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M. Craig Murdy (011016) Craig.Murdy@lewisbrisbois.com

Dane A. Dodd (031084) Dane.Dodd@lewisbrisbois.com
LEWIS BRISBOIS BISGAARD & SMITH LLP
2929 North Central Avenue, Suite 1700
Phoenix, Arizona 85012-2761
Telephone: 602.385.1040
Facsimile: 602.385.1051
Firm email: azdocketing@lewisbrisbois.com
Attorneys for Brian Sands

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, on

behalf of himself and all others similarly
situated; et al.,

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Plaintiffs,
vs.
Joseph M. Arpaio, in his individual and
office capacity as Sheriff of Maricopa
County, Arizona; et al.

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No. 07-cv-02513-PHX-GMS
REPLY IN SUPPORT OF MOTION
REQUESTING LEAVE TO FILE
POST-HEARING BRIEF OR, IN THE
ALTERNATIVE, TO RESPOND TO
PLAINTIFFS RESPONSE IN
OPPOSITION TO CHIEF SANDS
NOVEMBER 20 MEMORANDUM

Defendants.

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CERTIFICATE OF SERVICE

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I hereby certify that on December 24, 2015, I electronically transmitted the

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following REPLY IN SUPPORT OF MOTION REQUESTING LEAVE TO FILE

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POST-HEARING BRIEF OR, IN THE ALTERNATIVE, TO RESPOND TO

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PLAITNIFFS RESPONSE IN OPPOSITION TO CHIEF SANDS NOV. 20

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MEMORANDUM to the Clerks office using the Courts CM/ECF System, and thereby

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served all counsel of record in this matter.

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/s/ Dane A. Dodd

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Plaintiffs argue that Chief Sands has already had a full opportunity to make any

arguments he thinks he needs to make, and for that reason they oppose Chief Sandss

Motion for Leave to File a Post-Hearing Brief or, in the Alternative, to Respond to

Plaintiffs Response in Opposition to Chief Sandss November 20 Memorandum.

Chief Sands was allotted 30 minutes to argue his Motion for Summary Judgment,

address issues raised by the Court in its November 18, 2015 Order, and present closing

argument with regard to 20 days of testimony. An already precarious situation was

exasperated when Plaintiffs presented new arguments and authority in opposition to Chief

Sandss Motion for Summary Judgment for the first time during the November 20, 2015

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oral argument. Chief Sandss counsel attempted to address the new issues raised by

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Plaintiffs counsel by researching the same over the noon recess. Plaintiffs suggestion

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that Chief Sands was provided a full opportunity to make any arguments he thinks he

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needs to make is, at best, specious. Doc. 1598 at 1.

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The fundamental requirement of due process is the opportunity to be heard at a

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meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333

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(1976). Chief Sands respectfully contends that he has not had a meaningful opportunity to

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be heard given what he has at stake a reputation 30 years in the making as a law-abiding

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public servant, his financial ability to continue supporting himself and his family with

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ailing health in his retirement years, and the potential for criminal prosecution. This is

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particularly the case as to the arguments that Plaintiffs made in their Response in

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Opposition to Chief Sands November 20 Memorandum re Order to Show Cause, to which

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Chief Sands has not had any opportunity to respond.

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Chief Sands was ordered to show cause why he should not be held in contempt for

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an alleged failure on his part to take reasonable steps to communicate the injunction to the

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appropriate individuals within MCSO after receiving notice of it from defense counsel.

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See Doc. 880 at 15:8-16. The evidence establishes that Chief Sands communicated the

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preliminary injunction and directed that training and briefing about it be developed and

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distributed via E-Learning and a Briefing Board (both office-wide mediums of

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distribution). See Ex. 213 (Lt. Sousa to Lt. Jakowinicz: I told Chief Sands I would

forward this to you so you can write up a Readers Digest version of the judges order to be

put out Office wide via Briefing Board.); Contempt Hrg Tr. at 1649:24 to 1650:1 (Tim

Caseys testimony that Chief Sands told him on December 23, 2011, he was going to call

Lt. Sousa to tell him the order was on the way via an email from Casey and to get it to the

troops.); 329:3-6 (Chief Sandss testimony that he spoke to Lieutenant Sousa about

getting together with Mr. Casey to put together the training); 334:11-15; Ex. 2540 (Lt.

Sousa to Sgt. Palmer: Per our phone conversation write up a couple of scenarios (right

way and wrong way) based on Judge Snows order to MCSO and your conversations with

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Tim Casey. . . . Once that is done we will get with training reference putting something out

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in E-Learning.); 1650:12-25. HSU was subsequently briefed on the order. Contempt

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Hrg Tr. at 218:5-24; 1816:24 to 1817:12.

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In their Response in Opposition to Chief Sands November 20 Memorandum re

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Order to Show Cause, Plaintiffs make two problematic arguments to which Chief Sands

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has not had an opportunity to respond: a) Chief Sands understood the preliminary

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injunction order and willfully disobeyed it by failing to implement training about the order

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for MCSO personnel most likely to violate it and b) that Chief Sands should be held

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jointly and severally liable for victim compensation. Doc. 1589 at 6:9 to 7:23 and 14:1 to

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15:16.

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Plaintiffs willful disobedience argument makes factual assertions contrary to the

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evidence. For example, Plaintiffs claim that Chief Sands deliberately decided to comply

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with Sheriff Arpaios preference to refrain from notifying all MCSO personnel about the

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order. Doc 1589 at 7:14-15. The evidence shows otherwise. Chief Sands told Sheriff

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Arpaio that he thought all the deputies should be briefed on the injunction, and Sheriff

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Arpaio in turn told him [j]ust brief the HSU deputies because that is what the attorney

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said to do. 261:4-17. However, Chief Sands told Tim Casey he wanted training on the

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order to go out office-wide. Contempt Hrg Tr. at 1650:12-25. He said he was going to

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have Lt. Sousa to get it to the troops, id., and then called Lt. Sousa and talked to him

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about getting together with Mr. Casey to put together the training, id. at 329:3-6. He

felt that [they] put the training into play, along with Tim Casey, regardless of what the

comment was by the Sheriff. Id. at 262:2-4 (emphasis added).

The subsequent emails show the training was being developed for office-wide

distribution via E-Learning. Id. at 328:23 to 329:2; 334:11-15; Ex. 2540. Chief Sands

would have seen the training was being developed and would be distributed office-wide

via E-Learning when he was ccd on Lt. Sousas email sending the scenarios to Tim

Casey. Ex. 2540. But he was not ccd on any of the emails showing the training ran into

problems. Id. In fact, no one came to him to tell him they were having a problem.

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Contempt Hrg Tr. at 334:19-22. Based on Lt. Sousas excellent track record about

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following up on things, he assumed the task had been finished. Id. at 333:19-21; 335:20-

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22. Additionally, when he learned later in October of 2012 that Plaintiffs were claiming the

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MCSO had violated the injunction, he directed an office-wide Briefing Board be sent. See

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Ex. 213 (Lt. Sousa to Lt. Jakowinicz: I told Chief Sands I would forward this to you so

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you can write up a Readers Digest version of the judges order to be put out Office wide via

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Briefing Board.).

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Plaintiffs seem to argue, or at least imply, that Chief Sands understanding of the

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order is evidence that he willfully disobeyed it. This assumes that Chief Sands not only

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had the power to but also the duty to brief those under him on his own interpretation of the

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order, rather than doing as he actually did, which was to have the appropriate MCSO

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personnel meet with attorney Tim Casey so that he, a trained attorney, could properly

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explain the order. Their assumption proves false Chief Sands did not have such power.

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The Sheriff did not grant him the authority. Chief Sands discussed his understanding of

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the order with Sheriff Arpaio, and the Sheriff disagreed with Chief Sands view of the

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order. Contempt Hrg Tr. at 1957:12-13. He instead told Chief Sands that the Sheriffs

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Office would do what the attorney said to do. Id. at 261:4-17. Chief Sands did what

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was within his power to do by having HSUs commanding officer confer with the attorney.

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Plaintiffs argue that Chief Sands should be held jointly and severally liable for

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victim compensation. Doc. 1589 at 14:1 to 15:16. They include no discussion about how

this would be consistent with the Courts obligation to use the least possible power

adequate to the end proposed. See Spallone v. United States, 493 U.S. 265, 276 (1990).

As far as Chief Sands is aware, this is the first time Plaintiffs have raised any such

argument. Chief Sands should be provided a full and fair opportunity to address it.

Chief Sands should also have the opportunity to address to what extent MCSOs

preliminary injunction violations can be attributed to him even if the Court were to find

that he failed to take reasonable steps to communicate the injunction to the appropriate

individuals within MCSO after receiving notice of it from defense counsel. See Doc. 880

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at 15:8-16. The violations are likely not attributable to him since the problem is not that

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the order was not communicated to the HSU. It was. HSU was briefed on the order.

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Contempt Hrg Tr. at 218:5-24; 1816:24 to 1817:12.

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widespread misunderstanding about what the preliminary injunction prohibited.

The problem stems from a

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In retrospect, Chief Sands appears to have interpreted the order correctly, but when

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he shared his understanding with the Sheriff, the Sheriff disagreed. Contempt Hrg Tr. at

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1957:12-13. The Sheriff said they would instead do what their attorney said to do. Id. at

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261:4-17. Chief Sands thus did what was within his authority to do by having HSUs

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Lieutenants meet with Tim Casey. He had Lieutenant Sousa coordinate with Mr. Casey

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on how not to violate the order. Id. at 1966:2-7. He had Lt. Sousa consult with Tim Casey

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in order to develop training. Id. at 329:3-6. Numerous meetings and discussions resulted

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wherein Lt. Sousa, Lt. Jakowinicz, Sgt. Palmer, and Sgt. Trowbridge all met with Tim

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Casey about the preliminary injunction order. See Ex. 2540; Ex. 213; Ex. 2533; Ex. 2513;

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Contempt Hrg Tr. at 240:13-16; 329:3-24; 333:19 to 336:1; 785:3; 1654:3-6.

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Unfortunately, after all those meetings and discussions, Lt. Sousa, Lt. Jakowinicz, Sgt.

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Palmer, and Sgt. Trowbridge all uniformly misunderstood the order. Contempt Hrg Tr. at

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793:22 to 794:7 (Sousa); 2781-82; Ex. 2252; Contempt Hrg Tr. at 369:21 to 371:8

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(Jakowinicz); 1679:2-22; 460:15-19 (Trowbridge); Ex. 2540 (Palmer (scenario 3)). In

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order to attribute responsibility for this misunderstanding to Chief Sands, one would have

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to assume it would be unreasonable for Chief Sands to rely on MCSOs attorney to explain

the Courts order.

It is not altogether clear where the breakdown in communication occurred, but the

fact that there was one is apparent. Tim Casey explained the order to both Lt. Sousa and

Sgt. Palmer, after which Sgt. Palmer drafted several training scenarios. Ex. 2540; Ex.

2533. Yet Sgt. Palmers scenarios show he thought it was permissible to detain individuals

to turn over to ICE:

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While in the course of writing both citations, the Deputy can

simultaneously place a phone call to ICE to advise them of his suspicion
that the passenger may be an illegal alien in the U.S. If ICE clearly
instructs the Deputy to detain the passenger for subsequent turn over to an
ICE facility or officer, then the Deputy can make the physical detainment of
the passenger based on the directive from ICE.
Ex. 2540. Casey testified that he called Sgt. Palmer after reviewing the scenarios to let
him know scenario 3 was incorrect. Contempt Hrg Tr. at 1790:9-10; 1792:5-12; 1794:811. Sgt. Palmer, however, testified that he never received word back that those scenarios
had been reviewed by any attorney. Id. at 245:4-10 (Palmer). The paper trail does lend
Sgt. Palmers testimony support. Lt. Sousa sent the scenarios to Casey on January 24,
2012, then followed up on February 27, which elicited a response from Casey that he had
not reviewed the scenarios yet but that he would. Ex. 2540. (Sousa: Did you ever get a
chance to look at the scenarios listed below?; Casey: not but I will). An email from Lt.
Sousa to Sgt. Palmer and Lt. Jakowinicz on March 27 indicates Casey had at that time still
not responded. Id. Lt. Sousa testifies that, to his knowledge, Casey never provided a
response regarding his input on the training scenarios. Contempt Hrg Tr. at 787:3-5.
While HSUs commanders did misunderstand the preliminary injunction order, their
understanding was consistent with every written position by Casey on whether they could
contact ICE and detain a person for turnover to ICE. Lt. Sousas testimony and an email
from him responding to a reporters questions in 2012 are consistent in showing that Lt.
Sousa thought (1) that HSU could call ICE so long as it was within the scope of a lawful

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traffic stop or lawful investigation of a state crime, and (2) that once directed to detain an

individual by ICE, MCSOs deputies could detain the individual because at that point it

was ICEs detention. Contempt Hrg Tr. at 793:22 to 794:7; 2781-82; Ex. 2252. This

understanding was mirrored by Sheriff Arpaios testimony at trial on July 24, 2012. Tim

Casey, who elicited the testimony from the Sheriff, asked questions that suggest

knowledge of this procedure:

A.

Well, we still had the authority, pursuant to a legitimate arrest, to

determine that person was here illegally. And then if there was no
state charge to book that person into the jail, we would turn that
person over to ICE.

Q.

And you have that authority today. In any of your law enforcement
actions can you, if you come across someone unlawful, detain them?

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A.

Yes.

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Q.

And what do you do with them?

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A.

We call ICE, and they can pick them up or we deliver the person to
their office.

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At any -- is ICE currently accepting -- when MCSO happens, in law

enforcement operations, to come across people in the country
unlawfully, is ICE accepting people that you turn over?

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I think probably in the last two weeks weve made over 40 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.

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Trial Tr. at 502:14 to 503:2 (Doc. 572) (Jul. 24, 2012). In fact, turning individuals over to

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ICE is something Casey stated was not a violation of preliminary injunction in a post-trial

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brief filed August 16, 2012:

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MCSOs first action upon developing knowledge or reasonable suspicion of

unlawful presence is to contact ICE for it to advise MCSO whether or not it
desires for the person to be detained. Accordingly, the MCSO immediately
contacting ICE about a person reasonably believed to be illegally present in
the United States does not constitute a violation of the Fourth Amendment
or the Courts injunction.

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Defendants Response in Rebuttal to Plaintiffs Post Trial Brief at 17:2-11 (Aug. 16, 2015)

(Doc. 568) (citations omitted). Again in October of 2012, in response to a letter from

Plaintiffs attorney Andre Segura, Casey wrote that this procedure was not a violation of

the preliminary injunction:

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HSU contacted ICE concerning these two individuals reasonably believed

to have illegally entered the United States. ICE advised that it would not
take custody of the individuals but directed HSU to contact U.S. Border
Patrol regarding federal handling and custody of the two individuals. HSU
immediately contacted U.S. Border Patrol Agent Hernandez at Ajo,
Arizona, who directed the MCSO to deliver these suspect to U.S. Border
Patrol at a specified meeting point. Accordingly, there is no violation of
the Courts December 23, 2011 injunction.

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Ex. 2514. Chief Sands thus believes there is sufficient reason to permit him to address
liability apportionment and causation in responding to Plaintiffs joint and several liability
argument.
Plaintiffs argue that if Chief Sands is permitted to comment on matters discussed
during the November 20, 2015, oral argument, they should in fairness be permitted to do
the same. Chief Sands agrees: Everyone should have a full and fair opportunity to be
heard. For that reason, Chief Sands respectfully requests leave to file a brief, whether it be
a post-hearing brief or an opportunity to respond to the arguments in Plaintiffs Response.
DATED December 24, 2015.

LEWIS BRISBOIS BISGAARD & SMITH LLP

By /s/ Dane A. Dodd
M. Craig Murdy
Dane A. Dodd

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