
Do you recall that?
22
A.
Did I personally, or --
23
Q.
Do you recall that happening here?
24
A.
I believe so, yes.
25
Q.
All right.
And do you recall that in one of those
11:38:45
(772 of 866)
problematic stops I asked if there were any supervisors that
appeared to have been present while Deputy Armendariz was
engaging in problematic behavior.
told that Lieutenant Sousa was present during one of those
stops?
A.
I don't recall, but --
Q.
That's all right.
8
9
631
And do you recall that I was
11:39:03
If you don't recall, you don't recall.
And do you remember then that I had a colloquy with

Chief Deputy Sheridan about how it would be much more desirable
10
to quietly collect videotapes and audiotapes, because if
11
officers were engaged in misbehavior, they weren't going to
12
voluntarily turn them over if they knew that they had
13
videotapes that showed them in misbehavior.
14
11:39:18
15
A.
Your Honor, I believe what happened, but I'm not sure --
16
Q.
If you don't remember --
17
A.
-- if I was there.
18
Q.
Oh, you were there.
19
A.
Did I see the videos and so on?
20
Q.
We've got a transcript.
21
A.
Yeah.
22
Q.
I'm just asking if you remember, and if you don't remember,
23
you don't have to --
24
A.
But I believe what you're saying.
25
Q.
Then I called you up.
11:39:33
11:39:44
11:39:51
(773 of 866)
632
A.
Yes.
Q.
And you reviewed some of that with Mr. Young, but a part
you didn't review is you indicate that you delegate all that to
Chief Deputy Sheridan.
but I think you did say him directly.
And you may not have said him directly,

11:40:05
Do you remember doing that?
A.
Yes.
Q.
And do you remember that my response to you was that I
understood that somebody in your position had to delegate
10
things to people they could trust, but that didn't change the
11
fact that you were the party to this lawsuit and that you were
12
responsible to see that your department engaged in responsible
13
behavior and I would hold you responsible.
14
11:40:15
15
A.
Yes.
16
Q.
And I expected you to set the proper tone and you told me
17
you would.
18
11:40:30
19
A.
Yes.
20
Q.
Would you agree that the tone that you set in responding to
21
the Court's orders is very important?
22
A.
Yes.
23
Q.
And you would agree, without me having to review it with
24
you, that I was very disappointed, up until that point, in some
25
of the statements that you, Chief Deputy Sheridan,
11:40:37
11:40:53
(774 of 866)
Chief Trombi, and others, had said that were just flat
misstatements of my court rulings.
633
Do you recall that?
A.
Yes.
Q.
And so I'm very interested in tone.
tone is very important going forward?
A.
Yes.
Q.
Now, in the May 14 hearing do you recall what Chief Deputy
Sheridan -- or in the May 14 meeting that you had after --
Would you agree that
10
immediately after this hearing, do you recall what Chief Deputy
11
Sheridan said to Chief Trombi?
12
A.
13
your order and --
14
Q.
15
to review this with the monitor?
16
A.
No.
17
Q.
Did you ever discipline Chief Deputy Sheridan or
18
Chief Trombi for violating my orders?
19
A.
No, sir.
20
Q.
Do you admit that you are in contempt for what happened on
21
May 14th in violating my orders?
22
A.
On the Trombi situation?
23
Q.
Yes.
24
MCSO informing them, when I had asked you and instructed you to
25
quietly correct them after having formulated a plan with the
11:41:06
11:41:27
I believe he wanted to do something right away pursuant to
And you didn't ever stop him and say:
Wait.
We're going
11:41:49
11:41:56
Civil contempt.
In other words, sending out the e-mail to all of the
11:42:19
(775 of 866)
634
monitor.
Do you agree that you're in contempt, civil contempt,
for that?
A.
they made a decision how to retrieve the evidence.
Q.
Let me tell you why I'm asking.
A.
Yeah.
Q.
I'm going to have to make legal rulings, and I've ordered
up several matters for contempt, and one of them is that you
I have all the information on it.
I was in the room and
10
and the chief deputies, Trombi, are in civil -- the allegation
11
is that you're in civil contempt for failing to abide my -- or
12
abide my instructions that I gave you that morning.
13
11:42:36
11:42:51
And so I just want to know, do you acknowledge that
14
you are in civil contempt for that order, or am I going to need
15
to make a determination regarding it?
16
A.
If you're saying I did not speak up when they --
17
Q.
Well --
18
A.
-- did the procedure to order the evidence?
19
Q.
I'm just saying for what you did and failed to do in the
20
meeting that violated my instructions, do you admit you're in
21
contempt or not?
22
A.
Well, if I do admit, it wasn't intentional.
23
Q.
All right.
24
and civil contempt does not mean that you had an intent to
25
violate my order, but it does mean that you didn't take
11:43:12
11:43:28
I just want to understand.
Again, I'm only talking about civil contempt,
11:43:50
(776 of 866)
635
reasonable steps to enforce my order.
Do you admit under that guideline that you are in
contempt for failing to -- to abide by the May 14th hearing
instructions I gave you?
A.
I would have to say yes.
Q.
All right.
I'm evaluating what kind of relief -- and I am going to give
some relief, clearly, to the plaintiff class, and it may be
quite extensive or it may be limited.
11:44:06
Now, it's important for me to understand when
And it's something that
10
I've got to consider in conjunction with the parties, and I
11
think it's going to require some careful thought.
12
11:44:25
But to me it is very important whether that contempt
13
that you and perhaps Chief Deputy Sheridan -- civil contempt --
14
committed on May 14 was an isolated incident or was a pattern
15
that reflects a hesitancy on the sheriff's office, on the
16
sheriff's department and on your part, or even a desire to
17
subvert the orders of this Court, so I'm going to ask you some
18
more questions about that.
19
Did you -- I may have already asked you.
11:44:48
Did you
20
impose any discipline on Chief Deputy Sheridan for violating my
21
order and giving that direction to Chief Deputy Trombi?
22
A.
No, sir.
23
Q.
Has there been any investigation regarding that?
24
there have been some investigations that my monitor and I have
25
insisted on, and there were a few investigations that were
11:45:11
I know
11:45:24
(777 of 866)
636
limited that you began.
the orders given by Chief Deputy Sheridan to Chief Trombi?
your knowledge.
A.
investigation --
Q.
But you don't know?
A.
I don't know the results.
Q.
You did understand that one of my concerns when you came in
here on the May 2014 hearing, and I -- and I disclosed -- I
I don't know.
But was there any investigation about

To
I think there's been some internal affair

11:45:42
10
discussed this, I think it was Chief Deputy Sheridan, but you
11
were present, that I thought it might be wiser for you to turn
12
over the investigation of all the matters that related -- or
13
that arose from the Armendariz findings to another agency, so
14
you wouldn't have any conflicts.
15
11:46:07
16
A.
Yes.
17
Q.
And do you remember that Chief Deputy Sheridan insisted --
18
and I don't mean to be too strong about that, but I couldn't
19
direct you to do that; I don't have any authority to tell you
20
you have to give that to another agency.
21
might be wise.
22
investigation, and when he did, I said, well, my monitor's
23
going to be looking over your shoulder, which is why the
24
cooperation was required.
25
11:45:52
But I told him it
11:46:20
He asserted the privilege to conduct that
11:46:34
(778 of 866)
637
A.
Yeah.
Q.
Now, you understood when you were doing that investigation,
perhaps you didn't understand at the moment, but you understood
that that investigation might go very much more deep than just
what was in Deputy Armendariz's garage, right?
A.
Yes.
Q.
And you understood that to the extent you were doing the
investigation, your Professional Standards Bureau would be
the -- is it a division?
11:46:46
Within the MCSO?
10
A.
Yes.
11
Q.
It would be the division that was in charge of that
12
investigation.
13
A.
Yes.
14
Q.
And that in order to conduct an adequate and thorough
15
investigation it was going to require a very adequate and
16
professional investigation done by the Professional Standards
17
Bureau.
18
A.
Yes.
19
Q.
Shortly after you assumed the responsibility to do that
20
investigation you replaced the captain in charge of the
21
Professional Standards Bureau.
22
11:47:06
23
A.
I believe so.
24
Q.
It had been Captain Holmes, right?
25
A.
Yes.
11:47:13
11:47:34
11:47:47
(779 of 866)
Q.
And you replaced Captain Holmes with Captain Bailey.
A.
The chief deputy did, yes.
Q.
Did the chief deputy do that on his own?
A.
Well, I'm sure that he made the selection.
it by me.
Q.
running it by you and getting your approval?
That's a pretty big deal, isn't it?
638
He may have ran

11:48:04
Would he normally change the captains in a division without
Especially when
you know you're under my supervision and it pertains to matters
10
that are extremely serious.
11
A.
Yes.
12
Q.
Did he run it by you?
13
A.
I believe he mentioned the change.
14
Q.
And did you approve it?
15
A.
Directly or indirectly, I did, yes.
16
Q.
All right.
17
clear idea, you approved it at some level, but it was Chief
18
Deputy Sheridan that made that decision?
19
A.
Yes.
20
Q.
Do you know Captain Bailey?
21
A.
He worked in the agency for many years.
22
official, not personally.
23
Q.
Do you know what his previous assignment was?
24
A.
I believe he was involved in the drug enforcement issues.
25
Q.
What if I told you that he was the commander of the Special
11:48:19
11:48:25
But was the -- then I guess I want to get a
11:48:39
I know him as
11:48:58
(780 of 866)
639
Investigations Division?
Would that -- would you say that that
couldn't be correct?
A.
Yes, that's correct -- yeah.
Q.
And when I say commander of SID, if I say SID we're talking
about special investigation --
A.
Yes, sir.
Q.
If I say commander of SID -- I had this question with
Chief Trombi -- that's the captain of SID, right?
A.
Yes.
10
Q.
Is that the bureau chief, or is the bureau chief higher up?
11
A.
The bureau chief or chief, deputy chief, is higher up.
12
Q.
All right.
13
would the commander of SID report to?
14
A.
Probably the deputy chief.
15
Q.
And that would be Chief Sheridan?
16
A.
No, he's the chief deputy.
17
Q.
And who would have been the deputy chief at that time?
18
A.
Could have been Dave Trombi.
19
Q.
All right.
20
charge of?
21
A.
They do the drugs and other types of investigations.
22
Q.
They were over the Human Smuggling Unit at the time, right?
23
A.
I believe so.
24
Q.
So Captain Bailey had been over the Human Smuggling Unit,
25
and you knew at the time -- well, maybe you didn't.
11:49:15
Who would be the bureau chief over SID?
11:49:25
Who
11:49:44
It would be the deputy chief.
And what is the Special Investigations unit in

11:49:59
11:50:15
(781 of 866)
640
Captain Bailey, for a time, had been over the Human
Smuggling Unit, because he was the head of the SID Special
Investigations Division which is over the Human Smuggling Unit,
correct?
A.
Yes.
Q.
All right.
focus of the investigation in terms of, you may remember issues
like lots of ID's and there were lots of concerns about
deputies taking property that may or may not belong to them,
10
I don't know the time span.
11:50:29
But the Human Smuggling Unit was part of the
just keeping it and not reporting it in property.
11
11:50:48
12
A.
After the fact, yes.
13
Q.
Do you remember that after I got word that you'd appointed
14
Captain Bailey, I expressed concern about his conflict of
15
interest.
16
A.
I don't remember that, but it could have happened.
17
Q.
Nobody ever told you that?
18
here at the hearing, but I did express concern about his
19
conflict of interest.
20
11:51:01
I'm not sure whether you were
You don't recall that anybody ever raised that to you?
21
A.
Not really.
22
Q.
Human Smuggling Unit was pretty important to you.
23
heard that.
24
A.
Yes.
25
Q.
So you'd have -- you'd want to have a lot of confidence in
11:51:12
We've
Is that true?
11:51:23
(782 of 866)
641
the director that you appointed to be over the -- or the
captain that you put in charge of SID in part because that was
over the Human Smuggling Unit?
A.
Yes.
Q.
And so when you transferred him to PSB, that's because you
have a lot of personal confidence in him, I suppose?
A.
And also my chief deputy.
Q.
How long was Bailey with SID, do you remember?
A.
No.
10
Q.
Do you know Sergeant Tennyson?
11
A.
Name is familiar.
12
Q.
Let me ask, does SID -- we've had some reference to some of
13
the more atypical investigations you've done as sheriff, like
14
you investigated the -- some of the county supervisors,
15
correct?
16
A.
Yes.
17
Q.
And you investigated some sitting judges in the Maricopa
18
County Superior Court?
19
A.
The county attorney and my office together worked that.
20
Q.
All right.
21
investigation?
22
A.
Yes.
23
Q.
And that may have been called the anticorruption unit at
24
the time, is that right?
25
A.
Yes.
11:51:38
11:51:51
11:52:21
And your office participated in that
11:52:33
11:52:45
(783 of 866)
642
Q.
Was that under the SID, Special Investigations Division?
A.
I'm not sure.
Q.
Does the Special Investigations Division do investigations
with confidential informants?
confidential informants?
A.
Yes.
Q.
And does the captain of SID have to approve investigations
involving confidential informants in terms of payments to them?
A.
Are they -- do they handle

11:53:00
Your Honor, I don't know how far down it goes for that
10
authority, whether it's a lieutenant or the captain or deputy
11
chief.
12
Q.
13
are made to confidential informants?
14
A.
Yes.
15
Q.
Are there any exceptions to that policy?
16
A.
I'm not sure.
17
Q.
Well, do you remember that right at the time -- and it was,
18
as I recollect, in June of 2014 -- that you named
19
Captain Bailey to become captain over the Professional
20
Standards Bureau instead of the Special Investigations
21
Division, that there was a newspaper article, maybe a blog,
22
that was published by somebody named Stephen Lemons?
23
A.
I know who he is.
24
Q.
Do you usually read the articles that he writes about you?
25
A.
Once in a while, yes.
Okay.
11:53:17
But somebody in the SID has to approve payments that
11:53:30
11:53:50
11:54:08
(784 of 866)
643
Q.
Do you remember him writing about investigations that he
had sources were telling him your office was doing out of
Seattle involving confidential informants?
A.
He may -- I may remember that, yes.
Q.
Let me just give you -- I've copied the article.
give it to you and see if it helps to refresh your recollection
that you've read it.
Let me
Do you want to distribute that?
(Off-the-record discussion between the Court and the
10
clerk.)
11:54:57
11
THE COURT:
12
THE WITNESS:
Hand it to the attorneys.

It's a long article.
13
BY THE COURT:
14
Q.
15
read it, you can do that.
16
recollection, now having me give it to you, if you ever read
17
it.
18
11:54:26
It is a long article, and if you need to take the time to

But I'm just asking if you have any
11:55:44
I will tell you that in the article he says he talked
19
to you about some of the materials in the article, and that's
20
kind of on the last page, if that will help you.
21
11:56:01
(Pause in proceedings.)
22
BY THE COURT:
23
Q.
Do you remember reading this article?
24
A.
I believe I read it.
25
Q.
And I just want to ask you some questions about the article
11:56:53
(785 of 866)
644
and some of the things that it states.
I recognize, and I believe Mr. Lemons does in the
article, too, that he can't personally vouch for everything
that the article says, it's just what he's had some sources
tell him.
11:57:10
So I don't mean to suggest one way or another that the
article is accurate.
things that it says so I understand them.
you'll tell me the truth, and you understand you're under oath,
10
I just want to ask about some of the

And I trust that
correct?
11
11:57:24
Did you detail some of your personnel to conduct
12
investigations that resulted in their frequent trips and stays
13
in the Washington state area beginning in 2013 or 2014?
14
A.
15
there, yes.
16
Q.
And who were those investigators?
17
A.
I think it was Zullo and Brian Mackiewicz.
18
Q.
And Mackiewicz is --
19
A.
A detective.
20
Q.
Is he in your -- is he assigned to you personally, your
21
risk detail?
22
A.
Well, we had a lot of threats on me and --
23
Q.
I understand that.
24
protect you and assess risks that come against you?
25
A.
We had a couple investigations -- investigators go up
Yes.
11:57:40
11:57:52
Is that generally his assignment, to
11:58:09
(786 of 866)
645
Q.
And so you were aware when he was gone to the Seattle area?
A.
Yes.
Q.
And what about -- I think there's a Mr. Anglin mentioned in
the article.
Seattle as well?
A.
I think for a short period of time he did.
Q.
And is zoo -- did you say Zulu?
member?
A.
Yes.
10
Q.
And did you pay funds from Maricopa County for Mr. Zullo to
11
go to the Washington area?
12
A.
Yes.
13
Q.
And then I assume you paid Anglin and Mackiewicz their
14
travel costs?
15
A.
We don't pay for Zullo, but --
16
Q.
But you paid Mackiewicz and Anglin.
17
A.
Yes.
18
Q.
And did you also hire a consultant in the Washington state
19
area to help you with this investigation or investigations that
20
Mackiewicz and Zullo were working with?
21
A.
Not that I know of.
22
Q.
Did you have a confidential informant in the Washington
23
area that they were working with?
24
A.
Yes.
25
Q.
And does the article accurately identify who that
Was he also an officer that was assigned to go to

11:58:23
Zullo.
Is he a posse
11:58:33
11:58:47
11:59:02
May have.
11:59:12
(787 of 866)
646
confidential informant was?
It says the name is Dennis Montgomery.
Is that the
confidential informant?
A.
Yes.
Q.
And so when Mr. Montgomery was a confidential informant, he
was some sort of a computer consultant?
A.
Yes.
Q.
And as a confidential informant, his fees would have to be
paid, or approved, if in fact it was before the transfer of
10
Captain Bailey, his fees would have had to have been approved
11
by Captain Bailey, or any payments to him would have had to
12
have been approved by Captain Bailey?
13
A.
I'm not sure at the time period, Your Honor.
14
Q.
Now, the article says that you were personally conducting
15
these investigations and personally aware of them.
16
11:59:38
11:59:57
12:00:14
Were you?
17
A.
Well, on a certain issue I was.
18
Q.
And what issue was that?
19
A.
It was the president's birth certificate.
20
Q.
Okay.
21
into the president's birth certificate.
22
ever tell you -- or, well, did you ever use Mr. Montgomery to
23
investigate anything about the Department of Justice?
24
A.
25
certificate.
So you were -- Mr. Montgomery was doing research
12:00:25
Did Mr. Montgomery
I don't believe that Montgomery was involved in the birth

It was other violations that he was looking into.
12:00:46
(788 of 866)
647
Q.
And what were those?
A.
Had to do with computer tampering and also bank fraud, that
type of thing.
Q.
Montgomery was actually doing was investigating me.
You see that that's what the article says?
Did you ever -- you see that the article says that what
A.
It's not true.
Q.
All right.
by anyone?
12:01:12
Are you aware that I've ever been investigated
10
A.
You investigated?
11
Q.
Yes.
12
A.
No.
13
Q.
Any of my activities?
14
A.
No.
15
Q.
Any of my family members?
16
A.
That have been investigated?
17
Q.
Yes.
18
A.
Not by our office.
19
Q.
Are you aware of anybody who's investigated any of my
20
family members by any -- any office.
21
A.
22
office.
23
Q.
Well, whose office was it?
24
A.
It was an outside investigator not hired by us.
25
Q.
Who hired the outside investigator?
12:01:24
No.
12:01:31
Or anybody.
12:01:52
I believe there was an issue, but once again, it wasn't my
12:02:12
(789 of 866)
648
A.
Could have been counsel.
Q.
"Counsel" meaning your counsel?
A.
Yes.
Q.
And would that have been Mr. Casey or Ms. Iafrate?
A.
I believe it would have been Mr. Casey.
Q.
And who did he hire?
A.
It was the counsel.
Q.
I'm sorry?
A.
Mr. Casey.
10
Q.
Mr. Casey.
11
A.
Pardon?
12
Q.
Who did Mr. Casey hire?
13
my family, or members of my family.
14
A.
We weren't investigating you, Your Honor.
15
Q.
Well, who were you investigating?
16
A.
We were investigating some comments that came to our
17
attention.
18
Q.
Okay.
19
A.
Through e-mail.
20
Q.
And do you know who the author of the e-mail was?
21
A.
I don't have the name right now.
22
Q.
Okay.
23
well, let me get -- let me get this clear.
24
that Mr. Mackiewicz, Mr. Anglin, Mr. Zullo, never were involved
25
in any investigation of the Department of Justice or of me, is
12:02:30
Who did Mr. Casey hire?
12:02:42
To investigate me or a member of
12:02:56
And how did they come to your attention?
12:03:10
Let me ask, in his article Mr. Lemons indicates -Your testimony is
12:03:33
(790 of 866)
649
that correct?
A.
Not -- no, not of you.
Q.
Well, were they involved in an investigation of the
Department of Justice?
A.
I'm not sure.
Q.
Were they trying to determine whether the Department of
Justice had contacted me in any way?
A.
I'm not sure about that.
Q.
You're not sure about that?
10
A.
No.
11
Q.
And would Mr. Montgomery have been involved in assisting
12
them to determine whether the Department of Justice had
13
contacted me in any way?
14
A.
15
being infiltrated or wiretaps and that type of thing.
16
what the informer said that right now we don't have much
17
confidence in.
18
Q.
Well, who was the informer and what did the informer say?
19
A.
We're speaking about Montgomery.
20
Q.
All right.
21
infiltrated?
22
A.
23
phones were tapped, e-mails, that type of thing.
24
Q.
By the Department of Justice?
25
A.
By someone.
No.
12:03:55
12:04:09
I believe there was information about many judges

That's
Montgomery said that judges had been
12:04:29
12:04:50
That many judges -- if I recall, that they're wire -- their
12:05:08
(791 of 866)
Q.
at the MCSO that the DOJ was inappropriately --
650
And so Mr. Montgomery proposed to -- who did he propose to
I assume it was of interest to you if they were
wiretapping my phone, among others?
A.
Yes.
Q.
And yours, too.
And mine, too.
12:05:33
And so were you conducting this investigation?
A.
No.
Q.
Who was in your department?
10
A.
This is Zullo and I think Mackiewicz.
11
Q.
What rank does Mackiewicz have?
12
A.
He's a detective.
13
Q.
Who did he report to about this investigation?
14
A.
I think he and Zullo worked together.
15
Q.
And who did they report to?
16
A.
And Jerry Sheridan.
17
Q.
They reported to Deputy Chief Sheridan?
18
A.
At one time, but let me just say that the information
19
we're -- we've been getting is the informer's not very viable.
20
Q.
21
that you became aware after a considerable amount of time that
22
the reporter was giving you junk.
23
A.
Yes.
24
Q.
Or the informer was giving you junk?
25
A.
Yes.
12:05:40
12:05:52
Well, I understand that, I think the article itself says,
12:06:11
Is that fair to say?
12:06:24
(792 of 866)
Q.
How much money did you spend on the informant?
A.
I don't recall.
Q.
How much money did you spend on the investigation?
A.
I don't have the figures.
Q.
Do you -- does the -- I guess I want to straighten some
things out to make sure that I understand them.
651
12:06:35
It's typical that confidential informants get control
numbers?
A.
I believe so.
10
Q.
And that they are maintained in a confidential informant
11
log and monitored by the Special Investigations Division
12
commander or his designee?
13
A.
I believe so.
14
Q.
And that for the time that this matter was going to be
15
investigated, or was being investigated, that would have been
16
Captain Bailey, correct?
17
A.
18
knew about it.
19
Q.
20
investigation began in October of 2013.
21
article, says that as of January 2015 he kept making document
22
requests to the MCSO, and the MCSO continued to say this is an
23
ongoing investigation, we're not going to give you anything.
24
So is this investigation still ongoing, or have you
25
determined pretty much that the informant was unreliable and
12:06:56
12:07:14
I'm still not sure on the time -- time frame, or whether he
Well, I will tell you that the article suggests that the
And Mr. Lemons, in the
12:07:29
12:07:51
(793 of 866)
652
it's not worth proceeding?
A.
Well, it's almost finished.
Q.
I'm sorry?
A.
It's almost finished on -- especially on his reliability.
Q.
All right.
A.
I'm not sure.
Q.
Well, I want to understand exactly what it is that
Mr. Mont -- your understanding of what it is that
Mr. Montgomery told you DOJ was doing that you were
Are you investigating him now?
10
investigating.
11
A.
12
penetrating in the e-mails of our local attorneys and others,
13
judges, that type of thing, which we can't prove.
14
Q.
All right.
15
A.
I think you were one of the judges.
16
Q.
And were you concerned then that that might be affecting my
17
judgment or neutrality in this lawsuit?
18
A.
No.
19
Q.
Who else was named by Mr. Montgomery as being targets of
20
this DOJ investigation?
21
A.
22
for us on the Department of Justice lawsuit.
23
Q.
Who else?
24
A.
You mean other judges around -- I don't remember.
25
Q.
Anybody that Mr. Montgomery said that -- that the DOJ was
12:08:06
12:08:23
Once again, he seemed to indicate that someone was
And was I one of those judges?

12:08:50
12:09:08
I believe the -- our local law firm, the attorneys working
12:09:34
(794 of 866)
653
bugging their phones, or otherwise intruding into their private
communications.
A.
Well, I know I was.
Q.
You were one.
A.
Jerry Sheridan, I believe.
officials.
Q.
And I was?
A.
You -- yes.
Q.
Did you keep any of the materials that Mr. Montgomery has
Your law firm was one.

And there's other local
10
provided you?
11
A.
I don't have them.
12
Q.
Who does?
13
A.
I believe Zullo does.
14
Q.
And is he subject to your control --
15
A.
Yes.
16
Q.
-- as a member of your posse?
17
A.
Yes.
18
Q.
I'm going to direct you that you tell Mr. Zullo that he
19
keep all those documents.
20
A.
He what?
21
Q.
He keep and maintain all of those documents.
22
A.
Yes.
23
Q.
I'm going to direct you that nothing pertaining to any of
24
this investigation be destroyed, including confidential
25
informant numbers.
12:09:53
12:10:03
12:10:13
All right?
12:10:22
12:10:32
(795 of 866)
654
Do you understand that direction?
A.
Yes.
Q.
Who else was aware of these investigations within the MCSO?
A.
I'm not sure.
to keep it quiet.
Q.
involved me and my phone or any contact or tapping by the
Department of Justice, you indicated that there were
investigations made into members of my family.
Because of the sensitivity, we were trying

12:10:51
Now, I think in addition to the investigation that may have
10
Did you indicate that?
11
A.
That had nothing to do with Montgomery.
12
Q.
What did it have to do with?
13
A.
I believe there was a, as I say, e-mail that came to me.
14
Q.
And do you still have that e-mail?
15
A.
We may have it, yes.
16
Q.
I'm going to direct you to keep that e-mail.
17
12:11:08
12:11:28
What did the e-mail say, to the best of your
18
recollection?
19
A.
20
everything to make sure I'm not elected.
21
Q.
Do you recall who the author of that e-mail was?
22
A.
I believe it was someone named Grissom.
23
Q.
Grissom?
24
A.
Grissom.
25
Q.
Okay.
I think it mentioned that Judge Snow wanted to do
And how did this person purport to know that?
12:11:43
12:12:02
(796 of 866)
655
A.
that made those comments.
Q.
According to whatever Mr. Grissom said.
A.
There was other witnesses, yes.
Q.
Okay.
counsel hired a private investigator, and what did the
investigator do?
A.
He investigated it.
Q.
And what was the result of the investigation?
10
A.
Results were that he confirmed that your wife was in that
11
restaurant and con -- I guess talked to the witnesses, three or
12
four, that confirm that remark was made.
13
Q.
14
that investigation?
15
A.
We should have.
16
Q.
Okay.
17
A.
Yes.
18
Q.
All right.
19
The person met your wife in a restaurant, and she's the one
And so you turned that over to your counsel and
All right.
12:12:28
12:12:37
And do you have any materials pertaining to
12:12:59
Will you save those as well?
Thank you.
Who has told you that the information that
20
Mr. Montgomery provide -- or how is it that you've come to
21
conclude that the information you were getting from
22
Mr. Montgomery is not reliable?
23
A.
24
he may not be reliable.
25
Q.
12:13:08
I think the investigators, as time progressed, figured that
Did the MCSO also purchase computer equipment for
12:13:24
(797 of 866)
Mr. Montgomery or for the investigation?
A.
That's possible.
Q.
Well, I'm going to direct you, to the extent that any of
this material is in your control, that it be maintained.
656
Do you understand that direction?
12:13:45
A.
Yes.
Q.
Would Captain Bailey have been involved in any of these
investigations?
A.
I don't believe so.
10
Q.
But if he was the commander of Special Investigations
11
Division, he would have been aware of the investigations?
12
A.
I'm not sure.
13
Q.
The commander of the Special Investigations Division would
14
have to sign off on payments made to confidential informants?
15
A.
Yes, normally.
16
Q.
And would they have to sign off on payments made for
17
investigations in which confidential informants were involved?
18
A.
19
would do that.
20
Q.
21
Division?
22
A.
23
name, but -- I know that Trombi is the top guy in charge of all
24
these elements.
25
Q.
12:13:56
12:14:14
I'm not sure if he would do it, or a lieutenant, or who
Who is currently the director of the Special Investigations
12:14:34
Or the commander or the captain.
I can't re -- I can't remember his name.
It's an Italian
Will you make sure that everybody in your division that has
12:15:09
(798 of 866)
anything to do with any of this maintains all these records?
A.
657
Yes.
THE COURT:
I think, Sheriff, for the time being,
those are my questions.
lunch, so could you be back in an hour?
lunch break.
THE WITNESS:
THE COURT:
THE WITNESS:
It's probably time for us to break for

We'll have an hour
12:16:07
Yes, sir.
I appreciate your answers.

Thank you.
10
(Lunch recess taken.)
11
THE CLERK:
All rise.
12
THE COURT:
Thank you.
13
You ready to proceed?
14
MS. WANG:
15
THE COURT:
16
Oh, I'm sorry.
17
MS. IAFRATE:
18
THE COURT:
12:16:16
Court is now in session.

Please be seated.
Yes, Your Honor.

Sheriff, I just wanted to --
13:23:01
Yes, Your Honor.
I just wanted to reiterate some of the
19
things I said during my questioning of you to make sure
20
everybody was clear.
21
like Mr. Zullo -- Mr. Zullo's the head of one of your posses.
I was told over lunch that posse funds
22
THE WITNESS:
23
THE COURT:
24
THE WITNESS:
25
THE COURT:
13:23:11
Yes.
Is it the Cold Case posse?

Yes.
I was told that you also have various
13:23:23
(799 of 866)
sources of funding within the MCSO, like the Cold Case posse
has its own funds.
658
Is that possible?
THE WITNESS:
THE COURT:
No.
Okay.
Do you know what the possible
funding sources were for the investigations that were related
to the Seattle operation?
When I say "operation," I mean the one involving
Mr. Montgomery and the investigations with Brian Mackiewicz and
Mr. Anglin.
10
THE WITNESS:
I'm not sure if it was our RICO, which
11
is drugs seized -- I mean moneys seized from drug peddlers, or
12
our general funds.
13
THE COURT:
be involved that fund various like, for example, the Cold Case
15
posse?
13:24:14
16
THE WITNESS:
17
THE COURT:
18
THE WITNESS:
19
THE COURT:
They're independent 501(c) --
501(c)(3).
-- and they raise their own money.
All right.
And you don't have any control
over those funds?
13:24:24
21
THE WITNESS:
22
THE COURT:
No.
What about asset forfeiture funds, would
23
any asset forfeiture funds have been involved in funding this
24
operation?
25
13:24:00
Were there other possible funds that might
14
20
13:23:34
THE WITNESS:
I don't know where their funding came
13:24:35
(800 of 866)
659
from.
THE COURT:
Well, the point is this, and I think I
made it clear, but I just want to make sure that I've made it
clear, to the extent that you have any control over any funding
records, over any reports, over any communications, over any
overtime records, travel documentation, any e-mails of any and
all people involved in the threat assessment unit or anywhere
else, any communications from and to Montgomery, any computers
or phones, cell phones or other information that in any way is
10
relevant or related to this investigation, I want you to direct
11
your people to put a hold on it immediately and preserve it.
12
And that includes any documentation or numbers that would
13
relate to Mr. Montgomery's confidential status.
14
You understand that?
15
THE WITNESS:
16
Your Honor, are you referring to this
13:25:18
13:25:39
investigation with the monitors and --
17
THE COURT:
No, no.
I'm referring to the
18
investigation that Mr. Montgomery was undertaking with
19
Mr. Mackiewicz, Mr. Anglin, Mr. Zullo, anybody else from your
20
staff, anybody else from the MCSO, or anyone else from the
21
posse.
22
electronic data or anything else, or the financing, funding of
23
that operation, all phone records, e-mails, reports, I want it
24
all preserved.
25
13:24:45
13:26:00
I want all records that in any way relate to it, all
And I think I will send the monitor to begin taking
13:26:18
(801 of 866)
possession of those records and we'll do it confidentially,
imminently.
records lost, inadvertently or otherwise.
660
But I don't want in the interim any of those
You understand what I'm saying?
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:
Mr. Young?
10
MR. YOUNG:
No further questions, Your Honor.
11
THE COURT:
Ms. Iafrate?
12
MS. IAFRATE:
13
MR. WALKER:
14
nothing, Your Honor.
Yes.
13:26:32
And you'll so direct your people?

Yes.
All right.
Thank you, sir.
13:26:39
Nothing, Your Honor.

Subject to my earlier reservation,
15
MR. COMO:
I have no questions, Your Honor.
16
THE COURT:
17
Next witness.
18
MS. WANG:
19
THE CLERK:
20
and last name for the record.
You may step down, Sheriff.
13:26:47
Thank you.
Your Honor, plaintiffs call Joseph Sousa.

Can you please state and spell your first
21
THE WITNESS:
22
(Joseph Sousa was duly sworn as a witness.)
23
THE CLERK:
Can you please take our witness stand.
24
THE COURT:
Please, Ms. Wang.
25
MS. WANG:
13:27:18
Joseph Sousa, J-o-s-e-p-h, S-o-u-s-a.
13:28:03
(802 of 866)
1
2
3
4
5
6
7
10
11
12
13
14
15
16
17
18
DATED at Phoenix, Arizona, this 24th day of April,

2015.
19
20
21
22
23
24
25
s/Gary Moll
(803 of 866)
EXHIBIT 31
(804 of 866)
818
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Melendres, et al.,
Plaintiffs,
vs.
Defendants.
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CV 07-2513-PHX-GMS
Phoenix, Arizona
April 24, 2015
8:41 a.m.
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(Evidentiary Hearing Day 4, pages 818-1018)
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Court Reporter:
Gary Moll
(602) 322-7263

(805 of 866)
Sheridan - Direct, Melendres v. Arpaio, 4/24/15
908
A.
I did.
Q.
You criticized the U.S. District Court, correct?
A.
Unfortunately, I did.
Q.
And you criticized the U.S. Court of Appeals for the Ninth
Circuit, correct?
A.
Yes, ma'am.
Q.
All right.
19th, 2013, MCSO conducted a saturation patrol.
14:27:26
Now, a few months earlier, October 18th and
Do you recall that?
10
A.
I do.
11
Q.
You spoke at a briefing before that operation?
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A.
Yes.
13
Q.
And you got in trouble with the Court for some statements
14
you made during that, correct?
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A.
That would be an understatement, yes.
16
Q.
Okay.
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about what you said at that briefing, sir, and I will try to be
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as brief as I can.
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14:27:42
14:27:54
I would like to ask you some very specific questions
Now, the -- the briefing was for MCSO deputies who
20
were participating in that saturation patrol, correct?
21
A.
Correct.
22
Q.
They were going to be making traffic stops during that
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patrol, correct?
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A.
Yes, ma'am.
25
Q.
And this patrol happened just a few days after the Court
14:28:13
14:28:20
(806 of 866)
909
issued its supplemental injunction, the October 2013 order,
correct?
A.
That's right.
Q.
And during this briefing for deputies you -- again you
mischaracterized the findings in of fact in the Court's order
correct?
A.
I did.
Q.
You called the Court's order ludicrous and crap, is that
right?
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A.
I did.
11
Q.
And you said that it was Judge Snow who violated the
12
Constitution, is that right?
13
A.
I did.
14
Q.
Now, here's where I get to the specific questions.
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going to play some of the statements you made.
14:28:49
I'm
14:29:01
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MS. WANG:
Can we please play clip 240C?
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MR. COMO:
What's the number, Judge?
I don't think
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that's been admitted into evidence, and I don't even have it on
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my list.
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MS. WANG:
I believe -- oh, it's 204.
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I'm having problems with exhibits today.
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Court and to everyone.
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THE COURT:
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detective, either.
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MS. WANG:
14:28:41
I'm so sorry.
14:29:21
I apologize to the
204C.
Maybe you wouldn't make much of a
That might be right.
Maybe on a better
14:29:32
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910
day.
THE COURT:
Still don't have 204 admitted.
MS. WANG:
Your Honor, I would ask that as we did with the
Oh, that's right.
It's not admitted.
sheriff, that we could play a short segment of it and ask the
chief deputy if he recognizes himself.
THE COURT:
MS. WANG:
10
11
Okay.
204C, please.
CHIEF DEPUTY SHERIDAN:
One thing I wanted to point
(Video clip stopped.)
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BY MS. WANG:
14
Q.
Chief, do you recognize yourself on this video?
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A.
Yes, ma'am.
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Q.
And does this appear to be the briefing that we've been
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talking about?
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A.
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14:30:31
out when Captain Lopez was talking --
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14:29:48
14:30:39
Yes, it does.
MS. WANG:
Okay.
Your Honor, I'd ask that we play
the -- the clip and then I can ask him questions about it.
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THE COURT:
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MS. IAFRATE:
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THE COURT:
14:30:49
Any objection?
Just the rule of inclusion, Your Honor.
Again, as with previous clips, if you want
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to show more of it, I'm happy to have you do more on your
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cross-examination.
And I'll request that plaintiffs make it
14:31:00
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available to Ms. Iafrate if she desires to do that.
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MS. WANG:
I believe we did exchange with the
defendants all of the exhibits, including the entire video.
THE COURT:
MS. WANG:
911
Thank you.
Okay.
Could we start from the very
beginning.
THE COURT:
Yes.
One thing I wanted to point
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out when Captain Lopez was talking about filling out the
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ethnicity on the contact form, there's two areas where we're
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concerned about ethnicity on people.
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want us to ask.
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guess.
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the last name.
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female and you're a, let's say, a black female and you marry a
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Hispanic male, you're going to have the last name of a
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Hispanic -- you know, you don't know.
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the compromise with the judge was guess.
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ethnicity.
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14:31:14
14:31:27
Now, the Court doesn't
I think it's absurd that we're supposed to
They wanted us -- originally the ACLU wanted us to use

Well, I don't know about you, but if you're a
14:31:54
So the bottom line was

So it's perceived
14:32:24
The reason we're asking you to do it twice, the first

time is prior to the traffic stop.
Matter of fact, is anybody outside
that (indiscernible).
I don't want the media to hear.
14:32:50
(809 of 866)
BY MS. WANG:
Q.
little bit hard to hear it, but I heard you move toward the
door and say:
the media to hear this.
All right.
912
At the very end of this clip, sir, it's a
Is anybody out there?
And then:
I don't want
14:32:59
Did you say that?
A.
Yes.
Q.
Is it true that -- well, you did not want the media to hear
what you were about to say next?
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A.
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That's correct.
MS. WANG:
14:33:12
Your Honor, I'd move the admission of
Exhibit 204C.
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THE COURT:
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MS. IAFRATE:
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I thought it already was and I objected
to the rule of inclusion on this --
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Any objection?
THE COURT:
14:33:23
You know, I think what Ms. Wang has done
is broken it up into parts, and she's moving them in by parts.
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MS. IAFRATE:
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THE COURT:
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MR. COMO:
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MR. WALKER:
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THE COURT:
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(Exhibit No. 204C is admitted into evidence.)
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BY MS. WANG:
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Q.
Oh, okay.
Well, same objection.
All right.
None, Your Honor.
14:33:36
No objection.
204C is admitted.
And before you said that you didn't want the media to hear,
14:33:43
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913
you were about to start talking about recording the race and
ethnicity of motorists at two points during a traffic stop, is
that right?
A.
That's correct.
Q.
All right.
supplemental injunction, correct?
A.
Yes, ma'am.
Q.
Which had just recently issued, correct?
A.
That's correct.
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Q.
All right.
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or ethnicity to be recorded twice, correct?
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A.
That's correct.
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Q.
That was MCSO's own decision.
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A.
Yes, ma'am.
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And this was all to implement Judge Snow's
That order Judge Snow gave did not require race
MS. WANG:
All right.
I would ask that we now play a
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short clip from 204D, and we'll just stop it again to make sure
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that Chief Deputy Sheridan recognizes the video.
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14:33:56
14:34:04
14:34:19
(Off-the-record discussion between the Court and the

clerk.)
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Before you make a traffic stop.
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in my career.
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It's hard to tell until you pull them over.
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know, write down what?
14:34:42
We want you to do it twice.

I've made a few traffic stops
It's hard to tell who's in that car.
Right?
So if you don't
14:35:14
(811 of 866)
A VOICE:
You walk up to the car.
"Don't know."
A no.
Thank you.
You talk to Wayne.
Well, I'm
not guessing what this guy is, let's say I don't know.
My perceived ethnicity of this guy, I'm not sure.
Oh, there's no -- there's no (laughter).
if you don't know, it's unknown.
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Right?
14:35:33
So
BY MS. WANG:
Q.
Sir, in this video --
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MS. WANG:
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MS. IAFRATE:
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MR. WALKER:
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MR. COMO:
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THE COURT:
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(Exhibit No. 204D is admitted into evidence.)
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MS. WANG:
14:35:48
Oh, I'd move the admission of 204D, please.

Same objection.
No objection, Your Honor.
No objection.
204D is admitted.
14:35:58
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BY MS. WANG:
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Q.
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instruction, correct?
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A.
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it was instruction, sure.
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Q.
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saturation patrol, correct?
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A.
Chief, you were giving the deputies in the room an
I assume so.
14:36:06
Yeah, I could see where they could say that
You were briefing the deputies in preparation for a
That, among other things, yes.
14:36:22
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MS. WANG:
All right.
I'd now like to play
Exhibit 204E.
do it twice.
the stop is over.
That's why we're asking you to
Once prior to the traffic stop, and two, after
14:36:38
That way, we'll be able to defend ourselves.
MS. WANG:
915
Your Honor, I'd move for the admission of
204E.
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MS. IAFRATE:
May I just have a standing objection?
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THE COURT:
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MS. IAFRATE:
Thank you.
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MR. WALKER:
No objection.
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MR. COMO:
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THE COURT:
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(Exhibit No. 204E is admitted into evidence.)
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MS. WANG:
14:36:55
You certainly may.
None.
204E is admitted.
14:37:01
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BY MS. WANG:
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Q.
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ethnicity twice so that MCSO could defend itself, is that
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correct?
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A.
Yes, ma'am.
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Q.
And you stated in this briefing that it's difficult to tell
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what race or ethnicity a motorist is until you get up close to
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them after you've pulled them over, is that right?
Sir, you were directing deputies to record race or

14:37:14
14:37:31
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916
A.
Yes, ma'am.
Q.
And do you believe that's true?
A.
I do.
Q.
You're aware that MCSO argued in court in this case that
deputies can't see the race of people in cars before they
actually walk up to the car, is that right?
A.
sheriff in a patrol car, or even driving home today, you know,
I play a little game with myself:
Yes, ma'am.
14:37:43
Over the many years that I was a deputy
Do I know who's in that car?
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It's very difficult to tell who's in that vehicle until you
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actually walk up to that car.
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Q.
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followed your direction, they would generally record "unknown"
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at the took outset of the stop for the race or ethnicity of the
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driver?
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A.
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description.
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Q.
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race or ethnicity of a motorist at the point the deputy decides
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to initiate the stop?
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A.
Yes.
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Q.
So isn't it true you could expect that, for the most part,
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deputies might write "unknown" unless they happen to be able to
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see the race or ethnicity?
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A.
14:38:02
So is it fair to say that you expected that if deputies
14:38:19
I could expect them to be accurate and honest with their
But you believe that in general it's difficult to see the
Yes.
14:38:34
14:38:47
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MS. WANG:
And I have one last clip.
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Could we play
Exhibit 204G.
So i'm sorry you have to do
this, I wish we didn't have to waste our time doing this, but
it's a necessary evil to fix this.
So the other thing and the last thing I'll say is I do
not want you to be distracted from what you're doing, from your
safety, from watching the hands of the individuals in that
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vehicle, by all this other outside crap.
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safe.
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again.
I want you to be
14:38:57
14:39:21
The sheriff has already said that once, I'm repeating it
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BY MS. WANG:
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Q.
All right, sir.
In that --
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MS. WANG:
Oh, I'd move the admission of Exhibit 204G.
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THE COURT:
Admitted subject to continuing objection.
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(Exhibit No. 204G is admitted into evidence.)
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MS. WANG:
14:39:38
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BY MS. WANG:
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Q.
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you have to do this."
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and ethnicity data as required under the Court's order,
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correct?
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A.
14:39:50
Chief, in that video you said to the deputies "I'm sorry
No.
By the word "this" you meant record race
14:40:00
(815 of 866)
Sheridan - Cross, Melendres v. Arpaio, 4/24/15
wiretap over many months.
958
Deputy Navarrette is now in prison.
There was another deputy that was caught up in that,
again another former HSU deputy, that was implicated in the
wiretap that he was selling guns to several of these cartel
members.
criminal charges against him, but we were able to terminate him
for truthfulness.
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Unfortunately, we didn't have enough evidence to file
16:09:12
So with that kind of background I -- I'm -- I didn't

think -- I know that's an impeccable background for somebody to
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be the leader of our Internal Affairs division.
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Q.
Even though he was briefly in charge of HSU?
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A.
Yeah, to me that inconsequential --
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Q.
Why?
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A.
-- compared to everything I just told you about him.
15
Q.
How about the fact that as head of PSB, and HSU was in the
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hot seat, that he would have to investigate -- or his unit
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would have to investigate individuals that he was most recently
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the supervisor of?
19
A.
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piece, too.
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remember if he was a lieutenant or not, but HSU was in that
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division but didn't work for Lieutenant Bailey.
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been when he got promoted to captain, because we did discuss
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the duties of HSU.
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longer going to do any kind of human smuggling, those kinds of
Well, now I'm remembering another piece.
16:09:37
16:09:56
There was another
Captain Bailey also came to me, and I don't
16:10:18
It must have
And we made the decision that they were no

16:10:48
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things.
activity.
959
We pretty much sidelined them from doing that kind of

That was Captain Bailey's idea.
So he understood, he understood the Court's order.
He
understood how HSU was to operate and not to operate.
a look at the grant that funded a lot of the HSU operations.
We tailored HSU operations to only do drug interdictions, and
so HSU, in its prior form, didn't exist under Captain Bailey's
command like it had prior.
Q.
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16:11:17
I want to show you an exhibit that the Court showed Sheriff
Arpaio yesterday.
It's Exhibit 522.
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THE CLERK:
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MS. IAFRATE:
13
He took
the witness?
16:11:51
Correct.
Would you mind, please, giving that to
Thank you.
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THE CLERK:
(Handing exhibit to witness.)
15
THE WITNESS:
Thank you.
16:12:07
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BY MS. IAFRATE:
17
Q.
Chief, have you seen that article before?
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A.
Yes, ma'am.
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Q.
Is it accurate?
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A.
Is what accurate?
21
Q.
The article.
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A.
Absolutely not.
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Q.
I want to talk to you about some of the items that were
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discussed yesterday with Sheriff Arpaio.
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A.
Do I have a choice?
16:12:28
Okay?
16:12:47
(817 of 866)
Q.
No, you do not.
A.
Okay.
Q.
It's either me or the judge, so I'll go first.
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5
960
There was an investigation that was discussed, someone

called it the Seattle investigation.
16:13:01
Do you know what I'm referring to?
A.
Yes, ma'am.
Q.
What is it?
A.
In a nutshell, the Seattle investigation was where we had a
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confidential informant that had information about computer
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tampering crimes, where he had information that the CIA hacked
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into individual bank accounts, I think there were approximately
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50,000 of them, Maricopa County residents.
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their bank account numbers, and their dollar amounts.
15
Q.
Who made the determination to investigate these issues?
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A.
Sheriff and I.
17
Q.
When you made that determination, did you seek anyone
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else's advice on how to proceed with this investigation?
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A.
Yes, ma'am.
20
Q.
Who?
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A.
We went to the Arizona Attorney General with this
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information.
23
Q.
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investigation?
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A.
16:13:20
He had their names,
16:14:01
16:14:19
And following your conversation did you ensue an
Yes.
16:14:33
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961
Q.
What became of that investigation?
A.
Eventually, nothing.
Q.
Why is that?
A.
Because we found it difficult to determine the credibility
of the informant.
Q.
criminal case is vital, correct?
A.
Yes, ma'am.
Q.
So if you were doubting the credibility of the confidential
16:14:53
The credibility of an informant in attempting to make a
10
informant, the investigation went nowhere?
11
A.
That's correct.
12
Q.
There was some discussion regarding how you pay
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confidential informants.
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for that confidential informant?
15
A.
I do.
16
Q.
Where?
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A.
RICO funds.
18
Q.
And who is responsible for determining what fund is used?
19
A.
It's normal standing operating procedure that we pay
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informants using those RICO funds.
21
Q.
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Sheriff Arpaio about.
23
A.
Yes, ma'am.
24
Q.
The question that I think -- and I don't mean to put words
25
in his mouth, but what the judge asked was:
16:15:11
Do you know the source of the money
16:15:30
What was the source?
16:15:44
There was another investigation that the judge queried

Do you recall that?
Do you know of
16:16:04
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anyone that investigated Judge Snow or a family member?
Do you recall that question?
A.
Yes, ma'am.
Q.
Do you know of anyone that investigated Judge Snow or a
family member of Judge Snow?
A.
question is because I've been around lawyers for the last five
years and I know words mean certain things.
investigate Judge Snow's wife.
16:16:20
The reason I'm hesitating in answer -- answering the
We did not
10
Q.
Who was investigated?
11
A.
We contacted an individual that talked to Judge Snow's
12
wife.
13
Q.
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individual and Judge Snow's wife?
15
A.
16
Sheriff Arpaio in August of 2013.
17
Q.
And what was the content of that Facebook message?
18
A.
I'd rather not say.
19
Q.
Well, I'm asking you what it said.
20
judge chooses to ask that very same question, are you going to
21
answer it?
22
A.
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that question.
16:16:48
How did you find out about this conversation with an
An individual sent a private Facebook page message to
16:17:04
If I sit down and the

16:17:40
I will answer the question if the Court orders me to answer
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THE COURT:
Well, let me ask you, was it about me?
25
THE WITNESS:
Yes, sir.
16:17:56
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1
2
THE COURT:
963
And did it make allegations that I was
doing something illegal?
THE WITNESS:
THE COURT:
in this litigation?
No, sir.
Did it make allegations that I was biased

16:18:08
THE WITNESS:
THE COURT:
Yes, sir.
All right.
You may go ahead and answer.
BY MS. IAFRATE:
Q.
Do you remember the question?
10
A.
Could you please repeat it?
11
Q.
Sure.
12
went to the sheriff's office, and I asked you what was the
13
content of the message.
14
A.
15
Judge Snow's wife.
16
see you out of office.
17
Q.
Did you identify who that message was from?
18
A.
Yes.
19
Karen Grissom.
20
Q.
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Ms. Grissom came to get this information that Judge Snow's wife
22
said that Judge Snow hates the sheriff and wants to get him out
23
of office?
24
A.
Yes, ma'am.
25
Q.
What did you -- what did you learn subsequently?
Yes.
16:18:17
You were talking about this Facebook message that
I can't quote it verbatim, but it was -- I know

She told me he hates you and he wants to
16:18:40
The header from the individual that it came from was
Did you learn -- subsequently learn more about how
16:19:11
16:19:30
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964
A.
I learned that Ms. Grissom was at a restaurant in the
East Valley with her husband and her adult son.
by Judge Snow's wife and his daughter near the counter to pay
the cashier.
were children growing up in Yuma, I believe, and that
Judge Snow's wife recognized her as childhood friends, but
actually she mistook her for her other -- for Ms. Grissom's
sister, and they had a conversation about life, they hadn't
seen each other for years, and then this conversation occurred.
They were met
Apparently, they knew each other from when they
10
Q.
So why -- why was Ms. Grissom being investigated?
11
A.
I'm sorry, what was that question?
12
Q.
Why was Ms. Grissom being investigated?
13
THE COURT:
Ms. Grissom was not being investigated.
15
wrote the e-mail to the sheriff.
17
16:20:38
If I understood correctly, Ms. Iafrate,
14
16
16:20:06
MS. IAFRATE:
She was the person who

16:20:58
She was the person who wrote the e-mail
to the sheriff and then subsequently was investigated.
18
THE COURT:
Oh, I didn't know that.
19
THE WITNESS:
Well, no one was investigated.
20
BY MS. IAFRATE:
21
Q.
Okay.
22
A.
She was interviewed, her husband was interviewed, her son
23
was interviewed, for the veracity of Ms. Grissom's Facebook
24
message to the sheriff.
25
Q.
16:21:10
The investigator spoke to her?
And were the husband and the son present when -- supposedly
16:21:26
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present when this statement by Ms. -- by Judge Snow's wife was
made?
A.
Yes, as well as His Honor's daughter, also.
Q.
Ultimately, following the interviews of these individuals
was the statement deemed credible?
A.
7
8
Yes.
THE COURT:
Maybe we ought to go back.
I missed the
whole investigation.
MS. IAFRATE:
10
11
16:21:54
THE COURT:
Okay.
It probably makes sense to only go through
this once.
12
MS. IAFRATE:
13
THE COURT:
Yes.
So I got that Karen Grissom, who is an
14
acquaintance or a friend of my -- childhood friend of my wife
15
from Yuma, met my wife and daughter in a restaurant, said
16
something about what I supposedly feel about Sheriff Arpaio.
17
didn't hear -- and then you said there was an investigation.
18
Who did the investigation?
19
MS. IAFRATE:
20
THE COURT:
22
BY MS. IAFRATE:
23
Q.
25
Okay, so let me back up.
16:22:21
I used the
wrong verb, Your Honor.
21
24
16:22:07
16:22:39
Okay.
You said an investigator interviewed Ms. Grissom.

THE COURT:
questions?
Can we go back?
Can we jointly ask these

16:22:49
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Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15
MS. IAFRATE:
THE COURT:
THE WITNESS:
THE COURT:
question?
966
Sure.
Who hired the investigator?

Mr. Casey.
All right.
And so do you mind if I ask a
You can interrupt me.
MS. IAFRATE:
THE COURT:
MS. IAFRATE:
THE COURT:
I will not interrupt you.
Please do.
I will not.
In all seriousness, Ms. Iafrate, I think
10
that if you have objections or if anybody else does, they ought
11
to make them, even though I -- I'm asking questions.
12
16:23:04
16:23:13
EXAMINATION
13
BY THE COURT:
14
Q.
15
with his counsel?
16
A.
That's correct, Your Honor.
17
Q.
All right.
18
made, by whom I don't know, that there should be an
19
investigator that would contact Ms. Grissom.
20
A.
That's correct.
21
Q.
All right.
22
that Mr. Casey hired that investigator?
23
A.
I do know that, yes, he did.
24
Q.
All right.
25
release which, while acknowledging -- I read the press release
I take it, then, that the sheriff discussed this e-mail

16:23:25
And I take it, then, that the decision was
16:23:38
And it's your understanding -- or do you know
Are you aware that Mr. Casey has filed a press

16:23:50
(824 of 866)
967
because he sent it to my office.
while acknowledging that he has duties to you and not
commenting on it, denies that he was involved in any way, or he
says -- he doesn't deny anything, but he says something to the
effect that he's confidant that when the materials are
evaluated he was not involved in any way in the investigation
of me or a member of my family.
8
9
You're aware that Mr. Casey,
16:24:09
And is it your view that you were at a conversation in

which that just simply isn't true?
That if I read it that way,
10
my understanding is wrong?
11
A.
12
depends on how you define "investigated your wife," because
13
no one, no one ever went any further than just verifying that
14
conversation --
15
Q.
All right.
16
A.
-- occurred.
17
Q.
Mr. Casey hired, if not an investigator, somebody?
18
A.
That's correct.
19
Q.
And that somebody went and talked to Ms. Grissom?
20
A.
Correct.
21
16:24:25
Your Honor, that -- that's where I started out saying it
16:24:49
16:24:58
THE COURT:
22
Okay.
CROSS-EXAMINATION CONTINUED
23
BY MS. IAFRATE:
24
Q.
And also spoke to her husband and her grown son?
25
A.
Correct.
16:25:07
(825 of 866)
Q.
Who also heard the statements?
A.
Who verified her statement, yes.
THE COURT:
Okay.
I'm with you.
Go ahead.
BY MS. IAFRATE:
Q.
this information?
privilege, but ultimately, what was the end game of these
interviews with these individuals?
A.
Okay.
So based on this investigation, what was done with
Nothing.
MS. IAFRATE:
11
THE COURT:
12
Do you have any more?
I believe I'll stop there, Your Honor.
Okay.
MS. IAFRATE:
15
THE COURT:
16
Mr. Walker?
17
MR. WALKER:
Thank you.
You're through with your
Yes.
All right.
witness also, particularly since he's going to be coming back
19
in June in any event.
20
THE COURT:
21
Mr. Como.
22
MR. COMO:
16:25:48
Your Honor, I would like to defer on this
18
All right.
16:26:00
I don't have any questions at this time,
Your Honor.
24
25
16:25:39
examination?
14
23
16:25:18
I don't want you to reveal attorney-client
10
13
968
FURTHER EXAMINATION
BY THE COURT:
16:26:31
(826 of 866)
985
A.
I do.
Q.
Do you have any idea why people would assume that
identifications were fraudulent if they'd taken them from
people they'd arrested as illegal aliens and all they did was
show that they were Mexican?
A.
I don't, Your Honor.
Q.
In fact, all of -- a great number of these documents, as
you look through them, are Mexican identifications, aren't
they?
16:48:52
And it wouldn't make any -- any sense for somebody to
10
fabricate Mexican identification documents if they wanted to
11
pass themselves off as an American citizen, would it?
12
A.
Correct, it would not.
13
Q.
So it looks like the -- well, the date that was -- they
14
were transmitted to be destroyed was November 6th, correct?
15
A.
Yes, sir.
16
Q.
And my monitor team, when it received a copy of these
17
documents, I think, called and stopped the destruction so that
18
they were not destroyed.
19
other reason.
20
were provided to Captain Bailey when Captain Bailey was SID
21
captain, and that -- it just would be problematic to have him
22
investigating seized documents when he received such a document
23
earlier.
24
A.
I would agree.
25
Q.
All right.
16:49:11
16:49:37
I'm not sure about that, maybe some
But the documents do seem to indicate that they

16:50:01
Wouldn't you agree?
Then you knew that I -- you knew that I had
16:50:23
(827 of 866)
986
questions with Sergeant Tennyson's investigative techniques and
determinations?
A.
Yes, sir.
Q.
And we had another hearing on November 20th.
Do you remember that one?
A.
Not specifically, Your Honor.
Q.
It's the one where Mr. Casey withdrew.
Oh, he's not in the courtroom any more.
A.
Yes.
10
Q.
It's the one where Mr. Casey withdrew.
11
A.
I remember that.
12
Q.
All right.
13
going to have my courtroom deputy mark that one, too.

This one I think you might remember.
15
THE CLERK:
You need a copy?
16
THE COURT:
Yes, let's give chief the marked exhibit.
17
MS. IAFRATE:
18
THE COURT:
19
MS. IAFRATE:
Your Honor?
While this is being marked, could I just
raise one objection regarding -THE COURT:
22
MS. IAFRATE:
16:51:22
Yes, surely.
To my knowledge, Chief Sheridan has
23
never seen that document that you provided to me, or the
24
attachments.
THE COURT:
16:51:09
Yes.
21
25
16:50:48
I'm going to give you another document and I'm
14
20
16:50:37
I didn't purport to say that he had, and I
16:51:32
(828 of 866)
A.
Okay.
Q.
We can take it up again another time.
998
Let's talk about the Montgomery investigation.
A.
Yes, sir.
Q.
Chief -- or Sheriff Arpaio yesterday said that you were in
charge of that investigation.
MR. WALKER:
THE COURT:
MR. WALKER:
Is that true?
Your Honor -Sure.

Just so the record is clear, when we use
10
the word -- the name Montgomery, can we make it clear it's
11
Dennis Montgomery?
12
13
THE COURT:
17:06:55
Yes.
I'm sorry, that's correct.
17:07:18
It's
Dennis Montgomery, who is the confidential informant.
14
THE WITNESS:
Yes, sir.
15
BY THE COURT:
16
Q.
17
you -- folks reported to you.
18
A.
Yes, sir.
19
Q.
You seemed hesitant about that.
20
A.
Well, I'm only hesitant because when you said that I'm in
21
charge of, the detective, Brian Mackiewicz, I would consider
22
him to be in charge of an investigation.
23
Q.
All right.
24
A.
Correct.
25
Q.
He's a sergeant?
17:07:29
And I have some questions on this.
Sheriff Arpaio said
17:07:41
And so he is in charge of the investigation?
17:08:05
(829 of 866)
A.
Yes, sir.
Q.
There is -- is it Sergeant Anglin as well?
A.
Yes, sir.
Q.
And somebody from your posse?
A.
Yes, sir.
Q.
And they spent a lot of time in Seattle?
A.
Yes, sir.
Q.
Did you report to Sheriff Arpaio about what they were
doing?
999
For a short time he was involved in the case.
17:08:18
10
A.
Yes, sir.
11
Q.
How often did you report to Sheriff Arpaio about what they
12
were doing?
13
A.
We got weekly updates, sometimes twice a week.
14
Q.
Think he understood what they were doing?
15
A.
I would think so, yes.
16
Q.
You heard him yesterday say that the DOJ was wiretapping me
17
and other judges, and that that was part of that investigation.
18
17:08:26
17:08:41
You heard that testimony, didn't you?
19
A.
Yes, sir.
20
Q.
I didn't hear you say anything about that.
21
of the investigation?
22
A.
23
There were wiretaps.
24
that were from my phone and the sheriff's phone in about 2008.
25
I certainly don't recall yours.
Was that part
17:08:58
I -- it's my recollection that I don't believe you were.

I know that there were wiretap numbers
17:09:30
(830 of 866)
Sheridan - Exam by Court, Melendres v. Arpaio, 4/24/15 1000
What maybe the sheriff was confusing that with, there
were -- there was information that Dennis Montgomery gave us
that certain law offices, Jones, Skelton & Hochuli, Ogletree
Deakins, two law firms that represented us in the DOJ case,
were breached.
representing us.
Q.
Well, let's go back to my question.
A.
I'm getting there, Your Honor.
Q.
Okay.
10
A.
Because you're next.
11
Q.
Okay.
12
A.
And also there was some information that your e-mail from
13
the court was possibly there -- there might have been an e-mail
14
from the -- the DOJ to you.
15
One in particular with Mr. Popolizio, who was
17:10:19
But understand, Dennis Montgomery gave us no evidence
16
that showed the contents of any of those e-mails except one
17
sentence from Mr. Popolizio's e-mail that talked about
18
something about his daughter and a soccer game.
19
It's a very long story.
17:10:45
I don't think you have
20
time -- I can tell it in --
21
Q.
22
because we'll decide if we're going to take this up later.
23
17:10:06
17:11:14
I don't want to hear it, but I will let you tell it later
But in your description of the investigation I didn't
24
hear anything about the DOJ at all.
So why would
25
Mr. Montgomery have been looking at my computer to see if the
17:11:28
(831 of 866)
DOJ was sending me e-mails?
A.
Mr. Montgomery.
don't remember the years, but it was '07 to '10 for a few
years, and he took --
Q.
understand that.
A.
because this has been a few years, and I've had other things on
10
Okay.
Here's where the plot thickens a little bit with

Mr. Montgomery worked for the CIA.
And I
17:11:58
When you say '7 to '10 for a few years, I don't -- I didn't
2007 to 2010, sometime -- I may have the dates wrong,
my mind since this thing kind of got cold.
11
17:12:15
He would -- when he worked for the CIA, he pulled data
12
from American citizens for the CIA.
I mean, we heard a lot
13
about this a few years ago; it was very much in the media.
14
he said he was one of the individuals that was tasked with
15
doing that, and he knew that was incorrect, it was wrong, and
16
so he made backup copies that he took and he kept.
17
mining that data to find these e-mail breaches, to find the
18
bank information that he originally came to us with.
19
Q.
20
communication to my computer?
21
A.
Something to that effect, yes.
22
Q.
And he brought that to you, and did he have the actual
23
content of the communication?
24
A.
No, sir.
25
Q.
How did he know -- how did he arrive at the conclusion that
And
17:12:38
And he was
Well, so he found information that the DOJ had sent a

17:13:05
17:13:17
(832 of 866)
the DOJ had accessed my computer?
A.
us.
credible.
Again, we were always very skeptical of what he was giving

However, he was giving us information on occasion that was
We had a seated justice in Washington -- I can't
recall his name; I have it written down on my pad, Your
Honor -- that is a member of the FISA court in Washington, D.C.
We had Mr. Mon -- because the sheriff and I were concerned
about the CIA wiretapping our phones.
This justice actually
10
confirmed that these were typical wiretap numbers, and so it
11
did give Mr. Montgomery a little more credibility with us.
12
17:13:42
17:14:16
And we continued to work with him, we continued to
13
keep him on our informant payroll, so to speak, as he was
14
producing information.
15
stale, and we finally realized that he was stringing us along.
16
Q.
17
yesterday that he -- some pretty critical comments about the
18
Department of Justice.
But it became very slow, it became very

17:14:49
You know, with all due respect, we did hear the sheriff say
Do you remember those?
19
Maybe I misremember.
I'll scratch that.
20
Let me ask you this:
If in fact the sheriff thought
21
there might have been some improper collusion between me and
22
the Department of Justice, can you blame him if he wanted to
23
investigate that further?
24
A.
Could I blame the sheriff?
25
Q.
Yeah.
17:15:19
17:15:33
(833 of 866)
A.
Well, there was -- there was really nothing to think that
there was any collusion.
Q.
an expensive proposition for the MCSO, was he not?
A.
He was.
Q.
Did you ever hear the sheriff describe his work as an
investigation of a conspiracy, or something of that nature,
between the Department of Justice and me?
A.
No, sir.
10
Q.
Did you ever hear him describe it as an investigation of me
11
to anyone at the MCSO?
12
A.
13
believe in the presence of the sheriff, with detective --
14
Sergeant Anglin and Detective Mackiewicz when this information
15
came forward that they were not, it was -- and I don't normally
16
do this because it's not my style, but I told them:
17
direct order from me.
18
information involving Judge Snow.
19
comes up, I want to know immediately.
20
materialize.
21
Q.
So Montgomery brought you some information?
22
A.
Initial.
23
would do, because -- I'll try and give you the two-second
24
version.
25
pieces and it could go all over the world.
Well, I certainly agree with that, but Mr. Montgomery was
No, sir.
17:15:48
17:16:04
As a matter of fact, I made quite sure, and I
17:16:29
This is a
You are not to investigate any

If any further information
Nothing ever did
17:16:52
And when we say "information," what Montgomery
When you send an e-mail, it goes out in bits and

It could go to
17:17:13
(834 of 866)
Indonesia and back within seconds.
computer, the system puts it back together.
And it comes back in your
Montgomery has that data, or he says he does, in
those -- in that format.
He needs -- or he says he needed
supercomputers to put that information together.
have one.
forever to run programs.
information.
He doesn't
17:17:36
He's got this huge one in his garage, and it takes

And so he would come back with
Our primary focus, Your Honor, was the fraud, the bank
10
fraud, the -- excuse me, the computer fraud of him hacking into
11
person -- people's personal bank accounts.
12
Q.
13
investigation was?
14
A.
15
very prominent people.
16
Q.
17
Department of Justice.
18
A.
I -- I'm sorry, I don't.
19
Q.
Oh.
20
investigations?
21
A.
I don't --
22
Q.
When I say the target of the investigation, in other words,
23
he thought the Department of Justice was doing the bugging.
24
you remember that?
25
out the Department of Justice's bugging of judges and your
17:17:57
Are you uncomfortable telling me who the target of this
No, because there were about 50,000 people.
Some of them
17:18:14
Well, the sheriff told me that the target was the

Who would have had to sign off on these

17:18:30
Do
And the investigation was trying to find

17:18:42
(835 of 866)
defense attorney and your offices.
Do you remember him saying that?
A.
I -- I don't remember.
Q.
He didn't mention anything about banks, that I recall.
A.
Well, when I think it's Dennis Montgomery and what we were
doing with him, it was really the bank fraud, it was the DOJ
wiretapping our phones going into the e-mail accounts of our
counsel, and there was something in there about your e-mail
also.
10
So, you know, the DOJ was on our radar screen because,
11
you know, personally if they did do an illegal wiretap on my
12
phone, I would have liked to -- I would like to know that.
13
Q.
I would, too.
14
A.
Probably good thing.
15
17:19:26
You didn't call me.
And so that's how -- that's how that happened.
So
16
when you say sign off on it, now, we were working with the
17
Arizona Attorney General's Office, as they were going to
18
prosecute this case if we were ever able to bring it to a
19
conclusion.
20
17:19:01
And it was also our intent and it is also our intent
21
to gather -- to complete gathering this information, because
22
Montgomery has promised us -- we're no longer paying him, we
23
haven't been paying him for a while -- some further
24
information, and to package this up and forward it to the
25
Federal Bureau of Investigation.
That was going to be our --
17:19:52
17:20:16
17:20:41
(836 of 866)
our final conclusion to tie up this case.
Q.
isn't he?
A.
been verified, and you can google his name and find all kinds
of crazy stuff about him, but there were some pieces of
information that were verified and credible also.
informants that we deal with, there's a very shady side of them
and then there's also a very credible side for them.
Let me ask you, Montgomery's simply a computer consultant,
Well, that's what he is now.
He did work for, and this had

17:21:01
So like many
10
Q.
Well, why in the world did you have to designate him as a
11
confidential informant if there isn't anything he was doing
12
that was confidential was there?
13
A.
Well, he was working with us confidentially.
14
Q.
Well, why can't you just hire him as a consultant?
15
A.
Because he was -- well, I don't know.
16
handled him.
17
Q.
18
disclosure if you designate somebody as a confidential
19
informant, aren't there?
20
A.
Yes, sir.
21
Q.
That don't apply to just consultants?
22
A.
That's correct.
23
Q.
So I can do a public information request, you gotta give me
24
your consultants, but you don't have to give me your
25
confidential informants, do you?
This is the way we
17:21:24
17:21:41
Well, you don't have -- there's certain protections from
17:21:54
17:22:06
(837 of 866)
A.
No, but when the -- somebody leaks to members of the media
who he is, he's no longer confidential.
Q.
confidential for?
A.
Well, it could have shown --
Q.
He hadn't infiltrated organized crime, had he?
A.
Could have shown that either the Department of Justice or
the CIA was breaching American citizens' personal information,
and he had at least 50,000, that I remember, of citizens that
Well, but what was he doing that he needed to be
17:22:26
10
lived here in Maricopa County.
11
Q.
12
what a confidential informant is anywhere in your operations
13
manual?
14
A.
Yes, sir, we do.
15
Q.
And is it written so broadly that Dennis Montgomery
16
qualifies?
17
A.
I believe so.
18
Q.
Who all has to sign off -- you purchased a bunch of
19
equipment for him.
20
A.
We did, but we never gave it to him.
21
Q.
You authorized travel and overtime and pay for your
22
detectives to go to Seattle?
23
A.
Yes, sir.
24
Q.
Why were you doing this out of Seattle?
25
A.
That's where he lives.
But I still don't understand.
17:22:52
Do you have a definition of
17:23:02
17:23:17
17:23:35
(838 of 866)
Q.
Why did your detectives have to go to Seattle?
A.
That's where his massive computer system is.
Q.
Who -- did they have to be there with him?
A.
Well, that was always the discussion, because we wanted to
be there when he found the information.
harder when our detectives were there than when they weren't.
Q.
expenses?
A.
And he worked a lot
Was it worth paying their overtime and travel and all those
Well, now that we look back, and hindsight's 20/20,
10
probably not.
11
Q.
12
handled within PSB related to this investigation?
13
A.
17:24:07
Let me ask this:
Did you ever get any referrals that you
I don't believe so, no, sir.
14
THE COURT:
Well, I thank you for your patience.
We
15
will probably be resuming this matter in June, but I think it's
16
time to let you go.
THE WITNESS:
18
MS. WANG:
THE COURT:
How long is it?
22
23
24
25
Your Honor, I did have redirect.
Do you
want me just to defer that till June?
20
21
17:24:27
Thank you.
17
19
17:23:48
I had assumed you were going to redirect.
I assumed you were going to defer.
MS. WANG:
17:24:40
I'm sorry.
I'm happy to defer the redirect, Your
Honor.
THE COURT:
late in the day.
I think it makes sense.
We've gone pretty

17:24:48
(839 of 866)
2
3
4
5
6
10
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12
13
14
15
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17
DATED at Phoenix, Arizona, this 27th day of April,

2015.
18
19
20
21
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s/Gary Moll
(840 of 866)
EXHIBIT 32
(841 of 866)
3
4
5
6
7
8
9

Melendres, et al.,
Plaintiffs,
vs.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CV 07-2513-PHX-GMS
Phoenix, Arizona
May 14, 2015
9:35 a.m.
10
11
12
13
14
15
16
17
(Status Conference)
18
19
20
21
22
23
24
25
Court Reporter:
Gary Moll
(602) 322-7263

(842 of 866)
CV07-2513, Melendres v. Arpaio, 5/14/15 Status Hearing
1
2
THE COURT:
10
Kathleen, can you please give -- you can
just give that to counsel.
This was an article in the print -- I understand it
was in the Sunday Arizona Republic, and it may have been in an
earlier electronic version of The Republic.
into three columns, and if you go to the bottom of the second
column, it says:
at their home.
Casey, Arpaio's former defense attorney on the racial profiling
It's divided up
"Days later, a private investigator arrived
Jerry Sheridan, Arpaio's chief deputy, said Tim
10
case, hired the investigator to look into the veracity of the
11
message.
12
Karen's note:
13
lawyer look into the comment in the event that it was made, and
14
it was credible, because it went to the judge's state of mind,'
15
Sheridan said in an interview.
16
Dale Grissom -- "... says he never learned what happened after
17
their interviews, 'But I don't believe the investigator went to
18
investigate Snow's wife.'
19
said Casey told him and Arpaio there wasn't enough evidence to
20
take the tip any further.
21
year and a half, until it came out in court when the sheriff
22
was on the stand,' Sheridan said.
23
anything with it because we were told it would be unethical for
24
us to make a complaint on a third-party hearsay.'"
25
09:41:47
09:42:09
Sheridan said the office was obligated to look into

'The sheriff and I felt that we should have our
Dale ..." -- referring to
09:42:27
When asked that question, Sheridan
'And it sat in my desk drawer for a
09:42:42
'We had no intention to do
I guess, and we have Chief Deputy Sheridan here, I
09:43:00
(843 of 866)
CV07-2513, Melendres v. Arpaio, 5/14/15 Status Hearing
65
1
2
3
4
5
6
7
10
11
12
13
14
15
16
17
18
DATED at Phoenix, Arizona, this 14th day of May,

2015.
19
20
21
22
23
24
25
s/Gary Moll
(844 of 866)
EXHIBIT 33
(845 of 866)
3
4
5
6
7
8
9

et al.,
Plaintiffs,
vs.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Phoenix, Arizona
August 21, 2015
10:03 a.m.
10
11
12
13
14
15
16

(Status Conference)
17
18
19
20
21
22
23
24
25
Court Reporter:
Gary Moll
(602) 322-7263

(846 of 866)
the United States as an intervenor now, since that's --
THE COURT:
MS. WANG:
THE COURT:
Yes -Okay.
-- the United States is an intervenor, and
that makes them a party.
All right.
10:11:29
I assume that what we need to do is get
started -- or make sure that we have all the prehearing
discovery, time for all the prehearing discovery that is needed
before we launch back into discovery.
And it seemed to me that
10
the best way to do that, there's a number of documents and
11
things outstanding, things that defendants were going to
12
provide, and I just thought it would make sense to review those
13
to make sure that -- we discussed a little bit last week
14
possible depositions.
15
this week.
16
10:11:50
I guess I want to discuss that again

10:12:09
I realize that before plaintiff begins whatever
17
depositions it wants, it may want to have these documents,
18
which I reviewed last night the order that I entered.
19
them should be provided by today, I think, by that review.
20
I just want to review them and make sure they have been
21
provided so that plaintiffs can do whatever they want to do,
22
and then we can discuss depositions, talk a little bit about
23
that.
24
25
All of
So
10:12:26
So by my order, e-mails that specified MCSO personnel

from archived PST files in the possession of Maricopa County
10:12:47
(847 of 866)
were to be produced on or before yesterday.
I did receive
early this morning, apparently filed yesterday evening, the
sheriff's motion for extension of time to disclose e-mails.
Do you want to be heard on that, Mr. Young?
MR. YOUNG:
These are documents that, in large part, should have
Yes, Your Honor.
We oppose the motion.
been produced in February.
indicates that we agreed on some search terms.
files belonging to key people in the MCSO whose actions
The motion that Ms. Iafrate filed

These are PST
10
relating to the noncompliance with the preliminary injunction
11
are key to the upcoming hearing.
12
10:13:40
They were ordered to be produced as of February 12,
13
2015.
14
about various e-mails that should have been produced and were
15
in the weeks following that.
16
April they were still not completely produced.
They were not.
There was a long series of discussions
But even as of the hearing in
17
The PST files that are the subject of the search that
18
is mentioned in Ms. Iafrate's motion were discussed throughout
19
the summer.
20
long ago; the review should have happened long ago.
21
10:13:11
10:13:59
Our view is that the search should have happened

10:14:16
They have done the electronic search, as we understand
22
it, and they've come up with 16,600 or so documents which they
23
are reviewing.
24
subject of the search terms that were agreed to, they were
25
retrieved by use of those search terms, if they don't have time
Our view would be that since those are the
10:14:38
(848 of 866)
now to produce them, to go through them, they should just
produce them to us, we'll look at them.
they -- that if there's anything privileged in there that there
would be no waiver, we wouldn't look at them once we determined
they were privileged, and we'd give them back.
us that that is a much better solution than to stall the entire
process and prevent us from proceeding with preparation for
depositions pending their requested delayed production time.
We would agree that
But it seems to
So we would oppose the motion and would suggest as an
10
alternative that if they can't review them, despite all the
11
time they've had, that they simply give them to us subject to
12
the conditions that I've described.
13
14
MS. IAFRATE:
10:15:19
Well, Your Honor, I apologize for the
delay, but I have not been stalling or delaying since February.
15
I first received the PSTs last Tuesday.
My firm
16
started working on it immediately and has worked diligently.
17
We are not trying to delay the situation or stall it in any
18
way.
19
received the PSTs.
20
yielded 16,694 separate PSTs.
21
pages in length.
22
10:14:57
10:15:41
We were not able to do the review process until we

The search terms are extremely broad and it
Some of those are up to 200
10:16:03
I have several people working on this nonstop to try
23
to accommodate the situation.
24
of the way through.
25
THE COURT:
We are approximately one-fourth
Do you have any objection to Mr. Young's
10:16:20
(849 of 866)
suggestion?
MS. IAFRATE:
THE COURT:
MS. IAFRATE:
these documents for privilege.
an issue in this case, and I would like to protect my clients'
privilege, as they have a right to that privilege, and that's
why I'm reviewing them rather than Maricopa County.
THE COURT:
Yes, Your Honor.
Which is why?
Which is because I would like to review
The privilege continues to be
10:16:27
Have you engaged Mr. Masterson and
10
Mr. Popolizio's firm?
I note there's Mr. Masterson and
11
Mr. Popolizio; we have Ms. Diana Jean Elston, Eileen Dennis
12
GilBride; we have a number of people.
13
when I was in private practice I was across the mall from their
14
firm.
15
nothing more than to do privileged document review.
10:16:47
I know, I used to --
They've got lots of young associates who would love
16
Have you engaged their firm?
17
MS. IAFRATE:
18
THE COURT:
19
MS. IAFRATE:
20
THE COURT:
10:17:09
I have not.
Well, I think you need to do that.

Very well.
And I think what you also need to do is
21
you need to provide the documents -- I'm not going to give you
22
the deadline you've asked for.
23
feet to the fire; you're going to have to respond to me every
24
time.
25
cleared to the plaintiffs immediately as you clear them, sort
10:17:15
I'm just going to hold your
And I think you need to give the documents that you have
10:17:29
(850 of 866)
of in a rolling process.
or identifying them somehow.
MS. IAFRATE:
THE COURT:
5
6
I assume you're Bates stamping them
They are in a database, Your Honor.
You have it in a database.
Are they being
Bates stamped within the database?

MS. IAFRATE:
10:17:43
No, but we can batch them the way that
you're explaining so that we can give them batches as they're
completed.
THE COURT:
All right.
Then I'm going to require you
10
to do that.
I'm going to hold your feet to the fire every time
11
I see you until you can tell me it is completed.
12
What I think I'll do for you, Mr. Young, and I hope we
13
can avoid this, because I really do think we need to keep costs
14
down and try to be efficient, if you feel like you need to take
15
a deposition of somebody and you haven't yet got all of these
16
documents, I understand why you'd want to review them before
17
you take the deposition, go ahead and take the deposition.
18
then if you can convince me that you get documents that you
19
need to depose somebody about later, I'll allow it.
20
MR. YOUNG:
Obviously, we've already deposed everyone and had everyone
22
testify here, and then got more documents and we'll get more
23
documents still, so --
24
25
THE COURT:
I understand that.
10:18:10
And
Well, Your Honor, we'll do what we can.
21
10:17:54
10:18:25
But, you know, we do
have to finally bring this matter to an end, and if we keep
10:18:39
(851 of 866)
deposition goes.
And that's why I have asked, and Stan Young
has told me that I can count on Casey going before my two
clients, because how the Casey one goes is really going to
answer that question for us.
THE COURT:
If that's correct, if you believe Casey's going to go
Thank you.
11:01:14
first, then we can take that up later.
need to include me, if you would be so kind, in a scheduling
decision for Mr. Casey.
10
11
MS. WANG:
But you're going to
Your Honor, this was actually on my list to
raise with the Court if Your Honor did not raise it.
12
We do intend currently to depose Mr. Casey, Mr. Liddy,
13
and Ms. Stutz, so should we confer with all the relevant
14
counsel on the other side and talk to the courtroom deputy
15
about availability, or how should we do that?
16
THE COURT:
11:01:47
Well, yes, that's how you should do it.
17
And please, if you can give me several dates, and if you can
18
give me estimated times, because I have lots of things.
19
Sometimes I can move them to a morning or an afternoon,
20
whatever.
21
11:01:30
I'll try and work with you.
11:02:04
If I can't be free then you're just going to have to
22
do the deposition and hold the disputed stuff until the end of
23
the day or sometime, and then I will come, do what I can do.
24
But if I can be there, I will be there for the convenience of
25
the parties.
11:02:20
(852 of 866)
One other issue I might raise, I do not know -- and I
don't think this is likely to come up, but it might -- the
issue of the advise Mr. Casey gave concerning the Grissom
investigation is one that I view as terminated, and so I
don't -- but Judge Boyle -- well, Judge Boyle, prior to the use
of Mr. Casey's advice, or prior to the time that it became an
issue in the motion to have me recused or disqualified, had
ruled that there was -- although the attorney-client privilege
in the letter had been waived, there was still some work
10
product privilege immunity in the letter as it related to the
11
mental impressions of Mr. Casey.
12
because that became an issue, it waived any mental impressions
13
of Mr. Casey, but I'm not sure at all that as I see this suit,
14
that it remains relevant.
15
If you think it remains relevant, we may have to have

Mr. Boyle there to the extent that you might want to ask
17
stuff -- or ask -- or Judge Boyle, we might have to have him
18
rule on whether or not you want any other parts of that letter
19
unredacted, but as I see it, they don't need to be unredacted
20
because I'm not sure they're relevant to anything that hasn't
21
already been disclosed.

MS. WANG:
11:03:26
11:03:48
Your Honor, we do not intend to depose
23
Mr. Casey or anyone about anything having to do with
24
Ms. Grissom.
25
11:03:04
I'm not sure -- and maybe,
16
22
11:02:42
Relatedly, Your Honor, I need to -- Ms. Clark is not
11:03:58
(853 of 866)
here today but I've been meaning to contact her because she
seems to be under a misimpression that we had asked Mr. Casey
for documents relating to his investigation of the Grissom
allegation.
document request to him, and they corresponded with the three
charged grounds of civil contempt.
short, to go into the Grissom issues.
8
9
We actually had covered only three topics in our
THE COURT:
All right.
So we don't intend, in
Anything you want to be heard
on that?
10
MS. IAFRATE:
11
THE COURT:
No, Your Honor.
to be absent during certain dates.
13
only dates, although you've asked for a broad range -- and I
14
hope you're taking a nice vacation or something -- although
15
you've asked for a broad range, there were only two dates in
16
there that were dates that I'd asked people to hold, and that
17
is October 13th and 14th.
As I look at it, Chief, the
18
To the extent that you need to be absent October 13th
19
and 14th even if we're having hearing dates, does anybody have
20
any objection?
21
11:04:32
I have a request for Chief Deputy Sheridan
12
22
11:04:21
11:04:51
MS. WANG:
11:05:06
No, Your Honor.
I think we can work around
that.
23
THE COURT:
24
MR. COMO:
25
MR. WALKER:
I don't have any object -- oh.

No, Your Honor.
No objection.
11:05:19
(854 of 866)
THE COURT:
MS. WANG:
Right.
We certainly don't want to rehash old
ground, and may not need to call them if the documents don't --
THE COURT:
MS. WANG:
THE COURT:
Yeah.
-- point to a need.
11:16:52
Let me just make clear, and I think you
both already know, we're not going to rehash things that don't
have any need to be rehashed.
questions, then I'm going to allow them, or new information
If new documents require new
10
otherwise obtained requires new questions, I'm going to allow
11
them.
12
retracking what other people have said; let's use what they've
13
said before.
But otherwise, let us not be wasting a whole lot of time
14
MR. MASTERSON:
The next issue I have down in my notes
15
here, Judge, I think you might have answered it but I want to
16
make sure I understood correctly.
17
Grissom and Montgomery matters going to be at issue during the
18
contempt proceeding?
19
the Grissom issue is a dead one.
20
THE COURT:
My question was:
And I think the Court just indicated that
Well, I think what I said is if you want
to raise it, let me know.
22
but I'm not precluding you from arguing somehow that it's
23
relevant.
25
11:17:27
Are both
21
24
11:17:06
11:17:42
I don't really see its relevance,
If you're going to argue that it cuts to my bias, I

think that's already been ruled on and so I don't think that we
11:17:58
(855 of 866)
need to -- I don't think it's raisable for that purpose.
Unless, of course, the Ninth Circuit disagrees; you've got your
motion pending with them, so --
MR. MASTERSON:
Well, the reason I'm still hesitant
here is the Court indicated at one point -- and I believe you
were talking about the Montgomery investigation as opposed to
the Grissom investigation -- that the Court had some concerns
about expenditures of funds and man-hours to conduct an
investigation as opposed to complying with the Court's orders.
10
And if that is an issue, that could be an issue with Grissoms
11
as well.
12
perhaps we're done with Grissoms.

THE COURT:
Ms. Wang?
14
MR. YOUNG:
Actually, I don't know that the
15
expenditure of funds is going to be at issue, because that
16
occurred before the Court's October 2013 supplemental
17
injunction.
18
planning to ask questions about it or make much of an issue
19
about it with respect to the proceedings going forward.
21
22
11:18:39
If that's not going to be an issue there, then
13
20
11:18:16
11:19:03
So as Ms. Wang said, I don't think that we are
MR. MASTERSON:
Well, "make much of an issue about it"
11:19:27
and "make no issue about it" are a couple of different things.

THE COURT:
Well, you know, again, I'm not going to
23
rule before evidence if somebody thinks of something that they
24
want raised, but I will tell you that it seems to -- I put down
25
the chronology in my order.
It seems to me that if I
11:19:43
(856 of 866)
understand the chronology, and I think I do, Mr. Casey did an
initial investigation.
investigation; they hired Mr. Vogel to do it.
supplemental investigation, it didn't change Mr. Casey's
assessment, and nothing further was done on it.
His clients wanted a supplemental

Mr. Vogel did a
11:20:03
I think I said in my order it's possible, to the
extent that they then subsequently hired Mr. Vogel to do other
investigations, that that past relationship and its extent may
be of some minimal relevance.
That's where I -- at least right
10
now, that's where I see some possible relevance.
11
pretty minimal, and that's it.
12
expenditures.
13
MR. MASTERSON:
Okay.
But that's
I'm not concerned about
And the other issue here, and
14
it ties to the Grissoms, is -- and perhaps I shouldn't be
15
concerned about it, but I am -- there have been indications,
16
certainly in the press, and these folks in the back of the room
17
sometimes print things that go on in here and that people say,
18
and there have been indications that the sheriff's out to get
19
you.
20
those lines with respect to the Montgomery investigation.
21
11:20:24
11:20:44
And I think the Court even made some statements along

11:21:03
So I typically would not want to raise anything having
22
to do with the Grissoms because I think it is a dead issue and
23
not relevant, but if somebody's going to stand up and argue,
24
whether it be the plaintiffs or whether the Court's inclined to
25
make it an issue, that Sheriff Arpaio or someone at MCSO is out
11:21:20
(857 of 866)
to get you, Judge, and that's why the Grissom investigation was
conducted, as opposed to receiving an independent e-mail out of
nowhere from Ms. Grissom with some information about the Court,
that's what started it, if there's going to be someone even
trying to cast a shadow on MCSO that we're out to get the
Court, we've got to address that issue, so that's my concern
there.
8
9
THE COURT:
11:21:41
Then if you feel like you want to leave
the Grissom investigation open, you can leave it open.
10
don't -- you know, you have the right to do whatever you want
11
and I'll rule on it when it comes up.
12
MR. MASTERSON:
Well, I guess I'll ask the Court:
In
13
the Court's mind, is this an issue of concern, that
14
Sheriff Arpaio conducted the Grissom investigation to get you?
15
THE COURT:
I believe that I'm going to, in this
16
case -- well, I believe what I said is that I think it reflects
17
an attitude, a potential attitude -- I haven't ruled on any
18
facts or evidence -- about how the MCSO may have received the
19
Court's orders, and what it wanted -- and I think that is
20
possible.
21
anything personal about it, but if you feel like there is that
22
issue, there is that implication, you can leave open your
23
assertion that you need to put in something from the Grissom
24
investigation.
25
11:21:57
So if you feel like -- I don't know that there was
Because I can't really rule in the absence of facts.
11:22:16
11:22:38
11:22:54
(858 of 866)
I have no idea.
if I'm talking about contempt of the Court's orders, it does
seem to me that, for example, I'll offer a hypothetical that
seems to me possible under the facts of this case.
But I think that my comments were that it --
Sheriff Arpaio's susceptibility to ridiculous
11:23:15
suggestions by others might indicate attitudes about the Court
and its orders and a desire not to comply with them.
not; I'm open to considering that.
possible hypothetical that may have some relevance, you feel
It might
But if, because that is a
10
like you need to raise the Grissom investigation for some
11
purpose or other that you think may be relevant, I understand
12
that, and you can attempt to raise it at the time.
13
14
MR. MASTERSON:
Thank you, Judge.
11:23:35
I think you've
educated me enough that we can make decisions on that issue.
15
THE COURT:
Okay.
16
UNIDENTIFIED SPEAKER ON TELEPHONE:
17
THE COURT:
18
We've just heard something from somebody who's on
11:23:52
(Indiscernible).
Hello?
19
telephonically.
I assume that you didn't want to be heard.
20
you want to be heard, you'd better speak up now.
21
Anything else?
22
MR. MASTERSON:
Okay.
Next issue.
If
In the May 14,
23
2015 transcript, the Court referred, at pages 43 and 44, to 50
24
or so documents that were shown to the Court by the monitor.
25
THE COURT:
Would you like those?
11:24:10
11:24:30
(859 of 866)
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DATED at Phoenix, Arizona, this 24th day of August,

2015.
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s/Gary Moll
(860 of 866)
EXHIBIT 34
(861 of 866)
3
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9

et al.,
Plaintiffs,
vs.
Defendants.
)
)
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)
)
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)
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)
Phoenix, Arizona
August 28, 2015
9:38 a.m.
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(Status Conference)
17
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Court Reporter:
Gary Moll
(602) 322-7263

(862 of 866)
able to overcome the privilege, in light of the circumstances,
but the tests in the case they gave you last week and several
others, they're sort of laid out.
So I guess what I was shorthanding is if you're going
to ask for things that I would at least think might be
privileged, I would ask you to set forth what it is you want;
why you want it; and why you think, to the extent the privilege
might apply, that you're entitled to receive it.
10:12:53
I don't mind doing those ex parte, but I think that
10
it's probably wise we be as clear as we can and -- when I said
11
"ex parte" I didn't mean "ex parte."
12
expedited.
13
MR. MASTERSON:
14
THE COURT:
I don't mind doing those
Right.
But I think we need to be as clear as we
15
can so that everybody knows what the basis of my rulings are,
16
what the basis of your request is, and so we can proceed
17
in clarity.
18
MR. MASTERSON:
19
I've got one more that I hate to bring up but I have
20
to:
10:13:11
Fair enough.
Somewhere between 61 and 65 more IDs showed up.
21
THE COURT:
22
MR. MASTERSON:
10:13:26
10:13:52
Okay.
An IA number's been pulled.
The
23
investigation has been started.
I believe the monitors have
24
been informed.
25
provided to plaintiffs either by the monitors or by counsel.
Copies of the IDs have been made and will be

10:14:12
(863 of 866)
The investigation into it, at this point I know one
person has been interviewed as of Wednesday afternoon.
haven't follow up since Wednesday afternoon to see where the
investigation was headed from there.
to be interviewed was out of town, not available till next
Monday.
other than that the IDs showed up, we've got them, we've made
copies, we've given information to the monitors, and we're
going to give that to plaintiffs either through the monitors or
10
11
12
13
I know one other person
So I can't give the Court any further information
directly, and an IA has been commenced on the issue.

THE COURT:
Thank you.
10:14:55
Were any of them involving
members of the plaintiff class?

MR. MASTERSON:
I certainly can't tell you whether
14
there are members of the plaintiffs' class.
15
that I have been informed -- I have not seen any of them, and I
16
have not even talked to anyone who has seen them, but my
17
information is that there are a number of IDs with Hispanic
18
last names.
19
10:14:38
THE COURT:
All right.
Thank you.
I can tell you
I appreciate and
20
expect your forthcomingness in this -- in this matter and
21
others, but appreciate it.
22
MR. MASTERSON:
23
THE COURT:
24
MR. WALKER:
25
THE COURT:
10:15:06
10:15:22
And that's a wrap for me, Judge.
All right.
Thank you.
Mr. Walker?
Nothing further, Your Honor.

Mr. Como?
10:15:37
(864 of 866)
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DATED at Phoenix, Arizona, this 2nd day of September,

2015.
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s/Gary Moll
(865 of 866)
EXHIBIT 35
(866 of 866)

15-72440 #11 Plaintiffs' Opp To Motion To Stay

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15-72440 #11 Plaintiffs' Opp To Motion To Stay

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(1 of 866)

Case: 15-72440, 09/03/2015, ID: 9672081, DktEntry: 11-1, Page 1 of 29

Attorneys for Plaintiffs-Appellees

Jorge Martin Castillo

Petitioners Fail to Show Likelihood of Success on the Merits. ..................... 8

The District Court Correctly Declined to Recuse Itself in 2012. ......... 9

Petitioners Recusal Motion Was Untimely in the District

Petitioners Assertion That the District Court and His Spouse

As Plaintiffs Should Not Be Allowed To Manufacture A Basis

Petitioners Assertions Regarding Extrajudicial Investigation

The District Court Has Authority to Modify the Monitors Role

Petitioners Will Not Be Irreparably Injured Absent a Stay. ......................... 19

A Stay Would Substantially Injure the Plaintiffs Class by Further

The district court considered abundant evidence relating to Petitioners contempt

1117 (Ex. 19).

Petitioners Fail to Show Likelihood of Success on the Merits.

The District Court Correctly Declined to Recuse Itself in 2012.

Petitioners Recusal Motion Was Untimely in the District Court,

Sheriff Arpaio learned of the district court judges brother-in-law

As Plaintiffs Should Not Be Allowed To Manufacture A Basis For

Petitioners Assertions Regarding Extrajudicial Investigation

district court in order to perform his function of overseeing Defendants

implement corrective reforms to address MCSOs constitutional violations, that

The District Court Has Authority to Modify the Monitors Role in

In addition to its authority to communicate with the Monitor, the district

The District Court Has Not Denied Petitioners Due Process.

Apr. 23, 2015 Tr. (Ex. 30) 624-660.

Petitioners Will Not Be Irreparably Injured Absent a Stay.

a biased judge, when proceedings would encompass MCSOs internal

A Stay Would Substantially Injure the Plaintiffs Class by Further

contrast, a stay would substantially injure Plaintiffs by further delaying

Dated: September 3, 2015

By /s/ Stanley Young

Date: September 3, 2015

/s/ Stanley Young

Date: September 3, 2015

/s/ Stanley Young

Manuel De Jesus Ortega Melendres, Et Al.

Manuel De Jesus Ortega Melendres, Et Al.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega-Melendres, et al.,)

to file a sur-reply is dismissed as moot.1

certification of their proposed class. (Docs. 416, 420, 421).

1182(a)(6)(A)(i), 1227(a)(1)(B)(C) (2006) (civil provisions regarding admissibility and

at all times, under penalty of a criminal misdemeanor. 8 U.S.C. 1304(e). There is no

to remain in this country. Lopez-Mendoza, 468 U.S. 1032.

Being present in the country without authorization to remain is only a civil

by the Department of Homeland Security, therefore, although he may be subject to

(2009). Stopping a vehicle is usually analogous to a so-called Terry stop;officers

v. McCarty, 468 U.S. 420, 439 (1984).

alien as to his right to be or to remain in the United States. 8 U.S.C. 1357(a)(1).

In considering the totality of the circumstances, however, an officer cannot rely

a relevant factor where particularized or individualized suspicion is required. U.S. v.

unsuspicious behavior, taken together, do not provide a federal immigration officer

reasonable suspicion to conduct a stop. Id. at 932.

perform a function of an immigration officer in relation to the investigation, apprehension,

States. Brignoni-Ponce, 422 U.S. at 884.

have illegally crossed a border in violation of 1325, fraudulently filed an immigration

1304(e), or committed other criminal immigration violations.

crossing a border without authorization, willfully refusing to register, or filing a fraudulent

of the law remain valid.

a person who is in violation of a criminal offense commits a further offence if he transports