Melendres #1890 - NOV 10 TRANSCRIPT As Filed in ECF 1879 (Status Conference)

Case 2:07-cv-02513-GMS Document 1879-2 Filed 11/11/16 Page 2 of 56
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF ARIZONA
4 Manuel de Jesus Ortega Melendres, )

et al., )
5 )
Plaintiffs, ) No. CV 07-2513-PHX-GMS
6 )
vs. ) Phoenix, Arizona
7 ) November 10, 2016
Joseph M. Arpaio, et al., ) 2:11 p.m.
8 )
Defendants. )
9 )
10
11
12
13
14
REPORTER'S TRANSCRIPT OF PROCEEDINGS
15
BEFORE THE HONORABLE G. MURRAY SNOW
16
(Status Conference)
17
18
19
20
21
22 Court Reporter: Gary Moll

401 W. Washington Street, SPC #38
23 Phoenix, Arizona 85003
(602) 322-7263
24
Proceedings taken by stenographic court reporter
25 Transcript prepared by computer-aided transcription
CV07-2513, Melendres v. Arpaio, 11/10/16 Status Conf. 2
1 A P P E A R A N C E S
3 For the Plaintiffs:

American Civil Liberties Union Foundation
4 Immigrants' Rights Project
By: Cecillia D. Wang, Esq.
5 39 Drumm Street
San Francisco, California 94111
6
American Civil Liberties Union Foundation
7 Immigrants' Rights Project
By: Andre Segura, Esq.
8 125 Broad Street, 18th Floor
New York, New York 10004
9
American Civil Liberties Union of Arizona
10 By: Daniel J. Pochoda, Esq.
By: Brenda Munoz Furnish, Esq.
11 By: Kathleen E. Brody, Esq.
P.O. Box 17148
13 Covington & Burling, LLP

By: Stanley Young, Esq.
14 333 Twin Dolphin Drive, Suite 700
Redwood Shores, California 94065
15
Law Offices of James B. Chanin
16 By: James B. Chanin, Esq.
3050 Shattuck Avenue
17 Berkeley, California 94705
18 Mexican American Legal Defense and Educational Fund

By: Julia A. Gomez Hernandez, Esq. - Telephonically
19 634 S. Spring Street, 11th Floor
Los Angeles, California 90014
20
For the Defendant Maricopa County:
21 Walker & Peskind, PLLC
By: Richard K. Walker, Esq.
22 SGA Corporate Center
16100 N. 7th Street, Suite 140
24
25
1 A P P E A R A N C E S
3 For the Defendant Joseph M. Arpaio and Maricopa County

Sheriff's Office:
4 Jones, Skelton & Hochuli, PLC
By: John T. Masterson, Esq.
5 By: Joseph T. Popolizio, Esq.
By: Justin M. Ackerman, Esq.
6 2901 N. Central Avenue, Suite 800
Phoenix, Arizona 85012
7
Cooper & Kirk, P.L.L.C.
8 By: Charles J. Cooper, Esq.
By: Michael W. Kirk, Esq.
9 1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
10
For the Intervenor United States of America:
11 U.S. Department of Justice - Civil Rights Division
By: Cynthia Coe, Esq.
12 By: Maureen Johnston, Esq.
601 D. Street NW, #5011
13 Washington, D.C. 20004
14 For Executive Chief Brian Sands:

Lewis, Brisbois, Bisgaard & Smith, LLP
15 By: M. Craig Murdy, Esq.
2929 N. Central Avenue, Suite 1700
17 Also present:
Chief Robert Warshaw, Monitor - Telephonically
18 Commander John Girvin, Deputy Monitor- Telephonically
Chief Raul Martinez, Deputy Monitor- Telephonically
19
20
21
22
23
24
25
1 P R O C E E D I N G S
3 THE COURT: Please be seated.
4 THE CLERK: This is CV 07-2513, Melendres, et al., v.
5 Arpaio, et al., on for status conference. 14:11:33
6 Counsel, please announce your appearances.
7 MS. WANG: Good afternoon, Your Honor. Cecillia Wang
8 and Andre Segura from the ACLU for plaintiffs.
9 THE COURT: Good afternoon.
10 MR. YOUNG: Good afternoon, Your Honor. Stanley 14:11:41
11 Young, Covington & Burling, for plaintiffs.
13 MS. JOHNSTON: Good afternoon, Your Honor. Maureen
14 Johnston and Cynthia Coe for the Department of Justice.
15 THE COURT: Good afternoon. 14:11:49
16 MS. BRODY: Good afternoon, Your Honor. Kathy Brody,
17 Dan Pochoda, and Brenda Munoz Furnish from the ACLU of Arizona.
19 MR. CHANIN: Good afternoon, Your Honor. James Chanin
20 for plaintiffs. 14:12:04
21 MR. MASTERSON: Good afternoon, Judge Snow. John
22 Masterson, Joe Popolizio. I also have with me Charles Cooper
23 and Michael Kirk from the law firm of Cooper & Kirk, on behalf
24 of Sheriff Arpaio.
25 MR. COOPER: Good morning, Your Honor. 14:12:22

2 MR. KIRK: Good afternoon.
3 MR. WALKER: Good afternoon, Your Honor. Richard
4 Walker on behalf of Maricopa County.
5 THE COURT: Good afternoon. 14:12:27
6 MR. MURDY: Good afternoon, Your Honor. Craig Murdy
7 on behalf of retired chief executive Brian Sands.
8 May I briefly address the Court?
9 THE COURT: Yes.
10 MR. MURDY: I don't know that I necessarily need to be 14:12:37
11 here, and if the Court does not anticipate that this status
12 conference will involve any issues material to Chief Sands I
13 would ask for leave to be excused from the hearing.
14 I also understand that the Court may not be willing to
15 make such a representation, and in that case I understand 14:12:51
16 completely.
17 THE COURT: Well, I don't know that it's going to
18 involve Chief Sands, but I don't know what the parties may have
19 anticipated by requesting this status conference, so I just
20 guess I'll ask the parties: Is there any belief that anything 14:12:59
21 would involve Chief Sands?
22 MS. WANG: Not from plaintiffs, Your Honor.
23 MR. MASTERSON: No, Judge.
24 MR. MURDY: Thank you, Your Honor.
25 MR. WALKER: No, Your Honor. 14:13:13

1 THE COURT: You may go. Thank you.
2 (Mr. Murdy is excused from the courtroom.)
3 MR. MASTERSON: Judge, I apologize. I forgot
4 Mr. Ackerman in the back.
5 THE COURT: We do have parties on the phone, I 14:13:22
6 believe.
7 CHIEF WARSHAW: Yes. Good afternoon, Your Honor.
8 This is Chief Warshaw.
9 COMMANDER GIRVIN: Good afternoon, Your Honor.
10 Commander Girvin is on the phone. 14:13:35
11 CHIEF MARTINEZ: Good afternoon, Your Honor.
12 Chief Martinez on the phone also.
13 MS. GOMEZ: Good afternoon, Your Honor. Julia Gomez,
14 MALDEF, for plaintiffs.
15 THE COURT: Is that everyone? 14:13:49
16 All right. Ms. Wang.
17 MS. WANG: Thank you, Your Honor.
18 Your Honor, plaintiffs requested the status conference
19 today because, as the Court knows both from plaintiffs'
20 briefing on the civil contempt remedies and from the monitor's 14:14:07
21 last two quarterly reports, the defendants are not in
22 compliance with the Court's first supplemental injunction of
23 October of 2013.
24 THE COURT: You can take your seat till I'm ready to
25 hear from you. 14:14:22

1 MR. COOPER: I do have an objection, Your Honor, to
2 the proceedings that I'm witnessing, if I --
3 THE COURT: Okay.
4 MR. COOPER: -- may register it.
5 THE COURT: You may. 14:14:31
6 MR. COOPER: Thank you.
7 Your Honor, may I approach the podium?
8 THE COURT: No, you can say it from there. Ms. Wang's
9 at the podium.
10 MR. COOPER: Very well. Again, Charles Cooper, Your 14:14:40
11 Honor, for the putative movants before the Court, who have
12 placed before the Court motions that include a request that all
13 proceedings before this Court involving Your Honor and the
14 monitor be suspended pending resolution of those motions.
15 THE COURT: Well, let me ask, Mr. Cooper, I didn't see 14:15:02
16 your motion as an emergency motion.
17 Did you intend to bring it as an emergency motion?
18 MR. COOPER: Well, it -- by its nature, Your Honor, I
19 would suggest to you it's an emergency motion in the sense that
20 it raises a question about the qualification of the Court and 14:15:22
21 of the monitor to continue proceedings.
22 THE COURT: Well --
23 MR. COOPER: From this -- from the point of the filing
24 of it forward.
25 THE COURT: I understand, and I understand the 14:15:36

1 importance of the motion. Let me share with you some thoughts
2 I have on that, Mr. Cooper, and see what your responses are.
3 If I understood Ms. Wang, she was talking about the
4 first supplemental injunctive relief. That was ordered before
5 there was ever a monitor in this case. So even assuming that 14:15:50
6 you -- your motion had merit, how would that involve the first
7 supplemental injunction?
8 MR. COOPER: Your Honor, to whatever extent there are
9 proceedings to go forward in this case, our motion would apply
10 to all of them, given the grounds that we have articulated for 14:16:15
11 the Court's recusal, recusal from the --
12 THE COURT: Okay. Well, you've stated your objection.
13 I understand it. I haven't made any rulings yet. So why don't
14 we hear what Ms. Wang has to say.
15 MR. COOPER: Very well, Your Honor. 14:16:35
16 MS. WANG: Thank you, Your Honor. I'll continue with
17 what I was about to say, and then I'll briefly address what I
18 took to be Mr. Cooper's objection.
19 As I was saying, as the Court knows from both the
20 briefing that plaintiff submitted on the civil contempt remedy 14:16:49
21 and from the monitor's past two quarterly reports, the
22 defendants are out of compliance, have missed compliance
23 deadlines with the Court's first supplemental injunction of
24 October of 2013.
25 As to some paragraphs, Your Honor, that we think are 14:17:02

1 critical to protecting the plaintiff class from evidence of
2 what is ongo- -- what is evidence of ongoing biased policing by
3 the Maricopa County Sheriff's Office, they are more than two
4 years past the Court's deadline that was imposed as of October
5 2nd, 2013. 14:17:25
6 When we raised this, Your Honor, I'm sure you'll
7 recall back during the proceedings on the proper civil contempt
8 remedy you indicated that we should ask for a status
9 conference. We have attempted to meet and confer with the
10 defendants on these -- the matter of deadlines for their 14:17:39
11 compliance with the first supplemental injunction since June,
12 and, frankly, have reached an impasse.
13 Our concerns about the lack of ongoing compliance --
14 for example, with the Court's order that they put into place an
15 early identification system to identify officers who are 14:17:57
16 outliers who have indicia of biased policing -- those concerns
17 have been heightened since we have learned that MCSO's own
18 traffic stop data analysis shows that biased policing continues
19 at the Maricopa County Sheriff's Office.
20 Plaintiffs' view also is that MCSO's response to the 14:18:18
21 results of their own data analysis of traffic stops has not
22 demonstrated an adequate level of concern and attention to
23 addressing what appears to be biased policing in the agency.
24 So we requested the status conference, Your Honor, at
25 your suggestion from back in May, and Mr. Segura is prepared to 14:18:40
1 make a presentation on what specific deadlines we are asking
2 the Court to reset on specific paragraphs of the first
3 supplemental injunction.
4 THE COURT: Did I request a status conference, or did
5 I invite you to file another order to show cause? 14:18:58
6 MS. WANG: I believe as to the matter of deadlines,
7 you did suggest that we request a status conference in the
8 first instance.
9 THE COURT: All right. Deadlines as they pertain to
10 what? 14:19:08
11 MS. WANG: I'll defer to Mr. Segura, if that's all
12 right with Your Honor.
13 THE COURT: Well, just a minute, though. Before I get
14 to that, do the deadlines pertain to the EIS --
15 MS. WANG: Yes, Your Honor. 14:19:21
16 THE COURT: Implementation of the EIS system?
17 MS. WANG: Yes, Your Honor.
18 THE COURT: Before we get to that, you said you would
19 address what Mr. Cooper's concerns were. Do you want to get to
20 that first? 14:19:32
21 MS. WANG: Sure, Your Honor. I can do that briefly.
22 The defendants have filed a motion for leave to file a
23 recusal motion. They've also filed a motion for leave to file
24 a discovery motion. We have responded in writing to those two
25 motions. 14:19:48
1 Your Honor, the defendants have not, until now, asked
2 that all proceedings in this case immediately cease pending the
3 disposition of that recusal motion, and plaintiffs' view is
4 that they have shown no basis for the Court to suspend all
5 compliance with the first supplemental injunction. 14:20:09
6 Your Honor, if they did make such a motion, I believe
7 that the Court's traditional equitable stay standard would
8 apply. As you know, the standard would be first whether the
9 stay applicant has made a strong showing that he's likely to
10 succeed on the merits; second, whether he will be irreparably 14:20:25
11 injured absent a stay; third, whether issuance of a stay will
12 substantially injure the other parties; and fourth, the Court
13 should consider where the public interest lies.
14 The defendants have not brought forward such a motion.
15 They have not made any showing whatsoever. And Your Honor, we 14:20:44
16 would submit that under that standard, the Court should go
17 ahead and consider and rule on the request we have for the
18 resetting of deadlines.
19 The recusal motion is time barred, it is waived, it's
20 frivolous, it fails on the merits, it's patently untimely, and 14:20:59
21 appears to be calculated for strategic gain in their efforts to
22 delay compliance with the Court's first supplemental injunction
23 dating back to October of 2013, and the plaintiff class is
24 suffering ongoing serious harms because of delays in the
25 implementation and compliance with the Court's first 14:21:21

1 supplemental injunction.
2 THE COURT: All right.
3 Mr. Segura.
4 MR. SEGURA: Good afternoon, Your Honor.
5 THE COURT: Let me just tell you, Mr. Segura, before 14:21:46
6 you start, I don't have a motion to stay in front of me. It
7 does seem to me like your counsel's laid out the appropriate
8 standard. But if in May I indicated to you that I invited a
9 status conference, let me tell you what my hesitancies are at
10 this point. 14:22:07
11 I do not object to considering changing the deadlines,
12 particularly since some of the deadlines have been so
13 egregiously blown. However, before I would do that I would
14 want to do that based on briefing, and not some sort of oral
15 presentation. I'd want to be able to have the -- get the 14:22:34
16 monitor's input on, for example, on the EI- -- when the first
17 supplemental motion was entered, there was no monitor. I would
18 like to get the monitor's input on the extent to which, if any,
19 the sheriff has cooperated and has dealt with impediments to
20 the deadline that were not sheriff-imposed, if any. 14:22:55
21 And so you can set forth what you want to set forth --
22 Mr. Masterson or Mr. Cooper, I'll hear you if you want to
23 respond -- but I'm not going to be doing any changing of
24 deadlines today.
25 It also seems to me -- and I haven't researched this, 14:23:15

1 so I may be wrong -- but it seems to me that under the federal
2 rules, since Sheriff Arpaio was sued in his official capacity,
3 that it will, when his office changes, become Sheriff Penzone
4 by virtue of the operation of the federal rules.
5 Does anybody disagree with that? 14:23:29
6 MR. MASTERSON: No, Judge. I think Rule 25 is the one
7 that takes care of that.
8 THE COURT: Yeah, it will be the party defendant.
9 And it seems to me that in a time of transition,
10 Sheriff Penzone may well have different policies and procedures 14:23:42
11 than Sheriff Arpaio does. So, for example, if we're talking
12 about deadlines and we're talking about the original
13 supplemental relief -- and I'm just throwing some things out
14 here -- Sheriff Penzone -- whereas Sheriff Arpaio wanted no
15 part of the Court's original community outreach order, wanted 14:24:01
16 no part of the CAD, wanted no part of being responsible for
17 conducting community meetings, I do not know what Sheriff
18 Penzone's position may be on that, and if he is in favor of
19 assuming those functions, that may relieve the monitor of some
20 obligations, and it may require further clarification or 14:24:19
21 changes to the original supplemental order.
22 So if we're going to do them, it seems to me that we
23 ought to consider -- and I am not trying to downplay that
24 Sheriff Arpaio remains the Sheriff of Maricopa County for as
25 long as he remains the Sheriff of Maricopa County. But it 14:24:37

1 seems to me that in a time of transition, we ought to give the
2 new sheriff a reasonable amount of time to anticipate what his
3 policies may or may not be with respect to the injunctive
4 relief in this lawsuit that may or may not be different than
5 Sheriff Arpaio's positions. 14:24:53
6 So with all that being said, I mean, I hate to have
7 you get all dressed up and have nowhere to go, I'll certainly
8 be willing to listen to what you want to have to say but I'm
9 not going to change any deadlines today.
10 And Mr. Cooper, if you wish to file some sort of a 14:25:08
11 motion for stay, I suppose that will also give you time to file
12 the motion for stay if you wish to have that done. It may be
13 in your present briefing, I don't know, but I didn't see any
14 emergency order.
15 MR. COOPER: Your Honor, I think there may be some 14:25:24
16 confusion in minds of counsel for the plaintiffs in terms of
17 what it is exactly we've asked for. We have not sought a stay
18 of any of the Court's orders. We accept the orders. They're
19 in place. They govern the MCSO. The MCSO will continue to
20 comply with them or strive in their efforts to comply and to 14:25:50
21 come into compliance with -- with them.
22 What we've asked for in connection with our pending
23 motions is that all proceedings be suspended: proceedings
24 before the Court; proceedings by the monitor --
25 THE COURT: Well -- 14:26:11

1 MR. COOPER: -- because -- because of the nature of
2 the -- of the request that's been made.
3 THE COURT: All right. Well, I guess --
4 MR. COOPER: And if -- forgive me, Your Honor.
5 THE COURT: No, that's all right. I didn't mean to 14:26:21
6 interrupt you.
7 MR. COOPER: My only further point is when the earlier
8 motion of this kind was filed, the Court will remember, I'm
9 sure, that the Court concluded that it could not proceed, and
10 it did suspend proceedings until that motion had been teed up 14:26:34
11 for the Court's full consideration and resolved.
13 MR. COOPER: And that -- it's that process, I guess,
14 Your Honor, that we're suggesting ought to take place now --
15 THE COURT: All right. 14:26:48
16 MR. COOPER: -- in light of this.
17 THE COURT: Well, let me tell you, Mr. Cooper, to the
18 extent that that is your motion, it is denied without
19 prejudice. In other words, if you wish for me to stay any
20 proceedings of this Court -- and maybe I've misunderstood you, 14:26:58
21 too -- but if you wish for me to stay any proceedings of this
22 Court or the monitor, it seems to me that we're in a
23 significantly different posture than we were when this was
24 previously discussed, and I'm not going to have, in light of
25 the relief that has been ordered -- and again, you may not have 14:27:18
1 thought about it, and maybe you have -- but there was a
2 significant and probably the greater part of relief that I
3 ordered in this case before a monitor was ever appointed.
4 I am not simply -- I did require the appointment of a
5 monitor, and there have been a number of programs that have 14:27:32
6 been required that are going forth, and I'm not going to
7 suspend the monitor's operation. And because so many of those
8 things require the ongoing decisions of this Court, I am not
9 also going to suspend my operations.
10 However, just based on your oral motion, if that is 14:27:49
11 something you wish to brief, you may brief it. You may brief
12 any request that you have that I stay any proceedings pending a
13 decision on this case. But it does seem to me Mr. Masterson
14 and I discussed the monitor's discussion a year and a half ago
15 when we were in discovery, when we were in a period of 14:28:12
16 discovery prior to the suit, and I identified for him what I
17 would like to have him identify to be careful of other concerns
18 that may exist. No such discovery was sought, and so we
19 proceeded for a very great length of time having hearings,
20 entering orders, proceeding with remedies. 14:28:32
21 That doesn't mean that perhaps I shouldn't consider
22 your motion, but I'm not going to simply do that any more than
23 I'm going consider the motions that Mr. Segura might have
24 today, granting them just off the top of my head.
25 So to the extent that you are making any such oral 14:28:51
1 motion, it is denied without prejudice to you seeking to do --
2 to supplement it, supplement your motion with a motion to stay.
3 And while we're on that motion, we might as well deal
4 with some of the housekeeping measures. You filed document --
5 or docket 1853, which was a request for your motion to have 14:29:15
6 excess pages. There was no objection by any of the plaintiffs
7 or plaintiff-intervenors that I saw, and so I'm going to grant
8 your motion and allow the --
9 Let's see. Did you lodge the motion?
10 MR. COOPER: Yes, Your Honor. 14:29:34
11 THE COURT: Okay. So I'll direct you -- I'll direct
12 that the motion be filed with excess pages.
13 Plaintiffs and plaintiffs-intervenors also asked for
14 excess motion -- excess pages in response, and that will be
15 granted. 14:29:45
16 You have also filed a leave to file motion for
17 discovery. Plaintiffs and plaintiff-intervenors have objected
18 to that motion, indicated they would respond to it, but think
19 that the motion is inappropriate because the defendants failed
20 to comply with Local Rule 7.2(j). 14:30:02
21 I didn't see any compliance with Local Rule 7.2(j).
22 Was there any, Mr. Masterson, since you know the local rules
23 and Mr. Cooper may be less familiar with them?
24 MR. MASTERSON: Your Honor, I believe that issue was
25 addressed in a footnote in the motion, and the reason -- it was 14:30:19

1 our thought that the -- that particular local rule did not
2 apply, in that the relief sought is not something the parties
3 could agree on, but, rather, would be left to the Court to
4 decide whether such discovery would occur. So there was really
5 nothing for us to discuss with the parties because the 14:30:39
6 plaintiff did not have the authority to grant the relief that
7 we are requesting in the motion.
8 THE COURT: Well, I haven't yet read your motion, but
9 it did -- I am familiar with 7.2(j), and it did seem to me that
10 it wouldn't be surprising -- and I sort of direct this to the 14:30:55
11 plaintiffs -- it wouldn't be surprising if -- even if
12 defendants had complied with the rule, and I think they were
13 obliged to comply with the rule, there wasn't going to be any
14 agreement.
15 Are the plaintiffs going to -- do the plaintiffs 14:31:10
16 foresee or the plaintiff-intervenors foresee any possible
17 ground of an agreement as it pertains to discovery
18 post-hearing?
19 MR. SEGURA: No, Your Honor. We would not have, I
20 believe, any one issue that, having read the lodged motion, 14:31:23
21 it's not clear, for example, on the scope of discovery. I
22 think that's one thing that, you know, we would have at least
23 given our position on if they had in some way attempted to
24 limit the scope or direct the scope of discovery, but it's
25 likely not something that we would have been able to resolve. 14:31:43
1 THE COURT: Ms. Coe?
2 MS. COE: One brief comment relating to that, which is
3 that normally you do get to see the discovery that's being
4 sought, so I think we would have wanted to see what they're
5 proposing so that we could discuss it. 14:31:57
6 THE COURT: Do you have discovery identified that
7 you're seeking, Mr. Cooper?
8 MR. COOPER: Your Honor, once the Court takes up our
9 motion for leave for discovery, we will certainly identify the
10 discovery that we believe is necessary. 14:32:07
12 MR. COOPER: It will be at that time that the parties
13 can either resolve those issues, and I'm sure they -- they will
14 not be able to be resolved before they're brought to the Court.
15 But our motion was simply for leave to take the 14:32:22
16 discovery.
18 MR. COOPER: -- the Court permit this discovery to be
19 taken, and as counsel for plaintiffs has conceded, it was very
20 clear -- to us, anyway -- that any consultation would have been 14:32:40
21 futile, and not only has that been admitted here, it was
22 admitted in their papers in which they oppose it, because they
23 said they will oppose discovery, so --
24 THE COURT: And let me just ask, it does seem to me
25 that to the extent you're asking for me to just indicate that 14:33:00
1 I'm going to authorize all discovery, I'm not going to do that.
2 But it may be, as I told Mr. Masterson, that depending upon the
3 request, your request is appropriate. So if you have specific
4 requests, I don't think Ms. Coe's request suggests that 7.2(j)
5 would be futile. So I think you do need to give her those 14:33:20
6 requests, and I'm denying the motion, I'm denying your motion
7 1855 without prejudice to your consultation with the parties
8 regarding what discovery it is you're seeking.
9 MR. COOPER: Very well, Your Honor.
10 THE COURT: All right. So I'm granting 1853 and that 14:33:37
11 motion may be filed, directing that it be filed.
12 As to 1855, I'm denying the motion without prejudice
13 to your consultation with plaintiffs and plaintiff-intervenors
14 with respect to the discovery you're seeking.
15 As it pertains to -- oh. The other one is just the 14:33:54
16 deadline motion.
17 MR. SEGURA: Your Honor, may I raise one issue with
18 the motion for recusal before we --
19 THE COURT: Yeah.
20 MR. SEGURA: -- move off that? 14:34:10
21 Now that it has been lodged, we would like to request
22 additional time to respond. I believe we have 14 days after
23 today. We've spoken to counsel about an agreed-upon date by
24 which we can respond. It is a substantial motion with a lot of
25 record evidence, and we have requested until December 16th. 14:34:26

1 THE COURT: Any objection?
2 MR. COOPER: Your Honor, we did object at the time
3 when the request was made counsel to counsel. I would note
4 that plaintiffs have had now 14 days to study the motions that
5 have been -- were lodged and now filed, and it is our request 14:34:47
6 that these matters be argued up, briefed and argued up as
7 quickly as we responsibly can.
8 THE COURT: So you would not grant any extension.
9 MR. COOPER: I beg your pardon?
10 THE COURT: You wouldn't -- you're opposed to any 14:35:08
11 extension?
12 MR. COOPER: Well, Your Honor, a reasonable extension,
13 certainly I can't imagine that now, 14 days after they have
14 the -- have the motion, they need more than another 14 days to
15 put in a mo- -- put in a response, or perhaps, at most, three 14:35:22
16 weeks.
17 THE COURT: The motion's granted, and I will give you
18 till December 16th to file the response, and then do you need
19 additional time for reply?
20 MR. COOPER: Your Honor, I don't anticipate that at 14:35:38
21 the moment, but once we see their response, we may want to come
22 back to you.
23 THE COURT: All right. You can do that at that time,
24 unless you can agree on -- on that as well. So don't come back
25 to me if you can reasonably afford an extension of time for the 14:35:53

1 defendants to reply.
2 MR. SEGURA: Yes, Your Honor.
3 THE COURT: Mr. Walker?
4 MR. WALKER: Just a quick question, Your Honor.
5 May I assume that the deadline for the County's 14:36:10
6 response would also be extended as it has been to plaintiffs?
7 THE COURT: Yes.
8 MR. WALKER: Thank you.
9 MR. SEGURA: Yes, Your Honor. You earlier mentioned
10 that there may be some change in what the new sheriff may want 14:36:32
11 to focus resources on. There are also things in the first
12 supplemental injunction that will not change and will have to
13 be -- and the next sheriff will be bound by after January 1st.
14 The buckets that are currently outstanding that are --
15 are the most pressing deal with data analysis, data collection, 14:36:56
16 and EIS, as you mentioned. Those will continue January 1st.
17 We're at a very critical time where MCSO is putting a lot of
18 resources into developing the EIS. We have additional thoughts
19 of what's necessary to reach compliance by a reasonable date.
20 And we've spent a considerable amount of time now meeting and 14:37:19
21 conferring since -- since May 31st, and we've -- we have hit
22 some -- some roadblocks.
23 So that's just one thing that I'll say on that. I'm
24 happy to go through any of that. I think the primary
25 contention right now is that we would like a date by which 14:37:34

1 there will be complete compliance with EIS, as Your Honor set
2 with the first injunction. That's now passed by two years.
3 Once that date is set we want MCSO to develop a
4 compliance plan, sort of a project management plan, by which
5 they're going to be able to reach that ultimate deadline, and 14:37:56
6 we've asked for their input on what that deadline would be. We
7 have thoughts on that.
8 So that's one very pressing issue. That work is
9 happening now. It's going to continue for the next -- for the
10 next two months, so I'll just advise you of that. 14:38:08
11 The other pressing issue that Ms. Wang referenced was
12 MCSO's responses to recent indicia of biased policing both on
13 an agency-wide level as well as with respect to individual
14 deputies.
15 We now have the second ASU report that has been shared 14:38:30
16 with the parties and with the monitor. That has a lot of the
17 same conclusions as the first report, which I believe have been
18 disclosed to Your Honor, both in the -- in the monitor's
19 quarterly reports and in the report itself.
20 Our concern right now is with the lack of attention to 14:38:49
21 it at this moment. We need and have requested a date by which
22 MCSO plans to intervene and develop a plan to intervene, not
23 only with respect to individual deputies who have been
24 identified as outlier deputies -- and this is something that we
25 went into in detail in our comments to the last quarterly 14:39:10

1 report, which was filed recently. But so not only with respect
2 to individual deputies, but on an agency-wide level, what is
3 going to be the response to address this?
4 This is something they're required to do promptly,
5 pursuant to paragraph 70 of the first injunction. This is 14:39:25
6 really the heart of the case here. It's about the agency's
7 ability to both identify when there may be potentially
8 problematic policing, determine whether there is in fact a
9 problem, and then figure out how to intervene. And so we're
10 seeing that, and it's very concerning because we're seeing that 14:39:49
11 not only with respect to individual deputies, but on an
12 agency-wide level.
13 This information has now been available to MCSO since
14 February of this year. That's a, you know, substantial amount
15 of time for them to have acted on it. They are making some 14:40:04
16 progress by working with the monitor as to the deputies who
17 were identified in the first report, but we're now looking at a
18 second report that's continuing with this concerning trend, so
19 we have asked for a date by which they will develop a plan,
20 allow the monitor and the parties to provide input on that, so 14:40:25
21 that we can go forward and address those issues.
22 So I understand the reluctance to move forward on
23 deadlines right now, given that there will be a change, but
24 this is something that has been very concerning to us and is a
25 pressing issue. 14:40:43

1 THE COURT: All right. So define it for me again. We
2 have what that you want?
3 MR. SEGURA: So there are -- so there have now been --
4 so the, just to go back, the first report that was conducted by
5 Arizona State University was provided to plaintiffs in April. 14:40:56
6 We immediately raised concerns that there were deputies who had
7 been identified as outliers in stops and other contacts in
8 terms of disparities in contact with -- with racial minorities.
9 We raised those concerns. We asked what the plan was. MCSO
10 initially resisted doing anything, citing potential data flaws. 14:41:22
11 The monitor rejected those concerns and asked them to move
12 forward.
13 After much pressing on the issue, MCSO finally in July
14 made some effort to intervene with these individual deputies.
15 It was not a success. This is something that we detailed in 14:41:41
16 our last comments. And they are now engaging with the monitor
17 through technical assistance to address these individual
18 deputies.
19 During that time the second report was released --
20 that was released two or three weeks ago; I think we got the 14:42:01
21 final report a couple of weeks ago -- and it again demonstrates
22 that there is an agency-wide problem, a statistically
23 indicative agency-wide problem with biased policing.
24 There are additional deputies who are identified as
25 outliers. And this is not a small number. The first report 14:42:21
1 identified 70 deputies as outliers, statistical outliers. This
2 next report identifies even more.
3 So we're highly concerned with the -- with the
4 responsiveness to these issues. We think that this -- this is,
5 you know, really, the main focus of this, has been one of the 14:42:40
6 main focuses of this case. It needs to be addressed. There
7 needs to be a plan. So that's something that we had e-mailed
8 counsel about to see if we could come up with dates and a plan.
9 We have not heard back.
10 And so while, like I said, I understand wanting to 14:42:56
11 wait until, you know, we hear from Mr. Penzone, I think this is
12 something that is very critical and does need to be addressed
13 now.
14 THE COURT: All right. If I understand it, you're
15 saying with respect to the deputies that have been identified 14:43:12
16 as outliers in terms of their disparately racial treatment, you
17 want action now.
18 MR. SEGURA: Yes.
19 THE COURT: Mr. Masterson.
20 MR. MASTERSON: Well, Judge, I'm not sure exactly 14:43:24
21 where to start here. I guess we'll talk about the first ASU
22 report to begin with. There already has been intervention with
23 the individual outlying deputies with respect to the first ASU
24 report. There was some questions about how that was done and
25 the efficacy of the method in which that was done and the 14:43:58
1 monitors expressed concerns about how that was done.
2 So the question became: Well, do we do it again? And
3 I think one of the monitors, at least, has -- has voiced the
4 opinion that, Well, maybe it's not such a great idea to go
5 through that process again. Since it deals with data that 14:44:17
6 occurred more than two years ago, why don't we move forward
7 into the second ASU report? So I think those issues are still
8 being considered by the monitors.
9 Now, with respect to the second ASU report, my
10 understanding is it's still in draft, it's not in final form 14:44:32
11 yet, but will be completed in December. But at any rate,
12 technical assistance meetings occurred this very week on Monday
13 and Tuesday with the monitor, certain of the monitors and MCSO
14 personnel, and have, in fact, I believe, agreed on a process to
15 set some -- to develop a rule-based process for the review of 14:44:59
16 the data and what to do with that data that's in the second ASU
17 report.
18 My understanding is that a draft is being developed by
19 MCSO for the monitors on establishing this rule-based process;
20 and secondly, that also MCSO is working on a supervisory review 14:45:18
21 process: If and when we do see outlying deputies, what these
22 supervisors are going to do. What documents should they review
23 in preparation for meeting with the deputies, what topics
24 should be discussed and covered with the deputies, and what
25 documentation needs to be provided by the supervisors before, 14:45:40

1 during, and after these meetings? All of that is in process.
2 All of that was discussed with the monitors as recently as
3 Monday and Tuesday of this week.
4 So this is not being ignored, Judge. We're moving
5 forward with this with the monitor's assistance. 14:45:58
6 THE COURT: Chief Warshaw, are you on the line?
7 CHIEF WARSHAW: I am, Judge.
8 THE COURT: Can you enlighten me at all about what's
9 been going on with respect to these issues?
10 CHIEF WARSHAW: Yes, Your Honor. I don't dispute what 14:46:09
11 either the plaintiffs' or defendant counsel have said here.
12 Both ASU reports have indicated that there has been disparate
13 treatment, there has been considerable concern on our part, the
14 plaintiff and the plaintiff-intervenor's part as to whether or
15 not there has been appropriate intervention. 14:46:33
16 We do not believe that there has been appropriate
17 intervention, but having said that, what Mr. Masterson just
18 stated is correct. We did have a small team there this week
19 working with people from the agency to come up with the
20 appropriate protocols as to how an intervention will take place 14:46:52
21 and what the eventual outcome will be, the outcome being,
22 hopefully, the mitigation of inappropriate behavior.
23 As a result of that, I'm waiting for a report from our
24 own people who were on site who just left, as well as a
25 recommendation that's going to be coming forward from the 14:47:14

1 Maricopa County Sheriff's Office, and I am confident, without
2 in any way diminishing the importance of this issue as
3 Mr. Segura has stated, that we will have an appropriate
4 protocol for intervention on the part of supervisors regarding
5 individual behavior, and on a broader sense, organizational 14:47:37
6 behavior.
7 But that has not occurred as yet, the technical
8 assistance occurred this week, and I believe that we're moving
9 in the appropriate direction.
10 THE COURT: Do you have some time line on when you 14:47:52
11 expect to have that done, Mr. Masterson?
12 MR. MASTERSON: I believe that the dates were provided
13 to the monitor during the technical assistance meeting, Your
14 Honor, but I apologize, I do not have those dates.
15 THE COURT: Do you know what they are, Chief Warshaw? 14:48:08
16 CHIEF WARSHAW: No, I don't. If chief -- Commander
17 Girvin knows, I'd certainly ask him to respond, but no, I do
18 not know the date that was represented by the agency.
19 THE COURT: Have those dates been --
20 COMMANDER GIRVIN: I apologize as well, Judge. We 14:48:27
21 haven't received the report from the team that was there Monday
22 and Tuesday, and yesterday was their travel day, so they just
23 haven't submitted that yet.
24 THE COURT: All right. Well, my suggestion will be
25 this. Get those dates. Give them to plaintiffs and 14:48:40

1 plaintiff-intervenors. Plaintiffs, plaintiff-intervenors, if
2 you have problems with those dates, you can always ask for
3 another status hearing.
4 THE COURT REPORTER: Judge, who was just speaking?
5 THE COURT: Commander Girvin. 14:48:49
6 COMMANDER GIRVIN: Yes, sir. Yes, we can provide
7 those dates to the parties.
8 THE COURT: Okay.
9 Yes, Mr. Segura?
10 MR. SEGURA: I have a few other issues that came up 14:49:11
11 with Mr. Masterson's presentation.
12 THE COURT: Well, let me make sure Mr. Masterson is
13 finished before we hear from you.
14 Mr. Masterson, did you have anything more?
15 MR. MASTERSON: Well, just on the EIS situation is 14:49:19
16 that the plaintiffs and the DOJ plaintiffs-intervenors -- well,
17 first off, I want to make one thing the clear is Ms. Wang got
18 up here and seemed to imply to the Court that we refused to
19 meet and confer with them, and that's just not true. In fact,
20 we had a very lengthy telephone conversation very recently on 14:49:39
21 these very issues, and we met together for five days during the
22 site visit with all the monitors and discussed some of these
23 issues, so I just wanted to clarify that.
24 But with respect to the EIS dates, I guess, they keep
25 seeking, the plaintiffs -- Mr. Segura asked for it during the 14:49:54
1 site visit, Mr. Killebrew asked for it during the site visit,
2 and Commander Girvin said, No, we're not doing it that way.
3 The way we're going to do it is I'm going to give target dates.
4 And we've got a memo to Chief Knight from Commander Girvin
5 setting forth approximately 20 target dates for compliance with 14:50:19
6 the EIS -- compliance with EIS requirements by the Court and
7 the Court's orders.
8 So these dates are established. They keep wanting to
9 micromanage and break these dates further down, and the
10 monitors and we don't feel that that's necessary. We agree 14:50:39
11 with the monitors how we should move forward, and I've got a
12 five-page memo here from Commander Girvin saying, This is the
13 way we're going to do it, and we agree with that, and we're
14 going to move forward on these target dates. So that's our
15 position on the EIS, Your Honor. 14:50:53
16 I don't think I have anything else for you unless
17 Mr. Segura brings up something new.
18 THE COURT: All right. Thank you.
19 Now, Mr. Segura, I haven't hid throughout this action,
20 and it's the basis for Mr. Cooper's motion that I have had 14:51:12
21 consultation with the monitor from time to time. He did inform
22 me that he was meeting with the parties to try to resolve a
23 schedule that would be workable on the EIS issues.
24 You're not bound by anything the monitor agrees with
25 with the defendants, you can always seek a change in that for 14:51:28
1 me, but is what Mr. Masterson -- I mean, what Mr. Masterson has
2 suggested was true, do you have any issue with that?
3 MR. SEGURA: With respect to the monitor's position on
4 the --
5 THE COURT: Right. 14:51:43
6 MR. SEGURA: -- deadline? No, that -- that was
7 stated. I don't think that there was anything -- there was a
8 conclusion made we have shared. The Department of Justice put
9 together a proposed order which basically would reflect a plan
10 to create a compliance plan that's something that we have 14:51:56
11 shared and continued to want to meet and confer about.
12 Mr. Masterson mentioned micromanaging. We do strongly
13 believe that EIS is two years overdue, three years into
14 compliance, and there does need to be more management. We need
15 an ultimate date. Many of the dates that Mr. Masterson 14:52:15
16 referred to from Commander Girvin's memo reflect just the first
17 step along the path to completion of many subparagraphs.
18 We want more than that. We want a project plan. This
19 is a -- a very heavy project. It's something that is going to
20 take -- that is going to take and has taken a lot of resources 14:52:37
21 that MCSO has put in. There are dedicated people working on it
22 but we want more. We want additional guidance for how they're
23 going to get when EIS is up and running. And it is critical
24 that it be up and running, not just as a system, but so that
25 the supervisors are trained on how to intervene when they do 14:52:56

1 receive alerts about problematic policing.
2 That is something that MCSO is simply not capable of
3 doing right now. Supervisors are not trained to do it. We saw
4 with respect to the first report that they were almost
5 universally unable to do an intervention with an indicia of 14:53:13
6 problematic policing properly. So we -- you know, well, we
7 disagree with counsel and believe there needs to be a deadline.
8 THE COURT: You're free to do that. And if I need to
9 revise the order I'll revise the order, on the one hand. But
10 on the other hand, if the Maricopa County Sheriff's Office 14:53:35
11 demonstrates that it is complying rapidly and in good faith, I
12 am not going to require them to do more than they can
13 reasonably do. I don't know which that is at this moment, and
14 so I would suggest that you open up communication lines between
15 yourselves and the monitor to the extent -- much like you have 14:53:54
16 done with the supplemental injunctive orders. To the extent
17 you can agree, agree. To the extent you can't agree, note your
18 disagreement and what your positions are. And then bring them
19 to me and I will have some idea prior to the hearing what the
20 issues are, what may be reasonable, and so will you have some 14:54:14
21 idea so you can let me know what's going on. That would be my
22 suggestion.
23 With respect to, however, if I've understood you
24 correctly, and if you're not disputing this, Mr. Masterson,
25 with respect to those outliers that may be identified both in 14:54:33

1 the first ASU report and the second ASU report, I would expect
2 rapid action to cure whatever the problem is and whatever is
3 necessary to cure that problem, so we don't have ongoing
4 pressing problems in the MCSO that we're aware about their
5 actually existing. 14:54:54
6 So that would be the guidance that I can give you. It
7 sounds like you have been working on a plan. You have a plan
8 pretty much in place. Disclose the dates to plaintiffs, and
9 let's see if we can't push this through and get the immediate
10 problems taken care of while we iron out the other problems, 14:55:07
11 and in a logical way that I'm going to be able to decide
12 something based on what I understand the issues to be instead
13 of trying to react off the hip.
14 Any other questions?
15 MR. SEGURA: Yes, Your Honor. I just would like to 14:55:29
16 briefly circle back on the ASU report. One thing I would just
17 like to point out is my understanding of the technical
18 assistance problem -- process is that that is something that
19 MCSO has voluntarily engaged in doing with the monitor team.
20 They have continued to do so even after this recusal motion was 14:55:44
21 filed. There have been constant communications between them
22 and the monitor and there has been no sense of that slowing
23 down. We want that to continue, but I'd like to point out that
24 there is some disconnect between those two positions.
25 THE COURT: Well, there isn't any more. To the extent 14:56:04
1 Mr. Cooper asked for the monitor to cease his operations -- and
2 I'm not sure he quite asked that -- but to the extent he did
3 ask that, I denied it without prejudice to him bringing
4 whatever he wants to bring by way of a request for a stay.
5 But pending such a motion, the monitor will continue, 14:56:21
6 and I will continue to decide disputes that I need to decide
7 pending whatever you want to file, Mr. Cooper.
8 MR. SEGURA: The additional point I'd like to raise
9 with the technical assistance process, this is something that
10 once we saw the results of MCSO's attempt to intervene with 14:56:41
11 these individual deputies that were identified in the first
12 report, they made an attempt. We got reports back from
13 supervisors that were then signed off by the chain of command.
14 We reviewed those, the monitor reviewed those,
15 plaintiff-intervenors did, and we raised significant concerns 14:57:01
16 with those. Out of that, MCSO then agreed to engage in this
17 technical assistance process whereby they would effectively
18 redo this under the monitor's guidance.
19 We have always requested the ability to provide input
20 into that process. And I don't mean that just because it's "a" 14:57:19
21 process; this is the most significant process that MCSO needs
22 to be able to be capable of doing after compliance is achieved.
23 And we would like input on how MCSO is supposed to
24 intervene when there are indicia of racial profiling. We think
25 that it's critical that they do it right. And we have -- it 14:57:44

1 was news to us that the technical assistance process had
2 started. It was our understanding that we were going to have
3 an opportunity to provide input on that once a protocol for
4 intervention had been developed. So we would -- we continue to
5 request that. We believe strongly, as with any other policy or 14:58:00
6 procedure that is created pursuant to the injunction, that we
7 have an opportunity to weigh in on how that is -- that is
8 supposed to be done. The last thing we want is, you know, this
9 process goes forward and we were unable to provide input.
10 THE COURT: Mr. Masterson, do you have anything to say 14:58:24
11 with respect to that?
12 MR. MASTERSON: Your Honor, I think the -- you'll have
13 to check with Chief Warshaw or the team that was here, but my
14 understanding is that the plaintiffs and plaintiff-intervenors
15 are going to have an opportunity to weigh in on the protocols 14:58:41
16 that are developed by MCSO with the monitors.
17 THE COURT: Chief Warshaw?
18 CHIEF WARSHAW: That would be -- that would be
19 correct, Your Honor. There's -- there are no secrets here.
20 This is a transparent process. We certainly want it to, and I 14:58:55
21 think I can represent to the Court that we are certainly
22 sensitive to the interests and concerns and the expectations of
23 the plaintiffs and the plaintiffs-intervenors. That is
24 inculcated in our thinking as we provide that technical
25 assistance. 14:59:17
1 So as an outgrowth of that technical assistance, and,
2 clearly, before anything is finalized we fully intend to have a
3 dialogue with the plaintiffs and the plaintiffs-intervenors, to
4 answer Mr. Segura's question.
5 THE COURT: Let me just say, Mr. Segura, it does not 14:59:34
6 appear that there's any dispute among any party or the monitor
7 that you should be entitled to access and input in that process
8 and that makes a lot of sense to me. Let me share with you my
9 one concern. You have expressed very legitimate concerns today
10 about two things: One is the speed of response, and the second 14:59:51
11 is the opportunity to have input. It seems to me that in
12 instances like this one, there may need to be triage questions,
13 questions that require -- matters that may require very rapid
14 response. For example, if we've still got deputies out on the
15 street doing things they shouldn't be doing, that needs to stop 15:00:16
16 now. However, there needs to be a thoughtful evaluation, both
17 from you and from the defendants, about how we go about doing
18 these things in a way that is fair and that is not costly.
19 But by saying it ought to be thoughtful, I look, for
20 example, at the number of lawyers in this room, and everybody's 15:00:38
21 entitled to some participation. But I must tell you that one
22 of my frustrations -- and I say this, Mr. Masterson, meaning to
23 be clear -- it took a long time to do the initial training that
24 the deputies needed about my initial order a long time ago. It
25 took a long, long time to get that training in place. 15:01:02

1 I was frustrated that it took so long. I understand
2 that plaintiffs wanted input in that training to be sure that
3 it was correct. Sometimes things take time. But by the same
4 token, there's gotta be some sort of balance where we get some
5 of this stuff done. And so I ask all parties to consider that, 15:01:28
6 and to consider the realities of what it takes.
7 And if it makes sense, for example, for plaintiffs or
8 defendants -- and I realize that we have defendants and
9 defendant-intervenors; they're both entitled to separate
10 representation -- but if you have, if your stances on the 15:01:46
11 issues are identical in certain respects, it seems to me that
12 we might be able to make more rapid progress if we limited the
13 participation and the input in these things to those who
14 represent our position so we don't have 20 people thinking
15 through a problem that two people might be able to think 15:02:03
16 through just as effectively and produce results that are more
17 rapid, less expensive, more immediate, more effective for the
18 community involved.
19 I raise that as a concern, just based on how long it
20 took to get the officers trained on his -- on their initial 15:02:18
21 obligations, and in light of what they had been doing.
22 MR. SEGURA: And I would just say, Your Honor, there
23 are point persons designated both on our team and for
24 plaintiffs-intervenors, I don't want to speak for them, and
25 I'll allow Ms. Johnston to address the court with additional 15:02:37
1 concerns that she -- that she has.
2 But there certainly has been no impression that I've
3 seen that the plaintiffs have had any role in delaying the
4 first training or any of this process. We would certainly be
5 willing to turn things around as soon as possible. We have 15:02:52
6 engaged now in a process through a protocol developed by the
7 monitor as to how much time we get to respond to anything, how
8 much time the monitor does, and so on, and we have, for the
9 most part, followed that, and when we haven't been able to
10 we've been able to work it out. 15:03:08
12 MR. SEGURA: So we're perfectly willing to continue
13 doing that with respect to their response, I mean, I share Your
14 Honor's concern with wanting to do this as soon as possible.
15 We have been pushing for this since last April, and when it did 15:03:20
16 happen in July without the input of the monitor and the monitor
17 raised concerns before they went through the process and then
18 after the results of the process were seen, the -- the results
19 of that are almost worse than us having done nothing.
20 The reports revealed a complete resistance to the fact 15:03:41
21 that there may even be indicia of biased policing or that there
22 may be a problem. None of this is to say that any one officer
23 is engaging in problematic policing, but it's indicia, and it
24 needs to be determined and there needs to be intervention.
25 THE COURT: Well, then maybe what needs to happen is 15:04:01

1 keep the lines of communication open. Communicate with
2 defendants. Communicate with the monitor. If you can't arrive
3 at agreement, let's bring these matters to me more rapidly, and
4 I will rule on them rapidly and we will move forward rapidly.
5 MR. SEGURA: Your Honor, the other request that we've 15:04:17
6 made, our understanding is the last report that was shared with
7 us, the last ASU report analyzing 2014 and 2015, was a final
8 version. It was not our understanding that that was a draft
9 version. But we were provided with a draft version during the
10 last site visit. It was an embargoed copy that we had to then 15:04:37
11 return.
12 We have noticed some differences between what we
13 recalled the draft report being and what we now assume to be
14 the final report, although that may not be the case, given what
15 Mr. Masterson said. We have now requested to see that initial 15:04:52
16 draft report. We believe we should have access to any
17 information that reveals the possibility of biased-based
18 policing, so we made that request by e-mail last week and have
19 not heard back.
20 THE COURT: Do you wish to respond at all, 15:05:09
21 Mr. Masterson?
22 MR. MASTERSON: Well, just on a couple issues.
23 First off, and I think Mr. Segura did clarify the fact
24 that we have met and conferred and discussed these matters
25 several times, but if there's any confusion by the parties or 15:05:25

1 the Court, we're not slowing down compliance at all. In fact,
2 since the motion for recusal was filed, my understanding is
3 that we've produced nearly 18,000 additional documents to the
4 other side. So if anybody thinks that we're trying to stall,
5 or delay, or we're going to quit compliance based upon these 15:05:45
6 motions, that's just not happening and that's not our
7 intention.
8 THE COURT: I appreciate that.
9 MR. MASTERSON: I think Mr. Segura did clarify that we
10 have met several times to discuss these issues. 15:05:56
11 THE COURT: And it does seem to me, do you have any
12 problem with idea of triage?
13 MR. MASTERSON: No. In fact, I'm glad you brought
14 that up. And I wasn't going to say anything about this one
15 issue I had, and I'm not going to -- I'm not going to tell you 15:06:10
16 who the issue was with, but I was working on a policy last week
17 and was trying to tweak some language in a policy that we've
18 all had problems with, and so I called one of the lawyers on
19 the other side, just so we could chat a little bit about,
20 Here's what my concern is, Here's what I'm thinking of doing, 15:06:27
21 so we could have a little one-on-one discussion about it
22 before, you know, we launched in, Okay, here's a new draft, and
23 was told I had to put everything in e-mail.
24 And I get -- I get that one of these folks over here
25 can't commit for everybody else, but if we could just open the 15:06:42
1 lines a little bit more, and I'm not going to try to hold
2 anybody to, Yeah, well, so-and-so told me we could do it this
3 way. But if we could open the lines if I call Mr. Segura,
4 Ms. Wang, or any one of their team here when we have little
5 questions like that, it really is going to help, rather than 15:07:00
6 having to send the e-mail, then wait for the e-mail to come
7 back after everybody's looked at it, because my question wasn't
8 all that difficult, and was something I think we could just
9 discuss for a few minutes and maybe even reach an agreement,
10 and then pass it on to our respective teams for discussion and 15:07:13
11 approval. So I'd kind of like to get that done as part of the
12 triage, if we can.
13 And I understand, they could probably call me and I
14 might have said the same thing, Well, send an e-mail so I could
15 discuss it with everybody else, but now that you've mentioned 15:07:25
16 the triage business, maybe it would be better if we had more
17 open phone lines rather than just the e-mail communications.
18 MR. SEGURA: Your Honor, we've always worked openly
19 with -- with them. I mean, I'm starting to sense the
20 impression that there may be some indication that plaintiffs 15:07:40
21 have a role and delayed this over the past three quarterly
22 reports. Compliance has gone up by --
23 THE COURT: No, no, no. Listen --
24 MR. SEGURA: -- percentage points.
25 THE COURT: -- everybody gets -- 15:07:51

1 MR. SEGURA: And I don't want to --
2 THE COURT: Everybody gets sensitive. I'm not trying
3 to cast any blame on anybody. But I do think that we need to
4 have more communication rather than less communication. We
5 need to, to the extent that everybody is willing, cooperate to 15:07:59
6 rapidly as possible, with thought and with input, put in place
7 curative measures that are going to last.
8 And, yeah, we need to take time on those curative
9 measures that are going to last, but we also have to be able to
10 cure any problems that still exist, and that should not take 15:08:19
11 time. And I think in order to do that in an effective way does
12 require effective communication between counsel, and, you know,
13 the monitor. He needs to be involved in all of this, too.
14 But I really think that if we're operating in good
15 will -- and I don't at present have any basis to think that 15:08:42
16 anybody is operating in bad -- bad faith -- I don't see why we
17 can't effectively cure the problems that need to be cured now,
18 and while doing it rapidly, also take the time we need for more
19 long-term solutions.
20 And if in fact you arrive at disagreements, or if you 15:09:04
21 believe there may be evidence of bad faith -- and certainly I
22 have found that on behalf of defendants, although not
23 defendants' counsel, at least not their present counsel -- you
24 can raise that with me. But unless and until -- let's not
25 anticipate disagreements and what the nature of those 15:09:28

1 disagreements may be until they come up.
2 And I do think that we could all be operating, to the
3 extent you can be open to each other, we will be much more
4 effective in making cures that need to be made as efficiently
5 and quickly and inexpensively as possible. 15:09:49
6 So keep in mind this triage notion, please, especially
7 with respect -- Mr. Masterson, I'll tell you, if we have
8 outliers in ASU study 1 and ASU study 2 -- and I realize that
9 you're going through steps that need to be appropriately taken
10 about how you approach these matters going long term -- but it 15:10:09
11 seems to me that we can take some steps now, with consultation,
12 that will cure that pretty rap- -- at least do some initial
13 cures pretty rapidly.
14 Do you have any problem with that, as a concept, at
15 least? 15:10:23
16 MR. MASTERSON: I do not, Judge, as a concept.
18 MR. SEGURA: Your Honor, again, we have been asking
19 for this to be done rapidly since we first learned of the
20 problem. I think, you know, that term without a deadline, at 15:10:35
21 least for the development of the concrete plan --
22 THE COURT: Listen --
23 MR. SEGURA: -- to address it --
24 THE COURT: -- if you want to do the concrete plan,
25 I'm not telling you not to do the concrete plan at all, and I'm 15:10:45
1 not telling you you have to agree. But I do think that if
2 you'll communicate, as in that 7(j) motion, Mr. Cooper, you'll
3 kind of show each other what you want and what you don't want,
4 we may find that we can have agreement as to a lot more than --
5 that we really don't have to take up, so I'm asking you to do 15:11:04
6 that.
7 And I'm not saying that I'm trying to put anything off
8 and not decide things that need to be decided. I'm saying we
9 need to discuss, find out what needs to be decided, bring it to
10 me in a way that I can understand in an educated way what the 15:11:19
11 issues are, and if I have to, I'll decide it. But I suspect
12 that if you're operating in good faith you'll be able to do
13 much more than -- we'll be able to accomplish a lot more
14 together. That's all I'm saying.
15 Anything else? 15:11:36
16 MR. SEGURA: Just one other thing. I mean, now that
17 we have -- we do know that this is a current pressing problem,
18 I think it would be beneficial if we could set a status
19 conference, it could be by phone with Your Honor --
20 THE COURT: How long do you want? 15:11:48
21 MR. SEGURA: -- in two weeks, to see where we are with
22 this process.
23 THE COURT: Any issue with that, Mr. Masterson?
24 MR. MASTERSON: That's fine, Judge.
25 THE COURT: What do we have, Kathleen? 15:12:01

1 Ms. -- I'm sorry. I know Ms. Coe, and I should --
2 MS. JOHNSTON: Johnston.
3 THE COURT: Ms. Johnston, I apologize.
4 MS. JOHNSTON: I just have a couple of things that I
5 would like to clarify as Mr. Segura has done. Specifically, 15:12:12
6 with respect to the ASU report, the first ASU report identified
7 certain outlier deputies who may be engaged with racial -- in
8 racial profiling, and we understand that the monitor and MCSO
9 are working to develop a process using the EIS to address those
10 individual deputies. 15:12:29
11 However, the second report's findings were much more
12 significant, finding an organizational-wide bias based on
13 analysis that the first report did not include. And I think
14 what we would like the defendants to do is come up with a plan
15 to address that organizational-wide bias in addition to the 15:12:44
16 individual outlier deputies that were identified in each
17 report.
18 We think that the types of relief that are -- is
19 necessary to address those two different aspects or two
20 different indications of bias are different, and we do think 15:12:59
21 that the second ASU report warrants a response by MCSO that is
22 more robust than merely supervisory intervention through the
23 EIS. And so we would like MCSO to set a deadline to come up
24 with a plan to address the more significant organizational-wide
25 findings of the second ASU report. 15:13:20

1 THE COURT: Well, I get that, Ms. Johnston, and I
2 don't even know that it's unreasonable. But you're doubtless
3 aware that there's going to be a change at the top of MCSO's
4 organization, and they may well have different views about what
5 is and is not appropriate in terms of organizational response. 15:13:41
6 It seems to me that to the extent that what you're
7 talking about is involved at the level of -- is involved at a
8 lower level, you can proceed. But how, really, can we proceed
9 when we know that -- is it seven weeks from now? -- we're going
10 to have a new sheriff, who really has to be heard on these 15:14:03
11 issues.
12 So is what you want to do something that needs to be
13 accomplished in the next seven weeks?
14 MS. JOHNSTON: We think, Your Honor, that the work can
15 begin now. Certain individuals within MCSO will not be 15:14:16
16 changing, those individuals who are -- who are working to
17 address the findings of the ASU reports. We think that some
18 work should begin as soon as possible.
19 The first ASU report, we are still waiting to address
20 the individual outlier deputies. This is based on data that 15:14:32
21 was collected between July 2014 and June of 2015. Certain of
22 those deputies are in the second report and still have not been
23 addressed. We would respectfully urge MCSO to move as quickly
24 as possible to address --
25 THE COURT: With respect to those deputies. 15:14:51

1 MS. JOHNSTON: With respect to those deputies and
2 with --
3 THE COURT: I think Mr. Masterson's indicated he's
4 willing to do that.
5 Do I misunderstand you, Mr. Masterson? 15:14:57
6 MR. MASTERSON: You did not.
7 THE COURT: Okay. So what do you want
8 organizationally within the next seven weeks?
9 MS. JOHNSTON: We would like them to consider the
10 types of organizational changes that they could make to address 15:15:05
11 a culture of bias within the MCSO.
12 THE COURT: Do you have specific recommendations that
13 you can submit to them for their consideration?
14 MS. JOHNSTON: We could begin that process, yes, Your
15 Honor. 15:15:16
16 THE COURT: All right. Then that would be my
17 suggestion. And in order to use these weeks productively,
18 discuss these things with Mr. Masterson. He can tell you
19 whether or not he needs to talk to the new management, whether
20 there are people involved that he can discuss this effectively 15:15:30
21 with, or he can at least be prepared to raise these matters
22 with new management if they have to be raised to new management
23 so we can use this time as productively as possible.
24 Mr. Masterson, you wanted to speak and I was talking.
25 I apologize. 15:15:49
1 MR. MASTERSON: Your Honor, I just wanted to point out
2 to the Court and Ms. Johnston that I had this very discussion
3 with Ms. Johnston's colleague, Mr. Killebrew, during a site
4 visit. We discussed for I can't say a lengthy period of time,
5 but a significant period of time, this very issue, and I asked 15:16:04
6 Mr. Killebrew, since obviously his organization has more
7 experience with this than I do to please forward any thoughts
8 or suggestions he had on how we could deal with this what he
9 admitted was a rather perplexing issue. So we've reached out,
10 and hopefully we'll get some input and can move from there. 15:16:26
11 THE COURT: I would say Chief Warshaw, I know you're
12 on the line. I know you've monitored other -- you've been part
13 of consent decrees in others situations, and to the extent you
14 have suggestions, I assume you've already been -- felt free to
15 transmit them to the MCSO. 15:16:45
16 CHIEF WARSHAW: Yes, Your Honor.
17 THE COURT: Anything else, Ms. Johnston?
18 MS. JOHNSTON: No, Your Honor.
20 MR. SEGURA: One other issue, Your Honor, if I may. 15:16:55
21 THE COURT: Uh, this --
22 MR. SEGURA: It's related to something that I don't
23 think we resolved fully.
25 MR. SEGURA: This is with our request to the draft 15:17:01

1 second report, we made a request. I anticipate that we may not
2 have agreement from defense counsel. I don't want to speak for
3 them, we haven't heard back, as to our request for the draft
4 that we received as an embargoed copy during the site visit.
5 MR. MASTERSON: I don't know that they're entitled to 15:17:19
6 the draft, but I'll certainly think about it and let them know
7 one way or the other.
8 THE COURT: All right. With respect to motion 1851,
9 that is a motion to extend the deadlines for PSB
10 investigations. It's been fully briefed. I've read it. Let 15:17:39
11 me tell you that my inclination, Mr. Masterson, is to deny it
12 without prejudice.
13 You pointed out in your motion, and I think fairly,
14 that the state deadline in which there's really no consequence
15 for a PSB violation, it was changed from 120 working days to 15:18:00
16 180 calendar days. The time is about the same but it is more
17 workable, but I worked through it a couple different ways. It
18 seems to me the time is about the same.
19 You will understand that it is my concern that PSB
20 investigations be done in sufficiently timely fashion that you 15:18:23
21 can then conduct the hearings that are required and have all
22 that done within 180 days. If you can convince me that you
23 absolutely require more time to effectively do investigations,
24 and that the extension that you're going to seek is not going
25 to prevent in any way from according the hearings necessary to 15:18:46

1 come up with a final result under the statute, I would be open
2 to it.
3 But that will allow the plaintiffs and the
4 plaintiff-intervenors also to be aware of those issues. And
5 because, as you know, it was my finding that there was an abuse 15:19:00
6 of that process in order to avoid discipline, I'm very
7 reluctant to change those deadlines, especially in the interim,
8 in the interim of these administrations, when I don't have
9 evidence that a lengthier deadline is necessary in all cases to
10 effectively conduct investigations. 15:19:20
11 And towards that end, though, plaintiffs, I am
12 informed from time to time by the marshal that the materials
13 that were taken into custody by the marshal are the subject of
14 Internal Affairs investigations and they receive requests to
15 have access to those materials. 15:19:38
16 Do the plaintiffs, the plaintiff-intervenors, Maricopa
17 County, or Sheriff Arpaio in his official capacity, have any
18 objection if I just allow access to those materials, as long as
19 the marshal is supervising the review of those materials, so
20 that we can facilitate these Internal Affairs investigations? 15:19:59
21 MR. MASTERSON: I have no objection, Judge.
22 THE COURT: Mr. Walker?
23 MR. WALKER: The County has no objection, Your Honor.
24 MR. YOUNG: No objection from plaintiffs, Your Honor.
25 MS. JOHNSTON: No objection, Your Honor. 15:20:15

1 THE COURT: All right. So I'm just going to authorize
2 that to happen, and I won't feel any obligation to inform the
3 parties, especially since that may -- there may be issues
4 pertaining to individual investigations, anyway.
5 Did you want to be heard on the 1851 ruling, denial 15:20:27
6 without prejudice, which is the extension of the deadline?
7 MR. MASTERSON: No, Judge. I think I understand the
8 Court's ruling, and if we need -- if we think we need to seek
9 further relief from the Court, we'll go ahead and do that by
10 motion. 15:20:55
11 THE COURT: All right. And I would just ask, if
12 you're going to do it by motion, why don't you review the
13 material first with plaintiffs and the reasons why, and the
14 specific instances, so we will all know what facts we're
15 talking about and I can determine, really, whether I think 15:21:06
16 something is -- is necessary here.
17 But you understand my concerns, in light of my
18 findings about the abuse of that process, but I'm not now, in
19 absence of hard evidence, going to extend the time limit in
20 which those investigations must occur. 15:21:23
21 MR. MASTERSON: I do understand that, Judge.
22 THE COURT: All right. Is there anything else that
23 needs to be raised at this time?
24 MS. WANG: Your Honor, very briefly, just so that we
25 move the ball forward during the next status conference, which 15:21:31
1 hasn't been set yet.
2 THE COURT: November 23rd at 10:00 a.m.
3 THE CLERK: 9:00 a.m.
4 MS. WANG: That's the day before Thanksgiving?
5 THE COURT: I'm sorry, 9:00 a.m. November 23rd, 15:21:40
6 9:00 a.m.
7 MS. WANG: Yes, sir.
8 THE COURT: And anybody can appear telephonically who
9 wishes to. I don't anticipate that it will take this long.
10 MS. WANG: Yes, Your Honor. And toward that end, Your 15:21:53
11 Honor, I just want to clarify, as to the EIS deadlines, we did
12 meet and confer. I didn't mean to say that the parties have
13 not been meeting and conferring, we certainly have been, and
14 both sides have been engaged with the monitor on various
15 issues. We believe we had that teed up to make a request to 15:22:08
16 the Court today.
17 The monitor has worked with the defendants -- largely
18 ex parte, actually, without the plaintiffs' participation -- in
19 working out interim dates along the way toward compliance with
20 paragraph 79 of the Court's order. Plaintiffs and the United 15:22:30
21 States have requested that the defendants give us a date by
22 which they would come into initial compliance with paragraph
23 79. They had dates worked out leading up to that date. The
24 last one I believe is sometime in March of 2017. We suggested,
25 Can you just set June 30th, 2017, as the final date to reset 15:22:52
1 the deadline that had been October 22nd of 2014.
2 They refused to do that, and that, among other things,
3 in addition to having the interim dates in the project plan,
4 was just reset the date that they're two years out of
5 compliance with, and that's what we'll be looking for at the 15:23:13
6 next status conference.
7 THE COURT: All right. And if -- you know, again, if
8 you try and work it out, you can't come to an agreement, and
9 it's a matter that I need to decide, then I will decide it, but
10 I may ask you to submit written briefings so that I can look at 15:23:25
11 it rather than just deciding it on the fly.
12 MS. WANG: Yes, Your Honor.
13 THE COURT: Anything else?
14 Thank you all.
15 (Proceedings concluded at 3:23 p.m.)
16
17
18
19
20
21
22
23
24
25
2 C E R T I F I C A T E
7 I, GARY MOLL, do hereby certify that I am duly
8 appointed and qualified to act as Official Court Reporter for
9 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 DATED at Phoenix, Arizona, this 11th day of November,
18 2016.
19
20
21
s/Gary Moll
22
23
24
25

Melendres #1890 - NOV 10 TRANSCRIPT As Filed in ECF 1879 (Status Conference)

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Melendres #1890 - NOV 10 TRANSCRIPT As Filed in ECF 1879 (Status Conference)

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Case 2:07-cv-02513-GMS Document 1879-2 Filed 11/11/16 Page 2 of 56

1 UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ARIZONA

4 Manuel de Jesus Ortega Melendres, )

22 Court Reporter: Gary Moll

3 For the Plaintiffs:

13 Covington & Burling, LLP

18 Mexican American Legal Defense and Educational Fund

3 For the Defendant Joseph M. Arpaio and Maricopa County

14 For Executive Chief Brian Sands:

3 THE COURT: Please be seated.

4 THE CLERK: This is CV 07-2513, Melendres, et al., v.

5 Arpaio, et al., on for status conference. 14:11:33

6 Counsel, please announce your appearances.

7 MS. WANG: Good afternoon, Your Honor. Cecillia Wang

8 and Andre Segura from the ACLU for plaintiffs.

9 THE COURT: Good afternoon.

10 MR. YOUNG: Good afternoon, Your Honor. Stanley 14:11:41

11 Young, Covington & Burling, for plaintiffs.

12 THE COURT: Good afternoon.

13 MS. JOHNSTON: Good afternoon, Your Honor. Maureen

14 Johnston and Cynthia Coe for the Department of Justice.

15 THE COURT: Good afternoon. 14:11:49

16 MS. BRODY: Good afternoon, Your Honor. Kathy Brody,

18 THE COURT: Good afternoon.

19 MR. CHANIN: Good afternoon, Your Honor. James Chanin

20 for plaintiffs. 14:12:04

21 MR. MASTERSON: Good afternoon, Judge Snow. John

22 Masterson, Joe Popolizio. I also have with me Charles Cooper

25 MR. COOPER: Good morning, Your Honor. 14:12:22

1 THE COURT: Good afternoon.

2 MR. KIRK: Good afternoon.

3 MR. WALKER: Good afternoon, Your Honor. Richard

4 Walker on behalf of Maricopa County.

5 THE COURT: Good afternoon. 14:12:27

6 MR. MURDY: Good afternoon, Your Honor. Craig Murdy

7 on behalf of retired chief executive Brian Sands.

8 May I briefly address the Court?

9 THE COURT: Yes.

10 MR. MURDY: I don't know that I necessarily need to be 14:12:37

12 conference will involve any issues material to Chief Sands I

13 would ask for leave to be excused from the hearing.

14 I also understand that the Court may not be willing to

15 make such a representation, and in that case I understand 14:12:51

17 THE COURT: Well, I don't know that it's going to

19 anticipated by requesting this status conference, so I just

21 would involve Chief Sands?

22 MS. WANG: Not from plaintiffs, Your Honor.

23 MR. MASTERSON: No, Judge.

24 MR. MURDY: Thank you, Your Honor.

25 MR. WALKER: No, Your Honor. 14:13:13

1 THE COURT: You may go. Thank you.

2 (Mr. Murdy is excused from the courtroom.)

3 MR. MASTERSON: Judge, I apologize. I forgot

4 Mr. Ackerman in the back.

5 THE COURT: We do have parties on the phone, I 14:13:22

7 CHIEF WARSHAW: Yes. Good afternoon, Your Honor.

8 This is Chief Warshaw.

9 COMMANDER GIRVIN: Good afternoon, Your Honor.

10 Commander Girvin is on the phone. 14:13:35

11 CHIEF MARTINEZ: Good afternoon, Your Honor.

12 Chief Martinez on the phone also.

13 MS. GOMEZ: Good afternoon, Your Honor. Julia Gomez,